Willocks v Anderson

[1971] HCA 28

HIGH COURT OF AUSTRALIA

Barwick C.J., McTiernan, Menzies, Windeyer, Owen, Walsh and Gibbs JJ.

WILLOCKS v. ANDERSON

(1971) 124 CLR 293

2 July 1971

High Court

High Court—Jurisdiction—Statutory commodity marketing board—Power to make regulations necessary or convenient for carrying out or giving effect to Act—Regulations empowering High Court to hear disputed election petitions—Validity—The Constitution (63 &64 Vict. c. 12), ss. 51 (i.) (xxxix.), 76—Apple and Pear Organization Act, 1938-1966 (Cth), s. 27—Apple and Pear Organization (Election of Board) Regulations 1948, regs. 38, 40.

Decisions

July 2.
The following written judgments were delivered:
BARWICK C.J., MENZIES, WINDEYER, OWEN, WALSH AND GIBBS JJ. These proceedings were commenced in this Court by a petition seeking a declaration that the respondent was not duly elected as the member of the Australian Apple and Pear Board ("the Board") to represent the growers of apples and pears in the State of Queensland for the period of three years commencing on 1st July 1970 and that the petitioner stands duly elected as, and is, the member of the Board to represent such growers for that period. On the hearing of an interlocutory application the respondent challenged the jurisdiction of this Court to entertain and hear the petition and a direction was thereupon made by the Chief Justice under s. 18 of the Judiciary Act that this question be argued before a Full Court. (at p296)

2. The Board is constituted by s. 4 of the Apple and Pear Organization Act 1938-1966 (Cth) ("the Act"). Section 4 (2) of the Act provides that the Board shall consist of (inter alios) one member from each of the States of New South Wales, Victoria, Queensland, South Australia and Western Australia to represent the growers of apples and pears in each of those States, and s. 4 (4) provides that the members representing the growers in any State (other than the State of Tasmania) shall be growers and shall be elected by a poll of growers taken in the prescribed manner in that State. The Act does not contain any express provision as to the method of challenging the validity of an election and it does not expressly confer any jurisdiction on this Court to hear a petition disputing an election. A general power to make regulations is given by s. 27 in the following terms:

"The Governor-General may make regulations, not inconsistent with this Act, prescribing all matters which by this Act are required or permitted to be prescribed, or which are necessary or convenient to be prescribed, for carrying out or giving effect to this Act, and in particular for prescribing penalties not exceeding One hundred dollars for any breach of the regulations, not being a breach for which a penalty is prescribed by this Act".

The Apple and Pear Organization (Election of Board) Regulations (Statutory Rule No. 46 of 1948, as amended) ("the Regulations") have been made in the purported exercise of the power given by s. 27 of the Act. The Regulations prescribe the manner of conducting elections of members of the Board and go on in Pt VI (regs. 38-53) to deal with disputed elections. Regulation 38 provides as follows:

"The validity of an election or of any statement or notice showing the voting at, or the result of, an election may be disputed by a candidate at the election or by a person who was qualified to vote thereat by petition addressed to the High Court in the prescribed manner and not otherwise."

Regulation 40 provides that -

"The High Court shall have jurisdiction to entertain and hear and determine any petition which complies with the requirements of these Regulations."

Pt VI contains further provisions governing the hearing of such petitions. Having regard to the view that we have formed as to the validity of Pt VI as a whole, there is no need for us to pause to consider the necessity for or appropriateness of some of these provisions in a statutory instrument conferring original jurisdiction on this Court. (at p297)

3. It was submitted on behalf of the respondent that the provisions of Pt VI of the regulations are wholly invalid for three reasons: (1) that the power given to Parliament by s. 76 of the Constitution to make laws conferring original jurisdiction on the High Court cannot be delegated so as to be exercised by the Governor-General by regulation ; (2) that there is no power to confer original jurisdiction on this Court in the present circumstances because there is no matter arising under any law made by the Parliament within s. 76 (ii.) ; and (3) that even if Parliament had power to legislate so as to authorize the Governor-General to make regulations conferring on this Court the jurisdiction which Pt VI of the Regulations purports to confer, the power has not been exercised, since the Act does not authoirze the Governor-General to make regulations conferring jurisdiction on this Court. (at p297)

