Disorganized Developments Pty Ltd v The State of South Australia
[2022] SASCA 6
•10 February 2022
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
DISORGANIZED DEVELOPMENTS PTY LTD & ORS v THE STATE OF SOUTH AUSTRALIA
[2022] SASCA 6
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice Bleby)
10 February 2022
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - OTHER MATTERS - CASE STATED AND RESERVATION OF QUESTION OF LAW
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION
Questions reserved on a case stated, concerning the validity and, if valid, the scope of application of regulations purporting to declare certain land to be prescribed places within the meaning of Pt 3B, Div 2 of the Criminal Law Consolidation Act 1935 (SA).
Pt 3B, Div 2 was inserted into the CLCA by an amending Act, which also provided for the making of the Criminal Law Consolidation (Criminal Organisation) Regulations 2015 (the principal regulations). Reg 3 of the principal regulations declared certain lands to be prescribed places for the purposes of s 83GA of the CLCA.
Section 83GD(1) of Pt 3B, Div 2 makes it an offence for a participant in a criminal organisation to enter, or attempt to enter, a prescribed place. The second and third applicants are ‘participants’ in a ‘criminal organisation’, within the meaning of s 83GD(1). They are also directors of the first applicant, which is the registered proprietor of land at Cowirra, in South Australia (‘the Cowirra Land’).
On 17 December 2020, the Governor in Council made further regulations (the Cowirra (No.1) Regulations and Cowirra (No.2) Regulations), which purported to vary the principal regulations to add the Cowirra Land to the table of prescribed places under reg 3.
The applicants contend that there has been no valid declaration of the Cowirra Land as a prescribed place, as the varied reg 3 purports to declare more than one place to be a prescribed place, contrary to the requirement in s 83GA(2) of the CLCA. The applicants further contend that neither the Cowirra (No.1) Regulations nor the Cowirra (No.2) Regulations is valid, as procedural fairness was not accorded to the applicants prior to making those regulations, when there was an obligation to do so. Finally, they contend that even if the regulations were validly made, and the Cowirra Land was effectively declared to be a prescribed place, the prohibition under s 84GD of the CLCA should be construed not to apply to the owner or occupier of the Land or their authorised agents, whether or not those people are ‘participants’ in a criminal organisation.
On 26 July 2021, a judge stated a case, reserving the following questions for determination by the Court of Appeal:
1.Is r. 3 of the Criminal Law Consolidation (Criminal Organisation) Regulations invalid because it is beyond the power conferred by s 83GA(2) of the Criminal Law Consolidation Act 1935 (SA)?
2.Are the Cowirra (No.1) Regulations and the Cowirra (No.2) Regulations invalid by reason that there was an obligation to accord procedural fairness to persons adversely affected by their making, and procedural fairness was not accorded to either the First, Second and/or Third Applicants?
3.If the Cowirra (No.1) Regulations and the Cowirra (No.2) Regulations were validly made, and the Cowirra Land has been validly declared a ‘prescribed place’, does s 83GD of the CLCA apply to:
a. An owner of a private land which has been declared to be a ‘prescribed place’;
b. A director of a corporation which is the owner of such land; or
c. Any person (whether or not a participant in a criminal organisation) who is specifically authorised by the owner of such land to access the land for the purpose only of discharging upon the land a function or duty of the owner with respect to such land?
Held (by the Court):
1.Reg. 3 of the Criminal Law Consolidation (Criminal Organisation) Regulations is not invalid. However, it is ineffective in declaring the places comprising the Cowirra Land to be prescribed places. Each of the Cowirra regulations impliedly declares the place it describes to be a prescribed place for the purpose of s 83GA(1) of the CLCA.
2. No.
3. a. Yes, if the person is a participant in a criminal organisation.
b. Yes, if the person is a participant in a criminal organisation.
c. Yes, if the person is a participant in a criminal organisation.
Acts Interpretation Act 1915 (SA) ss 19(2), 14A(3), 22; Criminal Law Consolidation Act 1935 (SA) pt 3B div 1, s 83E; pt 3B div 2, ss 83GA (1)-(2), 83GC, 83GD (1)-(2), 83GE(1); pt 6A, ss 167(b), 168(1); Serious and Organised Crime (Control) Act 2008 (SA); Statutes Amendment (Serious and Organised Crime) Act 2015 (SA) s 13, cl 2 of sch 1; Subordinate Legislation Act 1978 (SA) ss 10(3)-(4); Civil Liability Act 1936 (SA) sub-s 20(2)(e)(ii); Legislation Interpretation Act 2021 (SA) ss 14(1), 19(1); Acts Interpretation Act 1901 (Cth) s 15AA; Interpretation of Legislation Act 1984 (Vic) s 35(a); Migration Act 1958 (Cth), referred to.
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; Mills v Meeking (1990) 169 CLR 214; South Australia v Lampard-Trevorrow (2010) 106 SASR 331; Lipman v Clendinnen (1932) 46 CLR 550; Aiken v Kingborough Corporation (1939) 62 CLR 179; Commissioner for Railways (NSW) v Cardy (1960) 104 CLR 274; Minister for Immigration and Citizenship v Haneef (2007) 163 FCR 414; Lee v NSW Crime Commission (2013) 251 CLR 196; Kioa v West (1985) 159 CLR 550; Bread Manufacturers of New South Wales v Evans (1981) 180 CLR 404; Civil Aviation Safety Authority v Boatman (2004) 138 FCR 384; McWilliam v Civil Aviation Authority (2004) 142 FCR 74; Lim Chin Aik v The Queen [1963] AC 160; Tasker v Fullwood [1978] 1 NSWLR 20; Barker v The Queen (1983) 153 CLR 338; Ilic v City of Adelaide (2010) 107 SASR 139; Queensland Medical Laboratories v Blewett (1988) 84 ALR 615; Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648; King Island Council v Resource Planning and Development Commission [2007] TASSC 42; Botany Bay Council v Minister of State for Transport and Regional Development (1996) 66 FCR 537; Wasantha v Minister for Immigration & Multicultural Affairs [1999] FCA 1158; Dighton v State of South Australia (2000) 78 SASR 1; New Zealand Licensed Victuallers [1957] NZLR 167; De Silva v Minister for Immigration and Multicultural Affairs (1998) 89 FCR 502; MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441; Comptroller-General of Customs v Kawasaki (1991) 32 FCR 219; Salemi v MacKellar (No 2) (1977) 137 CLR 396; North Australian Aboriginal Justice Agency v Northern Territory (2015) 256 CLR 569; Leeth v The Commonwealth (1992) 174 CLR 455; International Finance Trust Co Ltd v Crime Commission (2009) 240 CLR 319; Wainohu v New South Wales (2011) 243 CLR 181; Condon v Pompano Pty Ltd (2013) 252 CLR 38; Dickason v Dickason (1913) 17 CLR 50; Russell v Russell (1976) 134 CLR 495; FAI Insurances Ltd v Winneke (1982) 151 CLR 342; South Australia v O’Shea (1987) 163 CLR 378; Watson v South Australia (2010) 208 A Crim R 1, considered.
DISORGANIZED DEVELOPMENTS PTY LTD & ORS v THE STATE OF SOUTH AUSTRALIA
[2022] SASCA 6Court of Appeal – Civil: Livesey P, Doyle and Bleby JJA
THE COURT: The questions reserved on this case stated concern the validity and, if valid, the scope of application of regulations purporting to declare certain land to be prescribed places within the meaning of Part 3B, Division 2 of the Criminal Law Consolidation Act 1935 (SA) (CLCA).
Background
Section 83GD(1) of the CLCA, which falls within Part 3B, Division 2 of that Act, is one of a suite of provisions aimed at disrupting the activities of people who meet the definition in that Act of a ‘participant’ in a ‘criminal organisation’. It provides:
(1) Any person who is a participant in a criminal organisation and enters, or attempts to enter, a prescribed place commits an offence.
The definition of ‘criminal organisation’ for the purposes of the Division is set out in 83GA(1) of the CLCA:
criminal organisation means—
(a) an organisation of 3 or more persons—
(i)who have as their purpose, or 1 of their purposes, engaging in, organising, planning, facilitating, supporting, or otherwise conspiring to engage in, serious criminal activity; and
(ii)who, by their association, represent an unacceptable risk to the safety, welfare or order of the community; or
(b) a declared organisation within the meaning of the Serious and Organised Crime (Control) Act 2008; or
(c) an entity declared by regulation to be a criminal organisation;
‘Participant’ is defined as follows:
participant, in a criminal organisation, means—
(a) if the organisation is a body corporate—a director or officer of the body corporate; or
(b) a person who (whether by words or conduct, or in any other way) asserts, declares or advertises his or her membership of, or association with, the organisation; or
(c) a person who (whether by words or conduct, or in any other way) seeks to be a member of, or to be associated with, the organisation; or
(d) a person who attends more than 1 meeting or gathering of persons who participate in the affairs of the organisation in any way; or
(e) a person who takes part in the affairs of the organisation in any other way,
but does not include a lawyer acting in a professional capacity;
Section 83GA(1) also defines ‘prescribed place’:
prescribed place means a place declared by regulation to be a prescribed place;
Section 83GA(2) then places a restriction on the scope of regulations declaring a place to be a prescribed place:
(2) Each regulation made under subsection (1) for the purposes of the definitions of criminal organisation, prescribed event or prescribed place and required to be laid before each House of Parliament in accordance with the Subordinate Legislation Act 1978 may only relate to 1 entity, 1 event or 1 place (as the case may require).
