Granville Hotel Operations Pty Ltd v Independent Liquor and Gaming Authority

[2023] NSWCA 248

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Granville Hotel Operations Pty Ltd v Independent Liquor and Gaming Authority [2023] NSWCA 248

Hearing dates:

10 October 2023

Date of orders:

20 October 2023

Decision date:

20 October 2023

Before:

Bell CJ at [1];
Kirk JA at [2];
Griffiths AJA at [65]

Decision:

In matter number 2023/158659:

Grant leave to appeal.

In matter number 2022/340134:

Appeal dismissed with costs.

Catchwords:

ADMINISTRATIVE LAW – Statutory construction – Relevant considerations – Gaming Machines Act 2001 (NSW) ss 39-40 – Application for reduction of mandatory shutdown period – Whether Authority misconstrued Ministerial Guideline – Whether the term “venues” in the Ministerial Guideline encompassed the singular – Whether Authority was wrong to reject application

STATUTORY INTERPRETATION — Interpretation Act 1987 (NSW) s 8(c) — Whether the Interpretation Act applies to Ministerial Guideline — Interplay between common law rules on statutory interpretation and drafters of legislative instruments — Courts drawing inferences as to likely intentions of drafters — Whether the plural encompasses the singular

Legislation Cited:

Companies Act 1961 (NSW)

Environmental Planning and Assessment Act 1979 (NSW)

Gaming and Liquor Administration Act 2007 (NSW) s 6

Gaming Machines Act 2001 (NSW) ss 3, 4, 7, 39-42, 205

Gaming Machines Amendment (Shutdown Periods) Act 2003 (NSW)

Gaming Machines Regulation 2010

Gaming Machines Regulation 2019

Interpretation Act 1987 (NSW) ss 3, 5, 7, 8, 31, 33, 34

Subordinate Legislation Act 1989 (NSW) s 7

Unlawful Gambling Act 1998 (NSW) s 7(f)

Cases Cited:

Attorney-General (Qld) v Australian Industrial Relations Commission (2002) 213 CLR 485; [2002] HCA 42

Blue Metal Industries Ltd v Dilley (1969) 117 CLR 651

Construction Forestry Mining and Energy Union v Mammoet Australia Pty Ltd (2013) 248 CLR 619; [2013] HCA 36

Electrolux Home Products Pty Ltd v Australian Workers' Union (2004) 221 CLR 309; [2004] HCA 40

Forsyth v Deputy Commissioner of Taxation (2004) 62 NSWLR 132; [2004] NSWCA 474

Independent Liquor & Gaming Authority v 4 Boys (NSW) Pty Ltd [2023] NSWCA 210

Independent Liquor and Gaming Authority v Whitebull HTL Pty Ltd [2023] NSWCA 224

Kassam v Hazzard (2021) 106 NSWLR 520; [2021] NSWCA 299

Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] HCA 10

Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17

Pfeiffer v Stevens (2001) 209 CLR 57; [2001] HCA 71

Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636; [2012] HCA 31

Potter v Minahan (1908) 7 CLR 277; [1908] HCA 63

R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45; [1979] HCA 62

Simic v New South Wales Land and Housing Corp (2016) 260 CLR 85; [2016] HCA 47

Tourist Accommodation Pty Ltd v Independent Liquor and Gaming Authority [2023] NSWCA 67

Walsh v Tattersall (1996) 188 CLR 77; [1996] HCA 26

Texts Cited:

New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 7 May 2003 at 383

Category:

Principal judgment

Parties:

Granville Hotel Operations Pty Ltd (Applicant)

Independent Liquor and Gaming Authority (Respondent)

Representation:

Counsel:

C Birch SC (Applicant)

Z Heger with R McCaw (Respondent)

Solicitors:

File Number(s):

2022/340134
2023/158659

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law

Citation:

Royal Granville Hotel v Independent Liquor and Gaming Authority [2022] NSWSC 1408

Date of Decision:

17 October 2022

Before:

Schmidt AJ

File Number(s):

2021/352768

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant, Granville Hotel Operations Pty Ltd (the Hotel), operates the Royal Granville Hotel in Sydney. It operates gaming machines. The respondent, the Independent Liquor and Gaming Authority (the Authority), is the State body charged with regulating those machines pursuant, in particular, to the Gaming Machines Act 2001 (NSW) (GM Act).

Section 39 of the GM Act imposes a mandatory shutdown of gaming machines between 4am to 10am each day. Under s 40 the Authority may approve a shorter shutdown period for any particular venue, being a period of between 6am and 9am on weekends and public holidays. The Authority’s approval may only be given if it has taken into consideration such guidelines as may be approved by the Minister. A Guideline had been so approved, cl 1.2 of which states that “approval may be given if the Authority is satisfied that … [t]he venue falls within an area where other hospitality and entertainment venues are open to 6am on Saturdays or Sundays or public holidays”.

The Hotel applied to the Authority for approval for the shorter shutdown period. For the purposes of cl 1.2 there was one other relevant venue in the area in question. The Authority took the view that the word “venues” in cl 1.2 did not include a singular venue. On that basis it refused the Hotel’s application.

The Hotel sought judicial review of that decision before the Supreme Court on the basis that the Authority had misconstrued the Guideline. The primary judge dismissed that application.

