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Jimmy's On the Mall Pty Ltd v Commissioner for Liquor and Gaming Regulation[2017] QCAT 282

Jimmy's On the Mall Pty Ltd v Commissioner for Liquor and Gaming Regulation[2017] QCAT 282

CITATION:

Jimmy’s On the Mall Pty Ltd v Commissioner for Liquor and Gaming Regulation [2017] QCAT 282

PARTIES:

Jimmy’s On the Mall Pty Ltd

(Applicant)

v

Commissioner for Liquor and Gaming Regulation

(Respondent)

APPLICATION NUMBER:

GAR167-17

MATTER TYPE:

General administrative review matters

HEARING DATE:

14 August 2017

HEARD AT:

Brisbane

DECISION OF:

Member Gordon

DELIVERED ON:

18 August 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The Commissioner’s decision of 23 June 2017 is set aside in part.
  2. A condition is added to Licence number 176953 declaring that that the ground floor restaurant premises facing Albert Street are not regulated premises for Division 2 of Part 6AA of the Liquor Act 1992.

CATCHWORDS:

STATUTES – ACTS OF PARLIAMENT – STATUTORY POWERS AND DUTIES – CONSTRUCTION – CONFERRAL AND EXTENT OF POWER – where statute contemplates that premises might be exempt from the ID scanning obligations – whether power to exempt premises is conferred on the Commissioner expressly or by implication

GAMING AND LIQUOR – ADMINISTRATION – LIQUOR LICENSING – OTHER MATTERS – where ID scanning would apply to restaurant premises – where licensee requested exemption for those premises or alternatively for an adjustment to the regulated hours – whether the threshold for approval of the requests is a high one – whether the requests should be granted

Liquor Act 1992 (Qld), s 3, s 4, s 10, s 33, s 34, s 107C, s 111, s 173EF, s 173EG, s 173EH, s 173NA

Acts Interpretation Act 1954 (Qld), s 14A, s 14B

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20

Adelaide Corporation v Australasian Performing Right Association Ltd (1928) 40 CLR 481; [1928] HCA 10

Commissioner of the Australian Federal Police v Hart & Ors; Flying Fighters Pty Ltd v Commonwealth of Australia & Anor; Commonwealth of Australia v Yak 3 Investments Pty Ltd & Ors [2016] QCA 215

Department of Fair Trading v Dale Ferguson & Cairns West Rotary Club Inc (unreported, Magistrate J Hodgins, 5 October 2007)

Houssein v Under Secretary of Industrial Relations and Technology (NSW) (1982) 148 CLR 88; [1982] HCA 2

R v Von Snarski [2001] QCA 71

Rossi v Edinburgh Corporation [1905] AC 21

APPEARANCES:

 

APPLICANT:

Matthew Jones, Director of Liquor & Gaming Specialists Pty Ltd

RESPONDENT:

Dominic Robinson of counsel, Principal Legal Officer at the Department of Justice and Attorney-General, for the Commissioner for Liquor and Gaming

REASONS FOR DECISION

  1. [1]
    As from 1 July 2017 the Queensland government introduced ID scanning for drinkers entering certain licensed premises after 10pm, where those premises were entitled to stay open beyond 12 midnight.
  2. [2]
    Jimmy’s on the Mall requested an exemption from the ID scanning obligations for its ground floor restaurant. In the alternative it requested an adjustment of the hours when ID scanning was required so that they were not required if the premises were to close at midnight.
  3. [3]
    The Commissioner refused these requests and Jimmy’s now applies to the tribunal for a review of the Commissioner’s decision.
  4. [4]
    In order to decide this review it is necessary to understand the ID scanning obligations and their purpose. It is necessary to understand what powers the Commissioner has to exempt parts of premises from the operation of the ID scanning obligations or to adjust the ID scanning regulated hours for premises, and whether there are any fetters on the discretion to do so.
  5. [5]
    It is also necessary to understand how the ID scanning obligations affect Jimmy’s ground floor restaurant, and the effect of the adjustments it seeks and whether this effect would be consistent with the legislation. Finally it is necessary to take an overall view as to whether it would be right to grant Jimmy’s requests.
  6. [6]
    The answer to these questions involves an examination of the nature of Jimmy’s responsibility under criminal law to apply the ID scanning obligations and the difficulty the obligations impose in the particular circumstances.

