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[1984] HCA 50
High Court of Australia
1984-08-20
Original judgment source is linked above.
Gibbs C.J.(1), Murphy(2), Wilson(3), Brennan(4) and Dawson(5) JJ.
Solicitor for the Appellant: Lempriere Abbott McLeod
GIBBS C.J. The question for decision on this appeal is whether s.1 of By-law No. 8 of the by-laws of the City of Adelaide is a valid provision.
2. By-law No. 8 is headed "Rundle Mall" and its purpose, as described in its title, is "To regulate control or prohibit certain activities in Rundle Mall and in the vicinity of Rundle Mall that are, in the opinion of the Council, likely to affect the use or enjoyment thereof." Section 1 of By-Law No. 8 is in the following terms:
means the Council of the Corporation of the City of Adelaide, "adjacent to the Mall" means within a distance of ten metres from the Mall and "permission" means permission in writing. Section 21 provides that permission under the by-law "may be general or specific and may relate to a person or class of persons" and s.22 empowers the Council to attach conditions to the grant of permission. Rundle Mall is in the heart of the retail store area of the City of Adelaide and pedestrian traffic is more dense there than anywhere else in that city.
3. As the title of By-law No. 8 shows, the by-law was made in intended exercise of the power conferred by s.11(1)(a) of the Rundle Street Mall Act 1975 (S.A.), as amended, which provides as follows:
"In addition to and not in derogation from its
other powers to make by-laws the Council may make
by-laws -
(a) regulating, controlling or prohibiting
any activity in the Mall or any activity
in the vicinity of the Mall that is, in
the opinion of the Council, likely to
affect the use or enjoyment of the Mall".
The Council referred to in the section is the Council of the Corporation of the City of Adelaide: see s.3. By s.11(2) it is provided that the Local Government Act 1934 (S.A.), as amended, shall apply to and in relation to a by-law made under s.11(1) as if it were a by-law made under that Act.
4. As the words of s.11(1)(a) plainly show, the Council may make a by-law regulating, controlling or prohibiting any activity in or in the vicinity of the Mall if, in the opinion of the Council, that activity is likely to affect the use or enjoyment of the Mall. In the present case the Council by resolution adopted (inter alia) a recommendation of one of its committees which was in the following terms:
"(1) The Council of The Corporation of the City of
Adelaide is of the opinion that certain
activities in and within the vicinity of
Rundle Mall, which activities are more
particularly described in the by-law entitled
By-law No. 8 - Rundle Mall, are likely to
affect the use or enjoyment of Rundle Mall;
(3) Therefore in exercise of the powers contained
in the Rundle Street Mall Act 1975-1976, the
Local Government Act 1934-1981 and of every
power thereunto enabling, the said Council
HEREBY MAKES the said By-law No. 8 - Rundle
Mall."
5. The formal adoption by the Council, by resolution, of the recommendation that the Council be of the specified opinion had the same effect as a resolution that the Council was of that opinion: cf. Willing v. Young (1974) 11 SASR 86, at p 90. The Council sufficiently expressed its opinion in the only way possible, i.e. by resolution. There is no suggestion of mala fides in the sense that the Council was not in truth of the opinion which it professed to hold.
6. When a power to make by-laws is conditioned upon the existence of an opinion, it is the existence of the opinion, and not its correctness, which satisfies the condition. However, that does not mean that an exercise of the power is immune from challenge, even if the opinion, which was a condition of that exercise, was made in good faith in the sense that it was honestly held. In my respectful opinion the law was correctly stated by Latham C.J. in R v. Connell; Ex parte The Hetton Bellbird Collieries Ltd. [1944] HCA 42; (1944) 69 CLR 407, at pp 430-432. Latham C.J. said, at p 430:
"Thus, where the existence of a particular opinion
is made a condition of the exercise of power,
legislation conferring the power is treated as
referring to an opinion which is such that it can
be formed by a reasonable man who correctly
understands the meaning of the law under which he
acts. If it is shown that the opinion actually
formed is not an opinion of this character, then
the necessary opinion does not exist."
"It should be emphasized that the application of
the principle now under discussion does not mean
that the court substitutes its opinion for the
opinion of the person or authority in question.
What the court does do is to inquire whether the
opinion required by the relevant legislative
provision has really been formed. If the opinion
which was in fact formed was reached by taking into
account irrelevant considerations or by otherwise
misconstruing the terms of the relevant
legislation, then it must be held that the opinion
required has not been formed. In that event the
basis for the exercise of power is absent, just as
if it were shown that the opinion was arbitrary,
capricious, irrational, or not bona fide."
A similar view has been expressed in New Zealand where it has been said that when the test is subjective, as for example when the legislation confers power on a body "when it is satisfied" of something, if the body in whom the power is reposed was in fact satisfied, its decision cannot be attacked unless it "could not on any reasonable basis have reached that decision": Edwards v. Onehunga High School Board (1974) 2 NZLR 238, at p 243.
7. The questions whether the necessary opinion is one which no reasonable council could have formed, and whether the council has misconstrued the statute or taken extraneous matters into account, may sometimes be connected and overlap, but in the present case it is sufficient to inquire whether the activity described in s.1 of By-law No. 8 could reasonably have been regarded as likely to affect the use or enjoyment of the Mall. If that question is answered in the affirmative there is no ground on which it could be concluded in the present case that the Council has misconstrued the effect of s.11(1)(a) or has taken into consideration matters which it was improper for it to consider. It was submitted on behalf of the appellant that the description of the activities referred to in s.1 of By-law No. 8 is very wide and capable of including many activities that on any view are entirely innocent and innocuous. It was said that the words "bystander or passer-by" include all persons who happen to be in or near the Mall, whether or not they had any antecedent relationship with the persons whose activity was in question, and that the words "give out or distribute" may include a single act. Therefore it was suggested that, for example, a mother handing sweets to her children, a person handing a cigarette to his friend or a storekeeper delivering goods to a customer would be giving out or distributing something to a bystander or passer-by. In my opinion the by-law does not have this effect. The reference to "any bystander or passer-by" describes the relationship of the person to whom the thing is given or distributed vis a vis the person who gives it. The words "give out" and "distribute" are synonymous; the relevant sense of the word "distribute" is "to deal out or bestow in portions among many" and the expression "give out" in its relevant sense means "to issue; to distribute" (see Shorter Oxford English Dictionary). The composite expression does not signify an act intended to be done in isolation, but the use of the singular, "bystander or passer-by", shows that an offence will occur although the article is given to one person only. However, since the recipient must be a bystander or passer-by, the intention of the by-law is to prevent the distribution of articles to members of the public who are unconnected with the person making the distribution but who happen to be in or about the Mall.
8. Once it is understood that the by-law has this limited operation, and that it does not forbid one individual to give something to another in the ordinary course of a pre-existing relationship between them, it is not possible to say that the Council could not reasonably have formed the opinion that the prohibited activity was likely to affect the use or enjoyment of the Mall. The articles most likely to be the subject of a distribution would appear to be handbills and pamphlets designed to impart political, religious or philosophical ideas or to serve as advertising material, but it is possible to envisage that many other things - such as tickets or samples of goods - might also be distributed. The wholesale distribution of things in the Mall is likely to detract from the enjoyment of persons using it, since there are some persons who object to having unwanted articles foisted upon them, or who are embarrassed when that occurs. The possibility exists that unwanted articles distributed in this way will be abandoned, thus littering the Mall. The activities of those making the distribution may impede the ordinary flow of pedestrian traffic through the Mall, and in that way adversely affect its use. It is true that the by-law is drafted very widely - some might think too widely - but provided that the activities which are regulated, controlled or prohibited are of the description to which s.11(1)(a) refers, the fact that the by-law may be thought to go further than was necessary is not in itself any ground for invalidating it. In the same way the fact that the prohibition may extend to some acts which in fact could not affect the use or enjoyment of the Mall does not mean that the by-law is beyond power if the activity generally is one which could reasonably be considered as likely to affect that use or enjoyment: see Seeligson v. City of Melbourne [1935] VicLawRp 66; (1935) VLR 365, at pp 369-370.
