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

Machines Amendment Bill 2008 New South Wales Legislative Assembly, 29 October 2008, Hansard Category: Principal judgment Parties: 2023/198867

Independent Liquor and Gaming Authority (Applicant) Whitebull HTL Pty Ltd (Respondent)

Independent Liquor and Gaming Authority (Applicant) Area Hotel Pty Ltd (Respondent)

Independent Liquor and Gaming Authority (Applicant) The Griffith Hotel Pty Ltd (First Respondent) North Rydge Pty Ltd (Second Respondent) Representation: Counsel: P Herzfeld SC with E Jones (Applicant) C Birch SC (Respondents)

Solicitors: Crown Solicitor's Office (Applicants) Hatzis Cusack Lawyers (Respondents) File Number(s): 2023/198867 2023/198861 2023/198869 Publication restriction: Nil Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Common Law Citation: Whitebull HTL Pty Ltd v Independent Liquor and Gaming Authority; Area Hotel UT Pty Ltd v Independent Liquor and Gaming Authority; The Griffith Hotel Pty Ltd v Independent Liquor and Gaming Authority [2023] NSWSC 588 Date of Decision: 05 June 2023 Before: McNaughton J File Number(s): 2021/356546 2021/356547 2022/250390

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] HEADNOTE [This headnote is not to be read as part of the judgment] The respondents in these three proceedings run hotels in New South Wales and have gaming machines entitlements (GMEs) to operate gaming machines (or "pokies") within their permitted gaming machine threshold (GMT) under the Gaming Machines Act 2001 (NSW) (GM Act). They variously sought approvals from the Independent Liquor and Gaming Authority for transfer or lease of GMEs, under ss 19 and 25 of the GM Act respectively, and for an increase in their GMT, under s 34(4) of the Act. The Authority had concerns relating to the social harm potentially caused by an increase in the number of gaming machines at the three venues in question. As regards the first and second matters, it approved what was sought but imposed conditions on the liquor licence of the relevant hotel directed to mitigating such harm, acting pursuant to s 53 of the Liquor Act 2007 (NSW). As regards the third matter, the Authority declined to approve what was sought, taking account of the refusal of the applicant hotel to accept such conditions. The respondent hotels brought proceedings in the Supreme Court challenging the decisions of the Authority. Two overlapping issues arose: (1) whether the Authority had discretion to take harm minimisation concerns into account when exercising its powers under ss 19, 25 and 34 of the GM Act; (2) whether the Authority was empowered to impose the conditions it did on the liquor licences, pursuant to s 53 of the Liquor Act. The core contention of the respondents was that such discretion as is granted by the powers in question did not extend to considering harm minimisation matters relating to the use of gaming machines nor to imposing restrictions directed to achieving such, arguing that harm minimisation issues were exhaustively addressed in other provisions in Pt 4 of the GM Act. The primary judge accepted this contention. The Authority appealed. In the appeal an issue also arose as to the scope of the relief which had been sought by the respondents and granted by the primary judge. The Court (per Kirk JA, Meagher JA and Griffiths AJA agreeing) upheld the appeal: As to the relief granted by the primary judge

JUDGMENT

1. MEAGHER JA: I agree with Kirk JA.
2. KIRK JA: Both the provision to the public of gaming machines (or "pokies") and the sale of alcohol are subject to detailed legislative schemes in New South Wales. That is unsurprising given the harm that can result from the use of either. This appeal concerns whether certain powers of the State regulator, the Independent Liquor and Gaming Authority, can be employed to seek to minimise harm caused by the use of gaming machines in licensed venues.
3. There are three appeals before this Court arising from three proceedings heard together by McNaughton J in the Supreme Court. The cases involved applications made to the Authority by the respondents for certain approvals required under the Gaming Machines Act 2001 (NSW) (GM Act) relating to the operation of gaming machines. The Authority approved the first two applications but imposed conditions on the liquor licence held by the operators under the Liquor Act 2007 (NSW). It refused the third application.
4. Two legal issues arose: whether the Authority was empowered to impose such conditions on the liquor licences and whether the Authority had a discretion to refuse an application under the GM Act on a basis relating to concerns about harm minimisation. The primary judge held that the Authority was not so empowered and did not have such a discretion.
5. The Authority seeks leave to appeal in each of the three proceedings. It relies on evidence that it has imposed similar conditions to those at issue here on numerous other venues. The respondents sensibly conceded that an issue of principle arises and did not oppose a grant of leave to appeal.
6. The two issues overlap. The respondents rely on the same core proposition as regards both, namely that gambling harm minimisation measures may only be considered and addressed by the Authority pursuant to the local impact assessment (LIA) process addressed in Pt 4 Div 1 of the GM Act. That proposition cannot be accepted when account is taken of the provisions of that Act along with those of the Liquor Act. The Authority is permitted to consider harm minimisation issues when considering whether to approve transfers or leases of gaming machine entitlements (GMEs) or to approve increases in the gaming machine threshold (GMT) of a venue. Such issues may also be considered when deciding whether to impose a condition on a liquor licence. The appeals should thus be upheld.

