4 Boys (NSW) Pty Ltd v Independent Liquor and Gaming Authority

The Act

1. As the Act does not materially distinguish between hotels, clubs and other venues, all references to hotels will be taken to be references to hotels, clubs and other venues where gaming machines can be located.
2. Since its enactment in 2001, the Act has made provision for gaming machines in hotels in New South Wales. Its objects, as expressed in s 3, are as follows: "(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."
3. Section 10 of the Act provides that the maximum number of GMEs for the State is 99,000. The Authority may not approve more than 30 gaming machines for any one hotel.
4. In substance, a hotel may only allow its patrons to use gaming machines if it has a GME for each machine and the total number of machines is within the threshold for the hotel: s 56. GMEs may, subject to the approval of the Authority, be sold (Division 2 of Part 3) or leased (Division 2A of Part 3). In some circumstances, they are forfeited, either in whole if they are not used, or, in part, when they are traded. Thus, for example, if a hotel transfers GMEs, the transfer must comprise one or more blocks of 2 or 3 GMEs. One GME is forfeited to the Authority for each transfer block.
5. If the Authority approves the transfer of GMEs, the threshold of the seller is reduced (by the total number transferred) and the threshold of the purchaser is increased (less the number forfeited): s 20.
6. Country hotels are, in certain circumstances, exempt from the transfer block and forfeiture requirements: s 20A. For example, a country hotel with a GME of less than eight, may transfer one GME in any period of 12 months to another country hotel: s 20A(2). A block of six GMEs may be transferred without forfeiture if the threshold for the transferring hotel is not more than six, the transfers are completed at the same time and the transfers will result in the GMEs for the transferring hotel being reduced to zero: s 20A(3).
7. Part 4, entitled "Gambling harm minimisation measures", makes provision for the Authority to set a threshold for each hotel or club premises: s 32(1). The Authority may increase or otherwise vary the threshold for a hotel "in accordance with [the] Act": s 32(5). There is no express provision entitling a hotel proprietor to apply to reduce a threshold.
8. Section 33 provides for the Authority to classify "local statistical areas" of the State. Such areas correspond with those used for the Commonwealth census. I understood it to be common ground that the classification and ranking of such areas is designed to protect the populations in lower socio-economic areas from excessive GMEs because of the social harm which the use of gaming machines may cause, which was accepted to be particularly pronounced in such areas.
9. Section 34 relevantly provides: "34 Application to increase gaming machine threshold (1) A hotelier or club may apply to the Authority to increase the gaming machine threshold for the hotel or the premises of the club (a threshold increase application). … (3) A threshold increase application must comply with the requirements of this Division and the regulations. (4) The Authority may approve a threshold increase application only if the Authority is satisfied that the requirements of this Division and the regulations have been complied with in relation to the application. … (5) If the application is approved, the Authority may increase the gaming machine threshold for the relevant venue in accordance with the Authority's approval. (6) Nothing in this Division requires the Authority, if it approves a threshold increase application, to increase the relevant venue's gaming machine threshold by the number to which the application relates. …"
10. Section 35(1) provides, in substance, that, with certain exceptions, an application to increase the threshold must be accompanied by a LIA of a particular class. Section 35(2) contains exceptions which include that the hotel from which the GMEs are proposed to be transferred is in the same local statistical area as the transferee hotel.
11. Section 36(1) provides that, if a LIA is required to be provided with an application for an increase in threshold, the Authority may not approve that application unless it also approves the LIA. Relevantly, the Authority may only approve a LIA if it is satisfied that the proposed increase "will provide a positive contribution towards the local community" and the LIA has adequately addressed any community concerns: s 36(3)(c). A LIA is subject to conditions which may be specified by the Authority. If the conditions are not complied with, the LIA has no effect: s 36(7).
12. Section 36A provides: "36A Community benefit requirement - payment of money to Responsible Gambling Fund (1) A community benefit requirement cannot be wholly or partly satisfied by a payment of money except a payment to the Secretary under the Casino Control Act 1992 for payment into the Responsible Gambling Fund as a community benefit payment under this Act. (2) A community benefit payment by a venue is to be taken into account by the Authority in the determination of a threshold increase application as if it were a contribution to the local community where the venue is situated. (3) In this section, community benefit requirement means a requirement under section 36 that a proposed increase in the gaming machine threshold for a venue will - (a) provide a positive contribution towards the local community where the venue is situated, or (b) have an overall positive impact on the local community where the venue is situated."
13. Section 36C provides that the Authority may publish guidelines, including about what it considers to be a positive contribution to a local community. I was informed that the applicable guidelines published pursuant to s 36C provide a formula for the calculation of a community benefit payment by reference to the annual pre-tax profit per machine. As set out above, this formula was applied to arrive at the figure for the community benefit payment to be made by the plaintiff in the present case.
14. If a venue obtains an increase in its threshold, it may acquire GMEs up to the threshold but only within a limited period: s 37. If it does not acquire the requisite GMEs, the Authority is required to decrease the threshold: s 37(4). This provision was referred to as the "use it or lose it" provision.
15. The Act expressly authorises the Authority to reduce the threshold for a given hotel, including in the following circumstances: 1. where GMEs have been transferred to another hotel: s 20(7) and (8); 2. where GMEs have been leased to another hotel: s 25B(1)(e) and (2); 3. where permits have been transferred: s 27; and 4. under the so-called "use it or lose it" provision: s 37(4).
16. As referred to above, the Authority contended that s 48 of the Interpretation Act (set out below) was excluded by contrary intention, having regard to the number of specific provisions in the Act which conferred a power of revocation on the Authority. The Authority instanced the provisions which are summarised in the table below. Power conferred Express power to revoke Authority may determine from time to time the maximum number of gaming machine entitlements to be permitted in Fairfield LGA or a "restricted increase area": s 32A (Part 4, Div 1). The Authority may vary or revoke a determination at any time: s 32A(5). General 6-hour shut down period between 4am and 10am: s 39 (Part 4, Div 2) subject to Authority's power to approve different shutdown periods: ss 40, 40A and 41. An approval under Part 4, Division 2 "may be revoked at any time by the Authority for such reasons as the Authority thinks fit: s 42(3)(c). The Authority may give directions concerning a failure to comply with the primary purpose test (as referred to in s 15 of the Liquor Act 2007 (NSW)) in respect of the hotel: s 59. The Authority may revoke or vary a direction given under s 59: s 59(6). The Authority may declare that a device is an approved gaming machine for the purposes of the Act: s 64. The Authority may revoke a declaration in force under s 64 if it considers that it is necessary to do so in the public interest or if it is a temporary declaration: s 64(6). Subsections (7) and (8) and s 65(1)(c) provide mechanical provisions if the declaration is revoked. Part 7 of the Act establishes a system of "gaming-related licences" (the categories of which are set out in s 83), including establishing offences for certain activities (e.g. manufacture of gaming machines) which do not apply if the person holds the relevant licence. The Authority may vary or revoke a condition of a gaming-related licence that has been imposed by the Authority at any time on the application of the licensee or the Commissioner of Police, or at any time on the Authority's own initiative: s 104(4). Section 136 empowers the Minister to grant a "CMS [Centralised Monitoring System] licence" to a person (i.e. a licence authorising a person to operate a centralised monitoring system which monitors the operation of approved gaming machines and facilitates the calculation and collection of tax payable). The Minister may revoke a condition imposed on such a CMS licence: s 138(1). Section 153 empowers the Minister to grant a "links licence" to a person (e.g. a licence authorising a person to operate an inter-hotel linked gaming system). Section 155(1) empowers the Minister to revoke a condition imposed on such a links licence. Section 198 empowers a court, when imposing a penalty for an offence committed under the Act or the Gaming Machines Regulation 2019 (NSW), to impose various additional penalties such as cancellation of a relevant licence. Section 198 (d) empowers the court to revoke a condition to which the licence is subject. Schedule 1, cl 35(2) empowers the Authority to revoke any conditions imposed by the former Liquor Administration Board and the former Licensing Court.

