Withnell v The Liquor Commission
[2013] WASC 201
•28 MAY 2013
WITHNELL -v- THE LIQUOR COMMISSION [2013] WASC 201
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 201 | |
| Case No: | CIV:2688/2012 | 30 APRIL 2013 | |
| Coram: | McKECHNIE J | 28/05/13 | |
| 24 | Judgment Part: | 1 of 1 | |
| Result: | Order nisi granted and discharged Application for a declaration dismissed | ||
| A | |||
| PDF Version |
| Parties: | EDWARD HORACE WITHNELL THE LIQUOR COMMISSION COMMISSIONER OF POLICE FOR THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Liquor licensing Court and judges Whether Liquor Commission is a court Courts and judges Defining characteristics of a court Whether use of 'confidential police information' impermissibly restricts the Liquor Commission Supreme Court Whether restricted right of appeal impermissibly affects the Supreme Court as inconsistent with the repository of federal power |
Legislation: | Commonwealth of Australia Constitution Act, ch III Judiciary Act 1903 (Cth), s 39(c) Liquor Control Act 1988 (WA) Liquor Licensing Act 1988 |
Case References: | Attorney General v BBC (1981) AC 303 Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245 Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 295 ALR 638 Fardon v Attorney General of Queensland [2004] HCA 46; (2004) 223 CLR 575 Forge v Australian Investment and Security Commission [2006] HCA 44; (2006) 228 CLR 45 Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [2008] HCA 4; (2008) 234 CLR 532 Hancock v Executive Director of Public Health [2008] WASC 224 Huddart Parker & Co Pty Ltd v Morehead [1909] HCA 36; (1909) 8 CLR 330 International Finance Trust Co Ltd v NSW Crime Commission [2009] HCA 49; (2009) 240 CLR 319 Kable v Director of Public Prosecutions [1996] HCA 24; (1996) 189 CLR 51 K-Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4; (2009) 237 CLR 501 Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1; (2010) 239 CLR 531 Orellana-Fuentes v Standard Knitting Mill Pty Ltd [2003] NSWCA 146; (2003) 57 NSWLR 282 Owen v Menzies [2012] QCA 170, (2012) 265 FLR 392 Public Service Assn and Professional Officers' Assn Amalgamated (NSW) v Director of Public Employment [2012] HCA 58; (2012) 298 ALR 450 R v Kirby; Ex parte Boilermakers Society of Australia [1956] HCA 10; (1956) 94 CLR 254 Re Judiciary & Navigation Acts (Advisory Opinions case) (1921) 29 CLR 257 Shell Co Australia Ltd v Federal Commissioner of Taxation (1931) AC 275 State of South Australia v Totani [2010] HCA 39; (2010) 242 CLR 1 Trust Company of Australia Ltd t/as Stockland Property Management v Skiwing Pty Ltd t/as Café Tiffany's [2006] NSWCA 185; (2006) 66 NSWLR 77 Wainohu v State of New South Wales [2011] HCA 24; (20011) 243 CLR 181 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Applicant
AND
THE LIQUOR COMMISSION
First Respondent
COMMISSIONER OF POLICE FOR THE STATE OF WESTERN AUSTRALIA
Second Respondent
Catchwords:
Liquor licensing - Court and judges - Whether Liquor Commission is a court - Courts and judges - Defining characteristics of a court - Whether use of 'confidential police information' impermissibly restricts the Liquor Commission - Supreme Court - Whether restricted right of appeal impermissibly affects the Supreme Court as inconsistent with the repository of federal power
(Page 2)
Legislation:
Commonwealth of Australia Constitution Act, ch III
Judiciary Act 1903 (Cth), s 39(c)
Liquor Control Act 1988 (WA)
Liquor Licensing Act 1988
Result:
Order nisi granted and discharged
Application for a declaration dismissed
Category: A
Representation:
Counsel:
Applicant : Mr L M Levy SC
First Respondent : No appearance
Second Respondent : Mr A J Sefton
Solicitors:
Applicant : S C Nigam & Co
First Respondent : No appearance
Second Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Attorney General v BBC (1981) AC 303
Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245
Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 295 ALR 638
Fardon v Attorney General of Queensland [2004] HCA 46; (2004) 223 CLR 575
Forge v Australian Investment and Security Commission [2006] HCA 44; (2006) 228 CLR 45
Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [2008] HCA 4; (2008) 234 CLR 532
(Page 3)
Hancock v Executive Director of Public Health [2008] WASC 224
Huddart Parker & Co Pty Ltd v Morehead [1909] HCA 36; (1909) 8 CLR 330
International Finance Trust Co Ltd v NSW Crime Commission [2009] HCA 49; (2009) 240 CLR 319
Kable v Director of Public Prosecutions [1996] HCA 24; (1996) 189 CLR 51
K-Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4; (2009) 237 CLR 501
Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1; (2010) 239 CLR 531
Orellana-Fuentes v Standard Knitting Mill Pty Ltd [2003] NSWCA 146; (2003) 57 NSWLR 282
Owen v Menzies [2012] QCA 170, (2012) 265 FLR 392
Public Service Assn and Professional Officers' Assn Amalgamated (NSW) v Director of Public Employment [2012] HCA 58; (2012) 298 ALR 450
R v Kirby; Ex parte Boilermakers Society of Australia [1956] HCA 10; (1956) 94 CLR 254
Re Judiciary & Navigation Acts (Advisory Opinions case) (1921) 29 CLR 257
Shell Co Australia Ltd v Federal Commissioner of Taxation (1931) AC 275
State of South Australia v Totani [2010] HCA 39; (2010) 242 CLR 1
Trust Company of Australia Ltd t/as Stockland Property Management v Skiwing Pty Ltd t/as Café Tiffany's [2006] NSWCA 185; (2006) 66 NSWLR 77
Wainohu v State of New South Wales [2011] HCA 24; (20011) 243 CLR 181
(Page 4)
- McKECHNIE J:
1 The central issue on which this application stands or falls is whether the Liquor Commission is a court. It is not and so the application is dismissed.
