Disorganized Developments Pty Ltd & Ors v State of South Australia
[2023] HCATrans 25
[2023] HCATrans 025
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Adelaide No A22 of 2022
B e t w e e n -
DISORGANIZED DEVELOPMENTS PTY LTD
First Appellant
PETER KEITH STACY
Second Appellant
STEPHEN JOHN TAYLOR
Third Appellant
and
STATE OF SOUTH AUSTRALIA
Respondent
KIEFEL CJ
GAGELER J
STEWARD J
GLEESON J
JAGOT J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON FRIDAY, 10 MARCH 2023, AT 9.45 AM
Copyright in the High Court of Australia
MR W.J.N. WELLS, KC: May it please the Court, I appear with my learned friend, MR C. JACOBI, KC, for the appellants. (instructed by Jon Lister Barrister & Solicitor)
MR M.J. WAIT, SC, Solicitor‑General for the State of South Australia: If the Court pleases, I appear with MS C.M. NOLAN, for the respondent. (instructed by Crown Solicitor for South Australia)
KIEFEL CJ: Before we commence, might I inquire of the parties whether they have had an opportunity to reconsider their time estimates?
MR WELLS: We had a discussion, your Honour. We have agreed on a timing for each of the parties. We cannot say that that will result in our finishing by lunch time ‑ ‑ ‑
KIEFEL CJ: But it will be shorter than the original estimates?
MR WELLS: We still reckon half to a day, so it will be something over the half day.
KIEFEL CJ: Okay. Thank you, Mr Wells. Yes, Mr Wells.
MR WELLS: Mr Jacobi will address on ground 1.
MR JACOBI: May it please the Court.
KIEFEL CJ: Yes, Mr Jacobi.
MR JACOBI: At the outset, I want to address the operation effect of Division 2 of Part 3B of the Criminal Law Consolidation Act, which is relevant to both grounds, and then deal with ground 1 and what the appellants contend is the ineffective method by which the Cowirra Regulations sought to declare, by regulation, prescribed places.
It is helpful to say something about the amending Act, and then about the state of the law at the point of the amendment, which inserted Division 2. Division 2 of Part 3B of the CLCA was enacted by the Statutes Amendment (Serious and Organised Crime) Act 2015, which the Court will find in the supplementary joint bundle. The parties have agreed that we will, as far as possible, shift to the supplementary JBA; and you will find that amending Act commencing at page 8 of that bundle. The Court will see that the 2015 Act effected amendments to the Liquor Licensing Act. It enacted offences directed at the wearing or carrying of prohibited items, and the Court will see that briefly at page 18. It also amended the Summary Offences Act because it enacted a consorting offence, which is to be found at page 19 in the new section 13, but, most significantly for these purposes, it inserted the Division 2 of Part 3B.
It is helpful for the Court to know – and I do not think we have referred to this – that the origin of Division 2 of Part 3B and the offences in it will be familiar to the Court because they are similar to the provisions found in section 60A to C of what was named the VLAD Act, which was considered by this Court in Kuczborski v State of Queensland 254 CLR 51. I can tell the Court, without taking you to it, that that origin is explicitly identified in the second reading speech. So, the Kable challenge, having failed the South Australian Parliament, enacted equivalent provisions, and that is to be found in volume 6. The second reading speech commences at page 1876, and the page on which that discussion occurs is at page 1880.
We say that because this Court made some observations about those offence provisions and they are particularly to be found in the judgment of Justice Bell at paragraphs 286 to 289. She there offers a summary and there is a discussion that follows of how they operate by reference to a factum, and that is to be found at 303. That does not assume any particular importance to the argument, but the Court should know that it has been there before.
It is important to appreciate that Division 2 of Part 3B is a distinct scheme directed at disrupting activities of criminal organisations, and that it is distinct from the criminalisation of participation in itself. You will see that it materially differs in operation and purpose. At the time that it was introduced, there was an existing Division 1 of Part 3B. The Court will see if it goes to the joint book of authorities part A, volume 1, which contains the Criminal Law Consolidation Act that was relevantly applicable, by turning to page 110. So, at this point, I am coming away from the amending Act.
The Court will see at page 110, commencing with Section 83D, an existing set of offence provisions. The relevant primary offence – if I can call it that – is that to be found in Section 83E at page 111. So, this was the state of the law as it existed. The critical point that emerges from an analysis of 83E – that is, all of the other offences flow to 83E – 83E is an alternative verdict for the offences that follow in 83E(2) and so on – is that it prescribes conduct or activity, and specifically prohibited participation if that participation in the organisation is “knowing” or “reckless”, and if there is knowing or reckless participation which:
contributes to the occurrence of any criminal activity –
There are already two important matters to note because they are relevant to the context of the Division that follows: that it does not prohibit being a participant; the other point to note is to note that it uses a verb “participates” – this is in 83E(1) – and that it is materially narrower than that relevant to being a participant. There are some other differences about what a criminal organisation is for the two provisions and, in fact, they are separately defined.
Can I come then to the provisions which are the subject of this matter. Can I ask the Court to turn first to the offence provisions which are found in section 83GC; this is on page 115. There are four offences. Those in GC, two in GD and one in GE. Section 83GC prohibits being present in company with another participant or participants in a public place; GD(1) and (2) are concerned with entering or attempting to enter a prescribed place or attending a prescribed event; and GE is concerned with recruitment.
An important point to note, given the issues that are raised here, particularly with respect to the aptness to affect persons other than participants, is to notice GF. This is to be found on page 116. The effect of section 83GF, is that these offences have penalties of imprisonment which “must be imposed”. I can tell the Court that the references in GF(1)(c) and (d) are to the provisions in the Sentencing Act in South Australia. Section 25 is the provision which permits the Court for good reason to mitigate or substitute a sentence. So, either reduce it from the maximum or substitute it for some other kind of sentence. Section 26 is concerned with the rolling up of sentences in a single sentence, rather than imposing them separately, so that they operate consecutively or cumulatively.
That assumes some particular importance when section 267 of the Criminal Law Consolidation Act is considered. This is found on page 180. Section 267 is concerned with aiding and abetting, and the effect of section 267 is that:
A person who aids, abets, counsels or procures . . . is liable to be prosecuted and punished as a principal offender.
The combined effect of that in GF is that an aider and abetter will also be subject to the sentencing regime in GF. We return to the premise of Division 2, and it is that there may, in fact, be participants in criminal organisations that operates on the premise that that is not in itself unlawful. The second matter to appreciate – and this is the fact in issue – is that the descriptor of being a participant in a criminal organisation is not one that is founded on proof that a person has committed a criminal offence of a defined kind, but is rather a factum that is an element of an offence.
It is important for the procedural fairness argument to come from Mr Wells to notice some commonalities between the offences. The commonality between the offences is that they are provisions directed at disrupting – and as we express it – the activities of criminal organisations by controlling the places where participants may be present and the events they can attend. But there are significant differences between, we say, GC and GE and GD, on the other hand. The first that we notice is that GC and GE are not concerned with solitary conduct; that is not so for GD, and that will assume some importance for ground 2.
The other aspect of GC and GE is that they operate from their point of enactment without any executive action being taken. They do not require any declaration to operate, but GD does, because without there being either a prescribed event or a prescribed place, they do no work. That takes us to point 2 on our speaking note, that the function of the regulation‑making power in GA(1) – and I will come to it in a second – is to supply factum for those two penal provisions.
Can I take the Court to GA(1) and ask you to first notice the definition of “prescribed event” and “prescribed place” which relevantly mirror one another and they require that:
an event be declared by regulation to be a prescribed event –
and the same for a “prescribed place”. A “public place” is there defined for the purposes of GC.
The next relevant operative provision is GA(2), and that is on page 114, and you will see that it contains two elements which assume particular significance for this matter. First, it requires that the declaration of prescribed places or events relate only to a singular event or place and, secondly, it refers to the requirement for the regulation to be laid before Parliament in the Subordinate Legislation Act that is now in South Australia the Legislative Instruments Act – it has been renamed, it is substantively identical.
The obligation to which reference is being made is to that found in section 10(3) of that Act. I will not take the Court to it but that is to be found at page 324 of part B in volume 2. That is the process by which regulations must be laid before the House within a fixed period and then there is a process by which a review committee can examine those regulations and then leads to disallowance.
We ask that the Court notes something that is absent from GA, and that is that there is no process or criteria contained within GA or otherwise in the Act for the selection or the targeting of a particular place or event in section 83GD. We return to that theme because it is important for a submission which we have labelled the “missing middle”, that is, the Act assumes a connection between the particular event or place and the wider objective of the disruption of activities of criminal organisations, and we say that submission is important for the purposes of procedural fairness.
We turn there to how the declarations of places have in fact been made, so we are stepping closer to ground 1. The first approach was for them to be made by statute. If I can take the Court back to the Statutes Amendment (Serious and Organised Crime) Act – this is to be found in supplementary JBA volume 1 – and take you to page 20. You will there find Part 5, headed “Regulations”. So, this is what I have described as the first approach. The matters to notice are that in section 13(1), Parliament enacted regulations that were found in Schedule 1 as regulations, and 13(2) then confirmed that they, upon the commencement of the Act, became regulations.
That takes us, relevantly, to the terms of the Schedule itself. And if I ask you to note that these are what then became what we have described as the Schedule regulations. And it is relevant to note that clause 2 of Schedule 1 listed certain criminal organisations, and the critical provision, which is described as the device or the mechanism, is to be found in clause 3. Can I ask you to note the particular language – this is in the second line – that the way the provision operated was that:
each certificate of title listed . . . is declared –
That then gave rise to the text that is set out in that list by cross-reference, which is to be found on page 22. The appellants’ case is that the future purposes of this particular list being a regulation was limited, it provides for the future deletion of places. The Court will see this most plainly from the properties listed at Thebarton. This is on page 22, and there, it can be found at about point 4 on the page. You will see four properties by reference to Thebarton.
The Court will find deleting regulations for those places at Thebarton at pages 355 to 362 of the joint bundle of authorities, volume 2, part B. And if you can turn to that very briefly, the Court will see that, after having been made regulations –
JAGOT J: Sorry, which tab – I am working off an electronic version –
which tab of the legislation are you in? Or what Act are you in?
MR JACOBI: I apologise, I am so sorry.
JAGOT J: Is it Criminal Organisations (Prescribed Place –Thebarton) (No 2) Amendment, or something like that?
MR JACOBI: I apologise, yes, I hope number 17, 18, 19, and 20.
JAGOT J: Yes.
MR JACOBI: You will see there the operative provision in regulation 3 which, again, operates by reference to headings is to “delete the item”. Can I return back to the amending Act and to Schedule 1, the expressed purpose of the listing of criminal organisations and places that it contained was explained in the Second Reading Speech. The Court will find that in volume 6 at page 1876; that is where it commences. And if I can ask the Court to turn first to page 1880. Sorry, it is tab 58.
Page 1880 contains the references to the VLAD High Court decision, which was Kuczborski; that is on the bottom half of that page, so I will just point that out while I am there. But the point to which I am going at the moment is to be found at the foot of page 1881. So, under a long list of organisations, you will find right at the foot of the page, a paragraph which commences with the words “It might be asked”. And you will see there that the expressed purpose was to avoid a regulation being “open to judicial review”. Now whilst that, I acknowledge, specifically refers to organisations, if you look at the paragraph immediately over the page at 1882, it seems clear enough that it is dealing both with organisations and places.
Now, the second approach, aside from the making of an Act, was to declare places by regulation, and in doing so I commence now with ground 1 and we come to the Cowirra Regulations as in fact made. They are to be found in the supplementary JBA volume 1 at page 70, and I will deal the number 1 regulation because the number 2 regulation is relevantly identical.
As we have described it, the operative provision of that regulation is Regulation 3. It is helpful to start at the end of it because it explains, as its title explains, that it was a variation regulation and it varied the regulations so specified.
GAGELER J: I am sorry, can you give me the page number please?
MR JACOBI: I am so sorry, page 70 of supplementary JBA volume 1.
JAGOT J: Is that item 11?
MR JACOBI: Tabs 12 and 13.
GLEESON J: Is it joint book of authorities volume 2 of 6, tabs 12 and 13?
MR JACOBI: I am sorry, it has been reproduced in the supplementary JBA, volume 1. I am sorry for the confusion, this has arisen from an error in the way that the original joint books of authority were reproduced. The Cowirra Variation Regulations are to be found at page 70 and the operative regulation is Regulation 3. If I can take you to that, it is headed “Variation provisions”. You will see there at the end of the operative provision that it speaks of – that it “varies the regulations so specified”, so that is the operative work that it does.
The “regulations so specified” are those that are a provision under a heading referred to. That is in the earlier part of the clause. We make the observation that that refers to two headings, not only one. The first of them is the heading to Part 2:
Variation of Criminal Law Consolidation (Criminal Organisations) Regulations –
which, of course, is to the regulations made by the Act. The second of the headings – so that is an identifiable signpost to what regulations are to be varied. The further heading is that found in regulation 4, where it uses the words:
Variation of regulation 3—Places declared to be prescribed places . . . section 83GA
That identifies or is a signpost to which regulation is being modified. That makes some sense in light that if you turn back in your booklets to page 67, which contains the regulations as consolidated with a list, you will see that it is there picking up the heading used in those regulations. So, the heading that appears to regulation 4 is, in fact, a reproduction of the heading that was contained in the scheduled Act.
That is with a quirk – and you may notice the quirk – and the words “by certificate of title” were not included in the original scheduled Act regulations. It is something of a mystery as to how they have come to be there. The best we can explain is that it would appear that in 2017, when there was a declaration of a place at Para Hills – which the Court will find at page 347, I do not need to take you to it – it carried that altered heading and that altered heading appears to have carried over into the regulations in the consolidations.
GAGELER J: Can I just ask a question – it may be of no moment – the original scheduled Act we see at pages 21 and 22, I think.
MR JACOBI: Yes.
GAGELER J: Then, we see this other document you have taken us to at 66.
MR JACOBI: Yes.
GAGELER J: It is headed “Regulations”. Was that part of an Act or was it a separately‑issued document?
MR JACOBI: This is at page 66.
GAGELER J: Yes.
MR JACOBI: You will see at the footer of the page – and, indeed, this is the reason that we have reproduced these, is that it contains a footer “Published under the Legislation Revision and Publication Act” and so, in essence – and the position in South Australia – and it is referred to in the Legislation Revision and Publication Act – is that there can be no change. All this is, is the derivative product of both the principal regulations and the amending regulations as reproduced together.
JAGOT J: Sorry, I am not – I must be – in the Schedule 1 to the actual Act ‑ ‑ ‑
MR JACOBI: Yes.
JAGOT J: ‑ ‑ ‑ the (Serious and Organised Crime) Act, clause 3 does have the words “certificate of title”. I am missing something. I thought you said something that the word ‑ ‑ ‑
MR JACOBI: No, no, it does not.
JAGOT J: I must be looking at the wrong ‑ ‑ ‑
MR JACOBI: At page 21 ‑ ‑ ‑
JAGOT J: I am working off an electronic copy.
MR JACOBI: I apologise.
JAGOT J: So, I mean the Statutes Amendment (Serious and OrganisedCrime) Act 2015.
MR JACOBI: Yes.
