Disorganized Developments Pty Ltd v South Australia

Disorganized Developments Pty Ltd and others appealed to the High Court of Australia against a decision of the Supreme Court of South Australia. The dispute concerned the validity of two regulations, the Criminal Law Consolidation (Criminal Organisations) (Prescribed Place—Cowirra) Variation Regulations 2020 (SA) and the Criminal Law Consolidation (Criminal Organisations) (Prescribed Place—Cowirra) (No 2) Variation Regulations 2020 (SA) (collectively, the "Cowirra Regulations"). These regulations purported to vary the Criminal Law Consolidation (Criminal Organisations) Regulations 2015 (SA) to include certain blocks of land at Cowirra, South Australia, as "prescribed places". The appellants, who were the owners and occupiers of this land, argued that the Cowirra Regulations were invalid.

The High Court was required to determine two primary legal issues. First, whether the Governor, in purporting to vary the list of prescribed places under section 370 of the *Criminal Law Consolidation Act 1935* (SA), had validly exercised the regulation-making power. This involved considering whether the Cowirra Regulations, which did not explicitly "declare" the Cowirra land to be prescribed places, met the requirements of the enabling legislation. Second, the Court considered whether the statutory power to make regulations prescribing places was conditioned by a presumption that procedural fairness must be afforded to the owners and occupiers of the land, and if so, whether this presumption was displaced by the *Criminal Law Consolidation Act 1935* (SA).

The Court reasoned that the power to make regulations under section 370 of the *Criminal Law Consolidation Act 1935* (SA) required a clear declaration of the places to be prescribed. The Cowirra Regulations failed to do this, instead purporting to vary existing regulations in a manner that did not constitute a direct declaration. Furthermore, the Court held that the presumption of a duty to afford procedural fairness to owners and occupiers of land when their property rights are significantly affected by regulation-making powers is a strong one, and it was not displaced by the terms of the *Criminal Law Consolidation Act 1935* (SA). The failure to provide notice or an opportunity to be heard to the appellants before their land was designated as a prescribed place rendered the Cowirra Regulations invalid.

Consequently, the High Court allowed the appeal, set aside the orders of the Supreme Court of South Australia, and declared that the Cowirra Regulations were invalid. The respondent was ordered to pay the appellants' costs.