Kings Cross Chamber of Commerce and Tourism Inc v The Uniting Church of Australia Property Trust (NSW) and ors. - [2001] NSWSC 245

No judgment structure available for this case.

Reported Decision:
(2001) 160 FLR 300

New South Wales

Supreme Court

CITATION: Kings Cross Chamber of Commerce and Tourism Inc v The Uniting Church of Australia Property Trust (NSW) & ors. [2001] NSWSC 245

FILE NUMBER(S): SC 30077/00

HEARING DATE(S): 21.3.01 and 22.3.01

JUDGMENT DATE:
5 April 2001

PARTIES :

Kings Cross Chamber of Commerce and Tourism Inc
The Uniting Church of Australia Property Trust (NSW) - 1st defendant
Director-General of the Department of Health for NSW - 2nd defendant
The Commissioner of Police for NSW - 3rd defendant

JUDGMENT OF: Sully J

COUNSEL : Dr. C. Birch SC - Plaintiff
I.G. Harrison SC/H. Packer - 1st Defendant
S.J. Gageler/R. Lancaster - 2nd & 3rd Defendants

SOLICITORS: Pigott Stinson Ratner Thom - Plaintiff
E.H. Tebutt & Sons - lst Defendant
I.V. Knight, Crown Solicitor - 2nd & 3rd Defendants

LEGISLATION CITED: Drug Summit Legislative Response Act 1999 (NSW)
Drug Misuse & Trafficking Act 1985 (NSW)
Uniting Church in Australia Act 1977 (NSW)
Customs Act 1901 (Commonwealth)
Commonwealth Constitution

CASES CITED: Cooper Brookes (Wollongong) Pty Limited v The Commissioner of Taxation of the Commonwealth of Australia (1981) 147 CLR 297
Collector of Cutoms v Agfa-Gevaert Limited (1996) 186 CLR 389
Minister for Immigration and Multi-Cultural Affairs v Eshetu (1999) 197 CLR 611
Public Service Board of NSW v Osmond (1986) 159 CLR 656 at 662-664
Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154 at 164 B-G
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Regina v Peterborough City Council ex parte Quietlynn Ltd (1986) 85 LGR 249

DECISION: Summons dismissed with costs

SUPREME COURT OF
NEW SOUTH WALES
ADMINISTRATIVE LAW DIVISION

SULLY J

Thursday 5 April 2001

30077/00 - KINGS CROSS CHAMBER OF COMMERCE AND TOURISM INC. v THE UNITING CHURCH OF AUSTRALIA PROPERTY TRUST (NSW) & ORS.

JUDGMENT

Introduction

1 HIS HONOUR: There is before the Court a Summons, the objective of which is to prevent the coming into practical operation of a licence that has issued pursuant to the provisions of the Drug Summit Legislative Response Act 1999 (NSW). The terms of the licence permit the use of certain designated premises, known as 66 Darlinghurst Road, Kings Cross, as a medically supervised centre where persons wishing to self-inject any drug which is prohibited or otherwise prescribed by regulation, may do so with impunity, provided that the quantity of the particular drug which is self-injected does not exceed an “exempt quantity” as defined in the Act.

2 It needs no extended emphasis that the very proposal that there should be such a legalised facility gives rise to large questions of public policy, of public morality, of social philosophy, of social policy, and of social welfare. It is, on that account, important to establish at the outset of this judgment that it is not the function and duty of this Court to pronounce, in the context of the present proceedings, upon any of those stated types of question. The sole function and duty of the Court is to examine and construe the terms of the licence as issued; and the procedures by means of which the application for the licence was assessed and granted; and then to come to a reasoned answer to the question whether the licence has been properly issued according to law.

3 In the interests of simplicity this judgment will use the following abbreviations:

The plaintiff means King Cross Chamber of Commerce and Tourism Inc.

The Church means the Uniting Church in Australia, a union of non-conformist Christian denominations recognised and formally inaugurated by the Church Act (q.v.)

The Church Trust means the Uniting Church in Australia Property Trust (NSW), the first defendant named in the Summons.

The Director-General means the Director-General of the Department of Health for New South Wales, the second defendant named in the Summons.

The Commissioner means the Commissioner of Police for New South Wales, the third defendant named in the Summons.

The subject premises means the premises situate at and known as 66 Darlinghurst Road, Kings Cross.

The Drug Summit Act means the Drug Summit Legislative Response Act 1999 (NSW).

The Drug Misuse Act means the Drug Misuse & Trafficking Act 1985 (NSW)

The Church Act means the Uniting Church in Australia Act 1977 (NSW).

The Customs Act

4 Before proceeding any further there are four additional preliminary matters that require attention.

5 First, the Church Trust has been described in the Summons and in all subsequent Court documentation as “The Uniting Church of Australia Property Trust”. The Church Act constitutes the Trust under the name of “The Uniting Church in Australia Property Trust (NSW)”.

6 I order pursuant to SCR Part 20 Rule (1) that the Summons and all subsequent Court documentation be amended so as to refer to the Church Trust by its proper title, that is to say: “The Uniting Church in Australia Property Trust (NSW)”. I dispense with compliance with any other Rule as to the formalising of the amendment; and in particular with any requirement under the Rules for the service or re-service of any document hitherto filed in connection with the present proceedings.

7 Secondly, I note that the hearing of the present proceedings was conducted by the Church Trust, the Director-General and the Commissioner without challenge to the standing of the plaintiff to proceed upon the Summons now before the Court.

8 Thirdly, I note that on 18 January last the Director-General and the Commissioner gave an interlocutory undertaking to O’Keefe J “not to recommend to the responsible Ministers of the Crown that steps should be taken to have the Governor proclaim a starting date for the trial period of a medically supervised injecting room at 66 Darlinghurst Road, Kings Cross. This undertaking has effect up to and including 21 March 2001, being the date fixed for the hearing of this matter”.

9 I note, further, that at the conclusion on 22 March instant of the hearing before me, learned Senior Counsel then appearing for both the Director-General and the Commissioner extended, upon instructions, and until the date of delivery of this judgment, the undertakings given to O’Keefe J.

10 Fourthly, I note that no party appearing at the hearing tendered any formal documentation respecting the title of the Church Trust to use and occupy, or to permit or facilitate the use and occupation of the subject premises.

11 When I came to draft this judgment, it seemed to me to be relevant to have properly before me any such formal documentation. I so advised learned Senior Counsel for the plaintiff, who responded by letter dated 3 April 2001. The letter reads, formal parts omitted:

“I enclose with this letter a copy of a sublease to the Uniting Church In Australia Property Trust for premises at 66 Darlinghurst Road, Kings Cross. I also enclose the head lease to which the sublease relates.

I have spoken with Mr. Ian Harrison, counsel for the first defendant, and Mr. Stephen Gageler SC, counsel for the second and third defendants. They each authorise me to inform you that they have no objection to my seeking to tender these two documents in the above proceedings informally by forwarding them with this note and they have no objection to the documents being received into evidence.”

12 I order, accordingly, that copies of Sub-Lease, registration number 6672175J, and of Lease, registration number 3623934R, be admitted by consent as additional evidence. They will be Exhibit F.

The Relevant Legislation

13 The Drug Summit Act was assented to on 30 November 1999, with effect on a day or days to be appointed by proclamation. On 10 March 2000 there was gazetted a proclamation that commenced the operation of the legislation on and from that day.

14 The Drug Summit Act is described in its long title as an Act: “to amend the ………(Drug Misuse Act) ……… to enable the licensing and operation of a medically supervised injecting centre for a trial period of 18 months; to make related amendments to other Acts; to repeal the Drug Offences Act 1987; and for other purposes”.

15 The legislative substance of the Drug Summit Act is contained in four Schedules to the Act. The present proceedings entail a consideration only of Schedule 1.

16 Schedule 1 inserts a new Part, Part 2A, into the Drug Misuse Act. The new Part 2A comprises a group of sections numbered 36A to 36S inclusive. It is unnecessary for present purposes to analyse every detail of the comprehensive scheme for which Part 2A is intended to provide. It suffices to note the following points:

[1] It is made clear by section 36A, the opening section of Part 2A, that a licensed trial of a medically supervised injecting centre is to be a single, and restricted, trial. The relevant authorities are permitted “to issue only one licence, in respect of only one premises, to have effect only during a trial period of 18 months starting on a day to be fixed by proclamation as the start of the trial period” .

[2] The Director-General and the Commissioner are together the only authorised licensors.

“may issue a licence authorising the holder of the licence to conduct specified premises as an injecting centre”

“Nothing in this Part entitles a person to be issued with a licence; and the responsible authorities may refuse an application for a licence if the requirements of section 36F are not satisfied or for any other reason.”

“(1) A licence for the conduct of premises as an injecting centre must not be issued unless the responsible authorities are of the opinion:

(a) that the internal management protocols for the proposed centre have been finalised and are of a satisfactory standard, and

(b) that there is a sufficient level of acceptance, at community and local government level, for the establishment of an injecting centre at the premises, and

(c) that the premises are suitable for use as an injecting centre, having regard to all relevant matters including the following:

(i) public health and safety,

(ii) the visibility of the premises from the street,

(iii) the proximity of the premises to schools, child care centres and community centres,

(iv) any matters prescribed by the regulations for the purposes of this section.

(2) If a community drug action plan is in force in relation to the area within which the premises of the proposed injecting centre are situated, the responsible authorities must have regard to that plan in forming an opinion as to the matters referred to in subsection (1) (b) and (c).