1. Although reference was made in submissions to the Gaming Machines Regulation 2019 (NSW), it is not necessary to address the Regulation as it cannot be used to construe the Act.

Casino Control Act 1992 (NSW)

1. Community benefit payments required under the Act are to be applied for the benefit of local communities in which thresholds have increased: s 115B(2) of the Casino Control Act.

Interpretation Act 1987 (NSW)

1. Section 5(1) of the Interpretation Act provides that the Interpretation Act applies to all Acts, subject to contrary intention: s 5(2).
2. Section 43 of the Interpretation Act provides for an implied power to amend or repeal statutory rules and orders. Section 43(2) provides: "If an Act or statutory rule confers a power on any person or body to make an order (whether or not the order must be in writing), the power includes power to amend or repeal any order made in the exercise of that power."
3. Section 48(1) provides: "48 Exercise of statutory functions (1) If an Act or instrument confers or imposes a function on any person or body, the function may be exercised (or, in the case of a duty, shall be performed) from time to time as occasion requires."
4. It was common ground that decisions by the Authority were exercises of statutory functions within the meaning of s 48.

Interpretation Act 1897 (NSW)

1. Section 32(1), the statutory predecessor to s 48 of the Interpretation Act, relevantly provided: "(1) Where an Act confers a power or imposes a duty, then, unless the contrary intention appears, the power may be exercised, and the duty shall be performed from time to time, as the occasion requires."

