1. James Hogan gave evidence on behalf of Romsey Hotel Pty Ltd, which owns the freehold and the business. Mr Hogan is a certified practising accountant specialising in the hospitality industry. His family are hotel owners in the region. His companies own the Wallan Hotel and the Shamrock Hotel in Bendigo. He has 30 years experience in the hotel industry.
2. Mr Hogan's company bought the Romsey Hotel in 2003. It had a poor reputation. He believed then that Romsey would grow in population and commercial opportunities. It has. Modest renovations were carried out to the hotel to make it more attractive to the community, especially families. After improving the menu and employing new chefs, the hotel now serves about 1,500 meals per week (including take aways). Turnover has increased from about $18,000 to about $33,000 per week.
3. If the gaming machines are approved, substantial further renovations will be carried out. These will transform the hotel from a typical modest country pub into a more up-market café/restaurant facility offering a range of services.
4. The redevelopments would take place in two stages, which Mr Hogan fully described in his witness statement and oral evidence, and demonstrated at the view.
5. Stage 1 (estimated cost $2.8 million) would involve the major redevelopment of the existing hotel. It would be extended into the vacant block of land to the north along Main Road. There would be a 150 person function room to the front and a gaming room with 30 machines discretely located at the rear. A new café (up to 160 seats) would be created, opening onto the footpath for alfresco dining. The TAB area would be upgraded to include a sports bar. The upgrade would include a new bistro (90-100 seats) and childrens' play area. The toilets and all back-of-house facilities would also be upgraded. All necessary permits have been issued.
6. Stage 2 would involve the construction of a motel along Wallan Road at a cost of about $1.5 million. Construction of stage 2 has already commenced.
7. Mr Hogan said construction would definitely take place if the gaming machines were approved. He offered his undertaking and also a condition to that effect (as regards stage 1), if this was deemed necessary. He said the redevelopment of the hotel was not financially viable without the gaming machines.
8. Mr Hogan said there were very limited function facilities in Romsey, and no function room like the one proposed for the hotel. Romsey people were being forced to go outside their town for hotel services and gaming. The experience at the Wallan Hotel had been that patronage had increased after the redevelopment there, which would also occur at the Romsey Hotel.
9. Mr Hogan referred to the Wallan Hotel as a good example of what he intended to achieve at the Romsey Hotel. The Wallan Hotel had been redeveloped at a cost of $2.3 million. It too had previously been a basic country pub. Now it was a high quality, award winning facility which attracted large numbers of patrons. Sales of food and beverages of $15,000 per week had increased to $75,000 per week after the renovations. The gaming room had been added later, which had further increased the sales of food and beverages, mainly in the bistro and gaming rooms.
10. The gaming room was deliberately built at the back of the Wallan Hotel. You cannot see or hear the gaming machines from the dining facility. Mr Hogan prefers separate areas for different customers. This was more inclusive and drew more people to the venue.
11. Mr Hogan said the redeveloped facility at the Romsey Hotel (up to stage 1) would require 44 effective full time positions, an increase of 34, which he justified by tendering the proposed staff roster. He said local employees would be preferred.
12. Mr Hogan gave evidence about the hotel's intended responsible gaming practices. He said the hotel would work with specialist community organisations to combat problem gambling. He said the hotel intended annually to donate $30,000 cash to worthy community organisations if approval for the gaming machines was granted. He agreed his intentions would not bind a subsequent operator.
13. As to local business support, Mr Hogan said he had been told that 75% of the Romsey Region Business and Tourism Association Inc had voted in support of his proposal. He accepted a recent letter from the association showed it had rescinded that support. Their current position was that they neither supported nor opposed his proposal. In his mind, their support was pending.
14. Mr Hogan explained the operation of gaming machines. He said that for every $100 gambled, players received about $87 back. If the machines took $2.8 million, as Tattersalls had originally calculated, that was $2.8 million in actual losses. The operator got 25% of that. He said the regulatory changes to the gaming industry which would be introduced in 2010 did not affect his intentions.
15. Mr Hogan agreed that Tattersalls had reduced its estimated revenue for the 30 machines from $2.8 million to $1.7 million, of which he would get 25%, or about $430,000. His business would still be viable on those figures. He said he thought about 80% of the expenditure on gaming from within the Romsey community would be transferred to his gaming machines if approval were to be granted. That money was currently being spent on gaming outside the area. He wanted to bring people back to their own town. He agreed he did not actually know what the current gaming spend was, but he believed people would be gambling elsewhere at present.

1. Colleen Peterson, a consultant town planner with Ratio Consultants Pty Ltd, gave evidence on behalf of Romsey Hotel. Her written report is very comprehensive. She also gave oral evidence.
2. Ms Peterson referred to the Victorian Longitudinal Community Attitudes Survey (2003). Some key points were that, in non-metropolitan areas, only 21% of persons would travel more than 20 kilometres to a gaming machine venues, only 1-2% of Victorian adults were problem gamblers, 24.7% of Australians were non-gamblers, 69.1% non-regular gamblers and 6.2% regular gamblers.
3. Ms Peterson gave evidence about the location and population of the Shire of Macedon Ranges, based on ABS census data. In 2006, it had a population of 38,360 people, which was expected to grow to 59,270 people by 2031. The primary townships were Gisborne, Kyneton, Romsey and Woodend, which are all major urban centres under the Macedon Ranges Planning Scheme. The scheme described Romsey as a 'compact township with community focus which has a high commuter population due to its proximity to Melbourne'.
4. Ms Peterson said Romsey had a population of 4,490 in 2006. That was expected to grow to 7,024 by 2031. It is an attractive rural township surrounded by productive agricultural land. Residents (many of whom are young/middle aged families) enjoy a rural lifestyle. She said the character of the township would inevitably change over the next 10 to 15 years.
5. The township has a range of small-scale retail businesses providing mainly weekly convenience shopping. The main retail precinct in the area was in Main Street on the western side, which was 100-350 metres to the north of the Romsey Hotel, which was on the eastern side.
6. Ms Peterson said the Romsey Hotel was the only one in Romsey. It lies within but at the periphery of the existing commercial precinct of Romsey. It is within but at the edge of the business one zone, at some distance from the present sites of retail shopping, and divided from them by a wide road and its median strip (Main Street).
7. The hotel presently comprises a public bar for 40 patrons, a bistro with 100 seats, a TAB for 30 patrons and a drive-in bottleshop accessible off Barry Street. It currently trades from 11.00 am to 1.00 am on Friday and Saturday nights, and 11.00 am to 11.00 pm otherwise, which is less than its permit and licence allows. The hotel had been substantially renovated after Mr Hogan bought it in 2003. Its bistro trade had increased as a result of those renovations and upgrading of the menu. The hotel currently employs about nine people EFT (equivalent full time positions).
8. Ms Peterson described the further renovations which were planned if approval for gaming machines were to be granted. She referred to the revised plans, which placed the proposed gaming room at the rear of the building (where it is less visible) and the function room at the front.
9. She said the upgrade would very substantially improve the amenity and standard of the entire facility. The bistro and café/lounge would be family oriented. Entertainment options were being included. After completion at a cost of about $2.3 million, it will be comparable to the standard of the Wallan Hotel.
10. Ms Peterson reviewed the patronage of the hotel in surveys she carried out in 2006 and 2008. The 2008 survey showed the largest group of patrons came from Romsey (and its close-by town, Springfield) (35%). The majority came from the statistical local area (SLA) of Romsey (which includes Romsey, Lancefield, Riddells Creek and Clarkefield) (53%). The catchment of the hotel had broadened since 2006 (when 68% of patrons came from the Romsey SLA). It would broaden further when the hotel is renovated. Also, the experience of the Wallan Hotel was that country people would travel to such a venue. But the hotel would always remain a local venue, drawing mainly on the Romsey SLA (population 10,860 in 2006).
11. Ms Peterson described the other venues in the Shire of Macedon Ranges. There was Victorian Tavern in Gisborne with 42 machines, the Kyneton Bowling Club with 25 machines and the Kyneton RSL with 28 machines. The Shire had a relatively low number of gaming machines when compared with country Victoria and Victoria as a whole. For the Shire, country Victoria and Victoria, the average gaming expenditure per head of the adult population was $268, $505 and $639 respectively. If 30 machines were approved for the Romsey Hotel, the gaming expenditure for the Romsey SLA would be about $192 per adult, based on a population of 7,660 adults in 2006 and estimated expenditure of $1.47 million in the first year).
12. As to electronic gaming machine density, the figures for the Shire of Macedon Ranges, Victoria and the Romsey SLA (if approval was given for the 30 machines) were 4.53, 7.23 and 3.92 per thousand adults respectively. Therefore, both as to expenditure and density, the figures for the Romsey Hotel would be well below average.
13. Ms Peterson gave evidence about the social and economic profile of the Shire of Macedon Ranges and the Romsey area. In income terms, it was not a disadvantaged community. It had a low population of people on low incomes, and a higher population of middle and high income earners, than the Victorian average. Disposable income were also relatively high. Unemployment in the Shire of Macedon Ranges and Romsey in 2008 was lower (4.1%) than the state average (5.3%).
14. The SEIFA (socio-economic index for areas) used census data to estimate socio-economic disadvantage. The lower the score under 1000, the higher the disadvantage. Two-thirds of census collection districts fell within 990-1100 on the index. The scale is not linear.
15. Ms Peterson said the SEIFA score for Romsey (and its near-neighbour, Springfield) is 1,054, which is in the 88th percentile, as compared with the Victorian median score of 993. Only 11% of districts in Victoria were more advantaged than Romsey. Other towns nearby also had high (low disadvantage) SEIFA scores. Further, Romsey was not an area of social or economic disadvantage according to the Jesuit social services rankings.
16. Ms Peterson also gave evidence about the responsible gaming practices at the Wallan Hotel, which would be replicated at the Romsey Hotel.
17. In Ms Peterson's view, the introduction of 30 gaming machines at the Romsey Hotel could increase problem gambling for a small proportion of the population and their friends, family and the community. But the Romsey Hotel was not a convenience venue (one close to shops, schools or other public destinations). It was well separated from the shopping district to the north and west on the other side of Main Street. It would not interfere with the operation of the community centre, which was next to the hotel, or attract people from that centre to play gaming machines. People attended the centre spasmodically.
18. Several other indicators (density, spatial accessibility, travel time to venue, transport availability, social accessibility and local context) also suggested that problem gambling would be kept to a minimum were approval to be given for 30 gaming machines at Romsey Hotel. As only 1-2% of the adult population would be problem gamblers, the remaining 98-99% of patrons would be exercising their own recreational freedom of choice.
19. Ms Peterson said the results of the survey carried out by the Shire of Macedon Ranges were similar to the 2003 longitudinal survey in which 85% of Victorians said gambling was a serious social problem. In the Shire survey, 79% of respondents said they did not want gaming machines in Romsey. The response rate was 69%, which was very high.
20. Ms Peterson said the DBM survey (2008) indicated a level of concern within the community about the introduction of gaming machines. Sixty-two percent said they were opposed to the gaming component of the Romsey Hotel proposal. The concern dropped to 50% when respondents were told of the other benefits of the proposal, but that was still half who opposed the renovated hotel with a gaming room, which is a sizeable proportion. Ms Peterson said that, over time, appreciation of the benefits of the proposal would increase, as had occurred elsewhere. She was familiar with the Wallan Hotel application and there was very little opposition from the local community, although one local councillor did vigorously oppose it.
21. On the economic impact, Ms Peterson said the Romsey community would receive a slightly positive economic benefit from the proposal. Whether the gaming expenditure of the community was $1.5 million or $1.7 million or $2.8 million, the socio-economic profile of the community was such that the expenditure would be absorbed within the community without a detrimental effect on households. This additional expenditure would be diverted from other items in the household budget, especially savings, but including retail and otherwise discretionary expenditure. The extra employment of 35 EFT positions would stimulate the local economy. Further, the personal decision of gamers to spend money should not be seen as a negative, unless it was in the problem gambling category.
22. Ms Peterson also referred to the low number of gaming machines in the Shire of Macedon Ranges and Romsey, and the comparatively low gaming expenditure in Romsey, even including the new machines. The expenditure of the population on other recreational activities such as holidays, alcoholic beverages and cigarettes was considerable. The low socio-economic disadvantage in Romsey was also a consideration. The increase in non-gaming expenditure at the Romsey Hotel of $2.1 million (including bistro and bar sales) was economically positive, as was the increase in employment, the renovations to be carried out and the access to gaming to be provided to recreational gamers.
23. As to social impact, Ms Peterson said it would be neutral. Access to gaming is a significant social benefit for those who enjoy it (about one third of the residents of Romsey would be likely to use it for this purpose). The hotel would provide upgraded non-gaming social facilities. Community groups would receive cash donations from Mr Hogan of $30,000 per annum. Problem gambling would be kept at a minimum, especially because Romsey was a relatively affluent middle-class community.
24. This is Ms Peterson's conclusion, as expressed at the end of her written report:

I am of the opinion that on balance the introduction of 30 electronic gaming machines at the Romsey Hotel will have a positive benefit on the local community and the Shire of Macedon Ranges. The application will enable:

• Improved access to gaming in an area that has poor access to gaming machines and venues
• The significant renovation and expansion of the Romsey Hotel, providing a high quality venue for the local community
• Increased cash contributions to local sporting clubs, community groups and charities

Whilst I recognise that there will be some disbenefits associated with the application such as potential increase in problem gambling and community concern regarding the impact of gaming on the township, I am satisfied that these disbenefits are outweighed by the benefits associated with the application. Importantly, the venue is proposed to be introduced into an area showing few (if any) signs of social or economic disadvantage.

Accordingly, I am satisfied that the proposal will result in a positive impact on the local community. The application should therefore be supported.

1. Richard Whitehouse of Tattersall's Gaming Pty Ltd gave evidence on behalf of the Romsey Hotel, both in witness statements and in oral evidence.
2. Mr Whitehouse explained the Spectrum model which was previously used to generate estimates of gaming machine expenditure. Now a more reliable model called Geotech was used. It incorporated gravity modelling of consumer spatial behaviour, which was considered to be very accurate.
3. The Spectrum model required two separate calculations to be carried out. The first was a prediction of total gaming revenue, which was done using a regression model to predict the likely performance of the venue. The second was a prediction of transferred revenue using a three-sample case study. Experience showed the transfer predictions were not very accurate. A new model was therefore developed.
4. The Geotech model is a form of retail gravity modelling which examines convenience (which is a function of travel time and distance) and venue attractiveness as the two fundamental considerations. A range of information was used to determine the probability of a consumer choosing one venue over another (the likely number of patrons), the revenue potential of a particular venue (the likely spend per patron) and the estimated new as against transferred revenue. Mr Whitehouse explained the system more fully in his evidence. He explained how the Geotech model had been tested against the known actual performance of Tattersalls venues and found to be very accurate, both in the city and the country.
5. Applying the Geotech model to the Romsey Hotel, and taking into account all relevant population areas around it, the expenditure associated with the 30 gaming machines was $1.7 million. This was based on zero transferred expenditure and including a unit of population to the north-east of which had been previously excluded. The model excludes from consideration any venue more than six kilometres from the subject venue. There were none within that radius from the Romsey Hotel. But the hotel was a rural venue, which meant the zero transfer assumption was very conservative. It was highly likely that some people in Romsey were currently gambling elsewhere and would transfer their expenditure to the Romsey Hotel. This transferred expenditure would be low but there would be some. It remained true that a high proportion of the $1.7 million in estimated revenue for the 30 gaming machines at Romsey Hotel would be new trade to gambling for people living within six kilometres of the venue.
6. Mr Whitehouse carefully explained the financial operation of gaming machines in terms of cash-in, theoretical turnover and annual revenue (player losses). Based on a return to player of 89.5%, a yearly expenditure for the 30 machines of Romsey of $1.7 million (Geotech) implied that the actual cash-in amount would be an estimated $6.2 million. The difference ($4.5 million) would be returned to the players. If the expenditure was $2.8 million (Spectrum), the cash-in would be an estimated $10.1 million, the difference ($7.3 million) being returned to players.

1. Elizabeth Dangar is a consultant with Dangar Research. She gave evidence on behalf of Romsey Hotel about the use of Wallan Hotel. Her evidence was in a report and oral.
2. Ms Dangar conducted qualitative research using focus group techniques with poker machine users at Wallan Hotel, both regular and more occasional users. Her report fully describes the results, which she elaborated in her oral evidence.
3. She said the users of the Wallan Hotel all appreciated being able to access the renovated facility. It had previously been a dump. It now provided a pleasant ambience, with no increase in problem gambling. It was a social hub with good facilities for families and children.
4. Ms Dangar said most of her respondents went to the Wallan Hotel with friends or family. Some went on their own. They usually kept to their modest budget of $20-$50. Their main motivation for going was entertainment, hope of winning and personal space (chilling out).
5. Ms Dangar said the real value of poker machines for users was the amount of socialisation, entertainment and relaxation it provided for the price.

1. Phil Calwell is a market researcher with DBM Consultants. He gave evidence on behalf of the Romsey Hotel about surveys he conducted in Wallan and Romsey in relation to poker machine use. His evidence was in a written report and in writing.
2. Mr Calwell said telephone interviews were conducted randomly with 300 people in the two areas in July 2008.
3. As to Wallan, 37% of respondents were not aware there were gaming machines at the Wallan Hotel. Few could spontaneously think of any positive or negative effects on the community or themselves flowing from those machines. Most (67%) thought the introduction of gaming at the hotel had little or no impact on the community. A quarter said it had made the community worse off and 9% said better off. A large proportion (91%) said it had not affected them personally.
4. As to Romsey, the sample of people surveyed were a sizeable proportion of the population of Romsey. A strong majority (74%) had visited the hotel, most of them (57%) less than once a month and the rest (17%) more often. Most of the interviews were conducted within the Romsey postcode (3434).
5. Two-thirds (66%) of the Romsey respondents supported the overall redevelopment of the Romsey Hotel, but over a third (35%) were opposed. Of the various components of the redevelopment, large majorities did not oppose the café (89%), dining area (94%), and childrens play room (88%) (there is already a play room at the hotel), function room (89%), sports bar (83%) and TAB (65%) (there is also a TAB at the hotel) and motel (88%).
6. A strong majority (62%) opposed the gaming room component (54% voiced strong opposition), with the rest (38%) being either neutral (14%) or supportive (24%).
7. Of those who opposed the gaming room component, half (50%) maintained opposition (43% strongly) to the overall redevelopment if it included a gaming room, even when told the redevelopment would not go ahead without it. The rest (50%) did not oppose the overall development on that basis (33% were supportive). Only 12% of the respondents opposing the proposal changed sides on this basis.
8. Two-thirds (68%) of Romsey respondents said the local community would be worse off (42% said much worse off) if the gaming room went ahead. But a large majority (87%) said it would have little effect on them personally.
9. Mr Calwell said the overall results of the Romsey survey were broadly similar to the survey carried out by the University of Ballarat. Whichever survey you considered, a very sizeable proportion of the Romsey community were not in favour of the introduction of gaming machines at the Romsey Hotel.