The Hells Angels motorcycle club is a declared organisation within the meaning of the Serious and Organised Crime (Control) Act 2008. By that device, it is a ‘criminal organisation’ as defined. The second and third applicants are members of the Hells Angels. By reason of those memberships and the definition of ‘participant’ in s 83GA(1), they are participants in a criminal organisation within the meaning of s 83GD(1).
The second and third applicants are the directors of the first applicant, Disorganized Developments Pty Ltd (DDPL). The second applicant holds four of nine shares in DDPL. The third applicant holds the other five.
On 13 October 2007, DDPL became the registered proprietor of the following land:
·the whole of the land comprised in Certificate of Title Register Book Volume 5995 Folio 665 comprised of allotments 50, 51 and 53 in Deposited Plan 73326; and
·the whole of the land comprised in Certificate of Title Register Book Volume 5880 Folio 413 comprised of allotment 555 in Deposited Plan 54607;
(the Cowirra Land).
Division 2 of Part 3B of the CLCA, comprising ss 83GA to 83GG, was inserted by the Statutes Amendment (Serious and Organised Crime) Act 2015 (the amending Act).
Section 13 of the amending Act further provided:
13—Making of Criminal Law Consolidation (Criminal Organisations) Regulations 2015
(1)Schedule 1 has effect to make the Criminal Law Consolidation (Criminal Organisations) Regulations 2015 (set out in Schedule 1) as regulations under the Criminal Law Consolidation Act 1935.
(2)To remove any doubt, it is declared that the Criminal Law Consolidation (Criminal Organisations) Regulations 2015, on the commencement of Schedule 1, stop being a provision of this Act and become regulations made under the Criminal Law Consolidation Act 1935.
Clause 2 of Schedule 1 to the amending Act declared the Hells Angels, among a number of motorcycle clubs, to be a criminal organisation. Clause 3 then declared each of a number of places to be prescribed places, in the following manner:
3—Places declared to be prescribed places—section 83GA
(1) For the purposes of the definition of prescribed place in section 83GA(1) of the Act, the whole of the land contained in each certificate of title listed in the first column of the table below, under the heading “Prescribed place”, is declared to be a prescribed place.
(2) Text set out in italic type in the second column of the table below, under the heading “Description”, is a description for convenience purposes only which may relate to the whole or part of the prescribed place and is not to be taken to define the prescribed place.
Prescribed place Description
Certificate of title […] [Address]
The Cowirra Land was not listed in the table at the time the contents of Schedule 1 came into force as the Criminal Law Consolidation (Criminal Organisations) Regulations 2015 (the principal regulations).
On 17 December 2020, the Governor in Council made the following regulations:
·Criminal Law Consolidation (Criminal Organisations) (Prescribed Place–Cowirra) Variation Regulations 2020 (the Cowirra (No.1) Regulations); and
·Criminal Law Consolidation (Criminal Organisations) (Prescribed Place–Cowirra) (No 2) Variation Regulations 2020 (the Cowirra (No.2) Regulations);
(together, the Cowirra regulations).
Regulation 3 of each of the Cowirra regulations was in the same terms:
3 – Variation provisions
In these regulations, a provision under a heading referring to the variation of specified regulations varies the regulations so specified.
Part 2 of each then comprised reg 4 only, in the following form:
Part 2 – Variation of Criminal Law Consolidation (Criminal Organisations) Regulations 2015
4 – Variation of regulation 3 – Places declared to be prescribed places (by certificate of title) – section 83GA
Regulation 3(2), table – after its present contents insert:
Certificate of title […] [Address]
In this form, the Cowirra (No.1) Regulations inserted:
Certificate of title 5995/665 591 Kenny Road, Cowirra
Similarly, the Cowirra (No.2) Regulations inserted:
Certificate of title 5880/413 Lot 555 Kenny Road, Cowirra
By this device of ‘variation regulations’, the principal regulations were (purportedly) varied to add the Cowirra Land to the table. The applicants’ primary case is that the Cowirra regulations did not validly achieve the declaration of either place as a prescribed place for the purposes of s 83GA of the CLCA. The applicants’ arguments in respect of each place are the same.
On 26 July 2021, Bampton J stated a case reserving the following questions for determination by the Court of Appeal:
1. Is r. 3 of the Criminal Law Consolidation (Criminal Organisation) Regulations invalid because it is beyond the power conferred by s 83GA(2) of the Criminal Law Consolidation Act 1935 (SA)?
2. Are the Cowirra (No.1) Regulations and the Cowirra (No.2) Regulations invalid by reason that there was an obligation to accord procedural fairness to persons adversely affected by their making, and procedural fairness was not accorded to either the First, Second and/or Third Appellants [applicants]?
3. If the Cowirra (No.1) Regulations and the Cowirra (No.2) Regulations were validly made, and the Cowirra Land has been validly declared a ‘prescribed place’, does s 83GD of the CLCA apply to:
a.An owner of a private land which has been declared to be a ‘prescribed place’;
b.A director of a corporation which is the owner of such land; or
c.Any person (whether or not a participant in a criminal organisation) who is specifically authorised by the owner of such land to access the land for the purpose only of discharging upon the land a function or duty of the owner with respect to such land?
While the third question is premised on the validity of the Cowirra regulations, the scope of application of these regulations necessarily informs whether, and if so to what extent, it was necessary to give procedural fairness to persons adversely affected by their making. For this reason, it is appropriate to answer the substance of Question 3 as a matter of construction, prior to answering Question 2.
1.Is r. 3 of the Criminal Law Consolidation (Criminal Organisation) Regulations invalid because it is beyond the power conferred by s 83GA(2) of the Criminal Law Consolidation Act 1935 (SA)?
As explained above, the principal regulations were made by s 13 of the amending Act. That Act then declared that on the commencement of Schedule 1, those regulations stopped being a provision of the amending Act and became regulations made under the CLCA. The combination of the source of these regulations and the deeming facility in s 13 allowed reg 3 to declare several places to be prescribed places all at once. The restriction in s 83GA(2), that a regulation made under subsection (1) for the purpose of the definition of ‘prescribed place’ may only relate to one place, did not apply to this initial table.
The Cowirra regulations vary the principal regulations by inserting the descriptions of the two places comprising the Cowirra Land into the table. The applicants’ argument is straightforward. Neither of the Cowirra regulations purports to declare the place with which it deals to be a prescribed place. The only express ‘declaration’ of these places as prescribed places occurs in the (now consolidated) principal regulations. That declaration was made when the description of the Cowirra Land was inserted into the table. That was when the regulation was ‘made’ for the purpose of s 10 of the Subordinate Legislation Act 1978 (SA).
The applicants then submit that this declaration is invalid, as it does not conform to the restriction in s 83GA(2). It declares more than one place to be a prescribed place. By contrast, while each of the Cowirra regulations deals only with one place, neither answers the description of a regulation that declares the land in question to be a prescribed place. Each of the Cowirra regulations merely purports to vary the regulation that has the function of declaring.
The first proposition on which the applicants’ argument relies is, therefore, that insofar as the consolidated principal regulations purport to declare the places comprising the Cowirra Land to be prescribed places, they are invalid. In Project Blue Sky v Australian Broadcasting Authority, the plurality said:[1]
An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue.
(Footnote omitted)
[1] Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at [91].
The phrasing in s 83GA(2), ‘Each regulation … may only relate to 1 entity, 1 event or 1 place (as the case may require)’ is mandatory in its language. The balance of the sub-section relates this requirement directly to the obligation under sub-s 10(3) of the Subordinate Legislation Act 1978 to lay the regulation before each House of Parliament. It is apparent from this context that the purpose of the requirement is to ensure that each declaration is exposed separately to scrutiny by Parliament and potential disallowance.
However, sub-s 10(4) of the Subordinate Legislation Act1978 provides that a failure to have a regulation laid before both Houses of Parliament in accordance with sub-s 3 does not affect the operation or effect of that regulation. It follows that sub-s 10(3), at least, is ‘directory’ rather than ‘mandatory’ in the historical sense described in Project Blue Sky:[2]
Traditionally, the courts have distinguished between acts done in breach of an essential preliminary to the exercise of a statutory power or authority and acts done in breach of a procedural condition for the exercise of a statutory power or authority. Cases falling within the first category are regarded as going to the jurisdiction of the person or body exercising the power or authority. Compliance with the condition is regarded as mandatory, and failure to comply with the condition will result in the invalidity of an act done in breach of the condition. Cases falling within the second category are traditionally classified as directory rather than mandatory.
(Footnotes omitted)
[2] Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at [92].
That a failure to comply with s 10(3) does not result in invalidity raises the possibility that despite its mandatory language, a failure to comply with s 83GA(2) would not necessarily result in invalidity of the regulation. The ‘1 place’ requirement is manifestly linked to the ability of Parliament to disallow the regulation without compromise to the declaration, by regulation, of any other place.
In rejecting the distinction between ‘mandatory’ and ‘directory’ as classifications, rather than as conclusions, the High Court in Project Blue Sky said:[3]
A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid …. In determining the question of purpose, regard must be had to “the language of the relevant provision and the scope and object of the whole statute”[4].
[3] Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at [93].
[4] Tasker v Fullwood [1978] 1 NSWLR 20 at 24.
