Smith v Independent Liquor and Gaming Authority

[2018] NSWCATAD 224

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Smith v Independent Liquor and Gaming Authority [2018] NSWCATAD 224
Hearing dates:	2 July 2018
Date of orders:	21 September 2018
Decision date:	21 September 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Hennessy LCM, Deputy President
Decision:	The decision under review is affirmed.
Catchwords:	ADMINISTRATIVE LAW – where respondent refused application for packaged liquor licence – assessment of overall social impact of granting the licence – whether that impact will not be will not be detrimental to the well-being of the local or broader community – role of Tribunal - nature of evidence
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) s 63(3), s 64(4) Civil and Administrative Tribunal Act 2013 (NSW), s 38(2) Gambling Regulation Act 2003 (Vic), s 3.3.7 Liquor Act 2007 (NSW), s 3, s 29, s 48(5), s 57 Local Government Act 1993 (NSW)
Cases Cited:	Australian Broadcasting Commission v Bond (1990) 170 CLR 32 Coastwide Fabrication & Erection Pty Ltd v Honeysett [2009] NSWCA 134 Macedon Ranges Shire Council v Romsey Hotel Pty Ltd [2008] VSCA 45
Texts Cited:	Bureau of Crime Statistics and Research, “The effect of liquor licence concentrations in local areas on rates of assault in New South Wales”, Crime and Justice Bulletin, no 181, (December 2014)
Category:	Principal judgment
Parties:	Ian Charles Smith (Applicant) Independent Liquor and Gaming Authority (Respondent)
Representation:	Counsel: J Emmett (Respondent)   Solicitors: Hatzis Cusack Lawyers (Applicant) Crown Solicitor's Office (Respondent)
File Number(s):	2017/00384531
Publication restriction:	Nil

REASONS FOR DECISION

Overview

1. Mr Smith applied to the Independent Liquor and Gaming Authority for a licence to open a bottle shop in Kurri Kurri. Kurri Kurri is small town of about 6,000 people in the Hunter Valley, a wine-growing region of New South Wales. The Authority refused Mr Smith’s application for a ‘packaged liquor’ licence. A packaged liquor licence is the kind of licence Mr Smith needs to open a bottle shop. It would authorise him to “sell liquor by retail in sealed containers on the licensed premises, for consumption away from the licensed premises”: Liquor Act2007 (NSW), s 29.

2. To grant a packaged liquor licence the Authority had to be satisfied “that the overall social impact of the licence … will not be detrimental to the well-being of the local or broader community”: Liquor Act, s 48(5). I must identify the overall social impact and then ask whether that impact will be detrimental to the well-being of the residents of Kurri Kurri or the broader community.

3. I am conducting what is sometimes called a “merits review” of the Authority’s decision. The review is governed by the terms of the Administrative Decisions Review Act 1997 (NSW) (ADR Act). The Tribunal’s role is “to decided what the correct and preferable decision is having regard to the material then before it”: ADR Act, s 63(3). That material includes any relevant factual material whether or not that material was before the Authority when it made the decision.

4. The Authority’s view was that “it is likely that any liquor that were to be sold or supplied at the (proposed bottle shop) … would contribute to the prevailing concerning levels of alcohol-related harm being experienced in those communities”. Mr Smith disagreed.

5. I have concluded that there is a mild positive social impact of granting the licence. That positive impact is outweighed by the negative impact of the high risk of an increase in the rates of assault. The NSW Bureau of Crime Statistics and Research has found that when the concentration of packaged liquor outlets reaches a certain level, the rates of assault increase. That level has been reached for the local government area in which Kurri Kurri is situated. The overall social impact of granting the licence is negative and will be detrimental to the well-being of the residents of Kurri Kurri and the broader community. Consequently, I have affirmed the Authority’s decision.

The legal test

6. Section 48(5) of the Liquor Act sets out the legal test to be applied when determining an application for a licence, authorisation or approval:

(5) The Authority must not grant a licence, authorisation or approval to which a relevant application relates unless the Authority is satisfied, after having regard to:

(a) the community impact statement provided with the application, and

(b) any other matter the Authority is made aware of during the application process (such as by way of reports or submissions),

that the overall social impact of the licence, authorisation or approval being granted will not be detrimental to the well-being of the local or broader community.

