HIGH COURT OF AUSTRALIA

                                              Fraser Henleins Pty Ltd

                                                           Vs.

                                                         Cody

                         (Latham C.J., Starke, Dixon, McTiernan and Williams JJ.)

                                                     15 June 1945

Latham C.J.

These are appeals, by way of order nisi to review, from two convictions, one of the appellant
company, and the other of the appellant Reginald Arthur Crowther, for offences against the Black
Marketing Act 1942. The company was charged for that on 19th August 1943 at Townsville it was
guilty of the offence of black marketing, in that it did sell goods, namely one quarter cask of port
containing thirty-eight gallons of Berri Ruby Port, to Leandro Cattana for the sum of £28 15s., a
greater price than the maximum price, namely £20 7s. 2d., fixed under the National Security
(Prices) Regulations for the sale of the said goods. The charge was laid under s. 4 of the Act.
Section 4 of the Act provides that any person who does any act or thing, or is guilty of any omission
or conduct, which constitutes black marketing within the meaning of s. 3 shall be guilty of the
offence of black marketing. Section 3 includes a provision that "black marketing" means, inter alia,
selling any goods at a greater price than the maximum price fixed by or under "the Regulations"
(that is, regulations made under the National Security Act 1939 as amended) for the sale of those
goods. Crowther was charged with the offence of black marketing for that on the same date he was
the managing director actively concerned in the conduct of the business of the company which was
on the said date guilty of the offence of black marketing alleged in the complaint against the
company. This charge was laid under s. 5 of the Act, which is in the following terms:?"Where a
person guilty of the offence of black marketing is a body corporate, every person who, at the time of
the commission of the offence, was a director, officer or servant actively concerned in the conduct
of the business of the body corporate shall be deemed guilty of the offence, unless he proves that the
offence was committed without his knowledge and that he used all due diligence to prevent the
commission of the offence or of offences of the same character." It was proved that Crowther was a
director of the company, and that he managed the business of the company. The sale to Cattana,
which was alleged to be an offence against the Act, was actually made by him. Accordingly, if the
company was guilty of the offence charged against it, Crowther was guilty of the offence charged
against him. The company was fined £2,000, and ordered to exhibit notice of the conviction upon its
premises?Black Marketing Act, s. 12. Crowther was sentenced to imprisonment for four months
with hard labour.

The grounds of appeal relate to sufficiency of evidence to prove the offence, admissibility against
the company of admissions made by Crowther, validity of Prices Regulation Order No. 1015, and
validity of s. 4 (4) of the Black Marketing Act.

Prices Regulation Order No. 1015, made on 13th April 1943, relates to the fixing of prices for
goods and rates for services. The defendants were charged with a breach of the Order in relation to
the sale of goods, and it is necessary, in the first place, to consider the provisions of the Order with
respect to the sale of goods. The provisions relating to the fixing of rates for services are not directly
relevant to the prosecution, though it will be necessary to consider these provisions in relation to
certain objections to the validity of the Order.

Clause 3 of the Order deals with the prices of goods of a kind previously sold. By this clause, the
Prices Commissioner fixes and declares the maximum price at which any person may sell such
goods on any terms and conditions to be the price at which that person sold substantially identical
goods on "the ceiling date" on terms and conditions substantially identical with the first-mentioned
terms and conditions. Clause 2 defines "ceiling date" as a date of prior sale of such goods on
substantially identical terms and conditions: if such a sale took place on 12th April 1943, that date is
the ceiling date: if no such sale took place on that date, then the ceiling date is the last date prior to
12th April upon which such a sale took place.

The case for the prosecution was that the sale alleged to constitute the offence was a sale by the
company on 19th August 1943 of Berri Ruby Port to one L. Cattana at 12s. 6d. a gallon: that there
was a sale by the company of Berri Ruby Port on substantially identical terms and conditions to one
T. McIlrath on 4th March 1943 at 8s. 1d. per gallon; so that the latter date was the ceiling date, and
8s. 1d. per gallon the fixed price.

1. Sufficiency of evidence. The sale to Cattana was proved by reference to documents in the
possession of the company and by the evidence of Cattana, who was called for the prosecution. The
sale was recorded as a cash sale. The sale to McIlrath was proved by an entry in the books of the
company. Further evidence was given of interviews between an investigating officer, H. B. Cody,
and Crowther. The investigating officer examined the transactions of the company over a
considerable period, and prepared a schedule purporting to give particulars of sales of commodities
and prior sales of the same commodities for the purpose of identifying ceiling dates. Crowther was
invited to point out any particulars in which the schedule was incorrect. The schedule included
references to the sales to Cattana and McIlrath, and Crowther was asked to point out whether the
sale to McIlrath was the last sale of that particular line of liquor prior to 12th April. Crowther was
allowed to take the schedule away and to examine it in detail. He did not challenge the accuracy of
the schedule with respect to the transactions with Cattana and McIlrath, either as to the identity of
the liquor or as to the identity of the terms and conditions of sale. The sale to Cattana was described
in the books of the company as a sale of Berri Ruby Port. The sale to McIlrath was described in the
town day book as a sale of port wine. The investigating officer gave evidence with respect to the
entry in the schedule with respect to Berri Ruby Port which set out the two sales in question. He
gave evidence that, referring to the schedule which described the sale to McIlrath as a sale of Wine
Berri (Bulk) Ruby Port, he said to Crowther, "This sale to McIlrath of Innisfail for Wine Berri Bulk
Port, that is correct isn't it?" , and that Crowther replied, "Oh yes. That's the Berri price." Crowther
also said that the sale to McIlrath was Berri Ruby Port and that 8s. 1d. per gallon was "our usual
price for Berri Ruby Port." This evidence was corroborated by another investigating officer, R. A.
Irish. The defendant called no evidence in either prosecution, except the evidence of the auditor of
the company, who gave evidence in the proceedings against the company with respect to the
wholesale purchase of Berri Ruby Port by the company.

It is difficult to contend that there was no evidence from which the magistrate might conclude that a
substantially identical commodity, namely Berri Ruby Port, was sold on each of the two occasions.
It has been argued, however, that there was no evidence that the sale to McIlrath was on
substantially identical terms and conditions with the terms and conditions of the sale to Cattana, and
it is suggested that the sale to Cattana was a cash sale, and that the evidence is consistent with the
sale to McIlrath being a sale on credit. The suggestion is unreasonable in itself, namely that 12s. 6d.
a gallon was the price on a cash sale, whereas 8s. 1d. was the price on a sale on credit. There is no
evidence to support the suggestion, and the evidence given was sufficient to entitle the magistrate to
find that the sale to McIlrath was a sale before 12th April 1943 of goods, namely Berri Ruby Port,
substantially identical with the goods sold to Cattana on 19th August 1943, and that the two sales
were on terms and conditions which were substantially identical.

2. Admissibility of evidence. The next objection on behalf of the appellant is that the statements
made by Crowther, a director and the manager of the company, were not admissible in evidence as
against the company. It was argued that his authority in relation to past transactions related only to
the carrying out of those transactions, and not to making admissions in respect of them after they
were completed. But Crowther, as the manager of the company, must be regarded as having
authority to deal with any inquiry into the affairs of the company in relation to a possible breach of
the law by the company. He was the person who would naturally represent the company if any
inquiry were made into such matters. See Kirkstall Brewery Co. v. Furness Railway Co.[1] , where it
was suspected that a railway porter had stolen a parcel which was in the custody of the railway
company. The stationmaster who had the sole management of the station from which the parcel was
stolen made statements to a police officer who was inquiring into the matter, and it was held that his
authority extended to putting the police in motion in order to secure the stolen goods; and because
he had this authority the statements made by him to the police were admissible in evidence against
the company. In the present case, the authority of Crowther was more extensive than the authority of
the stationmaster in relation to the company and was more extensive than that of a person who held
only the position of director of a company. He was also the general manager of the business of the
company. He was not an agent whose authority in relation to a past transaction was limited to the
carrying out of that transaction; he had general authority to act in and in relation to the business of
the company, and therefore to deal with investigating officers in any matter concerning that
business. In Ex parte Gerard & Co. Pty. Ltd.; Re Craig[2] , upon which the appellant company
relied, it was held that when a director was answering questions under compulsion he was not acting
in the usual course of business of the company or in the course of a business transaction of the
company. In the present case, the questions were not answered on compulsion and the director was
also the manager of the whole business of the company. If he could not bind the company by an
admission, no-one could do so. It has never been held that only a formal act by the board of a
company can bind the company by way of admission. In my opinion, the objection to the
admissibility of the evidence fails.

