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The Gresham Bar v Commissioner for Liquor and Gaming Regulation[2017] QCAT 419

The Gresham Bar v Commissioner for Liquor and Gaming Regulation[2017] QCAT 419

CITATION:

The Gresham Bar and other licensed premises v Commissioner for Liquor and Gaming Regulation [2017] QCAT 419

PARTIES:

In GAR211-17:

The Gresham Bar Pty Ltd t/a The Gresham Bar

(Applicant)

v

Commissioner for Liquor and Gaming Regulation

(Respondent)

In GAR209-17:

Rage Tilt Pty Ltd t/a Netherworld

(Applicant)

v

Commissioner for Liquor and Gaming Regulation

(Respondent)

In GAR210-17:

Hermitage Trading Pty Ltd t/a Eye Candy Adult Bar

(Applicant)

v

Commissioner for Liquor and Gaming Regulation

(Respondent)

In GAR212-17:

Peabody Trading Pty Ltd t/a Candy Club Nightclub

(Applicant)

v

Commissioner for Liquor and Gaming Regulation

(Respondent)

APPLICATION NUMBERS:

GAR211-17, GAR209-17, GAR210-17, GAR212-17

MATTER TYPE:

General administrative review matters

HEARING DATE:

9 and 10 November 2017

HEARD AT:

Brisbane

DECISION OF:

Member Gordon

DELIVERED ON:

1 December 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

The decisions of the Commissioner made on the following dates in respect of the following licensed premises, not to endorse a condition on the licence declaring the whole of the premises not to be regulated premises for the purposes of ID scanning, are all affirmed:

  1. (a)
    The Gresham Bar on 23 June 2017;
  2. (b)
    Netherworld on 30 June 2017;
  3. (c)
    Eye Candy Adult Bar on 20 June 2017;
  4. (d)
    Candy Club Nightclub on 20 June 2017.

CATCHWORDS:

GAMING AND LIQUOR – ADMINISTRATION – LIQUOR LICENSING – where ID scanning would cause inconvenience to the licensee and to patrons – where patrons going for a smoke or to the lavatory would need to be rescanned – where the licensee has concerns about positioning the scanner in the light of fire regulations – where ID scanning could increase crowding outside the premises – whether the need to maintain the integrity of the scanning regime outweighs these inconveniences and concerns

GAMING AND LIQUOR – ADMINISTRATION – LIQUOR LICENSING – where, in the case of licensed premises providing adult entertainment, patrons may be sensitive to personal data collection – whether premises should be exempt for this reason

GAMING AND LIQUOR – ADMINISTRATION – LIQUOR LICENSING – where the Commissioner’s guidelines are likely to need revision – whether the tribunal can reach the correct and preferable decision without reference to them

Building Fire Safety Regulation 2008 (Qld), s 7, s 8

Criminal Code 1899 (Qld), s 31

Fire and Emergency Services Act 1990 (Qld), s 104C

Liquor Act 1992 (Qld), s 3, s 33, s 34, s 42A, s 142ZZB, s 173EE to s 173ET, s 173NA

Liquor Regulation 2002 (Qld), s 3FA

Privacy Act 1988 (Cth)

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

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

Frugtniet v Australian Securities and Investments Commission [2017] FCAFC 162

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

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

APPEARANCES:

 

APPLICANT:

Russell Steele of RSA Liquor Professionals

RESPONDENT:

Angus Scott, counsel, instructed by the Department of Justice and Attorney-General

REASONS FOR DECISION

  1. [1]
    As from 1 July 2017 the Queensland government introduced ID scanning for drinkers seeking to enter licensed premises in safe night precincts after 10pm, where those premises were entitled to supply liquor after 12 midnight.
  2. [2]
    The four applicants requested an exemption from the ID scanning obligations.  In each case the Commissioner refused to give the exemption.  The applicants now apply to the tribunal for a review of the Commissioner’s decision.
  3. [3]
    In each case the applicants have attempted to show to a greater or lesser degree that unless they are exempted from the ID scanning obligations, they and their patrons will suffer inconvenience and there will be a greater risk of conflict arising from congestion outside the premises.  The applicants also have concerns about compliance with fire regulations and their other obligations.  In the case of the two adult entertainment premises (Eye Candy Adult Bar and Candy Club Nightclub), it is also said that patrons have privacy concerns.
  4. [4]
    In this decision it is necessary to weigh these matters against the need to maintain the integrity of the ID scanning regime, having regard to the statutory aims in the Liquor Act 1992 (Qld) (the Act).