(f) Community organisations and local businesses

1. A number of witnesses from community organisations and local businesses gave evidence supporting the application by the Romsey Hotel.
2. John Lynch is the president of the RSL (and was a past-president of the Romsey Football Club and the local JP). He said in his statement and oral evidence that the renovated facility (especially the function room) would be of real value to the community. It would fill a gap in the services presently available.
3. Mr Lynch said Romsey was a neglected town and the poor cousin of Kyneton and Gisborne. The renovated hotel would provide employment and trade for local suppliers, such as the bakery, greengrocer and butcher.
4. Mr Lynch said he could not see how the Romsey Hotel could be redeveloped without the gaming facility being included. He supported the project in its entirety. He thought the poker machines would be confined to the back area of the hotel.
5. Maurice Creed is a member of the committee of the Romsey Football Club and Romsey Bowling Club. He said in a statement and in oral evidence that the renovated hotel was the greatest thing that could happen to Romsey. It would help people in the country feel as good as the big boys in the city. It would give sporting clubs somewhere to go. He too was in favour of the whole development. If people wanted to gamble, it was better they did so in their own town. He said the issue was one of choice.
6. Adam De Jong operates the Romsey Newsagency, which includes Tattslotto. He said in written and oral evidence that the Romsey Hotel redevelopment was overdue. He was not concerned about competition between the hotel and his business, even with the gaming room.
7. Mr De Jong said some people came to his newsagency to buy Tattslotto every day, but that was their choice. Romsey was a town that liked betting on horse racing. His Tattslotto figures were pretty good. He said he had not seen anybody with gambling problems among his customers or in Romsey. He said he would rather see people playing the pokies in Romsey than travelling to other towns.
8. Justin Paterson is the assistant manager of the Mitre 10 hardware store in Romsey. He is president of the Romsey Football Club.
9. Mr Paterson said he supported the redevelopment of the hotel. The town needed some sort of spark. The redevelopment would create employment and the money from pokies would be channelled towards other functions and local sporting clubs. The football club expected to receive sponsorship.
10. Mr Paterson said the new venue would mean people did not have to drive to Wallan or Gisborne for dinner. Playing the pokies was a matter of personal choice. The present hotel was not a great venue for meeting people. The redeveloped Wallan Hotel was a good place for families and children, and the redeveloped Romsey Hotel would be the same.

1. Kate Kerkin is a planning consultant with the Coomes Consulting Group. Her written report was received into evidence and she elaborated on it in her oral testimony.
2. Dr Kerkin described the proposal for the introduction of 30 gaming machines at the Romsey Hotel and the history of its consideration in the commission, the tribunal and the Court of Appeal to date. She referred to those parts of the judgment where the court held that unhappiness and discontent in the community were elements of social impact on wellbeing. Dr Kerkin also described the regional context of the Shire of Macedon Ranges, the township character at Romsey and the framework within which questions of net detriment were to be assessed.
3. Dr Kerkin deposed that there was an International Association for Impact Assessment. She referred to the principles of the association, whose guidance on how social impact could be assessed I intend to adopt. A wide variety of variables should be considered when assessing impact, including community attitudes and perceptions and changes in community infrastructure interactions.
4. Dr Kerkin summarised the findings made in research conducted into gambling. She referred to two reports produced by the former Victorian Casino and Gaming Authority. The key findings of this research included these:
   • There is evidence of important distributional effects among, between and within business and households in regional communities, in that monies spent on EGMs would otherwise have been spent in other areas;
   • Some increased employment opportunities (mainly part time) associated with the venues themselves;
   • Some decreased employment opportunities in retail and other leisure/entertainment venues competing against EGM venues;
   • Some increase in domestic tourism due to the attraction of patrons to EGM venues;
   • Limited direct benefits derived from Community Support Fund projects;
   • Increased demand for government funded social services requiring a compensating increase in funding;
   • Increased demand for non-government social services with traditional local community fund raising sources restricted by competition from gambling; and
   • Social and family problems arising from increased incidence of problem gambling.

Dr Kerkin also referred to the key findings in a number of other official research reports. She listed the reports and summarised the findings as follows (references and footnotes omitted):

• [M]ost gamblers would not travel more than 5km to access EGMs and therefore 'destination' venues which are set apart from local communities, can offer a greater likelihood of responsible gambling.
• Areas of socio-economic disadvantage are more vulnerable to problem gambling and the negative impacts of gaming.
• People gamble for a variety of reasons, including reduction of boredom, isolation and loneliness; to win money; for excitement and entertainment and for social contact.
• Convenient access to gaming machines (through location, EGM density, number of venues, number of machines and social accessibility) can make the local community more vulnerable to problem gambling and negative impacts of gaming machines.
• Gamblers who live within 5km of their regular club have been proven through various means of research to be more likely to gamble, to gamble more frequently and to play for longer duration than those who have to travel further to gamble. There is a clear relationship between the accessibility and greater incidence of problem gambling.
• Gaming machine venues can provide increased recreational and entertainment opportunities (the gaming machines and also the other facilities that are included in the hotel or club).
• Problem gambling affects a small proportion of gamblers ... It has been estimated that about 1% to 2.5% of gamblers are problem gamblers; yet they account for 42% of all total player losses on gaming machines.
• Gaming represents a net loss of revenue to local economies.
• EGMs have a higher association with problem gambling than other gambling forms and women are more likely to play EGMs than men.
• There is no typical profile of a problem gamblers, however a number sources indicate that the majority of known problem gamblers:

• For the majority of EGM gamblers, gaming is a form of enjoyable recreation.
• The Productivity Commission found that 'there is sufficient evidence from many different sources to suggest a significant connection between greater accessibility - particularly to gaming machines - and the greater prevalence of problem gambling.'
• The main trigger for most people becoming problem gamblers is financial loss which then has a range of social and personal repercussions for the gambler, their families and the wider community. This may include the loss of a job, inability to pay loans or the loss of house.
• The impact of financial and household stress, including housing stress, loss of job, unpaid assistance to children and other dependents, one parent families, housing tenure and reliance of pensions or benefits affects financial resilience to 'bounce back' from financial losses.

1. Dr Kerkin said electronic gaming machines have the greatest impact on communities within a five kilometre radius of the venue. That is because a significant majority of the patrons of the venue come from people living within that radius. She said it was notable and concerning that the entirety of the township of Romsey was within that radius of the Romsey Hotel. The highest proportion of people using gaming machines at the hotel would come from this local area. She referred to research showing that only 21% of people in non-metropolitan areas (like Romsey) would travel 20 kilometres to play gaming machines. She did not accept the percentage of people travelling from Romsey to nearby towns with gaming machines was higher, especially given the distance of those towns from Romsey.
2. Dr Kerkin said the social impact of introducing gaming machines could be assessed by considering problem gambling, community facilities, community attitudes and gaming losses. She dealt with each of those considerations in turn.
3. As to problem gambling, Dr Kerkin accepted that Romsey was not disadvantaged under the SEIFA. However, other considerations needed to be considered to obtain a true picture of the Romsey community.
4. For example, there was some evidence of housing stress, as measured by the proportion of households having housing costs exceeding 30% or more of gross income, especially for those whose household income was below the 40th percentile. Romsey had a higher number of people than the state average in this category. Romsey also had a high commuter population and poor public transport, so it suffered from locational disadvantage. There was some degree of isolation in the Shire of Macedon Ranges generally. Romsey also showed some vulnerability in terms of 'community strength' (a measure based on forms of social participation, as indicated by close personal networks, associational and community networks and governance networks).
5. Dr Kerkin gave evidence about electronic gaming machine density. With 95 machines currently, the Shire of Macedon Ranges had a ratio of 3.4 machines per 1000 adults. With 30 extra machines in Romsey bringing the number in the shire up to 125, the ratio would go up to 4.5 per 1000 adults. But the ratio for the suburb of Romsey would be 9.7 machines per 1000 adults, and for the urban centre of Romsey it would be 12.5 machines per 1000 adults. These ratios significantly exceeded the state average of 6.73 machines per 1000 adults and the country average of 6.95 machines per 1000 adults.
6. Dr Kerkin rejected the criticism that it was unfair to compare state-wide or country-wide ratios with local ratios. To the contrary, she said the analysis of smaller catchments was very important. Also, the suburb of Romsey was much bigger than a town. She accepted the figure for the suburb of Romsey (9.7 machines per 1000 adults) was similar to that for Gisborne (9.5 machines per 1000 adults) and Kyneton (11.8 machines per 1000 adults). But it was a significant concern that all three were or would be above the state average of 7.2 machines per 1000 adults.
7. Dr Kerkin said the hotel was located within Romsey's strip shopping centre (and within the business one zone) and relatively central according to these criteria:
   • The Hotel has been located to be accessible, being on the corner of two main roads passing through the town and located at the centre of the towns residential area.
   • The Shire's Community Hub (discussed in detail later in this report) is located immediately to the north of the Hotel, adjoining the proposed location of the Gaming Room.
   • Two Churches are located on High Street opposite the Hotel.
   • The bus stop is located on High Street immediately out the front of the Hotel.
   • The town's two supermarkets are located within a few hundred metres of the Hotel, to the north and on the western side of Main Street.
   • While retailing is predominantly located to the north west of the Hotel, recreation opportunities, including the Recreations Centre and sports ovals, are located to the south east.
   • The Hotel is located within approximately 200 metres of the Romsey Retirement Village (Lions); being the closest venue for recreation, it is also on the way to the supermarkets.
   • The Hotel is the only local destination for community members and groups seeking to socialise in a pub environment, and is highly 'socially accessible'.

8. Therefore the hotel should be seen to be within the core of the shopping activities centre at Romsey. Given its central location, Dr Kerkin was of the view that vulnerable members of the community would be exposed to gaming machines as part of their ordinary routine, which was not desirable. Her assessment was that, although the Romsey community was not disadvantaged, it might be vulnerable to problem gambling due to housing stress, locational disadvantage and a degree of social isolation, especially given the hotel was highly accessible and the gaming machine density in Romsey would be very high if the application were approved.
9. Dr Kerkin made clear the focus of her consideration was the whole community rather than particular individuals who may be affected positively or negatively by gaming. This was in accordance with internationally and nationally specified approaches to social impact assessments.
10. As to community facilities, Dr Kerkin said Romsey was well served by daytime meeting and recreation facilities at the Community Hub and recreation centre. It was not well served with night time facilities. The introduction of gaming machines at the Romsey Hotel would reduce the community benefit of the hotel because, at present, it was the only night time meeting place, yet it would have gaming machines. This increased the accessibility to gaming to those who simply wished to meet at the hotel, which was a negative. She expressed concern about the close proximity of the Community Hub to the hotel, even accepting the gaming room would be accessed from a side road.
11. As to community attitudes towards gaming, Dr Kerkin referred to the surveys of the Shire of Macedon Ranges and the University of Ballarat. She said the surveys clearly show that a significant proportion of the Romsey population was opposed to the introduction of the gaming machines at the hotel. She acknowledged a small minority felt the impact would be positive. She accepted that the DBM survey showed a very significant proportion of the Romsey community (50%) were prepared to accept the benefits of a renovated hotel as outweighing any disbenefits from the introduction of gaming machines. This was a consideration which should be given some weight. But she still was of the view that the community of Romsey felt the net social impact of the introduction of the machines would be detrimental to their wellbeing.
12. Dr Kerkin said that there was a heightened level of shame, embarrassment and concern about problem gambling in small communities because there was less anonymity.
13. She said there was increased emphasis in academic research and in local and state government policy on the importance of social health and wellbeing, in terms of both individuals and communities. For example, governments were encouraging the development of frameworks to promote community health and wellbeing, which was reflected in the policies of the Shire of Macedon Ranges. She said the concept of social happiness had a foundation in the international research. She said happiness and contentment were different but related concepts. Happiness was a short-term emotional state whereas contentment was a longer-term or ongoing state or mood.
14. In this connection, Dr Kerkin gave evidence about the significance of the hotel as the only pub in Romsey. She said it had a central role in the community as a meeting place and also in building community networks, which fitted into the concept of promoting community health and wellbeing and strengthening local communities in several respects. This was not consistent with having gaming machines at the hotel.
15. As to revenue loss from the local community, Dr Kerkin said it was clear from the research and from the evidence in this case that there would be a net loss of revenue from the local community of Romsey. While Romsey was not a disadvantaged community, there was a risk that income which would have been spent locally would be lost on gaming machines. The gain in the employment at the hotel had to be offset against job losses which might occur in local businesses, which had not been quantified. The contribution from gaming machine revenue to the construction of the Community Hub ($490,000) should be excluded from the analysis because it did not come from the 30 machines proposed for the Romsey Hotel. Furthermore, research showed community support funding using gaming machine money did not compensate for the long-term losses arising from those machines.
16. Dr Kerkin referred to research of the commission on the impact of electronic gaming machines on small rural communities, which highlighted both positive and negative elements. On the economic consequences, the research revealed a majority of people in the community believed electronic gaming machines resulted in household expenditure being redistributed towards gaming.
17. She would not concede that the greater access by the 98% of gaming machine users who were purely recreational was an economic or social positive, despite research showing that it was. I found her failure to do so troubling, even given the community-wide focus of her evidence.
18. Dr Kerkin gave evidence of her overall net social impact assessment. On the positive side, she listed possible increased tourism, job creation at the hotel and improved facilities at the hotel. On the negative side, she listed problem gambling, the undisclosed impact on the local economy (including possible job losses) and the impact on community wellbeing and character (as revealed by the University of Ballarat's survey). Her conclusion was that it could not be shown that the net social impact of the approval would not be detrimental to the wellbeing of the community of the municipality in which the premises were located.

1. Steven McEachern gave evidence on behalf of the Shire of Macedon Ranges. He conducted survey research for the shire in 2008 when he was with the University of Ballarat. Mr McEachern's report was received into evidence and he elaborated on it in his oral testimony.
2. The research was carried out by telephone survey. Computer software was used to make random telephone calls to numbers in households within a radius of five kilometres from the Romsey Hotel. A total of 404 of 1420 possible households were called, being 28% of all households in the area. This was a representative sample of the Romsey population. Most respondents were female (66%), but this did not affect the validity of the results.
3. A questionnaire was filled out by interviewers using information provided by the respondents. Respondents were asked (among other things) about their happiness, contentedness and wellbeing, and how these might be affected by gaming machines coming to the Romsey Hotel. These questions reflected the test in the gaming legislation and the decision of the Court of Appeal. Mr McEachern said these terms had a simple meaning. Respondents were told the Shire of Macedon Ranges opposed the introduction of the machines. This was done to comply with the University's ethical requirements and was fair information to include.
4. Mr McEachern described the key findings of the research. He said 91% of respondents felt happy about living in Romsey (56% very happy). A total of 94% felt contented (53% very contented), and 81% described their wellbeing as high (32% very high).
5. Mr McEachern said a very high proportion of respondents (97%) said they were aware of the application by the Romsey Hotel. A high proportion (68%) were aware of the intent to use profits from the gaming machines to refurbish it. As to likely player losses, 33% of respondents said they were aware of estimates in 2005 that the losses would be about $2.2 million per annum. The respondents were not told about the likely amount of expenditure on the redevelopment.
6. The respondents were asked about the impact of installing gaming machines at the Romsey Hotel on the community and them personally.
7. As to happiness, about half (51%) said it would have some impact on them personally. Of that group, 81% said it would make them feel unhappy (39% very unhappy), while 9% said it would positively affect their happiness.
8. As to contentedness, 49% of respondents said installing gaming machines would have some impact. Of them, a strong majority (84%) said they would be discontented (32% very discontented), while 6% said that this would positively affect their contentedness.
9. As to well being, nearly half of respondents (47%) said installing gaming machines would impact on their level of perceived wellbeing. Of those, nine out of ten (91%) said their wellbeing would be decreased (34% greatly decreased), while 6% said it would increase. Therefore 40% of the entire population said their wellbeing would be decreased if the gaming machines were introduced.
10. Two-thirds of the respondents (68%) said the installation of the machines would have a negative effect on the social character of Romsey, while 13% said it would have a positive impact in that regard. Two-thirds (65%) were in opposition to the introduction of the machines, 19% were in support and 16% were undecided.
11. Mr McEachern said the results of his survey and the DBM survey were similar. The level of opposition to the gaming machines found in the surveys was in close parallel. He agreed the level of opposition found in the DBM survey was lower when people were informed about the benefits of the whole redevelopment, which his survey did not go into in the same way.

1. Colin Gill is a forensic accountant with Ferrier Hodgson.
2. Mr Gill made three main points in his report and oral evidence. He said Tattersall's application of the Geotech model to the Romsey Hotel was not reasonable. Further, the model itself was largely unexplained and unsubstantiated. Lastly, Mr Whitehouse's evidence about the likely gambling losses of the hotel significantly underestimated that expenditure.
3. Mr Gill had criticised Mr Whitehouse for excluding a unit of population to the immediate north-east of the hotel from the Geotech calculations. In Mr Whitehouse's evidence in chief, he met the criticism of Mr Gill by adjusting his calculations to include the expenditure of the population in this area. Mr Gill maintained his criticism of the Geotech model, saying the revised expenditure of $1.7 million was still a significant underestimate.
4. Mr Gill also criticised the nil transfer expenditure assumption. He said that a six kilometre patronage radius was unrealistic for a country area, as people were prepared to travel further than in the city. It was likely that a group of people in the Romsey area were presently gambling in Kyneton, Gisborne or Wallan and would transfer their gambling expenditure to the Romsey Hotel. Mr Gill could not say how great this level of transferred expenditure would be, but the overall expenditure on the hotel's gaming machines would be higher due to transferred expenditure.
5. Mr Gill referred to information in Ms Peterson's report (Ratio Consultants) about existing general patronage at the hotel. This showed the majority of patrons came from further than six kilometres away - 55% in 2006 and 65% in 2008. He considered the probability of significant patronage from beyond six kilometres away for the gambling machines to be very high.
6. Mr Gill substantiated his view that the Geotech model underestimated the likely expenditure on gaming machines at the hotel by reference to the average expenditure per annum on machines in other areas. He referred to Victoria ($97,000), country Victoria ($75,000), the Shire of Macedon Ranges ($96,000) and other locations with even greater average yearly expenditure. Yet Mr Whitehouse's estimate of average expenditure at the hotel, based on his revised figures, was only $58,000 per machine per year. Mr Gill said this was too low, even given the revised figures, especially because machines at hotels usually recorded higher (double) average expenditure than those in clubs. Mr Gill also pointed out that the trend in gambling expenditure was upwards, which affected the starting point of the calculations.
7. Mr Gill accepted that one of the determinants of gaming expenditure was the demographic character of the local area. Generally speaking, the higher the socio-economic profile, the lower was the gambling expenditure. But he said the average expenditure on machines in the Shire of Macedon Ranges was still higher than in Victoria and country Victoria as a whole. He accepted that there were limitations in basing opinions on the average figures. Further, if the Romsey Hotel was a relative under-performer, its figures may be closer to that of a club.

(d) Community organisations and local businesses

1. A number of witness statements were tendered by the Shire of Macedon Ranges from witnesses whom the Romsey Hotel elected not to cross-examine.
2. The witnesses were Christopher Durston, a local solicitor, Lisa Weston, an employee at the local IGA supermarket, Marilyn Hunter, the minister with the Living Word Christian Church, and Stella Giles, the owner-operator of the Bay Tree café in Romsey. The statements referred to the likely consequences of the introduction of gaming machines to the Romsey Hotel as being the loss of Romsey's family and community character, the loss of trade to local businesses and less discretionary income for residents. All spoke about the friendly, quiet, peaceful and community-centered quality of life in Romsey. Most said the people of Romsey were experiencing financial problems to some extent, especially due to high mortgage repayments and higher transport costs. Some drew on their direct experience of the negative impact of problem gambling. Mr Durston went into some detail about these matters.
3. I also received into evidence a standard letter of opposition to gaming machines being introduced at the hotel which was signed by a substantial number (30 plus) of local business people. It was sent directly to the tribunal.