JAGOT J: Schedule 1, Clause 3:
For the purposes of the definition of prescribed place . . . the whole of the land contained in each certificate of title listed –
MR JACOBI: Yes. The heading itself is:
Places declared to be prescribed places –
citing section 83GA.
JAGOT J: I see, it is to do with the heading only.
MR JACOBI: Yes, yes, that is right.
STEWARD J: It is the bit in brackets.
MR JACOBI: Yes, that is right.
JAGOT J: Okay, sorry. Yes.
MR JACOBI: It appears to have merged – the best we can tell – we think by accident, because the Para Hills Regulations for the first time, use that different heading and it appears to have been carried over in the consolidation.
JAGOT J: Yes, okay.
STEWARD J: It might have been an accidental amendment.
MR JACOBI: I think it might have been an accidental change in the consolidation – that is right – by the Commissioner.
GAGELER J: Which is of no moment, though.
MR JACOBI: That is right.
GAGELER J: I mean it is just an error in the script, is it not?
MR JACOBI: Exactly. Yes. The critical point that we seek to emphasise by drawing attention to the cognate headings is that the heading to Reg 4 on page 70 is a reproduction of the heading in the scheduled Act – it is not – the submission that is to run in a moment is it is not expressing or an intention to announce or there declare that these regulations are declaring, it is relying on declaring occurring elsewhere.
Can I then just explain that Regulation 4 then expresses itself to operate to insert its contents, a certificate of title, in the table found in the 2015 Schedule regulations. We say that this is why the Court of Appeal – and I will come for the first time to their decision – correctly identify at paragraph 35 – and this is to be found in the judgment which commences at page 27 of the core appeal book – paragraph 35 is to be found on page 34. You will there in the judgment the statement that:
This submission recognises that the text of each regulation appears only to vary the principal regulations.
And we embrace that. The Court expresses a similar view at paragraph 32 and, indeed, at 41 describes that outcome as “clearly expressed” – and you see that in the second line of paragraph 41.
That brings me to point 4 on our speaking note, which was the conclusion which was accepted by the Court of Appeal – and I do not understand it now to be contested that the 2015 Schedule regulations did not and could not delete, declare the Cowirra Land to be a prescribed place. The Court of Appeal reached that conclusion at 35, and again expressing it by way of a summary at paragraph 48. That is where, at 35, it expressed the view that the:
textual device is demonstrably insufficient for the task –
It repeats that view at 48. And we note that the respondent does not now contend that the Schedule regulations were the source of a valid declaration. You will see that in their submissions at paragraph 17 and particularly at footnote 11. I will be very brief. There were two reasons why that was so.
The first was that the regulations were a parliamentary declaration of the places in a parliamentary list. It was expressly not seeking to create a device by which places could later be added in non‑compliance with section 83GA(2). Rather, it was making that list to avoid the constraint that would otherwise apply by GA(2). I have taken the Court to the issue of tense in the device in the clause 3 of the Schedule at page 305.
The second aspect, of course, is that the insertion would not then conform with GA(2) and so that was the basis primarily for the Court of Appeal’s conclusion. Can I come then to point 5. Our submission is that, by their design, the Cowirra Regulations did not themselves in terms declare the Cowirra Land as a prescribed place, and nor did they declare by implication.
The Court of Appeal commenced approaching this this issue at paragraph 34 by identifying the contrast – this is to be found at page 33 – and the contrast is really central to what follows. What it is picking up is that, not withstanding the language of variation which I have already identified, which refers to a declaration in the Schedule regulations as to whether the Cowirra Regulations themselves declare, and this idea emerges again at 41 of the judgment, where the Court of Appeal asks itself the question as to whether the Cowirra Regulations declare in addition to the attempt to declare in the Schedule regulations.
Our primary point is this: that neither at that point nor later did the Court of Appeal address an important contradiction between the implication for which it searches and then finds and what it finds the Cowirra Regulations only did in the passage I have taken you to at 35. We say here that an implication can only mean the implicit meaning of identified text or, in other words, is an explanation of text. We there rely on the observations of Justices Gageler and Keane in the decision in Taylor v The Owners – Strata Plan at paragraph 65 and the cases that are cited at footnote 122.
Our point is this: that if the text of the Cowirra Regulations only varied; that is, opposite to the implication that they declared themselves – the submission we make is that this process appears to have arisen because of the Court of Appeal’s search for purpose and, indeed, the identification of what was an ultimate purpose which, in our submission, distracted from the task of identifying the text which it could construe as containing the implied declaration. That brings us to number 6 on our list.
STEWARD J: Mr Jacobi, is the nub of your case simply this: there is no mistake in the drafting of the Cowirra Regulations, this is not a Wentworth/Cooper Brookes situation. It is just that the draftsperson made a mistake in thinking that this would comply with 83GA(2).
MR JACOBI: Yes.
STEWARD J: And that is it, is it not?
MR JACOBI: Yes.
STEWARD J: All right.
MR JACOBI: And that there is not text to support it. Can I just address a number of matters that emerge from that. And I will skip over what we were going to deal with at 6 with respect to ultimate purpose, recognising that picks up ideas. I want to deal with really what the Court of Appeal has said at 42 to 45. They there identify matters that they say were matters – and you will the reference to “matters” in paragraph 42 – which are:
pointing to the achievement of that designed legal effect –
Now, we say that the word “achievement” there is significant because what that is there pointing to is ultimate purpose as opposed to the means or text by which that purpose was to be achieved.
That language is replicated again in paragraph 47 over the page where the Court again refers to the notion of “achieve” in, I think, the sixth line:
purpose of the regulations is to achieve –
which we again identify really as an ultimate purpose. But I just want to deal with each of the three ideas that are picked up at 42 to 45 briefly. The first is that at paragraph 42, where the Court draws from the Cowirra Regulations in the fact that they are:
individual declarations . . . capable of singular disallowance –
We say that that is not capable of answering whether they in fact declared, in addition to being an intent to affect the declaration by reference to the Schedule regulations. With respect to the matters identified at paragraphs 43 and 44, you will see that the Court drew significance from the headings. And, of course, when it is understood that those headings are drawn from the Schedule regulations, they themselves cannot point to a desire in these regulations to announce a declaration.
And again, at 45, they refer to the “long title to the regulations”, and again, of course, we draw attention to the expression “variation” in those regulations. Concluding what I have to say with what is said at paragraph 47, you will see there – and I will try to deal with this in two parts – that there is an identification that the regulations:
have no legal function at all –
We say that that arises – and again this is to pick up the question that I have been asked – that absence of legal function arises because of a mistaken decision to affect the result through the Schedule regulations, and we say that lack of effectiveness to do what they were designed to do does not logically support them being construed as containing a declaration in their own right.
We draw attention there to the decision of this Court in Saeed v The Minister for Immigration which is found in the books, and particularly to what appears from paragraphs 31 to 34. I will not take the Court particularly to those passages, but they deal with that issue of failure, particularly by reference to the decision in Re Bolton; Ex parte Beane. We
draw attention, with respect, to the second part of paragraph 47, to the third and fourth sentences, and again identify that they are references to ultimate purposes. We say that does not, for the reasons which we have identified, mean that the Cowirra Regulations themselves declared.
With respect to any issue of reading in, we have made submissions about that in our reply, paragraph 6. That submission was not one advanced to the Court of Appeal, and the appellants’ reply identifies the requirement stated in Taylor at paragraph 39, that:
any modified meaning must be consistent with the language in fact used –
and we say here, of course, that it is not, because the intention was to vary the Schedule regulations.
May it please the Court.
KIEFEL CJ: Thank you. Yes, Mr Wells.
MR WELLS: May it please the Court. The principle for which we contend as being applicable to the statute and the statutory scheme is set out at point 9 of our outline. It will be well known to the Court there are features of it, however, that I will wish to identify.
Our submission is that that principle was, in our respectful submission, not followed by the Court of Appeal, and that, in particular, as we mentioned in our outline at 10.3, the error that really can be identified as distinguishing the path taken by the Court of Appeal from the path that we contend should have been taken is that the Court of Appeal assimilated the function of the regulation‑making power which was to supply a factum to extend the legislative restrictions on a “participant” in section 83GD(1) with the effect of the exercise of a power. If focus had been maintained on the effect of the exercise of the power, it would have been identified that it had effects beyond that which the statute itself had directly upon a participant, who was the subject of the prohibition.
Can I then go back to point 9 of our outline. The formulation that appears there is derived very largely from that which was a subject of Kioa v West. And, in particular, Justice Mason, as he then was, at page 584; I do not take your Honours to it, but mention it that it is to be found – that is, the case is to be found at volume 3 at page 643. Your Honours will also recognise that the emphasis that appears in the formulation on the distinction between distinctive effects on the distinctive rights and interests of an individual alone or of a notifiable class individuals, on the one hand, and the way in which the power is apt to affect the public at large, is a distinction that was first identified by Justice Jacobs in Salemi v Mackellar (No 2). Again, I do not take your Honours to it, but it is at volume 4 at page 887, and I will refer to the page number of the case itself. So, Salemi v Mackellar (No 2) at 452, which was where Justice Jacobs enunciated that distinction between distinctive rights of an individual, or a notifiable class of individuals, as from the effects or impact on a person as merely a member of the public.
Your Honours will have noted from our outline that we identify that as the touchstone because the proposition that appears in point 9 of our outline is a proposition we contend that applies, whatever the nature of the power. That is – perhaps I should say more accurately – whatever the form of the power; that is, whether it be subordinate legislation in the true sense of a normative rule driven by policy, or whether it be in the nature of an administrative act. An administrative act can also be of the nature of having general application to the public at large and can also be policy‑driven. The question which we contend is the proper question to be asked is: what effects is the exercise of the power apt to have and on whom? And, for reasons that I will come to, that accords with the rationale, we contend, of procedural fairness. So that is the first feature that we would want to emphasise.
Your Honours may be aware – and if your Honours will pardon me, I do propose to take your Honours to this case. This is the case of Minister for Immigration and Border Protection v SZSSJ, which appears in volume 3 at page 729, and then if your Honours will permit it, I propose to refer to page numbers and paragraph numbers once we are at the volume. So if your Honours were then to turn in SZSSJ to paragraph 75 on page 205 of the report there appears, in our respectful submission a, with respect, very neat statement of how the law presently stands, picking up also the resolution of the apparent controversy about the source of the obligation. Your Honours will see partway through paragraph 75 the sentence starting:
The common law principle, sufficiently stated –
Reading on from that, without reading it, it identifies two matters in particular. One is that a presumption is raised where conditions are satisfied and that:
The presumption operates unless clear displaced –
Your Honours will two things that we have occasion to come back to later from the way in which the principle is formulated there. First of all, in the opening sentence of paragraph 75, it is said that:
procedural fairness is implied as a condition of the exercise of a statutory power –
Again, well‑understood and well‑known, but it carries this implication, that if the conditions for the establishment of the presumption are present, a presumption arises.
There is no need to, in that respect, refer to any legislative intent. One is looking simply at the statute, the nature of the power and its effects, and if its effects satisfy the formula which appears in our point 9, then the presumption arises, and the legislative intent only becomes a matter of examination when one is then examining whether the presumption is displaced.
GAGELER J: It becomes a bit murkier, though, when you move beyond SZSSJ, which is specifically concerned with an individual, the interests of an individual, to your notifiable class of individuals which might be – as in the case I remember – everybody living under a flight path in Sydney.
MR WELLS: Botany Bay.
GAGELER J: Yes.
MR WELLS: Yes.
GAGELER J: The questions may not be so clear cut there.
MR WELLS: Your Honour, the approach – we submit that the current law takes that. I have to admit we have added, if you like, the word “notifiable”, really as a matter of emphasis because the way in which it was put by Justice Brennan in Kioa v West was, if it is apt to affect the rights and interests of an individual alone or a class or individuals, we have added “notifiable” because that helps to explain the class that we are talking about.
In other words, where you have a class of individuals whose, if you like, membership is so indeterminate – which, of course, is what the Court of Appeal was talking about when referring to “participants” – that it becomes impractical to notify everybody for the purpose of according procedural fairness, the consequence may well be that we are not talking about that class whose distinctive rights and interests have been affected. We are talking about individuals who have been affected simply as members of the public. That is, in our respectful submission, the way in which that idea of class of individuals is referred to.
Can I expand a little bit more on that, if your Honour pleases? Obviously enough, a statute will never announce itself as applying to, in our case, the appellants by name. The statute will always be talking in terms that require us to identify whether it is apt to affect the distinctive rights and interests of an individual or a class of individuals of which the appellant is a member.
So, it is always going to have that aspect of it. The issue is always going to be, is there, say, a class whose rights and interests are distinctively affected other than simply as members of the public. That is always going to be the touchstone. It does not mean that their rights and interests – distinctive rights and interests – will be affected in exactly the same way either. An example of that, we contend, is this case, where, on our submission, an owner or occupier belongs to that class of individuals who have distinctive rights and interests that are apt to be affected.
But amongst that class there is a sub‑class, which are our clients, who are not only owner and occupier, but they are participant. Now, as my learned friend Mr Jacobi has said, to be a participant is not an offence, and if you are a participant and an owner and occupier, you are going to be affected in a different and more severe way than if you are a non‑participant and an owner and occupier. If you are a participant and an owner and occupier, you suffer a semi‑forfeiture of your proprietary interests because you are prohibited, under penalty, from entering or remaining on the property that you own or occupy.
That is, in our respectful submission, a classic example of the operation or the exercise of a power which is apt to affect the distinctive rights and interests of individuals – in this case, the owner or the occupier of the place declared. Or, if you want to put it, a class of individuals, namely, the same: owner or occupier, whether there be multiple owners or not. So, in our respectful submission, the distinction holds, and our submission is the distinction between the aptitude of an exercise of power to affect distinctive rights as distinct from rights and members of the public apply whether we are talking about subordinate legislation having general application and whether or not driven by policy, or whether we are talking about an individual act.
Now, in this case what we have is in form a regulation, or a regulation‑making power, but in substance – a proclamation – it is simply the means chosen by the legislature for the Executive to declare. So, it is simply a declaration. Whether that be the best and only way of analysing the nature of the regulation‑making power, the proposition that we put forward in point 9 applies no matter what the form is.
GAGELER J: Mr Wells, I am sorry, I just lost where we find the prescription of events for the purpose of section 83GA.
MR WELLS: That is in section 83GA(1), your Honour.
GAGELER J: Yes, I mean the regulation ‑ ‑ ‑
MR WELLS: The regulation itself?
GAGELER J: Yes. I am not sure we were taken to it earlier.
MR WELLS: I do not think we have provided in the booklet any examples of regulations declaring prescribed events. We have only provided in the books examples of declarations of prescribed places, and the declaration relevant here, of course, is the declaration of a place.
GAGELER J: But it does not have any effect, does it, unless there is a prescription of an event?
MR WELLS: Correct.
GAGELER J: So, if we want to know what the limitations on the conduct or liberty or your clients is, we need to understand what events have been prescribed, do we not?
