"Everything that is not forbidden is allowed" - Does it apply in Aus?

There is a traditional principle in English common and constitutional law that goes along the lines that if something is not expressly forbidden by law, then it is allowed.

I am putting together a document to follow up on another I wrote a little while ago (http://www.appleisleprospector.com/fossicking-vs-prospecting-what-is-the-difference/) on Tasmanian prospecting regulations, in light of the Mineral Resources Development Act 1995 (our current mining law). I want to explore what the law actually says compared to what the regulators tell us we're allowed to do, among other things. I want to cover several aspects of things that we're currently told we're not allowed to do, although they're actually unregulated by law, and the law gives the regulators power to regulate some activities but not others.
It seems to me that this principle is an integral part of Australian common law, but I don't really know. Conversely, when it comes to regulatory authorities, "everything that is not allowed is forbidden", as they cannot exceed the mandate given to them under the law.

Anyone with a law degree (or anyone else) care to comment? I don't want to write something that tells people that they can do something that's actually illegal.

You must read any act in the spirit it was written.
[Acts Interpretation Act 1901]

It is very easy to get the dictionary out and turn any legislation upside down, that is not in the "spirit"

Council rules, seem to be regarded as laws these days. I wonder if councils regularly, step beyond the powers that they are lawfully due. Had a ranger knock on my door last week, I was in the loo unfortunately, but he requested that my car be removed from the footpath. He doesnt mow it, car was not blocking pedestrian access, but some of us park on footpaths because the road is so narrow. Two cars can only just pass eachother, and if someone parks on the road, then it makes it difficult, and you risk damage, to your parked car. Poor council planning to allow the narrow road in the first place.

Redfin said:

You must read any act in the spirit it was written.
[Acts Interpretation Act 1901]

It is very easy to get the dictionary out and turn any legislation upside down, that is not in the "spirit"

Click to expand...

Thanks Redfin,

The act you mention applies only to Commonwealth legislation, but there is an equivalent Tasmanian act (ACTS INTERPRETATION ACT 1931), which states something similar:

"(1) In the interpretation of a provision of an Act, an interpretation that promotes the purpose or object of the Act is to be preferred to an interpretation that does not promote the purpose or object."

This should play in our favour, even though the purpose or object of the Act is not expressly stated (it doesn't have to be).

Lol - our lane way is such that one car parked on the street correctly, means anyone else going up the lane has to be extra careful.

So often people will put one set of wheels on the footpath.

A: They keep crushing my drain to the gutter. And I only find out in some cases when it rains and my roof gutters overflow.

B: We have a park at the end of the lane way. When people try and walk on the footpath it is OK, but if a wide pram - and a car has wheels on the footpath - Not enough room.

So like many things, it is not alway clear cut and it is also not clear as to why some rules/laws exist. Untill crap happens and then the legal people start talking compensation.

I had a lady, say she slipped in the wet on our front footpath and wanted to take the matter to court - Not that there was a slight bump in the footpath ( they had just been around grinding any uneven bit. But because one of my trees had flowered and the falling petals and the light rain had made it slippery.

I even got a letter demanding I pay her "medical bills"

Where will it end up. 1001 laws and regs to ensure stupid people get $$$ and continue to breed....

PS. I refused to pay or respond and after a couple more letters from a no win no fee law firm- it stopped....

These "council rules" are more than likely council bylaws which councils are allowed to make & enforce under the Local Government Act. If they put in a law that "it's illegal to wear pink pants after noon on Sundays" then it is enforceable. Ridiculous as it sounds Google it :lol:

mfdes - if it's not written in to legislation then its most likely not illegal in my non legal opinion. I would be wary of any sections of an Act/Regulation or other Acts/Regulations that may give the regulating or controlling body the powers to make &/or enforce bylaws etc. like councils can. I know NSW Common Land legislation does give some scope to Common Lands Trusts to forbid/not allow certain activities on the common land/s under their control. Without going through all the legislation, Acts, Regulations etc. etc. I have no doubt there would be other examples. I really think most regulators/controlling bodies would be acting within the laws or would be seen as acting within the intent of it if things come to push/shove.

I don't think the council examples are all that relevant, as you'll find that State legislation in every case gives the councils the power to make any by-laws they want, which apply to land they control.

An analogy that I think is relevant: a substance (drug, etc) is not illegal unless it has explicitly been made illegal. If you are consuming a substance for which there are no regulations against, you're not breaking the law, are you? This seems to indicate to me (I'm not a lawyer) that unless something has explicitly been made illegal by virtue of legislation, or regulation (in cases when legislation grants bodies the power to regulate activities), you are not committing a crime by doing it.

The law does not have to clarify what it is that we're allowed to do, only what we aren't, right?

Yeah I agree - just need to check there is no section/sub section/clause etc. that allows the regulator any powers in regard to additional rules/laws. A lot of legislation isn't specific/prescriptive & may allow some regulatory control.