(2) O'Shea
121 It is also necessary to consider the nature of this "decision" challenged in the present proceedings in light of the reliance placed by the plaintiffs upon the High Court's observations in O'Shea's (supra).
122 In O'Shea (supra), Mason CJ (at p.387) observed that the nature of the decision in that case concerned considerations personal to Mr O'Shea rather than with issues of general policy. In particular, the decision concerned his personal liberty, being a decision concerning either his release or for the continuation of his preventative detention.
123 The outcome of the appeal by the State of South Australia in O'Shea (supra) turned on the question as to whether the Governor in Council's decision not to release Mr O'Shea was subject to a duty to act fairly. The answer to that question hinged, to a large extent, on the relevant statutory framework.
124 Section 77(a) of the Criminal Law Consolidation Act 1935 (SA) provided for a regime of preventative detention. In accordance with specific provisions, it provided for periodic examinations of the offender, the making of a report to the Director-General of Medical Services and upon a recommendation by the Parole Board. The Board, in turn, was required to act in accordance with the scheme set out in the Correctional Services Act 1982 (SA). That Act proscribed procedures whereby the Board was permitted to interview a prisoner before preparing a report and was required to conduct an interview at a prisoner's request.
125 In the course of his decision, Mason CJ observed that the procedure set out in s.77(a) endeavoured to resolve the tension between protection of individual liberty and the need to protect the community from offenders who, because they were unable to control their sexual impulses, were likely to constitute a menace or a risk to society. The particular provisions which sought to achieve the appropriate balance between the two competing interests, were the subject of close examination by the Court.
126 Recommendations to the Governor in Council, it was noted, were based on a Cabinet decision, not on a decision by the responsible Minister. Mason CJ noted that, in some circumstances, Cabinet is called upon to decide questions:-
"… which are much more closely related to justice to the individual than with political, social and economic concerns. The fact that Cabinet ordinarily directs its attention to concerns of this kind is not a reason for denying the existence of a duty to act fairly in a matter which turns not on such concerns, but on considerations peculiar to the individual. A Minister is, to some extent, like Cabinet, concerned to make political judgments. Yet in appropriate cases he will be subject to a duty to act fairly." (at p.387)
127 It was ultimately determined that the hearing before the recommending body (the Parole Board) provided a sufficient opportunity for a party such as Mr O'Shea to present his case so that the decision-making process, viewed in its entirety, entailed procedural fairness (see, in particular, Mason CJ at p.389).
128 The decision of Cabinet in O'Shea (supra), as noted earlier, was closely related to justice to the individual rather than with political, social and/or economic concerns, although the community interests were, as noted above, a relevant consideration. The position in the present proceedings was, firstly, that the decision of Cabinet concerned the exercise of the statutory power under s.11(1)(b) which, though impacting on a specified group of licensees, was concerned with social and policy objectives within the Act, namely, the issue of violence on licensed premises and the control over circumstances which Cabinet considered were associated with, or conducive to, the incidence of violence established by the BOCSAR statistics.
129 The evidence further supports the conclusion that Cabinet formed the view that the issue of alcohol related violence in some hotels during trading in the early hours of the morning was a matter of pressing concern. The incidence of assaults and alcohol related violence, in particular, potentially involved members of the public and other interests referred to earlier.
130 The statutory scheme, the statutory powers and the subject matter for decision in this case are clearly distinguishable from those involved in O'Shea (supra). The licence rights held by the plaintiffs are statutory in nature. They are held subject to the provisions of the Liquor Act. They are materially different from the right of the citizen to individual liberty which "is deeply rooted in common law tradition …" (Mason CJ at 385), and which was the subject of O'Shea's case. The Liquor Act makes it plain that a licence under the Act is subject to limitations. By s.10(3) it provides:-
"The authorisation conferred by a licence is subject to this Act and the regulations." .
131 Specifically , by s.11(1) of the Act, a licence is, as discussed earlier, also expressly subject to the power to impose conditions under s.11(1)(b) of the Act.
132 The statutory power under the latter provision is, as also discussed above, an exceptional power in that it permits Government to impose conditions on licenses as, for example, where it determines there exist pressing or urgent circumstances, thereby reserving to it a power of control by legislating special conditions. In Kioa (supra), Brennan J stated at 620 to 621:-
"It does not follow that the principles of natural justice require the repository of a power to give a hearing to an individual whose interests are likely to be affected by the contemplated exercise of the power in cases where the repository is not bound and does not propose to have regard to those interests in exercising the power. If the repository of the power were authorised to exercise the power in his absolute discretion without taking account of individual interests and he proposed so to exercise the power, the repository might exercise it without hearing the individuals whose interests are likely to be affected: cf Coutts v The Commonwealth … but that would be an exceptional case."
133 It has long been accepted that natural justice applies to every situation where people's rights are affected, except where the legislature has by very plain and clear provisions, ruled it out: Annetts v McCann (supra) and Twist v Randwick Municipal Council (1976) 136 CLR 106. In the latter case, Barwick CJ (at 109) stated, inter alia, that the common law rule that a statutory authority, having power to affect the rights of a person is bound to hear him before exercising the power, is both fundamental and universal. However, the stated qualification was that the legislature may displace the rule and provide for the exercise of such a power without any opportunity being afforded to an affected person to oppose its exercise. Such a legislative intention must be made unambiguously clear.
134 The only reported case in which, according to my own researches, consideration has been given to similar issues to those arising in the present case is that in Tennant Creek Trading Pty Limited v Liquor Commission of the Northern Territory (1995) 126 FLR 136. There, the Northern Territory Liquor Commission issued a notice of intent proposing variations of the conditions of a number of liquor licenses in Tennant Creek. The notice was issued pursuant to s.33(1) of the Liquor Act. However, those provisions specified procedural fairness obligations. Section 33(1) provided:-
"33(1) Subject to this section, the Commission may, from time to time by notice in writing vary the conditions of the licence held by a licensee.
(2) A licensee may, within 28 days of the date on which the licensee receives a notice of a description referred to in sub-section (1), by notice in writing lodged with the Registrar, request that the Commission conduct a hearing in relation to the conditions of his licence.
(3) Where, under sub-section (2), a licensee requests that the Commission conducts a hearing, the Commission shall conduct a hearing in relation to the conditions of the licence of the licensee.
…"
135 The provisions of s.11(1)(b) authorising the imposition of conditions by statute are clearly very different and, in my opinion, may be properly regarded as exceptional and stand in contrast to the administrative powers to impose conditions on licences conferred elsewhere by the Act. The decision of Cabinet to invoke the power to impose conditions by way of statutory provision in the Act itself and to do so by including Scruffy Murphy's Hotel on the list of 48 hotels was not, in my opinion, for the reasons I have given, a decision that was subject to procedural fairness constraints.
136 On the above analysis, the following propositions relevant to the present case may be formulated:-