Widgee Shire Council v Bonney [1907] HCA 11; (1907) 4 CLR 977 (29 April 1907)

The respondent was convicted by a Police Magistrate for a breach of a by-law made by the appellant, a local authority in a country district, which is in these words:—"No person shall in any way injure or destroy the water-table, gutterway, or side drain of any road in the Division in any way whatsoever, either by crossing or driving along or into the same with any cart, dray, wagon, or other conveyance, or by casting or depositing, or causing to be cast or deposited, therein any material calculated to impede or obstruct the course of the water-flow." The Supreme Court quashed the conviction on the ground that the by-law was invalid, and this is an appeal from that decision. In considering the validity of a by-law, the first question is whether the by-law is within the ambit of the delegated legislative authority under which it purports to be made. By the Divisional Boards Act 1887, which regulated local government outside of municipalities, divisional boards, now called shire councils, were established with powers and duties defined in the Act. Sec. 142 was as follows:—"The Board shall be charged with the construction, maintenance, management, and control of all public highways, roads, bridges, culverts, ferries, wharves, jetties, and other necessary public works within the Division, and may from time to time open new streets or roads, or divert any street or road, or alter or increase the width, or cause to be raised or lowered the soil, of any street or road, and may construct any bridge or culvert in or over any street or road, and may, for such purposes and for such time as is necessary, close any street or bridge."

By sec. 179 a Board was authorized to make by-laws for (among other purposes) the following: (21) Regulating traffic generally; (29) The prevention of injury or obstruction to roads or other public places by digging or otherwise; (30) The prevention of injury to bridges ... or other works, being the property of or under the control of the Board; (33) The control and management of roads and reserves under the control of the Board; (39) The general good government of the Division. Sections 181 and 182 prescribed formalities to be observed in passing by-laws, under which opportunity was given for objection by any person interested. Sec. 183 required that by-laws should be submitted for the approval of the Governor in Council, and that if approved by him, they should be published in the Government Gazette, and thereupon such by-law was to have the force of law in the Division. Sec. 184 empowered the Governor in Council to repeal a by-law by Order in Council. Sec. 185 provided that a by-law might impose a penalty not exceeding £20 for a breach of it. Sec. 187 empowered the Supreme Court to quash a by-law on the ground of invalidity on proper proceedings taken for that purpose.

It is contended for the respondent that the by-law now in question is not within the ambit of the powers enumerated in sec. 179; and that even if it is otherwise within them, it is unreasonable and therefore invalid. It is contended further that a by-law cannot prohibit an act simpliciter, because, it is said, this would be dispensing with the element of what is called mens rea in an offence. So far as this last objection is concerned it may be dismissed with the observation that under the criminal law of Queensland, as defined in the Criminal Code, it is never necessary to have recourse to the old doctrine of mens rea, the exact meaning of which has been the subject of much discussion. The test now to be applied is whether this prohibited act was, or was not, done accidentally or independently of the exercise of the will of the accused person (sec. 23). The suggestion that a by-law may not add to the law is, of course, untenable, for in that view the power to make by-laws would be absolutely nugatory. It cannot be disputed that under the power to regulate traffic the local authority would have power by by-law to prescribe that certain forms of traffic, for instance, heavily loaded wagons, or indeed any wheeled vehicles, shall be confined to a prescribed portion of the width of a highway; otherwise the power to control highways and make them safe and convenient for foot passengers would be futile. Nor can it be disputed that, primâ facie, the width of the carriage-way is a matter for the local authority to determine. Again, it is clear that if they thought fit to allow wagons or other wheeled vehicles to use the whole width of a highway, they might impose a condition that they should not injure the water-tables or kerbs separating one part from another. It is equally plain that they might, under the power to make by-laws to prevent injury or obstruction to works, prohibit the passing of a heavy vehicle from the carriage-way to another part of the highway, if doing so would be likely to injure the kerb or water-table.

The by-law now in question, which prohibits persons from injuring a water-table by crossing or driving into or along it with a vehicle, is not distinguishable. I am therefore clearly of opinion that the by-law in question is primâ facie within the ambit of the powers of the Board.