7. When considering whether to grant a licence a decision maker must keep in mind the objects of the Liquor Act and the fact that, in order to achieve those objects, due regard should be given to the matters in s 3(2):

3 OBJECTS OF ACT

(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,

(c) to contribute to the responsible development of related industries such as the live music, entertainment, tourism and hospitality industries.

(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.

History of application and Authority’s reasons

8. Mr Smith originally applied for a packaged liquor licence in 2014. That application was refused. The Authority acknowledged in the decision under review dated 29 November 2017, at par 25, “that the proposal has since been revised in an effort to mitigate some of the concerns raised in respect of the previous application”. For example, there was a reduced floor space and Mr Smith consented to conditions restricting the type of liquor products to be sold.

9. The proposed premises is located in a small group of other shops about 900 metres north of the Kurri Kurri CBD. The Authority acknowledged at par 27 of the decision, that the proposed premises would provide additional choice to residents of Kurri Kurri and increased convenience to people living in the northern part of the town. The fact that there would be off-street parking adjacent to the premises was also seen as a positive feature.

10. The only qualification to this positive impact was the Authority’s view that support from the Marli Accommodation Services Pty Ltd may be based, at least in part, on the fact that Mr Smith has provided financial support to that organisation as a condition of approval. Mr Smith donated $10,000 to the women’s shelter run by Marli Accommodation Services to upgrade a building. He has offered an additional $20,000 for the maintenance of the shelter if the application is granted. I have taken that fact into account. I am not satisfied that Marli Accommodation Services would have objected but for the financial support given by Mr Smith.

11. The Authority added that there was a degree of local support for the application and that neither the NSW Police Force nor the Cessnock City Council had objected. I have taken those factors into account.

12. The Authority’s written submissions on appeal identified the potential for an increase in domestic violence as one of its primary concerns. However, the Authority relied on other factors as well. The Authority’s main points were that:

1. the density of packaged liquor outlets is high both in the suburb of Kurri Kurri and in the Cessnock Local Government Area;

2. Bureau of Crime Statistics and Research (BOCSAR), figures indicate that there is a very high crime rate for domestic violence;

3. Kurri Kurri and the Cessnock Local Government Area clearly rank low on the Socio-Economic Indexes for Areas (SEIFA) and, specifically, the Index of Relative Socio-Economic Advantage and Disadvantage (IRSAD) - Kurri Kurri is in the lowest decile (that is, the lowest tenth) the Cessnock Local Government Area is in the second lowest decile;

4. health data is problematic – alcohol related deaths are much higher than the State-wide rates;

5. there is significant community opposition from Barkuma Neighbourhood Centre Inc attaching a petition with 436 signatories; there are two petitions in favour with 385 and 321 signatures respectively.

13. In summary, the Authority’s critical point was that outlet density, crime statistics, low socio-economic indexes and negative health data should all be considered together as risk factors for alcohol-related harm.

Evidentiary issues

List of issues

14. The Authority raised several issues about the nature of the Tribunal’s powers on review, the material that the Tribunal should take into account and the weight to be given to that material. In summary, the questions which arise from those submissions are:

1. Should the Tribunal view evidence before the Tribunal but not before the Authority with particular scrutiny?

2. Should the Authority’s decision be given ‘considerable weight’?

3. How should the Tribunal evaluate the evidence and, in particular, what weight should be given to so-called ‘risk-factors’?

4. What is the role of the Authority’s Guideline 6, “Consideration of social impact under section 48(5) of the Liquor Act 2007”?

Should the Tribunal view evidence that was not before the Authority, with particular scrutiny?

15. The Authority warned against applicants treating applications before the Authority as a “dry run”, that is, holding back some of their evidence or analysis for use in the Tribunal. According to the Authority, evidence adduced by an applicant that could have been put before the Authority but which was not adduced until proceedings in the Tribunal, should be considered with “particular scrutiny”. The Authority did not identify any evidence that it considered fell into this category but I note that the expert evidence provided by Mr Duane was not before the Authority when it made its decision.