Given that a failure to table the regulation at all would not result in invalidity, there is at least a question as to whether a failure to comply with the ‘1 place’ requirement, which serves that purpose, should have such a result. However, the Solicitor-General, appearing for the respondent, ultimately submitted that reg 3 of the consolidated principal regulations did not make the necessary declarations in respect of the Cowirra Land. That is, rather than the regulation being invalid, insofar as it purported to declare the Cowirra Land to be a prescribed place, it was simply ineffective. This essentially amounted to a concession that compliance with s 83GA(2) is necessary for a valid declaration. Question 1 should be understood to ask, ‘Has there been a valid declaration of the places comprising the Cowirra Land as prescribed places?’
The Solicitor-General frankly conceded that the drafting of the Cowirra regulations was ‘sub-optimal’. It was a concession well made. Critical to his argument that there had been no breach of s 83GA(2) was the proposition that the consolidated principal regulations, 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 the Cowirra regulations themselves. Each of those regulations having each made such a declaration, each then amends the consolidated regulations to reflect this. The consolidated principal regulations then simply provide a convenient consolidated list, notwithstanding their deployment of the language of declaration.
The effect of the Cowirra regulations is a matter of construction. The primary textual indicator that speaks against the construction urged by the Solicitor-General is that each of the Cowirra regulations, on its terms, simply purports to vary the principal regulations. In circumstances where this is made express, the language of declaration in the consolidated principal regulations that are thereby varied would seem to provide support to the view that the Cowirra regulations do not constitute declarations themselves.
The first step in the argument against the persuasiveness of these textual indicators is that in order to declare something to be the case, the word ‘declare’ is not indispensable to the text. A declaration is, here, a matter of legal effect. The requirement that a place be ‘declared by regulation to be a prescribed place’ requires merely that there be a statement of regulatory intent that the place be a prescribed place. To the extent that the requirement to ‘declare’ this intention connotes some level of formality associated with the statement, that will be inherent in that statement being made through the mechanism of a regulation.
Secondly, it is necessary to identify the posited construction and in particular, its legal effect. The construction urged by the Solicitor-General is that notwithstanding their use of the language of ‘variation’, each of the Cowirra regulations in any event impliedly declares the place with which it is concerned to be a prescribed place for the purpose of s 83GA(1).
This submission recognises that the text of each regulation appears only to vary the principal regulations. Where that textual device is demonstrably insufficient for the task, the question is whether, having regard to its context and manifest purpose, the regulation in each case nonetheless impliedly makes a declaration for the purpose of s 83GA(1).
Entertaining this submission requires having regard to s 14(1) of the Legislation Interpretation Act 2021 (SA). This provides:
14—Interpretation best achieving purpose or object
(1) In interpreting a provision of an Act or a legislative instrument, the interpretation that best achieves the purpose or object of the Act or the instrument (whether or not that purpose or object is expressly stated in the Act or instrument) is to be preferred to any other interpretation.
The predecessor to this section, s 22 of the Acts Interpretation Act 1915 (SA) and its interstate and Commonwealth equivalents (notably, s 15AA of the Acts Interpretation Act 1901 (Cth)) have been the subject of consideration generally when an ambiguity arises in the text and it is necessary to choose between competing interpretations. However, that is not a necessary condition for their invocation. In Mills v Meeking,[5] when considering s 35(a) of the Interpretation of Legislation Act 1984 (Vic), Dawson J said:[6]
However, the literal rule of construction, whatever the qualifications with which it is expressed, must give way to a statutory injunction to prefer a construction which would promote the purpose of an Act to one which would not, especially where that purpose is set out in the Act. … The approach required by s. 35 needs no ambiguity or inconsistency; it allows a court to consider the purposes of an Act in determining whether there is more than one possible construction. References to the purposes may reveal that the draftsman has inadvertently overlooked something which he would have dealt with had his attention been drawn to it and if it is possible as a matter of construction to repair the defect, then this must be done. However, … [s]ection 35 requires a court to construe an Act, not to rewrite it, in the light of its purposes.
[5] (1990) 169 CLR 214.
[6] Mills v Meeking (1990) 169 CLR 214 at 235.
In the present case, there is no ambiguity in the text of each of the Cowirra regulations. Each expressly purports to vary the principal regulations by reg 3:
In these regulations, a provision under a heading referring to the variation of specified regulations varies the regulations so specified.
That lack of ambiguity does not prevent a purposive approach to construction of the regulations that takes account of all contextual matters.
As identified above, the first of these contextual matters is that the consolidated principal regulations, as varied, do not validly declare the Cowirra Land to be a prescribed place. The variation is clear, and it is done; but it has no legal effect. The consolidated principal regulations do not make the intended declarations.
The purposive approach to construction of the Cowirra regulations on which the Solicitor-General relies does not look to rewrite the clearly expressed reg 3. The question is not whether the Cowirra regulations can be construed as making a declaration of prescribed land instead of varying the principal regulations. It is whether they can be so construed in addition to doing so. That is a question of whether, notwithstanding the apparent folly of the variation exercise (other than, perhaps, to provide a convenient consolidated list) each of the Cowirra regulations impliedly declares the place with which it deals to be a prescribed place.
The matters pointing to the achievement of that desired legal effect by implication are as follows. First, the regulation in each case manifestly achieves the purpose in s 83GA(2) that individual declarations must be capable of singular disallowance by Parliament. Each complies with the proscription by identifying a single place.
Secondly, each manifests a purpose to declare a place to be a prescribed place for the purpose of s 83GA(1). That purpose is expressed in the heading of reg 4 in each case:
4-Variation of regulation 3 – Places declared to be prescribed places (by certificate of title)-section 83GA
At the time of the hearing, the (now repealed) Acts Interpretation Act 1915 (SA) provided that headings were not part of an Act.[7] The Solicitor-General submitted that this heading nonetheless had utility as extrinsic material. However, following commencement of the Legislation Interpretation Act 2021 (SA) on 1 January 2022, headings are now part of an Act.[8] The heading to reg 4 in each case now directly expresses the legislative intention to declare each place to be a prescribed place.
[7] Acts Interpretation Act 1915 (SA) ss 19(2)(a) and 14A(3).
[8] Legislation Interpretation Act 2021 (SA) s 19(1).
This purpose is also manifested in the long title to the regulations, the short title prescribed in the same terms in reg 1 in each case, and the listing of the land by certificate of title and address.
The drafter was manifestly aware of the obligation in s 83GA(2), and constructed the two sets of Cowirra regulations accordingly. The question is whether it is reasonably open to conclude, taking a purposive approach to construction, that the elements of each regulation, identified above, operate impliedly to declare the land in each case to be a prescribed place.
The Solicitor-General submitted that where the alternative construction is that the Cowirra regulations have no legal function at all, a (reasonably open) construction that promotes the manifest purpose of the regulations should be preferred. The manifest, and indeed obvious, purpose of the regulations is to achieve (to use a neutral word) declarations of the Cowirra Land as prescribed places. They do this by identifying the Cowirra Land and announcing the purpose that they be declared to be prescribed places. They then (effectively in the same breath) amend the consolidated principal regulations to reflect those implied declarations.
The scheme, viewed objectively, is structured on the premise that declarations of prescribed places are required to be made separately. That premise is manifested in the existence of the separate Cowirra regulations. It is a necessary incident of that premise that the scheme recognises that new declarations of prescribed places cannot be made simply by amendments to the table in the principal regulations. In those circumstances, we are satisfied that notwithstanding the deficient text of the regulations comprising the scheme for declaration of new prescribed places, each of the Cowirra regulations declares the place with which it deals to be a prescribed place for the purpose of s 83GA(1) of the CLCA, by necessary implication.
We answer Question 1 in the following way:
Reg. 3 of the Criminal Law Consolidation (Criminal Organisation) Regulations is not invalid. However, it is ineffective in declaring the places comprising the Cowirra Land to be prescribed places. Each of the Cowirra regulations impliedly declares the place it describes to be a prescribed place for the purpose of s 83GA(1) of the CLCA.
3.If the Cowirra (No.1) Regulations and the Cowirra (No.2) Regulations were validly made, and the Cowirra Land has been validly declared a ‘prescribed place’, does s 83GD of the CLCA apply to:
a. An owner of a private land which has been declared to be a ‘prescribed place’;
b. A director of a corporation which is the owner of such land; or
c. Any person (whether or not a participant in a criminal organisation) who is specifically authorised by the owner of such land to access the land for the purpose only of discharging upon the land a function or duty of the owner with respect to such land?
For the reasons explained above, it is necessary to answer the substance of the issue of construction raised by Question 3, prior to answering Question 2.
The applicants’ challenge hinges on what they submit is a constructional choice posited by the word ‘enter’ in the prohibition contained in s 83GD of the CLCA. The choice presented is that it either means ‘going on’, such that the prohibition consequent on a declaration of a place as a prescribed place applies to all persons without distinction, or that it refers to an action undertaken by a person who is not the owner or occupier.
In support of the existence of the constructional choice, the applicants point to common law instances of the use of the word ‘enter’ that indicate entry as a trespasser, or by invitation or licence, rather than as simply ‘going on’ by the owner or occupier. To this end they referred to:
·Lipman v Clendinnen,[9] which was concerned with the classification, for the purposes of identifying duties of care, ‘of the capacities or characters in which persons enter upon premises occupied by others’;
·Aiken v Kingborough Corporation,[10] which similarly referred to capacities in which people entered properties for the purposes of identifying duties and standards of care; and
·Commissioner for Railways (NSW) v Cardy,[11] which deployed the language of ‘entering’ upon land for the purpose of identifying a trespasser.
