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  4. Everard Pty Ltd ATF the EH Services Trust trading as Junction Hotel Dimbulah v Commissioner for Liquor and Gaming - [2024] QCAT 359

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Everard Pty Ltd ATF the EH Services Trust trading as Junction Hotel Dimbulah v Commissioner for Liquor and Gaming[2024] QCAT 359

Everard Pty Ltd ATF the EH Services Trust trading as Junction Hotel Dimbulah v Commissioner for Liquor and Gaming[2024] QCAT 359

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Everard Pty Ltd ATF the EH Services Trust trading as Junction Hotel Dimbulah v Commissioner for Liquor and Gaming [2024] QCAT 359

PARTIES:

Everard Pty Ltd ATF the EH Services Trust trading as Junction Hotel Dimbulah

(applicant)

v

Commissioner for Liquor and Gaming

(respondent)

APPLICATION NO/S:

GAR206-21

MATTER TYPE:

General administrative review matters

DELIVERED ON:

22 August 2024

HEARING DATE:

18 July 2024

HEARD AT:

Brisbane

DECISION OF:

Member Lumb

ORDERS:

The decision made by the Respondent on 17 February 2021 to refuse to grant to the Applicant a gaming machine licence is confirmed.

CATCHWORDS:

ADMINISTRATION – GAMING MACHINES – LICENCES – application by applicant for a gaming machine licence under the Gaming Machine Act 1991 (Qld) – respondent refused to grant licence – applicant seeks to review decision – whether a gaming machine licence should be granted or refused

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 24, s 33

Gaming Machine Act 1991 (Qld), s 1A, s 29, s 31, s 32, s 55A, s 55B, s 55C, s 55D, s 57,  s 58, Schedule 1

Human Rights Act 2019 (Qld), s 26

Liquorland (Qld) Pty Ltd v Queensland Gaming Commission [2011] QCAT 32

APPEARANCES & REPRESENTATION:

Applicant:

M. Jones, Liquor & Gaming Specialists

Respondent:

L. Benjamin,  Legal Advice & Advocacy, Department of Justice and Attorney-General

REASONS FOR DECISION

Introduction

  1. [1]
    By an Application to review a decision filed on 16 March 2021 (‘the Application’), the Applicant has applied to review a decision of the Respondent made on 17 February 2021 (‘the Decision’) refusing to grant to the Applicant a category one gaming machine licence under Part 3, Division 3 of the Gaming Machine Act 1991 (Qld) (‘the GMA’).[1] The Applicant had applied to the Office of Liquor and Gaming Regulation (‘OLGR’) on 16 January 2019 for such a licence (‘the licence application’) in relation to premises known as the ‘Junction Hotel Dimbulah’ (‘the Premises’) and sought approval to operate eight gaming machines.
  2. [2]
    The Applicant seeks to have the Decision set aside and ‘replaced’ with a decision to approve the licence application.

The statutory basis for reviewing the Decision

  1. [3]
    The Decision, being a decision refusing to grant a gaming machine licence, was a decision listed in Schedule 1, Part 1 of the GMA and is a decision which is reviewable by the Tribunal pursuant to s 29(1) of the GMA.
  2. [4]
    The Application was filed within the time provided for by s 33(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’).
  3. [5]
    The purpose of the review of a reviewable decision is to produce the correct and preferable decision.[2] The Tribunal must hear and decide a review of a reviewable decision by way of a fresh hearing on the merits.[3] Unlike the position in relation to many other pieces of legislation pursuant to which the Tribunal reviews administrative decisions, the GMA requires the Tribunal to hear and decide the review of the decision by way of a reconsideration of the evidence before the Respondent when the decision was made.[4]
  4. [6]
    The Tribunal must decide the review in accordance with the same law that applied to the making of the original decision.[5] The Tribunal is not required to identify an error in either the process or the reasoning that led to the Decision being made, and there is no presumption that the Decision is correct.[6]

The Background

  1. [7]
    The Premises trades under the authority of a commercial hotel licence pursuant to the Liquor Act 1992 (Qld), with approved trading hours of 10.00am to 12.00am Monday to Sunday.
  2. [8]
    The Premises is described a ‘traditional hotel’. Dimbulah is a small regional town, located on the Atherton Tablelands, Queensland. It is approximately 114 km north of Cairns and 52 km west of Mareeba. At the time of the 2016 census, Dimbulah had a population of 1,050 persons, of which 78.9% were aged 18 years or over. When the Application was lodged, Dimbulah had 463 people listed on the electoral roll.
  3. [9]
    In 2018, the Applicant purchased the Premises and invested approximately $800,000.00 to renovate the Premises.

