R v Foster

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.