Although the review proceeding was a hearing de novo, the commission's reasons should have been given considerable weight. As we noted earlier, the commission has the administrative responsibility for the [Gambling Regulation Act 2003 (Vic)]. It has both specialist expertise and unique experience in dealing with the issues which arise under the Act.

1. In the present instance, it is accepted that the Commission has 'administrative responsibility' for the LCR Act and 'specialist expertise and unique experience in dealing with the issues which arise under the Act'.
2. The background in Macedon as relevant to this proceeding has been set out in Veolia Recycling & Recovery Pty Ltd v Environment Protection Authority[91] ('Veolia'):

• The Gambling Regulation Act 2003 ('GR Act') provided that the Victorian Commission for Gambling Regulation ('commission') was not to approve an application for a gaming premises unless it was satisfied that 'the net economic and social impact of approval would not be detrimental to the well-being of the community';
• Before the commission, Macedon Ranges Shire Council ('council') relied on the results of a community survey ('survey') that opposed the grant of the application.
• Relying on the survey, the commission refused the application finding that it was unable to be satisfied as required under the GR Act that the application should be approved.
• The applicant sought review of the commission's decision before VCAT.
• At the hearing before VCAT, council opposed the applicant's application but did not lead evidence of the survey put before the commission and made no submissions in support of the commission's conclusion on the community's opposition.
• The commission played no active part in the VCAT proceeding even though it was a statutory party to the review application and had statutory duties to provide information to VCAT.
• VCAT set aside the commission's decision and granted approval.
• Council appealed VCAT's decision.

1. It is in this context that the CoA found that the commission's decision not to take an active role in the VCAT proceeding reflected a misapprehension of its role as the primary decision-maker (based on observations made by Morris J in Branbeau Pty Ltd v Victorian Commission of Gambling Regulation (2005) 22 VPR 262). It is important to consider the detailed reasoning and observations of the CoA in making this finding (footnotes omitted):[92]
   1. In our view, the commission's decision to take no part in the review proceeding reflected a misapprehension of its role as the primary decision-maker. So too, with respect, did the remarks of Morris J in Branbeau which so informed the commission's approach.
   2. ...
   3. The obligation of the primary decision-maker is to assist the Tribunal in the review of the primary decision. In discharging that obligation, it is entirely proper for the primary decision-maker to seek actively to support the decision under review. That is what routinely occurs in proceedings before the Tribunal concerning (for example) decisions of the TAC under the Transport Accident Act 1986. The disappointed claimant seeks to persuade the tribunal that a different decision should be made on the merits, while the TAC - almost always represented by counsel - defends the primary decision by leading evidence, cross-examining witnesses and making submissions. Municipal authorities similarly play an active role in defending their planning decisions in review proceedings before the tribunal.
   4. Active participation by the primary decision-maker is of particular importance if the person seeking review of the decision did not appear before the decision-maker or if there would be no contradictor, as is often the case. But the fact that there is (as there was in the present case) a contradictor apart from the primary decision-maker does not preclude the decision-maker from playing an active role in the review proceeding, nor does it in any way diminish the appropriateness of the decision-maker in playing such as role. The most obvious example is a triparte planning appeal before the tribunal, where the permit applicant and the objector will be on opposite sides but the planning authority nevertheless seeks actively to defend the decision which it made, and may well adopt a position different from both applicant and objectors on facts in issue and on conditions to be attached to approval.
   5. Part of the rationale for such participation is that the decision-maker has a unique contribution to make to the review. The decision-maker is the repository of the powers and responsibilities conferred on it by the legislative scheme under which it made the relevant decision. As administrator of that scheme, the decision maker has experience, knowledge and expertise possessed neither by the tribunal nor by any adversary party appearing in the review proceeding. The decision-maker is the only party to the review proceeding whose participation is governed exclusively by the aims and objectives of the statutory scheme.
   6. Of course, where the adversary parties can be expected to cover the relevant issues, the decision-maker, or the tribunal itself, may decide that there is little for the decision-maker to contribute to the tribunal proceeding. But the presence of a contradictor is no guarantee that all relevant matters will be canvassed, as the present case illustrates. Although the shire was acting as contradictor, opposing the proprietor's application for review of the commission's refusal of its application, the shire elected not to support the commission's decision on the ground of community opposition. The commission itself being absent from the proceeding, there was no party before the tribunal supporting the critical part of the commission's reasoning.
   7. Nor is impartiality of the primary decision-maker jeopardised by active participation in a review proceeding. Of course, as Tadgell JA said in Bausch, the decision-maker must not behave as an adversarial party nor 'engage in curial tactics'. But, as the example of the TAC itself illustrates, there is no obstacle to the decision-maker being represented by counsel and presenting its own "case" in support of the decision under review. As s 59 makes clear, the decision-maker is a "party" in every sense.
2. The findings and observations of the CoA in Macedon support the fundamental conclusion that the primary role of the original decision maker is to assist VCAT in making the correct or preferable decision in a merits review.
3. In carrying out that primary role, there is no obstacle to the original decision-maker putting forward its case as to why the original decision should be affirmed. The original decision maker is also free to depart from its original decision in a proceeding before VCAT. In this sense the original decision-maker is not legally bound to support the decision under review because unlike a judicial review proceeding, the issue to be determined is not the legal correctness of the decision under review.

