¹ (1984) 58 ALJR 454, on appeal from the Supreme Court of South Australia: Padley v Foley (1983) 32 SASR 122.

² See for example: CC, Aickman, “Subdelegation of the Legislative Power” (1960) 3 Victoria University of Wellington L Rev 69Google Scholar; Keith, K J, “The Courts and the Administration: A Change in Judicial Method” (1977) 7 NZUL Rev 325Google Scholar; PE, Killbride, “Deregulation, Prohibition and Subdelegation” (1965) I Otago L Rev 97Google Scholar; Lanham, D, “Delegation, Legislation and Dispensation” (1984) 14 Melb U L Rev 634Google Scholar; Northey, J F, “Subdelegated Legislation and Delegatus Non Potest Delegare” (1953) 6 Res Judicata 294Google Scholar; PH, Thorp, “The Key to the Application of the Maxim 'Delegatus Non Potest Delegare'“ (1972) 2 Auck U L Rev 85Google Scholar; Willis, J, “Delegatus Non Potest Delegare” (1943) 21 Canadian Bar Rev 257Google Scholar.

³ (1930) 43 CLR 126 - the “conditional prohibition” approach.

⁴ {1937) 56 CLR 746 - the “unfettered discretion” approach.

⁵ Other than in Radio Corp v Commonwealth (1938) 59 CLR 170 where the conditional prohibition approach was followed. However, Radio Corp is not a strong authority. Latham CJ delivered a written judgment for the majority (Latham CJ, Rich, Starke & McTiernan JJ), but his judgment in fact lends support to the view of Evatt J in 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 a matter of construction no condition was specified as required by the empowering Act.

⁶ See the explanations given by Gibbs CJ (1984) 58 ALJR 454, 456.

⁷ Quaere whether this power to make general dispensations amounts to the exercise of a legislative power - considered below.

⁸ Unless on enquiry he were to be told that it was of a “general” type that was not permitted under s 21. But see below; should there be an obligation on the council to publish its “rulings” of this type?

⁹ As Murphy J remarked in his dissenting judgment in Foley v Padley, 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 esrnblish whether the principle [that all powers must be exercised bona.fide] has been breached by challenging a Council decision in court”: (1984) 58 ALJR 454,459.

¹⁰ le 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 J in the Supreme Court: (1983) 32 SASR 122, 125.

¹¹ Ibid. Apparently the defendant distributed books to passers-by after half an hour of chanting and singing.

¹² (1980) 23 SASR 251 (Mitchell J).

¹³ (1982) 30 SASR 560 (Bollen J).

¹⁴ By-law No LXXVI s 2.02.

¹⁵ Mitchell J seems to regard a statement evidencing the formation of the required opinion as being akin to a mandatory procedural requirement: (1980) 23 SASR 251, 255 citing in support Jones v Robson (1901) I QB 673 (whether a requirement to give notice upon being satisfied of a certain state of facts was a mandatory or directory requirement), R v Martin (1967) 67 SR NSW 404 (empowering legislation referred to two different states of mind and thus the necessary opinion had to be expressly stated), and R v Comptroller General of Patents; ex parte Bayer Products [1941) 2 KB 306 (implied because of nature of subject-matter, viz defence power). Quaere whether the decision would have been the same if there had been evidence by way of a resolution as to the formation of the opinion. Cf Cooper v Bormann (1979) 22 SASR 589.

¹⁶ By-law IX s 3 para 32(a).

¹⁷ Police Offences Act 1953-81 (SA) s 18.

¹⁸ On being asked to cease loitering the defendant replied “I object. rm just practising my religion”: (1982) 30 SASR 560, 564.

¹⁹ Ibid 566. His Honour thought that proceeding by way of the Police Offences Act lent itself to “a possible view that such proceeding is inappropriate”, ibid. But note that in Padley v Foley (1983) 32 SASR 122 Bollen J agreed with the reasoning of Matheson J.

²⁰ See DC, Pearce, Statutory Interpretation in Australia (2nd ed 1981) Ch 5Google Scholar.

²¹ Eg Melbourne Corp v Barry (1922) 31 CLR 174.

²² Eg Bradley v Commonwealth (1973) 128 CLR 557.

²³ Even if it had been established that he was “practising” his religion (cf Rice v Daire (1982) 30 SASR 560 and the comments of Bollen J), it probably would have been successfully argued that his “freedom” was overriden by the greater public “freedom” to move freely through the Mall. See E Campbell & H Whitmore, Freedom in Australia (1967)Ch 6.

²⁴ (1984) 58 ALJR 454, 456 per Gibbs CJ; cf 459 per Murphy J. Williams J agreed with the reasoning of Gibbs CJ, while Dawson J made no reference to this issue. Cf Matheson J in the Supreme Court (1983) 32 SASR 122, 129.

²⁵ (1984) 58 ALJR 454, 456; cf 459 per Murphy J, who saw this as a case where freedom of expression had been abused.

²⁶ And therefore possibly contrary to s 116 of the Constitution (Cth). These decisions point to the difficulty in attacking the exercise of powers which discriminate against a particular group. The issue would not have been relevant to the Prohibition of Discrimination Act 1966-75 (SA).

²⁷ (1984) 58 ALJR 454, 456 per Gibbs CJ.

²⁸ Ibid, 456 per Gibbs CJ, 465 per Dawson J. See also in the Supreme Court (1983) 32 SASR 122, 123-4 per King CJ, 130-1 per Matheson J. There is also a suggestion in the judgments that the by-law was directed against controlling the ensuing litter.