3. Validity of Prices Order. The appellants challenge the validity of the Prices Regulation Order No.
1015 upon various grounds.

In the first place, it is said that the words "substantially identical goods" and "terms and conditions
substantially identical," which appear in clause 3 and in the definition of in clause 2, are so vague
that the Order cannot be said to fix a price, and reference is made to the decisions of this Court in
Vardon v. The Commonwealth[3] and Bendixen v. Coleman[4] . It is urged that it is so difficult to
determine whether particular goods are substantially identical with other goods, or whether
particular terms and conditions are substantially identical with other terms and conditions, that no
certain provision is made whereby persons can determine whether or not they are observing the law.
The Regulations, it is said, should be so expressed that any person can determine for himself
whether or not he is selling at a price greater than that fixed by the Order.

It is true that it may be difficult in some cases to determine whether goods or terms and conditions
are substantially identical with other goods or other terms and conditions. But this argument only
shows that questions of degree may arise in the application of the provisions in question, not that the
meaning of those provisions cannot be ascertained. It is often a difficult thing to determine whether
a particular set of facts falls within a particular description, but that fact does not in itself show that
the description is uncertain. I venture to refer to what I said in Bendixen v. Coleman[5] as to the
possible difficulty of determining whether a particular liquor was whisky or not. In many cases, the
legal liability of an individual depends upon whether his acts were what the law regards as
"reasonable" in the circumstances. In such a case, there will be room for difference of opinion, but it
does not follow that no criterion of conduct is provided in such a case.

Reference may usefully be made to similar provisions in other legislation. The Trade Marks Act
1905-1936, in ss. 25, 27 and 28, makes the determination of the rights of proprietors of trade marks
dependent upon a decision upon the question whether one trade mark is identical, or nearly
identical, with another trade mark. Section 31 (c) refers to matter "which does not substantially
affect the identity of the trade mark." The proviso to s. 50 refers to trade marks which are
"substantially the same." The question as to whether a trade mark has been infringed or not is
declared by s. 53 to depend upon whether or not there has been a use of a mark substantially
identical with a trade mark, or so nearly resembling it as to be likely to deceive. Another provision
which may be mentioned in this connection is to be found in the Acts Interpretation Act 1901-1941,
s. 49, which provides that no regulation "being the same in substance" as a disallowed regulation
shall be made unless certain conditions are specified. I refer to the examination of this provision in
Victorian Chamber of Manufactures v. The Commonwealth (Women's Employment Regulations)[6] .
In all these cases the application of the legislative provision may involve questions of degree. In
some cases, there may be what could be called complete identity of the subjects of comparison
though, strictly, anything can be identical only with itself. In other cases, there may be no
resemblance whatever. In other cases, there may be complete identity in relevant particulars and
difference in other particulars. In other cases, there may be great similarity amounting to substantial
identity. When liability depends upon whether or not there is substantial identity in a particular case,
the question must be determined as a question of fact. Opinions upon such a subject obviously may
vary, but that fact does not make the legislation uncertain, whether that legislation is to be found in a
statute or in a regulation.

It should be pointed out, in order to avoid misunderstanding, that the application of the Order in
question does result in fixing a definite price, namely the actual price in the prior transaction upon
the relevant date in respect of substantially identical goods sold on substantially identical terms and
conditions. If the provisions relating to substantial identity are not themselves so uncertain as to be
incapable of application by the tribunal before whom a matter comes, then there can be no objection
to the Order upon the ground that a definite price is not fixed. In my opinion, this objection to the
validity of the Order fails.

It was further argued that the Prices Regulations did not give the Commissioner power to fix prices
for individual traders in respect of goods, but only for goods considered apart from the identity of
vendors. This objection is met by reg. 23 (1A) (h), which expressly gives power to fix and declare
prices by reference to prices charged by individual traders on any date specified by the
Commissioner.

The validity of the Order was attacked upon another ground, namely, that other clauses in the Order
are invalid and inseverable, so that the whole Order should be held to be invalid. The attack was
directed against clauses 4, 6, 7 and 8.
It has already been mentioned that the Order relates to rates of charge for supply of services, as well
as to prices to be charged upon a sale of goods. Clause 3 relates to prices and rates for goods and
services of a kind previously sold or supplied. Clause 4 relates to prices and rates for goods and
services not previously sold or supplied. Where the goods or services are not substantially identical
with any goods or services sold or supplied on or prior to 12th April 1943 by the seller or supplier,
the maximum price or rate is to be the cost of the goods or services to the seller or supplier. "Cost"
is defined in relation to goods in clause 2, but there is no definition of "cost" in relation to services.
It is therefore argued, and with much weight, that, as far as services are concerned, the Order does
not fix any rate in the case of the services dealt with by clause 4, because the term "cost" is
uncertain unless its meaning can be determined by other provisions in the relevant legislation: See
Vardon v. The Commonwealth[7] and Bendixen v. Coleman[8] .

Clause 6 allows certain price or rate differences to be observed "where a seller or supplier of any
goods or services has customarily allowed any difference in price or rate" in certain cases. It is
contended that the word "customarily" is so vague that it is in effect meaningless. In my opinion,
there is no substance in this objection. The question whether an allowance has customarily been
made can be determined as a question of fact, although such a determination may involve a decision
upon matters of degree.

Clause 7 provides that the Order shall not apply to perishable primary products, including
specifically mentioned products. It is urged that the term "primary products" is so vague as, in
effect, to be incapable of application. Here again there is no difficulty in determining that certain
things are primary products. There may be much argument as to whether other things are or are not
primary products, but once again, in my opinion, any difficulty in the application of the term does
not affect the question whether or not the provision is so vague as to be incapable of forming a basis
for legal rights or duties.

Clause 8 provides that, notwithstanding anything contained in the Order, the Commissioner fixes
and declares the maximum price and rate at which any goods or services specified in a notice given
in pursuance of the clause may be sold or supplied by any person to be such price or rate as is fixed
by the Commissioner by notice in writing to that person. The Prices Regulations, under which the
Order is made, provide in reg. 23 that the Commissioner may, by order published in the Gazette, (a)
fix and declare maximum prices, or (b) declare that the maximum price at which goods may be sold
by any person shall be such price as is fixed by the Commissioner by notice in writing to that
person, and there is a similar provision with respect to a body or association of persons. It is
contended that these powers are mutually exclusive, that is, that the Commissioner may (a) fix and
declare a maximum price by order in the Gazette, or (b) declare that the maximum price shall be
that which is fixed by notice in writing, but that he may not do both (a) and (b) in the same order. It
is said that that has been done in the Order in question, because clauses 3 and 4 fix prices in the
manner provided by (a), whereas clause 8 fixes prices in the manner referred to in (b). It is further
objected that under reg. 23 (1) (b) the name of the person in respect of whom this particular power
is exercised must appear in the order published in the Gazette; that clause 8 of the Order does not
name any person, and is therefore invalid. (It may be observed that, if the second objection is well-
founded, the first objection fails, because clause 8 would not then be an actual exercise of the power
contained in reg. 23 (1) (b) simultaneously with the exercise of the power contained in reg. 23 (1)
(a).) These points have been considered by the Full Court of the Supreme Court of New South
Wales in Ex parte Byrne; Re King[9] , where both were decided adversely to the contention now
advanced.
I do not find it necessary, however, to determine whether or not the objections to the validity of
clauses 4, 6, 7 and 8 are well-founded, though, as I have said, I can see no ground for any objection
to clauses 6 and 7. In my opinion, these clauses are all severable from clause 3. The Acts
Interpretation Act 1901-1941, s. 46, provides that "where an Act confers upon any authority power
to make, grant or issue any instrument ... (b) any instrument so made ... shall be read and construed
... so as not to exceed the power of that authority, to the intent that where any such instrument
would, but for this section, have been construed as being in excess of the power conferred upon that
authority, it shall nevertheless be a valid instrument to the extent to which it is not in excess of that
power." In my opinion, the application of this provision to the Prices Regulation Order produces the
result that, even if clauses 4, 6, 7 and 8 are invalid, the validity of clause 3 is unaffected. These
provisions are not connected as a matter of legislation, whatever may be said as to their inter-
relation from the economic point of view. It is obviously possible to fix the price of goods without
fixing the price of services, and to fix the price of services without fixing the price of goods. In the
past, the prices of many services have been fixed; for example tram and railway fares, and other
charges made to the public have been fixed, whereas before the war it was not usual to fix the price
of goods. It is entirely a matter of policy whether the prices of all goods and all services or of all
goods and no services or of all services and no goods or of some of each only should be fixed. The
Acts Interpretation Act contains a declaration that provisions which are valid should be held to be
valid notwithstanding the presence in the instrument in question of invalid provisions. In this case,
no difficulty arises from the use of general words which include both valid and invalid provisions.
The provisions in clauses 4, 6, 7 and 8 are separately expressed from those in clause 3. If the former
regulations are all struck out the only result is that they fail to operate, and, if those regulations are
regarded as struck out with a blue pencil, clause 3 operates in exactly the same way in which it
would operate if they were present and valid. In my opinion, therefore, clause 3 is unaffected by the
invalidity of any of the other clauses mentioned (if they are invalid), because they are severable and
should be severed under s. 46 of the Acts Interpretation Act.