The Whitebull Hotel

1. The respondent in the first proceeding, Whitebull HTL Pty Ltd, operates the Whitebull Hotel in Armidale. In June 2021 it sought approval from the Authority under s 34 of the GM Act to increase its GMT for the Hotel from 17 to 25 machines. The Hotel was in a Band 2 local statistical area (LSA) and it lodged a class 1 local impact assessment (LIA) - concepts addressed in Pt 4 Div 1 of the GM Act, as explained below.
2. There were interactions between the Authority and Whitebull, in the course of which officers of the Authority raised various proposed conditions on the liquor licence and sought an indication whether the applicant consented to the conditions and, if not, providing reasons. Whitebull indicated its consent to some of the proposed conditions, including that it make a financial contribution of $322,743.40 to the Responsible Gambling Fund (by instalments over five years). But it did not consent to two of the proposals.
3. In March 2022 the Authority decided to approve Whitebull's LIA pursuant to s 36 of the GM Act, and at the same time approved the application to increase Whitebull's GMT under s 34. It simultaneously decided to impose conditions on Whitebull's liquor licence pursuant to s 53 of the Liquor Act. Some of those were conditions that the company had consented to. But it also imposed a condition (which came to be labelled Condition 6030) that was a variant of a condition to which Whitebull had not consented. The condition required Whitebull to ensure that there was a dedicated staff member on duty as a "Responsible Gambling Officer" to monitor the gaming machines and gaming machine players from midnight to whenever the machines are operating. The officer's primary duties were to include maintaining a gambling incident register, making reasonable efforts to identify players who display problematic gambling behaviour, interacting with any such players to request that they take a break for that day, and providing information to them about the self-exclusion scheme and problem gambling counselling.
4. The Authority provided a statement of reasons, which noted that four of the six identified gambling risk indicators arose for the relevant local government area. After referring to other aspects of the area, the statement recorded a conclusion that "there is a risk that the increased gaming at the Premises would exacerbate the existing gambling-related problems in the community and, over time, contribute to an increase in health and other social and amenity issues in the community". However, it concluded that the risks identified were sufficiently mitigated by various factors, including the Authority's ability "to impose the conditions …, in particular, requiring the Responsible Gambling Officer to be present at the venue from midnight whenever gaming machines are operated". The statement noted that the condition as to that officer "is commonly imposed on hotels with gaming machines".

The Area Hotel

1. The respondent in the second proceeding, Area Hotel UT Pty Ltd, operates the Area Hotel in Griffith. On 6 April 2021 it sought an increase in its GMT from 23 to 30 machines. Consistently with that application, it also sought approval, pursuant to s 25 of the GM Act, to lease seven additional gaming machine entitlements (GMEs) from the Griffith Hotel Motel, owned by a related company. A local impact assessment was not required because the hotel from which the GMEs were proposed to be transferred were in the same LSA as the applicant hotel: GM Act, s 35(2)(b).
2. On 16 June 2021 the Authority invited the Area Hotel to provide a Gaming Plan of Management and communicated that, were the application to be approved, the Authority may make it a condition that the Gaming Plan was complied with. On 5 August 2021 Area Hotel assented to that condition and provided a Gaming Plan.
3. On 27 October 2021 the Authority approved the increase in the Area Hotel's gaming machine threshold and approved the lease of GMEs by the Hotel. The authority also imposed conditions under s 53(1) of the Liquor Act. One of those conditions was similar to the challenged condition imposed on Whitebull relating to a responsible gambling officer, save that in this case the officer was required to be present whenever the gaming machines were operating. The Authority this time spelt out in a separate condition what was implicit in the conditions on Whitebull, namely that the licensee keep and maintain a gambling incident register, the nature of which was described. These two conditions came to be labelled 3030 and 3040.
4. In its reasons the Authority accepted that an LIA was not required for the application in light of s 35(2)(b) of the Act. It then said that it "did not, however, accept the Applicant's contention that, where an LIA is not required, the Authority has no discretion to consider the potential social impacts and risks of harm associated with approving the Applications". The conditions it imposed were based upon concerns about harm minimisation.
5. In December 2021 Area Hotel filed a summons in the Supreme Court challenging the validity of the two conditions.

