Clarke v Elias & Anor [2008] VSC 427 (22 October 2008) – Delegations and

October 24, 2008 |

Often, from little cases come big principles.   A snail in a bottle of ginger beer at the Wellmeadow Cafe in Glasgow spawned the tort of negligence courtesy of Donohue v Stevenson ([1932] AC 562).  A fight over what the ticket said about the terms of usage of the Balmain ferry gave Mr Robertson a merry ride up to the High Court and then across the pond to the Privy Council and Balmain New Ferry Co Ltd v Robertson (1906) 4 CLR 379. 

I doubt whether Clarke v Elias will hit such lofty heights on the question of delegation of powers.  It is notable for the minor issue in question, a $100 fine for a driver wearing jeans in contravention of the regulations.  One can only hope not.  Clarke, who lost at first instance and then on appeal to the County Court, argued that there had been an invalid delegation by the legislature to the Secretary of the Department.  The nature of the invalidity was that the Secretary did not have the power to set uniform standards.

Relevant principles

Hollingworth J in admirably clear prose has restated the the relevant propositions regarding the power of delegation. At  paragraphs 18 – 20 she states the relevant principles:

18 When a discretionary power is conferred by statute on a particular person or body, as a general rule, the power can only be validly exercised by the person or body upon whom it was conferred. Its exercise cannot be delegated to someone else, unless the statute, upon its proper construction, permits such delegation.[8]

19 Where, as here, the power has been delegated by regulation, the statute must be “read as a whole with the object of finding in its expressions the intention with which it is made and, in particular, the intended extent of the regulation making-power given to [the delegator]; and an examination of the ambit of the regulations considered in relation to the scope and purpose of the [statute] so ascertained.”[9]

20 In deciding whether there has been an impermissible delegation, courts often have regard to a number of matters, including the following:

(a) The nature of the power: whether it can be categorised as legislative, judicial or executive (delegation being more likely to be permitted in the case of executive powers);

(b) The subject matter of the power;

(c) The identity of the person to whom the delegation has been made; and

(d) The form of exercise of the relevant power.

21 Whilst it may be helpful to have regard to some or all of such matters, each case must ultimately depend on the construction of the particular statute in question. So that, for example, the mere fact that the power may be characterised as “legislative” does not preclude it from being validly delegated, although it may make a court more reluctant to conclude that parliament intended that the power could be delegated.

The standards the Secretary approved was: 

Trousers/skirt Colour: Navy Blue or Black Other detail: Dress trousers (Jeans not acceptable)

Unfortunately for the appellant it is not in dispute that he was wearing jeans.  Otherwise the question of vagueness of description might be in issue. 

Her Honour found for the respondent with the following reasoning:

45 Unlike the position in each of the cases relied upon by Mr Clarke, the Transport Act contains a provision which clearly and expressly authorises the Governor in Council to delegate by regulation. The inclusion of the reference to a “discretionary authority” as well as a “power” envisages a delegation in the broadest possible terms.

46 Even though a breach of the regulations could constitute a criminal offence, the legislature has nevertheless expressly permitted the Governor in Council to delegate his power and authority.


The decision is not particularly remarkable as an analysis of factors in delegation. It is a good decision to get across the relevant principles.  Hollingworth also considers the relevant case law in her usual precise style. 

Trying to set aside a charge on such a technical ground is often fraught.  The principles involved in analysing whether there has been a proper delegation are wide enough for many courts to find sufficient basis when dealing with broadly drafted legislation.  That is unfortunate.  When dealing with criminal offences a strict and narrowly read interpretation of the law should apply, including for fines on dress wear.

Putting aside the application of the law there is a Kafkaesque quality to this case and the legislation itself.  That independent contractors should be charged with an offence for wearing jeans while plying their trade is a disgrace.  They are not members of the armed services. Most are part time students.  Anyhow the Taxi Directorate can take administrative action to pull their licence if there has been a breach of regulations.  Punitive yes but better than dragging the criminal law.  I remember the cheers (and a few groans) when Jeff Kennett, at his most Napoleonic, ordered all taxis to go canary (or whatever) yellow and all drivers wear uniforms.  True some cabbies before then were thoroughly scruffy.  Make that a condition of operating a licence.  But to make it a criminal offence. While Jeff Kennett may have had a positive impact on the Victorian economy and administration of the State he left a fairly ordinary legacy on the way legislation was drafted and how are rights are protected.  That is often the unfortunate by product of being obsessively results oriented.  It would have been better for the government to consider ther factors, like whether it is appropriate to criminalise dress (or the non wearing of livery), which clearly took a back seat (pun intended) to the ultimate aim.  He wanted New York on the Yarra as far as the taxi world was concerned and, true to form, it was damn the torpedoes and full steam ahead.  Of course when one gives police an extra way to charge someone they are going to grab it with both hands.  How many times have you heard police calling for less powers?  Anyone, anyone. The current government has shown little desire to alter course on this type of issue Charter of Rights notwithstanding.  It loves to beat the law and order drum. 

Shame on the senior who charged Clarke in the first place.   This is the sort of petty nonsense that make otherwise law abiding types simmer with anger.  The copper pings the driver with a parking infringement (see paragraph 1) and then “..on summons with not wearing the prescribed taxi driver’s uniform whilst on duty.”  That is just enjoying oneself way too much. Brings to mind the old Australian comment “St Patrick drove the snakes out of Ireland.  And they came to Australia and joined the police force.”  Issues like this should be dealt with administratively. 

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