Commissioner of Police, NSW Police Force v Monastirski

NCAT Appeal Panel|2017-09-01

Overview

The Commissioner of Police has appealed from a decision of the Tribunal varying two long term banning orders relating to a solicitor, Mr Monastirski. The original decisions, made by the Independent Liquor and Gaming Authority (the Authority), were to ban Mr Monastirski from entering or remaining on certain licenced premises in two precincts - the Kings Cross precinct and the Sydney CBD Entertainment precinct, for 12 months. The Commissioner of Police was joined as a party. The Tribunal varied those orders so that the second order did not apply to high risk venues in the Sydney CBD Entertainment precincts at which meetings or functions of the City of Sydney Law Society are held during the period of those meetings or functions. The Tribunal also varied both orders so that instead of banning Mr Monastirski from entering or remaining on high risk venues in both precincts for 12 months, he was banned for 3 months.
The Tribunal characterised Mr Monastirski's private interests, that is his interests in attending high risk venues to pursue professional and social activities, as a mandatory consideration. The Commissioner acknowledged that a person's private interests are a permissive consideration but submitted that the Tribunal's characterisation of those considerations as mandatory was erroneous. We agree with the Commissioner on that point. However, even if the Tribunal had treated Mr Monastirski's private interests as permissive considerations, it would have made the same orders. Consequently we have allowed the Commissioner's appeal in part but affirmed the Tribunal's decision.

Grounds of appeal

The Commissioner of Police has appealed on four grounds which he has characterised as questions of law and also requested permission or "leave" to appeal on grounds other than questions of law: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 80(2)(b). The orders the Commissioner sought were that the decision of the Tribunal be set aside and that the decisions of the Authority to make two long term banning orders against the applicant for 12 months be affirmed.
A useful way of categorising grounds of appeal, whether on a question of law or otherwise, is to identify the stage of the adjudicative process to which the alleged error relates. There are three broad stages: making primary findings of fact, determining the law and applying the law to the findings of fact: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156; Aronson and Groves, Judicial Review of Administrative Action, (5th ed Law Book Company 2013) at 201. Each of the four grounds of appeal on a question of law in this case relate to the stage at which the Tribunal is either determining the law or applying the law to the findings of fact.
The grounds of appeal on questions of law can be summarised as follows: 1. the Tribunal erred in law by failing to have due regard to all of the matters in s 3(2)(a)-(c) of the Liquor Act in making its decision; 2. the Tribunal erred in law in holding that the decision to make (or not to make) a long-term banning order and the determination of the extent and scope of the long-term banning order, involves a balancing exercise between the interests of the public and the private interests of the person the subject of the proposed order; (at 96 and [98]); 3. the Tribunal erred in law by concluding that the private interests of the person the subject of the proposed long term banning order are a "mandatory relevant consideration" required to be taken into account when determining whether to make the order and when deciding the scope and extent of any such order; and 4. the Tribunal erred in law by concluding that the following factor was also a "mandatory relevant consideration" required to be taken into account when determining whether to make a long-term banning order: namely, whether the conduct giving rise to the application for the long-term banning order occurred at a high risk venue.

