HIGH COURT OF AUSTRALIA

                                           Attorney-General for Victoria

                                                           Vs.

                                                   Commonwealth

                         (Gavan Duffy C.J., Rich, Starke, Evatt and McTiernan JJ.)

                                                     23 May 1935

Gavan Duffy C.J., Evatt and McTiernan JJ.

All questions of law and fact arising in this action have been remitted to the Full Court for
determination.

The Attorney-General for the State of Victoria sues the Commonwealth of Australia at the relation
of the Victorian Chamber of Manufactures. As finally elucidated during the hearing, the plaintiff's
complaint is that, although the Commonwealth Clothing Factory (situated in Melbourne, Victoria) is
lawfully operating under sec. 63 (1) (da) of the Defence Act "for the manufacture of naval and
military equipment and uniforms," the Commonwealth has not restricted its operations to such
purposes, but, as alleged in par. 4 of the statement of claim, "clothing has been manufactured and
supplied to Commonwealth Government Departments other than the Department of Defence and the
business has been carried on of manufacturing and supplying clothing to the Government
Departments of the State of Victoria, Municipal Bodies constituted in the said State under its laws
relating to local government and to other public utilities operating in the State and to other persons."

The plaintiff alleges that these additional operations of the factory are not authorized by sec. 63 (1)
(da) of the Defence Act, nor by sec. 63 (1) (f) thereof; and that, if and so far as such provisions
purport to authorize the operations, they are ultra vires the Parliament of the Commonwealth, the
relevant power of which is to legislate in respect of the "naval and military defence of the
Commonwealth and of the several States." The plaintiff claims an appropriate declaration and
injunction.

In the main, the defendant relies upon the contention that the additional operations of the clothing
factory are authorized by the Defence Act (sec. 63 (1) (f)), and that such operations are within the
power of the Parliament. It is also contended that the executive power of the Commonwealth
Executive under sec. 61, and the special position of the Governor-General under sec. 68 as
Commander-in-chief of the naval and military forces of the Commonwealth, of themselves
constitute a sufficient authority to do what has been done. Objection is made to the plaintiff's title to
sue for relief, and it is also said that, in any event, the Court should, in its discretion, refrain from
giving any relief owing to the fact that the practices now objected to have been continued for a long
time with the knowledge, and, in many cases, for the express benefit, of the State of Victoria. It is
finally contended that the High Court has no jurisdiction to hear and determine the action.

This last objection should first be dealt with. The Constitution itself vests jurisdiction in the High
Court in all matters in which the Commonwealth is a party (sec. 75 (iii.)). It was argued that there is
no "matter" before the Court. But the claim of the plaintiff, like the defence of the defendant, is
based entirely upon legal grounds, dependent upon the meaning and application of the Constitution,
and of Commonwealth legislation. It is nothing to the point that the statement of claim may be
demurrable, or that the defendant can produce a good answer in law to the claim, and that in the end
the appropriate order of the Court should result in the dismissal of the action. A "matter" is none the
less such because the defendant is entitled to succeed in resisting a plaintiff's claim, and we hold that
the Court has jurisdiction.

Any objection based upon the plaintiff's title to sue necessarily disappears if it is held that the
additional operations of the clothing factory are within the authority committed to the Governor-
General by sec. 63 (1) (da) and sec. 63 (1) (f) of the Defence Act; for, in that event, the case of the
Attorney-General of Victoria is resolved into a claim that, on a true interpretation of the statute, the
provisions of the Constitution itself have not been observed. In our opinion, it must now be taken as
established that the Attorney-General of a State of the Commonwealth has a sufficient title to invoke
the provision of the Constitution for the purpose of challenging the validity of Commonwealth
legislation which extends to, and operates within, the State whose interests he represents (Attorney-
General (N.S.W.) v. Brewery Employees Union of New South Wales[1]).

