To act within the authority that parliament has granted, in this case “the Public Library Facilities Act 2003 (WA)” is said to be acting intra vires, which means “within the power.”
Public servants must do no more than what the statute or regulation authorises, if a local Government is found to be acting beyond its designated authority it is known as acting ultra vires meaning “beyond the power.”
In the case of acting ultra vires the court has authority to issue a declaration, declaring that the action taken by the local government was invalid, the court can also impose an injunction, ordering the body to stop acting beyond its statutory power. “Ultra vires extends from excess of powers to defects of power and misuse of power.” (Latimer, “Australian Business Law”, 26th Edition, CCH Australia, Sydney 2007, P23)
The body may be wholly ultra vires. For example, in the case of A-G v Fulham Corporation [1921] 1 Ch. 440. A local government authority was granted the authority by statute to establish “public baths and wash-houses,” a public bath being a place where people who do not have the facilities in their own home can bathe. A wash house is a place where people may do their own laundry. The Fulham Corporation (English local government councils are called Corporations) was held to have acted wholly ultra vires when it set up a laundry service. (“Legal Framework Study Guide”, 26th Edition, CCH Australia, Sydney. 2007 Topic 5)
The body can also be found to be partially ultra vires. Being partially ultra vires involves action outside of what is originally authorised being unacceptable. For example, In London County Council v Attorney General [1902] AC 165, legislation authorised local government councils to operate tramway services. The London County Council bought a company which operated both tramways and bus services. It was held that the operation of the bus service by the Council was ultra vires. This case is a good example of action which was held partially ultra vires. (“Legal Framework Study Guide”, 26th Edition, CCH Australia, Sydney. 2007 Topic 5)
Apply the Law to the Facts
To determine whether the Shire of Green Valley has acted ultra vires it is necessary to determine whether the Public Library Facilities Act 2003 (WA) entitles the Shire of Green Valley to charge $2 for each book borrowed as well as providing videos and DVDs to residents free of charge.
The act clearly states that Local Government authorities shall provide access to books of fiction and non fiction, periodicals, journals and similar material free of charge. The Shire of Green Valley are providing the access to the books, however they are charging a fee of $2 .
As video’s and DVD’s are not similar materials to books of fiction and non fiction, periodicals and journals, the Shire of Green Valley are overstepping their authority here as well.
Conclusion:
I believe that the Shire of Green Valley has acted partially ultra vires.
Question 2 (b)
The Area of Law
The area of law relevant to this question is the common law rules of statutory interpretation
Principles of Law
Sometimes, to the common citizen laws passed by parliament or delegated legislation can be difficult to understand. It is the role of the courts to interpret the words used in the statute.
The need for words and phrases used in legislation to be interpreted can arise because it is possible for words to have more than one meaning, or the meaning of words may change over time or simply that the language used is difficult to understand.
There exists two main categories of approaches or rules that have been devised to assist the courts when interpreting legislation, these are statutory rules and common law (or judge-made) rules.
Common law rules of statutory interpretation consist of three principal approaches:
- Literal Approach
- Golden Rule
- Mischief Rule
A judge has the right to choose which of the rules he will apply to any given case however; he can only use one rule.
If the judge uses the literal approach, the words of the statute are given their ordinary and natural literal meaning.
An example of this is IRC v Hinchy [1960] AC 748 a taxpayer, Hinchy, had filed an incorrect tax return. Section 25 of the Income Tax Act 1952 (UK) provided that any person who lodged an incorrect tax return was liable to pay “treble the tax which he ought to pay under this Act”. Although Parliament had intended that the penalty should be three times the amount of any unpaid tax, the House of Lords nevertheless applied the literal rule and held that Hinchy had to pay treble the entire amount of tax payable by him for that year. (“Legal Framework Study Guide”, 26th Edition, CCH Australia, Sydney. 2007 Topic 4 P.13)
If the judge uses the Golden rule where words in the statute are given their normal, everyday meaning but it leads to an absurdity or inconsistency with the language used in the rest of the statute; the words are then modified so as to avoid this inconsistency.
