Whitebull HTL Pty Ltd v Independent Liquor and Gaming Authority; Area Hotel UT Pty Ltd v Independent Liquor and Gaming Authority; The Griffith Hotel Pty Ltd v Independent Liquor and Gaming Authority

Area Hotel

1. On 6 April 2021, Area Hotel lodged an application to the ILGA seeking to increase the gaming machine threshold for the Area Hotel from 23 to 30 and to lease seven gaming machine entitlements from Griffith Hotel.
2. On 27 October 2021, the ILGA, via email to Area Hotel's legal representative, approved the Area Hotel's application however, also sought to impose the Challenged Conditions on the Area Hotel's hotel licence (despite its objections), purportedly pursuant to s 53 of the Liquor Act. As distinct from the conditions imposed on Whitebull, the ILGA required the dedicated staff member at the Area Hotel to monitor the gaming machines whenever the gaming machines are operating.
3. On 16 December 2021, the Area Hotel filed a summons seeking relief against the ILGA in the following terms: "The Plaintiff claims: 1 A declaration that Conditions 3030 and 3040 (the 'Purported Conditions') purportedly imposed by the Defendant on hotel licence L1QH400116853 relating to the Area Hotel Griffith ('the Licence') upon the Defendant's grant of the Plaintiff's application to: a) approve the lease of seven (7) gaming machine entitlements pursuant to Part 3, Division 2A Gaming Machines Act 2001 from hotel licence LIQH400116896 (relating to the Griffith Hotel) to the Licence and b) increase the gaming machine threshold of the Licence from 23 to 30, are invalid and of no effect. 2 An order that the Defendant amend its records relating to the Licence to remove reference to the Purported Conditions. 3 A declaration that, in determining an application for the leasing of gaming machine entitlements pursuant to Part 3, Division 2A Gaming Machines Act 2001, the relevant statutory considerations are exhaustively set out in that Division. 4 A declaration that, in determining an application for leasing of gaming machine entitlements pursuant to Part 3, Division 2A Gaming Machines Act 2001, questions of the possible or likely impacts on the local community are irrelevant. 5 A declaration that, in determining a gaming machine threshold increase application in circumstances where, pursuant to sec. 35(2) Gaming Machines Act 2001 the threshold increase application is not required to be accompanied by a local impact assessment, questions of the possible or likely impacts on the local community are irrelevant. 6 ln the event that the orders are opposed, the Plaintiff's costs of and incidental to these proceedings. 7 Any further or other order as the Court sees fit."
4. The grounds provided in the summons read as follows: "1 The Purported Conditions were purportedly imposed in excess of the Defendant's statutory power. 2 The Defendant had no power to impose the Purported Conditions. 3 Part 3, Division 2A Gaming Machines Act and Part 4, Division 1 Gaming Machines Act 2001 exhaustively set out the criteria to apply to the exercise of the statutory discretions in relation to the applications made by the Plaintiff to the Defendant."

Griffith Hotel and North Rydge

1. On 15 December 2021, Griffith Hotel and North Rydge lodged an application to the ILGA seeking to: 1. Increase the gaming machine threshold for the Gemini Hotel (of which North Rydge is the business and premises owner) by one; and 2. Transfer one gaming machine entitlement from the Griffith Hotel Motel (of which the Griffith Hotel is the corporate licensee, business owner and premises owner) to the Gemini Hotel.
2. The two hotels are located 200 metres apart and within the same local statistical area ("LSA"). With the application, Griffith Hotel also lodged a Gaming Plan of Management setting out additional gaming harm minimisation measures which North Rydge would voluntarily apply at the transferee hotel, the Gemini Hotel.
3. After receiving the application, the ILGA proposed that the Griffith Hotel and North Rydge accept the imposition of two conditions on its Gaming Plan of Management, the content of which were similar to the Challenged Conditions imposed on Whitebull and Area Hotel. This proposal was informed by the fact that the hotels are located in a Band 3 LSA, the Gemini Hotel is licensed to trade past 2:00am on 6 days of the week and the Gemini Hotel "enjoys higher than average levels of gaming activity". The ILGA stated that the Griffith Hotel's gaming harm minimisation measures "may not sufficiently mitigate potential risks flowing from these applications for a venue of your risk profile".
4. Griffith Hotel and North Rydge contended they maintained that the ILGA was not empowered to impose the Challenged Conditions pursuant to the statutory scheme and refused to proffer any additional restrictions.
5. On 15 June 2022, the ILGA refused the application. By letter dated 4 August 2022, the ILGA gave reasons for the refusal. The ILGA stated that it had had regard to the "opportunities afforded to [the Griffith Hotel and North Rydge] […] to address [the ILGA's] concerns about gaming harm minimisation", and that the Griffith Hotel and North Rydge had failed to address the concerns. The ILGA further wrote that when making decisions under the GM Act it must have regard to the public interest, which, informed by the statutory objects prescribed by s 3 of the GM Act, includes gambling harm minimisation.
6. On 23 August 2022, Griffith Hotel (as the first plaintiff) and North Rydge (as the second plaintiff) filed a summons seeking relief against the ILGA in the following terms: "The Plaintiffs claim: 1 An order in the nature of certiorari under sec. 69 of the Supreme Court Act 1970 quashing the decision of the Defendant, made on or about 15 June 2022, to refuse the transfer of a single gaming machine entitlement from the licence of The Griffith Hotel Motel, 25 Kooyoo Street, Griffith (LIQH400116896) to the licence of the Gemini Hotel, 201-227 Banna Avenue, Griffith (LIQH400123264), and the consequent increase in the gaming machine threshold of the Gemini Hotel (collectively the 'Applications'). 2 An order that the Applications be granted. 3 ln the alternative to Order 2, an order that the Applications be remitted to the Defendant to be determined according to law. 4 A declaration that, in determining an application for transfer of gaming machine entitlements pursuant to Part 3 Division 2 of the Gaming Machines Act 2001, the relevant statutory considerations are exhaustively set out in that Division. 5 A declaration that, in determining an application for transfer of gaming machine entitlements pursuant to Part 3 Division 2, questions of the possible or likely impacts on the local community are irrelevant. 6 A declaration that, in determining a gaming machine threshold increase in circumstances where, pursuant to Section 35(2) Gaming Machines Act 2001, the threshold increase application is not required to be accompanied by a Local lmpact Assessment, questions of the possible or likely impacts on the local community are irrelevant. 7 ln the event that the orders are opposed the Plaintiffs costs of and incidental to these proceedings. 8 Any further or other order as the Court sees fit."
7. The grounds provided in the summons read as follows: "1 ln arriving at its decision to refuse the Applications, the Defendant misconstrued its powers in respect of Sections 19(2)(a) and 34(4) and (5) of the Gaming Machines Act 2001 in circumstances where no LIA [Local Impact Assessment] was required pursuant to Section 35(2) thereof, and had regard to irrelevant considerations. 2 Alternatively, the Defendant constructively failed to exercise its statutory power in making the decision in circumstances where the Defendant could only validly exercise its jurisdiction by granting the Applications, rendering the purported decision invalid. 3 The purported refusal is affected by error of law on the face of the record."

Incident register and responsible gaming officer (the Challenged Conditions)

1. Although there is a difference in the period of time during which a Responsible Gaming Officer is required to be present at Whitebull and Area Hotel, the Challenged Conditions purportedly imposed by the ILGA generally read as follows: "Gambling Incident Register 1. The licensee must keep and maintain a gambling incident register. 2. The gambling incident register must record: (a) any incident in which a patron of the venue displays or engages in problematic gambling behaviour of the kind specified in the 'Signs of risky and problem gambling behaviour: Know the signs and how to act' factsheet published on the L&GNSW website as amended from time to time. (b) the time, location and machine number(s) and brief description (or identity, if known) of any gaming machine player identified displaying or engaging in that behaviour (c) any proposed or implemented self or third-party exclusions of gaming machine players (specifying the player's name (where provided or known), membership number (if applicable) and duration of any exclusion) and the patron's response to the same. (d) Any breach or attempted breach of a self or third party exclusion 3. The gambling incident register must also record details of the action taken in response to the incidents, applications and other matters recorded in the register. 4. The licensee must review the gambling incident register at least on a monthly basis and must consider whether an exclusion order is appropriate for any person who has been asked to self-exclude but has declined to do so. 5. The information recorded in a gambling incident register must be retained for at least 3 years from when the record was made. 6. The licensee must, at the request of a police officer or L&GNSW inspector, make any gambling incident register available for inspection. Responsible Gambling Officer (Gambling Contact Officer) 1. The Licensee shall ensure that one Responsible Gambling Officer (Gambling Contact Officer), being a dedicated staff member who holds a current RCG certificate, is on duty and monitoring the gaming machines of the venue whenever gaming machines are operating after midnight. 2. The Officer's primary duties are to: (i) maintain the gambling incident register; (ii) make reasonable efforts to identify gaming machine players who display or engage in problematic gambling behaviour; (iii) if any gaming machine player displays or engages in multiple problematic gambling behaviour as outlined in the Authority's Guideline, during a single trading day, then the Officer must (at least once during that trading day): (a) request that the player take a break from gaming machine play until the close of trade on that day or night (noting that a player who complies with a request to take a break may remain on the premises and consume other goods and services); (b) provide information about the self-exclusion scheme offered at the premises (being the scheme available pursuant to s. 49 of the Gaming Machines Act 2001) and ask whether the player wishes to participate in that scheme; (c) provide information about and access to problem gambling counselling. 3. This condition is not breached by: (i) a Responsible Gambling Officer (Gambling Contact Officer) undertaking minor additional gaming duties, so long as such duties do not detract from the Officer's primary duties; or (ii) the temporary absence of the Officer from the gaming machine areas, where such absence occurs in the ordinary course of their primary duties (for example, to engage with a gaming machine player in a private space) or is by way of a routine break from work (such as a meal break or a bathroom break). 4. At all times, the Duty Manager or other senior manager responsible for gaming machine operations will assist the Responsible Gambling Officer (Gambling Contact Officer) in carrying out the duties described in this condition."
2. It is contended that non-compliance with the Challenged Conditions would "expose the Hotel's licensee to criminal sanction, including possible imprisonment" (s 11(2) of the Liquor Act). The main point of contention is the requirement in relation to having a responsible gaming officer and the consequent cost.