In the present case, we are of opinion that a sufficient statutory warrant is to be found for all the
operations of the clothing factory. By sec. 63 (1) (da) and sec. 63 (1) (f) the Governor-General is
empowered, not only to "establish and maintain factories for the manufacture of naval and military
equipment and uniforms," but also, subject to the provisions of the Act, to "do all matters and things
deemed by him to be necessary or desirable for the efficient defence and protection of the
Commonwealth or of any State." It appears that the Governor-General established the clothing
factory at Melbourne as long ago as 1911. During the war of 1914-1918, "immense quantities of
clothing and equipment were required to meet the requirements of the naval and military forces of
the Commonwealth, and in consequence there was a great increase in the output of the clothing
factory."

A changed policy was adopted at the end of the war when "orders for articles were accepted from
State Departments and Services and from State organizations of a public or semi-public character in
cases where the manufacture of such articles would not require the installation or acquisition of
additional machinery and such manufacture could be profitably carried on."

The reason for the changed policy was that "the war having ended, the demand for naval and
military clothing was very greatly reduced, and it was deemed by the Governor-General to be
undesirable to reduce the plant and staff of the clothing factory to dimensions sufficient to deal only
with the peace-time demand for naval and military clothing and clothing for other departments of
the Commonwealth."

It need only be added that:--(1) The classes of clothing manufactured for other than immediate
military and naval purposes are, for the most part, of a "uniform" character, appropriate to the
purpose of the ordering party. (2) The bodies making use of the factory in this way include the
Victorian railway and police services and other departments of State, the Melbourne Tramways
Board, the Melbourne City Council, the Boy Scouts and Sea Cadets, and the Ambulance
organizations. (3) The purchases by individual persons have been very few, not exceeding in value
£100 in any year, and including, for instance, officers of sea-going vessels, usually members of the
Naval Reserve. (4) A large proportion of the total staff has been employed in the factory for years,
and has become expert in the production of uniform clothing.
Although no formal Order in Council was made for the purpose of authenticating the judgment and
opinion of the Governor-General, we think it is clear that the Governor-General deemed it necessary
for the efficient defence of the Commonwealth to maintain intact the trained complement of the
factory, so as to be prepared to meet the demands which would inevitably be made upon the factory
in the event of war. Therefore, the operations complained of by the plaintiff so far as they are not
authorized by sec. 63 (1) (da) of the Defence Act, are authorized by sec. 63 (1) (f) thereof.

This brings us to the question whether the legislative power in respect of defence is a sufficient
warrant for the legislation so construed and so applied to the facts. It is obvious that the
maintenance of a factory to make naval and military equipment is within the field of legislative
power. The method of its internal organization in time of peace is largely a matter for determination
by those to whom is entrusted the sole responsibility for the conduct of naval and military defence.
In particular, the retention of all members of a specially trained and specially efficient staff might
well be considered necessary, and it might well be thought that the policy involved in such retention
could not be effectively carried out unless that staff was fully engaged. Consequently, the sales of
clothing to bodies outside the regular naval and military forces are not to be regarded as the main or
essential purpose of this part of the business, but as incidents in the maintenance for war purposes of
an essential part of the munitions branch of the defence arm. In such a matter, much must be left to
the discretion of the Governor-General and the responsible Ministers.

In these circumstances, we hold that the objections of the plaintiff, as far as they are based on the
Constitution, should fail. The plaintiff relied upon the case of The Commonwealth v. Australian
Commonwealth Shipping Board[2], where this Court held that an agreement made between the
Australian Commonwealth Shipping Board and the Municipal Council of Sydney was beyond the
powers of the former body. The Commonwealth Shipping Act 1923 had provided for the
establishment of a shipping line under a board of directors called the "Australian Commonwealth
Shipping Board," and made it a body corporate. The Board's general authority was defined by sec.
10 (a) of the Act as being "to carry on the general business of a shipowner, and any business
incidental thereto." The Board was also given power to carry out in respect of Cockatoo and
Schnapper Islands "the business of manufacturer, engineer, dock-owner, shipbuilder and repairer,
and any other business incidental thereto or to the said works and establishments" (sec. 14 (4)). The
Board's agreement with the Municipal Council of Sydney was to supply, erect and maintain six
turbo-alternator sets for the Council's power house at Bunnerong, the price agreed to being
£666,605.