The sole point on appeal was whether the term “venues” in cl 1.2 of the Guideline should be construed so as to encompass the singular. This raised in turn whether the Interpretation Act 1987 (NSW) applies to the Guideline, in circumstances where s 8(c) of that Act provides that use of the plural form includes the singular.

The Court (per Kirk JA, Bell CJ and Griffiths AJA agreeing) granted leave to appeal but dismissed the appeal, holding:

As to the applicability of the Interpretation Act

1. Section 5(1) of the Interpretation Act provides that that Act applies to “all Acts and instruments …”. Section 5(1) together with the definition of “instrument” indicates that the Interpretation Act applies to documents beyond primary and delegated legislation: at [32]. It is not necessary to resolve the issue of whether that definition extended to the policy-type Guideline at issue here: [33].

2. Assuming that the Interpretation Act is capable of applying to the Guideline as a relevant “instrument”, it is then necessary to consider s 5(2) of that Act, which provides that the Act applies except insofar as the contrary intention appears. The character of a document may make it less likely that a presumptive construction set out in the Act should be taken to be applicable: at [34]. The courts have over time drawn inferences as to likely intentions of drafters, which have become principles and presumptions, which drafters are taken to have in mind when drafting. Given the nature of the Guideline at issue here, no assumption could be made that either the Interpretation Act or broader principles of statutory construction were part of the context which the drafter had in mind: at [38]-[39]. Where it is apparent that a non-legislative legal instrument is a practical document not drafted by parliamentary counsel, less may be required to manifest a contrary intention than might be required in other contexts: at [40].

Potter v Minahan (1908) 7 CLR 277 [1908] HCA 63; Electrolux Home Products Pty Ltd v Australian Workers' Union (2004) 221 CLR 309; [2004] HCA 40; Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636; [2012] HCA 31; Forsyth v Deputy Commissioner of Taxation (2004) 62 NSWLR 132; [2004] NSWCA 474, considered.

As to the proper construction of the Guideline

3. As for any document, the issue of construction at hand must be resolved by taking account of the text, context and purpose of what is being construed: at [41]. As to text and context, the relevant language employed in cl 1.2 of the Guideline is plural. The ordinary meaning of the words here is that the use of the plural connotes the plural, where there is no particular reason to construe them as also encompassing the singular. That understanding is reinforced by the fact that cl 1.2 could readily have been drafted so as to indicate that the criterion could be satisfied if one or more hospitality and entertainment venues were open in the area at the relevant time: at [43]-[44].

4. Clause 1.2 identifies a category relating to the area in which the venue is located. The words in question identify the type of character that the area has, namely that it is an area where other hospitality and entertainment venues are open till very late on weekends and public holidays. Clause 1.1 addresses a situation where the venue is in an area of another (potentially overlapping) character. Where the provisions are seeking to identify the character of an area, it seems more likely that identifying that character would involve referring to more than one other venue: at [45]-[46].

5. As to purpose, neither claimed purpose identified by each side is persuasive. The Authority submitted that the purpose of cl 1.2 was to promote harm minimisation. Harm minimisation is an objective of the Act under s 3. The Minister and the Authority are required to have due regard to that object when (respectively) approving guidelines and deciding whether to grant an approval under s 40(3), but that does not exclude taking into account other considerations or seeking to achieve other purposes: at [14]-[15]. The function of s 40(3) is to allow partial exemptions from the restriction in s 39, which is a harm minimisation provision. Section 40 must contemplate that the restriction might be partially lifted for reasons not directed only to achieving harm minimisation: at [53]-[54]. The Hotel submitted that the purpose of cl 1.2 was to ensure that no venue gained a special competitive advantage by being able to operate for a longer period than others. This is unlikely given that the other venues in question need not be hotels or clubs, let alone ones which have obtained an exemption under s 40 of the GM Act: at [55]. A more likely purpose of cl 1.2 is that, together with cl 1.1, it relates to facilitating certain areas having an active nightlife with the attendant social and economic benefits. Ultimately it is not necessary to reach a conclusion as to purpose: at [56]-[57].

R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45; [1979] HCA 62, Construction Forestry Mining and Energy Union v Mammoet Australia Pty Ltd (2013) 248 CLR 619; [2013] HCA 36, applied.

6. Text and context support the Authority’s conclusion that the presence of only one venue of the requisite kind in the relevant area did not suffice to establish that the applicant venue fell within the category identified in cl 1.2. No purposive argument militates against this conclusion. These considerations are sufficient to indicate an intention contrary to the provision made in s 8(c) of the Interpretation Act: at [60].

JUDGMENT

1. BELL CJ: I agree with Kirk JA.

2. KIRK JA: This appeal is the latest in a series of recent cases in this Court involving the regulation of gaming machines: Tourist Accommodation Pty Ltd v Independent Liquor and Gaming Authority [2023] NSWCA 67; Independent Liquor & Gaming Authority v 4 Boys (NSW) Pty Ltd [2023] NSWCA 210; Independent Liquor and Gaming Authority v Whitebull HTL Pty Ltd [2023] NSWCA 224. The applicant, Granville Hotel Operations Pty Ltd (the Hotel), operates the Royal Granville Hotel in Sydney. It operates gaming machines. The respondent, the Independent Liquor and Gaming Authority (the Authority), is the State body charged with regulating those machines pursuant, in particular, to the Gaming Machines Act 2001 (NSW) (GM Act).