The Gemini Hotel

1. The respondents in the third proceeding are The Griffith Hotel Pty Ltd and North Rydge Pty Ltd. The former operates the Griffith Hotel Motel in Griffith, and the latter operates the Gemini Hotel some 200 metres away. On 15 December 2021 they sought approval of a transfer of one GME from the former to the latter under s 19 of the GM Act, with correlative approval of an increase in the latter's GMT under s 34 of the Act (so as to go from 29 to 30).
2. After receiving the application, the Authority proposed that the Griffith Hotel and North Rydge accept (one way or another) the imposition of two conditions on its GMT, which were similar to those imposed on Area Hotel. This proposal was informed by the fact that the hotels are located in a Band 3 LSA (being the band of highest concern), the Gemini Hotel is licensed to trade past 2:00am on 6 days of the week and the Gemini Hotel "enjoys higher than average levels of gaming activity". The Authority stated that the Griffith Hotel's gaming harm minimisation measures "may not sufficiently mitigate potential risks flowing from these applications for a venue of your risk profile".
3. On 6 April 2022 the applicants stated that they did not accept these conditions. On 7 June 2022 the Authority indicated that it had deferred determination of the application, and invited the applicants to submit an enhanced Gaming Plan. Griffith Hotel indicated its unwillingness to accept the proposed conditions.
4. On 15 July 2022 the Authority determined to refuse the applications. In its reasons the Authority said that it "could not be satisfied that the submitted [Gaming Plan] would adequately mitigate the additional risks of gaming-related harms flowing the applicant's location in a Band 3 (high risk) area, its extensive trading during the higher risk post-midnight period and its elevated levels of gaming intensity". It said that on balance it did not consider the application to be consistent with the objects of the GM Act and did not consider that granting it was in the public interest. In August 2022 the two companies filed a summons disputing the decision.

The powers in issue and the respondents' core contention

1. The Authority thus exercised the following powers as regards the applicants in the three matters: 1. it imposed conditions on liquor licences held by the Whitebull and Area Hotels pursuant to s 53 of the Liquor Act; 2. it approved an increase in the GMT for the Whitebull and Area Hotels under s 34 of the GM Act; 3. it approved the lease of GMEs by the Area Hotel under s 25 of the GM Act; 4. it declined to approve transfer of a GME under s 19 of the GM Act, and declined to approve an increase in the GMT under s 34, for the Gemini Hotel.
2. In each instance its decisions were based upon concerns about potential community harm caused by the use of gaming machines, and the Authority was seeking to minimise the potential for such harm.
3. Whitebull was required to provide a class 1 LIA with its application, which it did. No LIA was required for either the Area Hotel or the Gemini Hotel as both applications fell within exemptions in s 35(2) of the Act.
4. The core contention of the respondents was and is that such discretion as is involved in the powers in question does not extend to considering harm minimisation matters nor to imposing restrictions directed to achieving such. In effect, the respondents' argument is that harm minimisation relating to gaming machines is an irrelevant, prohibited consideration for the powers granted to the Authority under ss 19, 25 and 34 of the GM Act and s 53 of the Liquor Act.
5. No challenge was directed per se to the fact that, as regards the Gemini Hotel, on one view the Authority's decision came about because the applicant did not consent to a condition. It is thus unnecessary to consider the legality of taking such an approach. However, it may be noted that it is one thing to ask if an application would be maintained if a particular type of condition were to be imposed. Beyond that, if a regulator has a power to impose conditions or take particular matters into account it is not immediately apparent why the consent of the applicant should be sought or, having been declined, should lead to an application being refused altogether.

The decision of the primary judge and the excessive relief granted

Her Honour's reasons

1. The primary judge identified the crucial question posed by all three summonses as whether the Authority "has a broad overriding discretion in relation to the regulation of gambling machine entitlements which is otherwise regulated by the regime set out in the [GM Act] or whether the purported exercise of its discretion in these matters was ultra vires or beyond its power": Whitebull HTL Pty Ltd v Independent Liquor and Gaming Authority [2023] NSWSC 588 at [1]. Her Honour decided that the Authority did not have such a discretion in the circumstances of these matters either within the Liquor Act or the GM Act itself.
2. Her Honour considered that the Authority's approach would mean that "the statutory regime set out under the GM Act could be set to nought" (at [154]) because an entity could fulfil all the statutory and regulatory requirements, but the Authority would nonetheless have the power to impose conditions on a licence or refuse an application entirely in the exercise of a wide overriding discretion.
3. Her Honour drew a distinction between the focus of the two Acts (at [155]): Although the GM Act and the Liquor Act are related, the statutes regulate different subject matter. The GM Act regulates entirely the keeping, transferring and leasing of gaming machines. The structure and the terms of the relevant legislation … make it clear that there is no overriding discretion in s 53 of the Liquor Act in relation to this subject matter and nor is there any residual discretion in ss 19 or 34 of the GM Act itself. To the extent that the Liquor Act contains provisions relating to gaming machines, they are in a very restricted context…
4. It was said that that the comprehensive provisions within the GM Act indicated that it was a "standalone" regime which was not modified by the Liquor Act (at [156]).
5. Her Honour also gave weight to extrinsic materials such as the explanatory note and the second reading speech to the Gaming Machines Amendment Bill 2008, which referred to providing "greater certainty for industry and to introduce some simplification in the administrative processes"; providing "clarification and machinery changes to allow the Act to operate more effectively and efficiently"; and confirming that when the GM Act came into force, "it introduced a new regulatory framework for the operation of gaming machines in New South Wales" (see at [81] and [159]).