4. It has not yet been decided whether the powers given by ss. 76 and 77 of the Constitution can be exercised by delegated legislation. In Le Mesurier v. Connor (1929) 42 CLR 481 , it was said by the majority of the Court (Knox C.J., Rich and Dixon JJ. ; Isaacs and Starke JJ. dissenting) that s. 18 (1) (b) of the Bankruptcy Act 1924-1928 (Cth), which enacted that the Courts having jurisdiction in bankruptcy should be "such State Courts or Courts of a Territory as are specially authorized by the Governor-General by proclamation to exercise that jurisdiction", was not a law investing State Courts with federal jurisdiction within s. 77 (iii.) of the Constitution and was ultra vires and void, but something may have turned in that case on the view that it was the proclamation, not a legislative act, which purported to invest the jurisdiction. In Peacock v. Newtown Marrickville and General Co-operative Building Society No. 4 Ltd. (1943) 67 CLR 25 , on the other hand, Latham C.J., Starke and McTiernan JJ. expressed the view that Parliament can authorize the making of regulations for investing State Courts with federal jurisdiction. Latham C.J. (with whom McTiernan J. agreed) said (1943) 67 CLR, at p 39 , that the opinion expressed in Le Mesurier v. Connor (1929) 42 CLR 481 was not decisive of the question in the case before him, where the investing of jurisdiction was sought to be accomplished, not by an executive act such as a proclamation, but by a regulation which was legislative in character. Starke J. (1943) 67 CLR, at p 44 , repeated his disagreement with the opinion of the majority in Le Mesurier v. Connor (1929) 42 CLR 481 . Of the other members of the Court, Rich J. did not discuss this aspect of the matter, and Williams J., who expressed no final view, appears to have been inclined to follow the opinion of the majority in Le Mesurier v. Connor (1929) 42 CLR 481 but to qualify it by drawing a distinction between an administrative act of the Executive on the one hand and legislation by regulation on the other : (1943) 67 CLR, at p 51 . However, it is unnecessary in the present case to determine whether Parliament can delegate its constitutional power to make laws conferring original jurisdiction on the High Court because in our opinion if Parliament has power to make such a delegation it has not exercised it by the provisions of the Act now under consideration. For the same reason the question whether the jurisdiction purported to be conferred by the Regulations is jurisdiction in a "matter" within the meaning of s. 76 of the Constitution, although not fraught with any great difficulty, need not now be decided. (at p298)

5. We shall assume for the purposes of these reasons that it is competent for Parliament validly to enact a statutory provision empowering the making of regulations conferring jurisdiction on this Court. The question then is whether on that assumption s. 27 of the Act does authorize the making of regulations of that kind. The conferring of original jurisdiction on this Court is not a matter which the Act expressly requires or permits to be described, and if Pt VI of the Regulations is valid its provisions must be regarded as prescribing matters "which are necessary or convenient to be prescribed for carrying out or giving effect to" the Act. The words which we have quoted, or similar expressions, appear not infrequently in statutory enactments and are the subject of authority. The power which they give does not extend to everything which the Governor-General considers to be necessary or convenient: cf. The Commonwealth and the Postmaster-General v. Progress Advertising and Press Agency Co. Pty. Ltd. (1910) 10 CLR 457, at p 469 , per Higgins J. The effect of the authorities was summarized as follows in Shanahan v. Scott (1957) 96 CLR 245, at p 250 in a passage approved by the Judicial Committee in Utah Construction &Engineering Pty. Ltd. v. Pataky (1966) AC 629, at p 640 ; (1965) 39 ALJR 240, at p 242 :

