lation-Validity-Order-Necessity-Discretion of Minister-National Security Act 1939-1943 (No. 15 of 1939-No. 38 of 1943), S. 5-National Security (General) Regulations 1939-1943 (S.R. 1939 No. 87-1943 No. 278), reg. 59-Bread Industry (New South Wales) Order.

The provisions of reg. 59 of the National Security (General) Regulations, empowering a Minister, so far as it appears to him to be necessary in the interests of the defence of the Commonwealth or the efficient prosecution of the war, or for maintaining supplies and services essential to the life of the com- munity, to make an order regulating, restricting or prohibiting the production,

distribution, sale, purchase appearing to the Minister to be essential for the defence of the Commonwealth or the efficient prosecution of the war or to be essential to the life of the community, are authorized by S. 5 of the National Security Act 1939-1943, and are within the defence power of the Commonwealth.

An order by the Minister prohibiting any person from carrying on the business of a master baker or bread distributor or distributing or causing to be distributed any bread in any area to which the Order applies unless he is the holder of a licence issued under the Order authorizing him so to do, is a valid exercise of the power conferred by reg. 59.

CAUSE removed to the High Court under S. 40 of the Judiciary Act 1903-1940.

Section 5 of the National Security Act 1939-1943 provides 00 The Governor-General may make regulations for securing the

69 CLR 458

public safety and the defence of the Commonwealth for prescribing all matters which

are necessary or con- venient to be prescribed for the more effectual prosecution of any war in which His Majesty is or may be engaged."

Reg. 59 of the National Security (General) Regulations, made under the above-mentioned section, provides, SO far as material, as follows:

(1) A Minister, SO far as appears to him to be necessary in the interests of the defence of the Commonwealth or the efficient prosecu- tion of the war, or for maintaining supplies and services essential to the life of the community, may by order provide-(a) for regulating, restricting or prohibiting the production, distribution, sale, purchase

of essential articles." Essen- tial articles" is defined in sub-reg. 5 as meaning articles appearing to a Minister to be essential for the defence of the Commonwealth or the efficient prosecution of the war, or to be essential to the life of the community."

The Bread Industry (New South Wales) Order, made on 22nd June 1942, in pursuance of reg. 59 of the National Security (General) Regulations by the Minister of State for War Organization of Industry, provides, inter alia, by clause 4, that 'master baker' means any person who manufactures or carries on any process of manufacture of bread for sale" by clause 6 (7), that no person shall carry on 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.

Continue reading Stenhouse v Coleman

Details

AGLC: Stenhouse v Coleman [1944] HCA 36
Case: [1944] HCA 36
Decision Date: 6 December 1944

CaseChat Overview and Summary

The case of *Stenhouse v Coleman* concerned a challenge to the validity of the Bread Industry (New South Wales) Order, which required a licence to carry on the business of a master baker or bread distributor. Myrtle Grove Stenhouse was convicted of contravening this Order by operating as a master baker without a licence. She sought a writ of prohibition from the Supreme Court of New South Wales, arguing that the Order was *ultra vires* the National Security Act 1939-1943. The matter was subsequently removed to the High Court of Australia.

The central legal issue before the High Court was whether the Bread Industry (New South Wales) Order, made under regulation 59 of the National Security (General) Regulations, was a valid exercise of the Commonwealth's defence power as conferred by section 5 of the National Security Act 1939-1943. Specifically, the applicant contended that the Order, by regulating the production and distribution of bread for civilian use, lacked a sufficient nexus to the defence of the Commonwealth and the efficient prosecution of the war, and that the regulation itself was too broad in its scope.

The High Court, in dismissing the application, reasoned that the regulation and the Order were within the scope of the defence power. The Court held that maintaining essential supplies and services, such as bread for the civilian population, was directly connected to the war effort, as the inability to maintain the community would impact the armed forces. Furthermore, the Court applied the principle established in previous cases, such as *Reid v Sinderberry*, that while regulations may be framed to depend on the Minister's opinion of necessity, they remain valid only if they have a real and substantial connection to the defence power. The Court found that the Order, by rationalising the bread industry, conserving manpower and materials, and ensuring the supply of an essential foodstuff, had such a connection. The Court also noted that the regulation's provision for licence fees was authorised by the National Security Act.

The High Court ordered that the rule nisi for prohibition be discharged, upholding the validity of the Bread Industry (New South Wales) Order and the conviction of the applicant.

Orders