Acts Interpretation Act 1901 (Cth)

1. Section 33 of the Acts Interpretation Act relevantly provides: "Exercise of powers and performance of functions or duties Powers, functions and duties may be exercised or must be performed as the occasion requires (1) Where an Act confers a power or function or imposes a duty, then the power may be exercised and the function or duty must be performed from time to time as occasion requires. … (3) Where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws) the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument. …"

The factual background

1. On 11 December 2019, the plaintiff applied to the Authority for an increase in the threshold for the Seaview Tavern from 20 to 24. Its application was accompanied by a Class 1 LIA, as required by s 35(3)(b). Its LIA offered a contribution of $405,651.67 over a period of 5 years to the Responsible Gambling Fund.
2. On 20 December 2019, Lifeline (a national charity offering 24-hour crisis support and suicide prevention services) opposed the plaintiff's application. It did so on the basis that Woolgoolga (where the Seaview Hotel is located) was a small community at the highest extreme of disadvantage with a known gambling problem for many of its population.
3. On 23 July 2020, the Authority wrote to the plaintiff's solicitors, calculating the figure to be paid of $401,919.21 (as set out above) and proposing that it be paid in five equal instalments of $80,383.84, the first of which was payable within six months of the grant and then annually thereafter. On 11 August 2020, the plaintiff consented to the proposed contribution.
4. Ultimately, at a board meeting on 17 March 2021, the Authority decided to approve the plaintiff's application for an increase in its threshold with the Class 1 LIA. On 23 April 2021, the Authority informed the plaintiff of the approval of the application under s 34 and noted the condition relating to the community benefit payment. On 8 June 2021, the plaintiff sought a four-month extension of time to pay the first instalment of $80,383.84 due to the COVID-19 pandemic. Its request was granted.
5. On 3 September 2021, the plaintiff entered into contracts to purchase the business of the Coutts Crossing Tavern (for $500,000) and the relevant land (for $2,800,000). It is not in issue that these contracts were completed on 9 November 2021. Shortly thereafter, the plaintiff, according to its solicitors, "learned that there were underutilised GMEs at [the Coutts Crossing Tavern], which it then sought to transfer to the Seaview Tavern". As at November 2021, the Seaview Tavern had 20 GMEs, four short of its newly increased threshold of 24.
6. On 10 November 2021, the plaintiff applied to the Authority: 1. for permission to transfer a single GME from Coutts Crossing Tavern to Seaview Tavern, without increasing the latter's threshold (the first application); and 2. for permission to transfer six GMEs from Coutts Crossing Tavern to Seaview Tavern and to increase the threshold of Seaview Tavern from 24 to 27 (the second application).
7. It was common ground that the reason for the applications was to take advantage of ss 20A(2) and (3) which permitted the plaintiff to transfer GMEs from one country hotel to another (in the same area) without forfeiting any GMEs to the Authority. Further, both applications were made on the basis that the Seaview Tavern's threshold at the time of the applications was 24. The first application (to transfer the single GME) could be accommodated within the threshold of 24. However, the second application required an increase of 3 to the threshold (from 24 to 27).
8. On 6 December 2021, the Authority approved the first application.
9. On 7 December 2021, the Authority approved the second application and imposed conditions on the hotel licence pursuant to s 53 of the Liquor Act 2007 (NSW) (the detail of which is immaterial to the issues to be determined). For some reason, the approval, which was sent by email to the plaintiff, did not come to the attention of those who were attending to this matter for the plaintiff until after 14 December 2021.
10. On 14 December 2021, the plaintiff wrote to the Authority in the following terms (which reflected its ignorance of the approvals set out above): "On or about 10 November 2021, 4 Boys Pty Limited lodged two (2) applications to transfer in total seven (7) gaming machine entitlements from Coutts Crossing Tavern to the licence of the Seaview Tavern, Woolgoolga (Seaview) (where it is the sub-lessee). The Coutts Crossing Tavern is in an adjacent SA2 to the Seaview Tavern and therefore, in accordance with clauses 20A(1) and 20A(3) of the Gaming Machines Act 2001 (Act), there was no requirement for an LIA to accompany the transfer application. The importance of this is that the transfer of the gaming machine entitlements did not activate the requirement to make a contribution to the Responsible Gambling Fund. The Seaview Tavern currently has a gaming threshold limit of 24. However, it is requested that the Authority not require Seaview Tavern to utilise that gaming machine threshold in circumstances where the application to transfer seven (7) entitlements is not required to be accompanies [sic] by an LIA. The proposal is that our client agrees to reduce its current threshold of twenty-four (24) to twenty (20) on the basis that the seven (7) gaming machine entitlements from the Coutts Crossing Tavern are transferred to the Seaview licence and for the avoidance of any doubt it will not be required to make a contribution to the Responsible Gambling Fund. My client asks the Authority to take into account that it has suffered two (2) years of financial hardship; not only have there been two (2) waves of Covid-19, but also, immediately preceding Covid, were the bushfires which placed significant economic strain not only on my client's business, but also on the whole of the region. My client has gone to significant expense to purchase the seven (7) gaming machine entitlements."
11. As can be seen from the text of the letter the plaintiff: 1. indicated that it would agree to reduce the threshold for the Seaview Tavern from 24 to 20; 2. sought the Authority's approval for a transfer of a total of seven GMEs from the Coutts Crossing Tavern to the Seaview Tavern; 3. sought that the condition of the 17 March 2021 approval requiring the plaintiff to contribute to the Responsible Gambling Fund would no longer apply; and 4. was unaware of the approvals given on 6 and 7 November 2021 and therefore did not know that the GMEs had already been transferred from the Coutts Crossing Tavern to the Seaview Tavern.
12. I infer that the plaintiff also assumed that the threshold for the Seaview Tavern would be increased from 20 to 27 because of the transfer of GMEs from the Coutts Crossing Tavern. Although the letter did not in terms ask the Authority to revoke its 17 March 2021 decision to approve an increase in the threshold, that was evidently the plaintiff's intention. In any event, the Authority treated the plaintiff's request as a request for a revocation.
13. On 19 January 2022, the Authority resolved to refuse the plaintiff's request for revocation. Its minutes relevantly recorded as follows: "3.3 Seaview Tavern, Woolgoolga - Request to revoke approval of a Class 1 Local Impact Assessment The Authority noted the application was in the relation to the Authority's approval of a gaming machine threshold (GMT) increase with a Class 1 Local Impact Assessment (LIA), seeking that such approval be revoked on the basis of financial hardship. The Authority noted that the venue has been represented throughout its recent applications by JDK Legal, which is well versed in gaming legislation, and that the applicant did not raise any issues or appeal any of the Authority's decisions at the relevant time. The Authority further noted that the gaming data reports indicated that the venue's current gaming revenue was close to double the revenue generated in comparable venues over the same period. The Authority noted that there are no legal provisions in the GM Act permitting the Authority to revoke its approval of the LIA. Outcome: The Authority resolved to refuse the application." [Emphasis in original.]
14. On 15 February 2022, the Authority informed the plaintiff that its application was refused because the Authority did not have power to revoke its approval of the LIA.
15. By letter dated 2 June 2022, the Authority demanded payment of the first instalment of the community benefit payment, which was due on 23 February 2022. On 27 June 2022, the plaintiff paid $80,383.84 to the Responsible Gambling Fund "under protest".
16. The facts set out above do not affect the question of statutory construction. Indeed, Ms Mirzabegian accepted that the answer would be the same, in the context of the present proceedings, if the Authority decided to increase the threshold in the morning and the hotel sought to have the increase undone that afternoon. However, the narrative sufficiently indicates that there is a real dispute between the parties such as to warrant, at least, declaratory relief as to the true construction of the Act and, in particular, whether the Authority has power under the Act to revoke its decisions of 23 April 2021, 6 December 2021 and 7 December 2021.

