Australian Leisure and Hospitality Group Pty Ltd v Commissioner of Police
[2020] WASCA 157
•24 SEPTEMBER 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: AUSTRALIAN LEISURE AND HOSPITALITY GROUP PTY LTD -v- COMMISSIONER OF POLICE [2020] WASCA 157
CORAM: QUINLAN CJ
BUSS P
VAUGHAN JA
HEARD: 17 MARCH 2020
DELIVERED : 24 SEPTEMBER 2020
FILE NO/S: CACV 50 of 2019
BETWEEN: AUSTRALIAN LEISURE AND HOSPITALITY GROUP PTY LTD
Appellant
AND
COMMISSIONER OF POLICE
First Respondent
CHIEF HEALTH OFFICER (FORMERLY KNOWN AS THE EXECUTIVE DIRECTOR OF PUBLIC HEALTH)
Second Respondent
JEFFREY MICHAEL CADDY
Third Respondent
TIMOTHY MATTHEWS
Fourth Respondent
LAURIE E SMITH
Fifth Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: McGRATH J
File Number : GDA 18 of 2017
Catchwords:
Liquor licensing - Application by the appellant for leave to alter and redefine existing licensed premises - Application granted by the Liquor Commission - Appeal by the Commissioner of Police against the Liquor Commission's decision allowed by the primary judge - Primary judge quashed the Liquor Commission's decision to grant the appellant's application and remitted the application to the Liquor Commission for reconsideration according to law - Whether the Liquor Control Act 1988 (WA) manifests an intention to exclude from the 'public interest' referred to in s 33(1) and s 38(2) of the Liquor Control Act 'any potential economic benefits' from the granting of a liquor licence - Whether, on the proper construction of the Liquor Control Act, the 'public interest' referred to in s 33(1) and s 38(2) includes the public interest in obtaining 'general economic benefits' from the development and use of licensed premises
Legislation:
Interpretation Act 1984 (WA), s 5, s 18, s 29, s 31
Liquor Control Act 1988 (WA), s 5, s 17, s 33, s 38, s 39, s 40, s 61, s 61A, s 64, s 66, s 67, s 69, s 73, s 74, s 77, s 87, s 95, s 99, s 117, s 126D, s 126E, s 130
Result:
Appeal dismissed
Category: A
Representation:
Counsel:
| Appellant | : | M N Solomon SC & K A T Pedersen |
| First Respondent | : | D E Leigh & E C I Fearis |
| Second Respondent | : | No appearance |
| Third Respondent | : | No appearance |
| Fourth Respondent | : | No appearance |
| Fifth Respondent | : | No appearance |
Solicitors:
| Appellant | : | Squire Patton Boggs |
| First Respondent | : | State Solicitor's Office |
| Second Respondent | : | State Solicitor's Office |
| Third Respondent | : | No appearance |
| Fourth Respondent | : | No appearance |
| Fifth Respondent | : | No appearance |
Case(s) referred to in decision(s):
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27
Alphapharm Pty Ltd v H Lundbeck A/S [2014] HCA 42; (2014) 254 CLR 247
Amatek Ltd v Googoorewon Pty Ltd [1993] HCA 16; (1993) 176 CLR 471
Birch v Allen [1942] HCA 17; (1942) 65 CLR 621
Buck v Bavone [1976] HCA 24; (1976) 135 CLR 110
Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378
CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384
Clunies‑Ross v Commonwealth [1984] HCA 65; (1984) 155 CLR 193
Commissioner of Police v Australian Leisure and Hospitality Group Pty Ltd [2019] WASC 114
Director of Public Prosecutions v Mattiuzzo [2011] NTSC 60; (2011) 252 FLR 108
Executive Director of Health v Lily Creek International Pty Ltd [2000] WASCA 258
FAI Insurances Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342
Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503
Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506
IW v The City of Perth [1997] HCA 30; (1997) 191 CLR 1
Lynn v The State of New South Wales [2016] NSWCA 57; (2016) 91 NSWLR 636
McKinnon v Secretary, Department of Treasury [2006] HCA 45; (2006) 228 CLR 423
Mighty River International Ltd v Hughes [2017] WASCA 152; (2017) 52 WAR 1
Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Minister for Employment and Workplace Relations (Cth) v Gribbles Radiology Pty Ltd [2005] HCA 9; (2005) 222 CLR 194
Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31
Municipal Officers' Association of Australia v Lancaster (1981) 54 FLR 129
Osland v Secretary, Department of Justice (No 2) [2010] HCA 24; (2010) 241 CLR 320
Osland v Secretary, Department of Justice [2008] HCA 37; (2008) 234 CLR 275
O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210
Palace Securities Pty Ltd v Director of Liquor Licensing (1992) 7 WAR 241
Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal [2012] HCA 36; (2012) 246 CLR 379
Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; (2012) 246 CLR 636
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
R v Anderson; Ex parte Ipec‑Air Pty Ltd [1965] HCA 27; (1965) 113 CLR 177
Re Queensland Electricity Commission; Ex Parte Electrical Trades Union of Australia [1987] HCA 27; (1987) 61 ALJR 393
Russo v Aiello [2003] HCA 53; (2003) 215 CLR 643
S v Australian Crime Commission [2005] FCA 1310; (2005) 144 FCR 431
Smalley v Motor Accident Authority of New South Wales [2013] NSWCA 318; (2013) 85 NSWLR 580
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362
Tickner v Bropho (1993) 40 FCR 183
Travelex Ltd v Federal Commissioner of Taxation [2010] HCA 33; (2010) 241 CLR 510
Wacando v Commonwealth [1981] HCA 60; (1981) 148 CLR 1
Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; (1947) 74 CLR 492
Woolworths Ltd v Director of Liquor Licensing [2013] WASCA 227; (2013) 45 WAR 446
Table of contents
Contents
QUINLAN CJ & VAUGHAN JA
Introduction
The question for determination: our answer to the appeal
The public interest question for the Commission and the statutory context that informs the public interest considerations
The authorities: 'public interest' and matters that are 'definitely extraneous' to the public interest
Disposition
Conclusion
BUSS P
The background facts and circumstances
Overview of the statutory framework
The reasons of the Commission
The Commissioner of Police's grounds of appeal before the primary judge
The reasons of the primary judge
Ground 1 of ALH's appeal to this court: ALH's submissions
Ground 1 of ALH's appeal to this court: the Commissioner of Police's submissions
Ground 1 of ALH's appeal to this court: the correct approach to the construction of the Act
Ground 1 of ALH's appeal to this court: the correct approach to the construction of the phrase 'in the public interest' in the Act
Ground 1 of ALH's appeal to this court: its merits
Ground 2 of ALH's appeal to this court
Conclusion
QUINLAN CJ & VAUGHAN JA:
Introduction
This appeal concerns the proper construction of the Liquor Control Act 1988 (WA) (the Act), and in particular whether, in determining whether granting an application is in the 'public interest' for the purpose of s 38 of the Act, the Liquor Commission (the Commission) may have regard (and therefore give weight) to potential economic benefits that might accrue from of the grant of the application, but which are not concerned with the liquor, tourism and other hospitality industries or the use and development of licensed premises.
We have the considerable advantage of having read Buss P's reasons. We adopt, without repeating, what Buss P has stated as to the background facts and circumstances, the statutory framework, the Commission's reasons and the proceedings before and reasons of the learned primary judge. In light of Buss P's reasons it is also unnecessary for us to summarise the contentions of the appellant (ALH) and the Commissioner of Police on the appeal to this Court.
We agree with Buss P's recitation of the relevant principles of statutory construction (see [151] - [161] below). We are also in general agreement with what his Honour has stated as to the considerations that apply where a statutory provision requires that a decision-maker be 'satisfied' of a matter 'in the public interest' (see [163] - [168] below). It will, however, be necessary for us to touch on some of the authorities in this area. We wish also to record our specific agreement with what Buss P has stated as to the proper construction of the term 'amenity' as used in s 38(4)(b) of the Act (see [184] - [185] below).
The question for determination: our answer to the appeal
Ground 1 of this appeal concerns whether the learned primary judge was in error in concluding that various so-called 'economic benefit' factors were irrelevant considerations for the purpose of the Commission being satisfied, in terms of s 38(2) of the Act, that granting ALH's application was in the public interest.
Those economic benefit factors - referred to by the learned primary judge as the 'Economic Benefit considerations'[1] - echoed what was stated by the Commission at [139(a) - (c)] and [140(e)] of its reasons for decision. They were described by the learned primary judge as follows:
(a)the extent to which granting the application would deliver benefits to the City of Rockingham and the local community, including in the form of employment, a staff training facility and the proposed $6.5 million investment;
(b)the extent to which the staff training facility may add some additional vitality to the precinct;
(c)the extent to which granting the application may contribute to the further development of the commercial precinct within which the premises are located; and
(d)the extent to which granting the application may benefit other businesses in the commercial precinct.[2]
[1] Commissioner of Police v Australian Leisure and Hospitality Group Pty Ltd [2019] WASC 114 (primary reasons) [29].
[2] Primary reasons [28].
At the appeal hearing a question arose as to what was meant by 'vitality to the precinct'.[3] Senior counsel for ALH suggested that it referred to economic vitality.[4] There is support for that reading when regard is had to [139(c)] of the Commission's reasons. Counsel for the Commissioner of Police submitted that 'additional vitality' meant something different to investment and something different to shopping elsewhere in the vicinity. Counsel suggested that this might be an additional irrelevant consideration that was divorced from economic matters altogether.[5]
[3] Appeal ts 6, 52 - 54.
[4] Appeal ts 6.
[5] Appeal ts 53.
The argument before the learned primary judge was not conducted on this basis. The economic benefit factors were dealt with as a single group encompassing interests in the nature of economic development and benefit in the immediate locality of the licensed premises. Moreover, there was no notice of contention seeking to uphold the outcome before the learned primary judge on another basis. The appeal must be determined on the basis - apparently common ground before the learned primary judge - that the reference to 'vitality to the precinct' was concerned with economic vitality.
We have identified the question for determination in terms of the economic benefit factors (ie the 'Economic Benefit considerations' as more specifically described at [5] above) rather than 'general economic benefits' from the development and use of licensed premises (the phrase adopted by ALH in ground 1).[6] ALH contended that the learned primary judge should have held that:
[O]n the proper construction of the Act, the references to the public interest in ss 33(1) and 38(2) include the public interest in obtaining general economic benefits from the development and use of licensed premises (ground 1(b)).
[6] See ground 1(b) WAB 6.
