(d) where an owner (or occupier) of a public venue has a statutory/controlling power and does not, as a matter of construction, exercise that power but relies instead on its private proprietary rights to exclude an individual from entry to the venue, then the weight of dicta favours the view that it does not thereby have an obligation to afford natural justice (Barwick CJ, Aickin and Stephen JJ versus Gibbs and Murphy JJ in Forbes , with Mahoney JA dissenting in the Court of Appeal).
166 I should note that where there is an obligation to afford natural justice in any of the above scenarios, this arises on the basis that what is being exercised is a power (of a statutory, administrative or "public" nature) to make a decision which affects the rights, interests or legitimate expectations of a member of the public to have access to such a venue.
167 Aronson, Dyer and Groves, Judicial Review of Administrative Action (4th edn), Lawbook Company, 2009, at [7.65] note that the current threshold test for determining the application of procedural fairness (though they refer to earlier indications that it might have been expanded beyond this) remains that established in Kioa (see [7.65/7.780]) - that being, that there is an administrative (or governmental) decision which affects rights, interests and legitimate expectations in a direct and immediate way (at 584). They emphasise (at [7.330]) that the duty arises in the area of what they suggest can "loosely" be described as "governmental" decision-making, which they see as implying a limitation on the reach of procedural fairness. The starting point of that reach is identified by the authors as found in the concept of "public power".
168 The authors posit (fn. 915 para 7.330) that in "special cases" (such as Forbes, there citing Murphy J, and Crowe v Mercy Health and Aged Care Central Queensland Ltd [2001] QSC 384, at [18] per Dutney J) a duty may arise where the exercise of power is by a company that is essentially an incorporated club or is providing a public function under governmental authority, but consider that the imposition of a duty in that case is due to the nature of the power in question not the form of the entity on which it is conferred. (In effect, this is what is contended for by Mr Hinkley - that it is the 'public' nature of the function whether to permit entry to the casino carried out by the holder of a statutory licence to control gambling at the casino that gives rise to the alleged obligation to afford natural justice.) (The recent decision in M61/2010E (and M69/2010) v Commonwealth of Australia [2010] HCA 41, albeit in a very different context, supports the view that it is the nature of the power being exercised that is relevant in considering the obligation to afford natural justice.)
169 On that analysis, what is relevant to determine is whether, in issuing the Notice, Star City was exercising a "public power". (It seems to me difficult on any view to suggest that Casino Properties, which has no statutory power or function in this regard, was so doing.)
170 Insofar as much weight was put, in argument before me, on whether a person in Mr Hinkley's position would have a legitimate expectation of access to the casino (or to the Sovereign Room), it is noted by Aronson Dyer & Groves that the concept of legitimate expectation has been used both to extend the application of procedural fairness and to increase its content (see 7.120, 7,175-7.230 and Ch 8) though noting that "its role as an overarching concept has been on the ebb" see Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 (para 7.120).
171 It is suggested by the authors that the concept has been made redundant by the broader reach of the threshold test (at [7.145]), that test being by reference to whether the decision affects the interests or circumstances of identified individuals (though they note that, in Lam, at [34] Gleeson CJ considered that in some contexts the existence of a legitimate expectation might enliven an obligation to extend procedural fairness.) In the M61/M69 cases, the High Court, has recently referred with apparent approval to what Mason J had said in FAI Insurances Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342, at 360 that the obligation to afford procedural fairness is not limited to cases where the exercise of the power affects rights in the strict sense but extends to exercise of power that affects an interest or privilege, emphasising the importance of identifying the rights and interests affected.
172 The (formerly principal but now alternative) basis on which Mr Ashhurst contends that the obligation of natural justice arises in this case (namely, that what Star City was exercising, in effect, was a public proprietary right (as distinct from a personal proprietary right) when excluding Mr Hinkley from the casino) would, if sustained, seemingly satisfy the threshold test without the need to resort to the concept of, or identify a, legitimate expectation affected by the decision, since it is couched in terms of the public nature of the right or power being exercised.
173 Reliance for the proposition that this was an exercise of a public power rests largely on the dicta of Murphy J in Forbes, who contrasted in qualitative terms the position of an individual householder and someone in the position of the Club in that case. The public policy test invoked by Murphy J seems to envisage a balancing exercise between the rights of the owner or occupier of a "public" venue (or, as described in article by Ian Warren, 'An air of uncertainty: private security regulation in Victoria' (1997) 2(2) Deakin Law Review 223, "mass private property") and those of an individual. In this regard, a casino is seemingly in no different position than, say, a football stadium, nightclub, bar, theatre or shopping centre, all being areas to which the public or sections of the public can generally have access, whether with or without payment of a fee, and some aspects of which (such as the operation of poker machines or the sale of alcohol) are subject to the holding of particular licences. (The "public" nature of such property has been considered, for example, in Canada in the context of allegations of trespass by a picketer on a shopping centre sidewalk - Peter Harrison v Sophie Carswell [1976] 2 S.C.R. 200; [1976] 2 RCS 200; applying Peters v The Queen (1971) 17 D.L.R. (3d) 128, where the owner was able to maintain an action in trespass against the picketer on the curtilage of the shopping centre premises.)