Jimmy’s on the Mall

  1. [7]
    Jimmy’s is one of Brisbane’s longest established outdoor restaurants and is situated in Queen Street Mall. It opened in 1982 and serves locals and tourists breakfast, lunch and dinner 7 days a week. In 2014 the premises were renovated and they now spread over two levels. On the ground floor level on the Albert Street side, there is a restaurant area of about 106 square metres, with an adjacent kitchen and then on the other side of the kitchen there is a bar of about 83 square metres. Upstairs there is a bar of about 145 square metres which has open air areas with a retractable roof. 
  2. [8]
    The ground floor restaurant is in the shape of a rectangle with a short side towards Albert Street. About half that side is walled. The other half of that side is open, and this serves as the main entrance to the restaurant. 
  3. [9]
    The two longer sides of the restaurant area are also open. These longer sides are bounded throughout their length by bench seats fronted by individual dining tables. The seats have no backs. One result of this arrangement pertinent to this application is that in theory at least, with this present arrangement, it would be possible to enter the ground floor restaurant by climbing over one of these bench seats.
  4. [10]
    The other shorter side of the restaurant (away from Albert Street) is bounded by the servery and kitchen. There is also a staircase in the centre of this shorter side which goes up to the upstairs bar. Next to the staircase is a lift which also goes up to the upstairs bar. The other side of the lift is another entrance to the restaurant accessible along a passage from the ground floor bar and up a short flight of stairs. 
  5. [11]
    The ground floor bar is the other side of the kitchen and therefore forms quite a separate area from the ground floor restaurant. It is also open, but it is partially fenced off by balustrades and a bench seat on one side. The ground floor bar has two entrances, and immediately next to one of those entrances is a flight of stairs which goes to the upstairs bar. 
  6. [12]
    The two staircases (one from the ground floor restaurant and one from the bar) ascend to the upstairs bar and emerge in different places. The upstairs bar is also accessible by the lift from the restaurant area. There is a lavatory in the upstairs bar.
  7. [13]
    The licence currently in place is a commercial hotel licence with extended hours to 3am. This entitles Jimmy’s to sell or supply liquor in accordance with the conditions of the licence.

The request for a partial exemption or adjustment of regulated hours

  1. [14]
    By letter dated 26 May 2017, Jimmy’s made two requests in the alternative:
    1. That the Commissioner declare a part of the premises, that is the ground floor restaurant, to be “not regulated for ID scanning”; or
    2. Alternatively (should the first request be refused), that the Commissioner impose a condition that ID scanning be required only on those nights that liquor is served past midnight on any part of the premises.
  2. [15]
    In the consultation process, the Police opposed both requests on the basis that ID scanning is a key government initiative aimed at minimising alcohol related harms, and that removal of the requirement for the ground floor restaurant was not provided for in the legislation and could not be supported. However, the Council and the local councillor had no objection.  There is no adverse compliance history.
  3. [16]
    Jimmy’s also made a new application for a different type of licence, a commercial on-premises meals licence for 9am to 1am, Monday to Saturday. It has indicated that it may withdraw that application if it is successful in the tribunal in this application.

The role of the tribunal

  1. [17]
    When considering this type of review the tribunal has all the functions of the original decision maker for the reviewable decision.[1] The review must be conducted by way of a fresh hearing on the merits of the application.[2] The hearing however, is a review by reconsidering the evidence before the Commissioner when the decision was made and in accordance with the law that applied at that time.[3]
  2. [18]
    Effectively, since the tribunal stands in the shoes of the Commissioner when considering the review, in so far as it is able to do so the tribunal may apply the knowledge and experience in liquor licensing matters of the Commissioner and of the staff of the Office of Liquor and Gaming Regulation (OLGR). In this review, this appears from the paperwork provided to the tribunal in the form of Risk Assessment Memos and a detailed submission to the Commissioner by the General Manager and the Executive Director of OLGR. Since the Commissioner and the OLGR would also have access to the licensed premises if required, the tribunal is able to receive information from the parties about its structure and layout. It was on that basis that the tribunal was able, without objection from Mr Robinson, to receive information about the premises contained in the written submissions filed on behalf of Jimmy’s, and able to receive better photographs and plans of the premises.[4] This was not “new evidence” which would have required further formality under section 34 of the Liquor Act 1992 (Qld) (the Act).

The ID scanning obligations

  1. [19]
    The main purposes of the Act are set out in section 3. The aims which are most relevant to this review are:
  1. (a)
    to regulate the liquor industry, and areas in the vicinity of licensed premises, in a way compatible with—
  1. (i)
    minimising harm, and the potential for harm, from alcohol abuse and misuse and associated violence; and

Examples of harm—

• adverse effects on a person’s health

• personal injury

• property damage

  1. (ii)
    minimising adverse effects on the health or safety of members of the public; and
  1. (iii)
    minimising adverse effects on the amenity of the community; and
  1. (b)
    to facilitate and regulate the optimum development of the tourist, liquor and hospitality industries of the State having regard to the welfare, needs and interests of the community and the economic implications of change; and

…

  1. (d)
    to provide for a flexible, practical system for regulation of the liquor industry of the State with minimal formality, technicality or intervention consistent with the proper and efficient administration of this Act; and
  1. (e)
    to regulate the sale and supply of liquor in particular areas to minimise harm caused by alcohol abuse and misuse and associated violence.
  1. [20]
    Safe night precincts are established by Part AB of the Act. The aims of these precincts are set out in section 173NA of the Act:
  1. (1)
    The purposes of this part are to, in an area—
  1. (a)
    minimise harm, and the potential for harm, from the abuse and misuse of alcohol and drugs, and associated violence; and
  1. (b)
    minimise alcohol and drug-related disturbances, or public disorder.
  1. (2)
    To achieve its purposes, this part provides for—
  1. (a)
    areas to be prescribed as safe night precincts; and
  1. (b)
    local boards and consultative committees to be established for safe night precincts to enable licensees, the State and local governments, the police service and community organisations to collaborate to achieve the purposes.
  1. [21]
    The ID scanning obligations are in Part 6AA of the Act. It is necessary to set out the provisions of sections 173EF, 173EG and 173EH:

