State of South Australia v Tanner

The case of *State of South Australia v Tanner* involved a dispute between the State of South Australia and Phillip and Petronella Tanner, concerning the validity of a regulation made by the South Australian Planning Commission. The core of the disagreement revolved around whether the regulation, which prohibited certain activities, was within the scope of the power granted to the Commission to make such rules.

The High Court was required to determine the validity of the regulation, specifically whether it was an exercise of the power conferred upon the Planning Commission or if it exceeded that power. A central issue was whether the regulation was invalid because it prohibited activities that, on their own, were not sources of pollution, even if it prohibited many activities that were. The Court also considered the concept of a "fraud on a power" and the extent to which the purpose of the regulation-making power limited its scope.

The Court's reasoning focused on the principle that a regulation-making power, particularly when used to create general rules, may incidentally capture cases not specifically intended to be prohibited. The maker of the regulation is afforded a degree of discretion in determining how best to achieve the authorised end, and courts will only intervene if the exercise of power is clearly beyond its scope, in what might be described as a "truly extreme case." The argument presented was that the regulation was directed at structures of a permanent nature and that the draftsman's concern likely extended beyond the direct pollution from birds to the attraction of people and associated pollution. The Court acknowledged that the regulation's broad application to an entire town presented difficulties, particularly if the primary concern was the attraction of people rather than the number of birds themselves.