"The result is to show that such a power does not enable the authority by regulations to extend the scope or general operation of the enactment but is strictly ancillary. It will authorise the provision of subsidiary means of carrying into effect what is enacted in the statute itself and will cover what is incidental to the execution of its specific provisions. But such a power will not support attempts to widen the purposes of the Act, to add new and different means of carrying them out or to depart from or vary the plan which the legislature has adopted to attain its ends". (at p299)

6. In our opinion Pt VI of the Regulations is not "confined to the same field of operations as that marked out by the Act itself", to use the words of Isaacs J. in Carbines v. Powell (1925) 36 CLR 88, at p 91 , but attempts to widen the purposes of the Act and to add a means of carrying them into effect which the Act itself does not contemplate. If the Act confers rights on persons who have been elected, or are seeking election, as members of the Board those rights may be enforced in the Courts of the States, which would in those circumstances be invested with federal jurisdiction by s. 39 of the Judiciary Act. The Act does not contemplate that jurisdiction may be conferred on this Court to enable such rights to be established. Moreover the provisions of s. 76 of the Constitution, which expressly empower Parliament to confer original jurisdiction on this Court, indicate that the general powers given to the Parliament by s. 51 do not authorize legislation conferring original jurisdiction on this Court: cf. Le Mesurier v. Connor (1929) 42 CLR, at p 496 . Section 51 (xxxix.) of the Constitution enables laws to be made with respect to matters incidental to the execution of any power vested by the Constitution in the Federal Judicature, but does not authorize Parliament to make laws conferring jurisdiction on a Court forming part of the Federal Judicature. To confer jurisdiction on this Court Parliament must resort to the specific power contained in s. 76, and this provides an additional reason for requiring Parliament to express clearly its intention to confer jurisdiction on this Court: cf. Peacock v. Newtown Marrickville and General Co-operative Building Society No. 4 Ltd. (1943) 67 CLR esp, at pp 40 and 45 . (at p299)

7. Under the Constitution this Court is entrusted with the most important of judicial functions. To confer additional original jurisdiction upon it may well impair its ability to discharge its major functions with despatch. The question whether in any particular circumstances, original jurisdiction should be conferred on this Court is of such great significance as to warrant the careful attention of the Parliament. Even if the power to do so may be validly delegated to the Governor-General it is not a matter to be left to the initiative of the Executive except after that attention has been given to the question by the Parliament. If after such consideration the Parliament for reasons sufficiently compelling in a particular case should decide to delegate the power, its intention to do so should be expressly and clearly stated. It cannot be held that the Parliament intended that the time of this Court should be taken up in hearing in its original jurisdiction appeals against elections to commodity boards, such as the Australian Apple and Pear Board, without a clear and unmistakable expression of such an intention. General words should not readily be construed as expressing the necessary intention. Neither in s. 27, nor elsewhere in the provisions of the Act, is there to be found any expression of an intention that original jurisdiction under the Act should be conferred on this Court, nor is there anything in the Act from which the existence of such an intention can be implied. It follows that if Parliament has power to authorize the making of the regulations contained in Pt VI it has not exercised that power. The regulations in Pt VI are therefore ultra vires and invalid and there is no jurisdiction to hear and determine the petition now before the Court. (at p300)

8. Although this Court has no jurisdiction to grant the relief sought by this petition, it has ample power to make an appropriate order with regard to the costs of the proceedings. The respondent succeeded in his challenge to the validity of the Regulations and, therefore, to the jurisdiction of the Court. On the other hand, the petitioner relied upon the Regulations which, if valid, would not only have given this Court jurisdiction, but would have deprived any other Court of jurisdiction. In the circumstances we would regard it as just to make no order as to costs. (at p300)

9. We would dismiss the petition as incompetent. (at p300)

McTIERNAN J. Regulation 40 of the Apple and Pear Organization (Election of Board) Regulations provides that:

"The High Court shall have jurisdiction to entertain and hear and determine any petition which complies with the requirements of these Regulations."

