In Vanstone unreasonable is ‘synonymous’ with oppressive.
“Weinberg then referred to authorities, including the judgment of Lockhart J in Austral Fisheries, holding that a subordinate rule could be invalid as unreasonable if it was manifestly arbitrary, oppressive, capricious or irrational such that Parliament could not be taken to have authorised it.”
Vanstone v Clark (2005) 147 FCR 299
It would be interesting to see how these SPs with prohibitory pet by-laws explained how the by-law is not irrational; see also 143 in the above case; can a prohibition be justified by reason? It is a reverse onus of proof if looked at that way.
For all the history of cases regarding by-laws is it really the case that the Parliament’s intention was to give strata owners the power to be unreasonable and irrational or has the justice system dug itself a hole it will always struggle to get out of due to flap-trap like that found in White v Betalli (NSWCA).
A broad interpretation is one thing but a power to be unreasonable; I think not.
Typically these by-laws exist on the back of a subjective perspective held by sufficient, unaffected, people to have the numbers to create the by-law. The only real necessity when making by-laws is having the numbers. You don’t need to be rational or considered or base a decision on fact; hysteria is enough if it gets the job done.
Thank you NSW judicial system for the (dys)functional interpretation of the power to make by-laws.
Weight given to an idea disproportionate to the probability of the occurrence of the idea is a common human mental trait that has been proven as fact by psychologists to lead to poor outcomes.
That goes a long way to explaining how this whole ‘dog’s breakfast’ has eventuated.