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[1960] HCA 49
High Court of Australia
1960-07-01
Windeyer JJ, McTiernan J, Kinsella J
Original judgment source is linked above.
For the reasons stated, I would allow the appeals with costs and set aside the orders of the Supreme Court. In lieu thereof I would make an order in each case that the appeal to the Supreme Court be allowed with costs; that the determination of the magistrate be set aside; that the question in the case stated, namely whether the magistrate's determination in dismissing the information was erroneous in point of law, be answered: Yes; and that the matter be remitted to the magistrate for determination accordingly.
The question here is whether the legislature of New South Wales intended to give electors of local governing bodies in the State a right to inspect their accounts; or whether it intended only that the Government might permit them to do so if it chose.
In my view the words "as prescribed" that appear, somewhat clumsily, in s. 215 of the Local Government Act 1919 do not make that section depend for its effectual operation on something being prescribed. This is not, it seems to me, a case where a prescription of something pursuant to a statute is necessary to complete a statutory right. It is rather a case of the statute recognizing that a right given by it may be further defined, or its exercise regulated, by ordinance. The distinction between the two classes of cases is clear. But sometimes, as here, a question can arise as to which result the language of a particular enactment produces. Where it is said that something is to be done in a prescribed manner, and there are several ways in which that very thing can be done, then, prima facie, the enactment is ineffectual until one of those ways be prescribed (Browne v. Commissioner for Railways [1] ; Cameron v. Deputy Federal Commissioner of Taxation (Tas.) [2] ). In such cases life and vigour is only given to the statute when what is to be prescribed has been prescribed - for example, a prohibition against travelling at a speed greater than the prescribed maximum could not be contravened until a maximum had been prescribed. There are several provisions of the Local Government Act in which the words "as prescribed" have that result - for example s. 90 (1), which requires a council to appoint an engineer, "who shall hold a certificate as prescribed". But that does not mean that wherever the words "as prescribed" appear in the Act in connexion with a right or duty, no right is created or duty imposed until something be prescribed. For example, s. 425 (3) provides that when an animal is impounded "the poundkeeper shall give such notices by post, exhibition, or advertisement as shall be prescribed, and shall feed and care for such animal as prescribed". If, in fact, nothing were done to prescribe what notices should be given, then the poundkeeper might have no obligation under the statute to give any notice; but, in my view, he would be under a statutory obligation to care for and feed the animal even if nothing about this were prescribed: cf. Graham v. Fennell [1] .
The argument for the respondents that under s. 215 the right of an elector to see the books of account is established only when something in relation to it is prescribed may be tested by asking what would have to be prescribed - the manner in which the books or report were to be inspected, it was said. But there is really only one way to inspect a document, that is by looking at it, examining it visually. What the argument really meant was that conditions or circumstances in which the right of inspection might be exercised must be prescribed. But what? Would an ordinance prescribing that a person wishing to make an inspection should give his name and address and satisfy the town clerk that he was entitled to be an elector bring s. 215 to life? Would an ordinance imposing a penalty upon any elector who during an inspection should mark or deface any book do so?
The respondents' view appeared to be that an enlivening ordinance would have to lay down the times when an inspection might be made. But this seems to have been induced because the section that in the Local Government Act 1906 corresponded with the present s. 215, and indeed the corresponding provisions in all Acts since the Municipalities Act of 1867 s. 181, referred to inspection "at all reasonable times". Suppose an ordinance prescribed that inspection might be had during the hours when the council's office is open, except when the book be actually required by the council's staff or by the auditor. That would really do no more than express what surely would otherwise be implicit in a right to inspect at the council's office. Grave difficulties were suggested if no express conditions as to time and so forth were prescribed. But these were, in my view, unreal imaginings. Under the New South Wales Companies Act 1936, ss. 369 and 187 (3), for example, documents filed with the Registrar-General are open for inspection by any person. But that does not mean that anyone can insist on seeing them at midnight or while someone else is actually inspecting them. It is worth noticing that no express limitation of the hours during which an elector may exercise his rights to inspect election documents is provided for in s. 73 (5) of the Local Government Act.
In short, although counsel for the respondents contended that before a right of inspection under s. 215 could be availed of by an elector some conditions of its exercise would have to be prescribed, the argument did not reveal what sort of conditions these must be. My conclusion from this is that which my brother Kitto reaches in his judgment which I have had the advantage of reading. I also agree with him that the words "as prescribed" in s. 215 and the provisions of s. 218 (m) are complementary rather than tautological.
The prosecution was under s. 217, which makes any member or servant of the council who does not permit an elector to make any inspection authorized by the Act liable to a penalty. Whether a person does not permit an inspection is a question of fact. Merely requiring an elector to come at a convenient time is not necessarily a refusal of permission: compare R. v. Wilts and Berks Canal Company [1] , but the suggestion in that case that a person desiring to make an inspection must state his object is, as Chitty J. held, in Holland v. Dickson [2] , incorrect. Indeed if a person has a right of inspection he may exercise it whatever his motive for doing so: Mutter v. Eastern and Midlands Railway Co. [3] ; Davies v. Gas Light and Coke Company [4] . A right to inspect a book of account is a right to see the whole of the entries in it. For, as Chitty J. put it in Holland v. Dickson [2] , "the right is to have access to the book, and the directors of the company are wrong in saying that plaintiff shall have access to part only of the book when the right of access is not so limited by the statute" [5] . The right of an elector to see the council's books of account is an important safeguard of the integrity of the system of local government. And, speaking generally and not in relation to this particular case, its importance would be much diminished if it enabled an elector to ascertain only that certain sums of money had been collected and disbursed. The public value of the safeguard may lie in electors being able to ascertain to whom funds in the control of a council have been paid.
I agree with Kinsella J. that a right of inspection carries by implication a right to take copies or extracts. This is established by the judgment of the Court of Appeal in Mutter v. Eastern and Midland Railway Co. [3] . Mr. Rath suggested that that decision could be distinguished because of the contrast made in one passage in Lord Lindley's judgment, between a section that there imposed a penalty and one that did not. The same argument was addressed to Stirling J. in Nelson v. Anglo-American Land Mortgage Agency Company [6] and decisively rejected - I respectfully think rightly. A right to take copies does not accompany a right of inspection if it be impliedly excluded by express provisions in the statute enabling copies to be had on payment: In re Balaghât Gold Mining Company [1] . But that is not the case here. A right of inspection need not ordinarily be exercised personally. A person having the right may ordinarily appoint an agent, such as an accountant, to make the inspection for him: Norey v. Keep [2] ; Dodd v. Amalgamated Marine Workers' Union [3] ; R. v. Bedwellty U. D. C.; Ex parte Price [4] ; Edman v. Ross [5] .
I would allow the appeals. I agree with the order proposed by my brother Kitto.
Downey
Pryor
High Court of Australia McTiernan, Kitto and Windeyer JJ. Downey v Pryor [1960] HCA 49