With regard to the objection that the by-law is unreasonable, I think that since the cases of Slattery v. Naylor[1] and Kruse v. Johnson[2] it is very difficult to make a successful attack on a by-law on this ground. In my opinion, the intention of the legislature, as evidenced by the section to which I have referred, was to leave to the local authority in the first instance, and to the Governor in Council in the second, the decision of the question of the expediency of exercising the powers conferred on them. The existence of a power and the expediency of its exercise are quite different matters. The question of the existence of the power can always be determined by a Court of law. But, in my opinion, the expediency of the exercise of a power is not a matter for determination by a Court. What might be regarded by every-one as a reasonable and proper by-law to make in a city or in a large country town might in the case of a small country township or sparsely-settled district (to all of which the Act in question applied) be regarded by some persons as unreasonable. But it is obvious that the question whether the circumstances of the locality warrant the exercise of a power is one of expediency and not of competency. Otherwise the validity of a by-law would have to be determined upon extrinsic evidence as to the circumstances of the particular locality. I do not know of any instance in which such a doctrine has ever been suggested. In my opinion, the legislature has deliberately and intentionally made the local authority, subject to the approval of the Governor in Council, the sole judge of such matters, subject only to this qualification, that, if a by-law is such that no reasonable man, exercising in good faith the powers conferred by the Statute, could under any circumstances pass such a by-law, it might be held invalid on that ground as being an abuse of the power, and therefore not within it. This view is in accord with the accepted rule that the exercise of discretion by local authorities will not be reviewed by a Court of law in cases where they are authorized to execute such works as may be necessary. (See the cases referred to in Local Board of Health of Perth v. Maley[3]).

The learned Judges in the Supreme Court appear to have thought that the by-law in question might be construed as a prohibition of persons lawfully using a highway from obtaining access to the portion of the road lying outside the water-table, and also that it would apply to a gutter crossing the highway. I do not so construe it. I have said before to-day, and now repeat, that, in my opinion, when a by-law is open to two constructions, on one of which it would be within the powers of the local authority, and on the other outside of these powers, the former construction should be adopted, ut res magis valeat quam pereat. In my opinion this by-law does not refer at all to gutters or waterways crossing a road; and I do not inquire whether, if it did, it could or could not be supported. So far as regards crossing from the portion of the highway specially formed for the use of wheeled vehicles to other parts, there is no prohibition, for it is obvious that a person desiring to do so could, by laying down a few pieces of wood in the water-table, attain his object without offending against the by-law. And, even if he could not, the by-law would not on this ground be any more open to objection than a by-law which prohibited the use of a particular wooden bridge by vehicles carrying more than a specified load per wheel, which would obviously be valid, although it might have the effect of altogether prohibiting the use of that part of the highway by such vehicles. For these reasons I am of opinion that the appeal must be allowed. But, in pursuance of the undertaking given by the appellant on obtaining special leave to appeal, I think that it should pay the respondent's costs.

I am of the same opinion. Arguments have been addressed to us with a view of showing the by-law to be unreasonable, or, in other words, to prove that all proper and necessary protection to the roads could have been obtained by means of a by-law of a less stringent nature.

It has been assumed that whenever a by-law, under whatsoever powers made, is challenged, it becomes the duty of a Court of law to form its own opinion as to the reasonableness of the by-law, and, if the Court thinks it unreasonable, although actually within the scope of the powers granted to the law making authority, to set it aside as unlawful.

In my opinion that assumption is erroneous. Without determining the extent of the Court's duty and power in some cases of an altogether different class from the present, it is plain that a Court of law has no jurisdiction to usurp functions expressly confided by the legislature to another body, specially created for that purpose, nor to disregard the distinct provisions of an Act of Parliament. In the Divisional Boards Act 1887, under which the by-law was made, the legislature enumerated specific matters as to which a local authority might legislate, and used no words of qualification upon the discretion of that authority, stipulating only that by-laws shall not be contrary to the Act itself or any other law in force in Queensland. The interests of the general public were protected by requiring approval of the central administration which was also invested with the power of repeal, and is always subject to the supervision of Parliament. It seems to me that the legislature intended that, so long as the proposed local enactment was within the ambit of the powers conferred, the discretion and sense of reasonableness to be applied to it, that is to say, the extent to which the power should be exercised, should be that of the Board and the Governor in Council alone. No Court of law can be in as good a position to judge of the necessities of local traffic, the general local requirements of the country, or the practical difficulties of maintaining order and preserving public property as the local representatives, whose special duty it is to ascertain and provide for them, or the higher officials of the central government who are specially designated by Parliament to consider the suggested regulation from the standpoint of the public welfare. It can hardly be supposed that Parliament intended any Court of law, whether two justices of the peace, or the Supreme Court, to override the combined opinion of the Board and the Governor in Council on questions not of law but concerning the reasonable or necessary conduct of individuals in their daily relations to the various local communities of the country.