3. Under s 39 of the GM Act hotels or clubs operating gaming machines must ensure that their machines are not operated for the purposes of gambling between 4am to 10am each day. Under s 40 the Authority may approve a shorter shutdown period for any particular venue, being a period of between 6am and 9am on weekends and public holidays. The Authority’s approval may only be given if it has taken into consideration such guidelines as may be approved by the Minister. A brief guideline has been so approved (the Guideline). Clause 1.2 of that Guideline states that “approval may be given if the Authority is satisfied that … [t]he venue falls within an area where other hospitality and entertainment venues are open to 6 am on Saturdays or Sundays or public holidays”.

4. The Hotel applied to the Authority for approval for the shorter shutdown period. The Authority refused. The Hotel sought judicial review of that decision before the Supreme Court on the basis that the Authority had misconstrued the Guideline. The primary judge, Schmidt AJ, dismissed that application.

5. The Hotel seeks leave to appeal to this Court. The application raises issues of principle which may have significance for industry participants and the Authority itself. Leave should be granted.

6. The dispute turns on a confined question of construction: does the term “venues” in cl 1.2 of the Guideline include the singular, or does it require that there be more than one relevant “venue” in the area? The primary judge was correct to conclude that the word “venues” connotes the plural and does not encompass the singular. In what follows I first set out the context in which the issue arises before turning to consider the point in dispute.

Background

The relevant legislative provisions

7. Part 4 of the GM Act is entitled “Gambling harm minimisation measures”, and Div 2 of that part is headed “Mandatory shutting down of gaming machines”. Within that division, s 39(1) mandates that a hotelier or club must ensure that gaming machines kept on a premises are “not operated for the purposes of gambling between 4am and 10am on each day of the week”. That obligation is subject to ss 40, 40A and 41 of the Act: s 39(2).

8. Section 40 permits the Authority to approve a 3-hour shut down period between 6am and 9am on Saturday, Sunday and public holidays. It reads:

(1) The Authority may, on application by a hotelier or club, approve of the hotel or the premises of the club having, with effect on and from 1 May 2003 or from any time after that date, a shutdown period of between 6 am and 9 am on each day that is a Saturday, Sunday or public holiday (the 3-hour shutdown period).

(2) If the 3-hour shutdown period on a Saturday, Sunday or public holiday is approved for the time being in respect of a hotel or the premises of a club, the hotelier or club must ensure that each approved gaming machine that is kept in the hotel or on the premises of the club is not operated for the purposes of gambling between 6 am and 9 am on that day.

Maximum penalty—100 penalty units.

(3) The Authority’s approval of a hotel or club premises having the 3-hour shutdown period may be given only if—

(a) the Authority has taken into consideration such guidelines as may be approved by the Minister for the purposes of this section, and

(b) the Authority is satisfied that the hotelier or club has complied with such harm minimisation requirements as are prescribed by the regulations for the purposes of this section.

9. Section 40(3)(a) thus prescribes that any guidelines approved by the Minister for the purposes of the section are a mandatory relevant consideration for the Authority in considering whether to grant an approval under s 40(1). Given that the Minister’s role is to approve guidelines it may have been envisaged that a draft would be prepared by the Minister’s department or the regulator. However, this is not addressed in the legislation, nor does the evidence disclose what happened in fact with the Guideline.

10. The section does not expressly grant the Minister a power to approve guidelines. Section 205 of the GM Act does give the Minister power to give directions and furnish guidelines as to certain matters, but s 40 is not included in the list. Section 6(3) of the Gaming and Liquor Administration Act 2007 (NSW) provides that the Authority is subject to the control and direction of the Minister in the exercise of its functions (with certain exceptions) but that is still not a power to approve guidelines. This may be another instance in the GM Act where the presupposition of a power in s 40(3) also impliedly confers it: note Independent Liquor and Gaming Authority v Whitebull HTL Pty Ltd [2023] NSWCA 224 at [74] and [93], and the authority there cited. The issue is not important for present purposes.

11. Section 40A of the GM Act provides that the Authority may approve a shutdown only between 6am and 9am each day of the week if it is satisfied that “the hotel or club will suffer hardship to the extent specified in the guidelines approved by the Minister for the purposes of this section if its approval is not given”. If any guideline has been made under the Minister for the purposes of this section, it was not supplied to the Court.

12. Section 41 authorises the Authority to approve a different 6-hour or 3-hour shutdown for hotels or clubs which fell into a category described as “early openers” by reference to their practice from prior to 1 January 1997. There is no reference to guidelines in this section.

13. Section 42(3) provides that an approval given by the Authority under the division can be subject to conditions, and may be revoked at any time by the Authority for such reasons as it thinks fit.

14. These powers granted to the Authority, and implicitly to the Minister, must be understood in the context of s 3 of the Act, which provides:

(1) The objects of this Act are as follows—

(a) to minimise harm associated with the misuse and abuse of gambling activities,

(b) to foster responsible conduct in relation to gambling,

(c) to facilitate the balanced development, in the public interest, of the gaming industry,

(d) to ensure the integrity of the gaming industry,

(e) to provide for an on-going reduction in the number of gaming machines in the State by means of the tradeable gaming machine entitlement scheme.

(2) The Authority, the Minister, the Secretary, the Commissioner of Police and all other persons having functions under this Act are required to have due regard to the need for gambling harm minimisation and the fostering of responsible conduct in relation to gambling when exercising functions under this Act.

(3) In particular, due regard is to be had to the need for gambling harm minimisation when considering for the purposes of this Act what is or is not in the public interest.

