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Australian Leisure and Hospitality Group Pty Ltd v Commissioner for Liquor and Gaming

 

[2016] QCAT 90

CITATION:

Australian Leisure and Hospitality Group Pty Ltd v Commissioner for Liquor and Gaming  [2016] QCAT 90

PARTIES:

Australian Leisure and Hospitality Group Pty Ltd

(Applicant)

v

Commissioner for Liquor and Gaming

(Respondent)

APPLICATION NUMBER:

GAR223-15; GAR224-15

MATTER TYPE:

General administrative review matters

HEARING DATE:

17 March 2016

HEARD AT:

Brisbane

DECISION OF:

Member Howard

DELIVERED ON:

10 June 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. On GAR 223-15, either party may file in the Tribunal and serve on the other party their submissions about the proposed conditions to be substituted for LL300 and LL302, as outlined in the Tribunal’s reasons for decision dated today by 4.00pm on 23 June 2016.
  1. On GAR 224-15, the decision of the Commissioner of Liquor and Gaming to impose conditions LL300 and LL302 on the licence for the Mission Beach Hotel-Motel is set aside;
  1. The following decision is substituted on GAR 224-15:

‘On the licence for the Mission Beach Hotel-Motel, conditions LL300 and LL302 are not imposed.’

CATCHWORDS:

LIQUOR LICENSING – AFTER HOURS TRADING APPROVAL – CONDITIONS ON LICENCE – considerations in determining whether particular conditions regarding security arrangements should be imposed

ADMINISTRATIVE REVIEW - REASONS FOR DECISION – requirements for reasons for decision

Judicial Review Act 1991 (Qld), ss 32, 33

Liquor Act 1992 (Qld), ss 3, 33, 34, 107C, 111, 121, 128A, 128B, 128C, 142AG, Part 4 Div 7, Part 5 Div 1A, Part 5 Div 6

Liquor Regulation 2002 (Qld), s 37C

Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 20, 21, 24, 157, 160

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223

Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577

Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

East Melbourne Group Inc v Minister for Planning & Anor (2008) 166 LGERA 1

Hyde v Chief Executive, Office of Liquor and Gaming and Anor [2012] QCAT 13

QCoal Pty Ltd & Ors v Hinchcliffe & Anor [2011] QSC 334

Re Minister for Immigration and Multicultural and Indigenous Affairs, ex parte Palme (2003) 216 CLR 212

APPEARANCES:

APPLICANT:

Mr J Horton of Queens Counsel, instructed by Mullins Lawyers

RESPONDENT:

Mr A Scott of Counsel, instructed by the Department of Justice and Attorney-General for the Commisioner for Liquor and Gaming

REASONS FOR DECISION

  1. [1]
    The Australian Leisure and Hospitality Group Pty Ltd (‘ALHG’ or ‘the licensee’) seeks review of decisions of the Commissioner for Liquor and Gaming (‘the Commissioner’) to impose conditions on two commercial hotel licences it holds. The decisions to impose the conditions were made in renewing the licences and granting (further) extended trading hours approvals (‘ETHAs’) for its licensed premises trading as the Vale Hotel (GAR223-15) and the Mission Beach Hotel-Motel (GAR224-15). Although both licences previously included ETHAs, the recent applications for ETHA in each case sought further extended trading hours.
  2. [2]
    The Vale Hotel previously had approval to trade as follows:
    1. 10am to 2am Monday to Saturday;
    2. 10am to 12 am on Sundays.

As a result of the recent approvals, it now has ETHA to trade as follows:

  1. 10am to 3am Monday to Saturday;
  2. 10am to 3am on Sundays. 
  1. [3]
    The Mission Beach Hotel-Motel previously had approval to trade as follows:
    1. 10am to 1am Mondays to Thursday;
    2. 10 am to 2 am on Friday and Saturday;
    3. 10 am to 12 am on Sundays.

As a result of the recent approvals, it now has ETHA to trade as follows:

  1. 10 am to 3 am Monday to Saturday
  2. 10 am to 3 am on Sundays.
  1. [4]
    Conditions imposed on the licences in both cases are numerous. This review concerns only two of those conditions, as follows:

LL300 The licensee and approved manager/s must ensure crowd controllers licensed under the Security Providers Act 1993 are employed in the following ratios at all times from 11:00pm until one hour after the premises ceases to supply liquor:

  • 1 to 100 patrons or part thereof – 1 crowd controller
  • More than 100 patrons but not more than 200 patrons – 2 crowd controllers
  • More than 200 patrons but not more than 300 patrons – 3 crowd controllers
  • More than 300 patrons but not more than 400 patrons – 4 crowd controllers
  • More than 400 patrons but not more than 500 patrons – 5 crowd controllers
  • Plus at least 1 crowd controller for every 250 patrons (or part) thereafter

LL302 The licensee and approved manager/s must ensure a minimum of one (1) crowd controller licensed under the Security Providers Act 1993 maintains surveillance outside the premises for at least one hour after the premises closes for business or, if earlier, until all patrons have vacated the immediate vicinity of the premises.