The legislative framework

1. It is convenient to consider the nature and scope of the relevant legislative framework.

The Gaming Machines Act 2001 (NSW)

1. The GM Act provides a regime for the regulation, control, and management of gaming machines. In the Note to s 1 of the GM Act, it is stated: Note - This Act is part of the gaming and liquor legislation for the purposes of the Gaming and Liquor Administration Act 2007. That Act contains administrative and other relevant provisions that apply in relation to this Act (including investigation and enforcement powers and provisions relating to the probity of officials).
2. An object of the GM Act is harm minimisation associated with the misuse and abuse of gambling activities (s 3(1)(a)).
3. Part 3, Div 2 provides the framework for the transfer of gaming machine entitlements. The general rule for the transfer of gaming machine entitlements is that they be transferred only in blocks of two or three between hotel or club licences (s 20(3)(a)). From each transfer block, one gaming machine entitlement is forfeited to the State (s 20(3)(b)). Some exceptions to the general rule apply. One of those exceptions applies to Griffith Hotel as it has a gaming machine threshold of one. Therefore, the proposed transfer of a single gaming machine entitlement to another country hotel, the Gemini Hotel (as sought in its application to the ILGA), does not require that the gaming machine entitlement form part of a transfer block, and does not require the entitlement be forfeited (s 20A).
4. Part 3, Div 2A provides the framework for the leasing of gaming machine entitlements.
5. To transfer or lease additional gaming machine entitlements, a venue must also increase its gaming machine threshold. The gaming machine threshold scheme is set out in Pt 4, Div 1 of the GM Act.
6. Under the scheme, the ILGA may set a maximum number of approved gaming machines that may be authorised to be kept in a hotel or set of club premises (s 32(1)). This maximum number is called the "gaming machine threshold" (s 32(2)). A hotelier or club may apply to the ILGA to increase the gaming machine threshold for the hotel or club premises (s 34(1)). Section 32(5) provides that the gaming machine threshold for a hotel or the premises of a club may be increased or otherwise varied by the Authority in accordance with this Act.
7. Section 34(4) confers on the ILGA a power to approve the threshold application "only if" it is satisfied that the requirements of Pt 4, Div 1 of the GM Act and the Gaming Machines Regulation 2019 (NSW) have been complied with.
8. Part 4, Division 1 provides three categories of cases for determining gaming machine threshold applications. Differing levels of community consultation and information requirements apply according to the relevant case category.
9. The case category, nature and extent of impact assessment required depends upon the following variables, summarised by the plaintiffs as follows: "First, the 'banding' of the local statistical area (LSA) in which the relevant hotel or club is located. Bandings are determined by the [ILGA] having regard to a formula which takes into account the socio-economic index for the LSA concerned, gaming machine expenditure per capita and number of gaming machines per capita. LSAs in the bottom 20% of the State (with the highest levels of socio-economic disadvantage) are put into Band 3, the next 30% are put into Band 2 and the remaining 50% (with the lowest levels of socio-economic disadvantage) are put into Band 1. Secondly, the extent of the gaming threshold increase sought. An increase of more than 40 is deemed a 'high range' threshold increase, an increase of 21 to 40 is deemed a 'mid-range' increase and an increase from 1 to 20 is deemed a 'low range' increase: see cl. 30 Gaming Machines Regulation 2019." (Footnotes omitted.)
10. The above variables are applied in the following manner, resulting in three identifiable case categories.

The first category

1. Pursuant to s 35(4) of the GM Act, an applicant for any of the following is required to lodge a comprehensive Class 2 LIA (unless a statutory exception applies): 1. A "high-range" threshold increase in a Band 1 LSA; 2. A "mid-range" or "high-range" increase in a Band 2 LSA; or 3. Any increase in a Band 3 LSA.
2. In this category, the ILGA must be satisfied that the threshold increase would have an "overall positive impact on the local community" (s 36(3)(d)).
3. Section 36(1) provides that if an LIA is required to be provided with a threshold increase application, the application cannot be approved unless the ILGA approves the LIA. Section 36(3) sets out the requirements of an LIA, and s 36(4) states "[t]he regulations may specify other grounds on which the [ILGA] may refuse to approve an LIA."

The second category

1. Pursuant to s 35(3), an application for any of the following requires the lodgement of a less comprehensive Class 1 LIA: 1. A "low-range" (1 to 20) increase in gaming machine threshold for venues located in Band 2 LSA; or 2. A "mid-range" increase (20 to 40) in a Band 1 LSA.
2. In the second category, the ILGA must be satisfied the threshold increase will provide a "positive contribution towards the local community" (s 36(3)(c)).

The third category

1. The third category comprises the following types of applications: 1. Applications for venues in a Band 1 LSA where no more than a "low-range" increase is sought over any 12-month period (s 35(2)(a)); and 2. Where the applicant venue is seeking to take a lease or transfer of gaming machine entitlements: 1. From another venue in the same LSA (s 35(2)(b)); 2. From a venue located in the same or higher banded LSA within the same local government area (s 35(2)(c)); or 3. From a venue located in an adjoining LSA which is ranked the same or higher than the applicant venue (s 35(2)(d)).
2. Pursuant to s 35(2), the third category of threshold increase applications are not required to be accompanied by an LIA.

Authorisation to keep or dispose of gaming machines

1. Section 56 of the GM Act is found in Pt 5, Div 1 under the heading "Authorisation to keep or dispose of gaming machines". Section 56(1) is a threshold provision in the legislation which provides, (1) A hotelier or club must not keep or dispose of an approved gaming machine unless- (a) the keeping or disposal of the gaming machine is authorised by the [ILGA], and (b) the hotelier or club complies with the requirements of or under this Act in relation to the keeping or disposal of the gaming machine and with the conditions to which the authorisation is subject. (Emphasis added.)
2. Section 56(4) provides that the total number of approved gaming machines the ILGA may authorise consists of the number of approved gaming machines corresponding to the number of gaming machine entitlements, and the number of approved gaming machines that corresponds to the number of permits.
3. Section 56(6) provides that an authorisation under this section is subject: (a) to such conditions as may be imposed by the [ILGA] in relation to the keeping or disposal of the approved gaming machines to which the authorisation relates, and (b) to such conditions as are specified in this Act or as may be prescribed by the regulations. (Emphasis added.)

The Liquor Act 2007 (NSW)