Whether the decisions have been made on any basis other than that the Authority did not have power to revoke its earlier decisions

1. Subject to the following matter, the Authority did not contend that the declarations ought be refused on discretionary grounds. The qualification is that Ms Mirzabegian contended that the decision to refuse revocation was not only made on the basis that the Authority lacked power to revoke but also on the merits (as reflected in its minutes of 19 January 2022). Dr Birch submitted that the decision was made on the basis that the Authority lacked power and this was what had been communicated to the plaintiff in the reasons provided by the Authority at the plaintiff's request.
2. I reject the Authority's submission that a determination whether the Authority has a power of revocation is, on the ground that it would have rejected the application, hypothetical. The principles in Wade v Burns (1966) 115 CLR 537; [1966] HCA 35 apply. In that case, a mining warden considered that he was obliged to refuse an application on the basis that he did not have power to grant it. However, he also said that even if he had power to grant the application, he would not have done so. The High Court found that the warden did have power to grant the application and that the warden's alternate position was irrelevant. Barwick CJ explained at 555: "It was sought to be said that the grant of a mandamus was futile because the warden in delivering his reasons for the course he took said that had he a general discretion to refuse the application he would do so. It is sufficient to say that this statement by the warden as to what he would do if he had a power which, according to his own view, he did not have has no weight, in my opinion, when the court is considering whether a writ of mandamus, which otherwise it is satisfied should issue, would be futile. The magistrate will consider the application according to law when the mandamus is issued and will no doubt then apply his mind to the matters which arise before him. His anticipatory comments are of no present consequence in relation to the granting of a mandamus."
3. Menzies J (Taylor J agreeing) said at 563: "… It is not possible, however, for this Court to determine what the mining warden meant when he referred to 'a general discretion' and we should not assume that upon a fresh hearing the mining warden, if he were to change his mind and decide that he had some discretion extending beyond the limits of that conferred … but confined by the general provisions of the Act, would necessarily refuse the application."
4. On this basis, I consider that the portion of the Authority's minutes which purported to deal with the merits of the plaintiff's application for revocation (which was not communicated to the plaintiff before it had commenced these proceedings) ought be disregarded. They do not make hypothetical this Court's determination whether the Authority has power to revoke its previous decisions since, if I find that the Authority has power to revoke, it would be obliged to consider the matter afresh, as the mining warden was in Wade v Burns.