The nature of the proceedings
2 The Applicant has been issued with a prohibition order preventing his entry into licensed premises for five years.
3 He applies for a writ of certiorari and a declaration on grounds:
1. Section 30 of the Liquor Control Act 1938 (sic) (WA) ('the Act') is invalid as it impairs the institutional integrity of the First Respondent and is repugnant to the Judicial process on the basis that:
1.1 pursuant to 30(1) of the Act, once the Commissioner of Police declares any information or document to be 'confidential', the licensing authority is bound to treat it as such whether or not it is properly so classified;
1.2 if the licensing authority makes any of the decisions set out at s.30(3)(a) of the Act, and the decision was made solely or partly on the basis of confidential police information provided to the licensing authority, the licensing authority is not required to give any reasons for the decision other than that the decision is made in the public interest.
2. Section 28(2a) of the Act is invalid as it is contrary to the principles of procedural fairness and natural justice on the grounds that the State legislature is not constitutionally competent to deprive a State Supreme Court of its supervisory jurisdiction in circumstances where an aggrieved person is prevented from appealing against the licensing authority's decision on the basis that it was made solely or partly on the basis of confidential police information provided to the licensing authority. Consequently the privative clause is invalid as being beyond State legislative power.
RELIEF SOUGHT
1. The whole of the Liquor Control Act 1938 (WA) be declared invalid on the basis that:
a) section 30 of the Liquor Control Act 1938 (WA) ('the Act') is invalid as it impairs the institutional integrity of the First Respondent and is repugnant to the Judicial process; and
- b) section 28(2a) of the Act is invalid as it is contrary to the principles of procedural fairness and natural justice on the grounds that the State legislature is not constitutionally competent to deprive a State Supreme Court of its supervisory jurisdiction and as such the privative clause is invalid as being beyond State Legislative power.
- 2. The determinations of the First Respondent made on 11 April 2012 in relation to the Applicant being prohibited from entering the following premises for a period of five years:
a. 'The Blue To The Bone' (License Number 6070020131) being licensed premises at 174 James Street Northbridge Western Australia; and
b. any other licensed premises within the meaning of the Act in Western Australia during the permitted hours of trading specified for those premises under Division 1 of Part 4 of the Liquor Control Act 1988, except premises licensed under a:
i) restaurant licence; or
ii) liquor store licence.
be quashed in its entirety or alternatively the determination in relation to the Application for a Prohibition Order pursuant to section 152B of the Liquor Control Act 1988 be quashed.
5 The Liquor Commission (first respondent) has filed a notice of intention to abide by decision. The substantive respondent is the Commissioner of Police.
6 There is a sufficient arguable case to grant an order nisi but it must be then discharged as there is no basis for certiorari and no basis for a declaration.
Why this matter came to court
7 On 2 April 2009 the Commissioner of Police lodged applications with the Director of Liquor Licensing seeking a prohibition order against the Applicant: Liquor Control Act 1988 (WA) s 152B.
8 On 2 November 2009 the Liquor Commission granted the prohibition order.
(Page 6)
9 On 1 June 2010 a Writ of Certiorari quashed the prohibition order.
10 On 19 April 2011 the Commissioner of Police lodged a new application for a prohibition order against the Applicant with the Director of Liquor Licensing. The application for a prohibition order was supported by two affidavits from Detective Superintendent James Migro, together with attachments. The second affidavit was served in a sealed envelope. The second affidavit and its attachments were classified as 'confidential police information' pursuant to Liquor Control Act: s 30(1).