The case was determined upon demurrer, the Board alleging no facts tending to explain the relation,
if any, between the carrying out of the contract and the Board's business either as shipowner under
sec. 10 (a) or as engineer under sec. 14 (4). The Attorney-General of the Commonwealth granted his
fiat to the relator, the New South Wales Chamber of Manufactures, with the sole object of
determining whether the statutory power of the Board had been exceeded, and, otherwise than by
the relator, the Commonwealth itself was not represented at the hearing of the demurrer. As the
Board was not an organ of the Executive Government itself, the executive power of the
Commonwealth was not relevant to the question in dispute. The decision does not contain a
complete definition of the limits of the defence power, and the statement of the majority of the
Court in relation to the defence power that "extensive as is that power, still it does not authorize the
establishment of businesses for the purpose of trade and wholly unconnected with any purpose of
naval or military defence"[3], does not assist the present plaintiff, because the purpose of naval and
military defence has been impressed upon the operations of the clothing factory from the very
commencement.
It follows that the action of the plaintiff fails and should be dismissed. It becomes unnecessary to
enter upon a consideration either of the particular argument resting upon the executive authority
conferred upon the Governor-General by secs. 61 and 68 of the Constitution, or of the grave
question involved in the argument that sec. 81 of the Constitution itself enables the Commonwealth
to appropriate moneys for any purpose deemed sufficient by the Commonwealth, quite irrespective
of its relation to the legislative and executive authority conferred upon Commonwealth organs by
other sections of the Constitution.

The action should be dismissed with costs.

Rich J.

