Liquor Licensing (Miscellaneous) Amendment Bill

17 May 2011 archivespeech

This speech is in relation to the Liquor Licensing (Miscellaneous) Amendment Bill. The purpose of this bill is to amend the Liquor Licensing Act 1997 in reflection of government policy of 'the promotion of responsible and safe service and consumption of alcohol creating a safe environment' and to 'tackle alcohol-fuelled violence and antisocial behaviour'.

Adjourned debate on second reading.

(Continued from 23 March 2011.)

The Hon. J.M.A. LENSINK (16:11): I rise to make a contribution on this particular piece of legislation. Prior to making comments on the specifics of the legislation I would like to address comments that were made in relation to whether this bill would be proceeded with in the previous sitting week. There was a tirade from the minister about honourable members not being ready, which, quite frankly, I would like to place on the record where I see that particular debate, in that I had the briefing.

The particular week prior to that sitting week was a short week because of Easter. I received some research from the minister's office on the Friday afternoon at about, I think, 4 o'clock. I had been up north with a number of my honourable colleagues, at the invitation of the member for Stuart, and therefore had not had the opportunity to print and review those documents, particularly over the weekend.

So, I think those comments by the new leader were a little bit desperate, and I do congratulate her on that role now that she has been permanently appointed. It was a desperate way to deflect that the management of this chamber was in a fair amount of disarray. Just one small piece of advice, if I may. I think she will find that approach is like quicksand: the more she thrashes about and lashes out at the rest of us, the faster she will sink.

In relation to this particular bill, the Liquor Licensing (Miscellaneous) Amendment Bill, the purpose of it is to amend the Liquor Licensing Act 1997 in reflection of government policy of 'the promotion of responsible and safe service and consumption of alcohol creating a safe environment' and to 'tackle alcohol-fuelled violence and antisocial behaviour'. At the outset, I would state that that is a fairly ambitious target, and when we look at the particular measures I think this piece of legislation will be found to come up very short indeed.

The background to this legislation is that on 3 December 2009, the then attorney-general and the Minister for Consumer Affairs jointly announced a review of the act. In May 2010, the South Australian police released a report entitled, 'Alcohol and crime: late night liquor trading and the real cost of a big night out in the Adelaide CBD', which highlighted the cost to police and other emergency services patrolling the CBD, and particularly of note was Hindley Street and the West End for late night antisocial behaviour.

Discussion papers were released by the OLGC in July 2010, entitled, 'A Safer Night Out' (a review of the Liquor Licensing Act) which argued the case for a change to the way in which licensed premises are managed to control binge drinking and serious alcohol-related harm. Many of the changes in the bill arise from this paper; however, the proposal for an annual licensing fee has been transferred to Treasury and will be a measure in the upcoming budget. Submissions to that particular paper closed in September 2010.

In relation to particular aspects of the bill, it removes the right from licensed premises to serve liquor—by which we mean just drinks—between the hours of 4am and 7am, and these restrictions would be enforced on any business which holds one of the following licences: a hotel licence, residential licence, restaurant licence, entertainment venue licence or club licence. However, I note that it excludes the Adelaide Casino from this at clause 5 (new section 7A) even though that venue holds the same type of liquor licence as other premises such as the Strathmore Hotel.

Exceptions are also being made for dining rooms within a restaurant or residential licence where the service of liquor is with or ancillary to a meal whilst the patron is seated as a table. Because this is not extended to hotels, special circumstances or entertainment venues, this will cause inequity between dining services such as Marcellina's, which is on Hindley Street, while the Rosemount will not attract that exemption even though they are located in similar locations. There is also the potential for liquor merchants such as Dan Murphy's to open at 5am to sell liquor.

Sections 22 to 29 double penalties for second and subsequent offences by licensees; however, I note that there are no penalties in this legislation which are aimed at individuals who may be causing disruptive behaviour. Section 11B allows the commissioner to make management plans for licensees in specific geographical areas for 'public order and safety'. These management plans can be placed on specific licensee classes or create exemptions for licensees and may include requirements such as improved lighting, additional security, metal detectors, CCTV or radio links.

The amendments also grant significant power to the commissioner who will be able to issue public order and safety notices at his discretion which can vary or suspend conditions of a licence, impose additional conditions, vary trading hours or close premises, any of which can be applied for up to 72 hours. Furthermore, senior police officers will have the power to remove or order the removal of persons from licensed premises if they believe it is unsafe and close venues for up to 24 hours.

