Director-General, Department of Trade and Investment, Regional Infrastructure and Services v Lewis

Case •

[2012] NSWCA 436

•

12 September 2012

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Director-General, Department of Trade & Investment, Regional Infrastructure and Services v Lewis [2012] NSWCA 436
Hearing dates:12 September 2012
Decision date: 12 September 2012
Before: McColl JA at [1], Meagher JA at [135], Sackville AJA at [136]
Decision:

(1) To the extent leave to appeal is required, grant leave to appeal.

(2) Direct the appellant to file a notice of appeal in terms of the draft in the White Book within seven days.

(3) Appeal allowed.

(4) Set aside the orders of the court below made on 31 August 2012.

(5) Order the respondent to pay the costs of this appeal and of the application for leave to appeal.

(6) Order the respondents to pay the appellant's costs in the court below.

(7) Order that the summons in the court below be dismissed.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

ADMINISTRATIVE LAW - judicial review - procedural fairness - duty to accord - proposal to vary terms of precinct liquor accord pursuant to Liquor Act 2007 - where decision whether to vary to be based on report - where source materials for report not to be before decision maker - whether obligation of procedural fairness required respondent licensees be given source materials on which report based

ADMINISTRATIVE LAW - statutory interpretation - power to vary precinct liquor accord - Liquor Act 2007, Part 8, Div 2

ADMINISTRATIVE LAW - judicial review - relief - injunction sought to prevent decision being made - whether quia timet relief available to restrain alleged breach of obligation of procedural fairness
Legislation Cited: Corporations Law (Cth)
Interpretation Act 1987
Liquor Act 1992 (Qld)
Liquor Act 2007
Liquor Legislation Amendment Act 2010
Stevedoring Industry Act 1949 (Cth)
Supreme Court Act 1970
Uniform Civil Procedure Rules 2005
Cases Cited: Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27
Allianz Australia Insurance Limited v GSF Australia Pty Limited [2005] HCA 26; (2005) 221 CLR 568
Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88
Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1
Australian Broadcasting Corp v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199
Australian Education Union v Department of Education and Children's Services [2012] HCA 3; (2012) 86 ALJR 217
Australian Securities and Investments Commission (ASIC) v Edensor Nominees Pty Ltd [2001] HCA 1; (2001) 204 CLR 559
Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd [1998] HCA 49; (1998) 194 CLR 247
Bread Manufacturers of New South Wales v Evans [1981] HCA 69; (1981) 180 CLR 404
Bushell v Secretary of State for the Environment [1980] UKHL 1; [1981] AC 75
Castle v Director General, State Emergency Service [2008] NSWCA 231
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576
Commonwealth v Baume [1905] HCA 11; (1905) 2 CLR 405
Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135
Dunghutti Elders Council (Aboriginal Corporation) RNTBC v Registrar of Aboriginal and Torres Strait Islander Corporations [2011] FCAFC 88; (2011) 195 FCR 318
Executive Director of the Office of Liquor and Gaming Regulation v Cayneston Pty Ltd t/as Mad Cow Tavern [2011] QCA 193
FAI Insurances Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342
Guthrie v Spence [2009] NSWCA 369; (2009) 78 NSWLR 225
Habib v Director-General of Security [2009] FCAFC 48; (2009) 175 FCR 411
Hastings Co-operative Ltd v Port Macquarie Hastings Council [2009] NSWCA 400
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
Kitching v Queensland Commissioner of Police [2010] QSC 303
Lacey v Attorney-General (Qld) [2011] HCA 10; (2011) 242 CLR 573
Lindemans Wines Pty Ltd v Woodward (1981) 46 LGRA 14
Marine Power Australia Pty Ltd v Comptroller-General of Customs (1989) 89 ALR 561
McLachlan v Australian Securities & Investments Commission [1999] FCA 244; (1999) 85 FCR 286
Minister for Immigration and Citizenship v Maman [2012] FCAFC 13; (2012) 200 FCR 30
Minister for Immigration and Multicultural Affairs, Re; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1
Minister for Local Government v South Sydney City Council [2002] NSWCA 288; (2002) 55 NSWLR 381
Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601
NIB Health Funds Ltd v Private Health Insurance Administration Council [2002] FCA 40; (2002) 115 FCR 561
Pilbara Aboriginal Land Council Aboriginal Corp Inc v Minister for Aboriginal & Torres Strait Islander Affairs [2000] FCA 1113; (2000) 103 FCR 539
Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; (2012) 86 ALJR 1019
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co [1953] HCA 22; (1953) 88 CLR 100
Rail Corporation New South Wales v Brown [2012] NSWCA 296
Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Applicants S134/2002 [2003] HCA 1; (2003) 211 CLR 441
Re Minister for Resources; ex parte Cazaly Iron Pty Ltd [2007] WASCA 175; (2007) 34 WAR 403
Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252
Smith v Director of Liquor and Gaming [2009] NSWSC 837
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
Vanmeld Pty Ltd v Fairfield City Council [1999] NSWCA 6; (1999) 46 NSWLR 78
Texts Cited: M Aronson, B Dyer and M Groves, Judicial Review of Administrative Action, 4th ed (2009) Lawbook Co
Category:Principal judgment
Parties: Director General, Department of Trade & Investment, Regional Infrastructure & Services - appellant
Sara Rachel Lewis - first respondent
KX Operations Pty Limited - second respondent
Representation: Counsel:
S Lloyd SC with JS Emmett - appellant
M Leeming SC with D Klineberg - respondents
Solicitors:
Crown Solicitor - appellant
Bulford Legal Pty Ltd - respondents
File Number(s):2012/280219
Publication restriction:No
 Decision under appeal 
Citation:
[2012] NSWSC 1044
Date of Decision:
2012-08-13 00:00:00
Before:
Nicholas J
File Number(s):
2012/2682233

Judgment

  1. McCOLL JA: The Director-General of the Department of Trade and Investment, Regional Infrastructure and Services (the "Director-General") seeks leave to appeal from a decision of Nicholas J restraining the Director-General from making any determination to vary the existing terms of the Sydney Central - Kings Cross Precinct Liquor Accord ("Accord") under s 136D of the Liquor Act 2007 (the "Act") insofar as it applied to premises known as the Kings Cross Hotel (the "Hotel") until seven days after the Director-General produces certain documents identified in the orders: Lewis v Director-General Department of Trade & Investment, Regional Infrastructure and Services [2012] NSWSC 1044. The respondents, Sarah Lewis and KX Operations Pty Ltd, are respectively the Hotel licensee and business owner.

  1. The matter was constituted as an application for leave to appeal out of abundant caution. The respondents made no substantive submissions as to whether or not leave was required nor did they oppose leave being granted if that was necessary.

