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Beyond Their Power: The Rule in Kruse v Johnson and the Limits of Statutory Authority
Ultra vires — beyond the power. Three Latin words that carry one of the most important propositions in the law of statutory bodies: a body created by an Act of Parliament can only do what that Act permits. Where it acts beyond its powers, it acts without authority. Its acts are void. Not voidable. Void.
This principle was given its clearest expression in an English case from 1898 — a case that began with a man singing hymns in a street in Kent and ended with a statement of constitutional principle that courts in Australia continue to apply today.
The Man, the Hymn, and the By-Law
Kent County Council made a by-law, under authority of the Local Government Act 1888 section 16, that nobody, after being requested to stop by a constable, could play music or sing within 50 yards of a dwelling house in a public place or highway.
Mr Kruse, a Salvation Army preacher, was arrested for singing hymns in a public place within 50 yards of a dwelling house. He refused to stop when ordered to do so by a constable. A penalty was imposed. He sought to challenge it, arguing that the by-law itself was void — that the Council had exceeded its power in making it.
The case came before the Queen’s Bench Divisional Court in 1898. The question was deceptively simple: was the by-law a valid exercise of the power Parliament had granted? And if a by-law could be challenged at all on grounds of unreasonableness, what did “unreasonable” mean in this context?
Lord Russell of Killowen’s Ruling
The leading judgment was delivered by Lord Russell of Killowen CJ. He began by distinguishing two kinds of statutory bodies. The first — railway companies, dock companies, and other bodies carrying on business for their own profit — should have their exercise of delegated legislative power closely scrutinised. The second kind — bodies of a public, representative character, entrusted by Parliament with delegated authority — should have their by-laws supported if possible and interpreted benevolently.
Local councils, he said, fell into the second category. Courts should be slow to condemn a by-law made by such a body as invalid merely because individual judges thought it unwise or unnecessary.
But Lord Russell then stated the circumstances in which a court must act. His formulation has been cited in courts throughout the common law world for over a century. If rules made under authority of an Act of Parliament were found to be partial and unequal in their operation as between different classes; if they were manifestly unjust; if they disclosed bad faith; if they involved such oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men — the Court might well say, “Parliament never intended to give authority to make such rules; they are unreasonable and ultra vires.”
The phrase is worth reading twice. Lord Russell did not say that the court substitutes its own judgment for that of the elected council. He said that where a by-law is so unreasonable, so unjust, so oppressive that Parliament could not have intended to confer the power to make it, the court will declare it void — not because the judges disagree with it, but because it falls outside the four corners of what Parliament actually gave.
A by-law is not unreasonable merely because particular judges may think that it goes further than is prudent or necessary or convenient, or because it is not accompanied by a qualification or an exception which some judges may think ought to be there.
The standard is high. But it exists. And it is grounded in a principle that goes to the root of all statutory authority: Parliament gave the power, Parliament defines its limits, and no body exercising delegated power can exceed those limits regardless of how convenient or locally popular it might be to do so.
On the facts, the by-law was upheld. It was not unreasonable within the meaning Lord Russell had articulated. Kruse lost his challenge. But the principle he invoked became one of the foundational statements of administrative law.
What a By-Law Actually Is
Lord Russell of Killowen CJ in Kruse v Johnson described a by-law as “an ordinance affecting the public, or some portion of the public, imposed by some authority clothed with statutory powers ordering something to be done or not to be done, and accompanied by some sanction or penalty.”
This definition is important. A by-law is not a law made by Parliament. It is an ordinance made by a body Parliament has authorised to make rules within a defined area of operation. It derives its force entirely from the statute that empowers it. The body making the by-law is a delegatee — a delegate of Parliament’s power — and can only exercise what Parliament delegated. Nothing more.
This is the essence of the doctrine of ultra vires as it applies to delegated legislation. The empowering Act is the ceiling. A by-law that exceeds the ceiling is not law. It is void from the moment it is made — not because a court has struck it down, but because it never had the force of law to begin with.
The Principle and Its Foundation
The rule in Kruse v Johnson rests on a more fundamental principle, expressed in the Latin maxim expressio unius est exclusio alterius — the express mention of one thing excludes others.
When Parliament creates a statutory body and defines its powers, those defined powers are exhaustive. The body can exercise what Parliament gave it. What Parliament did not give, the body does not possess. Parliament’s grant of power is the ceiling, not the floor. A local council has what its enabling Act gives it. A statutory corporation has what its constituting statute says it has.