Prior to (the renewal of the licences and) approval of the (further) ETHA, these conditions were not imposed on the licences.

  1. [5]
    ALHG submits that the extensions to the trading hours are in both cases limited, and on some evenings, for one additional hour only. Also, ALHG submits that it has no adverse compliance history, demonstrating that it has properly managed the venues, including arranging adequate crowd controllers as required to suit the circumstances.
  2. [6]
    In essence, the licensee submits that the imposition in each case of conditions LL300 and LL302 is not the correct and preferable decision because there is no evidence supporting the imposition of the conditions for the licenced premises. In particular, it submits that both licensed premises have had extended trading hours for some years, until, most relevantly, 2am on both Friday and Saturday nights.
  3. [7]
    The Commissioner submits that statistically the most high-risk timeframe for violent incidents associated with licensed premises is after 11pm. The Commissioner submits that the correct and preferable decision is to impose conditions LL300 and LL302. He submits that statistically, throughout Queensland, the risks increase with every additional hour of extended trading hours approval. He submits that licensing decisions are risk-based. He submits that the risks are considered to be minimised by such conditions so that the health and safety of members of the public and the amenity of the area are not affected by ETHAs.

Legislative framework for the review

  1. [8]
    For a review, the Tribunal has all the functions of the decision-maker (in this case, the Commissioner) for the reviewable decision.[1] The purpose of the review is to produce the correct and preferable decision.[2] The review must be conducted by way of a fresh hearing on the merits of the application.[3] The Tribunal may confirm or amend the decision; set aside the decision and substitute its own decision; or set aside the decision and return it for reconsideration to the decision-maker with or without directions.[4]
  2. [9]
    Under the Liquor Act 1992 (Qld) (‘Liquor Act’) the Tribunal must generally decide a review by way of reconsideration of the evidence before the Commissioner when the decision was made.[5] Further, it must decide the review in accordance with the law that applied to the making of the original decision.[6] However, the Tribunal may grant leave to a party to the review to present new evidence in prescribed circumstances.[7] New evidence is defined to mean evidence that was not before the Commissioner when the decision was made.[8]
  3. [10]
    If leave is granted to present new evidence, a reasonable time must be allowed for the Commissioner to consider the new evidence and reconsider the decision and for affected persons to make submissions.[9]
  4. [11]
    The main purposes of the Liquor Act include regulating the liquor industry compatibly with minimising harm and potential from harm from alcohol abuse and misuse and associated violence; and minimising the adverse effects on health and safety of members of the public and amenity of the community: s 3(a).
  5. [12]
    Part 4 Division 7 of the Liquor Act contains ss 84 to 88, which provide generally for extended trading hours approvals. Matters to which the Commissioner must have regard in deciding whether to grant any application are set out in s 121 of the Liquor Act. These include objections;[10] comments from the local government;[11] and for an ETHA, comments from the Police for the locality.[12] For an ETHA between 12am and 5am, these include the previous conduct of the applicant in discharging duties under the Liquor Act;[13] their ability to control noise and behaviour of the number of persons reasonably expected if extension granted;[14] and the suitability of the premises and its facilities for the purposes for which the extension is sought.[15]
  6. [13]
    Section 107C provides generally that the Commissioner may impose conditions on licences and permits for specified reasons. These include to ensure compliance with the Liquor Act; to give effect to the main purpose specified in s 3(a) of the Liquor Act; or to minimise alcohol related disturbances in the locality. Section 111, especially s 111(3), provide that the Commissioner may vary a licence by imposing a new condition.
  7. [14]
    By way of context, a State-wide moratorium imposed in September 2009 on the granting of ETHAs was lifted on 31 August 2014. The lifting of the moratorium coincided with amendments to the Liquor Act, by inserting into the Liquor Act, Part 5 (which provides for grant, variation, renewal and transfer of licences and permits), a new Division 1A entitled ‘Public safety and amenity.’ It applies to the Commissioner for purposes of making a decision regarding licensed premises, in considering the effects of the thing concerned on health and safety of the public or amenity of a locality.[16] The Commissioner may consider matters including the disbursement of patrons leaving the relevant premises; availability of public transport at and immediately after and before the times of operation of the relevant premises; nature and level of noise from the relevant premises.[17] The Commissioner may also consider whether certain events have occurred, and the likelihood of them happening, at or near the relevant premises, including violence, vandalism, nuisance, public urination, vomiting, disorderly behaviour; and noisiness.[18] Under s 128C, the Commissioner may impose conditions on a licence or permit to give effect to the main purpose of the Act set out in s 3(a), including about the adoption of specified security arrangements.[19]
  8. [15]
    Part 5 Division 6, entitled, ‘Certain provisions about conditions of licences for Brisbane City Council area’ was enacted in 2005. It applies only to premises in the Brisbane City Council area (subject to limited exclusions) which are authorised to sell liquor at any time after 1am.  It includes provisions for a condition in every licence, to which it applies, for the number of crowd controllers to be engaged after 11pm and for at least one hour after close of business.