  1. The primary judge heard the matter on 30 August 2012 and delivered judgment the following day. His Honour's orders were entered on 6 September 2012. The summons seeking leave to appeal was filed on 7 September 2012. It was granted expedition and heard on 12 September 2012. At the conclusion of the hearing the Court thought it appropriate to announce its orders as the matter had come on urgently and it had a clear view that the injunction the primary judge granted should be discharged. Accordingly the Court made the following orders:

(1) To the extent leave to appeal is required, grant leave to appeal;

(2) Direct the Director-General to file a notice of appeal in terms of the draft in the White Book within seven days;

(3) Appeal allowed;

(4) Set aside the orders of the court below made on 31 August 2012;

(5) Order the respondent to pay the costs of this appeal and of the application for leave to appeal;

(6) Order the respondents to pay the Director-General's costs in the court below.

(7) Order that the summons in the court below be dismissed.

  1. These are my reasons for the orders made on 12 September 2012.

Legislative Framework

  1. The objects of the Act are set out in s 3 relevantly as follows:

"(1) The objects of this Act are as follows:
(a) to regulate and control the sale, supply and consumption of liquor in a way that is consistent with the expectations, needs and aspirations of the community,
(b) to facilitate the balanced development, in the public interest, of the liquor industry, through a flexible and practical regulatory system with minimal formality and technicality,
(2) In order to secure the objects of this Act, each person who exercises functions under this Act (including a licensee) is required to have due regard to the following:
(a) the need to minimise harm associated with misuse and abuse of liquor (including harm arising from violence and other anti-social behaviour),
(b) the need to encourage responsible attitudes and practices towards the promotion, sale, supply, service and consumption of liquor,
(c) the need to ensure that the sale, supply and consumption of liquor contributes to, and does not detract from, the amenity of community life."

  1. The Act forbids a person from selling liquor unless the person is authorised to do so by a licence: s 7. A hotel licence such as that held by the first respondent authorises the licensee to sell or supply liquor in accordance with the Act and the conditions of the licence: s 10; see also s 11. The Director-General has power to impose conditions on a licence for such reasons and in such circumstances as he thinks fit: s 54(1). The Director-General may, on application by the licensee or the Commissioner of Police or on the Director-General's own initiative vary or revoke a licence condition: s 54(2). However, the Director-General must first give the licensee a reasonable opportunity to make submissions in relation to the proposed decision, and taken any such submissions into consideration before making the decision: s 54(3).

  1. Schedule 4 sets out special licence conditions for declared premises: s 11(1A). Declared premises are premises to which a level 1 or 2 licence relates: cl 1(i), Sch 4. Declared premises are identified by name in Sch 4 and do not include the Hotel. The special licence conditions to which such premises are subject include conditions (cll 4 and 5) substantially in terms of some of those the Director-General is proposing to apply to the various premises subject to the Accord.

  1. Part 8, Div 2 of the Act, which was inserted into the legislation by the Liquor Legislation Amendment Act 2010, relevantly provides:

"Division 2 Precinct liquor accords and community event liquor accords
136A General provisions
(1) For the purposes of this Act, a precinct liquor accord or a community event liquor accord is a set of measures, approved by the Director-General under this Division, that aim to do either or both of the following:
(a) to minimise or prevent alcohol-related violence or anti-social behaviour, or other alcohol-related harm, in the precinct or area to which the relevant liquor accord applies,
(b) to protect and support the good order or amenity of any such precinct or area in connection with issues arising from the presence of, or any proposed increase in the number of, licensed premises in that precinct or area.
...
(3) A precinct liquor accord or community event liquor accord does not require the agreement of the accord participants to the measures provided for by the accord.
136B Director-General may approve liquor accords for designated precincts
(1) The Director-General may:
(a) designate a precinct as being a precinct to which a proposed precinct liquor accord is to apply, and
(b) approve a precinct liquor accord for the designated precinct, and
(c) vary, at any time, the terms of a precinct liquor accord.
(2) The designated precinct to which a precinct liquor accord applies or is to apply must be shown on a map that is made publicly available in such manner as the Director-General considers appropriate.
(3) The Director-General may approve a precinct liquor accord for a designated precinct only if the Director-General is satisfied that:
(a) in the precinct there is, or there is a potential for, a significant risk of harm to members of the public associated with the misuse and abuse of liquor (including harm arising from violence or other anti-social behaviour), and
(b) the measures to be provided for by the accord are necessary:
(i) to prevent harm to members of the public associated with the misuse and abuse of liquor in the precinct (including harm arising from violence or other anti-social behaviour), or
(ii) to protect and support the good order or amenity of the precinct in connection with issues arising from the presence of, or any proposed increase in the number of, licensed premises in the precinct.
(4) The Director-General may terminate a precinct liquor accord at any time by notice in writing given to the persons or bodies participating in the accord.
...
136D Content of precinct and community event liquor accords
(1) A precinct liquor accord or community event liquor accord may include such measures as the Director-General considers are necessary:
(a) to minimise or prevent alcohol-related violence or anti-social behaviour or other alcohol-related harm in the precinct or area to which the accord applies, or
(b) to protect and support the good order or amenity of any such precinct or area in connection with issues arising from the presence of, or proposed increase in the number of, licensed premises in the precinct or area concerned.
(2) The Director-General must give notice of the terms of a precinct liquor accord or community event liquor accord, and of any variation to the terms of such an accord:
(a) to each licensee who is required to participate in the accord, and
(b) to such other participants in the accord as the Director-General considers appropriate.
(3) Without limiting the measures that may be included in a precinct liquor accord or community event liquor accord, any such accord may include measures requiring a licensee to do any one or more of the following:
(a) to cease serving liquor (including take-away liquor) on the licensed premises during such times as are specified in the accord,
(b) to restrict the public's access to the licensed premises in a manner and to the extent provided by the accord,
(c) to restrict the use of glass containers on the licensed premises,
(d) to maintain an incident register,
(e) to install and operate closed-circuit television or any other security device on the licensed premises,
(f) to provide security staff in or about the licensed premises.
...
136E Requirement to participate in precinct or community event liquor accord
(1) The Director-General may, in the case of licensed premises situated wholly or partly in the precinct to which a precinct liquor accord applies or in the area to which a community event liquor accord applies, impose conditions on the licence, by notice in writing to the licensee, requiring the licensee to participate in the liquor accord for that precinct or area.
(2) Without limiting subsection (1), if
(a) the sale or supply of liquor after midnight on licensed premises is authorised at least once a week on a regular basis, and
(b) the licensed premises are situated wholly or partly in the precinct to which a precinct liquor accord applies or in the area to which a community event liquor accord applies,
it is a condition of the licence that the licensee, on being notified in writing by the Director-General, participate in the liquor accord for that precinct or area.
(3) For the purposes of this section, 'participate' in a liquor accord means participate in the development, implementation and operation of the accord and, without limitation, includes any of the following:
(a) developing the measures to be provided for by the accord,
(b) complying with those measures to the extent that they apply to the licensee,
(c) developing and maintaining the mechanisms and processes that support the operation of the accord,
(d) participating in any committee established under the accord. ..." (Emphasis added)

  1. I should also note that the precinct liquor accord provisions also substantially apply to a community event liquor accord. The latter form of accord is created when the Director-General designates a community event as one to which such an accord is to apply, and approves the measures to apply to that designated event for the period, and the area, specified in the accord: s 136C. Such an accord may only be approved if the Director-General is satisfied of the same matters in relation to the area in which the accord is to apply as he or she is required to be satisfied of in approving a precinct liquor accord: s 136C(4). Section 136D and s 136E apply to both precinct and community event liquor accords.

