R v Foster; Ex parte Rural Bank of New South Wales; Wagner v Gall; Collins v Hunter [1949] HCA 16

High Court of Australia Latham C.J. Rich, Dixon, McTiernan, Williams and Webb JJ. R v Foster; Ex parte Rural Bank of New South Wales; Wagner v Gall; Collins v Hunter [1949] HCA 16

ORDER R. v. Foster and Others; Ex parte Rural Bank of New South Wales. Order absolute without costs. Wagner v. Gall. Complaint dismissed. No order as to costs of proceedings in the Court of Petty Sessions. Complainant to pay defendant's costs of proceedings in the High Court. Collins v. Hunter and Another.

(a) Declared that regs. 30A to 30AF inclusive of the National Security (War Service Moratorium) Regulations are void.

(b) Declare that the plaintiff is entitled as against the defendants to retain possession of the premises referred to in the statement of claim.

(c)

Enjoin the defendants and each of them from breaking and entering the premises or ejecting the plaintiff from the premises or taking possession thereof or otherwise interfering with her possession of the premises.

Defendant Tippett to pay plaintiff's costs of action, including costs of proceedings in the Full Court.

R. v. Foster and Others; Ex parte Rural Bank of New South Wales:

Cur. adv. vult.

Cur. adv. vult.

Cur. adv. vult.

The Court delivered the following written judgment:

June 6 Latham C.J., Rich, Dixon, McTiernan, Williams and Webb JJ.

These three matters raise questions with respect to the scope of the defence power after the actual fighting in a war has ceased. The questions relate to the sufficiency of the power to sustain the continuance in operation of:—

(i) The Women's Employment Regulations;

(ii) The National Security (Liquid Fuel) Regulations;

(iii) Regs. 30A to 30AF of the National Security (War Service Moratorium) Regulations.

The fighting in the recent war ceased in September 1945, over three years ago. The power of the Commonwealth Parliament to make laws with respect to defence is contained in s. 51 (vi.) of the Constitution—a power to make laws with respect to—"The naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth" and s. 51 (xxxix.) with respect to—"Matters incidental to the execution of any power vested by this Constitution in the Parliament or in either House thereof, or in the Government of the Commonwealth, or in the Federal Judicature, or in any department or officer of the Commonwealth."