New Evidence

  1. [16]
    Various pieces of evidence, which is new evidence under the definition in s 34 of the Liquor Act, were filed by the Commissioner. These include premises-specific incident statistics, better particulars and an explanatory statement.[20] It is uncontroversial between the parties that this evidence should be before me on the review. Under the Liquor Act, I formally grant leave for it. Because it was filed in advance of the hearing, both parties had the opportunity to consider it.

The Issues raised about the Commissioner’s reasons for decision

  1. [17]
    ALHG submits that this is a landmark case. It says that the Commissioner’s decisions to impose conditions LL300 and LL302 should be set aside, irrespective of the decision reached on the merits of the review. It makes allegations of, what it refers to, as systemic maladministration, in the process of decision-making within the Commissioner’s office. These allegations concern, in part, preparation of reasons for decision by a person other than the decision-maker.[21] The Commissioner concedes that the allegation is factually correct. He says that the practice will now cease.
  2. [18]
    The Commissioner personally made the decisions. There are several versions of reasons for decision.[22] In both cases, the earlier sets of reasons and the further particulars were prepared by Craig Turner, an officer in the Commissioner’s office.[23] He was not the decision-maker and could not be delegated the function of giving reasons for decision. The Commissioner’s own later reasons for decision,[24] which had only recently been prepared at the time of the hearing and filed in the proceedings, concede that he did not prepare any earlier reasons for decision and had no knowledge of what they contained. He belatedly purported to adopt them.
  3. [19]
    ALHG submits that the Commissioner’s own recent attempt does not constitute proper reasons. It says the reasons contain only vague statements of general principle and a slavish adherence to a policy of imposing the conditions sought to be impugned, rather than any proper analysis of the matters relevant to the decision, and that the decisions should be set aside in the interests of justice, because the reasons proffered are not in reality reasons at all. It refers, among other things, to  provisions in the Judicial Review Act 1991 (Qld).
  4. [20]
    This proceeding is not a judicial review: it is a merits review. In any event, ALHG argues that s 24(1)(b) of the QCAT Act contemplates that the Tribunal may set the decision-maker’s decision aside, even if it substitutes, as its own decision, a decision identical to the Commissioner’s decision. It argues that in the interests of justice, the Tribunal should set aside the decision in this proceeding in order to ‘send a clear message’ concerning the preparation of reasons for decision, even if it decides to make the same decision. 
  5. [21]
    The Commissioner argues that because this is a merits review, if the Tribunal concludes that the decision to impose the conditions is the correct and preferable decision, that the proper course is to confirm the decision. He submits that there is no place in a merits review for ‘sending a clear message’ by setting aside a decision if it is the correct and preferable decision.
  6. [22]
    I do not need to decide this issue, because I am not satisfied that the decisions to impose conditions LL300 and LL302 are the correct and preferable decisions in either GAR223-15 or GAR224-15, having regard to the merits.
  7. [23]
    Having said that, I make some observations about the process of merits review. It is well-settled that in a merits review, the decision, not the reasons, is reviewed. Unlike in an appeal or judicial review proceeding, there is no requirement in a merits review to establish that the reasons were incorrect or inadequate in some way in order for the Tribunal to conclude that the decision made is not the correct or preferable one. It is a hearing de novo. The Tribunal considers the matter afresh or anew, effectively standing in the shoes of the decision-maker.
  8. [24]
    That is not to say that decision-makers are entitled to ignore or pay lip service to the requirement to give proper reasons for decision. Chapter 3 of the QCAT Act relevantly sets out the general position requiring reasons for decision to be given for reviewable decisions. Sections 157(2) sets out the requirement, referring also to s27B of the Acts Interpretation Act 1954 (which sets out matters to be addressed in statements of reasons). Further, as ALHG submits, the QCAT Act requires a decision-maker to provide a copy of its statement of reasons in a review,[25] as part of its obligation to help the Tribunal in its review.[26]
  9. [25]
    The provision of adequate reasons is important for the purposes of enhancing the accountability of public administration; maintaining public confidence in administrative decision-making; informing parties about why a decision has been made against their interests and giving them the opportunity to decide whether any error has been made which is challengeable on appeal or judicial review.[27] The reasons will also generally assist a party to understand the outcome and to consider whether a merits review might achieve a different result.
  10. [26]
    ALHG relies upon decisions of courts[28] in making submissions about that the extent to which a decision-maker is bound by reasons (given the Commissioner’s actions here in supplementing the original reasons): it submits that in some circumstances where there is a statutory duty to provide reasons it has been accepted that ‘adequacy of reasons is itself made a condition of legality of the decision.’[29] However, the decisions relied upon do not involve the legislation relevant here, or merits review proceedings. (Rather they concern judicial review proceedings, where the nature of the proceeding is different).
  11. [27]
    Under the QCAT Act, failure to comply with s 157 does not affect the validity of the reviewable decision.[30] The Tribunal may order, as occurred in this instance, that a decision-maker, whose reasons do not contain adequate particulars, provide an additional statement.[31]
  12. [28]
    I make the observation that if it was necessary for me to decide whether the Tribunal is empowered to set aside a reviewable decision, and substitute an identical decision for purposes of sending ‘a clear message’, I would be satisfied that it is not. As discussed earlier, it is the decision that is reviewed, not the reasons. The purposes of the Tribunal’s merits review is to produce the correct and preferable decision. If the decision that was made is the correct and preferable one, even if the reasons are inadequate or wrong, then the proper approach is to confirm the decision, articulating the Tribunal’s reasons for doing so.
  13. [29]
    Again, I stress that although this is so, the requirement for decision-makers to provide proper and adequate reasons must be complied with. They serve a variety of purposes. Failure to do so may well lead to other types of proceedings which could have been avoided had the obligation been met.
  14. [30]
    As discussed above, the Commissioner now concedes that his practices have been inadequate. His Counsel informed the Tribunal at the hearing that the practices will now be discontinued. In light of these concessions, I have decided not to make a formal recommendation to the Commissioner pursuant to s 24(3) of the QCAT Act about the preparation of reasons for decision. I trust that the Commissioner, having been alerted to the issue, will ensure that appropriate practices are now implemented.