Finding primary facts

We have summarised the Tribunal's decision according to the same three adjudicative stages identified above: finding primary facts, determining the law and applying the law to the facts.
There was no appeal from the Tribunal's findings of facts. In summary, the relevant factual material related to: 1. the three serious indictable offences committed by Mr Monastirski including the Fact Sheet, the Police Brief of Evidence, the transcript of the Local Court proceedings and CCTV footage of the police station charge room after Mr Monastirski's arrest on 24 February 2016; 2. the two summary offences of which Mr Monastirski was found guilty under the Summary Offences Act 1988 (NSW) relating to the same incident on 24 February 2016; 3. events recorded in 16 COPS events about Mr Monastirski covering the period from 31 March 2014 to 26 September 2016; 4. events in 2004 and 2012 when Mr Monastirski was charged with but not convicted of certain offences; 5. Mr Monastirski's personal circumstances including where he lived and which venues he visited; 6. the impact of the banning order on Mr Monastirski including the fact that the order would restrict his freedom of movement, prevent him from attending meetings of the City of Sydney Law Society at licenced premises in the CBD and prevent him from eating at some local restaurants including at pubs and clubs; and 7. crime statistics from BOCSAR's website.
The factual circumstances at (1) above were the pre-condition for the exercise of the power to impose the long term banning orders. As the Tribunal noted at [50], the Authority was satisfied that Mr Monastirski had been found guilty of three serious indictable offences involving violence that were committed in a public place or on relevant premises while he was affected by alcohol: Liquor Act, s 116AE(3)(a) and s 116G(3)(a). There was no challenge to the correctness of that part of the Authority's decision.
In relation to the factual circumstances listed at (3) above, the Tribunal decided that to the extent that the COPS reports related to Mr Monastirski's mental health, they were not relevant. Other entries were regarded as relevant to "the risk of harm to patrons, staff and, more pertinently, to the applicant himself resulting from any attendance by him at high risk venues". The Tribunal highlighted an incident at the Colombian Hotel on 24 June 2016 as being of particular relevance because it showed that Mr Monastirski was at a high risk venue in the Sydney CBD Entertainment District, that he was intoxicated and that he was ejected on two occasions. The Tribunal noted that the COPS report of this incident did not show that Mr Monastirski had been physically violent.
In relation to the factual circumstances listed at (4) above, the Tribunal attached no significance to any of those charges because they were all dismissed.
In relation to the factual circumstances listed at (5) above the Tribunal found that the restrictions on Mr Monastirski's freedom of movement, particularly his ability to eat at restaurants in high risk venues and to attend some Law Society functions, would impose "a degree of unwelcome constraint on the professional and social activity of the applicant".

Determining the law

At [81] - [97], the Tribunal set out eight conclusions reflecting its view of the correct approach to the exercise of the long term banning powers. I have set out the all eight conclusions below, but have deleted some of the text and the cases cited in support of those conclusions. 83. First, it is clear that there is no statutory requirement to impose a long-term banning order whenever the conditions for the exercise of that power are satisfied. No such submission was made by the Commissioner. The word "may" in, for example, s 116AE(3), is not to be read as "must". As the Commissioner submits, a broad discretion is conferred. 84. Second, whilst broad, the discretion is confined by the subject matter, scope and purpose of the legislation under which it is conferred; 85. Third, I construe the power in accordance with the text of the provisions creating the power, the text of the Liquor Act as a whole and the context for the provisions, including the mischief to which the powers are directed; 86. Fourth, the mischief to which the long-term banning powers are directed is apparent from the text of the provisions under which they were introduced and the legislative history to which I have already referred. They are, primarily, directed at the reduction of alcohol fuelled violence at, or emanating from, specified venues in the Kings Cross precinct and the Sydney CBD Entertainment precinct. The banning orders are designed to protect the public's safety and community amenity. ... 90. Fifth, it seems to me that the nature of the order and the provision for a period not exceeding 12 months invites a proportionate approach to the making of orders so that the order made does reflect the particular conduct in issue and the personal circumstances of the person the subject of the proposed order in comparison to the conduct and circumstances that might arise or has arisen in other cases. 91. Sixth, in view of the breadth of the mandatory consideration in s 3(a) of the Liquor Act concerning harm arising from violence and other anti-social behaviour, I regard the protection of the person the subject of the proposed order as within the purpose of the banning provisions. 92. Seventh, whilst confined by the subject matter, scope and purpose of the legislation, it can be presumed that the legislature intended that the range of factors that might be relevant to the exercise of the discretion was not closed and depended upon the circumstances. 93. As to such range of factors regarding the exercise of the discretion founded upon the pre-condition in s 116AE(3)(a) and s 116G(3)(a), to my mind, it is plain that an important factor to be considered in the exercise of the discretion is the risk that the person the subject of the proposed order will be involved in violence, whilst affected by alcohol, at a high risk venue. In turn, not only does that require consideration of the potential consequences should the risk eventuate, but also a consideration of factors relating to the degree of risk, such as the circumstances of the original offence, where it occurred, how long ago it occurred, and the current personal circumstances of the person relating to the risk of violent conduct re-occurring. 94. For example, if the person the subject of the proposed order committed the original offence 10 years ago in Batemans Bay, and the person lives in that town and never travels to Sydney, it is very difficult to see how the making of a long-term banning order would be justified. 95. Eighth, the private interests of the person the subject of the proposed order, including the impact of a banning order on the person the subject of the proposed order, is not only a factor that may be taken into account, as I understood to be accepted by Counsel for the Commissioner at the hearing, in my opinion, it is a factor that is required to be taken into account.
Ground 1 relates, in part, to the third, fourth and sixth conclusions and grounds 2 and 3 relate, in part, to the fifth and eighth conclusion. Ground 4 relates to the seventh conclusion.

