Queensland Civil and Administrative Tribunal Act 2009 sections 19, 20 and 24.

Liquorland (Qld) Pty Ltd ACN079 861 626 was represented by Mr L Kelly SC with Mr McCafferty of Counsel instructed by Minter Ellison

Queensland Gaming Commission was represented by Mr Flanagan SC and Mr Cooper of Counsel

[1] Liquorland (Qld) Pty Ltd ("Liquorland") is the operator of the Redcliffe Tavern, Anzac Parade, Redcliffe. The tavern trades under a commercial liquor licence and has the usual facilities that are associated with a tavern or hotel. These include bar areas for the serving of beverages, a bistro and outdoor dining areas as well as a TAB and Keno facilities. It has a designated outdoor smoking area and a proposed gaming room for electronic gaming machines.

[2] Adjacent to the tavern, there is a large retail liquor outlet, Choice. Nearby there is also a shopping complex which includes a major retailer, Woolworths. Although the tavern is visually and physically separated from the shopping centre, they are in proximity to each other but access to the tavern cannot be gained directly from the shopping centre. This separation from a public shopping centre is desirable.

[3] On 30 December 2008, Liquorland applied to the Office of Liquor, Gaming and Racing ("the OLGR") for the grant of a gaming machine licence to operate 40 gaming machines pursuant to the provisions of the Gaming Machine Act 1991 ("the Act").

[4] The application was accompanied by the information required by Part 3 Division 1 of the Act. Upon consideration of that material, the Acting Executive Director of the OLGR made a recommendation to the Queensland Gaming Commission ("the Commission") that the application for 40 gaming machine licences to be operated between certain hours be approved.

[5] The Commission considered the application and the recommendation and on 27 November 2009 wrote to the applicant's solicitors advising of its decision to refuse to grant the application and provided a statement of reasons.

[6] There were further submissions and information provided to the Commission but on each occasion, the decision to refuse to grant the application was affirmed. Those further decisions were made on 7 April 2010, 25 August 2010 and 28 September 2010.

[7] On 21 December 2009, Liquorland applied for a review of the respondent's decision of 27 October 2009 and by a further application, filed with the Tribunal's leave at the commencement of the hearing, sought to review each of the decisions.

[8] It is contended by the applicant that this Tribunal must make a decision with respect to each decision of the Commission but in considering the matter afresh as we are required to do on all of the information and evidence put before the Tribunal, it is the Commission's decision of 28 September 2010 that is relevant. Since making the initial decision, and although the Tribunal became seized of the licence application through the review process, the Commission was not prohibited from making fresh decisions which, as it transpired, merely affirmed and then reaffirmed the original refusal on the basis of the existing and fresh evidence. Each fresh decision to refuse superseded the earlier refusal decision, so that as at the date of the Tribunal hearing the only operative refusal decision was the decision of 28 September 2010.

[9] The Tribunal's decision is to set aside that decision and substitute a decision granting the licence sought for the reasons set out below.

[10] We are confident that the submissions of both parties have properly articulated the review function of the Tribunal pursuant to Chapter 2, Part 1, Division 3 of the Queensland Civil and Administrative Tribunal Act 2009 ("the QCAT Act"). This is a review on the merits as distinct to what might be referred to as "judicial review" where the basis of the review is much more limited. The legislative framework for the review is contained in sections 31 of the Act and 20 of the QCAT Act.

[11] Section 31 of the Act provides:

Tribunal to decide review on evidence before the chief executive or commission

_(1) In a proceeding for a review by the tribunal of a decision of the chief executive or commission, the tribunal must - _

(a) hear and decide the review of the decision by way of a reconsideration of the evidence before the chief executive or commission when the decision was made; and

(b) decide the review of the decision in accordance with the same law that applied to the making of the original decision.

_(2) If the tribunal decides, under the QCAT Act, section 139, that a proceeding for a review of a decision should be reopened, the issues in the proceeding that are reheard, must be - _

(a) heard and decided by way of a reconsideration of the evidence given in the proceeding for the review of the decision; and

(b) decided in accordance with the same law that applied to the making of the original decision.

(3) In this section - original decision means the decision of the chief executive or commission to which the proceeding for the review relates.