Consideration

1. There is no authority on the question whether the Act evinces a contrary intention which would displace s 48 of the Interpretation Act. However, both parties have referred to authorities in support of their respective arguments which I propose to consider before addressing the Act.

Parkes Rural Distributions v Glasson

1. In Parkes Rural Distributions v Glasson (1986) 7 NSWLR 332 (Parkes), Parkes, the plaintiff, was a registered distributor of petroleum products under a scheme subsidised by the Commonwealth to enable rural users to obtain petrol at a similar price to users in capital cities. Where subsidies already given were subsequently determined to have been excessive, an authorised officer could issue a certificate to the distributor requiring repayment: s 8(3) of the Petroleum Products Subsidy Act 1965 (NSW) (the PPS Act). Glasson, the first defendant, was one of two officers authorised under the PPS Act to issue certificates. Glasson issued the first certificate on 2 February 1982, which certified that the amount of $152,317.70 was repayable by Parkes to the State of New South Wales (the first certificate). The second defendant (another authorised officer) issued a certificate on 13 November 1984 certifying that the amount of $134,065.27 was repayable (the second certificate).
2. Parkes argued that the first certificate was invalid as there had been a denial of natural justice and that the second certificate was also invalid because, at the time of its issue, the first certificate was still in force and it was not possible in law to have two inconsistent certificates. The trial judge found that the first certificate had been withdrawn and replaced by the second certificate. On appeal, Parkes argued that the authorised officers had no power to withdraw a certificate and issue a new one.
3. Glass JA (Samuels and Priestley JJA agreeing) considered that s 8(3) of the PPS Act contained the implied power conferred by s 32 of the Interpretation Act 1897 (set out above). At 335-336, his Honour referred to authority which established that "a power exercisable from time to time may be so exercised as to add to, subtract from or reverse the result of the previous exercise" (emphasis added). It followed that "the donee of such a power is never functus officio." Thus, the second certificate was not, on the ground of inconsistency with the first certificate, invalid.

Minister for Immigration and Ethnic Affairs v Kurtovic

1. The question whether a power includes a power of revocation has been considered by the Federal Court on a number of occasions, principally in the context of the Migration Act 1958 (Cth).
2. In Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 (Kurtovic), the appellant (the Minister) made a deportation order in respect of the respondent in circumstances where he had previously revoked a deportation order in respect of him. The Full Federal Court found the deportation order to be invalid on the grounds of denial of procedural fairness but considered, in obiter remarks, that the Minister was not estopped from making a deportation order in respect of the respondent. Gummow J addressed the law relating to estoppel in administrative law. In this context, his Honour referred to s 33(1) of the Acts Interpretation Act and said, at 211, as follows: "… s 33(1) of the Acts Interpretation Act 1901 (Cth) (which was modelled upon s 32(1) of the Interpretation Act 1889 (UK)) provides that where an Act confers a power or imposes a duty, then unless the contrary intention appears, the power may be exercised and the duty shall be performed 'from time to time as occasion requires'. But in any given case, a discretionary power reposed by statute in the decision maker may, upon a proper construction, be of such a character that it is not exercisable from time to time and it will be spent by the taking of the steps or the making of the statements or representations in question, treating them as a substantive exercise of the power. The result is that when the decision maker attempts to resile from his earlier position, he is prevented from doing so not from any doctrine of estoppel but because his power to do so is spent and the proposed second decision would be ultra vires. The matter is one of interpretation of the statute conferring the particular power in issue."
3. His Honour's conclusion about the proper construction of the Migration Act appears from the following passages at 218-219: "In the present case, there is nothing in the Migration Act which suggests an intention contrary to the presumption embodied in s 33(1) of the Acts Interpretation Act 1901, to which I have already referred. Accordingly, the power to make a deportation order is exercisable from time to time, so as to revoke or revive a deportation order previously made, whether on the same facts as before or otherwise. Even if the facts upon which the original decision was based remain constant, it may be the policy of the donee of the power which changes and thus requires a reconsideration of decisions previously made .... The significance of a change in either the facts or in ministerial policy would go merely to the merits of the decision upon which the Court is not entitled to decide. The appellant could not therefore have been functus officio, and an estoppel could not be allowed which would have the effect of stifling the future exercise of the statutory discretion …"

Minister for Indigenous Affairs v MJD Foundation Ltd

1. Minister for Indigenous Affairs v MJD Foundation Ltd (2017) 250 FCR 31; [2017] FCAFC 37 (MJD) concerned the power conferred on the Minister under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) to direct that certain amounts be debited from the Aboriginals Benefit Account and paid or applied for the benefit of Indigenous people living in the Northern Territory. A former Minister had directed that $10 million be paid to the respondent. However, before the money was paid, there was a change in government and the new Minister purported to revoke the direction. The primary judge found that the new Minister had no power to do so.

