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Secretary for Law v Tenalom [1965-66] PNGLR 414 (4 January 1967)

Papua New Guinea Law Reports - 1965-66

[1965-66] PNGLR 414 - Secretary for Law v Tenalom

[1965-66] PNGLR 414

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SECRETARY FOR LAW

TENALOM

Port Moresby

Ollerenshaw J

14 October 1966

17-19 October 1966

10 November 1966

4 January 1967

BY-LAWS AND REGULATIONS - Delegation of legislative power to Administrator - Exercise of delegated power by Superintendent of Motor Traffic - Distinction between legislative and administrative functions - Papua and New Guinea Act, 1949, s. 54 - Motor Traffic Ordinance, 1950-1965, ss. 11, 33 - Ordinances Interpretation Ordinance, 1949, s. 39.

MOTOR VEHICLES AND TRAFFIC - Overcrowding of public motor vehicle - Validity of licence fixing maximum number of passengers - Appeal by Secretary for Law - Matter of public importance - Motor Traffic Regulations, regs. 6, 9, 34, 66 - District Courts Ordinance, No. 19 of 1964

By s. 54 of the Papua and New Guinea Act, 1949, the Governor-General is empowered to make Ordinances “for the peace, order and good government” of the Territory. Section 33 of the Motor Traffic Ordinance 1950-1965, inter alia, provides:

“The Administrator in Council may make Regulations, not inconsistent with this Ordinance, prescribing all matters which are required or permitted to be prescribed, or which are necessary or convenient to be prescribed, for carrying out or giving effect to this Ordinance, and in particular for:

(d) the licensing of public motor vehicles and the regulation of the grant of public motor vehicle licences and of the renewal, transfer, suspension, cancellation and return of those licences, and prescribing maximum charges or fares to be made or charged in relation to public motor vehicles;

(e) prescribing the form, construction and equipment of public motor vehicles;

(k) regulating the weights of the load and the number of passengers which may be carried upon different kinds of motor vehicles ...”

Regulation 34 of the Motor Traffic Regulations provides:

“34(1) Subject to the provisions of this Part, the Superintendent may issue a public motor vehicle licence in respect of any registered motor vehicle and may renew that licence from time to time.

(2) A public motor vehicle licence shall:

(a) specify the number of passengers the motor vehicle may carry;

(b) unless suspended or cancelled, be in force from and including the date of issue, for one year, or, if the Superintendent thinks fit, until the expiration of the certificate of registration of the motor vehicle; and

(3) The owner and driver of a public motor vehicle which:

(a) carries a number of passengers greater than that specified in; or

(b) plies otherwise than in accordance with the conditions endorsed on,

the public motor vehicle licence in respect of that public motor vehicle are each guilty of an offence.”

On the 24th June, 1966, an information was dismissed, in the District Court, Rabaul, alleging that the respondent did drive a public motor vehicle, to wit a Prince utility, which carried a number of passengers greater than that specified in the public motor vehicle licence issued in respect of that public motor vehicle, thereby contravening reg. 34 (3) of the Motor Traffic Regulations made under the Motor Traffic Ordinance 1950-1965. The District Court held that reg. 34 was invalid as being in its material parts ultra vires the regulation-making power conferred by the Ordinance, and that the Superintendant of Motor Traffic, the person authorized by reg. 34 to issue a public motor vehicle licence, had no power to delegate this authority to the officer in charge of the Rabaul police station, who in fact, so the District Court found, had issued the relevant licence. For both of these reasons the District Court held that the licence was a nullity and that no offence as alleged in the information had been committed.

Sub-section (3) of s. 225 of the District Courts Ordinance 1964 provides:

“(3) Where, in the opinion of the Supreme Court, the matter is one of such public importance that leave should be granted, the Secretary for Law may:

(a) appeal against a decision of a District Court on behalf of a party; ...”

The Secretary for Law accordingly applied to the Supreme Court for leave to appeal against the decision of the District Court.

Held:

(1) A decision that raises the question of the validity of the regulation under which the public motor vehicle licences contemplated by the Ordinance are issued involves a matter of such public importance that leave to appeal against it should be granted.