The relevant provisions of the GMA

  1. [10]
    The object of the GMA is set out in s 1A, which provides:
  1. The object of this Act is to ensure that, on balance, the State and the community as a whole benefit from gaming machine gambling.
  1. The balance is achieved by allowing gaming machine gambling subject to a system of regulation and control designed to protect players and the community through—
  1. ensuring the integrity and fairness of games; and
  1. ensuring the probity of those involved in the conduct of gaming machine gambling; and
  1. minimising the potential for harm from gaming machine gambling.
  1. [11]
    Upon the making of a compliant application for a gaming machine licence, the Respondent may decide to grant, or refuse to grant, the licence.[7] The Respondent must consider the application before granting, or refusing to grant, the licence.[8]
  2. [12]
    An application for a gaming machine licence is an application of significant community impact.[9] Such an application must:
    1. be accompanied by a community impact statement and a statement of responsible gambling initiatives for the licensed premises (or proposed licensed premises);[10]
    2. be advertised as required under s 55C;[11]
    3. comply with the requirements of s 56(5).
  3. [13]
    The purpose of a community impact statement is to help the Respondent assess the social and economic implications of the grant of the application.[12] The purpose of the statement of responsible gambling initiatives is to help the Respondent assess the adequacy of an applicant’s approach to encouraging responsible gambling.[13]
  4. [14]
    In considering an application for a gaming machine licence, the Respondent:
    1. must conduct investigations the Respondent considers are necessary and reasonable to help the Respondent consider the application;[14]
    2. may require the applicant (or associate) to give the Respondent further information or a document that is necessary and reasonable to help the Respondent consider the application;[15]
    3. must assess the various matters specified in s 57(3) of the GMA.
  5. [15]
    In making the decision, the Respondent must have regard to:[16]
    1. any supporting material for the application;
    2. any relevant community comments on the application;
    3. any representations made on the application in response to an invitation under s 55F (which invitation may be made to the local government for the area in which the premises for which the licence is sought are situated, and from any other entity that has, in the Respondent’s opinion, a proper interest in the matter, for example, the local member of the Legislative Assembly);
    4. the matters the Respondent had regard to in considering the application under s 57 of the GMA.
  6. [16]
    Subsection 58(5) of the GMA specifies circumstances in which the Respondent must refuse to grant a gaming machine licence. One of the circumstances is that the Respondent considers that the installation and use of gaming machines on the subject premises is likely to affect adversely the public interest.[17]

The material

  1. [17]
    The material before the Respondent is the material attached to the Statement of Reasons (‘SOR’) comprising Exhibit 2 in the proceeding. The material provided by the Applicant in support of the licence application included a Community Impact Statement dated 10 December 2018 (‘the CIS’). By agreement between the parties, a document was tendered at the hearing, being the Queensland responsible gambling Code of Practice (Exhibit 6), which is a publicly available document and which was referenced in the CIS (and, in my view, incorporated by reference into the Applicant’s material).

The basis for the refusal of the licence application

  1. [18]
    The Respondent refused the application for the following stated reasons:[18]
    1. ‘The significant community opposition lodged by residents and those with a proper interest in the locality of the application. The community comments included concerns about the socio-economic profile of the area. Low education attainment and higher unemployment rates are substantiated by the data in the CIS.’
    2. ‘The council and the local Member of Parliament have objected to the application.’
    3. ‘The written submissions lodged by the applicant did not adequately demonstrate how the applicant will be able to operate the premises in a manner which will suitably minimise the risk of machine gaming.’
    4. ‘Current research indicates there are sections of the community who are particularly vulnerable to gambling practices. These groups include lone person households, those with lower educational attainment, unemployed individuals, and Aboriginal people.’
    5. ‘The applicant’s submissions about the town not suffering economically are noted. It is evident there are agricultural businesses which are thriving in the region. However, the applicant has not provided compelling evidence to demonstrate how these businesses benefit the community. The most recent socio-economic data continues to show the local community area exhibits a higher level of disadvantage in comparison to the Mareeba LGA and the QRRB.’
    6. ‘Having regard to the potential risks to the local community, and in the absence of satisfactory harm minimisation measures being implemented, a decision to grant the gaming machine licence may not be compatible with the rights recognised under the HR Act.’ The reference to the ‘HR Act’ is a reference to the Human Rights Act 2019 (Qld) (‘the HRA’).

