Director-General, Department of Trade & Investment, Regional Infrastructure and Services v Lewis

Judgment 1McCOLL JA: The Director-General of the Department of Trade and Investment, Regional Infrastructure and Services (the "Director-General") seeks leave to appeal from a decision of Nicholas J restraining the Director-General from making any determination to vary the existing terms of the Sydney Central - Kings Cross Precinct Liquor Accord ("Accord") under s 136D of the Liquor Act 2007 (the "Act") insofar as it applied to premises known as the Kings Cross Hotel (the "Hotel") until seven days after the Director-General produces certain documents identified in the orders: Lewis v Director-General Department of Trade & Investment, Regional Infrastructure and Services [2012] NSWSC 1044. The respondents, Sarah Lewis and KX Operations Pty Ltd, are respectively the Hotel licensee and business owner. 2The matter was constituted as an application for leave to appeal out of abundant caution. The respondents made no substantive submissions as to whether or not leave was required nor did they oppose leave being granted if that was necessary. 3The primary judge heard the matter on 30 August 2012 and delivered judgment the following day. His Honour's orders were entered on 6 September 2012. The summons seeking leave to appeal was filed on 7 September 2012. It was granted expedition and heard on 12 September 2012. At the conclusion of the hearing the Court thought it appropriate to announce its orders as the matter had come on urgently and it had a clear view that the injunction the primary judge granted should be discharged. Accordingly the Court made the following orders: (1) To the extent leave to appeal is required, grant leave to appeal; (2) Direct the Director-General to file a notice of appeal in terms of the draft in the White Book within seven days; (3) Appeal allowed; (4) Set aside the orders of the court below made on 31 August 2012; (5) Order the respondent to pay the costs of this appeal and of the application for leave to appeal; (6) Order the respondents to pay the Director-General's costs in the court below. (7) Order that the summons in the court below be dismissed. 4These are my reasons for the orders made on 12 September 2012.

Legislative Framework 5The objects of the Act are set out in s 3 relevantly as follows: "(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, (2) In order to secure the objects of this Act, each person who exercises functions under this Act (including a licensee) is required to have due regard to the following: (a) the need to minimise harm associated with misuse and abuse of liquor (including harm arising from violence and other anti-social behaviour), (b) the need to encourage responsible attitudes and practices towards the promotion, sale, supply, service and consumption of liquor, (c) the need to ensure that the sale, supply and consumption of liquor contributes to, and does not detract from, the amenity of community life." 6The Act forbids a person from selling liquor unless the person is authorised to do so by a licence: s 7. A hotel licence such as that held by the first respondent authorises the licensee to sell or supply liquor in accordance with the Act and the conditions of the licence: s 10; see also s 11. The Director-General has power to impose conditions on a licence for such reasons and in such circumstances as he thinks fit: s 54(1). The Director-General may, on application by the licensee or the Commissioner of Police or on the Director-General's own initiative vary or revoke a licence condition: s 54(2). However, the Director-General must first give the licensee a reasonable opportunity to make submissions in relation to the proposed decision, and taken any such submissions into consideration before making the decision: s 54(3). 7Schedule 4 sets out special licence conditions for declared premises: s 11(1A). Declared premises are premises to which a level 1 or 2 licence relates: cl 1(i), Sch 4. Declared premises are identified by name in Sch 4 and do not include the Hotel. The special licence conditions to which such premises are subject include conditions (cll 4 and 5) substantially in terms of some of those the Director-General is proposing to apply to the various premises subject to the Accord. 8Part 8, Div 2 of the Act, which was inserted into the legislation by the Liquor Legislation Amendment Act 2010, relevantly provides: "Division 2 Precinct liquor accords and community event liquor accords 136A General provisions (1) For the purposes of this Act, a precinct liquor accord or a community event liquor accord is a set of measures, approved by the Director-General under this Division, that aim to do either or both of the following: (a) to minimise or prevent alcohol-related violence or anti-social behaviour, or other alcohol-related harm, in the precinct or area to which the relevant liquor accord applies, (b) to protect and support the good order or amenity of any such precinct or area in connection with issues arising from the presence of, or any proposed increase in the number of, licensed premises in that precinct or area. ... (3) A precinct liquor accord or community event liquor accord does not require the agreement of the accord participants to the measures provided for by the accord. 136B Director-General may approve liquor accords for designated precincts (1) The Director-General may: (a) designate a precinct as being a precinct to which a proposed precinct liquor accord is to apply, and (b) approve a precinct liquor accord for the designated precinct, and (c) vary, at any time, the terms of a precinct liquor accord. (2) The designated precinct to which a precinct liquor accord applies or is to apply must be shown on a map that is made publicly available in such manner as the Director-General considers appropriate. (3) The Director-General may approve a precinct liquor accord for a designated precinct only if the Director-General is satisfied that: (a) in the precinct there is, or there is a potential for, a significant risk of harm to members of the public associated with the misuse and abuse of liquor (including harm arising from violence or other anti-social behaviour), and (b) the measures to be provided for by the accord are necessary: (i) to prevent harm to members of the public associated with the misuse and abuse of liquor in the precinct (including harm arising from violence or other anti-social behaviour), or (ii) to protect and support the good order or amenity of the precinct in connection with issues arising from the presence of, or any proposed increase in the number of, licensed premises in the precinct. (4) The Director-General may terminate a precinct liquor accord at any time by notice in writing given to the persons or bodies participating in the accord. ... 136D Content of precinct and community event liquor accords (1) A precinct liquor accord or community event liquor accord may include such measures as the Director-General considers are necessary: (a) to minimise or prevent alcohol-related violence or anti-social behaviour or other alcohol-related harm in the precinct or area to which the accord applies, or (b) to protect and support the good order or amenity of any such precinct or area in connection with issues arising from the presence of, or proposed increase in the number of, licensed premises in the precinct or area concerned. (2) The Director-General must give notice of the terms of a precinct liquor accord or community event liquor accord, and of any variation to the terms of such an accord: (a) to each licensee who is required to participate in the accord, and (b) to such other participants in the accord as the Director-General considers appropriate. (3) Without limiting the measures that may be included in a precinct liquor accord or community event liquor accord, any such accord may include measures requiring a licensee to do any one or more of the following: (a) to cease serving liquor (including take-away liquor) on the licensed premises during such times as are specified in the accord, (b) to restrict the public's access to the licensed premises in a manner and to the extent provided by the accord, (c) to restrict the use of glass containers on the licensed premises, (d) to maintain an incident register, (e) to install and operate closed-circuit television or any other security device on the licensed premises, (f) to provide security staff in or about the licensed premises. ... 136E Requirement to participate in precinct or community event liquor accord (1) The Director-General may, in the case of licensed premises situated wholly or partly in the precinct to which a precinct liquor accord applies or in the area to which a community event liquor accord applies, impose conditions on the licence, by notice in writing to the licensee, requiring the licensee to participate in the liquor accord for that precinct or area. (2) Without limiting subsection (1), if (a) the sale or supply of liquor after midnight on licensed premises is authorised at least once a week on a regular basis, and (b) the licensed premises are situated wholly or partly in the precinct to which a precinct liquor accord applies or in the area to which a community event liquor accord applies, it is a condition of the licence that the licensee, on being notified in writing by the Director-General, participate in the liquor accord for that precinct or area. (3) For the purposes of this section, 'participate' in a liquor accord means participate in the development, implementation and operation of the accord and, without limitation, includes any of the following: (a) developing the measures to be provided for by the accord, (b) complying with those measures to the extent that they apply to the licensee, (c) developing and maintaining the mechanisms and processes that support the operation of the accord, (d) participating in any committee established under the accord. ..." (Emphasis added) 9I should also note that the precinct liquor accord provisions also substantially apply to a community event liquor accord. The latter form of accord is created when the Director-General designates a community event as one to which such an accord is to apply, and approves the measures to apply to that designated event for the period, and the area, specified in the accord: s 136C. Such an accord may only be approved if the Director-General is satisfied of the same matters in relation to the area in which the accord is to apply as he or she is required to be satisfied of in approving a precinct liquor accord: s 136C(4). Section 136D and s 136E apply to both precinct and community event liquor accords. 10The Act also contains provisions dealing with complaints to which brief reference should be made. 11Division 3 of Part 5 (Regulation and Control of Licensed Premises) deals with disturbance complaints. It enables a person to complain to the Director-General that the quiet and good order of the neighbourhood of licensed premises are being unduly disturbed because of the manner in which the business of those premises is conducted or the behaviour of persons after they leave the premises: s 79. If the Director-General decides to deal with the complaint he may convene a conference to hear submissions in relation to it or invite written submissions from the licensee: s 80. After dealing with the complaint in accordance with s 80, the Director-General may, relevantly, either impose a condition on the licence of the relevant licensed premises or vary or revoke a condition to which the licence is subject: s 81(1)(a) and (b). The conditions that may be imposed consequent upon a complaint include conditions relating to prohibiting the sale or supply of liquor before 10am and after 11pm, restricting the trading hours of and public access to the licensed premises and requiring the licensee to participate in and to comply with, a liquor accord: s 81(2). 12Division 4 of Part 5 deals with closure orders in relation to licensed premises. They may be made on a short-term (72 hours) or long-term basis: s 82, s 84. In the case of a long-term closure order, the licensee must be given notice of the application for the closure and a reasonable opportunity to make submissions to the Authority in relation to the application: s 84(2)(b). Division 5 of Part 5 enables the Director-General to make late hour entry declarations to prevent patrons entering licensed premises during late trading hours even though the premises are authorised to trade during that time: s 87(2). The Director-General must give written notice of a proposed late hour entry declaration, relevantly, to each licensee whose licensed premises are the subject of the proposed declaration, who must be given 21 days to make a written submission to the Director-General in relation to the proposed declaration which the latter must take into consideration before deciding whether to make the declaration: s 89(2) - (3). The Director-General must also give written notice of a proposed variation or revocation of a late hour entry declaration, and a 21 day opportunity for the notice recipients to make submissions concerning the proposal. The Director-General is required to consider those submissions before deciding whether to vary or revoke a late hour entry declaration: s 90. 13Part 9 deals with disciplinary action. The Director-General is empowered to carry out such investigations and inquiries as he or she considers necessary to ascertain whether a complaint should be made under the Part in relation to certain persons, including a licensee: s 138(1). The Director-General, and other specified persons, may complain to the Independent Liquor and Gaming Authority (the "Authority") constituted under the Gaming and Liquor Administration Act 2007 in relation to a licensee: s 139 (1). If such a complaint is made, the Authority must, before taking any disciplinary action against the person the subject of the complaint, give that person notice in writing of the grounds upon which that action is proposed and invite the person to show cause by way of a written submission as to why such disciplinary action should not be taken: s 140(1) and (2). If any written submission is made, the Authority must take it into consideration in deciding whether or not to take disciplinary action: s 140(5). If the Authority is satisfied that any of the grounds on which the complaint was made is made out, it may take various steps including cancelling the licence or imposing a condition to which the licence is to be subject or revoke or vary a condition to which it is subject: s 141(2)(a), (e). 14Part 9A is headed "Disciplinary action - 3 strikes". In substance it provides for a "strike" to be incurred in respect of a licence if a relevant person in relation to the licence commits a prescribed offence, defined to be an offence against specified provisions of the Act: s 144B. Once one or two strikes are in force in respect of a licence, the Director-General is empowered to impose conditions on the licence including conditions prohibiting the use of glass or other breakable containers on the licensed premises and requiring the engagement of persons to promote the responsible service of alcohol at the premises: s 144E(1)(b), (c). Once three strikes are incurred in respect of a licence, the Authority must take action in order to prevent the commission of any further prescribed offences by a relevant person in relation to the licence: s 144F(1). 15A decision under either s 144E or s 144F is a "reviewable decision". Before making any such decision the decision-maker must notify persons identified in s 144G(2) of the proposal to make such a decision and give that person an opportunity to make a submission. The decision-maker must take that submission as well as other specified matters into account and must also take into account any other matter he or she thinks is relevant: s 144G. Division 3 of Pt 9A sets out a procedure for the review of a reviewable decision either by the Authority in the case of a decision of the Director-General, or by the Administrative Decisions Tribunal in the case of a decision by the Authority: s 144H(2).