Perram J's minority view

1. Perram J, who was in the minority, considered that the legislation did not express a contrary intention and that, accordingly, s 33 of the Acts Interpretation Act applied and the Minister could revoke the previous direction. Mortimer J (Perry J agreeing) found that there was a contrary intention but that, in any event, s 33 did not confer a power of revocation. Because of the emphasis placed by the parties in the present proceedings on MJD, it is necessary to address the respective reasons of Perram J and Mortimer J in more detail.
2. Perram J considered Parkes. His Honour noted at [55] that revocation as such did not arise in Parkes, which concerned a subsequent exercise of power which was "not wholly consistent with the first exercise". On this basis, his Honour did not accept that Parkes had as its ratio that s 33(1) of the Acts Interpretation Act could be used to revoke a previous decision. However, his Honour cited various authorities, including decisions of the NSW Court of Appeal, which had been decided on that basis.
3. Further, Perram J noted that Kurtovic did not establish that s 33 (or its analogues) authorised revocation of a previous decision since, in Kurtovic, the previous deportation order had already been revoked and the issue was whether a fresh deportation order could be made on the same facts. His Honour undertook an analysis of the authorities and concluded that s 33(1) could be used to revoke an earlier exercise of power. His Honour identified the relevant question (which was one of statutory construction) to be whether s 33 was excluded by contrary intention. At [66], Perram J summarised the effect of the decisions to which he had referred as follows: "I would accept that all of these cases … establish that where the statutory scheme provides for a decision concerning rights following on some process of formal determination, this will usually exhibit a sufficient contrary intention to prevent s 33(1) from applying."
4. A further issue arose in MJD by reason of the wording of s 33 of the Acts Interpretation Act (which was based on s 32 of the Interpretation Act 1889 (UK)). Perram J identified the opposing constructions at [73]-[74]: 1. revocation was exclusively provided for in s 32(3), leaving no room for any implication in s 32(1) that revocation was authorised; and 2. section 32(3) related only to statutory rules and said nothing about revocation in the context of other powers and functions (with which s 32(1) is concerned); thus, it did not displace the implication of revocation in s 32(1).
5. Perram J preferred the construction in (2) above.

Mortimer J's view (with which Perry J agreed)

1. Mortimer J agreed with Perram J's view that the new Minister had purported to revoke the earlier decision rather than make a new, inconsistent, decision. Her Honour also agreed that there was a distinction between a revocation and a subsequent exercise of the power in a manner inconsistent with an earlier decision: [169], [170] and [172].
2. However, her Honour said that, on the assumption that Perram J's view that the wording of s 33(1) of the Acts Interpretation Act authorised revocation was correct, there was no power to revoke the payment as the scheme of the Aboriginal Land Rights (Northern Territory) Act evinced a contrary intention: [100]. Although, as her Honour accepted, this was sufficient to dispose of the matter, Mortimer J addressed the question whether s 33(1) of the Acts Interpretation Act had the effect for which the Minister contended (which Perram J had accepted). Her Honour gave three reasons for coming to construction (1) (above).
3. First, her Honour said that the only purpose of s 33(1) was to avoid the "inconvenient common law doctrine" that a power could only be exercised once and that the words "from time to time" in s 33(1) expressly displaced this doctrine. However, her Honour observed that the displacement of the doctrine was quite separate and distinct from the power to revoke or undo a previous exercise of power. Her Honour was not persuaded that it was the intention of s 33(1) to confer a power of revocation. Secondly, her Honour considered that the implication of a power of revocation would have a considerable effect on the statutory power conferred which she was not satisfied had been intended by s 33(1). Thirdly, Mortimer J concluded that there was no binding authority which obliged her to accept the construction of s 33(1) for which the appellant contended (and which Perram J had accepted).

Minister for Home Affairs v Brown

1. Reference was also made to Minister for Home Affairs v Brown (2020) 275 FCR 188; [2020] FCAFC 21. In that case, the former visa-holder (Brown) applied to the Administrative Appeals Tribunal (AAT) for review of the Minister's decision to cancel a visa pursuant to s 501 of the Migration Act. The AAT set aside the Minister's decision to cancel the visa, which, accordingly, remained operative. The Minister purported to cancel the visa notwithstanding that the circumstances had not changed. The majority (Allsop CJ, Kenny and Banks-Smith JJ) held that the Minister lacked power to cancel the visa in these circumstances.

Minister for Immigration and Border Protection v Makasa

1. In Minister for Immigration and Border Protection v Makasa (2021) 270 CLR 430; [2021] HCA 1 (Makasa), the High Court (Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ) said at [47], with reference to MJD: "Controversy has arisen and remains unresolved in the Federal Court as to whether the re-exercise of a statutory power contemplated by s 33(1) extends to revocation of an exercise of the statutory power that has resulted in an alteration of legal rights …"
2. I understand the reference to "controversy" to reflect the fact that the construction of s 33(1) did not need to be determined in MJD because the majority was satisfied that it was excluded in any event by contrary intention and its remarks were, accordingly, obiter. In any event, the High Court assumed the validity of the distinction between revocation and a re-exercise of a power in a way that is wholly or partly inconsistent with an earlier exercise of the power: [47].