  1. The Act also contains provisions dealing with complaints to which brief reference should be made.

  1. Division 3 of Part 5 (Regulation and Control of Licensed Premises) deals with disturbance complaints. It enables a person to complain to the Director-General that the quiet and good order of the neighbourhood of licensed premises are being unduly disturbed because of the manner in which the business of those premises is conducted or the behaviour of persons after they leave the premises: s 79. If the Director-General decides to deal with the complaint he may convene a conference to hear submissions in relation to it or invite written submissions from the licensee: s 80. After dealing with the complaint in accordance with s 80, the Director-General may, relevantly, either impose a condition on the licence of the relevant licensed premises or vary or revoke a condition to which the licence is subject: s 81(1)(a) and (b). The conditions that may be imposed consequent upon a complaint include conditions relating to prohibiting the sale or supply of liquor before 10am and after 11pm, restricting the trading hours of and public access to the licensed premises and requiring the licensee to participate in and to comply with, a liquor accord: s 81(2).

  1. Division 4 of Part 5 deals with closure orders in relation to licensed premises. They may be made on a short-term (72 hours) or long-term basis: s 82, s 84. In the case of a long-term closure order, the licensee must be given notice of the application for the closure and a reasonable opportunity to make submissions to the Authority in relation to the application: s 84(2)(b). Division 5 of Part 5 enables the Director-General to make late hour entry declarations to prevent patrons entering licensed premises during late trading hours even though the premises are authorised to trade during that time: s 87(2). The Director-General must give written notice of a proposed late hour entry declaration, relevantly, to each licensee whose licensed premises are the subject of the proposed declaration, who must be given 21 days to make a written submission to the Director-General in relation to the proposed declaration which the latter must take into consideration before deciding whether to make the declaration: s 89(2) - (3). The Director-General must also give written notice of a proposed variation or revocation of a late hour entry declaration, and a 21 day opportunity for the notice recipients to make submissions concerning the proposal. The Director-General is required to consider those submissions before deciding whether to vary or revoke a late hour entry declaration: s 90.

  1. Part 9 deals with disciplinary action. The Director-General is empowered to carry out such investigations and inquiries as he or she considers necessary to ascertain whether a complaint should be made under the Part in relation to certain persons, including a licensee: s 138(1). The Director-General, and other specified persons, may complain to the Independent Liquor and Gaming Authority (the "Authority") constituted under the Gaming and Liquor Administration Act 2007 in relation to a licensee: s 139 (1). If such a complaint is made, the Authority must, before taking any disciplinary action against the person the subject of the complaint, give that person notice in writing of the grounds upon which that action is proposed and invite the person to show cause by way of a written submission as to why such disciplinary action should not be taken: s 140(1) and (2). If any written submission is made, the Authority must take it into consideration in deciding whether or not to take disciplinary action: s 140(5). If the Authority is satisfied that any of the grounds on which the complaint was made is made out, it may take various steps including cancelling the licence or imposing a condition to which the licence is to be subject or revoke or vary a condition to which it is subject: s 141(2)(a), (e).

  1. Part 9A is headed "Disciplinary action - 3 strikes". In substance it provides for a "strike" to be incurred in respect of a licence if a relevant person in relation to the licence commits a prescribed offence, defined to be an offence against specified provisions of the Act: s 144B. Once one or two strikes are in force in respect of a licence, the Director-General is empowered to impose conditions on the licence including conditions prohibiting the use of glass or other breakable containers on the licensed premises and requiring the engagement of persons to promote the responsible service of alcohol at the premises: s 144E(1)(b), (c). Once three strikes are incurred in respect of a licence, the Authority must take action in order to prevent the commission of any further prescribed offences by a relevant person in relation to the licence: s 144F(1).

  1. A decision under either s 144E or s 144F is a "reviewable decision". Before making any such decision the decision-maker must notify persons identified in s 144G(2) of the proposal to make such a decision and give that person an opportunity to make a submission. The decision-maker must take that submission as well as other specified matters into account and must also take into account any other matter he or she thinks is relevant: s 144G. Division 3 of Pt 9A sets out a procedure for the review of a reviewable decision either by the Authority in the case of a decision of the Director-General, or by the Administrative Decisions Tribunal in the case of a decision by the Authority: s 144H(2).

Factual Background

  1. The first respondent holds a hotel licence in respect of the Hotel which is located in William Street in Kings Cross. She holds it on behalf of her employer, the second respondent, which owns the business conducted at the Hotel. The Hotel falls into an area to which the Accord applies.

  1. The Director-General approved the Accord on 6 September 2010 pursuant to s 136B of the Act. It applies to 58 licensed premises of which at least 56 appear to be premises required to participate in the Accord by virtue of s 136E(2) of the Act. Since 8 September 2010 the Hotel licence has been subject to a condition that the licensee "must participate in the precinct liquor accord that applies to the Sydney Central precinct designated by the Director-General of Communities NSW under section 136B of the Act". That condition was presumably imposed pursuant to s 136E(1) of the Act.

  1. By letter dated 14 August 2012, the Director-General notified the respondents that he was considering varying the terms of the Accord. The letter relevantly stated:

"My consideration is based on information contained in the attached Kings Cross Precinct Liquor Accord alcohol-related harm profile...
The attached report demonstrates a prima facie case for regulatory intervention to:
minimise or prevent alcohol-related violence or anti-social behaviour or other alcohol-related harm in the precinct or area to which the accord applies; and to
protect and support the good order or amenity of any such precinct or area in connection with issues arising from the presence of, or proposed increase in the number of, licensed premises in the precinct or area concerned.
I have formed a preliminary view that it is necessary to vary the existing terms of the accord under s 136D of the Liquor Act 2007 to include the additional measures as set out in enclosure 1.
Prior to forming a final view, and to ensure that all relevant factors are considered you are invited to make a submission on the proposed measures.
...
In the absence of a submission, I will make a determination based on the available material and any other relevant information before me."