Factual Background 16The first respondent holds a hotel licence in respect of the Hotel which is located in William Street in Kings Cross. She holds it on behalf of her employer, the second respondent, which owns the business conducted at the Hotel. The Hotel falls into an area to which the Accord applies. 17The Director-General approved the Accord on 6 September 2010 pursuant to s 136B of the Act. It applies to 58 licensed premises of which at least 56 appear to be premises required to participate in the Accord by virtue of s 136E(2) of the Act. Since 8 September 2010 the Hotel licence has been subject to a condition that the licensee "must participate in the precinct liquor accord that applies to the Sydney Central precinct designated by the Director-General of Communities NSW under section 136B of the Act". That condition was presumably imposed pursuant to s 136E(1) of the Act. 18By letter dated 14 August 2012, the Director-General notified the respondents that he was considering varying the terms of the Accord. The letter relevantly stated: "My consideration is based on information contained in the attached Kings Cross Precinct Liquor Accord alcohol-related harm profile... The attached report demonstrates a prima facie case for regulatory intervention to: minimise or prevent alcohol-related violence or anti-social behaviour or other alcohol-related harm in the precinct or area to which the accord applies; and to protect and support the good order or amenity of any such precinct or area in connection with issues arising from the presence of, or proposed increase in the number of, licensed premises in the precinct or area concerned. I have formed a preliminary view that it is necessary to vary the existing terms of the accord under s 136D of the Liquor Act 2007 to include the additional measures as set out in enclosure 1. Prior to forming a final view, and to ensure that all relevant factors are considered you are invited to make a submission on the proposed measures. ... In the absence of a submission, I will make a determination based on the available material and any other relevant information before me." 19The Director-General required submissions to be made by 4 September 2012. 20The report referred to in the 14 August 2012 letter was a report to the Director-General apparently prepared by the Compliance Branch of the Office of Liquor, Gaming and Racing ("the Report"). The introduction to the Report stated as follows: "This report is responding to increasing concern that there is an unacceptable risk of alcohol related harm, including alcohol related violence and antisocial behaviour in the Kings Cross precinct. Further, it responds to the concern that the good order and amenity of the precinct is being unduly disturbed due to issues arising from the presence of licensed premises. This report relies on key data that provides an informed view on the risk of alcohol related harm in the Kings Cross precinct. This is not an exhaustive examination of individual incidents; rather the report looks to throw light on the risk of alcohol related harm in the precinct and the disturbance of good order and amenity in the area." 21The intention of the Report was said to be "to provide a proper basis to consider what additional regulatory measures may be necessary to mitigate the risk of alcohol related harm in the Kings Cross precinct". The inquiries underpinning the Report were said to include "a focused audit of licensed premises in, or in the vicinity of, the Kings Cross precinct liquor accord ... an assessment of crime data and a review of pedestrian movement and anti-social behaviour research encompassing the Kings Cross precinct". The Report identified "data sourced from NSW Police and the NSW Bureau of Crime Statistics and Research (BOCSAR)" as having been used "to quantify the risk of harm and disturbance in the precinct and determine whether there were any trends emerging in Kings Cross". 22The principal source of data arising from the audits of licensed premises was said to be the Incident Registers maintained by the licensees pursuant to s 56 of the Act. This information was said to provide "a strong indication of incidents and trends across the precinct without definitively demonstrating the risk of harm at specific venues." Subject to some qualifications which do not require repetition, the Report asserted that "the key trends arising from the aggregated Incident Register data demonstrate a significant risk of alcohol related harm and disturbance in the Kings Cross precinct." 23Among the main findings of the Report were that there were "high numbers of alcohol related incidents on PLA premises and in public places within the precinct", that the period between midnight and 5.00am was a higher risk window for such activities, that there were "significant numbers of glassing related incidents in the PLA" and that "patron migration to, from and between licensed premises within the precinct contributes to public place violence and anti-social behaviour". 24Under the heading "Alcohol Related Harm and Anti-Social Behaviour", the report summarised BOCSAR data said to demonstrate the "significant number of alcohol related assaults on licensed premises and in public places within the Kings Cross PLA" as well as the "high levels of alcohol related street offences within the precinct". It was common ground that while some of the BOCSAR data was publicly available, some was not. 25Under the heading "NSW Police Crime Profile", the Report referred to a "Kings Cross precinct alcohol assessment report for the period of 1 July 2011 to 30 June 2012" provided to the authors by the NSW Police as well as to an update to that Report expanding on the data to 3 August 2012. Data described as "Police linking data" was said to highlight "high levels of consumption of liquor at licensed premises and in public places in the Kings Cross LAC prior to a recorded incident". It compared that data to the consumption of liquor at home and private premises leading the authors to the suggestion that "the majority of persons involved in incidents had consumed liquor at licensed premises prior to the incident occurring". What appears to be the same Police report located 260 alcohol-related assaults to outdoor public places in the Kings Cross LAC between July 2011 and June 2012 as well as 195 alcohol-related assaults on licensed premises in Kings Cross during the same period. The same data also led the authors to conclude that incidents of alcohol-related crime peaked between midnight and 5am on Saturday and Sunday mornings. 26Under the heading "Glassing Analysis", the Report referred to Police crime data which indicated that 28 glassing incidents had been reported to Police within the Kings Cross LAC between August 2008 and July 2012, the majority of which occurred on licensed premises in the PLA. Eighty two percent of those incidents were said to have occurred between midnight and 5.00am. 27Under the heading "Conclusion" the Report stated: "The risk of alcohol related harm and disturbance of the good order or amenity of the PAL is demonstrable in the data obtained from licensee Incident Registers and affirmed by additional information from BOCSAR, NSW Police and City of Sydney Council commissioned research ... The trends indicated by the Incident Register data are concerning and the corrective impact of high numbers of intoxicated patrons being shifted into the precinct raises the risk of alcohol related harm and is alarming the residential community. The data considered in the preparation of this report is persuasive on the risk of alcohol related harm and disturbance of the good order or amenity within the precinct and provides a proper basis for the Director General to consider an appropriate regulatory response to mitigate the ongoing risk. To support a precinct-wide intervention consideration of exercising powers provided for under s 136D of the Act would be appropriate." (Emphasis added) 28Enclosure 1 to the Director-General's letter of 14 August 2012 set out the proposed new measures. They included measures requiring the licensee:

• to cease selling or supplying alcohol on Saturday and Sunday mornings either one hour before the premises are required to cease trading or, if the premises are authorised to trade beyond 5:00am, between 4:00am and 5:00am;
• to ensure that no patron has access to any glass drinking vessel or container; and
• prohibiting the sale or supply from midnight or until the venue ceases trading or 7:00am, whichever was the earlier of specified drinks, an example of which is "any drink (commonly referred to as a 'shot') that contains no more than 30 ml of spirits or liqueur and that is designed to be consumed rapidly".

I shall refer to the proposed new measures compendiously, as was done at trial, as the "Proposed Measures". 29After receiving the Director-General's letter, the respondents' solicitor wrote to the Director-General on 23 August 2012 advising that he had reviewed both the enclosure setting out the Proposed Measures as well as the Report. He stated that there was reason to believe the data summarised in the Report was inaccurate and advised that in order that the first respondent might deal appropriately in her response with the issues raised in the Report it was necessary that she be immediately provided with the source data summarised in the Report (the "Source Materials"). The letter set out 16 specific heads of documents the solicitor sought. It asserted that to deny the first respondent the opportunity of reviewing the material sought and making submissions on it would be a denial of procedural fairness. 30On 29 August 2012, the New South Wales Crown Solicitor, on behalf of the Director-General, wrote to the respondents' solicitor responding to his letter of 23 August 2012. The letter dealt in detail with each of the 16 heads of documents. In respect of some, it pointed out that data referred to in the Report was publicly available either because it was on the BOCSAR's website or could be accessed at a website address provided in the Report. As to other BOCSAR crime data, the letter advised it had been relevantly summarised in specified paragraphs of the Report. The letter also stated that parts of the Police report had also been summarised in specified sections of the Report, but noted that the Police Force had not consented to the release of its report to licensees. The situation was the same in relation to a Table that had been provided by the Police Force.

The primary judgment 31It was not disputed at trial, nor is it on appeal, that the Director-General was obliged to afford the respondents procedural fairness in the exercise of his powers under s 136D(1). The primary judge identified the principal question for his determination as "whether for the purposes of s 136D(2) of the Act, the obligation on the Director-General to afford procedural fairness to the first [respondent] has been satisfied by the giving of notice of the [Director-General's] intention to vary the Accord, and by provision of the report, and the invitation to make a submission without providing the underlying data as sought by the first [respondent]": primary judgment (at [11]). 32The respondents' case at trial was that, absent the Source Materials, they would not be able to respond properly to the matters referred to in the Report. Their affidavit evidence said that they proposed to submit that several of the measures should not be approved insofar as they might apply to their licence, and that several of the measures were not necessary in the circumstances as their business was well run and there had been compliance with the Act: primary judgment (at [9]). They contended, in particular, that they would be unable to contest the accuracy and reliability of the conclusions and opinions stated in the Report or demonstrate that, in the circumstances, the Report did not justify the imposition of variations which adversely affected their operations (primary judgment (at [13])) or enable them to distinguish the Hotel from other premises subject to the Accord: primary judgment (at [14]). They relied upon Smith v Director of Liquor and Gaming [2009] NSWSC 837 in which Rothman J held that procedural fairness required making available to a licensee the source documents for reports intended to be relied upon for a decision under s 81 of the Act. 33The Director-General's case at trial was that it was a sufficient discharge of his obligation to accord the respondents procedural fairness that "the gravamen or substance of the issue upon which the decision would turn [was] brought to [their] attention" (primary judgment (at [15])). The Director-General contended that he was not obliged to disclose material of which he did not have actual knowledge and to which he did not propose to have regard in making his decision. Since he proposed to rely upon the Report in considering whether the variations were to be imposed, the respondents were entitled to no further information to enable them to make submissions in exercise of their right to be heard: primary judgment (at [16]). 34The primary judge was satisfied (at [8]) that the respondents' evidence established "that the nature of the business and operations conducted by [them] are likely to be adversely affected by the imposition of [the Proposed Measures]." To the extent his Honour identified those adverse effects, they were that "certain of the measures, if introduced, would impose substantial limitations upon the licence and restrict the way in which the business of the hotel would be conducted ... [including] a number of the measures [which] would restrict or prevent in various ways the sale or supply of alcoholic drinks ... in contrast with the current Accord, which contains no provision limiting or restricting the service of alcohol.": primary judgment (at [10]). 35His Honour concluded (at [19]) that in order for the opportunity the Director-General had given the respondents to make submissions about his proposal to vary the Accord measures: "... to be real, the [respondents] must be allowed to meet the substance of the information to be relied upon in this case, and to test and call into question the accuracy of the conclusions and data in the report, including the relevance of the information to the existing state of affairs, at least insofar as it concerns their operations and the conduct of their business. Obviously enough, in my opinion, the [Director-General] is under a statutory duty to base his consideration on information which is sound and relevant to the existence of necessity at the time it is made." (Emphasis added) 36His Honour noted (at [26]) "the [respondents'] concern ... that the statements in the report are bald summaries of surveys, activities, and incidents which happened in periods commencing 12 months, or (as to glassing) four years before July 2012 [and that] ... if denied access to the Source Materials, [they] will be denied the opportunity to contest that the summaries are an accurate or sound basis on which the Director-General should rely in determining whether to approve any or all of the proposed variations." He then said (at [27] - [29]): "[27] In my opinion the [respondents'] claim must be upheld. The statements or conclusions in the report to which the documents sought relate are expressed in general terms with regard to lengthy periods. On their face the statements do not focus on the present situation which must be established to enable the appellant to consider that the imposition of a proposed variation is necessary under s 136D(1). [28] It follows, in my opinion, that in the circumstances of this case it would not be fair to deprive the [respondents] of the opportunity to analyse and meet the information contained in the underlying surveys. The imposition of measures which would operate as conditions of a licence will have a significant impact on the respondents' operations. In a different context, the Act has established a regime of procedural fairness in respect of the imposition of similar conditions following the investigation of complaints under s 81, and pursuant to the three-strike disciplinary action scheme under Pt 9A. Regard to these considerations provide additional persuasive support for the [respondents'] claim. In my opinion the [respondents] have demonstrated that the applicable rules of procedural fairness require that they be provided with the documents sought." (Emphasis added) 37The primary judge made orders restraining the Director-General from making any determination to vary the existing terms of the Accord insofar as the variation applied to the Kings Cross Hotel until a date not less than 7 days after the Director-General produced to the first respondent the following materials: "1. The crime data sourced from the NSW Bureau of Crime Statistics and Research, as referred to in page 4 of the report entitled 'Kings Cross precinct liquor accord alcohol related harm profile' dated 10 August 2012 (the 'Report'), which relates to the Hotel, but limited to the 'data provided by BOCSAR' which has been summarised in the Report, as referred to in paragraph 3(b) of the letter dated 29 August 2012 from the [Director-General's] solicitor to the [respondent's] solicitor; 2. The NSW Police Kings Cross Precinct Alcohol Assessment Report for the period 1 July 2011 to 30 June 2012 provided on 18 July 2012, as referred to on page 9 of the Report; 3. The further report from the Police for the same period provided on 3 August 2012, as referred to on page 9 of the Report; and 4. The Police crime data in respect of glassing incidents between August 2008 and July 2012, as referred to on page 10 of the Report." 38The primary judge's orders were made on a final, not interim, basis.