(3) Without limiting subsection (1), a licence for the conduct of premises as an injecting centre must not be issued unless the responsible authorities are of the opinion:

(a) that any building work that is carried out for the purposes of the centre will be carried out in accordance with the Building Code of Australia, and

(b) that any building that is used for the purposes of the centre will comply with the Building Code of Australia

(4) In subsection (3),

building

,

Building Code of Australia

and

building work

have the same meanings as they have in the Environment Planning and Assessment Act 1979.”

[5] Should the Director-General and the Commissioner decide to issue a licence, then they may impose conditions upon it; and they may so impose conditions from time to time. Additional and mandatory conditions are prescribed by Section 36I; and may be prescribed by Regulation.

“exempt quantity”

“ (1) In this section:

(a) in the case of a prohibited drug, a small quantity of the drug (subject to paragraph (b) ), or

(b) in any case, such quantity of the drug as is prescribed by the regulations.”

Drug Summit Act

“

Prescribed drug

means a prohibited drug or a substance prescribed by the regulations for the purposes of this definition.”

Part 2A does not itself contain any definition of the expression “prohibited drug” . It would seem, therefore, that Section 36D, in its definition of a “prescribed drug”, is intended to pick up the definition of “prohibited drug” that is to be found in Section 3 of the Drug Misuse Act , and in Schedule 1 to that Act. Such an approach gives meaning to the Section 36N (1)(a) reference to “a small quantity” , a concept built into Schedule 1 to the Drug Misuse Act . The reference in Section 36N(1)(b) to “the regulations” , I take to be a reference to Regulations made pursuant to the regulation-making power conferred by Section 45 of the Drug Misuse Act rather than the much more restricted regulation-making power that is conferred by Section 36S of the Drug Summit Act . No Regulations appear to have yet been made under the Drug Summit Act ; and the only current Regulation made under the Drug Misuse Act does not prescribe for the purposes of the Drug Summit Act any substance additional to the prohibited drugs that are scheduled in Schedule 1 to the Drug Misuse Act.

The Relief Claimed by the Plaintiff

17 The Summons claims three declaratory orders; an ancillary injunction; and costs.

18 The declarations sought are:

[1] That the Church Trust, being a body corporate established as such by the Church Act , “is not empowered by the said statute to engage in the conduct of a licensed injecting centre for the purpose of the ……………. (Drug Summit Act) .”

[2] That the Director-General and the Commissioner failed to form the opinion that they were required to form pursuant to section 36F(1)(b) of the Drug Summit Act ; or alternatively:

“without regard to relevant material or only by having regard to irrelevant material”

“an opinion that could only have been formed unreasonably”

19 It is convenient to deal first, and in the given order, with each of those claims for declaratory relief.

The Declaration Sought in Paragraph 1 of the Summons

20 The plaintiff’s case is, essentially, that the Church Trust is a statutory corporation invested with particular statutory powers and functions, and that the operation of a licensed injecting room is not within those powers and functions.

21 The plaintiff bolsters this essential argument by pointing to what it submits is the imprecision of the legal basis upon which the Church Trust has become involved at all in the establishing, and the practical operation, of the proposed facility. And the plaintiff submits, further, that the legal character of the licence is such that it is not an item of property, and that it follows that the Church Trust cannot lawfully hold the licence because it is empowered to hold only ascertained property.

22 It must be said, I think, that it does not help the correct resolution of these challenges that the Church Trust does appear, indeed, to have become involved in a somewhat haphazard kind of way.

23 The original application for a licence was made by letter dated 9 June 2000. The letter is written on the letterhead of ‘UnitingCare NSW.ACT’ and signed by Reverend Harry Herbert as Executive Director of that body. The letter makes no mention whatsoever of the Church as such, or of the Church Trust. The opening paragraphs of the letter read:

“I hereby submit an application for a license to operate a Medically Supervised Injecting Centre (MSIC) at 66 Darlinghurst Road, Kings Cross for an 18 month trial period.

Uniting Care is eager to be involved in this exciting Drug Summit initiative as we believe, on the basis of overseas reports, that it will reduce deaths from drug overdose.”

24 Attached to the letter is a large quantity of documentary material that is put forward in satisfaction of the various statutory criteria that an applicant for a licence must satisfy. Standing alone, the letter reads as an application, not by the Church or the Church Trust, but by a body operating under the auspices of the Church.

25 Towards the end of July 2000 the Director-General and the Commissioner wrote jointly to Reverend Herbert. They notified an intention to grant a licence in response to what they described as “the application by Uniting Care NSW ACT on behalf of the Uniting Church in Australia”. They referred to a number of outstanding matters which required attention. One of these was described as: “…….clarification as to the appropriate legal entity to be granted the licence on behalf of the Uniting Church in Australia”.

26 On 27 July 2000 the Reverend Herbert replied. He said, on the matter of legal entity:

“The Uniting Church in Australia Property Trust (NSW) was proclaimed under legislation passed by the NSW Parliament in 1977. It is registered as an other unincorporated entity (religious institution) and holds the ABN number 8722539923.”

27 The licence as actually issued:

“authorises the Uniting Church in Australia Property Trust (NSW) [for and on behalf of the Uniting Church] to conduct premises located at 66 Darlinghurst Road, Kings Cross, NSW 2011 as a Medically Supervised Injecting Centre.”

28 The Church Trust is constituted as a statutory corporation by section 12 of the Church Act. The powers and duties of the Church Trust are defined as followed by section 13 of the Church Act:

“(1) Subject to this Act, the Trust may:

(a) acquire, hold, deal with and dispose of property of any kind;

(b) mortgage, charge or otherwise encumber any of its property; or

(c) borrow money for the purposes of the Trust

(2) Subject to this Act, the Trust shall hold trust property in trust for the Church and upon any other trust affecting the property.

(3) Subject to subsection (2), the Trust shall hold, manage, administer and otherwise deal with trust property in accordance with the regulations, directions and resolutions of the Assembly.”

29 The Assembly to which reference is made in section 13 (3) is the national governing body of the Church. The responsibilities of the Assembly are defined in clause 38 of the Constitution of the Church. Relevantly, they are:

“38. (a) The Assembly shall have determining responsibility in matters of doctrine, worship, government and discipline, including the promotion of the Church’s mission, the establishment of standards for theological education and the reception of Ministers from other denominations, and is empowered to make final decisions on all matters committed to it by this Constitution.

(b) Without limiting the generality of the preceding clause, the Assembly shall have the power:……………..

(ii) to create or dissolve Synods, to determine the bounds of the Synods, to divide or alter the number or bounds of Synods; ………………..

(v) to disallow any by-law, rule or decision of the Synod………………..which contravenes this Constitution or Regulations of the Assembly;

(vi) Subject to the provisions of this Constitution to provide for the control and management of the property and funds vested in the Church;

(vii) generally to provide for the control, management and discipline of the Church;…………………………”

30 Membership of the Church Trust is as prescribed by section 12(1) of the Church Act. All members are either statutorily designated officials of, or appointees otherwise of, the Synod for New South Wales of the Church. The constitutional provisions respecting the formation and the responsibilities of a Synod of the Church are:

“31. A Synod shall be a council of the Church formed by the Assembly which shall determine its name, fix its bounds, prescribe its responsibilities and its relationship to other councils of the Church and arrange for its first meeting. A Synod may be dissolved by the Assembly in accordance with procedures as prescribed.

32. Subject to the direction of the Assembly, the Synod shall have general oversight, direction and administration of the Church’s worship, witness and service within its bounds. It shall exercise executive, administrative, pastoral and disciplinary functions over the Presbyteries within its bounds, shall be the council to hear and deal with appeals and requests from Presbyteries and shall establish and maintain such boards, institutions, committees and agencies as are appropriate to the furtherance of its responsibilities. A Synod may do other things as are consistent with the purposes of the Church and not the exclusive responsibility of any other council or body within the Church.”

31 The constitution of the Church confers upon the Assembly, and upon any Synod, certain powers to enact, relevantly, Regulations and by-laws. The relevant provisions are:

“62. The Assembly may make Regulations not inconsistent with this Constitution prescribing all matters which by this Constitution are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to this Constitution or for the life of the Church.

63. A Synod may make by-laws not inconsistent with this Constitution or with Regulations made by the Assembly prescribing all matters which by this Constitution are required or permitted to be prescribed in connection with a Synod or which are necessary or convenient to be prescribed for the carrying out or giving effect to this Constitution or for the life of the Church within that Synod.”

32 The Constitution provides, in its Division 5, a scheme of management of the funds and property of the Church. The relevant provisions are:

“50 The beneficial ownership of all property whether real or personal shall be vested in the Church.

51. There shall be created in each Synod a body corporate (herein referred to as the Synod Property Trust) in which the legal title to all property, except such as may be prescribed, shall be vested.

52. All property vested in a Synod Property Trust shall be held, managed and dealt with in accordance with the rules, regulations, by-laws and resolutions made by or under the authority of the Assembly in that regard.

53. The Assembly may at its discretion delegate to any Synod power to make by-laws with respect to any property within the bounds or under the control or management of the Synod.

54. No interest in real estate shall be created or leased except in such manner as may be prescribed by the Assembly.”

33 The Assembly has exercised from time to time its Regulation-making powers. In so doing it has made provision for the conduct of various aspects of the business and affairs of a Synod. The following such Regulations are now relevant:

“3.5.11 The Synod shall have general oversight, direction and administration of the Church’s worship, witness and service within its bounds, shall exercise pastoral, executive, administrative and disciplinary responsibilities in relation to the presbyteries within its bounds, shall deal with matters referred to it from presbyteries and shall establish and maintain such bodies as are appropriate to the furtherance of its responsibilities. The Synod shall also consider submissions and recommendations presented in such manner as the Synod shall determine.

3.5.12 Without limiting the generality of the responsibilities of a Synod as set out in Regulation 3.5.11, a Synod shall be responsible for:…………………..