11 The grounds advanced for a prohibition order were:
(1) the Applicant's lengthy and serious criminal history;
(2) the Applicant's membership of, and continuing association with, the Coffin Cheaters of WA, an 'Outlaw Motorcycle Gang' ('OMCG');
(3) the Applicant's suspected involvement in the supervision and management of the 'Blue To The Bone' Nightclub, in circumstances where at all material times he has not been a licensee or an approved manager; and
(4) the Applicant's suspected involvement in serious and organised crime.
12 On 28 April 2011 the Director of Liquor Licensing referred the matter to the Liquor Commission: Liquor Control Act s 24.
13 On 13 July 2011 the Liquor Commission conducted a directions hearing and ordered that a précis of the confidential material, prepared by the Commissioner of Police, be served on the Applicant's solicitors. A précis was supplied.
14 On 7 October 2011 the Liquor Commission subsequently ordered that the Commissioner of Police was not required to provide any further redacted police information to the Applicant.
15 After receiving the précis, the Applicant's solicitors requested the Liquor Commission to provide more information to enable the Applicant to respond properly. The Liquor Commission denied the Applicant the further information sought.
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16 An amended précis was provided to the Liquor Commission and the Applicant's solicitor by affidavit of Detective Superintendent Migro dated 12 February 2012.
17 On 21 February 2012, following a hearing, the Liquor Commission granted the following prohibition order against the Applicant in a determination dated 11 April 2012:
The application pursuant to section 152B(b) of the Liquor Control Act 1988 is granted and Mr Edward Horace Withnell is prohibited from entering for a period of five years:
a. 'The Blue To The Bone' (Licence Number 6070020131) being licensed premised at 174 James Street Northbridge Western Australia and;
b. any other licensed premises within the meaning of the Act in Western Australia during the permitted hours of trading specified for those premises under Division 1 of Part 4 of the Act, except premises licensed under a:
i) restaurant licence;
ii) liquor store licence.
19 The Liquor Commission found that, based on the confidential police report, and on the balance of probabilities, the Applicant's relationship with members of the Coffin Cheaters (OMCG) and associated links to the 'Blue To The Bone' Nightclub were such that grounds 2, 3 and 4 of the application were made out and therefore it was in the public interest to grant the prohibition order sought by the Commissioner of Police.
The defining characteristics of a court
20 A State Parliament cannot impose upon a court functions which substantially impair its defining or essential characteristics as a court.
21 The defining or essential characteristics of courts are not attributes to be plucked from a platonic universe of ideal forms. They are used to describe limits, deriving from ch III of The Constitution, upon the functions which legislatures may confer upon State courts and the commands to which they may subject them: Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 295 ALR 638 [67] - [68].
(Page 8)
22 It is neither possible nor profitable to make some single all embracing statement of the defining characteristics of a court: Forge v Australian Investment and Security Commission [2006] HCA 44; (2006) 228 CLR 45 [64].
23 Whilst it is neither possible nor helpful to state exhaustively what makes a court, there are certain defining characteristics which have been explained in a series of cases. The category of defining characteristics is still evolving.
24 The High Court has pronounced on the issue of judicial power and the nature of a court in cases conveniently commencing with Huddart Parker & Co Pty Ltd v Morehead [1909] HCA 36; (1909) 8 CLR 330; Re Judiciary & Navigation Acts(Advisory Opinions case) (1921) 29 CLR 257 through the Boilermaker's case (R v Kirby; Ex parte Boilermakers Society of Australia [1956] HCA 10; (1956) 94 CLR 254) to a series of more recent decisions beginning with Kable v Director of Public Prosecutions [1996] HCA 24; (1996) 189 CLR 51. The latest pronouncement is Condon v Pompano.
25 The Commonwealth Constitution limits the ability of Parliament to invest non-judicial functions on a federal court and for most of the 20th century the focus of cases about judicial power in the High Court was on the nature and limits of federal judicial power.
26 There is no such constitutional prohibition in respect of State courts: K-Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4; (2009) 237 CLR 501.
27 An institution failing to exhibit the defining characteristics of a court cannot be the repository of federal judicial power. Only a court of a State can be the repository of federal judicial power invested by the Judiciary Act pursuant to The Constitution ch III, s 77(iii).
28 In the late 20th century and continuing, the High Court began considering the defining characteristics of a State court to determine whether an attempted investiture of powers or curtailment of discretion by a State Parliament so altered the character of the institution under consideration that the legislation was invalid.
29 Cases in this latter category begin with Kable v Director of Public Prosecutions and include Fardon v Attorney General of Queensland [2004] HCA 46; (2004) 223 CLR 575; Forge v Australian Investment and Security Commission; Kirk v Industrial Relations Commission of
(Page 9)
- New South Wales [2010] HCA 1; (2010) 239 CLR 531; Public Service Assn and Professional Officers' Assn Amalgamated (NSW) v Director of Public Employment [2012] HCA 58; (2012) 298 ALR 450.