9. It was argued that a statutory provision will not be construed as interfering with the liberty of the individual unless an intention to do so clearly appears, and as a general proposition that is correct. Then it was said that s.11(1)(a) should not be understood as giving power to make a by-law which, like s.1 of By-law No. 8, may restrict the freedom of communication of ideas and opinions. However, the unrestrained exercise in or near the Mall of the freedom to speak or to communicate opinions might, in some circumstances, have an adverse affect on the use or enjoyment of the Mall. For example, the level of noise produced by the use of an amplifier in broadcasting a political address might be very great, or the insistence of persons forcing pamphlets on passers-by might be aggravating or provocative. The legislature has left it to the Council to decide whether it should regulate, control or prohibit an activity if, in the opinion of the Council, it is likely to affect the use or enjoyment of the Mall, even if the regulation, control or prohibition will to some extent limit the freedom of speech or communication of those engaging in the activity. It has been left to the Council, and not to the courts, to weigh the need to respect the freedom of speech and communication against the desirability of protecting other users of the Mall from an activity which may adversely affect their use or enjoyment of it. In the end, the question for the courts is simply whether the Council could reasonably have formed the opinion that the activity is likely to affect the use or enjoyment of the Mall. In my opinion the Council could reasonably have formed that opinion in the present case.
10. An alternative argument advanced by the appellant was that the by-law was bad because it allowed the Council to decide in any particular case whether or not it should give its permission to the doing of that which is prohibited in the absence of its permission. This, it was said, meant either that the Council had not formed the requisite opinion, but had deferred making it, or, alternatively, that it had improperly delegated to itself the power to decide whether the activity should be prohibited, controlled or regulated in a particular case. Sections 668-670 of the Local Government Act 1934 (S.A.), as amended, place certain controls on the making of by-laws, including the requirement that a by-law may be made only at a meeting of the Council at which two-thirds of the members are present (s.668) and it was submitted that the course taken enabled the Council to escape from those controls. I cannot accept these arguments. The Council did decide, by the resolution already mentioned, that the activity described in the by-law was one which was likely to affect the use or enjoyment of the Mall. It did not leave it to a subsequent meeting of the Council to decide whether the activity should be regulated, controlled or prohibited. On the contrary, the by-law itself, by providing that the activity should not be carried on without the permission of the Council, imposed a conditional prohibition on the activity.
11. In support of the argument that there was an improper delegation in the present case, counsel for the appellant relied on some dicta of Higgins J. in Melbourne Corporation v. Barry [1922] HCA 56; (1922) 31 CLR 174, at pp 208-209, and of Evatt J. in Swan Hill Corporation v. Bradbury [1937] HCA 15; (1937) 56 CLR 746, at pp 764, 771. In Melbourne Corporation v. Barry a by-law, made under a power to regulate traffic and processions, forbade processions without the consent of the Council. It was held that the by-law enabled the Council to prohibit processions, and that it went beyond regulation and was accordingly invalid. Higgins J., alone among the members of the Court, held the by-law bad on the additional ground that it made an improper delegation "from ... the by-law making Council to the ordinary meeting of the Council": see at p.208. However the later decision of the Court in Country Roads Board v. Neale Ads Pty. Ltd. [1930] HCA 5; (1930) 43 CLR 126 is in my opinion quite inconsistent with the view expressed by Higgins J., at p 208, that even if the statute had sanctioned a by-law prohibiting a procession, the prohibition could only be by by-law and not by the council acting at an ordinary meeting. In that case a board was empowered to make by-laws for "regulating or prohibiting" the erection or construction of hoardings, and the Court held valid a by-law the effect of which was, inter alia, to forbid advertising hoardings unless the consent of the board was given. Knox C.J., Starke and Dixon JJ. said, at p.134, that "it is clear that when the purpose of a power includes both prohibiting and regulating, it must authorize a by-law which forbids conditionally, although the conditions may properly be described as regulatory." Their Honours continued, at p.135:
"But once it is realized that the power authorizes
prohibition, complete or partial, conditional or
unconditional, what reason is there for denying
that the condition may be the consent, or licence,
or approval of a person or a body? The answer that
there is none was given by the Divisional Court and
approved by the Court of Appeal in Williams v.
Weston-super-Mare Urban District Council ((1907) 98
L.T. 537; (1910) 103 L.T. 9); and we respectfully
agree. The supposition or suggestion that the
conditions or circumstances should be defined in
which the consent, licence, or approval must be
given can rest only upon some justification other
than the words in which the power is conferred.
From the passage in the judgment of Higgins J.
in Barry's Case (at p.208) already referred to, it
appears that he considered that such a
justification in the case of municipal councils
might be found in the view that the procedure
prescribed for making by-laws impliedly forbids the
choice of the council as the repository of any
discretion upon which the operation of the by-law
may be conditioned. But this view rests upon an
implication which the canons of interpretation
scarcely warrant. The municipal council must
conform to the prescribed procedure in formulating
a prohibition, conditional or unconditional; but
why does this requirement import any limitation in
the exercise under the by-law of powers or
authorities upon which it, in terms, makes the
extent of its prohibition depend?"
Isaacs J. (with whom Gavan Duffy J. agreed) said, at pp 138-139, that Melbourne Corporation v. Barry was decided on a power of "regulating" traffic, not "prohibiting" it, whereas in the case before him there existed a statutory power to prohibit either entirely or partially. He said, at p.139:
"... where the by-law itself prohibits, and in the
absence of a written consent prohibits completely,
the consent if refused simply leaves the by-law to
operate without it, and if given satisfies the
provision of the by-law by a factum which excludes
the given case from its operation."
12. In Swan Hill Corporation v. Bradbury, the Court held that a by-law which prohibited the erection of any building within the municipality unless with the approval of the council was not within the power conferred by s.198(1)(a) of the Local Government Act 1915 (Vic.) to make by-laws "regulating and restraining the erection and construction of buildings". The Court took into consideration the subject matter of the power and the words used to confer it, and decided that those words did not confer power to prohibit all building except that which the council might allow. Dixon J. said, at p.763:
"When the nature of the subject matter is
considered, in my opinion, a power to regulate and
restrain the erection of buildings cannot be
regarded as authorizing the legal result produced
by a general prohibition of building unless with
the approval of the council. Once the legal effect
is grasped of such an entire but conditional
prohibition, it becomes difficult to resist the
conclusion that to support it some wider power is
necessary than one of regulation and restraint."
See also per Latham C.J., at pp.752-753 and per Rich J., at p.755. However, Evatt J. did say, at pp.770-771, that the presence of a discretionary power to give approval or dispensation may tell against the validity of a by-law even where its authorized purpose is prohibition, and that the passage in the judgment in Country Roads Board v. Neale Ads Pty. Ltd. to which I have referred was not intended to address itself to all cases of power to make by-laws "prohibiting". He said, at p.771:
"For the reasons given above, I would also dissent
from the proposition stated by Jordan C.J. in Ex
parte Cottman; Re McKinnon ((1934) 35 SR(NSW)
7, at p 11) that 'where there is express power to
prohibit, the prohibition may be absolute or sub
modo.' I would say that everything must depend
upon the condition, limitation or qualification
which the by-law places upon the prohibition,
having regard to the subject matter dealt with."
These remarks were of course not necessary for the decision of the case. His Honour was no doubt right in suggesting (as he did, at pp.771-772) that generalizations are dangerous and that in the end the matter must depend on the words of the statute conferring the power. Nevertheless, with all respect, I consider that the remark of Jordan C.J., from which Evatt J. dissents, is correct as a general proposition. If power is given to make a by-law for the purpose of "prohibiting" something, the power will, in the absence of a contrary indication, enable the making of a by-law which will prohibit either absolutely or subject to any condition, including the condition that some person or body gives consent, and the fact that the circumstances in which consent may be given or refused are not defined makes no difference (see Country Roads Board v. Neale Ads Pty. Ltd., at pp 134-135, 139). I cannot agree with the suggestion made by Evatt J. at pp 769-770 that if a body which has the control and management of a public park possesses the power to make a by-law for the purpose of prohibiting the distribution of printed matter in the park, the power cannot be validly exercised by the making of a by-law which penalizes the distribution of printed matter without the permission of an officer appointed by the body or the body itself. If the legislation granting the power contained no other indication of intention, I can see no reason why a power of that kind should be given such a restrictive construction.
13. The cases which I have mentioned were considered in Radio Corporation Pty. Ltd. v. The Commonwealth [1938] HCA 9; (1938) 59 CLR 170. In that case s.52 of the Customs Act 1901 (Cth), as amended, provided: "The following are prohibited imports ... (g) All goods the importation of which may be prohibited by regulation". Regulations made under that Act prohibited the importation of specified goods unless the consent of the Minister was first obtained. One of a number of questions that arose in that case was whether the provision relating to the consent of the Minister rendered the regulation invalid. The majority of the Court held that it did not. Latham C.J. (with whom Rich, Starke and McTiernan JJ. concurred) said, at p.183, that the decision in Country Roads Board v. Neale Ads Pty. Ltd. supplied an answer to that objection to the validity of the regulation. He pointed out that in that case the subject matter of the by-law "was such as to require and justify a degree of individual treatment which might not be necessary in other cases" and regarded that case as analogous, because the provisions of the Customs Act showed that in the opinion of Parliament the regulation of trade and commerce might properly involve the exercise of discretion in individual cases: see at pp.183-185. Dixon and Evatt JJ. dissented, but their joint judgment provides no support for the argument of the appellant in the present case. Their Honours relied on the fact that the power to make regulations prohibiting the importation of goods was given to the Executive and that its exercise might affect the inward trade of the entire country. They contrasted the position which arises in relation to by-laws, saying, at p.192:
"In municipal by-laws a power to regulate a
subject of local health or police may justify
control by particular or piecemeal direction or
consent."