Issues on appeal 39The grounds of appeal as set out in the notice of appeal are: "(1) The Court below erred in concluding that procedural fairness required the appellant to disclose to the first respondent documents and information summarised in a report entitled 'Kings Cross precinct liquor alcohol related harm profile' ('Report'), and to provide to the first respondent an opportunity to make submissions on the underlying documents and information, before making any determination whether to vary the Sydney-Central Kings Cross Precinct Liquor Accord ('Accord') under ss 136B(l)(c) and 136D(1) of the Liquor Act 2007 ('Act') ('determination'). (2) The Court below erred in concluding that procedural fairness required the appellant to disclose to the first respondent underlying documents and information summarised in the Report in circumstances where the Report and not the underlying documents and information will be before the appellant for the purposes of making the determination. (3) The Court below erred by finding that the content of the principles of procedural fairness conditioning the power to vary the Accord under ss 136B and 136D of the Act were the same as those conditioning the imposition of licence conditions on a particular licensee in response to a complaint or complaints under s 81 of the Act (Judgment at [28])."

Director-General's submissions 40The central issue on appeal, as outlined by Mr S Lloyd of senior counsel, who appeared with Mr J S Emmett for the Director-General on appeal and at trial, is whether the primary judge erred in concluding that in order for the Director-General to accord the respondents procedural fairness he must provide to them not only the Report that gave rise to his preliminary state of satisfaction that the statutory power to vary the terms of the Accord was able to be exercised, but also other material summarised in the Report which will not be before him in making his determination. 41Mr Lloyd first submitted that in the context of a decision by an administrative decision-maker, the principles of procedural fairness do not require observance of procedures which would be regarded as fair in adversarial litigation, but are confined to requiring the decision-maker to provide the affected person with the opportunity to deal with adverse material to which the decision maker will have regard that is "credible, relevant and significant". He argued that that requirement did not oblige the Director-General to disclose the entire text or document within which adverse material was contained, but, rather, that it was sufficient that the gravamen or substance of the issue on which the decision will turn was brought to the affected party's attention. He submitted that the Report clearly identified the data on which the Director-General proposed to rely in considering whether to vary the terms of the Accord such that the Director-General had disclosed the substance of any potentially adverse material - and, accordingly, had discharged his obligation of procedural fairness. 42Secondly, Mr Lloyd submitted that the "ordinary" requirements of procedural fairness applicable when a "particular individual" may be affected by a decision overstate what is required when a decision that may affect a great many entities is being considered. In this context, he contended that the Director-General owed an equal procedural fairness obligation to all potentially affected licensees and that the content of that obligation was not determined by what information the respondents requested, but by what proper implication from the Act required him to provide. He argued that the fact the effect of the variation to the terms of the Accord the Director-General was considering would overlap with the consequences of some of the other regimes the Act established did not inform the content of the obligation of procedural fairness for the purposes of Part 8, Division 2. Rather the absence of express procedural fairness provisions in Part 8, Division 2 indicated the legislature was content to leave the content of procedural fairness to implication having regard to the nature of the power and the circumstances of its exercise. 43In the same vein, Mr Lloyd submitted that the determination the Director-General was making was "quasi-legislative" in nature in that the Proposed Measures were of general application and did not turn on features peculiar to particular licensees. He contended that this meant that the content of any obligation to accord procedural fairness must be concomitantly reduced. 44Thirdly, Mr Lloyd submitted that an administrative decision-maker has no obligation to disclose material of which he or she does not have actual knowledge and does not propose to consider in making the decision. He said that it was not disputed at trial that the documents the Director-General had been ordered to produce will not be before him when he makes his decision in respect of the Proposed Measures. Mr Lloyd also contended the onus lay on the respondents to establish that the Director-General would have regard to that material and that they had not discharged that burden. 45Fourthly, Mr Lloyd submitted that it was open to the respondents to submit that the Proposed Measures should not apply to the Hotel and, in doing so, to draw to the Director-General's attention matters peculiar to the Hotel or the way the business was conducted. He contended that they did not need the Source Materials either to submit that the Proposed Measures should not apply to them or to contend that the data referred to in the Report had been summarised inaccurately. He pointed out that the respondents had been able to make such a submission by reference to the BOCSAR data they identified in their 23 August 2012 letter, albeit he contended that their analysis of that data was flawed. 46Fifthly, Mr Lloyd accepted, as the primary judge held (at [17]), that in exercising his s 136D(1) power, the question of necessity was to be determined with regard to the need shown to exist at the time the determination was made. However, insofar as the respondents had apparently complained at trial about the relevance of data covering extended periods, he argued that statements dealing with incidents over a number of years may be relevant to an assessment of a current state of affairs, for example where data showed a high levels of acts of violence while the regulatory regime remained unchanged. 47Sixthly, Mr Lloyd submitted that insofar as Smith v Director of Liquor and Gaming held that procedural fairness required the Director-General to provide the respondents with any material other than the Report itself before he made a decision, it was wrongly decided or was distinguishable.

Respondents' submissions 48Mr M Leeming of senior counsel, who appeared with Mr D Klineberg for the respondents on appeal and at trial, submitted that determining the content of the Director-General's obligation of procedural fairness depended on a consideration of the Act as a whole. He drew attention to the other mechanisms in the Act which permitted licence conditions to be imposed or varied in ss 79 - 81, Part 9 and Part 9A to which I have referred, observing that each mandated a very high level of procedural fairness. He pointed out that the Proposed Measures were significantly different in character and effect from the requirements of the current Accord and were akin to restrictions imposed on licensees listed in Schedule 4, a category into which the respondents had never fallen. Nor, he pointed out, had the respondents ever committed any prescribed offence such as to attract the operation of the 3 Strikes regime in Part 9A. 49Mr Leeming accepted that in some cases procedural fairness might be satisfied by the provision of information that is the gravamen or substance of a document. However he contended that that proposition was inapplicable in the present case where the Source Materials were known, were in the possession of the Director-General's staff and were used in preparing the Report. 50Mr Leeming submitted that procedural fairness required that the respondents should have access to the Source Materials for the following reasons. First, publicly available information suggested that the conclusions in the Report were either wrong or, at least, selective. He queried, for example, the relevance of the Report graphing data by averaging assaults by calendar month over a five-year period. He suggested that that approach could only have been adopted if one was trying to contend that it was riskier to be out in Kings Cross in summer rather than winter, a contention he argued was falsified by the resultant graph. Secondly, he contended that BOCSAR information demonstrated that assaults over a ten-year period were declining in a statistically significant way, a matter not referred to or reflected in the Report. He argued that it was not a sufficient answer to these propositions to say that the respondents could make submissions of the sort he advanced. Rather, he argued, for them to be able to make meaningful submissions, the non-public or "secret" BOCSAR information peculiar to the Accord precinct, apparently extracted by the authors of the Report, which he contended was inconsistent with publicly available data, had to be provided in order to "avoid practical injustice". 51Secondly, Mr Leeming submitted that if the respondents were not provided with the Source Materials, they could not properly challenge certain of the conclusions in the Report as to whether the Proposed Measures were "necessary" to be introduced insofar as they apply to the Hotel. He pointed out that recently released BOCSAR statistics (which he sought to tender as fresh evidence) demonstrated that the number of glassing incidents in the Sydney statistical division fell over the last 2 years. He argued that that material added to the cogency of the need to provide the Source Materials on which aggregated data over 4 years on which the Report relied was based. 52Thirdly, Mr Leeming submitted that it was significant that the application did not concern a decision that has already been made, but, rather, one that was yet to be made. He argued that, accordingly, the respondents should not be limited in the submissions they were entitled to make or "los[e]... an opportunity to make representations" (Ex parte Lam (at [37])) where there was no suggestion the Source Materials were confidential or difficult practically to provide. He emphasised that the content of the Director-General's obligation of procedural fairness was determined by whether, having regard to the inaccuracies or incomplete analysis which he contended were manifest in the Report, provision of the Source Materials was necessary to preserve the appearance of a fair mode of decision making. 53Fourthly, Mr Leeming submitted that Smith v Director of Liquor and Gaming was correctly decided and was not distinguishable. It was not to point, he argued, that Smith v Director of Liquor and Gaming dealt with s 81 of the Act in circumstances where the Proposed Measures were more onerous than those specified in s 81 and, if adopted, would apply to all licensees subject to the Accord. He argued that the Act should not be construed to permit a situation where a licensee's right to procedural fairness could be eroded by the device of imposing licence conditions through an accord as opposed to through the complaints mechanism. 54Finally, Mr Leeming accepted that the respondents could challenge a decision to vary the Accord measures made by the Director-General on the basis that they had been denied procedural fairness, but contended that it was not premature to seek quia timet relief.