1. The objects of the Liquor Act are set out at s 3(1) of the Act: (1) The objects of this Act are as follows - (a) to regulate and control the sale, supply and consumption of liquor in a way that is consistent with the expectations, needs and aspirations of the community, (b) to facilitate the balanced development, in the public interest, of the liquor industry, through a flexible and practical regulatory system with minimal formality and technicality, (c) to contribute to the responsible development of related industries such as the live music, entertainment, tourism and hospitality industries.
2. It can be observed that there is nothing specifically set out in the objects relating to the gaming or gambling industry.
3. Section 7(1) of the Liquor Act provides that a person must not sell liquor unless the person is authorised to do so by a licence. Section 8 provides that a person must not use premises to sell liquor unless the premises are licensed "or are otherwise authorised under this Act to be used for the sale or supply of liquor".
4. Part 3 is entitled "Liquor licences". Within Div 1 of Pt 3 is s 10 which provides for a number of types of licences which may be granted and held "under this Act". Section 10(2) provides that "[a] licence authorises the licensee to sell or supply liquor in accordance with this Act and the conditions of the licence" (emphasis added). Section 10(3) provides that "[t]he authorisation conferred by a licence is subject to this Act and the regulations."
5. It can be observed that the tenor of the remainder of the Liquor Act reflects the stated objects of the Liquor Act - see for example, s 48: community impact; s 52: ILGA may impose special licence conditions: (1) conditions relating to harm minimisation; (2) conditions relating to serving of liquor; (3) conditions relating to local liquor accords; s 56: incident registers; s 73: prevention of excessive consumption of alcohol on licensed premises; s 74: sale of stolen goods and possession, use or sale of drugs on licensed premises; s 99: regulation making power for responsible sale, supply, service or promotion of liquor; Pt 7: special provisions relating to minors.
6. Section 53 of the Liquor Act is to be found in Pt 4 entitled "Licensing procedures and related matters", within Div 2 entitled "Miscellaneous provisions relating to licences and licence-related authorisations". It confers on the ILGA the power to vary or revoke licence conditions. The section provides: 53 [ILGA] may impose, vary or revoke licence conditions (1) Without limiting any other provision of this Act, the [ILGA] may at any time- (a) on application by the Secretary or the Commissioner of Police, or (b) on the [ILGA]'s own initiative impose conditions on a licence. (1A) The conditions that may be imposed by the [ILGA] on a licence under this section include, but are not limited to, conditions - (a) prohibiting the sale or supply of liquor on the licensed premises before 10 am or after 11 pm (or both), and (b) restricting the trading hours of, and public access to, the licensed premises. (2) The [ILGA] may at any time - (a) on application by the licensee, the Secretary or the Commissioner of Police, or (b) on the [ILGA's] own initiative, vary or revoke a condition of a licence that has been imposed (or taken to have been imposed) by the [ILGA] under this Act.
7. Pursuant to subs-ss 53(4)-(6), there are circumstances where a licensee or other person may make submissions about the altered conditions and the ILGA is to take those submissions into consideration.
8. It can be observed that s 53 does not refer to gaming or gambling - but is, on its face, at large. It can also be observed, however, that the non-exhaustive conditions nominated in s 53(1A) relate either to the sale of liquor or restricting trading and public access to licensed premises.
9. There are some limited references to both "gambling" and "gaming" in the Liquor Act.
10. Section 1 provides "This Act is the Liquor Act 2007". In identical terms to the Note to s 1 of the GM Act, the Note to s 1 of the Liquor Act also provides: This Act is part of the gaming and liquor legislation for the purposes of the Gaming and Liquor Administration Act 2007. That Act contains administrative and other relevant provisions that apply in relation to this Act (including investigation and enforcement powers and provisions relating to the probity of officials).
11. Section 15 provides: (1) The following provisions apply in relation to a hotel licence (the hotel primary purpose test) - (a) except as provided by section 15A, the primary purpose of the business carried out on the licensed premises must at all times be the sale of liquor by retail, (b) the keeping or operation of gaming machines (as authorised under the Gaming Machines Act 2001) on the licensed premises must not detract unduly from the character of the hotel or from the enjoyment of persons using the hotel otherwise than for the purposes of gambling. (2) The authorisation conferred by a hotel licence does not apply unless the hotel primary purpose test is complied with in relation to the licensed premises. (3) Any premises (other than the actual hotel) that are authorised by the Authority for the sale of liquor under a hotel licence are, for the purposes of this Act, taken to be part of the licensed premises to which the licence relates. (Emphasis added.)
12. Section 15A provides for the cessation of liquor sales by a hotelier in certain situations. Section 15A(1) provides that a hotelier may, at any time during the period that an extended trading authorisation is in force in relation to the licensed premises: (a) cease to sell or supply liquor on the licensed premises, and (b) continue to provide, or make available, other services and facilities on the licensed premises (such as food and non-alcoholic beverages, entertainment and the use of the premises for conference or meetings and for gambling activities that are otherwise permitted on the premises). (Emphasis added.)
13. Section 15A(2) is in the same terms as s 15A(1) except that it provides that cessation of liquor sales can occur during the "standard trading period" but only with the approval of the ILGA. It can thus be noted s 15A(2)(b) also uses the phrase "for gambling activities that are otherwise permitted on the premises". It is in this context that s 15A(4) provides that ILGA may only provide approval if it is satisfied that: (a) the operation of gaming machines on the licensed premises during the period to which the approval relates will not detract unduly from the character of the hotel, and (b) gambling activities on the licensed premises will be conducted in a responsible manner.
14. Section 16 provides for general bar licences which can be a designation given by ILGA which "cannot be changed". Section 16(3) states that: It is not lawful to keep or operate gaming machines on the premises to which a general bar licence relates. Accordingly, the keeping or operation of gaming machines on any such premises cannot be authorised under the Gaming Machines Act 2001. (Emphasis added.)
15. Section 48 (Community impact) sets out that a community impact statement must accompany an application for a hotel licence, for extended trading authorisations and the like, subject to certain exceptions. Section 48(6) provides for regulations which may make provision for certain matters which need to be included in a community impact statement. Section 48(7) provides that: Without limiting subsection (6), the regulations may provide that the matters to be addressed by a community impact statement are, in the case of an application for an extended trading authorisation in relation to a hotel licence, to include matters relating to gambling activities on the licensed premises during the period that the authorisation is proposed to be in force. (Emphasis added.)
16. Section 92(1)(c) provides that a licensee (or related corporation) must not, amongst other things: lease or sublease any part of the licensed premises on which liquor is ordinarily sold or supplied for consumption on the premises or on which approved gaming machines are ordinarily kept, used or operated […] (Emphasis added.)
17. Section 92(2)(a) is in similar terms and applies to an owner of a licensed premises although an owner may lease or sublease to a licensee or related corporation.
18. It can be noted that s 122 (Functions for minors in hotels and public entertainment venues) includes certain standard conditions relating to the provision of a "minors functions authorisation" which permits a function to be held in a specified part of licensed premises on certain standard conditions. Part of those standard conditions (which also relate to notice provisions, adult supervision details and the like) are to be found in s 122(4)(e) where it is explicitly set out that: gaming machines and tobacco vending machines must not be located in the area in which a function is held and any area of the licensed premises in which gaming machines or tobacco vending machines are located must not be accessible to any minor attending the function.
19. Section 123 (also within Pt 7, Div 2) includes a reference in s 123(2)(b) to an exception to the restrictions on minors being near gaming machines if a minor is being instructed in relation to the service, repair or maintenance of gaming machines under the supervision of the holder of a technician's licence "within the meaning of the [GM Act]" (emphasis added).
20. Savings and transitional provisions are to be found in Schedule 1 of the Liquor Act. Clause 12(1) within Div 2 of Sch 1 provides that the corresponding licence for an "existing community liquor licence" is a "hotel licence". Amongst the provisions relating to the conversion of the existing licence to the hotel licence is cl 12(2)(a) which states that "the keeping or operation of gaming machines on the licensed premises cannot be authorised under the [GM Act]" (emphasis added).

Unlawful Gambling Act 1998

1. It is worth noting that s 7 of the Unlawful Gambling Act 1998 (NSW) sets out forms of gambling which are not prohibited by that Act. Section 7 states: 7 Lawful forms of gambling This Act does not prohibit any of the following- […] (f) keeping or operating an approved gaming machine within the meaning of the [GM Act] in a hotel or on the premises of a registered club in accordance with that Act, […] (h) the possession, keeping, use or operation of a gaming machine within the meaning of the [GM Act] in the circumstances referred to in section 8 of that Act. (Emphasis added.)
2. It can thus be observed that to the extent that the Liquor Act deals in terms with gaming machines, the references are to gaming machines as authorised under the GM Act (for example ss 15 and 15A) or within the meaning of the GM Act (for example s 123) or relate to clear conditions applying to the authorisation of minors functions on licensed premises (for example s 122(4)(e)). The relevant terms of the Unlawful Gambling Act also include references to the [GM Act] in similar terms.

Legislative history including extrinsic material

1. At the request of the Court, the parties provided a joint supplementary note regarding the legislative history of the GM Act and the Liquor Act, focussing on the provisions the subject of these proceedings: 1. Division 2 of Pt 3 of the GM Act ("Tradeable gaming machine entitlement scheme") 2. Division 2A of Pt 3 of the GM Act ("Leasing of gaming machine entitlements") 3. Division 1 of Pt 4 of the GM Act ("Gaming machine threshold scheme"); and 4. Section 53 of the Liquor Act ("[ILGA] may impose, vary or revoke licence conditions").
2. The Court is grateful for the parties' efforts in preparing this legislative history. What follows is largely based on that work.