What is the correct and preferable decision?

  1. [31]
    The ETHA are effectively new approvals because the extended hours sought are different.
  2. [32]
    Four principal submissions are made by ALHG. Essentially, they are as follows. Firstly, the Commissioner failed to exercise his discretion, by slavishly applying a policy about imposing the impugned conditions. Secondly, there is no rational justification for their imposition. Thirdly, the conditions cannot be justified by policy, any purpose or provisions of the Liquor Act or any evidence-base. Finally, he failed to give weight to the absence of objection by the local authority and police. Also, for Mission Beach Hotel-Motel there is an allegation of a denial of procedural fairness.
  3. [33]
    The Commissioner submits that ALHG makes submissions about alleged error in the reasons for decision, as if this proceeding was a judicial review, rather than about the merits of the decision.
  4. [34]
    I accept that ALHG’s argument about lack of rational justification (with the effect that the Commissioner erred because the decision lacks rationality and probative justification and is therefore so unreasonable that no reasonable decision-maker could have reached the conclusion) is not relevant on this merits review. It argues what is commonly referred to as Wednesbury[32] unreasonableness, which if found, would be an error of law. As discussed, on review, it is not necessary for error to be shown for the Tribunal to reach a different conclusion. It is a hearing de novo. The purpose of the review is to produce the correct and preferable decision. I do not need to consider this argument further. Also, because this review is a hearing de novo, there has been opportunity for ALHG to address the matter complained about as a breach of procedural fairness. Therefore, I do not need to consider the alleged denial of procedural fairness further, except to observe that according procedural fairness is an important requirement of administrative decision-making.