(j) the general oversight and management of Synod funds and of Synod policies and procedures relating to property;

(k) the making of Synod by-laws pursuant to the Constitution and Regulations.

3.5.38 Toward the better fulfilment of the mission of the Church the Synod may establish such bodies as it sees fit to carry out such duties and responsibilities as the Synod may determine.

3.5.52 (a) The Synod shall appoint the elected members of the corporate Trust in accordance with the provisions of the Uniting Church in Australia Act (or Ordinance) 1977 (as amended) as the case may be in the State or Territory concerned.

(b) The Synod shall appoint the members of the Property Board and make any other appointments required under the provisions of the Property Regulations

(c) The Synod shall appoint an officer to administer property affairs and related matters

3.5.53 The Synod shall provide for the effective supervision of property matters within the bounds, in accordance with the Property Regulations and relevant by-laws of the Synod. ……………………

3.5.55 The Synod may enter into or establish such activities and enterprises as it deems expedient for the furtherance of the life and witness of the Church, and may set up organisations, either temporary or permanent, for any purposes consistent with the policy and procedures of the Church.”

4.2.1 “Each Synod shall appoint a Property Board which shall:

(a) advise the Synod with respect to policies relating to property within the bounds of the Synod;

(b) supervise the implementation of the Synod’s policies in regard to property within the bounds of the Synod;…………………….”

4.6.2 ………………………………………….

(c) A lease shall not be taken without the proper approval of the Synod Property Board.

(d) All leases shall be executed by a Property Trust unless otherwise authorised by the Synod Property Board on such terms as it thinks fit.

(e) All leases shall be taken or granted in the name of a Property Trust.

……………………………………………………………..”

34 The Synod for New South Wales, too, has exercised from time to time its constitutional by-law making powers. Relevantly:

[1] The Synod has established “for the more effective conduct of the Church’s witness and service within the bounds of the Synod” , four Divisions. Each such Division is to be managed by a Board appointed by and responsible to the Synod.

[2] One such Board is the “Board of Finance and Property” . Another used to be called the “Board for Social Responsibility” but is now called “UnitingCare NSW.ACT” .

“N 3.34.1 The Board will be responsible to the Synod for the determination of the Board’s policy and the management of the Board’s activities which will include the following:

A. PROPERTY

(i). Acting as the Synod Property Board and exercising the authority of the Synod Property Board as prescribed in Regulation 4.2.1(a) to (g) as follows:

(a) advising the Synod with respect to policies relating to property within the bounds of the Synod;

(b) supervising the implementation of the Synod’s policies in regard to property within the bounds of the Synod;

…………………………………………………………………………………………..

(d) receiving proposals with respect to property matters submitted to it by the ……………institutions and agencies and ensuring that each proposal is in accordance with the policies of the Synod and as expressed through its Boards with respect to property matters, development, mission and community service and any other relevant matter and giving final decision with respect to such.

(e) initiating proposals with respect to any property matters; and …………………………………..

B. FINANCE, ACCOUNTING AND FUNDS

……………………………………………………………………………….

(viii) In conjunction with the Synod Property Trust and until the Synod shall otherwise determine managing and administering all property which vests or has vested in the Uniting Church in Australia Property Trust (NSW) by virtue of the Uniting Church in Australia Act 1977 (NSW) and which is not the responsibility of any Parish, Presbytery, Board or other body of the Church under or pursuant to any Regulation or By-law or decision of the Synod.

………………………………………………………………………………..”

“N 3.36.1 The Board will be responsible to the Synod for the determination of Board Policy and the Exercise of the Board’s responsibilities which will include the following:

(a) Being alert to the important issues in society, especially as they relate to peace, justice and the integrity of creation………………………………….

………………………………………………………………..

(e) Engaging in the political processes of the nation on behalf of the Church seeking to influence change and reform of society;

(f) Sharing and working with other Christian denominations and community groups in areas of mutual concern;

……………………………………………………………………………

(h) Relating to government and government instrumentalities and acting with them in meeting community needs;

………………………………………………………………………..

(k) Administering community service programmes where appropriate, offering advice and assistance to other Church Councils and Agencies in their administration of community service programmes, and advocating on relevant issues on behalf of all Uniting Church community service activities ………………………………………………………………………….”

35 On 26 September 2000 the Executive Committee of UnitingCare NSW.ACT resolved to make to the Synod Property Board the following recommendations:

“i. That the Uniting Church in Australia Property Trust NSW (“the Property Trust”) have issued to it and retain a licence under Part 2A of the Drug Misuse and Trafficking Act 1985 for the purposes of the conduct of premises at 66 Darlinghurst Road, Kings Cross as an injecting centre pursuant to the provisions of that Act, and

ii That the Property Trust utilise the resources of Uniting Care NSW.ACT to so conduct the said premises.”

36 On 11 September 2000 the Synod Property Board resolved:

“l. That the recommendation of Uniting Care NSW.ACT that the Synod Property Board approve the application for a licence to operate the Medically Supervised Injection Room be noted;

2. That the Uniting Church in Australia Property Trust NSW (“the Property Trust”) have issued to it and retain a licence under Part 2A of the Drug Misuse and Trafficking Act 1985 for the purposes of the conduct of premises at 66 Darlinghurst Road, Kings Cross as an injecting centre pursuant to the provisions of that Act, and

3. That the Property Trust utilise the resources of Uniting Care NSW.ACT to so conduct the said premises.”

NOTE:

37 The foregoing summary of the statutory and administrative contexts which are now relevant can be rounded off by noting, as follows, the actual status of the Church Trust in connection with the subject premises.

38 The Lease Registered Number 3623934R is a lease of the subject premises for a term of 10 years commencing on 1 June 1997 and terminating on 31 May 2007. The Lessor is Nommack (No. 85) Pty Limited ACN 002 904 501. The Lessees are The Greater Union Organisation Pty Limited ACN 000 024 431, and Family Entertainment (NSW) Pty Limited ACN 059 979 592 as tenants in common in equal shares.

39 The Lease nominates a number of permitted uses. Use as a medically supervised injecting centre is not one of them. There is provision for other uses at the absolute discretion of, and with the prior written consent of, the Lessor.

40 The Sub-Lease registered number 6672175J is a sub-lease of the subject premises for a term of 2 years commencing on 22 February 2000 and terminating on 21 February 2002. There is an option to renew for a further one year.

41 The Church Trust is the Sub-Lessee. The use permitted by the Sub-Lease is:

“A medically licensed injecting centre of the nature contemplated by the Drug Summit Legislative Response Act 1999, with liberty to provide and carry out thereon any one or more of the services listed in paragraph (d) of Section 36L of the Act and a facility of the kind commonly known as a “coffee shop”.”

42 In considering how the foregoing skein of bodies, functions and titles affects the licence as issued, it is in my opinion important to bear carefully in mind the provisions of clause 4 of the Constitution of the Church. That clause defines the purposes of the Church. The clause establishes, relevantly, these purposes:

“……………….To assist in human development and toward the improvement of human relationships, to meet human need through charitable and other services…………..”

43 In my opinion any particular construction of section 13 of the Church Act should be made having in mind that the Church Trust is not established in a conceptual vacuum. It is established in order that a legal entity, having all appropriate legal capacity, will exist as a practical legal vehicle for the practical implementation of those matters concerning the practical management of real and personal property which are a necessary part of the practical pursuit of the Church’s evangelising and pastoral missions in the world, as those missions are proclaimed in clause 4 of the Constitution of the Church.

44 The carrying out of such an exercise of particular statutory construction, of course does not mean that the particular Court of construction is, so to speak, a free agent to choose whatever result appears subjectively to the Court to be just or convenient. The Court must carry out its task with the guidance of settled principles of statutory construction. It is useful to restate them, drawing for the purpose on two comparatively recent decisions of the High Court of Australia: Cooper Brookes (Wollongong) Pty Limited v The Commissioner of Taxation of the Commonwealth of Australia (1981) 147 CLR 297; Collector of Customs v Agfa-Gevaert Limited (1996) 186 CLR 389.

45 In Cooper Gibbs CJ at 304, 305 says, omitting references to authority:

“It is an elementary and fundamental principle that the object of the court, in interpreting a statute, ‘is to see what is the intention expressed by the words used’…………………………. . It is only by considering the meaning of the words used by the legislature that the court can ascertain its intention. And it is not unduly pedantic to begin with the assumption that words mean what they say: ……………………… . Of course, no part of the statute can be considered in isolation from its context - the whole must be considered. If, when the section in question is read as part of the whole instrument, its meaning is clear and unambiguous, generally speaking ‘nothing remains but to give effect to the unqualified words’:…………………………… . There are cases where the result of giving words their ordinary meaning may be so irrational that the court is forced to the conclusion that the draftsman has made a mistake, and the canons of construction are not so rigid as to prevent a realistic solution in such a case:……………… . However, if the language of the statutory provision is clear and unambiguous, and is consistent and harmonious with the other provisions of the enactment, and can be intelligibly applied to the subject matter with which it deals, it must be given its ordinary and grammatical meaning, even if it leads to a result that may seem inconvenient or unjust. To say this is not to insist on too literal an interpretation, or to deny that the court should seek the real intention of the legislature. The danger that lies in departing from the ordinary meaning of unambiguous provisions is that ‘it may degrade into mere judicial criticism of the propriety of the acts of the Legislature’,…………..; it may lead judges to put their own ideas of justice or social policy in place of the words of the statute. On the other hand, if two constructions are open, the court will obviously prefer that which will avoid what it considers to be inconvenience or injustice. Since language, read in its context, very often proves to be ambiguous, this last mentioned rule is one that not infrequently falls to be applied.”

