Australian Regional Group Pty Ltd v Independent Liquor and Gaming Authority [2024] NSWCATAD 305 | Case summary

NCAT Administrative and Equal Opportunity|2024-09-25

The Applicant will provide "competitive prices", i.e. reduced or lower prices

In its submissions of 4 June 2024 the Applicant referred to an alleged monopoly of the hotels in Moree, and that two hotels had closed, thereby leaving patrons with less choice. Mr Gill said that two of the hotels had drive-through liquor stores. Mr Gill said that there were two stand alone bottle shops "in the whole area" (Liquorland and BWS) but that there were at least 19 other outlets from which alcohol could be bought online. He also said that restaurants could sell opened liquor to take away.
The Respondent acknowledged that there may be some community benefit to more convenient access to alcohol at "competitive prices", and that the development of the shop may provide some economic benefit to the area and provide employment opportunities and I accept that to be a factor in favour of the proposed bottle shop, although I observe that the number of alcohol outlets in Moree and the LGA is higher than the NSW average.
I accept too, the general principle that, in any industry, as the numbers of services approaches a monopoly there is likely to be unwelcome effects on pricing. Similarly, at least in theory, the more competition, the greater the likelihood of prices being driven down. The Applicant's submission however is flawed in that it suggests that low alcohol prices are always desirable, and overlooks the likely social impact of the greater access because of low prices, for the reasons given by Dr Stubbs.

The Applicant is prepared to consider other opening times and conditions

The Applicant also referred to a recent application which was approved by the Respondent, subject to conditions. I observe however that that matter referred to a licence for "on-premises" liquor licence. I also observe that the premises were located on the northern side of Moree (where, according to Dr Stubbs, there is less crime) and over 1 km from the Applicant's proposed bottle shop. In any event, each application is to be considered on its merits and I do not have such further information before me that might lead me to a view of some inconsistency in approach, as the Applicant had submitted.
I discussed with the parties whether, if the Applicant's business model permitted significantly reduced opening hours, the concerns evidenced by the Stubbs Report could be overcome. The Respondent's position was that, even with significantly reduced opening hours, or the imposition of conditions, the concerns were so fundamental that they could not be cured by limiting the bottle shop's trading hours. I consider that the views of Dr Stubbs support this conclusion.

Petition

The Applicant provided evidence of an online petition with approximately 50 people recorded as being in favour of the proposal. Obtaining the views of the local or broader community is a difficult task, and recourse to petitions can be a fraught and unreliable exercise: see, for example, the Tribunal's observations in Adamson at [30]-[35]. There was no evidence as to how the survey, with its very small number of participants, was conducted. The majority of participants were not local to the area - from Sydney, Adelaide, Melbourne, Hobart, Wurtulla QLD, Canberra and Brisbane, (among others), and there was no evidence that the petition was circulated in the community. It cannot be said that the petition evidences the views of the local community. Accordingly, I give this material only limited weight: see North Coast Property Holdings Ply Ltd v Independent Liquor and Gaining Authority [2024] NSWCATAD 98 at [35]-[36].

Views of Police

It is observed that the Police had no objection to the application. I note however that the Police appear to have based that view on the fact that checks had been made on the proposed licensee and anticipated that there would be some (unspecified) conditions attached to the licence. As discussed at the hearing, the person responding on behalf of the Police was a junior officer stationed in Armidale - some 250 kms away. If crime in the relevant area is as identified in the objective data referred to in the Stubbs Report, and that there is a link between crime and alcohol is as concluded, then it seems almost bizarre that Police, who have the role of dealing with that crime should elect to have what is minimal input into the application and chose not to make any meaningful comment with respect to the application. It seems to me that this is entirely unhelpful to any consideration of the overall social impact test. Even the Applicant acknowledged Police in the area are under-resourced.

Conclusion

For the reasons discussed above, I find the benefits suggested by the Applicant do not outweigh the serious harms and risks of the proposed application. There was probative evidence of risks in relation to socio-economic, health and crime characteristics, including data in the updated harm minimisation and community impact data report as well as the Stubbs Report as to the range of characteristics making the local and broader community more likely to experience alcohol-related harm (cf Smith).
In my view each of the socio-economic disadvantage, health and crime indicators and risks identified by Dr Stubbs is sufficient for me to conclude that the social impact test under s 48(5) is not met. Further, if taken together, necessarily, I am not able to reach the state of satisfaction required by s 48(5) of the Act.
For these reasons I am not satisfied that the overall social impact of the licence will not be detrimental to the well-being of the local or broader community: s 48(5) of the Act.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 15 October 2024

What is the relevant legislation?