173EF Licensed premises to which this division applies

  1. (1)
    This division applies to licensed premises if—
  1. (a)
    the premises are located in a safe night precinct; and
  1. (b)
    the licensee is authorised under an extended trading hours approval to sell or supply liquor on the premises during all or any part of the period between midnight and 5a.m.; and
  1. (c)
    the licence for the premises is not of an exempt class.
  1. (2)
    Also, this division applies to licensed premises if the licence for the premises is subject to a condition declaring the premises to be regulated premises for this division.

173EG Licence conditions about regulated premises

  1. (1)
    The conditions that may be imposed on a licence under part 4 or 5 include a condition declaring the licensed premises to be regulated premises for this division.
  1. (2)
    Subsection (1) applies to a licence even if it is of an exempt class.
  1. (3)
    The police commissioner may make a recommendation to the commissioner about imposing a condition on a particular licence declaring the licensed premises to be regulated premises.
  1. (4)
    The commissioner must have regard to a recommendation under subsection (3).
  1. (5)
    A licence condition for regulated premises may state a period to be the premises’ regulated hours for section 173EH.
  1. (6)
    To remove any doubt, it is declared that the reference in subsection (5) to regulated premises includes regulated premises to which this division applies under section 173EF(1).

173EH Scanning obligations of licensees for regulated premises

  1. (1)
    The licensee for regulated premises must ensure that, during the regulated hours for the premises, no person is allowed to enter the premises as a patron unless—
  1. (a)
    the person produces a photo ID; and
  1. (b)
    a staff member of the licensed premises scans the photo ID using an approved ID scanner linked to an approved ID scanning system; and
  1. (c)
    the scan of the photo ID indicates the person is not subject to a banning order for the premises.

Maximum penalty—10 penalty units.

  1. (2)
    Subsection (1) does not apply during regulated hours starting on a day if the licensee is not authorised to sell or supply liquor on the licensed premises after midnight of that day.
  1. (3)
    Despite subsection (2), a licence condition for regulated premises may require the licensee for the premises to ensure that, during the  regulated hours for the premises, no person is allowed to enter the premises as a patron unless—
  1. (a)
    the person produces a photo ID; and
  1. (b)
    a staff member of the licensed premises scans the photo ID using an approved ID scanner linked to an approved ID scanning system; and
  1. (c)
    the scan of the photo ID indicates the person is not subject to a banning order for the premises.
  1. (4)
    A reference in subsection (1)(b) or (3)(b) to scanning a photo ID is a reference to operating the approved ID scanner in a way that—
  1. (a)
    records the photo and other permitted information contained in or on the photo ID; and
  1. (b)
    indicates to the staff member whether or not the person is subject to a banning order recorded in the approved scanning system to which the approved ID scanner is linked.
  1. (5)
    If, during the regulated hours for the premises, the licensee can not comply with subsection (1) or (3) because of a system failure, the licensee must—
  1. (a)
    comply with subsection (1) or (3) as if a reference to scanning a photo ID using an approved ID scanner were a reference to checking the photo ID against a current list of persons subject to banning orders; and
  1. (b)
    comply with any other requirements prescribed by regulation; and
  1. (c)
    give written notice of the system failure to the commissioner and the police commissioner within 48 hours after first allowing entry to a patron during the system failure; and
  1. (d)
    make reasonable efforts to rectify, as soon as possible, any part of the system failure that is a fault of, or damage to, the approved ID scanner.

Maximum penalty—10 penalty units.

  1. (6)
    For subsection (5)(a), a current list of persons is a current list within the meaning of section 173EJB.
  1. (7)
    This section does not apply to any of the following persons entering the premises—
  1. (a)
    a resident, whether temporary or permanent, of the regulated premises;
  1. (b)
    an exempt minor;
  1. (c)
    a person whose sole purpose for entering the premises is to attend a function held on the premises;
  1. (d)
    for premises to which any of the following licences relates—a person whose sole purpose for entering the premises is to eat a meal in a part of the premises ordinarily set aside for dining, whether or not liquor is sold and supplied to the person for consumption by the person in association with the eating of the meal—
  1. (i)
    a commercial hotel licence;
  1. (ii)
    a subsidiary on-premises licence if the principal activity of a business conducted under the licence is the provision of accommodation;
  1. (iii)
    a community club licence.
  1. (8)
    Also, this section does not apply to a person entering the premises—
  1. (a)
    if the licence for the premises is subject to a condition declaring the premises not to be regulated premises for this division; or
  1. (b)
    to access a part of the premises if the licence for the premises is subject to a condition declaring the part not to be regulated premises for this division.
  1. (9)
    In this section—

enter, premises, includes re-enter the premises.