(2) The Governor-General, and the Legislative Council successively had, and the House of Assembly has, the plenary power of legislation in the fullest sense within the area for which legislative power has been conferred, including the essentially incidental power to delegate legislative functions, to pass to a subordinate body the power to make regulations of a legislative nature.

(3) The question whether the Administrator in Council, being a subordinate law-making authority itself empowered to regulate, to exercise its discretion and to say what the law should be where the legislature has not done so, many hand over such a power to the Superintendent of Motor Traffic depends upon the proper interpretation of the Motor Traffic Ordinance, for such a power to delegate must be expressly or impliedly given to the Administrator in Council by the Ordinance. Because this question is one simply of interpretation of the legislation which has established the subordinate body and given it its power there is no occasion to apply the maxim of private law: Delegatus non potest delegare.

(4) It is not what is done but what may be done and what legal consequences could ensue under an impugned regulation that determines its validity. Regulation 34 leaves it to the unfettered discretion of the Superintendent of Motor Traffic to determine the maximum number of passengers to be carried in a public motor vehicle. This is clearly a legislative as opposed to an administrative function and therefore the provisions of reg. 34 (2)(a) and (b) are invalid.

Quaere whether sub-reg. (2)(c) of reg. 34 is severable from the rest of the Regulation.

(5) Assuming, however, that there were a valid power in the superintendent to issue a licence, then this would be an administrative function which he could delegate to inspectors of motor traffic. Regulation 9 in expressly empowering the superintendent to delegate his powers to inspectors of motor traffic does no more than recognize this and is authorized by s. 33 of the Ordinance as a regulation, not inconsistent with the Ordinance, prescribing a matter which is necessary and convenient to be prescribed for carrying out or giving effect to the Ordinance.

Cases referred to:

Australian Communist Party v. Commonwealth [1951] HCA 5; (1950-1951), 83 C.L.R. 1; R. v. Burah (1878), 3 App. Cas. 889; Riel v. The Queen (1885), 10 App. Cas. 675; Chenard & Co. v. Joachim Arissol, [1949] A.C. 127; Hodge v. The Queen (1883), 9 App. Cas. 117; R. v. Lampe, Ex p. Maddalozzo (1963), 5 F.L.R. 160; Croft v. Dunphy, [1933] A.C. 156; Re T.K. (An Infant), [1965-66] P. & N.G.L.R. 189; Roche v. Kronheimer [1921] HCA 25; (1920-1921), 29 C.L.R. 329; Victorian Stevedoring and General Contracting Co. Pty. Ltd. and Meakes v. Dignam [1931] HCA 34; (1931), 46 C.L.R. 73; Ryan v. Central Norseman Gold Corporation [1964] HCA 52; (1964), 111 C.L.R. 327; Radio Corporation Pty. Ltd. v. Commonwealth [1938] HCA 9; (1937-1938), 59 C.L.R. 170; Melbourne City Corporation v. Barry [1922] HCA 56; (1922-1923), 31 C.L.R. 174; King Gee Clothing Co. Pty. Ltd. v. Commonwealth [1945] HCA 23; (1945-1946), 71 C.L.R. 184; Morton v. Union Steamship Co. of New Zealand Ltd. [1951] HCA 42; (1951), 83 C.L.R. 402; Strickland v. Hayes, [1896] UKLawRpKQB 380; [1896] 1 Q.B. 290; Owners of S.S. Kalibia v. Wilson [1910] HCA 77; (1910-1911), 11 C.L.R. 689; Commonwealth v. Grunseit [1943] HCA 47; (1943), 67 C.L.R. 58; Swan Hill Corporation v. Bradbury [1937] HCA 15; (1936-1937), 56 C.L.R. 746; F. E. Jackson and Co. Ltd. v. Collector of Customs [1939] NZGazLawRp 38; [1939], N.Z.L.R. 682; J. W. Hampton, Jr. & Co. v. United States [1928] USSC 69; (1928), 276 U.S. 394; Arthur Yates & Co. Pty. Limited v. Vegetables Seeds Committee [1945] HCA 55; (1945-1946), 72 C.L.R. 37; Jackson Stansfield and Sons v. Butterworth, [1948] 2 All E.R. 558; Geraghty v. Porter, [1917] N.Z.L.R. 554; Baxter v. Ah Way [1909] HCA 30; (1908-1909), 8 C.L.R. 626; King Emperor v. Benoari Lal Sarma, [1945] A.C. 14; Canadian Chemical Reference Case, [1943] 1 D.L.R. 248.

