(c) On the occasion on which the person with the loaded automatic Jennings J22 pistol was arrested, police who attended the premises heard the sound of a cistern flushing when they announced their presence prior to arresting the male, who at the time was in a toilet cubicle with two other males. Furthermore, a search of the toilet cubicle revealed pieces of aluminium foil located behind the toilet bowls, suggesting drug use and packaging. None of this material of itself evidenced a serious breach of the Act.
72 The only breaches of the Act which were revealed by the material put before the relevant authorised justice were that patrons congregated on the roadway and footpath outside the premises, that entertainment was conducted without the entertainment authority being displayed and that there had been an unspecified breach of a security provision. The scanty material placed before the authorised justice in relation to these matters did not evidence that a serious breach of the Act was involved in any of them.
73 Against this background the Master held that the evidence produced to the authorised justice was "grossly deficient", that the events relied upon were unrelated and not repetitive, that there was no serious breach of the Act prior to a period of some three months before the order was made and because none of the events after that time, i.e. more proximate to the date of the application, had been shown to give rise to any serious breach of the Act, the jurisdictional pre-conditions to the making of an order under s.104A were not satisfied.
74 In the course of his judgment the Master said:
"Whilst it may be a debateable area, it could be expected that Parliament had in mind there being a nexus between the breach requirements and the threat or risk requirements (viz the serious breach having a causal relationship with the threat or risk). Whatever the position may be, it could be expected to be a difficult task to satisfy the requirements where the circumstances relied upon are of some antiquity."
75 It was this reference to "some antiquity" which counsel for the plaintiffs relied upon in support of his submission that contemporaneity was of the essence of s.104A(2)(b).
76 In my opinion the use sought to be made by the plaintiffs of the decision in Hindmarch v The Commissioner of Police (supra) is inappropriate and not well founded for a number of reasons. First, the Master did not need to decide, and did not decide, that contemporaneity was of the essence of s.104A of the Act. Second the reference to "circumstances … of some antiquity" relied upon by the plaintiffs was made in the context of a difficulty in satisfying the factual requirements of the section, rather than as an interpretation of the section to the effect that it required a close temporal association between the serious breach of the Act on the one hand and the threat or risk to the public interest on the other. Third, the statement that "it could be expected that Parliament had in mind there being a nexus between the breach requirements and the threat or risk requirements (viz serious breach having a causal relationship between the threat or risk) "was not a decision on a proposition of law by the Master. It was obiter dicta. He described such a proposition as a "debatable area". He made this even clearer by the sentence which immediately follows the above quote, namely "whatever the position may be". Fourth, at no point in the judgment does the Master analyse that element of the jurisdictional pre-conditions which includes the word "necessary". No interpretation is given by the Master to the word "necessary" as it occurs in s.104A(2)(b). Fifth, to the extent that the judgment suggests the need for a causal relationship between the breach requirements and the threat or risk requirements, that is that the serious breach referred to in the first part of s.104A(2)(b) must have some causal relationship with the threat or risk to the public interest referred to in the second part of s.104A(2)(b), it is not a suggestion with which I agree. In my judgment it is not correct. Moreover it is not the ratio decidendi of the case. Furthermore, the language of the section distinguishes between the two; "serious breach of the Act", is compared with "a significant threat or risk to the public interest". The public interest includes offences which carry a maximum penalty of not less than 2 years imprisonment. They may or may not be serious breaches of the Act.
77 The argument by the plaintiff first referred to in paragraph 69 of this judgment, does not accord with the wording of s.104A(2)(b). That the authorised justice be satisfied that there has been a serious breach of the Act is not the only prerequisite for the making of an order. It is sufficient if such justice is satisfied that a serious breach of the Act "is likely to occur on the premises." Satisfaction in relation to this may be arrived at even though no serious breach has yet occurred. For example, there may be information available to the authorities that a particular event which, if done in certain circumstances on licensed premises would constitute a serious breach of the Act, has been planned to occur on certain licensed premises on a particular date. Such material could of itself be capable of satisfying the initial requirements of s.104A(2)(b). Such satisfaction may more readily be arrived at in the presence of antecedent repeated serious breaches of the Act.
78 Second, the closure of the premises is directed towards preventing or reducing a significant threat or risk to the public interest. Public interest is defined in very wide terms in s.104A(3). It includes any threat to public health or safety or a risk of serious offences being committed on the premises. An order under s.104A is prophylactic; preventative not punitive. On the other hand a prosecution is directed at punishment after the event. It does not involve prevention of the event occurring. A prosecution is punitive not preventative in any direct way. Furthermore, it could well be argued by a party seeking to challenge an order made under s.104A that one or two prosecutions are not enough to demonstrate that such avenue for seeking to prevent or reduce significant threats to the public interest had been unsuccessful. If the approach adopted on behalf of the plaintiffs were to be adopted, how many prosecutions would be needed before it could be said that such approach had been unsuccessful and hence exhausted, so that resort could be had to s.104A? Or must resort then unsuccessfully be made to the remedy of injunction before resort can be had to the summary procedures under s.104A? Such an approach would effectively render s.104A nugatory. Considerations of such a kind in my opinion reinforce that the approach advocated on behalf of the plaintiffs is not mandated by the section.