16. Section 63 of the ADR Act allows the Tribunal to have regard to “the material then before it” when making its decision. That material includes evidence provided by all the parties. The Authority did not draw my attention to any legal principle to the effect that I should subject evidence of this kind to additional scrutiny and I am not aware of any such principle. I have assessed all the evidence on the same basis.

Should the Authority’s decision be given ‘considerable weight’?

17. In Macedon Ranges Shire Council v Romsey Hotel Pty Ltd [2008] VSCA 45, the Victorian Court of Appeal (Warren CJ, Maxwell P and Osborn AJA) provided guidance for courts and tribunals when reviewing government decisions. In that case, the Victorian Commission for Gambling Regulation had refused permission to install 50 electronic gaming machines in the Romsey Hotel. Under s 3.3.7 of the Gambling Regulation Act 2003 (Vic) the Commission had to be satisfied that:

The net economic and social impact of approval will not be detrimental to the wellbeing of the community of the municipal district in which the premises are located.

18. That test is similar to the test under consideration in these proceedings. At [53], the Court noted that the Commission had “both specialist expertise and unique experience in dealing with the issues”. In those circumstances, the Court expressed the view at [53], that the Commission’s reasons should be given “considerable weight”. The Court explained later in the paragraph that if the Tribunal intends to set aside or vary the decision, it should explain why the Commission’s reasoning was disregarded:

… although it was for the Tribunal to decide what was the ‘correct or preferable’ decision on the proprietor’s application, the Tribunal could not properly discharge its ‘review’ function without evaluating the central element of the Commission’s reasoning and – if that element was to be disregarded in considering the ‘net detriment’ test – explaining why it was to be so disregarded.

19. This Tribunal is also obliged to give adequate reasons for its decision.

20. The Tribunal’s task is to decide what the correct and preferable decision is having regard to the material then before it. The Tribunal has before it all the material that was before the Authority when it made its decision as well as additional material. The legal test in this case requires the Authority, and the Tribunal on review, to identify the overall social impact of granting the licence and then to ask whether that impact will be detrimental to the well-being of the residents of Kurri Kurri or the residents of the broader community. Those questions are, essentially, questions of fact. Given the legal and factual context, I see no scope for affording the Authority’s decision “considerable weight”.

How should the Tribunal evaluate the evidence and, in particular, what weight should be given to so-called ‘risk-factor’?

21. As well as evidence of whether granting the licence would increase alcohol related harm, the Authority identified various ‘risk factors’ for alcohol related harm which it submitted the Tribunal should take into account. My understanding is that those so called ‘risk factors’ include crime statistics such as hotspots, the level of socio-economic disadvantage of residents, the proportion of indigenous residents and health data. The Authority suggested that the Tribunal’s role was not to just to make findings of fact on disputed evidence but to attach weight these and other risk factors.

22. The Tribunal “is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice”: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 38(2). Although the Tribunal is not bound by the rules of evidence, it must “act judicially”, that is “rationally and reasonably”: Australian Broadcasting Commission v Bond (1990) 170 CLR 321 at 367 per Deane J.

23. The Tribunal’s task in this case is essentially to make findings of fact. I must make a finding as to the overall social impact of granting the licence and then ask whether that impact will be detrimental to the well-being of the local or broader community. In Macedon Ranges Shire Council v Romsey Hotel Pty Ltd [2008] VSCA 45, the Court stated at [44] that “the weight to be given to the evidence is, of course, a matter for the decision maker, and will depend on the nature, extent and cogency of the evidence”. Evidence will have little or no probative value if it is based on dubious assumptions or mere speculation.

24. The Tribunal will give weight to so-called ‘risk factors’ if there is probative evidence that granting the licence will have a particular social impact. The issue for the Tribunal is not whether the local or broader community is currently experiencing higher than average levels of alcohol related harm. The Tribunal’s task is to assess the overall social impact of the licence being granted and determine whether that overall impact will not be detrimental to the well-being of the local or broader community.

