The Foreshore Food Van

The by-law is delegated (subordinate) legislation, not an Act of Parliament. Parliament delegated a limited power to make by-laws to local councils through the Local Government Act 1993 (Tas); the council's lawmaking authority is therefore only as wide as the parent Act allows.

A court asked to review the by-law does not ask whether it is sensible or fair - that is a merits question for the council and, ultimately, the minister. It asks legal questions:

• Subject matter: does the parent Act authorise by-laws on this topic at all?
• Scope and proportionality: is the by-law reasonably capable of being seen as incidental to the Act's purposes, or does it go further than regulating and amount to prohibition?
• Consistency with statute: if a by-law conflicts with a State Act, the by-law is inoperative to the extent of the inconsistency. Note that s 109 of the Commonwealth Constitution does not apply here - that section resolves Commonwealth/State conflicts only. This is an ordinary principle that subordinate legislation yields to statute.
• Process: was it gazetted and made in accordance with the required procedure?

The refusal itself is separately vulnerable. An internal policy is not law. A decision-maker may use a policy as a guide but must consider the individual application on its merits; applying a quota as though it were a statutory criterion is a reviewable error.

There are two different proceedings and they belong in different places.

Enforcement of the fine happens in the Magistrates Court of Tasmania, which exercises summary jurisdiction over council infringement prosecutions. Priya can raise invalidity there as a defence, but the Magistrates Court is a court of limited statutory jurisdiction. A magistrate must apply a by-law that has not been declared invalid; subordinate legislation is presumed valid until a court with appropriate power says otherwise.

A declaration that the by-law is ultra vires is properly sought in the Supreme Court of Tasmania, in its supervisory jurisdiction over inferior courts and statutory decision-makers. The Supreme Court can declare the by-law invalid, quash it, and quash the refusal of the permit. In practice Priya's lawyer may seek review there and ask the Magistrates Court to adjourn the prosecution pending the outcome.

The hierarchy matters for two reasons. First, only a court at the right level can grant the remedy she wants. Second, it determines what binds the deciding judge: a Supreme Court judge is bound by the High Court and by the Full Court of the Tasmanian Supreme Court, and is strongly persuaded by - but not strictly bound by - an earlier decision of a single judge of the same court.

Neither decision is binding in the strict sense, but they carry very different weight.

The 2019 Tasmanian Supreme Court decision sits in the same court hierarchy. A single-judge decision of the Supreme Court is not strictly binding on another single judge of the same court - only decisions of the Full Court of that Supreme Court and of the High Court are binding - but it is highly persuasive and a judge should follow it unless satisfied it is plainly wrong. Consistency within a hierarchy is a strong value, especially so that identical by-laws do not produce different results in different Tasmanian towns.

The 2022 Victorian Supreme Court decision is from a different hierarchy. It is persuasive only. Its reasoning may be adopted if it is convincing, but it cannot override the Tasmanian authority, and a Victorian court's view of how a Victorian local government Act is to be construed has limited force when the parent Act here is the Tasmanian Local Government Act 1993.

The strongest answer recognises that the correct outcome depends on the wording of the empowering Act in each jurisdiction, not simply on which case is newer or which court is larger. The judge should reason from the Tasmanian statute and explain why, if they depart from the 2019 decision, they are justified in doing so.