14. In my opinion it is not right to say that s.1 of By-law No. 8 was an improper delegation of the power given to the Council. It is quite impossible to suppose that the legislature, in enacting the Rundle Street Mall Act, intended that an activity that in the opinion of the Council was likely adversely to affect the use or enjoyment of the Mall must be prohibited completely or not at all, for the very description of the activity indicates that it will not necessarily and in every case have the undesirable effect that it is likely to produce, and that matters of opinion and degree will arise in deciding whether a particular form of the activity should be allowed or not. The power to regulate, control or prohibit is in terms wide enough to include any degree or form of conditional prohibition and the subject of the power is not something indispensable to the life of the community, such as the erection of buildings. There is nothing in the subject matter of the power or the words of the Act that suggests that the Council could not give itself the discretionary power to decide at an ordinary meeting whether permission to carry on the activity should be given in a particular case. It goes without saying that the power of the Council to grant or refuse permission can be exercised only for the purpose for which the power is conferred, i.e. to prevent a possibly adverse affect on the use or enjoyment of the Mall, and not for any extraneous purpose such as censoring expressions of opinion.
15. For these reasons I hold that s.1 of By-law No. 8 was validly made under the Rundle Street Mall Act. It is therefore unnecessary to consider whether any of the powers conferred by s.667 of the Local Government Act would support it.
MURPHY J. The by-law does not prohibit any giving out or distribution to bystanders or passers-by if the Council gives its permission, but prohibits every such giving out or distribution if the Council does not give its permission. The by-law thus delegates power to the Council to negative completely the prohibition. In substance, the regulation, control or prohibition is not by by-law but by grant or denial of Council permission.
2. Such a delegation is an avoidance of the provisions of the Local Government Act 1934-1978 (S.A.) ("the Act"). The Act sets out comprehensive rules about by-laws. They may only be made at a Council meeting and for this purpose the quorum is two-thirds (instead of the usual one-half) of the members (s.668(1) of the Act). They will have no force or effect unless signed by the mayor or chairman and clerk (s.668(2)). After being made, by-laws must be submitted to the Crown Solicitor for an opinion (s.669(1)) and a fee is then payable (s.669(3)). The Crown Solicitor must consider whether the by-law is within the Council's competence and whether it is contrary to or inconsistent with the Act or general South Australian law; if he or she is satisfied the by-law is in order on those criteria, the Crown Solicitor must certify accordingly and the by-law is to be forwarded to the Governor for confirmation (s.669(2)). If the Crown Solicitor refuses to give a certificate, the Council may require the by-law to be submitted to a Judge for consideration (s.669(4)). By-laws must be forwarded to the Governor after a certificate of validity has been obtained, must be published in the Gazette, take effect from that publication date, and must be laid before the Houses of Parliament (s.670(1)), where disallowance may occur (s.670(2)).
3. By prohibiting all activities, subject to the exercise of the Council's discretion in an ordinary meeting, the Council avoids the statutory safeguards. This by-law provides for permission for the otherwise prohibited activity to be given by Council at a meeting, at which only half the members need to be present (s.147.I of the Act). Thus, an ordinary resolution of the Council could determine the issue, perhaps even making the by-law nugatory by permitting any person to give out or distribute anything at any time. There need be no referral to the Crown Solicitor or consideration of the legality of the resolution by the Crown Solicitor. The Governor will not know of the Council's decision, nor will the public since there need be no publication in the Gazette or elsewhere. The Parliament, the source of the purported exercise of power, will be equally ignorant of how its delegated powers are being exercised; there is no opportunity for it to override the Council's decisions. The by-law is a curtain behind which the Council can exercise its powers, potentially on an entirely ad hoc and inconsistent basis.
4. While this case differs from Melbourne Corporation v. Barry [1922] HCA 56; (1922) 31 CLR 174 (the "Melbourne Corporation case"), it is equally an example of an attempt to do something the legislation was intended to prevent. This by-law leaves the consideration of who is to be permitted to distribute anything in the Mall "to the mere will of the Council - the very thing that ... (the provisions of the Act) ... were intended to prevent" (see Mr Justice Higgins at p.208 of the Melbourne Corporation case).
5. The by-law making power is legislative in nature but the width of the discretion to permit and the absence of any guidelines mean that the control and regulation is not by a law, but by Council's discretion. The United States Supreme Court, in Immigration and Naturalization Service v. Chadha (1983) 51 LW 4907, found it was unconstitutional for the Congress to reserve to either House power to veto, by resolution, a decision taken on behalf of the Attorney-General, and exercised on the basis of authority delegated by Congress, to allow a particular "deportable" alien to remain in the United States. The Court found that Congress' attempt was essentially legislative in purpose and effect and should, therefore, be exercised in accordance with the constitutional requirements for legislative action. Congress was attempting to legislate without complying with the legislative requirements. The principle applicable to supreme legislative bodies, which requires substantial as well as literal compliance with safeguards imposed by the enabling instrument, applies even more strongly to subsidiary law-making bodies, such as an authority vested with power to make by-laws.
6. Here, this by-law device operates to enable the Council to alter the law. The by-law purports to give the Council power to choose what may be given out or distributed. In the area of freedom of expression the by-law purports to make the Council a censor - it may permit the handing out or distribution of what it approves, and refuse permission for what it does not. This is virtually the hypothetical public park case suggested by Mr Justice Evatt in Swan Hill Corporation v. Bradbury [1937] HCA 15; (1937) 56 CLR 746, 769-770. Handbills containing propaganda for one religion or a national keep fit program might be permitted, but those for another religion or for anti-nuclear or anarchist causes might not. No doubt the principle that all powers must be exercised bona fide, for the purposes for which they were conferred and with due regard to the interests of those affected, is applicable. However the purposes are not to be distilled from the by-law itself. It is necessary to go beyond the by-law to find the purposes and an aggrieved member of the public can only establish whether the principle has been breached by challenging a Council decision in court.
7. If freedom of expression is to be maintained by-laws which may be used to restrict expression must be clearly authorized by the enabling legislation and procedural safeguards must be strictly observed.
8. The prohibition in this by-law extends to activities that could not reasonably be thought to affect adversely the use or enjoyment of the Mall. I agree with Mr Justice Brennan's judgment on this aspect.
WILSON J. In my opinion the by-law is valid. It amounts to a conditional prohibition of an activity in the Mall or in the vicinity of the Mall which is, in the opinion of the Council, likely to affect the use and enjoyment of the Mall. The giving out or distribution of anything in the Mall or in its vicinity to any bystander or passer-by is an activity which the council could reasonably conclude was likely to affect the use and enjoyment of the Mall. The dispensation from prohibition recognizes that there will be circumstances when that general liklihood will not be realized and therefore equips the Council with a discretion to permit the activity to take place.
I have had the advantage of reading the reasons for judgement prepared by the Chief Justice and Dawson J. I agree with the reasoning of their Honours in support of the conclusions I have outlined. I do not wish to add to add to those reasons.
BRENNAN J. Rundle Mall is in the heart of the retail shopping area of Adelaide. Matheson J. described it in his judgment in this case: pedestrian traffic is more dense there than anywhere else in the city; it is frequented by all manner of people from the very young to the very old, including the disabled; it caters for the greatest possible range of shop facilities and for a variety of restaurants and cafes; the Totalizator Agency Board, the Lotteries Commission and Mutual Hospital Association, which transact much business with the public, have buildings in the Mall. The Council of The Corporation of the City of Adelaide is empowered to make by-laws in respect of the Mall by s.11(1) of the Rundle Street Mall Act 1975 (S.A.) ("the Act") which provides, inter alia:
" In addition to and not in derogation from its
other powers to make by-laws the Council may make
by-laws -
(a) regulating, controlling or prohibiting any
activity in the Mall or any activity in the
vicinity of the Mall that is, in the opinion
of the Council, likely to affect the use or
enjoyment of the Mall".