25. There is no provision in the ADR Act dealing with the issue of onus of proof to establish facts. Neither party has a legal onus to prove that the decision is correct or incorrect. Any findings of fact relevant to the Tribunal’s decision must be made “on the balance of probabilities". In this case, one question of fact is “the overall social impact of (granting) the licence”. Only social impacts of granting the licence are relevant. In Coastwide Fabrication & Erection Pty Ltd v Honeysett [2009] NSWCA 134 the Court of Appeal (Ipp JA, Young JA and McDougall J) at [61]–[64] made the following observations about the difference between inference and conjecture when the question of causation arises:

61 In dealing with the question of causation, it is necessary to bear in mind the distinction between inference and conjecture. As Spigelman CJ said in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 at 275 [84], “[c]haracterisation of a reasoning process as one or the other occurs on a continuum in which there is no bright line division. Nevertheless, the distinction exists”.

62 On the same topic, Lord Macmillan said, in Jones v Great Western Railway Co (1930) 144 LT 194 at 202, that although it was often difficult to find the dividing line between conjecture and inference, there was a clear distinction between them. His Lordship said that a conjecture, even though plausible, is no more than a guess, whereas an inference is a deduction from the evidence. Thus, his Lordship said, if the deduction were reasonable, the inference “may have the validity of legal proof”. His Lordship concluded by saying that “[t]he attribution of an occurrence to a cause is… always a matter of inference”.

63 Lord Wright put the matter somewhat differently in Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 at 169 – 170. His Lordship said, in substance, that there could be no inference unless there were objective facts from which the inference could be drawn; and if there were no such objective facts then inference fails “and what is left is mere speculation or conjecture”.

64 Finally, before I return to the facts, I note that the process of inference may involve an intuitive element that is not susceptible to detailed explication: see Hayne J in Chappel v Hart (1998) 195 CLR 232 at 290 [148]; and Spigelman CJ in Seltsam at 268 [30].

The question of causation (of granting the licence and any particular social impact) is not a question that can be reached intuitively. Common sense and experience are not sufficient to conclude that granting an extra packaged liquor licence in Kurri Kurri will increase the rates of assault in the area or have any other negative social impact. There must be some objective facts from which the inference that there will be a particular social impact can be drawn.

What is the role of the Authority’s Guideline 6?

26. The Authority has published Guideline 6, “Consideration of social impact under section 48(5) of the Liquor Act 2007”: Liquor Act, s 57. The Guideline explains the procedure and the considerations relevant to the Authority’s enquiry under that provision. A new version of the guideline was published on 22 June 2018, two weeks before the hearing. I accept that that is the relevant Guideline for the purpose of these proceedings.

27. I understand the Authority to be submitting that the Guideline is a “policy applied by the administrator in relation to the matter concerned”: ADR Act, s 64(4). Subject to various qualifications which are not relevant, s 64(4) of the ADR Act states that the Tribunal “may have regard” to such a policy in determining an application for administrative review. I have had regard to the Guideline.

28. One of the views expressed in the Guideline is that the reference to the ‘local community” in s 48(5) is a reference to the town of Kurri Kurri and that the reference to the broader community is a reference to the City of Cessnock local government area. Mr Smith agreed with that view. For the purpose of these proceedings, I accept that interpretation but I am not persuaded that the broader community always corresponds with the relevant local government area. A local government area is an area which a council can govern in accordance with the Local Government Act 1993 (NSW). The size and population of local government areas varies significantly as does the location of a local community within a local government area. The identification of both the local and broader community is questions of fact to be determined in each case.

26. At par 11 of the Guideline, the Authority summarises its task as being to:

(a) assess the overall social impact of a licence, authorisation or approval being granted, and

(b) determine whether it is satisfied that that impact will not be detrimental to the well-being of the community.

30. I accept that this is a correct statement of the law and that the phrase “overall social impact” suggests that both positive and negative social impacts are to be taken into account.

31. The Authority states in the Guideline that contentions by stakeholders about the social impact of a decision should be supported by “appropriate evidence or other material”. The Authority makes it clear in the Guideline that it does not expect members of the public to provide “expert or statistical evidence” in support of their submissions. while I accept that it should not be incumbent on members of the public to provide such evidence, when reviewing the Authority’s decision the Tribunal may only make the findings in s 48(5) of the Liquor Act on the basis of probative evidence.