Applying the law to the primary facts

The Tribunal went on to apply the conclusions it had reached to the facts that it had found. At [101], the Tribunal listed the following twelve matters as being "of most significance" in its decision to vary the Authority's orders. I have set out the Tribunal's reasoning in full as it shows how the Tribunal applied the conclusions it had reached to the findings of fact it had made. (1) The incident on 24 February 2016 involved a low level of violence by the Applicant. Nevertheless, it was serious criminal conduct because it was directed at the police. (2) Viewed in isolation from the totality of the Applicant's conduct, including the totality of his conduct on 24 February 2016, I doubt whether the conduct that constituted the serious indictable offences under the influence of alcohol, in combination with the fact that such conduct did not take place at a high risk venue, would have warranted the making of any long-term banning order. (3) Leaving aside, for the moment, the good behaviour bond and the apparent compliance with the bond since it was entered, in my opinion, based on the totality of the Applicant's conduct, there was a sufficient risk that the Applicant would attend a high risk venue(s) and engage in alcohol-related violence or behave in a way that could lead to alcohol-related violence, at or in the vicinity of such a venue to warrant the making of a banning order. (4) The sufficient risk to which I have just referred arises because of a combination of matters, namely, his attendance at one high risk venue in order to drink (not to attend a CPD occasion), his intoxication whilst there, the proximity of his flat and movements to high risk venues in the Sydney CBD Entertainment precinct, his drinking problem, his propensity for anti-social behaviour when affected by alcohol and the absence of any evidence of a change in his personal circumstances which negates this risk. As I see it, the greater risk would be the risk of violence directed at the Applicant provoked by anti-social behaviour by him. (5) I am inclined to think that the risk extends to high risk venues in the Kings Cross precinct, despite the absence of any evidence that the Applicant ever travelled to that area. However, that precinct, whilst not immediately adjacent to the Sydney CBD Entertainment precinct, was about one kilometre from his flat and once a ban was imposed for the Sydney CBD Entertainment precinct, travelling to the Kings Cross precinct would have had its attractions for late hour drinking. (6) The good behaviour bond and the apparent compliance with it, has reduced the risk to which I have referred. I do not think that because of the bond a banning order lacks any utility. Unlike the good behaviour bond, it sends a distinct and specific message to the Applicant (and to others) that he (they) must not be in certain places at all, let alone behave well wherever he may be. However, the Applicant faces a real threat of imprisonment if he breaches the bond and, therefore, has a powerful incentive not to cause trouble at a high risk venue. I am not, however, prepared to conclude that the risk is reduced to the purely theoretical. (7) In evaluating this risk, I have also taken account of the threat to the Applicant of losing his practising certificate should he engage in any further violent conduct of the nature described in s 116AE (3). (8) The reduced level of risk is enough to warrant the making of banning orders in respect of both precincts. (9) In saying this, I take account of the seriousness of the potential consequences should the risk eventuate, including the risk of death from assaults of this nature. (10) However, in view of the proportionality consideration to which I have referred, the period of banning should be substantially less than 12 months. In my opinion, a 3 month period of banning would be appropriate. (11) Because of the low level of violence involved in the serious indictable offences and that they did not occur at a high risk venue, I do not think that general or personal deterrence factors call for any longer period of banning. (12) The banning orders should not apply so as to preclude the Applicant from attending CPD seminars and other gatherings of the City of Sydney Law Society.