15. Thus the Minister is required to have due regard to the need for gambling harm minimisation and to the fostering of responsible conduct in relation to gambling when approving guidelines under s 40(3) of the Act. The same applies to the Authority in deciding whether or not to grant an approval under that provision. That does not mean they are not permitted to take into account other considerations, or seek to achieve other purposes. The requirement to have due regard to the identified considerations does not mean that regard may only be had to those matters or that they will always be decisive. What considerations are permissible or not in exercising any particular power depends upon construction of the power in question. The general rule of construction is that a discretion expressed without any qualification is unconfined except in so far as it is affected by limitations to be derived from the context, scope and purpose of the statute: R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45 at 50, [1979] HCA 62.

The Hotel’s application

16. The Hotel applied to the Authority in August 2020 under s 40(1) of the GM Act to reduce the shutdown period from 6 to 3 hours on weekends and public holidays. The Board of the Authority considered the application at meetings in June and July 2021 but deferred its decision. The purpose of the second deferral was to allow the Hotel to provide any evidence that it had a history of remaining open past 4am, thus satisfying cl 1.3 of the Guideline (which is set out below). The Hotel was not able to produce such evidence.

17. On 15 September 2021 the Authority determined that the application did not satisfy the Guideline and it was refused. The Hotel commenced judicial review proceedings in the Supreme Court in December 2021. The Court directed the Authority to provide reasons for its decision, which duly occurred.

16. As noted above, cl 1.2 of the Guideline refers to the venue falling “within an area where other hospitality and entertainment venues are open” to 6am on weekends and public holidays. In its reasons, the Authority noted that the Guideline did not define what constituted an “area”. The Hotel had referred in its application to the area within a 5 km radius, within which it had identified 30 licensed hotels or clubs. It seems that the Hotel had not sought to identify any other types of hospitality or entertainment venues. Rather than accepting the 5 km radius suggestion of the Hotel the Authority adopted its own, narrower approach to delineating an area. On that approach there were only four other licensed hotels or clubs within the area, of which only one advertised itself as actually trading until 6am. That venue was also the only one of the four which the Authority said was “licensed” (seemingly meaning approved under s 40) to operate under a reduced shutdown period.

17. The question then arose whether the existence of just one other venue within the identified area sufficed to satisfy cl 1.2. The Authority concluded it did not, saying the following (after reciting the clause):

The Authority notes the Minister’s Guidelines therefore provide that there is to be more than one other late trading venue in the given “area” for this clause to be satisfied. The Authority considers that this circumstance has not been demonstrated.

20. The Authority thus took the view that the word “venues” in cl 1.2 did not include a singular venue. Whether or not that is so is the central issue in this appeal.

21. The Authority also concluded that neither cl 1.1 (relating to being in a tourist area) nor cl 1.3 (relating to historical practice) was satisfied. Although no parts of cl 1 were satisfied, which addresses when “approval may be given”, the Authority went on to consider whether or not to grant the approval in any case as an exercise of its discretion. The Authority noted various harm minimisation concerns. It stated (footnote omitted):

The 6-hour gaming machine shutdown period is a fundamental legislative harm minimisation measure, with research finding that a late-night shutdown is most likely to impact problem gamblers than any other group. This is because problem gamblers are more inclined to play for longer periods of time overall. Research also found the 3-hour shutdown period had a minimal impact on minimising problem gambling. The research suggested that this was due mainly to the time the shutdown operated (6:00 am to 9:00 am), as it is the least popular time to gamble.

22. Nevertheless, it also indicated that the Hotel had provided an acceptable gaming plan of management. The Authority concluded:

In this instance, the Authority considers that the Application does not fall within the circumstances described in clause 1 of the Minister’s Guidelines. The Authority does not consider it appropriate to exercise its discretion to approve the Application, despite the submissions made on behalf of the Applicant and the gambling harm mitigation measures proposed.

The primary judgment

23. The primary judge held that the construction adopted by the Authority was correct. In so doing her Honour took account of textual, contextual and purposive considerations: at [53]-[68].

24. There was no dispute below as to how the Authority had defined the area which had to be considered on the Hotel’s application. Some other matters were raised in the Court below which are no longer in issue. The only matters in issue in this Court relate to the construction of cl 1.2 and, if the Authority’s construction was erroneous, the legal significance of that error.

Construction of the Guideline

25. The Guideline is brief. It is appropriate to extract it in full:

1. CIRCUMSTANCES UNDER WHICH AUTHORITY APPROVAL MAY BE GIVEN

Authority approval may be given if the Authority is satisfied that:

1.1 The venue falls within an area that usually attracts tourists; or

1.2 The venue falls within an area where other hospitality and entertainment venues are open to 6 am on Saturdays or Sundays or public holidays; or

1.3 Prior to 2 April 2002, the venue had a history of remaining open past 4am on Saturdays or Sundays or public holidays.

2. CIRCUMSTANCES TO BE COMPLIED WITH FOR AUTHORITY APPROVAL TO BE GIVEN

Authority approval is only to be given if the Authority is satisfied that:

2.1 The applicant has adopted and can demonstrate that all harm minimisation measures required by the Gaming Machines Act 2001, the Gaming Machines Regulation 2010, the Liquor Act 2007 and the Liquor Regulation 2008 have been implemented; and

2.2 The applicant can demonstrate its participation in any relevant local liquor accord and (in respect of an applicable registered club) any CDSE Local Committee.