79 The material placed before the authorised justice in the present case revealed that over a not inconsiderable period of time events, some of which constituted serious breaches of the Act, others of which involved acts which could be regarded as detrimental to public health, including the health of minors, had occurred and yet others of which involved serious offences under other legislation had also occurred at the Embassy Nightclub. Events of such a nature extended up to and including the month in which the order was made by the authorised justice. The material put before such justice concerning 3 June 2000 would have been sufficient for a reasonable person to be satisfied that cocaine and methyl amphetamine had been used on the premises on that night in breach of s.125 of the Act. The material relating to 17 June 2000 would have been sufficient to satisfy a reasonable person that a serious offence, namely the sale of cocaine and ecstasy, had taken place at the Embassy Nightclub on that date. The material relating to 23 June 2000, was sufficient to satisfy a reasonable person that the serious offence of sale of what was probably the drug ecstasy had occurred at the Embassy Nightclub on that date.
80 In summary, I am of opinion that the material put before the authorised justice was sufficient to satisfy a reasonable person that there was a threat to the public health from the use of the premises and a risk of serious offences being committed on such premises.
81 The dates of 3 and 17 June 2000 were Saturdays; 23 June 2000 a Friday. Furthermore, an analysis of the material put before the authorised justice shows that some two-thirds of the events referred to had occurred on Friday nights or at weekends.
82 The material presented to the authorised justice was , in my opinion, an appropriate basis on which a reasonable person could be satisfied that further events of the same or similar kind would be likely to occur on the subject premises in the near future, perhaps more likely on a Friday night and over the weekend, but on other days as well.
83 Closing the premises, albeit for a short time over a period which included a weekend would prevent such events occurring on the licensed premises during the period of closure. The events to which the material put before the authorised justice was directed were events that could properly be regarded as involving a threat to public health; for example the health of the persons who purchased and ingested the drugs. Furthermore, such events could reasonably be regarded as involving serious offences within the meaning of s.104A(3)(d) of the Act. These considerations and the fact that the relevant matters had occurred over a substantial period would justify the closure effected by the notice.
84 In these circumstances, I am of opinion that the material put before the authorised justice was sufficient to satisfy a reasonable person, and it clearly did satisfy such justice , that closure of the premises for the period in the order was necessary to prevent or reduce a significant threat or risk to the public interest in the sense referred to in paragraphs 56 and 60 above.
85 The argument on behalf of the plaintiffs that a notice under s.104A of the Act should not be used as an adjunct to a covert operation seems to me to put the cart before the horse. The covert operation involving the Embassy Nightclub revealed and provided evidence in relation to serious offences being committed on the premises and the consequential threats to public health. The minor delay in relation to the operative date of the order was consistent with ensuring that the covert operation was not compromised and that the order would have effect in relation to days of the week on which, as the material before the authorised justice indicated, serious breaches of the Act and serious offences were more likely to occur . The order was not used as an adjunct to the covert operation; rather the covert operation provided further evidence to support the making of the order.
86 The plaintiffs' argument that an order made under s.104A may not come into effect on a date later than the date on which the order is made is not supported by the wording of the section. There is no express provision in s.104A which delimits the date on which and the time at which an order may be made to come into effect. Let it be assumed that there has been an annual event held by a particular organisation (e.g. a named gang) at particular licensed premises which annual event has always been held on a predetermined long weekend public holiday. Let it be further assumed that on each occasion such event has been held there was a serious breach of the Act which was also an offence which carried a maximum penalty of not less than two years imprisonment. Let it be further assumed that a booking has been made by the same organisation for the holding of an identical event on the licensed premises on the same public holiday, the date for which had crystalised. There is in my opinion nothing in s.104A which would prevent the making of an order in advance closing the relevant licensed premises so as to prevent the event being held, an event which carried with it a significant threat or risk to the public interest, namely of like serious offences being committed on the premises.
87 The argument that an order under s 104A may not come into effect on a date later than the date on which the order is made was put separately from, but was clearly related to, the argument concerning contemporaneity. Clearly if an order is sought by telephone the requirement of urgency in s.104B(2) will probably cause the date and time of making of the order to be closely associated in point of time with the event or situation in respect of which the order is sought. Thus if, in licensed premises in respect of which there had already been a relevant serious breach of the Act, there were to be a total blockage of the sewer servicing such licensed premises with the result that the conveniences were surcharging into the premises and were unable to be used, but the licensee persisted in using the premises without making alternative toilet arrangements, the urgency of the situation would be likely to ensure that any order made under s.104A would have immediate effect. The nature of the necessity involved in such example would bespeak a likely close proximity between the date and time of the making of the order and the date and time of its commencement. However, that arises out of the factual situation to which the statute is being applied, rather than out of a construction of a provision in the statute itself. To imply a limitation on the section of the kind advocated on behalf of the plaintiffs is not called for by the form or purpose of the section. In my opinion this argument fails.
88 The submission that serious drug offences do not involve breaches of the Act and thus do not qualify for consideration under s 104A(2)(b) is, in my opinion, erroneous. It seems to arise out of a conflation of the first part of s.104A(2)(b) and the second part of that sub-section. The first part of s.104A(2)(b) requires that a serious breach of the Act has occurred or is likely to occur. Once one of those threshold is crossed, the consideration of further breaches of the law is that which arises in relation to the significant threat or risk to the public interest. In that context the serious offences do not have to be serious breaches of the Act, or breaches of the Act at all. All that the second part of s.104A(2)(3) requires is that there should be a significant risk of offences which carry a maximum penalty of not less than two years imprisonment being committed on the premises. The possession of a trafficable quantity of prohibited drugs on the premises constitutes a serious offence. Sales of quantities of prohibited drugs are also serious offences. Both types of offences were included in the material put before the authorised justice. Such offences would therefore be material to the consideration of an application under s.104A.