Gratwick v Johnson

The case of *Gratwick v Johnson* concerned an appeal to the High Court of Australia from a decision of a Western Australian magistrate. The appellant, an inquiry officer for the Commonwealth Investigation Branch, had laid a complaint against the respondent, Dulcie Johnson, for contravening the National Security Act 1939-1943. Specifically, the respondent was charged with travelling by rail from South Australia to Western Australia without a permit, an act prohibited by paragraph 3(a) of the Restriction of Interstate Passenger Transport Order, made under the National Security (Land Transport) Regulations. The magistrate had dismissed the complaint, finding the Order to be invalid as it contravened Section 92 of the Constitution.

The central legal issue before the High Court was whether paragraph 3(a) of the Restriction of Interstate Passenger Transport Order, which prohibited travel by rail or commercial passenger vehicle between Australian States without a permit, was a valid exercise of power or an unconstitutional infringement of Section 92 of the Constitution. Section 92 guarantees that trade, commerce, and intercourse among the States shall be absolutely free. The appellant argued that the Order was a legitimate measure taken under the defence power to regulate transport for national security purposes, and any impact on interstate intercourse was merely incidental. The respondent contended that the Order directly prohibited interstate travel, thereby violating the constitutional freedom guaranteed by Section 92.

The High Court, in its judgment, held that paragraph 3(a) of the Restriction of Interstate Passenger Transport Order was invalid. The Court reasoned that the provision constituted a direct interference with the freedom of intercourse among the States guaranteed by Section 92 of the Constitution. While acknowledging the broad scope of the defence power during wartime, the Court affirmed that this power, like all Commonwealth legislative powers, is subject to the Constitution, including Section 92. The Court distinguished between regulations that genuinely canalise or control transport for a legitimate purpose and those that amount to a mere prohibition of interstate movement. In this instance, the requirement for a permit to travel between States was found to be a direct barrier to such intercourse, irrespective of the stated objects of the National Security Regulations.

Consequently, the High Court dismissed the appeal. The Court affirmed the magistrate's decision that the Order, in its prohibition of interstate travel without a permit, was unconstitutional and therefore invalid. The respondent's charge was accordingly quashed.