[12] That section then must be read in combination with section 20 of the QCAT Act which provides:-

(1) The purpose of the review of a reviewable decision is to produce the correct and preferable decision.

(2) The tribunal must hear and decide a review of a reviewable decision by way of a fresh hearing on the merits.

[13] Because it is a hearing de novo this Tribunal is entitled, in fact obliged, to consider all of the evidence that has been put before the Commission including the evidence resulting in its last decision of 28 September 2010. The nature of QCAT's review function was considered by the Deputy President in Kehl v Board of Engineers[1] where she said:

"The Tribunal's role in exercising review jurisdiction is to reconsider the original decision and to make the correct and preferable decision. The review is conducted on the merits, by way of a fresh hearing. Unlike judicial review, the Tribunal's function is to review the decision - not the process by which it was arrived at, nor the reasons given for making it. Accordingly, the Tribunal is not required to identify an error in either the process or the reasoning that led to the decision being made. There is no presumption the original decision is correct".

[14] Not only do we have to consider the factual evidence[2] we also have to consider the requirements of the Act and the matters the applicant has to address in the application for a gaming machine licence and that relevant to a merits review.

[15] It is best to start with the objects of the Act which is to ensure that the "community as a whole benefit from gaming machine gambling"[3]. The Act sets out how those benefits can be achieved:-

(2) the balance is achieved by allowing gaming machine gambling subject to a system of regulation and control designed to protect players and the community through:-

(a) ensuring the integrity and fairness of games; and

(b) ensuring the probity of those involved in the conduct of gaming machine gambling; and

(c) minimising the potential for harm from gaming machine gambling.

[16] This review proceeding, as was the consideration by the Commission, is not concerned with subsections (a) or (b). There was no concern raised either by the Commission or the OLGR as to the probity of the applicant in so far as it will be involved with the conduct of gaming machine gambling. The question to be addressed is whether adding 40 more gaming machines to the Redcliffe community will potentially cause harm to the residents in that community.

[17] Once the application has been lodged, and the OLGR is satisfied that all of the requirements under the Guidelines have been met, the Chief Executive then makes a recommendation to the Commission. It is then for the Commission to decide whether a gaming machine licence ought be granted pursuant to section 55 which provides:-

55 Gaming lawful and does not constitute nuisance

(a) the commission may, having regard to any recommendation of the chief executive and to such other information or material as the commission considers is relevant, grant or refuse to grant gaming machine licences; and

(b) gaming and the conduct of gaming on licensed premises under this Act is lawful.

_(2) Without limiting subsection (1)(a), the other information or material the commission may have regard to includes - _

(a) information or material about social and community issues; and

(b) relevant guidelines issued by the commission under section 17.

(3) Gaming and the conduct of gaming on licensed premises under this Act and any other Act, does not in itself constitute a public or private nuisance.

[18] Importantly, for the purposes of this application, the Commission, as does this Tribunal, must give consideration to the information or material about social or community issues and compliance with the Guidelines issued by the Commission pursuant to section 17.

[19] Sensibly, the Commission will also have regard to the recommendation of the Chief Executive although it is not bound to accept that recommendation. This Tribunal is not bound to accept that recommendation and even though the word "may" is used in the subsection, it would, in our view, be irresponsible not to have regard to it when the recommendation ensures that the applicant has complied with all of the mandatory requirements of the Act, consulted community groups, sought a divergence of views, considered the demographic of the area and the impact of additional machines in the local community area.

[20] There are some matters that the Tribunal must take into account as this is an application of "significant community impact".[4] The application must be accompanied by a community impact statement and a statement of responsible gambling initiatives for the licensed premises or the proposed licensed premises"[5]. The application must be advertised[6] and the Chief Executive must invite representations from the relevant local authority or from other entities which, in the Chief Executive's opinion, have a proper interest in the matter[7].

[21] Redcliffe is located on a peninsula adjacent to Moreton Bay. It has a combination of permanent residents, some holiday makers and itinerant residents. The Local Community Area (LCA) has been defined as follows:-

"The Research and Statistics Unit has defined the local community area (LCA) for the tavern as a combination of 38 Census Collection District from Redcliffe (C) Local Government Area (LGA). The socio-economic characteristics of this LCA will be assessed against the Redcliffe (C) LGA and the South East Queensland Benchmark (B) (SEQB). The Applicant has used the Redcliffe (C) LGA as their LCA.

