18 The first question to be determined is whether, as a matter of law, the Tribunal has jurisdiction in this proceeding. If it does, on a "strikeout" application the Tribunal then considers whether other matters of fact or law render the proceeding hopeless, unsustainable etc: Re Boulton; ex parte Construction Forestry Mining and Engineering Union (1998) 73 ALJR 129; Latif Al-Hakim v Monash University (Supreme Court of Victoria, Court of Appeal, No 3707 of 2003, unreported, 28 March 2003)
19 I consider that the Tribunal has jurisdiction in this proceeding, for a number of reasons.
20 The scheme of the Act is to contribute to harm minimisation by providing adequate controls over the supply and consumption of liquor and ensuring as a far as possible that the supply of liquor does not detract from the amenity of community life. As s.4 of the Act makes clear, another objective of the Act is to contribute to the responsible development of the liquor and licensed hospitality industries. The structure and content of the Act reflect the dual concerns of protection of the public and the responsible development of the industry. There is no common law right to a liquor licence, nor any statutory right to be granted (even on uncontested applications) or to retain a licence, where the Director or the Tribunal considers that the applicant or licensee is not a suitable person to hold or carry on business under the licence (see s.44(2) of the Act).
21 Section 53(2) of the Act makes it clear that where a licence is held by a body corporate, the directors of the body corporate are severally liable as licensee or permittee. The sub-section (as well as the rest of s.53) is specific in its intention not to relieve directors of a body corporate from the burden of Part 6 of the Act. The sub-section therefore renders directors such as Mr Buzzo subject to the process of an inquiry and the consequences that may flow from it. Accordingly, wherever the word "licensee" appears in s.90 of the Act, it refers to any one of the following: a natural person holding the licence, the body corporate holding the licence, or a director of a body corporate which holds the licence.
22 Part 6 of the Act concerns inquiries and disciplinary provisions. Such inquiries are in the nature of civil proceedings, and the essence of such inquiries is to consider whether a licensee is a suitable person to hold a licence in the light of their conduct. The provisions under this Part do not establish criminal offences under the Act, as the criminal offences are set out in Part 8. Section 90(1) of the Act should be interpreted in the light of the dual scheme of the Act. It is to be noted that Parliament did not regard the civil and criminal aspects of the legislation as mutually exclusive, as s.139 of the Act enables the Director to make a decision under the Act even if proceedings have been brought elsewhere.
23 Given the objectives of the Act, and the twin concerns of protection of the public and the responsible development of the industry, it is not surprising that s.90(1) lists first among the matters, which each alone might suggest unsuitability to be a licence-holder, those which demonstrate breaches of the Act itself, breaches of related Acts (such as the Food Act), and breaches of the criminal law likely to detract from the efficacy of the Act (such as bribery of a member of the police force, fraud or dishonesty in obtaining a licence, and so on).
24 Sub-section 90(1)(f) is a little different in this regard, as there is no link to the Act or other related legislation. Presumably, Parliament intended that such convictions could, without more, given their inherent seriousness, enliven the concern of the licensing inspector. This intention is clearly expressed by s. 91(1)(a), which requires the Tribunal to make orders, if satisfied that s.90(1)(f) applies, either cancelling, suspending or endorsing the licence. This is contrasted with s. 91(1)(b), which gives the Tribunal the discretion to make such orders, as well as other, less onerous orders, such as the imposition of a fine or varying the licence, where satisfied that any of the other grounds in s.90(1) are made out.
25 It may well be that the reference in s.90(1)(f) to "convictions" means that sentencing dispositions not involving convictions cannot be considered as falling within s.90(1)(f). This is consistent with the requirement in s.91(1)(a) that the Tribunal make orders cancelling, suspending or varying the licence where satisfied that s.90(1)(f) applies. The question is whether the balance of criminal conduct not attracting the conviction required to satisfy sub-section 90(1)(f), can be considered by the licensing inspector under sub-section 90(1)(k) as putting in issue the suitability of the offender to hold a licence. Mrs Morrish submitted that it cannot.
26 Sub-sections 90(1)(ha)-(j) refer to conduct which is clearly not criminal in nature, but which relates to the manner in which a licence was obtained, any alteration of the premises after the grant of the licence, and with any conduct of the business in a manner detracting from the amenity of the area in which the premises are situated
27 I consider that consideration of s.90 in the light of the consequences spelled out in s.91, reinforces the conclusion that s.90(1)(k) can include consideration of unsuitability arising from conduct which, while criminal, did not attract a conviction, as well as any other relevant conduct.
28 Viewed in this way, sub-section 90(1)(a)-(j) is merely a list of a number of matters, each of which may alone prompt consideration of unsuitability, thereby grounding an application for inquiry by the licensing inspector, the Director, the Chief Commissioner or the Council, while sub-section 90(1)(k) provides a general basis for the initiation of an application for inquiry -that of concern about suitability arising from any other conduct or outcome not mentioned in the previous sub-sections. The word "otherwise" in sub-s. 90(1)(k) attaches to each of the previous sub-sections (a) to (j), and enables the licensing inspector to consider any conduct or convictions not mentioned in sub-sections 90(1)(a)-(j), including, for example, conduct which attracted criminal proceedings, but not a conviction, and conduct which raises the issue of suitability even though no criminal charges were laid.
29 The language of s.90(1) is clear, and its sub-sections are linked by the word "or", indicating that each sub-section is to be considered disjunctively or independently. Moreover, the references in sub-sections 90(1)(ba), (c), (d), (e) and (h) to "has been convicted" demonstrate that sub-s.90(1)(f) does not cover the field of criminal conduct, as was submitted by Mrs Morrish.
30 I do not accept that the narrow construction of s.90(1) contended for by Mrs Morrish is consistent with s. 91(1)(a) and (b), or with the objectives and scheme of the Act, which are, in my view, to give the licensing inspector the widest possible discretion to consider the conduct of a licensee and, regardless of the nature of that conduct, where satisfied that such conduct raises the question of the licensee's suitability to hold a licence, to bring the matter to the Tribunal for consideration.
31 The authorities counsel extreme caution in reliance upon the expressio unius est exclusio alterius rule as one which produces a result in itself: see, for example: Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 106 ALR 11 at 16-17; Riley v Commonwealth [1985] HCA 82; (1985) 62 ALR 497 at 505.
32 For these reasons, I do not consider that the expressio unius est exclusio alterius rule applies in the manner contended for by Mrs Morrish so as to deprive the Tribunal of jurisdiction to hold the inquiry sought by the applicant.
33 I consider that a plain reading of s.90(1) leads to the conclusion that the Tribunal has jurisdiction to entertain an application for an inquiry by the licensing inspector if the licensing inspector believes that as a result of his conduct on 3 February 2004, Mr John Buzzo, who is severally liable along with the company under the Act, is not a suitable person to be a licensee or a director of the licensee.
34 I therefore find that the Tribunal has jurisdiction to hold the inquiry sought by the amended Application for Inquiry dated 23 June 2005.