The role of the tribunal

  1. [5]
    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. [6]
    The evidence considered by the Commissioner in the case of each applicant has been provided to the tribunal.  By agreement, some plans and photographs were added to the bundle of documents.  This was possible without being “new evidence” under section 34 of the Act (which would require further formality), because the tribunal stands in the shoes of the Commissioner when considering the review.  Therefore 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) and this includes their knowledge of, and ability to access, the licensed premises if required.  On the same basis, the tribunal received information about ID scanners, including photographs of different types of approved scanners,[4] and a better photograph of the exterior of The Gresham Bar.[5]

The ID scanning obligations

  1. [7]
    The legislation covering the ID scanning obligations is in Part 6AA of the Act, in sections 173EE to 173ET.  The ID scanning obligations automatically apply to licensed premises in safe night precincts which are authorised to sell or supply liquor beyond midnight on the day in question.  In Brisbane, there are three safe night precincts: Brisbane CBD, Fortitude Valley and Inner West Brisbane (including Caxton Street).  There are other safe night precincts around Queensland.
  2. [8]
    Certain classes of licensed premises in safe night precincts are exempt from the ID scanning obligations.  These are casinos, convention centres, and premises where the principal activity under the licence is the provision of meals or accommodation.[6] 
  3. [9]
    Certain persons do not have to be ID scanned.  This applies to residents of the premises, exempt minors, and those whose sole purpose is to attend a function or (for certain types of licence) to eat a meal in a part of the premises set aside for dining.[7]
  4. [10]
    The Commissioner may add licensed premises to the ID scanning regime even if they are outside safe night precincts or otherwise exempt.[8]
  5. [11]
    The ID scanning obligations require a licensee to ensure that, during the regulated hours on an affected day, no person is allowed to enter the premises as a patron unless:[9]
    1. the person produces a photo ID; and
    2. a staff member of the licensed premises scans the photo ID using an approved ID scanner linked to an approved ID scanning system; and
    3. the scan of the photo ID indicates the person is not subject to a banning order for the premises.
  6. [12]
    The Commissioner may exempt premises or part of premises from the ID scanning obligations.  This power is either express or arises by implication under section 173EH(8) of the Act; either way, the power is to be exercised to achieve the main purpose of the Act in section 3, and the purpose of the safe night precincts in section 173NA.[10]
  7. [13]
    The main purposes of the Act are set out in section 3:
  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. (c)
    to provide for the jurisdiction of the tribunal to hear and decide reviews of certain decisions under this Act; 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; and
  1. (f)
    to regulate the provision of adult entertainment; and
  1. (g)
    to provide revenue for the State to enable the attainment of this Act’s main purposes and for other purposes of government.
  1. [14]
    Safe night precincts are established by Part AB of the Act. The purposes of the legislation 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. [15]
    In these applications it is said that the purposes in section 3(b) and (d) disclose an intention on the part of the legislature that the Commissioner should be flexible when considering applications for exemption from the ID scanning obligations.
  2. [16]
    It is true that when considering such applications the Commissioner would have regard to sections 3(b) and 3(d), whilst also considering the stated aims of minimising the potential for harm from alcohol abuse and associated violence and alcohol and drug-related disturbances, or public disorder.[11]

Maintaining the integrity of the scanning regime

  1. [17]
    There is however another important factor when considering these applications for exemption.
  2. [18]
    I agree with the submissions made on behalf of the Commissioner that in a safe night precinct, if any licensed premises were given an exemption from the ID scanning obligations, then a banned person would be able to enter those licensed premises after 10pm and this could undermine the integrity of the ID scanning regime in the precinct.  The legislature has identified certain classes of licensed premises to which the obligations do not apply, and in doing so has no doubt recognised that the exemption given to these premises will not overly interfere with the integrity of the scheme.  No doubt this is because if banned persons entered those types of premises there are sufficient other controls or other factors which make their entering acceptable. 
  3. [19]
    There may also be cases where the effect on the integrity of the ID scanning regime would be minimal and so an exemption may be justified, such as in Jimmy’s on the Mall.[12]
  4. [20]
    Overall therefore, consideration of an application for exemption will require a balance of the points raised by the applicant against the effect of an exemption on the integrity of the ID scanning regime, having regard of course to the purposes of the Act and that of the safe night precincts.  This is a balance of the competing factors set out in sections 3 and 173NA.

Privacy provisions

  1. [21]
    Since it is said on behalf of the two adult entertainment premises that patrons have privacy concerns arising from the ID scanning obligations, it is necessary to consider how the Act deals with privacy issues. 
  2. [22]
    The ID scanning obligations require the photo ID of the patron seeking to enter the premises to be recorded in the scanning system together with the patron’s name address and date of birth.[13]  The scanners which have been approved by the Commissioner also take a photograph of the patron. 
  3. [23]
    The relevant statutory provisions in the Act dealing with privacy are:-

173EI Privacy

  1. (1)
    It is a condition of a licence for regulated premises that the licensee must—
  1. (a)
    if the licensee is not an organisation under the Privacy Act 1988 (Cwlth)—ensure the licensee is treated as an organisation for that Act; and
  1. (b)
    comply with that Act in relation to the protection of personal information recorded by an ID scanner operated in the regulated premises.
  1. (2)
    If licensed premises stop being regulated premises, or a licence for regulated premises ends under this Act, the licensee or person who was the licensee must not keep or disclose any personal information recorded by an ID scanner operated in the premises.

Maximum penalty—25 penalty units.

  1. (3)
    Subsection (2) does not apply to a disclosure of information required or permitted by law.

Division 3 Operation of approved ID scanning systems

173EJ Obligations about operation

  1. (1)
    An approved operator for an approved ID scanning system (the system) must ensure the system does not record any personal information about a person other than the following—
  1. (a)
    the person’s name, address and date of birth;
  1. (b)
    a photo of the person;
  1. (c)
    details of a banning order in force for the person;
  1. (d)
    details of a licensee ban imposed on the person by a linked licensee that the licensee has asked the approved operator to include in the system.

Maximum penalty—25 penalty units.