  1. The Director-General required submissions to be made by 4 September 2012.

  1. The report referred to in the 14 August 2012 letter was a report to the Director-General apparently prepared by the Compliance Branch of the Office of Liquor, Gaming and Racing ("the Report"). The introduction to the Report stated as follows:

"This report is responding to increasing concern that there is an unacceptable risk of alcohol related harm, including alcohol related violence and antisocial behaviour in the Kings Cross precinct. Further, it responds to the concern that the good order and amenity of the precinct is being unduly disturbed due to issues arising from the presence of licensed premises.
This report relies on key data that provides an informed view on the risk of alcohol related harm in the Kings Cross precinct. This is not an exhaustive examination of individual incidents; rather the report looks to throw light on the risk of alcohol related harm in the precinct and the disturbance of good order and amenity in the area."

  1. The intention of the Report was said to be "to provide a proper basis to consider what additional regulatory measures may be necessary to mitigate the risk of alcohol related harm in the Kings Cross precinct". The inquiries underpinning the Report were said to include "a focused audit of licensed premises in, or in the vicinity of, the Kings Cross precinct liquor accord ... an assessment of crime data and a review of pedestrian movement and anti-social behaviour research encompassing the Kings Cross precinct". The Report identified "data sourced from NSW Police and the NSW Bureau of Crime Statistics and Research (BOCSAR)" as having been used "to quantify the risk of harm and disturbance in the precinct and determine whether there were any trends emerging in Kings Cross".

  1. The principal source of data arising from the audits of licensed premises was said to be the Incident Registers maintained by the licensees pursuant to s 56 of the Act. This information was said to provide "a strong indication of incidents and trends across the precinct without definitively demonstrating the risk of harm at specific venues." Subject to some qualifications which do not require repetition, the Report asserted that "the key trends arising from the aggregated Incident Register data demonstrate a significant risk of alcohol related harm and disturbance in the Kings Cross precinct."

  1. Among the main findings of the Report were that there were "high numbers of alcohol related incidents on PLA premises and in public places within the precinct", that the period between midnight and 5.00am was a higher risk window for such activities, that there were "significant numbers of glassing related incidents in the PLA" and that "patron migration to, from and between licensed premises within the precinct contributes to public place violence and anti-social behaviour".

  1. Under the heading "Alcohol Related Harm and Anti-Social Behaviour", the report summarised BOCSAR data said to demonstrate the "significant number of alcohol related assaults on licensed premises and in public places within the Kings Cross PLA" as well as the "high levels of alcohol related street offences within the precinct". It was common ground that while some of the BOCSAR data was publicly available, some was not.

  1. Under the heading "NSW Police Crime Profile", the Report referred to a "Kings Cross precinct alcohol assessment report for the period of 1 July 2011 to 30 June 2012" provided to the authors by the NSW Police as well as to an update to that Report expanding on the data to 3 August 2012. Data described as "Police linking data" was said to highlight "high levels of consumption of liquor at licensed premises and in public places in the Kings Cross LAC prior to a recorded incident". It compared that data to the consumption of liquor at home and private premises leading the authors to the suggestion that "the majority of persons involved in incidents had consumed liquor at licensed premises prior to the incident occurring". What appears to be the same Police report located 260 alcohol-related assaults to outdoor public places in the Kings Cross LAC between July 2011 and June 2012 as well as 195 alcohol-related assaults on licensed premises in Kings Cross during the same period. The same data also led the authors to conclude that incidents of alcohol-related crime peaked between midnight and 5am on Saturday and Sunday mornings.

  1. Under the heading "Glassing Analysis", the Report referred to Police crime data which indicated that 28 glassing incidents had been reported to Police within the Kings Cross LAC between August 2008 and July 2012, the majority of which occurred on licensed premises in the PLA. Eighty two percent of those incidents were said to have occurred between midnight and 5.00am.

  1. Under the heading "Conclusion" the Report stated:

"The risk of alcohol related harm and disturbance of the good order or amenity of the PAL is demonstrable in the data obtained from licensee Incident Registers and affirmed by additional information from BOCSAR, NSW Police and City of Sydney Council commissioned research ...
The trends indicated by the Incident Register data are concerning and the corrective impact of high numbers of intoxicated patrons being shifted into the precinct raises the risk of alcohol related harm and is alarming the residential community.
The data considered in the preparation of this report is persuasive on the risk of alcohol related harm and disturbance of the good order or amenity within the precinct and provides a proper basis for the Director General to consider an appropriate regulatory response to mitigate the ongoing risk. To support a precinct-wide intervention consideration of exercising powers provided for under s 136D of the Act would be appropriate." (Emphasis added)

  1. Enclosure 1 to the Director-General's letter of 14 August 2012 set out the proposed new measures. They included measures requiring the licensee:

  • to cease selling or supplying alcohol on Saturday and Sunday mornings either one hour before the premises are required to cease trading or, if the premises are authorised to trade beyond 5:00am, between 4:00am and 5:00am;
  • to ensure that no patron has access to any glass drinking vessel or container; and
  • prohibiting the sale or supply from midnight or until the venue ceases trading or 7:00am, whichever was the earlier of specified drinks, an example of which is "any drink (commonly referred to as a 'shot') that contains no more than 30 ml of spirits or liqueur and that is designed to be consumed rapidly".

I shall refer to the proposed new measures compendiously, as was done at trial, as the "Proposed Measures".

  1. After receiving the Director-General's letter, the respondents' solicitor wrote to the Director-General on 23 August 2012 advising that he had reviewed both the enclosure setting out the Proposed Measures as well as the Report. He stated that there was reason to believe the data summarised in the Report was inaccurate and advised that in order that the first respondent might deal appropriately in her response with the issues raised in the Report it was necessary that she be immediately provided with the source data summarised in the Report (the "Source Materials"). The letter set out 16 specific heads of documents the solicitor sought. It asserted that to deny the first respondent the opportunity of reviewing the material sought and making submissions on it would be a denial of procedural fairness.

  1. On 29 August 2012, the New South Wales Crown Solicitor, on behalf of the Director-General, wrote to the respondents' solicitor responding to his letter of 23 August 2012. The letter dealt in detail with each of the 16 heads of documents. In respect of some, it pointed out that data referred to in the Report was publicly available either because it was on the BOCSAR's website or could be accessed at a website address provided in the Report. As to other BOCSAR crime data, the letter advised it had been relevantly summarised in specified paragraphs of the Report. The letter also stated that parts of the Police report had also been summarised in specified sections of the Report, but noted that the Police Force had not consented to the release of its report to licensees. The situation was the same in relation to a Table that had been provided by the Police Force.

