OF AUSTRALIA, {HIGH COURT OF AUSTRALIA.) : ; ' i . PLarntirrs ; AND « "3 . DeFENDANTS, onal Law (Cth.)—Defence—National security—Food control—Order made 'ceasation of hostilities —Purpose—Supply of necessary foodstuffs to United Agreement made during war-time—Validity of order—Defence itional Provisions) Act 1946 (No. 77 of 1946), 8. 6—National Security Control) Regulations (S.R. 1943 No. 165), reg. 9. 1944, during the war, the Commonwealth Government agreed to supply the Government of the United Kingdom for four years from Ist July 1044 and cheese in excess of the needs of the Commonwealth, the military of the Commonwealth and U.S.A, and U.N.R.R.A., the agreement that it was intended that the Commonwealth would endeavour to ke available as much butter as possible. In August 1947, two years "the: 'cessation of hostilities, the Minister of State, for Commerce and t under the National Security (Food Control) Regulations, as tinued in force by 8, 6 of the Defence (Transitional Provisions) Act 1946, 'the Cream (Disposal and Use) Order which, inter alia, forbade, except 'permit, the sale or use of cream for any purpose other than the produc- of butter or cheese, that 'the order was valid under the defence power as carrying out ent which, when made, was reasonably incidental to the conduct ion commenced in the High Court by John Henry Sloan, d Anderson, William Anderson, Thomas William Seddon ileen Jane Alice Anderson and Charles Richard Stevens pean Cream Products against Richard Thomas Pollard, Smallhorn and the Commonwealth of Australia, the claim was substantially as follows :-— ntiffs are registered under the provisions of the *s Act 1928 (Vict.) as the proprietors of a business H.C. or A, 1947. prea SYDNEY, Nov. 11-13; Dec, 12. Rich, Stari, Dixon, MeTiernan and Williams JJ, 446 HIGH COURT H.C. or A. carried on under the name of " Regal Cream Products " at 27 Arden 1947. Street, North Melbourne, Victoria, the nature of such business — Se 5 2 ¥ Suoay being the purchase, processing and sale of cream. es. she 2. The defendant Reginald Thomas Pollard is the Minister of | a OLLARD. State for Commerce and Agriculture of the defendant Common: wealth of Australia. 3. The defendant Walter Leslie Smallhorn is an officer of th defendant Commonwealth of Australia. 4. The plaintiffs have for many years carried on this busin and have built up a large and extensive trade therein, in the course of which they sell large quantities of cream to, inter alios, pastry- cooks and retail vendors of cream, é _ 5. (1) By an Act, of the Parliament of the Commonwealth of 4 Australia entitled the Defence (Transitional Provisions) Act 194 which came into operation on Ist January 1947, it was enacted, inter alia, that the regulations the titles of which were specified in the first column of the first schedule thereto should, subject to such — Act, be in force until midnight on 31st December 1947. _ 3 (2) Included in the regulations the titles of which were specified in the first column of the said schedule were regulations entitled the National Security (Food Control) Regulations. i 6. (1) On 22nd August 1947 the defendant Reginald 'Thome Pollard as Minister of State for Commerce and Agriculture purporting to act pursuant to reg. 9 of the National Security (Food Control) Regulations made an Order entitled Cream (Disposal and Use) Order which provided inter alia, that :— "4, A person shall not without the consent of the Controller: General of Food sell, exchange, give away or otherwise dispose | of cream except— (a) to a person who is registered or licensed in respect of premises which are required to be registered or licensed under the law of any State or Territory of the Common- wealth providing for the registration of butter factories a or cheese factories or (b) under the authority of and in accordance with the terms and conditions of a permit." (2) The order purported to come into operation on Ist Septem 1947. in the course of their business is produced from cows' milk in State of Victoria. (2) On Ist September 1947, and at all other ranbariel Gace quantity of cows' milk produced i in the State of Victoria and 'gis 5! bi iil OF AUSTRALIA. ent to supply the demand therefor and for cream and any product derived therefrom by persons desiring to purchase same for use or consumption in the Commonwealth and /or or use or consumption by the armed forces of the Commonwealth, nd the sole purpose of the order is to increase the exportable plus of products derived or manufactured from milk or cream. e Smallhorn acting for and on behalf of the Controller-General 'Food and at the direction of the defendant Reginald Thomas rd as Minister of State for Commerce and Agriculture he plaintiffs that it would be necessary for them to apply tely for a permit under the order to purchase cream from ducers or butter factories for re-sale by them to manufacturers 'ice cream or other approved products, hospitals and retail vendors ding permits in respect of medical cases. 9. (1) By notice in writing dated 30th September 1947 the defen- it Walter Leslie Smallhorn required the plaintiffs to supply him iting not later than 7th October 1947 certain information to (i) Names and addresses of persons or companies supplied with eream by the plaintiffs since Ist September 1947 to 80th September 1947, inclusive, and (ii) Quantities of cream supplied to each of the said persons __ or companies within the period specified, ) In so requiring the plaintiffs to supply to him that informa- Walter Leslie Smallhorn purported to act in pursuance of par. of the Order and of the powers conferred thereunder. . By letter dated 6th October 1947 to Walter Leslie Smallhorn is on refused to supply the said information on the ground Order was not within the power of the Commonwealth of lia to make and was bad in law. : 10th October 1947 Walter Leslie Smallhorn laid an infor- against certain of the plaintiffs under the provisions of the ary Act 1903-1936, the Defence (Transitional Provisions) Act 16, both of the Commonwealth of Australia and the Justices Act 8 (Viet.), alleging that they the said plaintiffs did contrary to the (Lransitional Provisions) Act fail to comply with a pro- 'the Order in that they, being persons who had been required 9 of the Order to supply information did fail to supply ormation on or before the date specified in the notice to the 'making the requirement. 1947, ead Stoay v. Poutarn, H. C. or A, 1947, Se Stoan v. PoLLaRD. HIGH COURT : {194 12. By reason of the Order, persons from whom the plainti have hitherto in the course of their business obtained supplie: cream are reluctant to supply the plaintifis therewith unless a permit is obtained by the plaintiffs pursuant to the Order and plaintifis cannot supply to persons desirous of purchasing crea from them in the course of their business (other than persons Ww hold a permit pursuant to the Order) save under the threa prosecution for an offence against the provisions of the Defe (Transitional Provisions) Act 1946. 13, The defendants and each of them threaten and intend to require the plaintiffs to cease the acquisition or sale of cream, other wise than in accordance with the provisions of the Order, an to require the plaintiffs to supply such information as from time time may be required under the Order and to institute prosecutions _ against the plaintiffs for failure to comply with the provisions of J the Order. ate plaintiffs claimed :— 1. Against all the defendants :— (a) A GeoPelog that the Cream (Disposal and Use) Order is sitional Provisions) Act 1946 or the National Security (Food Control) Regulations and is void. . (b) Alternatively with (a), a declaration that in so far as the National Security (Food Control) Regulations and/or the Defence (Transitional Provisions) Act 1946 purport to authorize the making of the Cream (Disposal and Use) — Order, the National Security (Food Control) Regulations and the Defence (Transitional Provisions) Act 1946 are — beyond the powers of the Parliament of the Commonwealth of Australia, contrary to the provisions of the Constitutio: of the Commonwealth and are void. $a 2. Against the defendants Reginald Thomas Pollard and Walter d elie Smallhorn :— ': An injunction restraining the defendants and either of ther and any person acting under their direction or the directi of either of them from taking any action against or in relat % to the plaintifis or any of them in pursuance or purported: pursuance of the provisions of the Order. The president of the Cream Products Manufacturers Associat deposed in an affidavit that on 15th' October 1947 he was infor by the secretary of the Australian Dairy Produce Board, constit under the provisions of the Dairy Produce Export Control Act 192 1942, that the ban on the sale of cream contained in the OF AUSTRALIA, nt time, was more than sufficient for all domestic needs (inclu- the demand for table cream) in Australia and for the supply of » 'med forces of Australia ; that the only purpose of the order to stimulate exports to Great Britain; that from one-half to ds of the total production of cream in Australia was exported that the enforcement of the order would mean that 10,000 tra butter per annum would be available for export ; and the information so given by him, the secretary, was based upon wledge of the official statistics prepared by the officers of the affidavit by Archibald Spencer, sworn 23rd October 1947, 'so far as material, as follows :— That the first order for the restriction of the use of cream in Commonwealth was made in May 1943. This order was made the purposes of meeting heavy demands for butter from the d services of the Commonwealth and from the United Kingdom yy reason of the decline in the production of dairy products found necessary to restrict the use of cream except for high ority dairy products and the sale of cream as sweet or table cream pt on approved medical grounds was prohibited. 