Opinion Number. 697



Key Legislation

CONSTITUTION, ss. 51 (ii), (vi), 101

The Prime Minister

The Prime Minister asks to be advised as to the powers of the Inter-State Commission in respect to inquiries which it has been asked to make as to war profits, and prices of commodities.

This request for advice arises out of a memorandum by the Commission, in which they express the view that the decision of the Privy Council in the case of Attorney-General for the Commonwealth v. Colonial Sugar Refining Co. Ltd 17 C.L.R. 644 leads to the conclusion that these subjects are, for the most part, outside the scope of the Commission's power to compel disclosure.

The legal question is a difficult one, chiefly owing to the obscurity of the Privy Council's judgment in the case mentioned. Passages in the judgment appear to be based on the view that the Commonwealth Parliament has power to authorise compulsory disclosure with regard to matters specified in the Commonwealth

statute, and being within the scope of the legislative power. Other passages suggest the view that the Parliament cannot authorise compulsory disclosure except to assist the execution of some Commonwealth Act. I do not think it possible to say with confidence which of these views the judgment was really intended to express.

It appears to me, however, that, whichever view the Privy Council may have taken, it does not conclude the matter; because such a decision would be a decision upon a question as to the limits inter se of the constitutional powers of the Commonwealth and those of the States. Unless, therefore, the decision came within the scope of a certificate of submission by the High Court, it would not be binding on the High Court.

Now no such question as this was certified to the Privy Council by the High Court. The High Court decided that the Royal Commissions Act was valid so far as related to inquiries with respect to any of the subjects enumerated in section 51 of the Constitution; but they rejected the contention of the Commonwealth that- inasmuch as there was power to extend the legislative field of the Commonwealth by amending the Constitution-the power of inquiry must extend to subjects as to which the Commonwealth at present had no legislative power.

It was on this latter question that the Commonwealth appealed; and the certificate of the High Court was limited to that question. That is to say, the question which was certified by the High Court as proper to be decided by the Privy Council was whether the High Court had too narrowly construed the legislative power of the Commonwealth by excluding considerations of the possible extension of the Federal legislative power. It did not cover the question whether the High Court had too broadly interpreted the constitutional power in deciding that the Acts as construed were valid. Consequently, whatever the Privy Council judgment may mean, it does not impair the judgment of the High Court on the latter point.

I am, therefore, unable to concur with the Commission in the limited view which, under stress of the Privy Council judgment, they take of their powers of investigation.

As regards their power to investigate war profits, that appears to me to be incidental to the taxing power. It is an inquiry into the taxable resources of the people.

It is also, conceivably, covered by the defence power. That power cannot be restricted to the raising, maintaining, and control of naval and military forces. Success in a great war involves the marshalling of all the material resources of the country for use in the war, and husbanding them to prevent their exhaustion during the war. The question of war profits has an intimate relation both to economy in the conduct of the war, and to the recruiting of soldiers for the war.

The same arguments extend to inquiries as to the price of commodities; and in my opinion both these subjects of inquiry are within the powers of the Commission.

This disposes of the legal question; but there remains a practical question of some importance. That is, whether an inquiry as to war profits is, under existing circumstances, likely to lead, expeditiously, to useful results.

Such an inquiry must necessarily be an inquiry into a multitude of individual cases. In order to lead to any reliable generalisation, it must cover a very wide area, and be very prolonged. It will be the more prolonged if, as is possible, the power of the Commission is challenged in the courts.

So far as the object of the inquiry is to ascertain taxable resources, it can be more quickly and more thoroughly effected by the passage of a taxing Act, which will require all persons in the Commonwealth to make a return of their war profits-as defined by the Act.

This aspect of the matter, which is ably developed in the Commission's memorandum, appears to me to be worthy of careful consideration.

[Vol. 14, p. 271]

  1. Date in Opinion Book incomplete.
  2. This opinion is unsigned in the Opinion Book. but it is attributed to Mr Mahon.