An example of the Golden rule is Adler v George [1964] 2 QB 7 the Official Secrets Act 1920 (UK) made it an offence to obstruct a member of the police force “in the vicinity of a prohibited place”. The defendant argued that he was in the prohibited place, not “in the vicinity of the prohibited place”. The Court considered that the failure of the legislature to make it unlawful to obstruct the police “in” the prohibited place was clearly an oversight and led to an absurdity on the face of the Act. The court applied the golden rule and treated the Act as if it read “in or in the vicinity of” the prohibited place. The defendant was convicted. (“Legal Framework Study Guide”, 26th Edition, CCH Australia, Sydney. 2007 Topic 4 P.13)
If a judge is to use the Mischief rule the court attempts to determine what the “mischief” (problem) was that parliament planned to deal with in passing the legislation and then gives the legislation an interpretation that overcomes the mischief or problem. If the court was applying the common law rule then it can only look at the statute itself to try and understand what it was that parliament was trying to achieve. It could not, for example consult the second reading speech where the minister introducing he legislation actually explains what they are trying to achieve.
An example of the Mischief rule being used is Smith v Hughes [1960] 1 WLR 830 some prostitutes were charged with an offence when they attempted to attract passers-by from windows and balconies. The Street Offences Act 1959 (UK) made it an offence for prostitutes to solicit “in a street”. It was held that, as the purpose of the legislation was to “clean up the streets” (get rid of prostitution), these people had equally offended the provisions of the Act by their activities, even though they were not literally “in a street” at the time. (“Legal Framework Study Guide”, 26th Edition, CCH Australia, Sydney. 2007 Topic 4 P.14)
There are other common law rules of statutory interpretation which include the ejusdem generis rule. This rule states that where words of a particular meaning are followed by words of general meaning, the general words are restricted to the same kind or class as the particular words.
An example of the ejusdem generis rule is Powell v Kempton Park Racecourse Co Ltd [1899] AC 143 a provision in the Betting Act 1853 stated “no house office room or other place shall be opened kept or used for the purposes of betting...” was interpreted ejusdem generis to exclude an uncovered enclosure of about one quarter of an acre adjacent to a racecourse which was fenced in by iron rails. Members of the public were admitted on the payment of an entrance fee and could place bets with bookmakers who used the enclosure. (“Legal Framework Study Guide”, 26th Edition, CCH Australia, Sydney. 2007 Topic 4 P.14-15)
It may be important to note that the long title of the act may give indication of what parliament was trying to achieve when courts approach an interpretation.
Apply the Law to the Facts
To determine whether the Public Library Facilities Act 2003 (WA) authorises the Green Valley Council to provide videos and DVDs to residents an appropriate common law rule must be applied.
In the case of the judge using the literal approach the Green Valley Council will be found to be unauthorised to provide videos and DVD’s to residents as videos and DVD’s are not mentioned in the categories to be provided.
In the case of the judge using the golden rule the Green Valley Council will be found to be authorised to provide videos and DVD’s to residents as the court would modify the words to include videos and DVD’s in the categories to be provided.
In the case of the judge using the mischief rule the Green Valley Council will be found to be authorised to provide videos and DVD’s to residents as the court would find the problem trying to be addressed was the availability of access to free material for the people of Green Valley.
Finally, in the case of the judge using the ejusdem generis rule the Green Valley Council will be found to be unauthorised to provide videos and DVD’s to residents as videos and DVD’s would not fall under the category of books of fiction and nonfiction, periodicals, journals and similar material.
Conclusion:
I believe that the decision in The Shire of Green Valley case will vary depending upon which rule the court applies.
Citations
Latimer, “Australian Business Law”, 26th Edition, CCH Australia, Sydney 2007, P23
“Legal Framework Study Guide”, 26th Edition, CCH Australia, Sydney. 2007 Topic 5