²⁹ Gibbs CJ, Wilson & Dawson JJ. See also the dissenting judgment of Brennan J (1984) 58 ALJR 454, 460. See also in the Supreme Court per King CJ and cf the more extreme view expressed by Matheson J (1983) 32 SASR 122, 128.

³⁰ (1984) 58 ALJR 454, 455 per Gibbs CJ.

³¹ Ibid.

³² Taylor, G D S, “Judicial Review of Improper Purposes and Irrelevant Considerations” [1976] Cambridge LJ 272CrossRefGoogle Scholar.

³³ See Wharam, A, “Judicial Control of Delegated Legislation - The Test of Reasonableness” (1973) 36 Mod L Rev 611CrossRefGoogle Scholar; Patterson, D F, “Aspects of Unreasonableness in New Zealand Administrative Law” (1968-69) 3 NZULR 52Google Scholar; Caldwell, J L, “Statutory Powers - the Duty to Act Reasonably” (1980) NZLJ 87Google Scholar. CJE I Sykes, D J Lanham & R R S Tracey, General Principles of Administrative Law (1979) Ch 11. The court in Foley v Padley appears to have applied a “narrow test” of unreasonableness and to that extent it is consistent with other High Court decisions, although there is a conflict in the authorities. See Sykes et al for a discussion of the authorities.

³⁴ [1974] NZLR 238.

³⁵ [1971] AC 632 (HL), Lords Pearce and Diplock.

³⁶ [1971] AC 632, 660.

³⁷ [(1974)] NZLR 238, 243.

³⁸ [(1984)] 58 ALJR 454, 455; cf 465 per Dawson J.

³⁹ Foley v Padley, ibid, 459 per Murphy J.

⁴⁰ Eg Sinclair v Mining Warden of Maryborough (1975) 132 CLR 473; Padfield v Ministry of Agriculture, Fisheries and Food (1968) AC 997; Roberts v Hopwood (1925) AC 578; Prescott v Birmingham Corp (1955) Ch 210; Hall v Shoreham-by-Sea UDC (1964) 1 WLR 240; Parramatta City Council v Pestell (1972) 128 CLR 305. See also R v Corp of the Town of Glenelg; ex parte Pier House (1968) SASR 246; DC Pearce, Delegated Legislation in Australia and New Zealand (1977) Ch 22; H Whitmore & M Aronson, Review of Administrative Action (1978) 198-204.

⁴¹ See Wade, H W R, Administrative Law (5th ed 1982) 394-99Google Scholar.

⁴² le Nakkuda Ali v Jarayatne (1951) AC 66 - a decision concerned with whether an official had “reasonable grounds” to act, and going to the issue of the reasonableness or sufficiency of evidence. Cf Khawaja v Secretary of State for the Home Department [1983) 2 WLR 321; Coleen Properties v Minister of Housing & Local Government [1971] 1 WLR 433; Secretary of State for Education & Science v Tameside Metropolitan Borough Council (1977) AC 1014; cases which support “no evidence” as a ground of judicial review. See also R R S Tracey, “Absence or Insufficiency of Evidence and Jurisdictional Error” (1976) 50 ALJ 568; R L Towner,” 'No Evidence' and Excess of Jurisdiction in Administrative Law” (1978) NZLJ 48. Quaere whether “no evidence” is a separate ground of review.

⁴³ [1974) NZLR 238.

⁴⁴ Both cases concerned regulations made under the Education Act 1964 (NZ). In Edward's case the court upheld a regulation governing the Lngth of school boys' hair. In Reade v Smith the court held invalid a regulation empowering the transfer of students to other schools. In that case such regulations could be made as “in the opinion of the Governor-General” were necessary. Contrary to the theory propounded in Edward's case the court was not deterred by the use of subjective language (nor, it seems, by the status of the power holder. Cf Whitmore & Aronson, supra n 40, 200-2, especially 200 n 375).

⁴⁵ [1974] NZLR 238, 244; “We start then with the presumption that the board acted within its powers.”

⁴⁶ Eg NZ Shop Employees Industrial Assn of Workers v A-G [1976) 1 NZLR 521; CREED NZ v Governor-General [1981] 1 NZLR 172; Brader v Ministry of Transport (1981) 1 NZLR 73. Cf Shire of Flinders v TW Maw & Sons [1971) VR 484 and the approach of Dixon Jin Stenhouse v Coleman (1944) 69 CLR 457, 469-70. See J L Caldwell, “Delegated Legislation and the Court of Appeal” (1983) NZLJ 344.

⁴⁷ [1974] NZLR 238, 244.

⁴⁸ In the sense of a “provisional burden of proof'; ie “a burden raised by the state of the evidence - from which the court may draw an inference one way or another but is not bound to do so”: Huyton-with-Roby UDC v Hunter [1955] 2 AIi ER 398, 400-1 per Denning LJ.

⁴⁹ Eg Television Corp v Commonwealth (1963) 109 CLR 59; Sutherland Shire Council v Finch (1970) 123 CLR 657; Sinclair v Mining Warden of Maryborough (1975) 132 CLR 473. Cf R v Australian Stevedoring Industry Board; ex parte Melbourne Stevedoring Company (1953) 88 CLR 100.