4. Black Marketing Act, s. 4 (4). Finally, it is objected that the Black Marketing Act is invalid by
reason of the presence in it of s. 4 (4). This sub-section is as follows:?"The offence of black
marketing shall not be prosecuted without the written consent of the Attorney-General after report
from the Minister administering the Regulations in relation to which the offence was committed and
advice from a Committee appointed by the Attorney-General and consisting of a representative of
the Department administered by that Minister, a representative of the Attorney-General's
Department and a representative of the branch of the Department of Trade and Customs known as
the Prices Branch." It was said that this section constitutes an infringement of s. 71 of the
Constitution, which provides that the judicial power of the Commonwealth shall be vested in a
Federal Supreme Court and other courts. It is plain that the committee referred to in the section is
not a court. It is contended that the committee exercises judicial powers because it performs a
function which determines the penalty to be imposed upon a person prosecuted under the Act.

Section 3 of the Act defines "black marketing" as meaning certain acts or omissions which are
breaches of regulations made under the National Security Act. If a person is prosecuted under the
National Security Act, he becomes subject to the penalties provided by that Act in s. 10?if the
offence is prosecuted summarily, a fine not exceeding £100 or imprisonment for a term not
exceeding six months, or both; or, if the offence is prosecuted upon indictment, a fine of any amount
or imprisonment for any term, or both. The Black Marketing Act, s. 4 (2), provides that the offence
of black marketing may be prosecuted summarily or upon indictment, and s. 4 (3) provides that "the
punishment for the offence of black marketing shall be (a) if the offence is prosecuted
summarily?imprisonment for not less than three months and not more than twelve months or, if the
offender is a body corporate, a fine of not less than One thousand pounds and not more than Five
thousand pounds; and (b) if the offence is prosecuted upon indictment?imprisonment for any term
not less than twelve months or, if the offender is a body corporate, a fine of any amount not less
than Ten thousand pounds."

Some of the arguments addressed to the Court assumed that it is a condition precedent to a
prosecution under the Act that the committee shall actually advise a prosecution under sub-s. (4).
An examination of the terms of the section shows, however, that the provision is only that the
offence of black marketing shall not be prosecuted without the written consent of the Attorney-
General after a report from a Minister and advice from the committee. The committee may or may
not advise prosecution. But, whatever the advice of the committee is, the Attorney-General may
determine to prosecute, and, if he gives his written consent, the absence of a recommendation for
prosecution by the committee would not affect the regularity of the proceedings if the committee
had given advice in relation to the matter.

I find it difficult to understand how it can be said that the requirement that the Attorney-General,
before instituting a prosecution, shall consult with a Minister and a committee involves any exercise
of judicial power by the Attorney-General, the Minister, or the committee. In the first place, the
committee only gives advice which may or may not be accepted. The advice does not affect the
legal position of any person as to either rights, duties or liabilities. In the next place, even if the
committee advises prosecution and the advice is adopted and a prosecution is instituted in
accordance with the advice, it is still the case that the action of the committee does not impose any
liability of any kind upon the person who is prosecuted. The whole matter of the guilt of the accused
is determined by a court. The nature and quality of the penalty which may be inflicted depends upon
a statute. It has never been suggested that the sphere of judicial power is invaded when Parliament
provides for a maximum or minimum penalty for offences which are duly proved in courts of law.

It is true that a prosecution under the Black Marketing Act exposes the accused to a greater penalty
than a prosecution under the National Security Act. The determination to prosecute or not to
prosecute is made by the Attorney-General after a report from a Minister and advice from a
committee. But, in all cases of public prosecutions, there must first be a decision by some public
authority whether to prosecute or not to prosecute. The risk of infliction of a penalty depends upon
the decision of a non-judicial authority or person as to whether any prosecution at all should be
instituted. But such a decision is in no respect an exercise of judicial power. Further, many offences
may be prosecuted either summarily or upon indictment; and, in the latter case, possible penalties
are more severe. If they are prosecuted upon indictment, the accused has the right to a trial by jury.
This is not the case if they are prosecuted summarily. It is for the Attorney-General or other law
officer of the Crown to determine whether or not an indictment should be presented. But a decision
to present an indictment is not a judicial decision, although it exposes the accused to penalties
greater than would be the case if it were determined not to prosecute upon indictment. It is not a
judicial decision because it makes no adjudication upon rights or duties or liabilities, or, indeed,
upon anything. It imposes no penalties, though it does expose a person to the possibility of a
particular penalty. If, before making a decision to present an indictment, the Attorney-General
received advice from his officers in the ordinary course of administration, that fact plainly would
not involve exercise of judicial power on his part. Section 4 (4) only requires him to receive a report
from a Minister and advice from a committee before determining whether to prosecute under the
Act or not. In my opinion, these provisions do not constitute any invasion of the judicial functions
of the courts referred to in s. 71 of the Constitution.
This matter has received consideration in the cases of Ex parte Gerard & Co. Pty. Ltd.[10] and Ex
parte Coorey[11] , in each of which cases Jordan C.J. has expressed the opinion that s. 4 (4) does
constitute an infringement of s. 71 of the Constitution. In the latter case the question was
exhaustively examined by Davidson J. and Nicholas C.J. in Eq., who did not agree with the opinion
of the Chief Justice. I concur as to this matter in the opinions of Davidson J. and Nicholas C.J. in
Eq. in Coorey's Case[12] .

Accordingly, in my opinion, all the objections raised on behalf of the appellants fail, and the appeals
should be dismissed.

Starke J.

Orders nisi to quash convictions of the appellants under the Black Marketing Act 1942, ss. 4, 5.

The appellant company was prosecuted summarily on complaint that it was guilty of black
marketing in that it sold goods at a greater price than the maximum price fixed under the National
Security (Prices) Regulations for the sale of the goods and the appellant Crowther was also
prosecuted summarily on complaint for that the company being guilty of the offence of black
marketing the appellant Crowther at the time of the commission of the offence was the managing
director actively concerned in the conduct of the business of the company and was deemed, pursuant
to s. 5 of the Act, guilty of the offence. These convictions have been attacked upon several
grounds:? (1) That the Black Marketing Act infringes the provisions of s. 71 of the Constitution,
which prescribed that the judicial power of the Commonwealth shall be vested in certain courts.

The nature and functions of judicial power have been recently examined in this Court and do not
require further examination in this case (See Rola Co. (Australia) Pty. Ltd. v. The
Commonwealth[13] ).

The Black Marketing Act provides in s. 4 (4) that the offence of black marketing shall not be
prosecuted without the written consent of the Attorney-General after report from the Minister
administering the regulations in relation to which the offence was committed and advice from a
committee appointed by the Attorney-General. And s. 4 (2) provides that the offence of black
marketing may be prosecuted summarily or upon indictment.