The primary judgment

  1. It was not disputed at trial, nor is it on appeal, that the Director-General was obliged to afford the respondents procedural fairness in the exercise of his powers under s 136D(1). The primary judge identified the principal question for his determination as "whether for the purposes of s 136D(2) of the Act, the obligation on the Director-General to afford procedural fairness to the first [respondent] has been satisfied by the giving of notice of the [Director-General's] intention to vary the Accord, and by provision of the report, and the invitation to make a submission without providing the underlying data as sought by the first [respondent]": primary judgment (at [11]).

  1. The respondents' case at trial was that, absent the Source Materials, they would not be able to respond properly to the matters referred to in the Report. Their affidavit evidence said that they proposed to submit that several of the measures should not be approved insofar as they might apply to their licence, and that several of the measures were not necessary in the circumstances as their business was well run and there had been compliance with the Act: primary judgment (at [9]). They contended, in particular, that they would be unable to contest the accuracy and reliability of the conclusions and opinions stated in the Report or demonstrate that, in the circumstances, the Report did not justify the imposition of variations which adversely affected their operations (primary judgment (at [13])) or enable them to distinguish the Hotel from other premises subject to the Accord: primary judgment (at [14]). They relied upon Smith v Director of Liquor and Gaming [2009] NSWSC 837 in which Rothman J held that procedural fairness required making available to a licensee the source documents for reports intended to be relied upon for a decision under s 81 of the Act.

  1. The Director-General's case at trial was that it was a sufficient discharge of his obligation to accord the respondents procedural fairness that "the gravamen or substance of the issue upon which the decision would turn [was] brought to [their] attention" (primary judgment (at [15])). The Director-General contended that he was not obliged to disclose material of which he did not have actual knowledge and to which he did not propose to have regard in making his decision. Since he proposed to rely upon the Report in considering whether the variations were to be imposed, the respondents were entitled to no further information to enable them to make submissions in exercise of their right to be heard: primary judgment (at [16]).

  1. The primary judge was satisfied (at [8]) that the respondents' evidence established "that the nature of the business and operations conducted by [them] are likely to be adversely affected by the imposition of [the Proposed Measures]." To the extent his Honour identified those adverse effects, they were that "certain of the measures, if introduced, would impose substantial limitations upon the licence and restrict the way in which the business of the hotel would be conducted ... [including] a number of the measures [which] would restrict or prevent in various ways the sale or supply of alcoholic drinks ... in contrast with the current Accord, which contains no provision limiting or restricting the service of alcohol.": primary judgment (at [10]).

  1. His Honour concluded (at [19]) that in order for the opportunity the Director-General had given the respondents to make submissions about his proposal to vary the Accord measures:

"... to be real, the [respondents] must be allowed to meet the substance of the information to be relied upon in this case, and to test and call into question the accuracy of the conclusions and data in the report, including the relevance of the information to the existing state of affairs, at least insofar as it concerns their operations and the conduct of their business. Obviously enough, in my opinion, the [Director-General] is under a statutory duty to base his consideration on information which is sound and relevant to the existence of necessity at the time it is made." (Emphasis added)

  1. His Honour noted (at [26]) "the [respondents'] concern ... that the statements in the report are bald summaries of surveys, activities, and incidents which happened in periods commencing 12 months, or (as to glassing) four years before July 2012 [and that] ... if denied access to the Source Materials, [they] will be denied the opportunity to contest that the summaries are an accurate or sound basis on which the Director-General should rely in determining whether to approve any or all of the proposed variations." He then said (at [27] - [29]):

"[27] In my opinion the [respondents'] claim must be upheld. The statements or conclusions in the report to which the documents sought relate are expressed in general terms with regard to lengthy periods. On their face the statements do not focus on the present situation which must be established to enable the appellant to consider that the imposition of a proposed variation is necessary under s 136D(1).
[28] It follows, in my opinion, that in the circumstances of this case it would not be fair to deprive the [respondents] of the opportunity to analyse and meet the information contained in the underlying surveys. The imposition of measures which would operate as conditions of a licence will have a significant impact on the respondents' operations. In a different context, the Act has established a regime of procedural fairness in respect of the imposition of similar conditions following the investigation of complaints under s 81, and pursuant to the three-strike disciplinary action scheme under Pt 9A. Regard to these considerations provide additional persuasive support for the [respondents'] claim. In my opinion the [respondents] have demonstrated that the applicable rules of procedural fairness require that they be provided with the documents sought." (Emphasis added)

  1. The primary judge made orders restraining the Director-General from making any determination to vary the existing terms of the Accord insofar as the variation applied to the Kings Cross Hotel until a date not less than 7 days after the Director-General produced to the first respondent the following materials:

"1. The crime data sourced from the NSW Bureau of Crime Statistics and Research, as referred to in page 4 of the report entitled 'Kings Cross precinct liquor accord alcohol related harm profile' dated 10 August 2012 (the 'Report'), which relates to the Hotel, but limited to the 'data provided by BOCSAR' which has been summarised in the Report, as referred to in paragraph 3(b) of the letter dated 29 August 2012 from the [Director-General's] solicitor to the [respondent's] solicitor;
2. The NSW Police Kings Cross Precinct Alcohol Assessment Report for the period 1 July 2011 to 30 June 2012 provided on 18 July 2012, as referred to on page 9 of the Report;
3. The further report from the Police for the same period provided on 3 August 2012, as referred to on page 9 of the Report; and
4. The Police crime data in respect of glassing incidents between August 2008 and July 2012, as referred to on page 10 of the Report."

  1. The primary judge's orders were made on a final, not interim, basis.

Issues on appeal

  1. The grounds of appeal as set out in the notice of appeal are:

"(1) The Court below erred in concluding that procedural fairness required the appellant to disclose to the first respondent documents and information summarised in a report entitled 'Kings Cross precinct liquor alcohol related harm profile' ('Report'), and to provide to the first respondent an opportunity to make submissions on the underlying documents and information, before making any determination whether to vary the Sydney-Central Kings Cross Precinct Liquor Accord ('Accord') under ss 136B(l)(c) and 136D(1) of the Liquor Act 2007 ('Act') ('determination').
(2) The Court below erred in concluding that procedural fairness required the appellant to disclose to the first respondent underlying documents and information summarised in the Report in circumstances where the Report and not the underlying documents and information will be before the appellant for the purposes of making the determination.
(3) The Court below erred by finding that the content of the principles of procedural fairness conditioning the power to vary the Accord under ss 136B and 136D of the Act were the same as those conditioning the imposition of licence conditions on a particular licensee in response to a complaint or complaints under s 81 of the Act (Judgment at [28])."

Director-General's submissions

  1. The central issue on appeal, as outlined by Mr S Lloyd of senior counsel, who appeared with Mr J S Emmett for the Director-General on appeal and at trial, is whether the primary judge erred in concluding that in order for the Director-General to accord the respondents procedural fairness he must provide to them not only the Report that gave rise to his preliminary state of satisfaction that the statutory power to vary the terms of the Accord was able to be exercised, but also other material summarised in the Report which will not be before him in making his determination.

