HEADNOTE
[This headnote is not to be read as part of the judgment]
The applicant, Granville Hotel Operations Pty Ltd (the Hotel), operates the Royal Granville Hotel in Sydney. It operates gaming machines. The respondent, the Independent Liquor and Gaming Authority (the Authority), is the State body charged with regulating those machines pursuant, in particular, to the Gaming Machines Act 2001 (NSW) (GM Act).
Section 39 of the GM Act imposes a mandatory shutdown of gaming machines between 4am to 10am each day. Under s 40 the Authority may approve a shorter shutdown period for any particular venue, being a period of between 6am and 9am on weekends and public holidays. The Authority's approval may only be given if it has taken into consideration such guidelines as may be approved by the Minister. A Guideline had been so approved, cl 1.2 of which states that "approval may be given if the Authority is satisfied that … [t]he venue falls within an area where other hospitality and entertainment venues are open to 6am on Saturdays or Sundays or public holidays".
The Hotel applied to the Authority for approval for the shorter shutdown period. For the purposes of cl 1.2 there was one other relevant venue in the area in question. The Authority took the view that the word "venues" in cl 1.2 did not include a singular venue. On that basis it refused the Hotel's application.
The Hotel sought judicial review of that decision before the Supreme Court on the basis that the Authority had misconstrued the Guideline. The primary judge dismissed that application.
The sole point on appeal was whether the term "venues" in cl 1.2 of the Guideline should be construed so as to encompass the singular. This raised in turn whether the Interpretation Act 1987 (NSW) applies to the Guideline, in circumstances where s 8(c) of that Act provides that use of the plural form includes the singular.
The Court (per Kirk JA, Bell CJ and Griffiths AJA agreeing) granted leave to appeal but dismissed the appeal, holding:
As to the applicability of the Interpretation Act
- Section 5(1) of the Interpretation Act provides that that Act applies to "all Acts and instruments …". Section 5(1) together with the definition of "instrument" indicates that the Interpretation Act applies to documents beyond primary and delegated legislation: at [32]. It is not necessary to resolve the issue of whether that definition extended to the policy-type Guideline at issue here: [33].
- Assuming that the Interpretation Act is capable of applying to the Guideline as a relevant "instrument", it is then necessary to consider s 5(2) of that Act, which provides that the Act applies except insofar as the contrary intention appears. The character of a document may make it less likely that a presumptive construction set out in the Act should be taken to be applicable: at [34]. The courts have over time drawn inferences as to likely intentions of drafters, which have become principles and presumptions, which drafters are taken to have in mind when drafting. Given the nature of the Guideline at issue here, no assumption could be made that either the Interpretation Act or broader principles of statutory construction were part of the context which the drafter had in mind: at [38]-[39]. Where it is apparent that a non-legislative legal instrument is a practical document not drafted by parliamentary counsel, less may be required to manifest a contrary intention than might be required in other contexts: at [40].
Potter v Minahan (1908) 7 CLR 277 [1908] HCA 63; Electrolux Home Products Pty Ltd v Australian Workers' Union (2004) 221 CLR 309; [2004] HCA 40; Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636; [2012] HCA 31; Forsyth v Deputy Commissioner of Taxation (2004) 62 NSWLR 132; [2004] NSWCA 474, considered.
As to the proper construction of the Guideline
- As for any document, the issue of construction at hand must be resolved by taking account of the text, context and purpose of what is being construed: at [41]. As to text and context, the relevant language employed in cl 1.2 of the Guideline is plural. The ordinary meaning of the words here is that the use of the plural connotes the plural, where there is no particular reason to construe them as also encompassing the singular. That understanding is reinforced by the fact that cl 1.2 could readily have been drafted so as to indicate that the criterion could be satisfied if one or more hospitality and entertainment venues were open in the area at the relevant time: at [43]-[44].
- Clause 1.2 identifies a category relating to the area in which the venue is located. The words in question identify the type of character that the area has, namely that it is an area where other hospitality and entertainment venues are open till very late on weekends and public holidays. Clause 1.1 addresses a situation where the venue is in an area of another (potentially overlapping) character. Where the provisions are seeking to identify the character of an area, it seems more likely that identifying that character would involve referring to more than one other venue: at [45]-[46].
- As to purpose, neither claimed purpose identified by each side is persuasive. The Authority submitted that the purpose of cl 1.2 was to promote harm minimisation. Harm minimisation is an objective of the Act under s 3. The Minister and the Authority are required to have due regard to that object when (respectively) approving guidelines and deciding whether to grant an approval under s 40(3), but that does not exclude taking into account other considerations or seeking to achieve other purposes: at [14]-[15]. The function of s 40(3) is to allow partial exemptions from the restriction in s 39, which is a harm minimisation provision. Section 40 must contemplate that the restriction might be partially lifted for reasons not directed only to achieving harm minimisation: at [53]-[54]. The Hotel submitted that the purpose of cl 1.2 was to ensure that no venue gained a special competitive advantage by being able to operate for a longer period than others. This is unlikely given that the other venues in question need not be hotels or clubs, let alone ones which have obtained an exemption under s 40 of the GM Act: at [55]. A more likely purpose of cl 1.2 is that, together with cl 1.1, it relates to facilitating certain areas having an active nightlife with the attendant social and economic benefits. Ultimately it is not necessary to reach a conclusion as to purpose: at [56]-[57].
R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45; [1979] HCA 62, Construction Forestry Mining and Energy Union v Mammoet Australia Pty Ltd (2013) 248 CLR 619; [2013] HCA 36, applied.
- Text and context support the Authority's conclusion that the presence of only one venue of the requisite kind in the relevant area did not suffice to establish that the applicant venue fell within the category identified in cl 1.2. No purposive argument militates against this conclusion. These considerations are sufficient to indicate an intention contrary to the provision made in s 8(c) of the Interpretation Act: at [60].