2.3 The applicant can indicate that the venue for which exemption is sought will usually be trading during the hours for which an exemption is sought.

3. OTHER CIRCUMSTANCES

The Authority may approve applications or refuse to approve applications in circumstances other than those outlined in Section 2, having taken into consideration those matters listed under Section 1, or any other pertinent matters raised by the hotel or club.

The Authority may impose conditions on any approval it grants. The Authority may revoke any approval by notice in writing if it is satisfied that any conditions have not been complied with.

The Authority may grant an approval for ongoing limited periods of time such as for part of a weekend (eg. Sat night only) or on a seasonal basis.

4. ADMINISTRATIVE PROCEDURES

The Authority may refuse to consider an application until the applicant has paid a lodgement fee.

The Authority is to consider applications in a timely and efficient manner.

26. Viewed with a critical lawyer’s eye, the document is not perfectly drafted:

1. Key terms are not defined: in particular, relevantly, “area” and “hospitality and entertainment venues”.

2. The “and” seems to be in the wrong spot in cl 2, at the end of cl 2.1 as opposed to cl 2.2 (or, alternatively, there should have been an additional “and” after cl 2.2).

3. The statement in the chapeau in cl 1 that “approval may be given if the Authority is satisfied” of one of the three circumstances could readily be taken to imply that approval is only to be given in those circumstances. However, that understanding is undercut by the fact that cl 2 makes that point expressly, thus indicating that cl 1 should not be understood to have that effect. Then, despite the strength of the chapeau in cl 2, that in turn is undercut by cl 3 which provides that even if the matters in cl 2 are not established the Authority can still grant an approval.

27. Yet the Guideline is not delegated legislation. It is a policy document guiding but not binding the exercise of the Authority’s discretion. That is the very nature of a guideline: note Norbis v Norbis (1986) 161 CLR 513 at 520, [1986] HCA 17. It does not set mandatory rules or prescribe binding norms of conduct: note Kassam v Hazzard (2021) 106 NSWLR 520; [2021] NSWCA 299 at [144]. It articulates matters which the Authority must consider when deciding whether to grant an approval under s 40(1), where that does not limit other matters that it may consider. It is clear that the document was not drafted by parliamentary counsel. It was obviously meant to be a practical guide.

28. The net effect of the Guideline, as regards the three categories listed in cl 1, is that the Authority should consider whether the venue in question falls within one or more of the three identified categories. If it does, the Guideline implies that that is to be taken as a factor militating in favour of approving the application. But falling within one of the categories is not suggested to be either necessary or sufficient for approval to be granted.

The potential application of the Interpretation Act

29. At first instance, and initially on appeal, the parties both proceeded on the basis that the Interpretation Act 1987 (NSW) applied to construction of the Guideline, and the primary judge appears to have adopted that view (see [53]-[54] and [68]). In the course of argument, however, counsel for the Authority withdrew the acceptance that the Interpretation Act applied. The significance of the issue is that s 8(c) of the Act provides that “a reference to a word or expression in the plural form includes a reference to the word or expression in the singular form” (and s 8(b) provides vice versa). Section 8(c), if applicable, offers support to the Hotel’s case.

30. Section 5(1) of the Interpretation Act provides that that Act applies to “all Acts and instruments …”. The word “instrument” is defined in s 3(1) of the Act to mean “an instrument (including a statutory rule or an environmental planning instrument) made under an Act, and includes an instrument made under any such instrument”. As counsel for the Authority noted, this definition is somewhat circular in reusing the term “instrument” that it itself seeks to define. The term “environmental planning instrument” is defined in the Act’s Dictionary to mean such an instrument within the meaning of the Environmental Planning and Assessment Act 1979 (NSW).

31. The term “statutory rule” is defined in the Act’s Dictionary to mean a regulation, by-law, rule or ordinance that is made, approved or confirmed by the Governor, or a rule of court – in essence, thus, delegated legislation. Statutory rules, other than rules of court, are subject to the Subordinate Legislation Act 1989 (NSW). That Act provides, amongst other things, that such rules are not to be presented to the Governor unless accompanied by “a copy of the opinion of the Attorney General or the Parliamentary Counsel as to whether the proposed statutory rule may legally be made”: s 7(c). In practice, that requirement makes it likely that parliamentary counsel has had some input into the drafting of statutory rules.

32. On its face, s 5(1) together with the definition of “instrument” indicates that the Interpretation Act applies to documents beyond primary and delegated legislation. That is so even though the long title to the Act, insofar as it refers to interpretation and construction, refers to legislation. That said, it also refers to enacting provisions “of a common or general nature”. Some care has been taken in the Act to delineate provisions which are applicable to Acts and instruments on the one hand, and those applicable only to Acts and statutory rules on the other. For example, Pt 5 of the Act is headed “Construction of Acts and instruments”. Within that Part, s 31(1) provides that an “Act or instrument shall be construed as operating to the full extent of, but so as not to exceed, the legislative power of Parliament”. Conversely, s 33, promoting purposive construction, is directed only to interpretation of provisions in an Act or statutory rule. The same is true of s 34, relating to the use of extrinsic material in interpretation.