Gaming Machine Thresholds and Local Impact Assessments: GM Act

1. The GM Act came into force on 2 April 2002. [1] It consolidated provisions relating to gaming machines previously to be found in the Liquor Act 1982 (NSW) and the Registered Clubs Act 1976 (NSW) and gave effect to a number of new measures designed to limit the number of gaming machines in hotels and registered clubs. [2]
2. One of the new measures introduced by the GM Act was a scheme for transferable entitlements of gaming machines, referred to as the "tradeable poker machine entitlement scheme" (Div 2 of Pt 3). The scheme provided for an overall "State cap" on the number of gaming machines (Pt 2) and was designed to address "community concerns about the increasing number of gaming machines in the community, and introducing further controls to reduce any harm associated with problem gambling".
3. In tabling the Bill, the Minister stated: "The bill I am introducing today marries the many pioneering measures the Carr Labor Government has initiated in this area since 1995 - with a new and unprecedented set of reforms - into one comprehensive package. […] It is proposed to take this opportunity to transfer all gaming machine provisions relating to clubs and hotels from the Liquor and Registered Clubs Acts, and place them in a new Gaming Machines Act." [3] (Emphasis added.)
4. He also stated: "the bill is comprehensive and extensive, and is in keeping with the public interest in having very clear and detailed controls over gaming machine operations in clubs and hotels" (emphasis added). [4]
5. The Explanatory Note to the Bill stated that the key reforms introduced by the Bill included: (d) to introduce a scheme under which poker machine entitlements (as allocated by the Liquor Administration Board) may be traded by hoteliers and clubs so long as for every 2 entitlements that are sold, one is forfeited to the Board […] (f) to require a social impact assessment to be provided by a hotelier or club, and to be approved by the Board, before additional gaming machines may be kept in the hotel or club or before any gaming machine may be kept in a new hotel or new club. (Emphasis added.)
6. Under the tradeable poker machine entitlement scheme, a hotelier or registered club required the Board's authorisation to keep or dispose of gaming machines (ss 56 and 57); poker machine entitlements were allocated in respect of a hotelier's licence under the Liquor Act 1982 or in relation to the premises of a registered club under the Registered Clubs Act (s 15); and an application to keep any additional approved gaming machines, or for a new hotel or new club to keep any approved gaming machines, was required to be accompanied by a social impact assessment (ss 32, 33). The requirement for a "social impact assessment" to accompany an application to keep gaming machines was first introduced into the Registered Clubs Act by the Gambling Legislation Amendment (Gaming Machine Restrictions) Act 2000 (NSW), as a means of giving effect to "gambling harm minimisation and the responsible conduct of gambling activities in clubs." [5]
7. At the time of the introduction of the GM Act, Sch 2 of that Act made amendments to the Liquor Act 1982 by removing from the Liquor Act 1982: 1. The harm minimisation objects (cl [1]); 2. Definitions relating to gambling regulation (cl [2]); 3. References in s 20 of the Liquor Act 1982 (the condition making power) to gambling activities (cll [10] and [11]); and 4. Many of the machinery provisions regarding the regulation of gaming machines.
8. Some provisions relating to gaming machines remained in the Liquor Act 1982, including provisions relating to the use and operation of gaming machines outside the time when liquor may be sold, supplied or consumed (s 24(4)); the lease or sublease of the part of the licenced premise on which the approved gaming machines are ordinarily kept, used or operated (s 101(1)(d)); and the prohibition of unlawful gaming on licensed premises (s 126).
9. In 2008, the gaming machine threshold scheme in Div 1 of Pt 4 was inserted into the GM Act by the Gaming Machines Amendment Act 2008 (NSW). The Explanatory Note to the Gaming Machines Amendment Act stated: "Schedule 1 [44] replaces the social impact assessment scheme under Division 1 of Part 4 of the principal Act with a new scheme that provides for the setting by the Authority of a gaming machine threshold for each venue. The gaming machine threshold for a venue is similar to the existing concept of a SIA threshold (in that it refers to the maximum number of gaming machines that may be authorised to be kept in the venue). Under the new scheme, a venue may apply to the Authority to increase its gaming machine threshold." [6] (Emphasis added.)
10. In the second reading speech to the Gaming Machines Amendment Bill 2008 (NSW), the Minister stated: "The Gaming Machines Amendment Bill 2008 contains a range of amendments to the Gaming Machines Act. The amendments seek to achieve a number of aims: to continue to implement appropriate harm minimisation and responsible gambling requirements and to refine existing requirements; to provide greater certainty for industry and to introduce some simplification in the administrative processes; to increase integrity and compliance within the gaming industry; to cut red tape; and to provide clarification and machinery changes to allow the Act to operate more effectively and efficiently. When the [GM Act] came into force, as it introduced a new regulatory framework for the operation of gaming machines in New South Wales, it included a requirement for a five-year review of the Act to ensure that the objectives of the Act remain valid and that the Act is operating appropriately and effectively." [7] (Emphasis added.)
11. In 2011, the Clubs, Liquor and Gaming Machines Legislation Amendment Act 2011 (NSW) amended a number of provisions of the GM Act. Relevantly, the Act amended the title of Div 2 of Pt 3 to read "Tradeable gaming machine entitlement scheme", whereas it previously read "Tradeable poker machine entitlement scheme", and s 16 was amended to provide for the ILGA to issue a certificate specifying the number of gaming machine entitlements held in respect of a hotel licence or club licence.
12. In 2018, the Gaming Machines Amendment (Leasing and Assessment) Act 2018 (NSW) inserted Div 2A of Pt 3 into the GM Act, entitled "Leasing of gaming machine entitlements". The leasing scheme was introduced "to complement the existing trading scheme" (emphasis added). [8]

Power to impose conditions on a licence: Liquor Act 2007

1. The Liquor Act 2007 came into force on 1 July 2008. It was introduced to "replace the Liquor Act 1982 with new legislation that simplifies the existing liquor licensing system and regulatory framework and enhances liquor harm minimisation measures" (emphasis added). [9] The second reading speeches noted that the Liquor Bill 2007, the Casino, Liquor and Gaming Control Authority Bill 2007 (NSW) and the Miscellaneous Acts (Casino, Liquor and Gaming) Amendment Bill 2007 (NSW) represented "a complete rewriting of the New South Wales liquor licensing laws." [10]
2. At the time of its introduction, the Liquor Act 2007 included some provisions relating to gaming machines (some of which have been referred to above) including that the primary purpose of the business carried out on the premises of a hotel licence must at all times be the sale of liquor by retail, and the keeping or operation of gaming machines must not detract unduly from the character of the hotel or from the enjoyment of persons using the hotel otherwise than for the purposes of gambling (s 15(1)), [11] and that it is not lawful to keep or operate gaming machines on the premises to which a general bar licence relates (s 16(3)).
3. Prior to the introduction of the Liquor Act 2007, s 20 of the Liquor Act 1982 provided the Licensing Court of New South Wales the power to impose conditions on a licence: 20 Conditions of licences (1) The court may: (a) on the hearing of an application for the grant of a licence or of any matter relating to a licence - of its own motion or on the application of a party to the hearing or the Director or the Commissioner of Police, or (b) at any other time - on the application of the Director or the Commissioner of Police made in relation to a licence, impose conditions not inconsistent with this Act without prior compliance with which the grant does not take effect or to which the licence is to be subject. (2) A licence is subject to: (a) prescribed conditions, (a1) a condition that the licensee comply with any provision of the regulations under section 125C (Responsible service) with which the licensee is required to comply, (b) any conditions imposed under subsection (1) or section 18A or 19, (c) any conditions imposed by the court on hearing a complaint under section 67 or by a member of the Board on hearing a complaint under section 104, (c1) (Repealed) (d) any other conditions the court or Board is authorised by this Act to impose, whether or not any such condition is endorsed on the licence. (2A) Without limiting this section, a condition can be imposed under this section that prohibits or restricts activities (such as promotions or discounting) that could encourage misuse or abuse of liquor (such as binge drinking or excessive consumption). (2B) Without limiting this section, a condition can be imposed by the court or the Board that authorises or requires a licensee, in specified circumstances: (a) to cease to serve liquor at the licensed premises, or (b) to restrict access to the licensed premises in a manner and to the extent provided by the condition, or both, from a time of day that is earlier than the time at which, as otherwise required by the licence, trading must cease. (3) A contravention of section 21, 22, 23, 23A, 23AA or 23AB is a breach of a condition of the licence in respect of which the contravention occurs. (4) It is a breach of a condition of a licence to sell or supply liquor on the licensed premises at a time other than a time permitted by Division 3 in relation to the licensed premises or otherwise than in accordance with the provisions of that Division. (4A) It is a condition of a hotelier's licence that the licensee is not to provide a cash advance in the hotel, or permit or suffer a cash advance to be provided in the hotel on behalf of the licensee, otherwise than as a prize or bonus won as a direct or indirect consequence of operating an approved gaming machine in accordance with the Gaming Machines Act 2001. (4B) (Repealed) (5) The court or the Board, as the case may be, may vary or revoke a condition of a licence imposed by it (whether under this section or any other provision of this Act): (a) at any time on the application of the licensee or the Director or the Commissioner of Police, or (b) of its own motion or on the hearing of any matter relating to the licence.
4. The Casino, Liquor and Gaming Control Authority Act 2007 (NSW) introduced a new Casino, Liquor and Gaming Control Authority (which later became the Independent Liquor and Gaming Authority (the ILGA)). [12] The ILGA replaced the liquor licensing and regulatory functions of the Licensing Court and the Liquor Administration Board, which were abolished by the Liquor Act 2007.
5. In the second reading speech to the Liquor Bill 2007 (NSW), the Casino, Liquor and Gaming Control Authority Bill 2007 (NSW) and the Miscellaneous Acts (Casino, Liquor and Gaming) Amendment Bill 2007 (NSW), the Minister for Gaming and Racing and Minister for Sport and Recreation stated that: "There will also be no diminution of the powers of the regulatory authority in relation to the liquor and gaming industries in New South Wales. The powers and responsibilities of the authority will be equivalent to those of the existing Licensing Court and Liquor Administration Board. Any differences that arise are minor and result from the move from the current court-based system to an administrative-based system." [13]
6. It is to be noted that at the time of its introduction, s 53 of the Liquor Act 2007 read: (1) Without limiting any other provision of this Act, the [ILGA] may at any time: (a) on application by the Director or the Commissioner of Police, or (b) on the [ILGA]'s own initiative, impose conditions not inconsistent with this Act to which a licence is to be subject.
7. In 2011, s 53 was amended by Sch 2 to the Clubs, Liquor and Gaming Machines Legislation Amendment Act 2011 (NSW). The words "not inconsistent with this Act to which a licence is to be subject" were replaced with "on a licence", and s 53(1A) was inserted which provided: (1A) The conditions that may be imposed by the Authority on a licence under this section include, but are not limited to, conditions: (a) prohibiting the sale or supply of liquor on the licensed premises before 10 am or after 11 pm (or both), and (b) restricting the trading hours of, and public access to, the licensed premises.
8. In relation to these 2011 amendments, the second reading speech noted that the Clubs, Liquor and Gaming Machines Legislation Amendment Bill 2011 "confirm[s] that the [ILGA] has the power to reduce liquor trading hours when imposing conditions on a licence". [14]

