The Palace Gallery Pty Ltd v The Liquor and Gambling Commissioner - [2014] SASCFC 26

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Case Stated)
THE PALACE GALLERY PTY LTD v THE LIQUOR AND GAMBLING COMMISSIONER & ORS
[2014] SASCFC 26
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Blue and The Honourable Justice Stanley)
4 April 2014
CONSTITUTIONAL LAW - THE NON-JUDICIAL ORGANS OF GOVERNMENT - THE LEGISLATURE - LEGISLATION AND LEGISLATIVE POWERS - EXAMINATION OF VALIDITY OF LEGISLATION BY COURTS
STATUTES - ACTS OF PARLIAMENT - VALIDITY OF LEGISLATION GENERALLY
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - PARTICULAR CLASSES OF ACT - AMENDING ACTS
STATUTES - SUBORDINATE LEGISLATION - VALIDITY - UNREASONABLENESS
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - CONSIDERATION OF EXTRINSIC MATTERS - EXPLANATORY MEMORANDA, PARLIAMENTARY DEBATES AND MATERIALS ETC
Case stated of questions of law reserved for consideration of the Full Court.
The plaintiff, Palace Gallery, sought declarations that the Liquor Licensing (Late Night Trading) Code of Practice 2013 (‘the Code’) or certain clauses thereof were invalid and an injunction restraining the defendants, the Liquor and Gambling Commissioner, South Australia Police and the State of South Australia, from enforcing the Code or those provisions.
The Commissioner published the Code purportedly acting under former s 11A of the Licensing Act 1997 (SA) (‘the Act’). At the time the Code was published and came into operation, s 11A of the Act provided that a code of practice may include measures designed for one of eight enumerated purposes. The Code includes provisions that affect the business operated by the plaintiff. After the proceedings were initiated, s 11A of the Act was amended by the Liquor Licensing (Miscellaneous) Amendment Act 2013 (SA) (‘the Amending Act’) such that a code of practice could include measures reasonably considered appropriate and adapted to the furtherance of the objects of the Act. The Amending Act by clause 3 of Schedule 1 also provided that a code of practice in force or purportedly in force at the commencement of the amendment was taken to be valid.
The plaintiff submitted that clause 3 of Schedule 1 to the Amending Act did not apply to the Code or alternatively was invalid because it offended the judicial integrity principle emanating from Chapter III of the Commonwealth Constitution because it directed the Court, by legislation, to find that the Code was valid.
The plaintiff submitted that the Code or parts of it were invalid because they fell outside of the remit of the code making power conferred by s 11A.
Held (the Court):
1. Clause 3 of Schedule 1 applies to the Code. It is not limited to codes of practice which were used under the Act before it was amended (at [31]).
2. It was within the scope of the legislative power of State Parliament to change the existing law in a way that had an effect on pending proceedings (at [34]).
3. The operation of clause 3(1) of the Amending Act does not interfere with the institutional integrity of the Court and is not inconsistent with the Court’s decisional independence. Clause 3(1) is constitutionally valid (at [50]).
4. Clause 12 of the Code is appropriate and adapted to the furtherance of the objects of the Act. Clause 12 is valid (at [73]-[74]).
Liquor Licensing Act 1997 (SA) s 3, s 11A, s 29, s 31, s 40, s 42; Supreme Court Act 1935 (SA) s 49; Liquor Licensing (Miscellaneous) Amendment Act 2013 (SA) s 6, Schedule 1; Commonwealth Constitution Chapter III; Migration Act 1956 (Cth) s 474; Casino Control Act 1992 (NSW) s 155; Wheat Industry Stabilisation Act (No 2) (1946) (Cth); Waterworks Act 1932 (SA) s 10, referred to.
Darling Casino Ltd v NSW Casinio Control Authority (1996 - 1997) 191 CLR 602; Building Construction Employees & Builders Labourers' Federation (NSW) v Minister for Industrial Relations (1986) 7 NSWLR 372, distinguished.
Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476; Nelungaloo Pty Ltd v The Commonwealth (1948) 75 CLR 495; Liyanage v The Queen [1967] 1 AC 259; The Queen v Humby; Ex parte Rooney (1973) 129 CLR 231; Nicholas v The Queen (1998) 193 CLR 173; Australian Building Construction Employees' & Builders Labourers' Federation v The Commonwealth (1986) 161 CLR 88; Chu Kheng Lim & Ors v Minister for Immigration, Local Government and Ethnic Affairs & Anor (1992) 176 CLR 1; HA Bachrach Pty Ltd v Queensland & Ors (1998) 195 CLR 547; Re Macks & Ors; Ex parte Saint (2000) 204 CLR 158; Nominal Defendant v GLG Australia Pty Ltd (2006) 228 CLR 529; Slattery v Naylor (1888) 13 App Cas 446; Williams v Melbourne Corporation (1933) 49 CLR 142; Re Wakim; Ex parte McNally (1999) 198 CLR 511; Australian Education Union v General Manager, Fair Work Australia (2012) 246 CLR 117; Attorney-General (SA v Corporation of the City of Adelaide (2013) 87 ALJR 289; Kruse v Johnson [1898] 2 QB 91; South Australia v Tanner (1989) 166 CLR 161, discussed.
Kable v State of New South Wales (1996) 189 CLR 51; R v Trade Practices Tribunal Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361; South Australia v Totani (2010) 242 CLR 1; Forge v Australian Securities and Investments Commission (2006) 228 CLR 45; Owen v South Australia (1986) 66 SASR 251; K-Generation v Liquor Licensing Court (2009) 237 CLR 501; Australian Education Union v Department of Education and Children's Services (2012) 248 CLR 1; Brunswick Corporation v Stewart (1941) 65 CLR 88; Ex parte Stafford; Re Shire of Boroondara (1894) 20 VLR 23; Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources (2005) 138 LGERA 11; Bienke v Minister for Primary Industries & Energy (1994) 125 ALR 151; Re Minnister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; Austral Fisheries Pty Ltd v Minister for Primary Industries & Energy (1989) 166 CLR 161, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"'decisional independence" and "institutional integrity""

THE PALACE GALLERY PTY LTD v THE LIQUOR AND GAMBLING COMMISSIONER & ORS
[2014] SASCFC 26
Full Court: Kourakis CJ, Blue and Stanley JJ

THE COURT: This is a case stated of questions of law reserved for consideration of the Full Court.[1]
[1] Supreme Court Act 1935 (SA) s 49.
The plaintiff, The Palace Gallery Pty Ltd, seeks a declaration that the Liquor Licensing (Late Night Trading) Code of Practice 2013 (“the Code”) or certain clauses thereof is invalid and an injunction restraining the defendants, the Liquor and Gambling Commissioner, South Australia Police and the State of South Australia, from enforcing the Code or those provisions.[2]
[2] When the action was instituted and the case was stated, Woolshed on Hindley Pty Ltd was the second plaintiff. However, before the hearing of the case stated Woolshed on Hindley Pty Ltd discontinued its claim.
The Code was made and published by the Commissioner under s 11A of the Liquor Licensing Act 1997 (SA) (“the Act”). The Code applies subject to limitations and exceptions to licensees who trade at any time between 3.00 am and 7.00 am and are authorised to supply liquor for consumption on licensed premises (“late night licensees”). The central provisions of the Code are clause 12, which prohibits late night licensees, subject to an exception, from permitting any customer to enter the licensed premises between 3.01 am and 7.00 am and clause 9, which prohibits late night licensees from supplying alcohol for consumption on parts of the licensed premises to which the general public has access. Clauses 8, 10, 13 and 14 impose requirements upon late night licensees or a subset thereof to manage footpath queues, customers’ behaviour, screen entrance using a metal detector and operate a digital CCTV system.