30 More recently a series of cases has dealt with an issue similar to that raised here, namely the extent to which confidential police information, sometimes referred to as criminal intelligence, can be withheld from a party to proceedings and yet be the basis of a finding by a court. The central theme in this series of cases remains the continuation, or not, of the institutional integrity of the court as a repository of the judicial power of the Commonwealth. Some cases have also considered the extent to which executive decision making impermissibly curtails the exercise of judicial power.
31 This series includes Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [2008] HCA 4; (2008) 234 CLR 532; International Finance Trust Co Ltd v NSW Crime Commission [2009] HCA 49; (2009) 240 CLR 319; Wainohu v State of New South Wales [2011] HCA 24; (20011) 243 CLR 181; State of South Australia v Totani [2010] HCA 39; (2010) 242 CLR 1; K-Generation v Liquor Licensing Court; Condon v Pompano.
32 I have not expanded the length of this judgment by a detailed exposition of the principles to be derived from each of the cases to which I have referred because they are not in issue between the parties.
33 Accepting that the category of defining characteristics of a court is still evolving, some characteristics of a court are clear:
• impartiality;
• independence of decision making;
• lack of legislative direction or control;
• general principles of open justice, though these may be modified;
• general principles of procedural fairness, though these may be modified;
The issue to be decided
34 The resolution of the question posed turns on the construction of the Liquor Control Act and in particular whether the Liquor Commission has
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- sufficient defining characteristics to be classified as a court and therefore a repository of the judicial power of the Commonwealth.
35 This issue is the reverse of most of the High Court authority where generally the issue is whether a State court was so prescribed by Parliament or Executive decision that it became incompatible with the essential characteristics of a court.
36 The question can be further refined into two questions:
• On a proper construction of the Liquor Control Act did Parliament intend to create a court?
• If not, did it nevertheless create a State court?
37 The answer to each subsidiary question is no, so the answer to the principal question is no.
The legislative history leading to the Liquor Commission
38 The Liquor Commission is established under the Liquor Control Act 1988 (WA). It is necessary to track the progress towards a Liquor Commission commencing from the substantial reforms to liquor licensing and control instituted in the Liquor Act 1970 (WA).
39 Many relevant changes were made by the Liquor and Gaming Legislation Amendment Act 2006 (WA) assented to on 13 December 2006. The amendment, among other things, changed the name of the Act to the Liquor Control Act 1988, abolished the Liquor Licensing Court and established the Liquor Commission. In order to avoid confusion I shall refer to the Act prior to the 2006 amendments as the Liquor Licensing Act and the Act subsequent to amendment as the Liquor Control Act.
The Liquor Licensing Act 1988 (WA)
40 The Liquor Licensing Act repealed and replaced the Liquor Act 1970 (WA). The Liquor Licensing Act established a licensing authority comprising the Liquor Licensing Court and the Director of Liquor Licensing (s 7(1)). The Liquor Licensing Court was established by s 8. The court established under the Liquor Act was preserved and continued as a court of record, with an official seal and the jurisdiction conferred on it by the Liquor Licensing Act. The court was constituted by the Liquor Licensing Court Judge (s 8(3)) and it was an 'inferior court' within the Vexatious Proceedings Restriction Act 1930 (WA).
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41 The Liquor Licensing Act 1988 created a position called Liquor Licensing Court Judge (s 9(1)).
42 The Liquor Licensing Court Judge was a person eligible for appointment as a District Court Judge entitled to be addressed as 'Your Honour' and with the same protection and immunities as a judge in respect of Supreme Court proceedings. The Liquor Licensing Court Judge, in common with other superior court judges, held office during good behaviour and could only be removed by the Governor upon the address of both Houses of Parliament to remove the judge from office (s 9(3)). Salary and entitlements were the same as a District Court Judge (s 9(6)). A person appointed to be the judge shall not practise as a lawyer (s 9(8)).
43 In 2000, amendments altered the judicial status by requiring that the Liquor Licensing Court Judge be a District Court Judge or Commissioner, nominated by the Chief Judge.
44 Division 5 sets out proceedings before the licensing authority. It enjoins the licensing authority to act without undue formality, not be bound by the legal rules relating to evidence or procedure but may obtain information as to any question that arises for decision in a manner it thinks fit and make its determination the balance of probabilities: (s 16(a) - s 16(b)).
45 The licensing authority when constituted by the court may exercise in Chambers any jurisdiction of the court except the hearing of applications for a new licence, or for removal, where an objection is lodged and not withdrawn (s 16(2)(b)).
46 The court may appoint counsel to argue or make representations as to any matter before the court, or appoint an independent expert to inquire into and report upon any question of fact or opinion not involving a question of law (s 16(6)).
