Independent Liquor and Gaming Authority v Burwood RSL Club Ltd

Gaming and Liquor Administration Act 2007 (NSW), ss 4, 13A, 36A

Gaming and Liquor Administration Regulation 2008 (NSW), cl 5B (repealed)

Gaming and Liquor Administration Regulation 2016 (NSW), cl 7 (repealed)

Gaming and Liquor Administration Regulation 2024 (NSW), cll 2, 4, 10

Gaming Machines Act 2001 (NSW), ss 34, 88, 95A, 101, 102, 104

Interpretation Act 1987 (NSW), s 34

Liquor Act 2007 (NSW), ss 7, 10, 11, 12A, 12B, 20, 44, 45, 49, 53, 59

Griffith University v Tang (2005) 221 CLR 99; [2005] HCA 7

Independent Liquor and Gaming Authority v Whitebull HTL Pty Ltd; Independent Liquor and Gaming Authority v Area Hotel UT Pty Ltd; Independent Liquor and Gaming Authority v The Griffith Hotel Pty Ltd [2023] NSWCA 224

Kinsman v Independent Liquor & Gaming Authority [2023] NSWCATAD 335

Master Education Services Ply Ltd v Ketchell (2008) 236 CLR 101; [2008] HCA 38

O'Grady v Northern Queensland Co Ltd (1990) 169 CLR 356; [1990] HCA 16

R v Ross-Jones; Ex parte Green (1984) 156 CLR 185; [1984] HCA 82

Wilson v Chan & Naylor Parramatta Pty Ltd atf Chan & Naylor Parramatta Trust [2020] NSWCA 62

Explanatory Note, Gaming and Liquor Administration Amendment Bill 2015 (NSW)

Gaming and Liquor Administration Amendment Bill 2015 (NSW)

Independent Liquor and Gaming Authority (Appellant)

Burwood RSL Club Ltd v Independent Liquor & Gaming Authority [2025] NSWCATAD 78

1. In September 2023, Burwood RSL Club Ltd (the Club) applied to the Independent Liquor and Gaming Authority (the Authority) for approval to remove its club licence from the Club's existing premises to proposed new premises on George Street, Burwood. In June 2024, the Authority approved that application, and imposed several conditions on the Club's licence, including that by 2:00 am the Club cease operating gaming machines (the impugned condition). The Club applied under the Administrative Decisions Review Act 1997 (NSW) (ADR Act) to the NSW Civil and Administrative Tribunal (NCAT) for "administrative review" of the decision to impose that condition (the ADR application).
2. The Authority requested the Tribunal to dismiss the ADR application, contending that the decision to impose the impugned condition was not an "administratively reviewable decision". The Tribunal rejected that argument and found it had authority to decide the ADR application: Burwood RSL Club Ltd v Independent Liquor & Gaming Authority [2025] NSWCATAD 78 (the Dismissal Decision).
3. The Authority appeals from the Dismissal Decision. The central question raised by this appeal is whether the decision to impose the impugned condition is an administratively reviewable decision for the purpose of the ADR Act. For the reasons given below the answer to that question is no. Therefore, NCAT does not have administrative review jurisdiction over that decision.
4. Before considering the issues arising for determination, we have set out or made observations on the following matters:

(1) the key statutory provisions;

(2) the background to the Authority's decision;

(3) the background to the appeal;

(4) the appeal; and

(5) the jurisdiction of the Appeal Panel.

Liquor Act

1. Part 2 (ss 7-9) of the Liquor Act 2007 (NSW) contains provisions dealing with the principal offences relating to the sale and supply of liquor. Section 7 deals with the requirement of a licence to sell liquor, and relevantly states:

(1) A person must not sell liquor unless the person is authorised to do so by a licence.

Maximum penalty - 100 penalty units or imprisonment for 12 months, or both.

1. Part 3 Division 1 (ss 10-13) contains preliminary provisions dealing with liquor licences. Section 10 deals with the types of liquor licences and the authorisation conferred by a liquor licence, and relevantly states:

10 Types of licences and authorisation conferred by licence

(1) The following types of licences may be granted and held under this Act -

...

(b) club licence,

...

(2) A licence authorises the licensee to sell or supply liquor in accordance with this Act and the conditions of the licence.

...

1. Section 11 contains general provisions dealing with licence conditions, and states:

(a) such conditions as may be imposed, or are taken to have been imposed, by the Authority or the Secretary (whether at the time the licence is granted or at any later time) under this Act, and

(b) such conditions as are imposed by this Act or prescribed by the regulations, and

(c) such other conditions as are authorised to be imposed on the licence under this Act.

(1A) (Repealed)

(2) A licensee must comply with any conditions to which the licence is subject.

Maximum penalty - 100 penalty units or imprisonment for 12 months, or both.

(3) For the purposes of this Act, a condition to which a licence is subject includes any provision of this Act that imposes a requirement or restriction (other than as an offence) on or in relation to the licence, licensee or licensed premises concerned.

Note.

The times during which licensed premises are authorised to trade is an example of such a requirement.

1. Sections 11A, 12A and 12B specifies conditions on all types of liquor licences.
2. Part 3 Division 3 (ss 18-20) contains provisions dealing with club licences. Section 20 specifies conditions on all club licences.
3. Part 4 Division 1 (ss 40-47) contains provisions relating to licence applications and granting of licences. Section 44 provides for the making of submissions to the Authority in relation to licence applications, and relevantly states:

44 Submissions to Authority in relation to licence applications

...