In purported exercise of this power, the Council made By-Law No.8. It adopted recommendations made by a Committee of the Council which contained the following:
"(1) The Council of The Corporation of the City of
Adelaide is of the opinion that certain
activities in and within the vicinity of
Rundle Mall, which activities are more
particularly described in the by-law entitled
By-Law No.8 - Rundle Mall, are likely to
affect the use or enjoyment of Rundle Mall;
(3) Therefore in exercise of the powers contained
in the Rundle Street Mall Act 1975-1976, the
Local Government Act 1934-1981 and of every
power thereunto enabling, the said Council
HEREBY MAKES the said By-Law No.8 - Rundle
Mall."
The By-Law recites that it is made "(t)o regulate control or prohibit certain activities in Rundle Mall and in the vicinity of Rundle Mall that are, in the opinion of the Council, likely to affect the use or enjoyment thereof". The relevant provision of the By-Law is s.1 which provides:
" No person shall give out or distribute anything
in the Mall or in any public place adjacent to
the Mall to any bystander or passer-by without
the permission of the council."
The term "adjacent to the Mall" is defined to mean "within a distance of 10 metres from the Mall".
2. The appellant was charged before a Court of Summary Jurisdiction in Adelaide with giving out an item of printed material to a passer-by in the Mall without the permission of the Council contrary to s.1 of the By-Law. The Stipendiary Magistrate reserved for consideration by the Supreme Court the question whether s.1 of the By-Law is valid. The Full Court of the Supreme Court upheld its validity. This appeal is brought by special leave against that judgment.
3. The scope of a statutory power to make a by-law must be ascertained by construing the statute. It is hard to overstate the importance of what Knox C.J., Starke and Dixon JJ. said in Country Roads Board v. Neale Ads Pty.Ltd. [1930] HCA 5; (1930) 43 CLR 126, at p 135:
" The whole controversy illustrates the danger
which attends the formulation of principles and
doctrines and all reasoning a priori in matters
which in the end are governed by the meaning of
the language in which the Legislature has
expressed its will."
In Swan Hill Corporation v. Bradbury [1937] HCA 15; (1937) 56 CLR 746 Dixon J. said, at p 756:
" In considering the validity of any provision
adopted in the supposed exercise of a limited
power of a legislative nature, the first and
often most decisive step is to ascertain the true
scope of the measure impugned and the legal
effect it would produce."
4. And so I turn to an examination of s.11(1) of the Act and the provisions of s.1 of the By-Law which are said to reveal its invalidity. Section 11(1)(a) specifies the kind of provision that a by-law may contain ("regulating, controlling or prohibiting"), and the subject which a by-law may govern ("any activity" which takes place "in the Mall or ... in the vicinity of the Mall that is, in the opinion of the Council, likely to affect the use or enjoyment of the Mall"). Section 11(1)(a) of the Act does not identify the activities that may be regulated, controlled or prohibited by by-law; the opinion of the Council is the criterion by reference to which activities may be made the subject of a by-law. If the Council is of the opinion that a particular kind of activity in or in the vicinity of the Mall is likely to affect the use or enjoyment of the Mall, the formation of that opinion makes that activity amenable to regulation, control or prohibition by by-law. Clearly the formation of the Council's opinion as to the nature of an activity must precede the exercise of the power to make a by-law governing it, for the power to make a by-law can be exercised to govern only those activities in respect of which the opinion has been formed. The relevant opinion was formed when the Council adopted the Committee's recommendations earlier recited (see Willing v. Young (1974) 11 SASR 86, at p 90). The Council formed the opinion that giving out or distributing anything "in the Mall or in any public place adjacent to the Mall to any bystander or passer-by" - the activity described in s.1 of the By-Law proposed by the Committee - is an activity which is likely to affect the use or enjoyment of the Mall. The Council then made the By-Law and thereby prohibited that activity "without the permission of the council".
5. The first question which arises is whether a power to regulate control or prohibit an activity authorizes the making of a by-law prohibiting that activity without permission of the body making the by-law. An affirmative answer was given by Knox C.J., Starke and Dixon JJ. in Country Roads Board v. Neale Ads Pty. Ltd., at p 135:
" But once it is realized that the power authorizes
prohibition, complete or partial, conditional or
unconditional, what reason is there for denying
that the condition may be the consent, or
licence, or approval of a person or a body? The
answer that there is none was given by the
Divisional Court and approved by the Court of
Appeal in Williams v. Weston-super-Mare Urban
District Council ((1907) 98 LT 537; (1910) 103
LT 9.); and we respectfully agree. The
supposition or suggestion that the conditions or
circumstances should be defined in which the
consent, licence, or approval must be given can
rest only upon some justification other than the
words in which the power is conferred."
Isaacs J., with the concurrence of Gavan Duffy J. said, at p.139:
" In the present case there exists the statutory
power to prohibit either entirely or partially.
The prohibition adopted is not entire, but only
extends to instances where the act is done
without the written consent of the Board, the
power of refusal being limited as mentioned. As
I pointed out during the argument, the two
positions are essentially different. The power
of regulation may, and almost necessarily does,
involve some restriction or prohibition. The
body entrusted with the power to regulate must in
some sufficient way mark out whatever limits of
prohibition are to exist. That is to say, legal
rights otherwise existing are not to be cut down
at the discretion of some individual or
individuals, but must be dealt with by the law.
And they are not properly dealt with in that case
by first exercising the power of prohibition
which is not conferred. But where the by-law
itself prohibits, and in the absence of a written
consent prohibits completely, the consent if
refused simply leaves the by-law to operate
without it, and if given satisfies the provision
of the by-law by a factum which excludes the
given case from its operation."
6. It follows that a power to make a by-law prohibiting an activity absolutely authorizes the making of a by-law prohibiting that activity without permission, at least in the generality of cases. But there may be some cases where the nature of the activity governed by the by-law and the terms in which the discretion to dispense with the prohibition is created tell against the validity of the by-law. Evatt J. in Swan Hill Corporation v. Bradbury suggested an example of a by-law that would be invalidated by the creation of a discretion to give permission (at pp.769-770):
" ... if a public body which has the control and
management of a public park possesses the power
to make a by-law for the purpose of prohibiting
the distribution of printed matter within the
park, could such a power be validly exercised by
a by-law which penalized the distribution of
printed matter without the prior permission of an
officer appointed by the body, or of the body
itself? In such a case it would seem that, by
the necessary operation of the by-law, there
would be, not a 'prohibition' of the distribution
of printed matter, but prohibition of the
distribution of some matter only, with nothing
whatever to indicate upon what grounds
distribution might be permitted."
If such a by-law were invalid, its invalidity would not
flow from the mere creation of a discretionary power to exempt from the prohibition; it would flow from the creation of a discretionary power which might be used for a purpose other than the purpose for which the statute conferred power to make the by-law. In the present case, for example, if the Council's discretion under the By-Law to give permission for the distribution of things in the Mall could be exercised for the purpose of discriminating among charities who wish to distribute buttons or badges in the Mall, or among political parties who wish to distribute leaflets in the Mall, the discrimination which might be practised would be foreign to the purpose of ensuring that the use and enjoyment of the Mall are not unduly affected by the distribution of things to bystanders or passers-by in the Mall. A by-law which purports to authorize discrimination of that kind could not be supported as a valid exercise of the by-law making power.
7. A discretion to exempt from a prohibition imposed by a by-law can be exercised, of course, only for a purpose authorized by the by-law. Regard must be had to the terms and subject matter of the statute on the one hand and of the by-law on the other to ascertain the respective purposes for which the by-law making power and the discretion might be exercised. If the by-law creates a discretion in general terms, and the by-law is otherwise valid, the purpose for which the discretion must be exercised is the purpose for which the by-law itself was made, and that is the same as the statutory purpose. In such a case, the matters which may be taken into account in exercising the discretion cannot extend beyond those which the repository of the by-law making power was entitled to take into account in making the by-law. Where the subject matter of the by-law making power is conferred for the purpose of suppressing an undesirable activity, a discretion to exempt from a prohibition validly imposed by the by-law must be exercised only for the purpose of reasonably adjusting the extent of the protection of the public from activities of that kind. Ordinarily the discretion could be exercised only to exempt the less serious instances of the prohibited activity - those which exhibit to a lesser degree the undesirable features of the activity which the prohibition is intended to suppress - or those instances which exhibit a countervailing public benefit which warrants their exemption from the prohibition. What the repository of a power to make a prohibitory by-law cannot do is to create a discretion which would allow it to effect a purpose which it cannot lawfully effect in making the by-law itself. An application of this principle is that the repository of the power cannot create a discretion which would authorize discrimination among applicants for permission to engage in activities which attract the prohibition where they exhibit the same undesirable features in the same degree.