32. The Authority correctly notes at par 37 that “the fact that a locality may already be well served by liquor businesses is not, of itself, a basis for refusing a new licence application”. The Authority goes on to note that there may be evidence that an increase in the density of liquor outlets will lead to an increase in the incidents of alcohol related harm. If that evidence is available, I agree that it may comprise probative evidence relevant to the findings that need to be made in s 48(5) of the Liquor Act.

33. In the Guideline, the Authority lists the matters that it may take into account as including: research about a population’s vulnerability to alcohol-related harm or about the association between high alcohol outlet density or clustering and adverse social outcomes. The Guideline also mentions information from the NSW Bureau of Crime Statistics and Research and from the Australian Bureau of Statistics as being potentially relevant. I agree that if these sources contain information which has some probative value, that information should be assessed. The Authority, and the Tribunal on review, may then be in a position to make the factual findings on the two issues set out in s 48(5), namely the overall social impact and whether that impact will be detrimental to the well-being of the local or broader community.

34. Annexure A to the Guideline helpfully lists relevant statistical and research information. I have only taken into account statistical information or research that was expressly drawn to my attention by the parties in their evidence. For example, Mr Hatzis, the solicitor for the applicant, provided a copy of an article by three employees of the Bureau of Crime Statistics and Research (BOCSAR) titled, “The effect of liquor licence concentrations in local areas on rates of assault in New South Wales”, Crime and Justice Bulletin, no 181, December 2014 (the BOCSAR article). The Authority refers to this article in Annexure A to the Guideline.

Assessment of evidence

35. As I have said, in assessing the overall social impact of granting the licence, other than the community impact statement and other matters the Authority was made aware of during the application process, I have only had regard to the statistical information or research that was expressly drawn to my attention by the parties in their evidence.

Community Impact Statement

36. Mr Smith prepared a Community Impact Statement on a form provided by the Authority. It sets out details of what the local community looks like, who has been consulted and how, and any issues raised by stakeholders during the consultation. The statement concluded by expressing the opinion that, on balance, the Authority should be satisfied that the overall social impact of granting the application will not be detrimental to the well-being of the local community or the broader community.

37. The Authority noted that no recent community impact statement has been prepared, nor has there been a fresh round of advertising and notification. I have taken the Community Impact Statement into account but it does not provide me with much assistance in determining the issues of fact set out in s 48(5) of the Liquor Act.

Views of residents

38. Mr Smith arranged for a petition to be signed by 385 local people in support of his application. Between 19 February 2018 and 18 March 2018 he arranged for a further 321 people to sign a petition. The second petition highlights the convenience of being able to park close to the proposed site for the bottle shop and not having to drive the short distance into the centre of town to purchase alcohol. The range of liquor to be sold and the fact that flagons, casks and refrigerated single bottles of beer or cider will not be sold, was also highlighted.

39. Barkuma Neighbourhood Centre Inc is a not-for-profit community organisation providing services to the Aboriginal community. Barkuma facilitated the signing of a petition by 436 residents opposing the licence being granted. The wording of the petition suggests that the objections were based on concerns about alcohol abuse and that the town does not need another liquor outlet.

40. The Authority submitted that the Tribunal should not conclude that a much larger number of persons support Mr Smith’s application than oppose it. Their reasoning was that only one petition was presented in opposition to the licence, whereas there were two rounds of petition in favour of the licence being granted. The Authority also submitted that it is understandable that there is popular demand for more convenient alcohol but the role of the regulator is to guard against the risk of alcohol-related harm.

41. Many people are opposed to the licence being granted because of concerns about an increase in alcohol related violence. I explore below whether there are objective facts which support that concern. Many more people (706 as against 436) expressed the view that the licence should be granted. The convenience for residents of a bottle shop in the northern part of the town, the advantage of onsite parking and the range of alcohol that will be available are all mildly positive social impacts.

Objections from Barkuma

42. Barkuma objected to the licence being granted in a letter dated 28 February 2017. Their reasons were firstly because of “the negative impact that alcohol abuse has on community” and secondly because “Barkuma believe that by adding another liquor outlet is not going to help reduce anti-social behaviour.”