  1. (2)
    The approved operator must ensure personal information is not held in the system for more than 30 days after it is entered into the system.

Maximum penalty—25 penalty units.

  1. (3)
    Subsection (2) does not apply to information about a person subject to a banning order or licensee ban in force for the person that the approved operator is, under subsections (4) to (6), required to include in the system.
  1. (4)
    The approved operator must as soon as reasonably practicable comply with a requirement of the commissioner or the police commissioner to—
  1. (a)
    include stated information about a banning order in the system; or
  1. (b)
    remove stated information about a banning order from the system; or
  1. (c)
    make a stated change to correct information in the system about a banning order.

Maximum penalty—25 penalty units.

  1. (5)
    The approved operator must as soon as reasonably practicable comply with a request of a linked licensee, relating to a licensee ban imposed by the licensee, to—
  1. (a)
    include stated information about the licensee ban in the system; or
  1. (b)
    remove stated information about the licensee ban from the system; or
  1. (c)
    make a stated change to correct information in the system about the licensee ban.

Maximum penalty—25 penalty units.

  1. (6)
    The approved operator must as soon as reasonably practicable include, remove or change information in the system—
  1. (a)
    if required by a court order; or
  1. (b)
    if asked by a person bound by a court order that requires the inclusion, removal or change to be made.

Maximum penalty—25 penalty units.

  1. (7)
    In this section—

linked licensee, for an approved operator, means a licensee who uses, in the licensed premises, an approved ID scanner linked to the approved ID scanning system.

173EL Operation of scanning system without approval

  1. (1)
    This section applies to an approved scanning system to which an approved ID scanner in regulated premises is linked.
  1. (2)
    A person must not operate the system unless the person is an approved operator or an officer, employee or agent of an approved operator.

Maximum penalty—25 penalty units.

173EM Privacy

  1. (1)
    An approved operator must—
  1. (a)
    if the approved operator is not an organisation under the Privacy Act 1988 (Cwlth)—ensure the approved operator is treated as an organisation for that Act; and
  1. (b)
    comply with that Act in relation to the protection of personal information held in the approved ID scanning system.

Maximum penalty—25 penalty units.

  1. (2)
    An approved operator must not allow an ID scanner to be linked, or continue to be linked, to the approved ID scanning system if the approved operator knows the ID scanner is used other than in regulated premises.

Maximum penalty—25 penalty units.

  1. (3)
    After ceasing to be an approved operator, a person must not keep or disclose any personal information that was held in the approved ID scanning system.

Maximum penalty—25 penalty units.

  1. (4)
    Subsection (3) does not apply to a disclosure of information required or permitted by law.

173EMA Information sharing

  1. (1)
    This section applies to an approved operator for an approved ID scanning system to which an approved ID scanner in regulated premises is linked.
  1. (2)
    To remove any doubt, it is declared that—
  1. (a)
    the approved operator may give the following persons information about each person subject to a banning order for the regulated premises, or licensee ban imposed by the licensee for the premises—
  1. (i)
    the police commissioner;
  1. (ii)
    the commissioner;
  1. (iii)
    the licensee for any regulated premises; and
  1. (b)
    a court or the police commissioner may give an approved operator details of a banning order for regulated premises that is in force for a person.
  1. [24]
    Section 3FA(5) of the Regulation require the licensee to prepare, implement and keep up to date a privacy management plan stating how the licensee with comply with the Privacy Act 1988 (Cth) in relation to the protection of personal information recorded by an approved ID scanner operated in the premises. 
  2. [25]
    Section 3FA(6) requires the licensee to consider a patron’s written complaint about a breach of privacy, and give the Commissioner written notice and an outline of the complaint within 14 days after the complaint is received.
  3. [26]
    These, and other provisions of the Act, disclose a five pronged approach to privacy issues:
    1. Requiring the licensee of premises which are covered by the ID scanning obligations and also the approved operator of the ID scanning system to opt-in to the Privacy Act 1988 (Cth) if that Act  does not already apply to them (in the private sector it would only apply to organisations with a turnover of $3m or more).[14]  Thus the Australian Privacy Principles apply.  They concern the collection, use and disclosure, and security and keeping, of the personal information.  In addition, the licensee must prepare, implement and keep up to date a privacy management plan in accordance with the principles.[15]
    2. Requiring the ID scanning system to remove the personal information of those who are not banned persons after 30 days[16] and restricting the use and disclosure of the personal information on cessation of the licence or ceasing to be an approved operator.[17]
    3. Providing for written complaints about privacy issues to be forwarded to the Commissioner.[18]
    4. Providing that only an approved operator or an officer, employee or agent of an approved operator can use the scanning system.[19]  Application for approval is made to the Commissioner and requires a criminal history check, and the approval is given if the Commissioner is satisfied the person is a suitable person to operate the system.[20]  The approval may be suspended or revoked on a contravention of (amongst other things) the privacy provisions.[21]
    5. Controlling the ID scanners and scanning systems themselves, and modifications made to them.[22]

The applicants

  1. [27]
    The Gresham Bar is in the Brisbane CBD safe night precinct.  It occupies part of a State heritage place at 308 Queen Street, Brisbane, which is listed on the Queensland Heritage Register established under the Queensland Heritage Act 1992.  It has a Commercial Other – subsidiary on premises licence, with extended hours to 3am. This entitles The Gresham Bar to sell or supply liquor.  It does not provide meals.  The bar has a capacity of 90 persons.
  2. [28]
    Netherworld is in the Brisbane CBD safe night precinct.  It has a Commercial Hotel Licence with approved trading hours of 10am to 3am, enabling it to sell or supply liquor over that time. 
  3. [29]
    Eye Candy Adult Bar and the Candy Club Nightclub are both in the Fortitude Valley safe night precinct.  They both have Nightclub Licences which entitle them to sell or supply liquor from 10am to 3am.  They also have an adult entertainment permit covering 24 hours a day for 7 days a week.  Both premises have a capacity of 300 persons.  Both premises have bar areas with stages and some areas which are more private. 