The excessive relief sought and granted

1. Regardless of the substantive legal issues, some of the relief granted by her Honour should not have been sought or granted.
2. The third and fourth orders made in each of the first two cases were declarations about construction of the GM Act. To illustrate, those made in relation to the Area Hotel were as follows: (3) The Court declares that, in determining an application for the leasing of gaming machine entitlements pursuant to Part 3, Division 2A Gaming Machines Act 2001 (NSW), the relevant statutory considerations are exhaustively set out in that Division. (4) The Court declares that, in determining an application for leasing of gaming machine entitlements pursuant to Part 3, Division 2A Gaming Machines Act 2001 (NSW), questions of the possible or likely impacts on the local community are irrelevant.
3. It is highly unusual, and quite undesirable, to make such declarations in cases of this kind. It is possible that in some instances the only or appropriate way to crystallise the resolution of a dispute in a court order is to make a declaration about some issue of statutory construction. Such cases will be rare. In ordinary administrative law cases like these it is sufficient and appropriate merely to set aside the decision under challenge. That order captures the effect of the reasoning. To make a declaration of the kind made is unnecessary. Moreover it will generally be undesirable to do so. What is a court in a subsequent dispute about related matters to make of such broadly expressed declarations? They are liable to lack nuance. For example, here, the precise limits of the statement "the relevant statutory considerations are exhaustively set out in that Division" are unclear - is it only the express considerations, or can there be implied ones? Further, how does this declaration sit with the basal principle that provisions must be considered in the context of the whole statute? Such orders are liable to cut across some subsequent issue of construction which was not considered nor intended to be addressed in the earlier proceeding. There is also a risk that the words of the Court's declaration will tend to distract from the necessary focus in later disputes on the text, context and purpose of the statute itself.
4. In the third case, relating to the Gemini Hotel, the primary judge also made an order requiring the Authority to grant the applications. Such orders are very rarely made, as they involve the Court instructing an executive body as to how to exercise its statutory power. They can only be justified in circumstances where there is a clear statutory entitlement to such a result: see eg Plaintiff S297-2013 v Minister for Immigration and Border Protection (2015) 255 CLR 231; [2015] HCA 3 at [45]. In such cases the decision-maker has no relevant discretion at all. Yet, as became clear in the course of argument in this Court, the respondents in fact accept that the Authority did have some discretion under the powers in issue, just not extending to a decision relating to harm minimisation issues as addressed by Pt 4 of the GM Act. Senior counsel for the respondents thus conceded that this order was unjustifiable.

The GM Act

1. The scheme in this Act is complex. It is necessary to refer to it in some detail. The legislation is referred to as at the date of the relevant decisions.

The foundational prohibitions

1. The appropriate point to start in understanding the regulatory scheme is not in fact the GM Act but rather the Unlawful Gambling Act 1998 (NSW) (UG Act). It is that Act which contains the base prohibitions on which the GM Act scheme is then built. Specifically, s 15(1) of the UG Act provides that a person must not "possess a prohibited gaming device" or "permit the use or operation of a prohibited gaming device", which term is defined in s 6 of that Act in terms broad enough to encompass gaming machines. Similarly, s 12(1)(a) prohibits a person from acting to "organise or conduct, or assist in organising or conducting, an unlawful game", where that term is defined in s 5(1)(c) to include "any game involving the use or operation of a prohibited gaming device".
2. However, s 7(f) of the UG Act limits the effects of those prohibitions, stating that the Act does not prohibit "keeping or operating an approved gaming machine within the meaning of the [GM Act] in a hotel or on the premises of a registered club in accordance with that Act". Section 7 of the GM Act similarly provides that despite anything in the UG Act (or the Community Gaming Act 2018 (NSW)) it "is lawful" to "to keep or operate an approved gaming machine in a hotel or on the premises of a club", and to pay prizes and bonuses from such, so long as "the approved gaming machine is kept or operated, and the prizes and bonuses are paid or presented, in accordance with this Act".
3. It can be seen that gaming machines may only lawfully be operated under the GM Act in a "hotel" or "club" (separate provision is made for gaming machines in casinos under the Casino Control Act 1992 (NSW)). Those terms are defined in s 3(1) of the GM Act in ways which link to further definitions in the Liquor Act. The effect of all those definitions is that a "hotel" is a premises which is licensed under the Liquor Act, and a "club" is limited to a club that holds a club licence under the Liquor Act.