• the primacy of the primary decision-maker's role is to assist VCAT; and
• that role includes not behaving as an adversarial party and not engaging in curial tactics; and
• the primary decision-maker in discharging its role should discharge its duty to support VCAT in discharge of its own role in the proceeding.

THE RELEVANT FACTS AND BACKGROUND FROM KORDISTER PTY LTD V DIRECTOR OF LIQUOR LICENSING & ANOR [2012] VSCA 325**

1. The facts of the proceedings leading up to and including Kordister CoA are:
   • The Director of Liquor Licensing ('Director') made a decision to reduce the operating hours of the bottleshop located within the Exford Hotel because the continued operation of the 24 hour bottleshop was inconsistent with the objects of the LCR Act, particularly harm minimisation by means of providing adequate controls over the supply and consumption of alcohol.
   • The Licensee sought to review the decision of the Director to reduce the trading hours at VCAT.
   • VCAT set aside the decision of the Director reducing the hours of operation of the bottleshop.
   • VCAT's decision was appealed to the SCV where its decision was set aside and the matter was remitted back to VCAT (but differently constituted).
   • The decision of the SCV was in turn appealed and the CoA made unusual orders because it indicated that it would dismiss the appeal but noted that it was three and half years since the application was made to VCAT and much of the information was 'stale'. The CoA confirmed the order of the SCV setting aside the decision of VCAT but set aside the order requiring remittal to a differently constituted VCAT. The CoA found the circumstances warranted a permanent stay of the decisions of the Director to allow new applications to be made.
2. At paragraph 12 onwards of Kordister CoA, Warren CJ and Osborn JA stated:
   1. The notion of harm minimisation referred to s 4(1)(a) is defined inclusively. We respectfully agree with the judge that the essence of the ordinary meaning of the concept of harm minimisation has come to be understood in the following way:

Harm minimisation is a concept which has been central to the National Drug Strategic Plan (1993-1997) which guided the development and implementation of alcohol and drug policies across Australia through the 1990s. The concept was defined as an approach that aims to reduce the adverse health, social and economic consequences of alcohol and other drugs by minimising or limiting the harms and hazards of drug use for both the community and the individual without necessarily eliminating use ... The approach includes preventing anticipated harm and reducing actual harm.

1. ...Harm minimisation is directed to the practical reduction of harm resulting from the consequences of alcohol and other substance misuse. It is not a synonym for a form of prohibition. Rather, it responds to the reality that prohibition has proved, and continues to prove, a very blunt and ineffective tool for the control of the use of addictive substances and their consequences.
2. In turn, as the Tribunal has held, the general concept of harm minimisation does not mean that every application for a liquor licence should be refused nor would it, of itself, justify every application for a variation of licence which reduces trading hours.

