Miller v Commonwealth - [1946] HCA 42

THE COMMONWEALTH AND OTHERS

DEFENDANTS. Constitutional Law (Cth.)-Defence-National security-Economic organization-

Regulations-Validity-Company-Shares, stock and debentures-Sale, purchase or transfer-Consent of Treasurer-" Absolute discretion" " of Treasurer---Cessa- tion of hostilities-Continuance in force of war-time legislation and regulations thereunder-The Constitution (63 &64 Vict. c. 12), S. 51 (vr.)--National Security Act 1939-1946 (No. 15 of 1939-No. 15 of 1946), S. 19-National Security (Economic Organization) Regulations (S.R. 1942 No. 76-1945 No. 189), regs. 7, 9 (2).

Regulation 7 (7) of the National Security (Economic Organization) Regulations provides that " the Treasurer may, after consultation with the Committee of the Associated Stock Exchanges of Australia, by order, determine the maximum and minimum prices at which any shares, stock or debentures of a company may be sold."

Held, by the whole Court, that this sub-regulation, when made, was within the defence power (s. 51 (vi.) of the Constitution) as having a direct relation to the organization of the community for the prosecution of a modern war, and that it was still within that power even after the termination of hostilities.

Held also, by Latham C.J., Rich, Dixon and McTiernan JJ., that the other sub-regulations of reg. 7 were also valid by Williams J., that only sub-regs. (6), (7) and (8) were valid.

Held, by Latham C.J., Starke, Dixon, McTiernan and Williams JJ., that the termination of active hostilities on 2nd September 1945 did not, under S. 19 of the National Security Act 1939-1943, bring about the expiry of that Act

Dawson v. The Commonwealth, ante, p. 157, referred to. DEMURRER.

An action was brought in the High Court by Clarence Hamilton King Miller against the Commonwealth of Australia, the Treasurer

73 CLR 188

for the Commonwealth and the Attorney-General for the Common- wealth. The statement of claim, as amended, was substantially as follows :-----

1. The plaintiff is and has since May 1928 been a stock and share broker carrying on business at Sydney in the State of New South Wales and is and has since that month been a member of the Sydney Stock Exchange.

2. In the course of his business the plaintiff buys and sells shares, stock and debentures for members of the public on a commission basis and in addition the plaintiff buys and sells shares, stock and debentures on his own account with a view to making a profit therefrom.

3. Purporting to act under and pursuant to the provisions of Part III. of the National Security (Economic Organization) Regula- tions the Treasurer for the Commonwealth has from time to time issued orders fixing the maximum prices at which the various classes of shares, stock and debentures listed on the Sydney Stock Exchange may be sold. The said orders have not nor has any of them been laid before each House of the Parliament within fifteen sitting days of that House after the making thereof nor at any other time.

4. The orders referred to in the preceding paragraph hereof have not been revoked and the defendants claim that…

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 Miller v Commonwealth

Details

AGLC: Miller v Commonwealth [1946] HCA 42
Case: [1946] HCA 42
Decision Date: 22 October 1946

CaseChat Overview and Summary

Clarence Hamilton King Miller, a stock and share broker, brought an action in the High Court of Australia against the Commonwealth of Australia, the Treasurer, and the Attorney-General. Miller sought declarations that certain provisions of the National Security (Economic Organization) Regulations, which regulated the sale, purchase, and transfer of shares, stock, and debentures, were void. He argued these regulations exceeded the powers granted by the Commonwealth Constitution and the National Security Act 1939-1946. Specifically, he challenged orders made by the Treasurer fixing maximum prices for listed securities, contending they were beyond the scope of the regulations or improperly made. Miller also argued that the regulations and associated orders had ceased to have effect by March 1946, following the cessation of hostilities. The defendants demurred to the statement of claim, asserting it disclosed no cause of action and that the regulations and orders were valid.

The central legal issues before the High Court were whether the National Security (Economic Organization) Regulations, particularly those pertaining to the sale, purchase, and transfer of shares, stock, and debentures, and the Treasurer's power to fix prices, were validly made under the defence power (s. 51 (vi.) of the Constitution) and the National Security Act. A further issue was whether these regulations and orders remained in force after the cessation of active hostilities, given the provisions of s. 19 of the National Security Act. The plaintiff also contended that the Treasurer's discretion under the regulations was absolute and unexaminable, and that certain price-fixing orders were invalid for not being laid before Parliament.

The Court, by majority, held that regulation 7(7) of the National Security (Economic Organization) Regulations, which empowered the Treasurer to determine maximum and minimum prices for shares, stock, and debentures, was within the defence power. This was because it had a direct relation to the economic organisation of the community for the prosecution of modern war, and this power continued even after the cessation of hostilities. Latham C.J., Rich, Dixon, and McTiernan JJ. found other sub-regulations of regulation 7 to be valid, while Williams J. considered only sub-regulations (6), (7), and (8) to be valid. The majority of the Court, including Latham C.J., Starke, Dixon, McTiernan, and Williams JJ., also held that the termination of active hostilities on 2nd September 1945 did not cause the National Security Act to expire under s. 19, referring to previous decisions on this point. The plaintiff abandoned one ground of his claim regarding the price-fixing orders not being laid before Parliament.

The demurrer was allowed, meaning the plaintiff's statement of claim was found to be legally insufficient. The Court concluded that the regulations in question, particularly the price-fixing provisions, were a valid exercise of the defence power, even after the cessation of hostilities, as they were reasonably capable of being seen as contributing to the economic stability necessary for the war effort and its aftermath. The Court also affirmed that the National Security Act had not expired on 2nd March 1946 as contended by the plaintiff.

Orders