Three relevant levels of regulation under the GM Act

1. A notion at play here is "approved gaming machine", which means a specific machine, or a class of machines, declared by the Authority to be an approved gaming machine: ss 3(1) and 64. It is not necessary to examine that aspect of the regime here.
2. There are three interlinking levels of regulation of approved gaming machines under the GM Act that are relevant here. First, s 56, within Pt 5 of the Act, regulates the physical possession of gaming machines. Section 56(1) provides that a hotelier or club must not keep or dispose of an approved gaming machine unless doing so is authorised by the Authority, and the hotelier or club complies with any applicable requirements or conditions. Section 56(6) provides that authorisations under the section are subject: (a) to such conditions as may be imposed by the Authority in relation to the keeping or disposal of the approved gaming machines to which the authorisation relates, and (b) to such conditions as are specified in this Act or as may be prescribed by the regulations.
3. Importantly, under s 56(4) the total number of machines the Authority may authorise to be kept in a hotel corresponds to the number of GMEs "held in respect of the hotel licence", that is, the licence under the Liquor Act (the subsection also refers to "permits", which arose under a previous regulatory regime). Section 56(5) makes similar provision with respect to clubs.
4. Those provisions lead to the second and third levels of regulation, relating to GMEs, addressed in Pt 3 of the GM Act. The base provision here is s 14, which provides that the total number of GMEs "cannot exceed the overall State cap", and further that the number of GMEs held in respect of a hotel or club licence cannot exceed the threshold (the GMT) set for the premises. The requirement for GMEs is the second level of regulation and the GMT limit is the third.
5. GMEs arise as part of a cap-and-trade regime. There is an overall State limit on the number of GMEs (as to which see Pt 2). GMEs are "held in respect of a hotel licence or club licence from time to time" as specified in a certificate issued by the Authority: s 16(1). It is notable that the "certificate may be incorporated in the relevant hotel or club licence" (ibid). Both aspects of this sub-section manifest the link between gaming machine regulation and liquor licences. The language of GMEs being held "in respect of a hotel licence or club licence" is repeated in numerous sections in the GM Act. Indeed, the definition of GME in s 3(1) is "a gaming machine entitlement that is held in respect of a hotel licence or club licence under Part 3".

The process for approving increases in the GMT in Pt 4 Div 1

1. The gaming machine threshold scheme in Div 1 of Pt 4 was inserted into the GM Act by the Gaming Machines Amendment Act 2008 (NSW) (2008 Amendment Act). The scheme was considered by this Court in Tourist Accommodation Pty Ltd v Independent Liquor and Gaming Authority [2023] NSWCA 67, and more recently in Independent Liquor & Gaming Authority v 4 Boys (NSW) Pty Ltd [2023] NSWCA 210.
2. Section 34(4) permits the authority to approve the threshold application "only if" it is satisfied that the requirements of Pt 4 Div 1 of the GM Act and the Gaming Machines Regulation 2019 (NSW) (GM Regulation) have been complied with.

Local impact assessments

1. Part 4 Div 1 provides a threefold hierarchy for the levels of community consultation and information required for applications through the means of a local impact assessment. There are two classes of LIA, labelled "class 1" and "class 2". Although not expressed in the Act, it is implicit that a class 1 LIA need not be as comprehensive as a class 2 LIA, as was foreshadowed in the relevant second reading speech: note Tourist Accommodation at [21]. Section 35(6) states that the regulations may provide, amongst other things, for the information to be provided by an LIA, the matters to be assessed or addressed by an LIA, the advertising of an LIA, and the making of submissions in relation to an LIA.
2. Whether an LIA is required, and if so which class, depends upon two key variables. The first is the band of the local statistical area (LSA) in which the applicant establishment is located. There are three bands, labelled Band 1, 2 and 3, with bandings determined by the Authority: s 33. The criteria for doing so are not specified in the Act, but in the Minister's second reading speech for the bill which became the 2008 Amendment Act he said that "the bands take into account gaming machine density, the expenditure on gaming machines and relevant social data" (Minister for Gaming and Racing, Legislative Assembly, 29 October 2008, Hansard, 11712). Band 3 is the highest band, that is, the one determined to be of greatest concern as regards gaming machines.
3. The second variable is the extent of the GMT increase sought, with three categories respectively labelled "high-range", "mid-range" and "low-range", as further delineated in the regulation: s 35(5). Under cl 30 of the GM Regulation, an increase of more than 40 is deemed "high-range", an increase of 21 to 40 is deemed "mid-range" and an increase from 1 to 20 is deemed "low-range". These two variables lead to the following results.
4. A more comprehensive class 2 LIA is required, pursuant to s 35(4) of the GM Act, in the following cases where an increase in the GMT is sought for a venue (unless a statutory exception in s 35(2) applies): 1. a "high-range" increase in a Band 1 LSA; 2. a "mid-range" or "high-range" increase in a Band 2 LSA; or 3. any increase in a Band 3 LSA.
5. A less intensive class 1 LIA is required, pursuant to s 35(3), in the following cases where an increase in the GMT is sought for a venue (unless a statutory exception in s 35(2) applies): 1. a "low-range" increase in a Band 2 LSA; or 2. a "mid-range" increase in a Band 1 LSA.

