(v) Consideration of Ground 4
182 The provisions referred to in the preceding paragraph provide for a range of roles the Director holds in relation to the performance of functions of significance. They include licence applications, the power of the Director to impose conditions on licenses, the power to pursue regulatory controls and procedures in inquiries that can lead to disciplinary complaints and disciplinary action.
183 The provisions of s.138 of the Act confer upon the Director, as the relevant statutory office holder, significant powers to carry out investigations and inquiries into disciplinary complaints made under Part 1, inter alia, in relation to licensees. Section 138(2) provides for the Commissioner of Police to inquire into, and report to, the Director on such matters as the Director may request concerning a licensee (and specified others). The Director also has compulsory powers to acquire information under s.138(3).
184 It is not difficult to envisage a situation whereby the Director in any one period of time may be investigating or requiring an investigation of licensed premises under Part 9 of the Act, whilst also being required to deal with a disturbance complaint concerning the same premises under Part 5. The scheme of the Act is such that the Director is both expected and required to carry out all relevant functions, including the assessment of disturbance complaints and, if considered appropriate, the convening and chairing of a conference held under Division 3. That, of course, is the position in the present case.
185 In Greyhound Racing NSW (supra), Basten JA (with whom Beazley and Hodgson JJA agreed) stated:-
"111. His Honour commenced his consideration of this issue with a statement of principles concerning apprehended bias under the general law ... However, the proper starting point must be the statutory scheme under which the Appellant operates. It is that scheme, rather than any principle of necessity, on which the Appellant relied to justify the procedures adopted in relation to the allocation of dates for race meetings, in exercise of its function under s 9(2)(d) of the Greyhound Racing Act."
186 His Honour proceeded to examine the key features of the legislative scheme in that case and in that respect observed:-
"113. Secondly, it is clear that the majority of the functions of the Appellant involve decisions relating to specific greyhound racing clubs, including the exercise of functions with respect to registration of greyhound racing clubs, distribution of money received from TAB Limited and the allocation of dates for greyhound races. It is self-evident that decisions made in exercise of these functions will affect the interests of individual clubs and, in relation to the distribution of money and the allocation of dates, could affect the interests of all clubs. It is at least unlikely that the legislature intended that members nominated as representatives of sections of the industry, and likely to have associations with individual participants within the industry, would thereby be precluded from fulfilling their statutory responsibilities as members of the Appellant."
187 Later in the judgment, his Honour also observed:-
"117. As with any other general law principle, not subject to constitutional constraints on the legislature, a statutory provision may override its effect. Indeed, the very content of natural justice, in a statutory context, is well understood as depending upon the statutory rules: see, eg, Kioa v West, 159 CLR at 584-585 (Mason J) and at 609 (Brennan J) …
118. The general law principles have frequently been expounded in cases involving courts or quasi-judicial tribunals. However, those principles should not be translated, without adaptation, to the circumstances of statutory administrative decision-makers: see Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [4] (Gleeson CJ, McHugh, Gummow and Hayne JJ), a passage quoted with approval by Gleeson CJ and Gummow J in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [99] …
119. In my view the statutory scheme is inconsistent with the conclusion that a person would, in the circumstances of the present case, have a reasonable apprehension of bias in relation to a decision with respect to the allocation of racing dates which discriminated between clubs, and allocated dates in the Hunter region to two clubs who had officers who were members of the Appellant, whereas the club which missed out, namely Cessnock, did not. There are a number of reasons for this conclusion."
188 His Honour then proceeded to identify the particular reasons referred to in paragraph [119] of the judgment.
189 The short answer to what might be referred to as the "accuser/decision- maker" point is that there is no basis for impugning Mr Gardner's role in relation to the performance of his statutory functions in the circumstances of the present case where it has not been suggested that he will be involved in determining whether or not action should be taken under s.81 against the plaintiff licensees.
190 The performance by the Director of his statutory role and functions, as discussed above, arises under a broad-ranging statutory scheme which requires the Director to deal with disturbance complaints, either personally or by way of his or her delegate. I do not consider, in the particular circumstances of the present case, that Mr Gardner's or Mr Freeman's involvement in the investigations, inquiries and processes leading to the charges referred to in the schedule set out in paragraph [162] have been shown to be incompatible with the performance of the Director's statutory responsibilities arising under Division 3. The observations of Basten JA in Greyhound Racing (supra) which indicates that there are circumstances in which a reasonable apprehension of bias will not arise where a public officer performs relevant statutory duties and powers are, I believe, apposite to the present case. Those observations are, in my opinion, applicable to Ground 4.
191 The evidence in the proceedings is that the relevant decision-maker under s.81 will be the present Director, Ms Mills, not Mr Freeman. On the analysis of Division 3, the only decision that can affect substantive rights on a disturbance complaint is one taken under s.81.