Clements v Bull

It is obvious that s. 138 does not invest the commissioners with power to legislate for the general good government of the port area. The province of the commissioners is confined to the management and control of the port as a port, and their law-making power is correspondingly circumscribed. As Fullagar J. mentioned in Kenneally v. Berman [1] , it is no part of the purposes (in the sense of the direct purposes) of the Melbourne Harbor Trust Act to control the behaviour of persons within the port.

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.

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.

1. (1917) 23 C.L.R. 311. 2. (1945) 72 C.L.R. 37.

Then, is there a connection between a provision having this operation and the effective control of the port with a view to the more efficient performance of its functions as a port? And, if so, is that connection such that a regulation making the provision can fairly be called a regulation for or relating to the management of the port, or a regulation for carrying out the purpose consisting of the exclusive management and control of the port by the commissioners? In our opinion both questions should be answered in the affirmative. The reason why such a provision may be considered desirable by a port authority springs at once to the mind. It is self-evident that the addressing of assemblages within the confines of a port, while in some circumstances it may be innocuous or even desirable, in other circumstances may cause very serious dislocation or interference in the carrying on of the work of the port. Whether it is likely to have such an effect in a particular instance necessarily depends upon the time, the place, the size and nature of the assemblage, the character of the address, and all the circumstances. At any given time there will almost certainly be some places within the port, and at many places within the port there will very probably be some times, at which the efficient and convenient working of the port will be interfered with if people are held together in an assemblage, or an assemblage of a particular size or kind, by the action of a speaker in addressing them. If interference with legitimate port activities by the addressing of assemblages is to be prevented but that activity is not to be completely proscribed, it is a matter of practical necessity, in order to give sufficient flexibility to the provision, that the right to address an assemblage shall be made conditional upon the exercise of a discriminating and therefore discretionary judgment according to the exigencies of time, place and circumstance.

If it is true, as we think it is, that a port in which the addressing of assemblages is forbidden in the absence of a written consent of the authority charged by statute with its management and control can reasonably be considered on that account to be better-managed or better-controlled as a port than it would otherwise be, we are of opinion that the validity of reg. 275 (36) should be affirmed. Cf. De Morgan v. Metropolitan Board of Works [1] ; Fox v. Allchurch [2] ; (affirmed as to other points [3] ).

1. (1880) 5 Q.B.D. 155. 2. (1927) S.A.S.R. 328, at p. 336. 3. (1927) 40 C.L.R. 135.

I would dismiss this appeal substantially for the reasons given by Fullagar and Taylor JJ. whose judgments I have had the advantage of perusing.

To hold that reg. 275 (36) of the Melbourne Harbor Trust Regulations is valid would be I think to mistake the identity of the subject matter of regulations under s. 138 of the Melbourne Harbor Trust Act 1928 Vict. and to read s. 138 as conferring authority to make regulations for the general conduct of persons within the port area, as if the power were to make regulations for the peace, order and good government of the area. The extensive category of matters upon which regulations may be made, set out in s. 138, and the grant of specific powers to the commissioners by ss. 47 to 51 inclusive, and by ss. 60, 62, 89 and 91, would appear to be a waste of words if the regulation-making power were broad enough to warrant reg. 275 (36). No doubt regulations, like statutes, must as a matter of practical necessity be expressed in general terms to cover all cases likely to arise, and there is a practical limit to the exceptions that might be specified to avoid absurd cases. In regulations under State Traffic Acts the speed limit may be so fixed as to be absurd on some lonely roads. Yet the validity of such a speed limit is never questioned because it is not practicable to fix the limit for different roads or different parts of roads and at different times of the day. But the speed limit is always fixed for public roads and never for private roads. Here, however reg. 275 (36) purports to prohibit the holding of meetings or the addressing of assemblages within the port, without the consent of the commissioner, and so it purports to extend to meetings and assemblages for any purpose in private homes or buildings or otherwise on private lands. It is noted that by ss. 49 to 51 inclusive the commissioners have power to resume and to sell or to lease lands. In any event it is conceded that there are already privately owned lands and buildings within the port area.

