Independent Liquor & Gaming Authority v 4 Boys

The Gaming Machines Act 2001 (NSW)

1. The Act regulates the use of gaming machines in hotels, clubs and other venues. Section 3 specifies various objects of the Act, some of which are in competition with each other. They include the "minimis[ation] [of] harm associated with the misuse and abuse of gambling activities" (s 3(1)(a)) and the "facilitat[ion] [of] the balanced development, in the public interest, of the gaming industry" (s 3(1)(c)).
2. At the heart of the regulatory scheme created by the Act are the statutory concepts "approved gaming machine", "gaming machine entitlement" (ie "GMEs") and "gaming machine threshold".

Part 5: Approved Gaming Machines

1. Within Pt 5 of the Act, s 56(1) confers on the Authority the power to declare a particular device an "approved gaming machine" for the purposes of the Act. Also within Pt 5, s 56(1) prohibits a hotelier or club from keeping or disposing of an approved gaming machine unless the keeping or disposing is authorised by the Authority and the hotel or club complies with the conditions of the authorisation and such other related requirements of or under the Act.
2. Subsections 56(2)−(4) relevantly provide: 56 Requirement for authorisation to keep or dispose of gaming machines … (2) The Authority may, by instrument in writing, authorise a hotelier or club to keep or dispose of approved gaming machines. An authorisation to keep approved gaming machines may be varied by the Authority from time to time. (3) An authorisation to keep approved gaming machines is an authorisation that relates to the total number of approved gaming machines kept in the hotel or on the premises of the club concerned at any one time as well as to the keeping of a particular approved gaming machine. (4) The total number of approved gaming machines that the Authority may authorise to be kept in a hotel from time to time consists of the following - (a) the number of approved gaming machines that corresponds to the number of gaming machine entitlements held in respect of the hotel licence, (b) the number of approved gaming machines that corresponds to the number of permits (as referred to in Part 3) held in respect of the hotel licence.
3. Subsection 56(4) provides for a correspondence between the number of approved gaming machines authorised to be kept at a hotel and the number of GMEs held by the hotel (and "permits" to keep, use and operate gaming machines in force under former s 182C of the Liquor Act 1982 (NSW) before its repeal). Subsection 14(3) provides that "[t]he number of gaming machine entitlements and permits held in respect of a hotel licence cannot exceed the gaming machine threshold for the hotel." Subsection 14(2) makes similar provision in respect of a club licence.

Parts 2 and 3: Caps and Transfers of GMEs

1. Part 2 of the Act includes s 10, which specifies that the maximum number of GMEs for the State of New South Wales is 99,000. Section 11 specifies that "[t]he maximum number of gaming machines that the Authority may authorise under Pt 5 to be kept in any one hotel is 30."
2. Part 3 of the Act deals with GMEs and permits. Division 2 of Pt 3 provides for the transfer of GMEs held in respect of a hotel licence or club licence (being licences granted under the Liquor Act 2007 (NSW)). Section 19 declares that GMEs are transferable (19(1)). Subsection 19(2) of the Act provides: "(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. Sections 20−23 deal with the circumstances in which GMEs may be transferred and the consequences of such a transfer. Thus, s 20 provides that GMEs held in respect of a hotel licence may only be transferred to another hotel licence (s 20(1)) and the same applies for club licences (s 20(2)). Further, under s 20, a transfer of GMEs can only be effected in one or more blocks of two or three, with one GME forfeited to the Authority in respect of each such block (s 20(3)) (the "transfer block and forfeiture requirements").
4. Subsections 20(7) and (8) provide: "(7) If the Authority approves the transfer of gaming machine entitlements, the Authority is to decrease, by the number of entitlements transferred, the gaming machine threshold for the hotel or the premises of the club from which the entitlements are transferred. (8) To avoid doubt, the amount by which the gaming machine threshold for the hotel or club premises concerned is to be decreased is to include the number of entitlements that are required to be forfeited under this section because of the transfer." (emphasis added)
5. Section 20A provides for an exception to the transfer block and forfeiture requirements for transfers of country hotel GMEs: 20A Exceptions for transfers of country hotel gaming machine entitlements (1) A gaming machine entitlement held by a country hotel (the transferring hotel) may be transferred as authorised by this section despite the transfer block and forfeiture requirements of section 20 (3), and those requirements do not apply to a transfer authorised by this section. (2) The transfer of one gaming machine entitlement in any period of 12 months is authorised by this section if - (a) the transfer is to another hotel licence that is held in relation to a country hotel, and (b) the gaming machine threshold for the transferring hotel is not more than 8. (3) The transfer of up to 6 gaming machine entitlements at the one time is authorised by this section if - (a) the gaming machine threshold for the transferring hotel is not more than 6, and (b) the transfers of those gaming machine entitlements are all completed at the same time (whether or not pursuant to separate transactions), and (c) the transfers of those gaming machine entitlements will result in the number of gaming machine entitlements held by the transferring hotel being reduced to zero. (4) The transfer block and forfeiture requirements of section 20 (3) continue to apply in respect of any subsequent transfer of gaming machine entitlements of the transferring hotel in any period of 12 months in which the transferring hotel transfers one gaming machine entitlement as authorised by this section. (5) When a transfer of 2 or more gaming machine entitlements at the same time as authorised by this section reduces the number of gaming machine entitlements held by the transferring hotel to zero, the transferring hotel is not permitted to acquire any gaming machine entitlements for 24 months after the transfer. (bold italics in original; italicised emphasis added)
6. Section 20A refers to the transfer of the entitlements being "authorised by this section" without any reference to the Authority granting or withholding any approval to the transfer. This reference to the transfer being "authorised" has the consequence that it "complies with the requirements" of Div 2 of Pt 3 for the purposes of s 19(2)(b) of the Act. To be effective, such a transfer must also be "approved" under s 19(2)(a) of the Act, although if s 20A is complied with there appears to be little scope, if any, to refuse approval under s 19(2)(a). It was not in dispute that once transfers are authorised under s 20A and approved under s 19(2)(a), then the obligation to reduce the gaming machine threshold of the transferor hotel imposed by s 20(7) is engaged.
7. Division 2A of Pt 3 deals with the leasing of GMEs. Within this Division, s 25B(2) provides that, at the end of the lease of the GME, "the gaming machine threshold for the lessee venue is reduced by the number of entitlements leased" unless there was an outstanding threshold increase.
8. Division 3 of Pt 3 deals with the transfer of "permits" (ie "permits" to keep, use and operate gaming machines in force under former s 182C of the Liquor Act 1982 (NSW) before its repeal). Section 27 provides that, if any permits held in respect of a hotel licence are transferred to another licence, then the "Authority is to decrease, by the number of permits transferred, the gaming machine threshold for the hotel from which the permits are transferred".

Part 4 Division 1: Gaming Machine Threshold

1. Part 4 of the Act is entitled "Gambling harm minimisation measures". Division 1 of Pt 4 establishes a gaming machine threshold scheme. Within Div 1 of Pt 4, s 32 relevantly provides: 32 Gaming machine thresholds for venues (1) The Authority may, for each hotel and each set of club premises, set the maximum number of approved gaming machines that may be authorised under Part 5 to be kept in the hotel or on those premises. (2) Any such maximum number is the gaming machine threshold for the hotel or club premises concerned. (3) The gaming machine threshold for a hotel is subject to section 11. (4) In the case of a new hotel or new club premises, the gaming machine threshold for the hotel or club premises may be set at zero. (5) The gaming machine threshold for a hotel or the premises of a club may be increased or otherwise varied by the Authority in accordance with this Act. (6) … (bold italics in original; italicised emphasis added)
2. The reference to setting the maximum number that may be "authorised under Part 5" relates to the exercise of the power conferred by s 56(2) noted above (at [13]).
3. Section 34 deals with applications to increase the gaming machine threshold. It relevantly provides: 34 Application to increase gaming machine threshold (1) A hotelier or club may apply to the Authority to increase the gaming machine threshold for the hotel or the premises of the club (a threshold increase application). (2) The hotel or club premises to which a threshold increase application relates is referred to in this Division as the relevant venue. (3) A threshold increase application must comply with the requirements of this Division and the regulations. (4) 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. (4A) The Authority must determine a threshold increase application within the time required by the regulations. (5) If the application is approved, the Authority may increase the gaming machine threshold for the relevant venue in accordance with the Authority's approval. (6) Nothing in this Division requires the Authority, if it approves a threshold increase application, to increase the relevant venue's gaming machine threshold by the number to which the application relates. (7) …. (bold italics in original)
4. Section 35 addresses the requirements relating to threshold increase applications. In certain circumstances, such an application must be accompanied by either a "class 1 LIA" [ie Local Impact Assessment] or a "class 2 LIA" (s 35(1)). In this case, the relevant application was accompanied by a class 1 LIA. The requirements of an LIA are specified in the Gaming Machines Regulation 2019 (NSW) (cll 33−34 ). Subsection 36(1) of the Act provides that, if an LIA is to be provided with a threshold increase application, then the increase cannot be approved unless the Authority approves the LIA. To be approved, the LIA must comply with the Division and the regulations in relation to the LIA (s 36(3)(a)) and demonstrate, inter alia, that gambling activities in the relevant venue will be conducted in a responsible manner (s 36(3)(b)). In the case of a class 1 LIA, it must also be demonstrated that, amongst other things, 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" (s 36(3)(c)(i)).
5. Subsection 36(7) provides that the "approval of an LIA is subject to such conditions as may be specified by the Authority" and the "LIA has no effect if any such conditions are not complied with".
6. Section 36A provides: 36A Community benefit requirement - payment of money to Responsible Gambling Fund (1) A community benefit requirement cannot be wholly or partly satisfied by a payment of money except a payment to the Secretary under the Casino Control Act 1992 for payment into the Responsible Gambling Fund as a community benefit payment under this Act. (note omitted) (2) A community benefit payment by a venue is to be taken into account by the Authority in the determination of a threshold increase application as if it were a contribution to the local community where the venue is situated. (3) In this section, community benefit requirement means a requirement under section 36 that a proposed increase in the gaming machine threshold for a venue will - (a) provide a positive contribution towards the local community where the venue is situated, or (b) have an overall positive impact on the local community where the venue is situated. (bold italics in original)
7. These provisions contemplate that a feature of an LIA may be the payment of money into the Responsible Gambling Fund, with the payment to be considered in any assessment of whether the proposed increase in the gaming machine threshold will, in the case of a class 1 LIA, "provide a positive contribution towards the local community" where the venue is located (s 36A(3)(a); s 36(3)(c)(i))) (or, in the case of a class 2 LIA, "will have an overall positive impact on the local community" where the venue is located: s 36A(3)(b); s 36(3)(d)(i)).
8. Section 36C provides that the Authority may publish guidelines about the operation of the gaming machine threshold scheme, including guidelines as to what it considers to be a positive contribution to a local community (s 36C(2)(a)). The primary judge noted that the applicable guidelines published pursuant to s 36C provide a formula for the calculation of a community benefit payment by reference to the annual pre-tax profit per machine. [4]
9. Section 37(1) provides that, if a gaming threshold increase application is approved, then the relevant venue is permitted to acquire GMEs in accordance with the approved increased threshold. However, it "can only do so during the limited period provided by [the] section" which, in the case of an application accompanied by a class 1 LIA, is two years from the date of approval (s 37(2)(a)). Subsection 37(4) provides: "If a relevant venue has not acquired its approved increase in gaming machine entitlements before the end of the limited period for doing so, the Authority is to decrease the gaming machine threshold for the venue by the number of gaming machine entitlements by which the number acquired fell short of the approved increase."
10. Thus, like s 20(7), this provision obliges the Authority to reduce the gaming machine threshold for a given hotel in certain circumstances.

The Seaview Tavern's GMEs and Gaming Machine Threshold

1. The following is taken from the factual findings of the primary judge. Save for an issue concerning the characterisation of the letter on 14 December 2021 (see [46]), those findings were not disputed.
2. On 11 December 2019, the respondent applied under s 34 of the Act to the Authority for an increase in the gaming machine threshold for the Seaview Tavern from 20 to 24. [5] Its application was accompanied by a class 1 LIA, as required by s 35(3)(b). Its LIA offered a contribution of $405,651.67 over a period of five years to the Responsible Gambling Fund. [6]
3. On 20 December 2019, Lifeline (a national charity offering 24-hour crisis support and suicide prevention services) opposed the respondent's application. It did so on the basis that Woolgoolga was a disadvantaged community with a known gambling problem for many of its population. [7]
4. On 23 July 2020, the Authority wrote to the respondent's solicitors about their application. The Authority advised that it had calculated the appropriate figure to be paid as $401,919.21. [8] It also proposed the inclusion of a "condition" for the making of a "community benefit payment" of that amount payable in five equal instalments of $80,383.84, the first of which was payable within six months of the grant and then annually thereafter. [9] The form of "condition" proposed appears to be a condition of the approval of the LIA as contemplated by s 36(7) of the Act. The primary judge noted that on 11 August 2020, the respondent consented to the proposed contribution. [10]
5. Ultimately, at a board meeting on 17 March 2021, the Authority decided to approve the respondent's application for an increase in its gaming machine threshold from 20 to 24 as well as the class 1 LIA. [11]
6. On 23 April 2021, the Authority informed the respondent of the approval of the application under s 34 and noted the imposition of the condition relating to the community benefit payment (which appears to have been imposed under s 36(7)). [12]
7. On 8 June 2021, the respondent sought an extension of time to pay the first instalment of $80,383.84 due to the effect of the COVID-19 pandemic on trading conditions. [13] On 11 October 2021, the time for payment of the first instalment was extended until February 2022. [14]
8. On 3 September 2021, the respondent entered into contracts to purchase the business of the Coutts Crossing Tavern (for $500,000) and the relevant land (for $2,800,000). [15] The sale was completed on 9 November 2021. [16]
9. As at November 2021, the Seaview Tavern had 20 GMEs, four short of its newly increased threshold of 24. [17] On 10 November 2021, the respondent applied to the Authority for permission to transfer one GME from Coutts Crossing Tavern to Seaview Tavern, without increasing the latter's threshold (the first application). [18] The respondent also applied to the Authority for permission to transfer six GMEs from Coutts Crossing Tavern to Seaview Tavern and to increase the threshold of Seaview Tavern from 24 to 27 (the second application). [19]
10. The primary judge noted it was common ground that the applications sought to take advantage of ss 20A(2) and (3) of the Act, which permitted the respondent to transfer GMEs from one country hotel to another (in the same area) without forfeiting any GMEs to the Authority (under s 20(3)). Further, both applications were made on the basis that the Seaview Tavern's threshold at the time of the applications was 24. The first application (to transfer one GME) could be accommodated within the threshold of 24. However, the second application (to transfer six GMEs) required an increase in the threshold by three (from 24 to 27). Although it is not articulated in the correspondence, to the extent that this involved an application under s 34 for an increase in the gaming machine threshold, there was no requirement to seek approval for an LIA because it accompanied a transfer application, and the Seaview Tavern and Coutts Crossing Tavern were in adjoining "local statistical areas" (and had the same "classification") (s 35(2)(d)).
11. On 6 December 2021, an email was sent by the Authority to the respondent's solicitors advising that the first application had been "approved". [20] The email enclosed "licence documents" (as is required by s 16 of the Act) recording that, as at 6 December 2021, Seaview Tavern had a gaming machine threshold of 24 and 21 GMEs [21] and the Coutts Crossing Tavern had a gaming machine threshold of 6 and 6 GMEs. [22]
12. On 7 December 2021, another email was sent by the Authority to the respondent's solicitors advising that the second application had been approved and that conditions had been imposed on the Seaview Tavern's hotel licence pursuant to s 53 of the Liquor Act 2007 (NSW). [23] The email said that attached were "licence documents contain[ing] the updated gaming machine details for both premises". [24] This was erroneous as what were enclosed were the licence details as at 6 December 2021, which have just been noted. As a result of the decision made on 7 December 2021, Seaview Tavern had a gaming machine threshold of 27 and 27 GMEs. Coutts Crossing Tavern had a gaming machine threshold of zero and no GMEs.
13. The primary judge found, and it was not disputed, that these approvals "did not come to the attention of those who were attending to this matter for the [respondent] until after 14 December 2021". [25]
14. On 14 December 2021, the respondent's solicitors wrote to the Authority stating: [26] "On or about 10 November 2021, 4 Boys Pty Limited lodged two (2) applications to transfer in total seven (7) gaming machine entitlements from Coutts Crossing Tavern to the licence of the Seaview Tavern, Woolgoolga (Seaview) (where it is the sub-lessee). The Coutts Crossing Tavern is in an adjacent SA2 to the Seaview Tavern and therefore, in accordance with clauses 20A(1) and 20A(3) of the Gaming Machines Act 2001 (Act), there was no requirement for an LIA to accompany the transfer application. The importance of this is that the transfer of the gaming machine entitlements did not activate the requirement to make a contribution to the Responsible Gambling Fund. The Seaview Tavern currently has a gaming threshold limit of 24. However, it is requested that the Authority not require Seaview Tavern to utilise that gaming machine threshold in circumstances where the application to transfer seven (7) entitlements is not required to be accompanies [sic] by an LIA. The proposal is that our client agrees to reduce its current threshold of twenty-four (24) to twenty (20) on the basis that the seven (7) gaming machine entitlements from the Coutts Crossing Tavern are transferred to the Seaview licence and for the avoidance of any doubt it will not be required to make a contribution to the Responsible Gambling Fund. My client asks the Authority to take into account that it has suffered two (2) years of financial hardship; not only have there been two (2) waves of Covid-19, but also, immediately preceding Covid, were the bushfires which placed significant economic strain not only on my client's business, but also on the whole of the region. My client has gone to significant expense to purchase the seven (7) gaming machine entitlements." (bold emphasis in original; italicised emphasis added)
15. It is self-evident that the author of this letter was not aware that the two applications noted above at [41] had already been approved. The letter assumed that Seaview Tavern had a gaming machine threshold of 24 and only 21 GMEs. The primary judge characterised this letter as an "indicat[ion] [by the respondent] that it would agree to reduce the threshold for the Seaview Tavern from 24 to 20" and a request for the "Authority's approval for a transfer of a total of seven GMEs from the Coutts Crossing Tavern to the Seaview Tavern" and "that the condition of the 17 March 2021 approval requiring the [respondent] to contribute to the Responsible Gambling Fund… no longer apply". [27] Her Honour concluded that "[a]though the letter did not in terms ask the Authority to revoke its decision on 17 March 2021 to approve an increase in the threshold, that was evidently [the respondent's] intention". [28]
16. At the hearing of this application, there was a debate about the proper characterisation of this letter. Senior Counsel for the Authority, Ms Mirzabegian SC, submitted that the letter appeared to seek a revocation of the decision(s) made in March 2021 under s 36 to approve the LIA and under s 34 to increase the gaming machine threshold. It also sought the approval of the transfer of seven GMEs, and the making of a fresh decision under s 34 to increase the gaming machine threshold of the Seaview Tavern from 20 to 27. [29] With the latter decision, as explained above, there is no requirement for an LIA to accompany the threshold increase application. Thus, the overall effect of what was sought was an increase in the Seaview Tavern's gaming machine threshold to 27 and approval of the transfer of the seven GMEs without having to pay the community benefit payment.
17. In his oral submissions, Senior Counsel for the respondent, Dr Birch SC, did not fully accept that characterisation. He noted that, at the time the letter was sent, the date for the payment of first instalment of the community benefit payment had not yet been reached. He contended that the letter was not seeking a revocation of the decision to increase the gaming machine threshold ab initio, but rather only from the time of the letter to relieve the respondent of any payment obligation going forward. [30] Consistent with his client's draft notice of cross‑appeal, Dr Birch SC also contended that the letter could be characterised as an application for the Authority to exercise the power under ss 32(1) or (5) to "set" a new gaming machine threshold and then transfer the seven GMEs and increase the threshold to 27 without the need to obtain approval of an LIA. [31]
18. On 19 January 2022, the Authority resolved to refuse the respondent's request. [32] Its board meeting minutes relevantly record: "3.3 Seaview Tavern, Woolgoolga - Request to revoke approval of a Class 1 Local Impact Assessment The Authority noted the application was in the relation to the Authority's approval of a gaming machine threshold (GMT) increase with a Class 1 Local Impact Assessment (LIA), seeking that such approval be revoked on the basis of financial hardship. The Authority noted that the venue has been represented throughout its recent applications by JDK Legal, which is well versed in gaming legislation, and that the applicant did not raise any issues or appeal any of the Authority's decisions at the relevant time. The Authority further noted that the gaming data reports indicated that the venue's current gaming revenue was close to double the revenue generated in comparable venues over the same period. The Authority noted that there are no legal provisions in the GM Act permitting the Authority to revoke its approval of the LIA. Outcome: The Authority resolved to refuse the application." (emphasis in original)
19. On 15 February 2022, the Authority informed the respondent that its application was refused because it considered that it did not have power to revoke its approval of the LIA. [33]
20. By a letter dated 2 June 2022, the Authority demanded payment of the first instalment of the community benefit payment, which was due on 23 February 2022. [34] On 27 June 2022, the respondent paid $80,383.84 to the Responsible Gambling Fund "under protest". [35]

The Primary Judgment

1. The primary judge identified the respondent's principal contention as whether "s 48 of the Interpretation Act 1987 (NSW) was sufficient to confer power on the Authority to revoke the decisions" being those identified in the declaration that was granted (emphasis added). [36] No issue was taken with that statement, although neither party suggested there was ever any express request by the respondent to revoke the approval of the transfer of GMEs made on 6 and 7 December 2021 as recounted in the declaration sought by the respondent and granted by her Honour ("as has occurred").
2. The primary judge rejected a contention that relief should be refused on the basis that, even if the Authority had the power to revoke its decision on 23 April 2021 to increase the gaming machine threshold and its approval in December 2021 of the transfer of the 7 GMEs, the Authority had declined to do so on the merits. [37] No issue is taken with this conclusion on appeal.
3. Her Honour then addressed the effect of s 48 of the Interpretation Act. Her Honour reviewed various authorities, including the decision of this Court in Parkes Rural Distributions Pty Ltd v Glasson (1986) 7 NSWLR 332 ("Parkes") and the decision of the Full Court of the Federal Court in Minister for Indigenous Affairs v MJD Foundation Ltd (2017) 250 FCR 31; [2017] FCAFC 37 ("MJD"). Parkes was treated as having found that former s 32 of the Interpretation Act 1897 (NSW) implied a power of revocation into the statutory functions to which it applies. The majority in MJD (Mortimer J, as her Honour then was, and Perry J; contra Perram J) held that s 33(1) of the Acts Interpretation Act 1901 (Cth) does not have that effect. The primary judge distinguished MJD on the basis of textual differences between ss 33 and 48. [38] Her Honour considered that it "would not be appropriate" to depart from Parkes. [39] Thus, her Honour concluded that s 48 "includes a power to revoke a previous decision". [40]
4. Her Honour addressed whether the Act evinced a contrary intention so as to displace the operation of s 48. Her Honour did not accept that various provisions of the Act conferring express powers to "revoke" or vary certain determinations or approvals "displace[d] s 48 of the Interpretation Act" [41] and found that "the detailed provisions which are required to be complied with when a threshold or GME entitlement is increased do not bear on what should occur if an increase is revoked to bring about a decrease" [42] (emphasis in original). Her Honour considered that this conclusion was supported by the objects of the Act in that one of those objects referred to the harm occasioned by gambling (s 3(1)(a)) and that a "reduction in a threshold or GME is, prima facie, beneficial". [43]
5. Her Honour then addressed the effect of s 32(5) of the Act stating as follows: [44] "Where the Authority, of its own initiative, wishes to reduce a threshold, then it may be that it will choose to exercise its power under s 32(5), which must be exercised in accordance with the Act. However, the Act does not give any indication that this power is the Authority's only power to reduce a threshold since a revocation of an approval given pursuant to s 34(4) (if s 48 of the Interpretation Act has not been excluded by contrary intention) would also have that effect. The distinction between a revocation and a subsequent exercise of power which is, at least in part, inconsistent with the first exercise, is relevant here. Section 32(5) would appear to address the latter situation - where the Authority has decided to 'vary' the threshold - but not necessarily with the first, where an actual revocation is sought to undo the first decision. Thus, it does not follow from the express power in s 32(5) to 'increase or vary' a threshold (which must include a power to decrease a threshold) that the power to revoke an increase in a threshold under s 34(4) is excluded. Further, I do not discern any contrary intention which would have the effect of excluding the implied power to revoke a transfer of GMEs under s 20A." (emphasis in original)
6. Her Honour rejected the contention that the provisions of the Act dealing with the transfer and leasing of GMEs were inconsistent with the existence of "a power of revocation". [45] Her Honour concluded that it was not necessary to address an alternative claim made on behalf of the respondent that the power conferred by s 32(5) of the Act extended to a power to reduce the gaming machine threshold beyond the specific circumstances identified in the Act. [46] Nevertheless, the passage extracted in [57] suggests that her Honour accepted that s 32(5) could be used in that manner.

Ground 1: Section 48 of the Interpretation Act

1. As noted, ground 1 of the appeal raises an issue of principle about s 48(1) of the Interpretation Act.
2. Section 48 relevantly provides: 48 Exercise of statutory functions (1) If an Act or instrument confers or imposes a function on any person or body, the function may be exercised (or, in the case of a duty, shall be performed) from time to time as occasion requires. (2) If an Act or instrument confers or imposes a function on a particular officer or the holder of a particular office, the function may be exercised (or, in the case of a duty, shall be performed) by the person for the time being occupying or acting in the office concerned.
3. Section 48 applies "except in so far as the contrary intention appears" (Interpretation Act, s 5(2)). A reference to a "function includes a reference to a power, authority or duty" (Interpretation Act, s 3(2)).
4. Section 48 is found within Pt 7 of the Interpretation Act, which is entitled "Exercise of statutory functions". Within Pt 7, ss 46 and 47 address appointments to an office and powers incidental to a power of appointment respectively. Section 49 is directed to the circumstance where an "Act or instrument confers a power on any person or body to delegate a function". Subsection 49(2)(c) provides that such a delegation may be "revoked, wholly or partly" (emphasis added).
5. The Acts Interpretation Act also only applies to the extent there is no contrary intent (s 2(2)). Subsections 33(1) and (3) provide: "(1) Where an Act confers a power or function or imposes a duty, then the power may be exercised and the function or duty must be performed from time to time as occasion requires. (2) … (3) Where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by‑laws) the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument."
6. Neither s 48(1) of the Interpretation Act nor s 33(1) of the Acts Interpretation Act expressly refer to revoking or rescinding an earlier exercise of power or performance of a function.

Submissions

1. So far as s 48 of the Interpretation Act is concerned, the Authority made two principal contentions. First, it contended that the primary judge erred by treating s 48 as itself conferring the power to revoke decisions. [47] Second, it contended that her Honour erred in treating Parkes as authority for the proposition that s 48 necessarily requires that a statute reposing a power also confers a power of revocation unless a contrary intention is shown. [48] It was further submitted that, if Parkes did so hold, it should be overruled, and this Court should follow the decision of the majority in MJD. [49] It was submitted that a consideration of the text and legislative history of both the Interpretation Act and the Acts Interpretation Act did not justify any different interpretation of s 48 of the Interpretation Act compared to s 33 of the Acts Interpretation Act. [50] The respondent relied on the primary judge's reasoning, including the emphasis on Parkes, and the basis upon which her Honour differentiated between ss 48 and 33. [51]
2. The relevant provisions of the Interpretation Act and the Acts Interpretation Act are set out above (at [60] and [63]). To address the parties' submissions, it is necessary to refer to Minister for Immigration and Border Protection v Makasa (2021) 270 CLR 430; [2021] HCA 1 ("Makasa"), Parkes and MJD.

Makasa

1. In Makasa, Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ stated the following concerning s 33(1) of the Acts Interpretation Act: [52] "[Section 33] is enacted against the background of 'an inconvenient common law doctrine of somewhat uncertain extent to the effect that a power conferred by statute was exhausted by its first exercise'. The section counters that doctrine not by itself conferring any power but by requiring that a provision conferring a power be interpreted as authorising the power it confers to be exercised and re-exercised from time to time. The section does not alter the incidents of the power spelt out in the terms of the provision conferring the power. The words 'as occasion requires' acknowledge the need for the repository of the power to comply with the incidents of the power spelt out in the terms of the provision. They are not words of additional limitation." (emphasis added; citation omitted)
2. Their Honours concluded that s 33(1) requires that s 501(2) of the Migration Act 1958 (Cth) be "interpreted as authorising re-exercise of both stages of the two-stage decision making process which s 501(2) entails". [53] Their Honours also noted a controversy in the Federal Court as to whether "the re-exercise of a statutory power contemplated by s 33(1) extends to revocation of an exercise of the statutory power that has resulted in an alteration of legal rights". [54] As Makasa concerned a question about whether a power to cancel visas, which had been exercised by a delegate of the Minister in a decision that was later set aside by the Administrative Appeals Tribunal, could be re-exercised by the Minister to cancel a visa, their Honours did not resolve that controversy. [55] Such a sequence of decision-making would involve the second possible decision reversing the effect of the first without revoking it, although in Makasa a contrary intention was discerned from the statutory regime. [56]
3. As noted, the primary judge concluded that "s 48 includes a power to revoke a previous decision". [57] Read literally, that conclusion is inconsistent with the above passage from Makasa in that, like s 33 of the Acts Interpretation Act, s 48 does not include or confer any power but instead informs the construction of the statutory functions to which it applies. However, I do not take the balance of her Honour's judgment as proceeding on the basis that s 48 is the source of any power of recission as opposed to being an interpretative rule potentially applicable to various provisions of the Act.

Parkes

1. As noted, the primary judge placed particular reliance on the earlier decision of this Court in Parkes. The appellant in Parkes was a registered distributor of petroleum products under a scheme subsidised by the Commonwealth to enable rural users to obtain petrol at a similar price to users in capital cities. The relevant statutory provision empowered an authorised officer, who was satisfied that an amount paid to a person under the relevant Act was payable, to "give" a certificate in writing specifying that "the amount paid or the amount of the excess, as the case may be, is repayable by that person to the State". [58] One certificate was issued in February 1982 certifying that $152,317.70 was repayable by the appellant (the first certificate). [59] Another certificate was issued in 13 November 1984 certifying that $134,065.27 was repayable (the second certificate). [60]
2. The primary judge in Parkes found there was a denial of natural justice in relation to the issuance of the first certificate, and that the first certificate had been withdrawn and replaced by the second certificate. [61] On appeal, it was contended that the second certificate was also invalid because, at the time of its issue, the first certificate was still in force and it was not possible in law to have two inconsistent certificates. [62] This argument was rejected as follows: [63] "The power to issue certificates granted by s 8(3) of the Act is elaborated by the Interpretation Act 1897, s 32, which permits its exercise from time to time. It has been held that a power exercisable from time to time may be so exercised as to add to, subtract from or reverse the result of the previous exercise: Lawrie v Lees (1881) 7 App Cas 19 at 29. In other words the donee of such a power is never functus officio. Accordingly the existence of the first certificate does not render void a second certificate issued in lieu of it. There is in my opinion a further reason why the validity of the second certificate cannot be impugned. According to my understanding of what was said by Aickin J in Forbes, and of the similar observation of Lord Wilberforce in Calvin v Carr [1980] AC 574 at 590 the validity of the act under challenge endures only until the challenge is upheld. Thereafter it is to be treated as void ab initio. Accordingly once his Honour had decided that the first certificate was void and proceeded to consider the challenge to the second, there was then no valid certificate extant with which it could be inconsistent." (emphasis added)
3. This passage reveals two bases for the conclusion that the second certificate was not invalid. The second basis was that, as the first certificate was invalid, there was no valid certificate "extant" with which the second certificate could be inconsistent. The suggestion that the first certificate was valid until the challenge to its validity was upheld is inconsistent with Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11 at [51] ("Bhardwaj"). However, the ultimate conclusion that there was power to issue a second certificate in circumstances where the first certificate was affected by a denial of procedural fairness very much accords with the outcome in Bhardwaj. In Bhardwaj, it was held that a denial of procedural fairness by the Immigration Review Tribunal in making a decision about an application for review meant it had the power (and duty) to make a further decision about the application. [64]
4. The first basis for the decision in Parkes was that the power to issue a certificate is "elaborated" by former s 32 of the Interpretation Act 1897 (NSW) so that it can be re-exercised from time to time. It was then said that such an exercise of power can "add to, subtract from or reverse the result", citing Lawrie v Lees (1881) 7 App Cas 19 at 29 ("Lawrie"). (The differences between former s 32 of the Interpretation Act 1897 and s 48 of the Interpretation Act are addressed below.)
5. Lawrie concerned the power conferred on the Lord Chancellor under s 3 of Sir H Meux's Settled Estate Act 1863 (UK) to "from time to time … order or direct to be done, permitted and suffered with respect to [the] business of the 'Horse-shoe' brewery [and the affairs of a sizable partnership of which Sir Henry Meux was a partner] … whatsoever Sir Henry Meux, if of sound mind, might do, permit or suffer or concur in doing" for the period Sir Henry Meux was incapable of managing his affairs. [65] An issue arose as to whether such an order or direction had to be given by the Lord Chancellor to the relevant committee (in lunacy) every time it was proposed that a "public-house had to be let with respect to the execution of a lease to it" or whether a "compendious order" could be issued. [66]
6. In accepting that a compendious order could be given, Lord Penzance observed: [67] "[I]t is a question of everything connected with the business of the brewery. If these words 'from time to time' are to have that meaning, and it is to be inferred that the Lord Chancellor is to act separately upon each occasion, there is not a bargain for the sale of beer or for the purchase of malt or hops which according to the view of the Appellant ought not to be brought under the supervision of the Lord Chancellor. It seems to me that that would be a construction of a most inconvenient character. It is not one which I think your Lordships would lightly adopt, and I see no reason whatever for adopting it, because the words 'from time to time' are words which are constantly introduced where it is intended to protect a person who is empowered to act from the risk of having completely discharged his duty when he has once acted, and therefore not being able to act again in the same direction. The meaning of the words 'from time to time' is that after he has made one order he may make a fresh order to add something to it, or take something from it, or reverse it altogether; and as that meaning gives sufficient force to the words and explains the use of them here it seems to me that your Lordships ought not to go further and to narrow these words by any construction which would throw impediments in the way of carrying on the business, whereas the object of the Act was to facilitate it." (emphasis added)
7. His Lordship's observation that the power to make an order "from time to time" carries with it the power to "reverse it altogether" needs to be seen in the context of the particular power which was the subject of the decision in Lawrie. That power was the power to manage a person's business affairs which included a sizable brewery. Of necessity such a power had to extend to "revers[ing]" a course taken earlier as the dynamic needs of the business changed over time. Even that had its limits as there is no doubt that, if the Lord Chancellor made a fresh order denying the Committee's power to enter into leases for public houses, that would not undo leases that already been entered into.
8. A number of relatively recent decisions considering whether or not s 33(1) of the Acts Interpretation Act (or its analogues) carries an implication of a power to revoke an earlier exercise of power have considered Lawrie. All have expressed scepticism about whether it should be treated as any authority of significance to a construction of s 33(1) (see, eg, MJD at [49]−[51] and [62] per Perram J; at [178] per Mortimer J; Kabourakis v Medical Practitioners Board of Victoria [2006] VSCA 301; (2006) 25 VAR 449 ("Kabourakis") at [84] per Nettle JA), although some have treated the reference in the above passage to "revers[ing] it altogether" as being to a power to rescind a previous order (see MJD at [56] per Perram J).
9. I share the scepticism about the relevance of Lawrie in this context. Moreover, "revers[ing]" an order in the context of the conduct of a business is not necessarily the same as revoking or rescinding an earlier exercise of a statutory power by a regulator (see MJD at [178] per Mortimer J). There is a difference between a fresh exercise of a particular power such as that conferred on the Lord Chancellor in Lawrie, the effect of which was, or may have been, to "reverse" an earlier order, and implying into every power a power to rescind an earlier exercise of that power.
10. The respondent contended that just because there were two bases for the decision in Parkes does not mean that the reference by Glass JA in the above passage (at [71]) to s 32 of the Interpretation Act 1897 and "revers[ing] the result" was obiter dicta. The respondent further contended that this Court could only refuse to apply this part of Parkes if it considered it to be "clearly wrong" (citing Gett v Tabet (2009) 109 NSWLR 1; [2009] NSWCA 76). [68] However, that submission only begs the question of what proposition the above passage from Parkes stands as authority for. The respondent assumed that the bare reference in Parkes to "revers[ing] the result" was a reference to revoking or rescinding an earlier exercise of power. However, the reference in Parkes to the power being "so exercised as to… reverse the result of the previous exercise" suggests that what was contemplated was a further exercise of power, the effect of which was, or may have been, to "reverse" an earlier exercise of power [69] (emphasis added). At the very least, this aspect of Parkes is ambiguous as to whether the reference to "reversing the result of the previous certificate" was simply a reference to a fresh exercise of the power to issue a certificate specifying the amount repayable (which superseded the first certificate) or a revocation of the first certificate. In MJD, Mortimer J characterised it as the former (at [207]).
11. I do not accept that Parkes is authority for the proposition that either s 32 of the Interpretation Act 1897 or s 48 of the Interpretation Act is a basis for implying a power of revocation into every statutory function or power to which it applies. Instead, it is at the very least equally capable of being construed as establishing the more limited proposition that, for some powers and functions, the practical effect of their re-exercise from time to time will, in some circumstances, result in the reversal of the result of an earlier exercise of the same power or function.

MJD

1. In MJD, Mortimer J rejected the contention that s 33(1) effects a general implication into all statutory powers, functions and duties arising under federal legislation of "a power to reverse or undo an exercise of power or to revoke a decision made in the exercise of a statutory power". [70] Instead, her Honour concluded that s 33(1) has a more limited operation, namely, to "make clear that the presumptive position is that powers, functions and duties, as conferred by the enabling statute, can be exercised or performed repeatedly". [71] Her Honour added the further proposition that "[u]sually, the repeated exercise or performance will be in respect of different persons, different subject matter, and on different occasions", although "[i]n some circumstances… there may be a repeated exercise or performance in relation to the same person or subject matter, but that will be a less common implication". [72] It is not necessary to reach a concluded view on this further proposition to resolve this appeal.
2. Leaving aside the absence of any express reference to revocation or the like in s 33(1), Mortimer J drew support for the above conclusion from so much of the text of that provision that relates to the performance of a function or duty in that, in a "real statutory context", it is difficult to envisage how such a performance could be "revoke[d], reverse[d] or undo[ne]". [73] Even though it could be envisaged how the exercise of a power could be rescinded or revoked, her Honour observed that the "operative phrase 'from time to time as occasion requires' applies equally to all three kinds of authority and must be given a meaning which is capable of applying sensibly to all three [ie a power, function and duty]". [74]
3. This reasoning is equally applicable to s 48(1) of the Interpretation Act in that, as already noted, the reference to a function "includes a reference to a power, authority and duty" (s 3(2)). While one can envisage the repeated performance of an authority, duty or function that does not involve the exercise of a power in such a manner that its practical effect is to reverse the effect of an earlier performance of that statutory authority or duty, it is difficult to see how one can rescind or revoke the performance of many forms of statutory authorities, duties or functions that do not involve the exercise of a power.
4. MJD concerned the exercise by the Minister for Indigenous Affairs to "direct" that an amount be paid "for the benefit of Aboriginals living in the Northern Territory" pursuant to s 64(4) of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (the "Land Rights Act"), with that amount then debited from an account maintained under the Land Rights Act. In July 2013, the then Minister directed that $10 million be paid to the appellant. [75] In December 2013, a new Minister determined to revoke that decision. [76] Mortimer J concluded that the Minister was not authorised by s 64(4) of the Land Rights Act to revoke the earlier direction. [77] In MJD, and unlike Parkes, the Minister had not determined to make a payment of $0 to the appellant. [78] However, it would seem to follow from the further proposition identified in [81] that Mortimer J would not have accepted that the Minister could re-exercise the power to determine the amount payable was $0.
5. Perram J dissented in MJD. Critical to his Honour's reasoning was a textual analysis of that part of s 33(1) which refers to the fact that a power may be re-exercised from time to time. [79] His Honour reasoned that s 33(1) necessarily contemplated that a re-exercise of a power would extend to the power not to exercise it. [80] Thus, to give effect to that outcome, it was necessary to imply a power to revoke the earlier exercise of the power: [81] "Since s 33(1) explicitly contemplates through the word 'may' that on the re-exercise of a statutory power to which it applies the power need not be exercised, the provision must be taken to include within its grant sufficient power to give effect to that outcome. The only way that a decision under s 33(1) to re-exercise a power by not exercising it may be given effect is by the revocation of the earlier decision. Subsection 33(1) must be construed, therefore, as including such a power. This is not a surprising outcome. It is a well-known principle of statutory interpretation that where a power is conferred by a statute, there is an implied power to perform it… So too here. Subsection 33(1) assumes by reason of the word 'may' that the power can be re-exercised by not exercising it. This assumption can only be given effect if the provision carries with it a power of present but not retroactive revocation. Consequently, s 33(1) authorises not only the re-exercise of a statutory power, but where the second decision is a decision not to exercise the power at all, also the revocation of the earlier decision from the date of the second decision." (emphasis added; citations omitted)
6. Having concluded that "s 33(1) may be used to revoke an earlier exercise of power", [82] Perram J could not discern any contrary intention from the terms of the Land Rights Act. [83] Thus, his Honour held that the earlier direction under s 64(4) could be validly revoked.
7. I respectfully disagree with Perram J's analysis. His Honour's analysis assumes that s 33(1) always operates so that the "occasion" for the re-exercise of the power necessarily relates to the same person or subject matter as the earlier exercise of power, something Mortimer J did not accept (see above at [81]). Further, with respect to his Honour, I do not accept that the "only way that a decision under s 33(1) to re-exercise a power by not exercising it may be given effect is by the revocation of the earlier decision" (emphasis added). [84] Even if the re-exercise of a power is capable of applying to the same subject matter and circumstances as the earlier exercise, if the earlier exercise was also a decision not to exercise the power, it may not be necessary to revoke or rescind the earlier decision. Further, under some statutory schemes, even if the earlier decision did involve a positive exercise of the power, a later decision not to exercise the power may not require the earlier decision be revoked. For example, a disciplinary regime may confer a power to suspend a person from a position or occupation. The power might be exercised to suspend them for a limited period. On the expiry of that period, the "occasion" for re-exercising the power for the purposes of s 33(1) (or s 48(1)) might arise but the outcome may be not to impose a further suspension. That would be an example of a circumstance in which a power was re-exercised by not exercising it and without any necessity to revoke the earlier decision. Thus, implying a power of revocation is not the "only way" a re-exercise of power could occur. Instead, it depends on the nature and context of the statutory power and the circumstances that have arisen.
8. Three further points should be noted about MJD.
9. First, in MJD Perram and Mortimer JJ each traced the historical development of s 33(1) of the Acts Interpretation Act. [85] Perram J concluded that "[o]n its face, that [history] does not throw direct light on the question whether s 33(1) can be used to revoke an earlier exercise of power". [86] If the reference to "direct light" is meant to refer to "support", then his Honour is correct. The historical provisions of UK legislation to which his Honour referred repeatedly describe the provision as being introduced to remove the "application of the doctrine that a statutory power is exhausted by its first exercise". [87] Mortimer J's analysis was to the same effect [88] (see also Makasa at [45]). That origin provides support for Mortimer J's construction of s 33 of the Acts Interpretation Act.
10. Subject to considering the matter noted below (at [97]−[98]), the legislative history of s 48 of the Interpretation Act is not relevantly different to s 33 of the Acts Interpretation Act. Both s 33 of the Acts Interpretation Act and former s 32 of the Interpretation Act 1897 were based on s 32 of the Interpretation Act 1889 (UK). All of those provisions contained a subs (3) addressing the power to make "rules, by-laws and regulations" and including an express power to rescind or revoke the same. Upon the repeal of the Interpretation Act 1897 and the enactment of the Interpretation Act, former ss 32(1) and (2) were re-enacted as s 48 of the Interpretation Act and former s 32(3) was re-enacted as 43 of the Interpretation Act. Section 43 is now found within Pt 6, which is entitled "Statutory rules and certain other instruments". As noted, s 48 is found within Pt 7, which is entitled "Exercise of statutory functions". This appears to be a simple rearrangement of statutory provisions by subject matter.
11. The respondent contended, inter alia, that the Interpretation Act was enacted following Parkes (and its reference to Lawrie) yet it was not considered necessary to alter the language of s 48(1). [89] This submission assumes that Parkes unambiguously states that former s 32(1) of the Interpretation Act 1897 is a basis for implying a power of revocation. It follows from the above that I do not accept that assumption.
12. Second, in MJD, Perram and Mortimer JJ each addressed various authorities dealing with s 33(1) or its analogues [90] including Lawrie. This included obiter statements in various intermediate courts of appeal supporting the proposition that these provisions enable the substantive statutory power or function to which they apply to be construed as including a power of revocation (see, eg, Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193; [1990] FCA 22 ("Kurtovic") at 218−219 per Gummow J; Southlink Pty Ltd v WorkCover Corporation of South Australia (2009) 104 SASR 172; [2009] SASC 175 at [341]−[343] per Kourakis J) and statements to the contrary (see, eg, Kabourakis; Minister for Immigration and Multicultural and Indigenous Affairs v Watson (2005) 145 FCR 542; [2005] FCAFC 181 at [23] per Hely J).
13. Perram J considered that the authorities generally supported his Honour's construction but accepted they did not contain any "principled explanation" for why s 33 is a basis for implying a power to revoke an earlier decision and that the various judicial statements to that effect were obiter dicta. [91] Mortimer J concluded there was no decision binding a single judge of the Federal Court to the proposition that, subject to any contrary intention, there is to be implied "into all federal statutes… a power to reverse, undo or revoke an exercise of power or the performance of a function". [92] Instead, her Honour concluded, "what a review of the authorities demonstrates is that in most cases it is the text, context and purpose of the particular statutory scheme in issue which governs the construction of the scope of the authority of a repository of a statutory power or function". [93]
14. One of the decisions reviewed by their Honours, and upon which the primary judge in this case placed great weight, was Kurtovic, in which Gummow J (with whom Ryan J relevantly agreed) observed: [94] "In the present case, there is nothing in the Migration Act which suggests an intention contrary to the presumption embodied in s 33(1) of the Acts Interpretation Act 1901, to which I have already referred. Accordingly, the power to make a deportation order is exercisable from time to time, so as to revoke or revive a deportation order previously made, whether on the same facts as before or otherwise."
15. Kurtovic involved an application for judicial review of a deportation order made under former s 12 of the Migration Act. A previous deportation order that had been made was revoked. [95] Without any relevant change in circumstances, a further deportation order was made and challenged on various bases, including estoppel. The estoppel claim succeeded at first instance but was overturned on appeal. [96] Perram J observed that the above observation by Gummow J was obiter dicta. [97] Mortimer J noted that the earlier revocation of the deportation order in Kurtovic was made pursuant to an express statutory power to revoke such an order. [98] Her Honour characterised Kurtovic as a case "concerning re-exercise rather than revocation". [99]
16. Third, in MJD, Perram J addressed an argument that contrasted s 33(1) with s 33(3), which expressly includes a power to "repeal, rescind, revoke or amend" an instrument of a legislative or administrative character. His Honour rejected an argument that suggested that s 33(1) did not have a similar effect upon the functions to which it applied. Perram J concluded that s 33(3) had a completely different operation to s 33(1) in that the former concerned "instruments" and the latter was concerned "with exercises of statutory power not resulting in instruments". [100] Mortimer J, on the other hand, considered the absence of the word "revocation" in s 33(1) to be significant when contrasted with its presence in s 33(3). [101]
17. As noted, the primary judge sought to distinguish MJD on the basis that, in part, Mortimer J relied on the express reference to "revocation" of an instrument in s 33(3) in contrast to s 33(1), which contained no such reference, whereas there is no equivalent to s 33(3) in s 48 of the Interpretation Act. [102] In this Court, the respondent sought to rely on this reasoning. [103]
18. I respectfully disagree that this is a basis for distinguishing MJD. As noted, s 49(2)(c) of the Interpretation Act expressly refers to revocation in the context of delegations. The power of delegation described in s 49(1) is an example of a specific function that would otherwise fall within s 48(1). Thus, within the same Part of the Interpretation Act which deals with the exercise of statutory functions, there exists an express provision dealing with the power of revocation in the case of a particular form of statutory function while there is no such provision in the case of statutory functions generally. There is no relevant difference between a circumstance where the word "revocation" is absent from one subsection of a provision but present in another (ie Acts Interpretation Act, ss 33(1) and (3)) and the circumstance where it is present in the provision being construed and absent from the succeeding provision where the two provisions deal with similar topics (ie Interpretation Act, ss 48 and 49).
19. In any event, the presence of the word "revoke" in s 33(3) of the Acts Interpretation Act was only one component of Mortimer J's reasoning in MJD. The absence of the word "revoke" in s 33(1) is a much larger consideration. It is similarly absent from s 48(1). There is something surreal about searching for implications in an Interpretation Act.

Conclusion on Ground 1

1. It is understandable that sitting at first instance the primary judge placed significant reliance on Parkes. However, it follows from the above that I do not consider that Parkes inhibits this Court from concluding that s 48(1) does not have the effect that, subject to any contrary intention, there is to be implied into every function to which the provision is directed a power to revoke a previous exercise of that function. The Full Court of the Federal Court in MJD similarly held to the contrary in relation to s 33(1) of the Acts Interpretation Act. MJD is a decision of another intermediate court of appeal concerning a statutory provision that is not relatively different to s 48(1) of the Interpretation Act. As such it is, at the very least, deserving of great weight. In any event, the reasoning of Mortimer J is, in this respect, persuasive. I agree with it.
2. I would uphold ground 1 of the appeal.

Balance of the Grounds of Appeal

1. The disposition of the balance of the Authority's appeal involves the application of the above conclusion in relation to s 48 of the Interpretation Act to the decisions the subject of declaration by the primary judge, namely the decision made on 23 April 2021 to increase the Seaview Tavern's threshold to 24 and the decisions made in December 2021 to approve the transfers of the seven GMEs acquired from the Coutts Crossing Tavern and increase the Seaview Tavern's threshold to 27.

The Statutory Basis for the Decisions

1. It is necessary first to note three matters concerning the statutory provisions governing those decisions.
2. First, it is necessary to identify the source of power to increase the gaming machine threshold. Subsection 56(2) of the Act confers a power to authorise a hotelier or club to keep or dispose of an approved gaming machine. The total number that "may" be authorised consists of the number of machines that correspond to the number of GMEs (and permits referred to in Pt 3) (s 56(4)). Subsection 32(1) confers a power to "set" the maximum number that may be so authorised under Pt 5, specifically s 56. Subsection 32(5) provides that once the maximum number is "set" under s 32(1), the threshold "may be increased or otherwise varied by the Authority in accordance with [the] Act" (emphasis added). It can be accepted that "otherwise varied" means or includes decreasing the threshold.
3. Leaving aside the possible re-exercise of the power to "set" the threshold under s 32(1), the power to approve an increase in the gaming machine threshold is conferred by s 34(4). That power that can only be exercised if the Authority is satisfied that the requirements of Div 1 of Pt 4 and the regulations have been complied with in relation to the relevant application. Otherwise, the Act makes specific provision for four circumstances in which the threshold may be decreased: s 20(7) (reduction of a transferor's threshold following a transfer of a GME); s 25B(2) (reduction of the threshold of the lessee of a GME at the conclusion of the lease); s 27 (reduction of a transferor's threshold following a transfer of a permit to another hotel licence) and s 37(4) (reduction of a threshold where a successful applicant for a transfer cannot acquire the additional GMEs within the relevant period).
4. Second, it is necessary to identify the consequences of the exercise of the power to approve a transfer of GMEs. The power of approval is conferred by s 19(2)(a). Section 20A does not confer a power of approval but instead specifies when such a transfer is authorised and thus satisfies s 19(2)(b). The scope of the power to approve or reject a transfer was not explored in this appeal. However, it is clear that once such a transfer is approved and otherwise complies with the requirements of Div 2 of Pt 3 then, in the case of a transfer of GMEs referred to in s 20, the transfer block and forfeiture requirements take effect (s 20(3)) and, in all cases, the Authority is obliged to reduce the gaming machine threshold of the transferor (s 20(7)).
5. Third, there is no doubt that the ultimate object of the letter sent on behalf of the respondent on 14 December 2021 was to seek various decisions from the Authority that would result in the Seaview Tavern having a gaming machine threshold of 27 and 27 GMEs but no corresponding "obligation" to make a payment to satisfy the community benefit requirement referable to the approved LIA. At the hearing of the appeal, there was a debate about the enforceability of the requirement to make the payment that constituted the community benefit requirement. The Court was not taken to any part of the Act capable of making such a requirement an enforceable debt. Instead, as noted, the making of the payment is a condition of the approval of an LIA under s 36(7). Such a payment is "enforceable" in the sense that a failure to comply with a "condition imposed by the Authority in relation to the approval of a[n] [LIA]" is a basis upon which it can suspend or cancel an authorisation to keep an approved gaming machine (s 58(1B)(c)).
6. This points to one difficulty with the relief sought by and granted to the respondent. If it truly sought to avoid the payment constituting the community benefit requirement, then it had to seek the revocation of either the approval of the LIA under s 36(1) or at least the imposition of the payment condition under s 36(7). The Authorities' minutes denied it had power to do the former (see [50]). However, none of the relief sought was directed to that end (nor was the letter of 14 December 2021). Instead, the relief sought concerned the revocation of the decision to increase the Seaview Tavern's gaming machine threshold. It appears to have been assumed that had the revocation occurred, then the approval of the LIA would also be revoked. Given the view I take on the power to revoke the approval of a threshold increase application, it is not necessary to address whether that assumption is correct, but it may be doubted that it is.
7. These considerations, both separately and cumulatively, count against there being implied powers to revoke decisions which have had specified consequences within the statutory scheme.

Application of Proper Construction of Section 48 of the Interpretation Act

1. It follows from the above conclusion in relation to s 48 of the Interpretation Act that s 19(2)(a) of the Act does not confer a power on the Authority to revoke an approval of a transfer of GMEs. If the Authority were for some (valid) reason to refuse approval of a transfer then it would follow from the application of s 48 that, if the "occasion" warranted it, the power of approval could be later exercised to approve the transfer. However, once a transfer is approved and otherwise complies with Div 2 of Pt 3, then it takes effect under the Act (s 19(2)). As noted, if the transfer was of the kind referred to in s 20, then the transfer block and forfeiture requirements would take effect (s 20(3)) and, in all cases, the Authority would be obliged to reduce the gaming machine threshold of the transferor (s 20(7)). Any attempt to re-exercise the power of approval conferred by s 19(2)(a) by not approving the transfer could not undo those consequences.
2. For the sake of completeness, I note that, had I reached the opposite conclusion in relation to s 48 of the Interpretation Act, then I would nevertheless have concluded that the Act manifests a contrary intention in so far as it might otherwise be said that s 48 supports the conclusion that the Authority had the power to revoke an approval of a transfer. I cannot envisage how the block and forfeiture requirements (s 20(3)) or reduction in the transferor's gaming machine threshold (s 20(7)) could be undone by a purported revocation of the approval of a transfer.
3. Further, the premise of an approval of a transfer is that there was an underlying transaction in which the GMEs were transferred between two entities. In this case, they were presumably included in the sale of the Coutts Crossing Tavern to the respondent. In those circumstances, if s 20A deems a transfer to be "authorised" and the Authority approves it under s 19(1)(a) then on what possible basis can that approval be revoked? The only means of undoing the transfer is to effect another transaction that retransfers the GMEs and seek approval for that transfer (and any necessary increase in the gaming machine threshold), if that is possible.
4. Similarly, s 48 of the Interpretation Act, when taken with s 34(4) of the Act, would appear to enable repeat exercises of the power to increase the gaming machine threshold provided that, on each occasion, the appropriate application for an increase is made and the Authority is satisfied that the requirements of Div 1 of Pt 4 and the regulations have been complied with and the threshold never exceeds 30 (s 11). However, any repetition of the exercise of the power to approve an increase in the threshold could not have the effect of revoking or reversing an earlier approval.
5. Again, for the sake of completeness, had I reached the opposite conclusion in relation to s 48 of the Interpretation Act, then I would nevertheless have concluded that the Act manifests a contrary intention in so far as it might be said that s 48 supports the conclusion that the Authority had the power to revoke an approval of an increase in the threshold. There are numerous provisions of the Act that expressly confer powers to revoke a decision (see, eg, s 32A(5)(b) - revocation of determinations to impose a cap on GMEs in a particular area; s 42(3)(c) - revocation of approvals that ameliorate mandatory shutdown periods for gaming machines). Moreover, the revocation of an approval to increase the threshold would undermine the operation of ss 37(2)−(4) which specify a period in which GMEs must be obtained once a threshold is increased, the failure of which obliges the Authority to reduce the threshold. These provisions assume that, in the period before the additional GMEs are obtained or the increased threshold lapses, the hotelier or club will comply with their approved LIA. According to the respondent, that outcome can be avoided by revoking the approval of the increase in the threshold.

Conclusion

1. It follows that I would also uphold the balance of the Authority's grounds of appeal. Subject to considering the respondent's cross‑appeal, I would allow the appeal and set aside the declaration made by the primary judge.

The Cross-Appeal

1. In support of his client's cross‑appeal, Dr Birch SC contended that, if the above approach to s 48 was adopted, then the power to "set" the gaming machine threshold conferred by s 32(1) of the Act, either in its own right or together with s 32(5), could be re-exercised from time to time to permit an increase or decrease in the gaming machine threshold. [104] As noted, the primary judge appeared to accept that ss 32(1) and (5) could be exercised in that way. Dr Birch SC contended that the letter of 14 December 2021 should, or at least could, be construed as seeking the re-exercise of that "power".
2. If the power conferred by s 32(1) to "set" the maximum number of approved gaming machines that may be authorised under Pt 5 stood alone, then it is conceivable that, with the assistance of s 48 of the Interpretation Act, the power could be re-exercised from time to time to "set" a new maximum that was either greater or less than the previous maximum. However, s 32(1) does not stand alone. When read with the balance of the Act, including ss 32(3)−(5) and 34(5), it is clear there are limits on the power to increase or otherwise vary (decrease) the threshold. Subsection 32(5) provides that an increase or variation may occur "in accordance with the Act". On its face, that suggests any increase or variation may only occur in accordance with another provision of the Act.
3. This is certainly the case with an increase in the threshold. An increase can only occur following the making of an application under s 34 that complies with the requirements of Div 1 of Pt 4 (and the regulations) (s 34(4)). Thus, the power to "set" a maximum under s 32(1) cannot be re-exercised from time to time if it involves an increase in the threshold. This suggests that the phrase "in accordance with the Act" in s 32(5) operates as a limitation on the power to "increase" the threshold in that it can only be increased where specifically authorised by another provision of the Act. This further suggests that the power to "otherwise vary" the threshold is similarly limited.
4. That conclusion is reinforced by noting that the Act (only) makes provision for four specific circumstances in which the gaming machine threshold is reduced: ss 20(7); 25B(2); 27 and 37(4) (see [106] above). In each of these circumstances, the relevant provisions address the interrelationship between the relevant club or hotel's threshold and their number of GMEs (or permits). Each of these provisions ensures that the threshold is reduced so that it corresponds to either the number of GMEs held by the hotel or, in the case of s 37(4), the number of GMEs held and acquired within the specified period. This ensures that all further attempts to acquire GMEs and increase the threshold are channelled through s 34. It is also consistent with ss 14(2)−(3) of the Act which preclude the threshold being reduced below the number of GMEs held by the club or hotel.
5. In the face of these very specific provisions which ensure that a club or hotel's gaming machine threshold ultimately corresponds with the number of GMEs it holds, I do not accept there is any scope for construing ss 32(1) or (5) as conferring a free-standing power to decrease the threshold in some manner that is unconnected to any sale or transfer, end of lease or failure to acquire GMEs within a specified period. How such a decrease would relate to the number of GMEs held by the hotel or club and how any discrepancy between the two would be addressed is wholly unclear beyond the fact that the new threshold could not be less than the number of GMEs held by the hotel or club (s 14(2), (3)).
6. It follows that the cross‑appeal must be dismissed.
7. Lastly, I note one matter that was not the subject of argument. I have explained how the "obligation" to pay the community benefit requirement was given some force of law by the specification of a condition attaching to the LIA in accordance with s 36(7) of the Act. Other than raising a query as to how the Authority was able to extend time for the payment of the first instalment in June 2021, [105] no argument was directed to whether the Authority could exercise the power conferred by s 36(7) to "specify" conditions attaching to an LIA "from time to time", including by specifying new conditions that modified or replaced any ongoing obligation to pay a community benefit requirement which involves a cash payment. I express no view on that matter.

Proposed Orders

1. I propose the following orders: (1) Grant the applicant leave to appeal. (2) Direct the applicant file within 7 days a notice of appeal in the form of the draft notice of appeal dated 9 March 2023. (3) Grant the respondent leave to cross‑appeal. (4) Direct the respondent file within 7 days a notice of cross‑appeal in the form of the draft notice of cross‑appeal dated 26 May 2023. (5) Allow the appeal and: (a) Set aside the declaration and orders made by the primary judge on 9 December 2022; (b) In lieu thereof, order that the proceedings be dismissed. (6) Dismiss the cross‑appeal. (7) Order the respondent to pay the applicant's costs of the proceedings at first instance and in this Court.
2. BASTEN AJA: I agree with Beech-Jones JA.

Endnotes

1. 4 Boys (NSW) Pty Ltd v Independent Liquor and Gaming Authority [2022] NSWSC 1689 ("4 Boys").
2. 4 Boys at [98].
3. White Application Book ("White") 32A; Tab 3.
4. 4 Boys at [25].
5. White 254; Tab 18; 4 Boys at [37].
6. White 265.8; 4 Boys at [37].
7. White 322; Tab 19; 4 Boys at [38].
8. 4 Boys at [39].
9. White 328; Tab 20; 4 Boys at [39].
10. 4 Boys at [39].
11. White 384−385; Tab 22; 4 Boys at [40].
12. White 392; 4 Boys at [40].
13. 4 Boys at [40].
14. White 395. Note that it refers to "2023" but that appears to be a typo.
15. 4 Boys at [41].
16. 4 Boys at [41].
17. 4 Boys at [41].
18. White 402; Tab 27; 4 Boys at [42].
19. White 402; Tab 27; 4 Boys at [42].
20. White 444; Tab 30; 4 Boys at [44].
21. White 444 and 450; Tab 30.
22. White 453; Tab 30.
23. White 454; Tab 31; 4 Boys at [45].
24. White 331.
25. 4 Boys at [45].
26. White 469.
27. 4 Boys at [47].
28. 4 Boys at [48].
29. Tr 14/06/2023 p 4.
30. Tr 14/06/2023 p 31.1.
31. Tr 14/06/2023 p 40.
32. White 487.
33. White 496; Tab 37; 4 Boys at [51].
34. White 503.
35. White 504; Tab 41.
36. 4 Boys at [2].
37. 4 Boys at [56].
38. 4 Boys at [78].
39. 4 Boys at [79].
40. 4 Boys at [79].
41. 4 Boys at [84].
42. 4 Boys at [85].
43. 4 Boys at [87].
44. 4 Boys at [88]−[89].
45. 4 Boys at [91].
46. 4 Boys at [94].
47. Applicant's written submissions at [18]−[19].
48. Applicant's written submissions at [44].
49. Applicant's written submissions at [51] and [57].
50. Applicant's written submissions at [34]−[37].
51. Respondent's written submissions at [34]−[39].
52. Makasa at [45].
53. Makasa at [46].
54. Makasa at [47].
55. Makasa at [47].
56. Makasa at [55].
57. 4 Boys at [79].
58. Parkes at 335C.
59. Parkes at 335C.
60. Parkes at 335C.
61. Parkes at 335E and 335G.
62. Parkes at 335F.
63. Parkes at 335G per Glass JA with whom Samuels and Priestley JJA agreed.
64. Bhardwaj at [53].
65. Lawrie at 22.
66. Lawrie at 28.
67. Lawrie at 29.
68. Respondent's written submissions at [24].
69. Parkes at 335G.
70. MJD at [135].
71. MJD at [136].
72. MJD at [136].
73. MJD at [164].
74. MJD at [165].
75. MJD at [12].
76. MJD at [16]-[17].
77. MJD at [255].
78. MJD at [17].
79. MJD at [40]-[41].
80. MJD at [47].
81. MJD at [46]-[47].
82. MJD at [67].
83. MJD at [96].
84. MJD at [46].
85. MJD at [24]−[31] and [139]−[162] respectively.
86. MJD at [32].
87. MJD at [27] and [29].
88. MJD at [142].
89. Respondent's written submissions at [19].
90. MJD at [48]−[67] and [173]−[256] respectively.
91. MJD at [48].
92. MJD at [247].
93. MJD at [248].
94. Kurtovic at 218-219.
95. Kurtovic at 206.
96. Kurtovic at 195−196 per Neaves J, at 201 per Ryan J and at 217−218 per Gummow J.
97. MJD at [58].
98. MJD at [227].
99. MJD at [240].
100. MJD at [84].
101. MJD at [171].
102. 4 Boys at [78].
103. Respondent's written submissions at [17].
104. Tr 14/06/2023 p 39−40.
105. Tr 14/06/2023 p 34.40. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 September 2023