1. The Productivity Commission produced a major report on gambling in 1999.[1] All parties referred to it.
2. Based on its national survey, the report found that, despite widespread participation in gambling, there was a high disapproval of gambling within the community. More than 70% disagreed with the proposition that gambling did more good than harm (47% strongly disagreed).[2]
3. The report found that most of the economic resources which went into gambling would have been employed in other areas of industry, creating similar income and jobs to gambling itself.[3] The opposition of local traders to gambling was therefore economically rational for them. But the net position was that gambling had little impact on GDP, consumption levels or labour market outcomes in the long-term.[4] Net gains in jobs and economic activity were small when account was taken of the impact on other industries of the diversion of consumer spending to gambling.[5] The real net contribution of gambling came largely from the enjoyment which it gave to consumers, which had to be considered alongside the disbenefits of problem gambling.
4. The commission found[6] that 2.1% of gamblers (290,000 people) were problem gamblers, of whom 1% (130,000 people) had severe problems while 1.1% (160,000 people) had moderate problems. This group of 2.1% of problem gamblers were responsible for 33% of total gambling losses ($3.5 billion out of $11 billion). They lost on average $12,000 a year, compared with $650 a year for non-problem gamblers. For every one of these problem gamblers, five other people, being friends or family, were affected by their behaviour.
5. The highest incidence of problem gamblers was among those who gambled on gaming machines. Therefore the prevalence of problem gambling was related to the degree of accessibility to gambling, especially to gaming machines.[7]
6. Problem gamblers drew disproportionately on community and public services.
7. The impacts of problem gambling extended to all aspects of the gambler's life, including work, study, personal health, financial affairs, legal consequences, interpersonal relationships and drawing on community services. One tenth of problem gamblers, and 60% of those in counselling, had contemplated suicide. Nearly half of those in counselling reported losing time off work or study due to gambling.[8] Their gambling losses averaged 20% of their household's income (not just their own income).[9] Where gambling machines were concentrated in disadvantaged communities, one consequence was the withdrawal of income from such communities through a relatively higher tax on gambling expenditure.[10]
8. The commission found that the main benefits of gambling came from the satisfaction which the great majority of consumers derived from the activity, while the main costs related to problem gambling and its social repercussions.[11] While the benefits from gambling were very small for the majority of gamblers, the costs borne by the minority of problem gamblers were relatively great.

1. On legal issues, the hotel accepted the functions of the tribunal as set out by Morris J in Branbeau Pty Ltd v Victorian Commission of Gambling Regulation,[12] which has been followed in subsequent decisions of the commission and the tribunal. I set these out below.
2. It was submitted the function of the tribunal was to conduct a hearing de novo and to determine for itself what the correct or preferable decision was on the basis of the evidence and material before it. Regard must be had to the objectives in s 1.1(2) of the Gambling Regulation Act.
3. The hotel submitted that, under s 3.3.7(1)(a), (b) and (c), the tribunal could not grant approval of premises as suitable for gaming unless it was satisfied that the three specified criteria were met. Only paragraph (c) was in issue.
4. It was submitted that certain observations of Morris J in Branbeau[13] were still applicable. I later set out and adopt those observations.
5. The hotel submitted the correct approach to applying s 3.3.7(1)(c) was to determine impact in terms of a single net impact. The tribunal must look at the economic and social impact and then decide whether there was a net detriment. 'Impact' is expressed in the singular; further, 'and' is conjunctive and there is no textual reason for thinking it is used otherwise. It was submitted that this was consistent with the decision of the Court of Appeal in Macedon Ranges Shire Council v Romsey Hotel Pty Ltd.[14]
6. The hotel accepted that the court held the tribunal could have regard to the subjective perception of the community about the impacts of gaming, even if the perceptions reflected philosophical, moral or religious views. This required both views for and against to be considered. The weight of such views was for the tribunal to consider.
7. As to the weight to be given to the decision of the commission, it was submitted (following the decision in the High Court in Dwyer v Calco Timbers Pty Ltd)[15] that it was doubtful that 'considerable weight' should be given to it, as the Court of Appeal had decided. However, the hotel's submission proceeded on the basis that, in this case, several factors suggested the tribunal should give the commission's decision limited weight. For example, the decision was made some years ago, much new evidence had been presented to the tribunal and the community attitude evidence was fundamentally different. Further, the parties had presented different cases in certain respects.
8. However, the hotel submitted some things had not changed. For example, the level of density of, and expenditure expected on, gaming machines in the shire was relatively low and the population of the shire was not disadvantaged, which was a strongly positive consideration.
9. The hotel submitted the shire did not have special status in the proceedings, and no status different to the applicant. Further, the opposition of the shire had to be seen in the context of its total opposition to introducing gaming machines, even if its recent policies backed away from that extreme position. The position of the shire was not based on a meaningful consideration of the benefits and disbenefits of the proposal, but on active opposition to gaming machines as such.
10. In reference to the government's policy principles, the hotel submitted these included not only receiving input from a wide variety of sources, but that gambling was a valid activity for many Victorians, and the financial benefits of gambling should be fairly distributed within the Victorian community. A substantial proportion of the expenditure on gambling was returned to the community via the community support fund. If gambling expenditure at Romsey was $2.8 million, this amount would be $1.1 million. Money from the fund ($490,000) helped to fund the Community Hub, even if this was not well known in Romsey. Despite the submissions of the shire, this had to be taken into account as a benefit, as Morris J had held in Branbeau.[16]
11. On the issue of conditions, the hotel opposed the submissions of the shire that the legislation did not empower the tribunal to impose a condition requiring the renovations to be carried out or community donations to be made.
12. It was submitted the tribunal could impose conditions which were reasonably related to ensuring the net economic and social impact of the approval was not detrimental to community wellbeing. Conditions relating to the physical condition of the premises fell into that category. The phrase 'suitable for the management and operation of gaming machines' in s 3.3.7(1)(b) included the extent to which the gaming would occur in premises allowing for other activities (which could help to minimise problem gambling). A condition did not have to relate directly to the actual operation of the machines. Conditions could relate to the standard of finishings and furnishings, as they did in planning cases. A condition relating to the proposed $30,000 yearly donations to community organisations could also be imposed.

1. Romsey Hotel submitted that the Hogan family were publicans with a proven track record in the region.
2. It submitted the tribunal should take into account the whole proposal, which involved expenditure of $2.8 million on the expanded facility and the creation of 30 plus additional jobs. The complimentary expenditure on food and beverages at the hotel was estimated to be $2.1 million.
3. What was proposed was more or less a replication of the Wallan Hotel. By comparison, the Romsey Hotel was modest at best, with a mediocre bistro and TAB. The renovated facility would be a dramatic improvement. Without the approval of the gaming machines, Romsey would be denied a Wallan-style facility in the foreseeable future.
4. It was submitted the renovations were not commercially viable without the approval of the gaming machines. With the approval, all patrons would then benefit from the renovations. The residents of Romsey would get a function room, and would not have to travel to other towns for hotel meals and services. Any concerns that the renovations would not necessarily be carried out even if approval were to be given could be met by the imposition of a condition to that effect.
5. It was submitted that Romsey was an advantaged community, even accepting that some households had high mortgage payments. Reliance was placed on the evidence of witnesses from Mitre 10 and the newsagency, who did not fear the introduction of gaming machines.
6. The hotel relied on a number of measures based on the population of the Romsey SLA. In 2006, it had a population of 10,860 (7,660 adults). It was growing and had a high (low disadvantage) SEIFA score of 1,032. It was submitted that 50-60% of the patrons would come from within the township and an area of 20-30 kilometres radius of the town.
7. The hotel submitted the shire had only three gaming venues and 95 gaming machines. It had a density of 3.08 machines per 1,000 adults, which was very low. It had 82% more adults than the Victorian country average. It had a net expenditure of $297 per annum per adult, which was well below average. It was submitted that Romsey could comfortably accommodate 30 machines.
8. As to gaming machine expenditure, the hotel referred to the Spectrum estimate of $2.8 million per annum which was the highest of the estimates in evidence, and the worst case scenario for the hotel's case. Yet even this was comparatively low in per-population terms ($368 per adult for the Romsey SLA), and low compared with personal expenditure on such items as coffee and cigarettes. Gaming would not become the largest recreational activity in Romsey. If the Geotech model estimate of $1.7 million per annum was accepted, the gaming expenditure would be even lower. It was submitted both models had their limitations and that perhaps the true result was between the two. The tribunal was invited to adopt the conservative course and use the higher estimate of $2.8 million.
9. The hotel relied on introduction and increase of gaming machines in Kyneton and Gisborne. This was not shown to have produced net negative consequences. Wallan is a similar case to Romsey, and gaming machines were approved there. The only difference between Romsey and these other three towns was the level of community opposition.
10. On the survey evidence, it was submitted the early survey of the shire was unhelpful. The DBM survey was more helpful. It was not decisive that surveys usually showed that most people thought gaming machines did more harm than good, for otherwise no application would succeed.
11. The hotel submitted that the evidence was not that there was overwhelming opposition to the proposal. At best the community was fairly equally divided, with most supporting the proposal overall. The fact that some individuals might find the introduction of gaming machines to be disconcerting did not automatically lead to the conclusion that there would be a net adverse effect on the wellbeing of the community if the application was approved.
12. It was submitted that the most accurate view of the attitude of the community of Romsey was that given in the DBM survey. It showed 66% of people supported the overall proposal, with only 35% opposing it. This survey informed people of the benefits of the proposal, fully and in practical and dollar terms. The survey carried out by the University of Ballarat did not adopt this course.
13. The hotel submitted the proposal would have a net positive impact and relied on the report of the Productivity Commission in this regard. As that report found, allowing gaming machines produced net benefits for the great majority of people who legitimately used them for recreation without difficulty. This was the main benefit. It had to be taken into account. The evidence of the satisfaction derived by the patrons of gaming machines at the Wallan Hotel supported this conclusion.
14. The hotel conceded problem gambling was an issue, but said it would be minimised by various means. The gaming room would be discretely positioned at the rear of the hotel, as it was at the Wallan Hotel. The evidence showed many people in Wallan were not even aware of the gaming machines there. At worst, the social impact of the proposal for gaming machines at the Romsey Hotel was neutral. There was already gambling in Romsey in the form of a TAB at the hotel and Tattslotto at the newsagency.
15. It was submitted there was no rational basis for thinking that the economic and social benefits were outweighed by community opposition to gambling. The opposition had to be based on more than dislike of gaming machines. The opposition had to point to observable and concrete consequences.
16. Account should be taken of the general taxation of gaming revenue which the government received. The $490,000 provided to the Community Hub was an example of the benefits brought by gaming machines and should also be taken into account.
17. In summary, Romsey Hotel submitted the benefits of the proposal included the 'consumer surplus', being the satisfaction which the great majority of gamblers derived from using gaming machines, the increased accessibility and choice which would be brought to consumers in Romsey, the increased complimentary expenditure in food and beverages at the hotel, the substantial upgrading of the hotel premises, the increased employment (30 plus people), the $30,000 in donations annually to local organisations and the increase in government tax revenue, some of which would be spent within the shire.
18. The disbenefits would be comparatively small. The main disbenefit was problem gambling. This would be minimised because Romsey was not disadvantaged and the number of machines would be only 30. Such a modest number of machines would not disrupt the social structure of the town.
19. The submissions of the hotel criticised Dr Kerkin's evidence for being confined to social impact. It was misleading to use Romsey township population figures as a basis for statistical comparison, and misleading to compare township gaming machine density figures with average Victorian or country Victorian density figures.

1. The shire submitted that councils had a special status by reason of their expressed entitlement under s 3.3.6 of the Gambling Regulation Act to make submissions to the commission, and the express requirement in s 3.3.7(3) for those submissions to be considered. Further, the commission was required by s 10.1.3(d) to implement government policy on gambling, which included receiving input from the broad Victorian community, including but not limited to the shire.
2. Following New Theme Pty Ltd v Victorian Casino and Gaming Authority,[17] the shire submitted the hotel did not, as the applicant for approval, carry a formal or legal onus of proof. But it did carry a practical or evidentiary onus to place the tribunal in the position of being able to conclude that the approval would not have a net detrimental impact on the wellbeing of the community.
3. The shire submitted the tribunal should give the reasons for the commission considerable weight, as the Court of Appeal had decided.
4. The shire accepted the decision of Morris J in Branbeau in respect of the relevant legislation and the nature of the review being conducted by the tribunal. As to the interpretation and application of the legal test in s 3.3.7(1)(c), the shire did not take issue with the propositions in paragraphs [44]-[49] of that decision (which I set out below). These included the propositions that economic and social impacts overlapped and could be considered together, that impacts on adjacent municipalities could be considered on a discretionary basis and that the no net detriment test would be satisfied if the impact on community wellbeing was neutral or positive.
5. Because the tribunal must be satisfied that 'the net economic and social impact of approval will not be detrimental to the well-being of the community', the shire submitted the tribunal must rigorously assess the benefits and disbenefits of the proposal. The test required the tribunal to reach a positive conclusion that the approval 'will not be' detrimental, not a qualified conclusion that it may not be detrimental.
6. The shire submitted that, while Morris J in Branbeau said economic and social impacts could be considered together, this did not mean there was only one test. Following the language of the test, his Honour distinguished between economic and social impacts. Depending on circumstances, the proposal could have a positive economic impact and a negative social impact. If it did, approval must be rejected because the test in s 3.3.7(1)(c) required the impact not to be detrimental in both respects. In other words, the word 'net' qualified both 'economic' and 'social' impact. There must be no net economic detriment and no net social detriment.
7. It was submitted the proposal for introducing electronic gaming machines at the Romsey Hotel did not satisfy the test, whether it was interpreted in the way for which the hotel contended or the way for which the shire contended.
8. The shire submitted that other aspects of the decision of Morris J had been overruled by the Court of Appeal. In particular, the Gambling Regulation Act did not require any Victorian community to accept gaming machines. Nor was the community prevented from voicing 'in principle' objections to the introduction of machines. Consideration of social impact was not confined to problem gambling. The views of people who did not wish to gamble were equally relevant, even if these views were based on philosophical, moral or religious views, or even views without rational articulation.
9. Following the Court of Appeal, the shire submitted the survey evidence was directly relevant to the impact of the proposal on the wellbeing of the community, specifically whether introducing machines into the hotel would cause unhappiness and discontent in the community, or diminish the community's sense of happiness or contentment. It was submitted the survey evidence should be given considerable weight.
10. The shire submitted the Gambling Regulation Act did not confer power to impose a condition requiring the proposed renovations to be carried out or the hotel to make community donations.
11. It submitted the general power in s 3.3.9(3)(c) to impose such 'conditions that the Commission thinks fit' could only be exercised for the purposes of the Act. In respect of the physical condition of the premises, the only criterion specified was the one in s 3.3.7(1)(b) that 'the premises are or ... will be ... suitable for the management and operation of gaming machines'. Any condition relating to the physical condition of the premises had to be confined to that issue.
12. Thus, it was submitted, the legislation precluded the imposition of conditions relating to facilities which were unrelated to gaming, for example, the inclusion of a function room. It also precluded conditions relating to ancillary services, such as alfresco dining or sports bars. It could permit the inclusion of a condition relating to an adjacent play room, but this might not be socially desirable. Further, whether the premises were 'suitable' for the management and operation of gaming machines was an objective minimum standard, not a standard relating to the quality of finishings and furnishings or other unrelated considerations. The Romsey Hotel could, however, defer applying for the approval until after the renovations have been completed, as had occurred in the case of the Wallan Hotel.
13. The shire submitted a condition could not require the operator to make community donations. The approval (and any conditions) was exhausted once it was given.

1. The shire expressly did not invite a finding that the net economic impact of the proposal was detrimental to the wellbeing of the community, even though there was an evidentiary basis for that conclusion. Rather the shire submitted the tribunal could not make a finding that the net economic impact of approving the machines would not be detrimental to the wellbeing of the community, because the evidence is insufficient to support any such finding. However, the tribunal should find that the net social impact of the proposal and the wellbeing of the community would be detrimental.
2. As to the economic impact, it was submitted that the renovations may or may not occur if the gaming machines were introduced into the Romsey Hotel. It was speculative whether they would or would not. It was reasonable to conclude the renovations and expanded services at the hotel would bring some economic benefits, if the renovations were carried out, but these benefits would be modest at best. Further, the economic climate had changed for the worse and the building costs had gone up (from $2.3 to $2.8 million). The anticipated revenue from the gaming machines had gone down (from about $700,000 to $430,000, being 25% of $2.8 million and $1.7 million respectively). Also, under the changes to government policy, in 2010 the hotel would have to bid for and pay for its gaming machines.
3. It was submitted the evidence was deficient on the issue of economic impact. There was no satisfactory evidence of the level that transferred expenditure and the extent to which it might be offset by any increase in general economic activity. Without knowing this, it was not possible to make a proper economic impact judgment.
4. The shire referred to Ms Peterson's evidence that the introduction of gaming machines would be 'slightly positive' in terms of economic impact. It submitted that evidence should be rejected. Her evidence that Romsey was not disadvantaged and could afford to lose the anticipated gaming spend was not relevant to the question of economic detriment. That economic benefits might flow from the redeveloped hotel (including extra jobs) was speculative and unsubstantiated. That retail spending might decline in Sunbury, not Romsey, was not an answer, because economic effects would still be felt in Romsey, and Sunbury was in the shire in any event.
5. It was submitted the evidence of economic modelling was unsatisfactory. Tattersall's now regarded the Spectrum model as unreliable. Yet it had not fully explained the operation of the Geotech model, which is based on an unsustainable nil transfer assumption. All the tribunal had was speculative evidence of the expected level of gaming expenditure. If the nil transfer assumption was correct, that meant there would be a significant gambling take from the local Romsey community. It had not been shown how this translated in terms of economic impact.
6. In the alternative, the shire submitted the gambling expenditure would be at least $1.7 million, as predicted by the Geotech model, which is money that would be lost to the local economy.
7. The shire relied on Dr Kirken's evidence (given by reference to two VCGA reports) that gaming expenditure caused detrimental effects among and between rural businesses and households, job losses and gains within rural communities and a net loss of revenue to local communities.
8. On social impact, the shire submitted that the level of opposition to gaming machines at the hotel was overwhelming and a manifestation of a negative social impact. There had been three surveys, all of which showed a significant proportion of the community of Romsey opposed the introduction of the machines. These surveys were important, as they gave an insight into the ethos of the community into which Romsey wished to introduce gaming machines. The proponents of gaming machines had to take the community as they found it, and the community of Romsey had spoken through the surveys.
9. The hotel submitted the survey conducted by the University of Ballarat showed half of the residents of Romsey thought the introduction of machines would impact on them; 81% of those residents said it would make them unhappy. More than two-thirds of the respondents believed the gaming machines would have a negative impact on the social character of Romsey. Slightly less than that proportion said they did not want gaming machines at the hotel. These were very significant findings and represented major segments of the community. The views that were expressed through the surveys were real and the reasons for them not relevant. In terms of community wellbeing, perception was a reality.
10. Even if the information about the shire's opposition to gaming machines should not have been given to the respondents in the survey conducted by the University of Ballart, this did not affect the results of the survey, as Mr Calwell (DBM Consultants) had conceded.
11. The DBM survey showed similar levels of opposition to the gaming room (62%) and concern about the negative impact on the local community of introducing gaming machines (68%). These too were significant findings. Opposition to the hotel redevelopment as a whole (renovated hotel plus gaming machines) was still 50%. This was very telling, because it showed half of the respondents were prepared to forgo the renovations to avoid the negative impact of gaming machines.
12. The shire submitted the tribunal should give both surveys considerable weight. The tribunal did not have to choose between them.
13. It was submitted that Romsey was a small rural township. It was special and had its own unique character, as recognised in the local planning scheme. The Romsey Hotel was the only pub in town. It was an important focus of social activity in the community. The residents of Romsey took an interest in their local hotel in a way that city residents might not. Without the pub, many residents would feel isolated and marginalised. The residents of Romsey should be able to visit their pub without the experience being tainted by the presence of gaming machines, which most people in Romsey considered had a negative impact on the community.
14. The shire submitted it was damning evidence of negative social impact that Ms Peterson said the gaming machines would, in terms of hours spent, become the most popular leisure activity in Romsey.
15. The shire took issue with Ms Peterson's evidence that the Romsey Hotel was not a convenience venue. It relied on its new Pokies Policy to submit the hotel was not a good location for gaming machines as it was within the town's shopping strip, in a location central to people's normal daily activities and in a location adjacent to the Community Hub, which was a point of major community congregation.
16. The shire submitted that the concept of social impact extended far beyond problem gambling to include community wellbeing generally. In this case, the tribunal should find the introduction of gaming machines at the Romsey Hotel would have a detrimental social impact on community wellbeing in Romsey and its environs.