Whitebull and Area Hotel

1. One of the major planks of Whitebull and Area Hotel's argument is that there is no provision in the GM Act expressly conferring on the ILGA the power to impose conditions pursuant to another Act, in respect of decisions made by the ILGA under the GM Act. They contend that it was very clear when the GM Act was introduced that the Act was to provide a relatively predictable and certain way of determining how one could transfer and lease entitlements.
2. The Challenged Conditions go beyond the requirements set out in the GM Act and the Gaming Machines Regulation in terms of the requirement to supervise hotel gaming rooms and in terms of gaming harm minimisation measures.
3. In its written submissions, Whitebull and Area Hotel highlight three points which are said to disprove the ILGA's argument, those being: 1. The GM Act operates as a standalone code separate and distinct from the Liquor Act and with very different objects; 2. The express conferral, in the GM Act, of condition making powers on the ILGA and other decision-makers, where Parliament intended to confer power to impose conditions; and 3. The fact that the ILGA is not the sole decision maker having functions under the GM Act.
4. In respect of the Whitebull matter, it is also contended (for the reasons above) that considerations relating to matters such as gaming turnover, social fabric of the locality, and trading hours of the venue concerned are expressly "carved out" from consideration of the application for a Class 1 LIA. The plaintiffs acknowledge that the ILGA was empowered to impose conditions on the approval of a Class 1 LIA pursuant to s 36 of the GM Act but contend that is not what occurred in this case. Further, even if it had purported to do so, the stated grounds for imposing conditions were impliedly "carved out" by the legislation itself in the case of a Class 1 LIA. Rather, the ILGA purported to exercise power under s 53 of the Liquor Act to impose the Challenged Conditions.
5. During oral submissions the submission was summarised: "I say that reading s 53 of the Liquor Act, one would simply not, as a matter of statutory construction, conclude that it ever purported to provide a power that could regulate the disposal of gaming machine entitlements […]"
6. Whitebull and Area Hotel contend that the GM Act represents a codification of the statutory provisions regulating the conduct of gaming machines in the State. They pointed to the Explanatory Note to the Gaming Machines Bill 2001 which stated that: "This Bill consolidates the provisions relating to gaming machines (ie poker machines and approved amusement devices) that are currently contained in the Liquor Act 1982 and the Registered Clubs Act 1976." [15]
7. Whitebull and Area Hotel contend the GM Act does not just regulate the conduct of machine gaming in hotels and clubs but also regulates other persons and bodies who are not subject to regulation under the Liquor Act 2007 or Registered Clubs Act (including gaming machine dealers, gaming machine sellers, gaming machine technicians and those operating gaming machine testing facilities (s 82 GM Act), as well as the central monitoring licensee (s 136 GM Act)). They further contend that the GM Act creates a series of offences unique to that Act and which find no counterpart in the Liquor Act 2007 (Pt 6 GM Act) and that the GM Act has its own division (Pt 8) for disciplining persons who are regulated under the GM Act.
8. They point to Basten JA's summary of what occurred with the introduction of the GM Act in Masters v Garcia (2005) 65 NSWLR 92; [2005] NSWCA 287 at [23]: "The regime by which authorisation was given to keep poker machines in hotels by way of conditions attaching to the hotelier's licence was replaced by an entirely new regime on the commencement on 2 April 2002 of the Gaming Machines Act 2001 (NSW). The whole of Part 11 of the Liquor Act was repealed (Gaming Machines Act 2001, Schedule 2) but the Board was required to allocate one 'poker machine entitlement' for each approved poker machine for a hotel: s 15(1). The relevant number of entitlements was to be determined by the Board, according to a formula, the primary factor of which was the number of poker machines authorised to be kept in the relevant hotel as at 19 April 2001: s 15(3). Accordingly, the entitlements allocated to the hotelier's licence for the Hotel was calculated as nine."
9. It was submitted that although the Liquor Act also contains provisions for the disciplining of hoteliers and clubs (Pt 9), the grounds for discipline are informed by considerations particular to the objects of the Liquor Act.
10. Whitebull and Area Hotel point to the objects of the GM Act and the Liquor Act and contend they are "very different". The objects of the GM Act are: 3 Objects of Act (1) The objects of this Act are as follows - (a) to minimise harm associated with the misuse and abuse of gambling activities, (b) to foster responsible conduct in relation to gambling, (c) to facilitate the balanced development, in the public interest, of the gaming industry, (d) to ensure the integrity of the gaming industry, (e) to provide for an on-going reduction in the number of gaming machines in the State by means of the tradeable gaming machine entitlement scheme. (2) The Authority, the Minister, the Secretary, the Commissioner of Police and all other persons having functions under this Act are required to have due regard to the need for gambling harm minimisation and the fostering of responsible conduct in relation to gambling when exercising functions under this Act. (3) In particular, due regard is to be had to the need for gambling harm minimisation when considering for the purposes of this Act what is or is not in the public interest.
11. The objects of the Liquor Act are: 3 Objects of Act (1) The objects of this Act are as follows - (a) to regulate and control the sale, supply and consumption of liquor in a way that is consistent with the expectations, needs and aspirations of the community, (b) to facilitate the balanced development, in the public interest, of the liquor industry, through a flexible and practical regulatory system with minimal formality and technicality, (c) to contribute to the responsible development of related industries such as the live music, entertainment, tourism and hospitality industries. (2) In order to secure the objects of this Act, each person who exercises functions under this Act (including a licensee) is required to have due regard to the following - (a) the need to minimise harm associated with misuse and abuse of liquor (including harm arising from violence and other anti-social behaviour), (b) the need to encourage responsible attitudes and practices towards the promotion, sale, supply, service and consumption of liquor, (c) the need to ensure that the sale, supply and consumption of liquor, and the operation of licensed premises, contributes to, and does not detract from, the amenity of community life, (d) the need to support employment and other opportunities in the - (i) live music industry, and (ii) arts, tourism, community and cultural sectors.
12. Whitebull and Area Hotel contend that whilst it is a prerequisite to hold a hotel or club licence (issued pursuant to the Liquor Act or the Registered Clubs Act) to lawfully operate a gaming machine in a hotel or club in NSW, the statutory scheme for conferring the right to keep, use and operate gaming machines in hotels and clubs is exhaustively set out in the GM Act itself. Further, it was submitted there is no indication in the GM Act to suggest that a decision-maker exercising power under that Act is empowered to impose conditions pursuant to another statute. To the contrary, where Parliament intended to confer power to impose conditions in the GM Act, Parliament expressly so provided. Hence: 1. An authorisation to keep or dispose particular gaming machines may be granted by the ILGA subject to conditions: (s 56(6) GM Act); 2. The ILGA's approval of a LIA may be granted subject to conditions: (ss 36(7), 36C(3) GM Act); and 3. Upon a ground for discipline being established, the ILGA may modify any authorisation or approval to keep gaming machines which are held by the relevant club or hotel: (s 131(2)(c) GM Act).
13. Whitebull and Area Hotel contend there would be no need for any such express condition-making powers to be written into the GM Act if Parliament had intended that the ILGA could simply use condition making powers vested in the ILGA under other legislation.
14. Whitebull and Area Hotel further point to indications which suggest against any intended "crossover" of powers being the fact that the ILGA Is not the sole and exclusive decision maker in respect of applications made under the GM Act. Rather, decision-making powers are also conferred on the Secretary of the Department of Industry (s 49A GM Act); the Minister (ss 136, 153 and 172 GM Act), and a Local Court Magistrate (ss 197 and 198 GM Act).
15. During oral submissions the plaintiffs summarised the argument as follows: "[T]he Gaming Machines Act, itself, provides a detailed regime that spells out precisely how ILGA's powers are to be regulated in considering those sort of applications, and there is no room for a wide-ranging discretion on the part of ILGA, if you have ticked each box, so to speak, under the Gaming Machines Act, to nevertheless refuse approval or impose conditions outside of the condition machinery in the Gaming Machines Act, and what it sought to do was, therefore, in excess of its power."
16. The plaintiffs submitted that conditions imposed pursuant to s 53 of the Liquor Act needed to be within the proper scope of s 53, which required some appropriate connection between the conditions imposed and the regulation of liquor being sold under the Liquor Act generally.
17. The plaintiffs further noted that up until 2001, the holding of gambling devices was done by way of conditions on the liquor licence, but the 2001 legislation ended that and provided for a separate certificate by way of s 16 of the GM Act. They point to s 16(1) which states: 16 Certificate of gaming machine entitlements (1) The number of gaming machine entitlements held in respect of a hotel licence or club licence from time to time is to be specified in a certificate issued by the Authority to the hotelier or club concerned. The certificate may be incorporated in the relevant hotel or club licence.
18. To that extent the gaming machine entitlements themselves are not specified by way of a condition on the liquor licence, but from a mechanical perspective can be "incorporated" into the licence. Accordingly, the plaintiffs contend that s 53 of the Liquor Act - which imposes conditions on liquor licences - does not readily relate to conditions to be attached to a certificate that are incorporated by s 16 of the GM Act.
19. The plaintiffs contend that if the ILGA had the broad sweeping discretions that it maintains it has, it could impose conditions that would render the entire transaction utterly uncommercial - a party would not know what those conditions would be if the discretion is as broad as the ILGA maintain.
20. The plaintiffs stated: "And when one looks here at a system where you had a single piece of legislation that controlled the whole field, you then have, in 2001, a separation out of gaming machines law and the creation of this complex, detailed, and separate regime, it would seem extraordinarily anomalous to suggest that the s 53 power simply can be used to override any of the detailed provisions in the new gaming machines legislation. And, if the defendant is right, then, so far as the industry is concerned, their understanding of how their property rights are to be dealt with through the detailed provisions of the Act is completely misconceived, because, if the defendant's arguments in their submissions are correct, it would appear that the authority can simply impose such conditions as it considers appropriate to bring about minimisation of harm based on broad programs of social research and empirical investigation that it's conducted, and impose these on people involved in specific transactions dealing with these valuable property rights. That, we say, can't possibly be the legislative intention."
21. A further argument based on the Anthony Hordern principle was also made, which is discussed further below at [123].