Approval of an LIA

1. Pursuant to s 36(1), if an LIA is required then an application for a GMT increase "cannot be approved unless the Authority approves the LIA". The Authority may approve the LIA on conditions, and it is said that the LIA "has no effect if any such conditions are not complied with": s 36(7).
2. There is some complexity, if not oddity, in these provisions. It is not apparent why the Parliament imposed a necessity to approve an assessment document the provision of which is just one requirement for obtaining a statutory approval for an increase in the GMT. Further, given that it is just one requirement in a decision-making process it is notable that conditions might be placed on its approval which seem to have some potential ongoing significance. It is unnecessary to consider here quite what it means to say that the "LIA has no effect" if it had already done the work of having been used to inform the Authority's approval (or not) of a GMT increase.
3. These aspects would have been explicable if approval of an LIA was understood only to be a preliminary step prior to a consultation process taking place, such that the powers in question were directed to ensuring that consultation took place by reference to an appropriate document and in appropriate ways. But it is apparent from the scheme of the division that these provisions are not limited in that way. For example, s 36(6) - quoted below - provides that the Authority may partially approve an LIA, with a correlative effect on the size of any GMT increase, which implicitly contemplates that approval of an LIA is not just a step in the consultation process. So much is also implicit in s 36A, relating to making a "community benefit payment" as part of seeking to show a positive contribution towards, or an overall positive impact on, the local community.
4. Section 36 addresses approval of an LIA in the following terms: (3) The Authority may approve an LIA only if it is satisfied that - (a) the LIA complies with the requirements of this Division and the regulations in relation to the LIA, and (b) the LIA has demonstrated that gambling activities in the relevant venue will be conducted in a responsible manner, and (c) in the case of a class 1 LIA - (i) the proposed increase in the gaming machine threshold for the relevant venue will provide a positive contribution towards the local community where the venue is situated, and (ii) the relevant venue is not, if the venue is a new hotel or comprises new club premises, situated in the immediate vicinity of a school, hospital or place of public worship, and (iii) the LIA has adequately addressed any community concerns arising out of the consultation process under the regulations, and (d) in the case of a class 2 LIA - (i) the proposed increase in the gaming machine threshold for the relevant venue will have an overall positive impact on the local community where the venue is situated, and (ii) the relevant venue is not, if the venue is a new hotel or comprises new club premises, situated in the immediate vicinity of a school, hospital or place of public worship, and (iii) the LIA has adequately addressed any community concerns arising out of the consultation process under the regulations, and (e) it is otherwise appropriate that the LIA be approved. (4) The regulations may specify other grounds on which the Authority may refuse to approve an LIA. (5) If any submissions are made in relation to an LIA in accordance with the regulations, the Authority must take those submissions into consideration in deciding whether to approve the LIA. (6) The Authority may, in any case it considers appropriate, partly approve an LIA, in which case the Authority may increase the relevant venue's gaming machine threshold by a number that is less than the number to which the threshold increase application relates.

Other aspects of the GM Act invoked by the respondents

1. As part of their argument that the GM Act deals expressly and comprehensively with issues of harm minimisation, the respondents referred to the mechanism by which transfers of GMEs leads to a gradual decline in the number of gaming machines in the State, as discussed above at [47].
2. They also referred to the provisions in Pt 4 Div 2, which require that gaming machines generally be shut down for a six-hour period per day. They invoked the provisions in Pt 4 Div 3, heading "General harm minimisation measures", which regulates matters such as advertising, location of gaming machines in venues, and provision of promotional prizes and player reward schemes. Section 47 within that division enables regulations to be made restricting promotions, setting "standards to be observed for responsible conduct in relation to approve gaming machines", and such like.

The respondents' case

1. The respondents sought to support the conclusions of the primary judge. The main points made by the respondents were as follows. Part 4 of the GM Act contains detailed provisions regulating the operation of gaming machines. In particular, the careful provision made with respect to LIAs sets out the ways in which the Authority may consider harm minimisation issues, saying: Section 35 of the [GM Act] which provides exemptions from the requirements to obtain an LIA would lead any hotelier to conclude that if he or she fell within the provisions of that section they would not have to satisfy the more stringent requirements of having an LIA approved before they obtained a threshold increase. On the Authority's view, it would be open to it to impose conditions similarly onerous to those required under an LIA.
2. They submitted that "[t]his is a clear instance where the Anthony Hordern principle ought be applied" (referring to Anthony Hordern & Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia (1932) 47 CLR 1 at 7; [1932] HCA 9). That principle has been explained by Gummow and Hayne JJ as meaning that "the statute in question confers only one power to take the relevant action, necessitating the confinement of the generality of another apparently applicable power by reference to the restrictions in the former power": Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566; [2006] HCA 50 at [59].
3. As regards the imposition of conditions under s 53 of the Liquor Act, the respondents submitted that the Authority's "conduct has been to superimpose on the procedures set out in the [GM Act] a further layer of harm minimisation said to be permissible under the general condition making power in the Liquor Act".
4. It became apparent in the course of argument that the arguments directed to s 53 of the Liquor Act and ss 19, 25 and 34 of the GM Act were substantially the same. Both involve the proposition that harm minimisation concerns were expressly addressed by in Pt 4 of the GM Act, and in that context it was not open to the Authority to use powers other than ss 35-36 to impose conditions directed towards, or to otherwise take into account, harm minimisation concerns. As the Authority put it, the respondents asserted that the ability to address that issue had been abstracted from the general powers. The point can also be stated in terms of there being a negative implication from the provisions of the GM Act relied upon by the respondents to the effect that the issue cannot be addressed otherwise than as set out expressly in the Act.