permitted information does not include personal information about a person other than the information mentioned in section 173EJ(1)(a), (c) or (d) for the person.

regulated hours, for regulated premises, means—

  1. (a)
    if a condition of the licence for the premises states a period that is the premises’ regulated hours for this section—that period; or
  1. (b)
    otherwise—the period during which the licensed premises are open for business between 10p.m. on a day and 5a.m. on the following day (whether under the authority of a licence, extended hours permit or extended trading hours approval).

staff member, of licensed premises, includes the licensee and a person engaged by the licensee to perform a function for this section.

Aspects of the ID scanning obligations of relevance to this application

  1. [22]
    It can be seen that the ID scanning obligations themselves are in section 173EH(1). Under them, a licensee for regulated premises must ensure that, during the regulated hours for the premises, no person is allowed to enter the premises as a patron unless the obligations are carried out.
  2. [23]
    Both parties to this review agree that “entering the premises” means passing over the threshold of the premises. So for example, where licensed premises have a table on a footpath, if someone sits at that table they would be entering the premises. In the case of Jimmy’s restaurant, if someone were to sit on the bench seat which extends along the two longer sides of the restaurant area they would be entering the premises. This would probably be the case even if they sat facing away from the restaurant because the main part of their body would be in the premises.
  3. [24]
    The ID scanning obligation only arises if a person is to enter the premises “as a patron”. But this term is widely defined in section 4. The word is said to include a person entering or seeking to enter the premises to use the areas, facilities or services on offer at the premises. It means that somebody who entered the restaurant and who wished to use the upstairs lavatory, or wanted to get a drink of water, or simply to sit at a table for a while to join friends or to sit by themselves, would be a “patron”.
  4. [25]
    As can be seen from subsection (7) of section 173EH, the scanning obligations are not required for certain classes of persons. Of particular relevance to this application and to Jimmy’s type of licence and its late evening trade, the obligations do not apply to someone “whose sole purpose for entering the premises is to eat a meal in a part of the premises ordinarily set aside for dining, whether or not liquor is sold and supplied to the person for consumption by the person in association with the eating of the meal”. 
  5. [26]
    This means that if a person wished to enter the restaurant premises with the sole purpose of eating a meal then the ID scanning obligations would not apply to that person. If the person also wished to consume liquor with the meal then Jimmy’s would need to ensure that the liquor was only served in the manner permitted by the Act, as set out in section 10. This reads as follows:

10 When supply of liquor is in association with eating a meal

For the purpose of this Act, a sale or supply of liquor may be taken as being in association with the consumer eating a meal if the liquor is supplied on premises—

  1. (a)
    to a consumer who has indicated a genuine intention of eating a meal on the premises, within 1 hour before the consumer orders the meal; or
  1. (b)
    after the consumer orders the meal and before he or she finishes eating it; or
  1. (c)
    within 1 hour after the consumer has finished eating the meal;

and at no other times. 

  1. [27]
    “Meal” is defined in section 4 as follows:

meal means food that—

  1. (a)
    is eaten by a person sitting at a table, or fixed structure used as a table, with cutlery provided for the purpose of eating the food; and
  1. (b)
    is of sufficient substance as to be ordinarily accepted as a meal.
  1. [28]
    As can be seen from the menus in the book of relevant documents,[5] Jimmy’s offers some smaller dishes, including starters intended as the first course of a substantial meal, which if eaten separately may not amount to a meal under this definition.
  2. [29]
    Since “enter premises” includes “re-enter the premises”,[6] the ID scanning obligations would apply afresh to a person leaving the restaurant intending to return a short time later. One result would seem to be that if that person had finished their meal, they would need to be ID scanned on their return to their seat because they would not then be entering with the sole purpose to eat a meal.
  3. [30]
    Going back to the words of subsection (1) of section 173EH, the licensee’s obligation is (during the regulated hours) to ensure that no person (unless exempt) is allowed to enter the premises as a patron without being ID scanned.
  4. [31]
    What does this mean? 
  5. [32]
    The words as enacted are expressed in the passive voice, leaving it unclear whether it is the licensee who must not allow a person to enter (in the specified circumstances) or whether the persons are not allowed to enter (in the specified circumstances) and the licensee must ensure that this does not happen.
  6. [33]
    The two possible meanings are therefore:
    1. No person (unless exempt) is allowed to enter the restaurant premises without being ID scanned and the licensee must ensure that this does not happen.
    2. The licensee must not allow a person (unless exempt) to enter the restaurant premises without being ID scanned.
  7. [34]
    The correct interpretation will be for the courts enforcing these provisions and not for me when considering this review. It is arguable that either construction is correct. 
  8. [35]
    Construction (a) was preferred by Magistrate J Hodgins sitting in Cairns in Department of Fair Trading v Dale Ferguson & Cairns West Rotary Club Inc (5 October 2007).[7] The statutory words were remarkably similar to those in section 173EF(1): “A licensee, permittee or person in control of the premises to which the licence or permit relates must ensure that a minor is not on the premises.” The Court pointed out that this therefore created an absolute liability not to have a minor on the premises.[8] 
  9. [36]
    If construction (b) applies, then I take Mr Robinson’s point that a licensee does not necessary “allow” a non-exempt person to enter the premises without being ID scanned if that person enters surreptitiously. The principle appears in R v Von Snarski.[9] That case considered an appeal about the question when a person permits premises to be used for the commission of a drug offence. The Court cited these passages from Adelaide Corporation v Australasian Performing Right Association Ltd[10] (in the context of an infringement of copyright):