Rescanning

  1. [30]
    For The Gresham Bar, Netherworld and Eye Candy it is said that a particular inconvenience arises from the fact that they have smoking areas which are outside the premises.  Since the definition of “enter” in section 173EH(9) includes re-enter, this means that smokers need to be rescanned on their return to the premises.  The Gresham Bar also has an outside lavatory (and no lavatory inside).  Hence patrons wishing to use the lavatory would need to leave the premises and be rescanned on their return.
  2. [31]
    Where there is likely to be a queue outside the premises these issues have implications for the queuing risk considered below.

Compliance with fire regulations

  1. [32]
    To a greater or lesser extent, concern was expressed on behalf of each applicant that complying with the ID scanning obligations put the licensee at risk of breach of the obligations under fire legislation. 
  2. [33]
    The Gresham Bar only has one door into and out of the premises.  So it was said that the need to comply with the ID scanning obligations presented a fire risk because the scanner would obstruct evacuees.
  3. [34]
    Netherworld has three fire exits.  One of these was also the main entrance[23] and it was said that the presence of a scanner at that entrance would obstruct evacuees.
  4. [35]
    The main entrances for both Eye Candy and The Candy Club act also as a main fire exit for these premises and a similar concern was expressed for these premises.
  5. [36]
    Section 104C of the Fire and Emergency Services Act 1990 (Qld) was referred to.  This requires an occupier of a building to “maintain at all times free from obstruction adequate means of escape in the event of fire threatening any part of the building”.  It is a criminal offence to fail to comply with this provision and an infringement notice (on the spot fine) can be issued for a breach.[24]
  6. [37]
    Sections 7 and 8 of the Building Fire Safety Regulation 2008 (Qld) were also referred to.  These make it a criminal offence for any person or an occupier of premises to place a thing within 2 metres of a final exit outside a building or on an evacuation route if the thing is likely unduly to restrict, hinder or delay a person using it in a fire.  Again an infringement notice can be issued for a breach.
  7. [38]
    It is clear that in order to breach section 104C of the Fire and Emergency Services Act 1990 (Qld) and sections 7 and 8 of the Building Fire Safety Regulation 2008 (Qld), an obstruction does not have to be permanent.  Even objects temporarily placed in an evacuation route or fire exit could obstruct sufficiently to be a breach – such as trolleys, motorbikes or garbage or wheelie bins.[25]  But it is also clear that not every object placed in an evacuation route or fire exit would breach the requirements, because the breach is that the object is an “obstruction” of a “means of escape” (section 104C) or a thing “likely unduly to restrict hinder or delay” (sections 7 and 8).  Not every object would be a sufficient obstruction to breach the requirements.
  8. [39]
    I need also to mention section 31(1)(a) of the Criminal Code 1899 (Qld), which provides that a person is not criminally responsible for an act or omission in execution of the law or in obedience to the order of a competent authority which the person is bound by law to obey.  Whether this would provide a defence to a breach of the above fire obligations if the positioning of a scanner were to blame for an obstruction of an evacuation route or fire exit is debatable, bearing in mind that a licensee could simply change licensing hours to avoid the ID scanning obligations altogether.
  9. [40]
    At the hearing there was a discussion about scanner placement at all the premises concerned.  The greatest difficulty was at The Gresham Bar.  Three possible places for the scanner were considered: (a) at the bottom of the steps leading up to the main door; (b) at the top of those steps; or (c) just inside the door.  It would appear that a scanner placed in position (c) would not be in the way of evacuees at all.  However, a scanner placed in either position (a) or (b) would probably need to be moved aside in the case of an emergency.
  10. [41]
    It would be a question of in fact in each case whether a scanner placed wholly or partly in an evacuation route or fire exit was a breach of the fire requirements, with arguments either way.  The fact that a scanner would be manned at all times, and could be on wheels[26] made it less likely that it would be an obstruction in breach of the fire requirements because it could be shifted to one side in the event of an emergency.  However it was said on the applicants’ behalf that in fact the machines are top heavy, and they would be plugged in for power and most likely data as well, therefore they could be an obstruction.
  11. [42]
    The practical difficulties faced by the licensees about scanner placement  need to be considered in the light of the Commissioner’s power to exempt part of the premises from the ID scanning obligations.  An exemption from the scanning obligations of that part of the premises from the street threshold to an agreed position for the scanner would enable scanners to be placed inside a vestibule or inside the main door, as was canvassed in the cases of Candy Bar or The Gresham Bar respectively.  Without such an exemption, a person would have entered the premises before being scanned, and this would be a contravention of section 173EH of the Act.  At the hearing it was said that the Commissioner would be willing to consider such applications.