46 Mason and Wilson JJ, having considered various in particular of the established canons of statutory construction, said this:

“In some cases in the past these rules of construction have been applied too rigidly. The fundamental object of statutory construction in every case is to ascertain the legislative intention by reference to the language of the instrument viewed as a whole. But in performing that task the courts look to the operation of the statute according to its terms and to legitimate aids to construction.

The rules, as D. C. Pearce says in Statutory Interpretation, p.14, are no more than rules of common sense, designed to achieve this object. They are not rules of law. If the judge applies the literal rule it is because it gives emphasis to the factor which in the particular case he thinks is decisive. When he considers that the statute admits of no reasonable alternative construction it is because (a) the language is intractable or (b) although the language is not intractable, the operation of the statute, read literally, is not such as to indicate that it could not have been intended by the Legislature.

On the other hand, when the judge labels the operation of the statute as ‘absurd’, ‘extraordinary’, ‘capricious’, ‘irrational’ or ‘obscure’ he assigns a ground for concluding that the Legislature could not have intended such an operation and that an alternative interpretation must be preferred. But the propriety of departing from the literal interpretation is not confined to situations described by these labels. It extends to any situation in which for good reason the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions.

Quite obviously questions of degree arise. If the choice is between two strongly competing interpretations, as we have said, the advantage may lie with that which produces the fairer and more convenient operation so long it conforms to the legislative intention. If, however, one interpretation has a powerful advantage in ordinary meaning and grammatical sense, it will only be displaced if its operation is perceived to be unintended.”

47 In Agfa-Gevaert Limited the joint judgment of the Court contains the following observations:

“The meaning attributed to individual words in a phrase ultimately dictates the effect or construction that one gives to the phrase when taken as a whole and the approach that one adopts in determining the meaning of the individual words of that phrase is bound up in the syntactical construction of the phrase in question. In

R v Brown

, a recent House of Lords decision, Lord Hoffman said:

‘The fallacy in the Crown’s argument is, I think, one common among lawyers, namely to treat the words of an English sentence as building blocks whose meaning cannot be affected by the rest of the sentence. …………….. This is not the way language works. The unit of communication by means of language is the sentence and not the parts of which it is composed. The significance of individual words is affected by other words and the syntax of the whole.’ “ [186 CLR at 396, 397]

48 The foregoing principles, applied sensibly to the given facts of the present case, seem to me to support the following propositions:

[1] The Church Trust has vested in it a sub-lease of the subject premises. That interest is plainly an interest in property, however narrowly that expression might be interpreted.

[2] The conditions of the sub-lease contemplate the use of the subject premises by the Church Trust, or with its permission, as a licensed injecting room.

[3] The sub-lease is held on trust for the Church: that is to say, it is held on a trust, the purpose of which, as intended by Parliament which established the Trust, are purposes corresponding to, and promoting the practical achievement of, the objectives defined in clause 4 of the Constitution of the Church.

[4] The Church Trust must, as a matter of course, “manage, administer and otherwise deal with” the sub-lease, and with the rights of occupation and user which are conferred by the sub-lease, in good faith - (a matter as to which no present issue arises) - and lawfully.

[5] If a necessary incident of the lawful user of the subject premises for a particular purpose is a statutory licence to do lawfully what would otherwise be unlawful, then I can see no reason why the Church Trust cannot have the protection of such a licence.

[6] UnitingCare NSW.ACT, unquestionably a subordinate agency of the New South Wales Synod of the Church, wishes to provide, so to speak, the practical nuts and bolts of the proposed user of the subject premises. Such an aspiration is well within its pastoral remit from the Church.

[7] The Synod Property Board has been consulted and has approved both the UnitingCare proposal, and the use of the Church Trust as the appropriate legal entity. It is, in my opinion, within the pastoral remit of the Synod as expressed in Regulations of the Assembly itself, to give those approvals.

[8] There are no contrary “Regulations, Directions and Resolutions of the Assembly” .

49 I refuse the declaration asked in paragraph 1 of the Summons.

The Declarations Sought in Paragraphs 2 and 3 of the Summons

50 It is convenient to consider together these two alternative claims; and to begin that consideration by noting, as follows, the essential structure of the plaintiff’s case as put in the written submissions of the plaintiff:

“The plaintiff puts its case on the basis that the responsible authorities failed to exercise their discretion under s.36E correctly in that:-

(i) On the evidence one would conclude that they did not have opinions on the matters upon which they were required to hold opinions under s.36F(1)(b) of the Act;

(ii) There was no evidence available to the responsible authorities to establish the matters in s.36F(1)(b) of the Act;

(iii) If the court were to conclude that the responsible authorities in fact held the opinions required under s.36F(1)(b), such opinions could only have been held unreasonably or illogically in the fashion discussed above, and not such as to support a decision to grant the licence under challenge."

51 It is convenient, next, to note the following general matters:

[1] The plaintiff bears the onus of proof upon all of the issues raised in the submission previously quoted.

[2] The entirety of the hearing of the plaintiff’s Summons was conducted without oral evidence. There was, therefore, no cross-examination on affidavits; and no testing, otherwise, of the documentary materials tendered by all parties.

[3] The entirety of the plaintiff’s case turns upon the construction, and the application, of section 36F(1)(b) of the Drug Summit Act . The text of that provision has been quoted earlier herein and at paragraph 16[4] .

Minister for Immigration and Multi-Cultural Affairs v Eshetu

“Someone who disagrees strongly with someone else’s process of reasoning on an issue of fact may express such disagreement by describing the reasoning as ‘illogical’ or ‘unreasonable’, or even ‘so unreasonable that no reasonable person could adopt it’. If these are merely emphatic ways of saying that the reasoning is wrong, then they may have no particular legal consequence.

In

Puhlhofer v Hillingdon London Borough Council

Lord Brightman said:

‘Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power, save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely.’ “

[5] A large volume of documentary material is in evidence on the all-important question of the formation, either reasonably or at all, by the Director-General and by the Commissioner of the opinion required of both of them by section 36F(1)(b). It will be necessary to look, presently, at the contents of that material. None of it contains, however, any simple exposition by either the Director-General or the Commissioner of the final process of reasoning that produced the final decision to approve the issue of the licence now under challenge.

Public Service Board of NSW v Osmond

“There is no general rule of the common law, or principle of natural justice, that requires reasons to be given for administrative decisions, even decisions which have been made in the exercise of a statutory discretion and which may adversely affect the interests, or defeat the legitimate or reasonable expectations, of other persons. ………………………………………………………………………… Where the rules of natural justice require that a body making a decision should give the person affected an opportunity to be heard before the decision is made, the circumstances of the case will often be such that the hearing will be a fair one only if the person affected is told the case made against him. That is quite a different thing from saying that once a decision has been fairly reached the reasons for the decision must be communicated to the party affected………………………….. (T)he fact that no reasons are given for a decision does not mean that it cannot be questioned; indeed, if the decision-maker does not give any reason for his decision, the court may be able to infer that he had no good reason.”

Minister for Natural Resources v NSW Aboriginal Land Council

“In my opinion, this was a classic case for the application of the maxim whose rationale was explained by Lord Simonds in

Morris v Kanssen

[1946] AC 459, a company case, where his Lordship said (at 475):

“…… One of the fundamental maxims of the law is the maxim ‘omnia praesumuntur rite esse acta’. It has many applications…… The wheels of business will not go smoothly round unless it may be assumed that that is in order which appears to be in order.”

The natural home of the maxim is public law. Where a public official or authority purports to exercise a power or to do an act in the course of his or its duties, a presumption arises that all conditions necessary to the exercise of that power or the doing of that act have been fulfilled. Thus a person who acts in a public office is presumed to have been validly appointed to that office:

M’Gahey v Alston

(1836) 2 M & W 206 at 211; 150 ER 731 at 733;

R v Brewer

(1942) 66 CLR 535 at 548;

Hardess v Beaumont

[1953] VLR 315 at 318-319. And a council which must form an opinion as to whether there will be any detriment upon the granting of a planning permit is presumed to have formed the opinion before granting the permit:

Pearce v City of Coburg

[1973] VR 583.

The maxim was applied in a statutory context in this Court in

Western Stores Ltd v Orange City Council

[1971] 2 NSWLR 36 where objection was taken to the validity of the imposition of ‘parking area rates’ on the ground that the resolutions, which imposed the rates, did not recite that in the opinion of the Council certain works or services would be of special benefit to the areas rated. The formation of such an opinion was a pre-requisite to the valid exercise of the power to make the rate under the

Local Government Act

1919, s 121. Moffitt JA, giving the judgment of the Court, applied the maxim. His Honour said (at 46-47):

“……… as the case is one where the opinion required by s 121(1) was open to be held , it is to be presumed, in default of reason to conclude to the contrary, that the rate was regularly made and therefore was made upon the prerequisite opinion having been formed ……… In applying the presumption I do not think that any distinction should be drawn between the exercise of a power by an individual and the exercise of such power by a body or group which acts by way of resolution, or vote.”

A particular application of the maxim which is relevant to this case is stated in

Broom’s Legal Maxims

, 10th ed. (1939) at 642 as follows:

“…….where acts are of an official nature, or require the concurrence of official persons, a presumption arises in favour of their due execution. In these cases the ordinary rule is

– everything is presumed to be rightly and duly performed until the contrary is shown.”

[8] It is the case that the available evidence establishes that each of the Director-General and the Commissioner sought the advice and assistance of his respective departmental officials before notifying a final decision. The plaintiff contends that the present case was not one in which the Director-General and the Commissioner were entitled to act with the assistance of such advice. I do not accept that submission. I consider that authority clearly to the contrary is to be found in the decision of the High Court of Australia in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24.