1. In turn, s 4(1)(a) both contemplates mechanisms by which harm may be minimised (s 4(1)(a)(i) and (iii)), and states relevant objectives (s 4(1)(a) (ii) and (iv)). It is significant for present purposes to note that the objectives are stated in very broad terms. They relate in the first place to 'the amenity of community life', which to our minds is necessarily a broader concept than 'the amenity of the area', a concept utilised elsewhere in the Act. They also relate to the impact of risky drinking of alcohol on the 'community', a concept which is broad enough to encompass the community of Victoria.
2. On the other hand, the objectives recognise that the manner of supply and consumption of liquor may positively contribute to the amenity of community life and may encourage a culture of responsible consumption of alcohol. It follows that the notion of harm minimisation is not simply one of limiting the supply of alcohol. Rather, it is concerned with regulating supply of alcohol so as to ensure, as far as practicable, net community benefit.
3. In turn, sub-ss 4(1)(b) and (c) state objects which may favour the grant or maintenance of a liquor licence. Section 4(1)(b) recognises the legitimacy of community expectations relating to a diversity of licence facilities and s 4(1)(c) recognises the legitimacy of the liquor industry. Ultimately, the Tribunal was required to balance each of the objects and arrive at an appropriate synthesis in the particular circumstances of the case by the way of a discretionary judgment.
4. Section 4(2) emphasises that in making the relevant discretionary judgment the decision maker must have due regard to harm minimisation and the risks associated with the misuse and abuse of alcohol. For the reasons explained by Tate JA, we accept that the text, context and purpose of s 4(2) lead to the conclusion that harm minimisation is a fundamental principle of the Act and can properly be regarded as 'the primary regulatory object of the Act and therefore the primary consideration in liquor licensing decisions', as the judge concluded.
5. So to say, however, does not detract from the potential complexity of the concept of harm minimisation. In particular, as we have said, s 4(1)(a)(ii) and (iv) explicitly recognise that the supply of liquor in an appropriate way may positively contribute to the amenity of community life and the encouraging of a culture of responsible consumption of alcohol.
6. Nor does the primacy of the concept of harm minimisation make irrelevant the other express objects of the Act, including, in particular, the development of a diversity of licensed facilities reflecting community expectations.

1. The enquiry the Tribunal was required to make was essentially a prospective one directed to a predictive conclusion.
2. Further, as the Tribunal constituted by Judge Bowman recognised in Nardi v Director of Liquor Licensing, because the concept of harm minimisation is itself anticipatory there may be cases in which a conservative approach should be adopted. In this context, a conservative approach may mean a precautionary approach leading to the conclusion that if an appreciable risk of harm is identified, harm minimisation favours avoiding such potential risk unless it can be positively justified.

1. In considering the relevance of the local social, demographic and geographic circumstances, Warren CJ and Osborn JA stated:
   1. In particular, in Black and Cooke v Liquor Licensing Victoria, Kellam J and Angell M held, when considering an application for a packaged liquor licence at a supermarket, that it was necessary to determine whether the licence would be contrary to the object of harm minimisation in the sense of whether 'the object of harm minimisation stands out as being poorly served by reason of particular local, social, demographic and geographic circumstances'. That approach involved evaluation of general evidence led before the Tribunal concerning the nature of potential alcohol misuse and its possible social impacts and its application to the local context.
   2. Likewise, in Nardi v Director of Liquor Licensing, to which the Tribunal specifically referred, and upon which it relied in this context, Judge Bowman again had to consider an application for a packaged liquor licence at a supermarket. His Honour heard general evidence relating to the consequences of probable increased consumption of alcohol and alcohol abuse. He was not persuaded that this general evidence should be determinative in that case and held that it should be evaluated in the light of evidence as to the relevant local context. The Tribunal in the present case was however wrong to find: 'His Honour made it clear that the expert evidence in relation to harm minimisation needs to be treated with considerable care.' In turn the Tribunal was wrong to adopt this approach.