The offences known as black marketing were offences, it was said, under National Security
legislation and the result of these sub-sections enabled the Attorney-General to determine under
which provision the offence should be charged and the method of trial. This confers no judicial
power upon anyone; it neither declares nor enforces any rights or liabilities. It is but an
administrative provision for the purpose of assisting the Attorney-General in determining under
which provision a prosecution should be launched and how it should be prosecuted. As Simon L.C.
said in King-Emperor v. Benoari Lal Sarma[14] , in another connection, "it may be that as a matter
of wise and well-framed legislation it is better, if circumstances permit, to frame a statute in such a
way that the offender may know in advance before what court he will be brought if he is charged
with a given crime; but that is a question of policy, not of law." There is nothing underlying the
Constitution "which debars the executive authority ... from giving directions after the accused has
been arrested and charged with crime as to the choice of court which is to try him" [15] .

Again, it was said that s. 4 (3) in prescribing for black marketing maximum and minimum penalties
is an exercise of judicial power. But prescribing sanctions for prohibited acts is not an exercise of
judicial power but of legislative power conferring jurisdiction and authority upon Courts or other
tribunals to impose the punishment prescribed. It cannot be disputed that the legislature has power
to prescribe sanctions for the acts which it prohibits. And, if a maximum penalty, why not a
minimum penalty; that is a matter of policy and not of law, however harsh and unwise the
legislation.

Consequently, the contention that the Black Marketing Act contravenes s. 71 of the Constitution
fails, as was also held by a majority of the Supreme Court of New South Wales in Ex parte
Coorey[16] .

(2) That the Prices Regulation Order No. 1015, purporting to have been made pursuant to the
National Security (Prices) Regulations, is invalid.

Clause 3 is as follows:?"I fix and declare the maximum price or rate, as the case may be, at which
any person may sell or supply any goods or services on any terms and conditions to be the price or
rate at which that person sold or supplied substantially identical goods or services on the ceiling
date" (that is, 12th April 1943) "on terms and conditions substantially identical with the first-
mentioned terms and conditions or, if any lower maximum price or rate is fixed by or under any
order made under the National Security (Prices) Regulations, and in force immediately prior to the
commencement of this Order, that lower price or rate."

It was said that this is a mere "standstill" order and fixes no price or rate whatever.

I agree that it is a "standstill" order, which operates in such a manner that it fixes and declares as
many prices and rates as there are persons selling goods or supplying services at differing prices or
rates. It may be, as was said, an objectionable form of legislation because no uniform price or rate is
prescribed and therefore results in inequalities amongst persons selling or supplying the same goods
or services. But we are concerned with the power to make the Order in this form and not with its
wisdom or fairness.

The National Security (Prices) Regulations authorize the Prices Commissioner to fix and declare the
maximum prices and rates at which declared goods or services may be sold or supplied. Such a
provision would not, I dare say, warrant a "standstill" order. But the Regulations go much further
and provide that the Commissioner may fix and declare maximum prices and rates according to or
upon any principle or condition specified by the Commissioner or relative to prices or rates charged
by individual traders or suppliers on any date specified by him with such variations (if any) as in the
special circumstances of the case he thinks fit or so that such prices shall vary in accordance with a
standard or time or other circumstance (See reg. 23). Under a power so extensive, including, it will
have been observed, authority to fix prices and rates "relative to" prices and rates "charged by
individual traders" or suppliers, the "standstill" order, which has been attacked, is within power.

The further argument, that the Prices Order is ultra vires because of uncertainty, cannot be
sustained.

The uncertainty resides, so it was contended, in the introduction of the words "substantially identical
goods or services" into the Order. But there is no more uncertainty in that phrase than in the phrase
"identical goods or services," for in each case the rule, in its ordinary signification, is clear and
explicit. The difficulties in proof of "identity" or "substantial identity" do not arise from any want of
clarity in the rule, but from the facts surrounding each particular case.
Next, it was contended that the Prices Order was a connected scheme and that its provisions were
dependent one upon the other. Then it was said that certain other regulations (e.g. reg. 4) were bad
and consequently brought down the whole Order.

In form, the provisions are not dependent one upon the other, and, in substance, the National
Security Act 1939-1943, s. 5 (5), coupled with the Acts Interpretation Act 1901-1941, s. 46, renders
the contention untenable.

Lastly, it was contended that the findings of the magistrate were wrong and against evidence.

But this contention is not a matter of any public importance and all I need say is that the evidence
sustains the findings. And it was also contended that some statements made by the managing
director of the appellant company to the prosecuting officer were not admissible in evidence against
the company. But, in my opinion, the statements were made by the managing director in the
ordinary course of the business of the appellant company and in the course of his duty.
Consequently the statements were admissible in evidence against the company.

The appeals should be dismissed.

Dixon J.

These are appeals against convictions under the Black Marketing Act 1942. One appeal is by a
trading company convicted pursuant to s. 3 (a) of the offence of black marketing by reason of the
sale by it of a cask of port wine at a greater price than the maximum price. The other appeal is by
the managing director of the company, who was convicted of the same offence pursuant to s. 5,
upon an information alleging active concern in the conduct of the business of the company.

The grounds of the appeal extend from an attack upon the validity of the material provisions of the
Act down to the sufficiency of the proofs of some of the facts constituting the offence.

The basis of the offences constituting black marketing is the contravention of regulations under the
National Security Act. In effect, the Black Marketing Act gives the name "black marketing" to
certain descriptions of conduct already penalized under the National Security Act as a result of the
operation of regulations and orders thereunder and affixes graver penal consequences to that
conduct when the conviction is obtained for the offence so named on prosecution under the Black
Marketing Act. The punishment for the offence of black marketing, if the conviction is summary, is
imprisonment for not less than three months and not more than twelve months or, in the case of a
corporation, a fine of not less than £1,000 and not more than £5,000; if the conviction is upon
indictment, the punishment is imprisonment for not less than twelve months, or, in the case of a
corporation, a fine of not less than £10,000 (s. 4 (3)). But, for the same conduct, amounting to an
offence under the regulations, the National Security Act prescribes as punishment, on summary
conviction, a fine of not more than £100, or imprisonment for a term not exceeding six months, or
both, and, upon conviction on indictment, a fine of any amount or imprisonment for any term or
both: s. 10 (3) of the National Security Act. Section 8 of the Black Marketing Act authorizes the
prosecution of the offender under either law but enacts that he shall not be liable to be punished
twice for the same offence. It will thus be seen that it rests with the responsible authorities, by
choosing in what form an offender shall be prosecuted, to decide in respect of which of the four
scales of punishment he shall be exposed to liability. Recognizing this fact, s. 4 (4) provides that the
offence of black marketing shall not be prosecuted without the written consent of the Attorney-
General after report from the Minister administering the regulations in relation to which the offence
was committed and advice from a committee appointed by the Attorney-General and consisting of
officers representing certain departments. It is contended that the situation that results from these
provisions amounts to an attempt to infringe upon the judicial power of the Commonwealth and
that, accordingly, the material parts of the enactment are void. The argument is based upon the
dissenting judgment of Jordan C.J. in Coorey's Case[17] , which fully sets out the considerations
adduced in support of it. I have had the opportunity of studying his Honour's reasons and those of
the two learned Judges who formed the majority of the Supreme Court, Davidson J. and Nicholas
C.J. in Eq. It is enough, I think, for me to say that I am prepared to adopt the reasoning of the
majority, which appears to me effectually to answer the contention. The attack upon the validity of
ss. 3 and 4 of the Black Marketing Act should, in my opinion, fail.

The validity of the Prices Regulation Order, which the appellant company has been found guilty of
contravening, was impugned. It is Order No. 1015 made on 13th April 1943 and published in the
Gazette of the same day. The Order was made in the exercise of the powers conferred by reg. 23 of
the National Security (Prices) Regulations. That regulation gives the Commonwealth Prices
Commissioner a general power to fix and declare the maximum price at which goods, which have
already been the subject of a declaration by the Minister, may be sold (sub-reg. 1). It does the same
thing with respect to "services," an expression the Regulations define (sub-reg. 2 of reg. 23 and reg.
3). But reg. 23 proceeds to particularize specific things which the Commissioner may do in the
exercise of this general power. Among them is power to fix and declare maximum prices on landed
or other cost together with a percentage thereon or a specified amount or both, maximum prices
according to or upon any principle or condition specified by the Commissioner, and maximum
prices relative to prices charged by individual traders on any date specified by the Commissioner
with such variations, if any, as in the special circumstances of the case the Commissioner thinks fit.