The licensee’s submissions about the slavish application of policy

  1. [35]
    In relation to the submission of slavish adherence to policy, ALHG points to the content of documents in the Commissioner’s records which it says suggest a pre-committed view or policy requiring the imposition of such conditions.[33] In particular, it refers to internal memoranda asserting the imposition is consistent with recent recommendations for similar extended trading hours approvals;[34] and licence documents filed with an explanatory statement.[35] Also, it argues this is apparent because the merits of the case have been disregarded.
  2. [36]
    The Commissioner denies the existence of the alleged policy, as well as slavish adherence to it.[36] In this regard, he refers to the explanatory statement filed by him[37] which reveals the results of 20 ETHA applications made by ALHG for a variety of its licenced premises: all were granted, 10 with conditions LL300 and LL 302 (including the subject premises), and two with condition LL300 only. Eight have neither conditions, but four of those are in the Brisbane City Council area and therefore subject to the mandatory conditions provided for in s 142AG. He argues that this is inconsistent with any inflexible policy and that, in any event, the question to be answered is what is the correct and preferable decision. Further, he submits it is logical to infer that extended trading hours involves higher risk and that rationally this leads to a conclusion that conditions are imposed to control that risk.
  3. [37]
    In deciding this review, I do not need to make a finding about whether the Commissioner did or did not slavishly apply an informal policy as ALHG alleges. My task is to determine the correct and preferable decision. That said, I make the observations as follows. The role of a decision-maker, such as the Commissioner, is to consider the application before him or her on its merits. Slavish adherence to policy without regard to the merits of the case would be improper.[38]  It is clear from the Commissioner’s submissions that there is no formal policy about imposing the conditions. The (other) licence documents attached to Exhibit 5 in each of the proceedings, suggest that the conditions are regularly, but not invariably, imposed. The references in the internal documents relied upon by ALHG are made in respect of not only the two conditions in question but a variety of other conditions. Viewed in context, the comments appear to be consistent with the Commissioner’s submissions. Having said that, as discussed in the following paragraphs, a consideration of the circumstances that relate to the particular premises is required in exercising the discretion.

The statistical evidence: State-wide and premises-specific

  1. [38]
    ALHG submits that the Commissioner initially relied upon State-wide statistics to support his decision, rather than premises-specific statistics, although they were available to him. It argues that the premises-specific statistics, which are now available, demonstrate that it has an admirable record for managing licensed premises well and a low incidence of adverse incidents. ALHG argues that the Commissioner should have had regard to premises-specific statistics in determining whether the conditions were necessary to give effect to the main purpose of the Act.
  2. [39]
    The Commissioner submits that statistical evidence reveals that there is a significantly higher incidence of violence connected to licensed premises after 11 pm at night. He submits that it is reasonable to infer that after 11pm patrons are more likely to have been drinking for some time and that patrons who have been drinking for some time are more likely to commit or become involved in acts of violence. ALHG identifies that the reasons for decision do not refer to this. However, the argument is irrelevant. It is for the Tribunal on this hearing de novo to decide the matter anew, including drawing inferences.
  3. [40]
    Further, the Commissioner submits that the conditions imposed are flexible and responsive to the level of risk. Condition LL300 requires a flexible number of crowd controllers having regard to the number of patrons. ALHG responds that the conditions have no real regard to the individual characteristics of the premises, their location or compliance history.
  4. [41]
    The State-wide statistics[39] reveal that 11pm - 11.59am; 12am - 12.59am; 1am - 1.59am and 2am - 2.59am are the time frames when the highest number of violent incidents have occurred on a State-wide basis.  The prevalence is greatest on Friday and Saturday evenings, and the early hours of Saturday and Sunday mornings.
  5. [42]
    Although the Commissioner concedes that the evidence suggests a ‘relatively low rate of violent incidents at the premises in question’, the Commissioner submits that is not evidence of incidents, or the likelihood of them, in the new extended trading hours, having regard to the increased risk of incidents of violence, nuisance, drunkenness, public urination and the like.

