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GAZETTE
JULY-AUGUST
1979
RECENT IRISH CASES
ADMINISTRATIVE LAW
Discretionary power to be exercised
constitutionally —Judicial review of
exercise of discretion.
The first named Plaintiff was a com-
pany concerned with family planning
in Ireland and was a publisher of a
booklet entitled "Family Planning".
The second-named Plaintiff was the
director of that company and a
medical practitioner. The first five
named Defendants were members of
the Censorship of Publications Board
("the Board").
The facts giving rise to this case
were that on the 24 November 1976
the Board made an order prohibiting
the booklet "Family Planning" on
the grounds that it was "indecent or
ob s c e n e ".
This
action
was
commenced to have that order set
aside on several different grounds.
These ate not all now of concern as
the High Court (per Hamilton J.) held
that the claim could be decided on
one basis only namely, as was
admitted, that prior to the making of
the prohibition order the Board had
not communicated with or heard the
Plaintiff. The Supreme Court only
considered this basis of the decision
of Hamilton J. and no other claims of
the Plaintiff.
Section 7 of the Censorship of
Publications Act 1946 ("the Act")
empowers the Board to prohibit a
book if it is of opinion, inter alia, that
it is indecent or obscene. Section 6 (3)
provides "when examining a book
under this secion, the Censorship
Board may communicate with the
author, editor or publisher of the
book and may take into account any
representation made by him in
relation thereto."
Hamilton J. held that in order that
the Board exercise their powers fairly
and judicially in accordance with the
principles of natural justice and in
particular the requirements of judicial
procedure as laid down by the
Supreme Court in
East Donegal Co-
operative Livestock Mart
Limited
v.
Attorney General
[1970] I.R. 317
that before making a prohibition
order under Section 7 of the Act the
Board was bound under Section 6 (3)
of the Act to notify the author, editor
or publisher of the book that it was
being examined and was bound to
afford such people an opportunity to
make representations. Accordingly,
the High Court declared the
prohibition order made null and void.
The decision of Hamilton J. was
appealed to the Supreme Court. The
majority judgment was given by
O'Higgins C. J. with whom Henchy,
Griffin and Park JJ. concurred,
and Kenny J. delivered a separate
concurring judgment.
Held (per O'Higgins C. J.) that:
(1) Section 6 (3) of the Act is not
mandatory and confers a discretion
on the Board to avail or not to avail
of the powers thereby given. This was
made clear by the use of the word
"may" in the sub-section.
(2) The Act being a post-
Constitution statute is presumed to
be constitutional. Following the
earlier decisions of the Supreme
Court in
East Donegal Co-Operative
Livestock Mart Limited v. Attorney
General
[1970] I.R. 317, and other
cases, this presumption of con-
stitutionality carries with it the con-
sequent presumption that powers of a
discretionary nature conferred by
such a statute are not intended to be
arbitrary powers and are only to be
exercised in a constitutional manner.
Hence, the discretionary power to
communicate with the author, editor
or publisher conferred by Section
6(3) of the Act must be exercised in a
manner which is just and fair, which
requires, at the very least, an ex-
ercise of the power at a time and in
circumstances which is fair and
proper to do so.
(3) The particular circumstances
surrounding the publication of the
booklet "Family Planning" were such
that this was a case in which the
power to communicate ought to have
been
exercised
and
such
representations as might have been
made by the Plaintiffs ought to have
been taken into account.
(4) The exemption from the obliga-
tion to observe the rule of 'audi
alteram partem' did not apply to this
case as it was not possible in the
circumstances to hold that if the
publishers had been given the
opportunity of giving the Board the
information that was adduced by
them in the High Court the booklet
would have been banned for being
"indecent or obscene."
(5) For the reasons stated above,
and not for that given by Hamilton J.
in the High Court the decision that
the prohibition order was bad was
upheld and the appeal dismissed.
Kenny J. in his separate con-
curring judgment also held that the
prohibition order was bad but not for
the reason stated by the High Court.
He also differed slightly in his
reasoning from that of the Chief
Justice. He agreed that the power
conferred by section 6 (3) of the Act
was discretionary. In his opinion the
discretion was to be exercised as
follows: the Board should consider
whether they would invite re-
presentations and should in all cases
do so unless this is impossible (e.g. if
no name or address appears in the
book) or the book was so clearly
indecent or obscene that in its
opinion no representations could
have the effect of altering its view of
persuading a court of law to disagree
with its decision.
He further held that the Board
making a prohibition order is
exercising limited functions of a
judicial nature and is subject to the
control and supervision of the High
Court and so the exercise of any dis-
cretion of the Board may be reviewed
by that Court to ascertain whether
there was only one way in which the
discretion could be exercised.
In relation to this particular
publication he held that if the
members of the Board had con-
sidered (as they should have) whether
they would communicate with the
first-named Plaintiff Company and
take into consideration
any
representations made by it, they
could have come to one conclusion
only namely, that they would give the
Company an opportunity to make re-
presentations to them and if they
had, their decision might have been
different. Accordingly, the failure to
give the first-named Plaintiff the
notice referred to in Section 6(3) of
the Act made the Order of the Board
of the 24 November 1976 void.
The Irish Family Planning
Association Limited and Joan M.
Wilson v. The Honourable Judge
Noel Ry a n, Joan Ry a n, Peter
Prentice, Eoin Moore, Patricia Egan
(Members of die Censorship of
Publications Board), the Attorney
General and Ireland — Supreme
Court, per O'Higgins C. I. with
Henchy, Griffin, and Parke JJ. con-
curring, and Kenny J. concurring in a
separate judgment — 27 July 1978 —
unreported.