This regulation is in Pt VI of the Regulations the heading of which is "Disputed Elections". The Act, so far as it relates to the marketing of apples and pears, depends for its constitutional validity upon s. 51 (i.) of the Constitution. In order to be valid, reg. 40 must be within the power conferred on the Executive by the Act to make regulations, and also a valid law for the purposes of s. 76 (ii.) of the Constitution. The power to make regulations is conferred by s. 27 of the Apple and Pear Organization Act 1938-1964 (Cth). The section reads thus:

"The Governor-General may make regulations, not inconsistent with this Act, prescribing all matters which by this Act are required or permitted to be prescribed, or which are necessary or convenient to be prescribed, for carrying out or giving effect to this Act, and in particular for prescribing penalties not exceeding One hundred dollars for any breach of the regulations, not being a breach for which a penalty is prescribed by this Act."

The enactment of s. 27 was authorized by s. 51 (i.) of the Constitution and by s. 51 (xxxix.) thereof, so far as that placitum relates to the legislative power of the Parliament. A law in the terms of reg. 40 could not be made by the Parliament, except by virtue of s. 76 (ii.) of the Constitution. If upon the true construction of the Apple and Pear Organization Act and the Regulations, the jurisdiction which the law purported to confer on the High Court were within the sphere of the judicial power of the Commonwealth the law would be valid under the Constitution. (at p301)

2. Section 27 does not evince the intention to confer power to make any regulation other than one referable to the present Act. The section cannot be construed as implying the power to make a regulation such as reg. 40. (at p301)

3. There is sufficient correspondence between s. 27 and part of s. 5 (1) of the National Security Act 1939 (Cth) which was under consideration by this Court in Peacock v. Newtown Marrickville and General Co-operative Building Society No. 4 Ltd. (1943) 67 CLR 25 , to render pertinent two passages in the judgment of Latham C.J. in that case. Under s. 5 (1) of the National Security Act 1939 the Executive had power to make regulations, ". . . prescribing all matters which, by this Act, are required or permitted to be prescribed, or which are necessary or convenient to be prescribed, for the more effectual prosecution of the present war, or for carrying out or giving effect to this Act". Latham C.J. said (1943) 67 CLR, at p 40 :

"There is no provision in the Act which in express terms authorizes the making of regulations for the purpose of conferring Federal jurisdiction upon a State court. The question is whether the general terms to which I have referred, which are all connected with the subject of defence, are sufficiently wide to create a power to make regulations conferring Federal jurisdiction upon State courts."

and (1943) 67 CLR, at pp 40-41 :

"If Parliament desires that the specific legislative power conferred in the judicature chapter with respect to this subject should be exercised by the method of subordinate legislation, it will be easy for Parliament so to declare. In my opinion, however, that National Security Act as at present framed does not authorize regulations of this character."

These observations are no less applicable to s. 76 (ii.) of the Constitution than to s. 77 (iii.). (at p302)

4. In my judgment, reg. 40 is beyond the power conferred by s. 27. As the regulation falls at the threshold it is not necessary to enter upon the problem of constitutional validity which would arise if reg. 40 were within the power conferred by s. 27. (at p302)

5. It is worthy of notice that the Parliament acted upon the opinion of Latham C.J. on the question of legislative power which is referred to above : see National Security Act 1943 (Cth), ss. 3 and 4. The Parliament has not passed any comparable legislation dealing with s. 27 of the present Act. (at p302)

6. I do not mean to say that the Parliament should have done this as a matter of course. It would be more satisfactory for the Parliament itself to enact laws which depend upon s. 76 or s. 77 of the Constitution. (at p302)

7. The petition under Pt VI of the Regulations with which this reference is concerned is not, in my opinion, cognizable by this Court. (at p302)

Orders

The first question referred to the Court by the Chief Justice, namely:

"Whether having regard to the provisions of the Apple and Pear Organization Act 1938-1966 and the regulations made thereunder:-

1. The Court has jurisdiction to entertain and hear the petition lodged herein." answered 'No'.

Second question unnecessary to answer.