33. It might be thought somewhat surprising that the careful, detailed provision made in the Interpretation Act applies to a policy-type document such as that at issue here. Yet that is certainly an open construction of the provisions in the Interpretation Act. It is not necessary to resolve the issue, which raises important questions as to the types of documents to which the Act applies, in circumstances where the Court has not had the benefit of developed submissions on point. It suffices in this case to assume (without deciding), in favour of the Hotel, that the Interpretation Act is capable of applying to construction of the Guideline as a relevant “instrument”, and that s 8(c) of the Act is capable of applying with respect to interpreting cl 1.2.

34. That the Interpretation Act applies (or is assumed to apply) to a document pursuant to s 5(1) does not mean a particular section in the Act, such as s 8(c), will dictate the construction of a provision in the document. It is then necessary to consider s 5(2) of the Interpretation Act, which states that the Act applies to an Act or instrument “except in so far as the contrary intention appears in this Act or in the Act or instrument concerned”. In considering whether a contrary intention is manifest it is relevant to take account not only of the terms and nature of the provision or clause being construed, but also of the nature of the document in question. The character of the document may make it less likely that a presumptive construction set out in the Act should be taken to be applicable.

35. In Blue Metal Industries Ltd v Dilley (1969) 117 CLR 651 the Privy Council dismissed an appeal from the High Court concerning whether certain takeover provisions in the Companies Act 1961 (NSW), expressed in the singular as regards the buyer, could apply where there was a joint bid by two buyers. Both courts held that the singular did not include the plural, despite the applicability of the predecessor provision to s 8(b). The Privy Council said the following of that provision (at 656, citation omitted):

Such a provision is of manifest advantage. It assists the legislature to avoid cumbersome and over-elaborate wording. Prima facie it can be assumed that in the processes which lead to an enactment both draughtsman and legislators have such a provision in mind. It follows that the mere fact that the reading of words in a section suggests an emphasis on singularity as opposed to plurality is not enough to exclude plurality. Words in the singular will include the plural unless the contrary intention appears. But in considering whether a contrary intention appears there need be no confinement of attention to any one particular section of an Act. It must be appropriate to consider the section in its setting in the legislation and furthermore to consider the substance and tenor of the legislation as a whole.

36. This passage has been referred to approvingly in the High Court subsequently: eg Walsh v Tattersall (1996) 188 CLR 77 at 91, [1996] HCA 26 per Gaudron and Gummow JJ; Pfeiffer v Stevens (2001) 209 CLR 57; [2001] HCA 71 at [56]-[58] per McHugh J. The Privy Council went on to say at 658 that the “Interpretation Act is a drafting convenience. It is not to be expected that it would be used so as to change the character of legislation”.

37. The passages just quoted indicate that the character of the whole document is relevant to considering issues of contrary intention. These passages also recognise that one core reason for having interpretation statutes is for efficiency, allowing certain matters to be assumed without having to be restated: see also Attorney-General (Qld) v Australian Industrial Relations Commission (2002) 213 CLR 485; [2002] HCA 42 at [7]. Parliamentary counsel will always have the applicable interpretation statute, along with common law principles of construction, in mind when drafting legislation: note ibid at [8].

38. The common law principles themselves reflect the courts’ evolved understanding of what drafters of legislation are likely to mean. Thus, for example, one such presumption has been expressed in terms that it is “in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness”: Potter v Minahan (1908) 7 CLR 277 at 304 (emphasis added), [1908] HCA 63. Gleeson CJ described that presumption as “a working hypothesis, the existence of which is known both to Parliament and the courts, upon which statutory language will be interpreted”: Electrolux Home Products Pty Ltd v Australian Workers' Union (2004) 221 CLR 309; [2004] HCA 40 at [21]. In such respects the common law principles and presumptions of statutory construction “are the product of … the interaction between the three branches of government”: Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636; [2012] HCA 31 at [97]; see also Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] HCA 10 at [43]-[44]. The courts have over time drawn inferences as to likely intentions of drafters, which have become principles and presumptions, which drafters are taken to have in mind when drafting.

39. In contrast, given the nature of the Guideline at issue here, no assumption could be made that either the Interpretation Act or broader principles of statutory construction were part of the context which the drafter had in mind when producing the document. That does not necessarily mean that the Act should be taken not to apply. The application of interpretation statutes is not premised on drafters necessarily having turned their mind to particular issues of construction: see eg Forsyth v Deputy Commissioner of Taxation (2004) 62 NSWLR 132; [2004] NSWCA 474 at [29]. One benefit of such statutes is to address common issues that arise with construction which may not have been considered by a drafter.

40. However, where it is apparent that a non-legislative legal instrument is a practical document not drafted by parliamentary counsel, less may be required to manifest a contrary intention than might be required in other contexts. No assumption can be made that the drafter in fact had principles of statutory construction in mind when drafting the instrument. Where one is seeking to ascertain the intent of the drafter, the significance of the interpretation statute is reduced (assuming that it is capable of applying at all).

Text, context and purpose

41. As noted, the Guideline is not legislation. Nevertheless, the issue of construction at hand must be resolved by taking account of the text, context and purpose of what is being construed. That approach is inherent in the task of legal interpretation of documents. Thus, for example, it is applied to contracts: Simic v New South Wales Land and Housing Corp (2016) 260 CLR 85; [2016] HCA 47 at [78].

42. Starting with the text, the relevant language employed in cl 1.2 of the Guideline is plural: “The venue falls within an area where other [ie not “another”] hospitality and entertainment venues are open to 6 am on Saturdays or Sundays or public holidays”.