Consideration 55" '[T]he common law' usually will imply, as a matter of statutory interpretation, a condition that a power conferred by statute upon the executive branch be exercised with procedural fairness to those whose interests may be adversely affected by the exercise of that power": Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 86 ALJR 1019; [2012] HCA 31 (at [97]) per Gummow, Hayne, Crennan and Bell JJ; see also Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 (at [11] - [15]) per French CJ, , Gummow, Hayne, Crennan and Kiefel JJ; Kioa v West [1985] HCA 81; (1985) 159 CLR 550 (at 584) per Mason J, (at 619) per Brennan J; Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 (at 576) per Mason CJ, Dawson, Toohey and Gaudron JJ. "[W]hat is required by procedural fairness is a fair hearing, not a fair outcome ... [t]he relevant question is about the [administrative decision-maker's] processes, not its actual decision ... the statutory framework within which a decision-maker exercises statutory power is of critical importance when considering what procedural fairness requires": SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 (at [25] - [26]) per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ. 56The critical question is what is the content of that obligation of procedural fairness, a question which must, as the primary judge recognised (at [20]), be determined by "the circumstances of the case [including], inter alia, the nature of the inquiry, the subject-matter, and the rules under which the decision maker is acting". This reflects the proposition that procedural fairness is a flexible obligation requiring the adoption of fair procedures which are appropriate and adapted to the circumstances of the particular case. This ensures that the statutory power is exercised fairly, in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, in the interests of the individual and the interests and purposes, whether public or private, which the relevant statute seeks to advance or protect or permits to be taken into account as legitimate considerations: Kioa v West (at 584 - 585) per Mason J. The fundamental proposition is that "the concern of the law [in the context of administrative decision-making] is to avoid practical injustice": Minister for Immigration and Multicultural Affairs, Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 (at [37]) per Gleeson CJ). Whether the obligation to afford procedural fairness has been discharged is not to be evaluated minutely or in a manner divorced from its context: Habib v Director-General of Security [2009] FCAFC 48; (2009) 175 FCR 411 (at [77]) per Black CJ, Ryan and Lander JJ (cited with approval in Dunghutti Elders Council (Aboriginal Corporation) RNTBC v Registrar of Aboriginal and Torres Strait Islander Corporations [2011] FCAFC 88; (2011) 195 FCR 318 (at [64]) per Keane CJ, Lander and Foster JJ). 57I do not find it helpful when determining the content of the Director-General's obligation of procedural fairness to characterise the decision the Director-General is considering making as "quasi-legislative", as Mr Lloyd submitted. Just as "the question of the application of the rules of natural justice is not to be determined merely by affixing [the] label ['legislative'] to describe the character of the task which is under consideration" (Bread Manufacturers of New South Wales v Evans [1981] HCA 69; (1981) 180 CLR 404 (at 432 - 433) per Mason and Wilson JJ; see also (at 415) per Gibbs CJ) so, too, in my view, is it inapposite to seek to limit the content of the obligation by the mere adoption of the label "quasi-legislative". 58That is not to gainsay the relevance to the content of the obligation of procedural fairness of the number of people who will be affected by a decision by the Director-General to include the Proposed Measures in the Accord. In Kioa v West (at 584) Mason J expressed the view that the acts or decisions which attract the duty of procedural fairness are those which directly affect an individual or corporation as such and not simply as a member of the public or a class of the public"; see also Brennan J (at 619 - 620); Deane J (at 632). Spigelman CJ expressed the point somewhat differently in Vanmeld Pty Ltd v Fairfield City Council [1999] NSWCA 6; (1999) 46 NSWLR 78 (at [74]), when he said that "[t]he fact that the exercise of a particular statutory power has effect on a wide range of persons, even in circumstances where the identity of all such persons is difficult to establish, will often impinge, not on the obligation to accord procedural fairness, but on the content of that obligation". 59Mason P (Ipp AJA agreeing) took an intermediate position in Minister for Local Government v South Sydney City Council [2002] NSWCA 288; (2002) 55 NSWLR 381 (at [263]) when he observed, in a passage upon which Mr Lloyd relied, that decisions "capable of affecting a very broad number of persons and institutions in what may broadly be termed a matter of town planning overlaid with political issues ... do not usually attract the principles of procedural fairness at all". However his Honour added that "... they may do so as regards particular interests of particularly affected and identifiable persons". 60Basten JA rationalised the various approaches in Castle v Director General, State Emergency Service [2008] NSWCA 231 where, after referring to Mason J's reasons in Kioa v West (at 584), he said: "[6] ... [O]ne limitation on the operation of the duty to accord procedural fairness arises from the need to identify the obligation by reference to an individual or class of persons. The obligation must be capable of identification and fulfilment, in a reasonable and practical sense, prior to the making of the decision ... The larger the class of persons reasonably expected to be affected, the less the likelihood that procedural fairness will be attracted and, if it is, the lower the likely content of the duty. Similarly, even though the class of those affected may be small, the duty is less likely to be attracted if membership of the class is variable and not readily ascertained: see, eg, Comptroller-General of Customs v Kawasaki Motors Pty Ltd (No 1) [1991] FCA 519; 32 FCR 219 at 240-241 (Hill and Heerey JJ)." (Emphasis added) 61A range of views have been expressed about how to identify the degree to which individuals must be affected to determine whether an obligation of procedural fairness arises: see M Aronson, B Dyer and M Groves, Judicial Review of Administrative Action, 4th ed (2009) Lawbook Co (at [7.175] - [7.195]). Having regard to the Director-General's concession that the obligation arises in the present case made, no doubt, in recognition of the fact that the Proposed Measures will clearly affect "identifiable persons", it is unnecessary to add to the debate. It is sufficient to accept that Mr Lloyd's submission that the size of the class will affect the content of the obligation is consistent with Spigelman CJ's observation in Vanmeld Pty Ltd v Fairfield City Council and Basten JA's explanation in Castle v Director General, State Emergency Service. The propositions which I set out below concerning underlying principles of procedural fairness must, in their application to the present case, reflect the fact that the decision the Director-General is proposing to make is intended to regulate not only the respondents' operations but also those of all of the 58 licensees in the Accord precinct. It is also necessary to take into account that the potential participants in the accord include a range of groups and individuals who are not necessarily licensees and who may not have a commercial interest in a licence. 62That Director-General's concession that he was obliged to accord procedural fairness to the respondents was appropriate when one has regard to the nature of the power being exercised. The Director-General's proposal to impose more restrictive conditions on the licences of the licensees within the Accord precinct, directly affects each licensee. In FAI Insurances Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342 (at 360), Mason J affirmed that it was "authoritatively established that the exercise of a power revoking a licence will attract the rules of natural justice, certainly when the revocation results in the loss of a right to earn a livelihood or to carry on a financially rewarding activity". The position is little different, in my view, when one is considering the exercise of a power to impose more restrictive conditions upon the licences of an identified group of licensees within a defined geographic area. 63Before considering the particular circumstances of the case, some general principles should be stated concerning what is required to ensure statutory powers are exercised fairly. 64First, "where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard [which] would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material" (emphasis added): SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (at [32]), applying Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576 (at 590 - 591). 65However, as a general proposition, an obligation to accord procedural fairness does not require a decision-maker to disclose material of which the decision-maker does not have actual knowledge and does not propose to consider in making the relevant decision. Brennan J stated the fundamental principle in Kioa v West (at 628 - 629) when he explained that "[a] person whose interests are likely to be affected by an exercise of power must be given an opportunity ... to deal with adverse information that is credible, relevant and significant to the decision to be made". His Honour also pointed out that if information was before the repository of the power, then it was not sufficient for it "to endeavour to shut information of that kind out of his mind and to reach a decision without reference to it [because] [i]nformation of that kind creates a real risk of prejudice, albeit subconscious, and it is unfair to deny a person whose interests are likely to be affected by the decision an opportunity to deal with the information". 66Brennan J considered that limiting the disclosure of material to "adverse information that is credible, relevant and significant to the decision to be made" was appropriate because, in his view, "administrative decisions [were] not necessarily to be held invalid because the procedures of adversary litigation are not fully observed: Kioa v West at (628 - 629). Similar remarks have been recorded. Lord Diplock said decisions should not be "over-judicialise[d]": Bushell v Secretary of State for the Environment [1980] UKHL 1; [1981] AC 75 (at 97) and Mason P stated that, "fairness in administrative processes is not grafted to 'the prism of adversarialism' ": Minister for Local Government v South Sydney City Council (at [256]). 67The High Court considered what Brennan J meant by the phrase "adverse information that is credible, relevant and significant to the decision to be made" in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88 (at [16] - [17]). The Court (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ) pointed out that his Honour's statement had to be understood in light of his earlier statement (Kioa v West, at 628) that "[a]dministrative decision-making is not to be clogged by inquiries into allegations to which the repository of the power would not give credence, or which are not relevant to his decision or which are of little significance to the decision which is to be made" and, too, the emphasis his Honour had given (Kioa v West, at 622) to the proposition that "principles of natural justice, or procedural fairness, 'are not concerned with the merits of a particular exercise of power but with the procedure that must be observed in its exercise' ". Understood in that light, the Court continued: "17 It follows that what is 'credible, relevant and significant' information must be determined by a decision-maker before the final decision is reached. That determination will affect whether the decision-maker must give an opportunity to the person affected to deal with the information. And that is why Brennan J prefaced his statement about a person being given an opportunity to deal with adverse information that is credible, relevant and significant, by pointing out that there may be information, apparently adverse to the interests of a person, which can and should be put aside from consideration by the decision-maker as not credible, not relevant, or of little or no significance to the decision to be made. 'Credible, relevant and significant' must therefore be understood as referring to information that cannot be dismissed from further consideration by the decision-maker before making the decision. And the decision-maker cannot dismiss information from further consideration unless the information is evidently not credible, not relevant, or of little or no significance to the decision that is to be made. References to information that is 'credible, relevant and significant" are not to be understood as depending upon whatever characterisation of the information the decision-maker may later have chosen to apply to the information when expressing reasons for the decision that has been reached." 68Secondly, the "relevant inquiry is: what procedures should have been followed" rather than "what decision should the decision-maker have made, nor what reasons did the decision-maker give for the conclusion reached": Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (at [19]). 69In Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs, an applicant for a protection visa complained that he had been denied procedural fairness because, in rejecting his application for review of a decision refusing him a visa, the Refugee Review Tribunal reviewed an unsolicited letter received by the Department of Immigration and Multicultural and Indigenous Affairs which made allegations against him, but did not inform him of the existence of the letter or its contents. In affirming the decision under review the Tribunal said it had given no weight to the letter. The High Court held (at [18]) that that statement did not demonstrate that there was no obligation to reveal the information to the Director-General and to give him an opportunity to respond to it before the review was concluded and that "[d]eciding that it could reach its conclusion on other bases did not discharge the Tribunal's obligation to give the appellant procedural fairness." 70The Court (at [19]) explained, adopting what Allsop J (as his Honour then was) said in NIB Health Funds Ltd v Private Health Insurance Administration Council [2002] FCA 40; (2002) 115 FCR 561 (at [84]), that "the necessity to disclose such material in order to accord procedural fairness is not based on answering a causal question as to whether the material did in fact play a part in influencing the decision" but, rather, on ensuring that fair procedures have been applied. 71Thirdly, "an adequate 'opportunity' to be heard may be satisfied in some cases if the gist [gravamen or substance or 'essential features'] of any adverse information is disclosed without the entire text or document in which that information is contained necessarily also being disclosed": Minister for Immigration and Citizenship v Maman [2012] FCAFC 13; (2012) 200 FCR 30 (at [37]) per Flick and Foster JJ; see also Pilbara Aboriginal Land Council Aboriginal Corp Inc v Minister for Aboriginal & Torres Strait Islander Affairs (at [70]) per Merkel J. I shall refer to this proposition as the "gist requirement". 72The primary judge (at [21]) recognised that disclosure of the gravamen of adverse information may be sufficient and quoted the passage I have cited from Minister for Immigration and Citizenship v Maman (at [37]). In that case, Mr Maman, an applicant for a Partner (Residence) visa, sought access to an unfavourable letter written by his former wife/sponsor to which experts, whose opinions were relevant to the decision-makers' ultimately adverse determination, had had regard. The letter was not disclosed to the applicant before the decision to refuse his application was made. The issue on appeal was whether the former wife/sponsor's letter contained new information that was credible, relevant and significant to the experts' opinions, such that, as a matter of procedural fairness, it should have been disclosed to the applicant prior to the decisions being made. Raphael FM held that it should have been. His decision was upheld on appeal Flick and Foster JJ (Katzmann J agreeing). 73The primary judge appears to have concluded (see [21]) that the following paragraph in the plurality reasons in Minister for Immigration and Citizenship v Maman supported the proposition that, despite the "gist requirement", disclosure of the Source Materials was necessary to discharge the appellant's procedural fairness obligation. Thus, his Honour said: "Nevertheless their Honours concluded (par 42): 'Subject to any statutory qualification of the common law rules of procedural fairness, either the entirety or the substance of such personal information may have to be disclosed if procedural fairness is to be afforded.' " 74Several points should be made about Minister for Immigration and Citizenship v Maman. First, the experts had referred to the unfavourable letter in forming an opinion adverse to the applicant: see, in particular Katzmann J (at [94]). Secondly, the plurality approved (at [38] the proposition that procedural fairness is not denied if the gist of information has been disclosed "sufficient to enable any person wishing to make a submission ... to do so": see Marine Power Australia Pty Ltd v Comptroller-General of Customs (1989) 89 ALR 561 (at 574) per Lockhart J. Thirdly, when the plurality made the remark (at [42]) which the primary judge prefaced with the adverb "nevertheless", their Honours were referring (see [41]) to "information which is intensely 'personal [which] may have to be disclosed to the persons concerned if one party is to be able to properly and adequately respond to the complaints or allegations of another". In that respect, their Honours' reasons reflected Mason J's statement in Kioa v West (at 587) that while, "[i]n the ordinary course of granting or refusing entry permits there is no occasion for the principles of natural justice to be called into play ... if, in fact, the decision-maker intends to reject the application by reference to some consideration personal to the applicant on the basis of information obtained from another source which has not been dealt with by the applicant in his application there may be a case for saying that procedural fairness requires that he be given an opportunity of responding to the matter." Further, from the plurality's perspective (at [57]), it was unnecessary to decide whether "the entire letter or a more appropriately drafted identification of the 'key points' " in it should have been disclosed, because by the time of the appeal, the entire letter had been made available to Mr Maman. The plurality's decision with, which Katzmann J agreed, (see [46], [95]) that Mr Maman had been denied procedural fairness thus did not turn on the failure to disclose the entirety of the letter, but, rather upon that failure and the failure to disclose its gist. Finally, the decision in Maman that the letter should have been disclosed to the applicant recognised that the principles of procedural fairness are flexible and necessarily depend on the facts of each case: see Flick and Foster JJ (at [31]); Katzmann J (at [92]). 75Fourthly, save in certain circumstances to which I refer below, a decision-maker is not obliged to disclose information of which he or she does not have actual knowledge and does not propose to rely upon in making a decision. A decision-maker will not be fixed with constructive notice or knowledge of information in its possession so as to found an allegation of denial of procedural fairness: see Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Applicants S134/2002 [2003] HCA 1; (2003) 211 CLR 441 (at [34], [40]) per Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ. 76McLachlan v Australian Securities & Investments Commission [1999] FCA 244; (1999) 85 FCR 286 illustrates the fourth proposition. In that case, Kenny J (with whom O'Loughlin and Mansfield JJ agreed) held that the Australian Securities & Investments Commission ("ASIC") was only required to make available to a person facing a banning order under s 830 of the Corporations Law (Cth), so much of the material in its possession as it considered "relevant, credible and significant" to the allegations being made or the inquiry being conducted and upon which it intended to rely in hearings before the delegate charged with making the ultimate decision. Her Honour emphasised (at [44] - [45]) that the information of which Brennan J was speaking in Kioa v West (at 628 - 629) was information "adverse to the interests of those concerned upon which the decision-maker proposed to rely, believing it to be relevant, credible and significant" (emphasis added). Her Honour held (at [48]) that it was a matter for the ASIC to identify the matters and the material on which it relied which fell within that description and (at [49]) that "no impermissible prejudice to the appellants flow[ed] from the fact that they are to be denied access to material in the ASIC's possession touching the subject-matter of the hearing which is not relied upon by it". 77As Buss JA (Wheeler and Pullin JJA agreeing) explained in Re Minister for Resources; ex parte Cazaly Iron Pty Ltd [2007] WASCA 175; (2007) 34 WAR 403 (at [328] - [330], [332] ff) the principle that the decision-maker is only obliged to disclose of information actually known to it is consistent with the propositions that the purpose of the law of procedural fairness is to avoid practical injustice (Minister for Immigration and Multicultural Affairs, Re; Ex parte Lam (at [37])) and that the decision-maker must determine what information is "credible, relevant and significant" before the final decision is reached: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (at [17]).