Consideration of grounds of appeal on questions of law

Ground 1 -not treating policy objectives in s 3(2) as mandatory considerations

The first ground of appeal is that the Tribunal erred in law by failing to have "due regard" to all of the matters in s 3(2)(a)-(c) of the Liquor Act in making its decision. When exercising a discretion, a decision maker must take into account mandatory considerations, that is considerations that he or she is "bound to take into account in making that decision": Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39. Conversely, a decision maker must not take into account forbidden considerations. If the decision maker does either of those things, the decision will be invalid: Aronson and Groves, Judicial Review of Administrative Action, (5th ed Law Book Company 2013) at 275.
We are satisfied that this ground of appeal identifies a question of law namely whether the Tribunal failed to take into account a mandatory consideration.
The matters listed in s 3(2) are policy statements focusing on minimising harm, encouraging responsible attitudes and contributing to the amenity of community life. The Tribunal must take those matters into account when exercising its discretion. They are what is known as "mandatory considerations". According to the Commissioner the Tribunal did not give any consideration to those matters when applying the law to the primary findings of fact.
The Commissioner also expressed this ground of appeal as the Tribunal having no "active intellectual engagement" with the specific matters in that provision. That phrase comes from a decision of the Full Court of the Federal Court in Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140 at [47]. In that case at [49], the Court concluded that the Administrative Appeals Tribunal's reasons for decision did not show "an active intellectual engagement with the question how the factor or consideration of general deterrence was taken into account, and therefore whether it was taken into account at all, in the exercise of a discretion ..."
Some judges have considered it sufficient for a decision maker to do no more than "... call his own attention to the matters which he is bound to consider": Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 per Mason J at 39. At the other end of the scale are Gummow J's remarks in Khan v Minister for Immigration, Local Government and Ethnic Affairs (unreported, Fed Ct, Dec 1987) (14 ALD 291 at 292) where His Honour said that the decision maker must give "proper, genuine and realistic consideration to the merits of the case ..."
The Court of Appeal addressed this issue in Weal v Bathurst City Council [2000] NSWCA 88; (2000) 111 LGERA 181 in the context of an application for judicial review on the ground that the decision maker had not taken into account relevant considerations. Giles JA, with whom Priestley JA agreed, stated the relevant principle at [80], 201: Taking relevant matters into consideration called for more than simply adverting to them. There had to be an understanding of the matters and the significance of the decision to be made about them, and a process of evaluation, sufficient to warrant the description of the matters being taken into consideration.
In summary, in order to determine whether the Tribunal has made an error of law in relation to this ground of appeal, we must firstly determine whether the Tribunal demonstrated that it understood the matters in s 3(2) of the Liquor Act and their significance to the decision and, secondly, whether the Tribunal engaged in a process of evaluating those matters before exercising its discretion.
There is no doubt that the Tribunal understood that the matters in s 3(2) are mandatory considerations. The Tribunal referred to the matters in s 3(2) when reciting the Commissioner's submissions. At [91] the Tribunal expressly acknowledged that s 3(2)(a) (inadvertently cited as s 3(a)) was a mandatory consideration. In addition, when addressing the question of whether a person's private interests are mandatory considerations, the Tribunal said, at [97] that: In so concluding, I recognise that the private interests of the person the subject of the proposed order, beyond the issue of harm to that person, is not one of the mandatory considerations specified in the objects clause; cl 3(2). However, those mandatory considerations are not expressed to be exhaustive …
When setting out the correct approach to the exercise of the powers to make long term banning orders, the Tribunal acknowledged that the power must be construed "in accordance with the text of the provisions creating the power, the text of the Liquor Act as a whole and the context for the provisions, including the mischief to which the powers are directed" (at [84]). At [85], the Tribunal identified the "mischief" to which the powers are directed as being "primarily directed at the reduction of alcohol fuelled violence at, or emanating from, specified venues in the Kings Cross precinct and the Sydney CBD Entertainment precinct". That statement reflects the policy objective of harm minimisation in s 3(2)(a).
The Tribunal went on to say that "[T]he banning orders are designed to protect the public's safety and community amenity". That statement reflects the policy objective of contributing to the amenity of community life in s 3(2)(c).
When applying the law to the findings of fact at [101], the Tribunal carefully evaluated all the facts relevant to the policy objectives in s 3(2). Of the 12 findings, the first nine all relate to harm minimisation which is the policy objective in s 3(2)(a). For example, at 101, the Tribunal found that "... there was a sufficient risk that the Applicant would attend a high risk venue(s) and engage in alcohol-related violence or behave in a way that could lead to alcohol-related violence, at or in the vicinity of such a venue to warrant the making of a banning order".
The Tribunal was also mindful of the deterrence effect of long term banning orders: at 101. Deterrence is one way of encouraging responsible attitudes and practices to the consumption of liquor and contributing to the amenity of the community.
Each of the direct and indirect references to the matters in 3(2) and the way in which the Tribunal reasoned at [101] demonstrate that the Tribunal did have due regard to the matters in s 3(2) when exercising the discretion. Although the Tribunal did not refer expressly to s 3(2)(b) and (c) when discussing the approach to the exercise of those discretions, the Tribunal took into account the deterrence effect of long term banning orders and used language such as "community amenity" which shows that it understood those matters and their significance to the decision. The reasoning process set out at [101] demonstrates unequivocally that the Tribunal engaged in a process of evaluating those matters before exercising its discretion.