There are also criminal intelligence provisions. My colleague the Hon. Stephen Wade has made many contributions on this particular issue, and our firm position on this side of the house is that these should only ever be targeted at serious and organised crime. For everybody else, normal rules of evidence should apply, and applying criminal intelligence to licensees who already have to demonstrate that they are fit and proper persons in order to hold a licence and be able to use such provisions on their licence conditions, we believe, is grossly unfair. The outcomes of actions in the Liquor Licensing Court should demonstrate that licensees far and away are mostly abiding with all legislation.

Use of existing provisions in the Liquor Licensing Act: I understand that OLGC do audits, and there is a licence enforcement branch with SAPOL, and this has been subject of questions in this place. Indeed, I first asked questions in October last year and did not receive a reply, so I sought the same questions to be answered in March, again receiving no reply. However, through the delightful provisions of freedom of information, I have finally been able to get the answers I wanted.

First, from the Courts Administration Authority, I sought all documents relating to fines issued to liquor licensees in South Australia from 1 January to the current date, which has been brought up to 15 April 2011. There is a list of offences. They include fail to display licence, fail to wear approved identification, false statement in application to licensing authority, licensee failing to comply with licence condition, licensee of business not supervised or managed as required, supply liquor on unlicensed regulated premises. Of those, in the past three and a bit years, there have been some 10 fines imposed. For the particularly serious offences which are sell or supply liquor to intoxicated person, none have been recorded, and as to the also serious offence of supply to a minor on unlicensed premises, two in 2008 were recorded.

It has been similar for a request that I made for prosecutions of liquor licensees from January 2008 to the present date. They are very similar figures which honourable members may avail themselves of when they receive their Hansard. Furthermore, in relation to the inspections, I have a document which I would like to insert in Hansard which lists the number of inspections for various financial years. I seek leave to have all those documents inserted in Hansard without my reading them.

Leave granted.

Please click the following link to view the data in the original Hansard:

The Hon. J.M.A. LENSINK: Those figures are significant, particularly in relation to fines and prosecutions, because that really highlights one of the weaknesses in what is being promoted by the government in that clearly there are not a lot of fines or prosecutions being issued, yet there is a new regime being bestowed upon liquor licensees and not any further measures on any patrons.

I turn to the submissions made to those reviews the government published. The Adelaide Casino was one of many that expressed grave concern, and it stated that it had concerns that the changes would bestow powers to the government that would have negative impacts on their operations. The Casino does not support any changes that empower the government to impose one-sided restrictions on licensees and, whilst it has been subsequently excluded from the curfew, any attempt to include it would be met, I would understand, with strong resistance.

However, in spite of its exemption, the lack of transport during those particular hours, combined with greater number of patrons and staff awaiting taxis, remains a concern. Long taxi queues, regardless of whether individual patrons have consumed alcohol, can often result in violence, and this may deter patrons from seeking hospitality in the CBD.

A number of members may have received a letter from United Voice, the Liquor Hospitality and Miscellaneous Union, which expressed animosity that the Adelaide Casino is the only exemption to the mandatory closure and, while the union does not argue that the casino should not be exempt, it believes that other licensed venues should be able to apply for the same exemption, particularly the Strathmore Hotel, which I understand operates during the hours in question as a venue for hospitality staff to, for want of a better term, chill out after the end of their shift.

The union also expressed great concern for hospitality workers regarding loss of wages, pay cuts and job losses, as well as the ability for the industry to attract and retain staff, which is already a challenge. Transport issues again were raised, with extended waiting periods for taxis and the increase of people on the street awaiting either taxis or public transport, which is not available really until at least 6am, if not after, in order to get home. Whilst they believe there may be some positive initiatives in the bill, these are not enough justification to support it.

The view of the Australian Hotels Association is similar, with concerns about lack of transparency, financial ramifications and transport problems, which may again lead to safety and violence issues, and under no circumstances does the AHA support the mandatory closure. The AHA states that the rush to drink and last minute drinks before closing time may result in negative ramifications, including binge drinking, which will end up with a return of the 6 o'clock swill.

I note, in correspondence to the Office of the Liquor and Gambling Commissioner, that the AHA feels, I think, quite unfairly done by in this review in that it has attempted to address some of these issues but feels that the measures that are being imposed are rather a one-way street. Particular licensees have written to us. The Strathmore Hotel, which I mentioned, has a special circumstances licence, which enables it to trade 24 hours a day. It employs 61 South Australians. Its broad opposition is to the discriminatory one-size-fits-all changes. I will read directly from the letter, which states:

Since 1988 my hotel has run an 'industry only' bar after exclusively for hospitality workers. The bar has no live music, does not market itself to the general public and has precious little history of violence or community disruption. This new legislation would see this bar close and result in at least four job losses and end a two decade tradition for no apparent tangible benefit.