Prices Regulation Order No. 1015 contains ten lengthy clauses, but the general policy which they
disclose is to take the prices at which goods were sold as at 12th April 1943 by the respective
vendors and the rates at which "services" were then supplied by the respective persons performing
them and adopt those prices and rates as the maximum prices and rates for like goods and "services"
thereafter sold or supplied. There are some qualifications. For instance, perishable goods are
excepted. If a person has not sold or supplied any particular goods and services before the date of
the Order, he is to do so afterwards only at cost, unless and until he obtains from the Commissioner
a price or rate for his case. If goods or services are already the subject of fixed maximum prices or
rates, which are lower than those otherwise resulting from the Order, they are to remain the
maximum prices or rates. Further, there is an overriding provision enabling the Commissioner to fix
prices or rates in the case of any individual by notice to him.

The Order was attacked, as a whole, on the ground that, in seeking to give effect to the foregoing
policy or principle, it was not a real exercise of the power to fix prices, but amounted only to an
attempt to prohibit any upward change of prices hitherto charged by traders considered individually.
It involves, it was contended, no examination of prices in relation to commodities or production or
trade and no determination of what prices were fair, proper or expedient and was, in fact, nothing
but a "standstill" order. The bare statement of this ground of attack shows that it assumes that the
purpose of the regulation is confined to the fixing of prices of commodities and services according
to an objective standard of some sort, presumably economic in character, and that the Regulations
do not extend to fixing prices in the sense of establishing them at the maximum rates charged by
traders for the time being, in short, to repressing increases in prices by the individual trader. The text
of the Regulations does not, in my opinion, justify this assumption. It contains no satisfactory
indication that the purposes of the powers given by the Regulations are limited in the way
suggested.

But the Order was also attacked on other grounds. The clause directly governing the present case
was said to be too vague to amount to a "fixing" of prices, and other clauses were impugned on a
number of grounds of greater or less cogency. Indeed, on the part of the respondent, no defence was
attempted of one of these clauses, that dealing with services supplied for the first time after 12th
April 1943. It is convenient to dispose at once of the questions raised as to the validity of clauses
not directly governing the facts of the present case. In my opinion, we are not called upon to
consider whether these provisions of the Order are good or bad because, in my opinion, the validity
of the whole Order or of the clause applying to the present case does not depend upon their validity.
Section 5 (5) of the National Security Act 1939-1943 operates, I think, to make s. 46 (b) of the Acts
Interpretation Act apply to the Order. It is true that the latter part of s. 5 (5) says that, for the
purposes of s. 46, orders, rules and by-laws shall be deemed to be Acts. Probably the word "Acts" is
a verbal error for "Regulations," but we cannot rectify an Act of Parliament. To treat orders as
equivalent to Acts would mean that instruments issued in pursuance of the orders are construed as
required by pars. (a) and (b) of s. 46. The question here is whether orders as instruments issued in
pursuance of regulations are governed by s. 46 (b). I think they are.

The earlier general words of s. 5 (5) are enough to submit orders themselves to the operation of the
whole Acts Interpretation Act, including the directions contained in par. (b) of s. 46, and it is plain
that this was the intention. Indeed, it is possible that in the case of any statutory regulation par. (a)
of s. 46 operates without more to make par. (b) applicable. It follows that the Order in question is to
be "read and construed subject to the" (regulation) "under which it was made, and so as not to
exceed the power of that authority, to the intent that where any such instrument would, but for this
section, have been construed as being in excess of the power conferred upon that authority, it shall
nevertheless be a valid instrument to the extent to which it is not in excess of that power."

This provision, and the analagous provision contained in s. 15A of the Act, has been discussed in
this Court on a number of occasions: See Australian Railways Union v. Victorian Railways
Commissioners[18] ; Huddart Parker Ltd. v. The Commonwealth[19] ; R. v. Burgess; Ex parte
Henry[20] ; R. v. Poole; Ex parte Henry [No. 2][21] ; Deputy Federal Commissioner of Taxation
(N.S.W.) v. W. R. Moran Pty. Ltd.[22] ; Australian Coal and Shale Employees Federation v.
Aberfield Coal Mining Co. Ltd.[23] ; The Commonwealth v. Grunseit[24] ; Adelaide Company of
Jehovah's Witnesses Inc. v. The Commonwealth[25] ; Victorian Chamber of Manufactures v. The
Commonwealth (Industrial Lighting Regulations)[26] ; Pidoto v. Victoria[27] ; Minister of State for
the Army v. Dalziel[28] .

The device of expressly providing against the consequences of some parts of a statute proving ultra
vires originated in the United States and has there been developed. An elaborate discussion of the
effect of such provisions will be found in an article entitled "Separability and Separability Clauses
in the Supreme Court" by Robert L. Stern, (1937) 51 Harvard Law Review 76. It can at least be said
of them that they establish a presumption in favour of the independence, one from another, of the
various provisions of an enactment, to which effect should be given unless some positive indication
of interdependence appears from the text, context, content or subject matter of the provisions. In the
case of the Order now in question, I do not think that any such indication sufficiently appears.

The provision specifically governing the present case is clause 3 of the Order. So far as material, it
fixes and declares, with respect to goods, the price at which any person may sell any goods on any
terms and conditions to be (sic) the price at which that person sold substantially identical goods,
stated shortly, on or last before 12th April 1943, on terms and conditions substantially identical with
the first-mentioned terms and conditions. This provision appears to me to be referable to the power
to fix and declare maximum prices according to or upon any principle or condition specified or to
that to fix and declare maximum prices relative to prices charged by individual traders on any date
specified (reg. 23 (1A) (g) and (h)). I think that it might be supported as an exercise of either power
or possibly of both in combination. I am aware that in the latter power the word "on" in reference to
a "specified" date creates a difficulty, but, having regard to the context and to the fact that it is given
by a sub-paragraph in a catalogue of particulars by way of elucidation of the main power, I do not
think that close literalness is demanded.

The weight of the attack on the validity of the clause of the Order was directed against the words
"substantially identical," both where they qualify the word "goods" and where they are used with
reference to "terms and conditions." It was said that they imparted an inadmissible vagueness to the
whole clause. It may be conceded, and, indeed, it appears to have been decided, that a bare power to
"fix" a price cannot be validly exercised without naming a money sum, or prescribing a certain
standard by the application of which it can be calculated or ascertained definitely. Otherwise the
price is not "fixed." But I am unaware of any principle relating to the interpretation of statutory
powers or the judicial examination of their exercise which would disable the Commissioner from
introducing this very natural qualification of the epithet "identical" in describing commodities or
terms of sale in an Order made in pursuance of powers in the form of those conferred upon him by
reg. 23. In my opinion, the material parts of the Order are valid and effectual.

The appellants, however, contend that, even so, there is no sufficient admissible evidence to
establish that the appellant company contravened the clause. The contention depends upon the
admissibility against the company, and the effect, of some statements which the other appellant, its
managing director, was proved to have made to officers of the Commonwealth Prices Commission.
It was said that the evidence of these statements should have been rejected because they were not
made in the course of the company's business but to officers investigating a transaction, passed and
closed, with the view of putting penal laws in motion against the company. To make admissions on
behalf of a corporate body in these circumstances, it was argued, fell outside the province even of a
managing director. I do not take that view. The conduct of the business of a trading company
involves, in the conditions now prevailing, a continual or, at all events, a frequent necessity of
communicating with departments of government about compliance with regulations, orders and
other forms of control, and a readiness to deal with inquiries as to the company's transacting its
business in conformity with them. The managing director and his wife appear to be the only
directors of the company. The authority of the former is enough to cover everything incidental to the
conduct of the business of the company. A perusal of the evidence shows that the admissions were
made while investigating officers were conducting and completing a thorough examination of the
company's transactions. I think that to answer their questions was not outside the scope of the
authority of the managing director.