'That in February 1944 the form of the order was slightly but continued in operation for substantially the same ms. This order of ihe 1944 continued in force until November 1946, 4, That although reliable statistics of sweet or table cream con- ption before May 1943 were not available, it was estimated per annum, That during September-October 1946 a survey of butter ction prospects was made. It was anticipated that improve- 'in the manpower position, brought about by releases from 'ices, would result in increased production which, together 'some 12,000 tons annually, no longer required for the Allied ices based on Australia, would assure the export annually of tons to Great Britain without relying on any savings from i ban. The annual export of 60,000 tons of butter to the ingdom was promised by the Commonwealth to sustain of butter decided on by the British Ministry of Food. and Use) Order was not necessary in order to maintain H- ©. oF A- butter ration scale in Australia; that the production {#7 Stoan v. Poutarn. "H. C. or A. "1947. ne Stoaw . Poutarp. - HIGH COURT Tt was proved that in August 1947 the food position in the Unite Kingdom was rapidly deteriorating and advice was communic: on behalf of His Majesty's Government of the United Kj shortage of essential foodstuffs ; further that the Common Government recognized that the food situation in the Unit Kingdom was extremely serious and formed the opinion that matter of vital importance for the maintenance of the life health of very many inhabitants of the United Kingdom. June 1948 all butter and cheese in excess of that required to sat the needs of Australia including those of the Australian Forces, 1 production of each season would consult with the Government the United Kingdom and would, within the limits of the productiy capacity of Australia, take all necessary steps to ensure that supp) NEGRO were die being conducted between the Governmen of the United Kingdom and the Government of the Commonwealt of Australia for an extension of the agreement already entered int beyond the period ending 30th June 1948. It was estimated that the total butter production in th Commonwealth for the year 1947-1948 would be approximat 160,000 tons of which 100,000 tons would be available un the existing rationing system for consumption in Australia. balance of 60,000 tons would be exported primarily to the Unit Kingdom. The estimate of the total production and of the e balance was based upon the assumption of a continuance of modified ban on the use of sweet or table cream as it existed a present. The terniination of the limitation upon the use of ¢} abovementioned would reduce the export balance by 6,000 constituting ten per cent of the total amount available for expo OF AUSTRALIA, mh ent, on 30th October 1947, ordered by McTiernan J. to be into a motion for decree and, also by consent, was directed argued before the Full Court. two Governments having regard to the conditions then ling were to enter into discussions before 31st December 1947 the two Governments for the sale and purchase of butter ese, the Government of the Commonwealth would, during the July 1948, transmit to the Government of the United dom, details including the descriptions and quantities of 'and cheese unshipped at 30th June 1948 due to be lifted in ce with the agreement and the Government of the United om would buy such butter and cheese at the prices operating termination of this agreement. ion relating to butter and cheese was made in a schedule e document in respect of the following matters :—prices, of date of production, advances, weights and packages, ervative, adulteration and moisture, quantity, storage, documents, and loss prior to ocean shipment. before the Full Court and the motion then proceeded as of the action. r facts and the relevant statutory provisions and regulations iently set forth in judgments hereunder. C, (with him Nelson), for the plaintiffs, The Cream and Use) Order, made in August 1947, was not authorized Defence (Transitional Provisions) Act 1946 or the National (Food Control) Regulations and is void. The only purpose ler was to stimulate the export of butter, not cream, to inited Kingdom. The order does not come within the scope of the United Kingdom, In those circumstances the order is upported by the defence power in the Constitution or at all. ¢ of the order is to deprive the plaintiffs of their business it any compensation therefor. x J. The question is whether the defence power enables wealth to take measures. to ensure the performance it or the carrying out of an undertaking made in 'ith the prospect of the war continuing for an indefinite otion by the plaintiffs for an interlocutory injunction was H. ©. oF A- 1947, rs SLoaN v PottarD. H, C. or A. 1947. we Stoay °. Poutar. HIGH COURT On the facts the prohibition was not imposed for the purpose defence. It had nothing to do with the armed forces, nor had The thing done or proposed to be done under the defence must have a real connection with the defence of the Common and not a mere remote possibility of connection. The rehabilit of other countries does not come within the defence power. the passing of the Defence (Transitional Provisions) Act 1946 tl Food Control Regulations became statutory. The power given | reg. 9 (d) of those regulations was for the purpose of making o for defence purposes only. The object of the power appears a perusal of the Act to be limited to rehabilitation. Reeital (a the preamble to the Act seems to be a limitation upon the obj for which orders can be made ; it is directed to the time during whi they shall operate as well as the purpose for which they shal made, the purpose being the transition from war conditions t peace. The fact that the Act deals with the defence of the Con wealth generally is not only apparent from the preambles appears also from the nature and scope of the Act itself. The mat provided for are directed to the maintenance of the defence of Commonwealth. The preamble limits the power of the Minist to make orders that are or can be said to be for rehabilitatio matters. A power given under an Act can be validly exer only for the purpose or purposes for which the Act was enact (R. vy. Bromhead; Ex parte Miss Daveney Pty. Ltd. (1); Arth Yates & Co, Pty. Ltd. v. Vegetable Seeds Committee (2) ; Aus Teatiles Pty. Ltd. vy. The Commonwealth (3)). An order under the regulations can be made only for a purpose that is li to the objects set out in the preamble, The object of the order the increase of food supplies to the United Kingdom and outside the power that was given through the defence power by Defence (Transitional Provisions) Act. The order, which purp to deal with the use of cream in the Commonwealth, was made a view to increasing the quantity of butter available for expo from the Commonwealth to the United Kingdom and not | a view to the rehabilitation and restoration from war to pe: (1) (1946) 73 O.L.R. 237, at p. 243. (3) (1945) 71 CLR. 161, at p. 11 (2) (1945) 72 C.L.R. 37, at pp. 67, ~ a 68, 79. bites the fixing of conditions as to the sale and disposal and use in the Commonwealth and the defence of the Common- . How far there must be a real specific connection is (1); Attorney-General (Vict.) v. The Commonwealth (2) and Chamber of Manufactures v. The Commonwealth (3). The er has made an order for the distribution of cream, not for purposes of defence, therefore the order is invalid. The test as the matter any real and substantial connection with ce of the Commonwealth. The Tanavite non aspect alth (5) ; Real. Estate Institute of New South Wales 6) and Australian Textiles Pty. Ltd. v. The Commonwealth (7). ot follow that because there was an existing valid agreement under the defence power in 1944 that an order made in 1947 th a view to implementing the carrying out of that agreement can so derive its validity from the defence power. A law for the of implementing the agreement cannot be made under the power. K.C. (with him Fazio), for the defendants. The power Minister under the National Security (Food Control) Regula- a power to be exercised within the defence power or for the e of the defence power. The power conferred by reg. 9 is the defence power. The power of the Minister is not 1 to the exercise of the defence power but extends to the of any constitutional power available to the Parliament. t could be justified under, e.g. the power with respect to nd commerce with other countries and the power with external affairs. ©The preamble to the Act does not way the powers to be exercised under the Act. The states that it is necessary to make provision for the titutional power which the Partiamint has may be called for those purposes. The powers of the Minister under only be limited by the relevant powers in the Constitution ately, the only way those powers can be limited is by at exercise would be beyond power. Those powers (4) (1946) 73 CLLR. 157, at p. 173. (5) (1946) 73 C. a 413, at pp. 417, (6) (1946) 73 C. ; (7) (1945) 71 C.L.R. 161. C.or A. | 1947. Nae Stoan ps | The Commonwealth v. Australian Commonwealth Shipping P°C=8®?