MR WELLS: We are not contending that there is any relevant prescribed event that bears upon our clients as owners and occupiers. Perhaps, your Honour, the best way of doing it is to take up the amending Act, which is in the supplementary volume, and your Honour will see – and I am just getting the tab number, your Honours, for the electronic dealings of it – it is tab 3 and page 10, which is where Division 2 is inserted, and your Honour will see there it starts with definitions, and that is 83GA(1). In passing, can I just point out the definition of “participant” which is expressed in extremely wide terms. It is basically status that we are talking about, and the width of it is such that the legislature felt it necessary to exclude as a participant:
a lawyer acting in a professional capacity –
But it did not, for example, exclude an accountant. Immediately below that your Honour will see that “prescribed place” is defined to mean:
a place declared by regulation to be a prescribed place –
And “prescribed event” is defined as:
an event declared by regulation to be a prescribed event –
what has happened. If your Honour then goes to section 83GD, which is the relevant section, there are two offences created in section 83GD, not one. The first is in subsection (1) which prohibits a participant from entering or attempting to enter a prescribed place, and subsection (2) prohibits a participant attending or attempting to attend a prescribed event. So, we point those out, but the relevant provision is subsection (1).
GAGELER J: Thank you.
MR WELLS: So, your Honours, if I could come back briefly now to the last feature that I want to point out in our outline 9 and that is that the presumption is a strong presumption. I will give your Honour a reference to one expression of that, its not in the joint book of authorities, but it is a passage from the judgment of your Honour Justice Gageler in CPCF, which is reported in (2015) 235 CLR 514 at 622, paragraph 367 where it is there referred to as a strong presumption, probably because it is recognising the tenacity of the presumption when it comes to considering whether by implication the legislature has sought to displace the presumption.
But it is important, we submit, for reasons that I will come to later, to observe also that when the legislature indicates implicitly an intention to displace it is not an all or nothing. It is always to displace in relation to the particular exercise of the power in relation to the particular class of individuals distinctively affected. It will always focus only on that, and it will only be in a rare case that there will be, as it were, across the board exclusion or displacement. And, usually, that alone would be where it is express. Otherwise, what we are looking at is whether the legislative intention which is being examined for the question of displacement is focused upon the particular class of individuals directly affected. Your Honours will recall in that passage that I took the Court to in SZSSJ that it talks about:
a statute conferring a power the exercise of which is apt to affect an interest of an individual is presumed to confer that that power on –
the condition of procedural fairness, and when it talks about that, it is talking about the:
condition that the power is exercised in a manner that affords procedural fairness to that individual.
And that is:
the presumption operates unless clearly displaced –
So, the displacement has to be in relation to a presumption operating with respect to the particular individual or particular class of individual, and all that does is demonstrate the tenacity of the presumption when it arises.
Can I move your Honours to point 10 in our outline, which addresses the reasoning of the Court of Appeal. I hope I can do this in a short way, your Honours, and point 10 is an attempt, really, to summarise that and I shall simply add some small elaborations to it and seek, if I may, just to point out the critical passages in the reasons for judgement of the Court of Appeal, so if your Honours could have regard to that as well, which is in the core appeal book starting at page 23 – but really, for our purposes, starting at paragraph 69, which is to be found on page 41.
The reasoning can be seen to operate in stages. Perhaps if I can summarise in this way. The Court of Appeal appears to have concluded – and I say this with great respect but, when I say “appears to have concluded”, because in some respects, their Honours’ reasons are somewhat elusive – but they appear to have concluded that the regulation‑making power in section 83GA(1) – “prescribed place” – although administrative in character simply provided a component of the general penal provision in section 83GD(1), and was therefore of general application and exclusively policy‑driven, without regard to the particular circumstances relevant to the place that had been targeted.
This appears to constitute their Honours’ reasoning principally from paragraphs 78 onwards. Can I just, before your Honours go there, ask your Honours to note that at paragraph 69, the Court of Appeal commenced its consideration by suggesting that this was:
a question of characterisation of the regulation‑making power –
Their Honours refer to established principles but we respectfully suggest that perhaps that is not the question – the characterisation of the regulation‑making power – it is always a question of the aptitude of the power to affect rights and interests. But your Honours will see that the discussion that starts there – and I will not cover it all – I will come back to some of it – ends in the first stage at paragraph 83, on page 45 – in which their Honours say:
Accepting, then, that the Cowirra regulations have an administrative character by reason of their creating a factum on which section 83GD(1) operates, the first question is the extent to which they affect an individual or individuals substantially differently from the way in which it may affect the interests of the public at large.
On the face of it, most of that appears to be unexceptionable, except that their Honours say:
the extent to which –
Then they go on to say that the appellants had identified the owners and occupiers as:
‘clearly targeted’ –
To that, their Honours’ response was, well, that gives them standing but that does not answer the question about whether procedural fairness is to be afforded, because it:
does not describe the relevant effect of the regulations –
on their interests. So, I emphasise there, “the relevant effect of the regulations”, and, as their Honours concluded:
the relevant effect of the regulations on the interests of an individual –
when it came to the owners and occupiers, it was seen to be quite incidental to what was regarded as the only effect – immediate effect – that the regulation‑making power had – which was on participants as a class.
So, we move from that stage, and I might need to come back to some part of that first stage, to where their Honours go next, which is, to take up the suggestion put by Professor Craven in 1988, that where you have legislative actions – this is at paragraph 87 – you may still have an obligation to afford procedural fairness, but that will depend, in part, and a large passage is then set out at paragraph 88, on whether there is a class of persons specially affected. I invite the Court to note the phrase that is used, “specially affected”; we are not talking here about rights or interests, just a class “specially affected”, and capable of being represented. That is what the gist of that paragraph suggested.
Their Honours suggested that the decision of Justice Finn – ex tempore decision in Wasantha – exemplified that; whereas our submission is that is simply an example of where his Honour held that there was a measure of such a general application, and of such high policy that there was no room for the presumption to arise. Their Honours, however, saw it differently and concluded at paragraph 90 that this – that is, the case of Wasantha:
highlights that notwithstanding that a confined class of individuals may be identified, and even practically represented, the enabling legislation may demonstrate further policy considerations that nonetheless indicate an implied intention to exclude –
the curiosity, we respectfully submit, at that passage, is that in determining the attachment of the obligation to afford procedural fairness, their Honours feel moved to look to legislative intent; whereas, in our respectful submission, it is a matter of looking at whether the conditions for the raising of a presumption are fulfilled; simply as that. But it led to this critical conclusion in paragraph 91:
For present purposes, it is necessary to identify the specially affected class –
Again, echoing Professor Craven:
of individuals affected by an exercise of the power under the Act, such as may contribute to an understanding of the legislature’s intention with respect to the giving of procedural fairness.
And their Honours then said, we can easily recognise participants as such a class. And paragraphs 91 to 95 develop the notion that that must be a class that is specially affected; but the difficulty is trying to determine or identify the membership of that class. But, at paragraph 97, their Honours established their position and their point of view, and it appears in the last line of the page – which is page 47 – starting:
That is, the starting point is that a declaration of a place has an immediate effect on, and only on, participants in criminal organisations, by way of the offence provision in s 83GD(1).
Their Honours have planted the flag there, and concluded that participants were the only class that could probably and properly be considered.
Then their Honours, from that point of view, went on to determine – that is a badly chosen word – to conclude that it was an indeterminate class and therefore not intended to be the subject of procedural fairness. You could not, in other words, identify who was in the class at any one time, having regard to the broad definition of “participant” and that, amongst other things, raises practical questions about how one actually gives effect to any such obligation, and their Honours took the view that that demonstrated a legislative intention that procedural fairness should not be accorded. Your Honours will see that at paragraphs 104 to 106, and I do not stay with those paragraphs.
That position, in our respectful submission, led to the conclusions which we respectfully contend are erroneous. It led their Honours consider that the only way the appellants could be considered as entitled to procedural fairness would be as a subclass of participants and their Honours’ view was that there was nothing to indicate in the legislation that this differential obligation, which is the phrase that was used and first taken up in paragraph 97, was intended. So, in effect, it was an all or nothing, and that also led their Honours to take a view of the single‑judge decision of the Tasmanian Supreme Court in King Island Council as distinguishable. That is at paragraphs 107 to 110 of the judgment. I will be coming back to that anyway.
It led their Honours, in our respectful submission, to misinterpret the legislative scheme, which is to be found in their Honours’ judgment at paragraphs 111 to 114, and then at paragraph 134, and led their Honours, in our respectful submission, to misapply Kawasaki. That is at paragraphs 115 to 122; their Honours seeing Kawasaki as an example of where large social, political and economic policy dominates rather than, as we contend, Kawasaki simply being a case where it was concluded that the interests affected were interests as members of the public and not otherwise.
I move 10.1 – or at least the subparagraphs. We contend that this is the proper approach – 10.1, 10.2 and 10.3, the first proposition being that the regulation – what we call the Cowirra Regulations – being the exercise of the power accorded to the executive by section 83GA(1) and the definition of “prescribed place” is not a measure of general application. It is the nature of the power, as we are told again and again, not the means by which it is exercised that raises the presumption. Although the power is exercised in the form of regulations, in substance it is not a measure of general application and, as we contend, the touchstone is the distinction that I have earlier referred to in the principle.
So, your Honours, in the first place the focus is on the capacity or potential of the power to affect distinctively the rights or interests of particular individuals for which participation is demanded. Your Honours, it is probably not the time and place to offer any extensive submissions on the question of the underlying rationale of procedural fairness, but we know, and we have addressed this in our written submissions, your Honours, at paragraphs 35 to 37, that the original curial model recognised the essential connection between a determination of rights and the participation of those affected by the determination.
Kioa v West marked the transition from an adjudicative model to an administration model but preserved the essential connection between the decision and the participation of those whose rights and interests were apt to be distinctively affected by the decision. Participation, therefore, remains at the heart of the rationale variously identified in the articles that we have given reference to in volume 6 as utilitarian or instrumental, dignitarian or legitimating. That is, the idea that legitimacy for a decision is fed by the degree to which it is the subject of participation. Whatever those different approaches are, they are all, in our respectful submission, particular examples of that essential rationale of participation when someone’s rights and interests are in view.
Now, your Honours, I do not stay with this, but in volume 6 there are four articles that address some of these rationale: Chief Justice French at – these are all in volume 6 – page 1821; Holloway’s article on procedural fairness and the High Court at page 1845; Justice Edelman’s article at page 1810; and Doctor Rundle’s article at 1866. I say no more about that except to, as I say, emphasise the reciprocity of exercises of power that affect people and the need for participation.
That arises whether the nature of the power is purely administrative or whether it is a form of subordinate legislation. Now, your Honours will know that Chief Justice Gibbs in Bread Manufacturers’ Case – it is not in the joint book of authorities – noted what was subsequently referred to by this Court in Griffith University v Tang as the instability of the legislative administrative distinction, and we know from Kioa v West that the emphasis is therefore upon the way in which rights and interests are affected.
If your Honours were to take up, as I invite the Court to do, volume 6, there is one short passage of importance from an article written by Sir Gerard Brennan, and it is to be found at page 1610 of volume 6, headed The Purpose and Scope of Judicial Review, and at page 1622, his Honour was there referring to natural justice and the audi alteram rule. That starts at 1620, but the passage that I take the Court to is what his Honour had to say at page 1622, in the second paragraph – the final paragraph of the section, starting:
However, the courts have largely abjured judicial review on the grounds of natural justice when the relevant power is legislative in nature. The line between powers whose exercise is exempt from the requirements of natural justice because they are legislative and the powers whose exercise is governed by the principles of natural justice is not always clear, but the distinction between them seems to depend on whether an exercise of the relevant power is apt to affect distinctively the interests of individuals –
and so forth. So, his Honour has proffered the view that, legislative or not, the touchstone is the same. Our respectful submission is that that is what the cases demonstrate. I want to take the liberty of inviting the Court to consider three cases. I will take your Honours to the three of them. They stand for a number of propositions, but we will only go to the case once for the purpose. The first of those cases is the decision of Chief Justice Blow in King Island Council v Resource Planning and Development Commission, which is to be found, your Honours, in volume 5 at page 1455, tab 42.
Put shortly – I hope shortly – the case concerned an amendment under the Land Use Planning and Approvals Act. Under that, the local council had a role to play, just as the Resource Commission had a role to play. It was with respect to the amendment of a planning scheme. There was a draft amendment that was prepared by the council. The draft amendment imposed restrictions on subdivisions in the rural zone and provided for exceptions to those restrictions and provided for the council to have a discretion to approve a subdivision for the excision of a property in the rural zone, subject to certain provisos, one of which was a time limit: the dwelling had to exist at the time the amendment came into effect.
The Resource Commission altered the draft. That was part of the process, but it altered the draft without consulting the council, and it did so by changing that time limit. So that instead of the dwelling has to exist at the time of the amendment, it was the house has to exist as at an earlier date – 6 October 2000. That was the amendment that was given effect to without consultation, either of the council or, for that matter, of the 10 to 15 properties that were affected by that amendment of the amendment.
It was in those circumstances that his Honour came to consider the question of procedural fairness and held – your Honours will see this – I am taking this from the page number of the decision. So it is paragraph 18 of the decision that starts at page 1456 of volume 5 in which – your Honour Justice Gageler will observe – his Honour distinguished the Botany Bay Case at paragraph 17 and at paragraph 18, explained why:
The modification to the draft amendment did not affect the rights and interests of the public at large, or those of a section of the public at large. It affected the rights and interests of the council and of a small and identifiable group of landowners. The decision to modify . . . may well have had a substantial impact on the values of some or all of the affected properties, and it reduced the powers of the council to approve subdivisions. The impact on the rights and interests of landowners was probably greater than the impact on the rights and interests of the council. However . . . the impact on the rights and interests of . . . the council, was material.
So, there is a case where more than one class or a different class of individuals was identified – in one case, a corporate individual. The landowners were not the applicants, the council was the applicant, and the impact on the council’s rights and interests as a separate level of government deprived them of powers they otherwise would have had. His Honour held that that resulted in the presumption arising.
There may be arguments one way or another about whether that was correct – our contention, of course, on the facts it was correct – but the important thing is the approach that was adopted and the principle that was sought to be applied even though what we were talking about was the amendment of a planning scheme which has all the indicia of a measure of general application driven by policy, and yet here was a court willing to say let us look at how the exercise of the power actually affects people. That is at the heart of procedural fairness and the heart of the reciprocal or relational state of affairs between the governor and the governed – making a decision that affects being able to participate in that decision.
So, that is the first of the three cases. The second is the decision of the United Kingdom Supreme Court in Bank Mellat v Her Majesty’s Treasury (No 2). That is found in the same volume, your Honours, at page 1226 – tab 37, I am told, your Honours – and that stands for several propositions, all of which I wish to take advantage of.
Your Honours, the case was decided in two parts. Your Honours will see that the part of the case that is number two to which we are referring starts at – and I am talking about pages in the report – page 763. Another issue about public hearings was the subject of the first part, but 763 is where it secondly starts, and relevantly, for our purposes. Your Honours will see that the principal judgment was given by – that is for the majority – was given by Lord Sumption. There were dissenting voices. One of them was only a partial dissent and agreeing with the principles that were enunciated by Lord Sumption.
