(b) The Chairman's personal views
49What was contained in Mr Sidoti's speech was very unfortunate for two reasons. First, it commented on a decision by the Authority made immediately prior to the speech and during a period in which a review was permitted by an application to the Supreme Court (this present decision), as well as referring to two other recent decisions. Secondly, Mr Sidoti publicly disclosed personal views that he held that related directly to his statutory function.
50Persons who sit on tribunals or are members of a decision-making body that affect the rights of parties and which are subject to the oversight of this Court should be extremely cautious about discussing matters that they have recently decided and should probably never publicly disclose personal opinions that they might hold about matters that relate to the office they hold or the function they perform. To do so in either case is only liable to result in applications for a review of decisions made by them and is likely to undermine the respect and authority of the tribunal on which they sit or the body of which they are a member.
51Whilst it is understandable that Mr Sidoti may have wished to explain publicly the way that the Authority went about its tasks, it was entirely inappropriate to do so by reference to decisions that had so recently been made.
52Nevertheless, when the speech as a whole is read, particularly that part of it that discusses the Authority recent decisions, a fair-minded observer could not reasonably conclude either that the Authority might have a fixed rule approach to Fairfield LGA nor that other than an open mind was brought to bear on applications made to the Authority. The Act itself recognises the harm that can come from gaming machines. As noted, the first object of the Act is to minimise harm associated with gambling. The fifth object is to provide for an ongoing reduction in the number of gaming machines.
53What Mr Sidoti's speech was endeavouring to do was to show how the Authority went about balancing the issues that it needed to consider. The following aspects of the speech bear this out:
We appreciate some of the difficult challenges that are involved in regulating lawful substances in ways that minimise the harm that they do to the community. Alcohol and the practice of gambling are inherently dangerous and that's why they're subject to regulation, but they are lawful because that's the political decision that's been taken and, I would say, still a political decision that is reflective of the majority of community opinion, and so the challenge for a regulator is to provide the appropriate balance between those aspects of community opinion that support the legalisation of these dangerous activities, the policy positions expressed in the legislation enacted by the Parliament and the realisation that the activities are inherently harmful.
...
We're there to implement the law as it stands to the best of our ability, while reflecting the implementation and interpretation of the broader social policy objectives that we as an Authority are responsible for seeking. So it in that delicate -balance in a challenging area and from time to time there is a great deal of public, political and media interest in what we do - but striking the balance is what we have to ensure.
We have two principal intentions in our work. We have to enable residents and others in New South Wales to enjoy the entertainment, that is both alcohol and gambling, to which lawfully they are entitled to have access -, but we must give the highest priority under the legislation to community safety and harm minimisation. We have to recognise that the activities are lawful, as I have indicated, but that they are inherently dangerous, and its in that area, that area of striking balances, that is particularly difficult for us.
Under the legislation there are particular areas of obligation imposed upon the industry and within the Authority's jurisdiction. We consider applications to increase gaming machine thresholds. We can sometimes, generally take into account the views of communities expressed by a Local Impact Assessment. With small increases we don't have to go through a Local Impact Assessment process, but nonetheless we have to look at community impact.
No matter which of those areas of activity we undertake, we have to be conscious of harm minimisation, but we also have a statutory obligation to look to what is called the balanced development of the industry and so balancing the two, again, becomes a difficulty that we face.
[He then discussed the two different classes of LIA.]
But one thing I want to emphasise is that in both cases there are discretions vested in the Authority to make decisions in accordance with the overall objectives of the Act and one of the principal objectives is the objective of harm minimisation. So even in circumstances where only a Local Impact Assessment Class 1 is required, and even where the test that we have to apply is one of positive contribution, any positive contribution, we still have discretions on whether we finally grant the application, taking into account some of the harm minimisation findings or concerns that might be expressed.
In New South Wales, under the legislation, all local government areas are divided into three bands. The classification depends on three factors: the existing density of gaming machines, the existing levels of expenditure on gaming machines, and then socio economic indices - indicators of advantage or disadvantage, within that local community.
[He then discussed the division of LGAs into Bands.]
As I've indicated, there are significant discretions available to the Authority and we have to take into account, in applying those discretions, the objectives of the legislation. There is the objective of harm minimisation but there is also an objective relating to the development of the industry.
...
We've been particularly concerned about the transfers of additional poker machines to band 3 local government areas - those that have the highest density, the highest expenditure and the lowest socio economic data. Even where the number of machines to be transferred is relatively small, we have tended to take a hard line. So the three examples of recent refusals relate to those kinds of circumstances.
[The first concerned the application Wagga Wagga]
The second refusal that I want to refer to was one relating to a very, very large club in the Fairfield local government area in Sydney. Mounties has, I think, the largest number of poker machines of any venue in New South Wales and it was proposing to increase its numbers from, as you see, 561 to 621, that is an increase of 60 machines.