Smith v Director of Liquor and Gaming [2009] NSWSC 837 78The respondents relied upon Smith v Director of Liquor and Gaming before the primary judge and in this Court. The primary judge referred to Smith v Director of Liquor and Gaming (at [14]) but it is not readily apparent, with respect, that he extracted any principle germane to the present case from it. 79Smith v Director of Liquor and Gaming was an ex tempore judgement in which Rothman J held that procedural fairness required making available to two licensees the source material for summaries apparently intended to be relied upon for the purposes of a conference to be convened as contemplated by s 80(2) of the Act to hear submissions in relation to complaints of disturbances in or around the area in the vicinity of seven hotels. The plaintiffs' hotels were two of those seven establishments. 80The primary focus of the judgment was the plaintiffs' application that the s 80 conference be stayed so that they could prepare their answer to material served concerning the disturbance complaints, including preparing expert evidence as to the nature of the disturbance and steps that may be taken to alleviate the noise, or ameliorate any such disturbance, if it were to occur: Smith v Director of Liquor and Gaming (at [4]). However the plaintiffs also sought access to all of the material upon which the New South Wales Police intended to rely at the conference. The defendant's response to this aspect of the application appears to have been (see [10]) that the material upon which he might rely at the conference was not known. However, he had advised the plaintiffs' solicitors that he was "inclined to receive and rely on at the conference, for the purposes of any decision under section 81 of the Liquor Act, the information in summaries of COPS information but not the COPS extracts...". It appears (see [12]) that the plaintiffs had received "a summary of the COPS material and of the source documentation that related to incidents recorded in relation to each of their hotels [and] ... COPS summaries in relation to the other hotels". 81Rothman J formed a prima facie view (at [12]) that "the disturbances caused by all of the hotels will be used in the complaint against each of the hotels". He noted the plaintiffs' submission that the source documents relating to their own hotels had not been accurately summarised and appears to have accepted that if the plaintiffs were not given access to the source materials for the COPS summaries for the other hotels, they had been "denied the opportunity to contest the material upon which the police would rely and upon which the Director is presently inclined to rely...". His Honour determined (at [13] - [15]) that "whatever the material is that is ultimately accepted by the Director..." the plaintiffs had not had an adequate opportunity to prepare their case. 82In dealing (at [16]) with the defendant's submission that as a matter of discretion, the Court ought not make orders, because it was unaware of what materials the defendant would rely upon at the conference, Rothman J said "[w]hat the Director will rely upon is ... not the test. The test is whether the plaintiffs have been denied the capacity to present their case properly, including the opportunity to prepare their case". With respect to his Honour, this statement, in my view does not represent the law. As is apparent from the discussion of the authorities earlier in these reasons, the "test" his Honour formulated could not be answered without knowing what materials the Director intended to take into consideration for the purposes of the s 80 conference. 83I note, in this respect, that it does not appear his Honour was referred to the authorities I have discussed concerning the extent of a decision-maker's obligation to disclose material so as to accord procedural fairness. To that extent, the decision is per incuriam. I also, with respect, disagree with his Honour's reasons as to his power to grant relief, as is apparent from that part of these reasons dealing with "Relief". The decision is also distinguishable. It concerned the disciplinary provisions of Part 5 of the Act with a specified procedural fairness provision (see [11] above) in their application to individual licensees, taking into account complaints about conduct in relation to their, and other licensees', premises. The position thus differs from the present case as can be seen from the discussion of the legislative regime under which the Director-General is proposing to act. 84The respondents submitted that Rothman J's conclusion (at [16]) was consistent with authority and that "similar principles" had been applied in Executive Director of the Office of Liquor and Gaming Regulation v Cayneston Pty Ltd t/as Mad Cow Tavern [2011] QCA 193. They also argued that the latter case was an illustration of the application of the concept of practical justice in the context of the evaluative question of determining the content of procedural fairness in a given legislative regime. 85In Executive Director of the Office of Liquor and Gaming Regulation v Cayneston Pty Ltd t/as Mad Cow Tavern, McMurdo P (Fraser and White JJA agreeing) upheld a decision by a trial judge that the non-disclosure of a document containing material adverse to the applicant (the "document in contention") in the context of a decision to reclassify certain premises as "high risk" under the Liquor Act 1992 (Qld) (the "Queensland Act") was a breach of an obligation of procedural fairness. Section 97(1)(b) of the Queensland Act permitted the Chief Executive to impose such a classification if there had been a level of violence at the premises during a specified period which was "unacceptable having regard to this Act's object to regulate the liquor industry in a way compatible with minimising harm caused by alcohol abuse and misuse". Section 97(2) required the Chief Executive to give the licensee of the premises a written notice of the proposal to re-classify the premises and to have regard to the licensee's response, if any, to the notice. The Chief Executive and the licensee engaged in a process of debate after the former gave the required notice following which the Chief Executive made the reclassification decision. The licensee complained that in making that decision the Chief Executive had taken into account an attachment to a briefing note of which it had not been informed, which contained material adverse to it as well as inaccurate summaries by the Queensland Police about reported incidents of violence. The licensing authorities contended that the document in contention did not contain any new or additional material to that with which the licensee had been provided before it made written representations and that there was no evidence it was taken into account in the reclassification decision. 86McMurdo P concluded (see [48], [51]) that the licensing authorities "may well have relied upon [the document in contention] in making his classification of the respondent's premises as high risk ... at least subconsciously". After referring to Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (at [16] - [19]), her Honour said (at [53]): "The document in contention may not have been as potentially adverse to the respondent as the unsolicited damning letter with which VEAL was concerned, but it did contain information adverse to the respondent's prospects of resisting a classification of its premises as high risk. It contained matters which were, at least arguably, wrong, and about which the respondent should have been given the opportunity to make submissions. Those submissions may not have affected the first appellant's decision but, as VEAL explains, that is not the point. The issue is whether proper procedure was followed. The document in contention should have been disclosed to the respondent but it was not. It may have influenced the first appellant's decision, at least subconsciously. Proper procedure in the sense of the abstract concept concerned with avoiding practical injustice described in Lam was not followed." 87Her Honour concluded (at [54]) that the non-disclosure to the licensee of the document in contention amounted to a breach of natural justice. 88In my view Executive Director of the Office of Liquor and Gaming Regulation v Cayneston Pty Ltd t/as Mad Cow Tavern does not support either the outcome in Smith v Director of Liquor and Gaming or the respondents' case. It was an orthodox application of the principles I have discussed in circumstances where a decision was made without notifying the affected licensee of an adverse document the court found the decision-maker "may well have relied upon". Unlike Smith v Director of Liquor and Gaming, the court could identify that document as well as those the affected licensee had been given the opportunity to comment upon. The application concerned access to documents which contained material "personal" to the licensee in circumstances where the question whether the reclassification decision was made turned on circumstances particular to the licensee's premises. It concerned circumstances not found in the present case.