Mere inactivity or failure to take some steps to prevent the performance of the work does not necessarily establish permission. Inactivity or ‘indifference, exhibited by acts of commission or omission, may reach a degree from which an authorisation or permission may be inferred. It is a question of fact in each case what is the true inference to be drawn from the conduct of the person who is said to have authorised the performance or permitted the use of a place of entertainment for the performance complained of’

… indifference or omission is ‘permission’ within the plain meaning of that word where the party charged (1) knows or has reason to anticipate or suspect that the particular act is to be or is likely to be done, (2) has the power to prevent it, (3) makes default in some duty of control or interference arising under the circumstances of the case, and (4) thereby failed to prevent it. This statement of the legal position was not challenged in argument before this Court.

 

  1. [37]
    If construction (b) applies, then the question of fact for the criminal court would be whether the licensee had allowed a person (who was not exempt from ID scanning) to enter the restaurant premises without being ID scanned. As can be seen from Adelaide Corporation, Jimmy’s would need to take active steps to ensure that they had not allowed this to happen.

Conclusion about the impact of the ID scanning obligations on Jimmy’s ground floor restaurant

  1. [38]
    It is submitted by Mr Jones on behalf of Jimmy’s that there are two main steps to ensure the ID scanning obligations are not contravened in the ground floor restaurant. The first is to screen persons seeking to enter the restaurant to determine whether they may enter without being ID scanned. The screening process would need to establish that the person intended to eat a meal as defined (and not just a snack not amounting to a meal). It would also be necessary, says Mr Jones, to discover whether the person’s sole purpose was to eat a meal – and thereby rule out the possibility that the person may wish to drink more than an hour after finishing the meal. Whilst agreeing with this, I would add that one interpretation of the requirements is that if a person wished to drink with the meal the staff would also need to be satisfied that the person intended to drink not more than one hour before the meal and not more than one hour after the meal.
  2. [39]
    It seems to me that the screening process would also be needed to identify those who are seeking to enter the restaurant for other reasons which required ID screening, for example because they wanted (a) to go to the upstairs bar either by the staircase from the restaurant or the lift, (b) to go to the lavatory upstairs, (c) to join friends already seated in the restaurant without themselves intending to eat or (d) to sit down in the restaurant for other reasons.
  3. [40]
    The second step which would be required, says Mr Jones, is to erect barriers around the restaurant. I agree that if this were not done, it would be a high risk strategy. Without barriers, people could enter the restaurant by climbing over a bench seat or even merely by sitting on a bench seat. I think they would “enter” even if they sat on a bench seat and faced outward. So the barriers would be needed in order to ensure that persons seeking to enter the restaurant area were corralled to one or more entrances to the restaurant where the screening process could take place.
  4. [41]
    It seems to me that failure to take these two steps, that is screening at the entry or entries to the restaurant, and erecting barriers around the restaurant, would make it likely that at some point a criminal offence would be committed if construction (a) of section 173EH(1) is the correct one, and also if construction (b) was the correct one in the light of the need to take active steps as per Adelaide Corporation.

Does the power exist to exempt premises (or part) from the ID scanning obligations?

