Yanner v [HIGH COURT OF AUSTRALIA.]

Yanner v [HIGH COURT OF AUSTRALIA.] - [1922] HCA 56 - HCA 1922 case summary — Zoe

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"No procession of persons or of vehicles or both for other than funeral purposes shall parade or pass through any of the streets unless with the previous consent in writing of the Mayor, or in his absence the Town Clerk of the City, and only by the route specified in such consent, nor unless and until the recipient of such consent shall have given at the least twenty-four hours' notice with particulars of such consent and route to the officer in charge of the City Police." A prosecution having been instituted for a breach of this by-law, the justices dismissed the complaint and stated a case for the opinion of the Supreme Court ; the question stated being whether the justices _had properly dismissed the complaint and whether the by-law was valid or was illegal as not being sanctioned by the Local Government Act 1874 and so ultra vires. When the case stated came before the Supreme Court in Full Court (Rider v. Phillips (1) ) three reasons were put forward in support of the decision of the justices, namely : first, that a power to regulate does not give power to prohibit at the discretion of an individual; second, that the power to control traffic exists if at all in the Council, and cannot be delegated to its Mayor or Town Clerk; third, that the by-law was unreasonable. The Court (Higinbotham J. and Holroyd J.) held that the determina- tion of the justices was erroneous in point of law, and ordered the matter to be remitted to the justices. In delivering the judgment of the Court Higinbotham J. said (2): "On the whole, we are of opinion that none of the objections to this by-law have been sustained, and that it has not been shown to be in any respect unreasonable." This was clearly a decision that the by-law was valid, and, having regard to the argument of counsel quoted above, must be taken as establishing that the by-law was within the power conferred by sec. 213 (xvit.) of the Act of 1874. This case having been decided under the Local Government Act, the validity of a regulation of the City of Melbourne in the same terms made under sec. 2 of the Police Offences Act 1878, No. 630, was

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what Lindley L.J., in the Court of Appeal (1), called " the decisions of forty years." A case of the same kind may be added here - Ex parte Campbell (2), where James L.J. said: " When once certain words in an Act of Parliament have received a judicial construction in one of the Superior Courts, and the Legislature has repeated them without any alteration in a subsequent statute, I conceive that the Legislature must be taken to have used them according to the meaning which a Court of competent jurisdiction has given to them." The only case referred to by the learned Lord Justice, speaking in 1870, was one in 1818, namely, Ex parte Vogel (3). But it appears from Archbold's Bankrupt Law, dated 1856, p. 396, that in that year the decision was regarded as settled. It was of such a nature that I presume the Bankruptcy Courts had constantly acted upon it for over forty years before the new legislation. The fourth case cited by McArthur J. is Clark v. Wallond (4), in which Mathew J. makes an observation in arguendo. The statute under consideration there, however, was 45 & 46 Vict. c. 50, the Muni- cipal Corporations Act of 1882, which was a consolidation Act "with amendments." It is true that on the page mentioned the learned Judge observed that "The Legislature have reproduced the words upon which the case of Maude v. Lowley (5) was decided, and they must be taken to have known the interpretation that had been put upon them in that case." But that was a passing observation, and the Court considered its judgment and two days afterwards judgment was delivered. As I read the judgments, including that of Mathew J., the learned Judges proceeded, not upon any notion that the Legislature had itself settled the point by adopting a prior decision, but that, having regard to the words of the Act and to the prior decision upon similar words, the Court was bound upon ordinary principles to follow the decision of the Court in the prior case. I do not regard the decision in Clark v. Wallond as supporting the appellant's position at all. Tn view of the fact that the Act was a consolidation Act, though with amendments, it appears to me, having regard to the course