Griffith Hotel and North Rydge

1. It is contended that in refusing Griffith Hotel and North Rydge's application, the ILGA misconstrued the ambit of its power. The ILGA were satisfied that the applications were validly made and met the relevant procedural requirements under the GM Act and the Regulation.
2. It is contended that the application lodged on 15 December 2021 was in the third category of application, discussed above at [43], and was therefore expressly exempted from any requirement to provide an LIA. The ILGA took into account the potential social impacts or risks of harm, being the very set of considerations that are exempted from impact assessment by s 35(2)(b) of the GM Act.
3. The email from the ILGA of 24 January 2022, makes clear that the ILGA was considering the very sort of matters appropriate to LIAs, such as the social profile of the relevant local community, gambling participation rates (which help to inform the banding of a local area), gaming trading performance of the Gemini Hotel and Gemini Hotel's trading hours. The email also referred to a guideline developed by the ILGA (Guideline 16) to inform its exercise of discretion where questions of potential gaming-related harm are in issue. The submission was made that it can be seen from the totality of the correspondence that the ILGA "formed a value judgement that the Gemini Hotel's gaming harm minimisation measures were not 'sufficient' to satisfy the [ILGA] to grant the applications, in the exercise of the [ILGA's] discretion." It was contended that this occurred notwithstanding that the Gemini Hotel applied all of the gaming harm minimisation measures under the GM Act and the Gaming Machines Regulation, as well as proffering voluntary measures.
4. It was further contended that the ILGA did not request a "positive contribution" from North Rydge who owned the Gemini Hotel (which would have been required if the plaintiffs were required to lodge a Class 1 LIA (s 36(3)(c)(i) GM Act)). Nor did the ILGA assess and weigh the potential negative consequences against the potential benefits of granting the application (which the ILGA would have been required to do under the "overall positive impact" test if Griffith Hotel and North Rydge had been required to lodge a more onerous Class 2 LIA (s 36(3)(d)(i) GM Act). It was submitted this resulted in a path to approval being made far more difficult by the ILGA than the path clearly contemplated by the legislation itself.
5. Griffith Hotel and North Rydge contend the ILGA misconstrued the ambit of its power, informing itself by reference to matters of a kind that could only be relevant in circumstances where an LIA was required to be lodged with the application.
6. There was no suggestion in the present case that the application did not satisfy the requirements in Pt 3, Div 2. The ILGA's discretion should have been limited to determining whether those requirements were satisfied. Griffith Hotel and North Rydge contended that the ILGA "appears to have considered that it had a general, wide ranging, discretion to refuse the application informed by the very sorts of considerations that are excluded from [LIA] in this category of case." As such, it was submitted that the ILGA had regard to irrelevant considerations in determining the transfer application and accompanying threshold increase for the Gemini Hotel, and those irrelevant considerations wholly informed the ILGA's refusal of Griffith Hotel and North Rydge's application.
7. Griffith Hotel and North Rydge argue that the ILGA is incorrect in maintaining it has residual discretion said to arise from ss 19(2) (to approve a transfer) and 34(4) (to approve a threshold increase) of the GM Act. An examination of the GM Act as a whole and those provisions in particular show there is no such residual discretion.
8. Counsel for the plaintiffs pointed to the structure of the GM Act and submitted that it works in the following way: If an entity wishes to have 20 gaming machines in its hotel, but only has 15 gaming machine entitlements, the legislation provides that the harm must be investigated at the threshold increase level not at the transfer level. They point to the requirements for approval for a transfer as being "relatively slim", noting the requirements set out in s 19(3) of the GM Act.
9. The use of the word "may" in s 34(4) does not provide a discretion at large as contended for by the ILGA. Rather, when read properly, it indicates that the ILGA may only approve an application if all the requirements are satisfied. In other words, it simply makes clear that the requirements are mandatory, not merely directory and prohibits the ILGA from waiving any of the requirements.
10. It was submitted that the only decision the ILGA could properly make in the circumstances of this case was to grant the application.
11. Griffith Hotel and North Rydge also called in aid the principle expressed in Anthony Hordern and Son Ltd v The Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 at 7; [1932] HCA 9 ("Anthony Hordern"), by Gavan Duffy CJ and Dixon J as follows: "When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power."
12. Several years later, in The King v Wallis; Ex parte Employers Association of Wool Selling Brokers (1949) 78 CLR 529; [1949] HCA 30 ("Wallis"), Dixon J stated at 550: "[A]n enactment in affirmative words appointing a course to be followed usually may be understood as importing a negative, namely, that the same matter is not to be done according to some other course."
13. As summarised by Pearce and Geddes in Statutory Interpretation in Australia, [16] in Wallis a section that indicated the manner in which an arbitrator was to deal with particular issues precluded the arbitrator dealing with the matter in accordance with more general procedures provided in the Act.
14. The authorities have been examined more recently, and the principle endorsed by Gummow and Hayne JJ in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566 at [59]; [2006] HCA 50 ("Nystrom") as follows: "[…] what the cases reveal is that it must be possible to say that the statute in question confers only one power to take the relevant action, necessitating the confinement of the generality of another apparently applicable power by reference to the restrictions in the former power".
15. In Nystrom, on the facts, it was concluded that there was no intention for the specific provision to limit the operation of another provision - that is there was not only one power conferred.
16. A potential limitation to the principle was observed by the Full Federal Court in Re Wilcox; Ex parte Venture Industries Pty Ltd (1996) 66 FCR 511 at 530; 137 ALR 47 at 64 where the Court stated "[w]e should add that we have some doubt whether the maxim has any operation when two Acts are passed as part of a legislative scheme to deal with the one subject matter." However, Pearce and Geddes state: "However, there seems no particular reason for adopting this qualifier. If there is an express, as distinct from a general, conferral of power, the application of the maxim should not turn on whether the conferral is in the one or in separate instruments. The issue will depend on whether or not the specific enforcement mechanism is intended to be exclusive." [17]
17. In support of this proposition, the learned authors cited cases including Deputy Commissioner of Taxation v Dick [2007] NSWCA 190 at [120]; (2007) 242 ALR 152 ("DCT v Dick") and White v Betalli (2007) 71 NSWLR 381; [2007] NSWCA 243, and noted that it may be more difficult to make out where there are different instruments (citing Kelly v Saadat-Talab (2008) 72 NSWLR 305; [2008] NSWCA 213 at [15]-[19]).
18. In DCT v Dick, Santow JA at [121] drew on the Anthony Hordern principle: "[…] by analogy to determine whether two enactments of the same legislature are capable of mutual accommodation, or whether the general presumption to that effect is rebutted."
19. In White v Betalli, it was determined that whilst there was a by-law which gave rise to an interest in the nature of an easement or restrictive covenant, there was a distinct and alternative statutory regime for the creation of such an interest under the strata titles legislation. In Kelly v Saadat-Talab, Allsop P observed at [17] that: "The operation of the maxim is readily understandable in the context in the case of construing specific and general provisions in the one Act. It is not entirely clear how the maxim operates in respect of two Acts passed by the same Parliament each of which deals in a particular way with the relevant subject matter".
20. Allsop P further observed at [19] that the maxim assisted with that enquiry, but ultimately the resolution was not determined merely by the maxim but by "the process of statutory interpretation of the intended content of the Crimes Act, s 20BQ." Handley AJA at [49] also paid close regard to the words of the provision in question at [19].
21. Counsel for the plaintiffs submit that the maxim as originally expressed in Anthony Hordern clearly applies to the third summons, given that ss 19(2) and 34(4) are said by the ILGA to contain discretions that could be used in regard to the very things that are the subject of the LIA process. Whilst the discretion (if it existed - and the plaintiffs contend it does not) may have work to do in other circumstances, the plaintiffs argue that the discretion could not cover the ground of the LIA process pursuant to the Anthony Hordern principle.
22. Further, the extension of the maxim - that is, where it is said also to apply where two separate statutes are involved, also clearly assists in relation to its argument concerning the first two summonses.