There are two reasons why we identify the question for determination in the narrower terms set out in [4] above. First, contrary to what is contended for in ground 1, the learned primary judge did not hold that the Act manifested an intention to exclude from the public interest referred to in s 33(1) and s 38(2) of the Act any potential economic benefits of granting a licence.[7] His Honour's findings as challenged by ground 1 are expressed only in terms of the economic benefit factors as specified rather than general economic benefits.[8] Second, the Commission did not refer to general economic benefits as being a relevant consideration that it took into account. Rather, as the Commission made clear at [140(e)] of its reasons, the considerations which the Commission took into account as also being relevant were the benefits to the City of Rockingham and the local community in the form of employment, a staff training facility and the proposed $6.5 million investment.
[7] Compare ground 1(a) WAB 6.
[8] Primary reasons [65], [74].
For the reasons that follow the learned primary judge was correct to conclude that the economic benefit factors as so described were irrelevant considerations. Accordingly, ground 1 should be dismissed. It follows that the appeal should be dismissed and it is unnecessary to consider ground 2.
The public interest question for the Commission and the statutory context that informs the public interest considerations
The Commission granted approval for ALH to redevelop and redefine the premises known as the Leisure Inn in Rockingham pursuant to s 77 of the Act (the application for approval having been referred by the Director of Liquor Licensing to the Commission for determination pursuant to s 24 of the Act). Among other things, the application concerned the upgrade and redevelopment of the premises as well as the development of a new 'Dan Murphy's' retail packaged outlet to replace an existing 'BWS' outlet which was connected to the premises. The proposed upgrade was to increase the approved licensed area from 3,220 m2 to 4,990 m2, the majority of which was attributable to the proposed Dan Murphy's liquor outlet.
Section 77 relevantly provides:
77.No alteration of licensed premises without approval; application for approvals of alterations or redefinition of premises
(1)Subject to subsection (3), an owner, occupier or licensee of licensed premises, shall not, without the prior approval of the Director, make any alteration in:
(a)the construction or completion of premises the subject of plans or specifications submitted under section 62, in such a way as materially to alter the veracity of those plans or specifications; or
(b)any licensed premises.
Penalty:a fine of $10 000.
…
(3)For the purposes of this section:
(a)an alteration shall be deemed to be made if it comprises or consists of:
(ii)a change to the use of any premises, accommodation or facilities; or
(iii)an addition to, or reduction in the area of, the premises; and
(b)the renovation of, or of the accommodation or facilities provided by, the premises shall, if it is not an alteration of a kind referred to in paragraph (a), be deemed to be work that does not require the prior approval of the Director.
(4)On application in writing being made by the owner or occupier of the licensed premises, or by the licensee with the consent of the owner and any lessor, the licensing authority may approve:
(a)a proposed alteration of licensed premises; or
(b)unless section 80 applies, the redefinition of the licensed premises as defined in the licence.
Accordingly, the relevant approval power is found in s 77(4) of the Act.
The Director had previously decided, under s 38(1)(c) of the Act, that it was appropriate for s 38(2) of the Act to apply to the application. Section 38(2) provides:
An applicant who makes an application to which this subsection applies must satisfy the licensing authority [relevantly in this instance the Commission] that granting the application is in the public interest.
The same public interest criterion in found in s 33:
33.Powers of licensing authority when deciding applications
(1)Subject to this Act, the licensing authority has an absolute discretion to grant or refuse an application under this Act on any ground, or for any reason, that the licensing authority considers in the public interest.
(2)An application:
(a)may be refused, even if the applicant meets all the requirements of this Act; or
(b)may be granted, even if a valid ground of objection is made out,
but is required to be dealt with on its merits, after such inquiry as the licensing authority thinks fit.
There is no reason to consider that the reference to 'public interest' bears any different meaning in the two provisions. The parties argued the appeal on the basis that the meaning of 'in the public interest' was consistent irrespective of whether the statutory provision engaged was either s 38(2) or s 33(1). Strictly, however, the learned primary judge considered the question before him as one that concerned the meaning of the term 'public interest' in s 38 of the Act.[9] The learned primary judge was correct to take that view. It was s 38(2) that was engaged by reason of the Director's determination under s 38(1)(c) of the Act.
[9] Primary reasons [22].
Senior counsel for ALH sought to emphasise that s 33 contained words of the broadest possible ambit of discretion.[10] That submission must be tempered by what was established in this Court in Woolworths Ltd v Director of Liquor Licensing. There, Buss JA (Martin CJ and Murphy JA agreeing) stated in connection with s 33(1) that:
The word 'absolute' does not confer on the Commission an arbitrary or unlimited power. Section 33(1) is expressly 'subject to' the other provisions of the Act. It does not permit the Commission to grant or refuse an application other than consistently with the objects and other provisions of the Act.[11] (citations omitted)
[10] Appeal ts 11.
[11] Woolworths Ltd v Director of Liquor Licensing [2013] WASCA 227; (2013) 45 WAR 446 [53] (see also [1], [91]).
Nor is the Commission's obligation to take into account the public interest diminished by s 33(2). Section 33(2) does not empower the Commission to determine for itself the scope and content of the public interest, for the purposes of the Act, as if other provisions of the Act did not exist.[12]
[12] Woolworths Ltd v Director of Liquor Licensing [54].
The concept of 'in the public interest' is not a defined term in the Act. The Act neither defines nor expressly limits the range of matters relevant to the 'public interest'. We will turn in a moment to some statutory context of direct relevance to s 38(2). Before doing so, we will mention some other contexts in which the Act employs the expression 'public interest':
1.Section 30(3) provides that in certain circumstances a licensing authority is not required to give reasons for decision other than that the decision is made in the public interest. See also s 30(4) - (5) (dealing with objections and complaints based on confidential police information).
2.Section 64(3) provides for the imposition of licensing conditions in the public interest.
3.By section 69(6)(c)(iv) the Commissioner of Police may intervene (thus - through s 73(1) - permitting him or her to object) in proceedings before a licensing authority on a matter relevant to the public interest.
4.One of the permissible grounds of objection to an application is that the grant of an application would not be in the public interest (s 74(1)(a)). See also s 74(3) dealing with the form of such an objection. Section 74(1) goes on to state other grounds of objection. It should not, however, be thought that the other grounds stand outside the conception of matters relevant to the public interest for the purposes of the Act. Indeed, the ground of objection mentioned in s 74(1)(b) - that the grant of the application would cause undue harm or ill-health due to the use of liquor - is identified in s 38(4)(a) as being one of the permissible public interest considerations for the purpose of s 38(2) of the Act.
5.Section 91 permits the Director to suspend the operation of any licence or permit if the Director considers it is in the public interest to do so. The public interest is also a relevant criterion in considering whether there is proper cause for disciplinary action (s 95(4)(j)).
At a very broad level of generality, in considering whether the grant of an application is in the public interest, the Commission must consider the positive and negative aspects of the application and how the application will promote the objects of the Act.[13]
[13] Woolworths Ltd v Director of Liquor Licensing [2].
In the specific context of s 38(2), s 38(4) of the Act provides for matters that the Commission may have regard to in determining the public interest. Section 38(4) provides that:
Without limiting subsection (2), the matters the licensing authority may have regard to in determining whether granting an application is in the public interest include:
(a)the harm or ill-health that might be caused to people, or any group of people, due to the use of liquor; and
(b)the impact on the amenity of the locality in which the licensed premises, or proposed licensed premises are, or are to be, situated; and
(c)whether offence, annoyance, disturbance or inconvenience might be caused to people who reside or work in the vicinity of the licensed premises or proposed licensed premises; and
(d)any other prescribed matter [nothing being so prescribed].
The s 38(4) matters are not mandatory; the reference to 'may' confers a discretion such that the identified matters are permissible considerations. Nor are the s 38(4) matters expressed to be exhaustive. To the contrary, s 38(4) expressly provides that the mention of these non-mandatory factors - to which regard may be had - does not limit s 38(2). As s 38(2) is concerned with satisfaction that the grant of an application is in the public interest, we read and construe s 38(4)'s reference to 'without limiting subsection (2)' as meaning that there are other matters to which the Commission may have regard to in determining whether it is satisfied that the grant of an application is in the public interest.
In addition to the permissible considerations in s 38(4), the Act also provides for certain mandatory considerations which inform the public interest. This appears from s 5(2) of the Act:
In carrying out its functions under this Act, the licensing authority [relevantly the Commission] shall have regard to the primary objects of this Act and also to the … secondary objects …
A determination, for the purposes of s 38(2), of whether a licensing authority is satisfied that granting an application is in the public interest involves the licensing authority carrying out one of its functions under the Act. Accordingly, when engaged in such a task the licencing authority, by s 5(2), shall (the 'shall' being mandatory) have regard to the primary objects and the secondary objects of the Act.
The primary objects of the Act are specified in s 5(1):
(a) to regulate the sale, supply and consumption of liquor; and
(b)to minimise harm or ill-health caused to people, or any group of people, due to the use of liquor; and
(c)to cater for the requirements of consumers for liquor and related services, with regard to the proper development of the liquor industry, the tourism industry and other hospitality industries in the State.
The secondary objects of the Act are specified in s 5(2):
(a)to facilitate the use and development of licensed facilities, including their use and development for the performance of live original music, reflecting the diversity of the requirements of consumers in the State; and
(d)to provide adequate controls over, and over the persons directly or indirectly involved in, the sale, disposal and consumption of liquor; and
(e)to provide a flexible system, with as little formality or technicality as may be practicable, for the administration of this Act.
Where, in carrying out its functions under the Act, the licensing authority considers there is any inconsistency between the primary objects and the secondary objects, the primary objects take precedence.[14]
[14] Liquor Control Act s 5(3).
In Woolworths Ltd v Director of Liquor Licensing, having reviewed these and other provisions of the Act, Buss JA concluded, among other things, that in determining pursuant to s 38(2) whether it was satisfied that the granting of an application was in the public interest:
1.The factual matters which the Commission was bound to take into account were those relevant to the objects of the Act as set out in s 5(2).[15]
2.The factual matters which the Commission was entitled to take into account were those set out in s 38(4).[16]
3.Section 5(2) is mandatory whereas s 38(2) is permissive.[17]
4.On the proper construction of the Act, to the extent that such matters arose on the evidence (including as a notorious fact), the Commission was obliged to take into account the interest in:[18]
(a)catering for the requirements of consumers for liquor and related services with regard to the proper development of the liquor industry in the State (s 5(1)(c)); and
(b)facilitating the use and development of licensed facilities so as to reflect the diversity of the requirements of consumers in the State (s 5(2)(a)).
[15] Woolworths Ltd v Director of Liquor Licensing [49].
[16] Woolworths Ltd v Director of Liquor Licensing [50].
