Clements v Bull

Clements v Bull - [1953] HCA 61 - HCA 1953 case summary — Zoe

[5]

But it is equally obvious that the attainment of the purposes of the Act may involve or require a great deal of control of the behaviour of persons within the port, and that accordingly a wide variety of regulations which operate to control behaviour may be validly made. When a challenged regulation is supported as being "for or relating to" the management of the port, or as being "for carrying out" the objects and purposes of the Act, the question to be considered is whether the manner of its operation, the nature and degree of the control it imposes upon behaviour if it controls behaviour, give it the character of a regulation answering the description relied upon. Its operation must have a direct relevance to the management of the port or to some other purpose of the Act; it is not every tendency, however remote, to assist the more efficient conduct of the affairs of the port which will suffice. The point is that the problem is one of characterisation by reference to subject-matter. It is not one to be answered by exercising imaginative ingenuity in order to see whether the effect of the provision in some possible or probable instances of its application may be foreign, or even inimical, to the attainment of purposes which fall within the purview of the Act. The first step must be to inquire, what does the regulation really do by way of altering the law in force in the port. The second question is whether a connection can be seen between that alteration of the law and the control and management of the port considered as a place devoted to the purposes which Smith J. in this case described broadly as "the safe, orderly, convenient and efficient handling of ships and their cargoes and passengers in the area of the port, including, of course, loading and unloading, embarkation and disembarkation". If there is such a connection the final question arises, whether that connection is so direct and substantial that the regulation is seen really to satisfy one of the descriptions by reference to which the regulation-making power is conferred. A regulation which is shown by the answers to these questions to be within power cannot be held ultra vires on the ground that in some circumstances it will produce results which are considered unreasonable. If Parliament confers upon a subordinate body a power to legislate for limited purposes, it authorizes even legislation which may be thought unreasonable, provided that nevertheless it is really legislation for those purposes. It may indeed be held invalid on the ground that no reasonable mind could justify it by reference to the purposes of the power: Brunswick Corporation v. Stewart [1] ; but that is only a way of stating the conclusion that no real connection with the purposes of the power can be seen.

[6]

As to the operation of reg. 275 (36), there are only two things which it is necessary to point out. The first is that, contrary to an assumption which seems to underlie some passages in the judgments delivered in the Supreme Court and some of the arguments submitted in this Court, there is nothing in the regulations or in legal principle to require that a consent under par. (36) can only relate to a specific occasion. There is nothing to preclude the giving of a consent in general terms to cover assemblages, of specified classes or in specified places within the port, the addressing of which the commissioners may think can be allowed for the time being consistently with the efficient management of the port. It is important, in considering the question of validity, to recognize the paragraph for what it really is - not an absurdly arbitrary and inflexible prohibition in respect of all assemblages, but a prohibition against addressing such assemblages only as the port authority does not decide, by a written consent in general or special terms, to allow. This leads at once to the second point which is that, in accordance with well-established principle, reg. 275 (36) should be understood as providing, by the discretion it creates, a means for the effectuation of the purposes of the Act. It is no objection to the validity of reg. 275 (36) that the discretion has been reserved by the commissioners to themselves: Cook v. Buckle [1] ; and the important consideration is that it is a discretion reserved to the body whose regulation-making power and administrative power both exist to subserve the same general objects. For the purpose of deciding the true subject-matter of the regulation, the discretion must be considered as one properly exercisable only upon grounds within the scope of the purposes for which the Harbor Trust Commissioners are established by the Act: see Arthur Yates & Co. Pty. Ltd. v. Vegetable Seeds Committee [2] , and cases there cited. The operation of par. (36), therefore, is to prohibit within the port area such addressing of assemblages as the commissioners do not decide to allow in the due exercise of a discretion in the exercise of which they are in duty bound to confine their attention to matters relevant to the control and management of the port as a port.

[23]

