Hume v Higgins - [1949] HCA 5

DEFENDANT, HIGGINS

RESPONDENT. COMPLAINANT,

ON REMOVAL FROM THE SUPREME COURT OF Constitutional Law (Cth.)-Defence-National security-Economic organization-

Regulations-Restriction of sales of land-Cessation of hostilities-Operation of regulations-Statute penalizing breach of regulations-Operation of statute MELBOURNE,

after lapse of regulations-The Constitution (63 &64 Vict. c. 12), 8. 51 (vi.), Feb. 22, 23;

(zxxix.)-Defence (Transitional Provisions) Act 1946-1948 (No. 77 of 1946- March 18.

No. 88 of 1948), 88. 6, 15-National Security (Economic Organization) Regula. Latham C.J.,

tions, regs. 6, 21 (S.R. 1942 No. 76-S.R. 1948 No. 121). Rich, Dixon,

The power of the Commonwealth Parliament to legislate with respect to defence had not-because of the cessation of hostilities-so contracted by the end of 1946 that it did not support 8. 6 of the Defence (Transitional Pro- visions) Act 1946 to the extent to which it purported to keep in force regs, 6 and 21 of the National Security (Economic Organization) Regulations; and the regulations themselves still had a sufficient relation to defence in May 1947. Notwithstanding that the regulations ceased to operate in 1948, S. 15 of the 1946 Act-being kept in force by reason of amendments to 8. 6 made by the Acts of 1947 and 1948-validly operates to make punishable an offence against the Act committed by a contravention of reg. 21 while it was still in force.

Dawson v. The Commonwealth, (1946) 73 C.L.R. 157, referred to.

CAUSE removed from the Supreme Court of Tasmania under Judiciary Act 1903-1948, S. 40A.

In a court of petty sessions of Tasmania, Ronald John Grant Hume was charged, on the complaint of Donald Hubert Higgins, that he "contravened regulation 21 (b) of the National Security

78 CLR 117

(Economic Organization) Regulations (in force by virtue of the Defence (Transitional Provisions) Act 1946), in that at Hobart in Tasmania on or about the first day of May 1947 he made an arrange- ment for the purpose of avoiding the operation of Part III. of those regulations in that he made an oral arrangement with one Eric William Stone who was acting for and on behalf of himself and Emma Jane Stone, Norman Raymond Stone, Stanley George Stone and Mary Eliza Stone (who are hereinafter referred to as the purchasers') that the purchasers should purchase from him the said Ronald John Grant Hume land

at Ulverstone in Tasmania

without the consent of the Treasurer in that he agreed with the said Eric William Stone that the price thereof should be £16,000 that of that sum £11,600 should be expressed and was expressed in a written contract of sale and £4,400 should be paid and was paid to the said Ronald John Grant Hume in cash that the written contract for £11,600 should be presented to the Treasurer as expressing the true purchase price and that the payment of £4,400 in cash should be concealed from the Treasurer in the expectation and hope that the Treasurer in ignorance of the payment of the sum of £4,400 would consent to the purchase at 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.

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Details

Case: [1949] HCA 5
Decision Date: 18 March 1949

CaseChat Overview and Summary

Ronald John Grant Hume was charged with contravening regulation 21(b) of the National Security (Economic Organization) Regulations, which prohibited arrangements designed to evade the operation of Part III of those regulations. The alleged contravention occurred on 1 May 1947, when Hume made an oral arrangement to sell land for £16,000, with £11,600 to be stated in a written contract and £4,400 to be paid in cash, concealed from the Treasurer. Hume was convicted by a magistrate and appealed to the Supreme Court of Tasmania. The case was subsequently removed to the High Court of Australia due to a question arising concerning the constitutional powers of the Commonwealth and the States.

The primary legal issue before the High Court was whether the National Security (Economic Organization) Regulations, and specifically regulation 21, remained valid and enforceable at the time of the alleged offence in May 1947. This question turned on whether the Commonwealth Parliament's defence power, under section 51(vi) of the Constitution, was still sufficient to support these regulations after the cessation of active hostilities. A related issue was whether section 15 of the Defence (Transitional Provisions) Act 1946, which made contravention of the regulations an offence against the Act, remained operative and could sustain a prosecution for an offence committed while the regulations were purportedly in force, even if the regulations themselves had since ceased to operate.

The Court reasoned that the Defence (Transitional Provisions) Act 1946 validly extended the operation of the National Security (Economic Organization) Regulations until 31 December 1947. It held that the defence power, even after the cessation of hostilities, was broad enough to support the continuation of these regulations as a measure for the orderly winding down of wartime economic controls and the transition to peacetime conditions. The Court found that the offence was created by section 15 of the Defence (Transitional Provisions) Act 1946, which remained in force indefinitely and was not dependent on the continued operation of the regulations themselves. Therefore, a contravention committed while the regulations were validly in force remained punishable under section 15, irrespective of any subsequent cessation of the regulations. The Court also considered the Supreme Court of Tasmania's order dismissing the appeal, noting that it was made after the cause had been removed to the High Court and was therefore a nullity, but ultimately reached the same conclusion on the merits of the appeal.

The High Court dismissed the appeal against the conviction. It found that the regulations were in force on 1 May 1947 and that section 15 of the Defence (Transitional Provisions) Act 1946 validly created an offence for contravening those regulations. The Court also declined to interfere with the six-month imprisonment sentence imposed by the magistrate, considering it not excessive given the deliberate nature of the offence and the substantial sum involved.

Orders