Preliminary
On 11 November 2015, the NSW Parliament passed the Gaming and Liquor Administration Amendment Bill 2015 (Bill). In his Second Reading Speech, the Deputy Premier, Troy Grant said that the Bill was to “implement structural reforms to the liquor and gaming regulatory framework that are designed to better support the important policy settings applying to these sectors” (Hansard, Legislative Assembly, 27 October 2015). Some might say that the purpose of the Bill was to strip away from the Independent Liquor & Gaming Authority of NSW (ILGA), some of its decision making powers and give them to public servants instead.
On 1 February 2016 the Minister also issued “Ministerial Directions” to ILGA. Directions were given to ILGA, to determine applications within certain time-frames.
Part of the Bill came into force on 1 February 2016. The rest of the Bill came into force on 1 March 2016.
The Bill also provides further appeal rights to the New South Wales Civil & Administrative Tribunal (NCAT) from certain, but not all determinations made by ILGA.
Pre-existing ILGA Delegation Regime
For many years ILGA has published on its website its “Regulatory Delegations Manual”, the latest edition of which takes effect from 3 February 2016 (Delegations Manual). It makes no reference to the Bill, nor to designated Public Service employees.
This Delegations Manual covers a number of Acts and Regulations in the NSW liquor and gaming legislation, including the Liquor Act 2007 and the Liquor Regulation 2008.
In respect of the Liquor Act 2007, there are a considerable number of decisions that ILGA has delegated to the “Chief Executive” of ILGA, the “Executive Director of the Office of Liquor, Gaming & Racing” (now Liquor & Gaming NSW) and the “Manager, Licensing” of ILGA. Some of the more simple applications are also delegated to seconded employees, who hold the title of “Co‑ordinator, Licensing”, a “Licensing Specialist” or a “Supervising Team Leader”.
The new Delegation Regime
Section 13 of the Gaming and Liquor Administration Act 2007 (G&LAA) has always provided that ILGA may delegate its functions to an “authorised person or body”. The Bill has also introduced the concept of a “designated Public Service employee”. This “designation” is undertaken by the Secretary of the Department of Justice (see the amendments to the Definitions section of the G&LAA (s.3(1)), as made by the Bill).
It is understood that the delegations now contained in the legislation to these designated Public Service employees, replace the delegations as contained in the Delegations Manual. It is also understood that the Delegations Manual will be updated to include these designated Public Service employees.
Reviewable decisions made by designated Public Service employees
The Bill and its consequent regulations, establish a regime whereby a limited number of “prescribed applications” (as defined) as determined by designated Public Service employees, are reviewable by ILGA. Those limited number of determinations are now listed in cl.5A of the Gaming and Liquor Administration Regulation 2008, as now amended by the Gaming and Liquor Administration Amendment (Review of Delegated Decisions) Regulation 2016 (gazetted on 29 January 2016) and by the Gaming and Liquor Administration Amendment (Reviewable Decisions) Regulation 2016 (gazetted on 26 February 2016).
Is ILGA “functus officio” for its other delegated determinations?
Does this limited path towards ILGA being able to review the determinations made by these designated Public Service employees, mean that ILGA can no longer review or reconsider any other delegated determination? Is ILGA (now itself or through its delegates) now “functus officio” in respect of those other determinations?
In respect of the prior Act (Liquor Act 1982) and the determinations of the former Liquor Administration Board (LAB), it has long been held that the LAB was never regarded as functus officio and could review its own determinations at any time if it considers appropriate to do so (see Bunyan v. Trinick (unreported) Supreme Court of NSW, 1 July 1988, Campbell J.) At p.9 of his judgment, Campbell, J. held that the LAB could also revoke its earlier determination, if there was “fresh evidentiary material” submitted by the applicant.
Both the Commonwealth Acts Interpretation Act 1901 and the NSW Interpretation Act 1987, indicate that when an act or instrument confers a function on any person or body, the function may be performed “from time to time” as occasion requires (s.33(1) Acts Interpretation Act 1901 (Cth) and s.48 Interpretation Act 1987 (NSW)).
The above is not to say that there is never any finality in the determination by ILGA or any other administrative decision maker. With limits, the principle of functus officio was endorsed by the High Court of Australia in Minister for Immigration & Multicultural Affairs v. Bhardwaj (2002) 209 CLR 597. However, if there has been a “jurisdictional error” made by the decision maker, then at law there was no determination made by the decision maker and accordingly, the decision maker is at liberty to re‑determine the matter again. See also Comptroller-General of Customs v. Kawasaki Motors Pty Limited (1991) 103 ALR 661. In the Kawasaki Case it was held that the Comptroller-General could re-determine the matter if there was “no evidence to justify the decision” (at p.668).
On balance therefore, and despite the express review rights now contained in the legislation, ILGA (either by itself or through its delegates) is never regarded as “functus” if there has been a readily apparent jurisdictional error, and it is proper in the circumstances that the determination be reconsidered. The unresolved issue however is, who is to reconsider the determination? Is it the ILGA Board Members or is it the delegate? Obviously it would be better for contentious determinations to be made by the ILGA Board Members.
Additional NCAT Review Rights
Prior to the coming into force of the Bill, the only power that NCAT could exercise in terms of reviewing a decision of ILGA, was in respect of a disciplinary complaint (see s.144 Liquor Act 2007).
As from 1 March 2016, NCAT may now also review a limited number of determinations made by ILGA, such as the application for the grant or removal of a hotel licence or club, or a packaged liquor licence (except those limited to taking orders over the internet). Extended trading hour authorisation applications enabling trading after 12:00 midnight and also gaming machine threshold increase applications requiring a Class 2 Local Impact Assessment also are reviewable by NCAT.
NCAT can also review the determinations made by designated Public Service employees, as listed in cl.5A of the Regulation. However, if ILGA has reviewed such a determination under s.36A of the G&LAA, then there is no further right of review to NCAT (see s.13A(4)). Accordingly, for the applications prescribed in cl.5A of the Regulation, there are two alternate paths for review – straight to NCAT or to ILGA.
The right of a review to NCAT is limited to a “relevant person” who is aggrieved by a decision of ILGA (s.13A(1)). A “relevant person” is defined to be the applicant, or a person or body who was required to be notified in respect of the application (the police, the council and local residents living within the required distance) and who made a submission to ILGA (see s.13A(5)). So if the police make no submission, they have no review rights.
A review application to NCAT is a “rehearing” rather than a “new hearing” (s.13A(2)) and the application to NCAT for an administrative review must be made within 28 days of a notice of the decision being published on the ILGA website (s.13A(3)).
Bruce Bulford
1 March 2016