The Applicant’s case

  1. [19]
    The Applicant contends that the licence application was refused on ‘narrow grounds’ and ‘broadly summarised’ those grounds as follows:[19]
    1. significant community opposition;
    2. socio-economic profile and associated vulnerability to gambling-related harm;
    3. absence of satisfactory harm minimisation measures.
  2. [20]
    I accept the above as a broad summary save that, in relation to subparagraph [20](a), the Respondent also referred to objections from the local council and the local Member of Parliament. With that modification, I consider the above categories are a convenient way to address the relevant considerations in this matter.[20]

Community opposition/Local council and State Member objections

  1. [21]
    The Respondent took into account what was considered to be the significant community opposition lodged by residents and those with a proper interest in the locality of the licence application, as well as the objection to the licence application by the local council and the local Member of Parliament.[21]
  2. [22]
    The Applicant’s core contentions in this context are that the ‘proportionate quantum’ and nature of the opposition to the licence application were overstated; that there was not universal opposition to the licence application; that given both the number of persons who signed the petition and the content of the petition, significant weight should not be given to it, and it should not be regarded as a reliable indicator of the collective views of the community; and that the opposition was not ‘significant’ nor did it represent the majority view of the community.[22]
  3. [23]
    A petition opposing the licence application (‘the Petition’) was submitted which contained 433 signatures, with 393 of those identified by the OLGR as ‘valid objectors’.[23] In the Statement of Reasons, it is stated that OLGR has assessed that at least 333 of those ‘commenters’ reside directly in the town of Dimbulah.[24]
  4. [24]
    The Petition was in the following terms:

We, the citizens of Dimbulah, are petitioning to the Commissioner for Liquor and Gaming to NOT approve the Junction Hotel’s (37 Raleigh Street, Dimbulah) application for a gaming machine licence.

The Junction Hotel’s proposed gaming hours of 10am – 12:30am Monday to Sunday and request for eight (8) gaming machines are of grave concern to the residents within the community.

Dimbulah is a small, tight-knit town that is currently doing tough, and it does not need the negative financial, social and mental health effects gambling can have on the members of our community.

Your petitioners therefore request that the Commissioner for Liquor and Gaming NOT approve the Junction Hotel’s application for a gaming licence.

  1. [25]
    In my view, the result of the Petition falls squarely within the consideration set out in  s 58(2)(b) of the GMA namely, any relevant community comments on the application.
  2. [26]
    The Applicant challenges the weight to be attributed to the Petition on the basis that there is no evidence in the material about how the Petition was prosecuted, what people were told, or when and where they were approached. Whilst those matters may be accepted, the Petition made plain that the opposition was to a gaming machine licence at the Premises with a proposal for eight gaming machines during the gaming hours identified in the Petition. In my view, it is also clear from the Petition that the general basis of opposition was a concern that gaming machine gambling would have negative financial, social and mental health effects on the local Dimbulah community.
  3. [27]
    There were also a number of written objection submissions opposing the licence application. The Respondent identifies nine such responses.[25] These objections are also a material consideration to be taken into account. Some of the responses refer to a loss of businesses in the town,[26] including a supermarket.[27]
  4. [28]
    The parties agree that seven community groups or representatives were contacted for comment and, of those, one did not respond, three opposed the licence application, two were unsure or expressed no opinion, and one supported the licence application.[28] It follows that of those who provided a positive response (that is, either in support or opposition), three groups opposed and one group supported the licence application.
  5. [29]
    The underlying basis for much of the opposition of the local community was the socio-economic position of the local community (including unemployment) and that Dimbulah was ‘doing it tough’.
  6. [30]
    Whilst I accept that the evidence before the Respondent does not support a finding that the opposition to the licence application represents the ‘majority view’ of the local community, I reject the Applicant’s contention that the opposition to the application is not ‘significant’.[29] In my view, the totality of the results of the Petition, the objection submissions and the three community group objections amount to significant community opposition.
  7. [31]
    Of some further additional weight is the objection of the local Member of Parliament[30] and that of the Mareeba Shire Council (being the local council).[31]