174 Had the Notice (as properly construed) been issued under s 79 then there would have been much to support the view that it was in the exercise of a public power, that being a power conferred by statute on the casino operator in its capacity as casino operator and in the exercise of a power to regulate the exclusion of patrons at the casino (carrying with it potential criminal and other consequences).
175 However, to suggest that an owner (or occupier)'s common law property rights are limited by the fact that it controls or makes available to the public a venue for public entertainment seems inconsistent with the recognition in Cowell that the owner of a racecourse might terminate arbitrarily the licence of a racegoer. Does the existence of additional powers with which the owner might choose to control that activity alter the position? The fact that control of the activity, as here in the case of gambling, derives from a statutory power or licence (or, as in Forbes, a governmental consent) does not seem to me sufficient of itself to override or limit the ability of the owner or occupier to exercise whatever common law proprietary rights it may also have, absent an indication in the statute that it was the intention of the legislature so to limit their exercise.
176 The relevant question here is whether the statute operates to abrogate any common law right arbitrarily or capriciously to refuse to grant a licence to enter the casino (or to act in some other way otherwise than in accordance with procedural fairness) simply because the entity exercising such a right (here, Star City) controls the operation of gambling in the casino and has the benefit and responsibility of holding a casino operator's licence to control gambling in the casino.
177 As noted earlier, while Mr Ashhurst initially drew a distinction between abrogation of a common law right and a limitation on how that right is to be exercised, if his fallback argument is correct (and, in exercising its common law right to revoke a licence, Star City is obliged to act in accordance with the statutory exclusion power - which Mr Hinkley contends would oblige it to observe the principles of natural justice), then in substance there is no scope for the common law proprietary right to operate in anything but name.
178 Therefore, insofar as it seemed, in argument, to be suggested that the consequence of having the powers (or privileges) reposed in the casino operator is to require it to exercise those powers in accordance with the way a statutory power would be exercised, this does not seem to me to address the fact that, had the legislature intended that persons be excluded from the casino only by utilisation of the s 79 procedure, it could have made express provision to that effect.
179 There does not seem to me to be a discernible statutory intention that the s 79 procedure was to cover the field in prescribing the way in which access to the casino could be limited by the casino operator. Had the legislature intended that to be the case then it would have been a simple matter to do so.
180 If an owner/occupier in the position of Star City is obliged (by reason of its statutory power of exclusion and/or its statutory right or function to operate and control gambling at the casino) to afford natural justice, then it is difficult to see why a nightclub operator, for example, holding a statutory liquor or gambling licence (or both), would not be under a similar obligation when refusing entry to customers. Where then would the line between "public" and "private" powers be drawn?
181 As Mr McHugh submits, if Mr Hinkley is entitled to be afforded natural justice by Star City and Casino Properties in relation to the Notice (which Mr McHugh submits is just an advance or blanket version of an on-the-spot decision to refuse entry), then logically a Star City staff member at any casino entrance must also afford natural justice when he or she makes an "on-the-spot" decision to permit or refuse entry to patrons.) (Mr Ashhurst, however, submits that there is a confusion between Star City's right to make an on the spot refusal of entry (of the type discussed in Forbes at 264.6 and 275.6 and in Heatley at 510-511, as a private right) and the statutory entitlement to exclude indefinitely. It seemed initially to be accepted by him that the first of these rights is properly described as the operation of a private right that does not carry with it the obligation to provide procedural fairness but that the right to exclude (similarly to that of the right to "warn off") is either the exercise of the statutory right or the exercise of a public right which does carry with it the obligation to provide procedural fairness. However, such a submission is inconsistent with the now contention that the only licence a person can have to enter the casino is a statutory licence (albeit one granted by the casino operator) since in that case there could be no distinction between a decision "on the spot" to grant or withhold the grant of a licence to enter the casino and a decision to exclude indefinitely.
182 The potentially arbitrary or capricious nature of refusal of entry (assuming that does not breach other legislation, such as anti-discrimination legislation) is something that follows upon the concept of private ownership or occupation of premises - be they individual houses or larger venues that are made open to the public. A casino is in no qualitatively different position than, say, a nightclub in this regard, yet would it be suggested that there was an obligation to afford natural justice in the decision whether or not to admit entry to a venue of that kind? I am not persuaded that public policy requires the conclusion that there is an obligation of natural justice in the present context and I would follow the observations of Aickin J (with whom Stephen J concurred and Barwick CJ in that regard.
183 I would therefore answer this second question in the negative.