Grounds 2 and 3 - private interests as mandatory considerations and balancing of public and private interests

Grounds 2 and 3 are related. Ground 3 is that the Tribunal erred in law by concluding that the private interests of the person the subject of the proposed long term banning order are a "mandatory relevant consideration" required to be taken into account when determining whether to make the order and when deciding the scope and extent of any such order. The Commissioner of Police agreed that private interests are relevant and therefore the Tribunal is permitted to take those interests into account. The Tribunal's mistake, in the Commissioner's submission, was characterising those interests as a mandatory consideration.
Ground 2 is that the Tribunal erred in law in holding that the decision to make (or not to make) a long-term banning order and the determination of the extent and scope of the long-term banning order, involves a balancing exercise between the interests of the public and the private interests of the person the subject of the proposed order.
By "private interests" the Tribunal was referring to its primary finding of fact about the impact of the banning order on Mr Monastirski's interests. The Tribunal found that the orders would restrict his freedom of movement, prevent him from attending meetings of the City of Sydney Law Society at licenced premises in the CBD and prevent him from eating at some local restaurants including at pubs and clubs.
In relation to ground 2, the Tribunal held at [98] that: 98. Accordingly, in my opinion, the exercise of the discretion to make a long-term banning order does involve a balancing exercise between the interests of the public and the private interests of the person the subject of the proposed order. (Emphasis added.)
The Commissioner of Police submitted that requiring the Authority to consider the private interests of the individual as a mandatory consideration and then balancing the interests of the public with those private interests amounts to a "constraint on the ambit of power" in s 116AE and s 116G of the Liquor Act. According to the Commissioner, the effect of the Tribunal's decision is to require the Authority to consider the private circumstances of the individual and the impact of the banning order on the individual and weigh those matters against the interest of the community.
It was the Commissioner's submission that it cannot be inferred "by implication from the subject matter, scope and purpose" of the Liquor Act that an individual's private interests are a mandatory consideration: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40 (Mason J). The Commissioner also quoted Austereo Ltd v Trade Practices Commission (1993) 41 FCR 1 at 37 in support of the proposition that any such implication is "not to be made lightly". According to the Commissioner, an inference cannot be drawn that an individual's private interests are a mandatory consideration because: 1. an important objective of the Liquor Act is to "regulate and control the … consumption of liquor in a way that is consistent with the expectations, needs and aspirations of the community": Liquor Act, s 3(1)(a); and 2. with a view to securing that objective, the Authority "is required to have due regard" to the matters in s 3(2).
The Commissioner of Police did not submit that the Tribunal failed to take into account a mandatory consideration or that it took into account a consideration that it was forbidden from taking into account: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39. The Commissioner submitted that the Tribunal characterised Mr Monastirski's private interests as a mandatory consideration when those interests are merely a "permissive" consideration. (A permissive consideration is a consideration that is relevant but overlooking those considerations.) The Commissioner understood that that is not an error of law on either of the 'relevancy' grounds.
The Commissioner of Police characterised the alleged error of law as being a "constraint on the ambit of power" in s 116AE and s 116G of the Liquor Act. In determining whether the Tribunal has erred in the exercise of a discretion, the well-known principles in House v The King [1936] HCA 40; 55 CLR 499 at 505 (Dixon, Evatt and McTiernan JJ) apply: It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.
Our understanding of the Commissioner's submission on these grounds of appeal is that the Tribunal acted on a "wrong principle" when exercising the discretion in s 116AE(1) and s 116G(1) of the Liquor Act. That is, when determining the law and applying the law to the primary findings of fact, the Tribunal considered itself bound to take into account Mr Monastirski's private interests when determining both whether a banning order should be made and, if so, the length and scope of that order. We are satisfied that, expressed in this way, ground 2 identifies a question of law.

