June 7th 2008

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Articles from this issue:

EDITORIAL: Will money solve the problems of indigenous Australians?

COVER STORY: UK green light for creation of human-animal hybrids

CANBERRA OBSERVED: Rudd Labor Government wobbles for the first time

OVERSEAS TRADE: US farm bill buries talk of free trade in agriculture

TRADE PRACTICES ACT: Will Liberals back Labor or small business?

ECONOMIC AFFAIRS: Has financial deregulation finally been discredited?

VICTORIA: Vic. court hands gambling decision back to council

CENSORSHIP: Student union bans pro-life activities

REPRODUCTIVE HEALTH: Post-abortive women: from silence to lawsuits

CULTURE: Our topsy-turvy world: on kangaroo culls and child porn

CHILDHOOD: Are violent video games harmless entertainment?

HUMAN RIGHTS: The Olympics and China's organ-harvesting shame

OPINION: Democracy in disconnect: joining the dots

AS THE WORLD TURNS: Urban environments to human scale / War on the family / How we lost the Cold War

Chickens coming home to roost (letter)

Obligation to tackle global warming (letter)

Farmers and carbon tax (letter)

Railway opportunities beckon (letter)


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Vic. court hands gambling decision back to council

by Luke McCormack

News Weekly, June 7, 2008
A court ruling has upheld the rights of a community to determine its future against the power of central government.

The Victorian court of appeals has upheld the rights of the citizens of the small country town of Romsey to refuse a gaming licence to their only pub, despite the Victorian Civil and Administrative Tribunal (VCAT) approving the licence.

Will this precedent set the grounds for local councils to make the final decision regarding sex shop and brothel applications?

Regional Victorian councils have been fighting with state authorities over the approval of applications for brothels and pornography outlets (sex shops) in rural towns for some years.

Despite community opposition, VCAT has given the sex industry approval to establish the Foreplay adult bookshop in Warrnambool, the Alley Cat Bar licence extension in Geelong, and Club X in Shepparton. There is a current fight over the Big Boy Shed in Wangaratta.

Should a local council refuse an application, the applicant can appeal to VCAT. Under the Planning and Environment Act 1987, VCAT "may consider any significant social and economic effects..." raised by the local communities. However, it has not been obliged to take local social and economic concerns into consideration.

In fact, VCAT has consistently decided in favour of sex shops and brothels, ignoring local protests about "social effects". Repeatedly, applicants seeking to establish sex shops have used the planning act to successfully argue that "in principle" opposition (on religious or moral grounds) is irrelevant. This has discouraged councils and residents from resisting applications.

In a recent case, the regional city council of Wangaratta voted, begrudgingly, in favour of a pornography outlet after much heated debate and public campaigning against the application. The council stated that, while they opposed the sex shop, they understood the application to have fulfilled all the relevant criteria for approval.

Mayor Roberto Paino acknowledged that if council refused the application, it would go on appeal to VCAT, which would most likely approve the application without the types of restrictions sought by the local council.

The Wangaratta story highlights regional disenchantment with the state authority over VCAT's refusal to consider "social effects" of the proposed outlet.

However, this may now be changing. The rural council of Macedon Ranges Shire decided to take a VCAT decision to the court of appeals, and won. In this case, it was the sole hotel in the small town of Romsey that applied for a poker machine licence.

Initially, the council successfully blocked the application under a special provision in the Victorian Commission for Gambling Regulation. Under the Gambling Regulation Act 2003, the commission may not grant applications unless it is sure that "the net economic and social impact of approval will not be detrimental to the well-being of the community".

The commission refused the Romsey Hotel application, noting the "overwhelming evidence that members of the local community are opposed to the introduction of [electronic gaming machines] into their community". However, the hotel appealed to VCAT, which decided in favour of the gaming machines.

Not content with the outcome, the Macedon Shire Council took their case to the Victorian court of appeals. At stake was the issue of whether or not VCAT had made an error in law by not taking into account evidence of community opposition to the gaming machines.

The court ruled that VCAT had indeed made an error in law, thereby dismissing VCAT's ruling altogether and affirming the original refusal by the gambling commission. The judges declared: "If the approval... is likely to cause unhappiness or discontent in that community (or any part or parts of it), that consequence is a 'social impact of approval'... [and] must, therefore, be taken into account by the decision-maker".

In effect, the court ruled that VCAT was not free to choose whether or not to take social and economic factors into consideration but was required to consider such local community concerns.

Rights of a community

Underscoring the rights of a community to determine its future under the gambling law, the court said: "The views which members of a community have about the kind of community in which they wish to live will reflect a whole variety of interests, aspirations, beliefs and experiences.

"If... members of the relevant community 'find the prospect of gaming [machines]... so disconcerting that it would have a significant effect upon that community', it is immaterial whether such concerns are founded on philosophical or moral or religious views (or some combination of these)."

Victorian Nationals state member of parliament Ken Jasper, representing the Wangaratta region, has encouraged local councils to consider taking sex shop and brothel objections to VCAT when there is significant community opposition.

Councils would then have the further option of testing the precedent established under the gambling act to see if VCAT would be required to acknowledge local objections to sex shops and brothels under the planning act.

— Luke McCormack

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