47 For the purpose of the Evidence Act 1906 (WA) the judicial proceedings of the licensing authority, however constituted, are deemed to be proceedings of a court within the Evidence Act (s 16(7). The proceedings shall be in public unless the court directs that a hearing or part of a hearing shall take place in private: (s 16(8)).
48 If the court is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, the court may direct that a hearing or part of a hearing shall take place in private and give directions as to the person who may be present, and give
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- directions prohibiting or restricting the publication of evidence given before the licensing authority, or of matters contained in documents lodged with the licensing authority and give directions prohibiting a restricting disclosure of evidence etc: (s 16(9)).
49 Subject to orders of a kind prohibiting or restricting disclosure of information the court shall take as the basis of its consideration the principle that it is desirable that proceedings should be public and evidence given before the court and the contents of documents lodged or received should be made available to the public and all the parties (s 16(10)) and shall, subject to that, ensure that each party is given a reasonable opportunity to present its case and, in particular, to inspect any documents to which the licensing authority proposes to have regard: (s 16(11)).
50 The Liquor Licensing Act provides for representation personally, by counsel, or a representative of an association: (s 17). The licensing authority has power to issue a summons for personal attendance and require production of records and to require any person who is a party to take an oath or affirmation and to answer a question put to that person: (s 18).
51 The court has power to enforce its orders: s 19. It has and may exercise the same power and authority, to compel obedience to and for punishing disobedience of any judgment or order of the licensing authority, as the Supreme Court may exercise: (s 19(1)).
52 If a monetary penalty is imposed (s 19(2)) or the court makes an order for payment of costs, the amount of the penalty or costs is to be paid and its payment may be enforced under pt 4 of the Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA).
53 If a party is in contempt in a manner defined by the statute, by s 20 the Liquor Licensing Court Judge may direct the apprehension of the person and by warrant, sealed with the seal of the court and signed by the judge, commit the person to imprisonment and impose any penalty or combination of penalties that may be imposed by a District Court Judge.
54 Costs of an incidental to all proceedings to be determined by the court, shall be in the discretion of the court: (s 21). The Liquor Licensing Court judge may make Rules of Court: (s 22).
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55 The Director may refer matters to the court (s 24). Any party dissatisfied with a decision made by the Director may apply to the court for review of that decision: (s 25).
56 The court may state a case on a question of law to the Supreme Court. A question of law arising on a case stated under s 27 shall be determined by the Court of Appeal.
57 Appeals are provided for by s 28 to the Supreme Court. They are restricted to questions of law. The appeal is to be heard and determined by the Court of Appeal.
The Liquor Control Act 1988 (WA)
58 By its long title:
An Act to regulate the sale, supply and consumption of liquor ... to provide for orders that may prohibit persons for being employed at, or from entering licensed premises, to repeal the Liquor Act 1970.
59 Part 2 is entitled The licensing authority. The licensing authority comprises (a) the Liquor Commission; and (b) the Director of Liquor Licensing, and may be constituted by either, but the jurisdiction which may be exercised by it depends upon the manner in which it is constituted and the powers conferred by this Act: s 7(1).
60 Section 7 also delineates the responsibilities between the Director of Liquor Licensing and the Liquor Commission.
61 The Commission is established (s 8) and has the jurisdiction conferred by the Liquor Control Act and any other written law (s 9(1)). The Members of the Commission are provided by div 2A. The Commission is to have a Chairperson and other members as determined by the Minister. The Chairperson and other members are appointed in writing by the Minister. A person may be appointed as a Member if, in the opinion of the Minister, the person has knowledge or experience relevant to the functions of the Commission. The Minister is to ensure at least one member is a lawyer: (s 9B).
62 The term of appointment for a member is to be fixed in the instrument of appointment and is to be not longer than five years: (s 9C(2)). The Minister may terminate the term of office of a member in specified circumstances (s 9E(1)). A member may resign by giving the Minister a signed letter of resignation: (s 9E(2)). The Minister may grant leave of absence to a member: (s 9F).
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63 Remuneration, allowances and other conditions of office of a member are to be determined by the Minister after consultation with the Public Sector Commissioner subject to the Salaries and Allowances Act 1975 (WA) if that Act applies to the member. The remuneration, allowances and conditions of the office of a member are not to be varied while the member is in office so as to become less favourable to the member: (s 9H(1) - (3)).
64 Decisions are to be given in writing: (s 9I).
65 The Commission is to have a seal: (s 9J). All courts and persons acting judicially are to take notice of the official seal of the Commission affixed to a document: (s 9J).
66 The chairperson is required to submit an annual report to the Minister: (s 9K).
67 A member has, in the performance of his or her functions as member, the same protection and immunity as a judge of the Supreme Court. A person representing a party in proceedings in the commission has the same protection and immunity as a lawyer representing a party in proceedings in the Supreme Court as do parties and their representatives and witnesses: (s 9M).