Appeal from District Court.

The facts appear sufficiently from the judgment.

Counsel:

Croft, for the appellant.

Ley, for the respondent.

Cur. adv. vult.

4 January 1967

OLLERENSHAW J: This was, in the first instance, an application by the Secretary for Law for leave to appeal against a decision given on the 24th day of June, 1966, by a magistrate sitting in the District Court at Rabaul. The learned magistrate dismissed an information of Peter Ronald Hewitt, inspector of police, alleging that the respondent did drive a public motor vehicle, to wit a Prince utility, which carried a number of passengers greater than that specified in the public motor vehicle licence, issued in respect of that public motor vehicle, thereby contravening reg. 34 (3) of the Motor Traffic Regulations, made under the Motor Traffic Ordinance 1950-1965.

It was admitted before the learned magistrate that the respondent had driven the vehicle while it was carrying a number of passengers greater than that specified in the licence issued to the owners in respect of the vehicle as the maximum number of passengers permitted to be carried in it. However, the learned magistrate, after raising the question himself and hearing argument upon it, held that reg. 34 was invalid as being in its material parts ultra vires the regulation-making power conferred by the Ordinance. He was also of the opinion that the Superintendent of Motor Traffic, the person authorized by reg. 34 to issue a public motor vehicle licence, had no power to delegate this authority to the officer in charge of the Rabaul police station, who in fact, so the learned magistrate found, had issued the relevant licence. For both of these reasons the learned magistrate held that the licence was a nullity and that, therefore, no offence as alleged in the information had been committed and he dismissed the information.

It is provided by s. 225 (3) of the District Courts Ordinance No. 19 of 1964:

“(3) Where, in the opinion of the Supreme Court, the matter is one of such public importance that leave should be granted, the Secretary for Law may:

(a) appeal against a decision of a District Court on behalf of a party; ...”

Counsel for the respondent did not contend that this was not a matter fit for leave to appeal within the terms of s. 225 (3) and by agreement between counsel the application for leave and the appeal were heard together.

It is well known to me the important part played in the conveyance of native peoples by “public motor vehicles” in this Territory. They carry the people to market, to work, to recreation and so on, travelling to and from the towns wherever there is access to them by road. There are no trains or trams nor, beyond the suburbs of the larger towns, omnibuses, and so these vehicles, usually lorries, trucks or utilities, and not infrequently over-crowded, serve as the only means of mechanical transport for large numbers of the population without motor vehicles of their own. The figures produced by counsel for the appellant, although confined to prosecutions under reg. 34, confirm my view of the importance of this traffic, and I know, e.g., that in the areas accessible to Rabaul by road these vehicles have served the native inhabitants of important parts of the Gazelle Peninsula for very many years. I consider that these are matters of “general public knowledge”, as that phrase was explained by Fullagar J. in Australian Communist Party v. Commonwealth[cdxxx]¹, and that I may take judicial notice of them.

By the Motor Traffic Ordinance, itself, it is provided in s. 11 that a person who causes or permits a motor vehicle to be used for carrying passengers for hire or reward, unless a public motor vehicle licence issued in pursuance of the Regulations made under the Ordinance is in force in respect of that motor vehicle, is guilty of an offence. A decision that raises the question of the validity of the regulation under which the public motor vehicle licences contemplated by the Ordinance are issued and, therefore, the validity of such licences, in my opinion clearly does involve a matter of such public importance that leave to appeal against it should be granted.

Coming to the appeal and firstly the question of the validity of reg. 34, it is necessary to look at the regulation-making power as provided for in the Motor Traffic Ordinance. This lies in s. 33, which, in so far as it is material, is in these terms:

“33. The Administrator in Council may make Regulations, not inconsistent with this Ordinance, prescribing all matters which are required or permitted to be prescribed, or which are necessary or convenient to be prescribed, for carrying out or giving effect to this Ordinance, and in particular for:

(e) prescribing the form, construction and equipment of public motor vehicles;

(k) regulating the weights of the load and the number of passengers which may be carried upon different kinds of motor vehicles ...”

