The Gazette 1979

GAZETTE

JULY-AUGUST

1979

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.

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