In this case I agree with the judgments delivered in the Full Court of Victoria by Martin J. and Smith J. Those judgments have, I think, withstood the criticisms to which they were - very properly, of course - subjected.

I do not think that anything turns on the precise limits of the "Port of Melbourne", and, even if it be true that there was no evidence that there is any "private property" within the limits of the port, I do not think that the substance of the objection to the by-law in question is affected thereby.

The regulation in question cannot, in my opinion, be supported under s. 138 (q) of the Melbourne Harbor Trust Act 1928 Vict.. It is not limited in its operation to the places within the port which are specified in that paragraph. Even if it were so limited, I think that its validity would be at least open to serious doubt. It is probably quite correct to say that the words "and others" in s. 138 (q) are not to be limited by reference to the so-called " ejusdem generis " rule. But the whole framework of par. (q) suggests that the "conduct and behaviour" which may be controlled by regulation is conduct and behaviour which is relevant to the functions of a porter, carter, drayman, coachman, ferryman, or other person whose occupation takes him to works within the port. I would hardly think that par. (q) authorized the Commissioners to enact a general criminal code superseding or supplementing within the port the Crimes Act 1928 Vict. and the Police Offences Act 1928 Vict..

I would agree that a liberal construction should be given to the word "management" in s. 138 (i) of the Act, notwithstanding its collocation with the word "improvement". But I would also agree with Smith J. that the scope of the word "management" does not go beyond such matters as "the safe, orderly, convenient and efficient, handling of ships and their cargoes and passengers, including, of course, loading and unloading, embarkation and disembarkation, and ancillary matters". Such ancillary matters would plainly include, I should think, pilfering and smuggling, and a regulation which could reasonably be regarded as tending to the prevention of such practices, would, as it seems to me, be within power. On this basis there is no difficulty in justifying the decisions in McGowan v. Burns [1] , Prendergast v. Williams [2] , and McCrae v. Downey [3] . But the regulation now in question goes far beyond the scope of par. (i) as so understood.

1. (1914) V.L.R. 158. 2. (1923) V.L.R. 643. 3. (1947) V.L.R. 194.

It was argued with much force that the whole approach of Martin J. and Smith J. to the problem before them was wrong. It was said that it is a grave mistake, when the validity of a by-law is in question, to begin by "thinking up" examples of the possible application of the by-law which are at once seen to be capricious, fanciful or absurd, and then to say that the power cannot possibly extend to the creation of such consequences. It was said that such an approach amounted to a reversion to the discredited idea that a by-law could be held invalid because it appeared to a court to be an "unreasonable" provision (see Williams v. Melbourne Corporation [4] ). Such an approach might well be thought to deserve the criticism directed against it. But I am clearly of opinion that no such approach was made by the learned judges of the Supreme Court. What their Honours were in substance saying was this. The power invoked is a power to make by-laws relating to the management of the Port of Melbourne. The by-law enacts a prohibition which extends to acts and things which cannot reasonably be regarded as the concern of a corporation charged with the management of a port or harbour. It goes, therefore, outside the scope of what is authorized. If the power invoked had been a power to prohibit or regulate the holding or addressing of meetings within the port, the illustrations given by their Honours would have been entirely beside the point, as they would have been the first to recognize. The case, indeed, well illustrates, I think, the relevance, and the only relevance, of "unreasonableness" in relation to the validity of a by-law.