The Motor Traffic Ordinance, 1950, was ordained by the Governor-General in and over the Commonwealth of Australia, with the advice of the Federal Executive Council, in pursuance of the powers conferred upon him by the Papua and New Guinea Act, 1949, and, in opening the appeal, counsel for the appellant took pains to show that s. 33 of the Ordinance was a valid exercise of his legislative power by the Governor-General notwithstanding that by this section he delegated some of this legislative power to a subordinate body, namely the Administrator in Council.

At the time when the Motor Traffic Ordinance was ordained, s. 54 of the Papua and New Guinea Act, 1949, empowered the Governor-General to make Ordinances “for the peace, order and good government” of the Territory and counsel cited the line of cases in the Privy Council, commencing with R. v. Burah[cdxxxi]², in which the use of these simple words by the Imperial Parliament has been held to confer “the widest discretion of enactment” upon colonial, dominion, provincial and the like legislatures in various stages of development: Riel v. The Queen[cdxxxii]³ and Chenard & Co. v. Joachim Arissol[cdxxxiii]⁴; and see particularly as to the power of such a legislature to delegate legislative functions to a subordinate body: Hodge v. The Queen[cdxxxiv]⁵.

Counsel for the appellant also referred to the judgment of Bridge J. in R. v. Lampe, ex p. Maddalozzo[cdxxxv]⁶, in which these and other similar decisions of the Privy Council are collected (and see also Croft v. Dunphy[cdxxxvi]⁷) and their principle applied to the grant of legislative power for the Northern Territory by the Parliament of the Commonwealth of Australia. I need say no more than that I agree with the judgment of Bridge J. in this respect, and that I consider that the principle there relied upon applied with equal force to the exercise of legislative power conferred for this Territory by the Parliament of the Commonwealth upon the Governor-General and so too in the case of the Legislative Council and now of the House of Assembly (notwithstanding provisions for assent, reservation and disallowance), both of which legislatures have been responsible for amendments to the Motor Traffic Ordinance since it was ordained by the Governor-General.

The Governor-General and the Legislative Council successively had, and the House of Assembly has the plenary power of legislation in the fullest sense within the area for which legislative power has been conferred, including the essentially incidental power to delegate legislative functions, to pass to a subordinate body the power to make regulations of a legislative nature. Although my brother Frost J. in Re T.K. (An Infant)[cdxxxvii]⁸ referred to the House of Assembly for this Territory as a subordinate legislative body, he was there considering its power to legislate with extra-territorial effect. I do not think that there is anything in his judgment that would prevent his concurrence in the view that, notwithstanding that it is derived, there has not been any limit to the plenary legislative power of the legislatures that have been responsible for the enactment of the Motor Traffic Ordinance 1950-1965, an Ordinance by its nature restricted in its operation to the area of the legislative power for the Territory.

Before passing from this aspect of the appeal I mention the line of cases, which include Roche v. Kronheimer[cdxxxviii]⁹; Victorian Stevedoring and General Contracting Co. Pty. Ltd. and Meakes v. Dignan[cdxxxix]¹⁰ and Australian Communist Party v. Commonwealth[cdxl]¹¹, particularly per Fullagar J. (at p. 257), in which the power of the legislature of the Commonwealth to make laws for the peace, order and good government of the Commonwealth has been interpreted to authorize “in the widest and most general terms subordinate legislation”, notwithstanding the restrictions inherent in the Federal Constitution.

I must come now to the really contentious matters in the appeal and it is necessary to look at reg. 34 of the Motor Traffic Regulations, the regulation by which the subordinate authority, namely the Administrator in Council, exercised its power under the Ordinance to make regulations for the licensing of public motor vehicles and the regulation of the grant of public motor vehicle licences.

“Part III. Public Motor Vehicles.” of the Motor Traffic Regulations contains the single regulation, reg. 34, which, in so far as it is material, is in these terms:

“34(1) Subject to the provisions of this Part, the Superintendent may issue a public motor vehicle licence in respect of any registered motor vehicle and may renew that licence from time to time.

(2) A public motor vehicle licence shall:

(a) specify the number of passengers the motor vehicle may carry;

(3) The owner and driver of a public motor vehicle which:

(a) carries a number of passengers greater than that specified in; or

(b) plies otherwise than in accordance with the conditions endorsed on,

the public motor vehicle licence in respect of that public motor vehicle are each guilty of an offence.”