  1. [42]
    Both parties to this review agree that the Commissioner has the statutory power to exempt the ground floor restaurant from the ID scanning obligations. I need to consider whether it is right that this power exists. I also need to identify its source, in order to see how the statute requires the discretion to be exercised.
  2. [43]
    The problem is that section 173EF(8) requires that any exemption of premises or part of premises from the ID scanning obligations must be by “condition”, but without some purposive construction of the statutory provisions dealing with conditions, it is difficult to see that the Commissioner has an express power to do this, at least on request from the licensee. 
  3. [44]
    The Commissioner’s power to impose conditions on licences is in section 107C of the Act. It is necessary to set this out in full:
  1. (1)
    The commissioner may impose conditions on licences and permits—
  1. (a)
    to ensure appropriate compliance with this Act; or
  1. (b)
    to give effect to an agreement about the management of premises that has resulted from a decision of the tribunal; or
  1. (c)
    to give effect to the main purpose of this Act mentioned in section 3(a); or
  1. (d)
    to minimise alcohol-related disturbances, or public disorder, in a locality.
  1. (2)
    Without limiting subsection (1), a condition may, and always could, require that a patron of licensed premises or premises to which a permit relates must not be allowed to enter the premises during a stated period of a day.
  1. (3)
    Without limiting subsection (1), a condition of a commercial special facility licence relating to an airport or casino may, and always could, specify the trading hours for the licensed premises on Anzac Day, Good Friday or Christmas Day.
  1. (4)
    A condition may provide for matters mentioned in section 173EG.
  1. [45]
    Section 107C might be invoked upon an application by the licensee under section 111(1). The wording of that subsection is:
  1. (1)
    A licensee may apply to vary a licence by amending or revoking a condition of the licence.
  1. [46]
    On the face of it, there is no power here to deal with a request by a licensee seeking to exempt a part of the licensed premises from the ID scanning obligations. This is because such a request would be because the licensee is requesting a new condition, and not an amendment or revocation of an existing condition.
  2. [47]
    Section 111(2) would not apply because the licensee having made a request, any new condition would not be on the Commissioner’s own initiative. Further, any new condition imposed by the Commissioner on its own initiative would have to be for one of the purposes set out in the subsection and none of them would seem to permit an exemption (in particular, section 3(a) is restrictive in nature).
  3. [48]
    On behalf of the Commissioner however, Mr Robinson was clear that such power does exist by reading the words “add” in section 111(1) (so that a licensee could apply to add a condition in the licence). And then by considering the words in section 107C(1)(a) “to ensure appropriate compliance with this Act” as encompassing such an exemption. The way he put it was that if the Commissioner exempted premises from ID scanning then this would establish appropriate compliance with the Act.
  4. [49]
    This approach is capable of resolving concerns about the Commissioner’s power to exempt and may also accord with guidance in section 14A of the Acts Interpretation Act 1954 (Qld):

14A Interpretation best achieving Act’s purpose

  1. (1)
    In the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation.
  1. [50]
    Important for my purposes is that if Mr Robinson is right in these submissions, the manner in which the discretion to grant a condition exempting premises or a part of premises should be exercised would be to achieve the main purpose of the Act in section 3, and the purpose of the safe night precincts in section 173NA of the Act. This is because, unlike the condition making power in the remainder of sections 107C and 111, the Commissioner’s power identified by Mr Robinson to make a condition exempting premises from the ID scanning obligations is unfettered.
  2. [51]
    If, contrary to Mr Robinson’s submissions, the legislature omitted to provide the Commissioner with power to grant a condition exempting premises from the operation of the ID scanning obligations, then in my view such a power can be implied from the words of section 173EH(8).
  3. [52]
    In considering this, it is noticeable that Commissioner is given express power to include licensed premises in the ID scanning obligations even if they are outside a safe night precinct.[11] Also as can be seen below, the Commissioner is given express power to alter the regulated hours over which ID scanning must be done.[12] This might be a factor weighing against the implication of a statutory power to exempt. That the legislature included it in one part of the Act might suggest it intentionally excluded it from another. However, there could be a number of other explanations for the omission to provide an express power to exempt premises from ID scanning, so a rigid exercise of the rule would be inappropriate.[13]
  4. [53]
    The fact that section 173EF(8) contemplates that there may be a condition exempting premises or part of premises from the ID scanning obligations is a strong indication that there is power to do this. The authorities relating to the principle of implied statutory powers were reviewed by Peter Lyons J sitting in the Supreme Court of Appeal in Commissioner of the Australian Federal Police v Hart & Ors; Flying Fighters Pty Ltd v Commonwealth of Australia & Anor; Commonwealth of Australia v Yak 3 Investments Pty Ltd & Ors [2016] QCA 215. It is clear from his judgment and the other members of the Court that the principle of implied statutory power is recognised and applied in Australia.
  5. [54]
    In the circumstances I think it is right to infer that the objective intention of the legislature was to give a power to the Commissioner to exempt premises or parts of premises from the ID scanning obligations by implication in an appropriate case.

How should the power be exercised?

  1. [55]
    From the above it can be seen that the Commissioner has either an express power or an implied power to grant a condition exempting licensed premises or a part of them from the operation of the ID scanning obligations.
  2. [56]
    Whether this power is express or implied, the important thing for my purposes is that in exercising the discretion whether or not to exempt premises from the ID scanning obligations the Commissioner must also consider and not ignore all the main purposes of the Act in section 3, as well as the stated purpose of the safe night precincts in section 173NA of the Act.
  3. [57]
    This is important because two of the purposes in section 3 are called in aid by Jimmy’s:
  1. (b)
    to facilitate and regulate the optimum development of the tourist, liquor and hospitality industries of the State having regard to the welfare, needs and interests of the community and the economic implications of change; and
  1. (d)
    to provide for a flexible, practical system for regulation of the liquor industry of the State with minimal formality, technicality or intervention consistent with the proper and efficient administration of this Act.
  1. [58]
    Conditions can therefore be made having regard to sections 3(b) and 3(d), whilst also minimising the potential for harm from alcohol abuse and associated violence and alcohol and drug-related disturbances, or public disorder.[14]

Is the threshold for a request for exemption a “high one”?

