Andrews v Howell [1941] HCA 20

Andrews v Howell [1941] HCA 20

The National Security (Apple and Pear Acquisition) Regulations are a valid exercise of the regulation-making power conferred by s 5(1) of the National Security Act 1939-1940 and fall within the scope of the defence power during wartime as interpreted by the High Court. The regulations neither contravene s 92 of the Constitution (freedom of interstate trade and commerce), because they are not aimed at interstate trade but only incidentally affect it, nor do they provide for acquisition otherwise than on just terms as required by s 51(xxxi), since the right to compensation is sufficiently secured. Therefore, the regulations and the conviction of the appellant are valid.

Parties
Appellant: Geoffrey Basil Andrews; Informant/respondent: David Thomas Howell
Jurisdiction
Australia
Procedural Posture
Appeal by Order Nisi (order to Review) / On Appeal From Conviction in Court of Petty Sessions of Victoria
Outcome
Appeal dismissed (majority); order nisi discharged; Starke J dissenting.
Legal Topics
Defence Power, Regulation Making Power, Acquisition of Property on Just Terms, Freedom of Interstate Trade and Commerce, Ultra Vires, Validity of Regulations
Constitutional Law Defence Power Regulation Making Power Acquisition of Property on Just Terms Freedom of Interstate Trade and Commerce Ultra Vires Validity of Regulations

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Parties

Geoffrey Basil Andrews

Appellant

David Thomas Howell

Informant/respondent

Procedural Posture

Appeal by Order Nisi (order to Review) / On Appeal From Conviction in Court of Petty Sessions of Victoria

Legal Issues

  1. 1 Whether National Security (Apple and Pear Acquisition) Regulations are a valid exercise of regulation-making power under the National Security Act 1939-1940 and within the defence power under the Constitution.
  2. 2 Whether these regulations contravene s 92 (freedom of interstate trade and commerce) of the Constitution.
  3. 3 Whether the acquisition of property is on just terms as required by s 51(xxxi) of the Constitution.

Ratio Decidendi

The National Security (Apple and Pear Acquisition) Regulations are a valid exercise of the regulation-making power conferred by s 5(1) of the National Security Act 1939-1940 and fall within the scope of the defence power during wartime as interpreted by the High Court. The regulations neither contravene s 92 of the Constitution (freedom of interstate trade and commerce), because they are not aimed at interstate trade but only incidentally affect it, nor do they provide for acquisition otherwise than on just terms as required by s 51(xxxi), since the right to compensation is sufficiently secured. Therefore, the regulations and the conviction of the appellant are valid.

Court Disposition

Appeal dismissed (majority); order nisi discharged; Starke J dissenting.

Orders

  • Order nisi discharged.
  • Appeal dismissed with costs.