I suppose that it may be said that the Administrator in Council has made a regulation as empowered by s. 33 and required by s. 11 of the Motor Traffic Ordinance for the licensing of public motor vehicles, although in the barest possible manner, but what has been done under and with the power to regulate the grant of public motor vehicles licences? It is clear to my mind that the Administrator in Council has not itself exercised such power and that this subordinate body has purported “to hand over its functions to another person”: see Ryan v. Central Norseman Gold Corporation[cdxli]¹², per Windeyer J., at p. 331; and cf. Radio Corporation Pty. Ltd. v. Commonwealth[cdxlii]¹³, per Dixon and Evatt JJ. (as they then were), at pp. 186 et seq.

I consider that the determination of the maximum number of persons to be carried in public motor vehicles, a matter that may conveniently and readily be determined and fixed by regulation, as is recognized by the Ordinance and Regulations, according to the type of, and space available in such vehicles, and also the determination of the conditions subject to which such licences should be issued are matters that fall within the regulation of the grant of public motor vehicle licences. By this reg. 34 in (2)(a) and (c), of its provisions, these matters are left to the unguided and uncontrolled discretion or, to use the words employed by Isaacs J. in his judgment in Melbourne City Corporation v. Barry[cdxliii]¹⁴, the “unfettered and unregulated will” of the Superintendent of Motor Traffic: cf. King Gee Clothing Co. Pty. Ltd. v. Commonwealth[cdxliv]¹⁵, per Dixon J. (as he then was).

The question now arises whether the Administrator in Council, being a subordinate law-making authority, itself empowered to regulate, to exercise its discretion and say what the law should be where the legislature has not done so, may hand over such a power to the Superintendent of Motor Traffic. To my mind this depends upon the proper interpretation of the Motor Traffic Ordinance. Is such a power to delegate expressly or impliedly given to the Administrator in Council by the Ordinance? Considering the character and looking at the nature of the provisions of the Ordinance: Morton v. Union Steamship Co. of New Zealand Ltd.[cdxlv]¹⁶, I would answer emphatically: “No” to this question.

To my mind it is abundantly clear that the regulation of motor traffic, including particularly, for my purpose, public motor vehicles, is, in so far as the Ordinance itself does not regulate, a matter for the subordinate law-making body, the Administrator in Council, as provided for in s. 33, while the administration or execution of the law prescribed in the Ordinance and in the Regulations is a matter for the Commissioner of Police (to whom is given by r. 4 the title of “Superintendent of Motor Traffic”) as provided for in s. 4 of the Ordinance. There is nothing in the Ordinance that permits a departure from this division of functions and, indeed, there is much that requires it. For an instance of this in a detail that is material to the question of the validity of reg. 34, inasmuch as it leaves to the discretion of the superintendent the maximum number of passengers to be carried in a public motor vehicle, I would refer back to s. 33. I have already cited the terms of its item (k), which empower the Administrator in Council to regulate the number of passengers which may be carried upon different kinds of motor vehicles. I have said that the Regulations as well as the Ordinance recognize such a matter to be one of regulation and it is interesting to note that the power given to the subordinate law-making body by item (k) of s. 33 has been exercised by such body, itself, in reg. 66 and the Fourth Schedule to the Regulations, whereby is prescribed generally the number of passengers which may be carried in the motor vehicles respectively of the types and capacities described in the Fourth Schedule. So, too, sub-reg. (3a) of this regulation makes provision for the superintendent to calculate the number of persons which may be carried in or on a motor vehicle not specified in the Fourth Schedule according to the area of floor space in the vehicle. (Having mentioned this sub-reg. (3a) I desire to guard against being thought to hold that the power given in its para. (c), which purports to leave to the discretion of the superintendent the right to restrict the number to be carried to a lesser number than the number permissible under the formula prescribed by the regulation, is valid. I express no opinion.) As an instance of comparable regulatory practice by a subordinate law-making body for motor traffic it is convenient to cite here reg. 45, schedule D, item 7, of the Regulations for Public Vehicles made under the Transport Act, 1930 (N.S.W.), which prescribes the number of passengers to be carried in a public motor vehicle in accordance with the space available for their accommodation in the vehicle and I would observe that this regulation, itself, by the schedule thereto, prescribes the conditions to be satisfied before a registration certificate may be granted, and see, also, schedule B, item 1.