[9] (1932) 46 CLR 550 at 555.
[10] (1939) 62 CLR 179.
[11] (1960) 104 CLR 274.
To these cases, the applicants added the language of s 20(2)(e)(ii) of the Civil Liability Act 1936 (SA), which similarly deploys the word ‘entry’ of persons onto premises in the context of listing relevant considerations in the establishment of an occupier’s liability.
In a similar vein, the applicants referenced other instances in the CLCA where the word ‘enter’ was used in respect of persons not entitled to be on the property, in particular, criminal conduct involving some form of trespass.[12]
[12] See, e.g., CLCA Part 6A, Serious criminal trespass.
This submission risks syllogistic fallacy, in that in the examples provided, the word ‘enter’ or one of its derivatives is necessarily deployed with respect to someone other than the owner or occupier who goes onto land, as that is the field of regulation under consideration. That is to say, while these examples do deploy the word ‘enter’ or its derivatives in application to a person not the owner or occupier, that deployment does not necessarily warrant general extrapolation so as to exclude the owner or occupier from the reach of the verb.
In any event, the force of the statutory examples within the CLCA relied on by the applicants tends to break down. For example, the offence of sacrilege is committed by a person who ‘breaks and enters…’.[13] Serious criminal trespass occurs where ‘a person enters… as a trespasser’, that is, without any right or authority.[14]
[13] CLCA s 167(b) (emphasis added).
[14] CLCA s 168(1) (emphasis added); Barker v The Queen (1983) 153 CLR 338 at 348 (Mason J).
Even assuming, however, that a constructional choice is available, the applicants’ next step is to say that it should be preferred, having regard to the principle of legality. By way of example, they refer to Minister for Immigration and Citizenship v Haneef where the Full Federal Court said:[15]
Acts of Parliament frequently use words of wide import which require courts to make constructional choices. They may be words capable of two or more meanings, each of which might make sense in the context in which it appears in the Act. Such a case is one of ambiguity and reference to extrinsic materials may point in the direction of one intended meaning rather than another. Alternatively, words may be used which have an ambulatory significance capable of a wide range of applications. Construction involves determining the limits of that range. …
It is an important principle that Acts should be construed, where constructional choices are open, so as not to encroach upon common law rights and freedoms. An early, well known and still authoritative statement of that principle is found in Potter v Minahan (1908) 7 CLR 277 which was a case involving the Immigration Restriction Act. O’Connor J quoted from Maxwell’s Interpretation of Statutes (4th ed, Sweet & Maxwell, 1905) at 304:
It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used.
See also Bropho v Western Australia (1990) 171 CLR 1 at 18; Coco v The Queen (1994) 179 CLR 427 at 437.
[15] Minister for Immigration and Citizenship v Haneef (2007) 163 FCR 414 at [106]-[107].
The High Court has more recently restated the effect of this principle.[16] The principle does not compromise the ordinary approach to statutory construction. In Lee v NSW Crime Commission, Gageler and Keane JJ explained:[17]
The principle ought not, however, to be extended beyond its rationale: it exists to protect from inadvertent and collateral alteration rights, freedoms, immunities, principles and values that are important within our system of representative and responsible government under the rule of law; it does not exist to shield those rights, freedoms, immunities, principles and values from being specifically affected in the pursuit of clearly identified legislative objects by means within the constitutional competence of the enacting legislature.
The principle of construction is fulfilled in accordance with its rationale where the objects or terms or context of legislation make plain that the legislature has directed its attention to the question of the abrogation or curtailment of the right, freedom or immunity in question and has made a legislative determination that the right, freedom or immunity is to be abrogated or curtailed. The principle at most can have limited application to the construction of legislation which has amongst its objects the abrogation or curtailment of the particular right, freedom or immunity in respect of which the principle is sought to be invoked. The simple reason is that “[i]t is of little assistance, in endeavouring to work out the meaning of parts of [a legislative] scheme, to invoke a general presumption against the very thing which the legislation sets out to achieve”.
(Footnote omitted)
[16] Lee v NSW Crime Commission (2013) 251 CLR 196.
[17] Lee v NSW Crime Commission (2013) 251 CLR 196 at [313]-[314] (Gageler and Keane JJ).
It is a manifest purpose of s 83GD to curtail rights and freedoms of participants in criminal organisations with respect to prescribed places, in pursuit of a preventative approach to law enforcement. More broadly, Division 2 is intended to disrupt the activities of criminal organisations. Expressed at the most general level, to make it an offence for participants to meet at places in respect of which one or some of them hold proprietary interests is manifestly in furtherance of that purpose. Participants in criminal organisations who own or occupy prescribed places are obvious targets of the regime. To read ‘enter’ as broadly as the ordinary meaning of the word permits, furthers the manifest purpose of the prohibition.
Against this, the applicants submitted that the broad interpretation would effectively frustrate the ability of owners and occupiers to discharge their statutory and common law obligations with respect to prescribed places. This argument invoked the extensive definition of ‘participant’ in a criminal organisation, set out above.[18]
[18] CLCA s 83GA(1).
The second and third applicants are manifestly covered by this definition. The effect of their argument is that the broad construction of the word ‘enter’ would not only prohibit owners and occupiers, such as them, from discharging their obligations with respect to the Cowirra Land in person. It also would place at risk other people, for example tradespersons, who are engaged to go onto the land to perform work or otherwise carry out any obligations of the owner or occupier with respect to the land.
This submission ultimately invoked the deterrent effect caused by a risk of being tarred with the brush of ‘participant’ in a criminal organisation, notwithstanding that the person is not a participant. That deterrent effect, the applicants submitted, would effectively disable the owner or occupier from carrying out their obligations with respect to the land. That, then, is a reason to read the word ‘enter’ as excluding those (who may or may not be participants in a criminal organisation) who have functions or duties with respect to the land, or who are authorised to go on to the land to discharge those functions or duties.
Expressly excluding lawyers acting in a professional capacity from the definition points up, in their submission, this recognition of risk. That exclusion provides a useful starting point from which to examine this contention.
Lawyers acting in a professional capacity have been excluded from the definition of ‘participant’ altogether. They constitute a class that can ordinarily be expected to take part in the affairs of criminal organisations within the meaning of the definition, in the course of acting in a professional capacity. Being a participant in a criminal organisation carries with it the proscription not only in s 83GD(1), but also that of attending prescribed events (s 83GD(2)) and being knowingly present in a public place with two or more persons who are participants in a criminal organisation (s 83GC). The exemption of lawyers extends to each of these prohibitions, not just the prohibition on entry to prescribed land.
No other class of person is excluded from the definition and thereby from the full suite of prohibitions. Question 3.c. is concerned, however, with the reach of the prohibition in s 83GD(1). The question as framed recognises that unlike a lawyer acting in a professional capacity, a tradesperson authorised to access a prescribed place only for the purpose of discharging a function or duty of the owner with respect to such land might, or might not, be a participant in a criminal organisation. If they are, on the broad reading of the prohibition, they are prohibited from entering the land. If they are not, they can enter for that purpose. That requires a factual enquiry, by reference to the definition of ‘participant’.
Thus, the applicants did not submit that a tradesperson called to the Cowirra Land would for that reason necessarily be participating in the affairs of the Hells Angels. Rather, they submitted that a tradesperson acting in their professional capacity might refuse to go onto the land, because of the risk of being classified as a ‘participant’ in a criminal organisation. On a broad definition of ‘enter’, the risk of being tarred with that definitional brush would therefore have the undesirable effect of making it more difficult for (participant) owners and occupiers of prescribed land to attend to their statutory and common law obligations with respect to that land. They would be prohibited from going on the land themselves and third-party tradespersons would be less likely to agree to do so. To impose such a barrier to the discharging of statutory and common law obligations cannot have been the intent of the scheme.
It is sufficiently apparent that the regime does have a function of deterrence towards non- ‘participant’ third parties. However, that operates at the level of deterring them from becoming ‘participants’ in criminal organisations as defined, in the first place. If they are not ‘participants’, the prohibitions do not operate. Any latent effect on the subjective willingness of non- ‘participant’ third party tradespersons to perform work on land is not the concern of the legislation. The premise of the submission is speculative at best.
We answer Question 3 as follows:
a. Yes, if the person is a participant in a criminal organisation.
b. Yes, if the person is a participant in a criminal organisation.
c. Yes, if the person is a participant in a criminal organisation.
2.Are the Cowirra (No.1) Regulations and the Cowirra (No.2) Regulations invalid by reason that there was an obligation to accord procedural fairness to persons adversely affected by their making, and procedural fairness was not accorded to either the First, Second and/or Third Applicants?
This is a question of characterisation of the regulation-making power in 83GA(1) of the CLCA. The applicable framework of analysis was described by Brennan J in Kioa v West:[19]
If a power is apt to affect the interests of an individual in a way that is substantially different from the way in which it is apt to affect the interests of the public at large, the repository of the power will ordinarily be bound or entitled to have regard to the interests of the individual before he exercises the power. No doubt the matters to which the repository is bound or is entitled to have regard depend on the terms of the particular statute and, if there be no positive indications in its text, the subject-matter, scope and purpose of the statute must be looked at to determine whether the repository is bound or is entitled to have regard to individual interests… When the repository is bound or is entitled to have regard to the interests of an individual, it may be presumed that observance of the principles of natural justice conditions the exercise of the power, for the legislature can be presumed to intend that an individual whose interests are to be regarded should be heard before the power is exercised. Therefore the presumption applies to any statutory power the exercise of which is apt to affect the interests of an individual alone or apt to affect his interests in a manner which is substantially different from the manner in which its exercise is apt to affect the interests of the public. Of course, the presumption may be displaced by the text of the statute, the nature of the power and the administrative framework created by the statute within which the power is to be exercised.
