On 29 May 2020, the Government proclaimed the Liquor Amendment (COVID-19 Licence Endorsements and Temporary Freezes) Regulation 2020 (Amending Regulation). On 1 June 2020, the Independent Liquor and Gaming Authority of New South Wales (Authority) released Interim Guideline 6.1, headed “Density controls in the Sydney CBD Entertainment and Kings Cross Precincts” (Guideline).
The Amending Regulation and the Guideline clearly appear to be in direct conflict with each other. However, when read together they are clearly part of a deliberate policy scheme. The Amending Regulation and Guideline also need to be understood in light of the Government’s response to the Parliamentary Inquiry into the Night Time Economy (released in November 2019), as well as the draft Liquor Amendment (24-Hour Economy) Bill 2020 (Bill).
The Bill needs to be mentioned to give context to the Amending Regulation and to the Guideline. The Bill is only in draft form, for public comment. The consultation period has now been held open to 28 June 2020.
The Bill deletes the whole of Part 4, Division 1A of the Liquor Act 2007 (Act). This part deals with the “temporary” freeze on licences and other authorisations, in the Kings Cross Precinct and the Sydney CBD Entertainment Precinct (Liquor Freeze). In place of this so-called “temporary” Liquor Freeze, which has been in place since 1999, a new Division 5 is to be inserted into the Act, headed “Cumulative Impact Assessments”.
What is not readily apparent from a quick reading of the Bill, is the real significance of this amendment. In my view, the Guideline gives a useful insight into the policy intent behind the proposed amendment in the Bill.
The Guideline indicates that there is a “rebuttable presumption against the granting of applications”, which fall within the Guideline. It is probably the case that the same rebuttable presumption will be applied by the Authority, when determining the test contained in s.48(5) of the Act, after the Bill becomes law.
A marker of this policy intent, appears at s.72B(1) of the Bill, which mentions the “Authority’s duty under s.48(5) to ensure that the granting of a licence or authorisation will not be detrimental to the well-being of the local or broader community”. With respect, this is definitely not the statutory test contained in s.48(5) of the Act, either now or after the Bill becomes law. Section 48(5) is only one of a number of matters that the Authority must be satisfied in relation to, when determining a “relevant application”.
It is well settled law that the Authority’s determinations must be:
- In accordance with the express provisions of the Act;
- Be guided by the policy objectives expressly contained in the Act (see s.3(1) of the Act); and
- In accordance with the matters that the Authority is required to have “due regard to” in s.3(2) of the Act.
A “guideline” must be just that – to guide applicants, in the application or decision making processes which are not readily apparent from the legislation. A guideline must never be a substitute for legislation. It is the duty of our elected State representatives to consider and pass legislation through both Houses of the NSW Parliament. Parliament cannot abrogate its responsibility and leave it to the Authority to do what it does not have the political appetite to do. If there is to be a bar to applications, as contained in the Guideline, that bar must be contained in the legislation.
The Guideline might also appear to be a knee-jerk reaction to the Regulation being made. However, on closer examination of the Guideline, that is not the case. It is apparent from the Guideline, that the Authority had been working on it for some time.
The crime hotspot mapping images contained in the Guideline are not those which are publicly available from the BOCSAR website. It is obvious that the Authority commissioned BOCSAR to produce the crime hotspot maps used in the Guideline. These hotspot maps would take about 10 business days to produce. Also, on the Guideline itself, while it was signed by the Authority Chair on 1 June 2020, the document has a date of 29 May 2020. For those who know the workings of the Authority well, it is not that quick off the mark.
One may well ask, what was the purpose of, on one hand, the Government announcing the Regulation as a COVID-19 relief measure, and on the other hand, the Authority releasing the Guideline, which clearly takes away from the effect of the Regulation? This is a clear case of “giving with the left” and “taking with the right”.
Bruce Bulford – 11 June 2020