de Mestre v Chisholm [1944] HCA 8

de Mestre v Chisholm [1944] HCA 8

The majority held that the relevant National Security (Supplementary) Regulations reg. 45 (1) and (1a) and the Premier's Order made thereunder are valid. The regulation and order sufficiently relate to the defence power, as regulation of intoxicating liquor, including requiring licensed bars to remain open during specified hours, contributes to discipline and efficiency during wartime, and the Commonwealth Parliament is accorded wide latitude in such matters. Thus the conviction was upheld.

Parties
Applicant: Maurice John Victor de Mestre; Respondent: Chisholm; Respondent: Sergeant of police (not named)
Jurisdiction
Australia
Procedural Posture
Application for Writ of Prohibition (removed From State Court) / High Court Hearing on Legality of Order and Conviction, Following Removal From NSW Supreme Court
Outcome
Application dismissed (order nisi discharged); conviction upheld (by majority; Starke J. dissenting)
Legal Topics
Validity of Regulations Under Defence Power, National Security Regulations, Delegation of Power to State Premier, Effect of Regulations on State Laws, Intoxicating Liquor—control and Regulation
Constitutional Law Administrative Law Defence Power National Security Validity of Regulations Under Defence Power National Security Regulations Delegation of Power to State Premier Effect of Regulations on State Laws +1 more

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Parties

Maurice John Victor de Mestre

Applicant

Chisholm

Respondent

Sergeant of police (not named)

Respondent

Procedural Posture

Application for Writ of Prohibition (removed From State Court) / High Court Hearing on Legality of Order and Conviction, Following Removal From NSW Supreme Court

Legal Issues

  1. 1 Whether the National Security (Supplementary) Regulations reg. 45 (1) and (1a), and related Premier's Order, are authorized by the National Security Act and within the defence power under s. 51(vi) of the Constitution
  2. 2 Whether the Premier's Order (requiring licensed premises to keep bars open during specified hours) is within the power conferred by the regulation
  3. 3 Whether the regulation and the order relate sufficiently to the defence of the Commonwealth to be valid

Ratio Decidendi

The majority held that the relevant National Security (Supplementary) Regulations reg. 45 (1) and (1a) and the Premier's Order made thereunder are valid. The regulation and order sufficiently relate to the defence power, as regulation of intoxicating liquor, including requiring licensed bars to remain open during specified hours, contributes to discipline and efficiency during wartime, and the Commonwealth Parliament is accorded wide latitude in such matters. Thus the conviction was upheld.

Court Disposition

Application dismissed (order nisi discharged); conviction upheld (by majority; Starke J. dissenting)

Orders

  • Order nisi discharged with costs in High Court and Supreme Court.