At the time when the Code was published and came into operation, s 11A(2) of the Act provided that a code of practice may include measures designed for any one or more of eight enumerated purposes. The plaintiff contends that clauses 8 to 10 and 12 to 14 of the Code are invalid because they were not designed for any of the eight enumerated purposes, the remaining provisions of the Code are not severable from the invalid provisions and the Code as a whole is invalid.
With effect on 1 November 2013, the Act was amended by the Liquor Licensing (Miscellaneous) Amendment Act 2013 (SA) (“the Amending Act”) to substitute a new s 11A(2) which eliminated the enumerated categories and provided, without limitation, that a code of practice may include measures reasonably considered appropriate and adapted to the furtherance of the objects of the Act. At the same time, clause 3 of Schedule 1 of the Amending Act provided that a code of practice published and purportedly in force on 1 November 2013 will be taken to be valid and always to have been valid if it would have been valid had it been published under the new s 11A of the Act.
The plaintiff contends that clause 3 of Schedule 1 to the Amending Act does not apply to the Code or in the alternative is rendered invalid by the judicial integrity principle emanating from Chapter III of the Commonwealth Constitution.
The plaintiff contends that in any event clause 12 of the Code is invalid under both the former and the present s 11A because it is inconsistent with other provisions of the Act conferring authority to trade in liquor or providing for the opening and closing of licensed premises to the public or because s 11A does not empower a code of practice to exclude a common law right of the licensee to permit entry to members of the public or because s 11A(3) does not empower a code of practice to exclude a particular licensee from its operation.
On 14 November 2013, by the consent of the parties, a Judge of this Court stated a case and reserved questions of law for consideration of the Full Court. The questions of law reserved are as follows:
1.     Are all or any of:
(a)     clause 8 of the Code;
(b)     clause 9 of the Code;
(c)     clause 10 of the Code;
(d)     clause 13 of the Code: and/or
(e)     clause 14 of the Code:
invalid in their application to the Plaintiffs because they exceed limitations or restrictions expressed in one or more of the paragraphs of section 11A(2) of the Act?
2.Is clause 12 of the Code invalid in its application to the Plaintiffs by reason of any of the following (either severally or in combination):
(a) it exceeds limitations or restrictions expressed in one or more of the paragraphs of section 11A(2) of the Act;
(b) it is inconsistent with the authority to trade in liquor which the Act confers upon the holder of a Special Circumstances Licence with an extended trading authorisation under the Act;
(c) it varies or departs from provision made by the Act for the opening and closing of licensed premises to the public and/or the exclusion of persons from licensed premises;
(d) it excludes a common law right of a licensee to permit members of the public to enter its premises and in so doing exceeds the power conferred by section 11A of the Act; and/or
(e) the exclusion of a particular licensee (namely the Skycity Adelaide Casino) from its operation exceeds a limitation or restriction expressed or implied in section 11A(3) of the Act?
3.Is the Code as a whole invalid in its application to the Plaintiffs because:
(a)     one or more of clauses 8, 9, 10, 12, 13, 14 is invalid by reason of the matters identified in questions 1 and 2 above, and cannot be severed from the Code; and/or
(b) the Code, by reference to the expressed purposes in clause 3 of the Code, exceeds limitations or restrictions expressed in one or more of the paragraphs of section 11A(2)?
4.If the answer to questions 1(a)-(e) or 2(a) is “Yes”, are any of the invalid clauses capable of being read down so as to have a valid operation, and if so, how?
5.If the answer to each of questions 2 and 3 is “No”, does clause 12 of the Code nevertheless have no application to the Plaintiffs because it is inconsistent with the conditions of their respective Special Circumstances Licences granted under the Act?
6.Is clause 2 of Schedule 1 of the Liquor Licensing (Miscellaneous) Amendment Act 2013 (SA) invalid?
7.Is clause 3 of Schedule 1 to the Liquor Licensing (Miscellaneous) Amendment Act 2013 (SA) invalid?
It is agreed by the parties that clause 2 of Schedule 1 of the Amending Act has no relevance and question 6 does not arise. It is further agreed by the parties that, if question 7 were to be answered in the negative and it were to be held that clause 3 of Schedule 1 to the Amending Act applies to the Code, it would be unnecessary and inappropriate for the Court to answer questions 1, 2(a), 3(a) (except by reference to clause 12), 3(b) and 4. For this reason, it was agreed that the Court should first answer question 7 and then answer the remaining questions as appropriate.
Background
The plaintiff operates businesses known as The Palace and Red Square in Hindley Street, Adelaide. It holds a Special Circumstances Licence issued pursuant to the Act (“the Licence”).
The Licence refers to 23 designated areas. Area 5 is located on the footpath of Hindley Street and is subject to special conditions, including restricted trading hours (8.00 or 9.00 am to 5.00 or 6.00 am depending on the day of the week), the maximum number of persons present (56) and that liquor may only be supplied for consumption by a patron whilst seated at a table. In respect of the other areas, the Licence authorises the sale of liquor for consumption on the licensed premises at any time on any day (subject to exceptions). There are various limits upon the number of persons present in the various areas such that the combined limit for all areas except Area 5 is 1,104 persons. Condition 1 provides that the licensed premises may remain open at all times during which the plaintiff is authorised under the licence to trade.
On 6 June 2013, the Commissioner published the Code purportedly acting under former s 11A of the Act. The Code came into operation on 1 October 2013.
There are approximately 98 late night venues.
The Liquor Licensing Act
Section 3(1) of the Act sets out the object of the Act as follows:
(1)The object of this Act is to regulate and control the sale, supply and consumption of liquor for the benefit of the community as a whole and, in particular—
(a)     to encourage responsible attitudes towards the promotion, sale, supply, consumption and use of liquor, to develop and implement principles directed towards that end (the responsible service and consumption principles) and minimise the harm associated with the consumption of liquor; and
(b)     to further the interests of the liquor industry and industries with which it is closely associated—such as the live music industry, tourism and the hospitality industry—within the context of appropriate regulation and controls; and
(c)     to ensure that the liquor industry develops in a way that is consistent with the needs and aspirations of the community; and
(d)     to ensure as far as practicable that the sale and supply of liquor contributes to, and does not detract from, the amenity of community life; and
(e)     to encourage a competitive market for the supply of liquor; and
(f)     to ensure that the sale and supply of liquor occurs in such a manner as to minimise the risk of intoxication and associated violent or anti‑social behaviour including property damage and causing personal injury.
Former section 11A relevantly provided as follows:
(1)For the purposes of this Act, the Commissioner may, by notice in the Gazette, publish a code of practice that has been approved by the Minister.
(2)A code of practice may include measures designed for any of the following purposes:
(a)     to minimise the harmful and hazardous use of liquor or promote responsible attitudes in relation to the promotion, sale, supply and consumption of liquor;
Examples—
•       Measures requiring staff to undertake specified accredited training.
•Measures prohibiting advertising of liquor in a manner likely to result in the liquor having a special appeal to minors or being mistaken for confectionery or non‑alcoholic beverage.
•Measures otherwise regulating advertising of liquor or licensed premises or schemes for the promotion of liquor or licensed premises.
•Measures requiring steps to be taken to prevent liquor from being sold or supplied to intoxicated persons.