- H. C. or A, 1947. ed Sroan PoLiaRrD. HIGH COURT should not be read down any further than is required by the stitution. Assuming, however, that the justification for Minister's exercise of power must be found within the de PONE it is eunpored by three separate reasons, namely = hostilities is a continuation or winding-up power ; and (iii) connected with the defence of the Commonwealth, past, pi and future, not necessarily either rehabilitation or winding: The agreement made in 1944 for a term of four years was a reasonab) step incidental to the prosecution of the war by the Commonwea The agreement having been so made it was implemented up to t cessation of hostilities as part of a war policy. It does not follo that upon the termination of war all that was left in the defenc power was rehabilitation. Rehabilitation represents only one of the defence power. As regards (i) mentioned above it is und able that at the termination of a war power must be exe to restore to a serviceable and just position in the community those persons who suffered disturbance during the war. As to (ii Dawson v. The Commonwealth (1); Miller vy. The Commonwealth and Real Estate Institute of New South Wales v. Blair (3) outside the subject of restoration or rehabilitation. The proble dealt with fell within the defence power because the actual econo measures and defence do not cease when hostilities cease, therefo S the power must continue in some form, subject to limitations and modifications as fixed by this Court. Neither of those two divisions exhaust the power and there still is a general p to make laws for the defence of the Commonwealth. It is wit of the war would be within the defence power if the indi were within the Commonwealth so, it is submitted, would a proj sharing of a vital foodstuff amongst individuals who are the Ki subjects, whether within the Commonwealth or elsewhere, — within the defence power. This allocation amongst indi consumers of vital foodstuffs, is in the circumstances of this (1) (1946) 73 C.L.R. 157. (3) (1946) 73 C.L.R. 213. (2) (1946) 73 C.L.R. 187. at ede OF AUSTRALIA. power. It cannot be laid down dogmatically as to time or 4- ©. oF A- ¢ what will determine whether particular matters or itions come under the defence power (Chastleton Corporation lair (1) ). The question of whether defence powers continued the cessation of hostilities was discussed in Fleming v. Wrecking & Lumber Co. (2); In re Yamashita (3); istleton Corporation v. Sinelair (1) and Fort Frances Pulp and Co. Ltd. y. Manitoba Free Press Co. Ltd. (4). ; ; ; adians v. Uriorney -General for Canada (5).| he causes of the present shortage of vital foodstuffs, are the of manpower, materials and equipment, and fertilizers. e causes are directly traceable to the war and war-time con- and circumstances. The Court will not examine every inistrative or executive decision, and it is sufficient if an exercise "power may reasonably be seen to be for defence. The Court ld not say that butter rationing is on the threshold of invalidity cause although there is a constitutional justification for doing some exercise of the power outside the constitutional limits might be » made (Dawson vy. The Commonwealth (6) ). Regulation 9 is to » read subject to some implied limitations to be gauged from the not the Constitution. In the preambles the Parliament was ibing the situation and difficulties calling for legislation. It not intend to limit its powers in dealing with those difficulties. yurse cannot be had to the preambles to read down a grant wer such as that in the Food Control Regulations. The e (Transitional Provisions) Act is a valid statute within defence power. The commerce power extends far enough to ible the Parliament to make a regulation which would direct exportation of a commodity and would extend to a law which rectly increased the available supply of an exportable commodity. into account the existing rationing law which limits the nption of butter in the Commonwealth, and assuming at to be valid, then it is submitted that a law which is tly _ elated to increasing the amount to be exported in nal commerce is a law within s, 51 (i) of the Constitution. directed to nothing except the increasing of the exportable is a law within the trade and commerce power. In the the Court would be justified in treating the subject ) 264 U.S. 543 [68 Law. Ed. (3) (1946) 827 US. 1 [90 Law. Ea. 499). 'S31 US. LLL (91 Law. Ed. (4) (1923) a (5) (1947) 695, at pp. 706-708. .C. 87. (8) (1946) 73 C.L.R., at p. 181. 1947. rei Stoan Pouarp. 2 a ia i he H.C. or A. 1947. Ww Stoan v. Pouiarp. . order as an. exercise of the power with respect to trade and comm HIGH COURT Laughlin Steel Corp. a); Mulford vy. Smith (2) and Wickard . Filburn (3) ). The pidinione are general in their character, They authorize the making of any order which might as a law be mi by the Commonwealth under any one of its constitutional powers. — Although the order clearly comes within the defence power, in circumstances of this case it promotes the flow of foreign comme and therefore also comes within the trade and commerce po Consequently, it also comes within the external affairs power, Tait K.C., in reply. The order is directed to the acquisition, — disposal and use of cream in the Commonwealth and it is outside — the power with respect to trade and commerce with other countries. That power does not extend to enable the Parliament to deal with matters that are concerned with what happens before that trade , and commerce commences at all. The order cannot be validated under the trade and commerce power because it was made unde reg. 9 of the Food Control Regulations, and those regulations were made under an Act which on its face appears to have been made for the purposes of defence. The exercise of a sub-power under the Act, as by a Minister or a delegate of a Minister, must be limited ' to purposes of the Act as found. Parliament gave the Minister power to do these things for the purpose of defence and for no other _ purpose. The purpose for which the power is exercised by the Minister must be a purpose that is the aim and object of the power so exercised (Shrimpton v. The Commonwealth (4) ). The validity of the order depends upon the power of the Parliament under s. 51 _ (vi.) of the Constitution as in August 1947 and not as in 1944. The — agreement is simply an agreement for whatever may be the excess over the domestic needs of the Commonwealth and there is no _ suggestion in it that the Government of the United Kingdom — expects or requires that any step shall be taken to reduce the quantity of butter and cheese that the people of the Commonwealth may desire to consume. On its face the agreement relates only to th production of butter and cheese and has nothing to do with war. It is not denied that in 1943-1944 there was a necessity for fooe production for the purposes of the war in the Commonwealth a1 for all its allies, but the question is: what was the position in — August 1947 as regards the defence of the Commonwealth. A law, (2) (1987) 301 U.S. 1 [81 Law. Ed. (3) (1942) 317 U.S. 111 [87 Law. Ed. 893]. 129), Be (2) (1939) 307 U.S. 38 [83 Law. Ed. (4) (1945) 69 C.L.R. 613, at p. 619. 1092.) ; OF AUSTRALIA. 457 aim and object of which is to provide assistance to H- ©. oF A. 1947. abilitate or restore or help economic conditions in the ited Kingdom, is not a law for the "peace, order and d government of the Commonwealth " (s. 51), with respect to he naval and military defence of the Commonwealth " (s. 51 (vi.) ). cannot be said that the conditions prevailing in the United King- in August 1947, and which were sought to be remedied, were wether, or even substantially, the result of the war. Although it is not denied that the defence of the Commonwealth may be conducted in other parts of the world, it is denied that the power of ilitation is exercisable in respect of those other parts of the Cur, adv. vult. The following written judgments were delivered :— Dec, 12. tion for a decree and has been referred to the Full Court. e plaintiffs, John Henry Sloan and others, carry on business the name of " Regal Cream Products" in the purchase, sing and sale of cream. Defence (Transitional Provisions) Act 1946 provides in s. 6 at the regulations the titles of which are specified in the First The regulations which were thus enacted by the statute include National Security (Food Control) Regulations. Regulation 9 (1) those regulations provides that the Minister shall have power trol, regulate and direct the distribution, disposal, use and , ption of food . . . and in particular shall have power— (@) to require that any food . . . shall be distributed or dis- Lof . . . (d) to prohibit, regulate or restrict the distri- bution, disposal, use or consumption of food. ers as appear to him to be necessary or expedient for the purposes e regulations. these provisions the Minister made an order on 22nd 1947, entitled Cream (Disposal and Use) Order. Paragraph ; the order provides that a person shall not without the consent 33 of the Controller-General of Food sell, exchange, give away or } VoL. UXXV. : 29 H. C. or A. 1947. Ww SLoaN v. Poutarp. Latham ©.5. HIGH COURT (947. otherwise dispose of cream except—(a) to a butter or cheese factory, or (b) under the authority of and in accordance with the terms and conditions of a permit. Paragraph 5 provides that, except with the consent of the Co troller-General of Food or under the authority of and in accordance with the terms and conditions of a permit, a person shall not — purchase, receive or otherwise acquire any cream unless he is registered or licensed under the law relating to butter factories or cheese factories. : Paragraph 6 provides that a person shall not without the consent of the Controller-General of Food use any cream except—(a) for the manufacture of butter or cheese at registered butter factories or cheese factories or at the farm where the cream is produced ; or (6) under the authority of and in accordance with the terms and fe conditions of a permit. Paragraph 8 provides for the granting of permits. Paragraph 9 provides that the Controller-General of Food or an authorized officer may, by notice in writing, require a person to furnish returns relating to food. : The evidence shows that an officer acting on behalf of the Con- troller-General of Food has informed the plaintiffs that they must apply for a permit in order to purchase cream from producers or the cream should be resold by the plaintiffs to specified classes of — purchasers, viz., manufacturers of ice cream or other approved — products, hospitals and retail vendors holding permits in —— of certain medical cases. A demand has also been made that the plaintifis should furnish — returns in accordance