Fraser Henleins Pty Ltd v Cody

Fraser Henleins Pty Ltd (the company) and its managing director, Reginald Arthur Crowther, were charged with black marketing offences under the *Black Marketing Act 1942* (Cth). The company was accused of selling port wine at a price exceeding the maximum fixed under the National Security (Prices) Regulations, specifically Prices Regulation Order No. 1015. Crowther was charged as a director actively concerned in the company's business. Both were convicted and appealed to the High Court of Australia.

The High Court was required to determine several legal issues. These included whether the terms "substantially identical goods" and "substantially identical terms and conditions" within Prices Regulation Order No. 1015 were so vague as to render the Order invalid. The Court also had to consider the admissibility of statements made by Crowther as admissions against the company, the severability of potentially invalid clauses within the Order, and the constitutional validity of section 4(4) of the *Black Marketing Act 1942*, which prescribed a pre-prosecution consent procedure.

The Court reasoned that the phrases "substantially identical goods" and "substantially identical terms and conditions" were not so vague as to invalidate the Order. It held that while determining substantial identity might involve questions of degree, this did not render the provisions uncertain, drawing parallels with similar concepts in other legislation. The Court found that Crowther, as the general manager of the company, had the authority to deal with inquiries from government officials regarding the company's business, and therefore his statements made during such an inquiry were admissible against the company. Furthermore, the Court affirmed that even if some clauses of the Order were invalid, the remaining valid provisions, particularly those relating to price fixing based on a "ceiling date," were preserved by the operation of section 5(5) of the *National Security Act 1939-1943* (Cth) and section 46(b) of the *Acts Interpretation Act 1901-1941* (Cth), demonstrating the principle of severability. The Court also found that the pre-prosecution consent mechanism in section 4(4) of the *Black Marketing Act 1942* did not infringe section 71 of the Constitution as it did not involve the exercise of judicial power.

The High Court dismissed the appeals, upholding the convictions of both Fraser Henleins Pty Ltd and Reginald Arthur Crowther. The company's conviction and fine were affirmed, as was Crowther's sentence of imprisonment.