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Jenkins v Commonwealth

Jenkins v Commonwealth

Case [1947] HCA 41 29 October 1947

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74 CLR 400

JENKINS AND OTHERS

THE COMMONWEALTH AND ANOTHER

DEFENDANTS. Constitutional law (Cth.)--Defence-Nationa - Security-MineralsRegulations-

Validity-Mica-Compulsory acquisition-Just compensation not provided for- Regulations amended in 1947-Just compensation provided for-Validity of MELBOURNE,

amending regulations-Acts Interpretation Act 1901-1941 (No. 2 of 1901-No. 7 Oct, 22, 29.

of 1941), S. 46 (b)-Defence (Transitional Provisions) Act, 1946 (No. 77 of 1946), 8. 6 (2)-National Security (Minerals) Regulations (S.R. 1942 No. 109- 1947 No. 97.)

The National Security (Minerals) Regulations, which were gazetted on 9th March 1942, provided by reg. 6 (1) that the Controller appointed under the regulations should have power on behalf of the Commonwealth, to operate, control, and direct the production and supply of minerals and for that purpose to take such measures, make such orders, give such directions and do such things as he thinks necessary or expedient." Regulation 6 (2) conferred on the Controller "without limiting the generality of the last preceding sub. regulation " certain specific powers relating to the acquisition of land and plant for the production of minerals. By Statutory Rules 1947 No. 97 the following additional powers were conferred on the Controller; (aa) compulsorily to acquire any minerals and (ab) by order to direct the supply and delivery to the Common- wealth of minerals; and provision was also made for the payment by the Commonwealth of just compensation in the event of the exercise of such additional powers. The National Security (Minerals) Regulations were con. tinued in force until 31st December 1947 by the Defence (Transitional Provisions)

Orders pursuant to the above regulations, as amended, and signed by the Controller were served on the plaintiffs between 30th July and 4th August 1947 directing them to deliver to the Commonwealth all mica which was then in their control. In an action by the plaintiffs challenging the validity of the

74 CLR 401

Held, that there should be judgment for the defendants since the National Security (Minerals) Regulations (S.R. 1947 No. 97), which amended the National Security (Minerals) Regulations (S.R. 1942 No. 109), was a valid exercise of the defence power and was a valid amendment to those regulations " in respect of a matter dealt with by those regulations within the meaning of S. 6 (2) of the Defence (Transitional Provisions) Act 1946.

TRIAL OF ACTION.

Hector Norman Jenkins and others brought an action against the Commonwealth and Harold George Raggatt claiming declarations that certain orders made by the defendant Raggatt, as Controller of Minerals Production, under the National Security (Minerals) Regu- lations, were invalid. The plaintiffs were engaged in the business of mining for mica in the Harts Range in the Northern Territory of Australia. The orders were served on the plaintiffs between 30th July 1947 and 4th August 1947 and directed them to deliver to the Commonwealth all mica in their possession or under their control at the mica depot in the Harts Range.

The action was heard by Williams J., in whose judgment the relevant facts and statutory provisions are sufficiently set forth.

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 Jenkins v Commonwealth

Details

AGLC: Jenkins v Commonwealth [1947] HCA 41
Case: [1947] HCA 41
Decision Date: 29 October 1947

CaseChat Overview and Summary

In this case, Hector Norman Jenkins and others (the plaintiffs) sought declarations that certain orders made by Harold George Raggatt, as Controller of Minerals Production, were invalid. The orders, issued under the National Security (Minerals) Regulations, directed the plaintiffs to deliver all mica in their possession or control to the Commonwealth. The plaintiffs were mica miners operating in the Harts Range, Northern Territory. The Commonwealth and Raggatt were the defendants. The matter was heard by Williams J. in the High Court of Australia.

The central legal issues before the court were: first, whether Statutory Rules 1947 No. 97, which amended the National Security (Minerals) Regulations, constituted a valid exercise of the defence power in July 1947, nearly two years after the cessation of hostilities; and second, whether these amendments were valid under section 6(2) of the Defence (Transitional Provisions) Act 1946, which permitted amendments to existing regulations only in respect of matters already dealt with by those regulations. The plaintiffs argued that the power to compulsorily acquire mica was a new right, beyond the scope of the defence power at that late stage, and not a mere amendment.

Williams J. reasoned that the National Security (Minerals) Regulations, originally made in 1942, were continued in force until 31 December 1947 by the Defence (Transitional Provisions) Act 1946. He noted that the regulations, as amended by Statutory Rules 1947 No. 97, provided for the compulsory acquisition of minerals and the payment of just compensation, addressing a previous deficiency in the regulations. The court applied the principle that the defence power extends to sustaining laws and regulations in force at the end of hostilities for a reasonable period to manage the transition to peace, and that amendments can be made during this period to ensure the effectiveness of these regulations. The court found that the amendments did not create a totally new right but rather strengthened existing provisions by addressing a defect that had become apparent when miners refused to comply with earlier directions. The court also considered the ongoing defence needs for mica, the necessity of acquiring all grades of the mineral, and the importance of building reserves.

Consequently, Williams J. held that Statutory Rules 1947 No. 97 were a valid exercise of the defence power and a valid amendment within the meaning of section 6(2) of the Defence (Transitional Provisions) Act 1946. Judgment was entered for the defendants with costs.

Orders