(b)     to minimise offence, annoyance, disturbance or inconvenience to people who reside, work or worship in the vicinity of licensed premises, or to minimise prejudice to the safety or welfare of children attending kindergarten, primary school or secondary school in the vicinity of licensed premises, resulting from activities on the licensed premises, or the conduct of people making their way to or from the licensed premises;
(c)     to prevent offensive behaviour on licensed premises (including offensive behaviour by persons providing or purporting to provide entertainment (whether live or not) on the licensed premises);
(d)     to protect the safety, health or welfare of customers, staff or both;
(e)     to protect the safety, health or welfare of minors on licensed premises;
(f)    to ensure public order and safety at events expected to attract large crowds;
(fa)    to impose special requirements for the sale of liquor for consumption on licensed premises between 4 am and 7 am on any day for the purpose of reducing alcohol‑related crime and anti‑social behaviour;
Examples—
•       Measures prohibiting the supply of liquor for consumption on any part of the licensed premises comprised of a footpath or other outdoor area.
•       Measures requiring security to be provided by means of closed circuit television or similar electronic surveillance and the retention of recorded images.
•       Measures requiring the presence of an authorised person performing the duty of promoting responsible attitudes in relation to the sale, supply and consumption of liquor as his or her principal duty.
•       Measures prohibiting the sale of liquor in a form that may encourage rapid or excessive consumption of liquor.
•       Measures prohibiting the sale of liquor in glass containers in circumstances of high risk.
•       Measures requiring incidents to be recorded in a register that will be made available for inspection by authorised persons.
(g)     to otherwise promote compliance with the provisions and objects of this Act.
(3)     A code of practice may—
(a)     be of general or limited application; and
(b)     vary in operation according to factors stated in the code; and
(c)     provide for the granting by the Commissioner of exemptions (conditional or unconditional) from specified provisions of the code.
...
Section 29 provides:
A person who sells liquor without being licensed under this Act to do so is guilty of an offence.
Section 31 relevantly provides:
(1)A licence authorises the licensee to sell and supply liquor in accordance with the terms and conditions of the licence (including the trading hours fixed by the licensing authority).
(2) Licences are to be of the following classes:
...
(i) special circumstances licence;
...
Section 40 relevantly provides:
(1)A special circumstances licence authorises the licensee in accordance with the terms and conditions of the licence—
(a)     to sell liquor for consumption on or off the licensed premises—
(i)    on any day (other than a Sunday) between 5 am and midnight; and
(ii)     on a Sunday between 11 am and 8 pm; and
(b)if an extended trading authorisation is in force, to sell liquor for consumption on or off the licensed premises during the whole or any part of the following hours as is specified in the authorisation:
(i)on any day (other than a Sunday, Good Friday, the day after Good Friday, Christmas Day or the day after Christmas Day) between midnight and 5 am;
(ii)on a Sunday (not being Christmas Day or the day after Christmas Day) between midnight and 11 am and between 8 pm and midnight;
(iii)    on Good Friday between midnight and 2 am;
(iv)    on Christmas Day between midnight and 2 am;
(v)if Christmas Day or the day after Christmas Day is a Sunday, on that Sunday between 8 pm and midnight; and
...
(2)A special circumstances licence cannot be granted unless the applicant satisfies the licensing authority that—
(a)     a licence of no other category (either with or without an extended trading authorisation) could adequately cover the kind of business proposed by the applicant; and
(b)     the proposed business would be substantially prejudiced if the applicant's trading rights were limited to those possible under a licence of some other category.

Section 42(1) provides:
(1)It is a condition of every licence that the licensee must comply with the Commissioner's codes of practice.
The Liquor Licensing (Miscellaneous) Amendment Act 2013 (SA)
As noted above, the Amending Act, inter alia, deleted sub-section (2) of s 11A and substituted the following:[3]
Without limiting the matters that may be included in a code of practice, a code of practice may include measures that can reasonably be considered appropriate and adapted to the furtherance of the objects of this Act.
[3] Section 6(1) of the Liquor Licensing (Miscellaneous) Amendment Act 2013 (SA).
Clause 3 of Schedule 1 of the Amending Act provides:
3—Certain codes of practice taken to be valid:
(1)     A code of practice, and any provision of a code of practice, that—
(a)was published under section 11A of the Liquor Licensing Act 1997 (as in force before the commencement of this clause); and
(b)is purportedly in force on the commencement of this clause,
will be taken to be valid, and always to have been valid, if the code of practice or provision would have been valid had it been published under section 11A of the Liquor Licensing Act 1997 as amended by this Act.
(2) The requirements of section 11A(4a) do not apply in relation to a code of practice referred in to subclause (1).
(3)     However, no action may be taken under the Liquor Licensing Act 1997 in respect of a person's refusal or failure to comply with a provision of the Late Night Trading Code of Practice during the period commencing on 1 October 2013 and concluding on the day on which this clause comes into operation.
(4)     In this clause—
Late Night Trading Code of Practice means the Late Night Trading Code of Practice under the Liquor Licensing Act 1997.
Question 7 – the application and validity of clause 3 of Schedule 1
The defendants contend that the amendment made by the Amending Act on 1 November 2013 to s 11A(2) removes any doubt about the extent of the Commissioner’s code making power under s 11A. They contend that clause 3 of Schedule 1 to the Amending Act provides that the validity of a code of practice purportedly in force on 1 November 2013 should be determined by reference to the power conferred on the Commissioner by the amended s 11A.
The plaintiff contends that clause 3 of Schedule 1 does not, on its proper construction, apply to the making of the Code or any provision of the Code. In the alternative, if clause 3 of Schedule 1 purports to apply to the making of the Code or any provision thereof, it is invalid.
It is convenient to address each of the plaintiff’s contentions in turn.
The construction of clause 3 of Schedule 1 to the Amending Act
The plaintiff contends that clause 3(1) of Schedule 1 applies to a code of practice or a provision of a code of practice that was published under s 11A of the Act. Relying upon the principle which it asserts is established in Plaintiff S157/2002 v The Commonwealth,[4] the plaintiff submits that the words “was published under section 11A” appearing in clause 3(1) are to be construed as meaning “was lawfully published under section 11A”. Accordingly, a code of practice, or a provision of a code, that was not, as a matter of law, authorised by the terms of the former s 11A is not a code or provision “published under s 11A” and clause 3(1) has no application.
[4] (2003) 211 CLR 476.
In Plaintiff S157/2002 v The Commonwealth,[5] Gaudron, McHugh, Gummow, Kirby and Hayne JJ, in the context of construing a privative clause in the Migration Act 1958 (Cth), said:[6]
When regard is had to the phrase “under this Act” in s 474(2) of the Act, the words of that sub-section are not apt to refer either to decisions purportedly made under the Act or, as some of the submissions made on behalf of the Commonwealth might suggest, to decisions of the kind that might be made under the Act. Moreover, if the words of the sub-section were to be construed in either of those ways, s 474(1)(c) would be in direct conflict with s 75(v) of the Constitution and, thus, invalid. Further, they would confer authority on a non-judicial decision-maker of the Commonwealth to determine conclusively the limits of its own jurisdiction and, thus, at least in some cases, infringe the mandate implicit in the text of Ch III of the Constitution that the judicial power of the Commonwealth be exercised only by the courts named and referred to in s 71.
Once it is accepted, as it must be, that s 474 is to be construed conformably with Ch III of the Constitution, specifically, s 75, the expression “decision[s] ... made under this Act” must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act. Indeed so much is required as a matter of general principle. This Court has clearly held that an administrative decision which involves jurisdictional error is “regarded, in law, as no decision at all”. Thus, if there has been jurisdictional error because, for example, of a failure to discharge “imperative duties” or to observe “inviolable limitations or restraints”, the decision in question cannot properly be described in the terms used in s 474(2) as “a decision ... made under this Act” and is, thus, not a “privative clause decision” as defined in s 474(2) and (3) of the Act.
Footnotes omitted
[5] (2003) 211 CLR 476.
[6] (2003) 211 CLR 476 at 505 – 506.