Consideration of the Act

1. In light of these authorities, two questions arise: first, does s 48 of the Interpretation Act confer a power of revocation; and, secondly, does the Act evince a contrary intention to s 48 of the Interpretation Act?
2. Ms Mirzabegian contended that I ought adopt Mortimer J's approach in MJD: that is, answer the question of contrary intention first before turning to the question whether s 48 includes a power of revocation. While that approach was appropriate in MJD, having regard to Perram J's reasons, I consider that it is necessary to address the second question first, in part because the Authority has argued that a contrary intention has been evinced by reason of the express provisions in the Act which authorise revocation.

Whether s 48 of the Interpretation Act includes a power of revocation

1. There is a significant distinction between s 48 of the Interpretation Act and s 33 of the Acts Interpretation Act. The power to repeal statutory rules in the Interpretation Act is contained in a separate provision, s 43, whereas in the Acts Interpretation Act, it is also in s 33, as s 33(3). Thus, the textual considerations which led Mortimer J to consider that s 33(1) did not include a power of revocation (because of the express reference in s 33(3)) do not apply to s 48.
2. Further, although Parkes did not actually concern revocation, but rather the making of a second, inconsistent decision, the Court of Appeal considered that s 48, unless excluded by contrary intention, did include a power of revocation. In these circumstances, even if not strictly bound by Parkes (a point which is unnecessary to decide), it would not be appropriate for me to depart from that approach (which I respectfully consider to be correct). Accordingly, I am satisfied that s 48 includes a power to revoke a previous decision.

Whether the Act evinces a contrary intention such that s 48 of the Interpretation Act does not apply

1. As referred to above, the Authority relies on provisions elsewhere in the Act for express powers of revocation. However, I do not read these specific powers of revocation as sufficient, without more, to exclude s 48 from applying in the context of a revocation of the approval of an increase to a threshold under s 34(4). Each deals with a particular aspect of the power of the Authority or the Minister with respect to the regulatory regime. In these circumstances, there may be good reason to incorporate an express power of revocation.
2. For example, s 32A of the Act empowers the Authority to determine a maximum number of GMEs in the whole of the Fairfield LGA. The stipulation in s 32A(5) that the Authority may vary or revoke such a determination "at any time" may well have been thought necessary to confirm the width of the Authority's discretion to withdraw the determination at any time to make it clear that no one would be able to complain about relying on an earlier determination, in the mistaken belief that it could not be changed.
3. Similarly, I infer that the express power in s 42(3)(c) to revoke an approval "for such reasons as the Authority thinks fit" has been inserted to ensure that no recipient of an approval under s 41 could rely upon the mere giving of an approval to resist or challenge the validity of its revocation.
4. Thus, in the instances cited by the Authority, a reason can be discerned for the insertion of an express power of revocation, either to emphasise the scope of the entitlement to revoke, or to make it clear that the power, once exercised, was not spent because the effect of the exercise of power could be revoked.
5. I do not consider that the presence of these express powers of revocation is sufficient to evince a contrary intention to displace s 48 of the Interpretation Act, in the context of either s 20A or s 34 of the Act.
6. The detailed provisions which are required to be complied with when a threshold or GME entitlement is increased do not bear on what should occur if an increase is revoked to bring about a decrease.
7. Although the Act's enumerated objects would appear to strike a balance between competing interests (Carr v Western Australia (2007) 232 CLR 138; [2007] HCA 47 at [5] (Gleeson CJ)), the following underlying premises can be discerned from the Act, having regard to its objects: 1. gambling is, or has the potential to be, harmful to the community (presumably because of its known tendency to cause addiction and hardship as well as to compound socio-economic disadvantage); but that 2. the harm caused by gambling can be ameliorated by requiring hoteliers to make community benefit payments.
8. Thus, there is a legislative recognition of the inevitable public detriment occasioned by gambling (hence the need to reduce the number of gaming machines in the State as referred to in s 3(1)(e)) which is thought to be offset, at least in part, by the benefits gained by the public through the public works, facilities and services which are funded by these community benefit payments, as well as the employment generated by gambling and the income earned by hotels which would, without such income, not be viable. It is plain from the wording of the Act and its objects that Parliament regards gambling, relevantly with the use of gaming machines, as potentially harmful to the community and, accordingly, will only permit it to occur in circumstances where the harm to the community can be offset or ameliorated in ways for which the Act makes provision. Thus, it can be inferred from the Act that a reduction in a threshold or GME is, prima facie, beneficial.
9. Where the Authority, of its own initiative, wishes to reduce a threshold, then it may be that it will choose to exercise its power under s 32(5), which must be exercised in accordance with the Act. However, the Act does not give any indication that this power is the Authority's only power to reduce a threshold since a revocation of an approval given pursuant to s 34(4) (if s 48 of the Interpretation Act has not been excluded by contrary intention) would also have that effect.
10. The distinction between a revocation and a subsequent exercise of power which is, at least in part, inconsistent with the first exercise, is relevant here. Section 32(5) would appear to address the latter situation - where the Authority has decided to "vary" the threshold - but not necessarily with the first, where an actual revocation is sought to undo the first decision. Thus, it does not follow from the express power in s 32(5) to "increase or vary" a threshold (which must include a power to decrease a threshold) that the power to revoke an increase in a threshold under s 34(4) is excluded. Further, I do not discern any contrary intention which would have the effect of excluding the implied power to revoke a transfer of GMEs under s 20A.
11. In further answer to the plaintiff's submissions, Ms Mirzabegian pointed to the various provisions of the Act which entitle hotel operators to sell or lease GMEs and thus affect their thresholds. She submitted that hotel owners who applied for an increase which was approved by the Authority had various options to divest themselves of GMEs, which did not require the Authority to revoke the increase.
12. The detailed system for transferring and leasing GMEs with the associated forfeiture provisions (summarised above) enables rights with respect to gaming machines to be traded. Generally, except where transfers are between country hotels in the same local statistical area, the Authority exacts a penalty for such transfers by requiring forfeiture of some of the GMEs traded. I do not regard the availability of these authorised transactions to evince a legislative intention to exclude s 48 of the Interpretation Act. Rather, they provide a different avenue for hotel owners to divest themselves of authority to operate gaming machines. They say nothing about whether a power of revocation to be exercised by the Authority ought be implied by s 48 of the Interpretation Act.
13. The parties also referred me to Duffy v Independent Liquor and Gaming Authority [2016] NSWSC 1062 (Duffy). In Duffy, Davies J found that s 48 of the Interpretation Act was excluded in the context of an application to surrender an extended trading authorisation because the detailed provisions of the Liquor Act were inconsistent with the Authority having power to re-exercise the power from time to time. Although the process of statutory construction which I have adopted to determine whether Parliament has expressed a contrary intention in the Act is similar to that undertaken by Davies J in Duffy and I have applied the same relevant principles, the relevance of Duffy to the present case is limited because of the differences between the relevant statutory provisions giving rise to the application in Duffy and those affecting the present application.