[17] Woolworths Ltd v Director of Liquor Licensing [51].
[18] Woolworths Ltd v Director of Liquor Licensing [52].
In terms of [28.4] above, we add that the Commission is obliged to take into account the interest in any of the other primary objects or secondary objects to the extent that those matters arise.
There is some overlap between the mandatory considerations in the form of the primary objects and the secondary objects in s 5(1) and s 5(2) and the permissible considerations in s 38(4). For example, the concept of harm or ill-health that might be caused due to the use of liquor appears in both s 5(1)(b) and s 38(4)(a). So too that concept appears in the long title to the Act. The Liquor Control Act is:
[a]n Act to regulate the sale, supply and consumption of liquor, the use of premises on which liquor is sold, and the services and facilities provided in conjunction with or ancillary to the sale of liquor, to minimise harm or ill-health caused to people, or any group of people due to the use of liquor, to provide for orders that may prohibit persons from being employed at, or from entering, licensed premises, to repeal the Liquor Act 1970, and for related matters.
It is unnecessary, for present purposes, to attempt to reconcile the apparent incongruity between harm or ill-health due to the use of liquor being both a mandatory consideration (by s 5(1)(b)) and a permissible consideration (by s 38(4)(b)). The significance of the overlap for the appeal lies in s 38(4)'s overt recognition that the public interest considerations for the purpose of s 38(2) are informed by the objects of the Act and the matters specified in the long title of the Act.
This is confirmatory of what is otherwise unsurprising. In determining the ambit of permissible public interest considerations, by reference to the subject matter, scope and purpose of the Act, the primary and secondary objects of the Act - as well as Act's long title - are critical statutory context. It can safely be said that each of the primary and secondary objects inform the subject matter, scope and purpose of the Act and thus the bounds of the public interest determination pursuant to s 38(2).
Senior counsel for ALH accepted, correctly, that the express objects in s 5 and the considerations in s 38(4) were important in determining the ambit of the public interest for the purposes of the Act.[19] It is well-established that a statutory provision which specifically states the purposes or objects of an enactment is relevant to the proper construction of the statute.[20] However, in ALH's submission the express objects were not determinative of the scope of the public interest considerations,[21] ie the public interest is not confined by, and is broader than, the Act's objects.[22]
[19] Appeal ts 8. See also: Appellant's submissions pars 6, 33 WAB 9, 15; Appeal ts 31.
[20] Mighty River International Ltd v Hughes [2017] WASCA 152; (2017) 52 WAR 1 [88].
[21] Appeal ts 8, 14, 16, 24, 29, 33 - 34.
[22] Appellant's submissions pars 10, 19 WAB 10, 12; Appeal ts 13, 34.
The learned primary judge accepted a submission to that effect in rejecting an argument advanced by the Commissioner that the only matters relevant to the public interest consideration were those stated in s 5 and s 38(4) of the Act.[23]
[23] Primary reasons [47], [58] - [59].
The Commissioner did not seek to revive that argument in this Court. The appeal was conducted on the common basis that this aspect of the learned primary judge's decision was not challenged. Accordingly, we will accept, without deciding, that s 5 and s 38(4) of the Act do not confine the meaning of the public interest so as to make the primary and secondary objects and the permissive factors in s 38(2) the exclusive public interest considerations. The question remains, however, whether the permissible public interest considerations include the economic benefit factors as taken into account by the Commission.
The authorities: 'public interest' and matters that are 'definitely extraneous' to the public interest
The term 'public interest' has long informed judicial discretions and evaluative judgments at common law. When used in a statute, the term derives its content from the subject matter, scope and purpose of the enactment in which it appears. Thus a decision-maker is not free to apply idiosyncratic notions of public interest.[24]
[24] Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506 [31]. See also [32], [41].
As was said by the plurality (Mason CJ, Brennan, Dawson and Gaudron JJ) in O'Sullivan v Farrer when discussing the nature of public interest determinations in the exercise of statutory power:
[T]he expression 'in the public interest', when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only 'in so far as the subject matter and the scope and purpose of the statutory enactments may enable ... given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view': Water Conservation and Irrigation Commission (NSW) v Browning per Dixon J.[25] (citations omitted)
[25] O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210, 216.
That passage has been cited, with approval, on many occasions in subsequent decisions in the High Court.[26] It is of added significance to the present case so far as O'Sullivan v Farrer involved consideration of the public interest in a liquor licensing context. More generally, the authorities have observed that the question of what is in the public interest has more than one dimension.[27] The application of a public interest criterion may require a balancing of competing interests and be very much a question of fact and degree.[28] Thus, to adapt what has been said in another context, there are obvious difficulties in giving the phrase 'public interest' as it appears in s 38(2) of the Act a fixed and precise content.[29]
[26] McKinnon v Secretary, Department of Treasury [2006] HCA 45; (2006) 228 CLR 423 [55]; Osland v Secretary, Department of Justice [2008] HCA 37; (2008) 234 CLR 275 [137]; Osland v Secretary, Department of Justice (No 2) [2010] HCA 24; (2010) 241 CLR 320 [13]; Hogan v Hinch [31], [69]; Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal [2012] HCA 36; (2012) 246 CLR 379 [42]; Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; (2012) 246 CLR 636 [30].
[27] McKinnon v Secretary, Department of Treasury [55]; Osland v Secretary, Department of Justice [137]; Hogan v Hinch [69].
[28] Hogan v Hinch [32].
[29] Osland v Secretary, Department of Justice (No 2) [13].
It is accepted, for example, that tension may arise between the object of minimising harm or ill-health due to the use of liquor and certain of the other objects (eg the objects in s 5(1)(c) and s 5(2)(a)).[30] Thus the Commission must undertake a weighing and balancing exercise (but in doing so must observe the statutory imperative in s 5(3) of the Act that the primary objects take precedence in the event of inconsistency between the primary objects and the secondary objects).
[30] See Executive Director of Health v Lily Creek International Pty Ltd [2000] WASCA 258 [19].
ALH's argument at the appeal hearing emphasised that the public interest value judgment required by s 38(2) of the Act was, in terms of O'Sullivan v Farrer, 'confined only' insofar as a matter was 'definitely extraneous' to any object the Parliament could have had in mind.[31] By reference to that formulation senior counsel for ALH suggested a two-step approach whereby: (1) one began with an unconfined discretion; (2) one then searched for things that were rendered 'definitely extraneous'.[32] The implication of the submission was that any matter not so definitely extraneous was not excluded from consideration under s 38(2) because it was permissible as being within the conception of the public interest.
[31] Appellant's submissions pars 5, 11 WAB 9, 10; Appeal ts 7 - 8, 14 - 15, 18 - 19, 27.
[32] Appeal ts 14 - 15, 23 - 24, 28, 34.
As can be seen from the passage in O'Sullivan v Farrer reproduced at [37] above, the phrase 'definitely extraneous' has its roots in Dixon J's reasons for decision in Water Conservation and Irrigation Commission (NSW) v Browning.[33] That case involved the exercise of a statutory power to grant or refuse consent to the transfer of an irrigation-farm lease 'entirely in the discretion' of a commission. There was no statement of the matters the commission was to take into consideration in exercising the power. It was held that it was not beyond the commission's discretion to refuse consent on the ground that the proposed transferee, although naturalized, was 'of enemy origin' (the decision occurring in the immediate aftermath of the second world war and the applicant having been born in Italy).
[33] Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; (1947) 74 CLR 492, 505.
Dixon J, stating that the discretion was undefined in the statutory provision, nevertheless observed that it was neither arbitrary nor completely unlimited.[34] Having earlier made the statement as quoted in O'Sullivan v Farrer (thereby identifying how the discretion was confined), his Honour drew on an earlier decision of his own in stating:
I have before remarked on the impossibility, when an administrative discretion is undefined, of a court's doing more than saying that this or that consideration is extraneous to the power (Swan Hill Corporation v Bradbury). But there must be some warrant in the provisions, the nature or the subject matter of the statute before so much can be said of a particular consideration that has been acted upon. What warrant have we in point of law for saying that the considerations governing the commission's refusal of consent to the transfer to [the appellant] can be material to no purpose falling within the scope and object of the commission's discretion?[35] (citations omitted)
[34] Water Conservation and Irrigation Commission (NSW) v Browning (505).
[35] Water Conservation and Irrigation Commission (NSW) v Browning (505). Oher members of the High Court used the terminology of 'irrelevant' consideration rather than 'extraneous' consideration: (496 - 497) per Lathan CJ, (498) per Rich J (who also referred to 'extraneous considerations'), (507) per McTiernan J. Starke J referred to 'relevant consideration' (500). At one point Latham CJ used 'extraneous and irrelevant' as if the two words referred to the same concept: (496).
So explained we apprehend the reference to an 'extraneous' consideration to be the same as an irrelevant consideration: it is a matter which is outside the permissible considerations for the exercise of a statutory power or discretion (in its express terms unconfined) by reason of implied limitation having regard to the subject matter, scope and purpose of the statutory provision.[36]
[36] See Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 40.
Senior counsel for ALH sought to emphasise not only O'Sullivan v Farrer's reference to 'extraneous' but also the use of the phrase 'definitely extraneous'.
We are conscious of the deference that must be given to the statement of principle by the plurality in O'Sullivan v Farrer. That is all the more so where it has been repeated time and time again in the High Court. Nonetheless, the statement of principle should not be approached and applied as if it is a statutory test. The formulation ought instead to be applied so as to reflect and give effect to the principles which underlie its application. In that respect the qualifier 'definitely' serves, in our view, no more than to accentuate the usual restraint employed where a court is reviewing the legality of the exercise of an undefined statutory power or discretion entrusted to an administrative decision maker. That is apparent from how Dixon J goes on to discuss the issue in Water Conservation and Irrigation Commission (NSW) v Browning. It may be seen from the passage we have reproduced at [42] above where, among other things, his Honour refers to whether, based on some warrant in the statutory provisions or the nature and subject of the statute, a consideration is extraneous (rather than 'definitely extraneous') to the statutory power.
Disposition
What is definitely extraneous to satisfying the Commission that the grant of an application under the Act is in the public interest for the purposes of s 38(2) of the Act must be determined on the proper construction of the term 'public interest' in the sub-section.
ALH contended that the economic benefit factors were relevant, and not extraneous, to the public interest; it said that to find otherwise disregarded the objects of the Act, on their proper construction, and the economic significance of the activities which the Act regulates (those activities operating in a wider economic setting forming part of the economic fabric of the State).[37]
[37] Appellant's submissions par 5 WAB 9. See also pars 12 - 16, 17 - 19, 27 WAB 10 - 12, 14.