Clause 3 is not a privative clause. It is not intended to, and it does not, deprive a citizen of access to the courts. It does not confine or constrain the jurisdiction of this Court to determine the validity of a code of practice. It identifies the legal standard against which proceedings dealing with the validity of codes published before 1 November 2013 are to be determined. There is no place for reliance upon presumptions applicable to the construction of privative clauses.
Clause 3 is to be construed as a whole. The phrase “was published under s 11A” in clause 3(1)(a) is to be read in the context of the words of clause 3(1)(b), namely, “is purportedly in force on the commencement of this clause …”. Paragraphs (a) and (b) of clause 3(1) are expressed conjunctively and establish two conditions which must be satisfied before clause 3(1) applies. They should be read together. The reference to a code of practice or a provision of a code of practice that is purportedly in force on the commencement of the transitional provision in clause 3(1)(b) informs the meaning of the expression in sub-paragraph (a) “was published under section 11A”. Clause 3(1)(a) refers to a code “published under section 11A” which is “purportedly in force”. If the phrase “published under section 11A” in clause 3(1)(a) meant “lawfully published under section 11A”, clause 3(1)(b) would be otiose.
In Darling Casino Ltd v NSW Casino Control Authority,[7] the High Court considered s 155 of the Casino Control Act 1992 (NSW) which was a privative clause providing that the decision of the Casino Control Authority (“the Authority”) to determine an application for a casino licence was final and not subject to appeal or review. Gaudron and Gummow JJ held that the phrase “a decision of the Authority under this Act” in s 155 did not encompass a decision of the Authority that was made contrary to the statutory conditions which the Authority was required to observe by the terms of the Casino Control Act 1992 (NSW). This was because, they said, the relevant phrase in s 155 was not “under or purporting to be under this Act”.
[7] (1997) 191 CLR 602.
The differences in the language and structure of clause 3(1) compared to the language and structure of s 155 of the Casino Control Act 1992 (NSW) compels the contrary conclusion to that reached by Gaudron and Gummow JJ in Darling Casino.
On its proper construction, clause 3(1) applies to the Code which commenced operation on 1 October 2013 regardless of whether it was validly made under the former s 11A.
Is clause 3(1) of Schedule 1 valid?
The plaintiff contends that clause 3(1) is constitutionally invalid. It puts this contention in a number of ways. First, it submits that clause 3(1) directs this Court as to the exercise of its jurisdiction in this action. Clause 3(1) is legislation ad hominem: the purpose of clause 3(1) is to require this Court in this action to determine these proceedings and the questions of law reserved in the proceedings, as though the form of s 11A of the Act against which the validity of the Code is to be decided was its current, amended form. The Court is directed by clause 3(1) to take the Code to be valid if it would have been valid if published under the amended s 11A. Secondly, it submits that, in doing so, it offends the judicial integrity principle.[8] Clause 3(1) usurps or interferes with the exercise of essential aspects of the judicial function, namely the inquiry concerning the law as it is and the application of the law as determined to the facts as determined so as to undermine or interfere with the institutional integrity of the Court. Clause 3 is inconsistent with decisional independence being an essential characteristic of a court of a State as it requires the Court to treat an issue which arises for determination in proceedings as having been determined conclusively by Parliament’s exercise of judicial power.
[8] Kable v State of New South Wales (1996) 189 CLR 51.
The defendants submit that, properly construed, clause 3(1) does not direct the Court as to the conclusion it is to reach in the exercise of its jurisdiction. The validity or otherwise of the Code is left entirely for the Court, to be determined in accordance with the law as identified in clause 3, namely s 11A as in force from 1 November 2013. It is well settled that the Commonwealth Parliament may change the law in a way that has an effect on pending proceedings and, accordingly, there can be no constitutional limitation on a State Parliament to do likewise. The plaintiff’s reliance upon the judicial integrity principle is misplaced because the decisional independence and institutional integrity of the Court is not in any way affected or undermined by the operation of clause 3(1).
It is within the legislative power of Parliament to change the existing law in a way that has an effect on pending proceedings. What Parliament cannot do is direct a court as to the conclusions it is to reach in the exercise of its jurisdiction.
These principles have been established by the High Court in a long line of authority.
In Nelungaloo Pty Ltd v The Commonwealth[9], the validity of the Wheat Industry Stabilisation Act (No. 2) of 1946 was challenged. The High Court upheld the validity of the legislation, notwithstanding that it validated an order for the acquisition of wheat, the validity of which was a matter in issue in proceedings pending at the time when the statute was enacted. In that case, the statute affected antecedent rights in issue in the litigation. Nelungaloo was referred to by Mason J (as he then was) in The Queen v Humby; Ex parte Rooney,[10] who held that it is plain enough that the circumstance that a statute affects rights in issue in pending litigation has not been thought to involve any invasion of the judicial power.
[9] (1948) 75 CLR 495.
[10] (1973) 129 CLR 231 at 250.
In Humby, Mason J contrasted the legislation under consideration in that case with the legislation in Liyanage v The Queen[11] which attempted to circumscribe the judicial process on the trial of particular prisoners charged with particular offences on a particular occasion and to affect the way in which the judicial discretion was to be exercised so as to secure the conviction and enhance the punishment of those prisoners. Other examples of legislation which infringe the judicial integrity principle are considered in Nicholas v The Queen.[12]
[11] [1967] 1 AC 259.
[12] (1998) 193 CLR 173.
In Australian Building Construction Employees’ and Builders’ Labourers Federation v The Commonwealth[13] (“the BLF case”), the Commonwealth Parliament enacted legislation cancelling the registration of the BLF. It did so at a time when the BLF had applied to the High Court to quash a declaration made by the Conciliation and Arbitration Commission that the BLF had contravened certain undertakings and agreements. The declaration by the Commission empowered the Commonwealth Minister of Industrial Relations to order the deregistration of the BLF. The High Court held that:[14]
It is well established the Parliament may legislate so as to affect and alter rights in issue in pending litigation without interfering with the exercise of judicial power in a way that is inconsistent with the Constitution … [I]t is otherwise when the legislation in question interferes with the judicial process itself, rather than with the substantive rights which are at issue in the proceedings.
[13] (1986) 161 CLR 88.
[14] (1986) 161 CLR 88 at 96 per Gibbs CJ, Mason, Brennan, Deane and Dawson JJ.
The legislation in the BLF case did not deal with any aspect of the judicial process. It simply deregistered the BLF, thereby making redundant legal proceedings which the union had commenced in the High Court. The Court held that it did not matter that the motive or purpose of the Minister, the government and Parliament, in enacting the statute, was to circumvent the proceedings and forestall any decision which might be given in those proceedings.
In Chu Kheng Lim v Minister for Immigration,[15] a majority of the High Court held that a provision in the Migration Act 1958 (Cth) which prohibited courts from ordering the release from custody of a designated person offended the judicial integrity principle. It was a direction to the courts as to the manner and outcome of the exercise of their jurisdiction. This was an impermissible intrusion into the judicial power which Chapter III vests exclusively in the courts which it designates.
[15] (1992) 176 CLR 1.
In HA Bachrach Pty Ltd v Queensland & Ors,[16] the High Court took a similar approach to that taken in the BLF case. In Bachrach, the owner of land used as a shopping centre appealed to the Planning and Environment Court of Queensland against a decision by the local authority to approve the re-zoning of other land in the same local government area to permit a shopping centre development. The appeal was dismissed. The Minister responsible for planning then introduced into the State Parliament a bill for an Act which had the effect of permitting the proposed development. The land owner appealed to the Court of Appeal from the decision of the Planning and Environment Court. While the appeal was pending, the bill was passed and the Governor assented to the Act. The High Court held the Act valid. It found the Act was neither an impermissible interference with judicial process nor incompatible with Chapter III of the Commonwealth Constitution. The Parliament’s power to enact a special law relating to the use of the land was not affected by the pendency of legal proceedings under another law enacted by the Parliament.