[19] (1985) 159 CLR 550 at 619.
The ‘aptness’ of a power to affect individual interests is a question of its content and effect. In some cases, the nature of the power may assist in identifying this:[20]
The legislature is not likely to intend that a statutory power of a strictly legislative nature be conditioned on the observance of the principles of natural justice for the interests of all members of the public are affected in the same way by the exercise of such a power … But the legislature is more likely to intend the exercise of a statutory power of an executive, administrative or quasi-judicial nature to be so conditioned if an exercise of the power singles out individuals by affecting their interests in a manner substantially different from the manner in which the interests of the public at large are affected.
(Footnote omitted)
[20] Kioa v West (1985) 159 CLR 550 at 620 (Brennan J).
Nevertheless, the nature of the power will often have limited relevance, particularly if to focus on that would come at the expense of consideration of the actual content and effect of the power in question. Bread Manufacturers of New South Wales v Evans[21] concerned, in part, whether a Prices Commission was required to notify interested persons (there, a trade association of bread manufacturers) before exercising its price-fixing powers. In deciding that it was not, Gibbs CJ observed:[22]
It is now clear that the obligation to observe the principles of natural justice attaches whether the authority is judicial or administrative. Equally, it does not seem to be useful to decide on the question whether the rules of natural justice apply by deciding whether the power in question should be classified as executive or legislative. The distinction between powers of an executive and those of a legislative nature is a fine one and opinions may easily differ on the question.
(Footnote omitted)
[21] (1981) 180 CLR 404.
[22] Bread Manufacturers of New South Wales v Evans (1981) 180 CLR 404 at 416.
In Civil Aviation Safety Authority v Boatman,[23] Selway J observed that there were many decision-making functions that could be conferred on a court or an administrative body, the characterisation of the function being dependent entirely on the body chosen. In such a case:[24]
Not only is there no “bright line” distinction between judicial and other governmental functions there is, in fact, no line at all in relation to these significant areas of functional overlap.
[23] (2004) 138 FCR 384.
[24] Civil Aviation Safety Authority v Boatman (2004) 138 FCR 384 at [75] (Selway J).
Justice Selway returned to this theme in McWilliam v Civil Aviation Authority,[25] in the more relevant context of the putative distinction between legislative and administrative functions:[26]
That difficulty is exacerbated in relation to administrative functions simply because, under the Westminster system of government, the executive branch may exercise legislative powers delegated by the Parliament. This has the practical effect that it is impossible under Australian constitutional arrangements to draw a clear or “bright line” distinction between legislative and administrative powers.
[25] (2004) 142 FCR 74.
[26] McWilliam v Civil Aviation Authority (2004) 142 FCR 74 at [41] (Selway J).
Thus, Selway J contrasted examples, in the context of decisions under certain of the Civil Aviation Regulations, of decisions of different character by reference to their content and effect. A decision requiring all pilots to adopt a particular safety procedure when approaching airports would be unlikely to be characterised as of an administrative character. A decision that a major airport was unsafe for commercial airlines and prohibiting its use to that end may well be:[27]
Such a decision would be made by a statutory body (rather than by the Parliament or the Governor General in Council), it would be made in an “Instrument” (rather than by an Act or Regulation), it would relate to a specific airport, it would be based upon specific findings, rather than broad policy considerations and so forth.
[27] McWilliam v Civil Aviation Authority (2004) 142 FCR 74 at [43] (Selway J).
As the applicants readily acknowledged, exercises of power by way of making regulations are most often legislative in their nature. They will tend to be policy-based and of general application.
However, the fact that an exercise of power takes the form of a regulation does not necessarily reserve the character of the power as legislative. In Lim Chin Aik v The Queen,[28] s 6 of the Immigration Ordinance, 1952 of Singapore prohibited any person other than a citizen of Singapore from entering the colony if that person had been prohibited by an order made under s 9 of the Ordinance. The appellant was so prohibited. On a trial for breaching s 6, there was no evidence that the order had been brought to his attention. The Privy Council rejected a submission that the Minster’s order under s 9 was an exercise of delegated legislation which, once made, became part of the law of Singapore and of which, ignorance could be no excuse. Even if the premise was good, the Ordinance itself distinguished ‘between an order directed to a particular individual on the one hand and an order directed to a class of persons on the other’.[29]
[28] [1963] AC 160.
[29] Lim Chin Aik v The Queen [1963] AC 160 at 171 (PC).
Lim Chin Aik is an example of a situation recognised and described more recently as being where subordinate legislation creates a factum on which a substantive law of general application then operates:[30]
There are many examples: a provision in an Act might proscribe substances or conduct which are prescribed by regulation; alternatively, a statute may exempt, from the scope of the general rule it makes, such things persons or circumstances that are prescribed in regulations. In such cases, the legal force of the proscription resides in the Act and not the regulation. In my view such regulations have an administrative character. An act is administrative if its function is simply to serve as a factum upon which a general rule of conduct operates.
[30] Ilic v City of Adelaide (2010) 107 SASR 139 at [78] (Kourakis J).
Within this framework of understanding, it may be readily accepted that the Cowirra regulations each supply a factum upon which the general prohibition in s 83GD(1) then operates. The applicants then submit that this then has ‘considerable significance’ in determining whether or not procedural fairness will attach to the exercise of the power. While that may be so in the sense of identifying the exercise of power as administrative, and therefore as potentially having other than general application, it has little further to say on the question. As the applicants recognised and submitted, the importance of the observation was captured by Gummow J in Queensland Medical Laboratories v Blewett:[31]
It also has to be borne in mind that the rules of natural justice may not be applicable to the exercise of a delegated legislative power: Re Gosling (1943) 43 SR(NSW) 312 at 318 per Jordan CJ. This may be so particularly where, as in the present case, the delegated legislative power in question is concerned with the content of the law as a rule of conduct or as a declaration concerning power, right or authority as a matter of general application, rather than with a law applying to the action of particular persons on particular occasions.
[31] (1988) 84 ALR 615 at 637.
Focus then turns to the concern of the delegated legislation that otherwise may be regarded as supplying a factum of the operation of the general law.
As already observed, the presumption that an exercise of statutory power is conditioned on the exercise of natural justice:[32]
…applies to any statutory power the exercise of which is apt to affect the interests of an individual alone or apt to affect his interests in a manner which is substantially different from the manner in which its exercise is apt to affect the interests of the public.
[32] Kioa v West (1985) 159 CLR 550 at 619 (Brennan J); see also at 584 (Mason J); 632 (Deane J); Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648 at 653 (Deane J).
Thus, there have been instances where the provision of natural justice has been held to be a condition of the making of subordinate legislation, such as the modification to a draft amendment to a planning scheme in King Island Council v Resource Planning and Development Commission.[33] The modification concerned the powers of a council to give subdivision approval for the excision from rural properties of residential lots with houses already constructed on them. It affected 10 to 15 houses, with a potentially significant impact on the values of those properties.[34]
[33] [2007] TASSC 42.
[34] King Island Council v Resource Planning and Development Commission [2007] TASSC 42 at [17-[18] (Blow J).
There have also been instances where no such obligation has been found to exist, such as:
·a ministerial decision to reopen an airport runway and to grant certain exemptions in connection with that reopening, where the impact of the resulting aircraft noise the subject of complaint was common to an indiscriminate section of the public at large.[35] As Lehane J observed in Botany Bay Council v Minister of State for Transport and Regional Development:[36]
All of the authorities to which I have referred, however, make it clear that though a decision for which an Act or delegated legislation provides is to be characterised as administrative rather than legislative, nevertheless if it affects the interests of the public, or a section of the public, at large rather than the interests of particular individuals it will, usually at least, be a decision in relation to which no particular individual or body can claim an entitlement to procedural fairness: particularly, an entitlement to be heard, in relation to a proposed decision, before it is made.
·the making of regulations under the Migration Act 1958 (Cth) creating a class of visa;[37] and
·the making of a regulation that closed a fishery, which was held to affect all members of the public in the same way.[38]
[35] Botany Bay Council v Minister of State for Transport and Regional Development (1996) 66 FCR 537 at 553 (Lehane J).
[36] Botany Bay Council v Minister of State for Transport and Regional Development (1996) 66 FCR 537 at 554 (Lehane J).
[37] Wasantha v Minister for Immigration & Multicultural Affairs [1999] FCA 1158 at [7] (Finn J).
[38] Dighton v State of South Australia (2000) 78 SASR 1 at [69] (Williams J).
Accepting, then, that the Cowirra regulations have an administrative character by reason of their creating a factum on which s 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.
To this end, the applicants emphasised that the Cowirra regulations are ‘clearly targeted’ at them, as owner and occupiers. They accepted that they were also targeted at other members of the declared organisation with which the applicants are associated.
There could be no doubt that the immediate effect of the Cowirra regulations is sufficient to give the applicants standing to challenge the regulations, insofar as standing is required. However, this does not describe the relevant effect of the regulations on the interests of an individual in contradistinction to its effect on the public or a section of the public as a whole, for the purpose of assessing the amenability of an exercise of the power to the rules of natural justice.