This is a relator's action brought in the original jurisdiction of this Court in the name of the
Attorney-General for the State of Victoria against the Commonwealth. The purpose of the
proceeding is to obtain a declaration that in carrying on a clothing factory established by the
Commonwealth, the making or supplying of uniforms and clothing is beyond the powers of the
Executive in so far as persons outside the Commonwealth services are supplied. The clothing
factory was established primarily for the purpose of supplying soldiers' and sailors' uniforms, and
uniforms required in the civil services of the Commonwealth. The relator's contention is that, in the
course of the operations, the factory cannot without an excess of power, supply the requirements of
the States or of municipalities, or of other persons or bodies. The relator, the Victorian Chamber of
Manufactures, obtained a fiat from the Attorney-General for the State of Victoria for the present
proceedings, which arise, no doubt, out of a desire to suppress the competition of the factory, such
as it is. An objection is taken on behalf of the Commonwealth that the action is incompetent,
because the matters complained of afford no ground of action, even if the operations of the factory
were to the extent alleged beyond the powers of the Commonwealth. In considering this objection,
the fact that it is a relator's action is immaterial. When the Attorney-General's fiat has been obtained,
the action in his name is as competent or incompetent as if it were brought ex officio by him. The
question, therefore, is whether, assuming ultra vires, the Attorney-General of a State can maintain
an action against the Commonwealth to obtain a declaration and consequential relief against the
Commonwealth's ultra vires activity. In my opinion he can. To a great extent the question is settled
by Attorney-General (N.S.W.) v. Brewery Employes Union of New South Wales[4] and Tasmania v.
Victoria[5]. In my own judgment (ante, p. 171) I said:--"In a matter of public right the Attorney-
General sues on behalf of the public. There is no reason why his right to do so should be confined to
matters of exclusively domestic concern. On the contrary, there is every reason in a Federal system
that this principle should be applied to allow him to maintain proceedings to vindicate the rights
conferred upon his public by a provision of the Constitution." If the Commonwealth Executive is
engaged in trading operations in competition with the citizens of a State so that the public of the
State are affected by acts of the Executive, and it appears that in so trading the Commonwealth is
acting without any legal warrant because under the Federal system such activities could only be
carried on by the State if the Crown is to pursue them at all, I think these principles apply. In the
case supposed the citizens of the State are affected as such because the power exercisable in
reference to them only by the State Government is assumed by the Federal Government. The
Attorney-General of the State may properly represent them just as he would represent them in a
unitary system if a statutory corporation exceeded its powers by a similar course of action. It was
next said that even so the facts of the present case presented no matter within the meaning of the
word as used in sec. 75 of the Constitution. This argument again assumed, as of course it must do,
that the complaint of ultra vires is well founded. It is based upon the notion that the operations of
the clothing factory can violate no right, that no one can have a claim of right to prevent them. Even
if this were correct the argument would in my opinion involve a confusion, because whether a
question amounts to a matter does not depend upon the legal plausibility of a claim of right made,
but upon the making of it. When the Attorney-General of a State at the instance of relators claims to
restrain the Federal Government from continuing a course of action it has adopted, it seems odd to
say that the claim, because misconceived, is not a matter. If the Court did not agree that it was
misconceived and acceded to the claim, it could hardly be said that it acted without jurisdiction. The
real question in the case is whether the Commonwealth Executive is acting beyond its powers. It
cannot be doubted that under the Constitution the legislative power of Parliament enables it to
authorize the Executive to establish and conduct a clothing factory to supply all the needs of the
Commonwealth Government, whether Naval and Military or Civil. As at present advised I am not
prepared to accede to the argument that, without legislative power, the Commonwealth Executive
can enter into business operations simply because it is a juristic entity, and in conducting business is
not exercising governmental power over the subject. In the present case the factory was established
pursuant to legislation of the Parliament, namely, secs. 63 and 64 of the Defence Act. These
provisions do not, it need hardly be said, exceed the defence power. But how far does it extend? It
must be construed subject to the Constitution (see sec. 15AActs Interpretation Act 1901-1933). So
construed, does it extend to the use of the factory for requirements which are not strictly naval,
military, civil or otherwise departmental? I have no doubt that to fulfil these requirements must be
the primary purpose of the factory. But it must be remembered that they are of a fluctuating
character. All things naval and military have the possibility of war in view, and the nature of the
factory cannot be determined by peace-time requirements. A doctrine exists in the case of trading
corporations that, when for the purpose of their undertakings they must control property, premises
or appliances, it is within their incidental powers to utilise them for purposes akin to and not
inconsistent with the primary purpose of the corporation, and thus avoid the ill consequences of
their being left vacant, idle and unemployed. (See Brice on Ultra Vires, 3rd ed. (1893), p. 135;
Simpson v. Westminster Palace Hotel Co.[6].) The question how far this doctrine is to be pushed in
relation to corporations is one of degree, and has excited some difference of opinion (Forrest v.
Manchester, Sheffield and Lincolnshire Railway Co.[7], and on appeal[8]). It illustrates an
application of the general doctrine that things may be done which are fairly incidental or conducive
to the purpose for which a power is enjoyed. On the whole I think we may apply it to the peculiar
situation in which the Commonwealth Clothing Factory stands. The case was ordered to be argued
before us on the pleadings, mutual admissions and exhibits thereto, and on the Commonwealth
Statutory Rule No. 210 of 1926. It might, perhaps, have been more satisfactory if, for the purpose of
our decision, the facts had been investigated in detail on the trial of the action. In all cases where
incidental powers are relied upon there is a danger of the cart being harnessed before the horse. In
the present case, however, so far as I can see, there is no inversion of the main and incidental power,
and the supply to outsiders is of a minor character, and subsidiary to the main purpose of keeping a
factory in going order for naval and military purposes on a scale adequate for actual and potential
demand. In my opinion the action should be dismissed upon the ground that in substance the
complaint is ill-founded.

Starke J.