Some reliance was placed on the fact that the soil of the port is vested in the Commissioners. I would not be prepared to say that that fact is irrelevant to the construction of the provisions of the Act which confer on the Commissioners their by-law-making powers: see Melbourne Corporation v. Barry (per Isaacs J.) [1] . But that fact cannot, in my opinion, justify the extension of the scope of s. 138 (i) so as to authorize the by-law now in question. The true view is, I think, indicated in the judgment of Macfarlan J. in Prendergast v. Williams [2] . His Honour held the by-law there in question to be valid on grounds unconnected with the "vesting" of the port in the Commissioners, but in the course of his judgment he said: - "Where property is vested in a public body the Court will construe more liberally its power to make regulations than in the case of a public body which has merely the management. But, having regard to the public purposes for which the land is vested in the Commissioners, that distinction has not influenced me to any extent in coming to my decision. In saying this I am influenced by the other provisions of the Act to which I have referred, which seem to recognize that, in spite of the property being vested in them, the Commissioners have practically not the powers of an owner, and the Act takes care to give them specific powers in many cases which would be unnecessary if the general power is as wide as is contended for." [2] .

1. (1922) 31 C.L.R. 174, at p. 202. 2. (1923) V.L.R. 643, at p. 649. 3. (1923) V.L.R. 643, at p. 649.

One is conscious that the decision in this case may seem technical and unpractical and to be lacking in appreciation of the problems of the Commissioners and their officers. It is not, of course, to be supposed that prosecutions would be launched in respect of such harmless gatherings as are instanced in the judgments under appeal, and it is not difficult to understand that gatherings may and do take place which, if not nuisances in the technical sense, are a real source of disturbance and annoyance in the port. And it may well be that a fairly drastic regulation affords the only practical means of dealing with the problem: cf. Jenner v. Shire of Mildura [3] . But, on the legislation as it stands, it has not seemed to me to be possible, in accordance with established principles, to hold that reg. 275 (36) of the Melbourne Harbor Trust Regulations is within the powers given by Parliament to the Commissioners.

This is an appeal by leave from an order of the Supreme Court of Victoria discharging two orders nisi to review made in respect of the conviction of the present respondent of each of two offences. The information alleged, in the first case, a breach of reg. 275 (36) of the regulations made by the Melbourne Harbor Trust Commissioners pursuant to the Melbourne Harbor Trust Act 1928 Vict. and, in the second case, a breach of reg. 24 of those regulations. In the Court of Petty Sessions and in the Supreme Court the validity of reg. 275 (36) was attacked and on each occasion the attack was successful. The question of the validity of this sub-regulation is the only question before this Court, it being conceded that if it should be held to be invalid the appeal must be dismissed in its entirety. In terms reg. 275 (36) provides as follows: "Every person who shall commit any of the acts following shall be guilty of an offence, that is to say: - 36. Hold any meeting or address any assemblage within the Port without the consent of the Commissioners in writing".

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.

At the outset I should say that counsel for the appellant indicated that he did not rely on the provisions of sub-s. (q) as a source of power to justify reg. 275 (36) and in these circumstances it is sufficient to say that no legal justification for the sub-regulation could be found in that sub-section. The relevant subject upon which, under that sub-section, regulations may be made is the conduct and behaviour of persons resorting to the rivers piers wharves docks jetties landing stages canals or other works within the port. This being so, it would be idle to suggest that it could support a regulation prescribing a rules or rules of conduct for persons generally within the port.

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.

The first of these heads of power is, in my opinion, clearly insufficient to justify the sub-regulation. As a subject matter of subordinate legislation the "improvement and management of the Port" has no direct relation to the conduct or behaviour of persons within the port which, in my view, is the substance of the provision made by reg. 275 (36). Undoubtedly, a regulation validly made in relation to the improvement and management of the port may impinge upon the rights of individuals, but that head of power cannot support a regulation prohibiting a course of conduct within the port merely because it is possible that such conduct may, on some occasions or in some circumstances, impede the efficient working of the port.