(2) If any such submission is made to the Authority, the Authority is to take the submission into consideration before deciding whether or not to grant the licence.

...

1. Section 45 deals with decisions made by the Authority in relation to licence applications, and relevantly states:

45 Decision of Authority in relation to licence applications

(1) The Authority may, after considering an application for a licence and any submissions received by the Authority in relation to the application, grant the licence or refuse to grant the licence. The Authority may determine the application whether or not the Secretary has provided a report in relation to the application.

...

1. Part 4 Division 2 (ss 48-58) contains miscellaneous provisions relating to licences and licence-related authorisations. Section 53 confers power on the Authority to impose, vary or revoke licence conditions, and relevantly states:

53 Authority may impose, vary or revoke licence conditions

(1) Without limiting any other provision of this Act, the Authority may at any time -

(a) on application by the Secretary or the Commissioner of Police, or

(b) on the Authority's own initiative,

impose conditions on a licence.

...

(2) The Authority may at any time -

(a) on application by the licensee, the Secretary or the Commissioner of Police, or

(b) on the Authority's own initiative,

vary or revoke a condition of a licence that has been imposed (or taken to have been imposed) by the Authority under this Act.

...

(4) The Authority must not impose a condition on a licence after it has been granted, or vary or revoke a condition that has been imposed (or taken to have been imposed) by the Authority, unless the Authority has -

(a) given the licensee a reasonable opportunity to make submissions in relation to the proposed decision, and

(b) taken any such submissions into consideration before making the decision.

1. Part 4 Division 3 (ss 59-64) contains provisions dealing with licence removals and transfers. Section 59 deals with the removal of licence to other premises, and relevantly states:

(1) A licensee may apply to the Authority for approval to remove the licence to premises other than those specified in the licence.

...

(3) An application for approval to remove a licence to other premises is to be dealt with and determined by the Authority as if it were an application for the granting of a licence in respect of those other premises. Accordingly, the provisions of Division 1, in particular, extend to an application for the removal of a licence to other premises as if it were an application for a licence.

...

1. The ADR Act provides for the circumstances in which the Tribunal has administrative review jurisdiction over a decision of an administrator: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 30(1).
2. The ADR Act defines an administratively reviewable decision to be a decision of an administrator over which the Tribunal has administrative review jurisdiction: s 7(1); see also NCAT Act, s 30(3).
3. NCAT has administrative review jurisdiction over a decision, or class of decisions, of an administrator if enabling legislation provides that applications may be made to the Tribunal for administrative review: ADR Act, s 9(1).
4. In this appeal the relevant enabling legislation is s 13A of the Gaming and Liquor Administration Act 2007 (NSW) (GLA Act) read with cl 7 of the Gaming and Liquor Administration Regulation 2016 (NSW) (2016 GLA Regulation).
5. Section 13A of the GLA Act provides for a review by the Tribunal of certain decisions of the Authority, and relevantly states:

13A Review by NCAT of certain decisions of Authority

(1) A relevant person who is aggrieved by a decision of the Authority in relation to an application made under a provision of the gaming and liquor legislation prescribed by the regulations for the purposes of this section (a prescribed application) may apply to NCAT for an administrative review under the Administrative Decisions Review Act 1997 of that decision.

...

(5) In this section, relevant person in relation to a prescribed application means -

(a) the applicant, or

(b) a person -

(i) who was required to be notified of the prescribed application, and

(ii) who made a submission to the Authority or the Secretary in respect of the prescribed application.

1. Clause 7 of the 2016 GLA Regulation, which commenced on 12 August 2016 and was repealed on 1 September 2024, dealt with administratively reviewable decisions, and stated:

For the purposes of section 13A of the Act, the following applications made on or after 1 March 2016 are prescribed -

(a) an application for the granting or removal under the Liquor Act 2007 of -

(i) a hotel licence, or

(ii) a club licence, or

(iii) an on-premises licence that relates to a public entertainment venue (other than a cinema or a theatre), or

(iv) a packaged liquor licence (other than a packaged liquor licence that is limited to the sale of liquor only by means of taking orders over the telephone, by facsimile or mail order, or through an internet site),

(b) an application for an ongoing extended trading authorisation in relation to a licence referred to in paragraph (a) that would result in trading after midnight,

(c) an application to vary or revoke a condition of a licence imposed by the Authority that would result in trading after midnight, in relation to a licence referred to in paragraph (a) (i)-(iii),

(d) an application to increase a gaming machine threshold under section 34 of the Gaming Machines Act 2001 that is required to be accompanied by a class 2 LIA under section 35 of that Act,

(e) an application specified in clause 6 in respect of which a delegation given by the Authority to a designated Public Service employee to exercise the Authority's decision-making function is in force.

1. Part 1 (cll 1-10) of the Gaming and Liquor Administration Regulation 2024 (NSW) (2024 GLA Regulation) contains preliminary provisions. Clause 2 states that the 2024 GLA Regulation commences on 1 September 2024. Clause 4 is in substantially identical terms to cl 7 of the 2016 GLA Regulation. Clause 10 deals with savings, and states:

An act, matter or thing that, immediately before the repeal of the Gaming and Liquor Administration Regulation 2016, had effect under that regulation continues to have effect under this regulation.