In the latter respect, senior counsel for ALH contended that the economic benefit factors were consistent with the legislative scheme of the Act as a whole insofar as the Act had a broad reach that encompassed a breadth of economic activities.[38] It was said, however, to be enough that the economic benefit factors were not inconsistent with the primary or secondary objects, or expressly excluded from consideration under s 38(4) or otherwise, and were therefore within the concept of the public interest.[39]
[38] Appeal ts 34. See also Appeal ts 24, 32.
[39] Appeal ts 23 - 25, 34.
Considered in the abstract, rather than through the prism of the Act, the term 'public interest' is capable of encompassing a wide range of considerations. It may, depending on the subject matter, scope and purpose of the relevant statute, include matters as diverse as freedom of political communication, the proper administration of government, open justice, public health and safety, the prevention and detection of crime, national security and economic wellbeing. However, when used in a particular context - here s 38(2) and s 77 of the Act - the term 'public interest' is not at large. In exercising a statutory power or discretion under the Act, where s 38(2) applies, the Commission must assess public interest by reference to the place of the section in the statutory scheme, the purpose of the Act as a whole and the purpose of s 77 (that being the specific power or discretion to which s 38(2) is applying).
This is the first difficulty with ALH's argument on appeal. It is incorrect to simply search for things that are rendered definitely extraneous. The public interest criteria does not authorise the Commission to act on whim. The starting point is identification of the concept of public interest in the context of s 38(2) and s 77 of the Act. It cannot be assumed that this encompasses economic benefit factors of the type relied on by the Commission because, as a matter of public benefit, general economic wellbeing is an aspect of the public interest as contemplated by the Act. There is a difference between what, in general terms, might be characterised as a public benefit - as the economic benefit factors undoubtedly are - and identification of the concept of the public interest in the context of s 38(2) and s 77.
Similarly, identification of the concept of public interest in the context of s 38(2) and s 77 of the Act is not assisted by the truism that the Act impacts on many and varied economic activities throughout Western Australia. Virtually all statutory regulation has the capacity to impact on economic activity in a general sense, if not directly then at least indirectly. It does not follow from the circumstance that other economic activities may be affected, either positively or negatively, by the exercise of a statutory power or discretion grounded on a public interest criterion, that economic benefits are a relevant public interest consideration. That argument suffers from the fallacy of conflating what might, in general terms, be considered a public benefit with identification of the public interest that is engaged by the statutory provision in question.
We construe the public interest criterion in s 38(2) of the Act as encompassing the public interest in relation to the sale, supply and consumption of liquor.[40] We identify that as being the relevant content of the public interest from the subject matter, scope and purpose of the Act having regard, in particular, to its long title, the expressed primary and secondary objects in s 5 and the permissive considerations in s 38(4).
[40] A proposition apparently accepted by senior counsel for ALH at the appeal hearing: Appeal ts 31.
The long title of the Act confirms that this is the relevant aspect of the public interest that is engaged by s 38(2). The critical words are that the Act is an enactment 'to regulate' the sale, supply and consumption of liquor. The other parts of the long title can be seen as falling within that general subject, with the 'related matters' catch all providing for consideration of associated matters. Consideration of the public interest in relation to the sale, supply and consumption of liquor is entirely consistent with the permissive matters in s 38(4). So too it can be seen as providing the foundation and organising taxonomic category for both the primary objects in s 5(1) (expressly in s 5(1)(a)) and the secondary objects in s 5(2).
Identification of the relevant aspect of the public interest requires no modification so far as the Commission was considering whether to grant redevelopment approval pursuant to s 77 of the Act. In granting or refusing approval to alter licensed premises the Commission was required, among other things, to direct its attention to the requirements of consumers for liquor (with regard to the proper development of the liquor, tourism and other hospitality industries) and the use and development of the premises as a licensed facility. But, as previously stated, these public interest concerns fall within the general rubric of the public interest in relation to the sale, supply and consumption of liquor.
Having, for these reasons, identified the concept of public interest in the context of s 38(2) and s 77 of the Act as encompassing the public interest in relation to the sale, supply and consumption of liquor, we accept that economic benefits of some kinds were a permissible consideration on ALH's application. The relevant public interest had as part of its concerns the proper development of the liquor, tourism and other hospitality industries (so as to cater for the requirements of consumers of liquor and related services) and the use and development of licensed premises. Economic benefits which might accrue and enhance the position in these respects were relevant to whether the Commission was satisfied that the grant of ALH's redevelopment application was in the public interest. However, the economic benefit factors relied on by the Commission were not of this type. They were concerned with the economic benefits that would accrue in the immediate locality of the licensed premises as a consequence of the redevelopment in the form of employment generally, a training facility and the additional vitality occasioned thereby, and the extent to which the redevelopment may contribute to further development of the immediate commercial precinct benefitting nearby businesses.
These economic benefit factors were not permissible considerations in evaluating the public interest in the context of s 38(2) and s 77 of the Act. Incidental economic advantages accruing to the benefit of those trading or seeking to work or trade in the immediate locality of the licenced premises are definitely extraneous (in the sense we have explained) to the public interest in relation to the sale, supply and consumption of liquor as is the concern of the Act. Nothing in the public interest in relation to the sale, supply and consumption of liquor, is concerned with the accrual of such economic benefits - being a public benefit unrelated to the sale, supply and consumption of liquor and thereby being outside of the subject matter, scope and purpose of the Act.
It is true, as we have observed at [38] above, that the public interest has more than one dimension and that the application of the public interest criterion may be very much a question of fact and degree.[41] Depending upon the circumstances of a particular case, difficult questions of degree might arise as to whether an economic advantage said to accrue from the grant of an application should properly be regarded as relating to the public interest in relation to the sale, supply and consumption of liquor. The incidental economic advantages identified as the economic benefit factors in this case, however, were not advantages of that kind. They were definitely extraneous.
[41] Hogan v Hinch [32].
Furthermore, while our conclusion is expressed more generally, we also agree with the more specific observations of Buss P as to the extent to which the Act recognises the interests of local government (see [224] ‑ [226] below).
For these reasons alone we would dismiss ground 1. For completeness, however, there are two additional components of ALH's submissions that we should briefly address.
First, ALH also relied on s 37(1)(f), s 99, s 126E and s 130 of the Act.[42] Buss P has described the effect of those provisions (see [229] below). None of them impact on our conception of the public interest criterion in s 38(2) of the Act as it applies in considering an application under s 77. Nor, in our view, do they result in the economic benefit factors being relevant considerations for the purpose of the application that was before the Commission. That is all the more so when only
s 37(1)(f) raises the sort of issues that might commonly be raised for consideration on a s 77 redevelopment approval application.
[42] Appellant's submissions pars 21 - 23 WAB 13.
Second, ALH criticised the reasoning process of the learned primary judge.[43] There is no need to examine the reasons provided by the learned primary judge - expressed as five separate but related reasons - or ALH's criticisms of those reasons. We agree with the learned primary judge's conclusion that, as a matter of law, the economic benefit factors were irrelevant considerations for the purpose of the task before the Commission. We do so for the reasons we have expressed. It is not necessary for us to endorse or reject His Honour's process of reasoning. It is enough that the learned primary judge and we have come to the same conclusion albeit by differing pathways.
[43] Appellant's submissions pars 66 - 73 WAB 21; Appeal ts 25 - 28.
Conclusion
The learned primary judge was correct to conclude that the economic benefit factors were irrelevant considerations. Ground 1 should be dismissed. Once ground 1 is dismissed there is no need to consider ground 2. The appeal fails with the dismissal of ground 1.
BUSS P:
This appeal concerns an application by the appellant (ALH) for leave to alter and redefine existing licensed premises in Rockingham, pursuant to s 77 of the Liquor Control Act 1988 (WA) (the Act). The premises are known as the Leisure Inn.
The Liquor Commission (the Commission) constituted by three members granted ALH's application.
The first respondent (the Commissioner of Police) appealed against the Commission's decision, pursuant to s 28(4) of the Act, to the Supreme Court.
The Commissioner of Police's appeal was heard by McGrath J. His Honour allowed the Commissioner of Police's appeal, quashed the Commission's decision to grant ALH's application and remitted the application to the Commission for reconsideration according to law.
ALH has appealed against the primary judge's decision.
ALH relies upon two grounds of appeal.
Ground 1 asserts that:
(a)the primary judge erred in law in holding that the Act manifests an intention to exclude from the 'public interest' referred to in s 33(1) and s 38(2) of the Act 'any potential economic benefits' from the granting of a licence; and
(b)his Honour should have held that, on the proper construction of the Act, the 'public interest' referred to in s 33(1) and s 38(2) includes the public interest in obtaining 'general economic benefits' from the development and use of licensed premises.
Ground 2 asserts that the primary judge erred in fact and in law by holding that procedural fairness required that the Commission put the Commissioner of Police on notice as to the significance of the 'economic benefit considerations' in connection with ALH's application.
Ground 1 of ALH's appeal has not been made out. It is unnecessary to decide ground 2. The appeal should be dismissed. My reasons are as follows.
The background facts and circumstances
On 8 April 2014, ALH lodged its application under s 77 of the Act for approval to redevelop the Leisure Inn, an existing licensed premises operating pursuant to a hotel licence in Rockingham. The Leisure Inn comprises several bars and an associated BWS liquor store. ALH proposed to redevelop the existing bars and to replace the BWS liquor store with a Dan Murphy's liquor store.
ALH's application was accompanied by a letter dated 8 April 2014 from ALH's solicitors and by numerous other supporting documents, including a document dated 8 April 2014 and headed 'Public Interest Assessment' (the PIA) prepared on behalf of ALH.
On 4 June 2014, the Director of Liquor Licensing (the Director) informed ALH that the Director had decided under s 38(1)(c) of the Act that it was appropriate for s 38(2) of the Act to apply to ALH's application. By s 38(2), an applicant who makes an application to which s 38(2) applies must satisfy the licensing authority that granting the application is 'in the public interest'.
On 3 July 2014, the Commissioner of Police lodged a Notice of Intervention in respect of ALH's application.
On 15 July 2014, the Commissioner of Police lodged a Notice of Objection in respect of ALH's application.
On 21 August 2015, the Director referred ALH's application to the Commission pursuant to s 24(1) of the Act.
Prior to 31 May 2016, the Commission ordered all parties to lodge any additional evidence by 31 May 2016. Pursuant to that order, ALH lodged a document headed 'Social Impact Assessment' (the SIA) prepared by Social Impact Strategies Pty Ltd for ALH.
On 6 July 2016, ALH lodged written submissions in support of its application.
On 6 July 2016, the Commissioner of Police lodged written submissions in opposition to ALH's application.
