Administrative Law

The NSW Government is concerned about the illegal import and sale of drugs, alcohol, tobacco and e-cigarettes in the state (especially by gangs like the Peaky Blinders) and wants to crack down on businesses running other illegal side hustles out of their stores. In 2023, the New South Wales Parliament passes theAlcohol Limitations Act 2023 (NSW) (a fictious Act), which replaces existing laws regulating the sale of alcohol and tobacco products in NSW.

TheAlcohol Limitations Act 2023(NSW) relevantly states:

Section 2: This object of this Act is to regulate the sale and distribution of alcohol and tobacco products in a manner consistent with the public interest.

Section 3: There is hereby established an Alcohol and Tobacco Board, constituted by members to be appointed by the Governor.

Section 4: The Alcohol and Tobacco Board may make regulations as necessary and convenient to give effect to this Act.

Section 5(1): The Alcohol and Tobacco Board may grant licences to sell alcohol or tobacco to owners of retail liquor premises ('licence').

Section 5(2): For the purposes of subsection (1) 'retail liquor premises' are defined as 'businesses which sell alcohol and tobacco products on-site to the public at retail prices'.

The Alcohol and Tobacco Board then enacts regulations. TheAlcohol and Illegal Dealings Limitations Regulations 2023 (NSW) relevantly state:

Reg 2: The Director of the Board may issue a licence to owners of retail liquor premises to sell alcohol and tobacco products from those retail premises.

Reg 3: In determining an application for a licence, the Director must be satisfied that:

(a) The retail owner only sells alcohol and tobacco products and related paraphernalia at their retail liquor premises; and

(b) The retail owner must not allow the conduct of any other business on the premises.

Reg 4: Where an application for a licence under these Regulations is rejected, the preexisting licence immediately lapses on the day the decision is made.

Reg 10: Any person who is directly aggrieved by a decision of the Alcohol and Tobacco Board, or the Director, may seek review of the decision in the Supreme Court of NSW.

You are a lawyer working in New South Wales ('NSW').

Your client, Aberama Gold, is a small business owner who sells fine Irish Whisky, cigars and cigarettes and related paraphernalia. He is known to be associated with members of the Peaky Blinders gang, and it is generally 'understood' that you can acquire many 'other' items at his store.

Mr Gold's licence is due to expire in three months, and so he applies to the ATB for a liquor licence to continue to sell alcohol and tobacco from his very popular store. The Director of the ATB, Mr Johnny Dogs (who happens to be the cousin of Mr Gold's ex-girlfriend Polly Gray), rejects Mr Gold's application.

The Director sends a letter to Mr Gold outlining his reasons for his decision. In the letter, the Director says: 'I am not satisfied that you have been able to establish your compliance with Reg 3 of theAlcohol and Illegal Dealings Limitations Regulations 2023(NSW). Specifically, I find that your retail business sells other products from the premises and allows patrons to conduct their own business on site. Therefore, I cannot grant your application for a licence.'

Mr Gold wants to know whether the Director's decision can be challenged and what remedies might be available to him. Advise him. You may draft your advice as a letter written in the first person if you wish.