Whitebull and Area Hotel

1. The ILGA confirmed that it relied on s 53 of the Liquor Act as the statutory power for the imposition of the Challenged Conditions.
2. This power is contended to turn on the proper construction of s 53.
3. The ILGA contend: "There is nothing in the context or purpose of the Liquor Act to suggest that a condition imposed on a liquor licence cannot regulate the use of gaming machines on premises at which liquor is sold. To the contrary, the Liquor Act regulates not only the sale and supply of liquor but also other activities undertaken on premises at which liquor is sold and supplied, which activities include the provision of food (ss 17(4), 20C(4) and 27) and, relevantly, the use of gaming machines (ss 15(1)(b), 16(3) and 92(1)(c))."
4. It was further contended that: "[T]here is nothing in the Gaming Machines Act to prohibit the [ILGA] from concurrently considering: (i) an application for a gaming machine threshold increase; and (ii) whether to impose a condition on the applicant's liquor licence concerning the use of gaming machines."
5. The power to make both decisions is conferred upon a single regulator, constituted under s 6(1) of the Gaming and Liquor Administration Act 2007 (NSW).
6. In oral submissions Senior Counsel for the ILGA stated: "[O]ur submission in relation to s 53 of the Liquor Act starts with the proposition […] The Gaming Machine Act and the Liquor Act are not two standalone statutory schemes. What New South Wales has done, as with many jurisdictions in Australia, is that they only grant exemptions to the otherwise unlawful gambling activity to people who have a licence already under the Liquor Act, so there's already a regulatory scheme and then attached to that regulatory scheme is the Gambling Machines Act, and the entitlements and the supervision of somebody is linked, or an entity, is linked to the liquor licence, and so the idea that there's this separate certificate or authorisation, although true as a matter of language, in terms of the interrelationships in the regulatory scheme, they are inherently connected".
7. The ILGA contend that the proper relief, should the plaintiffs succeed, would be to remit the matter to ILGA as it has "made it clear in its reasons that it wouldn't have made the decision on that basis without that liquor licence condition".

The Griffith Hotel and North Rydge

1. The ILGA contend that there is a residual discretion in ss 19 and 34 of the GM Act to consider broad concerns about social harm, and therefore even if one has met the express statutory requirements, the ILGA may exercise a discretion to refuse an application. The ILGA acknowledge the exemption under s 35 of the GM Act but contend that did not mean that similar considerations are not permitted in the broad discretion under ss 19 and 34.
2. The ILGA contend that the Griffith Hotel and North Rydge have not considered the fact that the ILGA was exercising not one, but two statutory powers and therefore have not explained why the power under s 19(2)(a) is restrained by the constraints to the power under s 34(4) of the GM Act. The two statutory powers being: 1. The power to approve transfer of a gaming machine entitlement (s 19(2)(a) GM Act); and 2. The power to approve a gaming machine threshold increase (s 34(4) GM Act).
3. The ILGA further contend that the exemptions in s 35(2) only arise where an "application is made together with a transfer or a lease application". That is, if the ILGA were not otherwise considering the exercise of a power to approve a transfer or lease, an applicant would be required to submit an LIA. It was therefore submitted that this was: "a very strong indicator that the purpose of the exemption in s 35(2) was not to prohibit the consideration of community impacts, but to avoid an applicant from having to account for those impacts where the [ILGA] could in any event take those impacts into account in the exercise of other statutory powers." (Emphasis in original.)
4. The ILGA also contend that there is nothing in the text, context or purpose of Pt 4 Div 1 of the GM Act to indicate that it was prohibited from taking community impacts into account.
5. The ILGA contended: "it is clear from the board papers that the [ILGA] considered the possibility of imposing conditions under s 53 of the Liquor Act 2007 (NSW) as an alternative to refusing the application altogether […] having regard to the applicant's decision not to alter its proposed [Gaming Plan of Management], the [ILGA] was not satisfied that it should approve the application."
6. As to the Anthony Hordern argument, the ILGA contend that Nystrom is authority supporting its argument. If the statutes can sit next to each other or deal with similar subject matter, "or do, as we have in this case, result in mutual compatible regulation, then there is no role for Anthony Hordern to play." The ILGA point to [2] of Nystrom, where the Chief Justice specifically stated that one needs to look for incompatibility - here there is none.
7. Whilst the ILGA accepted that the GM Act did provide a regime, that Act is not a standalone regime - but rather depends upon a hotel or club, in the first instance having a relevant licence under the Liquor Act. As such, the two Acts must be interpreted together.

Plaintiff's submissions in reply

1. In relation to the question of relief, the plaintiffs submitted a remittal to the ILGA would not be appropriate. Their fundamental argument was that the purported conditions were imposed outside power, not because of an irrational decision, or one that came about through the denial of natural justice. The plaintiffs contend that in the absence of pointing to some matter that would have justified refusal on some ground other than ultra vires, the plaintiffs are entitled to the relief they have sought.
2. The plaintiffs acknowledged the clear relationship between the Liquor Act and the GM Act, and that they refer to each other in a number of ways. But it was contended that this argument also works in the plaintiff's favour. Whilst the GM Act regulates gaming devices that are on licenced premises (so there is a clear connection between the two), that is all the more reason that one construes them as a coherent legislative scheme. The plaintiffs submit that the provisions in the Liquor Act do nothing more than: "reflect the reality that the [GM Act] regime takes the pre-existing concept of a hotel or club licence, authorised under other legislation, and then confers on those licensees the ability to apply for authorisation to keep, use and operate gaming machines, in accordance with the discrete and separate statutory scheme codified in the [GM Act]."
3. Contrary to the ILGA's submissions, there is incompatibility between, for instance s 35(2) which explicitly relieves an entity (in certain circumstances) from the requirement of having to provide an LIA, yet the ILGA has purported to place Griffith Hotel and North Rydge (in relation to the third summons) in precisely the position as if there had been no carve out.
4. Further, even where an LIA was required the plaintiffs did everything under the LIA regime yet were purportedly required to provide additional material, not otherwise required by the LIA regime, which is different and inconsistent with that regime.