Your Honours, the best way of describing the particular operation is to take up, as well, from volume 6, the Act that their Honours were there construing – I beg your pardon, it is not volume 6 – yes, it is at the very end of volume 2, tab 21, the Counter‑Terrorism Act, page 363, your Honours. But we are dealing with Schedule 7, and Schedule 7 is to be found starting at – I am giving your Honours the page number of the volume, 366, and the description of this is given by Lord Sumption on page 764 of the report, starting at paragraph 4 and identifying that in Schedule 7 there were a number of grounds upon which action could be taken, but the relevant one was in subparagraph (4) of paragraph 1, which deals with the Treasury’s reasonable belief that:
(a)the development or product of nuclear –
and other weapons in the country:
poses a significant risk to the national interests of the United Kingdom.
Where that happened – this is from paragraph 5 of the judgment:
the Treasury may give a direction to one or more persons “operating in the financial sector” . . . regulating their dealings with any “designated person”.
“Designated person” then being defined in paragraph 9, and paragraph 9 is also to be found in the Act itself at page 371, and it refers to:
A direction under this Schedule may impose requirements in relation to transactions or business relationships with—
(a)A person carrying on business in the country –
amongst other things, and “designated person” is defined to mean:
any of the persons in relation to whom the direction is given.
Then follows a series of paragraphs which are referred to in paragraph 5 of his Lordship’s judgment, but it takes us to what he called the “the most draconian provision”, which was in paragraph 13. That is to be found in volume 2 at page 373:
A direction may require a relevant person not to enter into or continue to participate in –
(a)a specified transaction or business relationship with a designated person –
amongst other things. Paragraph 6 of the judgment identifies some safeguards for this. One was there had to be an affirmative resolution of the Parliament approving it within 28 days, another was it had to be “proportionate”, another was that there was an opportunity, a provision for judicial review – judicial review in accordance with common law. And the direction that was given is set out at page 765 of the judgment, which is the concluding paragraphs of paragraph 7, it:
required all persons operating in the financial sector not to enter into or to continue to participate in any transaction or business relationship with Bank Mellat –
Which was an Iranian‑controlled bank:
or any of its branches –
So, that was the direction that was the subject of judicial review, and it was held by the Supreme Court that there was an obligation on the part of the Treasury to afford procedural fairness to Bank Mellat, even though the direction was directed to others – an indeterminate group of others, anyone doing business with them. Obviously, as was held, it had impact for the Bank and, in that sense, was targeted, even though the direction was in another direction.
Let me then take your Honours to the paragraphs that become important. On page 776 – perhaps I should just pause to say, your Honours, just one more thing about the Act. And that is that Part 5 of Schedule 7 provided for enforcement not only by civil penalties but by criminal penalties. Part 7 on page 386 of volume 2 sets out that provision. So, a failure to comply with the requirements of the direction was a criminal offence.
So, then your Honours, paragraph 32 on page 776. I will not read it, your Honours, but it contains these observations: first of all, the Court was dealing with a targeted measure, although directed to others; secondly, it came into effect immediately. There was no time to consult afterwards. There were no practical obstacles to consulting the target. That is the notion that we have put into the expression “notifiable class of individuals”.
It was not based on “general policy considerations, but on factual allegations”. And your Honours will see that, in particular at letter E and following on that page.
A number of grounds were relied on by the Treasury for the purpose of excluding the obligation. I do not need to refer to all of them, but because we need to put in a submission about displacement, I take your Honours to it now. It was effectively – the one that is relevant was that parliamentary approval was needed, so that oversight by the Parliament was an adequate response to, if you like, the fairness of the process.
Your Honours will see that first canvassed at paragraph 38, but I take your Honours to paragraph 44 on page 780 where his Lordship approaches the question of parliamentary scrutiny, and that is a matter that is raised against us so it is important just to note that paragraph 44 addresses that and makes the point, first of all, that it is necessary for a court to move with caution, but here we have a targeted instrument which accords in the way it is expressed very largely with the principle that is accepted in this Court of the distinction between impacts on individuals as distinct from interests as members of the public, and the expression that comes from that consideration in paragraph 44 is that it may be that parliamentary review is sufficient for general measures, that is, general application and policy‑driven, but not for targeted measures where factual matters need to be considered.
That leads me to paragraphs 46 and 47. It concludes a discussion which is reflected in the paragraph immediately preceding paragraph 46 where his Lordship says I agree with Lord Justice Sedley in relation to delegated legislation as “an expression of legislative policy” and Lord Justice Sedley had suggested there was an immunity in those circumstances. His Lordship thought that his expression represented “a more nuanced and accurate statement”:
The present case, however, is entirely different. In point of form, a statutory instrument embodying a Schedule 7 direction is legislation. But –
then referring to Justice Megarry in Bates’ Case:
“what is important is not its form but its nature, which is plainly legislative”.
That is the quote. However, his Lordship says:
The Treasury direction designating Bank Mellat under Schedule 7, paragraph 13, was not legislative in nature. There is a difference between the sovereign’s legislation and his commands. The one speaks generally and impersonally, the other specifically and to nominate persons.
Referring to David Hume. And then saying:
The Treasury direction in this case was a command. The relevant legislation and the whole legislative policy on which it was based, were contained in the Act itself. The direction, although made by statutory instrument, involved the application of a discretionary legislative power to Bank Mellat and IRISL and nothing else. It was as good an example as one could find of a measure targeted against identifiable individuals.
Your Honours can understand how we would wish to echo those words in relation to the position that the appellants occupy with respect to the declaration of their place as a “prescribed place”. And paragraph 47 takes up that same theme; and I do not stay with it but rely on it. So that is what is to be derived, we respectfully submit, from the second of the three cases. The third case, your Honours ‑ ‑ ‑
KIEFEL CJ: I see the time, Mr Wells. The Court might take its morning adjournment. The Court will adjourn for 15 minutes.
AT 11.16 AM SHORT ADJOURNMENT
UPON RESUMING AT 11.31 AM:
KIEFEL CJ: Before you proceed, Mr Wells, the Court is a little concerned about the time necessary to be taken for this case. So, it will sit until 1.00 and resume at 2.00. But, where possible, if we do not need to go back over things and we can shorten it, but that would be appreciated.
MR WELLS: Thank you, your Honour. I expect to finish by about a quarter past 12. The third of the three cases that I have taken the liberty of taking your Honours ‑ ‑ ‑
KIEFEL CJ: With this third case, could you perhaps identify the propositions for which you contend, and just identify the paragraphs, unless it is actually saying something quite different from the first two.
MR WELLS: No, it is saying the same thing, your Honours. The proposition is no different; it is addressing an apparently legislative measure, but still making the point the distinction is the one that we have been contending for all the way along. I am happy to just take your Honour to the particular paragraph.
KIEFEL CJ: Thank you, Mr Wells.
MR WELLS: This is the South African case, your Honours, which is in the supplementary JBA, volume 2 in tab 16, page 97. The only matter that I will dwell on is that the facts, which can be shortly stated – they appear, in fact, on page 98 and 99. They were to this effect, that the South African Roads Board, or its predecessor, had proposed to declare a particular road which ran through the southern suburbs of Johannesburg as a toll road, and to impose a toll. It had its reasons for doing that, which are described, but the City Council of Johannesburg were aggrieved by this because, as they contended and maintained, it affected the Council. And it affected the Council in a number of ways, which your Honours will find or referred to at page 117, down the bottom:
lead to a diversion of the flow of traffic, and would result in the City Council being required to “expend funds to upgrade the suburban roads which will be required to accommodate that traffic” –
That is, as a result of those who want to avoid the toll:
the construction of the toll gate would cause a disruption of traffic requiring the City Council to assign traffic officers and eguipment –
and the like. As it was said on page 118:
It follows that the City Council’s rights and property are, in a broad sense, affected by the decision.
So, there were three contentions that were pursued. They appear at the bottom of page 118 and the top of page 119. The only two we are concerned with are (b) and (c) on page 119. One was no obligation to afford procedural fairness to the City Council of Johannesburg, and the other was that the legislature had displaced any such presumption, in our terms.
GAGELER J: Mr Wells, this is a pretty obscure case, unreported, 1991, South Africa.
MR WELLS: Your Honour ‑ ‑ ‑
GAGELER J: There would have to be a really purple passage.
MR WELLS: There are several – if I may so, with respect, your Honour – beautiful written, and it refers to ‑ ‑ ‑
KIEFEL CJ: Well, that is a good reason for us to read it.
MR WELLS: It is an excellent reason, your Honour. But, in addition, it refers to Commonwealth authority, including our own. So, there is a way in which it connects, and that is really why I have chosen it – and also because it expresses very well what we are seeking to say. This is the Supreme Court of Appeal in South Africa before the new Constitution – just before the new Constitution, in fact. So, at page 124, the judge writing the judgment of the court – Justice Milne – eschews:
classification of powers –
those “legislative or administrative” – your Honours will see that at page 129, in the middle of the page:
not persuaded that the categorization of statutory powers of action or decision into executive (or administrative) and legislative –
is a helpful criterion. The distinction should be, (a) and (b):
(a) statutory powers which, when exercised, affect equally members of the community at large and (b) those which, while possibly also having a general impact, are calculated to cause particular prejudice –
over the page, “calculated” is there used in the sense of meaning:
not “intended” but “likely in the ordinary course of things” –
or, as we would say, apt to. Then his Honour addresses both of those propositions – the first of them on the second half of page 130, and the second of them on page 131. It is the second of those, of course, that we found our case on. The further observation made at the bottom of the page, at 131 onto 132 expressing satisfaction that it provides:
a more rational foundation for the application of the rules of natural justice –
again representing, we would respectfully contend, this very notion of reciprocity between the governed and the governor requiring participation for determinations that affect individuals.
Then, the Commonwealth authorities are identified first of all at page 133 – a decision of the Supreme Court of Canada – I do not stay with the facts, we obviously seek to derive support from them but it will not help if I go through them here. This was in a case where Justice Dixon – as he then was – wrote a seminal passage or two. He was in dissent but only on the second point, which was, as it would appear, that the applicant did not come to the Court with clean hands and could not get the remedy on a discretionary basis, but the principles that were expressed are still authoritative.
Then, on page 137, a reference to two New Zealand authorities – CREEDNZ – one word – and Justice Richardson, as he then was, in the passage that appears at the bottom of page 137 and going on to the top of the next page. Then, a subsequent decision appearing on pages 138 and 139, Fowler & Roderique – which have some echoes with the South Australian decision of Dighton that is sought to be relied on by my learned friend and, perhaps, raises the question as to whether Dighton itself might not have been decided differently, even though the principle that was applied there is one that is entirely consonant with what we contend for.
Then, finally, on page 140, a reference to O’Shea – South Australia v O’Shea and the judgment of Chief Justice Mason. There, your Honours will see the passage that is set out. The reference, because of the timing, is only the ALR reference, so the CLR reference is at 163 CLR 378. It is in the joint book of authorities, volume 3, page 761, but we do not need to go to it because the passage that is set out at the bottom of page 140 appears at pages 388 to 399 of the Commonwealth Law Reports and simply makes the point that while, if one is dealing with high‑level general policy, one might not expect to see an obligation to afford a procedural fairness:
the same considerations do not apply to the impact of policy on the individual and to those aspects of policy which are closely related to the circumstances of the particular case and that is the case here.
said his Honour, and it is also the case in the case at Bar, we respectfully submit. We are dealing here not with high‑level general policy, we are dealing with implementation of policy, having regard to facts and circumstances that particularly apply. That is a matter that I will now come to.
This is our point 10.2, where we contend that we are not dealing with a measure which is driven exclusively by policy. That is a bit of a which word anyway, because a measure could be driven by policy simply because it is implementing an established policy, or it can be formulating a policy, as it were, for the first time. The cases, to which I have referred, do not distinguish, particularly, between those but one can see how a distinction might be mad; but our case is that it does not matter.
In this case, we are dealing with a power that authorises the targeting of a particular place if, to do so, would further – that is, implement – the legislative purpose or policy of disrupting the activities of declared organisations – not, be it noted, participants, but disrupting the activities of declared organisations by preventing participants from using the place to pursue their activities or, if I can refer to subsection (2), using an event to pursue their activities where there is a declared event.
It is a discretionary power, yes, but it requires all authorisers – the decision‑maker – to identify and take into account the particular circumstances that connect the place targeted with the purpose or policy of the legislative scheme, to which I shall come. But both of those propositions need to be understood in relation to the scheme. And the scheme is that which is addressed in the legislation. If I can then invite the Court to take up the amending Act, which is in supplementary volume 1, page 18. I will just get the tab number for your Honours; tab 3.
The submissions we make in that respect about the legislative scheme can, therefore, be a way in which policy and discretion operate within it, to the following effect. The “social policy goal”, as the Court of Appeal described it in paragraphs 112 and 137 of their Honours’ judgment, is to disrupt the activities of declared organisations; that is, participation in activities conducted by declared organisations or in which they are involved by preventing them joining together as participants to pursue the activities.
Thus, one can see, for example, that, as part of the amending Act, there is a Part 4 which amends another Act – the Summary Offences Act – by creating a refurbished but limited offence of consorting. Again, it is joining together. We can compare with section 83GC, which is to be found on page 13 where, as my learned friend Mr Jacobi observed, it requires one person to be:
knowingly present in a public place with 2 or more other . . . participants –
So, again, there is, in that sense, a joining together. These are, as we would say, not solitary activities. But section 83GD prohibits solitary action. It prohibits a participant from entering or attempting to enter a prescribed place; a declared place. The unspoken assumption has to be that the place – or if we are talking about the event, the event – has some connection with the purposes of a declared organisation, namely:
engaging in, organising, planning, facilitating, supporting, or otherwise conspiring to engage in, serious criminal activity –
That comes from the first of the three definitions of the “criminal organisation” in section 83GA(1).
GLEESON J: But, in fact, it could just be a place where a bikie goes to visit their grandmother.
MR WELLS: It could be, your Honour, in which case, we would contend that there is no connection that would authorise a declaration in those events. The example I was going to give was the dentist. It is the same point that it is not a question of being able to declare any place simply because it is thought that a participant might be wanting to go there. The declaration is to be made because the place is identified as a place that is connected with the activities of a declared organisation, in one way or another.
GAGELER J: Do you need to go this far for the purpose of your procedural fairness argument? It is certainly straying into an implied limitation on the scope of the power requiring some kind of connection with, I do not know, criminal activity, is it not?
MR WELLS: Yes.
GAGELER J: Do you need this? I did not understand this to be part of your case, Mr Wells.
MR WELLS: Well, your Honour, this is what in our outline, or our written submissions, we refer to as the “missing middle”.
GAGELER J: I see.
MR WELLS: The “missing middle” is exactly this connection. The reason why we identify it is because it requires, therefore, the decision‑maker to enquire; to actually make some determination of the facts or circumstances that would then justify the making of a declaration other than simply, as I say, that it happens to be a place where one participant might go because that is his dentist or, as your Honour Justice Gleeson suggested, because it is where his grandmother was. But that would not justify a declaration.
GAGELER J: Let us assume you are wrong about this “missing middle” and it is a power that does not require a particular connection. Why, on your case, is procedural fairness not required? Because could it not be that the owner or occupier could say something that would possibly persuade the regulation‑maker that it is not a good idea to make this regulation?
MR WELLS: Your Honour, with respect, yes. Maybe we are making more points than we need to, but perhaps it is by way of emphasis. But, in any event, in our respectful submission, there will always be, where a particular place is targeted like this, something to be said.
KIEFEL CJ: But the – no, sorry, please continue.
GAGELER J: Was the “missing middle” put to the Court of Appeal?