1. In considering a requirement for a causal link, Tate JA in Kordister CoA stated:
   1. The more difficult question is whether, in deciding an application for a variation to reduce trading hours, applying the harm minimisation principle requires the decision-maker to determine whether the operation of the premises with extended trading hours is a direct cause of the harm to be minimised.
   2. It is in this context that the character of a variation application as non-punitive is especially important. As mentioned above, it is not the case that an application for a reduction in trading hours made under s 29 of the Act is brought for reasons of non-compliance or as a means of correcting the conduct of the licensee. It can be brought as part of broader regulatory action. The predominant focus by an applicant upon a series of specific incidents, as relied upon by Inspector Duthie, is likely to confuse. Such a focus is also likely to obscure the question of whether it is necessary to establish a causal connection between the harm complained of and the licensed premises.
   3. Both Black and Cooke and Nardi make plain that while a decision-maker should take into account any general evidence adduced about the use and misuse of alcohol, a significant factor in determining how important the general evidence of harm minimisation is to a particular application is whether the general evidence has a connection with, or is reinforced by, the particular local, social, demographic and geographic circumstances of the relevant premises; the 'locality evidence'. In my opinion, it is the determination of whether the object of harm minimisation is 'poorly served by reason of particular local, social, demographic and geographic circumstances' that provides a proper factual foundation for deciding whether, in the circumstances of the case, the object of harm minimisation will be advanced. By reference to such locality evidence a decision-maker can avoid the object of harm minimisation resulting in an invariably negative answer to the issuing of further licences and an invariably positive answer to any application for reduction of trading hours. As these consequences of 'proving too much' were clearly not what was intended under the Act, as acknowledged in Black and Cooke, and in Nardi, and by the judge, site-specific locality evidence is of considerable importance.
   4. There must also be a connection between the licensed premises and the locality evidence. But that connection need not be causal. It is rather a matter for those applying to reduce trading hours to prove that, for one reason or another, the particular local, social, demographic and geographic circumstances surrounding the premises are conducive to the misuse of alcohol. The judge was correct, in my view, in concluding that, as far as locality evidence is concerned, it is not necessary to establish that the operation of licensed premises in issue caused, or was responsible for, the anti-social behaviour. As far as locality evidence is concerned, it is sufficient to show that it demonstrates that the object of harm minimisation 'would not be well served' by granting a licence for packaged liquor in that locality or, relevantly, by refusing to reduce the trading hours of a 24-hour licence for packaged liquor.
   5. The point can be made by example. It may be that when an extended trading hours licence was granted to premises, alcohol was not otherwise available in the surrounding area. If, over time, multiple licences have been granted and an applicant can establish, on the basis of demographics and the like, that the local area attracts anti-social behaviour, that locality evidence can support a reduction in the trading hours of the premises as part of regulatory action. It can do so on the basis that the extended operating hours of the premises contributes to the additional availability of alcohol in the area. The additional availability of alcohol in an area where alcohol is regularly abused in itself supports an inference that it would promote the object of harm minimisation for extended trading hours to be reduced. With respect to locality evidence, it is not a matter of strict attribution of harm.
   6. Locality evidence can be relied upon to support a reduction in trading hours without the need to establish a causal nexus because of the need to recognise that licensed premises are not to be considered in isolation from the social and cultural environment that they inhabit. Licensed premises are not to be treated, for the purpose of regulation, as isolated from each other or as entities around which strict boundaries can be drawn separated from their respective social milieu.
   7. By contrast, in my opinion, a causal nexus must be established if reliance is placed upon specific incidents concerning the operation of licensed premises. If an applicant seeks a reduction of extended trading hours on the basis of site-specific incidents concerning the operation of the premises, for example, sales from the premises to intoxicated persons or assaults occurring between patrons after being ejected, then, in my view, there must be a causal connection established between the harm complained of and the operation of the premises. For the evidence to warrant being given due weight by the decision-maker, there must be evidence which links the particular unruly behaviour to the relevant premises. Where there is no locality evidence, evidence of specific incidents will be of considerable importance. Conversely, in some circumstances, the locality evidence may have such probative value that there is no need for reliance upon specific incidents. Where there is both locality evidence, and evidence of specific incidents, the exact weight to be given to each category of evidence will no doubt turn on the particular circumstances of each case.
   8. On this approach, it is apparent that, in addition to general evidence, of a statistical, sociological or epidemiological kind, there is a distinction between two types of site-specific evidence: (1) locality evidence and (2) specific incident evidence. The distinction between the two is of considerable importance because the former does not require an applicant to establish a causal connection between the social harm and the specific premises, while the latter does. Some of the locality evidence (for example, congregation of unruly crowds, drinking on the street, assaults and violence, however caused) may be of the same character as the specific incidents alleged, but if that evidence is sought to be relied upon as relating particularly to the relevant premises, and thus as attracting the weight that such evidence will bear, rather than as locality evidence, the premises must be shown to be responsible for the harm caused.
   9. In my opinion, the judge was correct to infer that the inquiry required in relation to a variation application is a broad one; it should encompass social and cultural factors that do not depend upon attributing direct responsibility for the harm to the licensee. Where general evidence is adduced of the misuse and abuse of alcohol, based upon such disciplines as epidemiology and sociology, and locality evidence is also relied upon, it would be inconsistent with the Act for the inquiry to take as its predominant focus a series of specific incidents, as occurred here. But, with great respect to the judge, I consider that he was wrong not to recognise that, although evidence of the misuse of alcohol in the context of local, social, demographic and geographic circumstances surrounding the premises does not require a causal connection to be established between the premises and the surrounding social harm, any evidence adduced of specific incidents relied on as reflecting the manner in which the premises operates, does depend upon the demonstration of a causal nexus. However, this error was not material to the judge's conclusion that the Tribunal misconstrued its statutory function and failed to apply the correct test.