In 1911 the Commonwealth established a clothing factory in Melbourne, which is known as the
Commonwealth Government Clothing Factory. The factory was originally established for the supply
of uniforms and canvas goods for the Defence Forces of the Commonwealth. Its operations were
gradually extended, and now cover the supply of uniforms and other goods to various departments
and services of the Commonwealth, such as the Postmaster-General's Department, the Department
of Trade and Customs, and the Railway and Police Departments. The outbreak of war in 1914 led to
a great increase in the output of the clothing factory to meet the requirements of the naval and
military forces of the Commonwealth. These extraordinary requirements ceased with the
termination of the war in 1918. But it was deemed undesirable to reduce the plant and staff of the
factory to dimensions sufficient to deal only with peace-time demands for naval and military
clothing and clothing for other departments of the Commonwealth, so it began, in the financial year
1919-1920, to accept contracts and orders for clothing and other goods from the State of Victoria for
services such as the Railways, the Police and Penal Departments, various public utilities of the State
such as the Tramways and Fire Brigade Boards, the municipality of Melbourne, and institutions
such as the Aquarium and Ambulance Service, and also from a few private persons.

The Parliament of the Commonwealth made various appropriations of public moneys for the
establishment and upkeep of the clothing factory, but since June 1917 the factory has been entirely
self-supporting, and its profits have been sufficient to refund to the Commonwealth the whole, or if
not the whole, practically the whole of the moneys provided for its establishment and maintenance.

The present action is brought by the Attorney-General of the State of Victoria on the relation of the
Victorian Chamber of Manufactures for a declaration that the business carried on in the clothing
factory, or alternatively that the making and/or supplying of clothing and uniforms for purposes
other than naval and military purposes or alternatively for persons or bodies other than departments
of the Commonwealth, is beyond the powers of the Commonwealth, and also for a declaration that
the Commonwealth Defence Act 1903-1932, in so far as it authorizes the carrying on of the clothing
factory or in so far as it authorizes the carrying on of the business of making and/or supplying
clothing for purposes other than naval and military purposes or for persons or bodies other than the
departments of the Commonwealth, is beyond the powers of the Constitution, and for ancillary
relief.

The jurisdiction of this Court to entertain such an action at the suit of a competent plaintiff is, I
think, well settled (Constitution, sec. 75 (iii.); The Commonwealth v. New South Wales[9]; compare,
in the United States, Monaco v. Missippi[10]). But is the State of Victoria, or the Attorney-General
of the State, a competent plaintiff? In my opinion, the answer must be in the affirmative. Acts are
alleged which, it is contended, are beyond the powers of the Commonwealth and usurp the functions
of the State (Tasmania v. Victoria[11]). It is said that, while the Commonwealth in establishing the
clothing factory was clearly authorized by the Defence Act 1903-1932, sec. 63 (1) (da), yet the
extension of its operations to the manufacture of clothing and other equipment for various
departments and services of the Commonwealth other than naval and military equipment is beyond
the powers of the Commonwealth. But I cannot assent to this contention. The supply of uniforms
and clothing to the various departments and services of the Commonwealth is incidental to the
administration of the various departments of State under the control and management of the
Commonwealth, and to services rendered by the Commonwealth under and pursuant to the powers
and authorities contained in the Constitution. There is nothing unlawful in the Commonwealth using
an organization established under a law of the Commonwealth for any lawful purpose of the
Commonwealth. If a factory be established under the Defence Act 1903-1932 for the manufacture of
naval and military uniforms, what is there to prevent that factory being used for other legitimate
purposes of the Commonwealth? The factory in the present case is not organized as a corporation
with limited and defined powers. The occasion for its establishment was the manufacture of naval
and military uniforms, but there is nothing in the Constitution, or in any principle of law, that
renders the use of that organization for purposes within the limits of the powers and functions of the
Commonwealth unlawful or in contravention of the Constitution or any law of the Commonwealth.
The distribution of the costs of manufacture to the different departments and services may well be
matter of internal management and arrangement, but that involves nothing illegal.