8. The plethora of administrative discretions nowadays created by subordinate legislation constitute a large well of power. But the well is not fed by unexaminable springs. The source of discretionary power can always be traced to the statute which authorizes the making of the by-law. An attempt to create by by-law a wider discretionary power than the legislature has authorized or to exercise a by-law discretion for a purpose which the legislature did not contemplate can be reviewed and set aside by the court. If the reasons affecting the exercise of a discretion under a by-law are shown to be extraneous to any objects which the legislature could have had in view in enacting the statute conferring the power to make the by-law the remedies of judicial review are available to deny operation to the exercise of the discretion: see Water Conservation and Irrigation Commission (N.S.W.) v. Browning [1947] HCA 21; (1947) 74 CLR 492, at p 505; Rossi v. Edinburgh Corporation (1905) AC 21. A discretionary power that is too wide will invalidate the by-law wholly or in part; an improper exercise of a discretionary power, validly created, will be held to be inoperative.
9. In the present case, however, the creation of an exempting discretion by s.1 of the By-Law is within the power conferred by s.11(1)(a) of the Act. I would not understand that such a discretion could be lawfully exercised except for the purpose of exempting those activities which exhibit to a lesser degree the likelihood of affecting the use or enjoyment of the Mall or those activities which exhibit a countervailing public benefit. A discretion exercised in that way would not be foreign to the object of s.11(1)(a) of the Act. Thus - assuming the By-Law to be otherwise valid - the discretion might lawfully be exercised to permit charities to distribute buttons or badges in the Mall and to refuse permission for the distribution of political leaflets, or to limit the occasions when charities may distribute to a particular day each week or month or to specified locations or so that only one charity at a time may distribute. Or it may be exercised so that all political parties are given an opportunity to distribute leaflets upon the same conditions.
10. The discretion to give permission is reserved to the Council in ordinary meeting, to be exercised by resolution from time to time. It was argued that the reservation of a discretion to be exercised in that way is an invalid attempt to vest in the Council a power which s.11(1) of the Act requires to be exercised by by-law. The argument relies upon what Higgins J. said in Melbourne Corporation v. Barry [1922] HCA 56; (1922) 31 CLR 174, at p 208 with reference to a power to make a by-law regulating processions:
" The Legislature has given such power as it has
given to regulate processions to two successive
concurring council meetings surrounded by all
these precautions; and yet this by-law as framed
purports to give the power to an ordinary council
meeting. If, in place of the consent of the
Council to a procession, the consent of the Mayor
or any one else were prescribed by the by-law,
there would be an obvious delegation of power,
and the by-law would, to my mind obviously, be
bad; but here there is delegation too - from what
I may call the by-law making Council to the
ordinary meeting of the Council. In short, this
by-law leaves each procession to the mere will of
the Council - the very thing that secs.197, 204,
&c., were intended to prevent."
The power which his Honour there examined was quite unlike the power with which we are here concerned.
11. A power to regulate processions by by-law could not be exercised by prohibiting processions absolutely subject to a discretionary power to exempt a particular procession from the prohibition. In the present case, the power conferred by s.11(1)(a) of the Act extends to prohibition as well as to regulation and control. The power conferred by s.11(1)(a) authorizes the making of a by-law which prohibits an activity conditionally, and there is no reason why the Council should not make the condition dependent upon its own discretion exercised by resolution from time to time. That was decided in Country Roads Board v. Neale Ads Pty. Ltd. where Knox C.J., Starke and Dixon JJ. said (at p 135):
" The municipal council must conform to the
prescribed procedure in formulating a
prohibition, conditional or unconditional; but
why does this requirement import any limitation
in the exercise under the by-law of powers or
authorities upon which it, in terms, makes the
extent of its prohibition depend?"
It follows that the provision for permission under s.1 of the By-Law provides no foundation for attacking its validity.
12. A more difficult and more fundamental question is whether the opinion, on which the power to make s.1 of the By-Law depended, was validly formed by the Council. Where the power to make a by-law depends upon the formation of an opinion, the opinion must be reasonably formed if the power is to be validly exercised. As Latham C.J. said in R v. Connell; Ex parte The Hetton Bellbird Collieries Ltd. [1944] HCA 42; (1944) 69 CLR 407, at p 430:
" ... where the existence of a particular opinion
is made a condition of the exercise of power,
legislation conferring the power is treated as
referring to an opinion which is such that it can
be formed by a reasonable man who correctly
understands the meaning of the law under which he
acts."
13. The question for the court is not whether the court would have formed the opinion but whether the repository of the power could have formed the opinion reasonably. Although the area of judgment that a court must leave to a repository of power is not unlimited, an allegation of unreasonableness in the formation of an opinion may often prove to be no more than an attack upon the merits of the by-law made in purported exercise of the power. But where, as in the present case, the ambit of the power ("regulating, controlling or prohibiting") and the activities which may be subjected to the by-law ("any activity") are at large, an opinion which carries otherwise innocent activities within the scope of the power excites careful if not jealous scrutiny by the court.
14. A by-law which purports to regulate, control or prohibit a particular activity is invalid if the Council could not reasonably have formed the opinion that that activity is likely to affect the use or enjoyment of the Mall (cf. Reid v. Sinderberry [1944] HCA 15; (1944) 68 CLR 504, at p 512). The reservation of a discretion to permit some of the activities prohibited by s.1 suggests, perhaps, that the Council resolved to prohibit all acts of distribution or giving out whether or not they were likely to affect the use or enjoyment of the Mall and to grant permission under the By-Law for particular instances which were not likely to affect the use and enjoyment of the Mall. To construe s.1 in that way, however, would be to invalidate it. Such a construction would bring initially within the prohibition those activities in respect of which the Council had not formed the opinion that they were likely to affect the use or enjoyment of the Mall. Such activities are not amenable to regulation, control or prohibition by by-law; they do not answer the statutory description of activities in s.11(1)(a) of the Act. A by-law which purports to prohibit activities which are not of the prescribed kind as well as activities which are of the prescribed kind is too wide and is invalid: see Footscray Corporation v. Maize Products Pty.Ltd. [1943] HCA 15; (1943) 67 CLR 301, at pp 306,313. It is not saved from invalidity by the creation of an unfettered administrative discretion to exempt an activity from the operation of the by-law. The reservation of a power to give permission for an activity that is prohibited by by-law does not validate the by-law if that activity is not amenable to prohibition.
15. However, the words "without the permission of the council" in s.1 should not be construed as intending to bring within the prohibition activities in respect of which the Council did not form the opinion required by s.11(1)(a). Those words should be construed as applying only to those activities in respect of which the Council had formed the required opinion, that is, to activities which the Council thought were likely to affect the use and enjoyment of the Mall: ut res magis valeat quam pereat (Widgee Shire Council v. Bonney [1907] HCA 11; (1907) 4 CLR 977, at p 983).
16. To construe s.1 in that way, however, leaves for decision the scope of the prohibition contained in s.1. Leaving the phrase "without the permission of the council" out of consideration, what is the range of activities prohibited by s.1? Could the Council have reasonably thought - as the Council must be taken to have thought in fact - that all activities within that range are likely to affect the use or enjoyment of the Mall? If the answer is no, s.1 is too wide and is invalid. That is not to say that a by-law is struck with invalidity merely because human ingenuity can point to some exceptional instance of the prohibited activity that is not likely to have that effect. An opinion as to the likely effect of a range of activities described in general terms may reasonably be formed without regard to exceptional instances of the activity. It is a question of degree whether the requisite opinion could reasonably have been formed.
17. The activities prohibited by s.1 are limited to the distributing or giving out of something "to any bystander or passer-by". I do not understand those terms to denote every person who, being stationary or moving, is sufficiently close to receive the thing distributed. The additional common, but material, characteristic of a "bystander or passer-by" in relation to a person engaged in distributing or giving out is that there is no social, familial, commercial or other relationship which brings them into propinquity apart from the distributing or giving out. A mother who distributes sweets to her children in the Mall (an activity suggested in argument as falling within the prohibition) is not, I think, distributing sweets to bystanders or to passers-by. The operation of the By-Law is restricted to the giving out or distribution of things to "strangers" in the sense that the person who distributes or gives out a thing does not have such an antecedent relationship with the persons to whom the thing is distributed or given out as accounts for those persons being close by.