But, if any doubt in this connection could exist, the provisions of sec. 183 are decisive. After approval of the Governor in Council the by-law is to be published in the Gazette and thereupon such by-law "shall have the force of law" in the Division.

The legislature has thus definitely and in so many words declared its will that by-laws made, approved and published, with respect to the subjects enumerated, and not containing matter contrary to the Act or any other law in force in Queensland, shall have the force of law. How then can a Court go behind this provision and say that such a by-law shall not have the force of law?

It is true that sec. 187, now replaced by sec. 188 of the Local Authorities Act 1902, provides a mode of testing the validity of a by-law. Any resident ratepayer may upon the prescribed conditions apply to the Court to quash the by-law for invalidity.

Even without resorting to that procedure a person charged with contravention of a by-law may, as in this case, defend himself if he can demonstrate its invalidity.

But what is meant by invalidity? To my mind it means unlawfulness because made without the warrant of the Act or in excess of or contrary to its provisions construed in the ordinary manner. But the clear purpose of the Statute, expressed in the plainest terms, is that, if those provisions are complied with, the by-law shall have the force of law, and so be valid. Sec. 187 does not weaken sec. 183, it merely affords a ready and convenient opportunity to test the conformity of the by-law with the requirements of the Act without running the risk of a contravention of the by-law. The test of validity, assuming the by-law to have been duly approved and published, is whether it falls within the scope of authority given to the Divisional Board. If it does it is valid, if it does not it is invalid.

If it appears to the Court that the by-law is "a merely fantastic and capricious by-law, such as reasonable men could not make in good faith," to employ the expression of the Privy Council in Slattery v. Naylor[4], then the by-law could not in any proper sense be regarded as covered by the powers conferred. Such a misuse of the Act could never be contemplated by Parliament, and it would form a ground of "invalidity" within the meaning of sec. 187. But, to quote again from Slattery v. Naylor[5]:—"It is quite a different question whether a by-law can be treated as unreasonable merely because it does not contain qualifications which commend themselves to the minds of Judges."

The by-law is certainly not open to the objection of caprice, bad faith, or abuse of power. It has been further argued that this by-law is invalid because it transgresses the actual powers granted, inasmuch as it is contrary to the general law of Queensland contained in sec. 469 of the Criminal Code, the contention being that the section referred to is to be considered as fully dealing with the subject of injuries to property. A similar objection was taken in the case of Edmonds v. The Master and Senior Warden of the Company of Watermen and Lightermen[6], viz.:—That a by-law was "inconsistent with the laws of this kingdom." Lord Campbell L.C. answered that by saying:—"A by-law cannot be said to be inconsistent with the laws of this kingdom merely because it forbids the doing of something which might lawfully have been done before, or requires something to be done which there was no previous obligation to do; otherwise a nominal power of making by-laws would be utterly nugatory."

Martin B. in The Queen v. Saddler's Co.[7] observed that a by-law "must necessarily superadd something to the common law, otherwise it would be idle."

That a by-law should be contrary to a law in force in Queensland it must be inconsistent with it. No provision of Queensland law has been referred to which this by-law can be said to contravene, either by penalizing an act declared to be lawful or by legalizing what is forbidden.

There is no inconsistency that I can discover between sec. 469 of the Criminal Code and the by-law.

Agreeing with the judgment of the learned Chief Justice on these and other points adverted to by him, I see no reason whatever for holding this by-law invalid.