On 13 July 2016, ALH lodged written responsive submissions.
On 13 July 2016, the Commissioner of Police lodged written responsive submissions.
On 20 July 2016, the Commission, constituted by three members, held a hearing in relation to ALH's application. The Commissioner of Police participated in the hearing and was represented by counsel and solicitors.
On 11 October 2017, the Commission decided that ALH's application should be granted and published reasons for decision.
On 1 November 2017, the Commissioner of Police filed an appeal notice in respect of the Commission's decision to grant ALH's application. On 28 June 2018, the primary judge heard the appeal. On 5 April 2019, his Honour allowed the appeal on two grounds. First, the Commission had erred in law by taking into account an irrelevant consideration, namely 'economic benefit considerations'. Secondly, the Commission had denied the Commissioner of Police procedural fairness in that the Commission failed to give notice to the Commissioner of Police of the significance of the 'economic benefit considerations'. As I have mentioned, his Honour quashed the Commission's decision to grant ALH's application and remitted the application to the Commission for reconsideration according to law.
Overview of the statutory framework
At the material time, the relevant provisions of the Act included the following.
The long title of the Act states that it is an Act 'to regulate the sale, supply and consumption of liquor, the use of premises on which liquor is sold, and the services and facilities provided in conjunction with or ancillary to the sale of liquor, to minimise harm or ill‑health caused to people, or any group of people due to the use of liquor … and for related matters'.
The term 'licensing authority' is defined in s 3(1) to mean:
(a)in relation to an application or matter that is, under the Act, to be determined by the Commission - the Commission; and
(b)otherwise - the Director.
The primary objects of the Act, as set out in s 5(1), are to regulate the sale, supply and consumption of liquor (par (a)); to minimise harm or ill‑health caused to people, or any group of people, due to the use of liquor (par (b)); and to cater for the requirements of consumers for liquor and related services, with regard to the proper development of the liquor industry, the tourism industry and other hospitality industries in the State (par (c)).
By s 5(2), in carrying out its functions under the Act, the licensing authority shall have regard to the primary objects of the Act and to certain secondary objects. The secondary objects comprise facilitating the use and development of licensed facilities, including their use and development for the performance of live original music, reflecting the diversity of the requirements of consumers in the State (par (a)); providing adequate controls over, and over the persons directly or indirectly involved in, the sale, disposal and consumption of liquor (par (d)); and providing a flexible system, with as little formality or technicality as may be practicable, for the administration of the Act (par (e)).
By s 5(3), if, in carrying out any of its functions under the Act, the licensing authority considers that there is any inconsistency between the primary objects and the secondary objects, the primary objects take precedence.
Section 8 establishes the Commission. By s 9(1) the Commission has the jurisdiction conferred on it by the Act and any other written law. Section 9I(1) provides, relevantly, that a decision of the Commission is to be given in writing.
Section 16(1) provides:
In any proceedings under this Act, the licensing authority, however constituted ‑
(a)shall act without undue formality; and
(b)may ‑
(i)obtain information as to any question that arises for decision in such manner as it thinks fit; and
(ii)make its determination on the balance of probabilities; …
(c) …
(d) …
Section 16(7) provides:
The Evidence Act 1906 does not apply to the proceedings of the licensing authority, however constituted, and the licensing authority ‑
(a)is not bound by the rules of evidence or any practices or procedures applicable to courts of record, except to the extent that the licensing authority adopts those rules, practices or procedures or the regulations make them apply; and
(b)is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms; and
(c)is to act as speedily and with as little formality and technicality as is practicable.
Section 16(11) provides, relevantly:
… the licensing authority shall ensure that each party to a proceeding before it is given a reasonable opportunity to present its case and, in particular, to inspect any documents to which the licensing authority proposes to have regard in making a determination in the proceedings; and to make submissions in relation to those documents.
By s 28(1), relevantly, subject to s 28, a person who is a party to proceedings before the Commission and is dissatisfied with a decision of the Commission may appeal under s 28.
By s 28(2), no appeal lies against a decision of the Commission constituted by three members except to the Supreme Court on a question of law.
By s 28(4), relevantly, an appeal under s 28 against a decision of the Commission constituted by three members shall be heard and determined by a single judge of the Supreme Court.
By s 28(5), on an appeal under s 28 to the Supreme Court, the Supreme Court may:
(a)affirm, vary or quash the decision appealed against; or
(b)make any decision that the Commission could have made instead of the decision appealed against; or
(c)send the decision back to the Commission for reconsideration in accordance with any directions or recommendations that the Court considers appropriate,
and, in any case, may make any ancillary or incidental order that the Supreme Court considers appropriate.
Part 3 is headed 'Licences and permits' and comprises 13 divisions. Division 1 is headed 'General matters' and comprises s 30A to s 37B. Division 2 is headed 'Licences' and comprises s 38 to s 59. Division 7 is headed 'Applications' and comprises s 66 to s 77.
Section 33 is concerned with the powers of the licensing authority when deciding applications and provides, relevantly:
(1)Subject to this Act, the licensing authority has an absolute discretion to grant or refuse an application under this Act on any ground, or for any reason, that the licensing authority considers in the public interest.
(2)An application ‑
(a)may be refused, even if the applicant meets all the requirements of this Act; or
(b)may be granted, even if a valid ground of objection is made out,
but is required to be dealt with on its merits, after such inquiry as the licensing authority thinks fit.
Section 38 states, in effect, that some applications are not to be granted unless the granting of the applications is in the public interest.
Section 38 provides, relevantly:
(1) Subsection (2) applies to ‑
(a)an application for the grant or removal of a licence; or
(b)an application for a permit of a kind prescribed; or
(c)any other application to which the Director decides it is appropriate for subsection (2) to apply.
(2)An applicant who makes an application to which this subsection applies must satisfy the licensing authority that granting the application is in the public interest.
(3)For the purposes of subsection (2), the applicant must provide to the licensing authority ‑
(a)any prescribed document or information; and
(b)any other document or information reasonably required by the licensing authority for those purposes.
(4)Without limiting subsection (2), the matters the licensing authority may have regard to in determining whether granting an application is in the public interest include ‑
(a)the harm or ill‑health that might be caused to people, or any group of people, due to the use of liquor; and
(b)the impact on the amenity of the locality in which the licensed premises or proposed licensed premises are, or are to be, situated; and
(c)whether offence, annoyance, disturbance or inconvenience might be caused to people who reside or work in the vicinity of the licensed premises or proposed licensed premises; and
(d)any other prescribed matter.
As I have mentioned, in the present case, the Director decided under s 38(1)(c) that it was appropriate for s 38(2) to apply to ALH's application.
Neither the concept of 'public interest' nor the expression 'in the public interest', appearing in s 33(1) and s 38(2) and other provisions of the Act, is defined in the Act.
Section 66(1)(c) provides that an application for approval of a proposed alteration to, or redefinition of, licensed premises must be accompanied, unless the Director otherwise approves, by plans of the premises to which the application relates.
Section 67(1) provides that an application in respect of any matter must, if the Director so requires, be advertised in the manner specified by the Director.
Section 69 is concerned with advertising, referring, investigating and intervening in applications.
By s 69(6):
The Commissioner of Police ‑
(a)is authorised to cause such investigation or inquiry to be made as may be necessary into the background and antecedents of any applicant or person thought by the licensing authority or by an authorised officer to be likely to be interested in an application; and
(b)is required, upon the licensing authority requesting a report of that kind, to cause a report to be provided to the licensing authority ‑
(i)as to the background, antecedents, character and reputation of any person; and
(ii)as to any disqualification under this Act or the repealed Act that may relate to any person,
who is a person thought by the licensing authority or an authorised officer to be likely to be interested in an application; and
(c)may intervene in proceedings before the licensing authority for the purpose of introducing evidence or making representations ‑
(i)as to whether or not any person is a fit and proper person; or
(ii)on the question of whether, if a particular application were granted, public disorder or disturbance would be likely to result; or
(iii)as to the interest that any person may have in a licence; or
(iv)as to any other matter relevant to the public interest.
By s 69(7), relevantly:
[The local government of the district in which the premises or proposed premises are, or are proposed to be situated] may intervene in proceedings before the licensing authority for the purpose of introducing evidence or making representations ‑
(a)as to whether premises are suitable to be, or to continue to be, licensed or the subject of a permit; and
(b)as to whether a proposed alteration to, or redefinition of, licensed premises should be approved; and
(c)on the question of whether, if a particular application were granted, persons who reside, work or worship in the vicinity would be likely to suffer undue offence, annoyance, disturbance or inconvenience,
and may submit a report to the licensing authority on those matters.
Section 73 is concerned with the general right of, and the rules for, objecting to applications.
By s 73(1), a person who is authorised to intervene in any proceedings relating to an application may instead or in addition exercise that right by way of objection.
By s 73(10), the burden of establishing the validity of any objection lies on the objector.
Section 74 is concerned with the grounds for objecting to applications.
Section 74(1) provides:
No objection shall be made except on one or more of the following grounds ‑
(a)that the grant of the application would not be in the public interest; or
(b)that the grant of the application would cause undue harm or ill‑health to people, or any group of people, due to the use of liquor; or
[(c)‑(f)deleted]
(g)that if the application were granted ‑
(i)undue offence, annoyance, disturbance or inconvenience to persons who reside or work in the vicinity, or to persons in or travelling to or from an existing or proposed place of public worship, hospital or school, would be likely to occur; or
(ii)the amenity, quiet or good order of the locality in which the premises or proposed premises are, or are to be, situated would in some other manner be lessened;
or
[(h)deleted]
(j)that the grant of the application would otherwise be contrary to this Act.
Section 74(3) provides:
Where an objection is lodged on the ground that the grant of the application would not be in the public interest ‑
(a)the notice of objection shall be accompanied by a statement in writing setting out the reasons why the objector considers the objection can be made out; and
(b)if the Director so requires, the objector shall provide further particulars of the matters to which the objection relates; and
(c)the Director may require that notice of any facts or grounds alleged or submission made be given to the applicant in a particular manner.
Section 77(1) provides, relevantly, that an owner, occupier or licensee of licensed premises shall not, without the prior approval of the Director, make any alteration in any licensed premises.
Section 77(4) provides, relevantly, that on an application being made by the owner or occupier of licensed premises, or by the licensee with the consent of the owner and any lessor, the licensing authority may approve a proposed alteration of licensed premises or, unless s 80 applies, the redefinition of the licensed premises as defined in the licence.
The reasons of the Commission
The Commission made findings and arrived at conclusions in its reasons for decision as follows:
(a)Although the premises were 'clearly very popular and cater to a wide range of customers', the building was 'relatively unattractive and out of date'. The internal facilities, including the motel accommodation, would benefit from the proposed upgrade [94].