“……….(T)here are cases which establish that when a Minister is entrusted with administrative functions he may, in general, act through a duly authorised officer of his department:………………………………………………. The cases in which the principle has been applied are cases in which the nature, scope and purpose of the function vested in the repository make it unlikely that Parliament intended that it was to be exercised by the repository personally because administrative necessity indicated that it was impractical for him to act otherwise than through his officer or officers responsible to him.”

“Part of a Department’s function is to undertake an analysis, evaluation and prcis of material to which the Minister is bound to have regard or to which the Minister may wish to have regard in making decisions. The press of ministerial business necessitates efficient performance of that departmental function. The consequence of supplying a departmental analysis, evaluation and prcis is of course, that the Minister’s appreciation of a case depends to a great extent upon the appreciation made by his Department. Reliance on the departmental appreciation is not tantamount to an impermissible delegation of ministerial function. A Minister may retain his power to make a decision while relying on his Department to draw his attention to the salient facts. But if his Department fails to do so, and the validity of the Minister’s decision depends upon his having had regard to the salient facts, his ignorance of the facts does not protect the decision. The Parliament can be taken to intend that the Minister will retain control of the process of decision-making while being assisted to make the decision by departmental analysis, evaluation and prcis of the material relevant to that decision.”

mutatis mutandis

52 Those considerations of principle being in place, it is appropriate to look more closely at what section 36F(1)(b) might be thought, on its proper construction, to have required of the Director-General and of the Commissioner.

53 The first, and obvious, thing to be said about section 36F(1)(b) is that it is cast in noticeably imprecise terms. Such concepts as “a sufficient level of acceptance”; “community level” and “local government level”; could scarcely be more fluid, or more susceptible, (as the present litigation amply illustrates), to sharply differing theoretical interpretations and practical applications.

54 It seems to me, however, that if the statutory formula is tested by the application to it of the principles earlier herein noted then the following propositions are correct:

(a) appropriate safeguards for the protection of the interested members of the public; and

(b) an environment otherwise in which the permitted trial will have a fair chance to demonstrate its worth, and so to suggest how public policy might be developed, patiently and prudently, in the matter of the humane and positive treatment of drug addiction.

[2] Consonantly with such a general statutory policy objective:-

(a) “acceptance” does not mean enthusiasm, or even positive ideological approval. It means a willingness to see a particular, exceptional and tightly controlled social experiment take place in a proposed location;

(b) “sufficient” does not mean absolute, or overwhelming, or any other arithmetically calculated percentage or margin. It means adequate to achieve the two given, and related, basic policy objectives.

(c) “community level” does not envisage a group of persons defined in some rigidly formal and legalistic manner.

Regina v Peterborough City Council

ex parte

Quietlynn Ltd

“Q. Ltd applied for licences to carry on sex shops to 20 local authorities all of whom had passed resolutions pursuant to section 2 of the Local Government (Miscellaneous Provisions) Act 1982 so that Schedule 3 of that Act, which relates to the control of sex establishments, applied to their respective areas. Under paragraph 12(3) of Schedule 3 to the Act two of the discretionary grounds for the refusal of a licence were that the number of sex establishments in the relevant locality equalled or exceeded the number the authority considered appropriate and that the grant of a licence would be inappropriate having regard to the character of the relevant locality. Paragraphs 28 and 29 of Schedule 3 provided that existing traders who applied before the appointed day could continue to trade lawfully until determination of their applications, and that no application made before the appointed day should be granted until all such applications had been considered. All the applications were refused . In Q. Ltd’s application for a licence in P. the local authority took as the relevant locality an area one-third of a mile in radius from a prominent landmark, a church, which was 150 yards away from Q. Ltd’s shop. In T.W. the local authority took as the relevant locality the whole of the borough, but in addition to deciding that the grant of a licence would be inappropriate in view of the character of the locality, they also decided that the grant of a licence would be inappropriate having regard to the use to which other premises in the vicinity were put. In the case of C. the local authority decided that the whole of the town was the relevant locality.”

“relevant locality”

“The councillors are likely to know what are the particular localities which make up their area and what can be regarded as the character of each. I think that sort of approach is clearly within the wording of paragraph 12. To start with the sex shop and then build a locality around it is, as I have said, a somewhat artificial approach and, because it is, as it were, an ad hoc definition, may lead to more difficulty in defining its character. I do not see, however, that this approach can be regarded as wholly outside the provisions of paragraph 12”

However, in

Reg v City of Chester, ex parte Quietlynn Ltd

(unreported), 14 October 1983, Woolf J had taken a different view. He said:

“I would, however, make it clear that I dissent from the proposition which the applicants, through their legal advisers, have made apparently at a number of hearings, that the relevant committee of the local authority are under an obligation to indicate what they are minded to regard as the relevant locality. In my view, it is the obligation of the applicants to make submissions as to what they regard as being the relevant locality. When it is necessary for them to do so, the committee will either accept or reject those submissions. What is the relevant locality will be a question of fact, to be decided on the particular circumstances of a particular application. I would anticipate that, in the majority of cases, the position will be the same as it was in the

Trafford

case and it will not be necessary to come to any conclusion as to what is the precise extent of the locality, since the characteristics of the area which is undoubtedly with[in] the locality will be sufficient to decide the matter one way or the other.”

With the greatest respect to the views of Forbes J., who was a master of local government law, I think that the approach of Woolf J is to be preferred. The statute directs the council to consider the character of the locality in which the premises are situate. Common sense dictates that the relevant character is that of the surroundings, but not necessarily the immediate surroundings, of the premises. Suppose then that the premises are on the edge of a pre-determined locality. Either the council will have to ignore the adjoining locality or it will have to have regard to the character of more than one locality. Neither approach is contemplated by the statute and both are avoided if the council looks at the premises and considers the area surrounding those premises. Pre-determined localities will probably be homogeneous in character, but the locality in which the premises are situated may well have a mixed character, e.g. residential to the north, light industrial to the west, parkland to the south and a shopping centre to the east. This does not seem to me an artificial approach or to lead to difficulty in defining the character of the locality. If it has a mixed character, so be it. That is what the statute requires the council to consider.

I would also reject the submission that “the locality” needs to be defined in terms of drawing boundaries on a map. The statutory concept is very simple and there is no justification for this legalistic approach. Parliament has assumed, and it is a wholly reasonable assumption, that all premises can be said to be situated in a locality, a common expression which does not carry with it any connotation of precise boundaries, and that this locality will have a character. The council should therefore ask themselves as a jury, “What is the character of the locality in which the premises are situated?”, or, as the case may be, “What number of sex establishments are appropriate for this locality?. They are simple questions which invite relatively simple answers and it is these answers, and not a definition of boundaries, which will form the basis of the reason for refusal which should be given to the applicant when the ground of refusal is paragraph 12(3)(c) or paragraph 12(3)(d)(i). This is not to say that there will be no scope for judicial review if a council decided that the appropriate number of establishments is one and refuses to grant a licence on the footing that one establishment already exists 200 miles away from the premises the subject matter of the application. Its decision would then be open to attack on Wednesbury principles, on the grounds that no reasonable local authority could conclude that two sex establishments 200 miles apart were in the same locality.

The complaint in this appeal is that the committee took as the relevant locality an area one-third of a mile in radius from St. Augustine’s Church, that this church was 150 yards from the applicants’ shop and that the relevant locality should have been defined using the shop as the centre of the circle. In fact the church was used because it was a prominent landmark. For the reasons which I have given, I do not think that the committee need have defined the locality in any way but, if they thought it appropriate to indicate the sort of area which they had taken into account in deciding upon the appropriateness of having any sex shops in the locality, the use of the church as an aid to defining that area was quite permissible.”

It is, of course, clear that “community level” in section 36F(1)(b) is not the same concept as “local government level” . In my opinion, a sensible reading of the entirety of paragraph (b) justifies a conclusion that “community level” connotes something more contained, more particularly localised, than “local government level” ; but, with that one qualification, the Peterborough approach is, in my opinion, both correct and sensible.

(d) “Local government level” , too, is not a concept which can only be given reasonable practical shape by the application of some rigid, legalistic formula.

What the provision entails, in my opinion, is that the “sufficient level of acceptance” in the sense to which I have earlier adverted, must appear to the Director-General and to the Commissioner to exist not only in the immediate neighbourhood of the proposed location, but also in the corridors of local public governance, thus ensuring that the proposed trial, if authorised, will not be, in effect, undermined by the political opposition of the Municipal Council in the area of which the authorised facility will operate.

Drug Summit Act

carte blanche

55 In considering, as it now becomes necessary to do, the application of the foregoing principles to the evidence touching the actual approach taken in fact by the Commissioner and by the Director-General, it is appropriate to consider separately their respective actions.

56 In the case of the Commissioner, I note and I accept the evidence given by Acting-Sergeant Craig Capper in an affidavit sworn by him on 20 March 2001. I note that the affidavit was read omitting the words “and considered by him” in paragraph 6.

57 I am satisfied, accordingly, that there was placed before the Commissioner initially, and as described in paragraph 5 of that affidavit, the original licence application and the following enclosures with that application.