Thus, in Wasantha v Minister for Immigration & Multicultural Affairs,[39] the applicants were all holders of a particular subclass of humanitarian visa. Their reason for challenging the impugned regulations was their apprehension that, if valid, the regulations would terminate their entitlement to remain lawfully in Australia. The fact that they were a defined group with that common interest in the regulation did not cause the regulation to be anything other than a law of general application. So too, in Dighton v South Australia,[40] the fact that the plaintiff was a commercial fisher with a particular interest in the fishery did not mean that the regulation closing the fishery had anything other than general application.
[39] [1999] FCA 1158.
[40] (2000) 78 SASR 1.
Writing in 1988, GJ Craven observed:[41]
It must be noted that the mere fact that a person is specially affected by a legislative action does not mean that he or she will be entitled automatically to a hearing – far from it. Rather, this factor tends to operate as a sine qua non.
(Footnote omitted)
[41] GJ Craven, ‘Legislative Action by Subordinate Authorities and the Requirement of a Fair Hearing’ (1988) 16(3) Melbourne University Law Review 569 at 583.
The scope of application of the regulation in question by reference to affected individuals or class of individual is a related, but different matter. As GJ Craven went on to describe this aspect:[42]
A second, and closely allied factor, revolves around the width of the class affected (or specially affected) by the legislative action in question. The narrower the class affected in the relevant way, the more likely are the courts to imply some requirement of procedural protection. Thus, the specially affected class in Evans[43] (bread manufacturers) and New Zealand Licensed Victuallers[44] (sellers of draught beer) was comparatively small. The same may be said of the relevant class in R v Liverpool Corporation; ex parte Liverpool Taxi Fleet Operators’ Association and Another,[45] which was comprised effectively of Liverpool’s taxi drivers. Significantly, in all three of these cases, the concerned class was conveniently able to put its concerns before the authority involved through an organized association. This fact highlights the most obvious reason underlying the courts’ willingness to relax their rule against requiring a hearing in the context of legislative action where the specially affected class is comparatively small, and most particularly, where it is also well organized. In such circumstances, the practical difficulty of hearing all of those who wish to be heard will be greatly reduced, thus removing one objection to the grant of a hearing.
[42] GJ Craven, ‘Legislative Action by Subordinate Authorities and the Requirement of a Fair Hearing’ (1988) 16(3) Melbourne University Law Review 569 at 583-584.
[43] (1982) 38 ALR 93.
[44] [1957] NZLR 167.
[45] [1972] 2 QB 299.
That said, the applicant in the 1999 case of Wasantha was the representative of all members of the Sri Lankan Humanitarian Entrants (Subclass 435) Association, whose common visa was the direct subject of the impugned regulation.[46] The practical simplicity of granting a hearing to the specifically affected class did not translate to an obligation to give procedural fairness. Justice Finn’s conclusion relied on broader considerations:[47]
I am satisfied that regulations of the present type made under the Act's regulation-making power are so legislative in their subject matter and sufficiently general in their character: see especially s 31(3) of the Act; and are so policy driven in their formulation and purpose: see De Silva's Case at 361-362; that it would be unreasonable to conclude that Parliament had not, albeit impliedly, intended to exclude the common law right to procedural fairness from the exercise of the regulation-making power - even if it would otherwise have applied to it. I express no view on that last matter.
[46] Wasantha v Minister for Immigration & Multicultural Affairs [1999] FCA 1158.
[47] Wasantha v Minister for Immigration & Multicultural Affairs [1999] FCA 1158 at [7] (Finn J).
Those policy considerations included Australia’s economic and budgetary capacity to assist the visa holders.[48] This case 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 procedural fairness. We return to the existence of such policy considerations in the present context, below.
[48] De Silva v Minister for Immigration and Multicultural Affairs (1998) 89 FCR 502 at 509; 159 ALR 355 at 362.
For present purposes, it is necessary to identify the specially affected class 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. The class of person directly affected by a regulation declaring a place to be a prescribed place is, by operation of s 83GD(1), any person who is a participant in a criminal organisation.
The definition of ‘criminal organisation’ is set out above. Paragraphs (b) and (c) of this definition are certain enough in that they supply clear criteria for identifying criminal organisations. Paragraph (a) has quite a different character. ‘Organisation’ is undefined. Whether 3 or more persons form an organisation that meets the definition in either sub-paragraph (i) or (ii) of paragraph (a) will ultimately be a question for the trier of fact on a charge of breaching an offence provision, such as s 83GD(1). It is difficult to conceive of how, on the extended definition chosen by Parliament, ‘criminal organisations’ could be identified as a class for the purposes of giving procedural fairness prior to declaring a place to be a prescribed place.
The definition of ‘participant’ in a criminal organisation, set out above, diffuses the class further.
These two definitions make it impossible, for all intents and purposes, to identify at any point of time, the class of individuals meeting the definition of ‘participant’ in a criminal organisation for the purpose of according them procedural fairness prior to declaring a place to be a prescribed place.
The applicants submitted that this was a ‘completely wrong focus’ for determining the class of persons affected. The Cowirra regulations applied to two titles, of which there are an owner and occupiers. Further, the obvious target of prescribing land associated with members of the Hells Angels is to disrupt the activities of the Hells Angels (of which, they submitted, there are 28 members). They submitted that it was an exercise in unreality to analyse the issue by reference to ‘participants’ generally, most of whom would have no interest in the Cowirra Land.
This response has an attraction when considered within the immediate operation of the regulations. However, it is important to place it within the correct framework of analysis. The question of the obligation to accord procedural fairness is ultimately a question of whether the legislature can be taken impliedly to have excluded any obligation to accord procedural fairness, in its conferral of the regulation-making power.
The effect of the applicants’ submission as to the ‘unreality’ of approaching the question by reference to the full definition of ‘participants’ must necessarily be that Parliament should be taken to have intended that any declaration of a place to be a prescribed place should carry a differential obligation to accord procedural fairness, depending on the place. 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). That is the legislated consequence. However, the declaration will have a differential effect on:
·owners and occupiers of the place;
·owners and occupiers of the place who are participants in a criminal organisation;
·participants in a criminal organisation that has some connection with the prescribed place, such as by reason of an owner or occupier also being a participant in that criminal organisation; and
·participants in criminal organisations that have no connection with the prescribed place.
It should then be noted, for the purpose of the argument, that there is a specific regime with respect to public places. These are regulated separately, and directly by s 83GC:
83GC—Participants in criminal organisation being knowingly present in public places
(1) Any person who is a participant in a criminal organisation and is knowingly present in a public place with 2 or more other persons who are participants in a criminal organisation commits an offence.
Maximum penalty: Imprisonment for 3 years.
‘Public place’ is defined in s 83GA(1) as follows:
public place means—
(a) a place, or part of a place, that the public is entitled to use, is open to members of the public or is used by the public, whether or not on payment of money; or
(b) a place, or part of a place, the occupier of which allows, whether or not on payment of money, members of the public to enter;
The applicants submitted that the prohibition in s 83GD(1) consequently is not, or is unlikely to be, concerned with such places. There is a difference, however: s 83GC is concerned with participants in criminal organisations knowingly being present in a public place with 2 or more other persons who are participants. Section 83GD(1), by contrast, imposes a prohibition on entering a prescribed place at all.
In any event, whether a prescribed place is a private or a public place as defined (and assuming it can be the latter), the applicants submitted that ultimately, ‘there is always an owner’. An owner will always have an interest in their place being prescribed, whether that is some benign personal interest, a commercial interest or an interest of more nefarious character.
Where the owner (or occupier) is a participant in a criminal organisation, the interest will be more acute, as a declaration will prevent them, to some degree, from exercising their rights of ownership or occupation. However, the submission eventually made was that at a bare minimum, and without such differentiation, the obligation to accord natural justice to the owner has not been excluded.
The submission also extended to saying that if the place had an obvious association with a particular declared organisation, the obligation would extend to members of that organisation, at least by a representative.
These two aspects of the differential obligation for which the applicants contend illustrate the complexity of the task. Whether the legislature intended a differential obligation of procedural fairness, or even just a minimum obligation to owners and occupiers of intended prescribed places, is ultimately a matter of construction, informed by the definition of ‘participant’ itself, as well as by other textual, contextual and purposive considerations.[49]
[49] MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441 at [30] (Kiefel CJ, Gageler, Keane and Gleeson JJ); [136] (Gordon and Steward JJ).
The first of these is that the legislature has applied the resulting prohibition to ‘participants’ in criminal organisations, so defined. While ‘there is always an owner’, that owner (or occupier) may not fall within the definition of participant. The structure of the prohibition is such that the interests of owners and occupiers as a class are incidental, in the sense that they may be directly affected (by reason of being participants), or indirectly affected in one of any number of ways, from the acute to the merely theoretical, for good or ill. At the level of abstraction contemplated by the legislative prohibition, their interests are not synonymous with those of participants.
There is then the indeterminacy of the class, ‘participant’ in a criminal organisation, the subject of the resulting prohibition. The difficulty posited by this is not simply met by inferring a failure to exclude a differential obligation of procedural fairness such that the obligation is effectively tailored to meet the interests affected. It is that the level of abstraction with which the legislature is concerned means that, in some cases, it will not be possible to identify the affected, or potentially affected, ‘participants’. This is most apparent when having regard to paragraph (a) of the definition of ‘criminal organisation’ and paragraphs (c), (d) and (e) of the definition of ‘participant’.