  1. Mr Lloyd first submitted that in the context of a decision by an administrative decision-maker, the principles of procedural fairness do not require observance of procedures which would be regarded as fair in adversarial litigation, but are confined to requiring the decision-maker to provide the affected person with the opportunity to deal with adverse material to which the decision maker will have regard that is "credible, relevant and significant". He argued that that requirement did not oblige the Director-General to disclose the entire text or document within which adverse material was contained, but, rather, that it was sufficient that the gravamen or substance of the issue on which the decision will turn was brought to the affected party's attention. He submitted that the Report clearly identified the data on which the Director-General proposed to rely in considering whether to vary the terms of the Accord such that the Director-General had disclosed the substance of any potentially adverse material - and, accordingly, had discharged his obligation of procedural fairness.

  1. Secondly, Mr Lloyd submitted that the "ordinary" requirements of procedural fairness applicable when a "particular individual" may be affected by a decision overstate what is required when a decision that may affect a great many entities is being considered. In this context, he contended that the Director-General owed an equal procedural fairness obligation to all potentially affected licensees and that the content of that obligation was not determined by what information the respondents requested, but by what proper implication from the Act required him to provide. He argued that the fact the effect of the variation to the terms of the Accord the Director-General was considering would overlap with the consequences of some of the other regimes the Act established did not inform the content of the obligation of procedural fairness for the purposes of Part 8, Division 2. Rather the absence of express procedural fairness provisions in Part 8, Division 2 indicated the legislature was content to leave the content of procedural fairness to implication having regard to the nature of the power and the circumstances of its exercise.

  1. In the same vein, Mr Lloyd submitted that the determination the Director-General was making was "quasi-legislative" in nature in that the Proposed Measures were of general application and did not turn on features peculiar to particular licensees. He contended that this meant that the content of any obligation to accord procedural fairness must be concomitantly reduced.

  1. Thirdly, Mr Lloyd submitted that an administrative decision-maker has no obligation to disclose material of which he or she does not have actual knowledge and does not propose to consider in making the decision. He said that it was not disputed at trial that the documents the Director-General had been ordered to produce will not be before him when he makes his decision in respect of the Proposed Measures. Mr Lloyd also contended the onus lay on the respondents to establish that the Director-General would have regard to that material and that they had not discharged that burden.

  1. Fourthly, Mr Lloyd submitted that it was open to the respondents to submit that the Proposed Measures should not apply to the Hotel and, in doing so, to draw to the Director-General's attention matters peculiar to the Hotel or the way the business was conducted. He contended that they did not need the Source Materials either to submit that the Proposed Measures should not apply to them or to contend that the data referred to in the Report had been summarised inaccurately. He pointed out that the respondents had been able to make such a submission by reference to the BOCSAR data they identified in their 23 August 2012 letter, albeit he contended that their analysis of that data was flawed.

  1. Fifthly, Mr Lloyd accepted, as the primary judge held (at [17]), that in exercising his s 136D(1) power, the question of necessity was to be determined with regard to the need shown to exist at the time the determination was made. However, insofar as the respondents had apparently complained at trial about the relevance of data covering extended periods, he argued that statements dealing with incidents over a number of years may be relevant to an assessment of a current state of affairs, for example where data showed a high levels of acts of violence while the regulatory regime remained unchanged.

  1. Sixthly, Mr Lloyd submitted that insofar as Smith v Director of Liquor and Gaming held that procedural fairness required the Director-General to provide the respondents with any material other than the Report itself before he made a decision, it was wrongly decided or was distinguishable.

Respondents' submissions

  1. Mr M Leeming of senior counsel, who appeared with Mr D Klineberg for the respondents on appeal and at trial, submitted that determining the content of the Director-General's obligation of procedural fairness depended on a consideration of the Act as a whole. He drew attention to the other mechanisms in the Act which permitted licence conditions to be imposed or varied in ss 79 - 81, Part 9 and Part 9A to which I have referred, observing that each mandated a very high level of procedural fairness. He pointed out that the Proposed Measures were significantly different in character and effect from the requirements of the current Accord and were akin to restrictions imposed on licensees listed in Schedule 4, a category into which the respondents had never fallen. Nor, he pointed out, had the respondents ever committed any prescribed offence such as to attract the operation of the 3 Strikes regime in Part 9A.

  1. Mr Leeming accepted that in some cases procedural fairness might be satisfied by the provision of information that is the gravamen or substance of a document. However he contended that that proposition was inapplicable in the present case where the Source Materials were known, were in the possession of the Director-General's staff and were used in preparing the Report.

  1. Mr Leeming submitted that procedural fairness required that the respondents should have access to the Source Materials for the following reasons. First, publicly available information suggested that the conclusions in the Report were either wrong or, at least, selective. He queried, for example, the relevance of the Report graphing data by averaging assaults by calendar month over a five-year period. He suggested that that approach could only have been adopted if one was trying to contend that it was riskier to be out in Kings Cross in summer rather than winter, a contention he argued was falsified by the resultant graph. Secondly, he contended that BOCSAR information demonstrated that assaults over a ten-year period were declining in a statistically significant way, a matter not referred to or reflected in the Report. He argued that it was not a sufficient answer to these propositions to say that the respondents could make submissions of the sort he advanced. Rather, he argued, for them to be able to make meaningful submissions, the non-public or "secret" BOCSAR information peculiar to the Accord precinct, apparently extracted by the authors of the Report, which he contended was inconsistent with publicly available data, had to be provided in order to "avoid practical injustice".

  1. Secondly, Mr Leeming submitted that if the respondents were not provided with the Source Materials, they could not properly challenge certain of the conclusions in the Report as to whether the Proposed Measures were "necessary" to be introduced insofar as they apply to the Hotel. He pointed out that recently released BOCSAR statistics (which he sought to tender as fresh evidence) demonstrated that the number of glassing incidents in the Sydney statistical division fell over the last 2 years. He argued that that material added to the cogency of the need to provide the Source Materials on which aggregated data over 4 years on which the Report relied was based.

  1. Thirdly, Mr Leeming submitted that it was significant that the application did not concern a decision that has already been made, but, rather, one that was yet to be made. He argued that, accordingly, the respondents should not be limited in the submissions they were entitled to make or "los[e]... an opportunity to make representations" (Ex parte Lam (at [37])) where there was no suggestion the Source Materials were confidential or difficult practically to provide. He emphasised that the content of the Director-General's obligation of procedural fairness was determined by whether, having regard to the inaccuracies or incomplete analysis which he contended were manifest in the Report, provision of the Source Materials was necessary to preserve the appearance of a fair mode of decision making.