Consideration of grounds 2 and 3

Once a pre-condition for the making of a long term banning order has been met, the decision maker needs to determine whether to exercise the discretion to make the order. If the decision maker decides to make the order, he or she must also determine the length of any order (up to a maximum of 12 months) and whether there should be any exceptions to the high risk venues in the relevant precinct to which the order is to apply.
At [96] the Tribunal gave the following six reasons for concluding that Mr Monastirski's private interests are a mandatory consideration: 96. I imply this to be a mandatory consideration because: (a) There is an obvious intrusion of a banning order on an individual's freedom of movement. (b) The scope of the venues to be the subject of the prohibition needs to be considered (s 116AE(1) and s 116G(1) - prohibition in respect of "any" high risk venue). (c) The period of the prohibition needs to be considered (s 116AE(1) and s 116G(1) - a period "not exceeding 12 months"). (d) It is clear that personal factors of the person the subject of the proposed order might affect the scope and term of the prohibition. They might also affect the question whether to impose any ban - for example, the person might be able to demonstrate that they have completely reformed. (e) As indicated above, the harm to be taken account of may include harm to the person the subject of the proposed orders. (f) The fact that the exercise of the power is expressed to be conditional upon a reasonable opportunity having been given to the person the subject of the proposed order to make submissions about the making of a banning order (s 116AE(4) and s 116G(4)) contemplates that the private interests of the person concerned should be taken into account. 97. In so concluding, I recognise that the private interests of the person the subject of the proposed order, beyond the issue of harm to that person, is not one of the mandatory considerations specified in the objects clause; cl 3(2). However, those mandatory considerations are not expressed to be exhaustive and were not specifically tailored to apply to the banning powers - the introduction of the banning powers into the legislation post-dates the objects clause.
Whether a particular matter is a consideration that the decision maker is bound to take into account or, conversely, forbidden from taking into account, is a matter of statutory construction. As the authors Aronson and Groves wrote in Judicial Review of Administrative Action, (5th ed Law Book Company 2013) at 275: Relevancy and its opposite are defined ultimately by the Act which prescribes what must or must not be considered. More than that, for these grounds to apply, the Act must be seen to stipulate that breach of such of its relevancy criteria as are in question is meant to result in invalidity. Many Acts are properly construed as allowing their decision makers to consider all sorts of relevant things, but as requiring them (in the sense that breach will result in invalidity) to consider very few things.
The Liquor Act expressly makes the matters in s 3(2) mandatory considerations by saying that a decision maker must have "due regard" to those matters. But a statute may also imply that a particular consideration is intended to be mandatory. In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 389, the High Court held that deciding whether it was the statute's purpose that invalidity should result from breach of a particular requirement "often reflects a contestable judgment".
The discretions in s 116AE(1) and s 116G(1) are expressed broadly, but it cannot have been the legislature's intention that a decision to impose a long term banning order would be invalid if the person's private interests were not taken into account. In reaching that conclusion, we explain firstly why we are not persuaded by two of the Tribunal's justifications for coming to the opposite conclusion.
At 96, the Tribunal held that it was clear that "personal factors" might affect the scope and term of the prohibition. The Tribunal added that those factors might also affect the question whether to impose any ban - for example, the person might be able to demonstrate that they have completely reformed. In our view, the issue of whether the person has completely reformed may be a "personal factor" but it is not a "private interest". Our understanding of private interests in this case are Mr Monastirski's freedom to attend meetings of the City of Sydney Law Society at licenced premises in the CBD and to eat at some local restaurants. Whether or not a person has completely reformed is a question that goes directly to the risk of harm associated with violence and other anti-social behaviour: Liquor Act, s 3(2)(a).
Nor are we persuaded by the Tribunal's reasoning at 96. The Tribunal concluded that the fact that the exercise of the power is expressed to be conditional upon a reasonable opportunity having been given to the person the subject of the proposed order to make submissions about the making of a banning order (s 116AE(4) and s 116G(4)) contemplates that the private interests of the person concerned should be taken into account. The 'hearing rule' of procedural fairness requires that where a person's interests are affected by a decision, that person should be given an opportunity to respond to adverse information: Kioa v West [1985] HCA 81; (1985) 159 CLR 550. The adverse information in this case is the allegations as to the conduct of the person which is said to justify a long term banning order. Neither the hearing rule itself nor the fact that the legislation requires the decision maker to give the person an opportunity to make submissions, support the conclusion that a person's private interests are a mandatory, as distinct from a permissive, consideration.
The Tribunal gave two other justifications for its conclusion that "private interests" are a mandatory consideration. They were that there "is an obvious intrusion of a banning order on an individual's freedom of movement" and the harm to be taken account may include harm to the person the subject of the proposed orders. Those justifications do not persuade us that a person's private interests are a mandatory consideration leading to invalidity if they are overlooked. Firstly, there is no direct or indirect reference to private interests in the discretionary powers themselves, in the objects of the Act or in the mandatory considerations in s 3(2). Secondly, at least in some cases, a banning order will not have any practical effect on the person's professional or social activities and so will not be relevant. In our view, the Tribunal acted on a wrong principle when it concluded that a person's private interests are a mandatory consideration.
In relation to ground 2, the Tribunal expressed the view at [98] that "the exercise of the discretion to make a long-term banning order does involve a balancing exercise between the interests of the public and the private interests of the person …".
The Tribunal did not say that a person's private interests should be given equal weight or that an assessment should be made as to whether the public interest outweighed any private interests. It is clear from the Tribunal's reasoning at [101] that the public interest was the only consideration the Tribunal took into account when deciding whether or not to make a long term banning order. It was only after the Tribunal had concluded that such orders were justified that it turned to the question of the length and scope of the order. It was in that context that the Tribunal gave some weight to Mr Monastirski's private interests.
Contrary to the Commissioner's submission, the Tribunal did not give a heavy emphasis to the private interests of the individual, nor did the Tribunal consider the private circumstances of the individual and weigh those matters against the interests of the community prior to deciding whether to make a long term banning order.
In circumstances where the Commissioner acknowledged that Mr Monastirski's private interests are relevant considerations, the weight to be given to various considerations is generally a matter for the Tribunal: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40. As Mason J at 39-40, "… in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power". (Emphasis added.) This ground of appeal does not identify a question of law.