The Attorney-General for the State of Victoria is on firmer ground, however, when he contends that
the Constitution does not warrant the Commonwealth launching out on the general business of
manufacturing clothing and other goods for the States, or for public bodies constituted under the
laws of the States, or for private individuals. The provisions of sec. 51 of the Constitution contain
no such power in express terms. But it is claimed that sec. 63 (f) of the Defence Act 1903-1932 does
authorize such an extension of operations. It provides that the Governor-General may, subject to the
provisions of the Act, do all matters and things deemed by him to be necessary or desirable for the
efficient defence and protection of the Commonwealth or any State. This means the Governor-
General acting in a constitutional manner, that is with the advice of the Executive Council (Acts
Interpretation Act 1901-1932, sec. 17). It may be inferred from the mutual admissions of the parties
that the Governor-General deemed it desirable so to extend the operations of the factory, but it is
conceded that no formal Order in Council has been passed sanctioning the extension. The existence
of such an order is not, I think, essential, if the operations have in fact been sanctioned by the
Governor-General. It must be remembered that the legislative powers of the Commonwealth are
enumerated, and their limits cannot be transcended. In the last resort it is for the Courts to determine
whether the legislative and executive acts of the Commonwealth are within the powers conferred by
the Constitution. The Defence Act doubtless gives the Governor-General the widest discretion. But,
while his decisions are entitled to the highest respect, the Act cannot be taken to mean that the
Governor-General may do whatever he thinks proper, whether within the constitutional power of the
Commonwealth or not. Such a construction would defeat the Act, and could only be adopted in
cases where the language compelled that result. (See Acts Interpretation Act 1930, No. 23, sec. 3.)
The exercise of the Governor-General's discretion must be confined within the constitutional power
of the Commonwealth. But it is not for the Courts to determine whether the matters and things
deemed necessary or desirable by the Governor-General are or are not appropriate for the
constitutional object: all that the Courts have to consider is whether the means selected have some
real and substantial relation to that object, or are calculated in some appreciable degree to advance it
(Farey v. Burvett[12]). The legislative powers of the Commonwealth confer upon it no authority
whatever to establish and maintain clothing factories for purposes other than those contained in its
enumerated or constitutional powers. It may be desirable to do so from the point of view of
efficiency and economy, but constitutional warrant is still lacking. There is no relation between
establishing and maintaining a clothing factory for Commonwealth purposes, and extending its
operations to purposes wholly beyond the constitutional power of the Commonwealth (The
Commonwealth v. Australian Commonwealth Shipping Board[13]).

It was sought to justify the extended operations of the factory by reference to the executive power of
the Commonwealth (Constitution, sec. 61); the command of the naval and military forces
(Constitution, sec. 68); and the power of the Commonwealth to appropriate money for the purposes
of the Commonwealth (Constitution, sec. 81).

The executive power of the Commonwealth extends to the maintenance of the Constitution and of
the laws of the Commonwealth. It may well be that the executive power "is co-extensive with the
responsibility and power of the Commonwealth" and not limited "to matters connected with
departments actually transferred or matters upon which the Commonwealth has power to make laws
and has made laws" (cf. Berriedale Keith, Responsible Government in the Dominions, 1st ed.
(1912), vol. ii., p. 809). But there is nothing in the Constitution, or in any law of the
Commonwealth, which enables the Commonwealth to establish and maintain clothing factories for
other than Commonwealth purposes. No executive power to do so is expressed, and such a power
cannot be implied from anything found in the Constitution or from the establishment of a clothing
factory under the Defence power (The Commonwealth v. Australian Commonwealth Shipping
Board[14]).

The command of the naval and military forces is titular. It may, in the absence of statutory
provisions, justify orders regulating the navy and the army and providing for their equipment and so
forth. But the command cannot and does not warrant the doing of acts which transcend the
constitutional power of the Commonwealth.