⁵⁰ Eg Padley v Foley (1983) 32 SASR 122, 124 per King CJ; Foley v Padley (1984) 58 ALJR 454, 455 per Gibbs CJ, 462 per Brennan J, 465 per Dawson J.

⁵¹ (1944) 69 CLR 407, 430.

⁵² (1944) 69 CLR 457.

⁵³ (1944) 68 CLR 504.

⁵⁴ R v Connell (1944) 69 CLR 407; “if ... satisfied” that certain rates of remuneration are “anomalous”; Stenhouse v Coleman (1944) 69 CLR 457; “so far as it appears to him to be necessary''; Reid v Sinderberry (1944) 68 CLR 504; “as appear to him to be necessary or expedient for securing ... defence” (cited in Foley v Padley (1984) 58 ALJR 454, 463 per Brennan J, 465 per Dawson J). Cf Hackett v Lander [1917] NZLR 947; R v Comptroller General of Patents; ex parte Bayer Products [1941] 2 LB 306, both of which can be explained on the same basis despite statements suggesting that the exercise of the discretion was unreviewable.

⁵⁵ Cf Sykes et al, supra n 33, 52 para 411 where R v Connell (1944) 69 CLR 407, Stenhouse v Coleman (1944) 69 CLR 457 and Reid v Sinderberry (1944) 68 CLR 504 are discussed in this context.

⁵⁶ Cf Whitmore & Aronson, supra n 40, 144-9. See the various articles by D M Gordon, from “The Relational Facts to Jurisdiction” (1929) 45 LQR 459, to “What did the Anisminic Case Decide?” (1971) 34 Mod L Rev 1. See also PW Hogg, “The Jurisdictional Fact Doctrine in the Supreme Court of Canada: Bell v Ontario Human Rights Commission” (1971) 9 Osgoode Hall LJ 203; D Mullan, “The Jurisdictional Fact Doctrine in the Supreme Court of Canada - A Mitigating Plea” (1972) 10 Osgoode Hall LJ 440.

⁵⁷ (1984) 58 ALJR 454, 460.

⁵⁸ Ibid 462-3. Note that His Honour also relies on the statement of Latham CJ in R v Connell (1944) 69 CLR 407. The only other authority referred to by way of contrast is Reid v Sinderberry (1944) 68 CLR 504.

⁵⁹ Ibid 463. His Honour is here referring to improper purposes.

⁶⁰ Emphasis supplied.

⁶¹ Ibid. Cf the remarks of Callan J in FE Jackson & Co v Collector of Customs [1939] NZLR 682, 703-4.

⁶² It is important to note that His Honour here clearly envisages the dispensing power as a separate act or exercise of power.

⁶³ See Hogg, supra n 56, 209.

⁶⁴ See Melbourne Corp v Barry (1922) 31 CLR 174, 209 per Higgins J. Cf Swan Hill Corp v Bradbury (1937) 56 CLR 746, 741 per Dixon J, 763 per Evatt J, suggesting that the discretion was so wide “that no general law or code or rule remains”; see also 765, 769. Note that pursuant to s 21 of the by-law the power to dispense could be “general” or “specific”.

⁶⁵ Local Government Act 1934 (SA) s 668(1).

⁶⁶ At which only one half of the members need be present.

⁶⁷ As noted above, Supra n2, Brennan J considered that the dispensing power was a separate act which disqualified the Council from prohibiting all distribution of “things”. But as will be seen below, His Honour joined with the other justices in holding that the dispensing power was a condition of the prohibition.

⁶⁸ (1984) 58 ALJR 454, 458. At 459 His Honour further says that “the width of the discretion . . . and the absence of any guidelines mean that the control and regulation is not by a law but by Council's discretion”.

⁶⁹ Ibid. These requirements are: (i) to be signed by the Mayor [s 668(2)]; (ii) to be submitted to the Crown-Solicitor for an opinion [s 669(1)]; (iii) to be certified by the Crown-Solicitor and forwarded to the Governor for confirmation [s 669(2)]; and (iv) to be published in the Gazette and laid before both houses of Parliament [s 670(1)].

⁷⁰ Ibid. Cf Melbourne Corp v Barry (1922) 31 CLR 174, 208 per Higgins J.

⁷¹ Including the other dissenting judge, Brennan J. The judges in the Supreme Court did not decide on this issue: Padley v Foley (1983) 32 SASR 122.

⁷² Following Country Roads Board v Neale Ads (1930) 43 CLR 127.

⁷³ (1984) 58 ALJR 454, 462.

⁷⁴ Eg SA de Smith, Judicial Review of Administrative Action (4th ed 1980) 298.

⁷⁵ Willis, supra n 2; Wade, supra n 41, 320; Thorp, supra n 2; Northey, supra n 2; de Smith, supra n 74. See also the remarks of Wilson Jin Dainford v Smith (1985) 59 ALJR 438, 444.

⁷⁶ Ibid.

⁷⁷ Keith supra n 2; Whitmore & Aronson, supra n 40, 194. Cf R v Lampe; ex parte Maddalozzo (1963) 5 FLR 160.

⁷⁸ Wade, supra n 41, 320.

⁷⁹ Literally, “a delegate cannot delegate”.

⁸⁰ Literally, “delegated power cannot be delegated”. See eg Judicial and Statutory Definitions of Words and Phrases (1914) I. Cf R H Kersley, A Selection of Legal Maxims (10th ed 1939) 558-72, where both expressions are used in different contexts.