The Applicant lodged its application for a licence on 17 December 2022. At a board meeting on 15 March 2023 the Authority considered the application and resolved to refuse the application under s 45 of the Act. It was not until 22 January 2024 that the Authority provided its statement of reasons for its decision.
On 27 February 2024 the Applicant sought review by this Tribunal.
Then, on 1 July 2024, various amendments to the Act by the 24-Hour Economy Legislation Amendment (Vibrancy Reforms) Act 2023 came into force. There were no transitional provisions which might have indicated how a matter should be dealt with where a decision of the Authority comes before the Tribunal after the law changed. The Respondent submitted that the correct law to be applied when, as here, the Tribunal is exercising administrative review jurisdiction, is the law that applied when it made its decision. The Applicant, understandably, wished to have the Application for Review determined expeditiously, and, to that end, also suggested the old Act applied.
In Commissioner for Fair Trading, Department of Customer Service (NSW) v Kalkan [2022] NSWCATAP 112 (Kalkan), the Appeal Panel held that, in the circumstances of that matter the Tribunal should apply the law as at the date of the matter coming before the Tribunal. In submissions before me the Respondent contended that the circumstances in Kalkan were different to the present matter. Firstly, that matter was in relation to the Home Building Act 1989, and to amendments introduced to overcome unintended consequences as a result of a matter previously determined by the Tribunal, the details of which need not be repeated here; see [22] of Kalkan. Further, and more particularly, the amendments to the relevant Act included transitional provisions. Also, in Kalkan the application for review was made after the date the amendments came into effect, whereas, in the present matter the amendments to the Act came into force after the Applicant had lodged its application for review.
Further, it was submitted, Kalkan is inconsistent with Fruginiet v Australian Securities and Investments Commission (2019) 266 CLR 250 at [14]-[15] and the earlier case of Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666, which was there cited with approval. There, at [14] the High Court said: …[The AAT's jurisdiction] is subject to the same general constraints as the original decision-maker and should ordinarily approach its task as though it were performing the relevant function of the original decision-maker in accordance with the law as it applied to the decision-maker at the time of the original decision.
Section 30(1)(c) of the Interpretation Act 1987 (NSW) provides, relevantly, that the amendment of an Act does not affect any right, privilege, obligation or liability acquired, accrued or incurred under the relevant Act. Consequently, the Applicant, in applying for administrative review of an administratively reviewable decision can be said to have an "accrued" right within the meaning of s 30(1)(c) of the Interpretation Act 1987.
It was also submitted that the application of the new legislation would be unfair to the Applicant. Putting aside any substantive changes, s 48(1) of the amended Act requires an application to be accompanied by a statement of risks - in an approved form. In the previous version of the Act an applicant was to file a community impact statement. The new version requires a statement of risks and potential effects which appears to require a greater level of specificity in its content. While the effect of applying the new Act, had it applied, may have been inconvenient for the Applicant I do not accept that as a valid reason to apply the old Act. As I have found that the Applicant has an accrued right to have the review considered under the old Act, I have disregarded the observation about unfairness to the Applicant.
I have therefore proceeded on the basis that the old version of the Act applies in my consideration of the Application for Review.

Substantive issue before the Tribunal

The objects of the Act at the relevant date were set out in s 3 as follows: 3 OBJECTS OF ACT (1) The objects of this Act are as follows: (a) To regulate and control the sale, supply and consumption of liquor in a way that is consistent with the expectations, needs and aspirations of the community, (b) To facilitate the balanced development, in the public interest, of the liquor industry, through a flexible and practical regulatory system with minimal formality and technicality, (c) To contribute to the responsible development of related industries such as the live music, entertainment, tourism and hospitality industries. (2) In order to secure the objects of this Act, each person who exercises functions under this Act (including a licensee) is required to have due regard to the following: (a) The need to minimise harm associated with misuse and abuse of liquor (including harm arising from violence and other anti-social behaviour), (b) The need to encourage responsible attitudes and practices towards promotion, sale, supply, service and consumption of liquor, (c) The need to ensure that the sale, supply and consumption of liquor contributes to, and does not detract from, the amenity of community life (d) the need to support employment and other opportunities in the - (i) live music industry, and (ii) arts, tourism, community and cultural sectors.
In considering whether to grant a licence, the Respondent, and hence the Tribunal on review, is required to have regard to: 1. the public interest considerations in s 3(2) of the Act; and 2. whether granting the licence would provide employment in or other opportunities for the industries and sectors listed in s 45(7), namely the live music industry, the arts sector, the tourism sector and the community or cultural sector.
Relevantly, the Authority (and hence the Tribunal) must not grant a licence to an applicant unless it is satisfied pursuant to s 48(5) of the Act, that the overall social impact of granting the licence will not be detrimental to the well-being of the local or broader community. This was the only issue in contention before me.
The Respondent has published a Guideline to explain the procedure and the considerations relevant to its inquiry - Guideline 6 (the Guideline). The Tribunal may have regard to the Guideline under s 64(4) of the ADR Act: Aldi Foods Pty Ltd v Independent Liquor and Gaming Authority [20191 NSWCATAD 26 (Aldi Foods) at [16]; see also Auld v Independent Liquor and Gaming Authority [2018] NSWCATAD 26 (Auld) at [44]-[45]. The Guideline sets out comprehensively information required in relation to a licence. Importantly, the Guideline also sets out matters that must be considered in determining whether the overall social impact of the licence will not be detrimental to the well-being of the local or broader community, repeating s 48(5) of the Act. Having said that though, the Tribunal is not obliged to give effect to Guideline 6 as it is not a "relevant Government policy" for the purposes of s 64(1) of the ADR Act: Scott-Mackenzie v Independent Liquor and Gaming Authority [2020] NSWCATAD 108 at [16].

