I refer to your request for advice regarding the adequacy of the Commonwealth’s constitutional powers to support the continuance of petrol, butter and tea rationing until 31st December, 1949.

(2)  All three rationing systems would have to depend primarily on the defence power as applied to the transition from war to peace, though in the case of petrol and butter some further support might possibly be derived from the external affairs power. On the whole I would think that petrol rationing would be in the strongest constitutional position of the three.

(3)  In estimating the probability that any given exercise of the defence power would successfully withstand challenge in the High Court, much would depend on the nature of the challenge and the circumstances prevailing at the time. There could be no certainty of success in any one of the three.

(4)  Accordingly, I would strongly support your own tentative view that, if it were decided as a matter of policy to ask the States to put beyond doubt the Commonwealth’s power to continue petrol rationing, by a reference of the relevant matter under section 51(xxxvii) of the Constitution it would really be desirable to ask for a reference in relation to all three commodities.

(5)  If present conditions continue, I think the chances of successfully resting petrol rationing in 1949 on the defence power would be strong. The fact that the wartime butter and cheese export agreement of 1945 with the United Kingdom was to operate only until 30th June, 1948, and that the making of this agreement while hostilities were still in progress was given prominence among the High Court’s reasons¹ for supporting the recent order prohibiting the sale of cream,² may rather weaken the position of butter under the extended agreement now being concluded. But I would estimate as reasonably good the chances of successfully withstanding an attack on butter rationing in 1949, so long as present conditions in Britain are continuing. The constitutional fate of tea rationing would depend on different and more general considerations. But I think a challenge could probably be resisted with a fair chance of success. I make these estimates, with a good deal of trepidation, as some foundation, however sketchy, for the consideration of the question of policy referred to above in paragraph 4.

(6)  I have had an opportunity of discussing the substance of this letter with the Acting Attorney-General who agrees with the general line followed above.

[Vol. 38, p. 156]

¹ Sloan v Pollard [1947] HCA 51; (1947) 75 CLR 445.

² Cream (Disposal and Use) Order (published in Commonwealth Gazette on 26 August 1947) made under reg 9 of National Security (Food Control) Regulations.