R v Mahony; Ex parte Johnson

This case concerned an application for a writ of mandamus brought by Cholmondeley Newham Godschall Johnson against Henry Francis Mahony, the licensing officer appointed under the Transport Workers Act 1928-1929. Johnson, a licensed waterside worker at the port of Lucinda, Queensland, had applied for a renewal of his licence, which expired on 30th June 1931. His application, and a subsequent application for a new licence, were refused by the issuing officer on instructions from Mahony. The refusal was based on Johnson not being a member of the Waterside Workers' Federation of Australia or a returned soldier or sailor, and on the availability of sufficient Federation labour. The High Court of Australia was required to determine whether the licensing officer had a discretion to refuse the renewal or grant of a licence and, if so, whether the grounds for refusal in this instance were lawful.

The court considered the provisions of the Transport Workers Act 1928-1929, particularly sections 6, 7, and 9, which dealt with the issue and renewal of licences. A key point of contention was the interpretation of section 9(2), which stated that a licence "may be renewed upon application". The applicants argued that this conferred a right to renewal upon compliance with the prescribed conditions, while the respondent contended that the licensing officer retained a broad discretion. The court also examined section 12, which provided for the cancellation of licences based on misconduct, and the right of appeal afforded to licensees in such circumstances, contrasting this with the absence of a similar appeal right for initial licence grants or renewals.

A majority of the court, comprising Rich and Dixon JJ., held that section 9(2) conferred a right to renewal upon a waterside worker who held a valid licence and applied within the prescribed time. They reasoned that the phrasing "a licence may be renewed" should be interpreted as the waterside worker having the ability to renew their licence, rather than the licensing officer having discretion to grant or refuse renewal. This interpretation was supported by the context of the Act, the security provided to licensees by the provisions for cancellation and appeal, and the fact that a renewal was not treated as the grant of a new licence but as a prolongation of the original one. Starke J. agreed that the refusal was unlawful, finding that any discretion to refuse a licence must be based on the applicant's unfitness or misconduct, not on extraneous factors like labour availability or government policy. Evatt J., while acknowledging that the word "may" in section 7(1) and 9(2) suggested a power rather than a duty, ultimately concluded that the licensing officer had no discretion to refuse either the grant or renewal of a licence on the grounds relied upon.

Accordingly, the High Court made the order absolute, directing that a writ of mandamus should issue. The writ was to compel the licensing officer to renew the prosecutor's licence, or in the case of Starke J.'s judgment, to consider and determine the application for a licence according to law and without regard to the unlawful grounds previously relied upon.