Socio-economic profile and associated vulnerability

  1. [32]
    The Respondent took into account what was considered to be current research that indicated there were sections of the community who are particularly vulnerable to gambling practices, and that these groups included lone person households, those with lower educational attainment, unemployed individuals, and Aboriginal people; and that the most recent socio-economic data continues to show a local community area exhibiting a higher level of disadvantage in comparison to the Mareeba local government area and the ‘QRRB’ (Queensland Remainder Regional Benchmark) (noting that agricultural businesses were thriving in the region but that there was no compelling evidence provided by the Applicant to demonstrate how such businesses benefited the community).[32]
  2. [33]
    By virtue of s 1A of the GMA, the ‘balance’ identified is achieved by allowing gaming machine gambling subject to a system of regulation a control designed to protect players in the community through, relevantly, minimising the potential for harm from gaming machine gambling. Further, s 58(5) provides that the Respondent must refuse to grant a gaming machine licence if the Respondent considers the installation and use of gaming machines on the subject premises is likely to affect adversely the public interest.
  3. [34]
    There appears to be no dispute that the material shows that, statistically, Dimbulah is economically disadvantaged, and that there are likely to be persons within the catchment of the Applicant’s business who are at greater risk of gambling-related harm than other members of the community.[33] I am satisfied that the local community exhibits a higher level of disadvantage when compared to the Mareeba local government area and the QRRB.[34]
  4. [35]
    At paragraph [29] of the Applicant’s written submissions, the Applicant refers to paragraph 37(b) of the SOR and to the Victorian Responsible Gambling background paper from May 2015 (‘the Paper’), in particular pages 511 and 521. The Applicant submits:

On page 511, under the heading “Cultural” there is a statement that “Aboriginal people are at higher risk for problem gambling.” However, the commentary about the other risk factors is more circumspect. For example, the “Key Findings” on page 521 include “There is limited evidence that other indicators of socio-economic status, such as lower occupational status, or experience of financial stress, are risk factors for problem gambling.”