43. Barkuma acknowledged that alcohol is not the only factor that contributes to abuse, but of the families they work with “98% of victims say that alcohol was the initial factor contributing to the abuse”. Barkuma works with perpetrators and 75% of those who they work with “admitted they were affected by alcohol at the times of their indecent actions”. Barkuma provided a further letter of objection dated 16 May 2018. In that letter, Barkuma estimated that approximately 85% of their clients are either directly or indirectly affected by alcohol abuse. Barkuma also estimated that half of those consuming alcohol are doing so at home as it is cheaper to buy and it can be consumed in larger quantities than at a licences premises.

44. These estimates are anecdotal and, with great respect to Barkuma and the good work that they undoubtedly do, I give those estimates no weight. There is better data available as to the extent to which alcohol is a factor in domestic violence, but as I have stated, the issue for the Tribunal is not whether the local or broader community is currently experiencing higher than average levels of alcohol related harm. The Tribunal’s task is to assess the overall social impact of the licence being granted and to determine whether that overall impact will not be detrimental to the well-being of the local or broader community.

45. Barkuma also expressed the view is that Kurri Kurri does not need another liquor outlet. That view is echoed in the Authority’s decision where it was said, at par 30, that “Kurri Kurri’s population is sufficiently provided for in respect of packaged liquor”. As the Authority’s own Guideline states at par 36, the “the fact that a locality may already be well served by liquor businesses is not, of itself, a basis for refusing a new licence application”. I give this consideration no weight.

46. Nor do I give any weight to Barkuma’s assertion that Mr Smith is not a local resident. I accept Mr Smith’s evidence that he has had an extensive association with the Kurri Kurri community and is not an ‘out of towner’. The parties agreed that the statement by Barkuma that Mr Smith is not a local resident is incorrect and, in any case, irrelevant.

Packaged liquor licence concentrations and rates of assault

Findings and conclusions from BOCSAR research

47. After reviewing the international and Australian literature, the BOCSAR article noted at p 1 that, “[T]here is good evidence of a relationship between liquor outlet concentrations in local areas and alcohol-related harm”, such as higher assault rates.

48. The BOCSAR article at p 8, found that the rate of domestic violence assault increases with the percentage of the population who are indigenous, the percentage of males aged 15-34 and the level of socio-economic disadvantage. The value of these variables was fixed in the model so that the relationship between assaults and outlet concentration could be plotted.

49. The research, which was based on most of the Local Government Areas in NSW, investigated whether there was an association between liquor licence concentrations and the rate of domestic violence and other assaults. For each Local Government Area, licence concentration rates (per 100,000 people) were calculated for hotel licences, packaged liquor licences, on-premises licences and club licences.

50. The BOCSAR article combined the data and graphed the results. One result was that when the packaged liquor licence concentration exceeds 0.75 per 1,000 of population, there is a sharp upward turn in the curve on the graph. That upturn indicates an increase in the rate of domestic violence assault. Non-domestic violence assaults accelerated to a lesser extent when packaged liquor licence concentration levels exceeded 0.75 per 1,000 of population.

51. (I note, that the Authority inadvertently states in Annexure A to Guideline 6, and in its written submissions, that the article stands for the proposition that “High levels of packaged liquor outlet-density have been shown to be positively associated with higher rates of alcohol-related DV assault”.)

52. The BOCSAR article found a much more pronounced increase in domestic violence assaults when the hotel licence concentration exceeded 2 per 1,000 of population. Based on this research, BOCSAR expressed the view at p 9 and 10 that the effect of an increase in hotel concentration on domestic violence and non-domestic violence assaults was much more pronounced than it was for packaged liquor licence concentration. Consistently with these findings, the authors warned, at p 12, that “new hotel licences in areas where the concentration of hotels is already above two per 1,000 residents should be of particular concern to regulatory authorities”. The authors did not give the same warning to regulators about the impact of an increase in the concentration of packaged liquor licences.

Do the findings in the BOCSAR article allow the Tribunal to draw the inference that granting the licence will lead to an increase in assaults in Kurri Kurri?