The proposal originally was to transfer those machines from two other registered clubs owned by Mounties located in the Manly area in Sydney. In the Manly area machines return an average income revenue per machine roughly, from memory, a tenth of what they return in Mt Pritchard, so there was a very clear commercial advantage for the club in transferring the machines from Manly to Mt Pritchard. It already owned the machines, they were in a subsidiary club, or two subsidiary clubs located in the Manly area.
During the course of the hearing, the club moved away from a commitment to transfer those particular machines but it was still the case they would be coming into the Fairfield LGA from outside it and Fairfield is a band 3 LGA and has the lowest socio economic data of any local government area in the Sydney metropolitan area and we said no.
The third is an example at the opposite end of the scale of a very small increase in a hotel from 23 to 30, an increase of only seven machines, but again it was located in the Fairfield local government area and, I've already indicated, Fairfield has the highest density, amongst the highest expenditure and the lowest socio economic data, and from the point of view of the Authority, there was no way that we could consider the addition, even of seven poker machines, into that local government area at this time.
In the case of both Mounties and the Fairfield Hotel, there was no question raised whatsoever that the responsible gambling practices that were being carried out in the places were not exemplary. In fact, the Fairfield Hotel has received a number of awards for its restaurant and its management and many other aspects of it. It has sounded like and seemed to us to be a first class facility. Mounties has some of the best responsible gambling practices in the state. So the issue for us was not what they were doing but the implications of transferring more poker machines, even to good venues, within the Fairfield local government area.
These are examples only of the way in which the Authority is thinking and acting. We're doing so in a context that is a bit different from other states. Certainly in New South Wales we have the largest number of poker machines in Australia, but there are laws and programs that are seeking to reduce the number, albeit incrementally and albeit at a tortuously slow pace. For every three machines that are transferred, one licence has to be surrendered is the basic approach, with a couple of exceptions.
It's applied far more strictly than it is in other jurisdictions. ...
So for us looking at our responsibilities, we are talking not about the addition of poker machines at a state wide level. We're not increasing the numbers. In many respects in fact, by approving transfers, we're reducing the numbers because of the obligation to surrender a third. What our responsibilities are is to look at where those machines should be placed and how the transfers should be effected. In doing that, we have to take into account the impact on local communities, as in these three examples that I've given you.
...
One of the difficulties I find with the sensitivities of debates about gambling is that sometimes politicians are reluctant to look at some of the hard data and the likely demographic trends and strike first, rather than reacting long after the event. I probably should put in a footnote here that I do not and never have gambled with money at all. I consider that my entire life has been a big enough gamble, why should I put money into it as well? I hate gambling and I despise poker machines, but I also know that wherever prohibition has been tried it hasn't worked and I'm very anxious that the prohibition approach towards on-line gambling, or many areas of on-line gambling, may well be causing more trouble than enough.
And although I don't have any policy conclusions or even concluded policy views, I really think this is an area where we need to be closely examining what has happened. ...
There are things that the law can do that address some of the problems that Jamie has referred to. Even the problems arising from the High Court case, for example, and the casino can be as addressed by changes in the law. So there are limitations in the way we can deal with the internet, but there are things that can be done and I personally, as a dedicated non gambler, feel very anxious that we are not even having the discussion - at least not at a serious level. That's one of the future shapes of gambling that is already occurring outside the law and outside regulation, and I don't know that that is necessarily a good idea.
54In Jia Legeng Hayne J said:
[185] Saying that a decision-maker has prejudged or will prejudge an issue, or even saying that there is a real likelihood that a reasonable observer might reach that conclusion, is to make a statement which has several distinct elements at its roots. First, there is the contention that the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case. Secondly, there is the contention that the decision-maker will apply that opinion to that matter in issue. Thirdly, there is the contention that the decision-maker will do so without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case. Most importantly, there is the assumption that the question which is said to have been prejudged is one which should be considered afresh in relation to the particular case.
[186] Often enough, allegations of actual bias through prejudgment have been held to fail at the third of the steps I have identified. In 1894 [in R v London County Council; Re Empire Theatre (1894) 71 LT 638 at 639], it was said that:
"preconceived opinions - though it is unfortunate that a judge should have any - do not constitute such a bias, nor even the expression of such opinions, for it does not follow that the evidence will be disregarded". (emphasis added)
Allegations of apprehended bias through prejudgment are often dealt with similarly.
55Matters both within the speech and extraneous to it lead me to the view that a fair-minded observer could not reasonably conclude that the Chairman's might have prejudged the issue. First, although he disclosed his own views about gambling and poker machines, he acknowledged that prohibition had never worked. Secondly, his expressed concern in that part of the speech was more related to online gambling. Thirdly, the speech is replete with references to the need to balance amongst community entertainment and enjoyment, the development of the industry and harm minimisation.
56It is also apparent from the fact that a subsequent application by the Mounties was approved, and that other applications for increases in a threshold have been approved ([36] above), that Mr Sidoti's expressions of opinion have not meant that evidence has been disregarded or that his personal views have influenced the outcome of applications.
57Those matters show that the Chairman was "open to persuasion" and that his opinion was not applied without giving the matters consideration: McGovern at [16] - [17].