Queuing risk

  1. [43]
    It was said that there was a risk of queues developing outside premises  with ID scanning obligations causing an increased risk to safety.  It was said that the queuing risk arose because of the time it takes to scan patrons seeking to enter the premises, compounded by the need to rescan those who have to be rescanned on return from a smoke or the lavatory (for those premises for which these issues apply).  And it was said that in some situations it may not be prudent to allow returners to the front of the queue if this could cause conflict.
  2. [44]
    With respect to the Gresham Bar, having regard to its size, the nature of its usual clientele and the length of time they stay in the bar, it was conceded that the risk is limited.  But it was said that because of the high pedestrian traffic in the vicinity, any such risk was exacerbated.
  3. [45]
    In the case of Netherworld and the other two venues, any queues which developed would be on the footpath outside the premises.
  4. [46]
    It was also submitted that there was concern about insurance cover for the activities of security guards operating on the pavement, but there was no evidence about this.

Obligation to maintain a safe environment

  1. [47]
    Emphasis was placed on behalf of the applicants on the requirements of 142ZZB of the Act which require licensees and permittees to provide and maintain a safe environment in and around the premises.  Also by that section a licensee or permittee must, in the conduct of business on the premises, take all reasonable steps to ensure that the use of the premises and the behaviour of persons entering or leaving the premises does not adversely affect the amenity of the area in which the premises are located.
  2. [48]
    It was submitted that the obligations in section 142ZZB are in conflict with the ID scanning obligations, which (because of the queuing risk) increase the difficulties faced by licensees and permittees in complying with these requirements.

Particular issues for the Gresham Bar

  1. [49]
    For the Gresham Bar it was said that a scanner positioned outside the premises would obstruct the access ramp for wheelchair users and/or obstruct the handrail attached to the outside of the building at the right hand side of the entrance and/or cause difficulties for those with sight loss.
  2. [50]
    Evidence was submitted to the Commissioner from an architect[27] who opined that it would be very difficult to install the necessary data and electrical wiring without detracting from the heritage values of the building.  It was submitted that this showed that such work required permission and there would be difficulties obtaining this.
  3. [51]
    Mr Steele accepted however, that there would be other ways to provide power and data to the scanner than were considered by the architect in his letter,[28] for example using the conduits supplying the lamp housing just outside the building.  The Compliance Officer noted that there was other cabling within the building and therefore formed the view that there was no reason why surface cabling could not be used.  There is evidence that a scanner is available which can use Wi-Fi but it was suggested it could not be used reliably because of the thickness of the walls at The Gresham Bar.

Heritage issue for Netherworld

  1. [52]
    It was said that there are heritage tiles on the external face of Netherworld which cannot be drilled through to provide power and data connections or to affix a scanner.  There is no evidence that this is the case, nor was it shown that any such work would be necessary in order for the licensee to comply with the ID scanning obligations. 

Whether there are likely to be any issues with clientele

  1. [53]
    It was said on behalf of the Gresham bar that the fact that there have been no past issues with clientele demonstrates that there is no need for this bar to carry out the ID scanning obligations.  It was submitted that it was unlikely that banned persons would wish to enter the bar.
  2. [54]
    With respect to Netherworld, the venue has only been opened since January 2017.  The premises specialise in offering pinball and arcade machines for entertainment, which attracts a regular clientele.  There have been no previous relevant issues.  Therefore it was said that the clientele are unlikely to be those who would need to be ID scanned.
  3. [55]
    In the case of the Eye Candy bar, the application for exemption from ID scanning referred to the lower risk profile of adult entertainment venues, and no incidents of violence indicating that there was no need for ID scanning for entry to the premises.[29]  However, these submissions were belied by the record of incidents before the Commissioner.[30]  There had been a public nuisance in October 2016 at 11.20pm when a person who was unsteady on his feet was arguing with security; then on 3 December 2016 at 4.25am a patron was arrested for resisting eviction from the premises, and a second person was arrested soon after for a violent public nuisance incident outside the premises.  On 21 December 2016 at 9pm a patron was forcibly evicted from the premises and was disorderly outside and caused a scene.  On 4 March 2017 at 12.25am a patron who was very drunk was forcibly evicted from the premises and was arrested by police outside when he was disorderly: he resisted arrest and had to be restrained.  On 14 March 2017 at 7.01pm a person had been refused entry to the premises and insulted and harassed a female employee outside the premises.
  4. [56]
    In the case of the Candy Club, a similar application was made, claiming that adult entertainment venues were low risk and there had been no violent incidents requiring ID scanning.[31]  However, the Commissioner could see from the record of incidents[32] that there had been a serious physical assault in the premises at 12.00am on 19 December 2016, the perpetrator being very drunk.  On 1 June 2017 at 3.00am a male and female who were very drunk and acting inappropriately in the premises were told to leave by security but they became very aggressive and had to be forcibly removed.  Outside the premises the male person punched the security officer several times and the female yelled and screamed at the officer and grabbed him around the neck.  Both were arrested by police.