The Melbourne Harbor Trust Act 1928, by which the Melbourne Harbor Trust Commissioners are constituted, is expressed to be an Act to consolidate the law providing for the Regulation, Management and Improvement of the Port of Melbourne and certain portions of the River Yarra Yarra and certain portions of the Maribyrnong River and for other purposes connected therewith. By s. 46 the bed and soil and shores of the waters and the pieces or parcels of land within the metes and bounds described in certain parts of a schedule to the Act are thereby declared to have been vested in the commissioners under former Acts relating to the Melbourne Harbor Trust upon trust for the purposes of the said Acts and provision is made for the same lands to continue to be vested in the commissioners upon trust for the purposes of the Melbourne Harbor Trust Act. "The Port" is defined by the Act to mean so much of the Port of Melbourne the waters falling into it and the lands on the margin as is included within the metes and bounds referred to above with one immaterial exception. The Act makes comprehensive provision with respect to the powers of the commissioners and it is of some importance to refer to some of its provisions. Perhaps the leading provision is s. 48 which declares that, except as expressly provided in other sections of the Act, the exclusive management and control of the port, shipping, lightships, buoys, beacons, moorings, wharves, docks, piers, jetties, ferries, landing-stages, slips or platforms, lighthouses and the preservation and improvement of the port generally shall be vested in the commissioners and shall not be interfered with by any person whatsoever. Section 47 casts a duty upon the commissioners to maintain the piers vested in them by the Melbourne Harbor Trust Act 1912 Vict. and any extensions of such piers and of railway lines on such piers and extensions thereof and of machinery and appliances a???ixed to such piers in good order and condition and of such strength and stability as to carry safely any locomotives carriages and waggons of the Victorian Railway Commissioners. The commissioners may resume (s. 49) or sell or lease land (ss. 50 and 51); they may acquire, construct, equip, maintain and manage docks and dockyards within the port and carry on business as dockyard proprietors, shipwrights and ship repairers (s. 60), construct, erect and maintain such depots and sheds for the reception of goods and construct, erect and maintain such steam engines, cranes, hoists and weighing machines and other apparatus for facilitating the loading and discharging or the masting or unmasting of vessels and provide such other conveniences upon or near the wharves docks piers sheds landing-stages slips or platforms as the commissioners think expedient for the trade of the port (s. 62). For the purpose of maintaining and improving the navigation of the rivers within the port the commissioners may from time to time as occasion may require dredge, cleanse and scour the said rivers and alter vary deepen restrict cleanse scour cut enlarge diminish contract shorten widen straighten and improve the bed and channel of the said rivers (s. 64). By s. 91 a duty is imposed upon the commissioners to make and maintain proper roads and approaches to all wharves docks piers jetties landing-stages slips or platforms depots and sheds erected upon the lands vested in them or which might thereafter be erected and by s. 89 they are authorized, subject to the conditions therein specified, to raise destroy remove or take away any vessel or wreck of any vessel which has sunk or stranded within the port. By s. 138 wide regulation-making powers are conferred upon the commissioners. In particular, the commissioners are authorized, subject to the provisions contained in the Act and so far as consistent therewith, to make regulations for or relating to any of a number of subjects including: - (i) the improvement and management of the port; and (q) the working of coaches cabs drays carriages and other vehicles and the conduct and behaviour of porters carters draymen coachmen ferrymen and others resorting to the rivers piers wharves docks jetties landing-stages canals or other work within the port, and for prohibiting persons from acting as porters carters draymen and cabmen within the port without previously obtaining a licence to that effect, and generally for carrying out the objects and purposes of the Act.

[25]

The other heads of power to which I have referred are not, however, similarly restricted and it was contended that they constitute an adequate foundation for the sub-regulation. But it appears to me to be open to serious question whether the provisions of s. 138 (i) are sufficient to support the regulation. The word "management" by itself, is, of course, a word of wide implication but it is a word of such elastic meaning that its true significance in any statute must often depend upon the context in which it is used. In s. 138 (i) it is used in association with the word "improvement" and the power which is conferred is a power to make regulations "relating to the improvement and management of the port". By virtue of the general powers conferred upon the commissioners they undoubtedly have authority to improve and manage the port. But it is not a power conferred in relation to persons or things or matters other than those things or matters comprehended by the expression "the Port", though it is quite clear that the exercise of the power in relation to the port may, on occasions, operate to restrict the movements or activities of persons using the port or within the port. Pursuant to this power the commissioners may take appropriate steps to prevent any activities which tend to disrupt the working of the port or to impair its efficiency. Indeed, they may, I should think, in the course of their control and management of the port, perhaps unconditionally, exclude members of the public therefrom, though any such exclusion could not be made to apply to the small area or areas which may be the subject of private ownership (cf. Colonial Sugar Refining Co. Ltd. v. Melbourne Harbor Trust Commissioners [1] ). The justification for such action would, of course, be not only the power vested in the commissioners to manage and control the port but also their proprietary interest in the area itself. Perhaps it may be said that the exclusive power of the commissioners to manage and control a port, the legal title to which is vested in them upon trust for the purposes of the Act is tantamount to complete administrative control of the area. They are not, of course, in the same position as a legal and beneficial owner of land, but their administrative powers and discretions are of an extremely wide nature. But it does not follow that their powers as a law-making authority are equally wide. Indeed, although they may exercise general administrative authority practically throughout the area, they are not a subordinate law-making body having general legislative authority over the area. So far as is material to this case their legislative authority is to "make regulations for or relating to the improvement and management of the Port" and "generally for carrying out the objects and purposes of" the Act.

At a glance

Court

Decision date

Before

Source

Judgment (31 paragraphs)

Parties

Cited By (3)