At the time of the 2006 Census, the population of the LCA was 17,878 persons. Of the LCA the population, 79% (or 14,130 people) were aged 18 years or over. This proportion is higher than the LGA (78.1%) and the SEQB (75.8%).

The LCA has a significantly higher level of gaming machine accessibility than the Redcliffe (C) LGA and the SEQB. In particular, the LCA contains 369 operational EGM's per 10,000 adults, compared to 175 for the LGA and 118 for SEQB. The region also has a higher number of sites per 10,000 adults with an average of 5.2 sites compared to 3.2 for the LGA and 3.1 for the SEQB.

The LCA exhibits a significantly higher level of gaming machine expenditure than the Redcliffe (C) LGA and the SEQB. For example, the LCA's expenditure for the last 12 months is equivalent to $2,204 per adult, compared to 916 for the LGA and $560 for the SEQB."[8]

[22] The above provides a snapshot of the area in question and forms part of the basis for the reasoning of the Commission to refuse to permit another "site" from which operating gaming machines can be operated. The use of the word site as opposed to the number of machines is deliberate in that there seems, throughout the evidence opposition to another site rather than additional gaming machines.

[23] As mentioned there is a tourist element to the Redcliffe LGA because of its locality on Moreton Bay. It is uncontested that the area does "attract substantial numbers of week-end visitors from Brisbane and outside the regions"[9]. It is also accepted that if the proposal was to go ahead, it would allow for an improved range of facilities to be available to those tourists. It seems about 1.2 million tourists travel to Redcliffe on a yearly basis but mostly they are day trippers, and family units. It is uncertain what proportion of these visitors would access hotel facilities including using gaming machines.

[24] It was identified that in the Redcliffe LGA there are 178 problem gamblers and 641 persons at risk[10]. The Community Impact Statement ("CIS") prepared by the applicant[11] notes there are 760 operational machines within the Redcliffe LCA. Of those 760 machines[12] 170 machines are located at the Redcliffe RSL and 280 machines are at the Redcliffe Leagues Club. There are other smaller groupings such as the Bramble Bay Bowls Club which has 46, the Captain Cook Tavern which has 40 and the balance are spread between nine other venues.

[25] The CIS also sought the views of the local authority being the Moreton Bay Regional Council. Councillor Frawley expressed concerns about further gaming machines being permitted in the area. Her concerns related to the high volume of unemployment in the area, lower than average income, high population of retirees and evidence of financial and or mortgage stress. There was a large proportion of public housing. The local community were people who were "socially at risk" with addictive personalities, those under financial stress and a proportion of people with marital problems. There was a body of elderly people who were vulnerable due to loneliness. The views expressed by Councillor Frawley were supported by the Council's own Community Impact Statement which was compiled with the assistance of Interlock, an organisation to assist problem gamblers. It also identified Redcliffe as being at high risk of gambling behaviour.

[26] Interlock, as one of the community groups consulted, has provided an independent response in the CIS in which its views are reiterated that additional opportunities for gambling in Redcliffe would be detrimental to the community and have a negative impact on businesses. Further, that Gambling Help, its support arm, could not support another gaming venue as gaming machines are the most problematic type of gambling in the community generally. Interlock also expressed concern about the growing public sentiment against gambling. These comments, on behalf of Interlock, were as a result of a meeting with Ms Sudell who was the Gambling Help Caboolture and Redcliffe peninsula's Community Educator. This organisation provides assistance to problem gamblers in that area.

[27] As part of the consultation process, the applicant, through CIS also sought response from other community organisations including A Peace Christian Community, Help - Force, Calgary Light House Northside Branch Fellowship Church, Redcliffe Community Association, and the Salvation Army. All of these organisations expressed negative views about the proposed application for more licenses.[13]

[28] Mr Kelly SC, for the applicant, made the obvious point, that negative responses from these groups would have been quite predictable because they obviously have genuine concerns for people who find themselves financially stressed as a result of either gambling or addiction or who prefer it as a leisure activity. As an observation, it seems that whether or not the licence applied for is granted, this group will be able to continue to access gaming machines on the Redcliffe peninsula.