18. Can the distribution or giving out of a thing to a stranger, in the generality of cases, reasonably be thought to be likely to affect the use or enjoyment of the Mall? Clearly enough, the use or enjoyment of the Mall might be affected by the nature of the thing distributed or given out. Yet the distribution or giving out of inoffensive things is caught by s.1. Clearly enough, the use or enjoyment of the Mall might be affected by the manner in which a thing, albeit an inoffensive thing, is distributed or given out, especially if the thing is unsolicited by the person to whom it is given. Yet s.1 of the By-Law catches all acts of distribution and giving out whether solicited or not. No doubt some solicited distributions would affect the use or enjoyment of the Mall. The bystanders or passers-by who attend free distributions of goods or prizes may form themselves into large and noisy congregations. The relevant question is not, however, whether some solicited distributions of inoffensive things are likely to affect the use and enjoyment of the Mall. The relevant question is whether the solicited distribution or the solicited giving out of inoffensive things is generally likely to do so. I am unable to think that the Council could reasonably have formed the opinion that such activities are generally likely to do so, where pedestrian traffic is not impeded or where the distribution or giving out is not accompanied by noise. A newspaper vendor who stands on a footpath within 10 metres of an entrance (that is, "adjacent") to the Mall to distribute the evening papers could not reasonably be thought to impair the use or enjoyment of the Mall. Nor could it be reasonably thought that the use or enjoyment of the Mall might be affected where a passer-by asks for directions and is given a plan of where to go, where a bystander asks for a match to light his cigarette and is given one, or where a child asks for something as he passes by an indulgent pedestrian and is given it. Yet these cases are caught by s.1. Single acts of giving, as well as the repetitious acts of distributing are proscribed.
19. I should be sorry to think that the ordinary incidents of human intercourse in this country do not frequently involve conversations between strangers passing by or standing near one another, the making of requests and the giving of things one to another in answer to those requests. It is difficult to accept that the Council would consciously intend to prohibit such ordinary incidents of human intercourse. Yet the prohibition expressed in s.1 of the By-Law is all-embracing, and I am unable to read it down so that it prohibits no more than s.11(1)(a) authorizes. If the Council's reservation of a discretion to permit the distribution or giving out of some things was intended to restrict the operation of the By-Law to what was needed to preserve the amenities of the Mall, the means adopted - that is, a blanket prohibition to be relieved by Council permission - were unauthorized by s.11(1)(a). In my view, the prohibition is too wide and s.1 of the By-Law is not supported by s.11(1)(a).
20. The Council is also authorized to make by-laws for any of the purposes specified in s.667(1) of the Local Government Act 1934-1978 (S.A.). Some reliance was placed on pars.7.IV and 9.XVI of that subsection to support s.1 of By-Law No.8. Paragraph 7.IV authorizes, inter alia, the making of by-laws to regulate or control pedestrian traffic in public places, but s.1 of the By-Law is not properly characterized as regulation of pedestrian traffic. The prohibition it contains is not directed to pedestrians alone, nor is its purpose the facilitation of pedestrian traffic. Paragraph 9.XVI is a general "good rule and government" power. In the light of Lynch v. Brisbane City Council [1961] HCA 19; (1961) 104 CLR 353 it was properly conceded that that power could not by itself support s.1 of By-Law No.8.
21. For these reasons, I would allow the appeal and answer the question in the special case as follows:
" Section 1 of By-Law No.8 of the Council of the
Corporation of the City of Adelaide is not a valid
exercise of the Council's power to make by-laws."
DAWSON J. Under s.11(1) of the Rundle Street Mall Act 1975 (S.A.), as amended, the Adelaide City Council is given power to make by-laws regulating, controlling or prohibiting any activity in or in the vicinity of the Rundle Street Mall that is, in the opinion of the Council, likely to affect the use or enjoyment of the Mall.
2. This power is expressed to be in addition to and not in derogation from its other powers to make by-laws. Those other powers are to be found mainly in the Local Government Act 1934 (S.A.), as amended, and although certain specific powers are to be found there which are capable of application to the Rundle Street Mall (see s.667), it seems to be common ground that none of them, at least for present purposes, goes beyond the power conferred by the Rundle Street Mall Act. It is provided by s.11(2) of the latter Act that the Local Government Act shall apply to and in relation to a by-law made under s.11(1) as if it were a by-law made under that Act.
3. Mention should be made of s.668 of the Local Government Act which provides that no by-law shall be made except at a meeting of the Council at which at least two-thirds of the members then in office are present. There is also a procedure laid down in s.669 under which every by-law is to be submitted to the Crown Solicitor for his opinion. If he is of the opinion that it is within the competence of the Council and that it is not contrary to or inconsistent with the Local Government Act or the general law of South Australia, he is required to give a certificate accordingly. If he refuses, the Council may require the by-law to be submitted to a Judge who may give a certificate. Under s.670 a by-law requires confirmation by the Governor, but it is not to be forwarded for confirmation unless a certificate of validity has been obtained. Every by-law is subject to disallowance by either House of Parliament.
4. The Council duly passed a by-law entitled "Rundle Mall - to regulate control or prohibit certain activities in Rundle Mall and in the vicinity of Rundle Mall that are, in the opinion of the Council, likely to affect the use or enjoyment thereof." The necessary opinion was formed by the adoption by the Council of the recommendation of a council committee that "the Council ... is of the opinion that certain activities in and within the vicinity of Rundle Mall, which activities are more particularly described" in the by-law "are likely to affect the use or enjoyment of Rundle Mall". As to this method of forming an opinion, see Willing v. Young (1974) 11 SASR 86, at p 90.
5. The by-law provides in s.1 that "No person shall give out or distribute anything in the Mall or in any public place adjacent to the Mall to any bystander or passer-by without the permission of the council." It goes on to prohibit, without the permission of the Council in some cases and absolutely in others, certain other activities. It is the prohibition contained in s.1 which is said by the appellant to be beyond the power of the Council and invalid, he having been prosecuted for its breach in the distribution of certain "items of printed material, namely, books, to passers-by in the Rundle Mall" without the permission of the Council. The magistrate before whom the complaint was initially heard stated a special case to the Full Court of the Supreme Court of South Australia which held the by-law to have been validly made. It is from the judgment of that Court that this appeal is now brought.
6. The first argument put by the appellant was that the Council did not form the opinion which is a prerequisite to the validity of the relevant section of the by-law under s.11(1) of the Rundle Street Mall Act. No complaint was made about the adoption of the recommendation of the Council committee in order to form an opinion. Rather, it was said, the by-law itself indicates that the necessary opinion was not held by the Council at the time it purported to pass the by-law because the formation of that opinion, namely, whether the prohibited activities in the Mall are likely to affect the use or enjoyment of the Mall, is deferred until permission to give out or distribute something in the Mall is under the by-law granted or refused. At the same time the appellant maintained the separate argument that having regard to the broad category of activities prohibited, the Council could not reasonably have formed the opinion that the prohibition of all those activities was likely to affect the use or enjoyment of the Mall. It is convenient to deal first with the latter submission.
7. It is well established that where it is a prerequisite to the exercise of a power to pass subordinate legislation that some person or body should hold an opinion or belief, the legislation will be invalid unless an opinion or belief is actually held at the time the legislation is passed and that opinion or belief is of the kind contemplated by the statute conferring the power. It will not be of the kind contemplated if the subordinate authority has acted male fide, has taken into account matters which were not contemplated by the statute or if for some reason the requirements of the statute have been misconstrued. It may be that the subordinate legislation is unreasonable in a way that makes it apparent that the subordinate authority cannot have formed the necessary opinion or belief: Reid v. Sinderberry [1944] HCA 15; (1944) 68 CLR 504, at pp 511-512; R v. Connell; Ex parte The Hetton Bellbird Collieries Ltd. [1944] HCA 42; (1944) 69 CLR 407, at pp 430-432; McEldowney v. Forde (1971) AC 632, at p 660; Reade v. Smith (1959) NZLR 996, at pp 1000-1002. But it is quite clear that if the subordinate authority in fact held an opinion or belief at the time of making the subordinate legislation which was of the kind contemplated by the relevant legislation, it is not for a court to substitute its own opinion or belief however much it might disagree with that of the subordinate authority.