Submissions about the Commissioner’s Guidelines

  1. [57]
    On behalf of the applicants it was submitted that the Commissioner’s Guideline “is invalid and does not reflect the law”. 
  2. [58]
    The Guideline concerned is:

Guideline 59: Declaration of licensed premises (or part of) as ‘not regulated for ID scanning’

Liquor Act 1992 – section 173EH

A licensee may request to have part of their licensed premises declared as ‘not regulated for ID scanning’ under s 173EH of the Liquor Act 1992.

The Commissioner for Liquor and Gaming Regulation may consider all of the following matters when considering such a request:

  • the use of the part of the premises
  • The Commissioner may approve a part of the premises for which the main purpose is not the on-premises consumption of alcohol.  For example, a segregated gaming area or a dining area may be considered appropriate.  These areas must be able to be accessed without travelling through areas of the regulated premises.
  • The Commissioner is unlikely to approve areas where the on-premises service of liquor is the main activity, such as beer gardens, entertainment areas and bar areas.
  • any relevant compliance history for the premises
  • the comments provided by the Queensland Police Service.

The Commissioner may also consider other matters depending on the particular application.

If the request is approved

If the Commissioner approves the request, a condition is endorsed on the licence declaring part of the premises as ‘not regulated’.

The rest of the licensed premises will be regulated, and the licensee must meet ID their scanning obligations for this part of the premises (sic).

Note: Under legislation, ID scanning only applies to patrons entering licensed premises for the purchase of liquor for on-premises consumption.  For this reason, premises that do not allow for on-premises consumption of alcohol, and that do not trade past 12 midnight (e.g. liquor barns and drive through/walk through bottle shops), are deemed to be ‘non-regulated’ parts of the premises.

  1. [59]
    It is said that the Guideline does not contemplate the whole premises being exempted from ID scanning which is obviously possible as shown by the terms of section 173EH(8)(a) of the Act.  It is said that this demonstrates bias against a lawful request to exempt whole premises (as opposed to part premises) from the ID scanning obligations, and in any case does not convey the correct information to those who have not read the relevant part of the Act. 
  2. [60]
    It is said that the Guideline has resulted in an “entirely formulaic approach” to applications for exemptions to the ID scanning obligations, and this has flowed down to the comments and objections from the police and the OLGR officers who have referred to the Guideline for their approach to the applications.
  3. [61]
    It is said that the Guideline has unlawfully fettered the proper consideration of the discretion whether to exempt the premises concerned.  And it is submitted that because the Guidelines are wrong, the tribunal is not obliged to apply them.[33]
  4. [62]
    Whether it is necessary for the tribunal in these applications to consider whether the Guideline is wrong or not, depends on whether the tribunal might be influenced by them at all.
  5. [63]
    The Commissioner has the power to make guidelines by section 42A of the Act.  In Hyde v Chief Executive, Office of Liquor and Gaming and Anor [2012] QCAT 13, Member Howard (as she then was) considered when the tribunal would follow guidelines under the Act (at paragraph [37]):

Guidelines can be issued under section 42A of the Act by the chief executive. Guidelines are not legislation. They set out, in effect, the policy of the chief executive in relation to the matters they cover. Lawful ministerial policy will generally be followed in merits review proceedings unless there are cogent reasons to depart from it.38 A more guarded approach has been taken to departmental guidelines. However, if the policy is reasonable and sound, consistency in decision-making makes it desirable that it be followed provided the merits of the matter are considered,39 and provided that any policy requirements are in accordance with the relevant legislation.40 If policy is defective, the decision may be reviewed without regard to the policy.41

 

38  Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, per President Brennan J; Australian Unity Health Ltd v Private Health Insurance Administration Council [2000] FCA 769 [42-45] (Goldberg J); Perder Investments Pty Ltd v Lightowler (1990) 101 ALR 151 (Spender J).

39  Ruggeri and Secretary, Department of Social Security (1985) 8 ALD 338; Australian Unity Health Ltd v Private Health Insurance Administration Council [2000] FCA 769 [42-45] (Goldberg J); R v Queensland Fish Management Authority ex parte Hewitt Holdings Pty Ltd [1993] 2 Qd R 201 (Macrossan CJ, de Jersey J, Dowsett J).

40  Bateman v Health Insurance Commission (1998) 54 ALD 408 (Madgwick J); Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, per President Brennan J.

41  Ahern v DCT (1983) 50 ALR 177; Bateman v Health Insurance Commission (1998) 54 ALD 408, 418-419 (Madgwick J).

  1. [64]
    Consistency in decision making is one of the aims of the tribunal.[34]   Commentators have also pointed out that another reason for executive guidelines is efficiency – applicants have guidance about how to make effective applications, and the applications can be processed more rapidly.
  2. [65]
    In Hyde, Member Howard applied one of the guidelines which were relevant to the application before her and said that this was for the sake of consistency in decision making,[35] but declined to apply another guideline because it attempted to impose a requirement in addition to those provided for in the Act.[36] 
  3. [66]
    In Frugtniet v Australian Securities and Investments Commission [2017] FCAFC 162 the Federal Court of Appeal considered a decision by the Administrative Appeals Tribunal upholding a decision by the Australian Securities and Investments Commission to ban a person as being not a fit and proper person to engage in credit activities.  The AAT had taken into account convictions which appeared to be spent.  But ASIC’s Regulatory Guide 204 specifically said that an applicant should not disclose spent convictions.  However at [100] the court said:

As to the provisions of ASIC’s Regulatory Guide 204 concerning spent convictions, while the Tribunal is entitled to take account of any relevant government policy, it was not entitled to abdicate its function of determining whether, on the material before it, the banning order was the correct or preferable decision: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 (“Drake”) at 590. Accordingly, the policy could not operate so as a fetter on the Tribunal’s obligation to take into account any matter that it considered relevant in accordance with s 80(2)(d) of the NCCP Act.