MR WELLS: Your Honour, it was not put with that dramatic label.
KIEFEL CJ: But the question here, essentially, is about procedural fairness applying to a place which might be declared. It is not concerned with the topic about whether the organisation is to be declared.
MR WELLS: No, it is not. Your Honour is quite right.
KIEFEL CJ: And your “missing middle” really is in that territory, is it not?
MR WELLS: Well, it only arises, your Honour, because, uniquely, the offence that is created by section 83GD is committed if one participant enters, and the question that might therefore be asked, well, why does that make a difference in the scheme of things – that one participant might enter?
KIEFEL CJ: But the present question is: who is to raise the question? And the answer is probably the owner/occupier, on your case.
MR WELLS: Yes, your Honour is right. I am happy to move on. We do not – your Honours will understand, we do not for one moment resile from the proposition that we put, because we contend it makes our point even stronger as a result, but it is not a necessary – although it is a more than sufficient basis for contending for the obligation.
Similarly, one might say also about the existence of a discretion. We know from both FAI Insurances and from O’Shea’s Case that the Court is prepared to recognise an obligation of procedural fairness when government power or authority is being exercised to an individual’s disadvantage, or where a policy was clearly related to the circumstances of an individual. The fact that there is a discretion involved is, in that sense, neither here nor there anymore. It was once. It was seen as being a reason why the presumption was displaced, but it is now seen, as we have observed in our reply submissions at paragraph 14 that Chief Justice Gleeson in Jarratt’s Case put it the other way, that the breadth of a statutory power seems to be an argument for rather than against the conclusion that it was intended to be exercised fairly.
So the 10.3 point that we make is the one that I foreshadowed before, namely, that the error, we respectfully submit, that the Court of Appeal has fallen into is to assimilate the effect of the exercise of power with its function. The function was to supply a factum which extended the legislative restrictions on a participant. But that is not the only relevant effect of the exercise of the regulation‑making power. Beyond its bare function, it is apt to affect distinctively the rights and interests of more than one class of individuals and in different ways, as we have described. There is no necessity, therefore, to resort, as the Court of Appeal felt it should, to a consideration of – which ultimately it dismissed – whether there could be such a thing as a differential obligation if you have the only class affected as being participants and then you ask yourself, well, is there a subclass of participants to which a differential obligation might arise? That analysis simply is not called for if the principle that we are applying is the one that we contend for.
Furthermore, your Honours may have noticed that in paragraph 97 of the Court of Appeal’s reasons where it mapped out the subcategories that they would consider for the purpose of a differential obligation, which they ultimately dismissed as being available, one of the categories was an owner and occupier, not a participant owner and occupier. So that category was not even a subcategory of participants. It was just another category.
The correct principle, we respectfully submit, simply accepts that there is going to be quite often more than one impact; that is, an impact on more than one individual or class of individuals, some of whom will qualify for procedural fairness and others will not. Here, we have never contended that participants as a class qualify for procedural fairness. We have contended that the owner and occupier – before the Court of Appeal, we suggested other members of the declared organisation to which the occupiers were related. But we do not need to contend for that, and we do not here. We just contend for what we have, with great respect to my learned friend’s submissions, always contended for, and that is procedural fairness is owed to the owner/occupier.
GAGELER J: Mr Wells, can I just ask two quite specific questions. One concerns the source of regulation‑making power. It seems to be assumed in section 83GA. Does that feed into a general regulation‑making power of some ‑ ‑ ‑
MR WELLS: Yes, section 370, your Honour.
GAGELER J: Thank you.
MR WELLS: Your Honour will find that in volume 1, page 218, which is a general regulation‑making power ‑ ‑ ‑
GAGELER J: Thank you.
MR WELLS: ‑ ‑ ‑ of which section 83GA(1) is a particular example and operates as a subcategory of regulation‑making power, but there is that general regulation‑making power.
GAGELER J: The second question is, as to the content of procedural fairness in the context of section 83GA, does it go any further than saying to the owner or occupier of a place, I am thinking about declaring your place?
MR WELLS: No, it does not go any further than that. Well, when your Honour says “content” ‑ ‑ ‑
GAGELER J: What do you have to say about that?
MR WELLS: When your Honour says “content”, that would be the starting point. There might then be a question of in what way and in what form a response might be made, but that need not concern the Court because this is a case where no notice was given and the decision was made without any notice to the appellants.
KIEFEL CJ: But the Court would – if the Court is speaking about procedural fairness, it would need to describe the content of it.
MR WELLS: Well, your Honour, up to a point that may be so, in the way that your Honour Justice Gageler indicated.
KIEFEL CJ: Yes.
MR WELLS: But that does not necessarily mean going into, well, does that mean you are represented? Does not mean there has to be an oral hearing rather than written submissions? And so forth.
KIEFEL CJ: No, of course not.
MR WELLS: Which would be a different aspect of content.
STEWARD J: Do you say that a minimum part of the content would include disclosing why a government would want to prescribe a place as prescribed?
MR WELLS: Your Honour, that would require me to modify, of qualify, the answer I gave to Justice Gageler, but I am willing to do so. We would say in order to provide appropriate and proper participation that would have to be part of it.
STEWARD J: All right, thank you.
MR WELLS: Your Honours, at point 11 we have referred in our written submissions to the decision of Testro Bros v Tait. With my eye on the time, I do not propose to take your Honours to it, but can I say this about it. It was a case in which the dissenting voices would now be accepted as being in accordance with the law. This Court in Annetts regarded the majority decision in Testro Bros as no longer an acceptable position.
The importance of it for our case is the decision of Justice Kitto. In perhaps more relaxed and expansive time, it would have been good to have taken the Court to that judgment. It is yet another of his Honour’s brilliant contributions in which, although it was given at a time when the curial model still had some traction in procedural fairness, what his Honour had to say about the nature of the interest and the extent of the interest that is impacted for the purpose of giving rise to procedural fairness is of very great importance.
What his Honour recognises in a number of a passages – I can tell your Honours it is in volume 4, starting at page 981, but I do not take your Honours to it. At pages 367, 368, and 370, his Honour used expressions which identify, we respectfully submit, the extent to which somebody needs to be impacted in their distinctive rights and interests. He used phrases like:
seriously prejudice the legal situation –
Your Honours may recall this was a case where the inspector’s report provided a ground for the winding up of a company, and his Honour addressed the question of procedural fairness simply on that basis, that the subject of the inspector’s report was complaining of a lack of procedural fairness, and the consequence of the report was that it itself constituted ground upon which the Minister, if he exercised his discretion, could seek, or petition the Court, for a winding up. His Honour regarded that as a sufficient effect on rights and interests, describing them as:
a real prejudice in a legal respect –
or exposed to a:
possibility not previously existing of a deprivation of rights by the exercise of a discretionary power by another –
That particular description was cited with approval by Justice Mason in FAI Insurances at page 371 of the judgment. Or another phrase that he was using was:
subjecting them to a new hazard –
or placing them in a:
different and less secure legal position –
These are all phrases – the last one contributed to by Justice Menzies in the same case – which make the point, we submit, that where a legislative measure, as here, is triggered by a declaration and that legislative measure – namely, 83GD – creates a risk of liability for owners and occupiers of the place declared, exposing them to a new legal hazard not previously existing, then the presumption arises. It need only be that.
What we have sought to make clear – again, in our written submissions we refer to the well‑known case of Commissioner of Police and Tanos for this. Not for the oft‑cited proposition in Tanos, but for the facts in Tanos which have some echo here. I will perhaps explain that by identifying what our concerns are about this owner and occupier. We have listed them, up to a point, in our written submission at paragraph 44, and, in our respectful submission, we can add to the considerations that appear there.
These considerations, in every respect, not only can one say in a general way as the Court of Appeal certainly did at paragraph 109 of its judgment, that there is an interference with the rights and enjoyment of property by this declaration. One can identify those interferences more particularly in the way that we have in our written submissions at paragraph 44, to which we would add this. If, for example, the owner and occupier discovers that a known participant has entered the place, they would also be put at risk of committing an offence, either because there is an offence of assisting an offender should they try to encourage the participant to leave, or the offence of encouraging other participants to enter if they allow the participant to stay.
Those offences appear in the Criminal Law Consolidation Act, respectively, at sections 241, assisting an offender, and 267, aiding and abetting an offence. In addition to that, the police force has powers of search and seizure, and of entry, under section 67 of the Summary Offences Act. One can imagine in order to police a declared place, there would be some police presence that would be examining those who are coming in; and there would always be a question as to whether those who are coming in, who are examined and, perhaps, identified as participants, are connected with the owner or occupier in a way which would create a liability, or the risk of liability for the owner or the occupier.
The matters that remain, if the Court pleases, deal with the displacement of the presumption. We are happy in that respect to rely on the written submissions that we have made and our outline from paragraphs 12 onwards. We would probably reserve the further submissions that are put against us for reply, if needed. The only matter that we would want to observe in that respect, if the Court pleases, is in relation to point 15, where it is put against us that, because the 2015 Schedule Regulations did not displace the presumption – because they were made by the Parliament and therefore could not attract it – that that, in some way, provides an inference that it was not intended that procedural fairness should apply to a regulation . . . . . made by the Executive.
Your Honours will understand that our submission in that respect has been the two that do not connect in any kind of way at all. But my learned
friend Mr Jacobi referred to the Second Reading Speech of the Attorney-General, volume 6. In particular, at page 1881, where the Attorney had said that the purpose of making, by act of Parliament, the first set of regulations in the Schedule was to avoid judicial review. And that would be an explanation which is opposite to that which is contended for. One can understand not only avoid judicial review in relation to procedural fairness, but avoid judicial review on the basis that the Parliamentary schedule contained a list.
Of course, section GA(2) requires each declaration to be singular. But here is a whole list of them, which, if they were regulations, would be invalid. So, they have been enacted by the Parliament in order to avoid that, and a general need to avoid judicial review explains also why there cannot be any connection between, on the one hand, of there having been no procedural fairness for the Schedule regulations, but still being procedural fairness for the particular regulations.
May it please the Court.
KIEFEL CJ: Thank you, Mr Wells. Yes, Mr Solicitor.
MR WAIT: Thank you, your Honour. I will, obviously, start with ground 1. The respondent says that it is very important, in considering ground 1, to carefully delineate between the consolidated regulations as they were made by the amending Act, the individual Cowirra Regulations, and then the Amended Consolidated Regulations made under the Legislation Revision and Publication Act.
I will not take the Court to the consolidated regulations, but you will be familiar because my friend Mr Wells has taken your Honours to them – that the amending Act contained the original consolidated list. No challenge was made to that list because the source of the power to make that regulation was from the amending Act. In fact, section 12 of the amending Act expressly said that the list contained in the original consolidated regulation was not subject to the rule that the regulation would be placed before Parliament in accordance with the Subordinate Legislation Act. So, it expressly excluded that requirement and that, therefore, took it immediately outside the operation of section 83GA(2). So, there was no challenge to the consolidated regulation.
Turning to the Cowirra Regulations, themselves, I will turn very briefly to those. They are in the supplementary book at volume 1, tab 12 and tab 13. The only thing I want to note with respect to the individual Cowirra Regulations is that you will see on the second page of each of the regulations it expressly notes that the regulation was made by the Governor with the advice and consent of the Executive Council on 17 December 2020. These regulations complied with the one place rule found in section 83GA(2) in that they only each relate to one place.
Before the Court of Appeal, the appellant challenged the validity of the Amended Consolidated Regulation on the basis that it offended the one place rule. The Amended Consolidated Regulation is at volume 1, in the supplementary bundle, tab 11. As my friend noted, but it is important for me to reiterate, your Honours will see – that is at page 67 of the supplementary bundle – that what we have called the “Amended Consolidated Regulation” has at the footer that it is:
Published under the Legislation Revision and Publication Act –
This regulation was challenged, and the respondent submitted, before the Court of Appeal, that the challenge, based on the one place rule of this regulation was misplaced. The reason why we said it was misplaced was because, unlike the Cowirra Regulations which were made by the Governor, pursuant to section 370 of the Criminal Law Consolidation Act, this regulation promulgated was merely revised and published by the Commissioner for Legislation of Revision and Publication, pursuant to the Legislation Revision and Publication Act.
Accordingly, this regulation – this Amended Consolidated Regulation – did not make a relevant regulation. There was never a requirement that it be laid before the Houses of Parliament in accordance with the Subordinate Legislation Act.
GAGELER J: What section is it of the Legislation Revision and Publication Act?
MR WAIT: Your Honour, it is made pursuant to section 7 of that Act, and that can be found at tab 8 of the supplementary bundle. Sorry, your Honour, it is made under section 5, I believe, where there is an ongoing program for the revision and publication of legislation. There is also ‑ ‑ ‑
GAGELER J: Sorry, where do we find that provision?
MR WAIT: That is at page 51 of the supplementary bundle. We have included the Legislation Revision and Publication Act.
STEWARD J: So, does that mean what you call the Amended Consolidated Regulations, is it a document which in and of itself has the force of law? It is a helpful consolidation.
MR WAIT: Your Honour, this is where the phrase convenient consolidated list arises, and that was the submission before the Court of Appeal. I need to now temper the use of that language and I think it is important to do so because I do not think, on reflection, the use of the phrase mere convenient list is helpful because the Legislation Revision and Publication Act does more than merely – it is not that it has no legal effect – that is not the case, clearly it does.
It serves the very important purpose of consolidating legislation in an orderly way; it makes the legislation very readable and digestible; it also has important judicial notice provisions that are very important in a practical sense found in section 9. And there is a similar provision in the Evidence Act – which is also in the supplementary bundle – page 65 of the supplementary bundle – that provides the judicial notice to be taken of Acts that are published or re‑published under the Legislation Revision and Publication Act.
STEWARD J: Perhaps I can ask a slightly more confined question. Does it have legal effect as a regulation?
MR WAIT: It can be given effect by operation of the Evidence Act, by virtue of taking judicial notice of it and of the similar provision found in section 9 of the Legislation Revision and Publication Act. If I, your Honour, can try to attempt to move away necessarily from the notion that it has no legal effect – which was an overly broad submission that I put to the Court of Appeal – and instead note that the critical distinction is that regulations that are revised and published under the Legislation Revision and Publication Act are not made by the Governor, they are revised and published by the Commissioner for revision and publication.
That hooks directly into the operation of section 83GA(2) because section 83GA(2) only relates to regulations that need to be laid before both Houses of Parliament pursuant to the Subordinate Legislation Act, and therefore a consolidation that is occurring under the Legislation Revision and Publication Act is simply not captured by the operation of the one place rule.
KIEFEL CJ: Are you saying that this is a technical preliminary point that the appellant attacked the wrong regulation?
MR WAIT: That was – the commencement of our submission before the Court of Appeal was to say that the appellant’s attack was misplaced because it was ‑ ‑ ‑
KIEFEL CJ: But the Court of Appeal actually dealt with the amending regulations. They dealt with the substance of the matter despite the question being posed by reference to the consolidated regulations, did they not?
MR WAIT: At paragraph 30, your Honour, you will see that the Court of Appeal shifts away from the Amended Consolidated Regulation and, instead, the shift then in the argument becomes well, if the Amended Consolidated Regulation did not make a prescription of a place by declaring a place, then the question arises, well, where did that occur? How did that occur? And the focus then shifted to the Cowirra Regulations to ask whether they impliedly declared.