8. In the present case it was suggested that the very width of the prohibition imposed by the by-law was sufficient to indicate that the Council could not have held the opinion that the activities which fell within the prohibition were likely to affect the use or enjoyment of the Mall. But that suggestion was very largely based upon a view of the meaning of the words "give out" and "distribute" and the words "bystander" and "passer-by" which, I think, is untenable. Section 1 of the by-law prohibits, in the absence of consent, the giving out or distribution of anything in the Mall to any bystander or passer-by. This, as I understand the argument, is said to be so wide as to catch the passing of anything, or almost anything, between persons in the Mall. But that surely is to disregard the limiting effect of the words used. An isolated instance, or even isolated instances, of one person handing something to another does not amount to a giving out or a distribution. Those words signify some repetition of the act involved. Moreover, the person to whom something is given or distributed must be a bystander or passer-by and those words define the relationship between the person engaged in the giving out or distribution and the persons receiving or intended to receive what is being given out or distributed. Where the relationship is other than that of a bystander or passer-by, the section of the by-law has no application. So it is, to use examples which were given in argument, a mother handing out sweets to her children is not giving out or distributing anything to bystanders or passers-by nor is a person handing around cigarettes or matches to his friends or even to a needy stranger. On the other hand, the activities which the by-law does cover involve the repeated passing of material from one or more persons to others who are unconnected with the former save by their presence in the Mall or in respect of whom any other connexion is coincidental. The activities which are covered by the by-law are of a kind which involve the use of the Mall for canvassing, advertisement, or propaganda and are activities which may be regarded as likely to interfere with use and enjoyment of the Mall either because they are likely to impinge directly upon those using the Mall or because of the litter which is likely to result. It is to be noted that the opinion of the Council is required only in relation to the likelihood, that is, the tendency, of the activities to affect the use and enjoyment of the Mall. It is also to be remembered that whether or not the Court would have formed the same opinion as the Council is not to the point; the question is whether the Council could and did form the opinion contemplated by the statute. In my view, that question could only be answered in the affirmative.
9. That is really also an answer to the submission that the Council did not form the prerequisite opinion because it deferred its decision until it was necessary to grant or refuse consent in a particular case. Nevertheless, I think I should direct a few words to that submission. In my view, the Council was in no sense postponing its decision. The opinion which it formed in order to pass the by-law was that certain activities, as a category, were likely to affect the use and enjoyment of the Mall. It was those activities which were prohibited. That is quite consistent with the subsequent formation of a further opinion in a particular instance that the prohibition might be relaxed by consenting to a proposed activity on the basis that use and enjoyment of the Mall will not be adversely affected by that activity. And the degree of particularity may vary as is contemplated by s.21 of the by-law which provides that permission under the by-law may be general or specific and may relate to a person or class of persons. In short, it is my view that it is one thing to form the opinion that activities of a certain description are, in general, likely to affect the use and enjoyment of the Mall and another to conclude that in particular instances activities falling within the description ought to be permitted.
10. It follows from what I have said that I reject the submission that the Council either did not form an opinion before it passed the relevant by-law or that the opinion which it did form was not of the kind required by the statute conferring the power to make the by-law.
11. The simple question which remains is whether the by-law is one which regulates, controls or prohibits any activity within the meaning of the relevant statute. The principles to be applied in answering that question are to be found sufficiently in three decisions of this Court: Melbourne Corporation v. Barry [1922] HCA 56; (1922) 31 CLR 174; Swan Hill Corporation v. Bradbury [1937] HCA 15; (1937) 56 CLR 746; Country Roads Board v. Neale Ads Pty. Ltd. [1930] HCA 5; (1930) 43 CLR 126. No point is to be served by going to other decisions which merely involve the application of those principles; indeed, it is pointed out in the cases which I have cited that the exercise is one of construing the words of the statute to see whether they confer the power to make the by-law in question and that of its very nature is an exercise in which other cases dealing with other statutes and other by-laws are of limited assistance: Melbourne Corporation v. Barry, at p 209 per Higgins J.; Country Roads Board Pty. Ltd., at p 135 per Knox C.J., Starke and Dixon JJ.; Swan Hill v. Bradbury, at p 755 per Rich J.
12. The problem which the question raises centres around the meaning of the words "regulate" and "prohibit" and the difference between them. Other words such as "control" or "restrain" may raise a similar problem. A clear distinction was drawn in Melbourne Corporation v. Barry between regulation and prohibition. In that case it was held that a statutory power to regulate traffic and processions did not authorize a by-law providing that "(no) processions of persons or of vehicles ... shall, except for military or funeral purposes, parade or pass through any street unless with the previous consent in writing of the Council ... ". That was because, so it was held, the by-law amounted to a prohibition of processions and the statute authorized regulation, not prohibition. Regulation, it was said, implies the continued existence of the thing to be regulated whereas the by-law was directed to its elimination. This approach is not difficult to understand but it would be a mistake to imagine that the distinction drawn between prohibition and regulation is as black and white as the case may suggest. For the prohibition in Melbourne Corporation v. Barry was not an absolute prohibition; processions could take place with the consent of the Council. From one point of view that looks more like regulation because the effect of the by-law was to permit processions in certain circumstances and regulation, after all, does not rule out the prohibition of some activities as a means of regulating - something that was pointed out by Higgins J. at p.207.
13. Not only is the crucial distinction not as clear-cut as may have been suggested, but there were collateral observations in the judgments of Isaacs and Higgins JJ., who comprised the majority in Melbourne Corporation v. Barry, which tend, I think, to import extraneous considerations if the test of validity was intended to rest upon that distinction. Nevertheless those observations are the genesis of at least some of the submissions made on behalf of the appellant in this case.
14. Isaacs J., at pp. 200-201, says that if the Council had wished to regulate rather than prohibit it should have set out in the by-law the nature of the regulation so that it would appear on the face of the by-law the extent to which common law rights were restricted. And Higgins J., at p.208, made the point that, even assuming that the statute authorized prohibition, it required the prohibition to be by by-law and not by an ordinary meeting of the Council which was not required to observe the special procedures necessary for the passage of a by-law. Upon this last point, if I may comment with the greatest of respect, it would not seem possible to regard the prohibition as imposed otherwise than by the by-law; it was relief from the prohibition which could be obtained at an ordinary meeting of the Council. But if the effect of the by-law had been thought (as it was not) to have been regulation rather than prohibition, the point can be readily understood. Since the regulation must have lain in the relaxation of the prohibition and that could be effected by an ordinary resolution of the Council, it could in a sense be said that the regulation was not by by-law but by Council resolution from time to time.
15. It is from these observations, or what lies behind them, that the appellant's basic argument flows. Essentially what he puts is that the by-law in question, although couched in terms of prohibition, really amounts to regulation. But the nature of the regulation or, perhaps more accurately, the nature of the regulation of the relevant activity in the Mall (for that is the regulation authorized by the statute), does not appear from the by-law but is to be found only in decisions of the Council made by ordinary resolution. Hence, it is said, this is a form of regulation which is not authorized by the statute, which requires the regulation to be made by the by-law itself.
16. This line of reasoning is, however, inconsistent with what was said in Country Roads Board v. Neale Ads Pty. Ltd. In that case Knox C.J., Starke and Dixon JJ. reaffirmed that the decision in Melbourne Corporation v. Barry was that the effect of the by-law forbidding processions was prohibition and not regulation, notwithstanding that the prohibition was subject to a condition, namely, the consent of the Council. It was pointed out, at p.133, that the by-law did prohibit processions completely if and in so far as the condition was unfulfilled. Moreover, the suggestion made by Higgins J. in Melbourne Corporation v. Barry that the prohibition there was not by by-law but by the Council acting in ordinary meeting was rejected. It was said, at p 135, that the canons of interpretation "scarcely warrant" the view "that the procedure prescribed for making by-laws impliedly forbids the choice of the council as the repository of any discretion upon which the operation of the by-law may be conditioned." Perhaps that comment deals tersely with the particular point made by Higgins J. but it did not really arise in Country Roads Board v. Neale Ads Pty. Ltd. In that case the Country Roads Board was given power by statute to make by-laws for the purpose of "regulating or prohibiting the erection and construction of hoardings on or in the vicinity of State highways or regulating, restricting, preventing or controlling the exhibition of advertisements on or in the vicinity of State highways." The Board passed a by-law forbidding advertising hoardings and advertisements near State highways without the consent of the Board. There was no special procedure for the making of a by-law by the Board and that may, perhaps, distinguish the situation from that in Melbourne Corporation v. Barry. But the judgment of the majority dealt with the matter generally. It pointed out, at p.135, that the power to regulate or prohibit is the one power but included in that power is an authority to prohibit, completely or partially, conditionally or unconditionally. What reason, the majority asked, "is there for denying that the condition may be the consent, or licence, or approval of a person or body?" It provided its own answer that there was none, having regard to the way in which the power was conferred. It even recognized that the function of the condition may be regarded as regulatory, saying at p.134:
"At least it is clear that when the purpose of a
power includes both prohibiting and regulating, it
must authorize a by-law which forbids
conditionally, although the conditions may properly
be described as regulatory."