43. Senior counsel for the Hotel argued that as “a matter of plain, ordinary English the phrase means one or more venues”. He relied on the recognition by the primary judge that given the reference to “hospitality and entertainment venues”, which could include a venue which was one or the other or both, there was a grammatical reason for the noun to be plural whilst potentially encompassing the singular (at [60]-[62]). So much may be accepted. Thus, as her Honour recognised, the construction put by the Hotel is an open one. It does not mean, nor did her Honour suggest, that it is the most natural reading as a matter of plain, ordinary English.

44. In my view the ordinary meaning of the words here is that the use of the plural connotes the plural, where there is no particular reason to construe them as also encompassing the singular. That understanding is reinforced by the fact that cl 1.2 could readily have been drafted so as to indicate that the criterion could be satisfied if one or more hospitality and entertainment venues were open in the area at the relevant time. There is some force in the Hotel’s argument that one should be careful, when construing such a practical document, about “drawing negative inferences from the failure to have used some more precise drafting technique”. But whether or not just one venue would suffice is a point of relatively obvious importance, and very few further words would have been required to make it clear. That being so, it is not unduly legalistic to take account of this point.

45. Next, it is important to note that cl 1.2 identifies a category relating to the area in which the venue is located. The words in question identify the type of character that the area has, namely that it is an area where other hospitality and entertainment venues are open till very late on weekends and public holidays. Clause 1.1 addresses a situation where the venue is in an area of another (potentially overlapping) character, being one “that usually attracts tourists”. Clause 1.3 is a different kind of category, addressing where the venue has a history of extended opening. Clauses 1.1 and 1.2 are of a similar kind to each other. They indicate that something about the nature of the identified area means it may be reasonable for a club or hotel to be able to operate its gaming machines later than would otherwise be permitted. Clause 1.1 only refers to the area being one that usually attracts tourists; it does not require that they be attracted to the area up to 6am on weekends and public holidays. That does not alter the fact that it is the nature of the area which is taken to be important.

41. Where the provisions are seeking to identify the character of an area, it seems more likely that, as regards cl 1.2, identifying that character would involve referring to more than one other venue. The more venues of the relevant kind in the area, the more the area would bear the requisite character.

42. There was some debate about the meaning of “hospitality and entertainment venues”. When the Hotel applied to the Authority for its approval it appears to have assumed that the reference in cl 1.2 to “hospitality and entertainment venues” encompassed only hotels and clubs, implicitly being venues which operated gaming machines. They were the only types of venue it identified in seeking to show that it satisfied the criterion. The Authority briefing note indicated that “historically” the regulator had also considered that the phrase in cl 1.2 was limited in this way.

43. Leaving aside casinos, it is only hotels and clubs with a liquor licence which are permitted to operate gaming machines: Unlawful Gambling Act 1998 (NSW), s 7(f); GM Act, ss 4(1) and 7. There is no reason to read the cl 1.2 phrase as limited to such venues. It is not the ordinary meaning of the words. Hospitality venues would naturally be understood to include, for example, restaurants, cafes or small bars. Entertainment venues would naturally include sports stadiums, theatres, cinemas, music venues and perhaps even ten pin bowling alleys or gaming arcades. Given that it is only licensed hotels and clubs for which the s 40 issue may arise, it would have been bizarre for the drafter of the Guideline to choose quite different words simply in order to refer to other venues of the same type as the applicant venue. The drafter could simply have referred to “other such venues”.

44. The reference to “hospitality and entertainment venues” is a description of the class of venues. A venue could fall within that class if it satisfied one or other or both of the descriptors. There is no sensible reason to read the words as referring only to venues which could be characterised as both a hospitality and entertainment venue. What is common to the notions is that they involve members of the public gathering together to engage in socialising and recreation.

45. The linked nature of cll 1.1 and 1.2 leads to consideration of the purpose of the provisions. The parties did not provide the Court below, or this Court, with any contextual material relating to the making of the Guideline, where such material may possibly have thrown some light on the purposes that were sought to be achieved. It is not even apparent from the evidence when the Guideline was made or by which Minister. An Authority briefing note from July 2021 was in evidence, which suggested that some version of the Guideline had been made in 2003. The provision for there to be a guideline was introduced into s 40(3) by the Gaming Machines Amendment (Shutdown Periods) Act 2003 (NSW). In the Minister’s second reading speech it was said that the “guidelines will be developed in consultation with the club and hotel industries, and with relevant community representatives” (Hansard, Legislative Assembly, 7 May 2003, p 383). It may be inferred that that occurred.

46. The 2003 version of the Guideline must have been at the least amended (if not replaced altogether) subsequently given that cl 2.1 refers to legislation made in 2007, 2008 and 2010. The Guideline is out of date, in that respect, as it refers to the Gaming Machines Regulation 2010, which was replaced by the Gaming Machines Regulation 2019 with effect from 1 September 2019.

47. As it is, the only material available from which the purpose of the provisions can be ascertained is the text of the Guideline itself.

48. The Authority submitted that the purpose of cl 1.2 was to promote harm minimisation. It sought to explain how the clause might achieve that end as follows:

An area that has multiple restaurants, bars, and a variety of entertainment venues operating until 6:00am is more likely to be frequented by people in the early hours for social purposes. In other words, the area is one that is more likely to attract “social” gamblers as opposed to only “problem” gamblers. The same policy is evident in cl 1.1: an area which “usually attracts tourists” is more likely to be frequented by those touring or socialising in the early hours of the morning, as opposed to only “problem” gamblers.