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one Act and therefore made on the same day." I entirely with those observations. In passing those Acts, Parliament addressing its mind not to the matter but the form of the law, n was considering not what it should enact but how existing law shou be arranged. Statutory provisions were collected and systemat but with the intention that their effect was to be precisely the after the work was completed as before, with the additional ad tage that that effect could be more readily perceived. Consequen in 1890, and until 1903, ro intention can be imputed to the lature to affect the original meaning of the relevant enactment a it was immediately before Rider v. Phillips (1) was decided. Act of 1903, however, was of a different character. It is intituled " An Act to consolidate and amend the laws relating to local govern ment." There Parliament did set its mind to consider what the law should be in relation to municipalities. Among other things i expressly included in certain provisions of the scheme the City of Melbourne, and among other provisions is sec. 197. The qi whether the judicial decision in Rider v. Phillips and Ba v. Barker (2) is stamped with the legislative seal must, therefor be carefully examined. I entirely accept the initial words quot from Maawell at p. 542, namely, "It may be taken for granted th the Legislature is acquainted with the actual state of the law." is therefore necessary to see what it was that the Victorian lature would reasonably consider was the actual state of the law. - Since 1884, when Rider v. Phillips (1) was decided, there had bi some very important pronouncements by the Privy Council. 1888 a new and very distinct landmark was erected by the Priv Council with respect to the validity of by-laws. In Slattery v Naylor (3) the question arose as to the power of the Borough of Petersham in New South Wales to make a by-law prohibiting burials in any then existing cemetery within 100 yards of any publi building, place of worship, school-room, dwelling-house, public pathway, street, road or place whatsoever within the Borough. This had the effect of entirely and absolutely closing up a ce cemetery. That was absolute prohibition, no doubt, as to

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cemetery; and the Privy Council had to consider whether that accorded with the power to "regulate" given by the Act. Their Lordships held that it did, but for a very distinct reason. The power given was to regulate " the interment of the dead " generally throughout the whole Borough. No doubt, the council could not " prohibit " the interment of the dead throughout the whole Borough. That was the very thing to be " regulated," not destroyed. But in regulating the wider thing, they might prohibit a part, and there- fore prohibition, even absolute, of a part of the subject matter to be regulated is no departure from "regulation" of that subject matter. That was the first point distinctly determined by Slattery y. Naylor (1). Then their Lordships dealt with the argument as to "unreasonableness." That argument was supported, first, by saying that there was no necessity for any prohibition at all. The Judicial Committee disposed of that by saying there was no evidence on the point. Then "unreasonableness " was urged on the ground of the prohibition - if any prohibition were necessary - being too absolute. This was disposed of by pointing out the difference between the old authority by charter and the analogous powers of newer corporations similarly treated, on the one hand, and the confidence reposed by later legislation in local government bodies created for self-government, on the other hand. As to the latter, "' unreason- ableness " was regarded as probably open only in very extreme cases. Evidently their Lordships were thinking of " unreasonableness " so extreme as manifestly to exceed the contemplated ambit of power. That case then laid down one point very distinctly, namely, the meaning of regulation as related to prohibition, and strongly suggested the limit of " unreasonableness " as a ground for curial interference. Then, before 1903, came the case of Toronto Municipal Corporation y. Virgo (2). There the power granted to a municipal council of Toronto was to "pass by-laws for the following purposes : - For licensing regulating and governing hawkers," &c. A by-law was made, absolutely prohibiting hawking in certain specified portions of Toronto. Lord Davey, in delivering the judgment of the Board, said (3): (1) "No doubt the regulation and governance of a. trade

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Board v. Finlayson (1). It seems singular that these very important observations of the learned and eminent Lords I have mentioned, though emphasized in judgments of the High Court, should not have been referred to in the course of this case until I directed attention to them. They go to the heart of the contention that regulation of a subject matter may be satisfied by prohibition of that subject matter. I shall not repeat the passages I have referred to, but, while again pointing out their authoritative and explanatory force in this connection, I would quote the illustration given by Lord Halsbury. He said : - ' Trade generally may be regulated by prohibiting a particular trade. Take the case of the prohibition of the exportation of wool with which this country was familiar at one time. That was a regulation of trade, and it was a prohibition of a particular trade." That, in the absence of controlling statutory provision, is the natural meaning of regulation, and is the key to the whole position, and harmonizes Slattery's Case (2), Virgo's Case (3) and the Ontario Case (4). Among the provisions subject to which by-laws may under sec. 197 be made are secs. 204, 206, 208, 209, 222, 223, 229 and 719. The effect of those sections, so far as necessary for the present occasion, may be thus stated : - (1) Every by-law must be passed by a special order of the Council and sealed with the muni- cipal seal. (2) After the resolution has been agreed to it is to be open for public inspection, apparently that is before sealing. (3) After sealing, the by-law is to be published in the Government Gazette at length, or if not at length it is to be open for free public inspection, and a printed copy available at a charge not exceeding one shilling. (4) A penalty not exceeding £20 may be imposed by the by-law itself, not merely for contravention but even £20 for the same act having several effects. (5) An offence against a by-law is an offence against the Act, and, if no penalty is specifically imposed, the penalty is a maximum of £20, (6) The Governor in Council may repeal a by-law. The conclusion I draw from this is that, while full confidence is reposed in the Council as representative for local government purposes of the residents of the municipality, it is