68 In Proceedings before the licensing authority (div 5) the licensing authority shall act without undue formality, may obtain information as to any question that arises for decision in such a manner as it thinks fit and make its determination on the balance of probabilities: (s 16(1)).
69 The licensing authority, when constituted by the Commission, may sit at such times and such places as it thinks fit and may exercise in Chambers any jurisdiction of the Commission: (s 16(2)).
70 The Commission may appoint counsel to argue or make representations, or an independent expert to enquire and report on any question of fact or opinion not involving a question of law: (s 16(6)).
71 The Evidence Act 1906 (WA) does not apply to the proceedings of the licensing authority however constituted: (s 16(7)).
72 The hearing of a proceeding before the Commission is to be in private unless the Commission considers that in the circumstances of the case the hearing should be in public: (s 16(8)).
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73 When the hearing before the Commission is in private, the Commission may give directions as to the persons who may be present and give directions prohibiting or restricting the publication of evidence given or of matters contained in documents lodged and give directions prohibiting or restricting the disclosure, to some or all of the parties to a proceeding: (s 16(9).
74 In considering whether to allow disclosure the Commission shall take as the basis of its consideration the principle that it is desirable that evidence given before the Commission and the contents of documents lodged should be made available to all the parties. But subject to that shall ensure that each party is given a reasonable opportunity to present its case and inspect documents: (s 16(10) and s 16(11)).
75 The parties may appear personally, by counsel, or by an officer or employee representing an association: (s 17).
76 The authority has power to summons witnesses or require the production of documents, records and require any person appearing before it to take an oath or affirmation and require a person to answer questions: (s 18).
77 A person seeking to enforce a decision may file in the Supreme Court a copy of the decision. On filing, the decision is taken to be a decision of the Supreme Court and may be enforced accordingly: (s 18A).
78 Any monetary penalty imposed may be enforced as if it was a fine under pt V of the Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA): (s 19(2)).
79 The Commission has no power to deal with a contempt but the Chairperson may report the matter to the District Court and the District Court has jurisdiction to deal with the matter as if it were a contempt of the District Court: (s 20).
80 Costs are in the discretion of the Commission (s 21). The Commission may make rules regulating the practice and procedure in respect costs and charges: (s 21).
81 The Director may refer a matter to be determined by the Director or any question of law arising from a matter for hearing and determination by the Commission: (s 24).
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82 A person dissatisfied with a decision made by the Director may seek review by the Commission: (s 25).
83 The Commission may state a case on the question of law to the Supreme Court to be determined by a single judge: (s 27).
84 Section 28 provides for appeals. Section 28(2) provides that no appeal lies against a decision of the Commission constituted by 3 members except to the Supreme Court on a question of law and otherwise restricts appeals. The right of appeal against a decision of the Commission constituted by 3 members is to a single judge of the Supreme Court.
Confidential information
85 The Liquor Licensing Act dealt only generally with confidential information within s 16. The Liquor Control Act comprehensively deals with the creation of confidential information and its use by the Commission. 'Confidential police information' means any information or document classified by the Commissioner of Police as confidential under s 30(1): Liquor Control Act s 3.
Confidential police information
30. Confidential police information, use and protection of
(1) For the purposes of this section, the Commissioner of Police may classify as confidential any information or document held by the Commissioner of Police.
(2) Despite any other provision of this Act, any information or document provided by the Commissioner of Police to the licensing authority for the purposes of this Act must not be published or disclosed by the licensing authority to any person (except ... a court or a person to whom the Commissioner of Police authorises its disclosure) if the information or document is classified as confidential police information.
(3) If -
(a) ...
(v) makes or varies a prohibition order in respect of a person under Part 5A;
- and
- (b) the decision to do so is made solely or partly on the basis of confidential police information provided to the licensing authority,
the licensing authority is not required to give any reasons for the decision other than that the decision is made in the public interest.
...
- (6) In any proceedings under this Act (other than proceedings for an offence), the Director, the Commission or a court -
(a) must, on the application of the Commissioner of Police, take all reasonable steps to maintain the confidentiality of confidential police information, including steps -
(i) to receive evidence and hear argument about confidential police information in private and in the absence of any party to the proceedings other than the Director or the Commissioner of Police or their representatives; and
(ii) to prohibit the publication of evidence about confidential police information;
- and
(b) may take evidence consisting of or relating to confidential police information by way of an affidavit of a member of the Police Force of or above the rank of Superintendent.
(7) The Commissioner of Police must not delegate the function of classifying information or documents as confidential police information except to a Deputy Commissioner of Police or an Assistant Commissioner of Police.
86 No appeal lies against a decision of the Commission constituted by 3 members if the decision was made solely or partly on the basis of confidential police information (s 28(2a)).