with par. 9 of the order. The plaintiffs have declined to supply such returns and a prosecution of the plaintiffs — for breach of the order is pending. If the order applies to the plain- _ tiffs they will be unable to sell cream for table use or for use in the making of cakes and pastry, and will (if they obtain a permit) be able to supply cream only to persons who are approved as pur- chasers by the Controller-General of Food. The order made under the regulations is an administrative order, | and, it is submitted, can be valid only if the power to make the order is exercised bona fide for the purpose for which the power is conferred (Arthur Yates & Co. Pty. Ltd. v. Vegetable Seeds Com- mittee (1) ). That purpose is shown by the preamble to the Defence — (Transitional Provisions) Act 1946 to be a purpose connected with defence. The preamble to the Act, which was assented to on a : (1) (1945) 72 C.L.R. 37. OF AUSTRALIA. provision is required in order to bring a gradual and orderly m to conditions of peace and that it is necessary for the peace, and good government of the Commonwealth—(a) to make n provisions to operate during a time of transition from war ions to conditions of peace ; (b) to make provision for the on or completion, of certain arrangements &c. entered is preamble, it is contended, operates in relation to all the 'tions to which it is sought to give continued effect by s. 6. e plaintifis contend that there are no circumstances associated defence which can be relied upon to support the order. the affidavit filed on behalf of the plaintiffs the following fement appears, and it is not contradicted or qualified by any of the evidence adduced on behalf of the defendants :—* The cream hich the Plaintiffs purchase process or sell in the course of their 1 business is produced from cows' milk in the State of Victoria. the said Ist day of September 1947 " (the date of the Minister's er) "and at all other material times the quantity of cows' milk d in the State of Victoria and in other parts of the Common- h of Australia was more than sufficient to supply the demand and for cream and any other product derived therefrom ns desiring to purchase the same for use or consumption said Commonwealth and/or for use or consumption by the forces of the Commonwealth, and the sole purpose of the m nufactured from milk or cream." .a further affidavit by A. D. Roker, it is stated that the secretary of the Dairy Produce Export Control Act 1924-1942 of jonwealth informed the plaintiffs that the prohibition of of cream contained in the Minister's order " was not neces- order to maintain the present butter ration scale in Australia ; production in Australia of cream and of cream derivatives nutter and cheese, both immediately before the coming into of the Order and at the present time, was more than } in Australia and for the supply of the Armed Forces of lia; that the only purpose of the order was to stimulate mber 1946, recites that a state of war still exists between His H- ©. oF 4- 1947. Qe SLoay v. PoLLaRrD. Latham C.J. HH. C. or A. 1947. oe, Stoan v. Potiarp. Latham J. HIGH COURT (194 exports to Great Britain." The said officer also informed Mr. Rol ker that the enforcement of the order would mean that 10,000 tons 0 extra butter per annum would be available for export. statement is not contradicted or qualified by any of the evidence submitted on behalf of the defendants. The defendants, while not disputing these allegations made on behalf of the plaintiffs, contend that there are further facts sideration of which shows that the Minister's order can be justific under the defence power. An order restricting the use of cream was made in May 1943, order to meet the demands for the armed services and the United Kingdom. That order continued in force until 11th November 19: In the year 1944, ie. during the war, an agreement was ma between the Government of the United Kingdom and the Govern- ment of the Commonwealth with respect to the disposition of butter and cheese produced in Australia, This agreement is contained in a document entitled "' Heads of Agreement for the purchase by th Government of the United Kingdom of supplies of butter and che in Australia from the production period Ist July 1944 to 30th Ju 1948." It bears the date of Ist July 1944. The agreement prefaced by the following words : " The Government of the Uni Kingdom and the Government of the Commonwealth of Austral recognizing the necessity of maintaining and, if possible, increasi the production in Australia of butter and cheese, agree as follows." — Clause 1 of the agreement provides that the Commonwealth of Australia will make available for sale to the Government of the United Kingdom, in the period commencing Ist July 1944 and endi 30th June 1948, all butter and cheese in excess of that required— (a) to satisfy the needs of Australia including those of the Australian — forces ; (b) to provide the requirements of the forces of the United States of America ; (c) to provide supplies to U.N.R.R.A.; (d) for sale to other markets. a In the case of (6), (c) and (d), it is provided in each case that the requirements, supplies or sales shall be made following or subject to consultation with the Government of the United Kingdom, Clause 3 provides that the Government of the United Kingdom will buy butter and cheese from Australia. Clause 5 provides for the prices to be paid. The defendants have also adduced evidence that since Novem! 1943, allocation of world foodstuffs has been made by a Combin Food Board and later by an International Emergency Food Count in Washington. The agreement between the Governments of United Kingdom and the Commonwealth was taken into account OF AUSTRALIA. d supplies. August 1947, i.e. more than two years after the end of the war e, the food position in the United Kingdom was rapidly ating and the Commonwealth Government formed the on that the provision of sufficient fats in the 1947-1948 winter be a matter of vital importance for the maintenance of the ind health of very many inhabitants in the United Kingdom. admitted for the plaintifis that there is Commonwealth in time of war to control the disposition of foodstuffs: see arey v. Burvett (1); Stenhouse vy. Coleman (2). It is argued for the defendants that the power to make laws with respect to the nee of the Commonwealth and the several States conferred upon e Commonwealth Parliament by s. 51 (vi.) of the Constitution s also to the enactment of measures for the economic assis- of other parts of the British Commonwealth which have d Australia in the recent war and upon whose support Aus- a would probably depend in any future war. It is suggested economic assistance to Great Britain (whether or not there is rar or imminence of war at the time) is assistance to avountry which een and can be expected to be a powerful ally in time of war that therefore such assistance is authorized as an exercise of _the power to make laws with respect to the defence of the Common- salth Upon the view w which I take of the effect of the agreement made the Governments, it is not necessary to decide upon this ition, As at present advised I am of opinion that the eon- tention goes too far. Even in relation to matters within Australia ' h defence power does not enable ae Commonwealth Parliament to ia and are therefore eee with defence—ef. Victorian er of Manufactures v. The Commonwealth (Industrial Lighting ) (3). If this be so, the strengthening of the economic n, not of Australia, but of another country, even though it 'of the British Commonwealth, could not be held to come the subject of the defence of Australia. defendants, however, rely also upon a special argument ipon the existence of the agreement with the United Kingdom. ; of war involves many arrangements between allies hin the British Commonwealth, between the various parts Commonwealth. These arrangements must necessarily be 16) 21 CLLR. 433. (8) (1943) 67 CLR. 413. 69 CLR. 457. Council as part of the general scheme of distribution of H.C. or A. 1947. Ww SLoan Pottarp. Latham 0.3, H.C. oF A. 1947. Se SLoaw v. PoutarD. Latham ©.3, HIGH COURT made at a time when it is not known how long the war will or what the result of the war will be. In some cases such arrange ments can be effective only if they can be relied upon for a period, Tn 1944 the date of the termination of the war was quite uncertain, a As a war measure the provision of fats—butter and cheese—to Great Britain clearly might be a matter of great importance not only to Great Britain but also to Australia. It cannot be said that — it was unreasonable to take the view that the war and consequential necessity for such provision might continue to the year 1948, Further, the agreement made must be viewed in relation to the whole war set-up which involves a complexus of reciprocal arrangements as to supply of shipping, munitions, food and other commodities, Butter may be given or sold in exchange for guns, It is a matter of common knowledge that a far-reaching system of mutual assis- tance between countries engaged on the same side in a war may be necessary during a war in order to secure co-operation and the — efficient utilization of national resources in the common interest. Thus in my opinion the making of the agreement as to the sale of Australian butter and cheese to England during the period 1944- 1948 was a step which may reasonably be regarded as incidental to the conduct of the war and therefore the making and the carrying out of the agreement is a justifiable exercise of the defence power. It is argued for the plaintiffs that the arrangement between the Governments of the United Kingdom and the Commonwealth was not a contract to supply any definable quantity of butter and cheese. In my opinion that is quite true. The agreement was not a contract — for the breach of which an action for damages could be brought. It was an arrangement between governments and was essentially the kind of arrangement upon which governments are entitled to rely as between themselves. It is true that the Commonwealth Government does not agree to restrict the consumption of cream in Australia so as to increase the amount of exportable butter and cheese, but the terms of the arrangement show that it was expected that the Commonwealth, though not legally bound to do so, would — endeavour to make as much butter and cheese as possible available for export to the United Kingdom. Accordingly in my opinion the existence of the agreement in the special circumstances of this case gives legislative power to the Commonwealth Parliament to act so as to increase the exportable surplus of butter and cheese to the United Kingdom during the period for which the agreement operates. One obvious method of securing this result is to take steps to secure the conversion of cream OF AUSTRALIA, 463 1947. It is objected, however, that the order of the Minister contains oe ence to the arrangement between the two governments and v. Poutarp. 