[16] (1998) 195 CLR 547.
Re Macks; Ex parte Saint[17] was a case with some parallels to Humby.[18] Macks was concerned with a challenge to the validity of State legislation passed following the judgment of the High Court in Re Wakim; Ex parte McNally[19] which had struck down aspects of the then cross-vesting legislation by which State legislatures had purported to confer State jurisdiction on federal courts. The Federal Court had in the purported exercise of that jurisdiction made various orders. The subsequent remedial legislation enacted by State legislatures provided that the rights and liabilities of persons affected by the ineffective judgments of the Federal Court delivered before the High Court’s judgment in Wakim were declared to be the same as if each ineffective judgment had been a valid judgment of a State Supreme Court. The remedial legislation was challenged on the basis, inter alia, that the State legislation involved an impermissible exercise by a Parliament of judicial power as it was contended the State legislation converted the ineffective orders of the Federal Court into orders made by the Supreme Court. Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ (Kirby J dissenting) rejected this submission holding that the State legislation created rights and liabilities of persons by reference to the historical fact of the “ineffective judgments” of the Federal Court without purporting either to validate those ineffective judgments or to create a statutory judgment of the Supreme Court. Accordingly, there was no basis for concluding that the State legislation represented an attempted interference with the jurisdiction of any federal court or an attempt to confer jurisdiction on the Supreme Court which would be repugnant to Chapter III.
[17] (2000) 204 CLR 158.
[18] (1973) 129 CLR 231.
[19] (1999) 198 CLR 511.
In AEU v Fair Work Australia,[20] French CJ, Crennan and Kiefel JJ said that the Parliament could enact a law which would affect, or even render nugatory, pending proceedings in a court exercising federal jurisdiction.[21] In the same case, Gummow, Hayne and Bell JJ noted that a balance must be struck between the recognition that Parliament may change the law in a way that has an effect on pending proceedings (a proposition that has been described as “the changed law rule”) and the recognition that Parliament cannot direct the courts as to the conclusions they should reach in the exercise of their jurisdiction (a proposition that has been described as “the direction principle”).[22]
[20] (2012) 246 CLR 117.
[21] (2012) 246 CLR 117 at 141.
[22] (2012) 246 CLR 117 at 153.
Whether clause 3(1) constitutes an impermissible interference with judicial process is to be considered by reference to the terms of the provision itself. It is the operation and effect of the law which defines its constitutional character and the determination thereof requires identification of the nature of the rights, duties, powers and privileges which the clause changes, regulates or abolishes.[23] By its terms, clause 3 identifies the code or codes of practice to which it applies, namely those codes that were published under s 11A of the Act before 1 November 2013. It identifies the statutory provision against which the validity of the code or codes of practice are to be determined, namely s 11A of the Act as in force from 1 November 2013. It expressly provides that the validity of a code of practice is to be determined by a court against this standard. That is the significance of Parliament employing the conjunctive “if” in clause 3(1). Clause 3(1) does not direct the Court to find that the code is valid. It merely provides that the validity of a code is to be determined by reference to an enactment that commenced operation on 1 November 2013.
[23] Bachrach Pty Ltd v Queensland (1998) 195 CLR 547 at 561.
A court determines the rights, duties and obligations of parties subject to a code of practice by determining facts relevant to that exercise and by applying the law as found to those facts.[24] The final step in that process in this case requires the Court to determine the relevant law by reference to the provisions of clause 3(1). That analysis does not reveal an instance of the direction principle. Clause 3 merely identifies the law to be applied by the Court if and when it is called upon to determine whether a particular code is valid. The judicial process employed to determine validity is not affected. The substantive law against which the judicial process is to be conducted is affected. Clause 3 establishes the legal criterion against which the validity of any code published under s 11A of the Act before 1 November 2013 is to be determined. Identifying the relevant law and establishing the criterion determining the validity of subordinate legislation is a legitimate exercise of legislative power. It is not an impermissible interference in the judicial function. Clause 3(1) does not direct the Court in the exercise of its jurisdiction or determine the outcome of the exercise of its jurisdiction in deciding the validity of the Code. Clause 3(1) is not ad hominem legislation. It is a law of general application that applies prospectively to any proceedings in which the validity of a relevant code is challenged. It is similar in that regard to the legislation considered in Nelungaloo, the BLF case and Bachrach.
[24] R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 374 per Kitto J; South Australia v Totani (2010) 242 CLR 1 at 89 per Hayne J and at 163 per Kiefel J, see also Gummow J at 63 (Kirby J dissenting).

In Kable and the decisions which further explain the principles which it enunciates,[25] the High Court emphasised that the legislative power of a State does not extend to enacting a law which deprives a court of the State of one of its defining characteristics as a court or impairs one or more of those characteristics.[26] These characteristics include the maintenance of the institutional integrity of a State court, which requires, inter alia, the decisional independence of that court.[27] For the reasons set out above, the operation of clause 3(1) does not interfere with the institutional integrity of the Court nor is it inconsistent with the Court’s decisional independence. If clause 3(1) had been a law of the Commonwealth, it would not have offended those principles.
[25] Including Forge v Australian Securities and Investments Commission (2006) 228 CLR 45 and South Australia v Totani (2010) 242 CLR 1.
[26] South Australia v Totani (2010) 242 CLR 1 at 46 per French CJ.
[27] South Australia v Totani (2010) 242 CLR 1 at 48 per French CJ.
The plaintiff seeks to rely upon a comparison of the language of clause 3(1) with the legislation considered by the Court of Appeal of New South Wales in Building Construction Employees and Builders’ Labourers Federation (NSW) v Minister for Industrial Relations (“the NSW BLF case”).[28] The legislation considered in that case was quite different from clause 3(1). It specifically addressed current litigation and a particular legal person, prescribed that for the purposes of determining the issues in that litigation certain facts were to be taken as established, and dealt with the costs of the litigation. The plaintiff’s legal proceedings are not mentioned in clause 3(1) or the Amending Act. Neither is the plaintiff. The important point of distinction between the express language of clause 3(1) and the invalid provisions in the NSW BLF case, which contained an injunction that the registration of the NSW BLF “shall, for all purposes, be taken to have been cancelled”, is that the legislation under consideration in the NSW BLF case left no work for the court to perform when considering the question of the validity of the legislation itself. By contrast, the issue of the validity of a code of practice is to be determined by a court by reason of the terms of clause 3(1): “… If the code of practice or provision would have been valid had it been published under section 11A of the Liquor Licensing Act 1997 as amended by this Act.”
[28] (1986) 7 NSWLR 372.
Finally, the plaintiff seeks to rely upon a statement by a member of the Legislative Council, introducing the amendment which inserted clause 3 into Schedule 1 to the Amending Act, to the effect that it validated the existing Code and would bring to an end the issue in this action. Recourse to the records of Parliamentary debate does not assist the plaintiff’s argument.