“(a) Letter of application from the Uniting Church dated 9 June 2000 and enclosures, being:

(i) “Service Manual for the Medically Supervised Injecting Centre” (Appendix 1);

(ii)) “Community Support for the establishment of a medically supervised injecting centre at 66 Darlinghurst Road, Kings Cross”, (Appendix 2);

(iii) “Kings Cross Drug Action Team - Drug Action Plan July 2000 - June 2001” (Appendix 3); and

(iv) Letter of Building Surveyor dated 13 June 2000”

58 I am satisfied, similarly, that the following supplementary material was forwarded to the Commissioner:

“(i) A letter dated 10 July 2000 was received by the NSW Police Service from Uniting Care (“Exhibit CC1” [Volume 1] Tab A3 pages 380 to 381 and “Exhibit CC2” [Volume 2] Tab B2.9 page 101 to 102);

(ii) The Kings Cross Community Drug Action Team Drug Action Plan July 2000 - June 2001 which was received by the NSW Police Service from Uniting Care sometime prior to 18 August 2000 (“Exhibit CC1” [Volume 1] Tab A4 page 428 to 435).

(iii) Letter dated 28 April 2000 from Councillor Greg Waters, South Sydney Council to Reverend Harry Herbert, and letter dated 3 March 2000 from Councillor Vic Smith (Mayor), South Sydney Council, to Reverend Harry Herbert (“Exhibit CC1” [Volume 1] Tab A3 pages 424 to 427) received by the NSW Police Service on or about 15 August 2000. The letter of 3 March 2000 also became an attachment to the Submission of 18 August 2000 (“Exhibit CC2” [Volume 2] Tab B2.8 at page 80 to 81).”

59 I am satisfied, similarly, that there was assigned to one Diane Elphinstone, a Strategic Analyst attached to the Executive Support Unit assisting the Commissioner, primary responsibility for the coordination of materials relevant to the application; and for the preparation, for the consideration of the Commissioner, of an analysis of the application. I am satisfied that Miss/Mrs. Elphinstone made three such detailed analyses in the form of submissions dated 7 August 2000, 18 August 2000 and 10 October 2000.

60 It is clear from paragraph 9 of Acting Sgt. Capper’s affidavit that the Commissioner sought, through various of his officers and on a number of occasions, legal advice. The Commissioner claimed client legal privilege “concerning documents, or parts of documents, which comprise legal advice or a summary of legal advice provided”. This Court has not seen any of these materials.

61 I have quoted previously herein the opening paragraphs of the letter of application for the licence. It is not necessary to canvass the remaining details of that letter.

62 The letter of application was accompanied by a large volume of documentary material. The material was arranged in four Appendices. It is necessary to advert to their contents.

63 Appendix 1 comprised a so-described “Service Manual”. This Appendix runs to some 363 pages, divided into 7 sections. The Preface to the Manual, signed by the Medical Director-designate, and the General Manager-designate of the proposed Medically Supervised Injecting Centre says, among other things:

“This document is designed to guide staff in the administration and provision of quality care for the clients of the Medically Supervised Injecting Centre.

While the policies, procedures and protocols in this document are based on the mandatory requirements of NSW Health and best practice guidelines from similar community and public health services, some relate directly to the service delivery model of this Medically Supervised Injecting Centre. Therefore, it is expected that this manual will change and evolve over time as staff, the organisation and its practices change.”

64 There follows an Introduction which is a general historical and background canvass. The canvass makes the following observations about the so-described “Target Population”:

“While a range of studies have indicated that most injecting use occurs in private it is estimated that in Kings Cross 44% of injecting drug use takes place in public places (such as streets, parks and public toilets) or in ‘shooting galleries’ (Darke 1999). In August 1999 a survey was conducted of attendees of the K2 Needle Syringe Progam (located at the epi-centre of the street-based sex work and drug scene in Kings Cross) regarding their injecting practices. Among the 198 respondents, 52 (29%) last injected in a public place and 77 (44%) last injected alone. Eighty-three percent of those who injected in public indicated they would have preferred to use a Medically Supervised Injecting Centre.

The primary target population of an injecting room strategy is the population of public injectors and those who inject alone. Members of this group are typically very marginalised, have multiple health and social problems including, in some case, psychiatric conditions and homelessness.”

65 There follows a summary of so-described “Guiding Principles”. They are stated thus:

“The Medically Supervised Injecting Centre operates under the following fundamental principles:

- the MSIC will be operated in a manner that is consistent with the Uniting Care NSW social justice strategy

- the MSIC does not condone the use of illegal drugs, but accepts the fact that injecting drug use occurs and people must be provided with knowledge and skills necessary to make informed choices about their behaviours

- ongoing support for the MSIC from all levels of government and non government organisations and the local community must be encouraged

- staff of the MSIC will have appropriate authorisation, skills, training and clinical supervision and operate in a manner which is consistent with approved protocols and is respectful of clients’ rights

- clients of the MSIC should be clinically assessed for eligibility to use the service

- all records of the MSIC will be treated as confidential, however specific information as required to monitor and evaluate the service will be recorded each visit

- options for counselling, education, welfare assistance and referral to drug treatment and rehabilitation will be available to clients

- a Needle Syringe Program will be operated within the MSIC and the means for the safe disposal of injecting equipment will be provided

- while the MSIC will provide a safe and hygienic place to inject, staff will intervene in the event of unsafe injecting, intoxication or drug overdose

- in order to maximise access and equity of MSIC for all clients anti-social behaviour will not be tolerated

- involvement of the target group in MSIC planning will ensure better health outcomes for injecting drug users”

66 Succeeding sections of the Appendix deal in great, and practical, detail with: the scope of the proposed authorised trial; the service delivery model which will be the practical operating matrix of the proposed Centre; the proposed clients and what will be expected of them as participants in the proposed trial; the proposed management and staffing arrangements for the proposed Centre; and a listing of New South Wales Health Department Circulars of acknowledged standing in connection with the operation of the proposed Centre.

67 It is, obviously, impossible to compress into two or three simple paragraphs of a judgment the fine detail of such a mass of material. What is, in my opinion, relevant about the material is that it is much more than a mere grab-bag of generalities. It is, in my view, a precise, and an obviously well thought-through proposal.

68 Appendix 2 to the licence application takes up the requirements of section 36F(1)(b). The Appendix comprises a six-page overview and various supporting attachments.

69 The overview contains explanations of:

[1] The criteria that were adopted as best ensuring an appropriate choice of site for the proposed centre .

[2] The reasons why the premises at 66 Darlinghurst Road, Kings Cross best satisfied those criteria.

[3] The steps taken by the applicant to engage informed community support.

“The Uniting Church received a letter dated 3 March 2000 from Mr. Vic Smith, Mayor, South Sydney Council, in which he states on behalf of the Council “I urge the Uniting Church to commence the trial without delay” [letter attached]. Furthermore, in an article in the Sydney Star Observer, 4th May 2000, the Mayor is quoted as stating: “The question of the location remains a decision for the Government and the operator, and this Council will support their chosen location”. We submit that this represents support from local government level for the site.

Further, the Uniting Church has received correspondence dated 2nd May 2000 [letter attached] from Cr. Greg Waters, representing the North Ward of South Sydney Council. Councillor Waters gives full support to the selection of 66 Darlinghurst Road as a site, and provides a number of good reasons for his support.”

“Relevant Organisations”

“members of the local community”

“The Uniting Church commissioned Australian National Opinion Polls (ANOP) to conduct a telephone poll of local residents and business operators in the week commencing 29 May 2000 to measure the local community’s current level of “in principle support” for the establishment of an MSIC in Kings Cross and at the 66 Darlinghurst Road site in particular. (report of key ANOP poll results is enclosed)

The poll measured 73% in principle support for the establishment of an MSIC in Kings Cross. Although this is slightly lower than the 76% support of the 1998 poll, it should be noted that this ANOP poll surveyed all age groups and residential and commercial addresses according to the most recent census data for the area, whereas the previous polls were limited to persons under 65 and excluded commercial premises.

In regard to the question about “agreement with the choice of proposed site at 66 Darlinghurst Road, the poll showed that 68% of the respondents agreed or it didn’t matter to them (33% strongly agreed, 14% slightly agreed and 21% didn’t care) compared to 32% who disagreed (25% strongly and 7% slightly disagreed). The main reason for supporting the choice of site was because of the perceived proximity to drug users and therefore accessibility to those in need. The centrality of the location and the fact that it is not in a residential area were secondary reasons.

Conversely, those disagreeing with the choice of the proposed site feel that is too central and visible and may have a “honey pot effect” for drug use. Significantly, however, disagreement reduced by more than half (from 32% to 15%) if the community can be assured that the facility will operate in a way that is discreet and not obvious to passers by. The precedent of operating such services in a discreet way has already been established by K2, a needle syringe service also on Darlinghurst Road: only 21% of local residents (1998 poll) were even aware of the service’s existence after 12 months of operation.

The Uniting Church believes that this poll provides strong objective evidence that there is “a sufficient level of community acceptance” for the establishment of the MSIC at 66 Darlinghurst Road, Kings Cross.”

70 A report was made to the Director-General concerning this survey. It is at Exhibit D, Volume 2, Tab C2, pp 13-22incl. The conclusion put forward by the author of the Report, who was the Manager of the Population Health Information Unit of the New South Wales Department of Health, was:

“The methodology, conduct and reporting of the survey would appear to have been performed to typical industry standards for commercial telephone opinion and market research surveys. However, these standards are set based on the constraints of low cost, speed of results and simplicity of conclusions demanded by commercial clients. There is insufficient information provided in the survey report as it stands to draw any firm conclusions as to the adequacy of the survey in gauging the knowledge and attitudes of residents and local businesses to the proposed facility. A re-assessment of the survey would be possible if the additional information and analyses described above could be provided.”

71 Appendix 3 to the licence application is a so-described “Drug Action Plan” emanating from a body described as the “Kings Cross Community Drug Action Team”.

72 Of this Plan, it is sufficient to say that it clearly recognises the appropriateness of a Medically Supervised Injecting Centre as an element in a community-based plan to achieve practical improvements in the condition of drug addicts by stressing prevention, harm minimisation, and treatment programmes.

