Opinion Number. 1638


power of commonwealth to make regulations inconsistent with state laws for supply on any day of goods and services to defence forces: effect of inconsistency: defence power

Key Legislation

Australian Military Regulations reg 201: Defence Act 1903 s 124: Constitution ss 51(vi), 109

The Secretary, Prime Minister

The Secretary, Prime Minister’s Department, has referred to me for advice the following communications addressed by the Premier of the State of Tasmania to the Prime Minister of the Commonwealth:

I am in receipt of your letter of 7th June with reference to the proposal of the Commonwealth Government that the regulations under the Defence Acts be amended to provide that, notwithstanding the laws of the States, it shall be lawful for any person to sell or supply goods or services to the Defence Forces on any day (including any Sunday or holiday) and at any hour. I note that you now inform me that the Governments of New South Wales, Victoria, Queensland and South Australia have agreed to the proposed new regulation and that the matter is still the subject of correspondence with the Western Australian Government; and further, that you emphasise that the requirements of the Defence Forces under the new provision will be restricted to actual needs, and that it is unlikely that any embarrassment will be caused to the States.

At the time of my original communication to you on this question, I was not greatly disturbed by the practical results of the operation of the proposed regulation, which did not seem to be very serious, but rather I was concerned because your proposal raised issues of great importance in relation to the possible conflict of the ordinary civil law and the defence requirements in time of peace, and did not appear to be required by military necessity. I am still of that opinion. I cannot, therefore, on behalf of this State, assent to action on behalf of the Commonwealth which would have the effect of overriding the ordinary law of the State regulating matters within the competence of the States. As I stated previously I am prepared to consider, in consultation with the other States, appropriate action to render restrictions contained in State laws inapplicable to transactions with the Defence Forces where reasonably required by the Commonwealth, but this course does not appear to be suitable to the Commonwealth, for reasons which do not appear from the correspondence.

I should add that if any such regulation is made and acted upon the Government will have to consider whether it would not be its duty to raise the question of the constitutional validity of the enactment. I say this having regard particularly to recent decisions of the High Court, reported since my previous letter to you. I refer to the cases of West v. Commissioner of Taxation (56 C.L.R. 657) and Victoria v. Commonwealth 1938 Argus L.R. 97,(1) and particularly to the opinions of Mr. Justice Evatt in these decisions. I must say that His Honour’s expression–‘manufacturing inconsistency’ between Commonwealth legislation and that of the States–appears to be particularly apt in this case.

The Secretary, Prime Minister’s Department, has also referred to me, in connexion with the same proposal, a communication from the Premier of the State of Western Australia to the Prime Minister of the Commonwealth:

I have to acknowledge your letter of the 7th June, A. 337/1/3, concerning the proposal of the Commonwealth Government to make a regulation to provide for the overriding of State laws in relation to the supply on any day of goods and services to the Defence Forces.

This matter has been given further consideration by my Government, but it is regretted that we are unable to agree to the proposed regulation. It is still felt that the adoption of the special permit system previously suggested is the preferable method of dealing with the difficulty.

The permit could, of course, operate continuously and thus any delay or inconvenience would be obviated. At the same time, the Government would be in a position to withdraw the permit if circumstances warranted its withdrawal, a safeguard which is considered very necessary.

It is proposed to amend regulation 201 of the Australian Military Regulations by adding the following subregulation:

(6) It shall be lawful, notwithstanding any law of a State, for any person, if so required by proper military authority, to sell or supply any goods or services to the Military Forces or any member thereof on any day (including any Sunday or holiday) and at any hour.

It is proposed also to include substantially similar provisions in the Naval Forces Regulations and the Air Force Regulations.

In the course of a joint judgment in the Engineer’s case (28 C.L.R. 129), Knox, C.J., Isaacs, Rich and Starke, J.J., said:

That section [section 109 of the Constitution] which says ‘when a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency be invalid,’ gives supremacy, not to any particular class of Commonwealth Acts but to every Commonwealth Act, over not merely States Acts passed under concurrent powers but all States Acts, though passed under an exclusive power, if any provisions of the two conflict, as they may–if they do not, then cadit quaestio.