It was established before me that there were no conditions endorsed on the licence in this appeal. It follows that the superintendent had not exercised the power purported to be given to him by sub-reg. (2) (c) of reg. 34 and that he had merely determined the maximum number of passengers to be carried in the vehicle in pursuance of the power purported to be given by sub-reg. (2) (a). This raised the question whether sub-reg. (2) (c) was severable from the rest of the regulation and whether the licence might be saved by s. 39 of the Ordinances Interpretation Ordinance, 1949 (amended), if I came to the conclusion that the grant of power to decide the maximum number of passengers but not the power to determine conditions was valid. In the view I have taken that both provisions of reg. 34 are invalid it is not necessary finally to resolve this question. However, as the matter was argued I would say that I am inclined to think that sub-reg. (2) (c) is severable: see, e.g., Strickland v. Hayes[cdxlvi]¹⁷; Owners of S.S. Kalibia v. Wilson[cdxlvii]¹⁸; and Commonwealth v. Grunseit[cdxlviii]¹⁹.

I should say that it is not to be contemplated that the superintendent would act irrationally under sub-reg. (2) (a) of reg. 34 and it may well be that he determines the maximum number of passengers to be carried in public motor vehicles in accordance with the scale and formula provided for motor vehicles generally by reg. 66, to which I have already referred, or in accordance with some other uniform rule. However, there is nothing in reg. 34 or elsewhere that would oblige him to apply reg. 66 and the subordinate body, authorized by s. 33 of the Ordinance to make the necessary rules, to make the laws, has purported, in the case of public motor vehicles, to leave the whole matter of the regulation of the grant of licences for them to the discretion of the superintendent, subject to this that he may issue such a licence only in respect of a vehicle that is already registered under the Ordinance. However, this qualification does not save reg. 34 because the other significant and important matters-the number of passengers to be carried and the conditions to be imposed-are left to his discretion, the exercise of which can result in the imposition of penalties in pursuance of reg. 34 (3).

It is not what is done, but what may be done and what legal consequences could ensue under an impugned regulation that determines its validity: Melbourne City Corporation v. Barry[cdxlix]²⁰, per Isaacs J., and Swan Hill Corporation v. Bradbury[cdl]²¹, per Dixon J. (as he then was). Whether the superintendent acts according to some uniform rule of his own devising or by particular exercises of discretion the result is the same. It would be the superintendent who formulated enforceable rules for the citizen, or a group of citizens comprising the “passenger truck operators”, and this, to my mind, is an exercise of the law-making power that by the Ordinance is given to the Administrator in Council: Victorian Stevedoring and General Contracting Co. Pty. Ltd. and Meakes v. Dignan[cdli]²², per Dixon J. (as he then was). Section 33 (d) requires the Administrator in Council to make the rules and it is apt to cite this passage from the judgment of Evatt J. (as he then was) in Swan Hill Corporation v. Bradbury[cdlii]²³: “The general intention implied in s. 198 (1) would seem to be that, when the by-law has been made, it will lay down a general law or code or rule in relation to the purpose specified in the statute, and not merely attempt to reserve to the council itself discretions so wide that no general law or code or rule remains.”

As Callan J. said in F. E. Jackson and Co. Ltd. v. Collector of Customs[cdliii]²⁴: “A subordinate body to whom legislative powers as to a particular topic are delegated by Parliament cannot deal with it in this way. The attempted assumption or bestowal of power to deal with all cases in a certain field by a series of particular exercises of discretion is not a valid exercise of a power to make regulations concerning that field:”.

In the course of his gallant and sustained endeavour to save reg. 34 counsel for the appellant submitted that the powers that had been delegated by the regulations to the superintendent were not legislative but executive or administrative and he referred to the passage from J. W. Hampton, Jr. & Co. v. United States[cdliv]²⁵, that was cited in the High Court in Commonwealth v. Grunseit[cdlv]²⁶, per Williams J., and in Victorian Stevedoring and General Contracting Co. Pty. Ltd. and Meakes v. Dignan[cdlvi]²⁷, per Dixon J. (as he then was): “The true distinction, therefore, is, between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made.”