1. On 4 September 2023, the Club lodged several applications with the Authority, including for:

(1) approval to remove the Club's licence from the Club's existing premises in Shaftesbury Road Burwood to proposed new premises (the new premises) under s 59 of the Liquor Act (the licence removal application);

(2) an extended trading authorisation under s 49 of the Liquor Act;

(3) approval to transfer of gaming machine entitlements to the new premises under s 19(2) of the Gaming Machines Act 2001 (NSW) (GM Act).

1. On 9 April 2024, the Authority prepared a Recommendation Paper with respect to the Club's applications (the 9 April 2024 Recommendation) which recommended that the applications be approved and that if approved conditions in Annexure A be imposed under s 53 of the Liquor Act.
2. At a meeting on 19 June 2024, by resolution the Authority adopted the 9 April 2024 Recommendation (the 19 June 2024 Decision). The minutes of that meeting record:

6.1 Burwood RSL Club Burwood - club removal, extended trading authorisation, non-restricted area authorisation, club functions authorisation and gaming machine entitlement lease transfer

The Authority noted the size and significance to the local community of the club's new promises and considered the risk factors and mitigating factors as highlighted in the paper, particularly in relation to late night gaming. The Authority noted that the submission from the applicant in relation to the potential imposition of a late-night gaming condition did not provide strong data or evidence to back up the reasons why such a condition should not be imposed and agreed to impose a condition prohibiting gaming after 2am on harm minimisation grounds.

Resolution 24/161: The Authority resolved to:

1. approve the applications for:

a. Club licence removal for premises located at 2 George Street, Burwood NSW 2134

b. Gaming machine threshold increase of 294 (from 0 to 294) for the new premises

c. Gaming machine entitlement transfer of 294 to the new premises

2. approve the trading hours recommended be imposed on the licence listed in Annexure A to the Board Agenda Item 3.19 on 15 May 2024

3. approve the authorisations applied for:

a. Club functions authorisation

b. Non-restricted area authorisation

c. Extended trading authorisation

4. impose conditions on the licence as listed In Annexure A, but including a late-night gaming condition which prohibits the club from operating gaming machines after 2am."

1. On 18 July 2024, the Authority gave notice of the 19 June 2024 decision to the Club in the following terms:

"...

Licence number LIQC300226069

...

We first considered the applications at the meetings of 17 April 2024 and 15 May 2024 and, following consideration of further information, decided on 19 June 2024 to approve the applications above under section 59 of the Liquor Act 2007, sections 22 and 23 of the Registered Clubs Act 1976, and sections 19 and 34 of the Gaming Machines Act 2001 - with the conditions set out in Schedule 1.

...

Schedule 1: Licence conditions to be imposed - Burwood RSL Club

1. On 27 August 2024, the Authority requested the Tribunal to dismiss the ADR application.
2. On 4 April 2025, following a hearing the Tribunal (Principal Member, K Ransome) by the Dismissal Decision dismissed the application made by the Authority seeking that the Tribunal dismiss the ADR application.

1. On 2 May 2025, the Authority lodged a notice of appeal in which:

(1) in section 5A, it appeals against order 1 of the Dismissal Decision;

(2) in section 5B, it sets out:

(a) the following ground of appeal:

"The Tribunal erred in concluding (T [32], [371, [39]) that the Appellant's 19 June 2024 decision under s 53 of the Liquor Act 2007 (NSW) to impose a condition on the Respondent's club licence is a decision over which the Tribunal has administrative review jurisdiction under s 30 of the Civil and Administrative Tribunal Act 2013 (NSW), s 55 of the Administrative Decisions Review Act 1997 (NSW) and s 13A of Gaming and Liquor Administration Act 2007 (NSW)."

(b) the following question of law raised by the appeal:

"Does the Tribunal have administrative review jurisdiction under s 30 of the Civil and Administrative Tribunal Act, s 55 of the Administrative Decisions Review Act and s 13A of the Administration Act over the Appellant's 19 June 2024 decision under s 53 of the Liquor Act to impose a condition on the Respondent's club licence?"

(3) in section 5C, its sets out the orders which it contends the Appeal Panel should make:

"1. Leave be granted to the Authority to appeal, to the extent that leave is required having regard to Commissioner of Police, NSW Police Force v FYH [2024] NSWCATAP 176 at [19]- [25].

2. The appeal be allowed.

3. Order 1 made on 4 April 2025 be set aside and substituted with an order that:

"The application for administrative review of the decision of the Independent Liquor and Gaming Authority notified on 19 July 2024 to impose a condition that gaming machines are to cease operation by 2:00 am under s 53 of the Liquor Act 2007 (NSW) on the club licence held by the Burwood RSL Club Ltd is dismissed."

(4) in section 6B, it states that it is not asking for leave to appeal unless order 1 of the Dismissal Decision is an interlocutory decision.

1. On 12 May 2025, the Club lodged its reply to appeal, in which it supports the 4 April 2025 reasons and contends that leave to appeal against order 1 of the Dismissal Decision is not required.

1. Section 80(1) of the NCAT Act allows a party to proceedings in which the Tribunal makes an internally appealable decision, to appeal the decision to an Appeal Panel. An administrative review decision is an internally appealable decision: NCAT Act, s 32(1)(a) and (4). The decision of the Tribunal was an administrative review decision under s 30(5) of the NCAT Act and is therefore appealable to an Appeal Panel.
2. Internal appeals against an internally appealable decision may be made in the case of any kind of decision (including an ancillary decision) other than an interlocutory decision as of right on a question of law, or with the leave of the Appeal Panel, on any other grounds: NCAT Act, s 80(2)(b).
3. The Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including but not limited to any one or more of orders that the appeal is to be allowed or dismissed, and the decision under appeal is to be set aside and for another decision to be substituted for it: NCAT Act, s 81(1)(a) and (d).