  1. [36]
    The Paper is found at BORD 506-528. It identifies the following matters at BORD 511, which I consider to be relevant to the present case:
    1. Accessibility of gambling is a significant risk factor for problem gambling.
    2. There is some evidence that area-level socio-economic disadvantage is a risk factor for problem gambling. This may be independent of the effects of individual-level socio-economic disadvantage.
    3. There is some evidence loneliness may be a risk factor for problem gambling.
    4. Aboriginal people are at higher risk for problem gambling.
    5. Rates of problem gambling decline with age. Some studies have found that young people aged 18 to 34 are at the most risk of problem gambling among adults but further research is required to confirm this assessment.
    6. Lower socio-economic status is a risk factor for problem gambling. Some studies have shown lower educational attainment and lower income are associated with higher rates of problem gambling.
    7. There is some evidence of an association between unemployment and problem gambling, although this may be because problem gambling is known to cause employment problems.
    8. There is limited evidence that other indicators of socio-economic status, such as lower occupational status, or experience of financial stress, are risk factors for problem gambling.
  2. [37]
    In my view, the Applicant’s submissions downplay the significance of the findings contained in the Paper. The Applicant references the factors set out in subparagraph [37](h) above. As I read that observation, the word ‘other’ is important. It is to be read subject to the other factors set out in subparagraphs [37](f) and (g) above, where it is stated that lower socio-economic status is a risk factor for problem gambling, and that there is some evidence of an association between unemployment and problem gambling (although it is noted that this may be because problem gambling is known to cause employment problems).
  3. [38]
    The Paper also notes that accessibility of gambling is a significant risk factor for problem gambling and, as noted by the Applicant, that Aboriginal people are at higher risk for problem gambling.
  4. [39]
    The Applicant also refers to the matters set out in subparagraph [37](e) above and notes that approximately 60% of the local population are on the pension and 70% are over 50 years old.[35] This is a relevant factor to be taken into account. However, on those figures, 30% of the community is 50 years of age or younger and, further, the Paper notes that there is some evidence that loneliness may be a risk factor for problem gambling.
  5. [40]
    In terms of accessibility, I consider that the Applicant’s reference to the fact that there are several gaming venues in Mareeba, which town is about half an hour’s drive from Dimbulah is of little relevance.[36] I consider there is significant difference between the availability of gaming machines at the local hotel which is within a relatively short drive (or perhaps walking distance in some cases) compared with an approximate one hour round trip to Mareeba. I do not accept that gaming machines are presently ‘readily available’ to members of the Dimbulah community.[37]
  6. [41]
    The effect of the Applicant’s submissions appears to be that in the absence of evidence, or a ‘practical theory’, that shows or explains how the approval of a gaming machine licence for the Premises ‘will lead to harm to any person’, it would be ‘unfair’ to the Applicant not to grant the gaming licence.[38] I do not accept that argument. I refer to the matters addressed at paragraphs [11] to [17] above, noting in particular the matters that the Respondent must have regard to, and that the requisite ‘balance’ is achieved by allowing gaming machine gambling subject to a system of regulation and control designed to protect players and the community through, relevantly in the present context, minimising the potential for harm from gaming machine gambling.
  7. [42]
    The  Applicant applied for a gaming machine licence to enable it to introduce gaming machines into a small regional Queensland town (where none currently exists) in circumstances where that town is economically disadvantaged, with the local community exhibiting a higher level of disadvantage when compared to Mareeba, and in circumstances where there is significant community opposition to the grant of the gaming licence. In such circumstances, it is relevant to have regard to the measures proposed by the Applicant to minimise the potential for harm if gaming machines were introduced into the Dimbulah community.

Harm minimisation measures

  1. [43]
    The Respondent considered that the Applicant had not adequately demonstrated how it would be able to operate the Premises in a manner which would suitably minimise the risk of machine gaming and that there was an absence of satisfactory harm minimisation measures being implemented.[39]
  2. [44]
    The CIS provided:[40]

The Junction Hotel will adopt the Queensland Responsible Gaming Code of Practice and has developed a formal Responsible Gambling Policy for the property (see Appendix 3)

Hotel management will specifically maintain communications with key community organisations, specifically the Dimbulah Community Centre, Dimbulah Outpatient Clinic, Dimbulah Community Kindergarten and Childcare Centre and the local police, to receive feedback on any community impacts and to work with these organisations and individuals involved to mitigate these impacts on individuals, their families and the community.

  1. [45]
    The Applicant’s Responsible Gambling Policy[41] contained a section headed ‘HARM MINIMISATION STRATEGIES’ (Section 5) which stated:

The Junction Hotel has a responsibility to ensure that the Gaming Machine Act 1991, Liquor Act 1992 and the Queensland Responsible Gambling Code of Practice are strictly adhered to in the provision of gambling products and services. Therefore, Junction Hotel will implement the following strategies to minimise the potential harm associated with gambling

5.1 Responsible Gambling Information

The Hotel will make available responsible gambling information, including the Hotels Responsible Gambling Mission Statement, Player Information Guide outlining odds/win rates of major prizes, signage on potential harm associated with gambling brochures on where to get help for problem gambling, for information of members and patrons and will alert them on the availability of this information by putting signage in the gambling area (or other suitable locations) in the Hotel.

5.2  Community liaison

The Hotel management will liaise with the community by facilitating discussion and establishing networks between the Hotel and community support agencies on responsible gambling issues.

5.3  Customer liaison

Managers and gaming room staff are formally trained in the customer liaison role. This role will include facilitating communication between patrons and the Hotel on responsible gambling issues, including complaint resolution mechanisms and self-exclusion provisions.

5.4 Customer complaints

The Hotel will inform patrons about procedures for lodging complaints and will strive to deal with the complaints in a timely manner. Where the outcomes are not to the satisfaction of the complainant, the Hotel will inform the complainant other avenues of redress, in particular Queensland Office of Gaming Regulation, Liquor Licensing Division, Hotels Queensland and their solicitor.