ORIGINAL COMMISSION (DELEGATE) DECISION ABOUT THE LICENCE AND ITS CONDITIONS**

APPLICANT'S SUGGESTED LICENCE AT THE START OF HEARING**

APPLICANT AND COMMISSION WORKING VERSION OF LICENCE AT THE END OF HEARING**

[2] See s 51(2)(a) and (c) respectively of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ('VCAT Act').

[3] Also found at Macedon Ranges Shire Council v Romsey Hotel Pty Ltd & Anor [2008] VSCA 45.

[4] See [9]-[10] of the reasons for refusal.

[5] See [10] of the reasons for refusal.

[6] See [50] of the reasons for refusal. Quoted words/phrases are taken from this paragraph.

[7] See [232] of the reasons for refusal.

[8] See [236(b)] of the reasons for refusal.

[9] See [240] of the reasons for refusal.

[10] [2012] VSCA 325.

[11] Director of Liquor Licensing v Kordister Pty Ltd [2011] VSC 207 ('Kordister SCV').

[12] Kordister Pty Ltd v Director of Liquor Licensing (Occupational and Business Regulation) [2010] VCAT 277 ('Kordister VCAT').

[13] Section 3.3.7(c) requires consideration of whether 'the net economic and social impact of approval will not be detrimental to the wellbeing of the community of the municipal district in which the premises are located' when deciding if application for approval of a premises is suitable for gaming.

[14] Clause 71.02-3 sets out the 'Integrated decision making' operational provision that includes the following statement - 'Planning and responsible authorities should endeavour to integrate the range of planning policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development for the benefit of present and future generations'.

[19] This appears to be a somewhat lesser version of the s 49 material.

[20] Planning Permit PLA22/0024 issued on 4 December 2018 and amended on 5 July 2022.

[21] Tribunal Book 1 - s 49 material, pdf page 101.

[23] Drawing No. DMA200 Rev B marked as Exhibit A2.

[24] Hearing day 5 transcript, page 653, lines 28-31. (The Commission obtained transcripts of this hearing for Days 1-6 and the morning of Day 12. Therefore, we have had regard to these and refer to the respective transcript where relevant).

[25] Hearing day 5 transcript, page 654, lines 6-14.