In this case it is not disputed that the defendant has injured the water-table or side drain of a road within the Shire of Widgee by driving his bullock-wagon across it. The tracks made by the wheels would stop the water from flowing. There is a by-law of the Shire (No. 287) which provides that no person shall in any way injure or destroy the water-table, guttering or side drain of any road in any way whatsoever, either by crossing or driving along or in the same with any cart, dray, wagon or other conveyance, or by casting or depositing therein any material calculated to impede or disturb the course of the waterflow, under penalty of not more than £5. The Court of Petty Sessions convicted the defendant, and fined him five shillings with costs; but the Full Court has quashed the conviction on the ground that the by-law is ultra vires of the Council. Now, under sec. 179 of the Divisional Boards Act 1887, the Council had power to make by-laws with respect to (inter alia) roads to the extent stated in the judgment of the Chief Justice. It is provided at the end of the section, that "no such by-law shall contain any matter contrary to the Act or any other law in force in Queensland." The view taken by the Full Court seems to be that, if this by-law is valid, the Shire Council could set apart a strip of land for traffic, and prohibit people from using any other part of the public highway, because it is said to be impossible to drive over a side drain without injuring it to some extent; and the Full Court suggest an amendment of the by-law by adding the words "negligently or unnecessarily or wantonly" to the words "crossing or driving." In the present case, the highway is 2 chains (132 ft.) at least in width; but there is a metalled way in the middle about 20 ft. wide, and along each side of the metalled way there is a water-table or side drain, 3 ft. 6 in. wide. The crown of the road is higher than the bottom of the drain by 2 ft., or perhaps 3 ft.; and it is said to be 9 ft. 4 in. wide; but there is no pretence for saying that two wagons, six or even seven feet wide, could not pass one another if they met. I can see no sufficient reason for holding that this section of the by-law is beyond the powers of the Council. It is true that a power to regulate traffic does not enable a Council to prohibit traffic; just as a power to regulate hawkers does not enable a Council to prohibit hawking. But a power to regulate traffic involves a power to prohibit traffic except in accordance with regulations; just as in a city the vehicles may be forbidden to move on footpaths. It is to be noticed in this case that wagons are not even prohibited from crossing the water-tables; they are merely forbidden to injure them in crossing. Even as to these two narrow strips of 3 ft. 6 in. each, in a road 132 ft. wide, there are simple, well-known devices by which heavily-laden wagons could cross them without doing injury. The restriction, such as it is, is designed for the general good of the public who use the highway; and it seems to me to be clearly within the spirit and the words of the power conferred. The expediency of the particular regulations in each case is a matter for the judgment of the Council, not for the judgment of the Court. The members of the Council are responsible to the ratepayers in the exercise of their judgment; and there is this further check on the Council, that the by-laws have to be approved by the Governor in Council. If the by-law is within the scope and object of the powers conferred, it is valid; and the question whether it is reasonable or unreasonable, so long as it is within the powers, is not for the Court. I think that many of the difficulties which have arisen with reference to the validity of by-laws would not have arisen but for the unhappy phraseology which has been so often used in Courts—not, I must admit, by the Full Court—that a by-law is not valid if it be unreasonable. Questions as to the validity of by-laws really come under the ordinary principles applicable to powers; and when it is said that a by-law is unreasonable, and therefore invalid, what is really meant is that the provisions in the by-law cannot reasonably be regarded as being within the scope or ambit or purpose of the power. The language used in Courts of equity with regard to powers seems to me to be more appropriate, and to conduce to greater clearness of thought. Then, the fact that this section is placed in a by-law headed "relating to injuries and obstructions to roads and reserves" does not make the section invalid, even if it should be shown (I do not say that it has been shown) that the power numbered 29 does not cover the case—provided always that the by-law is otherwise within the competence of the Council. Mr. Douglas, in his argument, laid special stress on the final words of sec. 179, which I have already quoted, to the effect that the by-law shall not contain any matter contrary to the Act or to any law in force in Queensland. But a by-law does not contain matter contrary to an Act, or to the general law, for the mere reason that, in pursuance of the Act, it contains provisions adding to the restrictions imposed by the terms of the Act itself or by the general law. Every by-law necessarily puts restrictions on the freedom of action of individuals for the benefit of the general public. As was said in Gentel v. Rapps[8], a by-law is "not repugnant to the general law merely because it creates a new offence, and says that something shall be unlawful which the law does not say is unlawful. It is repugnant if it makes unlawful that which the general law says is lawful." Here, no Act of Parliament or other law prescribes that the injuring of the water-table shall be lawful; and, on the contrary, the Act in question allows the Divisional Council to say that such injury shall be unlawful.

Appeal allowed. Order appealed from discharged and order nisi to quash discharged with costs. Respondent to repay costs already received. Appellant to pay respondent's costs of this appeal, which it may set off pro tanto against costs payable by respondent.

[1] 13 App. Cas., 446.

[2] (1898) 2 Q.B., 91.

[3] [1904] HCA 28; 1 C.L.R., 702.

[4] 13 App. Cas., 446, at p. 452.

[5] 13 App. Cas., 446, at p. 453.

[6] 24 L.J.M.C., 124, at p. 128.

[7] 3 El. & E., 72, at p. 80.

[8] (1902) 1 K.B., 160, at p. 166.

High Court of Australia

Widgee Shire Council v Bonney [1907] HCA 11; (1907) 4 CLR 977 (29 April 1907)

HIGH COURT OF AUSTRALIA