(3) Victorian Commission for Gambling Regulation

1. I welcome the commission's active participation in this case, which was undertaken in accordance with the decision of the Court of Appeal in Macedon Ranges Shire Council v Romsey Hotel Pty Ltd.[18] Not only is this legally mandatory, but the tribunal greatly benefits from the assistance provided by this participation.
2. The commission submitted the application by Romsey Hotel was now governed by the principles expounded by the Court of Appeal. It relied on the evidence presented by the other parties, and did not present evidence of its own (except the 2005 and 2008 economic and social impact reports). I accept its submissions that, in this case, it was entitled to adopt this course.
3. The commission submitted the main positive and negative considerations remained much as they were when it made the primary decision in 2006. There had been little change to the socio-economic evidence relating to relative electronic gaming machines density and expenditure, the likely growth in population of the shire and the relative advantaged position of the population of Romsey. The one exception was the evidence relating to the primary negative consideration - community opposition. It had been significantly refined and developed by the shire. This evidence supported the original finding of the commission that gaming at the hotel was so disconcerting for the community of Romsey that it would have a significant detrimental impact on their wellbeing.
4. The commission's submissions described the history of the consideration of the proposal by it and the tribunal.
5. It accepted that the function of the tribunal in applications like this is substitutionary, not appellate. The tribunal had to conduct a hearing de novo and make the correct or preferable decision on the merits and on the material before it.
6. The commission referred to its 2005 and 2008 economic and social impact reports. I have read and considered both reports.
7. The commission highlighted a number of changes which had occurred between the production of the two reports. For example, the original estimated expenditure per adult in the shire had increased from $265 in 2005 to $297 in 2008.[19] If the proposal was approved, the predicted impact on expenditure would be an increase from $376 per adult in 2005 to $344 per adult in 2008 (a fall from a 42% increase in 2005 to a 16% increase in 2008). Further, the gaming machines density in the shire had increased from 2.81 to 3.08 machines per 1,000 adults between 2005 and 2008. Fourteen additional machines had been introduced into the shire since 2005. In 2008 there were more adults per venue (10,290) than in 2005 (9,596), due to increases in population. The figures were lower than those for Victoria (7,326 in 2005 and 7,336 in 2008) and country Victoria (5,516 in 2005 and 5,653 in 2008).
8. The commission noted that the hotel did not now rely on gains in tourism.
9. Consistently with its general approach, the commission accepted the hotel's evidence that improvements to the facility would not proceed without the revenue from the installation of the machines.
10. The commission explained its approach of weighing up the positive and negative impacts of the proposal, as set out by Morris J in Branbeau. It submitted evidence of economic and social impact could be received separately or together, depending on the case. It was often difficult to separate the two, although in some cases only one or the other was relevant. The commission (and the tribunal) was not prevented from considering social and economic impacts as integral and not discrete elements of a composite test. It was permissible to adopt a two-step approach - first, identify the social and economic impacts; second, balance those impacts and determine whether the net impact was detrimental to community wellbeing.
11. The commission referred to its original decision. It said that, on the positive side, it considered these factors:
    • improved facilities and an increased local patronage - a greater number of residents would be attracted to the hotel and the motel would be of some value to the community
    • the applicant's previous results at the Wallan Hotel were a positive comparison
    • residents would not have to travel outside Romsey to game
    • there would be a modest increase in employment at the hotel due to increased patronage in the bistro, café areas and gaming room
    • there would be modest donations to local community organisations by the hotel
    • there would still be comparatively low levels of electronic gaming machine expenditure and density in the shire, and people in the shire were not disadvantaged

12. On the negative side, while acknowledging that gaming was a legitimate pastime for many, the commission found it was a serious problem for the minority. It also found a very large proportion of the gaming machine expenditure at the hotel would come from Romsey and closely surrounding areas.
13. However, the commission said it was ultimately persuaded to reject the application because of the evidence of overwhelming community opposition. The evidence established the prospect of gaming at the hotel was so disconcerting for the local community that it would have a significant detrimental impact on them. In this regard, the commission gave a considerable weight to the survey evidence of the shire.
14. The commission opposed the submissions of the Romsey Hotel that 'net economic and social impact' in s 3.3.7(1)(c) meant net economic and net social impact, considered separately. It submitted the Court of Appeal in New Theme Pty Ltd v Victorian Casino and Gaming Authority[20] had treated the test as a composite one, reflecting similar wording in the previous legislation. It invited the tribunal to follow decisions of the commission[21] under the previous legislation in which it had approached the question of economic and social impact as being inter-related. It submitted the tribunal was not precluded from undertaking a single balancing exercise with respect to economic and social impact and then consider the overall net detriment in terms of community wellbeing.
15. On the proper application of the test in s 3.3.7(1)(c), the commission submitted the Court of Appeal had decided the commission (and the tribunal) must consider the likely economic impacts, the likely social impacts, and the net effects of those impacts on the wellbeing of the community, taking the submissions of the responsible authority into account. The commission referred to and relied on the analysis of the court on the concept of social and economic impact and wellbeing.
16. In consequence, the commission submitted that unhappiness or discontent in the community of Romsey caused by the introduction of gaming machines at the hotel was a social impact of approval which would be detrimental to the wellbeing of the community. That impact could also be used in making a judgment about whether approving gaming machines would substantially alter the social character of Romsey.
17. The commission submitted the new evidence of community attitudes established that, if approval were to be given, the community would experience unhappiness and discontent. It relied on the surveys produced by DBM and the University of Ballarat. It submitted the evidence was more comprehensive and probably more reliable than the shire's 2005 survey evidence.
18. The commission's submissions dealt at length with these two surveys, the results of which were described in evidence I have already summarised. The commission submitted the surveys showed a relatively high level of opposition to electronic gaming machines among the Romsey community, despite the passage of two years since the commission's decision.
19. It submitted Ms Dangar's focus group evidence regarding Wallan Hotel patrons showed many people enjoyed playing gaming machines, which was an accepted positive social impact.
20. On the question of the survey evidence, the commission concluded:

This is evidence which the Tribunal is bound to take into account in applying the 'net detriment test'. The evidence of community attitude in both the DBM and the McEachern surveys is capable of supporting a finding that, having regard to the particular character of Romsey, members of the local community find the prospect of gaming at its only hotel so disconcerting that it would have a significant effect upon the well-being of that community.

1. As to gaming expenditure, the commission accepted that evidence of expenditure should be taken into account. It noted the variations in the evidence presented on behalf of the Romsey Hotel on that question.
2. The commission explained it had received and broadly accepted evidence of gaming expenditure from Tattersalls based on the Geotech model, but had not yet been able to test the reliability of the model. It referred to uncertainty in the evidence about the likely gaming expenditure at the hotel, but submitted this may not be material. It submitted that, were the tribunal to rely on the expenditure estimate of $1.7 million, it would be doing what the commission would do in the same setting. It said it had not dealt with a case in which the transferred expenditure was nil.
3. In conclusion on the question of gaming expenditure, the commission submitted there was little difference in the expenditure estimates produced by the Spectrum and Geotech models. Even on the highest expenditure predictions, the average expenditure per adult in the shire would be comparatively low.

(1) Gaming Machine Control Act 1991

1. The gambling regulation legislation has been amended in important ways over time. To begin our analysis, the Gaming Machine Control Act 1991 is a convenient starting point.
2. This legislation established the Victorian Gaming Commission as an independent entity.[22] The purposes of the Act were to regulate, supervise and control gaming machines to ensure gaming was honest, crime-free and carried on acceptably in premises where liquor was sold.[23]
3. At that time, a licence was needed with respect to the operation of the venue (a venue operator's licence)[24] and the gaming machines (a gaming operator's licence).[25] This was not regulation of the premises in the context of the place or community in which premises with gaming machines were located.
4. As to a venue operator's licence, the criteria related to the suitability of the applicant and the premises.[26] Community wellbeing or public interest criteria were not included, although amendments to conditions proposed by the commission had to be in the public interest or for the proper conduct of gaming.[27]
5. Local government was given a role in the decision-making process. Applicants were required to advertise their application[28] and send a copy of their application to the responsible authority in the relevant area.[29] It had a right to submit a report to the commission within 14 days of the advertisement.[30]
6. The grounds of objection were narrow and related to the reputation and character of applicants or their associates.[31]
7. As to a gaming operator's licence, these too were granted by reference to the suitability of the applicant.[32]
8. The legislation was amended by the Gaming Acts (Miscellaneous Amendment) Act 1997. The amendments extended the scope of the regulation. Approval was made necessary for the use of premises for gaming.[33] Responsible authorities had to be notified[34] and could submit reports,[35] which had to be considered.[36]
9. Approval was granted by reference to the authority of the applicant to make the application and the suitability of the premises for the management and operation of gaming machines.[37] The commission was required to consider the suitability of the size, layout and facilities of the premises and the adequacy of the security arrangements.[38]
10. The legislation was also amended to exclude consideration of the suitability of premises in an application for a venue operator's licence.[39] That consideration was now covered when the commission considered whether to approve the premises. Under the new scheme, approval of operators was separated from approval of premises.
11. The scheme for regulating gaming machines under the Gaming Machine Control Act was significantly enhanced by the Gambling Legislation (Responsible Gambling) Act 2000.[40]
12. The amending Act introduced these new purposes into the Gaming Machine Control Act:[41]
    • (f) fostering responsible gambling in order to -
      • (i) minimising harm caused by problem gambling; and
      • (ii) accommodate those who gamble without harming themselves or others.

13. In the second reading speech, the Minister for Gaming said the legislation was designed to 'swing the pendulum back to better gaming regulation that will ameliorate the adverse impacts of gambling on all communities.'[42] He said it secured 'a better balanced approach to gambling' in order to 'better protect the community from the adverse effects of gambling.'[43]
14. The focus of the new legislation was on balance, community input and socially responsible gambling which was not detrimental to the economic and social wellbeing of the community. The same can be said of the Gambling Regulation Act.
15. For example, the legislation gave the responsible minister the power to set regional limits on gaming machine numbers,[44] there were provisions for a continuous four hour break from gambling every 20 hours[45] and a Gambling Research Panel was established to conduct research into the social and economic impact of gambling.[46]
16. Further, the Gaming Machine Control Act was amended to give the regulator - at this point the Victorian Casino and Gaming Authority[47] - the new object of advising the minister on 'community concern about the economic and social impact of gaming on the well-being of the community.'[48]
17. Finally, under Division 4 of Part 3, which dealt with the 'impact of gaming on the community', the 2000 amending Act introduced a number of measures to the principal Act dealing with that subject, including the no net detriment test. By the new s 12D(1)(c),[49] approval for gaming machine premises could not be given, as is still the case under s 3.3.7(1)(c) of the Gambling Regulation Act, unless:

the net economic and social impact of approval will not be detrimental to the well-being of the community of the municipal district in which the premises are located.

1. This concern of the legislation with the impact of gaming on local communities was reflected in other provisions of the 2000 amending Act. A purpose of that Act was 'to provide for the views of a municipal council to be taken into account when the Authority is considering the placement of gaming machines in the municipal district'.[50] Consistently with that purpose, the legislation amended the principal Act to give responsible authorities power to make submissions addressing those impacts on its and surrounding districts.[51] The same principles and processes were enacted for decisions in relation to 24 hour gaming venues[52] and amendments to existing approvals of gaming premises involving an increase in the number of machines.[53] In that connection, the legislation introduced the concept of community benefit statements for operators wishing to extend or introduce 24 hour gaming at premises.[54]
2. The former Victorian Casino and Gaming Authority considered several cases under the Gaming Machine Control Act as amended by the 2000 amending Act.
3. The first was Werribee Football Club Incorporated.[55] The authority said it would proceed 'on the basis that the degree of satisfaction required by section 12D is the civil standard of proof, that is, on the balance of probabilities.'[56] I agree and that is still the case under s 3.3.7(1)(c) of the Gambling Regulation Act.
4. The authority held the no net detriment test in s 12D(1)(c) was to be applied thus:[57]

In considering section 12D(1)(c), the work of the Authority is two-fold; firstly to make an assessment of the net economic and social impact of approval of the proposal; and secondly to determine if the impact of approval will be detrimental to the well-being of the community in the municipal district where the premises are located. Unless the Authority is satisfied that the impact will not be detrimental to that community, the application must not be granted.

This task requires an evaluation of the state of the evidence and material before the Authority, having regard to the nature of the requirement to be satisfied keeping in mind the purpose and aim of the legislation which introduced section 12D. The key phrases 'net economic and social impact' and 'detrimental to the well being of the community' are comprised of words of common understanding to be applied intelligently and consistently without departing from their ordinary and grammatical meaning. They do not have some special meaning.

1. It said that the new legislation recognised that gambling imposed a social cost on the community. However:[58]

The well being of those for whom gambling is a pastime of choice has to be balanced against the adverse social consequences that flow from the level of spending on gaming machines by a minority of Australians, in percentage terms small, but numerically a significant number who gamble beyond their means.

1. The authority went on to point out that the focus of the no net detriment test was on the community, not on land use, as was the case under the Planning and Environment Act 1991.[59] It held that the relevant community was the wider community in the whole local government area.[60] That statement must now be read with the holding in Macedon Ranges Shire Council v Romsey Hotel Pty Ltd[61] that the community in the district includes any part of that community.
2. These principles were applied in several cases decided under the 2000 amendments, including Roxburgh Park Hotel[62] and Pascoe Vale RSL.[63]
3. In Roxburgh Park Hotel, the authority held that economic and social impacts overlapped:[64]

The Act does not attempt to prescribe the criteria against which the economic and social impact is to be tested. As economic and social impacts are not exclusive of each other but interconnect in that an economic impact has a social impact and vice versa, the Authority does not attempt to draw some artificial distinction between the economic and social impacts of gambling.

This principle was later adopted by the tribunal, but it has been placed in issue by the submissions in the present case.

1. The Court of Appeal (Callaway and Eames JJA, O'Bryan AJA) considered the Gaming Machine Control Act (as amended in 2000) in New Theme Pty Ltd v Victorian Casino and Gaming Authority.[65] Both Eames JA[66] and O'Bryan AJA[67] held that applicants had a persuasive but not legal onus of proof. That was accepted in this case.

1. The Gambling Regulation Act, under which the industry is now regulated, was the culmination of these processes of reform. When enacted in 2003, it continued the themes of balance, community input and socially responsible gambling which is not detrimental to the economic and social wellbeing of the community.
2. In the second reading speech, the Minister for Gaming said the legislation 'embeds the government's clear commitment to the protection of the Victorian community with a focus on those most at risk'.[68]
3. This legislation introduced an appeal to the tribunal. The rationale given by the minister was that local councils, who might have made submissions on proposals to increase the number of gaming machines, may wish to appeal.[69] The right was given to applicants as well, consistently with the practice in the other areas of the tribunal's jurisdiction.[70]
4. The minister stated six principles to guide future gambling policy and legislative developments:[71]

developing and reinforcing the government's commitment to responsible gambling through measures that assist and protect problem gamblers and those at risk of becoming problem gamblers, their families and the wider community;

developing and maintaining the state's commitment to the highest standards of probity for gambling service providers;

accepting gambling is a valid activity for many Victorians who are entitled to expect ongoing high standards of service, transparency and accountability from the gambling sector;

ensuring that the legitimate financial benefits of gambling (both private and public) are transparent, appropriately recognisable and fairly distributed to the Victorian community;

that to the extent possible consistent with the other principles, gaming service providers operate in a competitive environment; and

establishing proper consultative processes to ensure that appropriate information is given to, and input is received from, the wide variety of persons interested in gambling including stakeholders, affected parties and, to the widest extent possible, the broader Victorian community.

1. The main objectives of the Act are set out in s 1.1(2). They include

(ii) accommodate those who gamble without harming themselves or others;...

(f) to promote tourism, employment and economic development generally in the State.

1. The legislation establishes the Victorian Commission for Gambling Regulation,[72] whose objectives reflect those and other objectives, including implementing the government's policy on gambling.[73] The function of the commission includes regulating gaming machines and advising the minister 'on community concerns about the economic and social impact of gambling on the well-being of the community.'[74]
2. Chapter 3 of the Act deals with gaming machines. The stipulated purpose of its provisions include regulating, supervising and controlling gaming machines with the aim of promoting tourism, employment and economic development and minimising harm caused by problem gambling, while accommodating those who gamble without harming themselves or others.[75]
3. The objects of the Act, the purposes of Chapter 3, the objects of the commission and the principles in the government's gambling policy are relevant to decision-making by the tribunal.
4. The legislation seeks to achieve an appropriate social and economic balance between the legitimate recreational enjoyment which gaming machines give to some, and the harm which they bring to other, individuals and communities. That objective is implemented, in particular, through the no net detriment test. Under that test, premises must not be approved for gaming machines,[76] and increases in the numbers of gaming machines at premises must not be granted,[77] unless the commission is satisfied that 'the net economic and social impact of [approval or amendment] will not be detrimental to the well-being of the community of the municipal district in which the premises are located.'[78]
5. Thus the legislation recognises the social and economic impact of gaming machines which may be felt in local communities. It makes the impacts in those communities (as defined by reference to the relevant municipal districts) the focus of the no net detriment test in s 3.3.7(1)(c). If the net impact will be positive or neutral to the wellbeing of the community there, the commission has a discretion to grant the approval or amendment. If the net impact will be detrimental, it does not.
6. To enable the commission effectively to examine the impacts of gaming machines on local communities, the legislation confers a particular role on local government. As we will see, that role is consistent with councils being the representative of the people in local communities under the Local Government Act 1989 and with the preparation by councils of plans under the Health Act 1958 (and now the Public Health and Wellbeing Act 2008).
7. Applicants for premises approval[79] or increasing the number of gaming machines[80] must give copies of their applications to the council in the relevant municipal district. The council may make a submission to the commission on the social and economic impact of the proposal on their district, taking into account the impact on surrounding municipalities.[81] The commission must consider any such submission.[82] In the case of an application for approval of new gaming machine premises, the commission is required to seek and consider the council's views, even if it does not make a submission.[83]
8. Net community benefit statements continue to be mandatory for applicants proposing to use premises for 24 hour gaming.[84] That requirement has been extended to applicants who wish to increase the number of machines at premises.[85] The submission containing the community benefit statement is included in the application which must be given to local councils and on which they may comment.[86]
9. Turning now to the jurisprudence, the authority and the tribunal have decided a number of cases under the Gambling Regulation Act.
10. The cases decided by the authority include Hogan's Hotel Pty Ltd,[87] Romsey Hotel Pty Ltd,[88] Kyneton RSL,[89] Hilldove Pty Ltd[90] and Langwarrin Hotel Pty Ltd.[91]
11. Hogan's Hotel Pty Ltd[92] was Mr Hogan's application concerning the Wallan Hotel. The commission approved the application because it was satisfied the net economic and social detriment would not be detrimental to the wellbeing of the community.[93] It applied[94] the balancing approach identified in Werribee Football Club Incorporated.[95] The commission found the economic benefits to Wallan and the shire would be considerable.[96] The gaming machines would be no more than an adjunct to the hotel's food and beverage and conference business.[97] The shire did not oppose the application,[98] although one councillor personally opposed it.[99]
12. In that case, the evidence on the key aspects of economic and social benefits was, in many respects, similar to the present case.[100] But the Wallan Hotel had already been renovated and there was no significant community opposition.
13. Romsey Hotel Pty Ltd[101] is the decision under review in the present case. The commission applied the principles which, by then, had been expounded by Morris J in Branbeau Pty Ltd v Victorian Commission for Gambling Regulation,[102] which I will examine later.
14. On the positive side, the commission accepted that gaming machines were a legitimate positive for many people.[103] There would be some extra employment.[104] The hotel would be renovated, attracting more patrons,[105] like the Wallan Hotel.[106] There would be modest community donations.[107] Also, Romsey was not disadvantaged[108] and had low relative gambling expenditure and gaming machine density.[109]
15. On the negative side, the shire opposed the application and relied on evidence of overwhelming community opposition. That opposition was not lacking in empirical foundation.[110] The commission held 'the strength of [the community] opposition to EGMs in this particular location should be respected.'[111] That opposition was

genuine, ... little influenced by the policies of the Council and ... more related to the nature of Romsey as a town and the hopes and aspirations of those who live in it.[112]

That reasoning has only been confirmed by the passage of time and the evidence in this case.

