Some Australian reflections on Roncarelli v. Duplessis.

AuthorAronson, Mark

Roncarelli v. Duplessis figures far more frequently in Australia's secondary literature than in its court decisions, and it is noted not for its invalidation of Prime Minister Duplessis's actions, but for its award of damages where judicial declaration of invalidity would usually be the only remedy. Invalidating Duplessis's interference with Roncarelli's liquor licence would have been the easy part of the case had it been tried in Australia. Australian statutes afforded good protection to liquor licensees, and general administrative law principles confined seemingly unfettered discretionary powers in less solicitous statutory regimes. In addition, the constitutional abolition of internal trade barriers used to be taken as banning unfettered regulatory powers over interstate traders.

Duplessis's tort liability was the hard part. His assumption of legal power was not deliberate, but it was extraordinarily indifferent to questions of legality. Justice Rand characterized this as "malice", which in turn triggered liability to a uniquely public law tort known nowadays as misfeasance in public office. That tort is likely to cover more forms of nondeliberate official misconduct in Canada than in Australia, whose High Court usually avoids open-ended legal principles, particularly those according immediate operative force to substantive conceptions of the rule of law.

En Australie, l'affaire Roncarelli c. Duplessis est plus souvent traitee dans la doctrine que dans la jurisprudence. Elle est connue non pas pour son invalidation des actes du Premier ministre Duplessis, mais pour son octroi de dommages-interets dans une situation ou une declaration judiciaire d'invalidite aurait normalement constitue le seul recours possible. Si la cause avait ete entendue en Australie, l'invalidation de l'interference de Duplessis aurait ete une question facile a resoudre. Les lois australiennes offraient une forte protection aux detenteurs de permis d'alcool et les principes du droit administratif confinaient les pouvoirs discretionnaires sans entraves aux regimes statutaires d'interet moindre. De plus, l'abolition constitutionnelle des obstacles au commerce international etait consideree comme interdisant l'exercice de pouvoirs regulateurs sans entraves sur les commercants effectuant du commerce entre Etats.

La question de la responsabilite delictuelle de Duplessis etait la plus difficile. Son utilisation du pouvoir legal n'etait pas deliberee, mais illustre une indifference flagrante face aux questions de legalite. Le juge Rand a qualifie cette attitude de >, ce qui a engendre la responsabilite de Duplessis pour un delit propre au droit public, aujourd'hui appele faute dans l'exercice d'une charge publique. Au Canada, ce delit est susceptible de couvrir plus de types d'inconduite non deliberee de la part d'officiers du gouvernement qu'en Australie ou la High Court of Australia evite generalement les principes juridiques non limitatifs, plus particulierement ceux qui rendent immediatement operationnelles les conceptions substantives de la primaute du droit.


Introduction I. Legalism and the Rule of Law II. Malice, Damages, and the Rule of Law Conclusion Introduction

For two days in September 2009, more than a dozen academics pored over different aspects of Roncarelli v. Duplessis, (1) debating different visions of what it might first have meant, what it might now mean, its political significance, and its legal importance, both normative and doctrinal. My contribution is to look for some of the doctrinal consequences of Justice Rand's deployment of a substantive understanding of the rule of law--a principle that he said requires "recourse or remedy" for administrative action "dictated by ... the arbitrary likes, dislikes and irrelevant purposes of public officers acting beyond their duty." (2) It is a contribution, however, that I offer with some diffidence, because it is obviously fraught for an Australian lawyer to look at a famous old Canadian case, particularly considering that Australia's courts and tribunals have given it only the briefest attention. (3) A foreigner reading Roncarelli is ill-equipped to appreciate fully both its provenance and its trajectory, and is tempted to take its judgments at face value, as if each of its apparent issues had been of equal importance, novelty, and difficulty in its day. It might therefore be more productive if I focus largely on Justice Rand's reasons for awarding damages to Frank Roncarelli, and compare those With the likely response (both then and now) of the High Court of Australia had it been faced with evidence of such an obvious abuse of power as had occurred in Roncarelli.