(b)The granting of ALH's application would be consistent with the primary and secondary objects of the Act relating to consumer requirements [109].
(c)Although the Commission was not persuaded that the granting of ALH's application would adversely affect diversity to the extent of putting other liquor stores out of business, a decline in turnover of the magnitude likely to be experienced by some liquor store operators would be expected to impact the quality of small liquor store operators' businesses in the locality [115].
(d)There were existing levels of harm and ill‑health in the locality associated with the use of liquor and, in a number of respects, 'the statistics giving rise to [that] finding are higher than in other parts of the State'. Nevertheless, the Commission's task was to determine whether the granting of ALH's application would increase such harm and ill‑health and, if so, whether any such increase was outweighed by the benefits to the community from the granting of the application [127].
(e)The Commission was satisfied that the granting of ALH's application would result in an increase in harm and ill‑health because more alcohol would be available for sale. However, the Commission was required to consider the effect of the predicted level of harm against the existing level of harm [132].
(f)The Commission considered that there was a likelihood that there would be an increase in the level of harm and ill‑health, but that would not be of such a degree that the granting of ALH's application should be rejected solely on the basis of that finding [135].
(g)ALH's application must not be viewed in a piecemeal manner. The Commission was required to consider 'all of the benefits that may arise from the totality of what is planned by [ALH]'. The development of the food and beverage facilities at the premises would no doubt provide a range of benefits. The development of the Dan Murphy's liquor store would also provide a range of benefits. The totality of those benefits must be weighed against the harm and ill‑health issues. Other factors that lent support to the application included:
(i)'the investment of $6.5 million in the City of Rockingham which may, notwithstanding the absence of any direct evidence of economic flow on benefits, contribute to the further development of the commercial precinct within which the premises are located';
(ii)'whilst the Dan Murphy's store is a destination liquor outlet, a proportion of customers from outside the immediate area may shop elsewhere to the benefit of other businesses in the commercial precinct'; and
(iii)'although the frequency of use is not clear, the staff training facility may add some additional vitality to the precinct' [139].
The Commission then made other findings and arrived at other conclusions in the course of deciding that ALH's application should be granted:
140.Based on the totality of the evidence submitted by all parties to the application, the Commission makes the following findings:
a)the risk of an increase in alcohol related harm and ill‑health, and the likely resultant magnitude of that harm and ill-health due to the proposed introduction of the Dan Murphy's store, over and above the alcohol related harm which is occurring in the community currently (due to existing licensed premises, including the applicant's BWS store) is not insignificant;
b) however, there are some potential mitigating factors:
…
c)whilst the applicant has not clearly demonstrated that the proposed Dan Murphy's store is responding to the preferences or requirements of consumers of liquor in the local community (given the ambiguity surrounding the results of the Community Survey), the high level of support for the upgrade of other facilities and the facilities overall is a relevant consideration;
d)although the extent of an upgrade to the accommodation component of the proposed upgrade has not been made clear, the tenor of the application is such that an upgrade in keeping with the redevelopment of the other facilities is expected; and
e)the benefits to be derived by the City of Rockingham and the local community in the form of employment, a staff training facility and the proposed $6.5 million investment are also relevant considerations.
141.Although finely balanced, having considered the potential benefits of the proposed development as a whole, the Commission has determined that the likely increase in harm and ill‑health that may result from the grant of the application is not so unacceptable as to outweigh the potential benefits to the City of Rockingham and the local community.
142.Based on an assessment of all the evidence relied upon by the parties (including materials not referred to specifically in these reasons), the Commission is satisfied that the applicant has discharged its onus and established on balance that it is in the public interest to allow the application and that the objectors have failed to establish that the granting of the licence would not be in the public interest.
The Commissioner of Police's grounds of appeal before the primary judge
The Commissioner of Police relied upon three grounds of appeal before the primary judge.
Ground 1 alleged that, in assessing whether granting ALH's application was in the public interest, the Commission erred in law by taking into account irrelevant considerations, namely:
(a)the extent to which granting the application would deliver benefits to the City of Rockingham and the local community, including in the form of employment, a staff training facility and the proposed investment of $6.5 million;
(b)the extent to which staff training facilities may add some additional vitality to the precinct;
(c)the extent to which granting the application may contribute to the further development of the commercial precinct within which the premises are located; and
(d)the extent to which granting the application may benefit other businesses in the commercial precinct.
Ground 2 alleged, alternatively to ground 1, that the Commission erred in law by denying the Commissioner of Police procedural fairness in that the Commission failed to give the Commissioner of Police notice of the Commission's view as to the significance to the Commission's decision of the matters referred to in pars (a), (b), (c) and (d) of ground 1.
Ground 3 alleged that, in assessing whether granting the application was in the public interest, the Commission erred in law by misconstruing its statutory function of applying the primary object in s 5(1)(c) of the Act in that the Commission considered in isolation whether granting the application would cater for the requirements of consumers for liquor and related services.
The reasons of the primary judge
In his reasons for judgment, the primary judge referred to the considerations specified at [122(a), (b), (c) and (d)] above as the 'Economic Benefit considerations' [28] ‑ [29].
As to ground 1 of the Commissioner of Police's appeal, his Honour held that the Act manifested an intention 'to forbid the Economic Benefit considerations from being taken into account in assessing where the public interest lies' [65].
The primary judge gave five reasons in support of his conclusion that the Act manifests an intention that the Economic Benefit considerations were irrelevant in assessing whether the granting of ALH's application was in the public interest.
First, his Honour said that the Act was regulatory in nature and was directed, largely, to protecting the public. In protecting the public, consideration must be given to the orderly and proper management and growth of the liquor industry. The Act was not concerned with regulating or developing 'wider economic objectives' [66].
Secondly, his Honour said that the primary objects of the Act are 'narrow'. The primary objects do not refer to 'wider economic benefits to a locality or the community more generally'. Section 5(1)(a) and s 5(1)(b) stipulate that primary objects are to regulate the sale, supply and consumption of liquor and to minimise the harm or ill‑health caused to people from the use of liquor. By s 5(1)(c), the only primary object which involves promoting industry is limited to 'the promotion of specified industries, namely the liquor industry, the tourism industry and other hospitality industries'. If Parliament had intended that 'the wider economic development of the State was a relevant consideration in determining the public interest test then Parliament could very easily have said so' [67] ‑ [68].
Thirdly, his Honour said that there is no provision of the Act which suggests it is a purpose of the Act 'to promote general and diffuse benefits to a locality or the State in the form of employment, facilities or investment' [69].
Fourthly, his Honour said that there are no provisions of the Act that 'provide a regulatory framework for evidence to be received from interested parties in assisting the determination of whether general economic benefits in the form of employment and investment would or would not result from a particular application' [70].
Fifthly, his Honour said that the long title of the Act 'does not support a contention that the scope or purpose [of] the Act should be read widely to include diverse economic purposes, which are not expressly articulated in s 5 of the Act' [71].
As to ground 2 of the Commissioner of Police's appeal, the primary judge concluded, by the following process of reasoning, that the Commission had failed to accord procedural fairness to the Commissioner of Police:
(a)Section 16(11) imposes on the licensing authority an obligation to ensure that a party affected by a decision be given the opportunity of ascertaining the relevant issues. The licensing authority must identify to a party affected any issue critical to the decision which is not apparent from the nature of the decision or the provisions of the Act, and must inform a party affected of any adverse conclusion not obviously open on the known material [84].
(b)Although the Commission is not obliged to permit each party to a proceeding before it to be heard on every issue, irrespective of whether the issue pertains to that party's case, in the present case the Commissioner of Police objected on the ground of 'public interest' [86] ‑ [87].
(c)The Economic Benefit considerations 'clearly pertained to the case' advanced by the Commissioner of Police on 'public interest' [87] and, accordingly, ALH's contention before his Honour that the Commissioner of Police's case did not comment on or engage with the Economic Benefit considerations was without merit [88].
(d)Although the Economic Benefit considerations were contained in the PIA, and the PIA was referred to in written and oral submissions before the Commission, no reference to the Economic Benefit considerations was made in those written or oral submissions and ALH's case at the hearing before the Commission placed no reliance on the Economic Benefit considerations [88] ‑ [91].
(e)The Commissioner of Police was therefore not put on notice that the Commission would have regard to the Economic Benefit considerations in arriving at its decision as to whether the granting of ALH's application was in the public interest [92].
(f)The Commissioner of Police contended that, if he had been put on notice, he 'would have addressed both the relevance and cogency of the evidence bearing upon the Economic Benefit considerations' [96].
(g)The Commission denied the Commissioner of Police procedural fairness 'by failing reasonably to give [the Commissioner of Police] notice of the Commission's view as to the significance of the Economic Benefit considerations' to its decision on ALH's application. It could not be concluded that 'the lack of procedural fairness could not have affected the outcome' [97].
Ground 1 of ALH's appeal to this court: ALH's submissions
As I have mentioned, ground 1 of ALH's appeal to this court asserts that the primary judge erred in law in holding that the Act manifests an intention to exclude from the 'public interest' referred to in s 33(1) and s 38(2) of the Act any potential economic benefits from the granting of a licence.
Counsel for ALH submitted that, on the proper construction of the Act, the public interest referred to in s 33(1) and s 38(2) includes the public interest in obtaining general economic benefits from the development and use of licensed premises.
Counsel argued that the public interest referred to in s 33(1) and s 38(2) is not confined to, and is broader than, the objects of the Act. In particular, it was argued that s 5 and s 38(4) of the Act do not confine the concept of the public interest in s 33(1) and s 38(2) so that the objects of the Act and the permissive factors specified in s 38(4) are the exclusive determinants of the public interest.
It was submitted that it is apparent from the regulatory scheme established by the Act that the economic factors considered by the Commission (and referred to at [122] above) are not 'definitely extraneous to any objects the legislature had or could have had in view';[44] nor are those factors prohibited from consideration. The economic factors taken into account by the Commission were relevant considerations in the assessment of the public interest referred to in s 33(1) and s 38(2). All of those factors, including that the staff training facility would provide 'some additional vitality to the precinct', were concerned with economic matters.
[44] Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; (1947) 74 CLR 492, 505 (Dixon J); O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210, 216 (Mason CJ, Brennan, Dawson & Gaudron JJ).
Counsel emphasised that the Act does not seek to regulate the private consumption of alcohol. Rather, the Act regulates trade in alcohol. The regulatory scheme therefore focuses upon the sale and supply of alcohol and the consequences flowing from that trade. According to counsel, commerce, and therefore economics, is at the heart of the regulatory scheme.