1. I will deal later with the decision of the tribunal to uphold the application for review of this decision.
2. Kyneton RSL[113] was an application to increase the number of gaming machines at the premises from 20 to 28. The commission gave the approval.
3. On the positive side, the commission held the RSL performed a valuable community function,[114] the extra revenue would help it to pay off debt,[115] the premises (already enhanced with funds from the existing machines) would be better used[116] and gaming was a legitimate pastime for many.[117] There were no significant negatives.
4. In this case the commission criticised the shire for focussing its gambling expenditure and EGM density analysis on the Kyneton township alone. It said the legislation required a consideration of 'the local government area as a whole'.[118] Country towns sometimes acted as the hub for regional activity. Unless the analysis was undertaken on a broader basis, it could present a false picture of the municipality.[119] That was the case with the shire's analysis of the situation in Kyneton, which was used by many non-town residents for their normal business activity.[120] The commission also noted residents of rural Victoria thought nothing of driving 10 to 15 kilometres for a meal or other entertainment at a hotel.[121] So inevitably gaming venues would be concentrated in commercial centres in rural municipalities, such as Kyneton.[122]
5. I note that the commission made these remarks in reference to issues raised by an application to increase gaming machines in premises in a rural commercial centre. If the commission was intending to say the impact of gambling in local communities smaller than districts were not relevant, that is not consistent with the decision of Warren CJ, Maxwell P and Osborn AJA in Macedon Ranges Shire Council v Romsey Hotel Pty Ltd,[123] which held that sub-district impacts were relevant.[124] If it is established that social and economic impacts will be felt by people who live close to the gaming facility, as in the present case, it is not only appropriate but requisite to take those impacts into account.
6. Hilldove Pty Ltd[125] concerned the Victorian Tavern in Gisborne in the Shire of Macedon Ranges. The commission allowed the tavern to increase the number of gaming machines from 36 to 42, leading to a significant lift in the facilities available at the hotel.[126]
7. The shire did not oppose this application and there was no significant community opposition. This was an uncomplicated application for a modest increase in the number of machines at the only premises with gaming machines in Gisborne. That town is not disadvantaged,[127] has a growing population[128] and has relatively low gaming expenditure and gaming machine density.[129]
8. I mention Langwarrin Hotel Pty Ltd[130] because it was relied on by the Romsey Hotel in relation to the reliability of survey evidence.
9. This application was decided after the Court of Appeal had delivered judgment in Macedon Ranges Shire Counsel v Romsey Hotel Pty Ltd.[131] The commission held, rightly, that community opinion was not a decisive consideration, but must be considered.[132] It considered the survey evidence produced by the Frankston City Council in that context.
10. The commission was critical of the council's survey. It simply asked whether the respondents supported the proposal; it did not inform the respondents of the benefits of the proposal.[133] These benefits included the construction of a motel with conference facilities across the road from the hotel with the gaming machines, and also the offer of community donations.[134] The commission said community surveys should include reference to the positive features of a proposal which could only go ahead if the machines were approved.[135] Then the respondents could be asked of their response to the project overall.[136] The commission granted the application for an increase in the number of gaming machines from 44 to 60, especially in the light of the proposal for the motel and the plainly inadequate number of machines there at present.[137] Langwarrin was not disadvantaged[138] and could absorb modest increases in gaming expenditure.[139]
11. I agree that the nature of the questions asked in a survey may be relevant to the weight to be given to the result. But after Macedon Ranges Shire Council v Romsey Hotel Pty Ltd,[140] there can be no doubt that evidence of community opposition to gaming machines as such is a relevant consideration.[141] Such evidence cannot be ignored because the benefits of gambling were not taken into account or because the opposition is expressed without reference to a particular proposal.[142] Evidence of opposition in principle to gaming machines is relevant.
12. Of the cases decided by the tribunal under the Gaming Machine Control Act (as amended in 2000), Branbeau Pty Ltd v Victorian Commission for Gambling Regulation[143] was the first.
13. Morris J set aside a decision of the commission and approved the Family Hotel at Drouin as premises suitable for 20 gaming machines. That Victoria had a legal gaming industry, which provided pleasure and choice to recreational gamblers,[144] weighed heavily in the positive balance.[145] His Honour considered the machines would bring broad and substantial benefits.[146] Gaming expenditure and machine density were comparably low in the Shire of Baw Baw,[147] which was a powerful (but not decisive) consideration.[148] The shire and Drouin were not disadvantaged.[149]
14. Morris J took into account the municipal strategic statement (part of the Baw Baw Planning Scheme) which identified Drouin as a 'focus for local service industries'. Gaming at the hotel was a local service.[150]
15. On the negative side, his Honour focussed on problem gambling. He said venue location policy to date had been informed by two considerations. First, problem gambling was more likely if an area had a high number of gaming machines per adult person. Second, problem gambling was more likely if an area was relatively poor.[151] These considerations did not apply in the case before his Honour. True, approval may result in a slight increase in problem gambling. That was the government's responsibility to address across the board.[152]
16. Morris J analysed the no net detriment test in s 3.3.7(1)(c). Some parts of that analysis have been accepted by the parties in the case before me and are not inconsistent with Macedon Ranges Shire Council v Romsey Hotel Pty Ltd.[153] In particular, I give this summary of certain observations from his Honour's decision in Branbeau, which I respectfully endorse:[154]
    • the test is concerned with net impact, which implied the balancing of positive and negative impacts
    • the focus must be on the marginal impact of the approval, not with existing or average impacts
    • there was a distinction between economic and social impacts, but there was such overlap between them as to make it convenient to consider both together
    • the tribunal was not concerned with whether the proposal would be beneficial, but whether its net economic and social impacts will not be detrimental to the wellbeing of the relevant community; if the net impact is positive or neutral, the test will be satisfied
    • the test is administered in the context that responsible gambling is legal and enjoyable to those who wish to gamble
    • while the test specifies 'impact' in terms of the relevant municipal district, the spatial impact of approval is a relevant consideration

While I agree that the test is concerned with marginal (not existing or average) impacts, this is not to say an added venue in a district, or additional machines at an existing venue, might not exceed the tipping point in terms of detrimental net impact on community wellbeing.

1. Other aspects of his Honour's reasoning were overruled by the Court of Appeal. I will deal with these later.
2. Morris J applied the principles stated in Branbeau in his subsequent decisions in Ocean Grove Bowling Club v Victorian Commission for Gambling Regulation[155] (application to amend to increase the number of machines from 45 to 60), Kilsyth and Mountain District Basketball Association Inc v Victorian Commission for Gambling Regulation[156] (application for approval of premises for 75 machines) and Romsey Hotel Pty Ltd v Victorian Commission for Gambling Regulation[157] (the original decision of the tribunal in the present case). In each case, his Honour upheld the application for review and granted the amendment or approval sought.
3. As we know, in Romsey Hotel Pty Ltd the commission refused to grant approval for the gaming machines, principally because of the overwhelming community opposition, and having regard to the nature of Romsey as a rural township. In reviewing that decision, Morris J balanced the positive and negative considerations, as he identified them.
4. On the positive side, Morris J found the proposed upgrade of the hotel, which would be of benefit to the residents of the Romsey district, would not proceed without the gaming machines.[158] At least 60% of the expected $2.8 million in gambling expenditure would be transferred; only 40% would be new,[159] very little of which would come from tourists.[160]
5. On the negative side, Morris J again focussed on problem gambling.[161] In that connection, his Honour took into account the fact that Romsey was not disadvantaged.[162] Gaming machine density in the shire was relatively low.[163] His Honour said that the extent of community problems created by problem gambling was "amorphous".[164] With respect, I cannot agree and explain why elsewhere in this decision. He held the benefits outweighed the disbenefits of problem gambling.[165] His Honour took strongly into account that the shire had not, in the tribunal, lead any evidence of its survey of community opposition.[166]
6. In Macedon Ranges Shire Council v Romsey Hotel Pty Ltd,[167] the Court of Appeal (Warren CJ, Maxwell P and Osborn AJA) upheld the appeal against the decision of Morris J. In a unanimous judgment, the court decided that his Honour had committed an error of law in arriving at the decision to approve gaming machines at the Romsey Hotel without taking evidence of community opposition into account.[168]
7. The court held that community opposition - including opposition by people who did not gamble - was a relevant consideration which the tribunal was bound to take into account.[169] Although the shire did not lead evidence of community opposition, the reasons for the decision of the commission clearly exposed this as the central consideration.[170] The tribunal was conducting a hearing de novo on the merits and had to make the correct or preferable decision.[171] It could not discharge this function without at least taking that central consideration into account,[172] even though the shire did not make a submission on this point.[173] The weight to be attached to this consideration was, however, a matter for the tribunal.[174]
8. It held the requirement to take community opposition into account followed from the nature of the no net detriment test in s 3.3.7(1)(c) and from basic legal principles.[175]
9. The court held the no net detriment test in s 3.3.7(1)(c) required the tribunal and the commission to consider:[176]
   • the likely economic impacts of approval;
   • the likely social impacts of approval; and
   • the net effect of those impacts on the well-being of the relevant community

As to the meaning of 'social impact' and 'well-being', it said:[177]

'Social impact' means the impact on the society or community (or some part or parts of it) in which the gaming machines are proposed to be located. The 'well-being' of a community is a very broad concept. Dictionary definitions indicate that well-being is to be measured (at least) by the extent to which the community is healthy, happy, contented and/or prosperous.

if the approval of gaming at particular premises is likely to cause unhappiness or discontent in that community (or any part or parts of it), that consequence is a 'social impact of approval' which will be 'detrimental to the well-being of the community'. It will be 'detrimental to well-being because it diminishes the citizens' sense of happiness with, or contentment in, their community.

1. The court went on to deal with the potentially significant link between evidence of community attitude and the social character of a community:[179]

evidence of community attitude, together with other evidence as to the character of a community, may give rise to an inference as to the impact that a gaming proposal is likely to have upon the social character of that community. If satisfied that the impact would involve substantial change, the decision-maker is less likely to be satisfied that approval of the proposal will not result in net detriment. In the present case we take the commission to have reasoned in this way, namely that the particular factors which were distinctive of the social character of Romsey, in a positive way, were at unacceptable risk of change if the gaming proposal were approved.

1. It held the legislative objective of fostering responsible gaming[180] did not require Victorian communities to accept gaming machines.[181] Nor did the legislation prevent a community from relying on opposition to gaming machines 'in principle'.[182] Opposition was relevant whether or not it was referable to a particular proposal.[183] Since the legislation required a decision-making approach which 'maximises opportunities for community input',[184] relevant evidence of community opposition to gaming machines was not confined to what the responsible authority might present.[185] The statutory policy was one of 'openness and accessibility',[186] as revealed by provisions which required public hearings[187] and minimal formality and technicality[188] as the norm.
2. The court emphasised that consideration of the social impact of approval was not to be confined to the implications of problem gambling.[189] Under the Gambling Regulation Act, 'the views of the community at large should be heard',[190] whatever their foundation:[191]

there is no basis for treating as irrelevant for this purpose objections based on moral or religious grounds. The views which members of a community have about the kind of community in which they wish to live will reflect a whole variety of interests, aspirations, beliefs and experiences. If - as the commission found to be the case in Romsey - members of the relevant community 'find the prospect of gaming at [the proposed venue] so disconcerting that it would have a significant effect upon that community', it is immaterial whether such concerns are founded on philosophical or moral or religious views (or some combination of these) or simply reflect unarticulated views about the kind of community in which people wish to live.

1. In summary, said the court, the Gambling Regulation Act:[192]

mandates consideration of the social impact of granting approval for gaming machines. By directing attention specifically to impacts which may be detrimental to community well-being, the Act makes squarely relevant the subjective perceptions of community members about their community, and their views about the likely effect of gaming machines on that community. While there is no place for the personal views of the decision-maker, the personal views of community members must be given their proper place in the evaluation.

1. I begin with the shire's submissions that councils have a special status in the consideration of applications concerning gaming machines under the Gambling Regulation Act. It relies on their entitlement under s 3.3.6 to make submissions, the requirement under s 3.3.7(3) for those submissions to be considered and the further requirement in s 10.1.3(d) for government policy to be considered, including the policy favouring community input.
2. Councils perform an important statutory function in respect of decisions concerning gaming machines. It is of longstanding. As we have seen, the Gaming Machine Control Act included responsible authorities in the decision-making process in various ways.
3. In 1999 the Productivity Commission published its report on the Australian gambling industry. It said:[193]

the principle that local communities should be consulted ... is a strong one. Councils are close to the local community, and it is at the local level that most social impacts are concentrated. Councils may have a better perspective on the impacts of gambling on families, households and community life than state government agencies.

The commission went on to recommend that a mechanism for more local input be established to

take explicit account of community impacts of decisions and consult with local communities when matters of likely concern to them are under consideration ...[194]

1. Shortly afterwards the role of councils was increased by the Gambling Legislation (Responsible Gambling) Act 2000. It was increased again by the Gambling Regulation Act 2003. The significance of the function of local government in respect of the consideration of such applications has been emphasised in second reading speeches in parliament.[195]
2. The importance of the role of councils as the democratically elected representatives of people in local communities was recognised by Morris J in Branbeau Pty Ltd v Victorian Commission for Gambling Regulation.[196] His Honour held that, while the commission and the tribunal must therefore 'seriously consider' submissions by a council, this had to be done within the framework of the gaming legislation.[197]
3. For applications for approval of premises as suitable for gaming under the Gambling Regulation Act, the entitlement to be notified and make submissions is conferred on 'the relevant responsible authority within the meaning of the Planning and Environment Act 1987'.[198] For applications for amendment of the conditions of a venue operator's licence to increase the number of machines, the entitlement is conferred on 'the municipal council'.[199] The relevant responsible authority and the council will usually be the same entity. Section 13(a) of the Planning and Environment Act defines a responsible authority to be the municipal council for the municipal district. That definition will apply in most cases.
4. As I have noted, the 1991 gaming legislation did not require premises to be approved for gaming machines. Thus it did not regulate the places in which gaming machines were located and operated. The impact of machines on local communities was not then a consideration.
5. The introduction of approval for gaming machine premises in 1997 moved the regulatory scheme towards recognising the potential impact of gaming machines on local communities. It allowed for consideration of the approval to take place in terms of premises at a specific physical location. The 2000 amendments built on that foundation to introduce community benefit statements and the no net detriment test. These recognised the potential social and economic impact of gaming machines on the wellbeing of local communities, and allowed for consideration of that subject in the approval and amendment process. The 2003 legislation went a step further in that direction.
6. As the gambling legislation has progressively recognised the potential impact of gaming machines on local communities, so the role of local government into the decision-making process has been progressively enhanced. The legislation has employed the statutory role of municipal councils as the representative of local communities as one (not the only) important mechanism by which the impact of gaming machines on the wellbeing of such communities may be taken into account.
7. The role of councils was not expressly dealt with in Macedon Ranges Shire Council v Romsey Hotel Pty Ltd.[200] The Court of Appeal did stress the importance of evidence about the economic and social impact of gaming machines on the wellbeing of communities, having regard to the policy of statute in this regard.[201] It rejected the proposition that councils were the only conduit by which the views of the community could be so expressed.[202] That was not to cast into a pale light the role of councils, but to cast into a strong light the role of community input and its rationale.
8. The no net detriment test refers to 'the well-being of the community of the municipal district in which the premises are located'.[203] In the early cases, the commission said that meant the focus must be on district-wide community impacts.[204] It is clear now that is not correct. Macedon Ranges Shire Council v Romsey Hotel Pty Ltd[205] held the test applies to the district community 'or any part or parts of it'. A social impact, therefore, is an 'impact on the society or community (or some part or parts of it) in which the gaming machines are proposed to be located.'[206]
9. The reference in the test to the municipal district reflects the policy of considering the local impact of gaming machines on communities and the (non-exclusive) method employed in the legislation to obtain input from that source. The method is to involve local councils in the decision-making process. Councils have legislative authority to represent people in districts. So it was natural to refer to that unit of society in the test. This practical reason for referring to districts does not constrain the operation of the test. The test permits consideration of sub-district impacts, depending on the evidence. It would defeat the purpose of the test, indeed the whole scheme, to apply it otherwise.
10. Community wellbeing is a regulatory concept of some importance. It is not only in respect of gambling regulation that parliament has legislated on this subject. For example, the legislation establishing Neighbourhood Justice Centres refers to the objective of 'simplifying access to the justice system and applying therapeutic and restorative approaches in the administration of justice.'[207] The therapeutic approach to the administration of justice 'is an interdisciplinary study of the law's effect on physical and psychological wellbeing'.[208] As we will see, local government and health legislation has given councils important functions in respect of community wellbeing.
11. In order to understand the role of local government in making submissions in applications concerning gaming machines under the Gambling Regulation Act, it is appropriate to take into account the interlocking statutory setting in which councils are obliged to deal with the issue of community wellbeing. The rationale for these measures may be understood by reference to definition of health in the constitution of the World Health Organisation, which is framed in terms of wellbeing: 'Health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity.'[209] I will make further reference to this definition later.
12. Section 74A(1) of the Constitution Act 1975 recognises that local government in municipal districts is 'a distinct and essential tier of government'. The very idea of local government involves representation of the interests of people in local communities. That must be the starting point.
13. For some time it been the responsibility of local government to promote wellbeing in municipal communities. For example, in 1988 the Health Act 1958 was amended to give councils the function of prolonging life and promoting public health[210] and requiring them to prepare three-yearly municipal health plans[211] which (among other things) had to outline programs and strategies to 'enable people living in the municipal district to achieve maximum well-being'.[212] As explained by the Minister for Planning and Environment in the second reading speech, the purpose of the provisions was to allow councils to 'determine their own priorities in response to the particular needs of their residents' and to encourage public participation in debate about issues affecting the health of the community.[213]
14. The Local Government (Democratic Reform) Act 2003 modernised the Local Government Act 1989. The preamble to the latter now recognises the role of local councils in providing 'governance and leadership for the local community through advocacy, decision making and action.'[214] The objectives of councils now reflect the principle of wellbeing and include promoting 'the social, economic and environmental viability and sustainability of the municipal district'[215] and improving 'the overall quality of life of people in the local community'.[216] A 'local community' includes 'people who live in municipal district'.[217] The role of councils includes 'advocating the interests of the local community to other communities and governments'.[218] The functions of councils are similar.[219]
15. Introducing the 2003 amendments in the second reading speech, the Minister for Environment said the

bill aims to support the recognition of local government by bringing local government legislation up to date with contemporary thinking about the role of local government and to assist local councils to fulfil community expectations in regard to democracy, accountability and probity. [220]

1. The Local Government Act (as amended) requires council to prepare regular council plans.[221] These are not limited to financial and economic issues but must include strategies for achieving the objectives of council.[222] As we have just seen, these objectives include 'social, economic and environmental viability and sustainability' and the 'overall quality of life of people in the local community'.[223]
2. The council plan must be supported by a strategic resource plan,[224] a yearly budget,[225] and explain how it will contribute to achieving the council's strategic objectives.[226] There are companion provisions for annual reports[227] and performance statements.[228]
3. The modern objectives, roles and functions of councils under the Local Government Act will also need to be considered alongside the further development of public health regulation brought about by the Public Health and Wellbeing Act 2008 when it comes fully into force on 1 January 2010.[229] Just as the broad responsibilities of councils for promoting the interests of local communities under the Local Government Act are closely linked with the functions of councils under the 1988 amendments to the Health Act, so they will be closely linked with the functions of councils under the Public Health and Wellbeing Act.
4. As the Local Government (Democratic Reform) Act has modernised local government, so the commencement of the Public Health and Wellbeing Act will modernise health regulation. It will bring health policy and social policy closer together, just as the Gambling Regulation Act has brought economic policy and social policy closer together.
5. As explained by the Minister for Health in the second reading speech, the government was acting on research showing people's health outcomes were influenced by the 'whole environment that they experience'. That whole environment included 'social conditions that directly influence health outcomes'.[230]
6. The legislation was designed to provide a modern legislative framework for protecting and enhancing 'public health and wellbeing', which was defined to include 'the absence of disease, illness, injury, disability or premature death and the collective state of public health and wellbeing'.[231]
7. The objectives of the legislation include promoting and protecting the public health and wellbeing of people in Victoria.[232] As part of that objective, 'reducing inequalities in the state of public health and wellbeing' is specifically mentioned.[233] The legislation stipulates 11 principles, including evidence-based decision-making,[234] the primacy of prevention[235] and collaboration.[236]
8. The principle of evidence-based decision-making is directed to 'the most effective use of resources to promote and protect public health and wellbeing'.[237] In respect of the principle of primacy of prevention, the legislation states:[238]

capacity building and other health-promotion activities are central to reducing differences in health status and promoting the health and wellbeing of the people of Victoria.