The scope of the discretions in ss 19, 25 and 34 of the GM Act

Sections 19 and 25

1. Section 19(1)-(3) provide as follows with respect to transfers: (1) A gaming machine entitlement held in respect of a hotel licence or club licence is transferable. Note. Division 2A also provides for the leasing of gaming machine entitlements. (2) The transfer of a gaming machine entitlement does not have any effect unless the transfer - (a) is approved by the Authority, and (b) complies with the requirements of this Division and any requirements specified in the regulations. (3) An application for the Authority's approval of the transfer of a gaming machine entitlement must - (a) be accompanied by the fee (if any) prescribed by the regulations, and (b) be accompanied by such particulars or other matter as may be required by the Authority in relation to the proposed transfer, and (c) in the case of an application for the transfer of an entitlement held in respect of a hotel licence - demonstrate, to the satisfaction of the Authority, that the proposed transfer is supported by each person who, in the opinion of the Authority, has a financial interest in the hotel licence, and (d) be in the form and manner determined by the Authority from time to time.
2. Section 25, dealing with approval of leases, is structured in substantially the same manner. It is sufficient to focus on s 19.
3. The section does not expressly provide the Authority with a power to approve transfers. However, the section's presupposition of such a power also acted to confer it: note, analogously, Minister for Immigration and Ethnic Affairs v Mayer (1985) 157 CLR 290 at 301-302; [1985] HCA 70; Attorney-General (Cth) v Oates (1999) 198 CLR 162; [1999] HCA 35 at [16].
4. There are no express criteria conditioning the exercise of the power. The respondents suggested at times that the power was limited to checking that the application complied with the requirements of the Division - in particular those set out in s 19(3) - and of the regulations. That argument is contrary to the text and structure of the provision, which provides in sub (2) that the transfer does not have effect unless those requirements are complied with and the transfer is approved by the Authority. The need for regulatory approval is distinct from and additional to compliance with the more formal requirements. The respondents' argument is also undermined by the fact that s 19(3)(b) contemplates, and implicitly authorises, that the Authority may require provision of "particulars or other matter" specified by it. There is no express limit on subject matter in that regard. The provision implies that the Authority may take a broad range of matters into account.

Section 34

1. The parties, like the primary judge, assumed that the power to approve an increase in the GMT is found in s 34(4) of the GM Act, which provides as follows: The Authority may approve a threshold increase application only if the Authority is satisfied that the requirements of this Division and the regulations have been complied with in relation to the application.
2. In the course of argument in this Court there was discussion as to whether s 32(5) may be the relevant source of power. It provides that the GMT for a venue "may be increased or otherwise varied by the Authority in accordance with this Act". Section 34(4) does not expressly grant any power; it acts as a restriction by providing that any such power may only be exercised if the Authority has the specified satisfaction. It is open to construe this as presupposing and thus granting a power to approve an increase in the GMT, similarly to the presupposition in s 19 (see above at [74]). Yet it also appears open to construe s 32(5) as granting the power, albeit in conjunction with other provisions and thus "in accordance with this Act". This Court has now, recently held that s 32(5) is not itself a source of power and the relevant power is found in s 34(4), on the basis that the reference to "in accordance with this Act" suggest that any increase or variation may only occur in accordance with another provision of the Act: 4 Boys (NSW) Pty Ltd at [104]-[105] and [117]. That decision can be taken to resolve the issue. Little seems to turn on the point in any event.
3. The arguments of the respondents based upon the LIA provisions in ss 35-36 have somewhat more force as regards s 34 of the GM Act than they do with respect to ss 19 and 25. As indicated above, it is unusual to have a distinct approval process, with the possibility of setting conditions, on one aspect of decision-making, the purpose of which is to satisfy a requirement of another decision taken by the same decision-maker. For the Whitebull Hotel the decisions to approve its class 1 LIA (under s 36(1)) and to approve the increase in its GMT (under s 34(4)) were taken at the same time.
4. The force of the respondents' argument is captured by observing that no LIA was required for the Area and Gemini Hotels because they were exempt under s 35(2) of the Act, where there is no doubt that consideration of harm minimisation issues would have been a significant part of considering whether to approve an LIA if required. Yet liquor licence conditions were imposed on the former and the application of the latter was refused by reference to harm minimisation concerns.

The requirement for liquor licences

1. Section 7(1) of the Liquor Act provides that a person must not sell liquor unless the person is authorised to do so by a licence. Section 8 provides that a person must not use premises to sell liquor unless the premises are licensed "or are otherwise authorised under this Act to be used for the sale or supply of liquor".
2. Part 3 is entitled "Liquor licences". Section 10(1) provides for a number of types of licences which may be granted and held under the Act, including a "hotel licence" and a "club licence". Section 10(2) provides that a licence "authorises the licensee to sell or supply liquor in accordance with this Act and the conditions of the licence". Section 10(3) states that "[t]he authorisation conferred by a licence is subject to this Act and the regulations".

The power to impose licence conditions under s 53

1. The impugned conditions were imposed on the liquor licences for the Whitebull and Area Hotels pursuant to s 53 of the Liquor Act. That section relevantly provides as follows: 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. (1A) The conditions that may be imposed by the Authority on a licence under this section include, but are not limited to, conditions - (a) prohibiting the sale or supply of liquor on the licensed premises before 10 am or after 11 pm (or both), and (b) restricting the trading hours of, and public access to, the licensed premises. (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.
2. Here, as explained above, the impugned conditions imposed by the Authority related to employment of a "responsible gambling officer" at both venues, and an express condition for the Area Hotel that it maintain a gambling incident register. The imposition of those conditions was founded on concerns held by the Authority as to harm minimisation relating to increased use of gaming machines at the venues. The conditions were not expressly linked in any particular way to the consumption of alcohol.
3. The gravamen of the respondents' argument with respect to s 53 of this Act is much the same as it was in relation to the powers under the GM Act, focusing on the express provision made in that Act for consideration of harm minimisation issues. The primary judge said that "[t]o provide an overarching discretion in s 53 of the Liquor Act, which could have the effect of totally undermining the legislative scheme of the GM Act, cannot be what Parliament intended" (at [160]). There is a further dimension to the argument here. The primary judge considered that the GM Act established a "standalone regime", quite separate to regulation under the Liquor Act (at [156]). Her Honour was particularly influenced in this regard by the fact that liquor licensing and gaming machine regulation had previously been addressed in one piece of legislation until the enactment of the GM Act in 2001.

Links between the Liquor Act and the GM Act

1. As explained above at [40], the only venues permitted under the GM Act to operate gaming machines are hotels and clubs licensed under the Liquor Act. As noted at [45], numerous provisions in that Act indicate that GMEs are held "in respect of a hotel licence or club licence". Further, under s 16(1) of the GM Act the Authority's certification of the number of GMEs held in respect of a liquor licence may be incorporated in the licence itself. That is not a promising start for the argument that the GM Act stands alone from the Liquor Act.
2. As is implicit in these provisions, the Authority is the relevant regulator under both the GM Act and the Liquor Act, subject only to the potential for regulations made under the GM Act to provide that a function of the Authority under that Act may be exercised by some other person (s 67(1)). The joint roles of the Authority are also manifest in a note to s 1 of each of the Acts, expressed in identical terms: This Act is part of the gaming and liquor legislation for the purposes of the Gaming and Liquor Administration Act 2007. That Act contains administrative and other relevant provisions that apply in relation to this Act (including investigation and enforcement powers and provisions relating to the probity of officials).
3. The Gaming and Liquor Administration Act 2007 (NSW) addresses the establishment, functions and powers of the Authority, amongst other things.
4. Section 59(1) of the GM Act provides that the Authority cannot authorise a hotel to keep gaming machines (under s 56) unless it "is of the opinion that the hotel primary purpose test (as referred to in section 15 of the Liquor Act 2007) in respect of the hotel is satisfied". Section 59(3) provides that it "is a condition of a hotelier's authorisation to keep approved gaming machines that the hotelier complies with the primary purpose test in respect of the hotel". The primary purpose test is addressed in s 15 of the Liquor Act: (1) The following provisions apply in relation to a hotel licence (the hotel primary purpose test) - (a) except as provided by section 15A, the primary purpose of the business carried out on the licensed premises must at all times be the sale of liquor by retail, (b) the keeping or operation of gaming machines (as authorised under the Gaming Machines Act 2001) on the licensed premises must not detract unduly from the character of the hotel or from the enjoyment of persons using the hotel otherwise than for the purposes of gambling. (2) The authorisation conferred by a hotel licence does not apply unless the hotel primary purpose test is complied with in relation to the licensed premises. (3) Any premises (other than the actual hotel) that are authorised by the Authority for the sale of liquor under a hotel licence are, for the purposes of this Act, taken to be part of the licensed premises to which the licence relates.

Orders

1. The Court should make orders as follows in each of the three proceedings: 1. Grant leave to appeal. 2. The appellant is to file a notice of appeal in accordance with its draft notice of appeal within 7 days. 3. Uphold the appeal with costs. 4. Set aside the orders dated 5 June 2023 and in lieu thereof order that the summons be dismissed with costs.
2. GRIFFITHS AJA: I agree with Kirk JA.

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