⁸¹ Kersley, supra n 80, 571; P W Duff & H E Whiteside, “Delegata Potestas Non Potest Delegari: A Maxim of American Constitutional Law” (1928-29) 14 Cornell LQ 168.

⁸² See HP, Ehmke, “Delegata Potestas Non Potest Delegare', A Maxim of American Constitutional Law” (1961) 47 Cornell LQ 50Google Scholar, where Duff & Whiteside are taken to task for ignoring the agency aspect of the doctine's origin. Cf P H Aranson, E Gellhorn & G Robinson, “A Theory of Legislative Delegation” (1982) 68 Cornell L Rev 1.

⁸³ Cf Ehmke, ibid.

⁸⁴ “He who does an act through another is deemed in law to do it himself.” Kersley, supra n 80; Sir Henry Finch, A Summary of the Common Law of England, 1655 (1979); W Phillips, The Principles of Law Reduced to Practice, 1660 (1979); W Noy, The Principle Grounds and Maxims, with an Analysis of the Laws of England, 1845 (1980) 509-51; Halsbury's Laws of England I, para 396.

⁸⁵ Ehmke, supra n 82, 51-2.

⁸⁶ Ibid.

⁸⁷ Eg Aranson et al, supra n 82; Duff & Whiteside, supra n 81; ME Fine, “Rethinking the Non-delegation Doctrine” (1982) 62 Boston UL Rev 257.

⁸⁸ Eg Fine, ibid 262; Aranson et al, ibid 4; Duff & Whiteside, ibid 176 n 33.

⁸⁹ Aranson et al, ibid.

⁹⁰ Duff & Whiteside, supra n 81, 174.

⁹¹ Fine, supra n 87, 263-4; Aranson et al, supra n 82, 5.

⁹² Duff & Whiteside, supra n 81, 174; Aranson et al, supra n 82, 2.

⁹³ Fine, supra n 87, 307. He traces the history of judicial review of legislative delegations and perceives that the maxim as applied to judicial review has acquired a second aspect, viz “ultra vires review” based on (a) interpretation of the enabling statute to determine the scope of the delegation and whether the agent remains within that scope, and (b) inferring the requirement of reasonableness from the terms of the delegation to ensure that administrative action is not exercised arbitrarily: ibid 321-3. Cf Aranson et al, supra n 82, 63-4. For an earlier history of judicial review see Duff & Whiteside, supra n 81, 173-196.

⁹⁴ Fine, supra n 87, 321.

⁹⁵ Ibid 257, 260, 321-3. Cf Aranson et al, supra n 82, 63-4.

⁹⁶ Victorian Stevedoring v Dignan (1931) 46 CLR 73, 94-5 per Dixon J, Cfll4 per Evatt J. Appeal is made to the historical basis of responsible government as the justification for such delegation. See also R v Lampe; ex parte Maddalozzo (1963) 5 FLR 160.

⁹⁷ Pearce, supra n 40, 223-5, paras 503-6; Cf Victorian Stevedoring v Dignan (1931) 46 CLR 73, 114 & 118 per Evatt J.

⁹⁸ Victorian Stevedoring v Dignan (1931) 46 CLR 73, 101-2 per Dixon J. Cf R v Lampe; ex parte Maddalozzo (1963) 5 FLR 160.

⁹⁹ Victorian Stevedoring v Dignan (1931) 46 CLR 73, 95 per Dixon J, 119 per Evatt J. Eg R v Burah (1878) 3 App Cas 889; Powell v Appollo Candle Co (1885) 10 App Cas 282; Hodge v R (1883) 9 App Cas 117; Cobb & Co v Kropp [1967] 1 AC 141; Chenaid & Co v Joachim Arissol[l949] AC 172; R v Lampe; exparte Maddalozzo (1963) 5 FLR 160. Cf Nelson v Braisby (No 2) (1934] NZLR 559. See also Northey, supra n 2.

¹⁰⁰ Kersley, supra n 80.

¹⁰¹ Delegata potestas non potest delegari.

¹⁰² As expressed in the alternative rule vicarius non habet vicarium: See Kersley, supra n 80, 570.

¹⁰³ Kersley, supra n 80.

¹⁰⁴ See O'Reilly v Commissioner of State Bank (1982) 44 ALR 27; Re Reference under s 11 Ombudsman Act 1976 (1979) 2 ALO 86. CJ Huth v Clarke (l890) 25 QBD 391,395 where Willis J said that “the word 'delegate' means little more than an agent”. See Public and Administrative Law Reform Committee [NZ), Powers of Delegation (1984) 5-8. Contra de Smith, supra n 74, 301-2.

¹⁰⁵ Public and Administrative Law Reform Committee [NZ], ibid 7-8; Huth v Clarke (1980) 25 QBD 391. Contra Blackpool Corp v Locker (1948] 11 All ER 85; de Smith, supra n 74, 302.

¹⁰⁶ See O'Reilly v Commissioner of State Bank (1982) 44 ALR 27; Re Reference under s 11 Ombudsman Act 1976 (1979) 2 ALO 86; Esmonds Motors v Commonwealth (1969) 120 CLR 463; London County Council v Agricultural Food Products [1955] 2 All ER 229.