Upon the effect of the admissions, the question, which was argued with exactness and care, is
whether they are enough to establish in a criminal matter the substantial identity of the goods (bulk
Berri Ruby Port) and the substantial identity of the conditions of sale. The admissions related to
items shown on invoices and on a schedule prepared from invoices. There was no doubt of the
description of the goods forming the subject of the sale alleged to amount to "black marketing." The
issue was as to the description of the goods forming the subject of the sale prior to 12th April 1943
which the prosecution relied upon as establishing the maximum ceiling price. According to one
version of the admission, the managing director said, "That was Berri Ruby Port. That was our usual
price for Berri Ruby, 8s. 1d. a gallon." I think that is quite enough to establish the identity of the
goods. It is true that there is some evidence suggesting that adherence to trade descriptions was a
matter somewhat lightly regarded by the company, but that is no reason for treating this evidence as
meaning less than it says.

As to the substantial identity of the conditions of sale, both transactions were with hotel keepers; the
sales were by the gallon, the quantities were not small, and the wine in each instance was delivered
in a cask. No reason appears for suspecting any variation of conditions and in all the discussions
with the officers none was suggested on the part of the company. It may be that one buyer was a
regular customer with a conventional "quota" and the other was not, but that is not a matter going to
the conditions of the transaction, but only to its setting. In my opinion, this point also fails.

I think that the appeals should be dismissed with costs and the orders nisi discharged.

McTiernan J.

In my opinion, these appeals should be dismissed.

The appellant company was charged with the offence of black marketing. This offence is defined by
ss. 3 (a) and 4 (1) of the Black Marketing Act 1942. The alleged incriminating sale was a cash sale
of Berri Ruby Port. The company made this sale on 19th August 1943 at 12s. 6d. per gallon. It was
necessary for the prosecutor to prove that this price exceeded the maximum at which the company
was permitted by the Prices Regulation Order No. 1015 to sell Berri Ruby Port for cash on the
above date. The prosecutor relied upon a sale of port wine on 4th March 1943 to prove that such
maximum price was 8s. 1d. per gallon. On this date, the company sold port wine to a buyer named
McIlrath at 8s. 1d. per gallon. There is no evidence that this was not a cash sale: in the absence of
such evidence it does not seem open to doubt that it was a cash sale. It is necessary for the
prosecutor's case that it was the company's last sale of Berri Ruby Port prior to 12th April 1943. The
invoice describes the goods sold to McIlrath as port wine. Proof that it was Berri Ruby Port was
furnished by the Commonwealth officers who conducted an investigation into the company's
observance of the above Prices Regulation Order. This evidence was that Crowther, the company's
manager and managing director told them in the course of such investigation that the port wine so
sold to McIlrath was Berri Ruby Port. It was argued that evidence that Crowther said that the wine
was Berri Ruby Port was not admissible because he had no authority to make an admission which
would be binding on the company about a past transaction. I do not agree with this argument. It was
within the scope of Crowther's duty and authority as the manager of the company's business to
communicate to the officers making the above investigation what information he had as to the
identity of any goods which the company sold in the past to enable them to ascertain the maximum
price at which the company was permitted under the above Prices Regulation Order to sell such
goods: Cf. Kirkstall Brewery Co. v. Furness Railway Co.[29] .

In my opinion, the evidence given upon the prosecution proves beyond reasonable doubt that the
company sold Berri Ruby Port on 19th August 1943 at a price exceeding the maximum price at
which the company was permitted under clause 3 of the above Order to sell that wine: and, unless
the company's attack on the Order or the Black Marketing Act succeeds, its conviction for the
offence of black marketing cannot be disturbed.

Clause 3 of the Order, to the extent to which it applies to the selling of goods, is within the terms of
reg. 23 (1A) (g) and (h) of the National Security (Prices) Regulations. The validity of clause 3 is
challenged on the ground that its provisions are too uncertain to enable any person selling any goods
to which it applies to determine the maximum price at which he may sell them. The principles
which are stated in Vardon's Case[30] , and Bendixen's Case[31] , are relied upon by the appellant to
support this challenge. It is based upon the use of the words "substantially identical." These words,
it is argued, fail to give a sufficiently certain direction about the goods or the terms and conditions
to which the provisions of clause 3 intend to refer. The challenge should not succeed. In this context
the words "substantially identical" are not vague. They point out with reasonable certainty the
particular sale by reference to which clause 3 purports to fix the maximum price of any goods to
which the clause applies.

Most, if not all, of the other clauses of the Order, besides clause 3, were challenged on various
grounds. It is necessary for the success of the appeal, not only that one or more of the other clauses
of the Order should be bad, but also that clause 3 should fall with any other clause or clauses that
are bad. I do not infer from the terms of the Order that the provisions which are made by clauses 3
and 4 for fixing the prices of goods and services respectively are interwoven or that the intention
and policy of the Order are that, if the provisions regarding the prices of services or any of the
provisions subsequent to clause 4 should fail, the provisions of clauses 3 and 4 regarding the price
of goods should not operate. These provisions are, in my opinion, valid and severable, even if any
other provisions of the Order are invalid.

Finally, it was submitted that the Black Marketing Act 1942 vests in the Attorney-General and the
Minister administering the Regulations, and the committee powers which are of a judicial nature
and is, therefore, an infringement of the provisions of the Constitution relating to the vesting of
judicial power of the Commonwealth in courts. If this submission were correct, the Act would not
be within the legislative powers of the Parliament. Section 3 of the Black Marketing Act includes
acts which are offences under s. 10 of the National Security Act 1939-1943. It is argued that s. 4 of
the Black Marketing Act purports to vest judicial power in the Attorney-General, the Minister and
the committee, because it leaves it to them to predetermine in advance of the Court whether a
person charged with an act which is an offence under s. 10 of the National Security Act and s. 4 of
the Black Marketing Act should be liable to the minimum punishment provided by s. 4 of the latter
Act or to the punishment provided by s. 10 of the former Act. In my opinion, the power which the
Attorney-General has under s. 4 (4) of the Black Marketing Act is of the same nature as the power
which he has under s. 10 (4) of the National Security Act. I am unable to see any resemblance
between the power of the Attorney-General under s. 4 (4) and judicial power. The functions which
the Minister and the members of the committee have under the section resemble those exercised by
officers whose duty it is to advise and make recommendations about prosecutions. These functions
are not part of the judicial power of the Commonwealth. If the view that s. 4 of the Black Marketing
Act purported to vest judicial power in the Attorney-General had not the support of Jordan C.J. in
Ex parte Coorey[32] , I should not have thought that the view was tenable at all. Davidson J. and
Nicholas C.J. in Eq. did not agree with the view of the Chief Justice. With respect, their conclusion
on this question was, in my opinion, correct.

The appellant Crowther was prosecuted for an offence against s. 5 of the Black Marketing Act. The
evidence conclusively established that at the relevant time Crowther was a director of the appellant
company and was the manager of its business and was actively engaged in its management. The
conviction of the company cannot be disturbed. It follows that Crowther's appeal must be dismissed.

Williams J.
These are appeals by the company and its managing director, Crowther, against their convictions
under the Black Marketing Act for selling Berri Ruby Port to one Cattana on 13th August 1943 at a
price in excess of that fixed by par. 3 of Prices Regulation Order No. 1015. The sale to Cattana was
for cash at 12s. 6d. per gallon, and the case for the Crown was that the fixed price for such a sale
under the Order was 8s. 1d. per gallon, that being the price at which the same brand of port was sold
by the company to one McIlrath for cash on 4th April 1943, that being the last sale by the company
prior to 12th April 1943 of Berri Ruby Port.

The Crown called Cattana as a witness to prove the sale on 13th August, and also tendered in
evidence copy invoices in the books of the company relating to both sales. The invoice of the sale to
Cattana stated that the wine was Berri Ruby Port, and that the sale was for cash, but the invoice of
the sale to McIlrath only stated that the goods were port wine and that the price was 8s. 1d. In order
to prove its case, it was necessary for the Crown to establish that the two sales were sales of
substantially identical goods sold on substantially identical terms and conditions. It was open to the
magistrate on the evidence, I think, to draw the inference that the sale to McIlrath was a sale for
cash, but this still left a gap in the Crown case as to the brand of port sold to McIlrath. The Crown
purported to bridge this gap by giving evidence of an admission made by Crowther, who, it was
proved, was the managing director of the company, to two investigating officers at an interview in
August 1944 that the wine sold to McIlrath was Berri Ruby Port. At this interview, Crowther was
expressly warned that he was not being examined under reg. 17 of the National Security (Prices)
Regulations, and that he need not answer questions, particularly where they might incriminate him.