  1. [59]
    The Commissioner states in the Statement of Reasons, and Mr Robinson submits also, that because of the exemptions from the ID scanning obligations already provided for in the statutory provisions, the threshold for approval of a further exemption is a “high one”.
  2. [60]
    No authority is offered for this proposition, and in my opinion it is incorrect to impose such a threshold. As can be seen from the analysis above of the express or implied power to exempt from the ID scanning obligations, the only fetters upon the exercise of the discretion are in the main purposes of the Act set out in section 3 and in the aims of the safe night precincts in section 173NA.
  3. [61]
    Had the legislature intended that there would be any particular difficulty in obtaining an exemption of premises or part of premises from the ID scanning obligations, it would have expressly said so as it often does in legislation governing rights of individuals.[15]
  4. [62]
    Under the principle of legality very clear words in an Act are needed to exclude important common law rights, the ability to trade freely being one of them.[16]
  5. [63]
    There is nothing of assistance here in the explanatory memoranda for the amending legislation of the Act which introduced the ID scanning obligations and which amended them.[17]
  6. [64]
    However, Mr Jones has provided excerpts from the Attorney General’s second reading speech to Parliament when promoting the Safe Night Out Legislation Amendment Act 2014 (Qld) which I may be permitted to consider.[18] There is nothing in the excerpt suggesting that the ability of the Commissioner to exempt premises could only be exercised in an exceptional case.

The merits of the request to exempt the ground floor restaurant

  1. [65]
    As can be seen from the discussion above about the impact of the ID scanning obligations on Jimmy’s ground floor restaurant, in order to reduce the risk of a contravention of the ID scanning obligations, Jimmy’s would need to take certain steps. Those steps are to establish a screening process at one or more of the entrances to the restaurant and in turn this would require erecting permanent barriers or temporary barriers after 10pm in order to stop people being able to enter the restaurant without going through that screening process.
  2. [66]
    It is necessary to consider how far the aims and principles of the Act would be advanced by those steps. This can then be compared with the extent to which the aims and principles of the Act would be impeded if the exemption of the restaurant from the ID scanning obligations were to be granted.
  3. [67]
    This comparison can be done by considering what class of persons would not be ID scanned should the exemption be granted, but would be ID scanned if the exemption were not to be granted.
  4. [68]
    Most of the persons entering the restaurant would be intending to eat a meal there. On that basis they would not be ID scanned anyway. So in their case an exemption would not affect compliance with the Act.
  5. [69]
    Some persons would be heading for the ground floor or upstairs bar. They would be ID scanned anyway on entering those bars so again in their case an exemption would not affect compliance with the Act.
  6. [70]
    Some persons would wish to stay in the restaurant but not eat a meal. They might for example just want a snack, or join their friends there or just sit there on their own. The effect of an exemption for the ground floor restaurant on this class of people would be that they would not be ID scanned whereas they would otherwise be. 
  7. [71]
    Bearing in mind that this class of person would not be able to consume liquor in the restaurant unless with a meal, and if they had a meal they would be exempt from ID scanning anyway, it can be seen that even in their case the effect of an exemption upon compliance with the Act is likely to be small.
  8. [72]
    If there is any impedance in the aims and principles of the Act arising from this class of persons entering the restaurant without being ID scanned, it needs to be compared with the difficulty in taking the steps required to avoid contravening the ID scanning obligations and the inconvenience arising from them if there is no exemption.
  9. [73]
    Whilst I agree with the Commissioner that there is no evidence about the cost of taking those steps, it is obvious I think that there would be some expense involved. There would also be inconvenience arising from those steps not only to Jimmy’s but also to the clientele. The restaurant clientele would be affected by the screening process prior to entry and the persons entering the restaurant in order to reach the bars would be subjected to two screening processes. Having regard to the very limited advancement of the aims and purposes of the Act from the steps, in my opinion the expense and inconvenience greatly outweighs any advancement. 
  10. [74]
    In my opinion therefore these restaurant premises should be exempted from the ID scanning obligations.

The alternative request: to alter the regulated hours

  1. [75]
    This request is made in the alternative to the request for the restaurant premises to be exempt from the ID scanning obligations. For the sake of completeness it is right that I should consider the review with respect to this alternative request.
  2. [76]
    Mr Jones has provided a proposed form of words for the condition sought. It is in this form:

Pursuant to section 173EG(5) the regulated hours for the premises for section 173EH during a trading period in which the premises are not open for business after 12 midnight do not include the period between 10pm and 12 midnight.