[29] The community group consultation and the response from the Local Authority meets the mandatory requirements of section 55B of the Act and the statement provided addresses all those issues. In fact, it is not contested that the applicant has complied with all of the provisions of the Act and it is essentially a question of what weight is to be given to the information contained within it.

[30] Also contained in the CIS is a letter setting out the response from the Moreton Bay Regional Council to OLGR. The basis for their opposition is as follows:-

1. The granting of the application would attract from a sense of community in the local community area by putting some families at risk to gambling;

2. A granting of the application would have an unacceptable effect on the social fabric of the Redcliffe community by providing major opportunity to gamble.

[31] Although the respondent contends that the Council's opinion is based on the studies from Interlock as referred to above and the statements of Councillor Frawley, which we accept at face value, it does not provide any particulars of how an additional 40 machines would have the adverse effect contended for in a community where there was already some 600 machines, 440 of which are located in 2 venues which presumably are highly patronised.

[32] A similar approach was taken by the State Member for Redcliffe who, in a letter to the respondent said:-

"I am not in favour of another gaming machine licence in this area.

This tavern is in the Redcliffe CBD precinct. Less than 100nm on each side of it, on the waterfront, we have the Bayview and the Ambassador taverns which both have gaming machines and less than 500m north on the Redcliffe Tavern is the Redcliffe RSL.

It is my opinion that there is sufficient provision made for gaming in the Redcliffe CBD area and there are several other premises around the Peninsula where gaming machines are available including three taverns and the Dolphins Leagues Club."

[33] This response is generic in nature and only relates to the number of machines in the LCA and does not address any detrimental impact it may have on the local population. This objection must be also considered in circumstances where the net increase in the LCA will be 20 machines and not 40.

[34] In compliance with the requirements of the Act, the applicant undertook both business and residential surveys. The residential surveys consisted of a telephone survey of 100 residents in the suburbs of Redcliffe, Kippa Ring, Clontarf, Woody Point and Rothwell. A questionnaire was prepared for interviewers[14] which set out the specific questions to be asked. They were of a very general nature relating to whether the proposed gaming machines would bring any benefits or disadvantages to the individual being surveyed, and the local community. Of those surveyed, 82% did not consider it would be advantageous to the local community.

[35] A synopsis of the survey is conveniently set out in the CIS[15] and in respect of the 82%, it is stated:-

"82% of the responses were concerned about the impact of the proposal on the local community, the majority raising gambling specific issues though not necessarily related to the proposal, but overall perceptions of gaming machines and gambling generally."

[36] The vagueness of this survey is troublesome in circumstances where the Commission in rejecting the application placed "significant weight on the survey evidence". Mr Flanagan SC also placed significant weight on this evidence in his submission to urge the Tribunal that, given that 82% of residents said the proposal would disadvantage the community, the decision of the Commission should be upheld. Firstly, the questions, as indicated, were not community specific, did not relate to the location of the gaming machines and knowledge that is, the existence of other gaming machine outlets in the area was not the basis of the opinions expressed.

[37] Secondly, it seems to us, that the survey did not properly explore, nor does it represent specific community concerns other than the general perception about gaming machines and problem gambling.

[38] In a similar vein the business community within 500 metres of the site were surveyed with 58% indicating that the proposal would result in no change to the community. Again there were expressions of concern about the overall impact of gambling generally but not site specific.

[39] Although we are not here to be critical of the decisions of the Commission, if one properly analyses the content of the CIS, and the considered recommendations made by the Chief Executive, it is difficult to understand why the Commission had placed significant weight on the results of the residential survey when one has regard to the specifics of that survey.

[40] There is one other matter which is relevant. The Tribunal, in our view, is entitled to give less weight to the expressed community concerns about the proliferation of gaming machines in the local community as a result of a reduction of the number of gaming machines operating at the Bayview Hotel in Redcliffe as at 31 August 2010. This application would result in a net increase of 20 approved gaming machines in the Redcliffe/ Scarborough region.

[41] In a similar vein, during the advertising period only four letters of objection were lodged out of a community of some 17,000 plus people. Four letters of objection do not, in our view, reflect the community views on this proposal.

[42] We have already commented on the consultation with community organisations but the views expressed are not necessarily persuasive for the reasons stated.