The principle of collaboration is directed to enhancing health and wellbeing 'through collaboration between all levels of Government and industry, business, communities and industries.'[239]

1. Councils[240] are given important functions under the Public Health and Wellbeing Act. These express in a more highly evolved form the broad functions, framed around wellbeing, which we earlier saw in the 1988 amendments to the Health Act. Under the Public Health and Wellbeing Act, the central function of councils is to:[241]

seek to protect, improve and promote public health and wellbeing within the municipal district by -

(a) creating an environment which supports the health of members of the local community and strengthens the capacity of the community and individuals to achieve better health;...

1. To that end, councils must prepare annual public health and wellbeing plans.[242] The plans must be evidence-based[243] and identify 'goals and strategies... for creating a local community in which people can achieve maximum health and wellbeing'.[244]
2. The provisions of the Public Health and Wellbeing Act relating to the preparation of public health and wellbeing plans will come into force on 1 January 2010.[245] When the Gambling Regulation Act was passed in 2003, councils were obliged by the 1988 amendments to the Health Act to prepare three-yearly municipal public health plans on subjects including wellbeing.[246] This obligation was continued in slightly different language by amendments made by the Public Health and Wellbeing Act which are in force.[247]
3. Having regard to the interlocking obligations of councils under the Local Government Act and the Health Act (and soon the Public Health and Wellbeing Act), each encompassing aspects of wellbeing, it is to be expected that councils would engage in consultation, and make submissions, regarding gaming machines from the standpoint of their functions regarding municipal economic and social wellbeing generally. Community wellbeing is embedded in the functions of local government.
4. In the present case, the shire had an obligation under the Local Government Act to prepare a council plan and an obligation under the Health Act to prepare a municipal public health plan. It prepared these plans and each deals with wellbeing. Each has properly informed the submissions made by council in this case, although I would have welcomed submissions which were more explicitly explained and developed along these lines.
5. The shire's Council Plan 2006 - 2010 speaks of 'providing the opportunity for all to live a fulfilling life'. It states four goals: sustainable development, community wellbeing, sustainable environment and infrastructure and responsible governance. As to community wellbeing, this encompasses engaged and connected communities, improved quality of life for the community and a healthy and creative community.[248]
6. The shire's Health and Wellbeing Plan 2008-2011 contains a number of elements with implications for gaming, including:[249]

- Despite the wide range of recreation, sporting and open space facilities available within the Shire, there is a relatively low participation rate in regular structured physical activity, particularly amongst older people.

- Council has identified the need to increase community participation in structured and unstructured recreational activities as they provide various social and health benefits.

- [P]roblem gambling causes negative wellbeing and economic issues for individuals as well as the wider community; these problems are exacerbated when gaming venues are easily accessible and close to activities in services of normal daily life.

- [T]here are various health and wellbeing issues that are associated with problem gambling such as mental illness, social isolation, domestic violence and substance abuse.

1. To describe councils as having a special status in gaming machine applications may be misunderstood. But it is right to appreciate that councils have important functions bearing on public health and wellbeing under the Local Government Act and the Health Act (and the Public Health and Wellbeing Act after 1 January 2010) . Those functions give councils a foundation from which to make informed submissions about the economic and social impact of gaming machines on the wellbeing of local communities, which parliament has made their additional function under the Gambling Regulation Act. Consideration of such submissions is statutorily mandatory.[250]
2. The submissions of councils on this and other subjects are neither exclusive nor decisive. Submissions can come from other legitimate sources and the tribunal (and the commission) must make up its own mind about the relevant issues. Council's submissions, like all submissions, may be tested by the other parties by the usual means.

1. Although the shire accepted the overlap between the concepts of economic and social impact in the no net detriment test, it submitted the test required there to be no net economic detriment and no net social detriment. The test was not satisfied if, for example, the gaming machines had a positive economic impact which outweighed a negative social impact.
2. The hotel and the commission opposed these submissions. They submitted that, to determine whether the net impact was overall detrimental to the wellbeing of the community, positive and negative economic and social impacts had to be balanced.
3. The shire put the submission on the basis of the proper interpretation of s 3.3.7(1)(c). There is no precedential support for the shire's submissions in the jurisprudence of the commission, the tribunal or the court. If anything, the precedents are to the contrary. But the point has not yet been expressly decided.
4. As a matter of language, the expression 'net economic and social impact' seems to posit a composite test, even more so when those words are considered in the context of the provision as a whole. The ordinary and natural meaning of the language points to whether the net impact, in social and economic terms, will not be detrimental to the wellbeing of the community.
5. It would be artificial to interpret 'net' in 'net economic and social impact' as distributive, and 'and' as disjunctive, so that the provision reads 'net economic impact and net social impact'. Both 'net' and 'impact' are expressed in the singular.
6. The provision might be interpreted differently if its context or purpose so demanded. There is nothing of that kind supporting the shire's interpretation.
7. Although the issue was not directly dealt with in Macedon Ranges Shire Council v Romsey Hotel Pty Ltd,[251] the reasoning of the court does not support the shire's submissions. Warren CJ, Maxwell P and Osborn AJA held that s 3.3.7(1)(c) required consideration of the likely economic impacts of approval, the likely social impacts of approval and the net effect of those impacts on the wellbeing of the relevant community.[252] That is a description of a composite test.
8. The two-step and balancing approach of the commission[253] and the tribunal[254] to date are also contrary to the shire's submissions.
9. The shire's submissions seem to fly in the face of its concession that the concept of economic and social impact can overlap and may be considered together. How can net economic and social impact be assessed separately in cases where they overlap?
10. I therefore reject the shire's submissions on this point. The proper application of the no net detriment test in s 3.3.7(1)(c) requires consideration of whether the net economic and social impact of approval will not be detrimental to the wellbeing of the relevant community. That is a composite test requiring consideration of a single net impact, in economic and social terms, on the wellbeing of the community. The composite nature of the test must not be allowed to obscure the consideration which must be given to both economic and social impacts, because there is a distinction between the two. But these concepts can overlap and, in appropriate cases or respects, may be considered together.

1. I come now to the shire's submissions that the tribunal has no power to impose a condition of approval requiring the hotel to carry out the renovations which it has proposed or to make community donations. The hotel opposed those submissions. The commission did not enter this debate.
2. The hotel offered the conditions to meet the shire's objection that there was no guarantee the renovations would be carried out or the donations made.
3. For the reasons given below, I think there is power to impose a condition with respect to works at the premises or directly associated with them but not with respect to community donations. It is not necessary to exercise the first power in this case, as I hope will be so in most cases.
4. As to the renovations, I intend to proceed on the basis that the hotel will carry them out. I have no reason to doubt Mr Hogan's evidence in this regard. He has produced plans, obtained permits and engaged a builder. Generally he has gone as far as he can without actually commencing the works. Thus the objective evidence supports his personal evidence about his intentions in this regard. Carrying out the renovations is consistent with the hotel's commercial interests and with the Wallan Hotel business model, which the Romsey Hotel intends to replicate.
5. To date, the commission and the tribunal have been prepared to accept assurances that renovations and other projects will go ahead if approval for gaming machines is given. That is surely the appropriate course in most cases. Approving plans and specifications can give rise to difficulties. This is not the commission's area of expertise. The implementation of such conditions can involve regulatory supervision and the exercise of discretion in matters of building design and construction, which is not the commission's principal function. These matters are best left to councils.
6. If approval is given on the positive basis that renovations or projects will be carried out, and they are not, the approval might be revoked under s 3.3.12. Alternatively, giving formal approval may be delayed until the works have been started (or completed). All this is within the discretion of the commission (or the tribunal).
7. However, the commission's power to impose conditions on granting approval is expressed in general terms. It may impose conditions as to the date of effect of any approval[255] and 'any other conditions that the Commission thinks fit'.[256] It would be contrary to the regulatory purposes of the legislation to adopt a narrow interpretation of the power to impose conditions. I think the power to impose conditions extends to works at the premises and other works directly associated with the premises.
8. On general principles, the discretionary power to impose conditions must be exercised for the purposes of the legislation. Like all open-ended discretionary powers, it is constrained by the scope and object of the Act.
9. The shire submits no purpose of the legislation reaches this subject. I cannot accept that submission.
10. The proper application of the no net detriment test in s 3.3.7(1)(c) includes consideration of the positive economic and social benefits that might come from a facility renovated with income from gaming machines. The same may be said of other building works which are directly associated with the approval of the machines. If the applicant puts forward such benefits for consideration in the balance, the tribunal must consider them. These considerations regarding works at the premises or directly associated with them are closely connected with the commission's (and the tribunal's) regulatory function. Therefore, such matters may be a proper subject of regulation by the granting of conditional approval.
11. The commission must consider whether 'the premises are or, on the completion of building works will be, suitable for the management and operation of gaming machines'.[257] The shire accepts that the physical state of the premises might therefore be subject to a condition. But it submits this does not extend to proposed separate non-gaming facilities.
12. I cannot accept that submission. The cases before the commission and the tribunal to date show it is common, and I think legitimate, for applicants to rely on benefits which will be brought by such facilities. If the commission must take benefits like these into account, then its general power to impose conditions may reach that subject, if the condition relates to works at the premises or directly associated with the premises.
13. I do not think the commission has power, in any case, to impose a condition with respect to making community donations. Supporting community organisations through donations from gaming machine income is not part of the commission's (or the tribunal's) function. That is the function of the Community Benefit Fund. This subject is not closely connected with the premises or directly associated with them. Moreover, a condition of this kind may be difficult to define and enforce, place the commission in the position of being seen to mandate donations of a particular kind to particular groups and have unforeseen consequences.
14. Because the concept of a social impact on community wellbeing is very broad, I will admit the hotel's evidence of its intention to make yearly community donations of $30,000 and take this into account as a weak positive social impact. Failing to offer such donations is not a negative consideration of any degree.

(4) 'Economic' and 'social' impact, and 'wellbeing', in the no net detriment test

1. Gaming machines impact on local communities. It is there that the impacts are most concentrated. The impacts may be economic or social in character and positive or negative in direction. Section 3.3.7(1)(c) of the Gambling Regulation Act makes no net detriment on community wellbeing the test of approval for gaming machine premises and additional machines.
2. While economic and social impacts are distinct categories, they can overlap. In an appropriate case, these impacts may therefore be considered together. The purpose of considering these impacts is to determine whether, in net terms, they will not be detrimental to community wellbeing. The no net detriment test is a composite test.
3. The no net detriment test is different to a community benefit statement. A community benefit statement is what a person seeking approval of gaming premises for 24 hour gaming[258] or increased gaming machines at premises[259] must include in their application and give to the local council. It represents their views of the net economic and social benefits of the proposal for the local community. The no net detriment test is what the commission must apply in determining such an application. In administering the test, the question is whether the net economic and social impact will not be detrimental to the wellbeing of the community.[260]
4. The impacts which must be considered are both economic and social. Those terms are not used in any technical sense. An economic impact is an impact on trade or commerce, including the production and consumption of goods and services, investment and employment in the community of the municipal district (or any part of it.) A social impact is an impact on the people, particularly in their relations with each other, of that geographically defined community (in whole or in part). For the purposes of assessing social impact, I would apply the guidance offered by the International Association for Impact Assessment. This is its definition of social impact:[261]

The consequences to human populations of any public or private actions that alter the ways in which people live, work, play, relate to one another, organized to meet their needs and generally cope as members of society. The term also includes cultural impacts involving changes to the norms, values, and beliefs that guide and rationalize their cognition of themselves and their societies.

1. Because the economic category includes consumption, it is legitimate to treat the benefits of gaming consumption as an economic positive, as the Productivity Commission did in its 1999 report.[262] This approach also brings to account the benefit obtained from pure consumption by the lone gambler who does not use machines for social reasons. The other approach is to say, as did Morris J in Branbeau Pty Ltd v Victorian Commission for Gambling Regulation,[263] that gaming extends 'substantial economic and social benefits' to gaming machine users, which treats consumption as a benefit without saying whether it is economic or social.
2. Both approaches are correct. As the no net detriment test is a composite test, I do not think it matters whether the benefits of consumption for the gaming machine user are included on the economic or the social side, or both, as long as they are included and are not double-counted.
3. Once the likely economic and social impacts have been identified, it is necessary to consider the net effect of these impacts on the wellbeing of the relevant community. Identifying the impacts is not an end in itself, but a step towards understanding whether the wellbeing of that community will not be detrimentally affected.
4. In Macedon Ranges Shire Council v Romsey Hotel Pty Ltd,[264] Warren CJ, Maxwell P and Osborn AJA held that no narrow approach is to be taken to the concept of community wellbeing. The court held 'the "well-being" of a community is a very broad concept.'[265] Wellbeing was related to the impact of the machines on 'the society or community (or some part or parts of it) in which the gaming machines are proposed to be located.'[266] Adopting the ordinary dictionary meaning of the word, it held 'well-being is to be measured (at least) by the extent to which the community is healthy, happy, contented and/or prosperous.'[267] Therefore, approvals likely to cause unhappiness or discontent in the community (or any part or parts of it) will cause a social impact which is detrimental to its wellbeing.[268]
5. As the court went on to hold, evidence of the subjective views of the community - of community attitudes - must be relevant to the impact of approval on the wellbeing of the community,[269] whether and however such views are explained.[270] In particular, evidence of community attitude, considered together with evidence of the nature of the community, 'may give rise to an inference as to the impact that a gaming proposal is likely to have upon the social character of that community.'[271] In this connection, the court referred to the reasoning of the commission in the present case that 'the particular factors which were distinctive of the social character of Romsey, in a positive way, were at unacceptable risk of change if the gaming proposal were approved.'[272] As you will see, I endorse that reasoning.
6. The Local Government Act, the Health Act and the Public Health and Wellbeing Act are, in material respects, framed around the concept of wellbeing. The concept of wellbeing in these related fields of local government and public health reinforces the very broad meaning adopted by the Court of Appeal. That takes me back to my earlier analysis of the role of councils under this legislation, which I will only repeat to the extent necessary here.
7. Under the Local Government Act, the role of councils includes leading the local community 'through advocacy, decision making and action.'[273] Their objectives include promoting 'the social, economic and environmental viability and sustainability of the municipal district'[274] and improving 'the overall quality of life of people in the local community'.[275] Further, councils must prepare regular plans[276] for implementing their objectives,[277] including their social objectives. These plans must be supported by strategic resource plans,[278] yearly budgets,[279] as well as annual reports[280] and performance statements.[281]
8. In the application concerning the hotel, the proceedings before the commission and the tribunal have straddled the period in which the Health Act was amended by the Public Health and Wellbeing Act. At all material times, however, local councils have been obliged, under the provisions applying before[282] or after[283] 2009, to prepare municipal public health plans addressing community wellbeing. The obligation continues until 1 January 2010 when the provisions of the Public Health and Wellbeing Act with respect to the preparation of annual health and wellbeing plans, and other relevant subjects, come into force.
9. The broad concept of wellbeing on which these measures are based is encapsulated in, if not inspired by, the constitution of the World Health Organisation, of which Australia is a member. That constitution defines health broadly to include social aspects (as you have seen), and connects a person's individual state of health to the health and security of people generally, stressing the role of government:[284]

Health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity.

The enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social conditions.

The health of all peoples is fundamental to the attainment of peace and security and is dependent upon the fullest co-operation of individuals and States.

Governments have a responsibility for the health of their peoples which can be fulfilled only by the provision of adequate health and social measures.

1. The state of wellbeing has social, cultural, economic and environmental elements. It is an holistic concept. It sees the community and the people who make it up in their whole context. In a community, wellbeing can, and under Victorian government programs is, measured by reference to various indicators (often by surveys of the community). These indicators are complex and reflect national and international research. They include the level of community engagement and connectedness, the extent of local social infrastructure and the strength or capacity of people in the community, and of communities as a whole, to live healthy and meaningful lives.
2. The views of people in a community (however subjective) can provide valuable insight into the lived experience of their individual and collective wellbeing and how the social character of a community may be affected by a significant change.
3. Since capacity is important for wellbeing, and participation builds capacity, an aspect of wellbeing is democratic participation by people at the local level in decision-making about issues affecting them. That principle has obviously been influential in the design of the provisions by which community input is obtained under the gaming legislation.
4. As we saw, the shire's Council Plan 2006-2010 and Health and Wellbeing Plan 2008-2011 reflect these elements of the concept of health and wellbeing.
5. Community wellbeing is an evidence-based concept. That is why it can be measured by indicators. Consideration of gaming expenditure, machine density, indices of disadvantage and population statistics is therefore relevant, as is consideration of the broader elements of wellbeing. But it was Albert Einstein who said that not everything you can count counts and you cannot count everything that counts. In the final analysis, the no net detriment test concerns the net economic and social impact of gaming machines on the lived experience of wellbeing of the real people in the community who exist behind the numbers.
6. Just how the wellbeing of a community is impacted by the introduction of gaming machines, or additional machines, depends on the individual proposal, the nature and degree of the impact and the character of the community, as revealed by the evidence. Those issues must necessarily be approached case by case. Applying that approach to this case, approval must be refused.