'therefore it ought to be considered apart from any such ment. Many orders made under National Security Regula- Latham oJ. ive contained no reference in terms to the purpose for ch the orders were made. It has not hitherto been suggested 'such orders were invalid because they did not declare their ose upon their face. In my opinion there is no reason why the fs in relation to which an administrative order is applicable mild not be shown by evidence. If, for example, there is power give a certain direction to a class of persons such as, e.g., wheat s, and a direction is given to someone described as " William show that William Smith was in fact a wheat farmer. In the e way, in the case of the present order, the defendants are, in opinion, entitled to show that the operation of the order is to se the exportable surplus of butter and cheese and that such is in accordance with the true object of the arrangement the Governments. The Court may properly assume that ent will be carried out by exporting as much butter its for the defendants which were based upon the power of the nonwealth Parliament to make laws with respect to trade and eree with other countries. the reasons stated, the order made by the Minister is, in my on, a valid order and the action of the plaintiffs should be J. This case presents some difficulties, but in my opinion are to be solved by an application of the defence power to the facts of the case. I have said before "that although the of the defence power is static its application varies with es to which the legislation in question is directed " i Chamber of Manufactures vy. The Commonwealth (1) ). ion was made in reference to an exercise of the power progress of the war. At re time it was necessary to | or conducive to the prosecution of the war. We have ~ (1) (1948) 67 C.L.R. 335, at p. 375. H.C. or A. 1947. Se SLoax PotnarD. Rich J. HIGH COURT now reached a state of affairs when our attention must be directed _ rather to what is incidental or ancillary to the liquidation of the national organization for war. The basal principle, however, by ie which the operation of the power is to be determined is the same although the manner in which the principle works in its application to the facts is necessarily governed by a somewhat different line o} reasoning. What is incidental to the process of winding up the organization, arrangements or order called into being for the prose- 4 cution of the war necessarily includes the implementing, execution — or adjustment of agreements whether with other countries or between the Commonwealth and its subjects made in the course of | the prosecution of the war. In the present case the situation which _ makes the defence power applicable depends in some measure upon the outcome of an agreement made between the Commonwealth and the United Kingdom during the war. That agreement which seems to have been made in 1944 is expressed in a document exchanged in May 1945 between the representatives of the two countries. If the Cream (Disposal and Use) Order made in August 1947 can be regarded as a means of fulfilling the obligations of the — Commonwealth to the United Kingdom arising under this agreement I think it is justified by the defence power. I have come to the conclusion that it can be so regarded and for two reasons. In the first place, the natural tendency of the order is to produce a greater surplus for export of butter and cheese. In the second place, though the document does not stipulate for any definite quantity of butter _ and cheese as the exportable surplus, the plain sense of the agree- _ ment is that Australia should supply as much butter and cheese as _ she reasonably can after supplying her own needs, and the assurance subsequently given by the Commonwealth to the Ministry of Food is sufficient as between two countries to quantify the obligation in an amount making it incumbent on the Commonwealth to take some measures to secure a commensurate exportable surplus. I need hardly say that I am not using the word " obligation" in any a technical or juristic sense. I refer only to the need for the fulfilment of expectations raised between two countries by any express under- standing arrived at between them. In short, I use the word — " obligation " to express the consequence of the Latin phrase pacta sunt servanda. ae I am therefore of opinion that the order is a valid exercise o! power and that the action should be dismissed. Srarxe J. A declaration is sought in this action that the Cream (Disposal and Use) Order dated 22nd August 1947 is void and that in so far as the National Security (Food Control) Regulations and the OF AUSTRALIA. + of the Controller- Géneral of Food sell, aaalikeoh give away se dispose of cream except to registered butter or cheese , except with the consent of the Controller-General of Food, receive or otherwise acquire cream unless his premises tered or licensed as a butter or cheese factory. Further, order provides that a person shall not without the consent of he Controller-General of Food use any cream except for the manu- e of butter or cheese at registered or licensed butter or cheese es, or at a farm where the cream is produced or under a But a person is not prohibited from using cream obtained 'milk held by him for his own ordinary consumption. The also gives very general powers concerning the issue of permits ons to furnish returns or supply information relating to food or tufls specified by notice. 'his order purports to have been made under and in pursuance le effective by the Defence (Transitional Provisions) Act 1946, although some reliance was placed upon the trade and com- e and the external affairs powers in the Constitution it is I think, that the constitutional basis of the Defence (Tran- Provisions) Act, the National Security (Food Control) Regula- and the order itself depend upon the defence power in the itution, y legislative Act, regulation or order of the Commonwealth t, as I have said before, find some warrant in the Constitution. e reasonable and substantial basis must exist for the conclusion the Act, regulation or order is one with respect to defence. e Court however has already held that the cessation of hostilities t necessarily exhaust the defence power which includes remedy conditions arising out of and by reason of war. s restricting the use of cream were first made under the Security Act in 1943 and were continued until November 1947 the present order was made, operating from Ist 1947, renewing restrictions as already set forth. ie time of the making of this order hostilities between the in the recent war had ceased, ce (Transitional Provisions) Act 1946 purport to authorize the 1. ©. oF 4. 1947. ed Suoas w. Poxtarp. Starke J. H. C. or A. 1947, we SLOAN ¥. Poutan. Starke J. | the owners and the manufacturers of butter or cheese are free to HIGH COURT Apart from the recitals in the Defence (Transitional Provisions) Act 1946 there is nothing on the face of the order itself that dis any connection with defence. And it does not require that 1 owners or manufacturers of butter or cheese should apply the for defence or any other purpose. So far as the order is concen deal with and market it as they choose. But, I take it that we may look at the circumstances surroun the order. It is conceded that the real purpose of the order is increase the exportable surplus of products derived or manufacture from milk or cream, And it appears that in August the food position in the United Kingdom was rapidly deteriorating and that provision of sufficient fats in the winter of 1947-1948 was of vit importance for the maintenance of the life and health of the inhal tants of the United Kingdom. Further, it appears that in 1945 an arrangement was mad between the governments of the United Kingdom and Aus' whereby Australia was to make available for sale to the governme of the United Kingdom in the period commencing on Ist July 19 and ending 30th June 1948 all butter and cheese in excess of wh I may shortly describe as Australian requirements and the Unit Kingdom agreed to buy the excess. In a covering letter it wi intimated that the United Kingdom regarded the purchase as on behalf of the United Nations but expected the supplies under uy arrangement to be allocated to the United Kingdom. And the National Security (Dairy Produce Acquisition) Regillatien made effective by the Defence (Transitional Provisions) Act 1946 conferred upon the government of Australia ample powers to imp! ment this arrangement. 