It was argued, that clause 23(a) of the Regulation departed from the positive provisions of the Act and, because it was inconsistent with the Act, went outside the field of operation which s170(1) marked out.
38 Section 85(2) required the person to whom the section applied, relevantly the SHC's agent or employee, to remove the person from the casino premises or cause the person to be removed from the casino premises under penalty. While the subsection did not expressly require immediate removal of the person subject to an exclusion order it did not contemplate the designated SHC employee permitting the excluded person to remain or preventing the excluded person from leaving the casino premises. The Act did not condition the command to remove so as, in particular circumstances, to allow the SHC employee to detain that person within the casino premises, that is to say, to refuse to let that person leave the casino premises.
39 If s88(2) of the Act alone was the source of power to detain persons suspected of contravening provisions of the Act, these arguments would have considerable force. But it is not the sole source of such power. Section 88(1) enabled an inspector to detain in the casino premises a person suspected of contravening "a provision of this or any other Act."
40 The clear language of s88(1) cannot, in my opinion, be read down to mean "contravene a provision, other than s84, of this Act". Thus s88(1) enabled an inspector who suspected that a person in the casino premises was the subject of an exclusion order to detain that person in the casino premises until the arrival at the place of detention of a police officer.
41 If an inspector detained a person in the casino premises on the reasonable suspicion that that person was the subject of an exclusion order, the execution by any of the persons designated in s85(2) of the Act of the duty to remove that person from the casino premises was necessarily postponed. The inspector was under no such duty to remove the person. However, even if he had been, the execution of the duty to remove would necessarily have been postponed during the period of detention. A degree of contradiction could accordingly be found between the requirements of s85(2) and s88(1), particularly if the removal contemplated by s85(2) could be read as entailing immediate removal or, in the language of the 2000 amendment, removal as soon as practicable after the person's presence in the casino premises became known. But the purpose of s88 is clear. Contravention of provisions such as ss84 and 87 made the contravener liable to a penalty. Detention was permitted on reasonable suspicion of contravention to await the arrival of the police. The formal charging of such persons, if thought appropriate, was made by the police, no doubt after due investigation. In my opinion, s85(2) must be read in a way which accommodated the inspector's power to detain under s88(1).
42 In the context of that legislative purpose, the circumstances that a person who contravened s84 by entering or remaining in casino premises is subject to a penalty and that s88(1) enabled an inspector to detain such persons until the arrival of a police officer inferentially so that the detained person be charged by the police, lead me to conclude that s85 should not be read as requiring immediate removal without detention under s88 and is not therefore repugnant to the regulatory extension under s88(2) of the power to detain persons reasonably suspected of being the subject of an exclusion order.
43 Nor do I think that there is any reason to read the Governor's power to prescribe a provision of the Act within the meaning of s88(2) as limited to provisions proscribing conduct as serious as cheating or as, in some other way, regarded as like cheating. The purpose was to allow a person reasonably suspected of contravening provisions of the Act to be detained and held until the police arrive so that they could be charged and if the offence was proved penalised in accordance with the provisions of the Act.
44 In my opinion, clause 23(a) of the Regulation was validly made.
45 The trial Judge found that the detention of Mr Rixon was made on reasonable grounds and that no more force was used than was proper in the circumstances. Her Honour said that Mr Rixon's evidence established that he was informed of the reasons for the detention and that the police were notified immediately of the detention. Further, her Honour found that Mr Rixon was not detained for any longer than was reasonable to enable a police officer to attend at the casino premises. The evidence was that Mr Perry suspected that Mr Rixon was subject to an exclusion order. He had reasonable grounds for doing so. He spoke to Mr Sheldon who on the basis of what Mr Perry told him had reasonable grounds for so suspecting and asking Mr Rixon to go to the interview room. Nothing was put to the Court that persuaded me that these findings were not open to the trial Judge on the evidence. Reliance was placed on the size of Mr Sheldon (Mr Perry described him as "a big boy" weighing perhaps 120, 130 kilos) and Mr Rixon's experience at the casino premises on 30 June 1996 to explain and justify some apprehension. But such apprehension, if it existed, does not undermine the trial Judge's decision.
46 At the trial counsel for Mr Rixon drew attention to the cases which emphasise that the law in this country is very jealous of any infringement of personal liberty and that any statute which purports to impair a right to personal liberty is interpreted, if possible, so as to respect that right. "Unless the Parliament makes unmistakably clear its intention to abrogate or suspend a fundamental freedom, the courts will not construe a statute as having that operation."; see Re Bolton (1987) 162 CLR 514 at 523, a passage which her Honour quoted. In my opinion, the Act made it unmistakably clear that s84 could be prescribed as a provision the suspected contravention of which, if on reasonable grounds, would enable the persons designated in s88(2) to detain the suspected person. Accordingly, in my opinion the appeal against her Honour's conclusion that Mr Rixon's case for unlawful arrest and false imprisonment must fail, also fails.