5.5 Training and skills development

The Hotel will ensure that all management and staff receive appropriate information and training, on an ongoing basis, in responsible provision of gambling and gambling products. They will also be provided with appropriate training regarding the Responsible Gambling Policy, so they are well informed and better positioned to provide advice and assistance to members and patrons regarding the Responsible Gambling Policy and its goals.

  1. [46]
    The Responsible Gambling Policy also stated, amongst other matters, that:
    1. the Hotel would implement self-exclusion provisions as an option to assist members and patrons who think they may have a problem with gambling to control their gambling habits and will make them aware of the existence of self-exclusion provisions by putting signage in the gambling areas or other suitable locations in the Hotel and would provide a list of local community support agency for members or patrons who request self-exclusion from the Hotel (as well as undertaking regular reviews of self-exclusion provisions to assess their effectiveness) (clause 6.1);
    2. the Hotel would suggest to any third-party approach that self-exclusion documents and procedures are available, providing a copy of the Offer of exclusion and Deed of exclusion to the third-party and encouraging the third-party to discuss the options with the person believed to have a problem with gambling (clause 6.2);
    3. that there would be a designated gaming room and that the Hotel would encourage breaks and play by making members and patrons aware of other alternative forms of entertainment available at the Hotel and where possible providing self-service coffee and tea facilities; and the Hotel would not encourage extended, intensive and repetitive play (clause 7, particularly clause 7.5).
  2. [47]
    In its written submissions, the Applicant submitted, amongst other matters:[42]
    1. that it was accepted that the demonstrable presence of persons statistically likely to be more vulnerable to gambling-related harm should lead to licenses being granted on conditions that set appropriate standards for the responsible management of facilities;
    2. the Applicant had little professional assistance, and little guidance from the Respondent, during the processing of the licence application and that the Applicant has considered, and is willing to accept, conditions requiring a strict management framework for the conduct of the gaming business;
    3. that if a licence were granted, the Applicant was prepared to adopt ‘best practice management strategies’ to assist in minimising harm from gaming activity including establishing close working relationships with gambling help services; providing high quality staff training both initial and ongoing with the assistance of a gambling help service provider such as Relationships Australia; installing pre-commitment technology on machines; installing facial recognition software to support an exclusion strategy; creating and sharing a community consultative group to meet regularly to address local community issues;
    4. the Applicant would also consent to various conditions that it contends have been applied to certain gaming machine licences issued recently by the Respondent;
    5. it has suggested, and would agree, that the proposed gaming area be relocated to the rear of the premises.
  3. [48]
    Whilst I accept that the measures now proposed by the Applicant, particularly those set out at paragraph [48](c) above are, in principle, worthwhile harm minimisation strategies, particularly the installation of pre-commitment technology and facial recognition software, the difficulty for the Applicant is that:
    1. evidence of such matters was not before the Respondent at the time of the making of the Decision and, in my view, constitutes new evidence pursuant to s 32 of the GMA. The Applicant has led no evidence that it did not know and could not reasonably be expected to have known of the existence of such evidence before the Decision, and it has not satisfied the requirements of s 32 (1)(a) of the GMA to enable it to present the new evidence;
    2. in any event, the Applicant has not adduced any or any sufficient supporting evidence of the details of the matters now raised to enable an assessment of the effectiveness of the proposed strategies to be made;
    3. in the above circumstances, I consider that there is no proper basis for a conclusion that it would be unfair not to allow the Applicant to present the new evidence (see s 32(1)(a) of the GMA).
  4. [49]
    I consider that the harm minimisation strategies as proposed in the material before the Respondent were broadly generic in nature, without any specific focus on the risk associated with the introduction of gaming machines at the Premises. I find that the material before the Respondent did not propose adequate risk minimisation strategies to address or mitigate the risk of potential harm to members of the Dimbulah community who may be at risk of problem gambling if gaming machines were installed at the Premises. In the absence of evidence of specific risk minimisation measures, I consider that, in the present case, the requisite balance required by s 1A has not been achieved.
  5. [50]
    I also note that it was submitted in oral submissions that there was a better chance of a member of the Dimbulah community with a gambling issue being looked after in Dimbulah than that person would be in Mareeba. In the absence of evidence of the risk minimisation measures adopted in the respective gaming machine venues in Mareeba, I am unable to accept that submission. In any event, even if accepted, that submission goes only so far in the absence of sufficient risk minimisation measures to be adopted by the Applicant.