1. The Dismissal Decision is an ancillary decision within par (a) of the definition of that expression in s 4(1) of the NCAT Act. The Authority may appeal that decision as of right on a question of law: NCAT Act, s 80(2)(b).
2. The Authority asserts that the appeal raises the following question of law:

"Does the Tribunal have administrative review jurisdiction under s 30 of the Civil and Administrative Tribunal Act, s 55 of the Administrative Decisions Review Act and s 13A of the Administration Act over the Appellant's 19 June 2024 decision under s 53 of the Liquor Act to impose a condition on the Respondent's club licence?"

1. The New South Wales Court of Appeal (Leeming and White JJA) in Wilson v Chan & Naylor Parramatta Pty Ltd atf Chan & Naylor Parramatta Trust [2020] NSWCA 62 (Wilson v Chan) granted leave to appeal under s 83(1) of the NCAT Act on the question of law as to the power of the Tribunal in proceedings arising under a federal statute and at [4] said: "It is a pure question of law, which does not turn on evidence".
2. We consider that the approach in Wilson v Chan with respect to the identification of a question of law under s 83(1) of the NCAT Act applies equally to the identification of a question of law under s 80(2)(b) of the NCAT Act. We are satisfied that the question specified in the Notice of Appeal is a pure question of law, which does not turn on evidence and so is a question of law within s 80(2)(b) of the NCAT Act. It follows that the appeal of the Authority is as of right.

Did the Tribunal err in finding it had administrative review jurisdiction over the impugned condition?

1. Before considering this question, we have summarised the submissions of the parties.

1. The Authority by way of introduction submits that the 19 June 2024 Decision comprised several decisions including the decision approving the licence removal application under s 59 of the Liquor Act and the decision on the Authority's own initiative imposing conditions on the Club licence under s 53(1)(b) of the Liquor Act (which is referred to as the Condition Decision). The Tribunal is not vested with administrative review jurisdiction over the Condition Decision which is not within the meaning of s 13A(1) of the GLA Act a "decision of the Authority in relation to an application made under a provision of the gaming and liquor legislation" prescribed by the regulations made for the purposes of that provision. Properly construed, s 13A(1) operates to vest the Tribunal with administrative review jurisdiction only over prescribed applications specified in cl 7 of the 2016 GLA Regulation. The Condition Decision was not a decision with respect to such a prescribed application. The Tribunal is not vested by s 13A(1) with administrative review jurisdiction over the Condition Decision simply because it was made at the same time as or coincidentally with the Authority's decision to approve the licence removal application which is a prescribed application under cl 7(a)(ii) of the 2016 GLA Regulation.
2. The Authority has referred to several authorities in various statutory contexts which have considered the degree of connection that must be shown between the two subject matters joined by the expression "in relation to". The two principal authorities are R v Ross-Jones; Ex parte Green (1984) 156 CLR 185; [1984] HCA 82 (Ex parte Green) and O'Grady v Northern Queensland Co Ltd (1990) 169 CLR 356; [1990] HCA 16 (O'Grady).
3. In Ex parte Green, the High Court considered the definition of "matrimonial cause" in s 4(1) of the Family Law Act 1975 (Cth) in deciding whether an application by a man to stay the enforcement by a third person of a judgment obtained against him in a State Supreme Court in proceedings that were not a matrimonial cause, or to set that judgment aside, were "any other proceedings... in relation to... proceedings" within par (f) , relevantly, "between the parties to a marriage with respect to the property of the parties to the marriage" within par (ca). Gibbs CJ held at 196-197 "to come within par (f) the proceedings in question must bear an appropriate relationship to other proceedings of the kind referred to", such as where "the order sought in the later proceedings would reverse or vary the effect of the order made in the former"; "it is not enough that what is done in one of the proceedings would indirectly affect the practical outcome of the other proceedings". Wilson and Dawson JJ at 210 held that the proceedings in question must have a "necessary relation to" the other proceedings, with a mere "coincidental" relationship being insufficient.
4. In O'Grady, the High Court considered s 80(1) of the Mining Act 1968 (Qld) which conferred on a Wardens Court exclusive jurisdiction in all actions "arising in relation to mining or to any mining tenement". The question was whether a counterclaim in proceedings in the Supreme Court of Queensland was an action "arising in relation to mining" within the opening sentence of s 80(1) or "with respect to any matter arising between miners in relation to mining" within par (g). Dawson J held at 367:

"The crucial question is whether the proceedings constituted by the respondent's counterclaim were proceedings in relation to mining or to any mining tenement. The words "in relation to", read out of context, are wide enough to cover every conceivable connexion. But those words should not be read out of context, which in this case is provided by the Mining Act 1968 (Q). What is required is a relevant relationship, having regard to the scope of the Act. Where jurisdiction is dependent upon a relation with some matter or thing, something more than a coincidental or mere connexion - something in the nature of a relevant relationship - is necessary."