Ground 4 -relevance of fact that conduct giving rise to the application for the long-term banning order occurred or did not occur at a high risk venue

The Commissioner of Police submitted that the Tribunal erred in law by concluding that the following factor was also a "mandatory relevant consideration" required to be taken into account when determining whether to make a long-term banning order: namely, whether the conduct giving rise to the application for the long-term banning order occurred or did not occur at a high risk venue.
At [93], of the decision, the Tribunal held that "an important factor to be considered in the exercise of the discretion is the risk that the person the subject of the proposed order will be involved in violence, whilst affected by alcohol, at a high risk venue". When applying the law to the primary facts at [101], the Tribunal held that: (1) The incident on 24 February 2016 involved a low level of violence by the Applicant. Nevertheless, it was serious criminal conduct because it was directed at police. (2) Viewed in isolation from the totality of the Applicant's conduct, including the totality of his conduct on 24 February 2016, I doubt whether the conduct that constituted the serious indictable offences under the influence of alcohol, in combination with the fact that such conduct did not take place at a high risk venue, would have warranted the making of any long-term banning order.
The Commissioner of Police submitted that these passages demonstrate that the Tribunal imposed a "constraint on the ambit" of the discretionary powers in s 116AE and s 116G of the Liquor Act. According to the Commissioner, such a constraint is not found in the text of those provisions. It is sufficient if the offending conduct occurred in a public place. It does not need to have occurred at a high risk venue.
This ground of appeal is misconceived. The Tribunal did not characterise or treat the fact that the conduct giving rise to the application for the long-term banning order occurred or did not occur at a high risk venue as a mandatory consideration. Nor did the Tribunal impose a restraint on the ambit of the discretionary powers in s 116AE and s 116G. Rather, the Tribunal took that matter into account as a permissive consideration. The Commissioner accepted that the question of whether Mr Monastirski's conduct occurred at a high risk venue is a relevant consideration. The weight to be given to various considerations is generally a matter for the Tribunal: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 234 at 39-40.

Appeal on other grounds

We have upheld the appeal on the ground that the Tribunal acted on a "wrong principle" when exercising the discretion in s 116AE(1) and s 116G(1) of the Liquor Act. That is, when determining the law and applying the law to the primary findings of fact, the Tribunal wrongly considered itself bound to take into account Mr Monastirski's private interests.
The Commissioner of Police applied to the Tribunal for leave to appeal on grounds other than a question of law: NCAT Act, s 80(2)(b). Our understanding of this application is that if the Tribunal did not uphold each ground of appeal on the 'questions of law' identified by the Commissioner, we should nevertheless give permission for the Commissioner to appeal on those grounds.
In Collins v Urban [2014] NSWCATAP 17 [84] the Appeal Panel of the Tribunal set out the following general principles: In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; Ordinarily it is appropriate to grant leave to appeal only in matters that involve: a. issues of principle; b. questions of public importance or matters of administration or policy which might have general application; or c. an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; d. a factual error that was unreasonably arrived at and clearly mistaken; or e. the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45];
With those principles in mind, the Commissioner submitted that the following matters support the granting of leave to appeal on grounds other than questions of law: 1. the proceedings raise important issues of principle and questions of public importance regarding the constructions and operation of Pt 6, Div 3 and Div 4 of the Liquor Act; 2. those principles and questions have not been considered previously by an Appeal Panel. This Panel's decision is likely to have ramifications for future decisions taken by the Authority regarding applications for long term banning orders; 3. the Tribunal's decision involved fundamental errors of law and principle, which infected its consideration of the merits.
Other than in relation to ground 3, we have concluded that the Tribunal exercised its powers according to law. In those circumstances, there is no justification for giving leave to appeal on grounds other than questions of law.