Liquorland

  1. [51]
    In oral submissions, the Applicant relied upon a prior Tribunal decision in Liquorland (Qld) Pty Ltd v Queensland Gaming Commission (‘Liquorland’).[43]
  2. [52]
    Plainly, each case must be decided on its own facts. However, to the extent that reliance is placed upon Liquorland. I consider the facts of that case to be clearly distinguishable from the present case. In particular, the local community in that case (Redcliffe) then comprised in excess of 17,000 people,[44] and only four letters of objection were lodged,[45] in response to an application for a licence of an additional 40 gaming machines in circumstances where there already existed, within the relevant area, some 600 machines, 440 of which were located in two venues.[46]

HRA

  1. [53]
    In reviewing the Decision, the Tribunal effectively stands in the shoes of the decision-maker, here the Respondent. I consider that, in making a decision whether or not to grant a gaming licence under the GMA, the Respondent is exercising a function of a public nature for the purposes of the HRA.[47] I am obliged to give proper consideration to a human right relevant to the decision, and not to act or make a decision in a way that is incompatible with human rights.[48]
  2. [54]
    Giving proper consideration to a human right in making a decision includes, but is not limited to, identifying the human rights that may be affected by the decision, and considering whether the decision would be compatible with human rights. A human right may be subject under law only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom.[49] In deciding whether a limit on a human right is reasonable and justifiable, the factors mentioned in s 13(2) may be relevant.
  3. [55]
    The Applicant, being a corporation, does not have human rights that are protected by the HRA.[50]
  4. [56]
    The Respondent submitted that the decision would have an impact on members of the community and this is relevant to the human right of the protection of families and children, and the Respondent relied upon s 26 of the HRA which provides:
  1. Families are the fundamental group unit of society and are entitled to be protected by society and the State.
  1. Every child has the right, without discrimination, to the protection that is needed by the child, and is in the child’s best interests, because of being a child.
  1. [57]
    On the basis of the evidence before the Respondent, I cannot be satisfied that the making of decision to grant the application for a licence will have an impact on any identifiable family or child in the Dimbulah community. In my view, on the proper construction of s 26, and the HRA as a whole, a consideration of s 26 requires identification of a particular family or child who may be affected by the decision. I consider that the evidence before the Respondent does not sustain a conclusion that s 26 of the HRA is material to the Decision.

Conclusion

  1. [58]
    I am satisfied that, to the extent applicable, none of the matters set out in s 57(3) of the GMA provides a basis for refusing to grant a gaming licence to the Applicant.
  2. [59]
    I have had regard to the significant community opposition to the grant of the licence and the fact that the underlying basis for much of the opposition is the socio-economic position of the local community and that it is ‘doing it tough’. Whilst I accept that community opposition, even significant community opposition, will not necessarily result in the refusal of a gaming licence, such opposition is a relevant consideration to be taken into account and should be given weight in the present case. The opposition of each of the local council and the State Member of Parliament is also relevant to the decision.
  3. [60]
    I also consider it relevant that:
    1. Dimbulah is a small regional Queensland town that is economically disadvantaged, with the local community exhibiting a higher level of disadvantage when compared to Mareeba;
    2. there are likely to be persons within the catchment of the Applicant’s business who are at greater risk of gambling-related harm than other members of the community;
    3. there are presently no other gaming machines in Dimbulah.
  4. [61]
    I consider that the evidence before the Respondent did not identify adequate risk minimisation strategies to address or mitigate the risk of potential harm to members of the Dimbulah community who may be at risk of problem gambling if gaming machines were installed at the Premises. Whilst I accept that the risk minimisation strategies measures proposed by the Applicant at the hearing were, in principle, worthwhile measures, for the reasons addressed above, I cannot take those matters into consideration.
  5. [62]
    Having regard to the material before the Respondent and the provisions of the GMA identified at paragraphs [11] to [17] above, I consider that:
    1. the Application should be refused and the gaming machine licence sought by the Applicant should not be granted to it;
    2. the correct and preferable decision is that the decision made by the Respondent on 17 February 2021 to refuse to grant to the Applicant a gaming machine licence is confirmed.