1. The Authority advances five reasons why a decision to be "in relation to" an application prescribed for the purposes of s 13A(1) of the GLA Act must be of that application. Put another way, the decision of which review is sought must have a legally "necessary relation to" the application made under a prescribed provision for five reasons:

(1) that interpretation is consistent with the function of s 13A(1) of the GLA Act in conferring administrative review jurisdiction. It would be anomalous for Parliament to have enabled administrative review of a decision simply because it happens, in the particular case, to have a factual or coincidental connection with the determination of an application under a prescribed provision. A mere factual or coincidental connection is not one that the Parliament can be taken to have considered "merited the legislative conferral of a right of ... review upon those aggrieved" which in a different context was the question posed in Griffith University v Tang (2005) 221 CLR 99; [2005] HCA 7 (Tang) at [79] (Gummow, Callinan and Heydon JJ);

(2) that interpretation coheres with s 13A(5) of the GLA Act, which defines the "relevant persons" who if aggrieved have standing under s 13A(1) "in relation to the prescribed application". Those "relevant persons" are (a) the applicant and (b) persons required to be notified and who made submissions on the application. The identification of the "relevant persons" underlines the focus on that which is applied for by the application made by the applicant under the prescribed provision. It also emphasises the significance within the scheme of the "gaming and liquor legislation" (which is defined in s 4) administered pursuant to the GLA Act of public consultation and submissions, which are to be facilitated and considered with respect to defined applications.

(3) that interpretation reflects the objects of the Gaming and Liquor Administration Amendment Bill 2015 (NSW) (2015 GLA Bill) which inserted s 13A into the GLA Act, and the extrinsic material thereto:

(a) the Overview of Bill in the Explanatory note relevantly stated:

"The objects of this Bill are as follows:

...

(d) to provide for the administrative review of certain decisions of the Authority by the Civil and Administrative Tribunal of New South Wales (NCAT),

..."

(b) in the Second Reading speech, the responsible Minister explained the review of decisions to be provided by the amendments which became s 13A and s 36A (Legislative Assembly, Hansard, 27 October 2015, 5328) (emphasis added):

"The bill provides for licensing decisions to be reviewed in certain circumstances. For decisions made by the Independent Liquor and Gaming Authority, a review will be available from the New South Wales Civil and Administrative Tribunal in relation to contentious liquor and gaming applications, such as the grant of a new hotel or packaged liquor licence. The types of applications determined by the Independent Liquor and Gaming Authority that can be reviewed by the New South Wales Civil and Administrative Tribunal will be prescribed by regulation prior to the commencement of the bill."

"The bill also enables delegated decisions made by Liquor and Gaming NSW to be reviewed by the Independent Liquor and Gaming Authority. This is to ensure that the exercise of the delegation continues to be done in a way that the Authority considers to be appropriate. The delegated decisions that can be reviewed by the authority will be limited to applications that will be prescribed by regulation and will include the grant or removal of a liquor licence."

(c) following debate, the Minister added (Legislative Assembly, Hansard, 27 October 2015, 5350):

"The bill enables certain licensing decisions to be subject to a merit review ... the decisions for which a merit review can be sought by NCAT will also be prescribed by regulation. NCAT will be able to review a decision made by the authority based on the material that was before the authority at the time its decision was made; in other words, a merits-based review."

(d) during Committee in the Legislative Council, when stating the Government's opposition to (unsuccessful) amendments intended to broaden the "relevant persons" specified in s 13A(5), the Parliamentary Secretary said (Legislative Council, Hansard, 11 November 2015, 5599) (emphasis added):

"Opposition amendment No. 7 proposes to extend to a far greater category of people the standing to appeal to the NSW Civil and Administrative Tribunal [NCAT]. It is not appropriate that standing be given to any person for a review of an Independent Liquor and Gaming Authority [ILGA] decision by NCAT. This will lead to longer delays in deciding applications. It is appropriate to limit the standing so that those who are directly affected, and who have engaged in the application process by making submissions, are able to seek a review."

(e) by equating the application with the decision ("in relation to contentious liquor and gaming applications, such as the grant of a new hotel or packaged liquor licence"; "applications that ... will include the grant or removal of a liquor licence"; "certain licensing decisions ... prescribed by regulation"), the Minister's and Parliamentary Secretary's speeches indicate ss 36A(1)(d) and 13A were intended to enable review of decisions to grant or to refuse the applications prescribed for the purpose of the relevant provision. Those are the "certain circumstances" in which review was enabled.

(4) that interpretation fits with and furthers the scheme of the gaming and liquor legislation, a scheme which must be interpreted harmoniously, as explained by the New South Wales Court of Appeal in Independent Liquor and Gaming Authority v Whitebull HTL Pty Ltd; Independent Liquor and Gaming Authority v Area Hotel UT Pty Ltd; Independent Liquor and Gaming Authority v The Griffith Hotel Pty Ltd [2023] NSWCA 224 (Whitebull) at [109], [113]-[114], [134]:

(a) on the one hand, s 45 of the Liquor Act governs the determination of an application for a licence or, in accordance with s 59(3), an application to remove a licence. Section 45(1) makes clear that the Authority's decision on an application to remove a licence to other premises is binary: to "grant the licence or refuse the licence". This is reinforced by s 44(2), which states that the Authority is to take any submission into consideration before deciding "whether or not to grant the licence". Section 44(2) itself forms part of the consultation process established by Div 1 of Pt 4, which requires public notice be given of and enables the giving of submissions regarding an application for a licence or its removal. That consultation process assumes that the Authority's decision is to grant or refuse that which has been its subject. Otherwise, the public's opportunity to comment would be undermined, the statutory importance of which is emphasised by the standing conferred by s 13A(5)(b) of the GLA Act on persons who exercise that opportunity;

(b) on the other hand, the exercise of the power under s 53(1) of the Liquor Act to impose conditions on a liquor licence is not linked to the exercise of the power under s 45(1) to grant or refuse an application for a licence or its removal. Rather the exercise of the power under s 53(1) "may be exercised at any time" on the Authority's own initiative or on application by the Secretary or Commissioner of Police, but, tellingly, not on application by the licensee. The New South Wales Court of Appeal in Whitebull at [127]-[128] said (Kirk JA with Meagher JA and Griffiths AJA agreeing):

"[127] ... The power in s 53 may be exercised at any time. As the Authority pointed out, if, say, a significant concern arose about the use of gaming machines in connection with liquor at a venue, at a time unconnected to any particular application being made by the licensee under the GM Act, then it would be surprising if the regulator could not act to address that concern. ...