53. The findings in the BOCSAR article provide probative evidence that, as a generalisation across most Local Government Areas in NSW, an increase in packaged liquor licences beyond 0.75 per 1,000 of population will lead to a sharp upturn in domestic violence assaults and an upturn in non-domestic violence assaults.

54. The Authority provided evidence of the concentration of packaged liquor licences in NSW, in the Cessnock City Council local government area, and in Kurri Kurri. (See p 76 of the s 58 documents.) As at 28 August 2017, the Cessnock Local Government Area had 57 packaged liquor licences and a population of 55,560 people, giving a concentration of 1.02 per 1,000 of population. If one more packaged liquor outlet is added, the concentration would increase to 1.04 per 1,000 of population. That is above the point at which BOCSAR’s research suggests that the rate of domestic assaults starts to increase sharply and the rate of non-domestic assaults starts to increase less sharply.

55. Mr Hatzis also calculated the concentration for the suburb of Kurri Kurri. The figure, based on a population of 6,044 people, was calculated at 0.66. He acknowledged that, if one more packaged liquor outlet were added, the concentration would exceed 0.75 per 1,000 of population. I do not know whether BOCSAR’s findings in relation to local government areas can validly be extrapolated and applied to a town of 6,000 people. Without some evidence that the findings can be manipulated in that way, I place no weight on Mr Hatzis’ submission.

56. The parties also made various submissions about the concentration of hotel licences in Kurri Kurri and in the Cessnock Local Government Area. The BOCSAR article (at p 2) cited research in the United Kingdom which expressed the view that “it is important to disaggregate outlet types in order to get a better understanding of the relationship between the concentration of licensed premises and problem levels in particular locations”. Other research cited at p 2 of the BOCSAR article found that, “there can be important differences across jurisdictions in terms of which types of licences are most problematic”. The BOCSAR article also disaggregated the outlet types. I have given no weight to statistics about hotel licence concentration because there was nothing drawn to my attention which supports a correlation between the concentration of hotel licences and the social impact of any increase in packaged liquor licences.

57. The Authority suggested that alcohol consumption is likely to be greater and alcohol related harms are likely to be more common in areas where alcohol is available at a lower price or more conveniently. First, there is no evidence that alcohol will be available at a lower price at the proposed outlet. Secondly, no research was brought to my attention supporting these propositions and common sense and experience are not sufficient to conclude that granting an extra packaged liquor licence in Kurri Kurri will increase the rates of assault in the area or have any other negative social impact.

58. Mr Smith relied on evidence from two sources which he said suggests that an increase in concentration of packaged liquor licences would not result in an increase in consumption. His thesis, as I understand it, was that if there is no increase in consumption, there would be no corresponding increase in assaults, in Kurri Kurri or the local government area.

59. The first source of evidence showed that from 2006 to 2014 national consumption of alcohol has fallen, even though the number of packaged liquor licences has substantially increased. That phenomenon is shown in graphic form in Mr Hatzis’ affidavit dated 20 June 2018 at par 30. While these statistics are interesting, and perhaps counter-intuitive, they do not allow me to draw the inference that another liquor outlet in Kurri Kurri will not have any negative social impacts.

60. The second source of evidence was evidence from Mr Duane to the effect that the proposed bottle shop would not lead to any increase in the quantity of alcohol sold. Mr Duane, who is an economist and a director of Location IQ, gave expert evidence to the Tribunal. The key opinion he expressed was that “there is not projected to be any supply-induced growth, i.e. new packaged liquor spending, as a result of the proposed store”. Sales would come from people buying from the new outlet rather than other stores in the so-called “catchment area”. He conceded that none of the data he relied on directly supported his opinion. It was based on his experience, taking into account the opening hours, the range of alcohol which is intended to be sold, the size of the store and the size of the trade catchment area that he defined.

61. Mr Duane’s evidence was the only expert evidence before me about the effect on consumption of granting the licence in this particular case. But I am not persuaded that he has taken into account the BOCSAR research. While that research focused on the relationship between outlet density and assaults (rather than consumption and assaults) it casts doubt on his opinion.