54. The primary judge accepted a submission along these lines, albeit with some degree of scepticism as to the premise (at [63]-[67]). The submission is unpersuasive. It involves a premise about the likelihood of tourists or those attending hospitality or entertainment venues being problem gamblers which is speculative. More generally, the suggestion that cll 1.1 and 1.2 are seeking to achieve a harm minimisation purpose tends to assume what is sought to be proved. And, as senior counsel for the Hotel submitted, the very point of s 40(3) is to allow partial exemptions from the restriction in s 39, which is clearly a harm minimisation provision. The provision must contemplate that that restriction might be partially lifted for reasons not directed only to achieving harm minimisation, being reasons assessed to outweigh the harm minimisation objective of s 39. It would be erroneous, thus, to assume that the Guideline must be read in as restrictive a way as possible (contrary to the primary judge’s suggestion at [59]). Legislation does not seek to achieve its purposes at all costs: Construction Forestry Mining and Energy Union v Mammoet Australia Pty Ltd (2013) 248 CLR 619; [2013] HCA 36 at [41]. The same can be said of the Guideline. As explained above at [15], the requirement that the Minister and the Authority pay due regard to harm minimisation when exercising functions under the GM Act does not mean that that is the only end they may seek to achieve.

55. Conversely, the Hotel submitted that the most likely explanation of the purpose of cl 1.2 was “to ensure that no venue gained a special competitive advantage by being able to operate for a longer period than others”. This explanation, too, must be rejected. It makes little sense when the other venues in question need not be hotels or clubs, let alone clubs or hotels which had themselves obtained an exemption under s 40 of the GM Act. It is difficult to view the clause as about pursuing competitive equality between hotels operating gaming machines and restaurants, music venues or the like. That is especially so as the s 40 issue is not about whether or not the hotel or club can be open for business at the relevant times, it is simply about whether it may operate its gaming machines.

56. A more likely purpose of cl 1.2 is that it, together with cl 1.1, relates to facilitating certain areas having an active nightlife. It may have been perceived that there can be social and economic benefits in allowing a hotel or club to continue operating its gaming machines until 6am on weekends and public holidays as part of maintaining or promoting an area as one where tourists and others may gather for socialising and recreation. Such a purpose would reinforce the construction indicated by the text and context.

57. However, it is not necessary to reach a conclusion as to purpose. It is sufficient to note, as already explained, that both cll 1.1 and 1.2 identify areas having a certain character, and a sensible understanding of cl 1.2 is that it is more likely to have that character if there is more than one venue of the relevant kind.

58. Senior counsel for the Hotel submitted that having, say, two fast food outlets in an area made little difference compared to there only being one such outlet. It is not necessary here to consider whether fast food outlets would fall within the relevant category. The argument fails to acknowledge that, first, it is an issue of degree and, secondly, the Authority retains its discretion to approve the application whether or not the application falls within any of the categories in cl 1. Whether the Authority considered that an application pointing only to two local 24-hour fast food shops as its basis for falling within cl 1.2 was meritorious would be a matter for it to determine.

Conclusion

59. Working on the assumption in favour of the Hotel that s 8(c) of the Interpretation Act is capable of applying to the Guideline in light of s 5(1) of that Act (without deciding that that is so), given the nature of the document there is not a high persuasive threshold to establish a contrary intention pursuant to s 5(2). The better construction is that cl 1.2 does not extend to encompassing a situation where there is only one other hospitality or entertainment venue in the relevant area. The words in cl 1.2 of the Guideline can be construed as doing so, but that is not the most natural reading of the text. Further, cl 1.2 should be construed together with cl 1.1. The two clauses identify, in different ways, that the applicant venue is situated in an area of a particular character. For cl 1.2, the category involves members of the public gathering together to engage in socialising and recreation at the relevant times. An area will be more likely to have the requisite character if there is more than one hospitality or entertainment venue in the area.

60. Thus text and context support the Authority’s conclusion that the presence of only one venue of the requisite kind in the relevant area did not suffice to establish that the applicant venue fell within the category identified in cl 1.2. No purposive argument militates against this conclusion. These considerations are sufficient to indicate an intention contrary to the provision made in s 8(c) of the Interpretation Act.

61. The decision of the primary judge to reject the Hotel’s application for judicial review of the Authority’s decision was thus correct.

62. The Authority conceded in argument that if its construction was rejected then its error was material in the sense that there was a realistic possibility that the decision could otherwise have been different. It nevertheless sought to argue that its decision rejecting the Hotel’s application was not invalid and should not be set aside. Those arguments involve some complexity. It is not necessary to resolve them.

Orders

63. Leave to appeal should be granted but the appeal should be dismissed. No reason has been suggested why costs should not follow the event.

64. The Hotel originally brought proceedings in this Court by filing a notice of appeal then, after correspondence with the Authority, filed proceedings seeking leave to appeal. In the leave proceedings (matter number 2023/158659) the order should be that leave to appeal is granted. In the appeal proceedings (matter number 2022/340134) the order should be that the appeal is dismissed with costs. That order will, of its nature, encompass the costs of seeking leave to appeal.

65. GRIFFITHS AJA: I agree with Kirk JA.

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Decision last updated: 20 October 2023