It was submitted that the Act prohibits the sale of alcohol without a licence or permit; provides for the grant of licences and permits; and regulates aspects of the manner in which licensed businesses and premises are to operate.
As I have mentioned, in the present case, the Director decided under s 38(1)(c) of the Act that it was appropriate for s 38(2) of the Act to apply to ALH's application. However, as I will explain, s 38(2) cannot be construed without regard to the general provisions in s 33 with respect to any and all applications under the Act.
In my opinion, the expression 'in the public interest' in s 33(1) and s 38(2) of the Act did not permit the Commission to take into account the Economic Benefit considerations in deciding whether to grant or refuse ALH's application. My reasons are as follows.
First, neither the concept of 'public interest' nor the expression 'in the public interest' is defined in the Act either for the purposes of s 33(1) and s 38(2) or otherwise. Other provisions of the Act in which the concept of 'public interest' or the expression 'in the public interest' is embodied include s 30(3), s 64(3), s 69(6)(c)(iv), s 74, s 91 and s 95.
There is no express statement in s 33 as to the considerations which the licensing authority:
(a)is entitled or bound to take into account; or
(b)must not take into account,
in deciding whether, in a particular case, it is 'in the public interest' to grant or refuse an application under the Act.
Section 38(4) states that, without limiting s 38(2), the matters to which the licensing authority may have regard in determining whether the granting of an application to which s 38(2) applies is in the public interest include:
(a)the harm or ill-health that might be caused to people, or any group of people, due to the use of liquor (s 38(4)(a)); and
(b)the impact on the amenity of the locality in which the licensed premises, or proposed licensed premises are, or are to be, situated (s 38(4)(b)); and
(c)whether offence, annoyance, disturbance or inconvenience might be caused to people who reside or work in the vicinity of the licensed premises or proposed licensed premises (s 38(4)(c)); and
(d)any other prescribed matter (s 38(4)(d)).
No other matter has been prescribed by the Liquor Control Regulations 1989 (WA) for the purposes of s 38(4)(d).
Section 38(4) empowers the licensing authority to have regard to the matters specified in pars (a), (b), (c) and (d) of s 38(4) in determining whether the granting of an application to which s 38(2) applies is in the public interest. The word 'may' in s 38(4) is an empowering provision. The phrase 'without limiting s 38(2)' indicates that the specification of the matters referred to in pars (a), (b), (c) and (d) of s 38(4) does not derogate from the generality of the expression 'in the public interest' in s 38(2).
Apart from s 38(4), there is no express statement in s 38 as to the considerations which the licensing authority:
(a)is entitled or bound to take into account; or
(b)must not take into account,
in deciding whether, in a particular case, it is 'in the public interest' to grant or refuse an application to which s 38(2) applies.
There is no indication in s 33(1) or s 38(2) or elsewhere in the Act that the expression 'in the public interest' bears a meaning in s 33(1) that is different from its meaning in s 38(2).
The term 'amenity', within the phrase 'the impact on the amenity of the locality in which the licensed premises, or proposed licensed premises are, or are to be, situated' in s 38(4)(b), is not defined in the Act.
The term 'amenity' appears in three other provisions of the Act, as part of the phrase:
(a)'the amenity, quiet or good order of the locality in which the premises or proposed premises are, or are to be, situated', in s 74(1)(g)(ii);
(b)'the amenity, quiet or good order of the neighbourhood of the licensed premises' being frequently unduly disturbed by reason of any activity occurring at the licenced premises, in s 117(1)(a); and
(c)'the amenity, quiet or good order of the neighbourhood of the licensed premises', in s 117(2)(b).
In my opinion, the term 'amenity' in s 38(4)(b) is concerned with whether and, if so, to what extent the granting of the application would be likely to have any positive or negative effects or consequences upon the overall character, quality and enjoyment of life within the locality.
Relevant effects or consequences will include, for example:
(a)any increase or decrease in traffic, noise, nuisance, overlooking, overshadowing, pollution and late night activities within the relevant locality; and
(b)the nature, features and utility of any structures, facilities or spaces to be built, renovated or created.
In a particular case, the granting of the application may have positive effects or consequences upon the overall character, quality and enjoyment of life within the locality as a result of the expenditure of money on or in connection with the licensed premises or proposed licensed premises. However, relevant effects or consequences do not include, of themselves, general economic benefits from the development and use of licensed premises or proposed licensed premises. As I have mentioned, the concept of 'amenity' in s 38(4)(b) is concerned with the overall character, quality and enjoyment of life within the locality.
Secondly, in these circumstances, the concept of 'public interest' and the expression 'in the public interest' in s 33(1) and s 38(2) of the Act is to be given content and meaning by reference to the purposes of the Act, as discerned from the statute as a whole including from the primary and secondary objects specified in s 5.
The long title of the Act relevantly states that it is an Act 'to regulate the sale, supply and consumption of liquor, the use of premises on which liquor is sold, and the services and facilities provided in conjunction with or ancillary to the sale of liquor, to minimise harm or ill-health caused to people, or any group of people due to the use of liquor, to provide for orders that may prohibit persons from being employed at, or from entering, licensed premises … and for related matters'.
The primary objects of the Act, as specified in s 5(1) of the Act, are:
(a)to regulate the sale, supply and consumption of liquor (s 5(1)(a));
(b)to minimise harm or ill-health caused to people, or any group of people, due to the use of liquor (s 5(1)(b)); and
(c)to cater for the requirements of consumers for liquor and related services, with regard to the proper development of the liquor industry, the tourism industry and other hospitality industries in the State (s 5(1)(c)).
By s 5(2), in carrying out its functions under the Act, the licensing authority shall have regard to the primary objects, as specified in s 5(1), and also to the following secondary objects:
(a)to facilitate the use and development of licensed facilities, including their use and development for the performance of live original music, reflecting the diversity of the requirements of consumers in the State (s 5(2)(a));
(b)to provide adequate controls over, and over the persons directly or indirectly involved in, the sale, disposal and consumption of liquor (s 5(2)(d)); and
(c)to provide a flexible system, with as little formality or technicality as may be practicable, for the administration of the Act (s 5(2)(e)).
Section 5(3) provides that if, in carrying out any of its functions under the Act, the licensing authority considers that there is any inconsistency between the primary objects and the secondary objects, the primary objects take precedence.
It is apparent from the context that the term 'functions' in s 5(2) and s 5(3) of the Act bears the meaning ascribed to the term 'function' in s 5 of the Interpretation Act and not the meaning ascribed to the term 'function' in s 3(1) of the Act. Accordingly, the term 'functions' in s 5(2) and s 5(3) includes powers, duties, responsibilities, authorities and jurisdictions.
So, the functions of the licensing authority, for the purposes of s 5(2) and s 5(3) of the Act, include, relevantly, the exercise of the powers and jurisdictions conferred on the licensing authority by s 33(1) and s 38(2) of the Act.
By virtue of s 5(2), in exercising its powers and jurisdictions under s 33(1) and s 38(2), the licensing authority must have regard to the primary objects specified in s 5(1) and the secondary objects specified in s 5(2).
Section 5(2) and s 38(4), to the extent that they deal with the same subject matter, may be reconciled on the basis that s 5(2) is a mandatory provision in relation to relevant considerations and s 38(4) is an empowering provision in relation to relevant considerations.
It is true that benefits by way of employment, facilities and investment are inherent in the development of the liquor industry, the tourism industry and other hospitality industries. However, it does not follow from those inherent attributes that the primary objects specified in s 5(1)(a) read with s 5(1)(c) include the regulation of the sale, supply and consumption of liquor with a view to achieving or enhancing benefits, by way of employment, facilities and investment generally, within localities, regions or the State. The text of s 5(1) does not include an object of that kind, either expressly or by necessary implication. In particular, the primary object specified in s 5(1)(c) is concerned with catering for the requirements of consumers for liquor and related services having regard to 'the proper development of the liquor industry, the tourism industry and other hospitality industries in the State'. Section 5(1)(c) is not concerned with catering for the requirements of consumers generally with regard to the proper development of other industries.
The primary and secondary objects specified in s 5 do not, on their proper construction, include the Economic Benefit considerations taken into account by the Commission in granting ALH's application.
The provisions of the long title of the Act are reflected in the primary objects specified in s 5(1) and the secondary objects specified in s 5(2)(a) and (d) of the Act.
The secondary object specified in s 5(2)(e) is merely concerned with the administration of the Act.
Part of the provisions of the long title of the Act, the primary object in s 5(1)(b) and the secondary object in s 5(2)(d) are reflected in s 38(4).
The long title of the Act is consistent with the primary and secondary objects in s 5 and with the other provisions of the Act.
Thirdly, s 33(1) of the Act provides that, '[s]ubject to this Act, the licensing authority has an absolute discretion to grant or refuse an application under this Act on any ground, or for any reason, that the licensing authority considers in the public interest'.
The word 'considers', within the phrase 'that the licensing authority considers in the public interest' in s 33(1), connotes that the licensing authority thinks, on the basis of a particular ground or for a particular reason, that it would be in the public interest to grant or refuse an application, as the case may be.
Section 33(1) confers on the licensing authority an 'absolute discretion' to grant or refuse an application under the Act on any ground, or for any reason, that the licensing authority considers in the public interest. However, the word 'absolute' does not confer on the licensing authority an arbitrary or unlimited power. See Water Conservation & Irrigation Commission (NSW) v Browning (503) (Dixon J); R v Anderson; Ex parte Ipec‑Air Pty Ltd;[73] FAI Insurances Ltd v Winneke.[74]
[73] R v Anderson; Ex parte Ipec‑Air Pty Ltd [1965] HCA 27; (1965) 113 CLR 177, 189 (Kitto J).
[74] FAI Insurances Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342, 368 (Mason J).
Section 33(1) is expressed to be 'subject to' the other provisions of the Act. Consequently, s 33(1) does not permit the licensing authority to grant or refuse an application other than consistently with the objects in s 5 and the other provisions of the Act. See Palace Securities Pty Ltd v Director of Liquor Licensing;[75] Woolworths Ltd v Director of Liquor Licensing.[76]
[75] Palace Securities Pty Ltd v Director of Liquor Licensing (1992) 7 WAR 241, 249 ‑ 250 (Malcom CJ).
[76] Woolworths Ltd v Director of Liquor Licensing [2013] WASCA 227; (2013) 45 WAR 446 [53] (Buss JA; Murphy JA agreeing).
