Wishart v Fraser [1941] HCA 8

Wishart v Fraser [1941] HCA 8

Section 5 of the National Security Act 1939-1940 is a valid conferral of regulation-making power to the Executive for defence purposes; the regulation under which Wishart was convicted falls within this power; Attorney-General's consent was properly evidenced; and the factual inference of intent to cause disaffection was open to the trial court and appellate court. The conviction, affirmed by Quarter Sessions, stands and this court may not review the magistrate's conviction directly when it has been confirmed by a higher court.

Parties
Applicant: John Royston Wishart; Respondent: Jack Lyall Fraser; Magistrate: Frederick Donald Hercules Sutherland; Attorney General for the Commonwealth: William Morris Hughes
Jurisdiction
Australia
Procedural Posture
Criminal / Application for Special Leave to Appeal and Application for Writ of Prohibition
Outcome
Special leave to appeal refused; rule nisi discharged.
Legal Topics
Delegation of Legislative Powers, Defence Power, Statutory Interpretation, Federal Jurisdiction, Appellate Procedure, Validity of Regulations
Constitutional Law Criminal Law Delegation of Legislative Powers Defence Power Statutory Interpretation Federal Jurisdiction Appellate Procedure Validity of Regulations

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 27 Party arguments 2 Amounts and remedies 2
Sign in to unlock

Parties

John Royston Wishart

Applicant

Jack Lyall Fraser

Respondent

Frederick Donald Hercules Sutherland

Magistrate

William Morris Hughes

Attorney General for the Commonwealth

Procedural Posture

Criminal / Application for Special Leave to Appeal and Application for Writ of Prohibition

Legal Issues

  1. 1 Whether s.5 of the National Security Act 1939-1940 is an invalid delegation of legislative power
  2. 2 Whether regulation 41 (1)(b) of the National Security (General) Regulations is ultra vires s.5
  3. 3 Whether the Attorney-General's consent to prosecute was properly obtained

Ratio Decidendi

Section 5 of the National Security Act 1939-1940 is a valid conferral of regulation-making power to the Executive for defence purposes; the regulation under which Wishart was convicted falls within this power; Attorney-General's consent was properly evidenced; and the factual inference of intent to cause disaffection was open to the trial court and appellate court. The conviction, affirmed by Quarter Sessions, stands and this court may not review the magistrate's conviction directly when it has been confirmed by a higher court.

Court Disposition

Special leave to appeal refused; rule nisi discharged.

Orders

  • Special leave to appeal from order of Court of Quarter Sessions refused.
  • Rule nisi for writ of prohibition in respect of order of magistrate discharged.