Determination 89I turn then to consider the statutory framework in which the Director-General is operating in determining whether to vary the Accord. 90Three matters concerning statutory construction should be noted at the outset. 91First, the overriding objective of the task of statutory construction is to give the words of a statutory provision the meaning which the legislature is taken to have intended them to have: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 (at [78]) per McHugh, Gummow, Kirby and Hayne JJ; Lacey v Attorney-General (Qld) [2011] HCA 10; (2011) 242 CLR 573 (at [43]). The task must begin with a consideration of the text having regard to context and legislative purpose: Project Blue Sky Inc v Australian Broadcasting Authority (at [69]) per McHugh, Gummow, Kirby and Hayne JJ; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 (at [47]) per Hayne, Heydon, Crennan and Kiefel JJ; Australian Education Union v Department of Education and Children's Services [2012] HCA 3; (2012) 86 ALJR 217 (at [26]) per French CJ, Hayne, Kiefel and Bell JJ; see also Rail Corporation New South Wales v Brown [2012] NSWCA 296 (at [39]) per Bathurst CJ (Beazley and Basten JJA agreeing). 92Secondly, the Act must be read as a whole, bearing in mind the injunction that "[a] legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions": Project Blue Sky Inc v Australian Broadcasting Authority (at [69] - [70]). The Court must endeavour to give meaning to every word of the Act: Commonwealth v Baume [1905] HCA 11; (1905) 2 CLR 405 (at 414 - 415) per Griffith CJ; Project Blue Sky Inc v Australian Broadcasting Authority (at [71]). 93Thirdly, s 33 of the Interpretation Act 1987 requires the Court, in interpreting the Act's provisions, to prefer a construction that would promote the purpose or object underlying the Act, whether or not that purpose or object is expressly stated in the Act, to a construction that would not promote that purpose or object. 94When one has regard to the Act as a whole, it is apparent from its scheme that the legislature has sought to pursue the Act's objectives in a different manner, depending upon the particular situation being addressed. The differential structure has significance when considering the manner in which the Director-General is required to exercise his functions under Part 8 of the Act. 95It is convenient to consider first the text of Part 8. 96Division 1 of Part 8 enables the creation of a local liquor accord as defined in s 131. It can be created by the voluntary acts of the persons identified in s 132: s 133(1). It must be approved by the Commissioner of Police and the Director-General who determine the area to which it is to apply after taking into account the area proposed by the parties in the draft accord and any other relevant matters: s 135(1) - (3). The Commissioner of Police and the Director-General are to endeavour to ensure that local liquor accords are prepared for, and apply to, all areas of the State: s 133(3). They may vary the area to which a local liquor accord applies at any time by notice in writing to the coordinator of the accord (whether of their own initiative or on the application of the parties to the accord): s 135(4). 97Division 2 of Part 8 enables the creation of precinct liquor accords and community event liquor accords as defined in s 136A. A precinct liquor accord created pursuant to Division 2 of Part 8 is imposed by the Director-General designating a geographical area as a precinct to which the proposed precinct liquor accord is to apply and the Director-General's satisfaction that the designated conditions prescribed by s 136B(3) apply within it. Licensees are among the class of those who may participate in the precinct liquor accord: s 136A(2). Licensees' participation is either by virtue of the Director-General imposing a condition on their licence requiring them to participate (s 136E(1)) or, by virtue of their licence permitting them to sell or supply liquor after midnight at least once a week on a regular basis and their being located in whole or part in the area to which the precinct liquor accord applies: s 136E(2). 98The possible participants in an accord include a range of individuals and organisations whose interests in its operation may reflect a range of views, not all of which could be expected to coincide with those of licensees. 99The measures which constitute an accord are determined, as I explain in more detail below, by reference to the necessity to achieve the outcomes referred to in s 136D(1). Those outcomes are concerned to achieve a particular result across the precinct, rather than in relation to particular licensed premises - albeit that to a large extent, they seek to achieve that outcome by regulating the operations of the licensed premises the subject of an precinct liquor accord. 100It is relevant to note that the participation in which a licensee can be required to engage includes "developing the measures to be provided for by the accord": s 136E(3)(a). To that extent it can be envisaged that the Director-General is required to engage in meaningful discourse with participants (which class, it will be recalled, extends beyond licensees) to ensure precinct liquor accord measures are necessary to achieve the prescribed objectives. 101While the Director-General is required to give notice, relevantly, of the terms of a precinct and community event liquor accord and of any variation to the terms of such an accord to each licensee who is required to participate in the accord (s 136D(2)(a)), it is significant, in my view, that, despite their role in developing the measures to be provided for by the accord, the agreement of accord participants is not required to the measures for which it provides: s 136A(3). 102I turn to consider the other provisions of the Act which concern the imposition of conditions on a liquor licence. In doing so, I note that the primary judge was influenced in reaching his conclusion concerning the Director-General's obligation of procedural fairness by the "regime of procedural fairness [established elsewhere in the Act] in respect of the imposition of similar conditions following the investigation of complaints under s 81, and pursuant to the three-strike disciplinary action scheme under Pt 9A". However, with respect to his Honour, the provisions of Division 2 of Part 8 of the Act concern a different situation to that dealt with by what might broadly be described as the disciplinary provisions of the Act to which his Honour referred (found in Division 3, Part 5 and Part 9A respectively) as well as those concerning disciplinary action in Part 9. 103The disciplinary provisions concern possible adverse action the Director-General may take in relation to a particular licensee, either in response to a complaint about the operation of the licensee's premises (Division 3, Part 5), or to determine whether he should initiate a complaint in relation to a licensee, a manager of licensed premises or a close associate of a licensee (Part 9) or impose conditions on a licence or take s 144F action in response to the number of " 'prescribed offences', in relation to a licence" (meaning an offence against any of the provisions of the Act set out in s 144B (or a provision of [the] Act or the regulations that is prescribed by the regulations)), having been "committed on or in relation to the premises to which the licence relates": s 144B. 104It is not surprising in these circumstances that the disciplinary provisions contain provisions expressly giving those potentially affected by the mooted adverse action an opportunity to be heard and requiring the Director-General to consider the licensee's submissions before deciding whether to take such action. The absence of any such express scheme from Part 8 is, in my view, telling in determining the content of the Director-General's obligation of procedural fairness. It is an indication of a legislative intention to modify the procedures of natural justice to meet the exigencies of the case: Kioa v West (at 615) per Brennan J. Those exigencies, in this case, are the making of a decision as to the measures to be included in an accord which operates, as I have said, by reference to achieving outcomes in a geographical area rather than focusing on the conduct of an individual licensee. 105In this case, of course, the Director-General has accepted that he should give notice of the Proposed Measures to the licensees and give them an opportunity to make submissions about his proposal. To that extent he has accepted that the content of this obligation of procedural fairness substantially accords with that for which express provision is made elsewhere in the Act. However, the Director-General submits that his obligation does not require him to go beyond giving the respondents the opportunity to make submissions and does not extend to giving them access to the information referred to in the primary judge's orders. 106Two further matters need to be addressed before reaching a conclusion about the content of the Director-General's duty of procedural fairness. The first is as to the source of the Director-General's power to vary the Accord Measures. The second is whether particular licensees can be exempted from all or some of the Accord Measures even though their premises are wholly or partly in the Accord precinct. 107There was debate during the hearing about whether the source of the Director-General's power to vary the Accord by adding the Proposed Measures was s 136B or s 136D. The Director-General contended that s 136B was the source of power to designate a precinct, while s 136D empowered him to determine and vary accord measures. This submission reflected the view of the authors of the Report who, I note, concluded that document by expressing the view that the Director-General might consider exercising his powers of "precinct-wide intervention ... under s 136D". The respondents' written submissions identified s 136D as the source of the variation power, however in his oral submissions Mr Leeming contended that s 136B(3) was the source of power to determine accord measures. He also submitted that that section imposed a higher threshold than that found in s 136D(1) as to the matters of which the Director-General had to be satisfied to conclude that it was necessary to impose and/or vary measures to achieve the objectives of s 136B(3)(b). 108In my view the Director-General's contention is correct. Section 136B(1) invests the Director-General with the power to designate a precinct as one to which a proposed precinct liquor accord is to apply, to approve a precinct liquor accord for the designated precinct, and to vary, at any time, the terms of a precinct liquor accord. He may approve a precinct liquor accord for a designated precinct, if he is satisfied of the matters set out in s 136B(3). The first of those matters relates to him being satisfied that there is the risk of harm to members of the public in the circumstances set out in s 136B(3)(a) and that the measures to be provided are of the nature of those set out in s 136B(3)(b)(i) as necessary to prevent that risk or protect and support the good order and amenity of the precinct as set out in s 136B(3)(b)(ii). The words "to be provided" direct attention to how the measures are to be formulated, the mechanism for which, in my view, is found in s 136D. 109Section 136D determines what measures the Director-General may include in a precinct liquor accord, whether as originally approved or as varied. It directs his attention to the circumstances in which he can form the opinion that "measures", which are the critical component of a precinct liquor accord (s 136A), are "necessary. The matters as to which he is required to be satisfied in order to do so are set out in s 136D(1) which, I note, repeats the aims of a precinct liquor accord set out in s 136A(1). Once those measures are approved or varied, the Director-General must notify the "terms of such [a varied] accord" to the persons referred to in s 136D(2). This reinforces the proposition that s 136D is a machinery provision by which the Director-General puts into place, or varies, the content of a precinct liquor accord. 110The debate about the source of the power to vary accord measures focussed in part, as might be expected, on s 136B(1)(c) which gives the Director-General power to "vary, at any time, the terms of a precinct liquor accord". In my view that subsection refers to the Director-General's power to vary the boundaries of a precinct liquor accord. That view is consistent with the context in which the power is found. 111This construction gives all provisions of Division 2 of Part 8 work to do, whereas on the respondents' proposed construction, s 136D(1) would be otiose. 112There was also debate during the course of the hearing as to whether a licensee could be required to participate in the Accord, without having to comply with all of the measures it included. The definition of "participate" in s 136E(3)(b) includes "complying with those measures to the extent that they apply to the licensee". The Director-General accepted that the Accord may have differential application by reference to characteristics of a particular licensed premises, an obvious example being that an accord measure which related to a beer garden would not apply to premises without such a facility. However Mr Lloyd submitted that accord measures could not be tailored so as to exempt particular licensed premises from all or some of the Accord's operation. He argued that if his submission that the accord measures could not be tailor made was correct, that, too, should be taken into account in determining the content of his obligation of procedural fairness. 113The respondents disputed as a matter of construction the Director-General's submission that accord measures could not be tailor made, but suggested it was not necessary for this Court to resolve that issue for the purpose of determining the proceedings. 114In my view it is necessary to express a view about this issue, the answer to which will inform the content of the Director-General's procedural fairness obligation. I would accept the Director-General's submission. No express provision of Div 2, Part 8 provides that a licensee may be exempted from any accord measures nor, in my view, can such an exemption power be inferred. Although s 136E(3) refers to "participat[ion] in a liquor accord" as including "complying with those measures to the extent that they apply to the licensee", it is a definition provision and, as such, does not enact a substantive rule of law but, rather, aids the construction of the substantive enactments that contain the defined term or terms: Allianz Australia Insurance Limited v GSF Australia Pty Limited [2005] HCA 26; (2005) 221 CLR 568 (at 12]) per McHugh J; see also Guthrie v Spence [2009] NSWCA 369; (2009) 78 NSWLR 225 (at [138]) per Campbell JJ (Basten JA and Handley AJA agreeing); Hastings Co-operative Ltd v Port Macquarie Hastings Council [2009] NSWCA 400 (at [16]) per Basten JA (Allsop P agreeing). 115Thus, when the Director-General gives a licensee notice pursuant to s 136E(1) requiring the licensee to participate in the liquor accord for a precinct or area or a licensee is required to participate by virtue of s 136E(2), that licensee's participation is to be understood as a requirement, inter alia, to comply with the measures of the relevant accord to the extent that the measures of the accord apply to that licensee. As the Director-General submitted it can readily be envisaged that there may be measures which do not apply to all licensed premises by virtue of the nature of their operations. A construction which permitted accord measures to be tailor made would be inconsistent with the context of Part 8 which requires accord measures to be determined by reference to conditions which exist in the precinct, not by reference to the operations of individual licensees. This is so even though it can not be gainsaid that conduct in relation to individual licensees' operations may be included in the factual substratum which forms the basis for the Director-General forming his s 136B or s 136D opinions. However, they do so to enable the Director-General to form his opinion about the necessity to include measures in an accord. 116Further support for the view that accord measures cannot be tailor made can be found in the facts that participants' agreement to accord measures is not required and, too, that participation may be mandatory if the conditions prescribed in s 136E(2) exist or may be required by the Director-General's exercise of his s 136E(1) discretion. 117I approach the determination of the case, therefore, on the basis that the Director-General's obligation to accord procedural fairness operates in a statutory framework which has regard to conditions defined by reference to circumstances which exist in the Accord precinct generally, that the Director-General cannot exempt a participating licensee from compliance with accord measures and, further, that the class of persons to whom the obligation of procedural fairness is owed includes the various persons identified in s 136A(2), not all of whose interests can be expected to be congruent. 118I would next note that the decision the Director-General is considering making is one which depends upon him forming the opinion referred to in s 136D(1) as to what is "necessary" to be included in the Accord. Further, it is the Director-General who must give notice of any variation to the terms of that Accord, an obligation which he has accepted, for the purposes of this case at least, implicitly contained an antecedent obligation to give notice of the terms of any proposed variation. It is, accordingly, necessary to pay regard to the materials the Director-General says he will consider in making that decision when determining whether he has discharged his obligation of procedural fairness rather than the materials the author of the Report considered. 119The only evidence before the primary judge was that the Director-General proposed to consider the Report when forming his s 136D opinion. The respondents did not establish that he will have the Source Materials before him in reaching his decision or that he has any actual knowledge of them. 120In seeking to persuade the Court that the respondents should have access to the Source Materials, Mr Leeming referred frequently to what he described as the "elephant in the room", an expression intended to encapsulate his contention that publicly available independent statistics showed the incidents of assaults in the Kings Cross postcode, which included the Accord precinct, were decreasing. The same proposition, he submitted, could be deduced from publicly available material about glassing assaults which, he contended, demonstrated that their incidence was diminishing "rapidly and recently". He complained that the Report did not refer to either diminishing trend. He contended that such information may be of great importance to someone proposing to exercise the power to vary the Accord Measures and that, viewed in that light, the Report could be seen to be selective, misleading and apt to mislead by excluding the information relating to fewer assaults and substantially fewer glassings. Accordingly, in order to be able to make meaningful submissions about the Report it was necessary for the respondents to have access to material to demonstrate it had either been wrongly summarised or was incomplete. 121It is not the function of this judgment to determine whether, as a matter of fact, Mr Leeming's submission is correct. To do so may amount to entering the proscribed area of the merits of the decision the Director-General is proposing to take: cf Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 (at 36) per Brennan J. However, I would note that, as Mr Leeming appeared to accept, the Report does not depend on the proposition that there is an increase in the level of alcohol related harm, alcohol related violence and anti-social behaviour in the Accord precinct. Rather, it depends upon the proposition that the Proposed Measures are "necessary", as s 136D(1)(a) mandates, to "minimise or prevent" such behaviour. Accordingly, in my view, even if it be the case that the Report does not refer to data said to indicate a decreasing trend in the s 136D(1)(a) categories, inability to have access to material which may indicate those trends does not lead to the conclusion that the respondents have been denied practical justice. Whether or not the incidence of s 136D(1)(a) violence, behaviour and harm is decreasing is not a necessary condition of the Director-General's ability to exercise his variation power. As the authorities to which I have referred say, the obligation of procedural fairness does not extend to enable a person potentially affected by a decision to interrogate the decision-maker, let alone the authors of a report prepared to facilitate the decision-making process. Thirdly, the respondents can draw their contention that the Director-General should take decreasing trends into account when making their submissions about the Report without having to have access to materials which will not, in any event, be before the Director-General. 122Accordingly, on the evidence at trial, the respondents had been notified of the information to which the Director-General proposed to have regard and which he considered, at a prima facie level, constituted "adverse information that is credible, relevant and significant to the decision to be made" as explained earlier in these reasons. By providing the respondents with the Report which would be before him and inviting their submissions concerning it the Director-General, in my view, sufficiently accorded them procedural fairness in the circumstances of the case.