  1. Fourthly, Mr Leeming submitted that Smithv Director of Liquor and Gaming was correctly decided and was not distinguishable. It was not to point, he argued, that Smithv Director of Liquor and Gaming dealt with s 81 of the Act in circumstances where the Proposed Measures were more onerous than those specified in s 81 and, if adopted, would apply to all licensees subject to the Accord. He argued that the Act should not be construed to permit a situation where a licensee's right to procedural fairness could be eroded by the device of imposing licence conditions through an accord as opposed to through the complaints mechanism.

  1. Finally, Mr Leeming accepted that the respondents could challenge a decision to vary the Accord measures made by the Director-General on the basis that they had been denied procedural fairness, but contended that it was not premature to seek quia timet relief.

Consideration

  1. " '[T]he common law' usually will imply, as a matter of statutory interpretation, a condition that a power conferred by statute upon the executive branch be exercised with procedural fairness to those whose interests may be adversely affected by the exercise of that power": Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 86 ALJR 1019; [2012] HCA 31 (at [97]) per Gummow, Hayne, Crennan and Bell JJ; see also Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 (at [11] - [15]) per French CJ, , Gummow, Hayne, Crennan and Kiefel JJ; Kioa v West [1985] HCA 81; (1985) 159 CLR 550 (at 584) per Mason J, (at 619) per Brennan J; Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 (at 576) per Mason CJ, Dawson, Toohey and Gaudron JJ. "[W]hat is required by procedural fairness is a fair hearing, not a fair outcome ... [t]he relevant question is about the [administrative decision-maker's] processes, not its actual decision ... the statutory framework within which a decision-maker exercises statutory power is of critical importance when considering what procedural fairness requires": SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 (at [25] - [26]) per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.

  1. The critical question is what is the content of that obligation of procedural fairness, a question which must, as the primary judge recognised (at [20]), be determined by "the circumstances of the case [including], inter alia, the nature of the inquiry, the subject-matter, and the rules under which the decision maker is acting". This reflects the proposition that procedural fairness is a flexible obligation requiring the adoption of fair procedures which are appropriate and adapted to the circumstances of the particular case. This ensures that the statutory power is exercised fairly, in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, in the interests of the individual and the interests and purposes, whether public or private, which the relevant statute seeks to advance or protect or permits to be taken into account as legitimate considerations: Kioa v West (at 584 - 585) per Mason J. The fundamental proposition is that "the concern of the law [in the context of administrative decision-making] is to avoid practical injustice": Minister for Immigration and Multicultural Affairs, Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 (at [37]) per Gleeson CJ). Whether the obligation to afford procedural fairness has been discharged is not to be evaluated minutely or in a manner divorced from its context: Habib v Director-General of Security [2009] FCAFC 48; (2009) 175 FCR 411 (at [77]) per Black CJ, Ryan and Lander JJ (cited with approval in Dunghutti Elders Council (Aboriginal Corporation) RNTBC v Registrar of Aboriginal and Torres Strait Islander Corporations [2011] FCAFC 88; (2011) 195 FCR 318 (at [64]) per Keane CJ, Lander and Foster JJ).

  1. I do not find it helpful when determining the content of the Director-General's obligation of procedural fairness to characterise the decision the Director-General is considering making as "quasi-legislative", as Mr Lloyd submitted. Just as "the question of the application of the rules of natural justice is not to be determined merely by affixing [the] label ['legislative'] to describe the character of the task which is under consideration" (Bread Manufacturers of New South Wales v Evans [1981] HCA 69; (1981) 180 CLR 404 (at 432 - 433) per Mason and Wilson JJ; see also (at 415) per Gibbs CJ) so, too, in my view, is it inapposite to seek to limit the content of the obligation by the mere adoption of the label "quasi-legislative".

  1. That is not to gainsay the relevance to the content of the obligation of procedural fairness of the number of people who will be affected by a decision by the Director-General to include the Proposed Measures in the Accord. In Kioa v West (at 584) Mason J expressed the view that the acts or decisions which attract the duty of procedural fairness are those which directly affect an individual or corporation as such and not simply as a member of the public or a class of the public"; see also Brennan J (at 619 - 620); Deane J (at 632). Spigelman CJ expressed the point somewhat differently in Vanmeld Pty Ltd v Fairfield City Council [1999] NSWCA 6; (1999) 46 NSWLR 78 (at [74]), when he said that "[t]he fact that the exercise of a particular statutory power has effect on a wide range of persons, even in circumstances where the identity of all such persons is difficult to establish, will often impinge, not on the obligation to accord procedural fairness, but on the content of that obligation".

  1. Mason P (Ipp AJA agreeing) took an intermediate position in Minister for Local Government v South Sydney City Council [2002] NSWCA 288; (2002) 55 NSWLR 381 (at [263]) when he observed, in a passage upon which Mr Lloyd relied, that decisions "capable of affecting a very broad number of persons and institutions in what may broadly be termed a matter of town planning overlaid with political issues ... do not usually attract the principles of procedural fairness at all". However his Honour added that "... they may do so as regards particular interests of particularly affected and identifiable persons".

  1. Basten JA rationalised the various approaches in Castle v Director General, State Emergency Service [2008] NSWCA 231 where, after referring to Mason J's reasons in Kioa v West (at 584), he said:

"[6] ... [O]ne limitation on the operation of the duty to accord procedural fairness arises from the need to identify the obligation by reference to an individual or class of persons. The obligation must be capable of identification and fulfilment, in a reasonable and practical sense, prior to the making of the decision ... The larger the class of persons reasonably expected to be affected, the less the likelihood that procedural fairness will be attracted and, if it is, the lower the likely content of the duty. Similarly, even though the class of those affected may be small, the duty is less likely to be attracted if membership of the class is variable and not readily ascertained: see, eg, Comptroller-General of Customs v Kawasaki Motors Pty Ltd (No 1) [1991] FCA 519; 32 FCR 219 at 240-241 (Hill and Heerey JJ)." (Emphasis added)

  1. A range of views have been expressed about how to identify the degree to which individuals must be affected to determine whether an obligation of procedural fairness arises: see M Aronson, B Dyer and M Groves, Judicial Review of Administrative Action, 4th ed (2009) Lawbook Co (at [7.175] - [7.195]). Having regard to the Director-General's concession that the obligation arises in the present case made, no doubt, in recognition of the fact that the Proposed Measures will clearly affect "identifiable persons", it is unnecessary to add to the debate. It is sufficient to accept that Mr Lloyd's submission that the size of the class will affect the content of the obligation is consistent with Spigelman CJ's observation in Vanmeld Pty Ltd v Fairfield City Council and Basten JA's explanation in Castle v Director General, State Emergency Service. The propositions which I set out below concerning underlying principles of procedural fairness must, in their application to the present case, reflect the fact that the decision the Director-General is proposing to make is intended to regulate not only the respondents' operations but also those of all of the 58 licensees in the Accord precinct. It is also necessary to take into account that the potential participants in the accord include a range of groups and individuals who are not necessarily licensees and who may not have a commercial interest in a licence.