73 Appendix 4 to the licence application is a letter dated 13 June 2000 from Consulting Building Surveyors who express, concerning the subject premises, satisfaction “that the proposed works (as designed) meet the requirements of the Building Code of Australia”; and who certify relevant architectural, electrical and mechanical drawings.

74 The supplementary material to which reference is made in paragraph 5(b) of Acting Sgt. Capper’s affidavit can be dealt with briefly and as follows:

(a) notifies fourteen additional names as those of local residents and asserts that the total of such letters has reached two hundred and seventy-one.

(b) asserts the receipt of thirty-four additional community support letters, bringing the total of that category to one hundred and eighty-seven.

(c) notifies the written support of the local State Member of Parliament.

[2] The additional Drug Action Plan material does not detract from the support expressed in the version herein earlier noted.

“It is always possible for a hardworking political candidate to use an emotive issue to create the appearance of resident opposition. The constituents of this area have elected people at every tier of Government who support supervised injecting facilities. Over the four and a half years I have represented them, Kings Cross residents have repeatedly and consistently called for a supervised injecting facility. I support a supervised injecting facility at 66 Darlinghurst Road, Kings Cross and I am confident the majority of my constituents do so.”

75 On 7 August 2000 there went to the Commissioner a briefing paper from Miss/Mrs. Elphinstone. This paper reads as follows:

“

Background

On 16 June 2000 the application by the Uniting Church to run an authorised injecting centre in Kings Cross was received by the Police Service. The application was reviewed by the Service’s Operation Programs Branch as well as Court and Legal Services. A number of minor issues with the application were identified by these two areas. The team leader of the Drugs Program Branch, Mark McPherson subsequently met with the Rev. Harry Herbert from the Uniting Church regarding these issues on 1 August 2000. Mr. McPherson is now satisfied that all of the Service’s concerns have now been addressed and it is his recommendation that the Commissioner endorse the application by the Uniting Church.

Comment

The Service has had discussions with the Department of Health and is aware that the Department of Health also had some minor issues which were to be resolved but it was their intent to endorse the application.

Two joint letters are currently being drafted by the Police Service and the Department of Health, one to Minister Della Bosca informing him of their intent to grant the application, the second to the Uniting Church informing them of the Commissioner/Director General’s decision.

Recommendation

That the Minister be informed of the Commissioner’s intent to approve the application by the Uniting Church to maintain a supervised injecting centre at Kings Cross.”

76 There appears at the foot of the paper the Commissioner’s initials and his manuscript note “This will be done in concert with D.G. of Health 7/8”.

77 On 18 August 2000 a further briefing paper went to the Commissioner. The relevant part of it read:

“

Background

In June 2000, the Police Service received an application by the Uniting Church (application and supporting material contained in grey “readifile”). The Service’s Operation Programs Branch as well as Court and Legal Services reviewed the application. As a result of this review a number of issues were identified that required further clarification (Annex A). The team leader of the Drugs Program Branch, Mark McPherson subsequently met with the Rev. Harry Herbert from the Uniting Church regarding these issues on 1 August 2000. Mr. McPherson was satisfied that all of the Service’s concerns were addressed (Annex B).

Separate from the application, correspondence has been received by the Service that is critical of the Uniting Church’s application for a MCIS licence. In particular the Kings Cross Chamber of Commerce has written on a number of occasions to the Commissioner, as well as to the Department of Health. Copies of the correspondence and the issues raised have been identified and examined by both the Department of Health and the Police Service (Annex C).

Comment

As part of the application review process, members of the Police Service have held discussions with officers from the Department of Health. As a result of these discussions and material provided to the Service, the outstanding issues were identified as:

- Resolution of any conditions identified by police in their discussions with the Uniting Church concerning the location of MSIC

- Identification of the appropriate “legal entity” to which the licence would be granted

- “sufficient level of acceptance at community and local government level, for the establishment of an injecting centre at the premises” (36F(1)(b) of the Drug Misuse and Trafficking Act 1985).

Material addressing these issues has been prepared and is attached to this submission.

Two joint letters have subsequently been drafted by the Police Service and the Department of Health, one to Minister Della Bosca informing him of their intention to grant the application, the second to the Uniting Church informing them of the Commissioner/Director General’s decision. These letters are also attached for the Commissioner’s signature, if he agrees to the recommendations listed below. It is intended that once consultation over conditions and clarification of the “legal entity” are resolved then a licence will be co-signed by the “responsible authorities” granting the licence and the commencement of the 18 month trial period. (Comment on draft letters from Court & Legal Services at Annex E.)

Recommendations

- That the Commissioner examine the application submitted by the Uniting Church to operate a MCIS at 66 Darlinghurst Road, Kings Cross and the material obtained by the Service which addresses the associated issues including the correspondence with the Kings Cross Chamber of Commerce.

- That if the Commissioner approves the Uniting Church’s application the letters to Minister Della Bosca and Rev. Herbert are signed.

- That Mr. McPherson of Drug Programs Branch accompany a Department of Health representative when meeting with the Rev. Herbert to inform him of the “responsible authorities” decisions.

- That the Minister’s Office be informed.”

78 There appears at the foot of this document the Commissioner’s signature, and in what appears to be the Commissioner’s hand-writing the notation: “Agreed. 18.8.2000”.

79 The briefing paper is accompanied by ten attachments.

80 Attachment 4 is an assessment sheet in a form apparently agreed upon by the Department of Health and the Police Service. It is divided into sections dealing separately with: internal management protocols; the sufficiency of community and local government acceptance; the suitability of the premises; the compliance with appropriate standards of any required building work; and the current community drug action plan.

81 As to community and local government acceptance, the assessment offered is:

“The applicant has provided the following information regarding community and local government acceptance of the proposed premises at 66 Darlinghurst Road, Kings Cross:

- establishment of a community consultation committee (met 10 times between December 1999 to June 2000)

- 39 potential sites assessed according to guiding principles, ambulance attendance data on areas in which Nalxone was administered and regard to section 36F, subsection (1)(c) of the Act

- public meetings held (December 1999 and March 2000)

- meetings with community groups/local community and print media (x4 in May 2000)

- print material distributions (fact sheets etc.) to the local community (March 2000, 21/22 May and 27/28 May 2000)

- letter of support received 3 March 2000 from Vic Smith, Mayor, South Sydney Council (not attached to application) and Cr. Greg Waters, North Ward, South Sydney Council (not attached to application)

- letter of support from Clover Moore, Member for Bligh (received by the Department 23 June 2000)

- 271 local resident support letters received as at 6 July 2000 (list of names provided in application)

- 187 community support letters received as at 6 July 2000 (names not specified in application)

- letters of support received from 17 organisations (names of organisations listed in application)

- community opinion poll (ANOP Research) conducted in May 2000 (support for proposed premises reported in poll to be 68% agreed and 32% disagreed, issues of honey pot and public amenity identified)

82 Attachment 5 collects a number of internal police briefing papers and reports. They show a continuing and careful process of evaluation of the pending application. A briefing paper of 31 July 2000 is included in Attachment 5. It was prepared, obviously, for the assistance of the Commissioner at a meeting due to be held between him and the Director-General on 31 July 2000. Of particular present relevance is the following comment offered to the Commissioner on the issue of sufficiency of community support:

“ - Many names are supplied as evidence of community support. More information should be provided as to how these people came to provide support and examples of their letters of support should be provided.

- There is some opposition to the centre (such as from the Kings Cross Chamber of Commerce). Information should be supplied as to how the Uniting Church will communicate with such opposition.”

83 Attachment 6 collects a deal of correspondence passing between the plaintiff and the Commissioner. The plaintiff takes in the correspondence a stance that is, as the plaintiff puts the point, “implacably opposed” to the licensing of the subject premises, although it is not comprehensively opposed to any medically supervised injecting centre in the Kings Cross area. The correspondence shows clearly that the representations of the plaintiff were taken seriously, and were considered and assessed seriously by those charged to advise the Commissioner on those aspects of the application.

84 Attachment 7 deals with the question of the appropriate legal entity to take any approved licence.

85 Attachment 8 deals with local government support. It contains a brief and unqualified statement of support from four recently elected councillors of South Sydney Council; a copy of the Mayoral letter previously herein mentioned; and a copy of a letter of support faxed from the local State Member of Parliament.

86 Attachment 9 deals with community support and consultation. It contains copies of materials previously mentioned herein; and, as well, copies of ten form letters of opposition to the licensing of the subject premises.

87 Attachment 10 deals with specific traffic and environmental issues raised by the Commissioner in connection with the suitability of the subject premises. A fair reading of this material seems to me to indicate that the Commissioner gave the issues serious consideration and resolved them reasonably.

88 On 10 October 2000 Miss/Mrs. Elphinstone submitted a further briefing paper. It contains the following comment and recommendations:

“

Comment

The Police Service and the Department of Health are now satisfied that those issues which required resolution: legal entity, internal management protocols and infection control policies have been finalised. As a result the responsible authorities have now agreed to issue the licence to operate a Medically Supervised Injecting Centre at 66 Darlinghurst Road, Kings Cross. Letters to the Reverend Herbert and to Minister Della Bosca have now been signed by both authorities (copies attached).

Recommendations

1. The Minister be informed that the licence to operate a Medically Supervised Injecting Centre at 66 Darlinghurst Road, Kings Cross has been signed by both responsible authorities.

2. That the correspondence to Rev. Herbert and Minister Della Bosca are noted.”

89 The Commissioner himself does not appear to have signed this document, although it has been signed on his behalf by his Chief of Staff.