2 It was suggested, however, that the defence power of the Com- monwealth must be confined to the needs of Australia—the peace, order and good government of the Commonwealth and that the shortage of foodstuffs and other materials in England in the po: war period in consequence of and by reason of conditions ari from the war were not matters in respect of which the Commonwealt could exercise the defence power. The argument cannot be sus- tained. The defence power is being exercised in the present or to implement a war arrangement with the British Governm involving food supplies in short supply arising in consequence and by reason of conditions arising out of the war in which b the United Kingdom and Australia together engaged with ot allies, and in operation the order results in an increase of OF AUSTRALIA. it arrangement. my opinion, that is a reasonable and substantial basis for that the order is made with respect to defence. It may it the order can be justified, as was argued, upon a wider but it is unnecessary to discuss that contention in this case. stand over for another day, action should be dismissed. Cream (Disposal and Use) Order is valid. It is expressed to me into force on Ist September 1947 and was made a week before date by the Minister for Commerce and Agriculture purporting act under the National Security (Food Control) Regulations, the peration of which is continued by the Defence (Transitional Pro- ions) Act 1946. 'The chief provisions of the order forbid the sale or disposal of m, except under permit, to anybody who is not registered or cream, except under permit, for any purpose but the manu- ture of butter or cheese. lustry, internal trade and home consumption which falls within he legislative powers of the States and beyond those of the Com- onwealth. luction of butter and cheese and its provisions evidence that ose. To increase production is to increase the exportable s of butter and cheese. Commonwealth claims that, because of the circumstances obtain, the purpose of securing a greater export of these foods | Australia is one which, for the time being at all events, falls the scope of Federal legislative power. The purpose, it draws under Commonwealth power what otherwise would . Stout reliance was placed on defence ; a Jove inci- Then trade and commerce with other countries was to as a second power that might support the provisions of er. The reference was brief and seemed less like an argument iveat against any supposition on the part of the Court that npossible, even with a full use of the more recent decisions ble surplus of butter and cheese available for the purposes H- ©. oF A. 1947. ues Suoax a POLLARD, Starke J. H. C. oF A. 1947. we SLoan v, Poutarp. Dixon J. HIGH COURT Snodttee that might a required for such commerce. . In the third place, the power with respect to external affairs was faintly mentioned. , The order itself depends upon the power conferred by National Security (Food Control) Regulations upon the Minister control, regulate and direct the production, dispel and use 0} aeuviee from the National Security Act. The explanation lies in the fact that the Food Control Beale had by the time the order was made, come to depend upon s. 6 o! the Defence (Transitional Provisions) Act 1946. Section 6 of that Act provides that a list of regulations contained in a schedule including the Food Control Regulations, shall be in force until 31st December 1947. It may be true that, if any of the legislativ powers of the Parliament will authorize so much of this provisi as relates to any of the scheduled regulations or any divisible p: thereof, it is enough for the validity of that regulation or that part. Little need be said about the Commonwealth's reliance upon the legislative powers with respect to overseas commerce and extern affairs. The order cannot, in my opinion, be justified under either of thi powers for the simple reason that neither the order nor the statutoi authority under which the order was made is shown to amount a law with respect to trade and commerce with other countries with respect to external affairs. ; The statutory authority under which the order was made consi: in s, 6 (1) of the Defence (Transitional Provisions) Act in its app! cation to so much of the first schedule as refers to the Nationa Security (Food Control) Regulations. On the face of those regulations — there is nothing to connect them with trade and commerce with — other countries nor with external affairs. In picking up the regu- Jations and providing that they shall be in force until 31st December — 1947, s. 6 (1) does not therefore touch ostensibly either of 1] two subjects of legislative power. That, perhaps, is not conclusive Circumstances existing when the Defence (Transitional Provisio Act was passed might put a different complexion on that part of the operation of s. 6 (1). For instance, the preamble to the Act sp of " arrangements activities actions and proceedings entered up or subsisting in pursuance of certain of the regulations made the National Security Act." If it had been made to appear OF AUSTRALIA, LR.) jut a singular and unfortunate circumstance of this case is that e has not been laid before us a complete account of what must interconnected, if complicated, set of arrangements, transac- events and facts with reference to the war-time and post-war oduction, allocation and distribution of food, which I should gine must have a bearing upon the questions for our decision, t were before us, it might not affect either the result or the steps by which we reach it, but that we cannot know. As it is, I think that it is clear that we must put aside the commerce power and the affairs power at all events. have reached a different conclusion with reference to the e power. Enough, in my opinion, has been made to appear fo establish that, in present circumstances, to increase the exportable And I agree in the contention that the order can be because it is addressed to that object and comes within tions, the facts disclosed by the evidence before us, those upon I rest this opinion can be briefly stated. During the war, 44, an agreement was arranged between the United Kingdom Australia for the supply of the exportable surplus of butter cheese, The heads of the agreement were settled and exchanged it the Governments in March 1945. The Commonwealth lertook to make available to the United Kingdom for four years, ng on Ist July 1944, all butter and cheese in excess of juired to satisfy the needs of Australia, including those of stralian forces, and to supply certain other requirements. other requirements were, in effect, the supply of American the supply of U.N.R.R.A. and sale in other markets. It was ustralia to agree how much of these requirements she would ut always following prior consultation with the United Government, and in the last case, namely, sale in other ibject to the prior agreement of that Government. The eement recited the recognition by the two Governments sity of maintaining and, if possible, increasing the in Australia of butter and cheese. ction formed part of the Allied arrangements for the food in the conduct of the war. The Minister of Food e "arrangement or activity " so subsisted and was of such a H. ©. or A. 1947, Ww Stoan ca Potiarp. Dixon J. 470 HIGH COURT qe, H.C. or A. for the United Kingdom, in forwarding the heads of agreement to — ' ee the Australian High Commissioner, wrote :—'* While we expect that — Stoax _ the supplies we shall buy under the Agreement will be allocated to v the United Kingdom, we regard them as purchased on behalf of PouraRP. the United Nations and subject to allocation by the Combined -DixonJ. Food Board" (a body established under the Combined Chiefs of Staff) "so long as that body continues to allocate food supplies among the United Nations." The agreement does not provide for any limitation upon Aus- tralia's prior needs, it being sufficiently obvious that such a matter — would be left to the good faith of the Commonwealth. But after- wards, that is to say, as I understand it about October 1946, the Commonwealth gave an assurance or promise to the United Kingdom _ Government of an annual export of 60,000 tons of butter to sustain the ration of butter decided on by the British Ministry of Food. The giving of this promise appears to me to be a thing done in pursuance of, although not required by, the agreement, something incidental to its reasonable execution or fulfilment. There had been an order restricting the use in Australia of cream, an order like that now in question. But, because of a mistaken expectation that the production of butter would increase, the order was revoked on 11th November 1946. The present order was made nine or ten months afterwards as part of the measures adopted to — obtain a production of 160,000 tons of butter in 1947-1948, Of such a production 100,000 tons would be available for Australian con- sumption and 60,000 tons for export to Great Britain. If the surplus were 60,000 tons, the Commonwealth would thus be able to make good its promise to the Ministry of Food in the United Kingdom. How much would be contributed to the surplus by the — diversion of cream to butter as a result of the order is necessarily a matter of estimate. According to the information obtained by plaintifis' inquiries, if the order were enforced completely it would mean that annually 10,000 tons more butter would be available for export. The estimate by the Commonwealth officials of the increase to be expected from the operation of the order is not specifically given, but it appears to be considerably lower than this figure. It is plain, however, that the order involves a very substantial con- — tribution to making up the 60,000 tons needed to fulfil the assurance given to Great Britain in 1946 as to the quantitive working out bi the agreement made in 1944 and 1945. The foregoing are special facts which, in my opinion, bring the purpose of the Cream (Disposal and Use) Order, namely the purpose bia So. aii te das mana OF AUSTRALIA. nee power. » two Governments made the agreement for a term of years the concluding stages of the war but also an ensuing period of d food shortage and of difficulty of supply of the same er as during actual hostilities and proceeding from the same That such a