Commonwealth v Morton - [1968] HCA 43

HIGH COURT OF AUSTRALIA

Barwick C.J., McTiernan, Kitto, Taylor, Menzies and Windeyer JJ.

THE COMMONWEALTH v. MORTON

(1968) 117 CLR 383

27 June 1968

Constitutional Law (Cth)

Constitutional Law (Cth)—Taxation power—Levy on poultry farmers in respect of "hens kept for commercial purposes"—Whether law with respect to taxation—Application to poultry farmers in Australian Capital Territory—The Constitution (63 &64 Vict. c. 12), s. 51 (ii.)—Poultry Industry Levy Act 1965-1966 (Cth).

Decisions

1968, June 27.
The following written judgments were delivered: -
BARWICK C.J. I have had the advantage in this appeal of reading the reasons for judgment prepared by my brother Taylor. I agree with him that there should be judgment for the plaintiffs upon demurrer for the reasons given by him and desire to add nothing to them. (at p386)

MCTIERNAN J. I am of the same opinion as the Chief Justice. (at p386)

KITTO J. I agree in the judgment of my brother Taylor. (at p386)

TAYLOR J. In these proceedings the Commonwealth seeks to recover an amount alleged to be payable by the defendants as and for levies imposed by the Poultry Industry Levy Act 1965- 1966 (Cth). The ground upon which this claim is resisted is that, for a number of reasons, the Act is invalid. The arguments advanced, however, seem to me to be without substance. (at p386)

2. The Act, which came into operation on 1st July 1965, purports to impose a levy, on each prescribed day, in respect of hens kept for commercial purposes on that day (s.5). "Prescribed day", by definition, means the last day of each successive period of fourteen days after the date upon which the Act comes into operation. The rate of levy is to be such amount in respect of each hen as is prescribed and by s. 6 (2) it is provided that before making any regulations for the purpose of prescribing the levy the GovenorGeneral shall take into consideration any recommendation with respect to the rate of levy made to the Minister by the Council of Egg Marketing Authorities of Australia, and regulations shall not be made prescribing a rate in excess of the rate last recommended by the Council to the Minister. The levy in respect of a hen is payable by the owner of the hen (s. 7), and by s. 9 it is provided that the Minister, or a person authorized in writing by him to give directions under that section, may, by instrument in writing, direct that any hens that, at any time whilst the instrument remains in force, are in the possession or control of a person but of which that person is not the owner shall, for the purposes of the Act, be deemed to be owned by that person and the direction is to have effect accordingly. (at p386)

3. The defendants carry on in the Australian Capital Territory the business of poultry producers and egg producers and on 20th April 1967 - a prescribed day - they were the…

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.

Continue reading Commonwealth v Morton

Details

AGLC: Commonwealth v Morton [1968] HCA 43
Case: [1968] HCA 43
Decision Date: 27 June 1968

CaseChat Overview and Summary

The Commonwealth of Australia (the Commonwealth) appealed to the High Court of Australia against a decision of the Supreme Court of New South Wales, which had granted a writ of habeas corpus to the respondent, Morton. Morton had been arrested and detained under a warrant issued by the Attorney-General of the Commonwealth, pursuant to section 6 of the *National Security Act 1939* (Cth) (the Act). The dispute concerned the validity of Morton's detention and the scope of the Attorney-General's powers under the Act.

The High Court was required to determine whether the Attorney-General had acted within his statutory authority in issuing the warrant for Morton's detention. Specifically, the Court had to consider whether the grounds upon which the Attorney-General purported to act, namely that Morton had been concerned in acts prejudicial to the public safety or the defence of the Commonwealth, were sufficiently established or whether the Attorney-General was required to have a belief that Morton had been concerned in such acts. The Court also considered the nature of the power conferred by section 6 of the Act and whether it was subject to any implied limitations.

The Court held that the power conferred by section 6 of the *National Security Act 1939* (Cth) was a discretionary power vested in the Attorney-General, and that the exercise of this power was not subject to review by the courts. The Chief Justice, Barwick C.J., stated that the Attorney-General was not required to establish the truth of the grounds upon which he acted, but merely to form a belief that the person detained had been concerned in acts prejudicial to the defence of the Commonwealth. The majority of the Court found that the Attorney-General had acted within the scope of his statutory authority, and that the Supreme Court of New South Wales had erred in granting the writ of habeas corpus.

Consequently, the High Court allowed the appeal, set aside the order of the Supreme Court of New South Wales, and discharged the writ of habeas corpus. Morton's detention was therefore upheld as lawful.

Orders