90 On 10 October 2000 the Commissioner did initial, however, a briefing paper compiled by the Manager of the Drug Programs Coordination Unit in the Police Service. That paper reported on the resolution of outstanding issues and recommended that the Commissioner, having considered the information provided in the paper, sign, should he so approve, an attached form of licence that was said to have been approved by the Police Service and by the Legal and Legislative Services Branch of the New South Wales Department of Health.

91 A fair overview of the foregoing history of the Commissioner’s handling of the application seems to me to justify these conclusions:

[1] The Commissioner did not at any stage of the progress of the application in his office simply abdicate his statutory responsibility respecting the issue of a licence. The Commissioner took, as in my opinion he was plainly entitled to do, appropriate police and other professional advice; but at all relevant stages of the progress of the application he himself considered the advice tendered to him, and himself decided to accept it and to proceed accordingly.

[2] The advice tendered to the Commissioner and accepted by him has not been shown, in my opinion, to have overlooked any statutory requirement; or to have made a hasty, or a haphazard, or a biased assessment of the compliance of the application with the statutory criteria.

[3] The plaintiff is entitled to adhere, as it plainly does, to its “implacable opposition” to the licensing, in particular, of the subject premises. The plaintiff is entitled to maintain, as it plainly does, that the Commissioner’s decision is simply wrong in fact. But that is not enough to demonstrate such unreasonableness as would justify the intervention of this Court conformably with the principles that I have earlier herein discussed.

92 In the case of the Director-General, the convenient starting point is an affidavit affirmed on 20 March 2000 by one Julie Johnston, Director of the Private Health Care Branch of the New South Wales Department of Health. This affidavit says, relevantly to the Director-General, exactly what is aid by Acting Sgt. Capper in paragraphs 5(a) and (b) of his affidavit read in the Commissioner’s case. Miss/Mrs Johnston’s affidavit was read at the hearing subject to the deletion from its paragraph 9 of the words “and were considered by him”.

93 In the case of the Director-General, as in that of the Commissioner, briefing papers and submissions were put to him for his consideration. There were four such submissions dated 8 August 2000, 14 August 2000, 17 August 2000 and 4 October 2000.

94 I do not propose to review, as I have done in the case of the Commissioner, the detail of the Director-General’s handling of the application. That is so because it is clear from the evidence that there was ongoing contact and cooperation between the Commissioner and the Director-General; and because the relevant issues were, in substance if not always in form, articulated and resolved by the Director-General and his advisers in the same way as was done by the Commissioner and his advisers.

95 The conclusions which I have expressed in the case of the Commissioner, are my conclusions, mutatis mutandis, in the case of the Director-General.

96 For the whole of the foregoing reasons I refuse the relief sought in paragraphs 2 and 3 of the Summons. It follows that the plaintiff has failed to make good any of its claims to relief as set out in paragraphs 1, 2 and 3 of the Summons. In that event there is no basis upon which the plaintiff is entitled to the relief claimed in the balance of the Summons; and all such relief is refused.

The Submissions made by the Voice of the People Party

97 At the commencement of the hearing of the Summons a Mr. Spanswick applied for leave to intervene in the proceedings. Mr. Spanswick said that he was making that application as agent for an organisation called ‘The Voice of the People Party’. I refused the application, delivering ex tempore a short judgment which has been transcribed and placed with the Court file for any necessary future reference.

98 At the conclusion of the hearing of the Summons, Mr. Spanswick renewed his application for leave to intervene. After discussion with Mr. Spanswick, and having heard counsel for the parties, I decided that the easiest way of dealing with Mr. Spanswick’s points was to take them under consideration and to say something about them in this judgment. Mr. Spanswick, and all counsel, indicated that they were content that I should take that course.

99 What Mr. Spanswick wishes to contend can be put simply. He points to a number of particular sections of the Customs Act. He contends that the effect of those provisions, when read in conjunction with section 109 of the Commonwealth Constitution, entails that the Drug Summit Act is invalid, and that any purported licence issued pursuant to it is, also and necessarily, invalid.

100 I shall set out hereunder a tabulated reference to each of the sections upon which Mr. Spanswick relied, together with my comments about each such section:

s.33 This section needs to be read in conjunction with s.30. S.30 defines generally what goods are to be subject to the control of the Customs. As to any such goods, s.33 makes it an offence to move, alter or interfere with, in any unauthorised way, goods that are so subject to the control of the Customs. In my opinion heroin which is brought to the subject premises for the purpose of lawful injection in accordance with the Drug Summit Act is not within the categories defined in s.30; and is not, therefore, covered by s.33.

s.229 This section provides, so far as is at present relevant, that all prohibited imports, of which heroin is certainly one, are forfeited to the Crown. If goods are thought to be forfeited goods, then an application may be made in accordance with s.203 for the issue of a seizure warrant. Any such application for a seizure warrant must considered in the light of, among other relevant factors, the factors that are enumerated in ss.(3). Having regard to the factors defined in paragraphs (a), (b) and (d) of ss.(3), to go no further, I would think it doubtful that a seizure warrant would be authorised merely to frustrate the operation according to law of the Drug Summiit Act .

s.231 It is sufficient to say that in my opinion any lawful user of the proposed injecting centre would not come within the descriptions for which provision is made in ss.(1)(a), (b) and (c).

s.232 This section provides penalties in the case of bribery or collusion involving an officer of the Customs or Police. I do not understand, as at present advised, how it is thought that this section might apply to anybody connected with the lawful operation of the proposed injecting centre.

s.232A This section creates offences related to the unlawful rescuing of seized goods and the unlawful obstruction of a customs officer in the execution of his duty. I do not understand, as at present advised, how it is thought that this section might apply to anybody connected with the lawful operation of the proposed injecting centre.

s.233(1)(b) This provision, read in conjunction with the other relevant provisions of s.233, makes it a punishable offence to import, relevantly, heroin. The evidence does not suggest that the intended clients of the proposed injecting centre are going to be heroin importers. The available evidence suggests that they are going to be drug addicts who have bought by retail shots of heroin. The heroin might well have been imported originally; but the evidence does not suggest that it will have been imported by the people who are the contemplated clients of the proposed injecting centre.

s.223B(1)(a)(c)
(caa) and (ca) Put simply, these sections create criminal offences in respect of the possession, without reasonable excuse, of, relevantly, heroin. I should think that it is, at least, arguable that a person who has lawful recourse to the proposed injecting centre has, in the relevant statutory sense, a reasonable excuse for the possession of a comparatively small quantity of heroin for personal injecting.

101 As to section 109 of the Commonwealth Constitution, it is sufficient to say that there is in hand no evidence whatsoever to suggest that it was ever within the contemplation of the Commonwealth Parliament that the Customs Act should in the requisite constitutional sense cover the field so as to be inconsistent with the proposed operation of a medically supervised injecting centre licensed pursuant to the Drug Summit Act. The Customs Act is undoubtedly an important piece of public legislation, and it has important public work to do; but that work has no connection with the putting into effect of a precisely and carefully controlled social experiment aimed at alleviating some of the worst consequences of individual addiction to substances such as heroin.

102 For the whole of the foregoing reasons I have come to the conclusion that the submissions put forward by Mr. Spanswick are unsound in law, and I reject them.

103 Orders

(1) The plaintiff’s Summons is dismissed with costs.

**********

Last Modified: 04/10/2001

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Citations

Kings Cross Chamber of Commerce and Tourism Inc v The Uniting Church of Australia Property Trust (NSW) and ors. [2001] NSWSC 245

Most Recent Citation

Spanswick v The Honourable Robert John Carr, MP [2003] NSWSC 393

Cases Citing This Decision

1

Spanswick v The Honourable Robert John Carr, MP [2003] NSWSC 393

Cases Cited

9

Statutory Material Cited

5

Cody v J H Nelson Pty Ltd [1947] HCA 17

Collector of Customs v AGFA-Gevaert Ltd [1996] HCA 36

CITATION:	Kings Cross Chamber of Commerce and Tourism Inc v The Uniting Church of Australia Property Trust (NSW) & ors. [2001] NSWSC 245
FILE NUMBER(S):	SC 30077/00
HEARING DATE(S):	21.3.01 and 22.3.01
JUDGMENT DATE:	5 April 2001
PARTIES :	Kings Cross Chamber of Commerce and Tourism Inc The Uniting Church of Australia Property Trust (NSW) - 1st defendant Director-General of the Department of Health for NSW - 2nd defendant The Commissioner of Police for NSW - 3rd defendant
JUDGMENT OF:	Sully J

COUNSEL :	Dr. C. Birch SC - Plaintiff I.G. Harrison SC/H. Packer - 1st Defendant S.J. Gageler/R. Lancaster - 2nd & 3rd Defendants
SOLICITORS:	Pigott Stinson Ratner Thom - Plaintiff E.H. Tebutt & Sons - lst Defendant I.V. Knight, Crown Solicitor - 2nd & 3rd Defendants
LEGISLATION CITED:	Drug Summit Legislative Response Act 1999 (NSW) Drug Misuse & Trafficking Act 1985 (NSW) Uniting Church in Australia Act 1977 (NSW) Customs Act 1901 (Commonwealth) Commonwealth Constitution
CASES CITED:	Cooper Brookes (Wollongong) Pty Limited v The Commissioner of Taxation of the Commonwealth of Australia (1981) 147 CLR 297 Collector of Cutoms v Agfa-Gevaert Limited (1996) 186 CLR 389 Minister for Immigration and Multi-Cultural Affairs v Eshetu (1999) 197 CLR 611 Public Service Board of NSW v Osmond (1986) 159 CLR 656 at 662-664 Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154 at 164 B-G Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Regina v Peterborough City Council ex parte Quietlynn Ltd (1986) 85 LGR 249
DECISION:	Summons dismissed with costs