In this State, the use of extrinsic material of this kind in the construction of a statutory provision is governed by the common law. Such materials can be considered to determine the mischief to which an Act is directed or to identify the purpose of a statutory provision.[29] It is not permissible to resort to such materials as an aid to the interpretation of a law in force at the time of the statement.[30] The statement upon which the plaintiff seeks to rely is not made by a Minister on the second reading of the bill. Further it constitutes a statement about the effect of the proposed amendment rather than identifying the mischief to which the amendment was directed or the object and purpose of the provision. While courts can have recourse to second reading speeches for the purpose of ascertaining the mischief to which a provision is directed or the purpose of that provision, it is for the court to determine the operation and effect of a statutory provision once enacted. As Gleeson CJ, Gummow, Hayne and Heydon JJ said in Nominal Defendant v GLG Australia Pty Ltd,[31] it is the words of a statute, not non-statutory words seeking to explain them, that have paramount significance. Whether clause 3(1) impermissibly interferes with the judicial process is to be determined by the operation and effect of the legislation. As the High Court said in Bachrach:[32]
Whether the Act constitutes an impermissible interference with judicial process … does not depend upon the motives or intentions of the Minister or individual members of the legislature … it does not advance the plaintiff’s argument to attribute malevolent designs to the Minister or to other persons who promoted or supported the legislation.
[29] Owen v South Australia (1986) 66 SASR 251 at 256-257 per Cox J (Prior J agreeing); K-Generation v Liquor Licensing Court (2009) 237 CLR 501 at 521-522 per French CJ.
[30] Australian Education Union v Department of Education and Children’s Services (2012) 248 CLR 1 at 16.
[31] (2006) 228 CLR 529 at 538.
[32] (1998) 195 CLR 547 at 561.
For the above reasons, clause 3(1) is constitutionally valid.
Question 2(b) – validity of clause 12 of the Code
As observed above, the plaintiff maintains its challenges to clause 12 of the Code even if its contention as to the invalidity of clause 3 of Schedule 1 of the Amending Act is rejected. The validity of clause 12 is largely addressed by Question 2(b) and the answer to that question is determinative of Question 3(a) insofar as that question relates to clause 12 of the Code.
The scope of the code making power
The new s 11A(2) is unusual in that it conflates the legislative assignment of an administrative power with one of the legal standards which has been applied to judicially determine whether a law or rule is authorised by the relevant rule making provision. Statutes, or subordinate instruments, are generally authorised by the provisions of a higher law, constitutional or statutory, which confers a power to legislate, or to make subordinate rules, with respect to a subject matter or to effect a purpose. Over time the courts have developed tests by which a rule so made can be evaluated and declared to be within, or outside of, the rule-making power. A test of “unreasonableness” was developed in some early cases concerning local government by-laws. By-laws were “unreasonable” if they were “manifestly unjust”, “disclosed bad faith” or “fantastic and capricious … such as reasonable men could not make in good faith”.[33]
[33] Slattery v Naylor (1888) 13 App Cas 446 at 452.
In Kruse v Johnson, an unreasonable by-law was described as one which was a “suppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men”.[34]
[34] Kruse v Johnson [1898] 2 QB 91 at 99 – 100.
The English approach was adopted by Australian courts.[35] In Williams v Melbourne Corporation, Dixon J explained the proper approach to judicial review of subordinate legislation for unreasonableness in this way: [36]
The true nature and purpose of the [by-law making] power must be determined and it must often be necessary to examine the operation of the by-law in the local circumstances to which it is intended to apply. Notwithstanding that ex facie there seemed a sufficient connection between the subject of the power and that of the by-law, the true character of the by-law may then appear to be such that it could not reasonably have been adopted as a means of obtaining the ends of the power.
[35] Brunswick Corporation v Stewart (1941) 65 CLR 88 at 97; Ex parte Stafford; Re Shire of Boroondara (1894) 20 VLR 23; Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources (2005) 138 LGERA 11; Bienke v Minister for Primary Industries & Energy (1994) 125 ALR 151 at 166.
[36] (1933) 49 CLR 142 at 155.
In recent times, the concept of irrationality has featured more prominently in the articulation of the legal standard.[37]
[37] Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165. In Austral Fisheries Pty Ltd v Minister for Primary Industries & Energy (1992) 37 FCR 463, a Fisheries Management Regulatory Scheme was held to be invalid because the mathematical formula by which quota was allocated was irrational. It has been said that the unreasonable standard for delegated legislation accords the subordinate legislator greater deference than is allowed administrative decision makers by the Wednesbury doctrine.
South Australia v Tanner[38] concerned the validity of a regulation made under the Waterworks Act 1932 (SA) for the purpose of protecting the catchment area of a reservoir. Section 10 of the Waterworks Act empowered the Governor to make regulations for “regulating, controlling or prohibiting the use of any land within a watershed ... so as to reduce or prevent the deterioration or pollution of any water within the watershed”. A regulation was made prohibiting the establishment of a “piggery zoo or feedlot” on watershed land. “Zoo” was defined widely and included an aviary. The regulation was declared to be invalid by this Court, with one member of the Court exclaiming, “Talk about using a sledgehammer to crack a nut!”. The decision was reversed by the High Court on an appeal in which the parties accepted that the validity of the regulation should be adjudged by reference to a test of proportionality. The majority stated the test in this way:[39]
[T]he test of validity is whether the regulation is capable of being considered to be reasonably proportionate to the end to be achieved. ... It is not enough that the court itself thinks the regulation inexpedient or misguided. It must be so lacking in reasonable proportionality as not to be a real exercise of the power.
In applying that test, the majority referred to the submission of the Solicitor-General for South Australia that all legislation must, of necessity, be in more or less general terms and that a regulation is not invalid merely because its application to one or more of the particular circumstances it covers might not be warranted in terms of the enabling purpose.[40] The majority concluded:[41]
Considered in isolation, an aviary may represent a considerable extension of the ordinary meaning of a zoo, but we are unable to conclude that it was not reasonably open to the legislator to determine that all aviaries which are established primarily for the display or exhibition of birds and hence with the intention of attracting members of the public should be absolutely prohibited in furtherance of the stated purpose.
[38] (1989) 166 CLR 161.
[39] South Australia v Tanner (1989) 166 CLR 161 at 167 – 168 per Wilson, Dawson, Toohey and Gaudron JJ.
[40] South Australia v Tanner (1989) 166 CLR 161 at 167.
[41] South Australia v Tanner (1989) 166 CLR 161 at 168.
It is on the test of proportionality applied in South Australia v Tanner that s 11A(2) of the Act appears to be modelled. The “end to be achieved” by the exercise of the power that section confers is the purpose of the objects of the Acts. On the authority of South Australia v Tanner, if s 11A(2) of the Act had provided that a code of practice may include measures furthering the objects of the Act, this Court may well have applied as the test for validity – “whether the [Code] is capable of being considered to be reasonably proportionate to [that] end”.
The proportionality test has been recently reconsidered by the High Court. In Attorney-General (SA) v Corporation of the City of Adelaide,[42] in the context of council by-laws, French CJ emphasised the requirement that there be a “rational connection” between a by-law and the delegated legislative power. His Honour explained that “proportionality is not a legal doctrine” but an analytical tool.[43] Nonetheless, French CJ accepted that “proportionality criteria” had a proper part to play in determining the validity of delegated legislation. French CJ said:[44]
[42] (2013) 87 ALJR 289.
[43] (2013) 87 ALJR 289 at [53]-[55].
[44] (2013) 87 ALJR 289 at [56].
A high threshold test, which falls into the class of proportionality criteria, was applied to determine the validity of delegated legislation by Dixon J in Williams v Melbourne Corporation. His Honour, speaking of unreasonableness in the context of a purposive by-law making power, pointed out that although there might, on the face of it, be a sufficient connection between the subject of the power and that of the by-law:
the true character of the by-law may then appear to be such that it could not reasonably have been adopted as a means of attaining the ends of the power. In such a case the by-law will be invalid, not because it is inexpedient or misguided, but because it is not a real exercise of the power.
