Judicial Review of Discretionary Prohibitions — A New Basis?
| Author | Susan Kneebone |
| DOI | 10.1177/0067205X8601600103 |
| Published date | 01 March 1986 |
| Date | 01 March 1986 |
| Subject Matter | Article |
JUDICIAL REVIEW OF DISCRETIONARY PROHIBITIONS
-ANEW BASIS?
SUSAN
KNEEBONE·
INTRODUCTION
The effect
of
arecent decision
of
the High Court
of
Australia in Foley
vPadleyl
is
to severely curtail the extent
of
judicial review
of
the exercise
of
discretionary prohibitions. In the light
of
this decision, the Question
of
the nature
of
aprohibition contained in subordinate legislation when coupled
with adispensing power becomes
of
more
than
academic interest.2In Foley
vPadley, the effect
of
an
empowering provision referable to the opinion
of
the subordinate legislator
(a
municipal council) was considered in relation
to abroad unfettered discretion to dispense with aprohibition. Thus this
decision brought directly into issue the role
of
the administrator/policy-maker
as against the rights
of
an
individual.
In brief, Foley vPadley decided that adispensing power attached to apower
to prohibit in aby-law was avalid condition
of
the power to prohibit, thus
following the decision in Country Roads Board vNeale
Ads.
3As the
decision
of
the High Court in Swan Hill Corporation vBradbury4 was the
last occasion
on
which this issue had been fully considered by the High
Court
5one can only lament the passing
of
an
opportunity to re-open the
debate as to dispensing powers.
In this article the decision in Foley vPadley
will
first be discussed in relation
to
its background. The second section will deal with the approach taken to
judicial review
of
the discretion contained in the empowering act in Foley
vPadley. The third section will deal with the maxim against subdelegation
and
its application in the decided cases.
*LLB(Adel); MA(Hong Kong); DipEd(Melb); Senior Tutor, Faculty
of
Law, Monash
University.
1(1984)
58
ALJR
454, on appeal from the Supreme Court
of
South Australia: Padley vFoley
(1983)
32
SASR 122.
2See for example:
C'C
Aickman, "Subdelegation
of
the Legislative Power" (1960) 3Victoria
University
of
Wellington LRev 69; K J Keith, "The Courts and the Administration: AChange
in Judicial Method" (1977) 7NZUL Rev 325; P E Killbride, "Deregulation, Prohibition and
Subdelegation" (1965) 1Otago LRev
97;
DLanham, "Delegation, Legislation and Dispensation"
(1984)
14
Melb U L Rev 634; JFNorthey, "Subdelegated Legislation and Delegatus Non Potest
Delegare" (1953) 6Res Judicata 294; P H Thorp, "The Key to the Application
of
the Maxim
'Delegatus Non Potest Delegare' "(1972) 2Auck U L Rev
85;
JWillis, "Delegatus Non Potest
Delegare" (1943)
21
Canadian Bar Rev 257.
3(1930)
43
CLR
126
-the "conditional prohibition" approach.
4(1937)
56
CLR
746 -the "unfettered discretion" approach.
5Other than in Radio Corp vCommonwealth (1938)
59
CLR 170 where the conditional
prohibition approach was followed. However, Radio Corp
is
not astrong authority. Latham
CJ
delivered awritten judgment for the majority (Latham
CJ,
Rich, Starke &McTiernan
JJ),
but
his judgment in fact lends support to the view
of
Evatt Jin the Swan Hill case, which view
was repeated in the
joint
dissenting judgment
of
Dixon
and
Evatt JJ in the Radio Corp case.
In any event, on the facts
of
the Radio Corp case, as amatter
of
construction
no
condition
was specified as required by the empowering Act.
1986] Judicial Review
of
Discretionary Prohibitions
51
11984 REVISITED -
THE
DECISION
IN
FOLEY
V
PADLEY
This case,
on
the face, concerned the Rundle Street Mall in Adelaide, South
Australia
and
the
powers
of
the Adelaide City Council
to
regulate activity
in the Mall pursuant to the Rundle Street Mall Act
1975
(SA). Section 11(1)(a)
of
the Act provides
that
the
Council
may
make by-laws "regulating,
controlling
or
prohibiting any activity
in
the
Mall
...
that
is, in
the
opinion
of
the Council, likely
to
affect the use
or
enjoyment
of
the Mall". By-law
No 8 s
1,
made pursuant to that empowering section provides
that
"No person
shall give
out
or
distribute anything in the Mall
or
in any public place adjacent
to any bystander
or
passer-by without the permission
of
the Council". Section
21
of
the by-law provides
that
permission under the by-law
"may
be general
or
specific
and
may
relate to aperson
or
class
of
person".
Pausing here, it can be seen
that
the power to regulate (viz
"any
activity")
is
extremely wide, particularly as the opinion
of
the Council
is
the criterion
by reference
to
which it may legislate. Similarly, the chosen activity
is
described in very general terms, namely to "distribute anything".6 The power
to dispense with the prohibition contained in s
21
of
the by-law
is
also couched
in very wide terms,
and
leaves
the
discretion
to
dispense entirely
to
the
Council. Dispensations under s
21
may be "general
or
specific",
and
thus it
is
open to the Council
to
determine
that
some activities
can
be generally
permitted as well as
to
make specific decisions.7
It
is
also
apparent
that
amember
of
the public who intended to apply for
apermit would have no means
of
knowing in advance whether his proposed
activity was one prohibited by the by-law,8
and
further, by what criteria his
application for apermit would be assessed. Having been refused apermit,
he would have difficulty ascertaining the reasons for adecision
or
grounds
upon
which the decision could be challenged because
of
the
nature
of
the
"unfettered discretion". Further, because the power to legislate
is
referable
to the Council's opinion,
and
the "purpose"
of
the legislation
is
not
easily
discernible,9
it
would seem
that
the scope
of
judicial review
of
similar
discretionary prohibitions will be limited in the wake
of
Foley vPadley.
On
another
level, this decision focusses
on
the impact
that
such by-laws
have
on
an
individual. This case was asuccessful attempt to prosecute a
member
of
the
Hare
Krishna sect
10
for carrying
on
activities in the Rundle
Street Mall which were apparently considered to hinder the use and enjoyment
6See the explanations given by Gibbs
CJ
(1984)
58
ALJR
454, 456.
7Quaere whether this power to
make
general dispensations
amounts
to
the
exercise
of
a
legislative power -considered below.
8Unless
on
enquiry he were to be told that
it
was
of
a"general" type
that
was not permitted
under s21. But see below; should there be
an
obligation
on
the council
to
publish its "rulings"
of
this type?
9As Murphy Jremarked in his dissenting judgment in Foley vPadley, the difficulty with
the
legislation under review was that the purposes were not to be distilled by the by-law itself. His
Honour
continued
"It
is
necessary to go beyond the by-law
to
find the purposes
and
an aggrieved
member
of
the public can only eSlablish whether the principle [that all powers must be exercised
bonafide] has been breached by challenging aCouncil decision in court": (1984)
58
ALJR
454,459.
10
Ie the International Society for Krishna Consciousness.
It
is
to
be noted
that
this fact
is
not referred
to
directly in any
of
the judgments in either Court. But see
the
summary
of
the
evidence in
the
judgment
of
Matheson Jin the Supreme Court: (1983)
32
SASR 122, 125.
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