1. Section 3.3.7(1) of the Gambling Regulation Act requires the tribunal to refuse approval of premises for gaming machines unless it is satisfied that the applicant has authority to make the application (paragraph (a)), the premises are or will be suitable for the management and operation of gaming machines (paragraph (b)) and the net economic and social impact of the approval will not be detrimental to the wellbeing of the local community (paragraph (c)).
2. I am satisfied the applicant in the present case has authority to make the application and that the premises (once renovated in accordance with the tendered plans) will be suitable for the management and operation of gaming machines.
3. The proper approach to the application of the no net detriment test in s 3.3.7(1)(c) is to consider the likely economic impacts of approval, the likely social impacts of approval and the net effect of those impacts on the wellbeing of the relevant community.[285]

1. On the positive side, the provision of a renovated hotel facility is a likely positive economic impact of approval. The Romsey Hotel is presently modest at best. It needs renovation. The new hotel will, like the Wallan Hotel, be of a modern standard and provide lasting economic benefits to Romsey and the surrounding community.
2. Romsey is presently not well served by the facilities which the renovated hotel will offer, particularly function rooms, and especially at night.
3. As described by Mr Hogan, the redevelopment will involve expenditure of about $2.8 million. Additional complimentary expenditure (food and beverages) in the refurbished hotel will be in the order of $2.1 million per annum.
4. The renovations are not commercially viable without the gaming machines, and will go ahead if approval is given.
5. Mr Hogan has already undertaken some renovations at the hotel. They were modest. If approval is not given, he may undertake further renovations, but on a smaller scale, and over a longer time scale, than if approval for gaming machines were to be given. Some additional economic activity would result from any such further renovations, but much less than would be the case if the full-scale renovations were to go ahead.
6. The construction phase of the hotel will bring a degree of temporary extra economic activity to the town.
7. The hotel will bring a modest increase in local employment. I accept the submissions of the Romsey Hotel that the increase will be in the order of 30 plus equivalent full-time positions. That submission is supported by the draft roster and seems reasonable, having regard to the nature of the renovated facilities and the scale of the intended business. Most of those new jobs are likely to be part-time. The jobs will be of value to people who find it hard to get local work, including tertiary students.
8. The extra employment will provide a modest stimulus to the local economy. Most of that stimulus will be new.
9. The introduction of gaming machines at the hotel would bring significant benefits to those people in Romsey and its surrounds who like to use gaming machines. This is legitimate consumption of a recreational service and strongly economically positive. Present gaming machine users will not have to travel outside their town to game. That is a social positive because driving on country roads, especially at night, can be dangerous. New users will have access to a local facility. It would expand freedom of choice for consumers of this service. The focus group evidence of the satisfied gaming machine users at the Wallan Hotel supports this conclusion.
10. On the negative economic side, there will likely be some shift in retailing expenditure away from local and district businesses towards gaming machines expenditure. There will also be a transfer of money from the community to the government.
11. Romsey is a rural township with a population of 4,490 in 2006. The broader Romsey SLA had a population of 10,860 in 2006. Under the relevant planning scheme, Romsey is a major urban centre but not a major commercial centre. It has a number of local small businesses, mostly concentrated on the western side of the main street. These are small retail in nature. At least a substantial part of their turnover comes from local trade. The local economy in Romsey is not robust.
12. Gambling expenditure (player losses) will be (say) $2.8 million per annum[286] if gaming machines are approved for the hotel. Only 25% of that - $700,000 - will stay with the hotel. The rest - $2.1 million - will go out of the community to the machine supplier and the government. Some unquantifiable proportion of that may theoretically come back to the community through Community Support Fund grants and other government expenditure. For reasons I give later, about 80% of that expenditure of $2.8 million will be new to gaming and come from the residents of the rural township of Romsey. Only some 20% will be transferred from existing gaming expenditure in other venues.
13. It is difficult to estimate reliably the amount of expenditure which consumers are likely to transfer from local businesses to the gaming machines at the hotel. Many will use their savings first, which might not have been spent locally anyway. Those savings will eventually run out. Many people will transfer discretionary expenditure on goods like clothes and other personal items to gaming. Trade in businesses in Sunbury, which is in the shire's municipal district, may suffer as a result. It is also necessary to take into account the increased demand for locally-supplied goods and services which the refurbished hotel will itself generate.
14. In the setting of the rural township at Romsey, I think it likely that, in the net result, local trade will be adversely affected to some extent by gaming machines at the hotel.
15. Businesses in Romsey are not entitled to protection from fair competition from the hotel for consumer spending preferences, and they are not asking for that protection. But I find that retail spending patterns will shift in this small rural market. While it is unlikely that any particular business will fail as a result, approving gaming machines will have some depressive effect on local and district trade, which will adversely impact on the community. I include that in the balance as an economic negative. In a rural township, local businesses form part of the broader fabric of the community. If local businesses suffer, there are social consequences. That is a negative consideration as well.
16. The hotel submitted I should find the impact of gaming machines will likely be slightly economically positive. I accept that submission, but that is only after taking into account the strong positive economic impact of the consumption of gaming machine services for the great majority of users.
17. The shire submitted I should decide I cannot make any finding about the economic impact of the proposal on this community. I reject that submission. The evidence is sufficient to allow me to make the finding that the gaming machines would be slightly economically positive.

1. The evidence establishes that the introduction of gaming machines to the Romsey Hotel will cause significant unhappiness and discontent in a substantial part of the community in Romsey. That discontent is based on fears that gaming machines will alter the social character of the community for the worse. Those fears are genuinely held and not without foundation.
2. The effects of gaming machines are controversial. There is a substantial body of evidence and informed opinion that their economic and social impact is negative. There is a substantial body of evidence and opinion on the other side of the argument also. It cannot be denied, however, that there is a debate about which different views can reasonably and genuinely be held.
3. That there is a substantial level of opposition in the community to the introduction of gaming machines at the hotel is established by three surveys - two from the shire and one from the hotel.
4. The first survey of the shire simply asked whether respondents supported the installation of gaming machines in Romsey, yes or no. There was a 69% return rate. Of the respondents who returned their surveys (1,559), 79% (1,238) said no and 20% (313) said yes. This is a very high return rate and an equally high negative response. It is evidence of substantial opposition to gaming machines in Romsey. This is relevant to the impact of approving gaming machines at the hotel. On the results of the survey, installing gaming machines anywhere in Romsey, including the hotel, would cause unhappiness and discontent in the local community.
5. This survey was not very sophisticated, which I will take into account. But it was a legitimate survey which produced relevant results.
6. The second survey of the shire was carried out by the University of Ballarat in 2008. A total of 404 of 1,420 households in Romsey were called by telephone. This is a high representative sample of the population of Romsey. A high proportion of respondents were aware of the hotel's application and its intention to use profits from gaming machines to refurbish the hotel. That is evidence of high community interest in the issue.
7. About half (51%) said approving the machines would have some impact on them. Of them, a strong majority (81%) said it would make them unhappy (39% very so). That, according to Mr McEachern, represented 40% of the population of Romsey. Only a small minority (9%) said installing the machines would make them happy. About half (49%) said approving the machines would impact on their contentedness. Of them, a strong majority (84%) said it would make them discontented (32% very so). Only a small minority (6%) said it would make them more content. About half (47%) said installing the machines would impact on their wellbeing. Nine out of ten of them (91%) said it would decrease their wellbeing (34% greatly). The same small minority (6%) said it would increase their wellbeing.
8. Two-thirds of the respondents (68%) said installing the machines would negatively effect the social character of Romsey. Only a small minority (13%) said the affect would be positive. I have given further details of the survey in my summary of the evidence.
9. The respondents were told the shire opposed installing the machines at the hotel. That would have been common knowledge among most respondents. They were not told the refurbishment could not go ahead without the machines. That would have been assumed by most respondents. I do not think the results of the survey were affected by either of these considerations.
10. A survey of the hotel was carried out by DBM Consultants, also in 2008. Telephone interviews were conducted among a representative sample of the Wallan and Romsey communities.
11. The Wallan results were largely positive for gaming machines at the hotel. On those results, the community there believe they have not been affected.
12. The Romsey results were very different, and similar to those obtained in the shire's second survey.
13. A strong majority (74%) were familiar with the hotel, having visited it. This in itself suggests the hotel is a valuable community facility, even in its present condition. Two-thirds (66%) supported the overall redevelopment. Mostly large majorities supported the introduction of facilities other than gaming machines. A clear majority (62%) opposed the gaming machine component (54% strongly). Only a quarter (24%) were supportive. Of that clear majority (62%) who opposed the gaming machine component of the project, half (50%) maintained their opposition (43% strongly) when told the redevelopment would not go ahead without the machines.
14. Two-thirds (68%) said the local community would be worse off (42% much worse off) with gaming machines at the hotel. But a large majority (87%) said it would have little effect on them personally. Again, I described the results of this survey more fully in my summary of the evidence.
15. The three surveys demonstrate unequivocally there is substantial community opposition to gaming machines at the hotel, even if the redevelopment of this modest country pub would not go ahead without them. About half of the population opposed the introduction of the machines even on that basis. Introducing the machines would cause substantial unhappiness and discontent, and little positive feeling, to the community of Romsey. This goes well beyond temporary ill-feeling of the kind which might dissipate in time.
16. Why is there this level of opposition? The surveys themselves did not go into the reasons for the views expressed by the respondents. Nor did they have to. If the views were simply irrational, the results of the surveys would have to be weighed in that light. But the evidence in this case reveals there is a reasonable and legitimate basis for the views.
17. There is no question that the hotel needs development. There is equally no question the community regards the hotel as a valuable facility in its present form. The surveys reveal that most people in Romsey are familiar with and visit the hotel. It is a hub of social activity. A substantial part of the community does not believe the people of Romsey will be much better off with a modern hotel if it has gaming machines. After refurbishment with a gaming room, the hotel will have a different feel and character. Bringing gaming machines into the community will also bring social consequences. I think that is why about half of the population would be rendered unhappy and disconcerted by the introduction of the machines, even if this resulted in the refurbishment of the hotel.
18. As I have said, the impact of gaming machines on local communities is a contentious subject. Looking at the evidence in the present case, and putting to one side the findings I make, a reasonable person may think that gaming machines can increase problem gambling, shift retail spending patterns away from local businesses, take money out of local communities and contribute to a pro-gambling culture. On the other hand, the evidence may lead other reasonable people to think the negative impacts of gambling are exaggerated and the positive impacts are undervalued, especially the simple pleasure of playing the machines for most gamers.
19. Many people in local communities have views - sometimes strong views - about these issues. Such views give some insight into the kind of community in which people wish to live, which is an aspect of their wellbeing. The aspirations of a community in this regard reflect a whole variety of interests, values, beliefs and experiences.[287] Views between communities may differ on this subject. The no net detriment test is not one size fitting all on this subject. The local focus of the test ensures that it is the view of the community affected which is taken into account, because it is their wellbeing which is at stake.
20. There are several features of the Romsey community which rationally explain its views about gaming machines. Geographically, it is a rural township. It is not really isolated like some more remote places in the country. But it is not a suburb of Melbourne or a rural city. It is surrounded by agricultural land. It is small (but growing) and has a relatively young population. It is a pretty, quiet and peaceful place in which mainly young and middle-aged families are working hard and growing up their children in a safe rural environment where people care about each other. That is the social character of Romsey.
21. On the evidence, I think a substantial part of the community is of the view that this social character would change for the worse if gaming machines were introduced to the hotel. Gaming machines, especially at the only pub in town, which is located on a prominent corner location in its charming main street, represents a fundamental challenge to the way the community sees itself. These views are entitled to appropriate respect when assessing the impact of gaming machines on the wellbeing of the community.
22. In another community a proposal like this one may be successful. Another community might not be affected by the introduction of gaming machines in the same way as this community. Another community may not voice this strong opposition. The local council may put forward a positive view of the proposal. The location and social character of the community may be different. Those are matters for consideration in the individual case. It is not this case.
23. Now to the likely source of the hotel's gaming machine patronage.
24. The evidence from Mr Hogan was that up to 80% of that patronage would come from transferred expenditure - people who presently gamble elsewhere transferring their custom to the hotel. The final submission of the hotel was that the proportion would be 50-60%.
25. Mr Hogan is an experienced publican in the region with a strong knowledge of and feel for his own market. I give his views some weight. But he is not a disinterested witness on this subject and his views are not supported by the other evidence.
26. The evidence from Tattersalls was that its expenditure modelling was based on a nil transfer component. That is because there is no other venue with gaming machines within six kilometres of the hotel. The model only takes into account expenditure transferred from venues inside that radius.
27. Romsey is a rural township in the municipal district of the Macedon Ranges. In that district, there are gaming machines at Gisborne and Kyneton, which are 40 and 31 kilometres away from Romsey respectively. Wallan is just outside the district about 25 kilometres away. People in rural areas travel more readily than in the city. I think some people in Romsey would be travelling to those venues now and most of them would be likely to transfer their custom to the hotel. Doing the best I can, I think this will likely represent some 20% of the hotel's gaming patronage. That also accords with the proportion of people in non-metropolitan areas who are generally prepared to travel 20 kilometres to use gaming machines.
28. The great majority of the hotel's patronage will come from Romsey itself. It will come from within a radius of approximately six kilometres of the hotel, which covers most of the township. It is here that the positive and negative social and economic impacts on the community will largely be felt. That is a part of the shire's municipal district and therefore comes within the expression 'the community of the municipal district in which the premises are located' within s 3.3.7(1)(c).
29. In socio-economic terms, Romsey is not disadvantaged. Working families in Romsey may be suffering a degree of 'mortgage stress' due to high household mortgage repayments. I do not think this changes the overall picture. The township and the shire have a relatively low population of low income earners and high population of middle and high income earners than, on average, Victoria generally. Unemployment is a little lower than the state average. The SIEFA (socio-economic index for areas) score for Romsey (and its near-neighbour Springfield) is 1,054, as compared with the Victorian median score of 993. Only 11% of districts in Victoria are more advantaged than Romsey.
30. Under the Gambling Regulation Act, the views of people about the impact of gaming machines on the wellbeing of their community are relevant, whether they are relatively advantaged or disadvantaged in socio-economic terms. Further, the weight to be given to their views is not affected by the socio-economic character of the community. All communities have an equal right to provide input about the impact of gaming machines on their wellbeing and to have their views properly considered. Therefore, the socio-economic status of Romsey is not material to the relevance of, and weight to be given to, the views which have been expressed through the three surveys and the submissions of the shire.
31. The significance of Romsey not being disadvantaged is that it is not to be seen as a particularly vulnerable community terms of problem gambling. Approving gaming machine premises in the midst of disadvantaged communities raises acute issues of problem gambling. Romsey is not a community of that kind. That Romsey is not disadvantaged is also relevant to the capacity of the community to absorb the expected gambling expenditure. It would do so more easily than a disadvantaged community.
32. The location of the hotel is not ideal from the point of view of gaming machines. It is highly visible on a prominent corner of the main street of Romsey. It is a community landmark. It is within, albeit on the edge, of the business one zone. It is opposite two churches and a bus stop. Although it is on the opposite side of the wide main street to precinct where most of the retail activity takes place, it is easily accessible to and from that precinct. It is next to the Community Hub where a library, learning facility and child care centre are located, even if the gaming room will mainly be accessed from the entrance around the corner and the main opening hours of each facility do not coincide.
33. The location of the hotel needs to be considered from the perspective of people in a rural township. Although the retail, service and community facilities in the township may seem to be relatively distant from each other in the eyes of someone from the city, I think a local resident is likely to view things differently. On the spectrum of location types from convenience to destination, the hotel is not, in my view, a destination venue. Therefore its location is a partial social negative.
34. The evidence of comparative gaming machine expenditure and density does not give rise to significant concerns if the figures are examined from a district perspective.
35. As to expenditure, for the shire, country Victoria and Victoria, average gaming machine expenditure per head of adult population was $265, $505 and $639 respectively in 2006. If approval is given, the figures for the shire will be about $344 and for the Romsey SLA about $368 (based on expenditure of $2.8 million), which are relatively low. The figures may be lower if expenditure is lower. The forecast expenditure compares favourably with expenditure on personal items and is not, in itself, a concern.
36. While so concluding, I am concerned about whether these figures reveal an accurate picture. The figures are for the shire, country Victoria, Victoria and the Romsey SLA. But the great majority of the gambling expenditure will come from people in the rural township of Romsey, which is even smaller than the suburb of Romsey. Surely that smaller population must be the main focus of the gaming expenditure analysis. Looking at gaming machine expenditure on a district, regional or state-wide basis may obscure our view of the impact of the machines on the local community from which the losses mainly come. Unfortunately I do not have comparative figures for expenditure in communities defined in that way. I am reluctant to compare township figures with the figures for higher aggregate populations as it may not be comparing like with like.
37. The evidence of gaming machine density shows there are three other venues in the shire, being the Victorian Tavern in Gisborne with 42 machines, the Kyneton Bowling Club with 25 machines and the Kyneton RSL with 28 machines. The density figures for the shire, Victoria and Romsey SLA (if approval is given) are 4.53, 7.23 and 3.92 per thousand adults respectively. Again, this is relatively low.
38. The problem with viewing the figures in this way is that, if approval were to be given, the density figure for the suburb of Romsey would be 9.7 machines per thousand adults. For the residential centre of Romsey, it would be 12.5 machines per thousand adults. Both are much higher than the figures for the shire, Victoria and the Romsey SLA. On the other hand, these figures are close to the density figures for the suburb of Gisborne (9.5 machines per thousand adults) and Kyneton (11.8).
39. Gaming machine density is much higher in the communities from which the losses actually come, being those close to the premises where the machines are located, than the more-commonly used statistics reveal. This is a factor worthy of more careful analysis. I would like to have examined the issue of gaming machine expenditure and density from this perspective more fully. Given the way the data is currently presented, as revealed in the present case, I do not think I can.
40. In the result, I do not treat the comparative gaming machine expenditure and density, if approval is to be given, as a negative consideration.
41. That brings me to problem gambling.
42. Not being disadvantaged, the Romsey community is not especially vulnerable to problem gambling. Problem gambling is still a serious issue. It strikes all communities, disadvantaged communities only more so in degree. While every community may not be especially vulnerable to problem gambling, every community contains individuals who are so vulnerable. The impact of problem gambling on a community which is not disadvantaged therefore must be taken into account. The views of such a community about problem gambling are entitled to equal consideration.
43. Like drug and alcohol addiction, indeed all addictions as such, problem gambling can be ruinous for the individual and impact heavily on their family and friends. The impact of problem gambling is out of all proportion to the nature of the activity itself and the actual number of problem gamblers. The consequences of problem gambling for individuals and society were fully described by the Productivity Commission in its 1999 report[288] and in evidence given in this case. I have summarised the contents of the report and the evidence.
44. There is no question that Mr Hogan is concerned about problem gambling. His Wallan Hotel gaming facility is operated according to best practice principles to minimise and control problem gambling. I have no doubt the Romsey Hotel will be operated according to the same principles if approval were to be given. The hotel would cooperate with government and community organisations to achieve the best possible outcome in this regard. The commitment and capacity of the hotel to minimise and control problem gambling is not a negative consideration in this case. The proposed gaming room has been relocated to a discrete position at the rear of the building.
45. Even with these best operating principles, problem gambling will be a problem if I were to grant approval. Of the new gaming expenditure at the hotel of about $2.8 million, about 80% (about $2.2 million) will be new to gaming. That amount will largely come from the people of the rural township of Romsey, which had a population of 4,490 in 2006. (I do not have the figures for the adult population, but Romsey has a greater than average proportion of adults.) On the analysis of the Productivity Commission, about 2% of gamblers (1% with severe problems and 1% with moderate problems) will be responsible for one-third (33%) - say $700,000 - of this new gaming expenditure. The remainder will be spread throughout the community. Because Romsey may have fewer problems gamblers than more vulnerable communities, the actual amount may be less. I think it is still likely to be significant.
46. Behind each of these problem gamblers experiencing severe difficulties with their work, study, relationships, personal health and finances, including those who will contemplate suicide, there will be a family or a friend in this small rural community, feeling affected, concerned, embarrassed and (irrationally) shamed. In such a community, addictions like problem gambling are highly visible. I would think a large proportion of the community would actually know who many of the problem gamblers are and be familiar with their family and friends. The problem gamblers will be seen going to and from, with predictable regularity, this prominent location on the main street of their township.
47. Therefore increasing problem gambling in Romsey is a negative social impact on community wellbeing of introducing gaming machines in the hotel.
48. Against the negative social consequences of problem gambling, I must weigh the positive social benefits of gaming machines for the great majority of users. I have recognised consumption of gaming machine services as a positive under the economic category. I accept it also has many social benefits. For example, many lonely people benefit from going to a venue to use machines in the company of others whom they may not know. Many people who go out little at all would go to the hotel for the enjoyment of using the machines. Many people would have something to do at night in their own town when the present choices are extremely limited.
49. If approval is granted, positive social benefits will flow to sporting clubs and community organisations which will be able to access a modern facility for their functions. At present that is lacking, especially for functions at night. They would also benefit from the annual donations ($30,000) which the hotel intends to make.
50. When weighing these considerations in the balance, the view of the local community is an important (but not decisive) consideration. The social impact of problem gambling is much affected by the character of the local community. As I have said, some communities may be more impacted than others and in different ways. The Gambling Regulation Act requires these issues to be dealt with on a community by community basis. In the present case, a substantial part of the community of Romsey has demonstrated that they will be made unhappy and disconcerted by the introduction of gaming machines at the hotel.
51. Taking all these considerations into account, I am of the clear view that the social impact of the introduction of gaming machines at the Romsey Hotel will be strongly negative.