Although a high threshold test, that formulation permitted greater judicial scrutiny than the test, approaching a criterion of irrationality, derived from Slattery v Naylor and Kruse v Johnson. It has been suggested that the difference in the result between the majority and the minority in Clements might be attributable to the majority’s application of the test adopted by Dixon J in Williams, and the minority’s preference for that of Starke J in Brunswick Corporation v Stewart. In Coulter v The Queen, which concerned the validity of procedural rules of the Supreme Court of South Australia, Mason CJ, Wilson and Brennan JJ, citing Williams, said:
The relevant criterion of validity is not the fairness of the rules but whether they are a reasonable means of attaining the ends of the rule-making power.
The formulation adopted by their Honours, however, suggests a lower threshold test than that adopted by Dixon J. In the event, as appears below, it is the high threshold test which prevails in the field of purposive delegated legislation. (footnotes omitted)
After referring to South Australia v Tanner, French CJ continued:[45]
… The test sets an appropriate limit on the exercise of purposive powers entrusted to a public authority to make delegated legislation. It gives due respect to the authority entrusted by the parliament in the law-making body. Historically, it can be regarded as a development of the high threshold “unreasonableness” test derived from the 19th century English authorities. It requires a rational relationship between the purpose for which the power is conferred and the laws made in furtherance of that purpose, whether it be widely or narrowly defined.
The high threshold test for reasonable proportionality should be accepted as that applicable to delegated legislation made in furtherance of a purposive power.
The proportionality test formulated by Dixon J in Williams, adopted by Deane J in the Tasmanian Dam Case, and accepted in Tanner, makes it clear that a reviewing court is not entitled to substitute its own view of what would be a reasonable law for that of the legislature or a body exercising delegated legislative power. So formulated, the criterion of reasonable proportionality can be regarded as an application of the unreasonableness criterion, adapted to a purposive law-making power. Indeed, in Tanner the majority echoed some of the language of Griffith CJ in Widgee Shire Council, when their Honours observed:
It is not enough that the court itself thinks the regulation inexpedient or misguided. It must be so lacking in reasonable proportionality as not to be a real exercise of power.
The use of the term “proportionality” in Tanner did not draw upon any novel or distinct theory of judicial review of delegated legislation. It was used to designate an evolved criterion defining the limits of a particular class of statutory power. As discussed earlier in these reasons, “proportionality” is a term used to designate criteria, going to validity, of rational law-making and decision-making in the exercise of public power. Kiefel J, writing extra-curially, has referred to its application in such disparate fields as criminal responsibility, sentencing, the permissible scope of qualifications upon human rights and freedoms under constitutional and statutory charters, intrusions upon constitutional guarantees, immunities and freedoms, express and implied, as well as purposive law-making power. Other fields in which it has been said proportionality operates include apportionment of liability in negligence cases and in the application of equitable estoppel against the “disproportionate making good of the relevant assumption”. Each of its applications has its own history. (footnotes omitted)
[45] (2013) 87 ALJR 289 at [58]-[61].
Hayne J applied a two-step test in which the practical legal operation of the delegated legislation is first identified and the directness and substantiality of the connection between that operation and the power then evaluated:[46]
This last point is critically important and is usefully understood by reference to the reasons of Brennan J in South Australia v Tanner. Brennan J dissented from the orders made in that case but his Honour’s statement of applicable principles does not differ in any material respect from those applied by the majority. Brennan J emphasised that, where the validity of regulations (or in this appeal a by-law) is concerned, the problem is one of characterisation, which requires ascertainment of the character of the impugned regulation by reference to its operation and legal effect in the circumstances to which it applies. The court must make its “own assessment of the directness and substantiality of the connexion between the likely operation of the regulation and the statutory object to be served”. The regulation is invalid if the directness and substantiality of that connection “is so exiguous that the regulation could not reasonably have been adopted as a means of fulfilling the statutory object” (emphasis added).
The references to “so exiguous” and “could not reasonably have been adopted” demonstrate that the question to be asked and answered is not whether the by-law is a reasonable or a proportionate response to the mischief to which it is directed but whether, in its legal and practical operation, the by-law is authorised by the relevant by-law making power. The question of validity is to be decided by characterising the impugned provisions and assessing the directness and substantiality of the connection between the likely operation of the by-law and the statutory object to be served. Could the by-law, so characterised and assessed, reasonably be adopted as a means of fulfilling that object? No further inquiry into the proportionality of the by-law is permitted or required. (footnotes omitted)
[46] (2013) 87 ALJR 289 at [122]-[123].
Crennan and Kiefel JJ said:[47]
A test of reasonableness has been applied to the making of by-laws by local authorities under statutory power for a long time. In earlier decisions the test was severely constrained. It was thought that an attack on a by-law on the ground that it was unreasonable was not likely to succeed, because it was assumed that the local authority was to be the sole judge of what was necessary, subject only to the qualification that a by-law might be held invalid if it were such that no reasonable person could pass it.
The approach which is now adopted is that of Dixon J in Williams v Melbourne Corporation. There, his Honour pointed out that it may not be enough to consider whether, on its face, a by-law appears to be sufficiently connected to the subject matter of the power to make it. The true character of the by-law, its nature and purpose, must be considered in order to determine whether it could not reasonably have been adopted as a means of attaining the purposes of the power. It will often be necessary to examine the operation of the by-law in the area in which it is intended to apply.
The by-law there in question regulated the driving of cattle through the streets of the City of Melbourne. The power said to support it was a power for the regulation of traffic. Dixon J said that the ultimate question was whether, when applied to conditions in the city, the by-law involved such an actual suppression of the use of the streets as to go beyond any restraint which could reasonably be adopted for the purpose of preserving the safety and convenience of traffic in general.
Dixon J's statement of a test of reasonableness bears an obvious affinity with a test of proportionality. So much has been recognised in later cases. In South Australia v Tanner, Wilson, Dawson, Toohey and Gaudron JJ equated the test with that of reasonable proportionality applied by Deane J in Tasmanian Dam Case. In Coulter v The Queen the relevant criterion of validity was said to be whether the impugned rules "are a reasonable means of attaining the ends of the rule-making power", by reference to Williams v Melbourne Corporation. An analysis of the relationship between means and ends necessarily raises questions similar to those considered in the context of the implied freedom of political communication.
[47] (2013) 87 ALJR 289 at [198]-[201].

Whether the Code is to be characterised as an administrative decision or delegated legislation, the ultimate question is whether it is within the scope of the statutory power.[48] Section 11A(2) of the Act expressly accords to the Commissioner a degree of latitude in selecting the means by which to further the objects of the Act which is similar to that generally accorded to subordinate legislators exercising legislative power.
[48] Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources [2005] NSWCA 10; (2005) 138 LGERA 11 at [139] per Spigelman CJ (Beazley and Tobias JJA agreeing).
The challenge to clause 12
Two aspects of the plaintiff’s challenge to clause 12 can be dealt with relatively briefly.
The first is the contention that the new s 11A of the Act should be construed to exclude a power to include within a code provisions which interfere with a licensee’s property right to allow “customers” on to the licensed premises as and when the licensee sees fit. That submission must be rejected because there is an inadequate textual basis for the implication and the history of liquor licensing regulation is replete with examples of the imposition of restrictions on trading hours. In any event, the restriction being limited to “customers”, the plaintiff’s contention on this ground is simply an aspect of its complaint that clause 12 of the Code unduly derogates from its licence, which is addressed below.
The second is the contention that the purported exclusion of the Casino from the application of the Code invalidates it. Section 11A(3) of the Act provides:
(3) A code of practice may—
(a) be of general or limited application; and
(b) vary in operation according to factors stated in the code; and
(c) provide for the granting by the Commissioner of exemptions (conditional or
unconditional) from specified provisions of the code.