¹⁰⁷ Carltona v Commissioners of Works (1943] 2 All ER 560; Re Reference under sll Ombudsman Act 1976 (1979) 2 ALO 86, 93 per Brennan J. Eg Ex parte Forster (1963) 63 SR (NSW) 723 (Universities); R v Skinner (1968] 3 All ER 124 (Secretary of State's approval under Road Safety Act 1967 (UK)); O'Reilly v Commissioner of State Bank (1982) 44 ALR 27 (Permanent and deputy heads of department). Cf Hinton Demolitions v Lower (1968] SASR 370.

¹⁰⁸ Lanham, D, “Delegation and the Alter Ego Principle” (1984) 100 LQR 587, 608Google Scholar.

¹⁰⁹ Fox, R & Davies, O M L, “Subdelegated Legislation” (1955) 28 ALJ 486Google Scholar.

¹¹⁰ Willis, supra n 2.

¹¹¹ Cf Pearce, supra n 40, 226-7 para 509 (pointing out that the cases also give specific guidance); Northey, supra n 2, 303; Thorp, supra n 2, 86; de Smith, supra n 74,301; Whitmore & Aranson, supra n 40; Wade, supra n 41, 320; R v Lampe; ex parte Maddalozzo (1963) 5 FLR 160, 171.

¹¹² Willis, supra n 2, 259. He suggests that words such as “personally” would indicate a conferring of authority on that person alone. Express authorisation is, of course, a counter indication.

¹¹³ Ibid 261. Cf Fox & Davies, supra n 109, 490; “The best basis for finding a power to subdelegate ... is the sheer impossibility from a practical point of view of one person legislating over such a wide sphere.”

¹¹⁴ [1943] 1 DLR 248. See RF, Reid & David, H, Administrative Law and Practice (2nd ed 1978) 289-92Google Scholar.

¹¹⁵ [1943] 1 DLR 248, 276 per Hudson J.

¹¹⁶ Viz the 1939-45 war. See Whitmore & Aronson, supra n 40, 197; de Smith, supra n 74, 300; Northey, supra n 2, 298; Willis, supra n 2, 262.

¹¹⁷ Cf Northey, supra n 2, who sees it as an example of a plenary discretion. Cf Hawkes Bay Raw Milk Producers' Co-op v NZ Milk Board [1961] NZLR 218, 223 per Cleary J, who saw it as a case where the delegation was implicitly authorised.

¹¹⁸ Eg Ex parte Brent (1955) 3 DLR 587 (noted in (1956) 29 ALJ 504) (immigration); Victoria Restaurant v Montreal (1959] SCR 58 (licensing of restaurants). But cf Lamoureux v City of Beaconsfield [1978] 1 SCR 134, where a “condition precedent” approach was taken.

¹¹⁹ See Reid & David, supra n 114, 289, 291.

¹²⁰ (1922) 31 CLR 174.

¹²¹ (1937) 56 CLR 746.

¹²² (1984) 58 ALJR 454, 457-8 per Gibbs CJ, 460-2 per Brennan J, 466-8 per Dawson J. Basically, the previous decisions were distinguished on the basis of the difference in the wording, and important statements were dismissed as obiter.

¹²³ Cf Fine, supra n 87; Keith, supra n 2, 332.

¹²⁴ Keith, supra n 2, 333 (citing Vine v National Dock Labour Board (1957) AC 488; Aikman, supra n 2 (not citing any authority). Cf Radio Corp v Commonwealth (1938) 59 CLR 170; Schofield v City of Moorabbin (1967) VR22; Wade, supra n 41, 319-20, who says the maxim should be applied to “inalienable discretions”.

¹²⁵ Cf Wade, supra n 41. Some of the examples given by Keith, supra n 2, 334 are powers to initiate prosecutions and ministerial powers of deportation.

¹²⁶ de Smith, supra n 74, 301, 304; Thorp, supra n 2, 88. Eg Reference re Regulations (Chemicals) under War Measure Act (1943) I DLR 248; Schofield v City of Moorabbin (1967) VR 22; Radio Corp v Commonwealth (1938) 59 CLR 170 per Latham CJ; Victorian Stevedoring v Dignan (1931) 46 CLR 73 per Evatt J; Esmonds Motors v Commonwealth (1969) 120 CLR 463.

¹²⁷ Eg Geraghty v Porter (1917) NZLR 554; F E Jackson & Co v Collector of Customs (1939) NZLR 682; Hawkes Bay Raw Milk Producers' Co-op v NZ Milk Board (1961) NZLR 218; Rajah Ratnagopal v A-G (1970) AC 975; Sambell v Cook (1962) VR 448; Stewart v City of Essendon (1926) VLR 219. Cf Blackpool Corp v Locker (1948) I KB 349.

¹²⁸ Eg Bremner v Ruddenklau (1919) NZLR 444 per Sim J; Munt, Cottnell & Co v Doyle (1904) 24 NZLR 417; Olsen v City of Camberwell (1926) VLR 58; Hookings v Director of Civil Aviation (1957) NZLR 929; Transport Minister v Alexander (1978) I NZLR 306. Cf Foley v Padley (1984) 58 ALJR 454, 467 per Dawson J, who considers that case an example of this principle; Mackay v Adams (1926) NZLR 518.

¹²⁹ Hookings v Director of Civil Aviation (1957) NZLR 929.

¹³⁰ FE Jackson & Co v Collector of Customs (1939) NZLR 682.

¹³¹ This case thus involved a prohibition coupled with a dispensing power - see below.

¹³² Thereby distinguishing Jackson's case [1939] NZLR 682.

