Change from Director-General to Secretary

Change from Director-General to Secretary

Liquor licensees will know that the decision makers in the Liquor & Gaming Jurisdiction of NSW are the Independent Liquor & Gaming Authority (or ILGA) and the Director-General of the Department of Trade & Investment, Regional Infrastructure and Services (or Director-General). So who is the “Secretary” of Trade & Investment? Some licensees may have received a notification that the Secretary has made a determination in respect of their licence. But when you turn to the legislation, you cannot see any reference to the Secretary and instead all references are to the Director-General. Licensees may ask are those determinations valid?

In the Liquor & Gaming Legislation of NSW, there are only references to the “Director-General”. This is despite there being a change to the “Secretary, Department of Trade & Investment, Regional Infrastructure & Services”, with effect from 24 February 2014. I have written this article to examine the difference in the legislation, with references to the “Secretary” in any correspondence from the Department of Trade & Investment, or from the Independent Liquor & Gaming Authority.

Administrative Arrangements Order 2014

On 29 January 2014, the Administrative Arrangements Order 2014 was published in the Government Gazette (Order). Clause 2 of the Order states that it commenced on 24 February 2014.

The effect of the Order is to make certain changes to Government Departments under the Government Sector Employment Act 2013. This Act received Assent on 25 June 2013 and commenced in part on 13 September 2013.

Under clause 7(2) of the Order, each former listed Government Department was abolished. Under clause 7(1) the functions of a former Department were transferred to the corresponding Department specified in Part 1 of Schedule 1 to the Government Sector Employment Act 2013.

The Department of Trade & Investment, Regional Infrastructure & Services was a Government Department first established under the Public Sector Employment and Management Act 2002. Under the Government Sector Employment Act 2013, there is now a new department by the same name.

Under the Government Sector Employment Act 2013, a head of a “public service agency” (or Government Department) is defined in s.3(1) to be the “Secretary of the Department”.

Under clause 7(3) of the Order in any “document” a reference to the head of a former principal Department (Director-General) is to be construed as a reference to the Secretary of the new corresponding Department. Also under clause 3 of the Order, a “document” means “any Act or statutory or other instrument or any contract or agreement”.

Accordingly under the Order, for the purposes of the Liquor and Gaming Legislation, all references to the “Director-General” are to be construed as references to the “Secretary”, with effect from 24 February 2014.

My Comment

Despite the combined operation of s.3(1) Government Sector Employment Act 2013 and cl.7 of the Order, the various Acts and Regulations which comprise the Gaming & Liquor legislation of NSW, must still be formally amended by an Act of the NSW Parliament. Until this amendment formally takes place, the exercise of a statutory power by “the Secretary” is without power and void, as the relevant decision maker in the legislation is still the Director-General. For example, s.54 Liquor Act 2007, gives the “Director-General” power to impose conditions on a licence. This is a power not given to the Secretary.

The Order is only “subordinate legislation” (not an Act of parliament) and cannot prevail over the express provisions contained in the Liquor Act 2007 and the other laws which comprise the Gaming & Liquor Legislation of NSW. The Order is only an administrative arrangement, made for the purposes of enabling the Government Departments to carry on their business until such time as the required amending Act is passed by Parliament.

In 2009 there was a similar type of change, made by the Public Sector Employment & Management (Departmental Amalgamations) Order 2009. This effected a change from the “Director of Liquor & Gaming” to the “Director-General of Communities NSW”. That Departmental change was then carried into the legislation by the Liquor & Registered Clubs Legislation Amendment Act 2009. Subsequently, this reference was changed to the “Director-General of Trade & Investment, Regional Infrastructure & Services”. This change was made by the Clubs, Liquor & Gaming Machines Legislation Amendment Act 2011.

Despite the Order being made on 29 January 2014, the required legislative changes are still to be made. I have written to the Executive Director of Trade & Investment who replied to the effect that the above legislative changes will be made. However to date there has not been any amending legislation put to the Parliament. Accordingly any determination made by the Secretary is beyond power and void, unless and until the required legislation is passed by Parliament and with retrospective effect.

 

Bruce Bulford

12 August 2014

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