Background
Last November, the Chairperson of the Independent Liquor & Gaming Authority of NSW (ILGA) publicly said that “I hate gambling and I despise poker machines” and that he is a “dedicated non-gambler”. How confident then, does an applicant in a gaming machine threshold increase application, feel about receiving a fair hearing before ILGA? This was an issue recently considered by the Supreme Court of NSW in O’Hara v. Independent Liquor & Gaming Authority [2014] NSWSC 880.
O’Hara made an application to increase by seven, the gaming machine holdings for the Fairfield Hotel. If granted, the Hotel would then have the statutory maximum of 30 machines. Being located in the Fairfield Local Government Area, classified as a Level 3 LGA, O’Hara had to meet the test for a Class 2 Local Impact Assessment.
On 29 August 2013, ILGA refused the application. On 22 November 2013, the Chairperson of ILGA made a speech to the Annual Conference for the National Association of Gaming Studies, at which he made the above comments. O’Hara, having found out about these comments, unsuccessfully sought to have the ILGA refusal overturned due to “apprehended bias”. I am aware that O’Hara is contemplating an appeal to the NSW Court of Appeal, so I must be circumspect in my comments on the Judge’s reasons. Nevertheless, this is an important case to examine, as it is the first apprehended bias case involving ILGA.
It is not, however, the first apprehended bias case decided since the Liquor Act 2007 commenced (see McMillan v. Director-General of Communities NSW [2009] NSWSC 1236). McMillan’s Case was not referred to by the Judge in O’Hara’s Case. The circumstances of McMillan’s Case were also quite different, involving a decision of the (then) Director-General of Communities NSW, in respect of a disturbance complaint against a hotel.
Extracts of the Chairperson’s speech are contained in O’Hara’s Case. The following paragraph contains the offending comments made by the Chairperson:
“One of the difficulties I find with the sensitivities of debates about gambling is that sometimes politicians are reluctant to look at some of the hard data and the likely demographic trends and strike first, rather than reacting long after the event. I probably should put in a footnote here that I do not and never have gambled with money at all. I consider that my entire life has been a big enough gamble, why should I put money into it as well? I hate gambling and I despise poker machines, but I also know that wherever prohibition has been tried it hasn’t worked and I’m very anxious that the prohibition approach towards online gambling, or many areas of online gambling, may well be causing more trouble than enough…. I personally, as a dedicated non gambler, feel very anxious that we are not having the discussion [about internet gambling].”
Comment:
Unfortunately, this has not been the first time the Chairperson has publicly stated strong views. On 21 March 2013, the Chairperson made these comments during a legal seminar:
“The Authority also has power to grant or refuse trading hours beyond standard hours and to impose trading hours, including trading hours less than standard hours, as licence conditions. The Authority is well aware of the data and of the experiences relating to alcohol related violence. It has therefore been very reluctant to grant extended trading approval after midnight and has done so rarely. There have been very few instances indeed where trading after 2am has been approved…. And so we are very reluctant to grant extended trading hours at all, and especially after 2am when the community is already over exposed to alcohol related violence or disturbance.” (The Challenges in Liquor Licensing, Legalwise Seminars, 21 March 2013, at p.4).
Furthermore, an examination of the “decisions on interest”, published on the ILGA website, will show almost all applications for extended trading hours being refused and a considerable number of refusals for new licence applications because they were in areas (like Surry Hills) considered to have reached “saturation point”.
In O’Hara v. Independent Liquor & Gaming Authority [2014] NSWSC 880, Davies J. determined that there was not an actual, or an apprehension of bias. While the Judge held that the contents of the Chairperson’s speech were “very unfortunate” (at [49]), the Judge held that there was no prejudgment or any fixed rule approach exhibited by ILGA, so as to lead to either actual, or the appearance of bias. The Judge concluded that a “fair-minded observer could not reasonably conclude that the Chairman might have prejudged the issue” (at [55]) and that “those matters show that the Chairman was ‘open to persuasion’ and that his opinion was not applied without giving the matters consideration” (at [57]).
Is ILGA reaching the point of a reasonable apprehension of bias?
The rule against bias, or prejudgment as it is also known as, is a complex and still developing area of Australian law. However, do the above comments made by the Chairperson, now mean that a reasonably informed fair-minded observer might conclude that the ILGA Members might not bring an impartial mind to its determinations? In my view, the issue is finely balanced.
As Aronson, Dyer & Groves, the authors of Judicial Review of Administrative Action, say at [9.125] of their legal text:
“Decision-makers may hold social or political views so long as they are not held so strongly as to prevent them approaching the matter with a fair measure of objectivity. For example, teetotallers can try liquor licence applications, provided that they are not implacably opposed to all applications” (Sharp v. Carey (1897) 23 VLR 248). To hold otherwise would be to use the neutrality ideal to present an untrue picture of the law and the adjudicative process. The law frequently issues overt invitations to the decision-maker to inject their personal views into the case, these invitations being labelled ‘reasonableness’, ‘public interest’ and so on. And in no case can or should one expect a decision-maker to be devoid of any sense of moral or social direction. The question is whether persuasion is a genuine possibility.”
What is clear to me however, is that persons making certain types of applications to ILGA, do so at their own peril. An application to increase gaming machines in a Level 3 LGA is highly likely to be refused, as demonstrated by O’Hara’s Case. O’Hara’s Case also mentions of the five Class 2 LIA applications lodged with ILGA (including the O’Hara application), only one has been granted.
Also applications for extended trading hours after 2:00am and earlier in some locations, like Surry Hills, are likely to be refused. At the time of writing this article, another refusal was published on the ILGA website. It involved an application for a Primary Service Authorisation for the Hop Factory at Cooks Hill, a suburb of Newcastle.
I am sure that further decisions of ILGA will now be carefully scrutinised by applicants, to see whether the decision clearly demonstrates that the ILGA Members were indeed “open to persuasion”, as found in O’Hara’s Case.
Bruce Bulford, 6 August 2014.