Public health and safety and amenity considerations

  1. [43]
    Whereas the ETHAs for both relevant premises are different from the previous approvals, the (further) extended hours are quite limited. The Vale Hotel may trade for 1 additional hour on Mondays to Saturdays from 2-3am and on Sundays, an additional 3 hours between 12-3am.  Mission Beach Hotel-Motel now has approval for an additional 2 hours on Mondays to Thursdays from 1am to 3 am; and 1 hour on Fridays and Saturdays from 2 to 3am. On Sundays it now has an additional 3 hours from 12-3am. 
  2. [44]
    The premises-specific statistics for 2012 to 2016 are set out in tables prepared by the Commissioner.[40] Mission Beach Hotel-Motel had one recorded ‘other’ incident.[41]Other’ incidents do not appear to be attributed in the table to a particular timeframe. It occurred in 2014/2015. It is not apparent what day of the week it occurred. In the relevant postcode locality, there were a total of 5 incidents in the 2012 to 2016 period, only one in the higher risk periods suggested by analysis of the State-wide statistics.[42]
  3. [45]
    Having regard to the premises-specific statistics, I am satisfied that the incidence of violent incidents at the Mission Beach Hotel-Motel has been historically extremely low. The Commissioner does not raise any adverse compliance history on the part of ALHG. The local experience may be may be the result of effective management practices by ALHG, and/or attributable to the local demographics and/or other unknown local factors. It may be because of the nature of the Mission Beach Hotel-Motel itself and the particular facilities it offers. It is likely to be a combination of these and other factors. However, it is reasonable to infer that effective management practices by ALHG play some part. Whatever the reasons for it, based on this evidence, the risk of violent incidents occurring on any night at any time (even in the higher risk period suggested by the State-wide statistics) as a result of the further ETHA for Mission Beach Hotel-Motel appears to be extremely low.
  4. [46]
    The Vale Hotel is in Aitkenvale in Townsville. There is no evidence before me about the demographics of the locality, but it is not controversial that Townsville is significantly more heavily populated than Mission Beach. The number of hotels in the immediate vicinity is not disclosed in the material.  The Vale Hotel had 13 incidents between 2012 and 2016.[43] Four are recorded as ‘other’ incidents. Of the remaining incidents, two occurred on a Thursday evening, but not in the higher-risk timeframes suggested by the State-wide statistics. One occurred on a Friday evening between 11-11.59 pm. Six occurred on Saturdays: one between 12-12.59 am; three between 1-1.59 am; one between 2-2.59 am. The remaining incident also occurred on Saturday, between 8-8.59 pm.
  5. [47]
    In the relevant postcode locality, there were a total of 25 incidents in the 2012 to 2016 period spread over Tuesday, Thursday, Friday, Saturday and Sunday.[44] Two occurred between 11-11.59pm; 2 between 12-12.59; 6 between 1-1.59am; and 2 between 2-2.59am.The others occurred outside of the higher risk period or are recorded as ‘other’ incidents.
  6. [48]
    I am satisfied on the basis of this evidence that for the Vale Hotel, Friday evening from 11-11.59 and Saturday between 12-2.59am has been the highest risk period, although even then, the risk is relatively low. ALHG submits that the low incidence demonstrates its ability to flexibly, successfully manage its facility. Again, the Commissioner does not submit that there is an adverse compliance history.
  7. [49]
    In respect of the ALHG’s argument that the conditions are not justified by policy or purpose of the Liquor Act or evidence base, the Commissioner makes a number of arguments. He submits that s 3(a), s 107C; the public interest (in deciding an application under s 121); in considering public safety and amenity pursuant to s 128A-C; and the statistical evidence all support the imposition of conditions to control the higher risk associated with ETHA.
  8. [50]
    Whereas I accept that the various legislative provisions referred to require the Commissioner (and on review the Tribunal) to consider whether the conditions should be imposed, the consideration must be based on the particular merits of the application. Section 121 sets out matters that must be considered in deciding whether to grant the particular application. In particular s 121(1)(g) about application for ETHAs, refers to matters specific to the licensee and the premises which are the subject of the application. Section 107C provides for the imposition of conditions, essentially to achieve the purposes of the Act. Read in context, it requires the imposition of conditions appropriate in the particular circumstances. 
  9. [51]
    As discussed earlier, Part 5, Division 1A of the Liquor Act applies for the purpose of making a decision about the effects of something on public health and safety and amenity of the locality: s 128A. Matters that may be considered include disbursement of persons from the premises; availability of public transport; and the noise from the premises: s 128B(1). They also include whether there have been incidents of undesirable and violent behaviour in or near the premises concerned, (including been violence; vandalism; nuisance; public urination; or disorderly conduct): s128B(2). Any other relevant matters may be considered: s 128A(2). Conditions that may be imposed to give effect to the main purpose in s 3(a), (that is, regulating the liquor industry in a manner  which minimises harm and the potential for harm, including associated violence, and adverse effects on public health and safety and amenity) include conditions about the adoption of stated security arrangements.
  10. [52]
    I consider that reliance on the State-wide statistics alone without regard to the history of the licensee and the premises which is the subject of the application ignores the merits of the applications. State-wide statistics alone do not support the imposition of the conditions. They do not reveal information relevant to the relevant licenced premises. They are useful only to the limited extent that they provide general trend information and information against which the records of the Vale Hotel and the Mission Beach Hotel-Motel may be compared with the State-wide experience.
  11. [53]
    ALHG submits that there were no objections to the applications for ETHA to 3 am, from the local Council, local representatives of the Queensland Police, any Members or Parliament, or any member of the public. The Commissioner says that the absence of objections is not the only factor. I accept that the absence of objections is only one factor, to be weighed up with the other relevant factors, in the determination. Here, the absence of objections is consistent with the low rate of past incidents revealed by the premises-specific statistics.
  12. [54]
    The Commissioner submits that the objects of the statutory scheme ‘support a conclusion that there is risk associated with extended trading hours which justifies the imposition of conditions.’[45] The Commissioner submits that conditions LL300 and LL302 impose the numbers of staff and occasions as are required for the Brisbane City Council area.[46] ALHG argues that it is irrelevant that the conditions are the same as those required under s 142AG in the Brisbane City Council area. While acknowledging that circumstances in other localities might justify variation from those requirements, the Commissioner submits that it is reasonable to infer that risks of patrons consuming alcohol for prolonged periods after 11pm are the same in any locality. I am not satisfied that the inference the Commissioner refers to can reasonably be drawn. I am satisfied on my analysis of the premises-specific statistics, that they strongly suggest otherwise in the case of the Mission Beach Hotel-Motel, and to a lesser but still low degree, the Vale Hotel.
  13. [55]
    Further, the Commissioner argues that ALHG advances no proposed modifications to the standard conditions imposed in the Brisbane City Council area. This is irrelevant. Neither the Vale Hotel, nor the Mission Beach Hotel-Motel are in the Brisbane City Council area. The standard conditions in the Brisbane City Council area plainly do not apply. The Parliament could have legislated for those conditions to apply State-wide if it intended them to apply State-wide. It did not. The considerations in more heavily populated areas are reasonably likely to be differ from those in regional and remote areas. It is reasonable to infer that Parliament recognised this and therefore left the question of the need for such conditions to the discretion of the Commissioner for premises outside of Brisbane City Council area.
  14. [56]
    The Commissioner further submits that no basis is asserted that supports a conclusion that the impugned conditions are ‘unnecessary[47] or ‘overly onerous.’[48] He says it is reasonable to infer therefore that they are not. Although the question of cost of compliance to the licensee of imposing a necessary condition may be irrelevant, it is not an appropriate exercise of discretion to impose unnecessary conditions which are potentially expensive and onerous for a licensee to comply with. This is supported by the main objects of the Liquor Act, which in addition to harm minimisation, include facilitating and regulating the optimum development of the tourist, liquor and hospitality industries having regard to the needs and interests of the community and the economic implications of change: s3(b). I am satisfied that facilitation of optimum development contemplates extending or increasing the facilities available to meet community needs, and imposing those conditions necessary and appropriate to minimise harm and adverse effects, but without imposing unnecessary or unnecessarily onerous conditions. What is required is a proper exercise of discretion to determine what the appropriate conditions are in the particular circumstances.  