This passage arose from the constitutional theory that sees Congress as the delegate of the people and from the American doctrine of the separation of powers. I regard it as apt to be applied in the case of Motor Traffic Ordinance not because of any constitutional limitations and simply because I consider that what it says follows from the proper interpretation of the Ordinance. If I considered that the significant matters left to the discretion of the superintendent were administrative in character I would have no hesitation in applying the passage in the way contended for by counsel: the Ordinance contemplates and requires that the administration of the motor traffic laws shall be the function of the Superintendent, the Commissioner of Police. However, it is a two-edged sword, and, in my interpretation of the Ordinance, it requires the Administrator in Council to make the rules, to exercise the discretion as to what the laws relating to public motor vehicles, as well as other motor vehicles shall be, and this is a function for which there is no express or implied provision for delegation. I would add that in this appeal I have not experienced the difficulty mentioned by counsel that sometimes occurs in distinguishing between what is legislative and what is executive or administrative in character: see, e.g., Commonwealth v. Grunseit[cdlvii]²⁸, per Latham C.J.; Arthur Yates & Co. Pty. Ltd. v. Vegetable Seeds Committee[cdlviii]²⁹, per Latham C.J.; and Griffith and Street’s Principles of Administrative Law, 2nd ed., at pp. 15, 51 and 62. It appears from s. 33 of the Ordinance that the regulations therein contemplated are to be of a legislative character inasmuch as this section includes in para. (aj) power to make regulations prescribing penalties “for the contravention of any Regulation”. Indeed, this particular power has been exercised in reg. 34 (3), which I have already cited. However, the rules which are intended to be enforceable against the operators of passenger trucks have not been made and the regulation purports, contrary to the requirements of the Ordinance, to leave this portion of the law-making power in the hands of the superintendent. As Dixon J. (as he then was) said in Victorian Stevedoring and General Contracting Co. Pty. Ltd. and Meakes v. Dignan[cdlix]³⁰: “. . . the formulation of enforceable rules of conduct for the subject or the citizen, because they are considered expedient is the very characteristic of law-making,...” and see also to the same effect: Jackson Stansfield and Sons v. Butterworth[cdlx]³¹, per Scott L.J.

I should say something about the maxim of private law: Delegatus non potest delegare, which, like a number of writers and academics, counsel for the respondent saw as presumptively applicable to the subordinate law-making body under the Ordinance. It is submitted, for instance, by the authors of the article: “Sub-Delegated Legislation”, The Australian Law Journal, vol. 28, p. 486, at p. 487, that the maxim does apply to the delegate of legislative power. However, they seem, unwittingly, to recognize that it is really a question of construction when they say: “An authority in receipt of delegated legislative power can further delegate such power only if it is given express authority so to do or such authority must necessarily be implied.”

In New Zealand the maxim has been adopted in such cases as Geraghty v. Porter[cdlxi]³² and F. E. Jackson and Company Ltd. v. Collector of Customs[cdlxii]³³, and it appears to have received some passing favour from Scott L.J. in Jackson Stansfield and Sons v. Butterworth[cdlxiii]³⁴. However, notwithstanding its frequent appearance in argument before the Privy Council in the line of cases which I have mentioned and many references to it in the High Court: see, e.g., Baxter v. Ah Way[cdlxiv]³⁵ and Victorian Stevedoring and General Contracting Co. Pty. Ltd. and Meakes v. Dignan[cdlxv]³⁶ per Dixon J. (as he then was), I have not found there to be any general authoritative recognition or adoption of the maxim outside New Zealand. Like Rinfret J. in the Canadian Chemical Reference Case[cdlxvi]³⁷, I prefer to regard the question as one simply of interpretation of the legislation which has established the subordinate body and given it its powers. The question is: has the power to delegate been given expressly or impliedly, to the subordinate law-making body. That is the approach that has been adopted in the line of cases in the Privy Council in which the plenary legislative power has been considered and I see no reason why the same method should not be adopted in the case of a subordinate legislative power. One must look at the character, circumstances, object and scope of the whole enabling statute, the nature and functions of the subordinate body, the nature and scope of the powers conferred and have regard to the principle of necessary intendment and other rules of construction. I do not see any usefulness for the maxim even as a canon of construction.