The availability of the power under s 32(5) of the Act

1. Dr Birch contended, in the alternative, that the Authority had the power to reduce the threshold under s 32(5).
2. As the plaintiff has obtained its primary relief, it is not necessary to address its alternative claim or the detailed further submissions concerning its power to reduce the threshold, except insofar as they bear on the legislative context which has been addressed above.

Whether an order ought be made requiring the Authority to decide whether to revoke the decisions

1. The evidence established that the Authority has considered the plaintiff's applications in a timely way. The delay in approving the increase in the threshold for the Seaview Tavern from 20 to 24 was the result of the extensive consultation processes undertaken. Dr Birch accepted that the delay was not the result of any dilatoriness on the part of the Authority. I have found that the Authority misapprehended its power by incorrectly concluding that it lacked the power to revoke the decisions. The declarations are a sufficient remedy. In these circumstances, I do not propose to order the Authority to consider the plaintiff's applications in accordance with law since I have no reason to doubt that it will do so within a reasonable time.

Conclusion

1. I am not persuaded that the Act evinces a contrary intention to displace s 48 of the Interpretation Act. On the basis of Parkes, I consider that s 48 includes a power to revoke. Thus, the plaintiff is entitled to the declaratory relief claimed. I note that Dr Birch accepted that he could not press the declarations which went beyond the question of power and referred to "reasonable grounds" since these matters have not been the subject of submission.

Costs

1. The parties agreed that there was no reason why costs ought not follow the event in accordance with the general rule: UCPR, r 42.1.

Orders

1. For the reasons given above, I make the following orders: 1. Extend the time pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 59.10, within which the plaintiff may file the summons to 29 July 2022. 2. Grant leave to the plaintiff to file the further amended summons dated 1 December 2022. 3. Declare that, if requested to do so by the plaintiff, as has occurred, the defendant has power, by reason of the operation of s 48 of the Interpretation Act 1987 (NSW): 1. to revoke its decision of 23 April 2021 to increase the gaming machine threshold for the Seaview Tavern; 2. to revoke its decision of 6 December 2021 approving the application for transfer of one gaming machine entitlement from the hotel licence of the Coutts Crossing Tavern to the hotel licence of the Seaview Tavern; and 3. to revoke its decision approving the transfer of six gaming machine entitlements from the hotel licence of the Coutts Crossing Tavern to the hotel licence of the Seaview Tavern. 1. Otherwise, dismiss the summons. 2. Order the defendant to pay the plaintiff's costs of the proceedings.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 December 2022