Local governments have authority to enforce compliance (including commencing prosecutions) against persons who breach laws with respect to various matters such as planning, building and health regulations. In the recent decision of Martin v Nalder  WASC 138, the Supreme Court of Western Australia considered whether a public authority has a duty to prosecute and whether the discretion to prosecute is a judicially reviewable decision.
The case concerned an application by a group of taxi drivers from the Perth metropolitan area (the applicants) for judicial review of the exercise of prosecutorial discretion by the Minister and Director General of the Department of Transport (the respondents) in respect of the UberX service.
The applicants sought an order commanding the respondents to commence prosecutions or alternatively, to consider the commencement of prosecutions, against companies and individuals involved in the UberX service, for breaches of the Taxi Act 1994 (WA) (Taxi Act) and the Transport Co-ordination Act 1966 (WA) (TCA).
The applicants also sough declarations that the respondents have adopted a policy not to prosecute the companies involved in the provision of the UberX service and the natural persons involved in the management of those companies (no prosecution policy), and that the respondents have failed or neglected to commence prosecutions or to direct others to commence prosecution.
The applicants contended that the respondents had adopted a no prosecution policy to be inferred from the fact that no prosecutions had been commenced when they should have been.
Justice Tottle dismissed the application, refusing to issue the order or make the declarations sought. The applicants’ case was essentially that the regulatory response to the introduction of the UberX service had been inadequate. Justice Tottle found that it was not for the Court to assess the adequacy of the Department’s response, rather it was a matter to be resolved by the executive in the political arena.
The Court found:
- The applicants had a special interest in the matter and therefore, had standing to apply for the remedies sought.
- A writ of mandamus (being an order compelling the doing of an act) will only issue to compel a public official to perform a public duty that remains unperformed. An applicant for mandamus must establish that a duty has not been performed, or a discretion not exercised, according to law. If the Court compels a public official to exercise a discretionary power, it may compel the official to exercise the discretion according to law but it will not compel the official to exercise the discretion in a particular way.
- Prosecutorial decisions are for the most part not susceptible to judicial review, but case law has left open the possibility that the exercise of a statutory discretion to prosecute may not be wholly immune from judicial review.
- The general rule is that a decision maker who has a discretion cannot fetter the exercise of discretion by adopting an inflexible policy. The Courts will grant relief to remove a fetter on discretion to investigate and prosecute criminal offences, such as a ‘no prosecution, save in exceptional circumstances’ policy, but will not generally compel the investigation and prosecution of particular persons.
- The duties and powers of the respondents were found in the Taxi Act and TCA. Justice Tottle held that neither of the respondents were the subject of a public duty under the Taxi Act or the TCA to commence prosecutions, or direct the commencement of prosecutions. Although the Director General may exercise, or direct the exercise of, a discretion to prosecute, this was a discretion, not a public duty.
- As no public duty existed, the application for a writ of mandamus compelling the commencement of prosecutions was refused.
- From the evidence, the Court was not satisfied that a ‘no prosecution policy’ existed and noted that even if the respondents were under a public duty to commence prosecutions or to direct the commencement of prosecutions, Justice Tottle would have refused to issue a writ of mandamus as he was not satisfied that the duty was breached.
The case confirms the principle that in most circumstances, public authorities (including local governments) cannot be compelled by a Court to commence prosecutions in particular circumstances, and that such decisions are matters for the public authority to determine in its discretion.
However, it should be noted that in some cases, a local government may have a duty of care to take enforcement action. In particular, where the failure to take enforcement action may result in significant property damage or risk to human safety, a local government may be exposed to negligence claims depending on the circumstances.
Disclaimer: The information contained in this update is not advice and should not be relied upon as legal advice. Castledine Gregory recommends that if you have a matter in relation to which legal advice is required, you consult with your legal adviser.
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