Counsel for the respondent also directed my attention to the article: “Sub-Delegated Legislation and Delegatus Non Potest Delegare” by Dr. J. F. Northey in Res Judicatae, vol. 6, at pp. 294 et seq. This writer was of the opinion, an opinion based particularly upon the New Zealand cases, that the maxim did apply. However, in his final submission he said that “the question whether the maxim applies in any particular case is one of construction . . .”. I would prefer to say that the question whether there is a power to sub-delegate in any particular case is a question of construction and I would agree with Bridge J. when he said in R. v. Lampe, Ex p. Maddalozzo[cdlxvii]³⁸: “Whilst, in general, a delegate of specified legislative powers must discharge the legislative functions thereby given and cannot transfer them to other authorities: King Emperor v. Benoari Lal Sarma[cdlxviii]³⁹, it seems doubtful whether that principle can be properly based on the maxim delegatus non potest delegare. To my mind a better basis exists in the proposition that a delegation of specified legislative powers does not extend beyond the powers so specified, and except in so far as they include a power to sub-delegate, any purported sub-delegation of any of them is ultra vires the terms of the delegation: see Victorian Stevedoring and General Contracting Co. Pty. Ltd. and Meakes v. Dignan[cdlxix]⁴⁰.”

I have upheld the learned magistrate’s decision in so far as he held that reg. 34 is invalid and it is not necessary for me to consider the other question raised by him as to the superintendent’s power to delegate to his officers his authority to issue a public motor vehicle licence. The superintendent, himself, had no power to issue such a licence and so he had nothing to delegate.

However, I would say that, assuming that there were a valid power in the superintendent to issue a licence, I see no reason why he should not be able to delegate this administrative function. The superintendent is required and empowered to administer the Ordinance and Regulations throughout the Territory. He cannot, himself, be, exempli gratia, at all motor vehicle registries. I consider that reg. 9 in expressly empowering the superintendent to delegate his powers to inspectors of motor traffic, who are, by reg. 6, commissioned officers of police under his control and superintendence, does no more than recognize this and is authorized by s. 33 of the Ordinance as a regulation, not inconsistent with the Ordinance, prescribing a matter which is necessary and convenient to be prescribed for carrying out or giving effect to the Ordinance.

There are many examples of such a delegation of executive powers in the fields of public administration: see, e.g., Halsbury’s Laws of England, 3rd ed., vol. 1, p. 170, para. 397. I do not agree with the view of the learned magistrate that the presence in the Ordinance of s. 33 (ae), expressly enabling the Administrator in Council to make regulations directly appointing officers to administer the Ordinance and Regulations and defining their powers and duties, invalidates reg. 9. I do not think that the expressed powers in s. 33 (ae) detract from the general power under the section, which I consider supports reg. 9.

However, I would say that I cannot understand the haphazard way in which s. 33 (ae) has been used. In many regulations the superintendent is named as the officer to exercise a function, reliance being placed, apparently, upon reg. 9 for his power to delegate, while in others an alternative officer is appointed (see, e.g., regs. 13 and 32) and I have not been able to discover from the regulations any reason for such inconsistency. However, the manner in which the regulatory powers under s. 33 have been exercised cannot affect the existence of the powers.

I order that leave be granted to the Secretary for Law on behalf of Peter Ronald Hewitt to appeal against the decision of the magistrate, that this appeal be dismissed and that the order of the District Court at Rabaul be affirmed.

Appeal dismissed.

Solicitor for the appellant: S. H. Johnson, Crown Solicitor.

Solictor for the respondent: W. A. Lalor, Public Solicitor.

[cdxxx][1951] HCA 5; (1950-1951) 83 C.L.R. 1, at p. 256.

[cdxxxi](1878) 3 App. Cas. 889.

[cdxxxii] (1885) 10 App. Cas. 675, at p. 678.

[cdxxxiii] [1949] A.C. 127, at p. 131.

[cdxxxiv](1883) 9 App. Cas. 117.

[cdxxxv](1963) 5 F.L.R. 160.

[cdxxxvi][1933] A.C. 156.

[cdxxxvii][1965-68] P. & N.G.L.R. 189.

[cdxxxviii](1920-1921) 29 C.L.R. 329.