[26] Hearing day 12 transcript, page 20, lines 5-13.

[27] (Occupational and Business Regulation) [2006] VCAT 2544.

[28] Quoted words from hearing day 12 transcript, page 31, lines 18-19.

[29] Section 4(1)(a)(ii) of the LCR Act.

[30] Section 4(1)(a)(iv) of the LCR Act.

[32] See Endeavour's Outline of Submission at [3].

[37] https://www.abs.gov.au/statistics/standards/australian-statistical-geography-standard-asgs-edition-3/jul2021-jun2026/main-structure-and-greater-capital-city-statistical-areas/statistical-area-level-2.

[38] https://www.abs.gov.au/statistics/standards/australian-statistical-geography-standard-asgs-edition-3/jul2021-jun2026/significant-urban-areas-urban-centres-and-localities-section-state/urban-centres-and-localities.

[39] https://www.abs.gov.au/census/find-census-data/search-by-area.

[40] Hearing day 12 transcript, lines 21-24.

[41] The footnotes to (a), (b) and (c) in this quote have not been included. Refer to the Reply Submissions of the Applicant at [5] for the footnotes.

[42] See witness statement of Laura Thomas at [227].

[43] Trapp, G S.A., Knuiman, M., Hooper, P., & Foster S. (2018). Proximity to Liquor Stores and Adolescent Alcohol Intake: A Prospective Study. American Journal of Preventive Medicine, 54(6): 825-830.

[44] Rowland, B., Toumbourou, J. W., Satyen, L., Tooley, G., Hall, J., Livingston, M., & Williams, J. (2014). Associations between alcohol outlet densities and adolescent alcohol consumption: A study in Australian students. Addictive Behaviors, 39 (2014), 282-288.

[45] Rowland, B., Toumbouroua, J. W., Satyen L., Livingston M., & Williams J. (2014). The Relationship between the density of alcohol outlets and parental supply of alcohol to adolescents. Addictive Behaviors 39 (2014) 1898-1903.

[47] A systematic review. Alcohol and Alcoholism pages 500-516.

[48] Journal of Studies of Alcohol and Drugs pages 58-67.

[49] Rowland et al Health & Place 37 (2016) pages 43-49.

[50] Rowland et al Health & Place 37 (2016) page 48.

[51] See Paul Shipp evidence statement at [9a].

[53] Referred to as the 'locality evidence' in Kordister CoA.

[54] Hearing day 12 transcript, page 34, lines 13-14.

[55] Amongst other things, see Tribunal Book page 7156.

[56] Hearing day 12 transcript, page 35, lines 5 to 25 and Endeavour's closing submission at [54].

[57] https://www.abac.org.au/about/thecode/.

[58] Hearing day 12 transcript, pages 36 to 38.

[59] Rowland et al. (2016). Underage purchasing of alcohol from package liquor outlets: an Australian study. Health Promotion International. 5,32, 790-799. ('Rowland 2016').

[60] See Professor Swerissen's evidence statement at [65].

[62] See Endeavour's Outline of Submissions at [47].

[65] See Chris Abery's evidence statement at [260].

[66] See Endaeavour's Closing Submission at [71].

[68] See Commission's internal review decision at [6].

[69] Mr Shipp conceded this point during cross-examination.

[70] See Ms Rauber's submission on page 35.

[71] We will say more about this later in our decision.

[72] See Mr Ferguson's submission on pages 2-3.

[73] See Mr Dickenson's submission at [4].

[74] See Mr Eliades' submission at [12].

[75] Mason v Head, Transport for Victoria [2021] VSCA 19.

[79] Hearing day 1 transcript, page 91 line 20.

[80] Hearing day 1 transcript, page 67 lines 10-15.

[82] Hearing day 12 transcript, page 30, lines 15-20.

[87] There are no page numbers, so we have referred to the electronic pdf version pages.

[88] Extract from paragraphs 241-242 of Ms Thomas' evidence statement.

[89] See pages 8-11 of the National Strategy.

[90] See council's submission at [40].

[91] [2025] VCAT 673.