period should ensue was an inevitable con- of the diversion of effort, the reshaping for war of the Allied economy, the absorption of manpower, the displace- people and the physical destruction of war. e agreement by Australia for the supply of butter and cheese by the Allies. The subsequent fixing of 60,000 tons of butter 'annum as the quantity which Britain in making her arrange- could rely upon Australia's supplying under the agreement not perhaps to be considered in itself as incident to the state fested in the occupation and administration of enemy territory d the like. But it was a step in dealing with a situation in Y iplation of which the agreement had been made, a situation templated as a necessary result of the manner in which the was being carried on when the agreement was made. time of at least 60,000 tons of butter per annum for export the agreement is a matter fairly falling under the defence is a legislative power the application of which after the final 'ion of hostilities in a war must be very different from its ication while resistance to the enemy or his overthrow still the central purpose of its exercise. But its operation and the inment of the practical measures which it authorizes must nue to depend upon the facts as they exist from time to time. g generally, the fulfilment of agreements with other countries as an incident in the prosecution of a war or the completion up of arrangements made in the course of a war and ed to further its prosecution, whether by this country, other \ countries or their Allies, will constitute a purpose for which may be exercised. It is an end relevant to the power. relevant to a power, the only inquiry that remains the means adopted are appropriate to the end. immediate step for achieving the end in this instance a greater surplus of butter or cheese, as the case ing the exportable surplus of butter and cheese, within H- ©- or A. 1947. sa Stoan v. POLLARD. Dixon J. H. C. or A. 1947. Stoan PouiarD. Dixon J. HIGH COURT may be, If that is secured the agreement itself operates upon surplus. vine Newer Security (Dairy Produce Acquisition) Re Reg Other measures might have been adopted for the purpose. Wh less drastic restrictions might have sufficed, whether reducti the consumption of butter and a regulation of the trade in would have been enough, these are matters to be decided by who exercise the power ; they do not go to its application or e: They are not matters which affect a question of ultra vires. a question depends on the relevance of the end to the power and th appropriateness of the means to the end. It is not concerned furth with the choice of means. Nor is it concerned with the mann which the nature of the end appears. It is enough if it appears fr the operation of the means adopted upon and in relation t facts that exist. The legislative or other instrument need not declare the purpose by which it is animated. Indeed withot necessary foundation of fact and an inherent tendency in the me adopted to achieve the end, a profession of purpose might pr fruitless. It is for this reason that I have taken the view that question upon which the validity of the order depends is whethe facts exist which make the production of a greater expot surplus of butter an object falling within Federal power, that as I view it, the defence power. For the reasons I have given I think that such facts do exi circumstances I have mentioned. I have done so notwithstand larger claims on the part of counsel for the Commonwealth notwithstanding his reliance upon additional circumstances, s times vague, sometimes more or less precise. These, in my opinit are matters deserving, as indeed counsel scarcely denied, a mu more detailed statement and examination than the materials before us contain or admit before their real effect upon the stitutional power is determined, and upon those materials I am at present prepared to pronounce in favour of the validity of order, except upon the very special and limited grounds I h assigned, s But upon those grounds I think the suit should be dismissed wit ' costs. x LR] OF AUSTRALIA. nds is whether the Cream (Disposal and Use) Order is ultra U Tt was made on 22nd August 1947 "by the Minister of ite for Commerce and Agriculture. He declared in the order hat he made it in pursuance of reg. 9 of the National Security (Food trol) Regulations. This regulation derives its force as a law . 6 of the Defence (Transitional Provisions) Act 1946. By his section Parliament intended to authorize the Minister to exerci: powers contained in reg. 9 until the end of 1947. In passing Act the Parliament has, plainly, exerted its power 'to make laws 'ith respect to " Defence." After hostilities began, this power nded to a wider range of subjects than those which could have e within it before the outbreak of the war. But upon the ion of hostilities the power did not ipso facto become limited he latter range of subjects. Thereafter it extends to the making law on any subject, if the law is an appropriate means of coping a national emergency attributable to the war. he existence of emergencies of this nature characterize the -deseribed in the preamble of the Act as "a time of transition war conditions to conditions of peace." present order is in terms which are authorized by the pro- ms of reg. 9. It is necessary that the order should be within islative powers with respect to defence and within the purposes he Defence (Transitional Provisions) Act 1946. It satisfies both e conditions if it is an appropriate means of coping with a al emergency attributable to the war. The reasons which inister had for making the order are not stated upon its face. evidence shows that they are founded upon the agreement 'was made in 1944 between the Government of the United n and the Government of the Commonwealth relating to 'supply of butter and cheese from Australia to Great Britain. agreement the two Governments declared that they recog- the necessity of maintaining and if possible increasing the tion of butter and cheese in Australia and the Government Commonwealth therein promised that it would make available chase by the Government of the United Kingdom all butter produced in Australia from Ist July 1944 to 30th June excess of certain specified requirements. The present 'is calculated to increase the production of butter and cheese istralia and consequently the amount of these foods which available for purchase by Great Britain, because local ion is or may be controlled under the Commonwealth Regulations. The § agreement is not legally enforceable. 1947. Ly 3. Stoan "McTiervan J, The question upon which the result of this case M- ©. oF A. H.C. or A. 1947. eS Stoan v PoutarD. McTiernan J. HIGH COURT [94 It calls for action on the political level to implement it. The worki of the agreement depends upon the adoption in Australia of govern ment policies appropriate to foster the production of butter a cheese in sufficient quantities to provide a surplus for export Great Britain. The agreement was made under the necessity war. The commitments of the Commonwealth Government unde the agreement are in the nature of emergencies attributable to # war. The evidence proves that the Minister made the order the sole object of providing a surplus of butter and cheese for ex, to the United Kingdom. The order is in my opinion an approp1 means of honouring such commitments. : Witrams J. The question that arises for decision in this a t is ae the Cae (Disposal ape Use) Order is se) Se ptaukber 1947. It was made by the Minister of State for C merce and Agriculture in pursuance of reg. 9 of the National S¢ (Food Control) Regulations. The order provides in par. 4 without the consent of the Controller-General of Food a person sh not sell exchange or give away or otherwise dispose of cream except (a) to a person who is registered or licensed in respect of pre which are required to be registered or licensed under the law of State or Territory of the Commonwealth providing for the regi tration of butter factories or cheese factories, or (b) under authority of or in accordance with the terms and conditions of permit: par. 5; except with such consent or authority a perso n shall not purchase receive or otherwise acquire cream unless is so registered or licensed : par. 6 (1) ; a person shall not withor such consent use any cream except (a) for the manufacture butter or cheese at such premises or at the farm where the cri is produced or (6) under the authority of and in accordance with th terms and conditions of a permit. The effect of the order is therefore to prohibit the use of cre except for manufacture into butter or cheese, without the conse of the Controller-General of Food or a permit. Regulation 9 (1) the Food Control Regulations provides, so far as material, that Minister of State for Commerce and Agriculture shall have pow to control regulate and direct the distribution disposal use consumption of food (then follow a number of specific powers) Regulation 9 (2) provides that the Minister may make such o1 give such directions, enter into such contracts on behalf of LR.) OF AUSTRALIA. necessary or expedient for the purposes of the regulations. The ood Control Regulations first came into force on 28th June 1943. y then contained reg. 3, which provided that the object of the ns was to secure for the purposes of the defence of the onwealth and the effectual prosecution of the war, that dequate provision of food . . . was made and maintained . and these regulations should be administered accordingly. e regulations were continued in force by the Defence (Tran- Provisions) Act 1946 until 31st December 1947 with the nission, however, of reg. 3. The Defence (Transitional Provisions) contains a preamble which recites, inter alia, that legislative is required in order to bring a gradual and orderly return good government of the Commonwealth to make certain visions to operate during a time of transition from war conditions ditions of peace. There had been two previous orders restrict- the use of cream. The first order prohibited the use of cream ept for high priority dairy products and the sale of cream as or table cream except on approved medical grounds. In ruary 144 this order was superseded by a new order in a slightly ed form which remained in force until 11th November 1946. - restriction of the use of cream during these periods was rendered y by the decline of milk production in Australia occasioned conditions due to hostilities and the heavy demands for butter the armed forces of the Commonwealth and the United om. n the restriction was removed in November 1946 it was cipated that there would be an improvement in the manpower on in the dairying industry brought about by releases from which would result in an increased production of butter, 'that this increase, together with some 12,000 tons of butter annum no longer required for the allied services Bene on "yelg would be available for spac? to that country. 