KIEFEL CJ: Yes.
MR WAIT: There was a lot of energy devoted to that.
KIEFEL CJ: So, that is the true focus of this appeal, is it not?
MR WAIT: Your Honour, we say that the Court of Appeal were correct to determine that the Cowirra Regulation did impliedly declare. What we say, however, is that the real essence of the issue before the Court is not necessarily to locate that declaration within the Cowirra Regulation but instead to note that the declaring did not occur by the making of an Amended Consolidated Regulation.
The declaration of the place had occurred either because it was implicit in the Cowirra Regulation, as the Court of Appeal held, but there is also an alternative, which is that the declaration occurred by a reading together of the original consolidated Regulation together with the variation overlaid by the Cowirra Regulations and that that achieved a declaration of a proscribed place.
KIEFEL CJ: But that is not how the Court of Appeal approached it.
MR WAIT: No, it is not, your Honour, and so, it is important, therefore, that I - - -
KIEFEL CJ: You have no notice of contention.
MR WAIT: No. We have not filed a notice of contention, your Honour. We say this is consistent with the underlying thrust of our case all along, which was to say these Amended Consolidated Regulations are not doing the making of a regulation, that has occurred earlier and therefore, there is no effective challenge to the consolidation.
KIEFEL CJ: Why should you not be confined to how the Court of Appeal have dealt with this matter? Because that is the way in which – the appeal has been brought on that basis.
MR WAIT: Your Honour, that is certainly the way that the Court of Appeal have addressed it. We do not accept that our case was ever confined so narrowly. However, that is certainly the way the Court of Appeal has addressed it and we do not step away from seeking to endorse the way that the Court of Appeal have discerned the implication.
KIEFEL CJ: But you want to put an alternative, wider argument in respect of which there is no notice of contention.
MR WAIT: Your Honour, it is true to say that there is no notice of contention, and it is true to say that – I suppose your Honour, I would say that our case was always that broad.
KIEFEL CJ: It is not reflected in the Court of Appeal’s judgement.
MR WAIT: No. It is not, your Honour. It is not reflected. I am afraid I cannot steer away from that, your Honour. Your Honour, I do, in fact, think that this is important to the resolution of the issue currently before this Court.
KIEFEL CJ: Well, it might be, from your perspective, but procedurally that is not how it has come to this Court and it is not the basis, as I would understand it, upon which the appellant has brought its appeal.
MR WAIT: Yes, your Honour, I accept that that is the case.
GLEESON J: Is this articulated in your written submissions?
MR WAIT: Your Honour, this is not. This is, to be frank, not clearly articulated in our written submissions. It is reflected in our oral outline that was filed only last night. Could I say, your Honours, there is a sense in which, in my submission, despite what I accept would be a criticism for this issue arising at very late notice, and I would have to own responsibility for that, for not crystallising the issue in this way ‑ ‑ ‑
KIEFEL CJ: Well, the position is, Mr Solicitor, as you would appreciate, there is no basis for you to argue on the alternative, wider basis without leave being granted to file an amended – to file a notice of contention out of time.
MR WAIT: Yes. Your Honour, on that basis, and can I say, on the basis not only of my client’s interests but also because, in my view, the submission that I do seek to advance is the proper resolution of the issue before the Court, I would seek that late leave, and I would apologise to the Court for making that application, but I would seek that late leave. Of course ‑ ‑ ‑
KIEFEL CJ: Are you able to articulate the notice of contention?
MR WAIT: I am. I certainly am, in substance, your Honour. In fact, the orders of the Court of Appeal ought to be upheld on the alternative contention that it was not necessary for the Cowirra Regulations to declare a place to be a prescribed place but, rather, it was merely necessary for the Cowirra Regulations to give effect to the declaration of a prescribed place when read together with the consolidated Regulations as originally enacted by the amending Act.
The submission that I would seek to advance in support of that is very short and is found in our oral outline, and it is simply that having shifted attention from the Amended Consolidated Regulation to a search for an implication in the Cowirra Regulation, in my submission, attention shifted away from the precise requirement found in section 83GA(2). If I can take the Court to section 83GA(2), it is ‑ ‑ ‑
KIEFEL CJ: I am afraid we are having a bit of difficulty following the argument.
MR WAIT: I can try to explain it by reference to the express terms of section 83GA(2).
KIEFEL CJ: Yes, I think you might need to.
GAGELER J: And does the argument have anything to do with this document issued under the Legislation Revision and Publication Act?
MR WAIT: Other than to note that that is a distraction, then, no, it does not.
KIEFEL CJ: That was a starting point, which the Court of Appeal put aside, but I think that is what you have effectively said. It realised that attention on that was misplaced and moved on to try to identify the substance of the true debate; and in doing so, it focused on the Cowirra Regulations. But you say that the point of declaration actually occurs at an earlier point, and the Cowirra Regulations merely give effect to it – merely give effect to an earlier declaration or implied declaration?
MR WAIT: My point, your Honours, is that there are three regulations here: one made by the Act, then you have got the individual Cowirra Regulations, and then you have got the published Regulations that do not.
KIEFEL CJ: Which we do not need to be concerned with.
GAGELER J: Which is the distraction, is it?
MR WAIT: It is, but I think the parties have perhaps been talking at cross‑purposes because my friends, in my submission, are, would, in a sense, seek to insert a fourth relevant version of regulations –
which is the varied effect of the original regulation as varied – and then say, now in substance we have a regulation; but in fact, we say there is no such further version of the regulations.
KIEFEL CJ: I am sorry, I do not understand the appellants to have said this at all and I think we are trying to understand what your notice of contention would seek to raise.
MR WAIT: Yes. Perhaps if I can do that by going to section 83GA(2), because it provides that:
Each regulation made under subsection (1) –
now, it does not say that declares a prescribed place – and is:
required to be laid before each House of Parliament . . . may only relate to . . . 1 place –
It says, “for the purposes of the definitions of . . . prescribed place”. We say that the Cowirra Regulations, even though they did so on one view, not implicitly declaring but by varying the original regulations as made – they were made for the purposes of the definitions of a prescribed place, and they were required to be laid before both Houses of Parliament, and they were.
And so, what we say is that the effect of the Cowirra Regulation read together with the earlier original regulation was to give effect to a declaration, but that the method by which that was achieved was by a regulation of variation; and so, it is not necessary to find within the Cowirra Regulations an implication, because it can be concluded that the ‑ ‑ ‑
STEWARD J: But then, the effect of that argument is that what is giving force to the prescription of this land is the Amended Consolidated Regulations, as amended by the Cowirra Regulations.
MR WAIT: Yes, your Honour, but that does not – that has been achieved ‑ ‑ ‑
STEWARD J: Which, by the way, was presumably what the draftsperson was intending.
MR WAIT: Yes, indeed. So, your Honour, if this is correct, then there was no drafting error. The drafter simply said, all I need to do is vary the existing regulation. He did so by a regulation that complied with subsection (2) and there was no need for a further regulation to be created.
STEWARD J: But that rather flips the argument you put below, though, which was it was not the Amended Consolidated Regulations that gave force to the prescription; rather, it was the Cowirra Regulation, and thus we got into this territory of trying to read implications into it. This is a justification of what the draftsperson thought he or she was doing.
MR WAIT: Yes, but in our submission, it is doing so without a breach of subsection (2) because ‑ ‑ ‑
STEWARD J: I understand the argument, but I just do not know whether the appellants have had proper notice of it.
KIEFEL CJ: You have outlined it. I think we should hear from the appellant in relation to your application.
MR WAIT: Yes, certainly.
KIEFEL CJ: Mr Wells, do you need any time to consider your position?
MR WELLS: I think we will, your Honour. We will still try to come to grips with what the substance of it and we think we need some time, but we are happy to do it over lunchtime.
KIEFEL CJ: Would it facilitate matters if the proposed notice of contention were put in writing?
MR WELLS: It would.
KIEFEL CJ: Can that be undertaken forthwith and provided to the Court?
MR WAIT: It can, yes, your Honour.
KIEFEL CJ: The Court will then adjourn until 1.30 pm and deal with the application.
MR WELLS: If the Court pleases.
KIEFEL CJ: The Court will adjourn until 1.30 pm.
AT 12.27 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 1.30 PM:
KIEFEL CJ: Mr Solicitor, we have received a copy of the proposed notice of contention. I take it that the point, simply put, is that the source of and the only declaration to be relied upon was that which appeared in the regulations originally made under the Amendment Act and that the Cowirra Regulations amended that, the regulations made under the amending Act, that is the point?
MR WAIT: Yes, your Honour.
KIEFEL CJ: We will hear from Mr Wells.
MR WAIT: Thank you.
KIEFEL CJ: What is your position, Mr Wells?
MR WELLS: May it please the Court. It is opposed. Can I invite the Court to take up the Court of Appeal’s reasons in the core appeal book at page 33. The substance of the notice of contention, we respectfully submit, is a late decision to change course.
KIEFEL CJ: I do not think that that is denied.
MR WELLS: No, we would still want to make ‑ ‑ ‑
KIEFEL CJ: In fact, I think that is entirely conceded.
MR WELLS: Yes, but it is a fairly dramatic change of course.
KIEFEL CJ: I think you only need to state that. I do not think you need to prove it, is really what I am saying, Mr Wells.
MR WELLS: If your Honour pleases. Paragraph 30, your Honours will see there that what was under discussion was in fact the question in the case stated. And the question in the case stated had asked whether Regulation 3 of the Schedule regulations, now purporting to contain the addition of the two Cowirra titles, was valid. And, of course, expressed in that way it really concealed two issues. That is, whether it was valid insofar as it contained the inserted certificates of title. And the second one, which was the one that was determined, was whether the Cowirra Regulations standing alone were valid. And that is the way in which question 1 was to be answered. Your Honours will see that from the last line of paragraph 30. And in the course of that discussion, the Court of Appeal recorded at line 3 paragraph 30:
However, the Solicitor-General . . . ultimately submitted that reg 3 of the consolidated principal regulations –
Can I pause there? The Court of Appeal was using that phrase to refer to the Schedule regulations as purportedly amended so as to contain in the parliamentary list the additional two certificates of title of the Cowirra land. Your Honours will see that from paragraph 23 where that is made clear. So, I read on:
submitted that reg 3 of the consolidated principal regulations did not make the necessary declarations in respect of the Cowirra Land.
Our understanding of the notice of contention is that the Solicitor-General now submits to the contrary.
KIEFEL CJ: As I understand, what is put is that the amending Act with the Schedule did not then declare with respect to Cowirra Lands, but when the Cowirra Regulations were made, read with that amending Act, that is when it took effect.
MR WELLS: I understand that to be the submission as my friend now puts it.
KIEFEL CJ: Yes.
MR WELLS: But that was the opposite of what was submitted by my learned friend at the hearing before the Court of Appeal.
KIEFEL CJ: Well, I do not think there is any doubt that this is a new argument, and your point is that it is contrary to how it was argued below.
MR WELLS: Yes, that is exactly the point, and your Honours will see that that is further highlighted in paragraph 31 where in the second line:
Critical to his argument that there been no breach of s 83GA(2) was the proposition that consolidated principal regulations –
We now know what that means:
despite their language, do not have the legal effect of declaring the places comprising the Cowirra Land to be prescribed places. Rather, this is the function of Cowirra regulations themselves.
Again, in our respectful submission, my learned friend seeks to put the reverse of that, and it was not contended before the Court of Appeal other than what appears here, and that was the basis upon which the matter was argued. Your Honours perhaps should also be aware that in the respondent’s written submissions, which appear in the submissions volume at paragraph 17, there is a footnote, footnote 11, which appears on page 7 of the submission. Your Honours will see in the middle of that long footnote appears this sentence or two:
The respondent did not, and does not, contend that the Amended Consolidated Regulation –
referring, of course, to the Schedule regulation as purportedly amended:
declares the Cowirra Land to be prescribed places. As such, the implications of non‑compliance with the rule in s83GA(2) was not the subject of submissions before the Court of Appeal.
So, again, it has been carried through in the written submissions before this Court that that is not the position that is adopted by the respondent. The contrary position is adopted. That is, the declaration is made in the Cowirra Regulations, which is the submission that we have come here to meet.
KIEFEL CJ: I would take it, Mr Wells, that if leave were granted by the Court, that an adjournment would be required by the appellant to meet the argument?
MR WELLS: If the Court were disposed to grant leave, we would need the opportunity to respond. If it were to be orally responded to, we would need an adjournment. But the alternative is to respond by ‑ ‑ ‑
KIEFEL CJ: An adjournment on the usual terms?
MR WELLS: Yes. But otherwise, the other possibility is responding in writing.
KIEFEL CJ: Yes. Mr Solicitor, do you have anything in response?
MR WAIT: Your Honour, I am reluctant because I do not want to be taken to be suggesting that there is not a lateness to the way that this point is now raised. There is, however, in paragraph 30 – my friend has taken the Court to – the Court of Appeal refers to the consolidated principal regulations. If your Honours go back about four pages to paragraph 13 of the Court of Appeal, it could be seen that the Court of Appeal there defines the principal regulations.
GAGELER J: Mr Wait, does this matter?
MR WAIT: Probably not, your Honour – no, your Honour. I am content to leave it at that.
KIEFEL CJ: The Court will adjourn to consider the course that it will take.
AT 1.38 PM SHORT ADJOURNMENT
UPON RESUMING AT 1.42 PM:
KIEFEL CJ: It is conceded that the point sought to be raised by the proposed notice of contention is raised for the first time now. It is made very late and following the completion of the appellants’ argument. It was not argued below. We are not persuaded that it has sufficient prospects of success to warrant the grant of leave. Leave to issue a notice of contention is refused.
MR WAIT: Thank you, your Honour. In that event, your Honours, we seek to – or we adopt the reasoning of the Court of Appeal about the implication to be discerned from the Cowirra Regulations and in our written submissions from paragraphs 18 to 27 we have essayed why we suggest that that reasoning is correct. I do not intend to take your Honours to those points, they have all been set out fully in writing, so I am content to move on to ‑ ‑ ‑
KIEFEL CJ: You are going to deal with the procedural fairness point.
MR WAIT: I do, and I will proceed immediately to that, your Honour.
KIEFEL CJ: Thank you.
GAGELER J: So, we ignore everything in your outline on ground 1, do we?
MR WAIT: No, I am sorry, your Honour. Everything up until point 6 in the oral outline is really addressing the new point.
GAGELER J: Okay.
MR WAIT: Points 1 to 5 are consistent, are certainly consistent, with the implied declaration case that we have sought to defend. So, I am therefore on my oral outline at paragraph 7 and, your Honours, there is, of course, we submit, a general presumption that where a repository of statutory power is bound or entitled to have regard to the interests of an individual then the power is conditioned by an obligation to afford procedural fairness. However, that presumption may, of course, be displaced.
GLEESON J: Should we be dealing with this ground if the appellant succeeds in ground 1?
MR WAIT: Your Honour, if the appellant succeeds on ground 1 then the relevant declarations would be invalid and it would not be necessary for the Court to address this ground. As to whether or not the Court in its discretion chooses to proceed to address this ground is a matter that we consider is a matter for the Court.
GAGELER J: Let us just play out how it would work. There would be a new regulation?
MR WAIT: Yes.