[128] More broadly, if a concern arose about significant (and perhaps unforeseen) harm being caused by the use of gaming machines at a particular venue, even if not especially linked to alcohol consumption, it might be thought to be surprising that it could only be addressed if and when the licensee made some application under the GM Act."

(c) the same pattern appears in the GM Act, with the binary decision to grant or refuse a licence (or to grant or refuse an application to increase a gaming machine threshold under s 34) distinguished from any decision as to the conditions to be imposed on a licence so granted: see ss 88, 95A, 101, 102 (licence applications); s 104 (conditions).

(5) that interpretation is consonant with cl 7 of the 2016 GLA Regulation. Clause 7 is relevantly identical to the predecessor cl 5B of the Gaming and Liquor Administration Regulation 2008 (NSW) (2008 GLA Regulation). Clause 5B was introduced on 1 March 2016, at the same time that s 13A was inserted into the GLA Act. In those circumstances, the terms of cl 5B (and cl 7) can inform the nature of the scheme of gaming and liquor legislation and the place of s 13A within it: see Master Education Services Ply Ltd v Ketchell (2008) 236 CLR 101; [2008] HCA 38 (Master Education Services) at [19] (Gummow ACJ, Kirby, Hayne, Crennan and Kiefel JJ). Clause 7(c), like cl 5B(c) before it, indicates that it was not intended to vest the Tribunal with jurisdiction administratively to review the Authority's decision to impose any condition on a licence. Rather, the Authority was intended to be vested with jurisdiction administratively to review only decisions made in relation to applications under s 53(2) (but not decisions of the Authority's own initiative) to "vary or revoke conditions of a licence imposed by the Authority that would result in trading after midnight": see Kinsman v Independent Liquor & Gaming Authority [2023] NSWCATAD 335 (Kinsman) at [34]-[35] for the scope of such conditions. The deliberate limitation on the scope of cl 7(c) would be undermined if decisions to impose other types of conditions were the subject of administrative review.

42 Applying these five reasons, the Condition Decision was not "in relation to" the licence removal application. The Condition Decision was not a decision to refuse or to grant the Club's application under s 59 of the Liquor Act to remove its licence to new premises. It had no legally "necessary relation to" the application made under a prescribed provision. This is underlined by the distinction drawn in the statutory scheme between the determination of licence applications and the imposition of any conditions upon such licences. Within that scheme, "at any time" and irrespective of the licence removal application under s 59, the Authority was free, of its own initiative, to make the Condition Decision under s 53.

1. The Club submits that the effect of the construction of s 13A(1) of the GLA Act submitted by the Authority is to confer an administrative review jurisdiction in respect of an approval or a refusal of a removal application but (1) in the case of an approval, not the terms on which a removed licence is to operate, for example hours and/or conditions, or (2) in the case of a refusal, to approve the removal of the licence but not determine the conditions for its operation at the new premises. This is an inconvenient construction of s 13A(1), which is a consideration tending against it being the "proper" construction.
2. The Club submits that the first reason advanced by the Authority might be apposite to circumstances where it, as it can, apropos of no application to it, decide to impose a condition on an individual licence or a group of licences, but that is not the case. The late-night gaming condition was imposed (1) in the context of the licence removal application, and as part of the Authority's consideration of it, (2) in respect of the licence at the premises to which the Club proposed removal, but not at its current premises, and in and by the same resolution approving the licence removal application. The relationship of the late-night gaming condition to the licence removal application is not accurately described as merely factual or coincidental.
3. As to the second reason advanced by the Authority, the Club submits that the definition for the purposes of s 13A(1) of the GLA Act of "relevant person" in s 13A(5) does not suggest a narrow meaning. Whatever the proper interpretation of "... decision ...", the Club is by operation of s 13A(5) a "relevant person" for the purposes of s 13A(1). That definition does nothing to indicate a wide or narrow meaning of "decision in relation to".
4. As to the third reason advanced by the Authority, the Club submits that the extrinsic material relied upon does not compel the construction that the Tribunal does not have the jurisdiction or power to determine terms and conditions. The language of the speeches shifts, without emphasis, elaboration or explanation between the different subject matters of (1) "decisions in relation to" (in s 13A(1) of the GLA Act), and (2) "applications" (in cl 7 of the 2016 GLA Regulation), and does so at a time when the text of s 13A(1) was known but that of cl 7 was not. The speeches manifest no clear parliamentary intention or understanding that "in relation to" means "of". lf a specific, narrow administrative review jurisdiction had been intended, it is surprising that the words "in relation to", which are commonly understood as being indicative of an imprecise but extended relationship, were deployed rather than the specific, narrow and confining word "of".
5. As to the fourth reason advanced by the Authority, the Club submits that it is probably incorrect to characterise a decision to grant an application or approve a removal as "binary" and contends:

(1) approvals, like grants, are always on terms, for example hours and conditions, the content of which will nearly always be relevant to the decision to approve or grant;

(2) contrary to the Authority's submission that the exercise of the power under s 53(1) of the Liquor Act to impose conditions on a liquor licence is not linked to the exercise of the power under s 45(1) to grant or refuse an application for a licence or its removal, that s 53 allows the imposition of a condition any time indicates that a decision to impose a condition in relation to an application by a licensee for a grant or an approval, is one of the times contemplated by s 53 for the exercise of the power. Unsurprisingly, s 11(1)(a) of the Liquor Act recognises that the occasion of a grant (and thus an approval) may be the one of the times envisaged for an exercise of the power in s 53;

(3) the Authority's submission that in other gaming and liquor legislation there is a decision that is properly described as "binary" takes the issue nowhere. As the Authority acknowledges, the outcome of such an application may result in condition imposed under the Liquor Act;

(4) nothing in Whitebull suggests that a decision to exercise the power in s 53 of the Liquor Act to impose conditions on a licence as part of the process of considering whether or not to approve a removal will not be a decision "in relation to" that application.

1. As to the fifth reason advanced by the Authority, the Club submits that, while accepting that cl 7 of the 2016 GLA Regulation should be construed in the same way as cl 5B of the 2008 GLA Regulation, there are no decisions construing cl 5B. Kinsman was a decision that there had been no such application to the Authority "... to vary ... a condition ... that would result in a trading after midnight" within cll 7(b) and (c) of the 2016 GLA Regulation. Neither the Authority's submission nor the decision in Kinsman assist in the resolution of the issue.
2. The licence removal application was granted, on terms, but the Club was aggrieved thereby; the decision to grant remains reviewable under s 13A(1) of the GLA Act. On such a review the Tribunal under s 63(2) of the ADR Act "... may exercise all the functions conferred or imposed on the administrator who made the decision ...". Among the functions and powers relevant to deciding to approve a removal is the power of the Authority under s 53(1) of the _Liquor Ac_t to "... impose conditions on a licence." The Tribunal is required under s 63(1) of the ADR Act to consider whether the licence removal application, as approved, was the correct and preferable decision having regard to the material before it and whether, having regard to that material, application should be approved. The material before the Tribunal may be different from that before the Authority, or be assessed and evaluated by the Tribunal differently from the way it was assessed and evaluated by the Authority. On an application to review a refusal of an application, the power under s 53 of the Liquor Act is exercisable by the Tribunal.
3. On the Authority's construction of s 13A(1) of the GLA Act, the local consent authority (1) would be permitted to apply for review of the grant or approval to contend for refusal of the application, but (2) could not contend for the grant or approval of the application on terms or conditions different to those decided upon by the Authority. Such a construction is unlikely to quell contentious controversy which is one of the objects of s 13A(1).

1. The Authority has responded to six aspects of the Club's appeal submissions.
2. First, as to the Club's submission that the Authority's construction of s 13A of the GLA Act is an "inconvenient" one, why this construction results in inconvenience of a kind with which the Parliament might have been concerned is not explained. The Authority's construction does not lead to inconvenience. The Parliament's object was to render only a "certain", "limited" class of decisions reviewable on their merits as explained by the responsible Minister in the Second Reading speech in the Legislative Assembly for the 2015 GLA Bill.
3. Secondly, the Club's assertion that the definition in s 13A(5) of the GLA Act of the "relevant persons" who if aggrieved have standing under s 13A(1) informs matters is without explanation. The significance of the definition is the identification of those persons by reference to the application made by the applicant under a prescribed provision.
4. Thirdly, as to the Club's submission that the words "in relation to" are to be "understood as being indicative of an imprecise but extended relationship", this submission does not engage with the authorities relied upon by the Authority. Those authorities indicate that the "nature and breadth" of the requisite relationship turns on the text, context and purpose of the particular provision. In the context of provisions conferring jurisdiction, O'Grady, Ex parte Green and Tang show that a "relevant relationship", of a kind which the Parliament can be taken to have considered "merited the conferral of a right of review", is required. O'Grady and Ex parte Green further show that, in this context, a mere factual or coincidental relationship is ordinarily insufficient. Rather, adapted to s 13A of the GLA Act, the "relevant relationship" between a decision of which review is sought and an application made under a prescribed provision is that the decision bears a legally "necessary relation to" the application.
5. Fourthly, the Club's submission that it is probably incorrect to characterise a decision to grant an application or approve a removal as binary seeks to blunt the significance of the distinction drawn in the gaming and liquor legislation between the decision to grant or refuse an application for a licence or its removal, and any decision as to the conditions to be imposed on such a licence. The Club's submission ignores the statutory text: a decision under s 45(1) of the Liquor Act is to either "grant or refuse" an application for a licence or its removal; conditions may relevantly be imposed "at any time", "on the Authority's own initiative" (s 53(1)). While conditions may, in particular fact patterns, happen to be so imposed coincidentally with the grant or refusal of an application for a licence or removal, they do not, within the statutory scheme, bear a legally "necessary relation to" that application.
6. Fifthly, the Club accepts that cl 7 of the 2016 GLA Regulation and cl 5B of the 2008 GLA Regulation can inform the nature of the scheme of the gaming and liquor legislation and the place of s 13A of the GLA Act within it. But the Club's submissions do not then explain how the careful limitation of cl 7(c) and cl 5B(c) to a narrow and certain class of conditions imposed on a licence would not be undermined if decisions to impose other types of conditions were, by factual coincidence, capable of being the subject of administrative review.
7. Finally, the Club's submission in reliance on s 63(2) of the ADR Act begs the question. Read in the context of s 63(1), s 63(2) of the ADR Act empowers the Tribunal to exercise functions conferred on the Authority only for the purpose of determining an application for administrative review under the ADR Act of an administratively reviewable decision. But here there is no administratively reviewable decision. Insofar as the Club's submission seeks to identify the Authority's decision under s 45(1) to grant the Club's application under s 59 of the Liquor Act to remove its club licence to new premises as the relevant decision, it is not a "relevant person who is aggrieved by [that] decision" within the meaning of s 13A of the GLA Act. The grant of the licence removal application has not had any adverse effect upon the rights or interests of the Club. Unsurprisingly, the Club, does not seek to disturb that decision (as to which the only alternate outcome would be refusal). Rather, the Club is aggrieved by the Condition Decision under s 53(1) of the Liquor Act. But that decision is not one made "in relation to" an application under a prescribed provision within the meaning of s 13A of the GLA Act.