The applicants’ essential answer to the practical difficulty created by this indeterminacy was that the first step would be to give notice. Accepting that there were matters of degree involved, notice would be given to any person with rights of ownership or occupation, and also to any criminal organisation with an obvious connection to the place in question. They did not, as Mr Wells QC put it, ‘contend for an indefinite ripple of concentric circles of interest’. Rather, the particular place created a ‘self-defining’ category of persons whose interests may be affected by a declaration.
To this end, the applicants referred to King Island Council v Resource Planning and Development Commission,[50] discussed above. In finding that the draft amendment to the planning scheme did not affect the rights and interests of the public at large, Blow J (as his Honour then was) said:[51]
The decision to modify the draft amendment 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 I think the impact on the rights and interests of not just the landowners, but also the council, was material. I think it must follow that the RPDC denied the council, as well as the affected landowners, natural justice by amending the planning scheme without first having afforded an opportunity for submissions as to the modification of the proposed clause 3.10.5(c).
[50] [2007] TASSC 42.
[51] King Island Council v Resource Planning and Development Commission [2007] TASSC 42 at [18] (Blow J).
This illustrates the force of the applicants’ submission with respect to owners and occupiers of private property the subject of declarations. This class will always be identifiable. At the most abstract level of analysis, a declaration of the place as a prescribed place will necessarily interfere with their ordinary rights of ownership or occupation.
King Island Council provides less assistance with respect to the difficulty created by the uncertainty of the class of ‘participant’. While the demarcation of interest relied on by the applicants might be drawn clearly enough in a case such as the present, any conclusion about the legislature’s intent as to obligations of procedural fairness must take into account the possibility of cases where the relevant participants cannot be defined easily, if at all. That is, given that the legislation contemplates situations where there will be no obvious or definable group of ‘participants’, or representative of a criminal organisation, can it be inferred that a differential obligation to accord procedural fairness to participants is preserved in those cases where an identification can be made?
Contextual and purposive considerations assist here. As already observed, the purpose of the Division is to disrupt the activities of criminal organisations, so defined. Curiously, there is more than one defined term, ‘criminal organisation’ in the CLCA. The present matter is concerned with that defined in Part 3B, Division 2. Division 1 of the same Part employs a different definition for related but different purposes: it is an offence to participate knowingly in a criminal organisation as defined in that Division.[52] By contrast, it is not an offence to participate in a criminal organisation as defined in Division 2, although in reality there will likely be a significant overlap in the application of the provisions.
[52] CLCA s 83E.
In any event, the offence provisions of Division 2 prohibit being knowingly present in a public place with two or more participants,[53] entering prescribed places[54] and attending prescribed events.[55] It is also an offence under Division 2 for a participant in a criminal organisation to recruit, or attempt to recruit, anyone to become a participant in a criminal organisation.[56] That is, unlike Division 1, Division 2 starts with the ongoing existence of criminal organisations as defined, and acts to disrupt their activities.
[53] CLCA s 83GC.
[54] CLCA s 83GD(1).
[55] CLCA s 83GD(2).
[56] CLCA s 83GE(1).
The definition of ‘criminal organisation’ informs that disruptive purpose. Criminal organisations are defined in part by reference to their purposes of engaging in, organising, planning, facilitating, supporting, or otherwise conspiring to engage in, serious criminal activity and to their risk to the safety, welfare or order of the community.
It is in this context that the prohibitions with respect to public places (in company), events and places all place restrictions on movement, either on a point-in-time or an ongoing basis. 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. In this sense, the purpose of the Division and the indeterminacy of the class that it affects are intertwined. The Division’s purpose of disruption of the (indeterminate) class of ‘criminal organisation’, informed by the offence provisions and the supporting definitions, speaks against the legislature having intended to accord procedural fairness to the participants in those very organisations.
To this end, the respondent referred to Comptroller-General of Customs v Kawasaki,[57] which concerned the revocation of a commercial tariff concession order that applied to the importation of jet skis. The applicant for judicial review was an aggrieved importer of jet skis. The plurality reviewed the authorities, some of which are identified above, distinguishing between an exercise of power that directly affects a person individually, and one that affects them only as a member or the public or a class of the public.[58] In holding that the rules of natural justice were not applicable to the relevant decision-making, they identified a qualitative aspect of this consideration:[59]
The regime of Customs duties, including variations effected by TCOs, is at any given time the scoreboard of the enduring contest waged between the forces of free trade and protection. As well as the direct commercial interests of the kind mentioned, there are social, political and economic considerations affecting the whole Australian community. The rules of natural justice are in our opinion inapplicable in such a setting.
[57] (1991) 32 FCR 219.
[58] Comptroller-General of Customs v Kawasaki (1991) 32 FCR 219 at 239 (Hill and Heerey JJ), referring to Bread Manufacturers of New South Wales v Evans (1981) 180 CLR 404 at 416-417 (Gibbs CJ); Salemi v MacKellar (No 2) (1977) 137 CLR 396 at 452 (Jacobs J).
[59] Comptroller-General of Customs v Kawasaki (1991) 32 FCR 219 at 240-241 (Hill and Heerey JJ).
As to this qualitative aspect, the applicants submitted that the criteria by which participants are identified as being, to some degree, ‘wayward’, and subject to the regime does not warrant a denial of procedural fairness. Rather, the more ‘wayward’ they are seen to be, the more important will procedural fairness often be. Mr Wells QC proffered the example of a prisoner about to be sentenced, in that it would be absurd to then sentence the prisoner without being heard, on the basis that the prisoner had chosen that course.
That submission holds at the level of abstraction at which it was put. However, it does not answer the purposive consideration identified above, in that the disruptive focus of the regime is concerned with a policy response to an identified, broad mischief posed by ‘criminal organisations’. Parliament has identified that such organisations pose a threat to the safety, welfare and order of the community. That this identification involves judgments of ‘waywardness’ about the participants is obvious, but it is not the focus of the policy.
Any regime that has a distinct impact on an individual group will also generally have some broader policy focus. It is important not to be arbitrary or dogmatic in the characterisation of underlying policy. Nevertheless, there will be some arenas of regulation where large social, political or economic considerations dominate.
The wholesale disruption of a legislatively identified sphere of criminal activity invites such a description. 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.
The acute imperative of procedural fairness when sentencing a prisoner is informed by different considerations. Sentencing is a function of judicial power. It is a process concerned directly, and necessarily, with the individual interests of the prisoner, albeit in contest with identified interests of the community. In North Australian Aboriginal Justice Agency v Northern Territory, the plurality observed:[60]
It is also a defining characteristic of courts that they apply procedural fairness[61] and adhere as a general rule to the open court principle[62] and give reasons for their decisions[63].
(Footnotes in original)
[60] (2015) 256 CLR 569 at [39] (French CJ, Kiefel and Bell JJ).
[61] Leeth v The Commonwealth (1992) 174 CLR 455 at 469‒470 per Mason CJ, Dawson and McHugh JJ; International Finance Trust Co Ltd v Crime Commission (2009) 240 CLR 319 at 354‒355 [55] per French CJ at 379‒380 [141] per Heydon J; Wainohu v New South Wales (2011) 243 CLR 181 at 208 [44] per French CJ and Kiefel J; Condon v Pompano Pty Ltd (2013) 252 CLR 38 at 71 [67] per French CJ at 105 [177], 110 [194] per Gageler J.
[62] Dickason v Dickason (1913) 17 CLR 50; Russell v Russell (1976) 134 CLR 495 at 520 per Gibbs J; Wainohu v New South Wales (2011) 243 CLR 181 at 208‒209 [44] per French CJ and Kiefel J.
[63] Wainohu v New South Wales (2011) 243 CLR 181.
By contrast, the regime in Part 3B, Division 2 of the CLCA confers no judicial function and has a preventative, rather than punitive, purpose.
The respondent then identified a number of factors, related to this being an exercise of power by regulation, which it submitted supported or informed the broad, social policy-focus of the power as described above. It is well to be cautious here. The authorities discussed above recognise that exercises of power by regulation tend to be policy-based and of general application. To extract incidents of form as then providing further support for such a characterisation risks conflating correlation with causation. Having said that, there are some matters that warrant specific attention.
The first of these is the idiosyncrasy of the amending Act designating a tranche of prescribed places itself, as an exercise of unequivocally legislative power that did not require procedural fairness, and then conferring a delegated authority to make further regulations to the same effect. The Solicitor-General submitted that it cannot be assumed that Parliament intended to condition the delegated authority to perform the same function on a different rule from that when Parliament performed that function itself.
The applicants contended that if anything, this demonstrated an intention to the contrary. That Parliament is not subject to obligations of procedural fairness is obvious; having laid down the schedule list, it hands over to the executive the decision on how to choose the factum to implement the overall policy. While that much may be true, it remains the case that Parliament has, by its initial action, determined as a matter of policy that the function of declaring places as prescribed places carries no intrinsic necessity for procedural fairness.
The delegation of future exercises of power to the executive meets an apparent ongoing need for continued implementation of the policy in changing circumstances. Having regard to the fact that the critical question is whether the legislature intended to displace the presumption that procedural fairness is to be accorded, this idiosyncratic structure, as a contextual indicator, tends to indicate an intention against maintenance of the presumption.