(4) Net effect of impacts on community wellbeing

1. I have concluded the economic impact of the introduction of the machines will be slightly positive. I have concluded the social impact will be strongly negative. It follows that the net economic and social impact of the gaming machines will be detrimental to the wellbeing of the community of Romsey. It follows that I am not satisfied that the impact of approval will not be detrimental. The application of the hotel for approval of its premises for gaming machines must therefore be refused.

1. The Victorian gambling legislation has been amended over time to shift the balance in the regulation of the industry. Among the reforms which have been introduced are rules with respect to gaming machines. Approval must be obtained for new gaming machine premises or more machines at existing premises. That approval can only be given if the net economic and social impact would not be detrimental to the wellbeing of the municipal community.
2. Previously, concerned residents did not have a direct say in decisions about gaming machines in their community. Yet the impact of gaming machines is most felt by families, households and communities at the local level. The reforms were designed (among other things) to address that situation.
3. Community wellbeing is a regulatory concept of some importance. It has been employed in the Gambling Regulation Act 2003, the Local Government Act 1989, the Health Act 1958 and (more recently) the Public Health and Wellbeing Act 2008. Under the Gambling Regulation Act, which applies in this case, wellbeing is the object of the no net detriment test. Under the Local Government Act, the objectives and functions of municipal councils are now framed around wellbeing. Under the Health Act, councils prepare municipal health plans dealing (among other things) with wellbeing. Under the Public Health and Wellbeing Act, councils must (after 1 January 2010) prepare and implement plans for the promotion of wellbeing in the community.
4. Community wellbeing is the state of happiness, contentment and prosperity of a community, or part of it. Wellbeing is an holistic concept which sees people and communities in their whole context. It is a function of the physical, social, economic, cultural and spiritual condition of the people, individually and collectively. The wellbeing of a community is indicated (among other things) by its connectedness, its social infrastructure and it capacity for healthy and meaningful life. Democratic participation by people at the local level about issues affecting them reflects their capacity to build a healthy and prosperous community. Therefore it too is an aspect of wellbeing.
5. While gaming machines have economic and social impacts on the wellbeing of communities, not every community necessarily experiences those impacts in the same way. For some, the impact may be positive. They may attribute a higher value to freedom of choice and the pleasure which gaming machines gives to the great majority of users. For others, the impact may be negative or neutral. They may attribute a higher value to the consequences of money going out of local communities and problem gambling. The no net detriment test must be applied case by case in the context of the given community. The question is always whether the net economic and social impact of approval will not be detrimental to the municipal community (or any part of it). In that connection, the attitude of the community is a factor of considerable importance.
6. The proper application of the no net detriment test requires identification of the likely economic impacts of approval, the likely social impacts of approval and the net effect of those impacts on the wellbeing of the community.
7. The Romsey Hotel in a modest country pub - the only one in town - in the rural township of Romsey in the Shire of Macedon Ranges in country Victoria. Romsey Hotel Pty Ltd has established it can and will carry out much-needed renovations to the hotel if approval for gaming machines is given. The renovations are not commercially viable without the income from the machines. Once renovated, the premises will be suitable for the operation of gaming machines and the facility will be well managed by experienced regional publicans. The Romsey Hotel will be comparable to their award-winning Wallan Hotel, which has provided a valuable service to that town.
8. Gaming machines at the hotel would have positive and negative economic impacts which I have considered on the evidence. On the positive side, there is the new consumption of gaming services - simply playing the machines - which is a benefit for the great majority of users. There is also the renovated hotel and the extra employment and economic activity it will bring. On the negative side, there is the money which will go out of the town (about $2.1 million per annum, of which about 80% will be from new gaming expenditure) and the adverse effect on local businesses. On balance, I have concluded the economic impact will be slightly positive.
9. Turning to the social impact, the proposal to install gaming machines at the hotel has generated significant controversy. In three surveys in 2005 and 2008, a substantial part of the community of Romsey has expressed its strong opposition to gaming machines in the town and the hotel in particular. About half the town are opposed even if this means the hotel will stay as it is. The shire council has taken up the cause of the residents in these proceedings. It submits gaming machines should not be forced on the community as it would be to the detriment of their wellbeing.
10. It is necessary to take account of the social character of the rural township of Romsey. This is a quiet and hard-working community where life is neighbourly and family centred. Romsey is not a commercial centre with a robust economy. The small businesses rely on local custom. The hotel is in a prominent location on a corner position in the main street opposite two churches and a bus stop, and next to a community centre. The idea of gaming machines at the hotel represents a major challenge to the way many in the community see themselves and I can understand why.
11. Although Romsey is not disadvantaged or especially vulnerable to problem gambling, this is still a consideration. All communities, whether disadvantaged or not, are entitled to be concerned about problem gambling because every community has people vulnerable to problem gambling. I have concluded the adverse consequences of problem gambling for individuals and their families and friends in Romsey represent a negative social impact of approval, although less than would be the case in a disadvantaged community.
12. On the comparative figures for the district, country Victoria and the whole State, gaming machine expenditure and density in the shire will be below average if approval were to be given. But not everything you can count counts and you cannot count everything that counts. Wellbeing is a concept requiring consideration of the impact of gaming machines on people in society. That cannot be done in purely statistical terms. On the evidence in this case, I have concluded the community has genuine and legitimate reasons to fear the impact of gaming machines on the social character of Romsey and the lived experience of their wellbeing.
13. On balance, I have concluded the social impact of gaming machines at the hotel on the wellbeing of the community will be strongly negative.
14. In conclusion, the likely economic impact of approval will be slightly positive. The likely social impact of approval will be strongly negative. The net economic and social impact will be negative. I am therefore not satisfied that the net economic and social impact of approval will not be detrimental to the wellbeing of the community. I affirm the decision to refuse to grant approval. The hotel's application for review of that decision is dismissed.

[1] Productivity Commission, Australia's Gambling Industries: final report: summary (1999).

[12] [2005] VCAT 2606.

[14] [2008] VSCA 45; (2008) 19 VR 422.

[15] [2008] HCA 13; (2008) 234 CLR 124.

[16] [2005] VCAT 2606, [84].

[17] [2002] VSCA 80, [65]-[67].

[18] [2008] VSCA 45; (2008) 19 VR 422, [39].

[19] The dates refer to the dates of the reports.

[20] [2002] VSCA 80.

[21] In the matter of an application by Werribee Football Club Incorporated (Unreported, Victorian Casino and Gaming Authority, Mr B Forrest, chairman, Mrs U Gold, member, Mr P McMullin, member, 28 March 2001); In the matter of an application by RPH Pty Ltd (Roxburgh Park Hotel) (Unreported, Victorian Casino and Gaming Authority, Mr B Forrest, chairman, Mrs U Gold, member, Dr D Hore, member, 3 July 2001).

[22] Section 99.

[23] Sections 1(a), (b) and (c).

[24] Section 13.

[25] Section 14.

[26] Section 21(2).

[27] Section 27(5). The same was the case with commission-proposed amendments to a gaming operator's licence: s 36(5).

[28] Section 19(5).

[29] Section 19(4).

[30] Section 20(2).

[31] Section 20(1).

[32] Section 34(1)-(2).

[39] Section 11 of the amending Act amending s 21(1) of the principal Act.

[41] Section 6 of the amending Act amending s 1 of the principal Act.

[42] Victoria, Parliamentary Debates, Legislative Assembly, 2 March 2000, 181 (John Pandazopoulos).

[47] The authority was established by the Gaming and Betting Act 1994, s82; under s 166 the authority became the "successor in law" to the commission.

[49] Introduced by s 20 of the 2000 amending Act.

[51] New s 12CA(1) introduced by s 19 of the 2000 amending Act.

[52] Sections 12B(3A)(c) and 27(2A)(c) introduced by ss 12 and 17 respectively.

[53] New s 27(2B), (2C) and (3B)(ac) introduced by s 22.

[54] New s 27(2A)(c), which required the operator to make a submission 'on the net economic or social benefit that will accrue to the community' in the relevant district, introduced by s 17(3).

[55] In the matter of an application by Werribee Football Club Incorporated (Unreported, Victorian Casino and Gaming Authority, Mr B Forrest, chairman, Mrs U Gold, member, Mr P McMullin, member, 28 March 2001).

[61] [2008] VSCA 45; (2008) 19 VR 422, [44].

[62] In the matter of an application by RPH Pty Ltd (Roxburgh Park Hotel) (Unreported, Victorian Casino and Gaming Authority, Mr B Forrest, chairman, Mrs U Gold, member, Dr D Hore, member, 3 July 2001).

[63] In the matter of an application by Pascoe Vale RSL (Unreported, Victorian Casino and Gaming Authority, Mrs U Gold, presiding member, Mr G McDonald, member, Mr P McMullin, member, 25 June 2003).

[64] In the matter of an application by RPH Pty Ltd (Roxburgh Park Hotel) (Unreported, Victorian Casino and Gaming Authority, Mr B Forrest, chairman, Mrs U Gold, member, Dr D Hore, member, 3 July 2001), [12].

[65] [2002] VSCA 80.

[68] Victoria, Parliamentary Debates, Legislative Assembly, 6 November 2003, 1595 (John Pandazopoulos).

[86] Sections 3.3.4(4), 3.3.5, and 3.3.6 (approving premises); ss 3.4.18(1)(c), 3.4.8(2) and 3.4.19(1) (increasing the number of machines).

[87] In the matter of an application by Hogan's Hotel Pty Ltd (Unreported, Victorian Commission for Gambling Regulation, Mr I Dunne, chair, Mrs J King, deputy chair, Mr P Cohen, executive commissioner, 22 October 2004).

[88] In the matter of an application by Romsey Hotel Pty Ltd (Unreported, Victorian Commission for Gambling Regulation, Mr I Dunne, chair, Mrs J King, deputy chair, Ms S Grobtuch, acting executive commissioner, 21 April 2006).

[89] In the matter of an application by Kyneton RSL (Unreported, Victorian Commission for Gambling Regulation, Mr I Dunne, chair, Mrs J King, deputy chair, 25 August 2006).

[90] In the matter of an application by Hilldove Pty Ltd (Unreported, Victorian Commission for Gambling Regulation, Mr I Dunne, chair, Mr R Smith, sessional commissioner, 5 April 2007).

[91] In the matter of an application by Beretta's Langwarrin Hotel Pty Ltd (Unreported, Victorian Commission for Gambling Regulation, Mr I Dunne, chair, Ms S Jones, sessional commissioner, 12 August 2008).

[92] In the matter of an application by Hogan's Hotel Pty Ltd (Unreported, Victorian Commission for Gambling Regulation, Mr I Dunne, chair, Mrs J King, deputy chair, Mr P Cohen, executive commissioner, 22 October 2004).

[95] In the matter of an application by Werribee Football Club Incorporated (Unreported, Victorian Casino and Gaming Authority, Mr B Forrest, chairman, Mrs U Gold, member, Mr P McMullin, member, 28 March 2001).

[96] In the matter of an application by Hogan's Hotel Pty Ltd (Unreported, Victorian Commission for Gambling Regulation, Mr I Dunne, chair, Mrs J King, deputy chair, Mr P Cohen, executive commissioner, 22 October 2004), [63].

[101] In the matter of an application by Romsey Hotel Pty Ltd (Unreported, Victorian Commission for Gambling Regulation, Mr I Dunne, chair, Mrs J King, deputy chair, Ms S Grobtuch, acting executive commissioner, 21 April 2006).

[102] [2005] VCAT 2606.

[103] In the matter of an application by Romsey Hotel Pty Ltd (Unreported, Victorian Commission for Gambling Regulation, Mr I Dunne, chair, Mrs J King, deputy chair, Ms S Grobtuch, acting executive commissioner, dated 21 April 2006), [62].

[113] In the matter of an application by Kyneton RSL (Unreported, Victorian Commission for Gambling Regulation, Mr I Dunne, chair, Mrs J King, deputy chair, 25 August 2006).

[123] [2008] VSCA 45; (2008) 19 VR 422.

[125] In the matter of an application by Hiildove Pty Ltd (Unreported, Victorian Commission for Gambling Regulation, Mr I Dunne, chair, Mr R Smith, sessional commissioner, 5 April 2007).

[130] In the matter of an application by Beretta's Langwarrin Hotel Pty Ltd (Unreported, Victorian Commission for Gambling Regulation, Mr I Dunne, chair, Ms S Jones, sessional commissioner, 12 August 2008).

[131] [2008] VSCA 45; (2008) 19 VR 422.

[132] In the matter of an application by Beretta's Langwarrin Hotel Pty Ltd (Unreported, Victorian Commission for Gambling Regulation, Mr I Dunne, chair, Ms S Jones, sessional commissioner, 12 August 2008) [38].

[140] [2008] VSCA 45; (2008) 19 VR 422.

[143] [2005] VCAT 2606.

[153] [2008] VSCA 45; (2008) 19 VR 422.

[154] [2005] VCAT 2606, [44]-[48].

[155] [2006] VCAT 1921.

[156] [2007] VCAT 2.

[157] [2007] VCAT 1.

[167] [2008] VSCA 45; (2008) 19 VR 422.

[175] Ibid [40], [42] and [47]. The court referred to Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 39-40; Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, 177 and 179; and Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323, 351-2.

[176] [2008] VSCA 45; (2008) 19 VR 422, [43].

[177] Ibid. In a footnote the court referred to the New Shorter Oxford English Dictionary (3rd ed 1993), 3654.

[178] [2008] VSCA 45; (2008) 19 VR 422, [44].

[181] [2008] VSCA 45; (2008) 19 VR 422, [55].

[193] Productivity Commission, Australia's Gambling Industries: inquiry report, vol 2 (1999) 22.31.

[195] As to the Gambling Legislation (Responsible Gambling) Act, see Victoria, Parliamentary Debates, Legislative Assembly, 2 March 2000, 181 (John Pandazopoulos); for the Gambling Regulation Act, see Victoria, Parliamentary Debates, Legislative Assembly, 6 March 2003, 1596 (John Pandazopoulos).

[196] [2005] VCAT 2606.

[198] See ss 3.3.5, 3.3.6, 3.3.7(3) and (4).

[200] [2008] VSCA 45; (2008) 19 VR 422.

[203] Sections 3.3.7(1)(c) and 3.4.20(1)(c).

[204] See eg In the matter of an application by Werribee Football Club Incorporated (Unreported, Victorian Casino and Gaming Commission, Mr B Forrest, chairman, Mrs U Gold, member, Mr P McMullin, member, 28 March 2001), [33].

[205] [2008] VSCA 45; (2008) 19 VR 422, [44].

[207] Courts Legislation (Neighbourhood Justice Centre) Act 2006, s 1.

[208] Michael King, et al, Non-Adversarial Justice (2009) 22.

[209] Constitution of the World Health Organisation.

[210] Section 29A as introduced by s 10 of the Health (General Amendment) Act 1988, which came into effect on 1 January 1993 (Special Gazette (no 51) 12 September 1989, 1).

[211] Section 29B(1) as introduced by s 10 of the Health (General Amendment) Act 1988.

[212] Section 29B(2)(b)(ii) as introduced by s 10 of the Health (General Amendment) Act 1988.

[213] Victoria, Parliamentary Debates, Legislative Assembly, 10 March 1988, 544 (Tom Roper).

[220] Victoria, Parliamentary Debates, Legislative Assembly, 15 October 2003, 1027 (John Thwaites).

[229] The Public Health and Wellbeing Act is not yet fully in force. Sections 1-3, 246, 249, 254, 255, 263-266 came into operation on 1 January 2009: Special Gazette (no 365) 12 December 2008, 1. The remainder and substantive provisions of the Act will come into operation on 1 January 2010: s 2.

[230] Victoria, Parliamentary Debates, Legislative Assembly, 8 May 2008, 1731 (Daniel Andrews).

[240] Councils are defined in s 3(1) to have the same meaning as under s 3(1) of the Local Government Act 1989.

[241] Section 24(a).

[242] Section 26(1).

[243] Section 26(2)(a).

[244] Section 26(2)(b).

[245] They are covered by s 26, which comes into force on that date: see s 2.

[246] Section 29B as introduced by s 10 of the Health (General Amendment) Act 1988.

[247] Section 263 of the Public Health and Wellbeing Act substituted a new s 29B of the Health Act 1958 for the old provision. The new provision is framed in terms of wellbeing (for example, s 29B(2)(b) and (c) require the plan to '(b) identify goals and strategies based on available evidence for creating a local community in which people can achieve maximum health; (c) provide for the involvement of people in the local community in the development, implementation and evaluation of the public health plan') without actually mentioning that term. These amendments came into force on 1 January 2009.

[248] Evidence of Dr Kerkin, Macedon Ranges Shire Gambling Policy Framework (Coombes Consulting and Macedon Ranges Shire Council, 2008) 16.

[250] Section 3.3.7(3). As already noted, if the responsible authority has not made a submission, it must be sought: s 3.3.7(5).

[251] [2008] VSCA 45; (2008) 19 VR 422.

[253] See eg In the matter of an application by Werribee Football Club Incorporated (Unreported, Victorian Casino and Gaming Authority, Mr B Forrest, chairman, Mrs U Gold, member, Mr P McMullin, member, 28 March 2001), [15]-[16] and In the matter of an application by RPH Pty Ltd (Roxburgh Park Hotel) (Unreported, Victorian Casino and Gaming Authority, Mr B Forrest, chairman, Mrs U Gold, member, Dr D Hore, member, 3 July 2001), [12].

[254] See eg Branbeau Pty Ltd v Victorian Commission for Gambling Regulation [2005] VCAT 2606, [44]-[49].

[260] Sections 3.3.7(1)(c) and 3.4.20(1)(c).

[261] Evidence of Dr Kerkin, Social Impacts Assessment of Proposed Installation of Electronic Gaming Machines to the Romsey Hotel (Coombes Consulting, 2008) 15.

[262] Productivity Commission, Australia's Gambling Industries: final report: summary (1979) 32.

[263] [2005] VCAT 2606, [79].

[264] [2008] VSCA 45; (2008) 19 VR 422.

[267] Ibid, citing the New Shorter Oxford English Dictionary (3rd ed, 1993) 3654.

[282] Section 29B of the Health Act 1958 as introduced by s 10 of the Health (General Amendment) Act 1988 with effect from 1 January 1993.

[283] Section 29B of the Health Act 1958 as substituted by s 263 of the Public Health and Wellbeing Act 2008 with effect from 1 January 2009.

[284] Constitution of the World Health Organisation.

[285] Macedon Ranges Shire Council v Romsey Hotel Pty Ltd [2008] VSCA 45; (2008) 19 VR 422, [43].

[286] I use this figure on the sensible suggestion of the Romsey Hotel as the higher figure mentioned in the evidence.

[287] See Macedon Ranges Shire Council v Romsey Hotel Pty Ltd [2008] VSCA 45; (2008) 19 VR 422, [58].

[288] Productivity Commission, Australia's Gambling Industries: inquiry report (1999).