Fresh evidence 123The respondents sought to adduce further evidence on the appeal: s 75A(7), Supreme Court Act 1970; Uniform Civil Procedure Rules 2005 51.51. The additional evidence constituted two media releases dated 6 September 2012 (the day after the primary judge's orders were entered) and a BOCSAR Report being a quarterly update of New South Wales crime statistics as at June 2012. The media releases both appeared to relate to the BOCSAR Report. In short, they lauded the fact that the Report revealed a downward trend in assaults on licensed premises which, in the Sydney statistical subdivision were said to be down by 26.7 percent. The BOCSAR media release quoted the Director of the BOCSAR as having said "the most encouraging results in the June Quarterly Report that the number of assaults on licensed premises has continued to fall ...". Mr Leeming submitted that the further evidence should be received as relevant to the Director-General's exercise of his variation power insofar as in considering whether those variations were "necessary", he might take into account whether assaults involving glass or bottles had increased, remained static or declined. 124Mr Lloyd submitted that the material was not relevant to an issue that concerned whether, in merely giving the respondents an opportunity to comment on the Report, the Director-General had denied them procedural fairness in August 2012. 125In my view the further evidence should not be received. As Mr Lloyd submitted, it is not relevant to the issue as to whether the Director-General denied the respondents procedural fairness in August. There is no evidence that it is material which is, or was, before the Director-General for the purposes of considering the Report's recommendations. The respondents may, should they wish, draw the matters in the Report and the two media releases to the Director-General's attention in their submissions concerning the Report.

Relief 126During the hearing of the appeal, Sackville AJA expressed concern that the injunction the primary judge granted may not be an appropriate remedy for a threatened denial of procedure fairness given that no administrative decision had been made. That issue had not been agitated before the primary judge, although his Honour's attention had been drawn to Smith v Director of Liquor and Gaming in which Rothman J had granted such relief notwithstanding a submission to the effect that the application was premature, that the Court could not be convinced that there would be a denial of natural justice, and that the Court ought to stay its hand or dismiss the summons on the basis that any denial of natural justice would be remediable by subsequent application to the Court and/or by review: see Smith v Director of Liquor and Gaming (at [16]). 127Rothman J, sub silentio, considered he had power to grant injunctive relief and that it was a matter of discretion whether he did so. He referred (at [17]), in that respect, to Lindemans Wines Pty Ltd v Woodward (1981) 46 LGRA 14, which he said stood for the proposition that "once it is established that the principles of natural justice have been breached, it is appropriate for the Court to intervene and not stay its hand". 128Lindemans Wines Pty Ltd v Woodward was a case in which objectors to a development application sought to restrain Commissioners of Inquiry conducting an inquiry until reasonable notice was given of the hearing as well as declarations as to the conduct of the hearing. As McClelland CJ recorded (at 24), the court's jurisdiction to entertain the application was not disputed. It was found in s 123(1) of the Environmental Planning and Assessment Act 1979, which enabled any person to bring proceedings in the Court "for an order to remedy or restrain a breach of this Act, whether or not any right of that person has been or may be infringed by or as a consequence of that breach". Counsel for the developer conceded that if, on the evidence, a breach of s 120(2) of the Environmental Planning and Assessment Act (which required a Commission of Inquiry to give reasonable notice in various publications of its intention to hold the inquiry, of the subject of the inquiry and of the time and place at which the inquiry is to be commenced) was established, then the court should grant a declaration to that effect. McClelland CJ referred to that concession (at 25 - 26), in a passage Rothman J extracted (at [17])) and found that the evidence established a clear breach of that provision. Accordingly it was appropriate to grant a declaration to that effect and order that the inquiry not commence until a specified date later than that originally notified. Lindemans Wines Pty Ltd v Woodward turned on a statutory regime not present in this case. It is not authority for the proposition that, absent a statutory provision such as s 123, a court should grant injunctive relief to restrain a threatened breach of procedural fairness. 129It cannot be gainsaid, however, that there is a role for the injunctive remedy in the field of public or administrative law, albeit that it has frequently been said that it is still the subject of development in courts exercising equitable jurisdiction: Australian Securities and Investments Commission (ASIC) v Edensor Nominees Pty Ltd [2001] HCA 1; (2001) 204 CLR 559 (at [45]) per Gleeson CJ, Gaudron and Gummow JJ; Australian Broadcasting Corp v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199 (at [90]) per Gummow and Hayne JJ; (at [168]) per Kirby J. 130As Gaudron, Gummow and Kirby JJ said in Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd [1998] HCA 49; (1998) 194 CLR 247 (at [25]), "[i]n this field, equity has proceeded on the footing of the inadequacy (in particular the technicalities hedging the prerogative remedies of the legal remedies otherwise available to vindicate the public interest in the maintenance of due administration." In Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135 (at [54] - [58]) Gaudron J noted that "[i]n the field of public law, equitable remedies are subject to the same considerations, including discretionary considerations, as apply in any other field". 131At a fundamental level, the question whether an injunction should be granted to restrain a decision-maker in the Director-General's position from continuing a decision-making process must turn on whether, at the stage at which relief is sought, it can be demonstrated that the decision-maker is, or is proposing to, act in breach of a relevant requirement of procedural fairness. Writing in a somewhat analogous context Dixon CJ, Williams, Webb and Fullagar JJ said in R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co [1953] HCA 22; (1953) 88 CLR 100 (at 117 - 118) that there could be no foundation for a writ of prohibition issuing in respect of an inquiry under s 23 of the Stevedoring Industry Act 1949 (Cth) unless and until it appeared, whether from the course of the inquiry or from the preliminary statement of the matters to which the inquiry was directed, that there could be no basis for the exercise of the power conferred by s 23(1) or that an erroneous test of the liability would be applied or that some abuse of authority was likely. 132This question was not argued at length. The Director-General appeared to accept that, in principle, quia timet injunctive relief may be available to restrain a threatened breach of procedural fairness, for example, by breach of the bias rule, but not in the present circumstances: see Dunghutti Elders Council (Aboriginal Corporation) RNTBC v Registrar of Aboriginal and Torres Strait Islander Corporations (at [35] - [44]) per Keane CJ, Lander and Foster JJ; Kitching v Queensland Commissioner of Police [2010] QSC 303 (at [123] - [132]) per Peter Lyons J. I assume he accepted, a fortiori, that such relief could be granted on a final basis, as it was in the present case. 133The Director-General's opposition to the respondents' claimed quia timet relief was, I apprehend, based on the proposition that "[w]here a decision-making process involves different steps or stages before a final decision is made, the requirements of natural justice are satisfied if 'the decision-making process, viewed in its entirety, entails procedural fairness' ": Ainsworth v Criminal Justice Commission (at 578). That, in my view is a cogent proposition with which, with respect, the primary judge did not deal. It was a consideration which ought to have been taken into account in the exercise of the discretion in circumstances where the relief granted, albeit expressed to be confined to the Director-General's exercise of his s 136D power in relation to the respondents' premises, clearly had the potential to impact on the entire s 136D exercise being undertaken.