Conclusions

  1. [57]
    I am satisfied, based on the premises-specific statistics for Mission Beach Hotel-Motel and the inferences I have drawn from them, that there is an extremely low future risk to health and safety of members of the public and amenity of the community as a consequence of the extended ETHA: they do not support the imposition of conditions LL300 and LL302. Having regard to the very low risk of violent incidents at the Mission Beach Hotel-Motel as a result of the new ETHA, I am satisfied that the correct and preferable decision is to set aside the Commissioner’s decision to impose conditions LL300 and LL302, and not to impose any conditions in their place.
  2. [58]
    I am satisfied that there is a low, but higher, risk of incident with the potential for adverse effects on health and safety and amenity, at the Vale Hotel. In this regard, the evidence is that slightly over half of the incidents in the locality between 2012 and 2016 occurred at (or nearby) the premises. Based on the premises-specific statistics for Vale Hotel, I am satisfied that greater risk period (coinciding in part with the higher risk periods suggested by the State-wide statistics), is on Friday from 11pm into the early hours of Saturday morning until closing.
  3. [59]
    I am satisfied on the basis of the statistics, lack of objections and compliance history that ALHG has managed the premises reasonably well in the past. The number of incidents has been reasonably small. Nevertheless, it has experienced a number of incidents over the 2012 to 2016 period and can now, as a result of the new ETHA, trade for an additional period during the times when it has experienced a higher prevalence of incidents. It is reasonable to infer some increased risk to health and safety and amenity in this more heavily populated area as a consequence of later trading on Saturday morning to 3 am. 
  4. [60]
    I am satisfied that the decision to impose conditions LL300 and LL302 should be set aside. I have concluded that the correct and preferable decision is to impose modified conditions LL300 and LL302, such that the requirements apply when the premises-specific statistics suggest that the greatest prevalence of past incidents has occurred, that is, on Fridays from 11pm until closing in the early hours of Saturday mornings.
  5. [61]
    It goes without saying that I expect that ALHG will nevertheless continue to exercise its discretion to ensure appropriate crowd controller numbers at all other times. 

Orders

  1. [62]
    In GAR 223-15, I intend to make orders setting aside LL300 and LL302. I intend to substitute a decision to impose a modified LL300 and LL302 as set out in draft in Annexure A. In LL300, I propose to insert the words ‘On Friday evenings from 11pm’, before the words, at the commencement of the narrative, ‘The licensee...’ and to delete the words in LL300 ‘at all times from 11.00pm’. In LL302, I propose following the words ‘after the premises closes for business’ to insert the words ‘on Saturday morning at 3 am’. However, at this stage, I will not make the proposed orders. I will give the parties the opportunity to make submissions about the proposed modified conditions (to avoid any unintended consequences of the proposed drafting). If no submissions are received from them, I will proceed to make orders in the terms I have set out.
  2. [63]
    In GAR 224-15, the Commissioner’s decision to impose conditions LL300 and LL302 is set aside. I substitute a decision that conditions LL300 and LL302 are not imposed.

