Liquid Fuet-Distribution-Control-Licence and ration tickets-Re-establish- ment of ex-members of the Forces-Dependants-Dwelling houses-Unoccupied or about to become unoccupied-Right of possession-Cessation of hostilities- Lapse of time-War-time legislation and regulations thereunder-Operation Continuance-Validity of legislation and regulations-The Constitution (63 &64 Vict. c. 12), 8. 51 (vi.), (xxxi.) (xxxv.) (xxxix.)-Defence (Transitional Provisions) Act 1946-1948 (No. 77 of 1946-No. 78 of 1947-No. 88 of 1948)- National Security Act 1939-1946 (No. 15 of 1939-No. 15 of 1946), 8. 19- Women's Employment Act 1942-1946 (No. 55 of 1942-No. 77 of 1946), Sched.- Women's Employment Regulations 1946, reg. 6-National Security (Liquid Fuel) Regulations (S.R. 1940 No. 293-1944 No. 113), reg. 51-National Security (War Service Moratorium) Regulations (S.R. 1942 No. 437-1948 No. 109), regs.

79 CLR 44

The continued existence of a formal state of war, after the enemy has surrendered, is not enough in itself to bring or retain within the Common- wealth legislative power over defence the same wide field of civil regulation and control as fell within it while the country was engaged in a conflict with powerful enemies.

It may be incidental to defence to continue the control and regulation of a particular subject matter for a time after the cessation of hostilities and also to maintain such control while legislative provision is being made for the necessary re-adjustment but, unless the court can see with reasonable clearness how it is incidental to the defence power to prolong the operation of a war measure dealing with a subject otherwise falling within the exclusive province of the States, it is the duty of the court to pronounce the enactment beyond the legislative power of the Commonwealth.

The Women's Employment Regulations are not addressed to any problem of post-war re-adjustment, and the continuance in operation in 1948 of those regulations was obviously not connected with the prosecution of the war, nor was it incidental to any winding-up process nor to any endeavour to restore conditions which might be regarded as part of the peace-time organization of industry. The mere fact that the lack of man-power is a war consequence is not sufficient to bring the matter within the scope of the defence power, particularly after hostilities have ceased. Therefore the Defence (Transitional Provisions) Act 1947 is invalid in SQ far as it extended (if it did extend) the operation of those regulations to 31st December 1948.

The National Security (Liquid Fuel) Regulations, which regulate the distri- bution and use of petrol throughout Australia, and the National Security (War Service Moratorium) Regulations under which a protected person may obtain a warrant of possession authorizing him to occupy a dwelling house cannot now be said to be laws upon the subject of defence or the incidents of defence; therefore the Defence (Transitional Provisions) Act, S. 48 is invalid to the extent to which it purports to continue those regulations in operation

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 R v Foster

Details

AGLC: R v Foster; Ex parte Rural Bank of NSW [1949] HCA 16
Case: [1949] HCA 16
Decision Date: 6 June 1949

CaseChat Overview and Summary

The case of *R v Foster; Ex parte Rural Bank of N.S.W.* involved an application by the Rural Bank of New South Wales for a writ of prohibition against various bank officers' associations and Judge Foster of the Commonwealth Court of Conciliation and Arbitration. The application sought to restrain further proceedings on two decisions made by Judge Foster concerning the employment of female bank officers. The core of the dispute lay in the validity of the *Women's Employment Act 1942* and its associated regulations, which the applicant argued were beyond the constitutional powers of the Commonwealth Parliament at the time the decisions were made.

The High Court was required to determine whether the *Women's Employment Act 1942* and its regulations, particularly those concerning the employment of women in banking, remained valid and operative in 1947 and 1948. This involved considering whether these measures were still connected to the defence power of the Commonwealth, as provided by section 51(vi) of the Constitution, given that hostilities had ceased. The Court also had to assess the validity of the *Defence (Transitional Provisions) Act 1946-1948* in its purported extension of the operation of these war-time regulations.

The Court reasoned that the continued existence of a formal state of war after an enemy's surrender is insufficient, in itself, to justify the broad legislative power over defence that applies during active conflict. While it may be incidental to defence to continue controls for a time for post-war readjustment, the Court must be satisfied that such continuation is clearly linked to the defence power. In this instance, the *Women's Employment Regulations* were found not to address any post-war readjustment problem and their continued operation in 1948 was not connected to the prosecution of the war, nor to any winding-up process or restoration of peace-time conditions. The mere fact that a manpower shortage was a consequence of the war was not enough to bring the matter within the defence power after hostilities ceased. Similarly, the *National Security (Liquid Fuel) Regulations* and the *National Security (War Service Moratorium) Regulations* were deemed no longer to be laws upon the subject of defence or its incidents.

Consequently, the Court found the *Defence (Transitional Provisions) Act 1947* to be invalid insofar as it extended the operation of the *Women's Employment Regulations* to 31 December 1948. Furthermore, the *Defence (Transitional Provisions) Act*, section 48, was held invalid to the extent it purported to continue the *National Security (Liquid Fuel) Regulations* and the *National Security (War Service Moratorium) Regulations* in operation. The application for prohibition was therefore granted.

Orders