GAGELER J: There would be no procedural fairness afforded?
MR WAIT: Your Honour, my client remains of the view that procedural fairness is not required.
GAGELER J: You have got a decision of the South Australian Court of Appeal in your favour.
MR WAIT: Yes, indeed.
GAGELER J: There would be judicial review proceedings.
MR WAIT: Yes.
GAGELER J: The Court of Appeal would follow its earlier decision.
MR WAIT: Yes.
GAGELER J: Then there would be an application for special leave to appeal to this Court, on a ground on which special leave has already been granted in the current case.
MR WAIT: Yes. In terms of utility, I cannot speak against what your Honour puts. Whether or not the discretionary powers reposed in the Governor are conditioned by an obligation to provide procedural fairness, depend upon a variety of conditions including statutory text, the interest effected and the peculiar character – as Justice Mason referred to it in FAI v Winneke – of the chosen repository.
If we turn, first, to the statutory text – and that is paragraph 8 of our oral outline – the primary textual feature that the respondent relies upon is the broad scope of the regulation‑making power found in section 370 of the CLCA. That is a power that is not conditioned on a factual or status satisfaction prerequisite. It is a broad, general regulation‑making power. Whilst that consideration is not determinative, it does weigh as a feature in support of the absence of a duty to afford procedural fairness. The appellants doubt the relevance of the factor but, in our submission, they fail to address the various authorities that are set out at paragraph 8 of our oral outline which all tend to support that proposition. I do intend to come to at least one of those in the course of my oral submissions.
There are some other contextual indicators that the respondent relies on, including the statutory history of the scheme and the role of parliamentary oversight. Those are set out in paragraphs 33 and 35 of our written submissions and I am content to rely on our written submissions on those issues.
If I can turn – what I anticipate is really the nub of the issue – to the question of the interests that are affected by the exercise of the power. In analysing the nature of interests relevantly affected, by declaring prescribed places for the purposes of section 83GA(1), the Court of Appeal drew upon a distinction that is recognised in the authorities between powers, the exercise of which turn upon considerations peculiar to the individual, and powers, the exercise of which turn upon matters of policy that are not so directed.
This distinction was recognised in the context of decision‑making by the Governor by Justice Mason in O’Shea v South Australia. If I could ask your Honours to take up volume 3, tab 29, the decision of O’Shea v South Australia, and turn to page 387 of the report. At about point 3 of the page, commencing with a short quotation for the Attorney General v Inuit Tapirisat Case, Justice Mason said:
it is said, Cabinet is a political institution primarily concerned with the “political, economic and social concerns of the moment” . . . So it is, but in some instances Cabinet is called upon to decide questions which are much more closely related to justice to the individual than with political, social and economic concerns. The fact that Cabinet ordinarily directs its attention to concerns of this kind is not a reason for denying the existence of a duty to act fairly in a matter which turns not on such concerns, but on considerations peculiar to the individual.
So, we see there a recognition that there will be some cases that turn on the question of matters of particular individual concern and some that will not.
That distinction is then also elaborated upon in the case of Comptroller‑General of Customs v Kawasaki by Justices Hill and Heerey and, by way of short‑cutting – taking the Court to a number of authorities – if I can take the Court to that decision, it will transgress a number of the relevant cases on the point. The Kawasaki Case is at volume 5, tab 38, and if I could go to page 238 of the report, which is page 1367 of the joint book of authorities. At the bottom of that page, we see in the joint judgment a reference to a number of cases where procedural fairness has been identified to attach. We can see that their Honours are noting the types of exercise of power involved – so a:
(declaration of premises as a disorderly house) . . .
(demolition of dilapidated building) –
over the page:
(warning off racecourses) –
and then, at the end of that list:
(deportation orders).
Just skipping a paragraph, the first full paragraph on page 239, their Honours say:
What this trend of authority leaves untouched is the clear distinction between statutory powers the exercise of which is necessarily directed towards the rights and expectations of individuals and those which affect the community at large or a section of it –
Now, in the next paragraph it is noted that the distinction between executive and legislative powers can be a distraction, and in the following paragraph it is noted that there are features which may point away from procedural fairness attaching. Then, in the following paragraph, we have set out a passage from Chief Justice Gibbs in Bread Manufacturers, who, in turn, refers to the passage from Salemi, and if I could just pause on the careful words of Justice Jacobs, where it is said he:
drew a distinction between –
I am sorry, I think this is Chief Justice Gibbs summarising Justice Jacobs:
drew a distinction between an act which directly affects a person individually, and one which affects him simply as a member of the public or a class of the public –
Now, I think there is an important point of distinction here, which is the notion of a class is not really answered by simply the size of the class or its scope, but the question is whether the power is being exercised in a way that picks out the individual as an individual or as a member of a class. So, there will be many exercises of statutory powers that have a very significant affect on an individual, but it still will not be the case that that the exercise of that power is directed to or concerned with the effect on that individual.
There are many, many examples. Now, if I could just go over to the next page, we see a passage from the Canadian case, and it is just one line at the end of the second, large, indented quote, where again we see a similar concept about the:
res or subject matter . . . not an individual concern or a right unique to the petitioner –
and in those circumstances procedural fairness will not attach. We can then see that the application of those principles at the bottom of the page and over to the top of the next page, and there is a quote that is set out in the decision of the Court of Appeal. But there is a number of observations that might be made then about the conclusion reached in this case. That is, that the Kawasaki Corporation’s commercial interests were clearly significantly affected by this decision and there is no suggestion from the reasoning of their Honours that Kawasaki could have had nothing relevant to say about the decision about whether or not to cancel the tariff concession. It is also not suggested that Kawasaki was one of a very large class of people that might have been affected by the decision, but the factual background to the judgment appears to suggest that there may have only been a limited number of importers of jetskis that were relevantly affected.
So, nonetheless, despite what appears to be a small class, a significant impact, and a potential for those impacted parties to say things relevant to the exercise of the power, it was nonetheless concluded that the power was not directed towards the concerns of those parties who might be affected by them, but was directed to a different policy objective.
The Court of Appeal recognised and, with respect, we say, correctly then applied this very distinction. They acknowledged that there is a question of qualitative assessment as to whether or not the effect of the exercise of power is intended to be focused individually or not. They also acknowledged that it is important to avoid arbitrariness in the sense that the exercise of statutory powers will frequently affect interests in the pursuit of a policy, yet there remains a separate question as to whether the focus of the exercise of that power in the pursuit of a policy is concerned with the individual effect or not.
Now, I will not step through all of the Court of Appeal’s reasoning, however, I just would like to bring the Court to two paragraphs of their Honours’ reasoning, commencing with paragraph 114 of the Court of Appeal. We can see here that midway through the paragraph there is a reference to the operation of the Division and, three lines in, referring to the various prohibitions:
They comprise a suite of responses to perceived threats of criminal activity not at an individual level, but at the level of a class of actor.
And then, over at paragraph 119, we see a similar conclusion:
The focus of regulation is not relevantly on the imputed ‘wayward’ actions of individuals, but rather on the identified social mischief that the legislature has determined that ‘criminal organisations’ pose.
Now, we say, with respect, that the Court of Appeal has recognised that distinction and worked through in a reasoned and careful way and sound way to a conclusion that, in this instance, the prescription of a place is not the target or is not the matter of concern of the exercise of the regulation‑making power and, your Honours, consistent with the reasoning of the Court of Appeal, we say that to start with the decision of whether or not to prescribe a particular place and to then say who is affected by that – the owner/occupier – is really to start the analysis at the wrong point for the purposes of this construction process.
We say here we should be guided by the purpose of the scheme which is agreed is a purpose of disruption criminal organisations. We then ask, well, how do we disrupt criminal organisations? We do so under the scheme by prescribing particular places that may be used by criminal organisations in their activities. There are then places that are prescribed, but the focus is not on the effect that that prescription might have on the owner/occupier; the focus is on how the prescription of the place might disrupt the activity. And we say the Court of Appeal recognised and applied that reasoning.
GAGELER J: Mr Solicitor, would giving notice to the owner or occupier and giving an opportunity to be heard in some way interfere with the legislative scheme, as you would have us understand?
MR WAIT: Your Honour, can I come back to that question, because I will not avoid it – I will come back to it, but it is something that I feel arises most pertinently under the consideration of the repository of the power and the role of the Governor and of Cabinet. So if I can defer the answer to that question, your Honour, I will come back to it.
If I can just try to emphasise that although it is the usual case, of course, that the exercise of powers that affect interests will attract procedural fairness – it may be relatively rare where you have cases where the exercise of powers does not attract procedural fairness, but it is by no means unheard of. The Court of Appeal referred to a number of examples, all of which we say are soundly based – in the Wasantha Case, in the Dighton Case about fishing and in the Kawasaki Case – where you have significant interests affected, where you have a closed or certainly discernible class who can be consulted, can be notified, and it cannot be said, for example, that the affected visa applicants in Wasantha from Sri Lanka could not have had anything relevant that might have borne upon the decision‑making, nor can it be said that a commercial fisher from Port Lincoln in South Australia who had been fishing for a very long time could have nothing to say about the merits or otherwise of prohibiting net fishing in a particular zone.
My friend puts against us that the focus is, and I hope I am not misrepresenting the submission, as I understand it, I think the submission is really that the focus is exclusively upon the effect of rights of the individual. And with respect, that is not right, because you can have the exercise of statutory powers that affect individuals very significantly. And yet, by virtue of analysing appropriately the proper focus of the power, it is determined that procedural fairness is not owed.
But, just to give one more example, there are, of course, many schemes where there will be items prescribed that will be a factum upon which a general law might operate – a firearm, for example, might be prescribed as a dangerous item. Now, prescribing a firearm, it may be there is a very small number of owners of a particular firearm; it may be that there is only one importer of a particular firearm. Once it is prohibited by regulation on a list, that is an exercise of power that, in one sense, directly affects those interests. But, in another sense, it should be understood that the exercise of power is not individually focused; but instead focused on a different question of policy.
At point 10 of my outline, noting here that the appellants seek to confine the obligation that they contend for to an obligation to provide procedural fairness to owner/occupiers, and suggests that that might overcome the conclusion reached by the Court of Appeal; that the focus of the regulation is on the identified social mischief of disrupting criminal organisations. We say, however, that merely narrowing the scope of the obligation that they contend for does not in any way disrupt or interfere with the reasoning of the Court of Appeal in discerning what the proper focus of the legislation was.
It might narrow the scope of the obligation, and we welcome, and in fact, of course, endorse the suggestion that the obligation does not extend to all participants, which was a significant issue that the Court of Appeal addressed. But, simply by confining it, that in itself, of course, does not change the nature of the focus of the exercise of the power in any way.
In reality, your Honours, the exercise of power here will routinely be undertaken on the basis of law enforcement information, and if we break down the contention that owner/occupiers are required to be afforded procedural fairness into two categories, as the Court of Appeal do in their reasoning, and we ask, well, of owner/occupier non‑participants, let us say a hotel owner, is a hotel owner who loses some business or may have some reputational effect on their business, is the hotel owner intended to be afforded procedural fairness? It seems very implausible, we would say, that such a business owner would be, particularly in circumstances where the prescribing of a place might increase the value of the place, or might increase the reputation of the business.
If you then turn to owner/occupier participants, well, again, as the Court of Appeal note, of course the effect on their rights is much more significant. We cannot shy, and do not shy away from that, but that effect on rights is entirely consistent with the disruptive purpose of the scheme and, we would say that it is inherently implausible that the Parliament considered that a common source of relevant information in prescribing a place for the purpose of disrupting a criminal organisation would be from the participants in that organisation.
STEWARD J: Just as I understand the argument, Mr Solicitor, you do not deny the need for procedural fairness for a third party owner/occupier in an applicable case, but your point is that when the owner/occupier is a participant, providing natural justice undermines the purpose of disrupting?
MR WAIT: No, your Honour, we do go further. We say that the implication does not arise with respect to owner/occupiers ‑ ‑ ‑
STEWARD J: We do not have to decide that today.
MR WAIT: No, you do not. All we need to decide for this case ‑ ‑ ‑
STEWARD J: We are talking about owner/occupiers who are participants ‑ ‑ ‑
MR WAIT: Yes, that is correct.
STEWARD J: ‑ ‑ ‑ or a company that is controlled by participants.
MR WAIT: Yes, your Honour, that is correct. But we would say that the effect on an owner/occupier who is not a participant – let us take the hotel owner – we would say that the impact on their rights and interests is truly of a peripheral nature. I mean, to take my firearms example again, it is like suggesting that a firearm retailer whose interests will be affected by the fact that there is ‑ ‑ ‑
STEWARD J: Well, we do not know that. I mean, it will depend upon the facts.
MR WAIT: Of course.
STEWARD J: I mean, there used to be certain pubs in Melbourne which were frequented by certain criminal elements and nothing else ‑ ‑ ‑
MR WAIT: Yes.
STEWARD J: ‑ ‑ ‑ and if you made that a prescribed place, they lose all their business.
MR WAIT: Yes.
GLEESON J: Or perhaps their licence.
MR WAIT: Indeed, your Honour, and so I accept that. The way that the Court of Appeal addressed that is to say that the nature of the interests of non‑participant owner/occupiers will be affected in such a vastly various and changeable way, but that also is suggestive that procedural fairness does not – it is so far removed from the sort of case where we are obviously used to procedural fairness attaching where we have an applicant in a structured process who has a right that they are seeking to vindicate and, of course, that is a classic case where procedural fairness applies.
But this is a factum sitting on the back of a scheme that is designed to disrupt activity. The focus of the scheme is not on owner/occupiers, the focus is on how will prescribing this place disrupt the activity of criminal organisations, not on whether that might lead to less beer being sold in a bikie pub.
JAGOT J: Given the criminal organisation has three parts which are disjunct, even the first of which is nothing to do with a declared organisation or a declared by regulation, it is just a question of fact, why, if you were looking at the question of duty, to whom is it owed, would you say, well, it is only owed to – if it is owed to an owner/occupier, not to an owner/occupier who is a participant in a criminal organisation, because that involves, then, a contestable question of fact under (a). There is just no logic to distinguishing between an owner/occupier who is a participant and an owner/occupier who is not a participant. That would be a very odd approach to the duty to me, which might suggest, look, it is owner/occupiers, you either owe it to owner/occupiers or you do not. Not that you owe it to some and not others.
MR WAIT: Indeed, your Honour, and as I understand the case against us it is now that the duty is owed to all owner/occupiers ‑ ‑ ‑
JAGOT J: Yes
MR WAIT: ‑ ‑ ‑ whose interests are sufficiently affected. Which ‑ ‑ ‑
JAGOT J: Well, no, no, all owner/occupiers. Because, by definition, their interests are sufficiently affected.
MR WAIT: Well, yes, I accept that your Honour, so I suppose the submission that we put – again, consistent with the Court of Appeal – is that if what the Court of Appeal, we say correctly, characterises the direct target of the scheme, being participants, are not owed procedural fairness, even where their interests are significantly affected, then if that is the case then it seems very unlikely that Parliament intended for a further removed category of owner/occupiers to be afforded procedural fairness.
JAGOT J: Well, that is – I mean, Bank Mellat was the same case in one sense. Only the bank was owed, not the people doing transactions or business, even though their interests may well be significantly affected, because that class truly was indeterminant.
