The Palace Gallery Pty Ltd v The Liquor and Gambling Commissioner & Ors

(2014) 118 SASR 567; [2014] SASCFC 26

South Australia Full Court

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Interrogate

Catchwords

1. Constitutional Law (Cth)
2. › Judicial power
3. › Judicial integrity principle
4. › State legislative power
5. › Whether retrospective validation legislation directed court as to outcome of pending proceedings
6. › Whether legislation impaired institutional integrity or decisional independence of State court
7. › Commonwealth Constitution, Ch III
1. Statutes
2. › Subordinate legislation
3. › Validity
4. › Delegated legislation made under purposive power
5. › Test of reasonable proportionality
6. › Whether code of practice appropriate and adapted to furtherance of objects of Act
7. › Liquor Licensing Act 1997 (SA), ss 3, 11A, 40, 42
1. Statutes
2. › Acts of Parliament
3. › Interpretation
4. › Amending Acts
5. › Transitional and validation provisions
6. › Whether validation clause applied to code of practice published before amendment
7. › Whether 'published under section 11A' required lawful publication
8. › Liquor Licensing (Miscellaneous) Amendment Act 2013 (SA), Sch 1 cl 3
1. Statutes
2. › Acts of Parliament
3. › Interpretation
4. › Consideration of extrinsic matters
5. › Parliamentary debates
6. › Whether statement by member of Legislative Council admissible to determine effect of provision
7. › Distinction between identifying mischief and stating effect of provision

Quick Take

A State Parliament may enact legislation that changes the legal standard against which the validity of subordinate legislation is to be assessed, even where proceedings challenging that subordinate legislation are pending, provided the legislation does not direct the court as to the outcome. The Liquor Licensing (Late Night Trading) Code of Practice 2013, including its lockout provision (clause 12), is valid under the amended s 11A of the Liquor Licensing Act 1997 (SA). The code-making power under s 11A may impinge on trading privileges conferred by licences, because s 42 makes compliance with codes a condition of every licence, but cannot be used to render licences an 'empty shell'.