  1. [67]
    Section 42A of the Act states the purpose of the Commissioner’s guidelines as being to inform persons about (a) the attitude that the Commissioner is likely to adopt on a particular matter; (b) how the Commissioner administers the Act; or (c) matters that may help persons comply with their responsibilities, or lawfully and appropriately exercise powers, under the Act.
  2. [68]
    There is nothing in the Act to assist as to the proper weight that the tribunal needs to give to a guideline.   From the authorities cited above however, and from the statutory aim of the tribunal to make decisions which are consistent, it is clear that whilst it is important for the tribunal to make the correct and preferable decision and therefore the tribunal cannot slavishly follow a guideline, it may legitimately be influenced by a guideline which is in accordance with the Act and is not defective.
  3. [69]
    Guideline 59 is however, very new.  I agree with the submissions made on behalf of the applicants that it fails properly to mention that the whole of premises could be exempted from the ID scanning obligations.  There is a typographical error in the second paragraph under “If the request is approved” which reduces my confidence in it.  It does not reflect the possibility (raised on behalf of the Commissioner in the hearing) that an exemption of part of the premises might be given in order to find an appropriate and convenient position for the ID scanner to suit the characteristics of the premises concerned.  It does not properly reflect the Commissioner’s approach to premises with an adult entertainment permit which are entitled to sell or supply liquor beyond midnight.  In the Commissioner’s submissions such premises were said to be within the expression “entertainment areas”.  In my view, I do not think the Guideline properly reflects the need to consider an application for exemption from the ID scanning obligations 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 which involves of course maintenance of the integrity of the ID scanning regime.
  4. [70]
    Since for these reasons it seems likely that the Guideline will be revised, I do not think that consistency requires me to have regard to it when reaching my conclusion on these applications.  Instead the tribunal must make the correct and preferable decision.[37]

Conclusions

  1. [71]
    The points made on behalf of the applicants indicate that they hold genuine and in some cases valid concerns about compliance with the ID scanning obligations.
  2. [72]
    Of the issues raised, the rescanning inconvenience had a degree of validity.  This arose because the smoking areas were outside the premises at The Gresham Bar, Netherworld and Eye Candy, and because of the outside lavatory at The Gresham Bar. 
  3. [73]
    To a greater or lesser extent there were concerns about compliance with the fire requirements.  This was more serious for The Gresham Bar, but less so for the other premises.  In my opinion, for each of the applicants there was insufficient evidence for the tribunal to say that compliance with the ID scanning obligations would result in a breach of the fire requirements.  In no case did the difficulties appear to be insurmountable, particularly as the Commissioner was willing to consider exempting part of the premises from ID scanning obligations to enable the scanning equipment to be placed slightly inside the premises. 
  4. [74]
    There were concerns about the queuing risk but there was no firm evidence that this was increased any more than marginally because of the need to comply with the ID scanning obligations. 
  5. [75]
    Overall there was no firm evidence that for any of the premises that any issues arising from the ID scanning obligations made it more difficult to comply with the requirements of section 142ZZB more than marginally. 
  6. [76]
    The particular difficulties said to be faced by The Gresham Bar with respect to wheelchair access, the hand rail, those with sight loss, and the use of a scanner relying on Wi-Fi, and the particular difficulties said to be faced by Netherworld because of the heritage tiles, were all unconvincing. 
  7. [77]
    With respect to the privacy issues which concern Eye Candy and the Candy Club, whilst I do accept that it is likely that some patrons who would otherwise visit the two premises with adult entertainment permits might not do so because of the ID scanning, the extent of this issue is completely unclear.
  8. [78]
    In any case, the statutory provisions set out above about privacy issues are detailed and comprehensive.  It is clear that the legislature recognised there would be privacy concerns arising from the use of ID scanning and the recording of personal information, and sought to satisfy these concerns.  Therefore in not exempting those premises with an adult entertainment permit from the ID scanning obligations, as it did with casinos, convention centres and other types of premises, it would appear that the objective intention of the legislature was to impose the ID scanning obligations on premises with an adult entertainment permit despite the privacy concerns. 
  9. [79]
    It would be wrong for the tribunal in effect to identify another class of licensed premises which ought to be excluded from the ID scanning obligations since having regard to the terms of the Act, this is clearly the role of the legislature.  The argument that adult entertainment premises should be exempted because of the nature of the clientele was negated by the record of incidents for these premises before the Commissioner.
  10. [80]
    In all the applications for review, the inconveniences, concerns and practical difficulties arising from ID scanning shown to my satisfaction are insufficient to override the need to maintain the integrity of the ID scanning system in the sense that I have described it above, having regard to the purposes of the Act and of safe night precincts.
  11. [81]
    It was suggested that the applicants’ premises could be exempted as an experiment and then if there was trouble, the exemption could be lifted.  To my mind however, the merits of the review before me are not sufficient to consider this as a viable option.
  12. [82]
    In all cases therefore, I affirm the decisions of the Commissioner.