In the recent case of West v. Commissioner of Taxation (NSW) (56 C.L.R. 657), referred to by the Premier of Tasmania, Latham, C.J., in the course of his reasons for judgment, cites certain prior decisions of the High Court to:

show that the Commonwealth Parliament may, if it thinks proper, by apt legislation exclude the application of State law in relation to a matter entrusted by the Constitution to the control of the Commonwealth.

The case of Pirrie v. McFarlane (36 C.L.R. 170) is one of the cases cited by the Chief Justice. In that case the High Court, by a majority, held that, in the absence of any provision in a Commonwealth law giving to members of the Defence Force immunity from State laws regulating the use of motor-cars, members of the Defence Force were not exempt from State legislation requiring the drivers of motor-cars to be licensed.

In West’s case the Chief Justice, reviewing the decision in Pirrie v. McFarlane, refers to certain passages in the reasons for judgment of Knox, C.J. and the several Justices to illustrate the fact that the opinion of the majority of the Court (Knox, C.J., Higgins and Starke, J.J.) and of the dissenting Justices (Isaacs and Rich, J.J.) concur in accepting the principle that it is within the power of the Commonwealth Parliament to legislate so as to exclude the application of State law in relation to matters which are within the sphere of Commonwealth legislative power.(2)

With the exception of Evatt, J., the other Justices in West’s case do not express any opinion that appears inconsistent with the principle enunciated by the Chief Justice.

In his reason for judgment in West’s case, Evatt, J. comes to the conclusion, in relation to the question there decided, that the Commonwealth Parliament has no legislative power to create an immunity in relation to Commonwealth officers or pensioners from the general indiscriminatory taxation legislation of a State. In the course of his review of the previously decided case of Pirrie v. McFarlane (supra) the following passage occurs:

I do not see how the grant of general exemptions from obedience to the requirements of State traffic legislation could possibly be regarded as a valid law with respect to defence; although, if the legislation were limited to occasions of emergency or military necessity, the results might be different.(3)

It is noteworthy that the learned Justice distinguishes between legislation in purported exercise of the defence power but which, in his opinion, cannot be directly related thereto, and legislation which is dictated by military necessity.

In the State of Victoria v. Commonwealth (44 A.L.R. 97), to which the Premier of Tasmania also refers, the High Court discussed the question of inconsistency of Commonwealth and State laws. In this case, Dixon, J. (at p. 100) stated the principle:

When a State law, if valid, would alter, impair or detract from the operation of a law of the Commonwealth Parliament, then to that extent it is invalid.(4)

In the course of his reasons for judgment, Evatt, J. said:

The limits of State powers are to be found in the Commonwealth Constitution itself, rather than in Commonwealth enactments.(5))

The source of the legislative power of the Commonwealth in relation to defence is placitum vi of section 51 of the Constitution. Thereunder the Commonwealth Parliament is empowered, subject to the Constitution, to make laws for the peace, order and good government of the Commonwealth, 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. Section 124 of the Defence Act 1903–1934, which was enacted in pursuance of this power, authorizes the Governor-General to make regulations prescribing, in addition to certain specified matters, all matters which are necessary or convenient to be prescribed for securing the discipline and good government of the Defence Force or for carrying out or giving effect to the Act.

I think it would be accepted that, in the words of Isaacs, J. in Pirrie v. McFarlane (supra, at p. 208):

Defence is not confined to active warfare. Training is an essential part of it.

I assume that evidence could be adduced to maintain that the daily delivery of supplies to military camps, etc., is necessary or desirable in connexion with the training and maintenance of the Defence Forces, and that the operation of State laws relating to trade holidays interferes with the service of necessary supplies to the Forces and so hampers the activities, impairs the efficiency or interferes with the training of Defence Forces.

In the light of the authorities quoted, I am of opinion that the making of the
proposed regulation, the subject of this advice, under the general regulation making power conferred by the Defence Act would be a valid exercise of the defence power.

[Vol 31, p. 623]

(1) (1937) 58 CLR 618.

(2) (1937) 56 CLR 657, 671–672.

(3) (1937) 56 CLR 657, 709.

(4) (1937) 58 CLR 618, 630.

(5) (1937) 58 CLR 618, 638.