Tribunal's task

Section 63 of the ADR Act provides that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that a tribunal is not restricted to a consideration of the material that was before the decision-maker, but may have regard to any relevant material before it at the time of the review: Shi v Migration Agents Registration Authority [2008] HCA 31. Under s 28(2) of the Civil and Administrative Tribunal Act 2013 (CAT Act) the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: s 38(2) of the CAT Act. The Tribunal makes its own decision in place of the original decision-maker, and there is no presumption that the original decision is correct: McDonald v Director General of Social Security (1984) 1FCR 353 at 357. The standard of proof that applies in these proceedings is the civil standard, that is, on the balance of probabilities. Neither party bears a legal burden of proof with matters in dispute determined on the balance of probabilities: see Smith v Independent Liquor and Gaming Authority [2018] NSWCATAD 224 (Smith) at [25].
Nevertheless, an applicant will bear an "evidentiary burden" or a "practical" onus in proceedings such as these to put sufficient evidence before the Tribunal to enable it to reach the requisite level of satisfaction: see for example, Auld at [50] and ALDI Foods at [88]. In Bun v Independent Liquor and Gaming Authority [2020] NSWCATAD 60 at [73] I considered that the Tribunal must be actually satisfied that the overall social impact of the proposal will not be detrimental. In ALDI Foods at [88], the Tribunal described the test as imposing a practical, though not legal onus on the Applicant. See also Adamson v Independent Liquor and Gaming Authority [2022] NSWCATAD 394 (Adamson) at [7] and Auld at [50]. When determining the "overall social impact" of a proposal, both positive and negative social aspects are to be taken into account: Smith at [30] and ALDI Foods at [90].

The overall social impact test

The words "overall social impact" in s 48(5) of the Act were considered in Kallin Ply Ltd v Independent Liquor and Gaming Authority [2019] NSWCATAD 36. The Tribunal held, at [20], referring to Macedon Ranges Shire Council [2008] VSCA 45, that: As suggested in Macedon Ranges Shire Council, the meaning of "overall social impact" will be influenced by the subject matter and purpose of the Liquor Act. Clearly the Act is concerned with the minimisation of harm associated with misuse and abuse of liquor (including violence and other anti-social behaviour), as well as ensuring that the sale, supply and consumption of liquor contributes to, and does not detract from "the amenity of community life" (s 3(2)). Therefore in my view, these factors, where relevant, will inform the meaning of "overall social impact". The Act also refers to other social impacts such as the balanced development of the liquor industry and of related industries such as the live music, entertainment, tourism and hospitality industries.
The Act also refers to other social impacts such as the balanced development of the liquor industry and of related industries such as the live music, entertainment, tourism and hospitality industries.
In Smith at [23], the Tribunal identified its task as follows: The Tribunal's task in this case is essentially to make findings of fact. I must make a finding as to the overall social impact of granting the licence and then ask whether that impact will be detrimental to the well-being of the local or broader community. In Macedon Ranges Shire Council v Romsey Hotel Ply Ltd [2008] VSCA 45, the Court stated at [44] that "the weight to be given to the evidence is, of course, a matter for the decision maker, and will depend on the nature, extent and cogency of the evidence". Evidence will have little or no probative value if it is based on dubious assumptions or mere speculation.
The Tribunal in Smith accepted that it could give weight to "risk factors", such as local crime rates, socio-economic disadvantage of residents and health-related harms, provided there is "probative evidence that granting the licence will have a particular social impact": at [24]. In Smith the Tribunal considered that BOCSAR data constituted objective facts from which the inference could be drawn that granting the relevant licence would be likely to result in a significant negative impact, being an increase in the rate of assaults in the local community.

Australian Regional Group Pty Ltd v Independent Liquor and Gaming Authority

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