Footnotes

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

[2] QCAT Act, s 20(2).

[3] The Act, s 33(1).

[4] Exhibit 1.  The Commissioner may approve ID scanners and modifications thereto under section 173EN of the Act.

[5] Exhibit 2.

[6] Liquor Regulation 2002 (Qld) (the Regulation), s 3F.

[7] The Act, s 173EH(7).

[8] The Act, s 173EG.

[9] The Act, 173EH(1).

[10] Jimmy’s On the Mall Pty Ltd v Commissioner for Liquor and Gaming Regulation [2017] QCAT 282, [50], [56].

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

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

[13] A combination of section 173EH(4), the definition of “permitted information” in section 173EH(9) and 173EJ(1).

[14] The Act, s 173EI, s 173EM.

[15] The Regulation, s 3FA(5).

[16] The Act, s 73EJ(2).

[17] The Act, s 173EI(2), s 173EM(3).

[18] The Regulation, s 3FA(6).

[19] The Act, s 173EL.

[20] The Act, s 173EQ.

[21] The Act, s 173ER, s 173ES.

[22] The Act, s 173EN, s 173EO, s 173EOA, s 173EP, s 173EPA.

[23] That is, the corner entrance shown in the photograph on page 52 of the bundle of documents.

[24] Section 4 and schedule 1 of State Penalties Enforcement Regulation 2014 (Qld).

[25] Mr Steele cited two licensing cases showing that this was accepted without argument.

[26] As can be seen from exhibit 1.

[27] Page 86 of the bundle of documents.

[28] The architect considered surface wiring above the skirting and going up the wall inside the door.

[29] Page 3 of the bundle of documents for Eye Candy.

[30] Page 44 of the bundle.

[31] Page 3 of the bundle of documents for the Candy Club.

[32] Page 43 of the bundle.

[33] Paragraph [20] of the Applicant’s Submissions on Merit Decision in GAR212-17 and GAR210-17.

[34] QCAT Act, s 3(c), s 3(d).

[35] Hyde v Chief Executive, Office of Liquor and Gaming and Anor [2012] QCAT 13, [61].

[36] Hyde v Chief Executive, Office of Liquor and Gaming and Anor [2012] QCAT 13, [56].

[37] QCAT Act, s 20(1).

Close

Editorial Notes

  • Published Case Name:

    The Gresham Bar and other licensed premises v Commissioner for Liquor and Gaming Regulation

  • Shortened Case Name:

    The Gresham Bar v Commissioner for Liquor and Gaming Regulation

  • MNC:

    [2017] QCAT 419

  • Court:

    QCAT

  • Judge(s):

    Member Gordon

  • Date:

    01 Dec 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
Ahern v DCT (1983) 50 ALR 177
1 citation
Jump To
Cite 1 - (1983) 50 ALR 177
Australian Unity Health Ltd v Private Health Insurance Administration Council [2000] FCA 769
2 citations
Jump To
Cite 1 - [2000] FCA 769
Cite 2 - [2000] FCA 769
Bateman v Health Insurance Commission (1998) 54 ALD 408
2 citations
Jump To
Cite 1 - (1998) 54 ALD 408
Cite 2 - (1998) 54 ALD 408
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
2 citations
Jump To
Cite 1 - (1979) 24 ALR 577
Cite 2 - (1979) 24 ALR 577
Drake v Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634
2 citations
Jump To
Cite 1 - (1979) 2 ALD 634
Cite 2 - (1979) 2 ALD 634
Frugtniet v Australian Securities and Investments Commission [2017] FCAFC 162
2 citations
Jump To
Cite 1 - [2017] FCAFC 162
Cite 2 - [2017] FCAFC 162
Hyde v Chief Executive, Office of Liquor and Gaming and Anor [2012] QCAT 13
4 citations
Jump To
Cite 1 - [2012] QCAT 13
Cite 2 - [2012] QCAT 13
Cite 3 - [2012] QCAT 13
Cite 4 - [2012] QCAT 13
Jimmy's On the Mall Pty Ltd v Commissioner for Liquor and Gaming Regulation [2017] QCAT 282
3 citations
Jump To
Cite 1 - [2017] QCAT 282
Cite 2 - [2017] QCAT 282
Cite 3 - [2017] QCAT 282
Perder Investments Pty Ltd v Lightowler (1990) 101 ALR 151
1 citation
Jump To
Cite 1 - (1990) 101 ALR 151
R v Queensland Fish Management Authority; ex parte Hewitt Holdings Pty Ltd [1993] 2 Qd R 201
1 citation
Jump To
Cite 1 - [1993] 2 Qd R 201
Ruggeri and Secretary, Department of Social Security (1985) 8 ALD 338
1 citation
Jump To
Cite 1 - (1985) 8 ALD 338

Cases Citing

Case NameFull CitationFrequency
Commissioner for Liquor and Gaming v Farquhar Corporation Pty Ltd [2018] QCA 202 1 citation
Jade Buddha Pty Ltd v Commissioner of Liquor and Gaming Regulation [2017] QCAT 4581 citation
Monty on Montague Pty Ltd v Commissioner for Liquor and Gaming [2020] QCAT 1292 citations
1

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