¹³³ (1957] NZLR 929, 934. Reliance was placed on Mackay v Adams [1926] NZLR 518, while Geraghty v Porter [1917] NZLR 554 was distinguished. Cf Aickman, supra n 2, 87 who suggests that this decision “leaves at large the issue whether a subdelegation was involved”. It is submitted that it is a clear decision. The actual basis of the decision has been doubted by the writers as a result of Turner J's obiter comments towards the end of his judgment, remarking that he had been disturbed by the way in which the regulation had been administered. But having been persuaded that the Director considered each case on its merits, and made an administrative rather than a judicial or legislative decision, His Honour adhered to his conclusion that it was valid: [1957] NZLR 929, 938. This has led some writers to view the case as supporting proposition (i) below concerning “administrative functions”. See Whitmore & Aronson, supra n 40, 197; Keith, supra n 2, 327-8; Pearce, supra n 40, 231-2 para 520; Sykes et al, supra n 33, 36 para 315. Cf Aikman, supra n 2, 85 and Thorp, supra n 2, 90, who suggest it was a case where standards to regulate the discretion were implicitly laid down.

¹³⁴ FE Jackson & Co v Collector of Customs (1939] NZLR 682.

¹³⁵ le a prohibition coupled with a dispensing power.

¹³⁶ See regulations 10 and 11: (1939] NZLR 682, 705.

¹³⁷ Ibid 703-4. Cf Foley v Padley (1984) 58 ALJR 454.

¹³⁸ lbid 707.

¹³⁹ Ibid 732, following Geraghty v Porter (1917] NZLR 554. Cf Keith, supra n 2, 330 who sees it as a case where there was a failure to “regulate”. Similarly, Thorp, supra n 2, 92 and Aikman, supra n 2, 74-6. But cf Pearce, supra n 40, 228-9 para 513 and Whitmore & Aronson, supra n 40, 197, who accept it as authority for the proposition stated.

¹⁴⁰ Eg Swan Hill Corp v Bradbury (1937) 56 CLR 746 per Dixon J; Cooper v Bormann (1979) 22 SASR 589; Hawkes Bay Raw Milk Producers' Co-op v NZ Milk Board [1961] NZLR 218; Ex parte Brent (1955) 3 DLR 587; Victoria Restaurant v Montreal (1959] SCR 58; Smithy's Industries v A-G[l980] I NZLR 355; In re Martin's Application [1974] Tas SR 43; Radio Corp v Commonwealth (1938) 59 CLR 170, 192 per Dixon and Evatt JJ.

¹⁴¹ Eg Stewart v City of Essendon (1926) VLR 219; FE Jackson & Co v Collector of Customs [1939) NZLR 682; Cooper v Bormann (1979) 22 SASR 589, 594; Smithy's Industries v A-G [1980) 1 NZLR 355; Conroy v Shire ofSpringvale&Noble Park [1959) VR 737 per Adam J. Cf Neptune Oil v City of Richmond [1924] VLR 385; Shanahan v Scott (1957) 96 CLR 245; Utah Corp v Pataky [1966] AC 629. Note that the first ground in Hookings' case [1957) NZLR 929 was that it did not regulate.

¹⁴² Eg Schofield v City of Moorabbin [1967) VR 22; A-G & Robb v Mount Roski/1 [1971) NZLR 1030; Country Roads Board v Neale Ads (1930) 43 CLR 127; Fox v Al/church [19271 SASR 329; Conroy v Shire of Springvale & Noble Park [1959) VR 737, 752, per Gavan Duffy J; R v Statutory Committee; ex parte Frisken [1979) 22 SASR I 17, 127; Mackay v Adams [1926) NZLR 518; Ideal Laundry v Petone Borough [1957) NZLR 1038; R v Shire of Ferntree Gully; ex parte Hamley [1946) VLR 501.

¹⁴³ Eg Country Roads Board v Neale Ads (1930) 43 CLR 127; Hookings v Director of Civil Aviation [1957) NZLR 929; Mackay v Adams [1926) NZLR 518. See Swan Hill Corp v Bradbury (1937) 56 CLR 746, 768 per Evatt J, saying of the Country Roads Board decision: “The matter was essentially one of good taste and right feeling”; Conroy v Shire of Springvale & Noble Park [1959] VR 737, 756 per Scholl J.

¹⁴⁴ (1937) 56 CLR 746.

¹⁴⁵ Ibid 752 per Latham CJ, 762-3 per Dixon J.

¹⁴⁶ Ibid 753 per Latham CJ, 769-70 per Evatt J.

¹⁴⁷ Ibid 750-1 per Latham CJ, 756-9 per Dixon J, 765, 769-70 per Evatt J.

¹⁴⁸ Ibid 753 per Latham CJ, 759 per Dixon J, 765 per Evatt J.

¹⁴⁹ Ibid 770.

¹⁵⁰ Ibid 758-9.

¹⁵¹ lbid 758. Note that His Honour's dictum concerning undefined discretions (757-8) has been applied in the following cases on uncertainty in delegated legislation: Re Australian Broadcasting Tribunal; ex parte 2 HD (1980) 27 ALR 321; Executors of Will of Lady Vestey v Minister for Lands [1972] WAR 98; King Gee Clothing v Commonwealth (1945) 71 CLR 184; Canns v Commonwealth (1945) 71 CLR 210; Racecourse Co-op Sugar Association v A-G (Qld) (1979) 142 CLR 460.