62. The findings in the BOCSAR article are objective facts from which the inference can be drawn that granting the licence is likely to lead to an increase in the rate of assaults in Kurri Kurri. That is a significant negative social impact.

Crime hotspots

63. BOCSAR produces maps which show those areas of NSW with the highest crime density (crime hotspots). Their methodology is explained in a publication titled “Understanding crime hotspot maps”, Issue paper no. 60, April 2011. One important point made at page 8 of that publication is that hotspots are determined by crime density and not by the number of crimes committed. A hotspot can be created from very few incidents if they are concentrated in a small area. The Authority made the point that if incidents are spread more evenly across a suburb, there will not be a hotspot.

64. The Authority acknowledged that the proposed premises are not located in any hotspots for any relevant offences. However, it submitted that there are hotspots for domestic assault, non-domestic assault and malicious damage to property in the suburb of Kurri Kurri. I note, however, that there were no hotspots for alcohol related assault.

65. There was also data in evidence which showed a comparison between the incidents of alcohol related assault in 2016 and 2017. For the town of Kurri Kurri, that rate was unchanged for incidents of alcohol related assault and declined for incidents of alcohol related assault (domestic assault). For the City of Cessnock local government area the rate declined for alcohol related assault and increased from 186.7 to 190.3 per 100,000 people for alcohol related assault (domestic violence). The Authority noted that this rate was well above the rate for NSW, which was 114.4 per 100,000 people.

66. The existence of crime hotspots does not suggest that granting the licence will have a negative social impact. There was no evidence of any relationship between an increase in the density of packaged liquor licences and the nature or incidence of crime hotspots. Similarly, neither the existing rates of assault, nor the trends in those rates, provide me with any probative evidence of the social impact of granting the licence.

Socio-economic disadvantage, indigenous population and young men

67. The Authority mentioned that both the local and broader community have significant Aboriginal populations: at [31] of the Reasons. Australian Bureau of Statistics figures for 2016 demonstrate that Aboriginal and Torres Strait Islanders comprised 7.2% of the Cessnock Local Government Area. Australia wide, the figure is 2.8%. Indigenous people comprise 7.6% of the Kurri Kurri’s population which is more than double the figure for NSW as a whole. The authority submitted that this was a “risk factor” because a high Aboriginal population leads to health harms.

68. Kurri Kurri is disadvantaged in comparison with other suburbs in NSW on the index of Relative Socio-economic Advantage and Disadvantage, ranking in the 1st decile. The local government area ranked in the 2nd decile when compared with other local government areas in NSW. The Authority submitted that this level of socio-economic disadvantage indicates that the residents of Kurri Kurri are vulnerable to alcohol-related harm.

69. There was no probative evidence suggesting that Aboriginal and Torres Strait Islander residents or residents who are already at a socio-economic disadvantage would be further disadvantaged by an increase in the concentration of packaged liquor licences. My understanding of the BOCSAR article is that it corrected for these factors so that the relationship between assaults and outlet concentration could be plotted. At p 11, the authors highlighted the fact that “the magnitude of the effects (of an increase in the concentration of packaged liquor licences beyond 0.75 per 1,000 of population) will vary across geographical areas with different population characteristics (e.g. socioeconomic disadvantage, age distribution). However, even taking into account those variations the article concluded that, “the form of the relationship will remain”. By way of example, the authors referred to a local government area with a higher proportion of younger males or a greater level of socio-economic disadvantage. Although those factors are predictive of higher assault rates, “the thresholds for liquor licence density above which assault rates are likely to increase markedly, will still be the same”.

Health related harms

70. The Authority submitted that data provided by NSW Health indicates that residents of the City of Cessnock local government area are being hospitalised as a result of alcohol-related health problems at a lower than average rate. However, residents are dying from alcohol-related health problems at a much higher than average rate. A Report of the Chief Health Officer in 2016 titled “Trends in Alcohol Use and Health-related harms in NSW” makes the general point that, “Adults across all socio economic groups are equally likely to drink at levels that place their long term health at risk”.

71. There was no probative evidence of the effect of an increase in concentration of packaged liquor licences on the health of the local or broader community.

Orders

The decision under review is affirmed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 21 September 2018