Charlton Shire v Ruse [1912] HCA 33

Charlton Shire v Ruse [1912] HCA 33 - HCA 1912 case summary — Zoe

[32]

A further objection, not referred to by the Judges of the Supreme Court, was that the provision for a penalty in the by-law does not follow the words of the by-law. The by-law in terms provides that "no privy, urinal, cesspool or earth- closet shall be constructed, built, formed, remain or be allowed to remain within ten feet of any kitchen, dining room, bedroom, dwelling house or room used for domestic purposes . . . except in any case where it is impossible to erect a privy, urinal, cess- pool or earth-closet in accordance with the above distance, then such privy, urinal, cesspool, or earth-closet shall be erected at the extreme distance possible under the circumstances from any kitchen, dining room, bedroom, dwelling house or room used for domestic purposes." The penalty is "if the owner or occupant of any land uses or permits to be used any privy, urinal, cesspool or earth-closet on land owned or occupied by him in breach of the foregoing provisions, he shall be subject to a penalty of Five pounds for each day during which such breach shall be committed or continued." The penalty, therefore, does not in terms follow the prohibition. The power to impose a penalty is conferred by sec. 32, which provides that a Council may by by-laws " impose such reasonable penalties as they think fit not exceeding Ten pounds for every breach of any such by-law ora penalty not exceeding Five pounds for each day during which such breach shall be committed or continued." The answer to that argument is that the greater includes the less. The Council might, if they pleased, have imposed a penalty upon the mere existence of the place without any reference to its user. Hood J., indeed, thought that, having regard to the subject matter, a con- venience of this sort could not be called a privy unless it was in use. But I think it is a safer view that the Council did not desire to punish, as they might, the mere existence of the thing, that is, they did not desire to exercise the power to its full extent, and that the penalty clause should be regarded as a qualified prohibi- tion against the user only. By way of analogy I may put the case of a power to prohibit the use of tires less than six inches in width and a by-law prohibiting the use of tires less than five jnches in width, That would clearly be within the power, Another illustration is a power to make a by-law prohibiting

[38]

opinion of the local board sufficient for such houses respectively, and the other two sections referring respectively to public privies and to the like structures in places to be used as schools or fac- tories or buildings in which persons above 20 in number are gathered or employed. There is no necessity to quote those two sections. I should mention that secs. 40, 41 and 42 re-appear in the Health Act 1883 as secs. 120, 121 and 122, and in the Health Act 1890 as secs. 260, 261 and 262. Now sec. 37 of Act No. 310 was repealed by the Act of 1883, but there is a provision in see. 123 of the Act of 1883, which must be noted, and which is this:

All drains whatsoever earth-closets privies cesspools and ash- pits shall be constructed and kept so as not to be a nuisance or injurious to health and so that there is no overflow or leakage or soakage therefrom." That appears to have been intended as a substitute for the first part of sec. 37, but it is to be observed that it is general as to the construction and keeping of these places and does not contain the limitation as to position and dis- tance which was in see. 37. That section, 123 of the Act of 1883, re-appears in the Act of 1890 as sec. 263. In respect of that see- tion I digress for a moment to observe that it also indicates that the local board, on the report of the inspector or other officer of the local board that any drain, earth-closet, privy, &c. "is not constructed or kept according to the provisions of this Act or of any by-law or order in that behalf," may take certain steps. Unless the provision of the eleventh paragraph of sec. 24 of the Act of 1883, that is, of sec. 35 of the Act of 1890, is intended to give power to make by-laws generally as to the manner of construction of privies, &c., it is difficult to understand the part of the section which I have quoted, because it provides for action to be taken upon a report that the privy &e. is not con- structed or kept in accordance with any by-law in that behalf, and, unless the authority for such a by-law is found in the eleventh paragraph of sec. 35 of the Act of 1890, that is, sec. 24 of the Act of 1883, there is no authority to make by-laws to which the enactment I have quoted ean apply.

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Sec. 24 provided for by-laws; it considerably extended the area of subject matters in respect of which general legislative regulations could be made; and the pervading characteristic of the added powers is a general oversight of matters which, from their nature, or from possible neglect, might be offensive to the senses or dangerous to the health of the inhabitants of the locality. The population of Victoria generally, and of the metropolis particularly, had grown in the preceding sixteen years; the law as to municipal government had in 1874 been placed on a definite footing, municipalities being more scientific- ally organized, and the legislature thought it desirable to drop the general and unvarying provision it had itself made in see. 37 of No. 310, and to delegate to the municipal councils as the local boards of health the power to make such regulations in that behalf as suited their several localities. This' was done by inserting among the powers in sec. 24 the words we have to construe. I read these words as transferring to the various local boards, controlled by the Central Board, the function of dealing elastically and with proper regard to local conditions and require- ments, with the subjects of position and construction previously dealt with by an unvarying provision in sec. 37 of Act No. 310. It is not at all probable the legislature, in the face of increased urgency, relaxed its hold on this necessary branch of public health - but the repeal of sec. 37 of No. 310 without some general provision such as that contended for by the appellant would leave an enormous and a highly dangerous gap in the power of guard- ing the general safety. Not only private dwellings, but public habitations - hotels, restaurants, &c., would be uncontrollable centres for the dissemination of disease and offensiveness. Then we have at the end of the section the express language of the legislature itself indicating the broad lines on which it had pro- ceeded, lines altogether inconsistent with any notion that the natural import of the words is to be restricted so as to endanger the healthfulness of the district and its inhabitants. But the import of the last paragraph has been undervalued. It is as truly distinct a substantive grant of power as is found in any preceding portion of the section. If we turn to the beginning of the section we read : - * Every Council may in the by-laws to be

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H.C. or A. so made provide " - then follow a number of powers, and then 1912.

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