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a procession is unlawful apart from a by-law, the law already pro- vides for it and the by-law is unnecessary and futile. A by-law is for the purpose of imposing still further restrictions and new penalties on what would otherwise be a lawful procession. Common justice, therefore, dictates that except where the Legislature has clearly empowered a council to make its own unfettered and unregulated will at the moment the test of legality or illegality, a council having the power of "regulating by by-law " should state its requirements in the by-law as explicitly as circumstances reasonably permit. Otherwise, how are individuals to attempt to conform to law without a total surrender of their right innocently and unaggressively to use the King's highway in company on occasions that frequently repre- sent great and important national, political, social, religious or industrial movements or opinions? It would require very explicit words in an Act of Parliament to induce me to believe the Legislature, in the name of regulation, contemplated such unregulated authority as is assumed by the by-law before us. The case of Dick v. Badart (1) is sufficiently similar to be an authority on this point, if authority were needed. The by-law says: "No processions of persons or of vehicles or motor-cars or of any combination of persons, vehicles or motor-cars shall except for military or funeral purposes parade or pass through any street unless with the previous consent in writing of the Council given under the hand of the Town Clerk and by the route specified in such consent, and unless and until the recipient of such consent has given at least twenty-four hours' notice with particulars of such consent and route to the officer in charge of the City Police." The effect, in plain language, may be thus stated: All processions, except military and funeral processions, are absolutely prohibited in every street large or small, populous or not, and however innocent or praiseworthy their purpose, however inoffensive or orderly and free from any material obstruction to traffic or other objection, unless the Council chooses for any reason it likes to say " Yes." It may say "Yes" for any reason whether connected with its proper functions as a local governing body or not; it may say " No" for any reason ; and it need not assign any reason for either an affirmative or a nega- tive attitude ; it need not say either '' Yes" or " No" atall, and then (1) (1883) 10 Q.B.D., at p. 393,

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been well-known decisions uses those words in the sense which the decisions have attached to them.' One difficulty in applying this rule is that we cannot say what decisions are " well-known," that there is no evidence how far Rider v. Phillips (1) was " well-known," and that evidence on the subject would not be admissible. But, passing by this difficulty, it seems to me that neither in the case of Rider v. Phillips, nox in the case of Bannon v. Barker (2), which pro- fessed to follow that case though under a different Act, is there any clear pronouncement as to the meaning of the word " regulate" in the expression " for regulating processions." Counsel who attacked the by-law did not even take the precise points with which we have to deal. The first objection taken by counsel was "that a power to regulate is not a power to prohibit at the discretion of an individual" - that is to say, that the discretion was entrusted to the Mayor or Town Clerk, not to the Council. The second objection was that the power to control traffic exists if at all in the Council, and cannot be delegated to its Mayor or Town Clerk. It was not even suggested in the argument that the discretion must be exercised by the Council in its by-law making capacity, under all the precau- tions of a "special order,' &c. The third objection was that the by-law was unreasonable. The two Judges who gave the decision concentrated their attention on this last objection. As Higinbotham J. said, giving the judgment of himself and Holroyd J. (3): " Several objections have been urged in the argument before us against the validity of the by-law, but they all resolve themselves into one - viz., that it is unreasonable." At that time the decision of the Judicial Committee in Toronto Municipal Corporation v. Virgo (4) had not been given, a decision which showed (probably for the first time) that a power to regulate implies the continued existence of the thing to be regulated, and that a power to regulate a subject does not authorize the donee of the power to prohibit the subject matter. Whatever be the limits of this rule of construction on which the appellant relies (it is a mere rule of construction and must yield to circumstances), it is obvious that it must be applied with the greatest

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Judgment (220 paragraphs)

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