R v Foster [1949] HCA 16

79 C.L.R.] OF AUSTRALIA. 43

(HIGH COURT OF AUSTRALIA.]

THE KING

AGAINST

FOSTER AND OTHERS ;

EX PARTE RURAL BANK OF NEW SOUTH

WALES PROSECUTOR. WAGNER. of 5 é v a 5 . COMPLAINANT ; AND GALL . : : 5 i : - . DeFENDANT. 'COLLINS g ' 4 : i Fi : PLAINTIFF ; AND HUNTER AND OTHERS . c 5 : . DEFENDANTS.

Constitutional Law (Cth.)—Defence—National security—Women's employment— yy. GC. or A. Liquid fuel—Distribution—Control—Licences and ration tickets—Re-establish- 949, ment of ex-members of the Forces—Dependants—Dwelling houses—Unoceupied i" or about to become wnoccupied—Right of possession—Cessation of hostilitiese— SYDNEY, Lapse of time—War-time legislation and regulations thereunder—Operation— April 4-7, Continuance—Validity of legislation and regulations—The Constitution (63 & 26-28, 64 Vict. c. 12), 8. 61 (vi.), (xxxi.) (xxxv.) (xxxix.)—Defence (Transitional yrecsounnn,

Provisions) Act 1946-1948 (No. 77 of 1946—No. 78 of 1947—No. 88 of 1948)— ayinaiee

National Security Act 1939-1946 (No. 15 of 1939—No. 15 of 1946), s. 19—

Women's Employment Act 1942-1946 (No. 55 of 1942—No. 77 of 1946), Sched— Ane Col

Women's Hmployment Regulations 1946, reg. 6—National Security (Liquid Fuel) Metiernan,

Regulations (S.R. 1940 No. 2931944 No. 113), reg. 51—National Security (War Webb JJ.

Service Moratoriwm) Regulations (S.R. 1942 No. 437—1948 No. 109), regs. 304-3049.

H.C. or A.

1949, ee Tue Kine v% Fosrer.

HIGH COURT [1949.

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

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