This is not a limitation courts have invented. It is the natural and necessary consequence of the principle that Parliament is the source of all authority for a statutory body. If a body could simply claim powers beyond what Parliament granted — on the basis that such powers were convenient, or locally beneficial, or that the body knew best — then the entire structure of parliamentary control over statutory authority would be hollow. Any body could do anything and simply assert it was within power.
The courts have never accepted this. Kruse v Johnson stated the principle for by-laws. Hazell v Hammersmith and Fulham London Borough Council [1992] 2 AC 1 applied it to financial transactions — when a London borough council speculated in interest rate swaps using ratepayers’ funds, the House of Lords declared every one of those transactions void, regardless of what the council thought it was doing. The council’s argument that it held the powers of a natural person was dismissed by Lord Templeman as “not so much arcane as absurd.” A statutory body holds only what Parliament gave it. The purported claim to broader inherent powers was not just wrong — it was absurd.
Kartinyeri v Commonwealth [1998] HCA 22 confirmed that even a specific, targeted Act of Parliament directed at a named location and a named group of people must be supported by a valid constitutional head of power. The High Court was required to examine it with the same rigour as any other legislation.
The unifying thread through all of these cases is this: statutory authority is defined authority. The body acts within it or outside it. There is no middle ground.
The Australian Position
Kruse v Johnson has been considered in Australian courts since the early twentieth century. The doctrine in Kruse v Johnson relating to invalidation of delegated legislation on grounds of unreasonableness has long been used in England to determine whether delegated legislation is invalid.
The Australian courts have adopted the principle, though they have applied it with some caution. The High Court has confirmed that a by-law will be invalid if it cannot reasonably be regarded as being within the scope, ambit, or purpose of the empowering Act — and that a by-law making power must be read subject to the common law principle of legality, which protects fundamental rights against legislative encroachment without clear authorisation.
The most significant recent Australian examination of the Kruse v Johnson principle came in Attorney-General (SA) v Corporation of the City of Adelaide [2013] HCA 3 — the Corneloup street-preaching case. French CJ adopted a “high threshold test” for unreasonableness, holding that unreasonableness as a ground for establishing invalidity will be established only where a by-law “cannot reasonably be regarded as being within the scope or ambit or purpose of the power.” In addition, the Chief Justice focused on the principle of legality, holding that the by-law making power is to be read by reference to the common law principle of legality in so far as it concerns the common law freedom of expression.
The by-law in that case was ultimately upheld. But the High Court confirmed the analytical framework: a by-law must be supported by the empowering Act. A reviewing court tests whether the by-law is within the scope and purpose of the power Parliament granted. If it is not — if it reaches beyond that grant — it is void.
Separately, the District Court of South Australia had found the impugned provisions exceeded the by-law making power before the case reached the High Court. That finding — that a local council’s by-law exceeded the statutory power conferred on it — was itself a direct application of the principle in Kruse v Johnson.
What This Means in Practice
The principle has a direct practical application for any man or woman dealing with demands, notices, restrictions, or orders issued by a statutory body exercising delegated authority.
Every such demand, notice, restriction, or order must be traceable back to a specific grant of power in the enabling Act. The body issuing it must be able to point to the provision that gives it the authority to do what it has done. If it cannot, the act is beyond power. It is void.
The questions to ask are straightforward. What Act created this body? What powers did that Act grant? Does this specific act — this notice, this condition, this restriction — fall within those powers? Is there a specific provision that authorises what this body has done to me? Or has the body simply assumed a power it does not have?
These are not technical questions reserved for lawyers. They are the natural questions a man or woman is entitled to ask of any body that purports to exercise authority over them. The power either exists or it does not.
Kruse v Johnson confirmed in 1898 that courts will ask these questions. Australian courts have confirmed they continue to ask them. The rule has not changed in over a century, because the principle on which it rests has not changed: Parliament created the body, Parliament defined its powers, and the body can exercise no more than what Parliament gave it.
Ultra vires — beyond the power. Three words that any statutory body ought to keep in view before it acts, and any man or woman ought to know when such a body acts against them.
Quod non habet principium non habet finem — what has no valid beginning has no end. A void act cannot be cured by repetition, administrative insistence, or the passage of time. It is void from the beginning and remains void.
Last Updated 5 months ago
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