The licensing authority's obligation to grant or refuse an application under s 33(1) on the basis of the public interest is not diminished by s 33(2), which provides, relevantly, that an application may be refused even if the applicant meets all the requirements of the Act or may be granted even if a valid ground of objection is made out, but the application is required to be dealt with on its merits, after such inquiry as the licensing authority thinks fit. See Woolworths Ltd v Director of Liquor Licensing [54].
Section 33(2) does not empower the licensing authority to determine, for itself, the content and meaning of the public interest, for the purposes of s 38(2), as if s 5 and s 38(4) did not exist. The references in s 33(2) to 'the requirements of this Act' and 'a valid ground of objection' do not include the criterion of 'in the public interest' embodied in s 38(2). See Woolworths Ltd v Director of Liquor Licensing [54].
Section 38(2) provides that an applicant who makes an application to which s 38(2) applies must 'satisfy the licensing authority that granting the application is in the public interest'.
The effect of s 38(2) is to impose on the applicant the onus of persuading the licensing authority that granting the application is in the public interest.
As I have mentioned, s 38(4) states, without limiting s 38(2), some matters to which the licensing authority may have regard in determining whether the granting of an application to which s 38(2) applies is in the public interest. Also, as I have mentioned, the matters specified in s 38(4) reflect part of the long title of the Act, the primary object in s 5(1)(b) and the secondary object in s 5(2)(d).
Fourthly, it is apparent from the primary and secondary objects specified in s 5, in the context of the statute as a whole, and consistently with the long title, that the Act was enacted to regulate the sale, supply and consumption of liquor in Western Australia. The Act was not enacted to promote the sale, supply and consumption of liquor.
Section 5(1) expresses a connection between each primary object of the Act, on the one hand, and the regulation of the sale, supply and consumption of liquor in Western Australia, on the other.
The primary object in s 5(1)(a) is, in essence, to regulate generally the manner in which liquor is sold, supplied and consumed in Western Australia.
The primary object in s 5(1)(b) is, in essence, to regulate specifically the sale, supply and consumption of liquor in Western Australia so as to minimise harm or ill‑health caused to people or any group of people due to the use of liquor.
The primary object in s 5(1)(c) is, in essence, to regulate specifically the sale, supply and consumption of liquor in Western Australia so as to cater for the requirements of consumers for liquor and related services with regard to the proper development of the liquor, tourism and other hospitality industries in Western Australia. The primary object in s 5(1)(c) is formulated by reference to a stipulated nexus between the requirements of consumers for liquor and related services, on the one hand, and the proper development of the liquor, tourism and other hospitality industries, on the other. The primary object involves the specific regulation of the sale, supply and consumption of liquor with a view to achieving that purpose.
Section 5(2)(a) and (d) express a connection between each of the secondary objects in those provisions, on the one hand, and the regulation of the sale, supply and consumption of liquor in Western Australia, on the other.
The secondary object in s 5(2)(a) is, in essence, to regulate generally the use and development of licensed facilities, including by facilitating specifically the use and development of licensed facilities for the performance of live original music in a manner that reflects the diversity of the requirements of consumers of liquor and related services in Western Australia.
The secondary object in s 5(2)(d) is, in essence, to regulate the sale, supply and consumption of liquor in Western Australia by providing adequate controls over, and over the persons directly or indirectly involved in, the sale, disposal and consumption of liquor.
Nothing in s 5 or any of the other provisions of the Act supports ALH's contention that economics is at the heart of the regulatory scheme.
Fifthly, the Act contemplates and addresses three kinds of industry, namely the liquor industry, the tourism industry and other hospitality industries. See s 5(1)(c), s 17(1)(c) and s 126D(4). The references in the Act to 'other hospitality industries' indicate that the liquor industry and the tourism industry are hospitality industries. The Act does not contemplate or address other industries.
I accept that the 'public interest' referred to in s 33(1) and s 38(2) includes the public interest in obtaining general economic benefits for the liquor, tourism and other hospitality industries from the development and use of licensed premises.
However, in my opinion, the Act does not contemplate that the 'public interest' referred to in s 33(1) and s 38(2) includes the public interest in obtaining general economic benefits of the kind within the Economic Benefit considerations for other industries (that is, industries apart from the liquor, tourism and other hospitality industries) or for the community generally from the development and use of licensed premises.
The distinction between general economic benefits for the liquor, tourism and other hospitality industries, on the one hand, and general economic benefits of the kind within the Economic Benefit considerations for other industries or for the community generally, on the other, is not artificial. It is fundamental to the regulatory scheme established under the Act.
Sixthly, the Act recognises the interests of local governments. For example:
(a)Section 39 requires that an application made to the licensing authority for the grant or removal of a licence, or for a change in the use or condition of any premises, be accompanied by a certificate from the local government for the district in which the premises to which the application relates are situated, or are to be situated. The certificate must state, relevantly, whether or not the premises comply with all relevant requirements of certain laws administered by the local government.
(b)Section 40 requires that an application made to the licensing authority for the grant or removal of a licence, or for a change in the use or condition of any premises, be supported by a certificate from the authority responsible for planning matters in the district in which the premises to which the application relates are situated, or are to be situated.
(c)Section 61(1)(d) requires an applicant for an extended trading permit for an extended area to satisfy the licensing authority that the local government of the district within which the premises or area to which the application relates are situated has been consulted and has approved the application.
(d)Section 61A(2)(f) contains a similar provision to s 61(1)(d) in relation to an application for an extended trading permit for the sale of wine or beer.
(e)By s 64(1C), the relevant local government may be consulted as to the imposition, variation or cancellation of conditions on a licence.
(f)By s 69(7) and (8), a local government which intervenes in an application may only make submissions as to the suitability of the premises, whether a proposed alteration to or redefinition of the premises should be approved, regulatory compliance, and the potential negative consequences of the grant of a licence.
(g)Section 95(5)(c) provides for a local government to make a complaint about the conduct of licensed premises.
Section 87(1)(e) permits a local government of a district that is situated in a rural area to apply to the Director for a 'protection order' to enable the rural local government to sell liquor and to carry on the business of the licensee, or former licensee, on or from the licensed premises as if the rural local government were the licensee. That provision does not, however, point against my conclusion that the interests of local governments, for the purposes of s 33(1) and s 38(2), do not include the Economic Benefit considerations taken into account by the Commission in granting ALH's application. A rural local government is permitted to apply for a protection order under s 87(1)(e) only where a hotel or liquor store serving the local community has ceased to carry on business. A protection order is of a limited duration. If made on the application of a rural local government, the order ceases to have effect on the expiry of such period of not more than 12 months as is specified in the order. See s 87(2)(b)(i). The apparent purpose of permitting a rural local government to apply for and be granted a protection order is to enable liquor to continue to be sold and supplied within a rural area on a short term basis until a new commercial operator has been found for and is able to commence business from the hotel or liquor store in question.
None of the provisions of the Act with respect to local governments indicates that the interests of local governments, for the purposes of s 33(1) and s 38(2) of the Act, include the Economic Benefit considerations taken into account by the Commission in granting ALH's application.
Further, if general economic benefits of that kind were aspects of the 'public interest' referred to in s 33(1) and s 38(2), the Act would have made express provision for a local government which intervenes in an application to make submissions on those issues. As I have mentioned, by s 69(7) and (8), a local government which intervenes in an application may only make submissions as to the suitability of the premises, whether a proposed alteration to or redefinition of the premises should be approved, regulatory compliance, and the potential negative consequences of the grant of a licence.
Seventhly, contrary to ALH's submissions, s 37(1)(f), s 99, s 126E and s 130 do not advance ALH's case.
Section 37(1)(f) requires that licensed premises be of a sufficient standard and suitable for the proper conduct of the relevant business and that regulatory approvals, consents or exemptions have been obtained, as applicable. Section 99 requires that a licensee maintain licensed premises at a standard that is reasonable having regard to the class of licence, the locality and the expectations of the public and that the licensee keep the premises clean and in good repair. Section 99 also confers powers on the Director to enforce compliance with a licensee's obligations and, in certain circumstances, to require the owner or the licensee of licensed premises to make alterations to licensed premises and to remedy any inadequacy or unsuitability in the furniture, fittings, accommodation, facilities, amenities or services in, or provided or to be provided by, any licensed premises. Section 126E empowers the Minister to declare that, for the purposes of the Act, a specified event to be held in the State is a special event and that, for the purposes of the special event, specified provisions of the Act have a specified modified operation during a specified period and in relation to a specified area of the State or the whole of the State. Section 130 provides for subsidies to be paid to wholesalers and producers in respect of such sales of liquor as are prescribed.
None of those provisions indicates that it is a purpose of the Act to promote or facilitate the Economic Benefit considerations taken into account by the Commission in granting ALH's application.
Eighthly, the primary and secondary objects specified in s 5, properly construed, are harmonious with the other provisions of the Act. The criterion of 'public interest' in s 33(1) and s 38(2) is, no doubt, broad. However, the content of the 'public interest' for the purposes of those provisions is not at large. As I have explained, the purposes of the Act, as discerned from the statute as a whole including the primary and secondary objects in s 5, give content and meaning to the concept. Nothing in the subject matter, scope and purpose of the Act suggests that the 'public interest' referred to in s 33(1) and s 38(2) includes the public interest in obtaining the Economic Benefit considerations taken into account by the Commission in granting ALH's application. Indeed, it is clearly apparent from s 33(1) and s 38(2), having regard to the primary and secondary objects in s 5 and the other provisions of the Act, that the Economic Benefit considerations taken into account by the Commission in granting ALH's application are not aspects of the concept of the 'public interest' or within the expression 'in the public interest' in s 33(1) and s 38(2).
Finally, the primary judge was correct in deciding that the Economic Benefit considerations taken into account by the Commission in granting ALH's application were not so insignificant that taking those considerations into account could not have materially affected the Commission's decision [74]. See, generally, Minister for Aboriginal Affairs v Peko-Wallsend Ltd.[77]
[77] Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 40 (Mason J).
Ground 1 of ALH's appeal to this court fails.
Ground 2 of ALH's appeal to this court
ALH has failed to make out ground 1. Consequently, it is unnecessary to decide ground 2.
In my opinion, it is undesirable to decide or even to express a view in relation to ground 2, notwithstanding that the ground was fully argued. It is undesirable because a decision as to the merits of ground 2 would require that the issues be examined and resolved upon the basis of a false legal premise, namely that the 'public interest' referred to in s 33(1) and s 38(2) includes the public interest in obtaining the Economic Benefit considerations taken into account by the Commission in granting ALH's application. I will therefore not express a view in relation to ground 2.
Conclusion
Ground 1 fails. It is unnecessary to decide ground 2. The appeal must be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KS
Associate to the Honourable Justice Buss24 SEPTEMBER 2020
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