17. In the present instance, there is nothing in principle to distinguish the operative words of the statute conferring power to make by-laws from those dealt with in Country Roads Board v. Neale Ads Pty. Ltd. The statutory power is to regulate or prohibit. It is also to control but nothing turns on that. It is a power to regulate or prohibit an activity which is identified by the location in which it takes place. The requisite location is sufficiently specified in the by-law. The activity is further qualified in the statute by the requirement that it must, in the opinion of the Council, be likely to affect the use or enjoyment of the Mall. That requirement is satisfied. The power includes an authority to prohibit and a prohibition subject to the consent of the Council is, upon the reasoning in Country Roads Board v. Neale Ads Pty. Ltd., within the power.
18. Perhaps the strongest support for the appellant's contentions comes from Swan Hill Corporation v. Bradbury and, in particular, the judgment of Evatt J. in that case. The by-law there prohibited the erection of any building within the municipality unless with the approval of the Council. The power which was relied upon was a power contained in the Local Government Act 1915 (Vic.) to make by-laws "regulating and restraining the erection and construction of buildings." Ultimately, the case was decided by the application of the distinction made in Melbourne Corporation v. Barry. The by-law was said to impose a prohibition and since the power was only to regulate or restrain and restraint was something less than prohibition, the prohibition was beyond the power of the Council.
19. But Evatt J. made a more general examination of the matters involved and reached some conclusions which may be thought to assist the appellant in this case but which appear to have been unnecessary for the decision of the case then before the Court and to be inconsistent with the previous decisions, especially Country Roads Board v. Neale Ads Pty. Ltd.
20. In Swan Hill Corporation v. Bradbury, Evatt J. expressed the view that there was a general intention implicit in the statutory provision which was relied upon to support the by-law that the by-law would lay down a general law or code or rule in relation to the purpose specified in the statute, and not merely attempt to reserve to the Council itself discretions so wide that no general law or code or rule would remain. Whatever the strength of that observation in relation to the power in question in that case, which fell short of authorizing prohibition, it can have only a limited application to a power which includes an authority to prohibit because, provided the prohibition is within the contemplation of the power, it may be made partial or complete or subject to a condition which is regulatory in nature. That condition may be the consent of the Council. That is what Country Roads Board v. Neale Ads Pty. Ltd. decided.
21. Of course, it is important to recognize that the statutory power must authorize the prohibition. Dixon J. makes it clear in Swan Hill Corporation v. Bradbury, at p 760, that a by-law committing the whole subject matter of the power to a discretionary authority exercisable in each particular case and prohibiting the individual from acting at all without the Council's prior approval would not be justified by a power to make by-laws regulating or restraining a range of activities within a power. To take the present case, it would be beyond the power of the Council to make a by-law prohibiting all activity in the Mall without the consent of the Council. Not only would it be impossible for the Council to form the opinion that all activities were likely to affect the use and enjoyment of the Mall, but the language of the section makes it plain that a by-law pursuant to the relevant section should be directed at a particular activity or particular activities.
22. It may be, however, that there is an even more fundamental objection to such a by-law in that a blanket prohibition covering the whole scope of a power subject to the approval of the Council in particular instances may not itself fall within the subject matter of the power or may constitute an impermissible delegation of the power. Cf. Victorian Stevedoring and General Contracting Co. Pty. Ltd. and Meakes v. Dignan [1931] HCA 34; (1931) 46 CLR 73, at p 121. But short of that situation, it is clear that Evatt J. saw a much narrower scope for the authority given by a power to make by-laws which regulate or prohibit. He appears to have thought that the power to regulate or prohibit does not extend to the conferring of a discretion upon the Council or some other body or person in particular instances except "for the purpose of dealing with special situations which cannot be dealt with in advance of determining the application to particular cases of general rules discoverable in the by-laws themselves" and to have held this view notwithstanding a specific provision in the relevant statute in that case that the by-law may leave "any matter or thing to be from time to time determined applied dispensed with or regulated by the council by resolution or by any officer authorized in that behalf." He explained the decision in Country Roads Board v. Neale Ads Pty. Ltd. upon the basis that in conferring a discretion to relax a prohibition the by-law in that case laid down actual standards by which the discretion had to be exercised. He seems to have been of the view that in such circumstances a discretion to relax a prohibition might be conferred pursuant to a power to regulate or prohibit, at least where the standards involve questions of "good taste and right feeling" or "opinion and degree". See pp.768-769.
23. There is more than an echo in all of this of the view expressed by Isaacs J. in Melbourne Corporation v. Barry that the nature of any regulation intended in a by-law should appear on the face of the by-law. But with respect it is quite inconsistent with the reasoning in Country Roads Board v. Neale Ads Pty. Ltd. which draws a clear distinction between regulation and prohibition and proceeds upon the basis that if there is a power to prohibit absolutely then there must be power to relax the prohibition by conferring a wide discretion upon some person or body to do so. The approach in that case was essentially along the line that the greater power necessarily comprehends the lesser; the power to prohibit completely comprehends the power to prohibit partially or conditionally.
24. The view taken by Evatt J. in Swan Hill Corporation v. Bradbury led him to provide an example which bears some similarity to the present case. At pp 771-772, in referring to some remarks by Jordan C.J. in Ex parte Cottman; Re McKinnon (1934) 35 SR (NSW) 7, he said:
"I would also agree that, in the case of a power to
'regulate the use and enjoyment' of a public park,
a by-law could prohibit unconditionally the use of
the park for the distribution of printed matter,
because 'user generally' would remain unaffected,
and such distribution might disturb 'the public in
their enjoyment of the park'. But the power given
to the Commissioner of Police to exempt any
particular person from the prohibition would, in my
view, entirely alter the situation, not because the
by-law would lose its 'regulatory nature', but
because it transforms the regulation from a
regulation of enjoyment of the park into a regulation
of the kind of printed matter which might be
distributed there, the Commissioner of Police not
being an officer of the park trustees and not being
bound to pay the slightest regard to the public's
user or enjoyment of the park, or to the effect
that particular printed matter might have upon such
enjoyment, and being quite at liberty to exercise
his discretion by reference to his personal opinion
of the character of the words contained in the
printed matter or the personality of the proposed
distributor."
25. It seems to me that there are two things which might be said about this passage. The first is that the by-law which Evatt J. was speaking about did not confer an unlimited discretion upon the Commissioner of Police. As Dixon J. observed in Swan Hill Corporation v. Bradbury, at p 758, a discretion of that type is at least limited by the scope and object of the instrument conferring it. See also Shrimpton v. The Commonwealth [1945] HCA 4; (1945) 69 CLR 613, at p 620 per Latham C.J. Clearly it would have been an abuse of the discretion in question if it were exercised for purposes not comprehended by the by-law. Purposes which had no regard to "the public's use and enjoyment of the park" would plainly have been beyond its scope and objects. The second thing is that the possibility of the abuse of a discretion leads to no necessary conclusion that the discretion is invalidly conferred. In pointing to the limits imposed upon a discretion by the scope and object of the instrument conferring it, Dixon J. acknowledged the difficulty in establishing a wrongful exercise of the discretion where no reason need be given for it. But that was to affirm that if the exercise of a discretion conferred by a by-law is not exercised bona fide or is actuated by motives or reasons which fall outside the scope and purpose of the by-law, the law offers a remedy. That remedy is based upon the invalid exercise of the discretion and not the invalidity of the instrument conferring the discretion.
26. In the present case it is plain that a refusal of permission to give out or distribute anything in the Mall for reasons unrelated to the use or enjoyment of the Mall would go beyond the discretion conferred by the by-law. True it is that to establish such a fact in an individual case would, in all likelihood, not be easy. But it would be unlikely to be any easier if the limits upon the discretion were expressly set out in the by-law - if, for example, there were an express provision that permission was not to be withheld by reason of the written content of anything given out or distributed. And yet it would seem, upon the view expressed by Evatt J. in Swan Hill Corporation v. Bradbury, that a provision such as that may make the difference between the validity and invalidity of the by-law. It is not a view which I am able to share.
27. In my view the authorities to which I have referred require the answer that the by-law in this case was validly made. These authorities have stood for a considerable time and nothing has been shown which would warrant departure from them. I would dismiss the appeal.
# Foley
Padley \[1984\] HCA 50;
(1984) 154 CLR 349
(1974) 11 SASR 86
(1944) 69 CLR 407
(1922) 31 CLR 174
(1937) 56 CLR 746
(1930) 43 CLR 126
(1938) 59 CLR 170
(1947) 74 CLR 492
(1944) 68 CLR 504
(1943) 67 CLR 301
(1907) 4 CLR 977
(1961) 104 CLR 353
(1931) 46 CLR 73
(1945) 69 CLR 613