The first ground urged by Mr. Spender in support of the appeal was that this admission related to a
past transaction, and was therefore not admissible in evidence against the company. In Taylor on
Evidence, 12th ed. (1931), par. 602, it is stated that "the admission or declaration of his agent binds
him" (i.e. the principal) "only when it is made during the continuance of the agency, in regard to a
transaction then depending, et dum fervet opus. When the agent's right to interfere in the particular
matter has ceased the principal can no longer be affected by his declarations, any more than by his
acts, but they will be rejected in such case as mere hearsay."

One of the authorities relied upon in support of this statement is Kirkstall Brewery Co. v. Furness
Railway Co.[33] , which was referred to during the argument. There the statements made to the
police by the stationmaster were made in the course of his authority to take steps to cause to be
apprehended a porter whom he reasonably suspected of having stolen a parcel, and the case is not,
in my opinion, any authority for the proposition that an agent can make admissions on behalf of his
principal otherwise than in the course of some act that he is authorized to do. Thus, reports to the
police of the servants of a dockyard company, not possessing a similar authority, relating to the theft
of goods in its control made to the police subsequent to the occurrence were held to be inadmissible
against the company in Lampson & Co. v. London and India Dock Joint Co.[34] . But there are
some agents who derive from their employment an implied authority of a sufficiently wide nature to
make their admissions admissible against the principal even with respect to past transactions,
provided that, at the time the admissions are made, they are still in the employment of their
principal. This is because their employment is such that they must be presumed to have authority to
give information with respect to such transactions, so that it is given in the course of an act they are
authorized to do. Thus in Meux's Executors' Case[35] where the executors of a deceased shareholder
applied to the board of directors of a company to ascertain the extent of his interest in and liability
to the company, and the board replied that his liability was less than it was in fact, the company was
held bound by the reply. In In re Devala Provident Gold Mining Co.[36] , Fry J. said "In Meux's
Case[37] ... the statement was part of the transaction."
The duties of a manager of a business would usually be to conduct the business on behalf of his
employers, and, when he is found so acting, anything that would ordinarily be done in the usual
course of the business which he is transacting may be presumed, until the contrary is shown, to be
within the scope of his authority: Bank of New South Wales v. Owston[38] . In Simmons v. London
Joint Stock Bank, as appears from the report in the Law Times Reports[39] , the plaintiff tendered
part of the evidence of the manager of a bank given in a previous case as to the practice of the bank
in making loans to customers. The defendant objected that it was not within the authority of a bank
manager to make admissions, but Kekewich[40] which affirmed Kekewich[41] ; but there is no
suggestion in the higher Courts that the evidence was wrongly admitted.

Article 42 of the articles of association of the appellant company enables the board of directors to
confer upon a managing director authority to exercise all the powers of the company. In Biggerstaff
v. Rowatt's Wharf Ltd.[42] Lindley L.J. said: "What must persons look to when they deal with
directors? They must see whether according to the constitution of the company the directors could
have the powers which they are purporting to exercise. Here the articles enabled the directors to
give the managing director all the powers of the directors except ... The persons dealing with him
must look to the articles, and see that the managing director might have power to do what he
purports to do, and that is enough for a person dealing with him bona fide." More recent cases
appear to have somewhat restricted this statement of the law. The most recent English case is, I
think, British Thomson-Houston Co. Ltd. v. Federated European Bank Ltd.[43] , where these cases
are discussed, and I agree with Tucker J. in Clay Hill Brick & Tile Co. Ltd. v. Rawlings[44] , that
they were correctly summarized by the reporter when he said that they show that "if the articles
merely empower the directors to delegate to an officer authority to do the act, and the officer
purports to do the act, then?(a) if the act is one which would ordinarily be beyond the powers of
such an officer, the plaintiff cannot assume that the directors have delegated to the officer power to
do the act; and if they have not done so, the plaintiff cannot recover ... (b) if the act is one which is
ordinarily within the powers of such an officer, then the company cannot dispute the officer's
authority to do the act, whether the directors have or have not actually invested him with authority
to do it" [45] . I agree with Lowe J. in Butcher v. Longwarry and District Dairymen's Co-operative
Association Ltd.[46] , that a company must have power to make admissions in relation to its
business, and that the board of directors of a company, in whom the management of the business is
vested by the articles, must have power to make such admissions on its behalf. It was, therefore, a
power which the board of directors of the appellant company was authorized to confer upon
Crowther, and one which a stranger was entitled to presume had been delegated to him if it was part
of the ordinary duty of the manager of a business to answer inquiries with respect to the conduct of
that business. It is to be noted that, in Garth v. Howard[47] , Tindal C.J. thought that a declaration of
a shopkeeper that his master had received goods might probably have been evidence against the
master if the transaction out of which the action arose had been one in the ordinary trade of the
master as a pawnbroker, in which trade the shopman was his agent, as it might be held within the
scope of such agent's authority to give an answer to such inquiry made by any person interested in
the goods deposited with the pawnbroker. Under modern legislation, even in peace-time, authority is
given to many types of officials, for instance under industrial, health, and taxation Acts, to inspect
premises and books and to extract information with respect to the carrying on of a business,
including information relating to past transactions, so that some person or persons engaged in the
business must be presumed to have authority to answer their questions. One of such persons must
be, I think, the manager of the business. Crowther must therefore be presumed to have been
authorized to make the admission because the power to answer such questions on behalf of the
company was a power which was vested in the board of directors, so that it was a power which the
board could delegate to Crowther under the articles of association, and the company cannot dispute
that the power had been delegated, since the act was one which would ordinarily be within the
powers of the manager of a company.

The second ground urged by Mr. Spender was that par. 3 of the Order is void for uncertainty, or
alternatively that this paragraph forms part of a general scheme for fixing the prices of goods and
rates of services as at 12th April 1943, so that, if any part of the Order is void, the whole fails. For
this purpose, he attacked the validity of several other parts of the Order and in particular that portion
of par. 4 by which the Prices Commissioner fixed and declared the maximum rate at which any
person might sell or supply services which were not substantially identical with any services which
he sold or supplied prior to 12th April 1943 to be the cost of the services to that person. It is
probable that pars. 3 and 4 of the Order were intended to be complementary, par. 3 fixing the ceiling
prices and rates for goods and services of a kind sold or supplied previously to 12th April 1943, and
par. 4 fixing prices and rates for goods and services not sold or supplied previously to that date. It is
also difficult to uphold the validity of the challenged portion of par. 4. But reg. 22, which authorizes
the Minister by separate declarations to declare any goods or services to be declared goods or
services for the purposes of the Regulations, and reg. 23, which authorizes the Commissioner to fix
prices and rates with respect to any declared goods or services, clearly contemplate that all or any
goods or all or any services, in their totality or separately, may have their prices and rates declared
and fixed. Further, the Acts Interpretation Act 1901-1941, s. 46 (b), provides that, where any Act
confers upon any authority power to make any instrument, any instrument so made shall be read and
construed subject to the Act under which it was made, and so as not to exceed the power of that
authority, to the intent that where any such instrument would, but for this section, have been
construed as being in excess of the power conferred upon that authority, it shall nevertheless be a
valid instrument to the extent to which it is not in excess of that power, while the National Security
Act 1939-1943, s. 5 (5), provides that the Acts Interpretation Act shall apply to the interpretation of
any orders made in pursuance of the regulations in like manner as it applies to the interpretation of
regulations and for the purposes of s. 46 of that Act those orders shall be deemed to be Acts. The
reference to Acts in the sub-section is intended, I think, to make orders notional Acts for the
purposes of the second limb of s. 46 (a). In these circumstances, it seems to me that if par. 3 fixes
and declares a price within the meaning of the Regulations, s. 46 (b) must operate to preserve its
validity, although other parts of the Order may be invalid. It is clearly severable from these other
parts, and will continue to operate in the same manner with respect to the goods and services to
which it applies as it would have done if the Order as a whole had been valid.