¹⁵² Country Roads Board v Neale Ads (1930) 43 CLR 127; Munt, Cottrell & Co v Doyle (1904) 24 NZLR 4171; Hazeldon v McAra [1948] NZLR 1087; Mackay v Adams [1926] NZLR 518; Fox v Allchurch [1927] SASR 329; Ideal Laundry v Petone Borough[l957] NZLR 1038; Neptune Oil v City of Richmond [1924] VLR 385; Bysouth v City of Northcote [1924] VLR 587; Conroy v Shire of Springvale&Noble Park [1959) VR 737; Poole v Wah Min Chan (1947) 75 CLR 218; Radio Corp v Commonwealth (1938) 59 CLR 170, 183-4 per Latham CJ; R v Shire of Ferntree Gully; ex parte Hamley [1946) VLR 501; R v Statutory Committee; ex parte Frisken [1979] 22 SASR 117; Schofield v City of Moorabbin [1967) VR 22; Shaw v City of Essendon [1926) VLR 461; Wilton v Mount Roskill (1964) NZLR 957. Cf Lanham, supra n 2, 637: “Every delegation by way of a dispensation can be dressed up as a condition.”

¹⁵³ (1930) 43 CLR 127.

¹⁵⁴ Ibid 135, referring to Williams v Weston-super-Mare UDC (1907) 98 LJ 537 and other older authorities.

¹⁵⁵ (1937) 56 CLR 746, 752.

¹⁵⁶ Ibid 768. As has been discussed above, Evatt J saw no distinction between a power to “prohibit” and one to “regulate” where an unfettered discretion was involved.

¹⁵⁷ Keith, supra n 2, 335-6 citing Vine v National Dock Labour Board [1957) AC 488, Hazeldon v McAra [1948) NZLR 1087, and Jackson's case [1939) NZLR 682 - he equates them with cases involving freedoms. Possibly the decisions involving defence powers are explicable on the basis of this principle. See eg Re Reference re Regulations (Chemicals) (1943) I DLR 248 and the customs regulations cases, eg Radio Corp v Commonwealth (1938) 59 CLR 170; R v McLennan; ex parte Carr (1952) 86 CLR 46; Poole v Wah Min Chan (1947) 75 CLR 218. But cf Jackson's case (1939) NZLR 682.

¹⁵⁸ Keith, supra n 2, 338; Fox & Davies, supra n 109, 490.

¹⁵⁹ Eg Wade, supra n 41, 321.

¹⁶⁰ Aikman, supra n 2, 84. See discussion above as to common law rights.

¹⁶¹ (1922) 31 CLR 174, 206 per Higgins J. Cf Conroy v Shire of Springvale & Noble Park (1959) VLR 737, 746 per Herring CJ.

¹⁶² (1937) 56 CLR 746, 754 per Latham CJ, 759 per Dixon J (the right to build). CJ Fox v Allchurch (1927) SASR 329, 335-6; Rice v Daire (1982) 30 SASR 560.

¹⁶³ Eg Edwards v Onehunga High School Board [1974) NZLR 238; Conroy v Shire of Springvale & Noble Park (1959) VLR 737, 752 per Gavan Duffy J. Cf Brader v Ministry of Transport [1981] 1 NZLR 73, where it was suggested that the proposition applied only to the natural rights of man (not the right to use a motor car).

¹⁶⁴ See eg (1984) 58 ALJR 454, 458 per Gibbs CJ: “the subject of the power is not something indispensable to the life of the community, such as the erection of buildings.” Other than in the dissenting judgment of Murphy J, no mention was made of the possibility. Cf Padley v Foley (1983) 32 SASR 122, 129 where Matheson J indirectly refers to the issue, citing the judgment of Mann CJ in Seeligson v City of Melbourne (1935] VLR 365, 369-70 when he says inter alia “It may well be a matter of opinion about many by-laws, as to whether they are not what might be called a somewhat fussy exercise of legislative powers, that they trench on the liberty of a great many people because of the use made of that liberty by comparatively few.”

¹⁶⁵ Aickman, supra n 2, 84 citing Taylor v Brighton Borough Council [1947] KB 736, Kruse v Johnson [1898] 2 QB 91, McCarthy v Madden (1914) 33 NZLR 1251. See also Keith, supra n 2, 334 who includes it under principle (a).

¹⁶⁶ Eg R v McLennan; ex parte Carr (1952) 86 CLR 46 (in which Radio Corp v Commonwealth (1938) 59 CLR 170 and Poole v Wah Min Chan (1947) 75 CLR 218 were followed); King-Emperorv Benoari Lal Sarma [1945] AC 14; R v Lampe; exparte Madda/ozzo (1963) 5 FLR 160; Nelson v Braisby(No2) [1934] NZLR 559; Mandeno v Wright [1967] NZLR 385. The Carltona principle is an application of this proposition. See Carltona v Commissioners of Works [1943] 2 All ER 560; Lanham, supra n 108. Possibly Hookings' case [1957] NZLR 929 is also a decision on this basis. Cf R v Statutory Committee; ex parte Frisken [1979] 22 SASR 117. See Sykes et al, supra n 33, 35-6; Aickman, supra n 2, 73.

¹⁶⁷ Sykes et al, supra n 33, 29; Keith, supra n 2, 325. Cf Wade, supra n 41, 319-20 who suggests the basis should be whether the discretion is “inalienable”.

¹⁶⁸ Aickman, supra n 2, 70; Keith, supra n 2, 532; Thorp, supra n 2, 90.

