Brown v Green

The case of *Brown v Green* involved an appeal to the High Court of Australia concerning a conviction for receiving rent in excess of the fair rent determined under Commonwealth regulations. The appellant, Rose Prentice Brown, was charged under section 35 of the *Landlord and Tenant (Amendment) Act 1948-1949* (NSW) for receiving a weekly rent of £1 17s. 6d. for certain premises, which exceeded the fair rent of £1 13s. Od. per week, as determined on 4 June 1947, under the National Security (Landlord and Tenant) Regulations. The determination of fair rent was made under regulation 25 of these regulations, which were due to cease control in New South Wales from 16 August 1948, the commencement date of the NSW Act.

The legal issues before the High Court were twofold. Firstly, the Court was required to determine whether the constitutional validity of the National Security (Landlord and Tenant) Regulations was an essential condition for the continued force and effect of fair rent determinations made under those regulations, as preserved by section 4(1) of the *Landlord and Tenant (Amendment) Act 1948-1949* (NSW). Secondly, the Court had to consider whether guilty knowledge was a necessary element of the offence under section 35(1) of the NSW Act, or if the failure to receive written notification of the rent determination constituted a defence.

A majority of the High Court, comprising Dixon, McTiernan, Webb, Fullagar, and Kitto JJ., held that the constitutional validity of the Commonwealth regulations was not an essential condition for the application of the NSW Act to existing fair rent determinations. They reasoned that section 4(1) of the NSW Act, by referring to determinations made "under the Commonwealth Regulations" and "having force or effect," assumed the operation of those regulations and intended to carry over existing arrangements, rather than making the continued constitutional validity of the Commonwealth regulations a prerequisite. The Court found that the purpose of the NSW Act was to transition control from federal to state authority, and its operation should not be made dependent on the uncertain constitutional validity of the Commonwealth regulations. Regarding the second issue, the Court held that guilty knowledge was not an element of the offence under section 35(1), as the provision was part of a regulatory scheme designed to protect a civil right through enforcement, rather than to punish acts with criminal intent. The Court also found that the failure to provide written notice of the determination, as required by regulation 25(8), was not a defence to the charge.

Consequently, the appeal was dismissed. Williams J. dissented on the first issue, holding that determinations could only have force and effect if the regulations under which they were made remained valid. However, he ultimately agreed with the majority that the Defence (Transitional Provisions) Act 1946-1947 was valid in continuing the regulations until 31 December 1948, and thus the regulations were valid at the relevant time. The Court ordered that the Crown bear its own costs of the proceedings in the High Court.