Annexure A – Draft Modified LL300 and LL302

LL300 On Friday evenings from 11pm the licensee and approved manager/s must ensure crowd controllers licensed under the Security Providers Act 1993 are employed in the following ratios until one hour after the premises ceases to supply liquor:

- 1 to 100 patrons or part thereof – 1 crowd controller

- More than 100 patrons but not more than 200 patrons – 2 crowd controllers

- More than 200 patrons but not more than 300 patrons – 3 crowd controllers

- More than 300 patrons but not more than 400 patrons – 4 crowd controllers

- More than 400 patrons but not more than 500 patrons – 5 crowd controllers

- Plus at least 1 crowd controller for every 250 patrons (or part) thereafter

LL302 The licensee and approved manager/s must ensure a minimum of one (1) crowd controller licensed under the Security Providers Act 1993 maintains surveillance outside the premises for at least one hour after the premises closes for business on Saturday morning at 3am or, if earlier, until all patrons have vacated the immediate vicinity of the premises.

Footnotes

[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 19(c).

[2]QCAT Act, s 20.

[3]Ibid, s 20(2).

[4]Ibid, s 24(1).

[5]Liquor Act, s 33(1)(a).

[6]Ibid, s 33(1)(b).

[7]Ibid, s 34.

[8]Ibid, s 34(3).

[9]Liquor Act, s 34(2).

[10]Ibid, s 121(1)(b).

[11]Ibid, s 121(1)(c).

[12]Ibid, s 121(1)(d).

[13]Ibid, s 121(1)(g)(i).

[14]Ibid, s 121(1)(g)(ii).

[15]Ibid, s 121(1)(g)(iii).

[16]Ibid, s 128A.

[17]Ibid, s 128B(1).

[18]Liquor Act, s 128B(2).

[19]Ibid, s 128C(e).

[20]Exhibits 2-6 in GAR 223-15 and GAR224-15.

[21]ALHG submits that pursuant to ss 32 and 33 of the Judicial Review Act 1991 (Qld), the person who made the decision must prepare the reasons for decision. 

[22]Exhibits 1, 2, 4 and 6 in each of the files GAR223-15 and GAR224-15.

[23]Exhibit 6 in each of the files GAR223-15 and GAR224-15.

[24]Ibid.

[25]QCAT Act, s 21(2).

[26]Ibid, s 21(1).

[27]See for example, Re Minister for Immigration and Multicultural and Indigenous Affairs, ex parte Palme (2003) 216 CLR 212, (Kirby J) at [105] which was referred to with approval in QCoal Pty Ltd & Ors v Hinchcliffe & Anor [2011] QSC 334 at [14].

[28]East Melbourne Group Inc v Minister for Planning & Anor (2008) 166 LGERA 1.

[29]Applicants Submissions in Reply, filed 11 March 2013 at paras 8-12, quoting from para 8(a).

[30]QCAT Act, s 157(4).

[31]Ibid, s 160.

[32]Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.

[33]Applicant’s outline of submissions, paras [21]-[22].

[34]GAR 223-15 Exhibit 1, page 72; GAR 224-15 Exhibit 1, page 130.

[35]Exhibit 5 in each proceeding.

[36]Submissions on behalf of the Respondent, filed on 4 March 2016, at para 18-21.

[37]Exhibit 5.

[38]For example, see Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634; Hyde v Chief Executive, Office of Liquor and Gaming and Anor [2012] QCAT 13, at [37].

[39]GAR 223-15 Exhibit 1, pages 94-95; GAR 224-15 Exhibit 1, pages 148-149.

[40]Exhibit 4 in each proceeding.

[41]GAR224-15 Exhibit 4, Attachment A.

[42]GAR224-15, Exhibit 4, Attachment B.

[43]GAR223-15, Exhibit 4, Attachment A.

[44]GAR223-15, Exhibit 4, Attachment B.

[45]Submissions on behalf of the Respondent, filed on 4 March 2016, at para [26].

[46]Referring to Liquor Act s 142AG and Liquor Regulation 2002 (Qld), s 37C.

[47]Ibid, at para 9 d) i.

[48]Ibid, at para 9 d) ii.

Close

Editorial Notes

  • Published Case Name:

    Australian Leisure and Hospitality Group Pty Ltd v Commissioner for Liquor and Gaming

  • Shortened Case Name:

    Australian Leisure and Hospitality Group Pty Ltd v Commissioner for Liquor and Gaming

  • MNC:

    [2016] QCAT 90

  • Court:

    QCAT

  • Judge(s):

    Member Howard

  • Date:

    10 Jun 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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