Roche v Kronheimer

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Roche v Kronheimer
Coat of Arms of Australia.svg
Court High Court of Australia
Decided 23 March 1921 (decision announced)
2 June 1921 (reasons delivered)
Citation(s) [1921] HCA 25, (1921) 29  CLR  329
Case opinions

(5:0) the Treaty of Peace Act and the Treaty of Peace Regulations made under the Act were valid under the defence power

Contents

(1:0) the Act and regulations were also valid under the external affairs power per Higgins J
Court membership
Judge(s) sitting Knox CJ, Higgins, Gavan Duffy, Rich and Starke JJ

Roche v Kronheimer [1] is an early case in which the High Court considered the defence power and external affairs power of the Commonwealth under the Australian Constitution and the Parliament's power to delegate certain legislative powers to the Executive. The Court concluded that Federal Parliament had the power to implement the Treaty of Versailles under the defence power and to delegate that implementation to the Governor-General. Higgins J also saw it as a valid exercise of the external affair power.

High Court of Australia supreme court

The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the states, and the ability to interpret the Constitution of Australia and thereby shape the development of federalism in Australia.

Section 51(vi) of the Australian Constitution, commonly called the defence power, is a subsection of Section 51 of the Australian Constitution that gives the Commonwealth Parliament the right to legislate with respect to the defence of Australia and the control of the defence forces. The High Court has adopted a different approach to the interpretation of the defence power, which emphasises the purpose of the legislation, primarily the defence of Australia, rather than the subject matter.

Section 51(xxix) of the Australian Constitution is a subsection of Section 51 of the Australian Constitution that gives the Commonwealth Parliament of Australia the right to legislate with respect to "external affairs".

Background

The Treaty of Versailles was signed for Australia by the Prime Minister W M Hughes and Minister for the Navy Joseph Cook 28 June 1919. [2] [3] [4] The Parliament passed the Treaty of Peace Act 1919 to give the Government power to give effect to the treaty. [4] The Act consisted of just one page and the operative terms were that:

Prime Minister of Australia executive head of the Government of Australia

The Prime Minister of Australia is the head of government of Australia. The individual who holds the office is the most senior Minister of State, the leader of the Federal Cabinet. The Prime Minister also has the responsibility of administering the Department of the Prime Minister and Cabinet, and is the chair of the National Security Committee and the Council of Australian Governments. The office of Prime Minister is not mentioned in the Constitution of Australia but exists through Westminster political convention. The individual who holds the office is commissioned by the Governor-General of Australia and at the Governor-General's pleasure subject to the Constitution of Australia and constitutional conventions.

Billy Hughes Australian politician, seventh prime minister of Australia

William Morris Hughes, was an Australian politician who served as the seventh Prime Minister of Australia, in office from 1915 to 1923. He is best known for leading the country during World War I, but his influence on national politics spanned several decades. Hughes was a member of federal parliament from Federation in 1901 until his death, the only person to have served for more than 50 years. He represented six political parties during his career, leading five, outlasting four, and being expelled from three.

Joseph Cook Australian politician, sixth Prime Minister of Australia

Sir Joseph Cook, was an Australian politician who served as the sixth Prime Minister of Australia, in office from 1913 to 1914. He was the leader of the Commonwealth Liberal Party from 1913 to 1917, after earlier serving as the leader of the Anti-Socialist Party from 1908 to 1909.

2. The Governor-General may make such regulations and do such things as appear to him to be necessary for carrying out and giving effect to the provisions of Part X. (Economic Clauses) of the said Treaty.

3. The regulations may provide for the punishment of offences against the regulations, by the impositions of the following penalties :-

(a) If the offence is prosecuted summarily-a fine not exceeding Five hundred pounds or imprisonment for any term not exceeding twelve months; or both;
(b) If the offence is prosecuted upon indictment-a fine of any amount or imprisonment for not more than seven years, or both

The Governor-General made the Treaty of Peace Regulations, which made extensive provisions, including regulation 20 which set out how the property of German nationals was charged for payments in respect of the claims of British nationals, including subregulation (5) which provided that the Minister for Trade and Customs could make an order vesting the property in the Public Trustee. [5]

Joseph Roche and the other plaintiffs ("the Executors") were the executors of the estate of Joseph Kronheimer, who had died in Victoria in 1914. Max Kronheimer and the other defendants were German nationals who were beneficiaries under the estate ("the German beneficiaries"). The executors asked the Supreme Court of Victoria for advice as to their duties as executors. The German beneficiaries argued that the Treaty of Peace Act 1919 was invalid. Hood J referred the questions to the High Court pursuant to sections 18 and 40A of the Judiciary Act 1903 . [1]

Supreme Court of Victoria superior court of the state of Victoria, Australia

The Supreme Court of Victoria is the superior court for the State of Victoria, Australia. It was founded in 1852, and is a superior court of common law and equity, with unlimited jurisdiction within the state. Those courts lying below it include the County Court of Victoria and the Magistrates' Court of Victoria. The Victorian Civil and Administrative Tribunal, which is not a court, serves a judicial function. Above it lies the High Court of Australia. This places it around the middle of the Australian court hierarchy. The building itself is on the Victorian Heritage Register.

Judiciary Act 1903 Act of the Parliament of Australia, currently registered as C2018C00347

The Judiciary Act 1903 regulates the structure of the Australian judicial system and confers jurisdiction on Australian federal courts. It is one of the oldest pieces of Australian federal legislation and has been amended over 70 times.