Conclusion 134In my view the respondents did not establish that the Director-General was, or was proposing to engage in, a threatened denial of procedural fairness such as might have warranted the orders made by the primary judge. 135MEAGHER JA: My reasons for joining in the orders made on 12 September 2012 are the same as those recorded in the judgment of Sackville AJA. 136SACKVILLE AJA: I have had the advantage of reading McColl JA's comprehensive reasons for judgment. I gratefully adopt her Honour's account of the facts, legislative framework, the primary judgment and the submissions. I also adopt the abbreviations used in her Honour's judgment.

Principles Governing Injunctive Relief 137As McColl JA points out, little attention was paid on the appeal to the principles that determine whether a plaintiff should be granted a permanent injunction to restrain the making of an administrative decision, in circumstances where it is alleged that the decision-maker has not complied or will not comply with the requirements of procedural fairness. Nor was this issue debated before the primary Judge. In consequence, this Court has not had the benefit of detailed submissions on the point. 138There is little doubt that in an appropriate case a court will grant injunctive relief to a plaintiff who fears that an adverse decision will be made in breach of the requirements of procedural fairness. But the authorities also suggest that it is not enough for the plaintiff to show that there is a risk, even a significant risk, that the decision-maker will not accord procedural fairness. 139In Dunghutti Elders Council (Aboriginal Corporation) RNTBC v Registrar of Aboriginal and Torres Strait Islander Corporations [2011] FCAFC 88; 195 FCR 318, one issue was whether the applicant Corporation was entitled to restrain the Registrar from making a determination in circumstances where it was alleged that the Registrar had not followed the statutory procedures. The Full Federal Court stated (at [39]) that: "[a]n injunction will be granted to a party 'quia timet', ie because it fears that it will wrongfully be harmed by the actions of another, only where there is 'a strong probability, almost amounting to a moral certainty' that that party will be wrongfully harmed." 140In R v Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd [1953] HCA 22; (1953) 88 CLR 100, four members of the High Court said (at 117-118) that a writ or prohibition would not issue to restrain the holding of an inquiry into an employer's registration: "unless and until it appears ... that there can be no basis for the exercise of the power conferred by [the statute] or that an erroneous test of the liability of the employer to the cancellation of his registration will be applied or that some abuse of authority is likely." (Emphasis added.) This language is consistent with the approach subsequently taken in Dunghutti. 141The observations of Gaudron J in Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601, are also consistent with Dunghutti. Gaudron J contemplated that injunctive relief could be granted pursuant to s 75(v) of the Constitution without the plaintiff necessarily demonstrating jurisdictional error by the decision-maker. However, the hypothetical situation to which her Honour was directing attention was not a threatened failure to accord procedural fairness. Rather it was a breach of a statutory provision, expressed in mandatory language, requiring the Secretary of the Department provide relevant documents to the Refugee Review Tribunal before the latter commenced its consideration of a review application. It would seem that such a breach would inevitably have prevented the Tribunal from performing its review functions in compliance with the legislation.

Application of the Principles 142In the present case, it was not known at the time the primary Judge heard the application whether the Director-General would exercise his statutory power to vary the terms of the Accord or, if he did, what additional measures would be imposed on licensees. On the assumption that the Director-General would decide to adopt the Proposed Variations, the evidence did not establish that the source documents sought by the respondents would be likely to play any part in the Director-General's decision. On the contrary, as McColl JA has explained, the evidence showed that these documents would not be before the Director-General when he made his decision. 143Nor did the evidence demonstrate that the source documents would be likely to cast doubt on the information recorded in the Report. In substance, the respondents' case rose no higher than articulating a suspicion that the source data may not have been accurately summarised in the Report, particularly in the charts relating to patterns of liquor consumption and number of alcohol-related incidents. 144Mr Leeming criticised the reasoning in the Report, including the inferences apparently drawn from the statistics. Certain of his criticisms appeared to have some force. But the very point of providing the Report to licensees and affording them an opportunity to make submissions to the Director-General was to allow them to identify any flaws in the Report's reasoning or conclusions. 145Since the relevant principles were not brought to the primary Judge's attention, his Honour seems to have dealt with the application on the basis that the Director-General would decide to impose the Proposed Variations and would do so without providing the respondents the source documents they requested. However, the authorities suggest that the correct approach was to consider whether the respondents had shown that there was a strong probability that the Director-General would make a decision adverse to them and would do so in breach of the requirements of procedural fairness. The respondents did not satisfy that standard. Accordingly, if the correct approach is as I have described, the injunction should not have been granted.

The Argument in this Court 146The argument both before the primary Judge and in this Court proceeded on the basis that the Director-General would adopt the Proposed Variations and would so without providing the source documents requested by the respondents. The Director-General did not dispute that he was under an obligation to accord procedural fairness to the respondents (and other licensees) when exercising the power under s 136B(1)(c) of the Liquor Act 2007 to vary the terms of the Accord: see Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; (2012) 86 ALJR 1019, at [97], per Gummow, Hayne, Crennan and Bell JJ. In the light of this concession (in my view properly made), the competing submissions concentrated on whether a decision to adopt the Proposed Variations without providing the source documents would breach the Director-General's duty to accord procedural fairness to the respondents.

A Question of Statutory Construction 147As McColl JA notes, there was debate on the appeal as to the source of the Director-General's power to vary the terms of the Accord. The Director-General identified s 136D as the source, while the respondents said the power was conferred by s 136B. 148The better view in my opinion is that the power to vary the terms of an existing accord is conferred by s 136B(1)(c) of the Liquor Act, which states that the Director-General may "vary, at any time, the terms of a precinct liquor accord". The plain meaning of this language is that the Director-General can vary the measures incorporated in an existing accord, for example by including more stringent measures governing service of alcohol. I do not think that the language can or should be confined to a decision to vary the geographical boundaries of a precinct liquor accord. This conclusion is supported by the absence of any express power in s 136D or elsewhere to vary the terms of an accord. It is also supported by s 136D(2), which uses the expression "the terms of a precinct liquor accord" to include measures of the kind identified in s 136D(3). 149Mr Leeming submitted that if the power to vary the terms of an accord is conferred by s 136B(1)(c), the exercise of that power is conditioned by the criteria stated in s 136B(3), rather than the somewhat less restrictive criteria stated in s 136D(1)(a). This, however, does not necessarily follow. 150The two provisions relevantly provide as follows: 136B ... (3) The Director-General may approve a precinct liquor accord for a designated precinct only if the Director-General is satisfied that: (a) in the precinct there is, or there is a potential for, a significant risk of harm to members of the public associated with the misuse and abuse of liquor (including harm arising from violence or other anti-social behaviour), and (b) the measures to be provided for by the accord are necessary: (i) to prevent harm to members of the public associated with the misuse and abuse of liquor in the precinct (including harm arising from violence or other anti-social behaviour), or (ii) to protect and support the good order or amenity of the precinct in connection with issues arising from the presence of, or any proposed increase in the number of licensed premises in the precinct. ... 136D (1) A precinct liquor accord or community event liquor accord may include such measures as the Director-General considers are necessary: (a) to minimise or prevent alcohol-related violence or anti-social behaviour or other alcohol-related harm in the precinct or area to which the accord applies, or (b) to protect and support the good order or amenity of any such precinct or area in connection with issues arising from the presence of, or proposed increase in the number of, licensed premises in the precinct or area concerned. ...". 151Section 136B(3) is expressly directed to the case where the Director-General approves a liquor precinct accord. This is a reference back to s 136B(2)(b), which confers power on the Director-General to approve an accord for a designated precinct. That power is distinct from the power conferred by s 136B(2)(c) to vary the terms of an accord. The approval of an accord and variation of the terms of an existing accord are two distinct functions. If s 136B(3) was meant to apply to variation of the terms of an accord, it might have been expected to say so. Accordingly the better view is that the power to vary the terms of an accord is conditional on the Director-General being satisfied that the measures are necessary to achieve the objectives stated in s 136D(1). 152For the purposes of the present case it is not necessary to resolve this question of statutory construction. Whether the power to vary the terms of an existing accord is conditioned by the criteria stated in s 136D(1) or by those stated in s 136B(3), the result is the same.

Procedural Fairness 153As I have noted, the parties approached the question of procedural fairness on the assumption that the Director-General would approve the Proposed Variations and would not grant the respondents the source material sought by them. If it is correct to approach the matter on this basis, it was not open to the primary Judge to conclude that the Director-General had denied or would deny them procedural fairness. 154In determining the content of procedural fairness in the circumstances of the present case a number of matters are significant: (a) The exercise of the Director-General's statutory power directly affected not merely the respondents but all 57 other licensees subject to the Accord. It also affected, if less directly, other participants in the Accord (see s 136A(2)), as well as members of the public living in or visiting the precinct. (b) The matters as to which the Director-General must be satisfied in deciding whether to vary the terms of an accord are general in character and do not relate to the particular characteristics of the respondents or their Hotel. This is so whether the relevant criteria are those stated in s 136D(1) (as I am inclined to think) or those stated in s 136B(3) (as the respondents contend). (c) The respondents have not requested the Director-General to exempt the Hotel from some or all of the Proposed Variations. Thus whether or not the Liquor Act permits the Director-General to differentiate among licensees (an issue on which it is not necessary to express a view), any variations to the Accord will apply uniformly to all 58 licensees. (d) The material sought by the respondents does not specifically relate to them or of the conduct or management of the Hotel. It is statistical material that relates to alcohol-related incidents in the precinct and patterns of alcohol consumption in the area. (e) The Report purports to disclose the substance of the statistical information on which the Director-General intends to rely. There is nothing in the evidence to suggest that the summaries in the Report misstate the statistical information or present them in a misleading way. (f) There is no evidence to suggest that the source material sought by the respondents will actually be before the Director-General when he makes his decision. On the contrary, the evidence is that the material will not be before the Director-General. (g) The respondents have been accorded the opportunity to make submissions on the inferences the Report seeks to draw from the statistical information summarised in the Report. That opportunity extends to challenging the conclusions stated in the report. To the extent that the respondents contend (as they do on the appeal) that the reasoning in the Report is flawed, they have had ample opportunity to make those submissions to the Director-General. (h) It is not clear whether the respondents wish to make submissions on the particular circumstances and performance of the Hotel or whether, if they do, the submissions will be relevant to the matters the Director-General is obliged to take into account under the legislation. If the respondents do wish to make such submissions, they presumably have access to the necessary information from their own records to prepare the necessary documentation. 155Having regard to these matters, the refusal of the Director-General to provide the respondents with the source material they have requested involves no "practical injustice": Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1, at [37], per Gleeson CJ. The respondents have been provided with a fair opportunity to put any arguments they wish in opposition to the Proposed Variations.

Conclusion 156It is for these reasons that I joined in the orders made on 12 September 2012.

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: 20 December 2012