I look first at Justice Rand's need to deploy the rule of law to get around the Alcoholic Liquor Act, (4) which seemingly invested the Attorney General with unfettered power. (5) Australian courts would have gotten around that problem without invoking the rule of law. General administrative law principles had long established some inroads into statutory grants of discretionary powers. Some statutory licensing regimes provided their own protective mechanisms, and business interests operating across state lines received constitutional protection that the High Court of Australia read as limiting administrative discretion. Second, I look at Justice Rand's appeal to the rule of law to deliver a damages remedy to Roncarelli--a remedy whose implicit predicate was the need specifically to develop public law principles of tort liability to meet those exceptional cases of public officials whose gross abuse of their power harms individuals without violating any of their legally protected interests. The public tort has tracked in broadly similar fashion in Canada, Britain, and Australia, but Australia's reluctance to use the language of the rule of law as an operative legal principle might soon see some significant divergence.

  1. Legalism and the Rule of law

    Roncarelli needed judicial protection because the relevant statute gave him none. His annually renewable liquor licence was at the mercy of a baldly stated bureaucratic discretion: "The Commission may [cancel] any permit at its discretion." (6) The Alcoholic Liquor Act required neither hearings nor reasons, and it stipulated no grounds. Despite this, Justice Rand deployed several standard interpretive techniques and one not-so-standard technique (the rule of law) to "supply the omission of the legislature." (7)

    Roncarelli would have had considerably more statutory protection if he had been trading in Australia's Sydney instead of Canada's Montreal. (8) In Australia, he would have needed a liquor "permit", which was less regulated than a publican's "licence" and easier to obtain. (9) Annual renewals of Australian permits were virtually automatic. (10) Licences could be cancelled for serious criminal convictions or for at least four lesser convictions over the previous year, and permits were revocable on the grounds of the neighbourhood's interests or any other reasonable cause. Magistrates determined all grants and revocations, with very generous appeal rights. Licences and permits passed to their holders' spouse or adult children in the event of death. The same applied where licensees were imprisoned for felony, and appropriately adapted transmission provisions also applied for both licences and permits in the event of bankruptcy and insanity. Therefore, even though they needed annual renewal, the permits and licences were a good deal more secure in Sydney than in Montreal.

    Although Sydney's restaurateurs had greater legislative protection than their Montreal counterparts, there were other regulatory domains that appeared on their face to be as discretionary as that in Roncarelli. (11) Even these, however, would have been judicially construed so as to require that the discretions be exercised by reference only to considerations having some rational and functional connection to the legislation's regulatory objects. Furthermore, in its inimitable "dense, grinding judicial style", (12) the High Court of Australia back in Roncarelli's time was interpreting a constitutional guarantee of free trade across state borders as necessarily requiring statutory limits to administrative discretion. For its part, the High Court of Australia in these cases scarcely mentioned the highest ideals of the rule of law, but it made very clear its concerns about the potential for the executive's arbitrary interference with the rights of private property. (13) Justice Rand's judgment style is less technical than that of the High Court of Australia, but his invocation of the rule of law may have been triggered by similar concerns for middle-class status and its members' property rights.

    There are undoubtedly several reasons why those in the liquor trade had more legislated protections in Sydney than in Montreal in the late 1940s, but it has been a long time since liquor and the rule of law formed part of the same debate in Australia. It has been so long, in fact, that no one used the language of the rule of law back then; rather, they spoke of the rights of Englishmen, and the foremost of these were the rights of person and property.

    The present Chief Justice of New South Wales wrote that Australia has experienced only two periods of flagrant breach of the rule of law. (14) His account of history was too kind, but his first example did involve alcohol. The event was the military overthrow of Governor Bligh (his second mutiny) in 1808, followed by an interregnum of almost two years of serious instability. It eventually became known as the Rum Rebellion, although it in fact had almost nothing to do with alcohol and a lot to do with rights of property, speculative development, due process, and (being Sydney) harbour views. (15)

    Like any other country's ultimate court of appeal, the High Court of Australia is not averse to talking about the rule of law, or indeed to singing its...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT