Reasons with respect to grounds 1-8
58Before addressing the particular grounds, I propose to make some general observations about the Reasons. First, the Authority has no obligation to give reasons for its decisions. In these circumstances, I consider that the concept of "sufficiency of reasons" which is apposite where reasons are required, does not apply. The Authority chose, however, to give reasons for its Decision in the present case in response to the plaintiff's request. The way in which the Authority intended its Reasons to be read appears from [7] of the Reasons:
"The Authority's decision was notified to the parties in a short email from the Authority's General Counsel dated 2 July 2013. Liquor applications comprise a high volume aspect of the Authority's jurisdiction and, no doubt for this reason, the Act does not require the Authority to provide reasons for its decisions. However, the Authority has indicated in Authority guideline No 7 that it will consider providing reasons, on a case by case basis, subject to available resources. On this occasion, without purporting to repeat all of the arguments and contentions made among all of the submissions that were before the Authority at the time of its decision, this letter provides a summary of the reasons for the Authority's decision."
59The effect of s 69(4) of the Supreme Court Act is that the reasons form part of the record. Therefore if they reveal error, there is an error on the face of the record and this Court's jurisdiction to grant relief under s 69 of the Supreme Court Act is enlivened. However, the Reasons ought be read fairly as a whole. Allowance ought be made not only for the fact that the Decision is a collegiate one, but also for the fact that they are expressed to be a summary.
60I do not accept the plaintiff's argument that the Authority misstated the law when it expressed the "test" in the passage cited above from [16] of the Reasons. In my view the words selected by the Authority to express the applicable law do not reveal error. It may generally be accepted that a decision-maker who is required to make a decision under a statute is bound to take into account the public interest. However the definition of what the public interest entails in a particular case is a matter for the decision maker, unless the statute makes express or implicit provision otherwise. As Hodgson JA said Minister for Planning v Walker [2008] NSWCA 224; 161 LGER 423 at [39], Campbell and Bell JJ agreeing:
"In my opinion, it is a condition of validity that the Minister consider the public interest. Although that requirement is not explicitly stated in the EPA Act, it is so central to the task of a Minister fulfilling functions under a statute like the EPA Act that, in my opinion, it goes without saying. Any attempt to exercise powers in which a Minister did not have regard to the public interest could not, in my opinion, be a bona fide attempt to exercise his or her powers, and so would not even pass the Hickman test."
61In so far as the plaintiff submitted that the Act confined the consideration of the "public interest" to the object in s 3(1)(b) of the Act, I reject the submission.
62The statutory words that confer the relevant discretion determine whether a decision maker is required to take into account a particular matter: Minister for Aboriginal Affairs v Peko-Wallsend Ltd at 39-40 per Mason J. The statute may do so in express terms or by necessary implication. The objects of the Act, while relevant considerations, are not generally, without more, required to be taken into account: Minister for Planning v Walker at [55]. However, the wording of s 3(2) of the Act requires the Authority to "have due regard to" the matters in s 3(2)(a), (b) and (c) in order to secure the objects of the Act. These words, in my view, evince a statutory intention to require the Authority to take at least those matters in s 3(2) into account with respect to the decision to vary an ETA. Having regard to the stated connection between the objects in s 3(1) and the matters to which due regard must be had in s 3(2), I consider that the Authority is also obliged to take into account the matters in s 3(1).
63I do not, however, regard the passage set out above from the Reasons in which the Authority expressed itself in terms of the "test" to be applied as saying (or meaning) other than that the objects in s 3 are required to be taken into account when deciding whether the vary the ETA. This is correct as a matter of law. I do not accept Mr Robinson's submission that these words amounted to no more than an "incantation".
64In [14] of its Reasons the Authority said:
"Section 51 does not specify any statutory criteria or test that structures the Authority's exercise of its power to vary or revoke an authorisation, although it is apparent that the Authority may receive guidance from, amongst other things, the statutory objects prescribed by s 3(1) of the Act and must have regard to the statutory considerations prescribed by s 3(2) of the Act."
65Paragraph [14] is expressed slightly differently from [16]. However, it shows, in my view, that, if there is any ambiguity in [16], the Authority correctly appreciated the breadth of its discretion in s 51 as well as the matters to which it was obliged to have regard in s 3.
66The Authority, having stated the law correctly, ought be taken to have applied it: Minister Administering the Crown Lands Act v Bathurst Local Aboriginal Land Council [2009] NSWCA 138 at [204] per Basten JA.
67In any event, I consider that the Reasons, read as a whole, show that the Authority did take into account the objects in s 3. The Reasons contain several references to the objects (see for example [14]-[16], [44], [46] and [118]) and to the evidence germane to them. There is an obvious tension between the objects. However, it is a matter for the Authority to give such weight to each of them as it thinks fit, in light of the evidence.
68In [118] of its reasons the Authority said:
In making this decision the Authority has had regard to all of the objects and statutory considerations prescribed by section 3 of the Act, and has given weight to section 3(2)(a) of the Act, the need to minimise harm associated with the misuse and abuse of liquor (including harm arising from violence and other anti-social behaviour), and section 3(2) of the Act, the need to ensure that the sale, supply and consumption of liquor contributes to, and does not detract from, the amenity of the community.
69Although s 49(8) of the Act restricts the Authority's power to grant an ETA by requiring that it be satisfied of the matters in (a) and (b), it does not, in my view, follow that the Authority may not vary an ETA (by reducing or revoking the ETA) unless it is satisfied of the contrary of (a) or (b). Express words would be required to achieve such a result. Section 51 contains no such express words. To the extent to which the plaintiff submitted that (a) and (b) from s 49(8) are imported into s 51, I reject the submission.
70The plaintiff also contended that the matters in s 49(8), though not a constraint on the exercise of power under s 51, were nonetheless relevant factors. So much may be accepted. But it does not follow that the Authority, whose reasons reveal that the community impact was taken into account, was in error in deciding that, notwithstanding that it was the Police rather than the rest of the community which constituted the main, if not the sole, proponent of the variation to the ETA, the ETA ought nonetheless be varied. Indeed, I consider that, to the extent to which the Authority was bound to take into account the community impact of the ETA, it did so, as is revealed by [93] of the Reasons, which read as follows:
"The Authority is satisfied that Police have demonstrated a real and persistent problem with patrons of the venue "externalising" alcohol related anti-social conduct upon the local community, particularly the neighbourhood of the Byron Bay CBD. Patrons of the Premises are frequently engaging in alcohol related disturbance and other anti-social conduct, to an extent that requires Police intervention, on Monday mornings during and immediately after the extended trading period. This misconduct is occurring outside and near the entry point to the Premises or, frequently, in nearby streets within the Byron Bay CBD."
71In Lafu v Minister for Immigration the AAT, which had a statutory obligation to give reasons, had not explained how its findings of fact were germane to the issue of general deterrence. I do not consider that any such failure has been established in the instant case. It is important that the allegation that a decision-maker has not given proper, genuine or realistic consideration to various matters, not lead a court, which is exercising either jurisdiction under s 69 of the Supreme Court Act or the inherent jurisdiction to correct jurisdictional error, to identify and remedy jurisdictional error into merits review. Merits review is no part of this Court's function in applications such as the present: see Attorney-General for the State of New South Wales v Quin [1990] HCA 21; 170 CLR 1 at 37-38.
72I do not accept Mr Robinson's submission that the Authority failed to take into account identified factual matters which he contended were "relevant considerations" and that it had failed to afford proper, genuine and realistic consideration to other identified matters of fact. The plaintiff did not attempt to explain why these matters were required to be taken into account, as a matter of statutory construction, in order to make a valid decision. Indeed, the level of particularity at which these matters were pitched tends to militate against a requirement that they be taken into account as a condition of validity: Foster v Minister for Customs [2000] HCA 38; 200 CLR 442 per Gleeson CJ and McHugh J; Minister for Planning v Walker at [35] per Hodgson JA.