R v Mahony [1931] HCA 36

R v Mahony [1931] HCA 36 - HCA 1931 case summary — Zoe

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a licence as a waterside worker may make application to licensing officer, who may issue to the applicant a licence, be: a number, and the name of the port in respect of which it is is In 1931 the prosecutor was the holder of a licence expiring on 30th June of that year, which he applied to renew, but his appliea- tions were refused. In August 1931 he applied to the lice ing officer for the grant of a licence as a waterside worker at the po of Lucinda, but this application was also refused. It is in respect of this latter refusal that the rule nisi was obtained, and not in respect of the refusal to renew the prosecutor's licence. Two views were presented of the proper interpretation to be put upon these loosely drawn Acts; one, that the duty of the licensing officer was purely ministerial, or, in other words, that it was his duty to issue a licence to any person who so applied ; the other, that uncontrolled and absolute discretion was reposed in the lice officer to grant such licences as he thought fit. The former must, in my opinion, be rejected. Sec. 7 of the 1929 Act declat that the licensing officer "may issue . . . a licence": themselves these words import discretion. But other sections of the Acts put the matter beyond doubt: they make provision for the employment of transport workers, and the regulation of tl engagement, services and discharge of such workers ; and one method of regulation is by licensing persons who can engage in transpo t work. The latter view must likewise be rejected. The Courts do not attribute an intention in the Legislature to interfere with the tights and liberties of the citizens of this country to work whe > where and for whom they please unless that intention is expressed in clear and unmistakable language. The Acts make it penal work without a licence, and therefore they contemplate a duty in the licensing officer to grant licences. It is, no doubt, a discretion duty; but to say that it is an arbitrary power, not to be exercised

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servants," is far too extravagant an intention to attribute to the Legislature. But the difficulty in interpreting this loosely drawn legislation is to find some principle upon which the discretion of the licensing officer should be exercised. The question is not whether the licensing officer has been right or wrong in the exercise of his discretion, but whether he has exercised it within the ambit of his power. If he has declined to consider matters that he ought to consider, or has taken into consideration matters that he ought not to consider, then he has not exercised his discretion within the ambit of his power, and mandamus will go to compel him to exercise _ it according to law (Sharp v. Wakefield (1) ; R. v. Bowman (2); R.v. Cotham (3); R.v. Metropolitan Police Commissioner ; Ex parte Hol- loway (4) ). The licensing officer in the present case refused to issue a licence because Regulations under the Transport Workers Acts gave preference to members of the Waterside Workers' Federation of Australia,and ample Waterside Workers' Federation labour was avail- _ able at Lucinda to work the port. One would have thought that the granting or refusing of licences to work depended upon the personal fitness and ability of applicants, and not upon the supply of labour available at a port. And the provisions of sec. 12 dealing with the cancellation of licences lend strong support to this view: the power to cancel is wholly based upon the misconduct of the licensee. To say that the licensing officer may refuse a licence because he

thinks sufficient labour is available to work a port without the services of an applicant for a licence who is of good fame and
character and competent and willing to do and capable of doing such work as he can obtain, is an interference with the rights and liberties of the subject that would require express justification in the Transport Workers Acts, and I can find no such justification. 'The right of the prosecutor to a renewal of his licence is not, as Thave already intimated, the subject of the rule nisi for a mandamus, and was not argued at the Bar. In my opinion, the Court should

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been cancelled under that section, is given a right of appeal. It appears to me that if the Act allows the licensing officer to reject an application because of the character of the applicant, it has left him free to adopt his own criteria for judging the fitness of any applicant; and, presumably as matters incidental to this power, there is committed to him the duty of determining, for example, what, if any, credence and weight should be given to unfavourable reports as to the character of any applicant which he has called for, or which he may have received but not invited, or whether a convic- tion is a bar to an application, or whether, upon a consideration of the date of the conviction, the nature or circumstances of the offence, the conviction should not be a bar. It may be noted that the form which has been prescribed for an application for a licence does not require the applicant to furnish any evidence as to character. There is nothing in the statute which, in my opinion, would justify me in concluding that the Legislature intended to cast such responsibilities upon a "licensing officer," especially when it has expressly given him somewhat similar authority, with the safeguard of an appeal, only in the matter of the cancellation of a licence. Another ground upon which it was said that the licensing officer could reject an application, if his authority is limited to the rejection of applications in certain cases only, is that an adequate number of persons have already been licensed. It should be borne in mind that the official to whom it is sought to attribute even this qualified authority to reject applications for licences is appointed under sec. 5, which is in these terms: "5. Subject to the directions of the Minister, the Permanent Head of the Department of State administered by the Minister may, as he thinks fit for the purposes of this Act, appoint licensing officers in respect of ports in the Commonwealth to which this Part applies." A close consideration of the Act does not lead me to the conclusion that Parliament intended - it has not expressly stated any such intention - that the licensing officer could, when he saw fit to do so, fix the number of licences which he should issue at the port in respect of which he was appointed. It was not contended in this case that a mandamus should not go to compel the licensing officer to issue a licence on the ground that he is a subordinate officer - as he appears to be in this

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Judgment (123 paragraphs)