The only question is, therefore, whether par. 3 is valid. Reference was made to the decisions of this
Court in Vardon v. The Commonwealth[48] , Bendixen v. Coleman[49] and the unreported case of
Claxton v. Cody[50] , where the decision of the Supreme Court of New South Wales in Ex parte
Zietsch; Re Craig[51] was approved. Reference was also made to the recent decisions of the same
Supreme Court in Ex parte McMillan; Re Craig[52] and Ex parte Byrne; Re King[53] . I adhere to
the view expressed in Vardon v. The Commonwealth[54] and Arnold v. Hunt[55] that the legislation
is contained in the Prices Regulations, and that the declaration and fixation of prices of goods and
rates of services by the Commissioner is an executive act: Cf. R. v. City of Westminster Assessment
Committee; Ex parte Grosvenor House (Park Lane) Ltd.[56] , where Scott L.J. said that the
assessment committee, except when performing certain quasi judicial functions, "is an executive or
ministerial body of an expert character, whose function is to make the list on the lines laid down by
the relevant legislation." If the Commissioner does not define the price, either specifically or by
means of a formula the application of which will determine the price, he has not exercised the
power because he has not fixed any price. Paragraph 3 purports to fix a price by a formula. The
ingredients which constitute the formula are clearly prescribed. The difficulty, if any, is to ascertain
whether the two sales are of substantially identical goods sold upon substantially identical terms and
conditions. Since traders are unlikely to have altered their business methods since April 1943, this
difficulty is probably more argumentative than real. As Jordan C.J. said in Ex parte O'Sullivan; Re
Craig[57] , "a thing can be identical only with itself. Absolute identity between two different things
is, in the nature of things, impossible. To say of two things that they are substantially identical
means that they are exactly similar in everything that matters for all relevant purposes. Whether two
things are substantially identical is a question of fact which may be difficult of determination in a
particular case, but the problem is clearly enough set." Regulation 23 (1A) (h) contains express
power for the Commissioner to fix maximum prices relative to prices charged by individual traders
on any date he specifies; reg. 23 (2A) (g) contains a similar power in the case of services, and this is
what he has done in the present case. I can see no necessity to name any individuals in the exercise
of this power. Paragraph 3 of the Order, so far as it relates to goods, is therefore valid, and I express
no opinion as to the validity of other parts of the Order.

The third ground urged by Mr. Spender was that the Black Marketing Act 1942 is invalid because s.
4 (4) infringes the judicial power of the Commonwealth. This sub-section provides that the offence
of black marketing shall not be prosecuted without the written consent of the Attorney-General after
report from the Minister administering the regulations in relation to which the offence was
committed and advice from a committee appointed by the Attorney-General and consisting of a
representative of the department administered by that Minister, a representative of the Attorney-
General's Department and a representative of the branch of the Department of Trade and Customs
known as the Prices Branch. It is true that the same set of facts will constitute an offence under the
Prices Regulations or under the Act, and that, under the Regulations and the Act, this offence may
be tried summarily or upon indictment. But the determination whether the accused is to be charged
under the Regulations or the Act is, I think, a purely administrative function of the same essential
quality as the determination whether an accused shall be tried summarily or on indictment for an
offence triable summarily or on indictment under a single Act, and the determination is still
administrative whether it is made by the Attorney-General or any other law officer of the Crown on
his sole initiative or upon or after any report or advice from any specified person or body of
persons. The whole prosecution, when it is launched, takes place in a court, the accused is found
innocent or guilty by a court, and Parliament is entitled to make the punishment of an offence upon
conviction what it likes, and to make it differ according to the alternative sections of an Act or Acts
under which the charge is laid. The view that the whole function is administrative receives support,
I think, from the judgment of the Privy Council in the recent case of King-Emperor v. Benoari Lal
Sarma[58] . There special courts were set up by the Governor-General of India by an ordinance
made under the Government of India Act 1935, read with the India and Burma (Emergency
Provisions) Act 1940, and it was held that the ordinance was not invalidated by reason of provisions
which left it to the local government or some officer of the local government empowered by it in
that behalf to direct what offences or classes of offences and what cases or classes of cases which
would otherwise be tried in the ordinary courts should be tried by the special courts because this
was an administrative function, and not delegated legislation.

For these reasons, I am of opinion that all the grounds fail, and that the appeals should be dismissed.

Appeals dismissed. Orders nisi discharged.

Solicitors for the appellants, S. G. Sommers & Stewart.
Solicitor for the respondent, H. F. E. Whitlam, Crown Solicitor for the Commonwealth.
1. (1874) L.R. 9 Q.B. 468.
2. (1944) 44 S.R. (N.S.W.) 370; 61 W.N. 232.
3. [1943] HCA 30; (1943) 67 C.L.R. 434.
4. [1943] HCA 40; (1943) 68 C.L.R. 401.
5. (1943) 68 C.L.R., at p. 416.
6. [1943] HCA 21; (1943) 67 C.L.R. 347.
7. [1943] HCA 30; (1943) 67 C.L.R. 434.
8. [1943] HCA 40; (1943) 68 C.L.R. 401.
9. (1944) 45 S.R. (N.S.W.) 123; 62 W.N. 104.
10. (1944) 44 S.R. (N.S.W.) 370; 61 W.N. 232.
11. (1944) 45 S.R. (N.S.W.) 287; 62 W.N. 167.
12. (1944) 45 S.R. (N.S.W.) 287; 61 W.N. 167.
13. [1944] HCA 17; (1944) 69 C.L.R. 185.
14. (1945) A.C. 14.
15. (1945) A.C., at p. 28.
16. (1944) 45 S.R. (N.S.W.) 287; 62 W.N. 167.
17. (1944) 45 S.R. (N.S.W.) 287; 62 W.N. 167.
18. [1930] HCA 52; (1930) 44 C.L.R. 319, at pp. 373, 385.
19. [1931] HCA 1; (1931) 44 C.L.R. 492, at pp. 500, 507, 512, 529.
20. [1936] HCA 52; (1936) 55 C.L.R. 608, at pp. 654, 659, 672, 689.
21. (1939) 61 C.L.R., at pp. 642, 651, 653, 656.
22. [1939] HCA 27; (1939) 61 C.L.R. 735, at p. 807.
23. [1942] HCA 23; (1942) 66 C.L.R. 161, at pp. 174, 196.
24. [1943] HCA 47; (1943) 67 C.L.R. 58, at p. 67.
25. [1943] HCA 12; (1943) 67 C.L.R. 116, at pp. 144, 154.
26. [1943] HCA 22; (1943) 67 C.L.R. 413.
27. (1943) 68 C.L.R., at pp. 107, 118, 126, 130.
28. [1944] HCA 4; (1944) 68 C.L.R. 261, at pp. 288, 310.
29. (1874) L.R. 9 Q.B. 468.
30. [1943] HCA 30; (1943) 67 C.L.R. 434.
31. [1943] HCA 40; (1943) 68 C.L.R. 401.
32. (1944) 45 S.R. (N.S.W.) 287; 62 W.N. 167.
33. (1874) L.R. 9 Q.B. 468.
34. (1901) 17 T.L.R. 663.
35. (1852) 2 DeG. M. & G. 522 [42 E.R. 975].
36. (1883) 22 Ch. D. 593, at p. 596.
37. (1852) 2 DeG. M. & G. 522 [42 E.R. 975].
38. (1879) 4 A.C. 270, at p. 289.
39. (1890) 62 L.T. 427, at p. 429.
40. (1891) 1 Ch. 270.
41. (1892) A.C. 201.
42. (1896) 2 Ch. 93, at p. 102.
43. (1932) 2 K.B. 176.
44. (1938) 4 All E.R. 100, at p. 105.
45. (1932) 2 K.B., at p. 184.
46. (1939) V.L.R. 263.
47. (1832) 8 Bing. 452 [131 E.R. 468].
48. [1943] HCA 30; (1943) 67 C.L.R. 434.
49. [1943] HCA 40; (1943) 68 C.L.R. 401.
50. December 1944.
51. (1944) 44 S.R. (N.S.W.) 360; 61 W.N. 211.
52. (1944) 45 S.R. (N.S.W.) 229; 62 W.N. 99.
53. (1944) 45 S.R. (N.S.W.) 123; 62 W.N. 104.
54. [1943] HCA 30; (1943) 67 C.L.R. 434.
55. [1943] HCA 23; (1943) 67 C.L.R. 429.
56. (1941) 1 K.B. 53, at p. 62.
57. (1944) 44 S.R. (N.S.W.) 291, at p. 298; 61 W.N. 197, at p. 199.
58. (1945) A.C. 14.
</html</htm