Order

  1. [63]
    For the reasons set out above, the decision made by the Respondent on 17 February 2021 to refuse to grant to the Applicant a gaming machine licence is confirmed.

Footnotes

[1]  The relevant reprint of the GMA for the purposes of this Application is the one current as at 4 December 2020.

[2]  QCAT Act, s 20(1).

[3]  QCAT Act, s 20(2). See also Factory Direct Pools Pty Ltd v Queensland Building Services Authority [2013] QCAT 34, [7].

[4]  GMA, s 31(1)(a).

[5]  GMA, s 31(1)(a).

[6]Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58, [9].

[7]  GMA, s 58(1); see also s 55(1)(a).

[8]  GMA, s 57(1).

[9]  GMA, s 55A(1)(a).

[10]  GMA, s 55B(1).

[11]  GMA, s 55C(1).

[12]  GMA, s 55B(2).

[13]  GMA, s 55B(3).

[14]  GMA, s 57(2)(a).

[15]  GMA, s 57(2)(b).

[16]  GMA, s 58(2).

[17]  GMA, s 58(5)(c)(iii).

[18]  SOR [76].

[19]  Applicant’s submissions, [2].

[20]  The Respondent takes no issue with probity in relation to the Applicant.

[21]  SOR, [76](a) and (b).

[22]  Applicant’s submissions, [4]-[13]; Applicant’s submissions in reply, [6].

[23]  Bundle of Relevant Documents (‘BORD’), 13.

[24]  SOR, [47].

[25]  Respondent’s submissions [24]: BORD 178-191.

[26]  BORD 180, 184.

[27]  BORD 179, 180, 184.

[28]  Applicant's submissions, [5]; Respondent's submissions [26].

[29]  Respondent’s submissions, [12], Applicant’s submissions, [28], Applicant’s reply [6].

[30]  BORD, 121.

[31]  BORD, 117.

[32]  SOR, [76](c) and (f).

[33]  Respondent’s submissions, [29]-[34], Applicant’s reply [7].

[34]  SOR, [44].

[35]  Applicant's submissions, [30].

[36]  Applicant’s submissions, [33].

[37]  Applicant’s submissions, [40].

[38]  Applicant’s submissions, [32].

[39]  SOR, [76](d) and (e). See also [34]-[37], Applicant’s reply [2].

[40]  BORD, 93.

[41]  BORD, 108-113.

[42]  Applicant’s submissions, [43]-[47].

[43]  [2011] QCAT 32.

[44]  See [21], [41].

[45]  See [41].

[46]  See [31].

[47]  HRA, s 10.

[48]  HRA, s 58(1). Subsection 58(1) does not apply to a public entity if the entity could not reasonably have acted differently or made a different decision because of a statutory provision, a law of the Commonwealth or another State or otherwise under law: s 58(2).

[49]  HRA, s 13(1).

[50]  HRA, s 11.

Close

Editorial Notes

  • Published Case Name:

    Everard Pty Ltd ATF the EH Services Trust trading as Junction Hotel Dimbulah v Commissioner for Liquor and Gaming

  • Shortened Case Name:

    Everard Pty Ltd ATF the EH Services Trust trading as Junction Hotel Dimbulah v Commissioner for Liquor and Gaming

  • MNC:

    [2024] QCAT 359

  • Court:

    QCAT

  • Judge(s):

    Member Lumb

  • Date:

    22 Aug 2024

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
Factory Direct Pools Pty Ltd v Queensland Building Services Authority [2013] QCAT 34
1 citation
Jump To
Cite 1 - [2013] QCAT 34
Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58
1 citation
Jump To
Cite 1 - [2010] QCATA 58
Liquorland (Qld) Pty Ltd v Queensland Gaming Commission [2011] QCAT 32
2 citations
Jump To
Cite 1 - [2011] QCAT 32
Cite 2 - [2011] QCAT 32

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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