Section 51 of the Australian Constitution gives the Commonwealth Parliament the right to legislate with respect to :

"(vi) the naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth"; and
"(xxix) external affairs". [6]

Submissions in the High Court

The German beneficiaries were represented by Owen Dixon who argued that the defence power did not include a power to make war or to terminate it by a treaty of peace. The external affairs power was limited to matters relating to affairs external to the Australia and did not enable laws to be made as to matters within Australia. The delegation of the legislative power was invalid -Just as the Constitution does not permit the judicial power of the Commonwealth to be vested in any tribunal other than the High Court and other Federal Courts [7] [8] so the vesting of the legislative power in any other body than Parliament was prohibited. Further regulation 20(5) was invalid as it purported to confer judicial power upon the Minister. [1]

Owen Dixon Australian judge and diplomat

Sir Owen Dixon was an Australian judge and diplomat who served as the sixth Chief Justice of Australia. A judge of the High Court for thirty-five years, Dixon was one of the leading jurists in the English-speaking world and is widely regarded as Australia's greatest-ever jurist.

The Executors did not argue in the High Court. Instead the contradictors were the Acting Deputy Comptroller-General and Public Trustee and the Attorney-General (Cth). Sir Robert Garran, the Solicitor-General appeared for the Attorney-General and argued that the Treaty of Versailles was made by the King and as such was binding throughout the British Empire. The defence power included legislating with respect to the termination of war and the Act was also valid under the external affairs power. The Act was a declaration of intention to give effect to Part X of the Treaty of Versailles and the Executive was left to fill in the details. [1]

Attorney-General for Australia first law officer of the Crown and chief law officer of the Commonwealth of Australia

The Attorney-General for Australia is the First Law Officer of the Crown in right of the Commonwealth of Australia, chief law officer of the Commonwealth of Australia and a minister of the Crown. The Attorney-General is usually a member of the Federal Cabinet, but need not be. Under the Constitution, they are appointed by the Governor-General on the advice of the Prime Minister, and serve at the Governor-General's pleasure. In practice, the Attorney-General is a party politician and their tenure is determined by political factors. By convention, but not constitutional requirement, the Attorney-General is a lawyer by training.

Robert Garran First Solicitor-General of Australia

Sir Robert Randolph Garran was an Australian lawyer who became "Australia's first public servant" – the first federal government employee after the federation of the Australian colonies. He served as the departmental secretary of the Attorney-General's Department from 1901 to 1932, and after 1916 also held the position of Solicitor-General of Australia.

The Solicitor-General of Australia is the country's second highest-ranking law officer, after the Attorney-General for Australia. The position is often known as the Commonwealth Solicitor-General in order to distinguish it from the state solicitors-general. The current officeholder is Stephen Donaghue, who took office on 16 January 2017.

The decision of the High Court

The Court announced its decision on 23 March 1921 that the Treaty of Peace Act and the Treaty of Peace Regulations made under the Act were valid, and delivered its reasons on 2 June 1921. [1]

Knox CJ, Gavan Duffy, Rich and Starke JJ

The joint judgement held that it was the intention of the legislature to enable the Governor-General to enforce the provisions of Part X of the Treaty of Versailles within Australia, and, if he thought it necessary for that purpose, to make any of such provisions part of the statute law of Australia. The defence power was not onfined to military operations but extends to every measure of defence, including the termination of hostilities by the imposition of terms of peace and the enforcement of those terms. The delegation of power to the Governor-General was consistent with the decision of the High Court in Farey v Burvett. [9] The order of the Minister was not an exercise of judicial power. [1]

Higgins J

In a separate judgment Higgins J upheld the Act and Regulations under the external affairs power, holding that it was difficult to say what limits (if any) can be placed on the power to legislate as to external affairs. Further the severe punishment of an enemy was valid under the defence power as being reasonably regarded as a deterrent against future attacks. The vesting order was not an exercise of judicial power as it was not the result of a judicial finding as to rights but an order in defiance of admitted rights. [1]

Significance

After his elevation to the High Court, Dixon J said that Roche v Kronheimer decided that:

a statute conferring upon the Executive a power to legislate upon some matter contained within one of the subjects of the legislative power of the Parliament is a law with respect to that subject, and that the distribution of legislative, executive and judicial powers in the Constitution does not operate to restrain the power of the Parliament to make such a law. [10]

See also

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References

  1. 1 2 3 4 5 6 7 Roche v Kronheimer [1921] HCA 25 , (1921) 29  CLR  329.
  2. "Treaty of Versailles". www.foundingdocs.gov.au. 1919. Retrieved 12 October 2016 via Museum of Australian Democracy.
  3. "Treaty of Versailles" . Retrieved 12 October 2016 via AustLII..
  4. 1 2 "Treaty of Peace Act 1919". Commonwealth of Australia.
  5. "Treaty of Peace Regulations". Commonwealth of Australia.
  6. "The Constitution". Commonwealth of Australia..
  7. New South Wales v Commonwealth [1915] HCA 17 , (1915) 20 CLR 54
  8. Waterside Workers' Federation of Australia v J W Alexander Ltd [1918] HCA 56 , (1918) 25 CLR 434
  9. Farey v Burvett [1916] HCA 36 , (1916) 21 CLR 433(1916)
  10. Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan [1931] HCA 34 , (1931) 467 CLR 73 at p. 101.