The Argument in this Court

  1. The argument both before the primary Judge and in this Court proceeded on the basis that the Director-General would adopt the Proposed Variations and would so without providing the source documents requested by the respondents. The Director-General did not dispute that he was under an obligation to accord procedural fairness to the respondents (and other licensees) when exercising the power under s 136B(1)(c) of the Liquor Act 2007 to vary the terms of the Accord: see Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; (2012) 86 ALJR 1019, at [97], per Gummow, Hayne, Crennan and Bell JJ. In the light of this concession (in my view properly made), the competing submissions concentrated on whether a decision to adopt the Proposed Variations without providing the source documents would breach the Director-General's duty to accord procedural fairness to the respondents.

A Question of Statutory Construction

  1. As McColl JA notes, there was debate on the appeal as to the source of the Director-General's power to vary the terms of the Accord. The Director-General identified s 136D as the source, while the respondents said the power was conferred by s 136B.

  1. The better view in my opinion is that the power to vary the terms of an existing accord is conferred by s 136B(1)(c) of the Liquor Act, which states that the Director-General may "vary, at any time, the terms of a precinct liquor accord". The plain meaning of this language is that the Director-General can vary the measures incorporated in an existing accord, for example by including more stringent measures governing service of alcohol. I do not think that the language can or should be confined to a decision to vary the geographical boundaries of a precinct liquor accord. This conclusion is supported by the absence of any express power in s 136D or elsewhere to vary the terms of an accord. It is also supported by s 136D(2), which uses the expression "the terms of a precinct liquor accord" to include measures of the kind identified in s 136D(3).

  1. Mr Leeming submitted that if the power to vary the terms of an accord is conferred by s 136B(1)(c), the exercise of that power is conditioned by the criteria stated in s 136B(3), rather than the somewhat less restrictive criteria stated in s 136D(1)(a). This, however, does not necessarily follow.

  1. The two provisions relevantly provide as follows:

136B
...
(3) The Director-General may approve a precinct liquor accord for a designated precinct only if the Director-General is satisfied that:
(a) in the precinct there is, or there is a potential for, a significant risk of harm to members of the public associated with the misuse and abuse of liquor (including harm arising from violence or other anti-social behaviour), and
(b) the measures to be provided for by the accord are necessary:
(i) to prevent harm to members of the public associated with the misuse and abuse of liquor in the precinct (including harm arising from violence or other anti-social behaviour), or
(ii) to protect and support the good order or amenity of the precinct in connection with issues arising from the presence of, or any proposed increase in the number of licensed premises in the precinct.
...
136D
(1) A precinct liquor accord or community event liquor accord may include such measures as the Director-General considers are necessary:
(a) to minimise or prevent alcohol-related violence or anti-social behaviour or other alcohol-related harm in the precinct or area to which the accord applies, or
(b) to protect and support the good order or amenity of any such precinct or area in connection with issues arising from the presence of, or proposed increase in the number of, licensed premises in the precinct or area concerned.
...".

  1. Section 136B(3) is expressly directed to the case where the Director-General approves a liquor precinct accord. This is a reference back to s 136B(2)(b), which confers power on the Director-General to approve an accord for a designated precinct. That power is distinct from the power conferred by s 136B(2)(c) to vary the terms of an accord. The approval of an accord and variation of the terms of an existing accord are two distinct functions. If s 136B(3) was meant to apply to variation of the terms of an accord, it might have been expected to say so. Accordingly the better view is that the power to vary the terms of an accord is conditional on the Director-General being satisfied that the measures are necessary to achieve the objectives stated in s 136D(1).

  1. For the purposes of the present case it is not necessary to resolve this question of statutory construction. Whether the power to vary the terms of an existing accord is conditioned by the criteria stated in s 136D(1) or by those stated in s 136B(3), the result is the same.

Procedural Fairness

  1. As I have noted, the parties approached the question of procedural fairness on the assumption that the Director-General would approve the Proposed Variations and would not grant the respondents the source material sought by them. If it is correct to approach the matter on this basis, it was not open to the primary Judge to conclude that the Director-General had denied or would deny them procedural fairness.

  1. In determining the content of procedural fairness in the circumstances of the present case a number of matters are significant:

(a) The exercise of the Director-General's statutory power directly affected not merely the respondents but all 57 other licensees subject to the Accord. It also affected, if less directly, other participants in the Accord (see s 136A(2)), as well as members of the public living in or visiting the precinct.

(b) The matters as to which the Director-General must be satisfied in deciding whether to vary the terms of an accord are general in character and do not relate to the particular characteristics of the respondents or their Hotel. This is so whether the relevant criteria are those stated in s 136D(1) (as I am inclined to think) or those stated in s 136B(3) (as the respondents contend).

(c) The respondents have not requested the Director-General to exempt the Hotel from some or all of the Proposed Variations. Thus whether or not the Liquor Act permits the Director-General to differentiate among licensees (an issue on which it is not necessary to express a view), any variations to the Accord will apply uniformly to all 58 licensees.

(d) The material sought by the respondents does not specifically relate to them or of the conduct or management of the Hotel. It is statistical material that relates to alcohol-related incidents in the precinct and patterns of alcohol consumption in the area.

(e) The Report purports to disclose the substance of the statistical information on which the Director-General intends to rely. There is nothing in the evidence to suggest that the summaries in the Report misstate the statistical information or present them in a misleading way.

(f) There is no evidence to suggest that the source material sought by the respondents will actually be before the Director-General when he makes his decision. On the contrary, the evidence is that the material will not be before the Director-General.

(g) The respondents have been accorded the opportunity to make submissions on the inferences the Report seeks to draw from the statistical information summarised in the Report. That opportunity extends to challenging the conclusions stated in the report. To the extent that the respondents contend (as they do on the appeal) that the reasoning in the Report is flawed, they have had ample opportunity to make those submissions to the Director-General.

(h) It is not clear whether the respondents wish to make submissions on the particular circumstances and performance of the Hotel or whether, if they do, the submissions will be relevant to the matters the Director-General is obliged to take into account under the legislation. If the respondents do wish to make such submissions, they presumably have access to the necessary information from their own records to prepare the necessary documentation.

  1. Having regard to these matters, the refusal of the Director-General to provide the respondents with the source material they have requested involves no "practical injustice": Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1, at [37], per Gleeson CJ. The respondents have been provided with a fair opportunity to put any arguments they wish in opposition to the Proposed Variations.

Conclusion

  1. It is for these reasons that I joined in the orders made on 12 September 2012.

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Decision last updated: 20 December 2012

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