MR WAIT: Can I then – that is a convenient moment just to come briefly to Bank Mellat and I do not necessarily need to take the Court – there is no particular passage that I want to go to, but I do want to make some observations that the power conferred that was considered in Bank Mellat is of a very different nature to the power here. It was a power not conferred on the government, it was a power conferred on the Treasury. The power set out in section 62, and just for reference it is at page 731 of the judgment, but:
“confer[s] powers on the Treasury to act against terrorist financing, money laundering . . .” in accordance with Schedule 7.
Now, as I have indicated here, here we have a bare – I am trying not to put too much in the label, but a broad regulation-making power that is not qualified by express limitation.
In the Bank Mellat Case, we have a relatively broadly‑cast power that needs to be exercised in accordance with Schedule 7 – and Schedule 7 is set out in volume 2, tab 21 – and I do not need to take the Court to it, other than to note that is over 30 pages long of prescription as to the manner in which the power conferred on the Treasury should be applied. So, we saying that is a far cry from the sort of scheme that we are considering here.
One of the express powers that is – “contemplated” may be the right concept in the Schedule – is expressly a power designed to prevent individuals from transacting with particular companies. So, just for a reference again, that is in clauses 9 and 13 found in the Schedule. There is, in that case, a very significant textual underlay from which a challenge might be mounted and obligations might be understood to arise that we say, is absent from the statute under consideration.
I will turn then, finally, to the repository of the power. The appellants say that the fact that the regulation‑making powers were reposed in the Governor is not a relevant consideration. We submit that that is inconsistent with decisions of this Court in FAI and O’Shea of the Full Court, and the Supreme Court of South Australia in the case of Watson, and we have provided the references. I am now on the last point in my hand‑up, at point – sorry, your Honours, I have lost my place – at point 11 – and we have the references there.
But if I could invite the Court to take up the FAI decision – which is volume 3, tab 25 – and at page 362 of the report, we see Justice Mason addressing whether or not procedural fairness attaches to the exercise of power of the Victorian Governor in this case. At about 10 lines in, page 362 of the report, 521 of the book, his Honour says:
The answer to this question depends on the nature and effect of the statutory power, the circumstances of its exercise and the fact that the power is reposed in the Governor –
He then goes on to refer to Chief Justice Barwick’s judgment in the case of Twist, where:
His Honour went on to observe that “if that is the legislative intention it must be made unambiguously clear” –
That is, the ousting of procedural fairness. Then, if I can skip about five lines, his Honour, at about point 5 of the page, says, relating to the Governor:
Here, however, we are not so much concerned with the question whether the general rule has been displaced, as with the question whether it applies at all. As the Governor in Council is not usually described as a statutory authority it may be taken that the various enunciations of the general rule have not been formulated with the specific intention of including him within its sweep. Nonetheless . . . the question we have to determine is whether the rule should apply to the Governor . . .
Parliament has not specifically directed its attention to the question whether the rule is to apply or not, perhaps because it was thought that the general rule had no application to the Governor in Council.
If I might just pause there for a moment, it might also be assumed in this case that Parliament might not have turned its mind to procedural fairness in this regulation‑making power because it might have proceeded on the usual – what I can, I think, accurately describe as the usual position that exercises of the Governor, certainly of regulation‑making powers, are not subject to procedural fairness requirements. This is not a bright line proposition.
GAGELER J: Mr Solicitor, this case held that the Governor in Council had to afford procedural fairness, did not it?
MR WAIT: It did, your Honour, but it turned precisely, in my submission, on a conclusion that the exercise of the power was individually concerned, in the sense that I have been speaking to, with the interests of the insurer.
GLEESON J: Chief Justice Mason said only a few years later, that FAI v Winneke stood as:
authority for the proposition that the mere vesting of decision‑making authority in the Governor in Council is not a sufficient manifestation of intention to exclude the common law duty.
MR WAIT: And, your Honour, I am not for a moment, trying to suggest – I embrace that statement by the Chief Justice in O’Shea – I do not try to step away from it at all – we do not try to erect a boundary that says the Governor in Council is immune from judicial review on the grounds of procedural fairness, or that it is implausible, or it is highly unlikely that it will ever attach. What we say is it will look – you need to look very closely at whether the function is one of those individualised functions or not.
We also say, however, that the fact that the authority is reposed in the Governor, which, as O’Shea makes clear, in South Australia means not just the Governor on advice of a Minister but means the Cabinet, the fact that the substantive decision‑making is reposed in the Cabinet not only means that the starting point is that it is unusual, at least, for the Cabinet’s decision‑making to be subject to procedural fairness requirements – but the fact that the authority is reposed in the Cabinet tends to confirm the nature of the power in question as being a power that is not individually focused.
Your Honours, I certainly do not try to erect a bright line distinction here and say because of how it was conferred on the Governor, procedural fairness does not apply. That is not the submission. But if we go back to the words of Justice Mason, which I will not reread, but it seems that Justice Mason on page 362 is really saying the starting point is different. If there is a power conferred on the Governor, you would not lightly assume that procedural fairness attaches.
We then go on say in O’Shea the circumstance, which is obviously present in this case, that that substantive authority is conferred on the Cabinet makes that point even more strong. There is just a couple more passages that I wanted to go to quickly in O’Shea.
GAGELER J: What point are you making from O’Shea? Is it the one that you have already made about individual interests, or is there some other point you are trying to draw out of it?
MR WAIT: No, I do not need to take the Court to O’Shea, and I will not. I do just want to give the Court the references to the proposition that in South Australia where a power is reposed in the Governor, it is, in substance that is a decision of the Cabinet, and I can just do that by reference to the page numbers, which are pages 387 of Chief Justice Mason, 403 of Justices Wilson and Toohey, 414 of Justice Deane.
GAGELER J: Does that somehow mean that the Cabinet cannot be briefed with information about the procedure that has been followed up and to the point when a recommendation is made to it?
MR WAIT: It does not. So, it is not impossible for a Cabinet process to be amended so as to afford a procedural fairness obligation and if procedural fairness is obliged, then Cabinet can and will and does provide for a process that will afford procedural fairness.
GAGELER J: I mean, Cabinet might work differently in South Australia, but ordinarily there is a brief that is provided by the responsible Minister, and that will include information about whatever process has been followed to afford procedural fairness. That is it.
MR WAIT: The point we make is that FAI and O’Shea can really be distinguished because in both of those cases – in FAI you had a Minister who made the regulation by recommendation to the Minister, so you had an obvious person who could afford procedural fairness. In O’Shea you had a structure where the Parole Board conducted hearings, made a recommendation to the Cabinet – it is known to the world at large that there is a Cabinet submission going about the recommendation. That is part of the structure. So, either the Parole Board or a responsible Minister or somebody can provide procedural fairness.
Here, I do not go so far – I cannot and I do not strive to go so far as to say it would be impossible for Cabinet to do. But here it would be a departure from Cabinet’s usual confidential process for it to be required to go to an owner/occupier and say, we are considering making a regulation prescribing a place that you own, because ordinarily Cabinet would not be obliged to disclose to either the world at large or to an individual who might be affected the fact that they are contemplating the making of a regulation.
GAGELER J: This has an air of unreality. There would not be a two‑stage Cabinet decision‑making process. It would be the Minister in making a recommendation to Cabinet will ensure that certain processes are undertaken first.
MR WAIT: Yes. Your Honour, that perhaps comes – then brings me back to content, which is the implication that is sought to be drawn, the more meaningfully that can be met, the greater departure it requires from Cabinet’s ordinary process. So, if the owner is entitled to note the merits of Cabinet’s decision‑making – the things in the plus column, the things in the minus column, the adverse allegations that are contained – and to comment on all of those things, then that would be a very significant departure from normal Cabinet decision‑making. Therefore, I think it is suggested, well, an alternative might be to do no more than to note that Cabinet is contemplating the prescription of a place.
Now, that is a way of affording procedural fairness, up to a point, or to a level – I mean, it would not pass muster in many contexts, but it might be an implication drawn from the scheme. But our response to that is, the likely utility of a procedural fairness obligation that simply says, criminal organisation – participant in criminal organisation, we are considering declaring your property, your clubrooms, to be a prescribed place, without giving any further information or background, is unlikely to elicit a very meaningful procedural fairness response.
STEWARD J: Is that not a possibly important attribute of your case – that natural justice here would necessarily require the giving of an explanation of why and that may cause difficulties for all sorts of reasons, given the nature of this Act?
MR WAIT: It is, your Honour. That is certainly a limb of our case. The more meaningfully a procedural fairness obligation may be implied and then complied with, the greater the departure from the important rule of Cabinet confidentiality that is well understood.
KIEFEL CJ: But in this case, the possibility of premises being declared does not come out of the blue. It comes in the context of statutory provisions where the Hells Angels Motorcycle Club is already a declared organisation. That has consequences. And the consequences and what the basis for a prescription, a declaration of prescribed place, are to be found within the context of the legislation itself. So, why would you need, in terms of content, to say any more than in the background of this you being a declared organisation – Hells Angels being a declared organisation – the participants are thought to be members of that declared organisation, and they meet here; we are therefore considering declaring this to be a prescribed place. Why would you have to go any further than that?
MR WAIT: With respect, I certainly take your Honour’s point.
KIEFEL CJ: You might want to think about whether you want to argue against ‑ ‑ ‑
MR WAIT: Well, your Honour, despite the fact that the criminal organisation has already been declared and that is already an element of the scheme, there might still be pertinent and significant information before the Cabinet about why a particular place, why a particular event, especially poses a risk.
KIEFEL CJ: Do you want to argue for this?
MR WAIT: Well, I suppose, your Honour, my point is I am not arguing that there is some sort of – your Honour, I am saying that if there is an implication – just to be clear, I am saying if there is an implication of procedural fairness, it is the minimalist version that was discussed this morning, so that is certainly my submission.
KIEFEL CJ: That is your position?
MR WAIT: It is certainly my position. I guess what I am saying though is, in addition, the fact that that style of procedural fairness does not afford the usual usefulness of utility of affording procedural fairness and receiving meaningful responses tends to suggest that even the minimalist obligation ought not be implied in itself.
JAGOT J: But there would be all sorts of things an owner/occupier would know that Cabinet could not possibly know that may well be highly relevant to a decision, and I do not see a lack of utility at all.
MR WAIT: Your Honours, I think all I can say – and I will try not to be repetitive – but when the focus is on the disruption, not on the effect that that disruption is going to have on an owner/occupier, then it is less obvious what is going to be discerned from the owner/occupier that is going to be relevant. I cannot say that there is nothing that could be said that could be relevant. But as the quote from Justice Brennan set out at the start of the Court of Appeal’s reasoning says, it is usually a presumption that if a decision‑maker is entitled to take something into account that is subject to a displacement, and, your Honours, I have attempted to explain why it should be displaced.
There are just some very short passages that I would like to take the Court to. I am sorry to delay things any further than I need. But if I could go to page 369 of FAI, and we see about four lines down – your Honour, I will not labour through this passage, I simply want to note that at page 370 Justice Mason does accept that the conferral of the function on the Governor is relevant to the question of whether or not procedural fairness applies.
Finally, I think I have made all of the other references I need to except, if I could, make one last reference to paragraph 91 of the reasoning of Chief Justice Doyle in Watson v South Australia. In that passage his Honour refers to ‑ ‑ ‑
JAGOT J: Sorry, what page? I just missed the page.
MR WAIT: Sorry, your Honour, it is – the case, which I do not need to go to, is Watson v South Australia, it is behind tab 46 and it is paragraph 91. There, Chief Justice Doyle, by reference to Jia Legeng observes that the conferral of a power on the Governor may affect the content of that power and how it is to be understood.
Unless the Court has any questions, they are the submissions for South Australia.
KIEFEL CJ: Thank you, Mr Solicitor. Do you have any reply, Mr Wells?
MR WELLS: Four short points, may it please the Court. With a clearing up of one misunderstanding, or at least a potential one. There should not be any misunderstanding that the Cowirra Land is a clubhouse of the Hells Angels. The case stated shows what the nature of that land is. It is open land and it has some development on it – that is, in the nature of some sheds and the like, and some places where the directors occupy, but it is open land. So we are not talking about clubhouses or fortresses or anything of that kind here. That is really just a factual matter to clear up.
So, for the four matters. First of all, on the question of information and Cabinet, it has been made clear, not only in O’Shea but in subsequent cases that there is a world of difference between information and disclosing the source of information. To provide an explanation for why the declaration of places under consideration does not require the disclosure of a source of information, it simply requires a disclosure of information which relates to the existence of an explanation of why it is being considered, and that is being considered in all manner of circumstances. VEAL – what we call VEAL anyway – is one example of that where that distinction is made. That is the first point.
The second point is my learned friend took the Court to a passage from Chief Justice Mason in O’Shea at pages 387 and 388 when putting submissions in relation to matters of policy as distinct from matters that are peculiar to an individual. If one reads on that page, towards the bottom of page 388 to 389, one finds the passage that was referred to by Mr Justice Milne in the South Africa Roads Board Case which says even in cases of policy, there may be circumstances where it is necessary to look at the facts. And once one is driven to factual circumstances, the fact that a policy is involved does not prevent the presumption from arising. That is our second point.
The third point is that my learned friend suggested that when one is talking about a class, one is not just talking about scope and size, but also whether it has been picked out or whether the measure has been directed to, or is concerned with. We contest that proposition. It is not supported by the cases. At one level of the spectrum, one will find a targeted individual or class of individuals, but it is to be noted that, for example, in Bank Mellat that the targeted bank was not the foremost subject of the direction. The direction was “to others”; that is, customers and those dealings with the bank. In the South African Roads Board Case, the road users were what were first and foremost, but there was a consequence which devolved distinctively and individually on the city council. So, the proposition, in our respectful submission, is not made good.
The final point, your Honours, really focuses on Kawasaki but the point is applied to some of the other cases my learned friend relies on. Could I trouble the Court, perhaps, to take up Kawasaki again. That is in volume 5, tab 38, and I am looking specifically at page 240 of the report. My learned friend had taken the Court to passages on the preceding pages but the ratio, in our respectful submission, is to be found in the passage which starts just after the middle of the page:
Duties of Customs are imposed on goods imported into Australia . . . The rate is the rate of duty in force when the goods are entered for home consumption . . . A TCO has the effect that, while it is in operation, a lower rate of duty, or a nil rate, is payable. So a TCO is of general application in the sense that, like the Customs Tariff itself, it applies to goods of a particular description regardless of the identity of the importer, the local manufacturer . . . suppliers, customers, employees or creditors –
That is the ratio, in our respectful submission. Likewise, it is the ratio of Wasantha’s Case, the decision of Justice Finn. It is the ratio of Dighton’s Case, the decision of Justice Williams in the South Australian Supreme Court.
A measure of general application will frequently burden members of the public in different ways, and to a greater or lesser extent, but that does not, in some way, affect the fact that it is a matter of general application as distinct from a measure that is apt to affect, distinctively, the rights and interests of an individual or a group. There is a difference between that and just simply the way in which a measure of general application may burden different members of the public as members of the public.
May it please the Court.
KIEFEL CJ: The Court reserves its decision in this matter and adjourns to 2.15 pm on Tuesday, 14 March.
AT 2.36 PM THE MATTER WAS ADJOURNED
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