On a proper construction of the Liquor Control Act did Parliament intend to create a court?
87 It is not really in contention, nor could it be, that the Liquor Licensing Court had all the attributes and accoutrements of a court and
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- was the repository of judicial power. The Liquor Control Act kept many of the functions of the court within the Liquor Commission but also provided for differences. The second respondent argues that the differences are significant and manifest Parliament's intention that the Liquor Commission should not be a court. The Applicant argues that the differences do not affect the inherent characteristics of the Liquor Commission and it is a court.
88 In light of the changes to key areas of power and the change of name from 'Court' to 'Commission', the Parliamentary intention to be inferred is that the Commission is not to be a court capable of receiving the judicial power of the Commonwealth but it is to be an administrative tribunal.
89 The same view about the parliamentary intention was reached by Martin CJ in Hancock v Executive Director of Public Health [2008] WASC 224 [51].
If not, did it nevertheless create a State court?
90 The development of the Liquor Control Act into its present form becomes significant. I have earlier traced that development. I now summarise, though not exhaustively, the main similarities and differences between the Licensing Court and the Liquor Commission. The Applicant relies on the similarities. The respondent relies on the differences. Obviously, the answer is not an arithmetical majority but a qualitive assessment of the similarities and differences. The technique of examining the statute for sections compatible with or antithetical to the conclusion that a tribunal is or is not a court was used by the Court of Appeal in Orellana-Fuentes v Standard Knitting Mill Pty Ltd [2003] NSWCA 146; (2003) 57 NSWLR 282 [37] - [52] (Ipp JA).
Similarities
Licensing Court and Liquor Commission:
• official seal;
• no undue formality;
• not bound by legal rules relating to evidence and procedure;
• makes determination of the balance of probabilities;
• may sit where and when it sees fit;
• may exercise jurisdiction in chambers;
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- • may summon witnesses;
• may administer oaths and affirmations;
• may make rules and regulate practice and procedure;
• may make orders as to costs
Differences
|
|
• appointment by Governor; • later District Court judge; • removal both Houses of Parliament; • no requirement to report; • court of record; • can punish for contempt; • can enforce judgment or order; • proceedings generally in public; • Evidence Act applies; • power to State court to Court of Appeal; • appeal to Court of Appeal |
• appointment by Minister; • removal by Minister; • annual report to Minister; • not statutorily designated a court; • can refer possible contempt to District Court; • decisions filed in Supreme Court for enforcement; • proceedings generally in private; • Evidence Act does not apply; • powers to State court to single judge of Supreme Court; • appeal to single judge of Supreme Court |
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91 From the legislative history it is clear that the Liquor Commission replaced a court. At the same time, Parliament removed many of the trappings of a court.
92 The change of name from Licensing Court to Liquor Commission is indicative that it is not a court: Trust Company of Australia Ltd t/as Stockland Property Management v Skiwing Pty Ltd t/as Café Tiffany's [2006] NSWCA 185; (2006) 66 NSWLR 77 [51].
93 An aspect of a court of law is that it is comprised, either exclusively, or at least predominantly, of judges: Trust Company v Skiwing [52].
94 Although I have listed some similarities between the Licensing Court and the Liquor Commission, Lord Sankey makes observations in Shell Co Australia Ltd v Federal Commissioner of Taxation (1931) AC 275 that are relevant:
(1) A tribunal is not necessarily a court in this strict sense because it gives a final decision.
(2) Nor because it hears witnesses on oath.
(3) Nor because two or more contending parties appear before it between whom it has to decide.
(4) Nor because it gives decisions which affect the rights of subjects.
(5) Nor because there is an appeal to a court.
(6) Nor because it is a body to which a matter is referred by another body (297).
95 In Attorney General v BBC (1981) AC 303, after referring to Lord Sankey's list of negatives, Lord Edmund-Davies listed other characteristics, the presence of which are also not decisive:
(1) The fact that the tribunal is called a 'court'.
(2) The necessity of sitting in public.
(3) The fact that the tribunal has power to administer oaths and hear evidence on oath.
(4) The fact that prerogative writs may issue in relation to the tribunal's proceedings.
(5) The fact that absolute privilege against an action for defamation protects those participating in its proceedings (348).
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Conclusion: The Liquor Commission is not a court
96 I accept that there are some similarities between the Liquor Commission and a court. One similarity is that each is not bound by the rules of evidence. This is an indicator of an administrative body but is not determinative: K-Generation v Liquor Licensing Court [82].
97 The similarities do not compel the conclusion that the Liquor Commission is a court. The differences between the Liquor Commission and the Licensing Court (or any court) are decisive when measured against the defining characteristics of a court.
98 The Commission is not called a court and its members are not called judges or other appellations commonly ascribed to judicial officers such as magistrates. Its members are not required to have qualifications for appointment as a judge of the court. Indeed, except for one, they are not required to be lawyers.
