I draw your attention to the abovenamed Order, which was made by the Minister for War Organization of Industry on 2nd December, but has not yet been gazetted.

In making the order the Minister has purported to act under regulation 59 of the National Security (General) Regulations. That regulation contains, inter alia, the following provisions made by Statutory Rules 1942 No. 373:

(4A) If it appears to a Minister to be necessary so to do in the interests of the public safety, the defence of the Commonwealth or the efficient prosecution of the war, or for maintaining supplies and services essential to the life of the community, he may, by order, provide for regulating, restricting or prohibiting the employment of–

1. the persons included in any class of persons specified in the order; or
2. the persons engaged in any class of employment specified in the order.

(4B) An order made under the last preceding sub-regulation may–

1. be made to apply either throughout Australia or to any part thereof;
2. make different provision with respect to different classes of employment;
3. exempt any classes of persons or any specified persons or any classes of employers or specified employers from the operation of all or any of the provisions of the order; and
4. contain such incidental and supplementary provisions as are necessary or expedient for the purposes of the order.

The order which has been made relates to domestic servants, an expression which, according to the draft order in this office, is defined to include chauffeurs, gardeners, laundresses, washerwomen, butlers, men-servants, cooks, parlourmaids, housemaids, waitresses, nursemaids, kitchenmaids, companions, housekeepers, or any other person, however described, employed for the purpose of carrying out or assisting to carry out any duties usually carried out by one or more of those persons or any other domestic or household duties. It is specifically defined as excluding a large number of employees such as those employed in hotels, colleges, etc.

The order proceeds to provide that, except as provided by paragraph 4 of the order, a person shall not, after 10th January, 1943, employ or continue to employ any person as a domestic servant unless the employer:

1. holds a permit authorising him to employ that person which permit is still in force, and the employment is in accordance with the conditions of the permit; or
2. has made application pursuant to paragraph 5 of the order, and the application has either not been refused, or, if refused, a period of fourteen days has not elapsed after such refusal.

The paragraph does not apply to the employment of domestic servants in certain special classes of cases, such as those where there are three or more children under the age of ten in the household, or the employment does not last for more than 24 hours in any one week. These cases are specified in paragraph 4(2) of the order.

In my view, the order is within the terms of regulation 59, sub-regulations (4A) and (4B) quoted above, and the question arises whether the regulation is a valid exercise of the power conferred by the National Security Act, section 5. The validity of section 5 is not now open to challenge–Wishart v. Fraser, 64 C.L.R. 470.

With respect to the question whether the regulation is a valid exercise of the power conferred by the National Security Act, s. 5, I point out that there is, in that section, no express power to make such a regulation. The section, however, gives the Governor-General a general power to make regulations for securing the public safety and the defence of the Commonwealth and the Territories of the Commonwealth.

The question, then, to be determined is whether a regulation empowering the promulgation of an order making it an offence, in certain circumstances, for a private person to employ a domestic servant in his home, is a regulation for securing the public safety and the defence of the Commonwealth and its Territories. This question involves a consideration of the recent Holiday case, Victoria v. Commonwealth.⁽¹⁾ In that case the Court held invalid certain regulations made by the Governor-General in relation to the performance by State employees of work upon Show Day and Cup Day. Some of the employees in question were engaged in the performance of work not connected with the war.

In the course of his judgment, Latham, C.J., said that in determining the question whether a law is a valid exercise of legislative power ‘the question always must be–“Is the challenged law really (i.e., in substance) a law with respect to the subject matter in question?”. If the answer is in the negative the law cannot be valid under the power to make laws with respect to that subject matter. … If the alleged connexion between a particular power of legislation and the subject of defence is either non-existent or so attenuated as to be practically non-existent, the legislation cannot be supported under that power.’⁽²⁾ In the course of the same case Williams, J., said, ‘I am unable to see how it can possibly be said that it can conceivably aid in the prosecution of the war for the Commonwealth to require employers or employees, either private or State, who are not engaged upon work in any way connected with or incidental to the production or repair of war materials to work upon such days’.⁽³⁾

In my view, having regard to the principles underlying the judgments in question in this case, the regulation now in question, if and in so far as it purports to authorise the making of an order prohibiting or restricting the employment of domestic servants in private homes, is not a regulation for securing the public safety and defence of the Commonwealth and its Territories. It may be that the object of the order is to cause persons to become unemployed in which case regulation 14A of the Man-Power Regulations will apply, and the Director-General of Man-Power may, under regulation 15, direct the person to accept such employment as the Director-General specifies.

I think, however, that the question of the validity of the regulation, in so far as it empowers the making of such an order as that now under notice, must be determined without reference to the Man-Power Regulations. Regulation 59 of the General Regulations is not incorporated with the Man-Power Regulations. The question is–would regulation 59, in so far as it purports to authorise the making of such an order, be valid if the Man-Power Regulations were not in existence? In my view it would not; and, in the absence of some clear connexion between the two, I do not think that the fact that the Man-Power Regulations are in existence and may be applied after domestic servants have become unemployed in consequence of the making of the order, affects the question.

It may be that a regulation could validly be made requiring some or all persons engaged in domestic or other service to register for employment in essential industry or for service in the fighting services, or in connexion therewith. But I do not think that a regulation, standing alone, giving power to prohibit a person, not engaged in war service, from employing another person, also not engaged in war service, in a capacity not connected with the war, is a valid exercise of the power to make regulations for securing the public safety and the defence of the Commonwealth and its Territories.

In my opinion, therefore, the order which has been made in relation to domestic servants is not authorised by section 5 of the National Security Act and regulation 59 of the National Security (General) Regulations.

[Vol. 34, p. 547]

(1) R v Commonwealth Court of Conciliation and Arbitration; Ex parte State of Victoria (Public Service case) (1942) 66 CLR 488.

(2) 66 CLR 488 at 508; 509.

(3) 66 CLR 488 at 532.

9 December 1942

Minister for War Organization of Industry:

With reference to the Restriction of Employment (Domestic Servants) Order which was, I understand, made by you on 2nd December, I desire to inform you that the Solicitor-General has given an opinion that, in view of the principles laid down by the High Court in the recent holidays case (Victoria v. Commonwealth), this order is not valid.

After giving the matter careful consideration, I am satisfied that the view expressed by the Solicitor-General is correct.

[Vol. 34, p. 547]