Counsel for the appellant conceded, and I think rightly conceded, that the general head of power to which I have referred does not extend further than to authorize the making of such regulations as may be "necessary and convenient to be prescribed for carrying out or giving effect to the purposes" of the Act. Such a power does not, however, authorize the making of regulations which "go outside the field of operation which the Act marks out for itself". The quotation is taken from the judgment of the Court in Morton v. Union Steamship Co. of New Zealand Ltd. [1] , where it was said that: "A power expressed in such terms to make regulations enables the Governor-General in Council to make regulations incidental to the administration of the Act. Regulations may be adopted for the more effective administration of the provisions actually contained in the Act, but not regulations which vary or depart from the positive provisions made by the Act or regulations which go outside the field of operation which the Act marks out for itself. The ambit of the power must be ascertained by the character of the statute and the nature of the provisions it contains. An important consideration is the degree to which the legislature has disclosed an intention of dealing with the subject with which the statute is concerned" [1] .

1. (1951) 83 C.L.R. 402. 2. (1951) 83 C.L.R., at p. 410.

The vital purpose of the statute with which we are concerned is to vest in the commissioners wide administrative powers with respect to the port and things and activities inseparably connected with it and it is clear that the regulation-making power is given in order to secure the more effectual exercise of those powers. The latter power is an authority which is incidental to the power to control and manage and to the other numerous administrative powers given by the Act. The extent of this authority was indicated by the judgment of Fullagar J. in Kenneally v. Berman [2] when his Honour said: "Finally, I am of opinion that the regulation cannot be supported under the general power to make regulations "generally for carrying out the objects and purposes of the Act". The meaning of such expressions as "purposes of the Act" in various contexts is discussed at great length by Isaacs J. in James v. Cowan [3] , in a judgment subsequently described by the Privy Council as "convincing" [4] . It is no part, I think, of the purposes of the Melbourne Harbor Trust Act to control the behaviour of persons within the port. It may be very desirable that the Commissioners, in whom the port is vested, should have such control, and specific power is given by paragraph (q) (as to the width of which see McGowan v. Burns [5] , and Prendergast v. Williams [6] ). But "purposes" in such a context means "direct purposes", see [7] . The words do not, in my opinion, include as a purpose any and every thing which may tend indirectly to the more efficient conduct of commercial activities in the harbour" [8] .

1. (1949) V.L.R. 362. 2. (1930) 43 C.L.R. 386, at pp. 404-414. 3. (1932) A.C. 542, at p. 561. 4. (1914) V.L.R. 158. 5. (1923) V.L.R. 643. 6. (1930) 43 C.L.R., at pp. 410-411. 7. (1949) V.L.R., at pp. 364-365.

No power is conferred by the general words of s. 138 to make regulations generally for the management and control of the port or with respect to the things and activities specified in s. 48 and the sections, other than s. 138, to which I have referred; the power which is conferred is a power to make regulations for the more effective exercise of the commissioners' powers under the Act. Perhaps the distinction between these two conceptions is made to appear more clearly by a consideration of some of the particular powers conferred upon the commissioners. They are, for instance, given power by s. 89 to raise, destroy or remove any vessel or the wreck of any vessel which has sunk or stranded within the port and, no doubt, in a general sense the object or purpose of the provision may be said to be the removal of wrecks from the port. But it could not be suggested that the commissioners have power under the concluding words of s. 138 to make regulations generally for the removal of wrecks within the port, although, undoubtedly, they have power to make regulations in aid of the power which is conferred upon them and which is the real and direct object and purpose of s. 89. Similarly, the object and purpose of s. 48 is to vest an exclusive power of management and control in the commissioners and the regulation-making power is given in aid of this and the other powers conferred and duties imposed upon them. In these circumstances it cannot, I think, be said that a regulation, the substance of which is the control of persons and which is not directly related to or concerned with the exercise of any power, authority or discretion vested in the commissioners, is "necessary or convenient to be prescribed for carrying out the objects and purposes thereof" or made "for carrying out the objects and purposes of the Act". Accordingly I am of the opinion that the appeal should be dismissed.