[43] It was obvious that the Commission had reservations about the residential survey because they sought and relied on other information when considering the applicant's further submissions concerning this issue. The Commission had regard to the community response to applications in other areas including applications by the Agnes Water Tavern Pty Ltd, the RSL Services and Citizens Club Nambour, Stanthorpe Sub Branch Services RSL Services Club Inc and Cagey Shark Hotel at Windaroo. We accept the submissions of Mr Kelly SC that reference to these other applications is also of little assistance because when one has regard to the particulars provided by the respondent it is readily apparent that even though the overall disapproval rate is similar, each application must be considered having regard to the peculiar demographic of the locality where the gaming machines will be operating.

[44] The end result is that we are not satisfied, as submitted by the respondent, that the evidence supports a finding that there is one recurring theme in Redcliffe, that as the community as a whole, does not want another gaming machine site.

[45] There seems little dispute now that the applicant satisfies the requirement to establish and implement responsible gaming systems to assist problem gamblers. The applicant has, through the affidavit of Miss Louise Cox comprehensively addressed these issues. Ms Cox is the Gaming Compliance Officer for Spirit Hotels and part of her responsibility is to liaise with local communities to assist those with gambling problems. She has established a responsible gaming network group in the Redcliffe - Caboolture area and has made contact with Ms Sudell of Interlock and will continue to liaise with her to implement the program. We are satisfied that the applicant has satisfied this requirement and note that this has not been specifically challenged by the respondent.

[46] Another matter of some relevance but not critical to this determination is the economic impact the granting of the licence will have on the local community. There will be an increase in employment opportunities together with an increase of the supply of goods and services by local businesses.[16]

[47] We consider that the Chief Executive has properly addressed all of the relevant issues when making the recommendation to the Commission. Having considered all of the evidence relied on by the Chief Executive, we not only agree with the recommendation made, we are of the view it is entirely consistent with the evidence put before this Tribunal.

[48] It was submitted if the Tribunal did come to the view that the gaming machine licence should be granted then section 59(2) of the Act requires the tribunal to refer the matter back to the Commission for further consideration about the number of gaming machine licences and the hours of trade. The section provides:-

• (1) This section applies if the commission decides to grant a gaming machine licence.

• (2) The commission must-

  • (a) if the application relates to a single premises only-
    • (i) fix the number of gaming machines that may, for the licence, be installed on the premises; and
    • (ii) fix the hours of the gaming for the premises; and

[49] The Commission, when delivering its various statements of reason never took issue with the number of machines applied for nor the hours of operation. Further there was no contest as to these matters before this Tribunal. The only issue identified was whether another gaming machine licence should issue to the applicant in respect of the operation of the Redcliffe Tavern, or in other words whether another gaming machine site should be permitted in Redcliffe. There is no, nor has there been, any suggestion that if the Commission had granted the licence, it would have done so on a more limited basis.

[50] As Liquorland's application was for a gaming machine licence for 40 machines to operate between the nominated trading hours and it was this application that was recommended to the Commission by the Chief Executive and refused, it is that decision this Tribunal is reviewing. We consider that in standing of the shoes of the Commission on the review application the Tribunal is similarly entitled to consider the matters set out in section 59(2) of the Act.

[51] In addition, section 24(1)(b) of the QCAT Act authorises the Tribunal, when reviewing a reviewable decision to, inter alia, set aside the decision and substitute its own decision. Consistent with the objects of the QCAT Act to ensure that matters are dealt with in a way that is accessible, fair, just, economical, informal and quick, we see little utility in the circumstances in referring the matter back to the Commission for further consideration.

[52] The orders we propose are that

1. The respondent's decision of 28 September 2010 is set aside.

2. The applicant's application for a gaming machine licence for the Redcliffe Tavern be granted for 40 gaming machines for the trading hours of between 10am - 12:30am Sunday to Thursday and 10am - 1:30am Friday and Saturday.

[1] (2010) QCATA 58.

[2] Contained in 4 volumes and paginated and will be referred to as, eg, 1/265.

[3] Gaming Machine Act section 1A.

[4] Gaming Machine Act section 55A.

[5] Gaming Machine Act section 55B.

[6] Gaming Machine Act section 55C.

[7] Gaming Machine Act section 55F.

[8] Report on the community impact statement (research and statistics unit) 12 March 2010 Volume 2 Page 872 at 874.

[9] RSU Volume 2 Page 889.