Hume v Higgins [1949] HCA 5

High Court of Australia Latham C.J. Rich, Dixon, Williams and Webb JJ. Hume v Higgins [1949] HCA 5

ORDER Order of Supreme Court set aside. Appeal from Court of Petty Sessions dismissed.

Cur. adv. vult.

The following written judgments were delivered:—

March 18 Latham C.J.

The appellant Ronald John Grant Hume was on 22nd May 1948 convicted by a magistrate of an offence against reg. 21 (b) of the Economic Organization Regulations which were originally made under the National Security Act 1939-1940. Regulation 21 provides that a person shall not enter into any transaction or make any contract or arrangement for the purpose of or which has the effect of in any way, whether directly or indirectly, defeating, evading or avoiding or preventing the operation of, inter alia, Part III. of the Regulations. Part III. of the Regulations contains reg. 6, which provides that, except as provided by Part III., a person shall not, without the consent in writing of the Treasurer, purchase any land. It was proved that Hume made an arrangement with one Stone to sell a hotel for £16,000, but that of this sum £4,400 was to be paid in cash, and that a written contract for sale at the price of £11,600 should be executed by the parties and produced for the consent of the Treasurer. It is not disputed that this arrangement was an infringement of reg. 21 if that regulation was in force at the relevant time.

Hume appealed to the Supreme Court and at the hearing contended, inter alia, that the regulation was invalid because it could not be supported under s. 51 (vi.) of the Commonwealth Constitution—the defence power. It is agreed between the parties that by reason of this contention there arose a question as to the limits inter se of the constitutional powers of the Commonwealth and the States. Accordingly, under the Judiciary Act 1903-1948, s. 40A, it was the duty of the Supreme Court to proceed no further in the cause, and the cause was without any order removed to the High Court. Under the Judiciary Act, s. 41, it is the duty of the High Court to proceed in the cause as if it originally commenced in the High Court and the same proceedings had been taken in the cause in the High Court as had been taken in the court of the State prior to its removal. Under s. 152 (3) of the Tasmanian Justices Procedure Act 1919-1947 the appeal to the Supreme Court is by way of rehearing. Accordingly, the proceeding in this Court is an appeal by way of rehearing. The Court must therefore apply the law as it exists at the present time: Victorian Stevedoring and General Contracting Co. Pty. Ltd. and Meakes v. Dignan [1] . A person cannot be convicted under a law which has been repealed or which has expired unless there is some statutory provision preserving liability: see the cases cited in Halsbury's Laws of England, 2nd ed., vol. 31, p. 512, which establish the proposition in the text: "After the expiration of a statute, in the absence of provision to the contrary, no proceedings can be taken on it, and proceedings already commenced ipso facto determine." Where a statute or a regulation is repealed the Acts Interpretation Act 1901-1948, ss. 8 and 50, preserve liabilities incurred before the repeal. These provisions, however, do not apply to the present case. It is contended, not that the relevant statute or regulation has been repealed, but that they have ceased to be in operation by reason of the contraction of the defence power after the cessation of active hostilities.