The respondent then pointed to the fact that the power to declare a place is reposed in the Governor in Council, unconditionally. It contrasted this with the power of the Governor in Council to approve a policy of accident insurance in FAI Insurances Ltd v Winneke.[64] The power to approve in that case required that ‘regard shall be had to the commitments and financial position of the applicant and in the case of renewal to the observance of these Regulations by the applicant’. A majority of the High Court held that in deciding whether to renew an approval previously given, the Governor in Council was subject to the requirements of natural justice.
[64] (1982) 151 CLR 342.
Justice Mason held that:[65]
the nature of the relationship between the Governor and the Executive Council supplies no reason for denying the availability of judicial review for ultra vires, including improper purpose, once as a matter of construction of a statute the conclusion is reached that the discretion given to the Governor in Council is limited, whether in scope or purpose or by reference to criteria or otherwise. The Governor in Council cannot by exceeding his statutory authority affect individual rights.
[65] FAI Insurances Ltd v Winneke (1982) 151 CLR 342 at 365 (Mason J).
The respondent appeared to place emphasis on the existence of specific conditions on the exercise of the power in FAI, where none exists in the present case. However, the existence of such conditions hardly exhausts the scope of obligations of natural justice. Justice Mason continued:[66]
The next question is one of statutory construction. Does the statute entrust the Governor in Council with an absolute discretion or a discretion subject to some limitations? Whether a particular exercise of discretion by the Governor in Council is subject to judicial review is a question of construction the answer to which will depend on a variety of considerations including the nature, width and subject matter of the discretion and the peculiar character of the Governor in Council as the chosen repository of it.
[66] FAI Insurances Ltd v Winneke (1982) 151 CLR 342 at 366 (Mason J).
The obligation of the Governor in Council in FAI to accord natural justice was entwined with the matters specific to the applicant under consideration, rather than general policy matters:[67]
But where as here the function reposed in the Governor in Council, that of granting or refusing an application by an individual for the renewal of approval to act as an insurer – a matter to be decided in the circumstances of this case, not on issues of general policy, but principally, if not exclusively, by reference to the financial position and commitments of the applicant – would unquestionably attract a duty to comply with the rules of natural justice had it been reposed in a statutory officer, the difference in the nature and character of the Governor in Council is not sufficient in my opinion to deny the existence of some duty to accord natural justice, though the difference will be reflected in the content of the duty and what is to be expected by way of discharge of the duty, it being accepted now that the content of the duty varies with the particular circumstances of the case. It is impossible to suppose that Parliament intended that the Governor in Council would conduct a hearing similar to a judicial hearing. But it is possible, indeed proper, to attribute to Parliament the intention that the Governor in Council will act in conformity with natural justice, by giving to the applicant an adequate opportunity to present its case, as, for example, by written submissions on matters alleged to be relevant.
[67] FAI Insurances Ltd v Winneke (1982) 151 CLR 342 at 370 (Mason J).
Justice Mason contrasted this situation with that where the function of the Governor in Council was simply to make a formal decision based on the recommendation of the responsible Minister, expressed in the papers presented to the Governor.[68] Thus in South Australia v O’Shea,[69] the role of the Governor in Council was limited to making a decision about the release on licence of a detainee following a recommendation of the Parole Board, a decision necessarily concerned closely with the attributes of the applicant for release. A majority of the High Court held that a hearing before the recommending body provided sufficient opportunity to present their case; the process in its entirety entailed procedural fairness (on the premise that no new matter was raised before the Governor in Council).[70]
[68] FAI Insurances Ltd v Winneke (1982) 151 CLR 342 at 369-370 (Mason J).
[69] (1987) 163 CLR 378.
[70] South Australia v O’Shea (1987) 163 CLR 378 at 389 (Mason CJ) (Wilson and Toohey JJ) (Brennan J). See also, for example, Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648 at 653 (Deane J).
In the present case, the decision to declare a place to be a prescribed place furthers the general policy of disruption identified above. It is less concerned with the specific characteristics of the applicants than was the case in FAI, or indeed in O’Shea. Nonetheless, it is not a regulation of purely general remit; in the present case it visits direct, and peculiar, adverse consequences on the applicants in its implementation of that policy. Having regard to these matters, the fact that the power is reposed in the Governor in Council, with no express conditions of its exercise peculiar to the circumstances of an affected class of person, would seem to add little of consequence to the observations made above as to the broad, policy intent of the power.
The respondent submitted further that by providing for the prescription of a single place or event per regulation, the legislation established a ‘bespoke scheme for parliamentary oversight’, by which parliamentary committees were well placed to review each regulation. This, it submitted, speaks to the width of the power conferred, which in turn speaks against the existence of a requirement to provide procedural fairness to individuals who might have their rights and interests affected. It referred on this account to Watson v South Australia,[71] a case with similarities to O’Shea, in that the Governor in Council had refused to accept the recommendation of the Parole Board that a prisoner be released on parole. One ground of judicial review was that the Governor in Council had predetermined the application. On the relevance of the decision-making structure, Doyle CJ said:[72]
The decision to refuse to release Mr Watson on parole was, each time it was made, a decision in respect of which the Premier, the Attorney-General and possibly other Ministers could be questioned or challenged in Parliament. The decision was, and was likely to be, the subject of some public interest, and to attract comment in the media. There is no reason why the Premier or the Attorney-General should not explain and defend their decision. There is no reason why they should not, within the limits of the CSA, indicate a policy or attitude to such cases, or to the case of Mr Watson in particular. In material before the Court, the Leader of the Opposition was referred to as having said that in Government she would be slow to depart from the recommendation of the parole Board. Equally, it was open to the Premier to say, as he did, that the Cabinet would make its own decision, and to emphasise that it would not hesitate to depart from a recommendation by the Board. It would be legitimate for the Premier or the Attorney-General to indicate that certain types of cases would be approached in a particular manner. Of course, as is acknowledged in the citations above, the power under s 67(7) must be exercised lawfully. But when the power is conferred on a political body, and is open to challenge in Parliament and in the community generally, the exercise of that power is to be approach in a quite different manner from a power vested in a court or in an independent tribunal, when questions of bias and prejudgment arise.
(Emphasis added)
[71] (2010) 208 A Crim R 1.
[72] Watson v O’Shea (2010) 208 A Crim R 1 at [65].
Watson is, relevantly, a case about prejudgment, not the hearing rule that was the subject of O’Shea. The scrutiny of a decision by Parliament and the community does not operate as a substitute for an obligation to accord procedural fairness to an adversely affected individual. The fact that this scrutiny can be applied to each declaration of a place or an event adds little, other than thematic resonance. It has already been established that the regulation-making power serves a broad, social policy-focus of disrupting a legislatively identified sphere of criminal activity.
The structural aspects of the power are relevant. Here, however, they are simply consistent with the conclusion of the contextual and purposive exercise in statutory construction set out above. That exercise warrants the conclusion that Parliament intended to abrogate any obligation to accord procedural fairness to ‘participants’ in criminal organisations, so defined, on declaring a place to be a prescribed place.
What, then, of owners and occupiers of land the subject of an intended declaration? In any given case, the class will be small, if it comprises more than a single person. The practical difficulties of according procedural fairness to ‘participants’ do not arise. The interference with rights – and obligations – of ownership or occupation may be severe.
That interference will be at its most acute when the owner or occupier in question is or is controlled by a participant in a criminal organisation, as in this case. Parliament can be taken to have intended that declarations would be used to this effect, that is, that (participant) owners and occupiers would be precluded from entering their own property in furtherance of the disruption of the activities of ‘criminal organisations’.
We have already concluded that Parliament did not intend that procedural fairness should be accorded to participants in criminal organisations as a class. An owner or occupier who is a participant in a criminal organisation, as defined, is likely to be considerably affected by a declaration of their land as a prescribed place. However, that consequent compromise to their ability to enjoy fully their property rights is an incident of the identified social policy goal of disruption of a legislatively identified sphere of criminal activity.
It is quite possible that owners and occupiers who are not participants may also have interests adversely affected. For example, a non-participant hotel owner, whose premises are frequented by a motorcycle club declared to be a criminal organisation, might suffer adverse commercial effects by having their premises declared to be a prescribed place.
We do not think that the legislation intends that there should be a differential obligation to accord natural justice to a participant in a criminal organisation who is (or controls) an owner or occupier, or to owners or occupiers who are not participants, before declaring land to be a prescribed place. We reach that conclusion having regard, in particular, to the potential for adverse effects on the interests of persons in positions such as those of the applicants. However, we are satisfied that the purposive exercise in statutory construction, set out above, demonstrates the necessary intention.
Maintaining an obligation to accord natural justice to owners and occupiers of places proposed to be declared to be prescribed places would be inconsistent with, and in many cases potentially undermining of, the policy implemented by Part 3B, Division 2 of the CLCA. That is a general and preventative policy of disruption of an apprehended sphere of criminal activity. This conclusion is, further, consistent with the structure of the power and Parliament’s initial determination that the declaration of places as prescribed places is not a function that must attract obligations of natural justice.
We answer Question 2, ‘No’.
Conclusion
We therefore answer the questions reserved as follows:
1.Reg. 3 of the Criminal Law Consolidation (Criminal Organisation) Regulations is not invalid. However, it is ineffective in declaring the places comprising the Cowirra Land to be prescribed places. Each of the Cowirra regulations impliedly declares the place it describes to be a prescribed place for the purpose of s 83GA(1) of the CLCA.
2.No.
3.a. Yes, if the person is a participant in a criminal organisation.
b. Yes, if the person is a participant in a criminal organisation.
c. Yes, if the person is a participant in a criminal organisation.
14