Disorganized Developments Pty Ltd v South Australia [2023] HCA 22

HIGH COURT OF AUSTRALIA

KIEFEL CJ,

GAGELER, STEWARD, GLEESON AND JAGOT JJ

DISORGANIZED DEVELOPMENTS PTY LTD

& ORS APPELLANTS

AND

STATE OF SOUTH AUSTRALIA RESPONDENT

Disorganized Developments Pty Ltd v South Australia

[2023] HCA 22

Date of Hearing: 10 March 2023

Date of Judgment: 2 August 2023

A22/2022

ORDER

1. Appeal allowed with costs.

2. Set aside the orders of the Court of Appeal of the Supreme Court of South Australia made on 16 February 2022 and, in their place, order that:

(a) It is declared that the Criminal Law Consolidation (Criminal Organisations) (Prescribed Place—Cowirra) Variation Regulations 2020 (SA) and the Criminal Law Consolidation (Criminal Organisations) (Prescribed Place—Cowirra) (No 2) Variation Regulations 2020 (SA) are invalid.

(b) The respondent pay the appellants' costs.

On appeal from the Supreme Court of South Australia

Representation

W J N Wells KC and C Jacobi KC for the appellants (instructed by Jon Lister Barrister & Solicitor)

M J Wait SC, Solicitor-General for the State of South Australia, with C M Nolan for the respondent (instructed by Crown Solicitor for South Australia)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Disorganized Developments Pty Ltd v South Australia

Statutes – Interpretation – Efficacy of regulations – Where s 83GD(1) of Criminal Law Consolidation Act 1935 (SA) ("1935 Act") established offence for participant in criminal organisation to enter or attempt to enter "prescribed place" – Where "prescribed place" meant place declared by regulation – Where s 370 of 1935 Act empowered Governor in Council to make regulations – Where Criminal Law Consolidation (Criminal Organisations) Regulations 2015 (SA) ("2015 Regulations") declared list of places to be "prescribed places" – Where Governor made two Regulations ("Cowirra Regulations") purporting to vary 2015 Regulations to include blocks of land at Cowirra, South Australia ("Cowirra land") – Where appellants owners and occupiers of Cowirra land – Where, if Cowirra Regulations valid, second and third appellants would commit criminal offence if they entered Cowirra land – Where Cowirra Regulations did not in terms "declare" Cowirra land to be "prescribed places" – Whether Cowirra Regulations valid exercise of regulation-making power in s 370 of 1935 Act.