'on account of a continued shortage of manpower, materials, farm, equipment: in the industry, and of ere becoming _ anticipation proved incorrect, and it was found =p a 1947 to iratiae restrictions on the use of imonwealth, and do all such other things as appear to him to #- ©. oF A. 1947. "We Stoan > v. POLLARD. Williams J. H.C, or A. 1947. ae SLOAN POLLARD. Williams J, HIGH COURT In July 1944 an arrangement embodied in a Somer entitled | Heads of Agreement was made between the Government of United Kingdom and the Government of the Commonwealth Australia for the purchase by the Government of the United Kingdo of supplies of butter and cheese in Australia between Ist July 194 and 30th June 1948. This document, after reciting that thes Governments recognized the necessity of maintaining and if possibl of increasing the production in Australia of butter and cheese, provided that in this period the Government of the Commonweal of Australia would make available for sale to the Government of the United Kingdom and the latter Government would pure all butter and cheese in excess of that required to satisfy the need of Australia including those of the Australian forces and certai other purposes. The document also provided that the Governm of the Commonwealth of Australia in determining the quanti to be made available from the milk production of each season wo consult with the Government of the United Kingdom and wou! within the limits of the productive capacity of Australia, take made available for sale in such proportions as might be requi by the Government of the United Kingdom. _Tt ADRES that conferences of Dear p ore of the Unite a May 1943 and at Atlantic City in November 1943, and that i accordance with the principles there agreed upon allocations world supplies of food were made first by the Combined Fi Board and later by the International Emergency Food Council ins Washington. Mention of these conferences was made in a covering letter to the Heads of Agreement dated 23rd March 1945 written. i by the British Minister for Food to the Australian High Commis- | sioner in England. The writer, after referring to the desire of the Governments of the United Kingdom and the Commonwealth of — Australia to facilitate the allocation of supplies by the Combined Food Board in accordance with the principles there agreed upon, — stated that he expected that the supplies to be purchased by the United Kingdom under the arrangement would be allocated to' the United Kingdom, but that he regarded them as purchased on 3 behalf of the United Nations and subject to allocation by the Com- bined Food Board so long as that body 'continued to allocate food supplies among the United Nations. There is evidence that in accordance with these aineststone the fact that the arrangement between the Government of the United Kingdom and the Government of the Commonwealth of Australi 15 C.L.R.) OF AUSTRALIA. protided for the anticipated Australian surplus of butter and cheese to be allocated to the United Kingdom was taken into account by the International Emergency Food Council as part of the general scheme of distribution of world supplies. The defence power, that is s. 51 (vi.) of the Constitution, provides that the Commonwealth Parliament may make laws with respect to the naval and military defence of the Commonwealth and of the several States. It was not disputed that legislation having as its object the supply of essential foodstuffs such as butter and cheese to the United Kingdom to assist in sustaining the people of Britain and enable, them to take a predominant part in the common war effort was entirely within the ambit of this power during hostilities. But it was contended that upon the termination of hostilities the legislation of an economic character authorized by this power relating to the period of transition from hostilities to peace was confined to legislation for the restoration of the people of Australia to conditions of peace, and did not extend to the restoration of any people outside Australia, even those of the United Kingdom. It was urged that the Cream (Disposal and Use) Order was independent legislation of an economic character enacted two years after the termination of hostilities, that its purpose was the restoration of the economy of the people of the United Kingdom and not of Aus- tralia, and that it was not therefore authorized by the power. If, two years after the termination of hostilities, the United Kingdom had become for the first time largely dependent on Australia for its supplies of butter and cheese, it might be open to argument that there was no sufficient connection between the order and the defence of Australia. But the order is not in any sense a piece of indepen- dent legislation. It is part of a connected series of steps taken to meet an emergency which arose during hostilities, and which did not cease to exist upon their termination. If there had been no arrangement like that embodied in the Heads of Agreement, but the Commonwealth had in fact been supplying the United Kingdom with butter and cheese for the purpose stated, I should have thought that the decisions of this Court in Dawson's Case (1) and Miller's Case (2) show that the defence power would have continued to be _ wide enough after the termination of hostilities to support legis- lation having as its object the maintenance of such supplies during a reasonable period of readjustment after the fighting had ceased. _ It is not disputed that it was competent for the Commonwealth Parliament and those to whom it delegated its powers to pass legislation under the defence power during hostilities conferring (1) (1946) 73 C.L.R. 157. (2) (1946) 73 C.L.R. 187. 477) H. C. or A. 1947. a Stoax PoiiarD. Williams J. H. ©. or A. 1947. SH Stoay ». Poutarp. Williams J. HIGH COURT _ (1947. upon the Minister of State for Commerce and Agriculture authrity to control, regulate and direct the distribution, disposal, use and consumption of foodstuffs. In my opinion it was also compet for the Commonwealth Parliament to pass legislation to continu that authority for a reasonable period thereafter, so that commit- plain that the Executive " must be . . . left with considerable — freedom to judge " what legislation is still required to cope with the transition from hostilities to peace. In the latter case Lord Wright 4 said (3): 'But very clear evidence that an emergency has not — overruling the decision of the Parliament . . . that exceptional measures were required or were still required." cs In the present case the position is clarified by the existence a the arrangement. The period for which this arrangement is to operate was agreed upon during hostilities; it is a reasonable period, and it is still current. The main purpose of the arrange: ment was to meet to the fullest possible extent the requirements o} the United Kingdom in butter and cheese after satisfying the needs. of Australia. It was contended that the expression " the needs of Australia" in the Heads of Agreement referred to the actual Aus- tralian consumption. I cannot accept this contention. In my — opinion the expression refers to the reasonable dietary needs of Australia, and the determination of the amount of butter and cheese required for this purpose is a matter for the Government of the Commonwealth. Australian' consumption of butter is con- trolled by the system of butter rationing instituted under the National Security (Rationing) Regulations. The purchase of the | butter and cheese required to give effect to the arrangement is — made by the Dairy Produce Control Committee constituted under the National Security (Dairy Produce Acquisition) Regulations. Both of these sets of regulations have been continued in force by the Defence (Transitional Provisions) Act. The interaction of the Cream (Disposal and Use) Order with the system of Australian butter rationing and the purchase of the surplus Australian butter and — cheese by the Dairy Produce Control Committee is plain and clear. It was suggested that the required exportable surplus of butter for (1) (1923) A.C. 61 (3) (1947) A.C, at pp. 101-102, (2) (1947) A.C. D Kingdom could be obtained by reducing the Australian H- ©. oF As This may be true. But once it is decided, as in ras: , pinto should be decided, that in all the circumstances it was gage mt for the Parliament of the Commonwealth and its author- rv. yates to legislate under the defence power to maintain the P°™® essential foods promised to the Government of the Williams J. _ n n during hostilities for a reasonable period thereafter, rmination of the policy to be followed to give effect to this 'matter for the Government of the Commonwealth. ese reasons I would dismiss the action. oi Action dismissed with costs. for the plaintiffs, FP. A. Ladbury, Melbourne. for the defendants, H. F. 2. Whitlam, Crown Solicitor nmon ealth. re ¢ . K a J. B.