Lastly, the provisions of sec. 81 of the Constitution are called in aid: "All revenues or moneys raised
or received by the Executive Government of the Commonwealth shall form one Consolidated
Revenue Fund, to be appropriated for the purposes of the Commonwealth in the manner and subject
to the charges and liabilities imposed by this Constitution." This provision is relied upon as an
independent source of power. Thus, in the United States of America "it will be found that the public
moneys of the United States have been devoted to a great variety of purposes, many of which have
no relation to the exercise of the specific powers vested by the Constitution in the National
Government; they have been, to mention only a few instances, in aid of road-building, education,
agriculture and relief, at home and abroad, of sufferers on account of fires, floods, earthquakes, &c."
(Willoughby on The Constitution of the United States, 2nd ed. (1929), vol. i., p. 103). The
Constitution of the United States enables Congress "to lay and collect taxes, duties, imposts and
excises, to pay the debts and provide for the common defence and general welfare of the United
States; but all duties, imposts and excises shall be uniform throughout the United States" (Art. 1,
sec. VIII., cl. 1). "Hence it is that, though Congress has not a general legislative power to provide
that the Federal Government may do everything, whether by way of regulation or direct control and
operation, which may conceivably secure the common defence and promote the general welfare of
the United States, it nevertheless has a general power to appropriate the public moneys of the United
States for these purposes" (Willoughby, ibid., p. 98). "But this, it may be predicted," he adds (ibid.,
p. 105), "will be as far as the Courts will permit Congress to go. In other words, they will not admit
that, because Congress has the power to lend Federal financial aid to projects which concern the
general welfare of the United States, even though these projects have no relation to the matters
enumerated in the Constitution as within Federal control, therefore, Congress may authorize the
Federal Government, through its own agencies to carry out these non-enumerated projects." The
provision in the Constitution of Australia is not identical with that in the Constitution of the United
States; indeed, in sec. 96, express provision is made for giving financial assistance to any State on
such terms and conditions as the Parliament thinks fit. (See Victoria v. The Commonwealth[15].)
Further, it should be observed that sec. 83 provides that no money shall be drawn from the Treasury
of the Commonwealth except under appropriation made by law--which I take to mean in
accordance with law. The power to appropriate moneys "for the purposes of the Commonwealth"
does not, in my opinion, enable the Commonwealth to appropriate such moneys to any purposes it
thinks fit, but restricts that power to the subjects assigned to, or departments or matters placed under
the control of the Federal Government by the Constitution. No constitutional warrant, therefore, for
the extension of the operations of the clothing factory to general business purposes can be found in
the appropriation power.

It was suggested during the argument that clothing manufactured for the supply of services or
persons other than services or persons under the control or in the employ of the Commonwealth,
must nevertheless remain the property of the Commonwealth, and consequently might be treated as
surplus stock in the disposition of the Commonwealth. The argument is, to my mind, untenable. The
property may remain in the Commonwealth, but the manufacture of clothing for purposes other than
those allowed by the Constitution does not establish any right so to do, or permit the disposition of
such clothing in a manner not allowed by the Constitution. By such means all constitutional checks
might be avoided and the position of the States under the Constitution gravely compromised.
A declaration should be made that it is beyond the powers of the Commonwealth under the
Constitution to carry on the business of manufacturing clothing for or supplying clothing to the
States or to public utilities established under the laws of the States, or to private bodies or persons.
Action dismissed with costs.
Solicitors for the plaintiff, Moule, Hamilton & Derham.
Solicitor for the defendant, W. H. Sharwood, Crown Solicitor for the Commonwealth.
[1] [1908] HCA 94; (1908) 6 C.L.R. 469.
[2] [1926] HCA 39; (1926) 39 C.L.R. 1.
[3] (1926) 39 C.L.R., at p. 9.
[4] [1908] HCA 94; (1908) 6 C.L.R. 469.
[5] Ante, p., 157.
[6] [1860] EngR 1064; (1860) H.L. Cas. 712; 11 E.R. 608.
[7] [1861] EngR 631; (1861) 30 Beav. 40; 54 E.R. 803.
[8] (1861) [1861] EngR 777; 4 De G.F. & J. 126; 45 E.R. 1131.
[9] [1923] HCA 23; (1923) 32 C.L.R. 200.
[10] [1934] USSC 117; (1934) 292 U.S. 313; 78 Law Ed. 1282.
[11] Ante, p. 157.
[12] [1916] HCA 36; (1916) 21 C.L.R. 433.
[13] [1926] HCA 39; (1926) 39 C.L.R. 1.
[14] [1926] HCA 39; (1926) 39 C.L.R. 1.
[15] [1926] HCA 48; (1926) 38 C.L.R. 399.

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