If the Commissioner makes a code of practice, its provisions are applied to all licences by operation of s 42 of the Act. A code is of general application if it does not, on its terms, restrict its application to something less than the set of all licensees. A code may limit its application by being expressed to apply only to some licensees or by excluding others. Views may differ about the merits of singling out a licensee for the purposes of subjecting a licensee to, or exempting that licensee from, a provision of a code of practice. But that is a matter of policy and not a question of the scope of the statutory power.
The premise of the plaintiff’s primary challenge to clause 12 of the Code is that s 11A(2) does not authorise measures which are inconsistent with other provisions of the Act. That contention assumes that s 11A of the Act is subordinate to, and must be read down by reference to, all of the other provisions of the Act. The primary provision on which the plaintiff relies in that regard is s 40 of the Act which allows the holder of a special circumstances licence to sell, and offer for sale, alcohol to members of the public during the trading hours specified by that section.
The “right” on which the plaintiff relies is expressed too widely for several reasons. First, the legal effect of the grant of the licence is the conferral of a privilege which exempts the holder from the general prohibition against selling alcohol imposed by s 29 of the Act. Secondly, the privilege conferred by s 40 of the Act is to sell liquor within those hours “in accordance with the terms and conditions of the licence”, and s 42 of the Act subjects all licences to a mandatory condition that the licensees comply with the codes of practice made by the Commissioner. It follows that the Act contemplates that the provisions of a code of practice made pursuant to s 11A of the Act may impinge on the statutory privileges otherwise conferred on a licensee. There is, in this respect, some analogy between the regulation-making power conferred by the Act and s 11A.
It follows that the proposition that the provisions of a code of practice cannot impose any restriction on the trading hours prescribed by s 40 of the Act must be rejected. That rejection does not entail the further conclusion that there is no limit on the extent to which a code of practice can validly restrict the privilege to sell liquor conferred on licensees by s 40 of the Act. Parliament could not have intended to allow the Commissioner to make a code which so heavily restricted the privilege to sell alcohol that a licence granted under the Act was little more than an empty shell. However, the limit on the power which precludes its use in that way is the requirement that the codes of practice bear a reasonable and proportionate relationship to the purpose for which the power is conferred.
It is necessary to evaluate the practical legal effect of clause 12 of the Code to determine whether it transgresses that limit.
Clause 12 of the Code provides:
12 Late Night Restricted Entry
(1) Between 3.01am and 7.00am or closing time (whichever is earlier), the licensee must not permit a customer to enter the licensed premises.
It is not possible to define in advance the kinds of code provisions which would negate the power to grant a special circumstances licence and which are therefore unreasonable and disproportionate. Plainly enough a code of practice which prohibited a special circumstances licensee from selling alcohol other than between the hours of, say, 9.00 am and 10.00 am, would, in the absence of factual circumstances which can hardly be imagined, be a restriction that could not reasonably be considered to be appropriate and adapted to the furtherance of the objects of the Act. Indeed it would, on its face at least, appear to be calculated to subvert the very purpose of the grant of the special circumstances licence. Section 40 contemplates that, in general terms, there is a proper place for special circumstances licences. Section 11A of the Act cannot be construed so widely that it authorises codes of practice which deny special circumstances licences any efficacy.
The practical legal restriction on the licence imposed by clause 12 is much more limited and has a close connection with the attainment of other objects of the Act. Dealing first with the restrictive effect of clause 12, the provision does not prohibit the sale of liquor absolutely; it only restricts the customers to whom it might be sold to those customers who were in the licensed premises before 3.01am. The restriction on allowing other customers to enter the premises operates for only the last two of the trading hours prescribed by s 40 of the Act. Clause 12 does not, in its practical legal operation, substantially deny special circumstance licences the efficacy contemplated by s 40 of the Act.
On the other hand, clause 12 of the Code will, in its practical legal operation, reduce the numbers of people moving from one licensed premises to another between 3.00 am and 7.00 am. In so doing, it will advance objects (d) and (f) of s 3(1) of the Act, or at least it is reasonable to consider that it will. In advancing those objects, clause 12 has a direct and substantial connection with s 11A of the Act.
Clause 12 can reasonably be considered to be appropriate and adapted to the furtherance of the objects of the Act. It is a proportionate exercise of the Commissioner’s code making power.
For the above reasons, clause 12 of the Code is valid.
Given the view we have reached, it is not necessary to consider the plaintiff’s contention that the test for inconsistency in this context is whether the provisions of the Code “alter, impair or detract from the operation of” the Act. That test is drawn from the test which is applied in cases of s 109 inconsistency. Nonetheless, we observe that the question is best approached by first construing s 11A of the Act. Sections of a single enactment of the same legislature must be read together in a way which eliminates any inconsistency or repugnancy.
Conclusion
We answer the questions reserved as follows:
Q.1.     Are all or any of:
(a)clause 8 of the Code;
(b)clause 9 of the Code;
(c)clause 10 of the Code;
(d)clause 13 of the Code: and/or
(e)clause 14 of the Code:
invalid in their application to the Plaintiff because they exceed limitations or restrictions expressed in one or more of the paragraphs of section 11A(2) of the Act?
A.Unnecessary and inappropriate to answer.
Q.2.     Is clause 12 of the Code invalid in its application to the Plaintiff         by reason of any of the following (either severally or in    combination):
(a)it exceeds limitations or restrictions expressed in one or more of the paragraphs of section 11A(2) of the Act;
(b)it is inconsistent with the authority to trade in liquor which the Act confers upon the holder of a Special Circumstances Licence with an extended trading authorisation under the Act;
(c)it varies or departs from provision made by the Act for the opening and closing of licensed premises to the public and/or the exclusion of persons from licensed premises;
(d)it excludes a common law right of a licensee to permit members of the public to enter its premises and in so doing exceeds the power conferred by section 11A of the Act; and/or
(e)the exclusion of a particular licensee (namely the Skycity Adelaide Casino) from its operation exceeds a limitation or restriction expressed or implied in section 11A(3) of the Act?
A.As to paragraph (a), unnecessary and inappropriate to answer. As to paragraphs (b), (c), (d) and (e), clause 12 of the Code is not invalid in its application to the Plaintiff.
Q.3.     Is the Code as a whole invalid in its application to the Plaintiff    because:
(a)one or more of clauses 8, 9, 10, 12, 13, 14 is invalid by reason of the matters identified in questions 1 and 2 above, and cannot be severed from the Code; and/or
(b)the Code, by reference to the expressed purposes in clause 3 of the Code, exceeds limitations or restrictions expressed in one or more of the paragraphs of section 11A(2)?
A.Insofar as it refers to clauses 8, 9, 10, 13 and 14, unnecessary and inappropriate to answer. Otherwise question 3 does not arise because clause 12 is not invalid by reason of the matters identified in question 2.
Q.4.     If the answer to questions 1(a)-(e) or 2(a) is “Yes”, are any of the       invalid clauses capable of being read down so as to have a valid         operation, and if so, how?
A.Does not arise.
Q.5. If the answer to each of questions 2 and 3 is “No”, does clause 12 of the Code nevertheless have no application to the Plaintiff because it is inconsistent with the conditions of its Special Circumstances Licences granted under the Act?
A.No. Clause 12 is not inconsistent with the conditions of the plaintiff’s Special Circumstances Licence granted under the Act.
Q.6. Is clause 2 of Schedule 1 of the Liquor Licensing (Miscellaneous) Amendment Act 2013 (SA) invalid?
A.Does not arise.
Q.7. Is clause 3 of Schedule 1 to the Liquor Licensing (Miscellaneous) Amendment Act 2013 (SA) invalid?
A.No.