¹⁶⁹ (1984) 58 ALJR 454, 463.

¹⁷⁰ Footscray Corp v Maize Products (1943) 67 CLR 301, 306, 313 is cited as authority.

¹⁷¹ Cf Thorp, supra n 2, 99 and his plea to adopt a functional rather than a conceptual approach.

¹⁷² Aickman, supra n 2, 94.

¹⁷³ See Keith, supra n 2, 335.

¹⁷⁴ See also the decisions on failure to “regulate” discussed above.

¹⁷⁵ (1937) 56 CLR 746, 765, 769.

¹⁷⁶ Ibid 769.

¹⁷⁷ Eg Olsen v City of Camberwell [1926) VLR 58; Conroy v Shire of Springvale & Noble Park (1959) VLR 737 per Herring CJ; A-G & Robb v Mount Roskill (1971) NZLR 1030 (note that in this decision it was suggested that the Ideal Laundry case (1957] NZLR 1038 had left open the question as to the validity of the specific dispensing power: (1971] NZLR 1030, 1039); In re Martin's Application (1974] Tas SR 43. But note that in Foley v Padley (1984) 58 ALJR 454 the majority answered this argument by relying on the “conditional prohibition” approach discussed above.

¹⁷⁸ Keith, supra n 2, 334.

¹¹⁹ (1922) 31 CLR 174.

¹⁸⁰ Referring to the procedural requirement that by-laws be enacted at special meetings of the Council and then duly published etc.

¹⁸¹ (1922) 31 CLR 174, 208. Cf Murphy J in Foley v Padley (1984) 58 ALJR 454 who takes a similar view. Brennan J also refers to this aspect of the delegation argument, saying (after referring to Higgins J) that in effect the two cases are distinguishable because the power in Barry's case was “quite unlike” the power in Foley v Padley: (1984) 58 ALJR 454, 462.

¹⁸² (1922) 31 CLR 174, 208. His Honour continues: “In short, this by-law leaves every procession to the mere will of the Council - the very thing that [the procedural provisions] were intended to prevent.” Cf Foley v Padley (1984) 58 ALJR 454 per Murphy J.

¹⁸³ Eg Sambell v Cook [1962] VR 448 (delegation by Planning Board of power to make interim development orders invalid); Morrison v Shire of Morwel1 (1948] VLR 73 (a subcommittee of council set up to manage town hall - delegation held invalid); Dewar v Shire of Braybrook (1926] VLR 201 (under a power to make by-laws regulating and restraining the construction of buildings, the by-law left the dispensing of requirements to the council by resolution). Cf Hazeldon v McAra (1948] NZLR 1087, where it was recognised that a power of dispensation given to a Town Clerk was a delegation, but was valid as the relevant By-law Act authorised it.

¹⁸⁴ Dewar v Shire of Braybrook [1926] VLR 201.

¹⁸⁵ (1900) 18 NZLR 857. This decision was followed in Collins v Wolters (1904) 24 NZLR 499 and was referred to with approval in the recent New Zealand decision of Smithy's Industries v A-G (1980] I NZLR 355, 360. Cf Aikman, supra n 2, 76 n 13 who says that it is a case where legislative and administrative functions were confused.

¹⁸⁶ Ibid 863.

¹⁸⁷ Ibid 862. Cf Bremner v Ruddenklau (1919) NZLR 444 where it was thought that this was not a significant factor as council proceedings were in any event open to the public. Legislation passed consequent upon Staple's case was considered in Munt, Cottrell & Co v Doyle (1904) 24 NZLR 417. The relevant Municipal Corporations Act specifically provided that a by-law could leave anything to be regulated by Council from time to time by resolution. Cooper J discusses the amendment and, though troubled by the width of the power and possibility of hardship, sees that his duty is to construe the legislation: (1904) 24 NZLR 417, 425.

¹⁸⁸ In many cases, there is no such difficulty, eg in the by-law under consideration in Foley v Padley it would have been possible to prescribe what type of things may not be distributed. Cf (1984) 58 ALJR 454, 463-4 per Brennan J.

¹⁸⁹ KC Davis, Discretionary Justice - A Preliminary Inquiry (1969) 20.

¹⁹⁰ Ibid 44.

¹⁹¹ Pearce, supra n 40, 235 para 527.

¹⁹² Keith, supra n 2, 332. Cf de Smith, supra n 74, 307.

¹⁹³ Fine, supra n 87, 260.

¹⁹⁴ It is to be noted that South Australia has no equivalent to the Administrative Law Act 1978 (Vic.). This Act requires a “tribunal” (see s 2) to give reasons for its decision (see s 8). However, it is doubtful whether a local government exercising a dispensing power is a “tribunal” for these purposes. Cf Osmond v Public Service Board (1984) 3 NSWR 447 where the duty to give reasons is considered as an aspect of natural justice reversed on appeal by the High Court; Public Service Board v Osmond (1986) 60 ALR 209.

¹⁹⁵ Cf Administrative Law Act 1978 (Vic) s 8(5); Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 13A, 14; Administrative Appeals Tribunal Act 1975 (Cth) s 28(2).

¹⁹⁶ Davis, supra n 189, 58-9.

¹⁹⁷ Baldwin, R & Hawkins, K, “Discretionary Justice: Davis Reconsidered” [1984] Public Law 570, 595-6Google Scholar.

¹⁹⁸ Lanham, supra n 2, 636, 659.