Consideration

1. In my view the arguments made on behalf of the plaintiffs are compelling. The GM Act (together with the Gaming Machines Regulation) contains a regime which provides a predictable, certain and transparent way of keeping, transferring and leasing gaming machines. The structure of the GM Act, the details of its provisions, its legislative history together with the extrinsic material provide a cogent body of material which support the plaintiffs' contentions that the ILGA has no relevant overriding discretion in the circumstances of these matters either within the Liquor Act or the GM Act itself.
2. If the ILGA's arguments were correct, the statutory regime set out under the GM Act could be set to nought because an entity could fulfil all the statutory and regulatory requirements, but the ILGA could impose conditions on a licence or refuse an application entirely, purportedly in the exercise of a wide overriding discretion. That discretion is said to arise under either s 53 of the Liquor Act or ss 19 and 34 of the GM Act, depending on the stage at which the discretion was purportedly exercised.
3. Although the GM Act and the Liquor Act are related, the statutes regulate different subject matter. The GM Act regulates entirely the keeping, transferring and leasing of gaming machines. The structure and the terms of the relevant legislation (some of which is extracted above) make it clear that there is no overriding discretion in s 53 of the Liquor Act in relation to this subject matter and nor is there any residual discretion in ss 19 or 34 of the GM Act itself. To the extent that the Liquor Act contains provisions relating to gaming machines, they are in a very restricted context. Further, many of those provisions in the Liquor Act (extracted above) emphasise the core role of the GM Act in authorising the keeping and operation of gaming machines: see for instance ss 15(1), 15A(1), 16(3), 92(1)(c), 123 of the Liquor Act.
4. The GM Act sets out a detailed regime for the keeping of gaming machines, how applications for increasing gaming machine thresholds are to be made, how gaming machine entitlements are to be traded and leased, how harm is to be minimised, how training is to be undertaken in relation to the responsible conduct of gambling and other matters. Indeed, the ILGA concedes that the GM Act does provide such a "regime", but contends it is not a standalone regime. I am not persuaded by ILGA's submissions. Having regard to the details of the regime, in the context of the facts underpinning these summonses, I am of the view that the regime is, relevantly, a standalone regime. One can note, amongst other things, the regular use of terms in the GM Act such as "in accordance with this Act", "under this Act", and "in this Act or as may be prescribed by the regulations". The references to the GM Act in other pieces of legislation including the Liquor Act and the Unlawful Gambling Act also support the existence of a relevant standalone regime in relation to the regulation of gaming machines.
5. Any doubt in relation to this interpretation is allayed by the legislative history, especially when viewed with the extrinsic material set out above (see s 34 of the Interpretation Act 1987). For convenience, some of the most cogent parts of this material will be repeated here.
6. As Basten JA stated in Masters v Garcia at [23]: "The regime by which authorisation was given to keep poker machines in hotels by way of conditions attaching to the hotelier's licence was replaced by an entirely new regime on the commencement on 2 April 2002 of the Gaming Machines Act 2001 (NSW)." (Emphasis added.)
7. This characterisation by Basten JA clearly resonates with the extrinsic material including, for instance, the words used by the Minister tabling the Gaming Machines Bill (see [74] above) which included the term "comprehensive package" and "very clear and detailed controls" being introduced by the legislation. The Explanatory Note (see [76]) to the original Act and to the amending Act in 2008 (see [80]) discussed the "scheme" being introduced. Importantly, the second reading speech to the Gaming Machines Amendment Bill 2008 included references to providing "greater certainty for industry and to introduce some simplification in the administrative processes"; providing "clarification and machinery changes to allow the Act to operate more effectively and efficiently"; and confirming that when the GM Act came into force, "it introduced a new regulatory framework for the operation of gaming machines in New South Wales" (emphasis added) (see [81]).
8. To provide an overarching discretion in s 53 of the Liquor Act, which could have the effect of totally undermining the legislative scheme of the GM Act, cannot be what Parliament intended. Either by way of the maxim identified in Anthony Hordern as sensibly extended to accommodate separate statutory instruments, or simply by way of construing the legislative scheme itself, it is clear that the relevant legislative authority for the regulation of gaming machines is within the GM Act and any discretionary power purported to be exercised pursuant to s 53 of the Liquor Act is ultra vires.
9. Further, neither ss 19 nor 34 of the GM Act provide a separate source of power providing for an overarching discretion in circumstances which are otherwise covered by the regime provided by the GM Act (as is the case in relation to the third summons). To read those provisions as contended for by the ILGA would undermine the carefully crafted scheme of the GM Act.
10. Accordingly, I find for the plaintiffs in relation to the three summonses. The discretion purportedly exercised by the ILGA in each instance (either to impose the Challenged Conditions or to refuse the application) was ultra vires.

In relation to the first summons (Whitebull) 1. The Court declares that Condition 6030 (the "Challenged Condition") purportedly imposed by the Independent Liquor and Gaming Authority on Hotel Licence LIQH400108346 relating to the White Bull Hotel, 117 Marsh Street Armidale, upon the Independent Liquor and Gaming Authority's approval of the plaintiff's application to increase the gaming machine threshold of the White Bull Hotel from seventeen (17) to twenty-five (25) and the Independent Liquor and Gaming Authority's approval of the plaintiff's Local lmpact Assessment accompanying the application, is invalid and of no effect. 2. The Independent Liquor and Gaming Authority is to amend its records relating to Hotel Licence LIQH400108346 to remove reference to the Challenged Condition. 3. The Court declares that in determining the plaintiff's application to increase the gaming machine threshold of the White Bull Hotel, in the circumstances of the present case, the relevant statutory criteria are exhaustively set out in Division 1 of Part 4 of the Gaming Machines Act 2001 (NSW). 4. The Court declares that, in determining the plaintiff's application for increase in the gaming machine threshold of the White Bull Hotel, considerations of possible or likely impacts on the local community are irrelevant. 5. The Independent Liquor and Gaming Authority are to pay the costs of and incidental to these proceedings.

In relation to the second summons (Area Hotel) 1. The Court declares that Conditions 3030 and 3040 (the "Challenged Conditions") purportedly imposed by the Independent Liquor and Gaming Authority on hotel licence LIQH400116853 relating to the Area Hotel Griffith ('the Licence') upon the Independent Liquor and Gaming Authority's grant of the plaintiff's application to: 1. approve the lease of seven (7) gaming machine entitlements pursuant to Part 3, Division 2A Gaming Machines Act 2001 (NSW) from hotel licence LIQH400116896 (relating to the Griffith Hotel) to the Licence and 2. increase the gaming machine threshold of the Licence from 23 to 30, 3. are invalid and of no effect. 1. The Independent Liquor and Gaming Authority is to amend its records relating to the Licence to remove reference to the Challenged Conditions. 2. The Court declares that, in determining an application for the leasing of gaming machine entitlements pursuant to Part 3, Division 2A Gaming Machines Act 2001 (NSW), the relevant statutory considerations are exhaustively set out in that Division. 3. The Court declares that, in determining an application for leasing of gaming machine entitlements pursuant to Part 3, Division 2A Gaming Machines Act 2001 (NSW), questions of the possible or likely impacts on the local community are irrelevant. 4. The Court declares that, in determining a gaming machine threshold increase application in circumstances where, pursuant to section 35(2) Gaming Machines Act 2001 (NSW) the threshold increase application is not required to be accompanied by a local impact assessment, questions of the possible or likely impacts on the local community are irrelevant. 5. The Independent Liquor and Gaming Authority is to pay the plaintiff's costs of and incidental to these proceedings.

In relation to the third summons (Griffith Hotel and North Rydge) 1. An order in the nature of certiorari quashing the decision of the Independent Liquor and Gaming Authority made on or about 15 June 2022, to refuse the transfer of a single gaming machine entitlement from the licence of The Griffith Hotel Motel, 25 Kooyoo Street, Griffith (LIQH400116896) to the licence of the Gemini Hotel, 201-227 Banna Avenue, Griffith (LIQH400123264), and the consequent increase in the gaming machine threshold of the Gemini Hotel (collectively the "Applications"). 2. An order that the Applications be granted. 3. The Court declares that, in determining an application for transfer of gaming machine entitlements pursuant to Part 3 Division 2 of the Gaming Machines Act 2001 (NSW), the relevant statutory considerations are exhaustively set out in that Division. 4. The Court declares that, in determining an application for transfer of gaming machine entitlements pursuant to Part 3 Division 2 of the Gaming Machines Act 2001 (NSW), questions of the possible or likely impacts on the local community are irrelevant. 5. The Court declares that, in determining a gaming machine threshold increase in circumstances where, pursuant to section 35(2) Gaming Machines Act 2001 (NSW), the threshold increase application is not required to be accompanied by a Local lmpact Assessment, questions of the possible or likely impacts on the local community are irrelevant. 6. The Independent Liquor and Gaming Authority is to pay the plaintiff's costs of and incidental to these proceedings.

Endnotes

1. Sections 44, 210(1), 211 and cl 1 of Sch 1 of the GM Act came into force on 11 January 2002, and s 46 and Sch 4[3] came into force on 2 July 2002. The remainder of the GM Act came into force on 2 April 2002.
2. Explanatory Note, Gaming Machines Bill 2001 (NSW) at 1.
3. New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 30 November 2001, at 19276.
4. New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 30 November 2001, at 19282.
5. Explanatory Note, Gambling Legislation Amendment (Gaming Machine Restrictions) Bill 2000 (NSW), at 1.
6. Explanatory Note, Gaming Machine Amendment Bill 2008 (NSW) at 1-2.
7. New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 29 October 2008, at 10783.
8. New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 6 March 2018, at 47.
9. Explanatory Note, Liquor Bill 2007 (NSW), at 1.
10. New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 28 November 2007, at 4632.
11. Section 15(1) of the Liquor Act 2007 is substantially similar to s 21AA of the Liquor Act 1982, which had been repealed by cl 13 of Sch 2 of the GM Act.
12. Clubs, Liquor and Gaming Machines Legislation Amendment Act 2011 (NSW).
13. New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 28 November 2007, at 4634.
14. New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 17 October 2011, at 6427.
15. Explanatory Note, Gaming Machines Bill 2001 (NSW) at 1.
16. Dennis Pearce, Robert Geddes, Statutory Interpretation in Australia (9th ed, 2019) at 179.
17. Ibid at 180.

Amendments 05 June 2023 - Typographical error in cover sheet DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 June 2023