99 Members are appointed and may be dismissed by the Minister and the Commission must report annually to the Minister. Their independence is less than that required of a court.
100 The Liquor Commission cannot punish for contempt.
101 It is required to sit generally in private. The principle of open justice generally requires a court to sit in public.
102 The Liquor Commission cannot directly enforce its orders. It is not essential to the exercise of judicial power that it has direct power to enforce its decisions: Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 269. I attribute less weight to this factor.
103 Rights of appeal are broadly similar to rights of appeal from decisions of non-judicial members of the State Administrative Tribunal to a single judge of the Court of Appeal.
104 By contrast, rights of appeal from decisions of judicial members of the State Administrative Tribunal are similar to rights of appeal in respect of District and Supreme Court judges and are to the Court of Appeal.
105 Unlike the Licensing Court, the Liquor Commission is not a court of record.
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106 Some administrative tribunals, despite their names have been held to be courts: Owen v Menzies [2012] QCA 170, (2012) 265 FLR 392. Some have not: Trust Company v Skiwing.
107 Some courts have been held to be an administrative tribunal despite the name: Attorney General v BBC. Nevertheless, a designation as a court is strongly indicative that a body is a court: K-Generation v Liquor Licensing Court [219].
Conclusion
108 I hold that the Liquor Commission is not a court. Parliament did not intend that the Liquor Commission be a court. The differences between the defining characteristics of the Liquor Commission and the defining characteristics of a court are so pronounced that it is obvious the Liquor Commission cannot be the repository of the judicial power of the Commonwealth. That being the case, there is no constitutional prohibition on Parliament directing the Liquor Commission in respect to confidential police information. The Liquor Control Act s 30 is valid.
The validity of the Liquor Control Act s 28(2)(a)
109 The Liquor Control Act:
No appeal lies against a decision of the Commission constituted by 3 members if the decision was made solely or partially on the basis of confidential police information (s 28(2a).
110 It may be accepted that the Liquor Commission has no power to review the classification of confidential police information: Liquor Control Act s 3, s 30.
111 I will assume, without deciding, that in this respect, the Liquor Control Act is significantly different from those Acts under consideration in K-Generation v Liquor Licensing Court and Condon v Pompano. However, the Liquor Commission is not compelled to make a prohibition order and may assign what weight is appropriate to the confidential police information. In assigning weight it may properly take into account the restriction on a respondent who has not seen the information to have a reasonable opportunity to make submissions or be heard in relation to the application. The Liquor Commission has power also to decide the relevance and reliability of the confidential police information.
112 The Applicant has not sought to appeal and there is no action by the Liquor Commission relative to s 28(2a) which can be quashed or
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- prohibited. A prerogative writ cannot be directed to the Liquor Commission in respect of the validity of the Liquor Control Act s 28(2a).
113 Nevertheless, a declaration as to invalidity might be made in appropriate circumstances. I am prepared to assume, without deciding, that the factual circumstances are appropriate for a declaration.
114 However, the Liquor Control Act s 28(2a) does not impermissibly interfere with the constitutional integrity of the Supreme Court or restrict its supervisory jurisdiction to grant prerogative relief. If it did, then s 28(2a) is invalid: Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531. But it does not.
115 There is no automatic right of appeal from a decision of a primary court or a tribunal acting judicially. A right of appeal is granted by a statute. Parliament, when giving power to appeal may also condition the exercise of that power. The Liquor Control Act grants power to appeal against certain decisions. The restriction on the right to appeal does not affect the integrity of the Supreme Court.
116 Unlike the Industrial Relations Act (NSW) s 179, the subject of the decision in Kirk, the Liquor Control Act contains no privative provisions purporting to restrict the Supreme Court's supervisory jurisdiction to grant prerogative relief or make a declaration. In fact the Applicant has already obtained prerogative relief in respect of the actions of the Liquor Commission.
117 This application for prerogative relief fails on its merits, not because of any impairment to the constitutional integrity of the Supreme Court.
The appropriate orders
118 The Applicant was obliged to establish an arguable case for prerogative relief for an order nisi to issue calling on the respondents to show cause why an order absolute should not be made.
119 In accordance with the modern practice of this court, and with the agreement of the parties, after programming directions were made, the parties returned to court to argue the substance of the application. In most cases, and this is one, the course followed is more convenient, quicker and cheaper.
120 The application has sufficient merit for an order nisi to be issued but after full hearing, in accordance with these reasons, the order nisi must be discharged.
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121 Because of the practice I have referred to, the second respondent should not have incurred extra costs solely as a result of the order nisi application.
122 The formal order is:
1. Order nisi for a writ of certiorari directed to the Liquor Commission granted and discharged.
2. Application for a declaration dismissed.
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