Determination of the appeal

The Appeal Panel's powers when determining an internal appeal are set out in s 81 of the NCAT Act: 81 Determination of internal appeals (1) In determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following: (a) the appeal to be allowed or dismissed, (b) the decision under appeal to be confirmed, affirmed or varied, (c) the decision under appeal to be quashed or set aside, (d) the decision under appeal to be quashed or set aside and for another decision to be substituted for it, (e) the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel. (2) The Appeal Panel may exercise all the functions that are conferred or imposed by this Act or other legislation on the Tribunal at first instance when confirming, affirming or varying, or making a decision in substitution for, the decision under appeal and may exercise such functions on grounds other than those relied upon at first instance.
Our decision on the appeal is that the Tribunal made an error of law in characterising Mr Monastirski's private interests as a mandatory consideration and in relying on that characterisation when applying the law to the primary findings of fact. To that extent, the appeal is allowed. But that conclusion does not necessarily mean that the Tribunal's decision should be set aside. The Commissioner submitted that the Appeal Panel should re-determine Mr Monastirski's application for review of the long term banning orders on their merits and affirm those decisions. We do not agree that our conclusion warrants a reconsideration of Mr Monastirski's application on its merits.
Rather, an assessment needs to be made as to whether, if the Tribunal had not treated Mr Monastirski's private interests as a mandatory consideration, it would have come to a different conclusion. That assessment can be made either by remitting the matter to the Tribunal for reconsideration or by the Appeal Panel determining that question. In our view it would facilitate the "just, quick and cheap resolution of the real issues in the proceedings" for the Appeal Panel to determine that question: NCAT Act, s 36(1).
As we have said, it is clear from the Tribunal's reasoning at [101] that the public interest, that is the protective and deterrence factors, were the only considerations the Tribunal took into account when deciding whether or not to make a long term banning order. It was only after the Tribunal had concluded that such orders were justified that it turned to the question of the length and scope of the order. It was in that context that the Tribunal gave some weight to Mr Monastirski's private interests. Contrary to the Commissioner's submission, the Tribunal did not give a heavy emphasis to the private interests of the individual, nor did the Tribunal consider the private circumstances of the individual and weigh those matters against the interests of the community prior to deciding whether to make a long term banning order.
It follows, in our view, that even if the Tribunal had regarded Mr Monastirski's private interests as a permissive, rather than a mandatory, consideration it would have made the same orders.

Costs

Mr Monastirski applied for costs on the basis that the Commissioner of Police appealed on issues of principle, not because the decision to decrease the banning orders from 12 months to 3 months is necessarily the wrong decision. Because this is the first matter of its kind to be determined by the Tribunal, Mr Monastirski feels as if he has been the "guinea pig" and should not have to bear the costs of defending the appeal.
Under s 60 of the NCAT Act, the general rule is that parties pay their own costs. There must be "special circumstances" justifying an award of costs before the Appeal Panel will make a costs order. 60 Costs (1) Each party to proceedings in the Tribunal is to pay the party's own costs. (2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs. (3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36 (3), (g) any other matter that the Tribunal considers relevant.
We have allowed the appeal in part. We are not satisfied that the Commissioner's appeal was so weak as to justify a costs order nor is there any other relevant matter justifying an order for costs.

Orders 1. The appeal is allowed, in part. 2. Leave is refused for the Commissioner of Police, NSW Police Force to appeal on grounds other than questions of law. 3. The Tribunal's decision is affirmed. 4. Mr Monastirski's application for costs is refused.

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: 08 December 2017

Under the Liquor Act 2007(NSW)

(2000) 111 LGERA 181

At a glance

Court

Decision date

Source

Judgment (16 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (16)

Cited By (2)