  1. [77]
    Mr Robinson for the Commissioner submits that there is no power in the Act permitting a condition of this sort to be made. I agree with this submission.
  2. [78]
    The power to adjust the regulated hours for the purpose of the ID scanning obligations is in section 173EG(5). It is clear from section 173EG(6) that this power applies not only to those premises which are brought into the ID scanning obligations[19] but also for any other premises which are covered by those obligations. That this is the correct reading of section 173EG(6) is shown by the fact that if the power to state the regulated hours under section 173EG(5) is read as limited to those premises brought in to the provisions, then section 173EG(6) would be otiose. 
  3. [79]
    The power is to “state a period to be the premises’ regulated hours for section 173EH”. On the face of it, this means that the regulated hours would have a definite start time and a definite end time. This also appears from the definition of “regulated hours” in section 173EH(9):

regulated hours, for regulated premises, means—

  1. (a)
    if a condition of the licence for the premises states a period that is the premises’ regulated hours for this section—that period; or
  1. (b)
    otherwise—the period during which the licensed premises are open for business between 10p.m. on a day and 5a.m. on the following day (whether under the authority of a licence, extended hours permit or extended trading hours approval).
  1. [80]
    I cannot see that there is a power to make a condition providing for the regulated hours to vary depending on other things. In particular, the regulated hours cannot change depending on whether at 10pm on a particular night a decision is made by the licensee whether or not the licenced premises are to continue supplying liquor beyond midnight. And I do not think it can make any difference to this if the decision whether or not to supply liquor after midnight on particular days is made in advance.
  2. [81]
    Accordingly, I would confirm the Commissioner’s decision to refuse the second request.

Footnotes

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

[2] Ibid, s 20(2).

[3] Liquor Act 1992 (Qld), s 33(1).

[4] In exhibits 1 and 2.

[5] Pages 178 to 185.

[6] Liquor Act 1992 (Qld), s 173EH(9).

[7] I am grateful to the Commissioner’s legal representatives for alerting me to this unreported decision.

[8] There would probably be room however to invoke section 24 of the Criminal Code, which provides a defence where there was an honest and reasonable, but mistaken, belief that the person was not a minor.

[9] [2001] QCA 071.

[10] (1928) 40 CLR 481, 504.

[11] Such power appears in sections 173EF(2) and 173EG(1).

[12] Such power appears in section 173EG(5).

[13] Houssein v Under Secretary of Industrial Relations and Technology (NSW) (1982) 148 CLR 88, [10].

[14] A summary of the aims and purposes which are set out more fully in sections 3 and 173NA of the Act.

[15] The way this is usually done is by referring to an “exceptional case”, for example section 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld), section 84(4) of the Domestic Building Contracts Act 2000 (Qld) (repealed) and section 28B(2) of the Transport Operations (Passenger Transport) Act 1994 (Qld).

[16] Rossi v Edinburgh Corporation [1905] AC 21.

[17] Safe Night Out Legislation Amendment Act 2014 (Qld); Liquor and Other Legislation Amendment Act 2017 (Qld).

[18] Acts Interpretation Act 1954 (Qld), s 14B.

[19] Under section 173EG(1).

Close

Editorial Notes

  • Published Case Name:

    Jimmy's On the Mall Pty Ltd v Commissioner for Liquor and Gaming Regulation

  • Shortened Case Name:

    Jimmy's On the Mall Pty Ltd v Commissioner for Liquor and Gaming Regulation

  • MNC:

    [2017] QCAT 282

  • Court:

    QCAT

  • Judge(s):

    Member Gordon

  • Date:

    18 Aug 2017

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Adelaide City Corporation v Australasian Performing Right Association Ltd (1928) 40 CLR 481
2 citations
Jump To
Cite 1 - (1928) 40 CLR 481
Cite 2 - (1928) 40 CLR 481
Adelaide City Corporation v Australasian Performing Right Association Ltd [1928] HCA 10
1 citation
Jump To
Cite 1 - [1928] HCA 10
Commissioner of the Australian Federal Police v Hart [2016] QCA 215
2 citations
Jump To
Cite 1 - [2016] QCA 215
Cite 2 - [2016] QCA 215
Houssein v Under Secretary Department of Industrial Relations [1982] HCA 2
1 citation
Jump To
Cite 1 - [1982] HCA 2
Houssein v Under Secretary, Department of Industrial Relations and Technology (NSW) (1982) 148 CLR 88
2 citations
Jump To
Cite 1 - (1982) 148 CLR 88
Cite 2 - (1982) 148 CLR 88
R v Von Snarski [2001] QCA 71
2 citations
Jump To
Cite 1 - [2001] QCA 71
Cite 2 - [2001] QCA 71
Rossi v Lord Provost of Edinburgh (1905) AC 21
2 citations
Jump To
Cite 1 - (1905) AC 21
Cite 2 - (1905) AC 21

Cases Citing

Case NameFull CitationFrequency
Jade Buddha Pty Ltd v Commissioner of Liquor and Gaming Regulation [2017] QCAT 4582 citations
Monty on Montague Pty Ltd v Commissioner for Liquor and Gaming [2020] QCAT 1292 citations
The Gresham Bar v Commissioner for Liquor and Gaming Regulation [2017] QCAT 4193 citations
1

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