1. It is common ground between the parties that by virtue of cl 10 of the 2024 GLA Regulation the Principal Decision was to be made, and the decision on appeal, is to be made, on the basis that the 2016 GLA Regulation is operative.
2. We accept that the Tribunal did not have administrative review jurisdiction over the 19 June 2024 Decision so far as the imposition of the impugned condition on the Club licence substantially for the reasons set out in the Authority appeal submissions.
3. The 19 June 2024 Decision on its proper construction is not a single decision but comprises several decisions made under different statutory provisions, including the decision approving the licence removal application under s 59 of the Liquor Act and the decision on the Authority's own initiative imposing conditions on the Club's licence under s 53(1)(b) of the Liquor Act.
4. In accordance with the approach taken to the proper construction of the expression "in relation to" in the particular statutory contexts in O'Grady and Ex parte Green, the degree of connection that must be shown between the decision and the prescribed application in s 13A(1) of the GLA Act is that the decision bears a legally "necessary relation to" the application.
5. The decision to impose the impugned condition does not bear a legally "necessary relation to" the licence removal application. The Authority has power under s 53(1)(b) of the Liquor Act to impose conditions on a liquor licence at any time on its own initiative. The fact that the Authority imposed the impugned condition at the same time as it made the decision under s 45(1) of the Liquor Act to grant the licence removal application does not establish the existence of the requisite legally "necessary relation to" the licence removal application. There was only a coincidental connection between the two.
6. There is a clear distinction in the Liquor Act between the power under s 45 to determine an application for a licence, or under s 59(3) to determine an application to remove a licence, and the power under s 53(1) to impose conditions on a licence. The power to determine applications for a licence or for the removal of a licence is not linked to the power to impose conditions on a licence. The power of the Authority in relation to applications for a licence or for the removal of a licence is binary in the sense that it may grant or refuse the application. The power of the Authority to impose conditions is not a required part of the process of determining applications for a licence or for the removal of a licence, but may be exercised at any time on its own initiative.
7. The construction of s 13A(1) of the GLA Act advanced by the Club would lead to the anomalous situation where a relevant person within s 13A(5) could seek administrative review of a decision by the Authority to impose a condition at the same time as it determined an application for a licence or for the removal of a licence on the basis it came within cl 7(a) of 2016 GLA Regulation, but could not seek administrative review of a decision by the Authority to impose a condition at any other time unless it was in relation to an application to vary or revoke a condition of a licence imposed by the Authority that would result in trading after midnight within cl 7(c) of 2016 GLA Regulation. The same anomaly would apply under cl 4 of the 2024 GLA Regulation in respect of decisions made since 1 September 2024.
8. We do not consider that it is necessary to use extrinsic material to determine the meaning of s 13A(1) of the GLA Act pursuant to s 34(1) of the Interpretation Act 1987 (NSW). The meaning of this provision is clear when regard is paid to:

(1) the text of cl 7 of the 2016 GLA Regulation;

(2) the distinction in the Liquor Act between the powers under s 45 to determine an application for a licence and under s 59(3) to determine an application to remove a licence, and the power under s 53(1) to impose conditions on a licence; and

(3) the principles applicable to the construction of the expression "in relation to" in the context of the conferral of jurisdiction on a decision making body.

1. We do not consider that the identical terms of cl 7 of the 2016 GLA Regulation and cl 5B of the 2008 GLA Regulation inform the nature of the scheme of the gaming and liquor legislation and the place of s 13A of the GLA Act within it in accordance with the principles in Master Education Services at [19]. The absence of any judicial consideration of cl 5B, which may be taken to have been confirmed by the enactment of cl 7, is significant. Kinsman was decided after the enactment of cl 7.
2. The Club's submission that the Authority's construction of s 13A of the GLA Act is an "inconvenient" one assumes that s 13A(1) of the GLA Act on its proper construction should permit a relevant person to seek an administrative review of conditions imposed on a liquor licence. However, contrary to this submission, the scope of the review is confined to applications to the applications specified in cl 7 of 2016 GLA Regulation.

(1) The Appeal is allowed.

(2) Order 1 made on 4 April 2025 is set aside and the following order is substituted for it:

"The application for administrative review of the decision of the appellant notified on 19 July 2024 to impose a condition that gaming machines are to cease operation by 2:00 am under s 53 of the Liquor Act 2007 (NSW) on the club licence held by the respondent is dismissed."

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