Australian Textiles Pty Ltd v The Commonwealth - [1945] HCA 35

AUSTRALIAN TEXTILES PROPRIETARY

LIMITED AND OTHERS

THE COMMONWEALTH AND ANOTHER

DEFENDANTS. Constitutional Law (Cth.)-Defence-National security-Female minimum rates-

Regulations-Validity-Reduction of disparities-Rehabilitation of servicemen- Cessation of hostilities-The Constitution (63 &64 Vict. C. 12), S. 51 (vi.)- National Security Act 1939-1943 (No. 15 of 1939-No. 38 of 1943), S. 5- MELBOURNE, National Security (Female Minimum Rates) Regulations (S.R. 1944 No. 108- Oct. 23, 24 1945 No. 139), reg. 4A-S.R. 1945 No. 139, Preamble.

A statutory rule which purported to be made under the National Security Act 1939-1943 recited that "it is necessary, pending the re-establishment in civil life of members of the Defence Force and for the purpose of assisting that re-establishment, that the carrying on of certain industries in which females are employed should be facilitated And

with a view to facilitating the carrying on of those industries, it is expedient that disparities in the minimum rates of remuneration for females in respect of various classes of employment should be reduced: Now therefore regulations" were made. The regulations which followed amended the National Security (Female Minimum Rates) Regulations by inserting reg. 4A, which provided, in substance, that the rate of remuneration of females employed in occupations to be specified should be not less than seventy-five per cent of the corresponding minimum male rate. The statutory rule was made on 30th August 1945, that is, after Japan had agreed to surrender, but before the actual surrender. After the surrender the Regulations were challenged (in an action begun on 11th September 1945) on the grounds, alternatively that they were invalid ab initio and that they had no present or future validity effect or operation."

Held, by Latham C.J., Rich, Dixon, McTiernan and Williams JJ. (Starke J. dissenting), that the Regulations were valid and effectual as an exercise of the power conferred by S. 5 of the National Security Act, notwithstanding the

71 CLR 162

Statutory Rules 1945 No. 139, made on 30th August 1945, pur- ported to amend the National Security (Female Minimum Rates) Regulations (Statutory Rules 1944 No. 108). The amendments were preceded by the following preamble :- Whereas it is necessary, pending the re-establishment in civil life of members of the Defence Force and for the purpose of assisting that re-establishment, that the carrying on of certain industries in which females are employed should be facilitated: And whereas, with a view to facilitating the carrying on of those industries, it is expedient that disparities in the minimum rates of remuneration for females in respect of various classes of employment should be reduced." The chief amendment was the insertion in the original Regulations of reg. 4A, the substance of which was that it fixed the minimum rates of wages for females employed " in any occupation within a vital industry' " (which was to be specified by the Minister by notice published in the Government Gazette), the rate for adult females not remunerated according to experience being seventy-five per cent of "the corresponding mini- mum male rate," and rates for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1945] HCA 35
Decision Date: 3 December 1945

CaseChat Overview and Summary

Australian Textiles Pty. Ltd. and other companies challenged the validity of amendments to the National Security (Female Minimum Rates) Regulations, specifically regulation 4A, which stipulated that the minimum remuneration for females in specified occupations should not be less than seventy-five per cent of the corresponding minimum male rate. These amendments were made on 30 August 1945, after Japan's agreement to surrender but before its formal surrender, and were subsequently applied to the plaintiffs' industries. The plaintiffs sought declarations that the amendments were beyond the powers conferred by the National Security Act 1939-1943 and were void. The Commonwealth demurred to the statement of claim. The case was heard in the High Court of Australia.

The central legal issue before the court was whether the impugned regulation 4A, introduced by Statutory Rules 1945 No. 139, was a valid exercise of the power granted by section 5 of the National Security Act 1939-1943. This involved determining whether the regulation's stated purpose – to facilitate the carrying on of certain industries pending the re-establishment of defence force members in civil life and to reduce disparities in female remuneration – was sufficiently connected to the prosecution of the war or the defence of the Commonwealth, as required by the Act. A further consideration was whether the cessation of hostilities, or the imminent cessation thereof, rendered the regulation invalid or inoperative.

A majority of the High Court, comprising Latham C.J., Rich, Dixon, McTiernan, and Williams JJ., held that the regulations were valid and effectual. The court reasoned that the specified industries, primarily food and clothing production, and hospital services, remained essential for maintaining the armed forces even after the cessation of fighting, as demobilisation and troop support were ongoing aspects of the war effort. The court applied the principle that regulations made under the National Security Act must have a real connection to securing public safety and the defence of the Commonwealth. It was held that provisions for the repatriation and re-establishment of servicemen were intimately connected with the defence of the Commonwealth. The court also noted that the preamble's stated purposes, while not conclusive, had a real connection to the prosecution of the war and defence. Starke J. dissented, finding the regulation to be ultra vires and void, arguing that its true purpose was social and industrial betterment rather than defence.

The High Court allowed the demurrer to the statement of claim, meaning the court found the regulations to be valid on their face, and therefore the plaintiffs' claim for declarations of invalidity failed.

Orders