The National Hotel Decision
An important decision impacting on liquor licensing was handed down in the Supreme Court of Western Australia recently regarding the National Hotel in Fremantle. In July 2013, the licensee, Carnegies Realty Pty Ltd applied to the Director of Liquor Licensing for an extended trading permit to trade beyond the hours permitted for hotels under the Liquor Control Act 1988 (the Act). The Licensee was seeking to trade until 1.00am on Wednesdays and Thursdays, 2.00am on Fridays and Saturdays and until midnight on Sundays.
In applying for the extended trading permit, the licensee was required to satisfy the licensing authority that the granting of the application was in the public interest, a requirement of the Act. In determining whether granting an application is in the public interest, the matters the licensing authority must have regard to include the harm or ill-health that might be caused due to the use of liquor, the impact on amenity of the locality, whether offence, annoyance, disturbance or inconvenience might be caused to people who reside or work in the vicinity of the proposed premises. In making its decision, the licensing authority must also take into account the objects of the Act, which include to regulate the sale, supply and consumption of liquor, to minimisation harm or ill-health caused due to the use of liquor and to cater to the requirements of consumers for liquor with regard to the proper development of the liquor, tourism and hospitality industries.
After considering the evidence, including submissions and statistics from both the police and health authorities, a delegate of the Director of Liquor Licensing, and then on review, the Liquor Commission of Western Australia, both refused the application based on the general evidence of harm in the Fremantle area, which was not specifically related to the operation of the premises in question. The Liquor Commission accepted that a direct causal relationship between the premises and harm or ill health had not been established but that there was already a high level of alcohol related harm in Fremantle. In refusing the application, the Liquor Commission found that the grant of the application was likely to result in an unacceptable increment in the level of alcohol related harm and that there was a strong public interest in minimising this harm which outweighed other considerations in granting this application.
The Licensee appealed the decision to the Supreme Court who allowed the appeal, quashed the decision of the Liquor Commission and has sent the decision back to the Liquor Commission for reconsideration.
In his judgement, Allanson J found that the relatively short reasons of the Liquor Commission revealed that the Commission was asking itself the wrong question. Whilst the Liquor Commission arguably made a finding, although a very general one, that there is a high existing level of harm and ill-health in Fremantle, it made none of the other findings necessary to carry out the evaluative judgment of whether the application was in the public interest. To proceed in this way, the Liquor Commission failed to determine the application before it in accordance with the Act. The Act requires a balancing of the various factors, reflected in the objects of the Act. Any attempt to identify, in the abstract, a determining factor is likely to deflect the Liquor Commission from the real question it must address about whether the grant of the application in that location would be in the public interest.
Further, the Liquor Commission was required to make findings about the level of alcohol related harm, due to the use of liquor, which is likely to result from the grant of the application. Allanson J found:
It is not sufficient to simply reason that, where there is already a high level of harm in the particular area, even a small increment in potential or actual harm may be determinative, without making specific findings on the evidence about the level of alcohol related harm which is likely to result from the grant of the particular application. Those finding about the effect of the particular application must be the basis on which the Commission evaluates what is in the public interest. You cannot look at the level of general harm in an area and use that alone as the basis for refusing an application.
Importantly, this decision supports the proposition that harm and ill-health considerations must be given equal weight to the other primary objects of the Act, including the requirements of consumers and the proper development of the liquor and tourism industries. As a result, this decision should bring some balance back into liquor licensing decision making process, which has been absent for several years now.
Whilst this is a significant decision in the liquor licensing regime of Western Australia, it is imperative that in order for the licensing authority to balance the competing interests in the objects of the Act, objective evidence must be presented by an applicant in its public interest assessment submissions. Whilst the level of alcohol related harm in the locality will no longer be the sole basis for determining an application, an applicant must lodge appropriate, objective evidence addressing all of the public interest requirements and the objects of the Act.