Bradley v the Commonwealth

Bradley, a former member of the Australian Army, brought proceedings against the Commonwealth of Australia in the High Court of Australia. The dispute concerned the validity of a regulation made under the *Defence Act 1903* (Cth) which Bradley alleged was invalid. Specifically, Bradley sought a declaration that regulation 17 of the *Defence (Citizen Military Forces) Regulations* (Cth) was beyond the power conferred by the *Defence Act* and therefore invalid.

The High Court was required to determine whether the Governor-General had the constitutional and statutory authority to make regulation 17 of the *Defence (Citizen Military Forces) Regulations*. This involved an examination of the scope of the legislative power granted to the Commonwealth Parliament by the *Constitution*, and the extent to which that power could be delegated to the executive government through subordinate legislation. The central question was whether the regulation, which purported to make provision for the compulsory service of members of the Citizen Military Forces in circumstances beyond those expressly contemplated by the *Defence Act*, fell within the ambit of the statutory authority.

The Court, by majority, held that regulation 17 was invalid. The reasoning focused on the principle that subordinate legislation cannot extend beyond the powers conferred by the enabling statute. Barwick C.J. and Gibbs J. found that the *Defence Act* did not grant the executive the power to compulsorily enlist members of the Citizen Military Forces for service outside Australia, and that regulation 17 sought to do precisely that. Menzies and Stephen JJ. reached the same conclusion, emphasizing that the regulation was inconsistent with the limitations inherent in the *Defence Act* itself. McTiernan J. dissented, finding that the regulation was a valid exercise of the Governor-General's power.

The Court ordered that a declaration be made that regulation 17 of the *Defence (Citizen Military Forces) Regulations* was invalid.