This bar enjoys a sense of difference as our customers arrive to the venue from work after drinking no alcohol. These shiftworkers can enjoy their after work drinking, socialising and relaxing in an environment with licensed and fully trained bar staff with Responsible Service of Alcohol qualifications.

This seems particularly inequitable as the restaurant within the venue must close between 4am and 7am yet every 'freestanding' licensed restaurant in South Australia will still be able to serve food with a meal while seated at a table in a designated dining area 24 hours a day, including the 21 restaurants in Hindley Street.

The proposed new legislation presumes all of us work 9-5 Monday to Friday. It heavily discriminates against shift and hospitality workers. The closure of this bar would ask those patrons to leave our controlled environment onto the streets where public transport is non-existent. Hospitality staff will be required to compete with patrons for transport.

The proposed early closing ignores the fact that the Strathmore has always given a full commitment to its duty of care obligations and has earned the excellent reputation it enjoys. It is our view this legislation unfairly targets and damages a legitimate longstanding business because of the actions of a minority of people elsewhere.

That letter is signed by Mr David Basheer. We also received a submission from the Dog & Duck, which has a number of headings and, under the title 'Managing irresponsible drinking', it states:

The Liquor and Gambling Commission at present has enough power to control behaviour of liquor licensees by using the court system where both parties can have their say in a fair fashion. There must be a fair and just process as the majority of licensees have large financial commitments which must be protected until an offence can be proven through the court system.

Lock Outs are certainly not a sensible measure as it will result in a [great] abundance of patrons in public areas either socialising or waiting for public transport which could also lead to unrest in the street. An example where this has already occurred was when Hindley Street was closed for all cars for a period of time which attracted more people to the area who could not gain entry to venues. If lockouts are [to be] considered—

I do note that this is a submission to the Liquor Licensing Review, so lockouts are not on the table, but we have mandatory closures—

for one hour before current licence closing time, this would be the most sensible approach. This would provide staggered closing and lock out times and therefore would help in allowing public transport and taxis to clear patrons from the West End area. The greatest method of improving the management of irresponsible drinking would be more interaction between licensed venues and officers of OLGC in times when Licensees and officers can discuss concerns and act upon them.

There is also a section on safer precincts and trading hours, which states:

Hours of trading imposed on customers by people who like myself find midnight a later night also does not seem fair to our youth mainly who go out at midnight or later.

I think that is an important point because, in this day and age, young people do go out later and that is a trend and I think it is part of the mix of what is happening, but I do not think that we should unfairly target youth as a scapegoat because they happen to like to be out when the rest of us are asleep.

I referred earlier to United Voice, and this is a letter to all members specifically in relation to the bill. It talks about the process and states:

In addition to making a written submission, United Voice sought and attended a briefing facilitated by Minister Gago. Representatives of the Office of Liquor and Gambling were also present at the briefing. It was apparent at that briefing that despite the calibre of likely submissions, or alternative solutions, licensed premises were going to close for a mandatory period of time. The only exception to the mandatory closure would be the Adelaide Casino on the basis that the Casino offers a 'unique experience'.

United Voice does not oppose the proposed exemption of Adelaide Casino. We do however note that there has been no cogent explanation limiting the exemption to one establishment. We submit other venues should have an opportunity to seek an exemption…

The letter goes on to explain about the Strathmore which has been detailed extensively in Mr Basheer's letter. The letter goes on to state:

Hospitality workers will suffer from these proposed changes to the licensing laws. Wages will be cut as shifts are shortened and jobs lost. Hoteliers will look to change their established operating models to extract further savings in order to sustain their businesses. The cuts in working hours could arguably impact on their retirement incomes if the loss in hours means they no longer earn enough to meet the Superannuation Guarantee threshold. This is particularly concerning for women.

Attraction and retention of workers is already an issue for the industry and the cut in hours may see workers chasing jobs in other sectors rather than see their take home pay cut and having to deal with increasingly angry patrons. Our members will not be able to avail themselves of the additional taxi services that have been promised as a sweetener for the proposed changes. Many members live in the outer northern and southern suburbs and a $70.00 + taxi fare is beyond their means, they will have to wait several hours for public transport to commence. Thus being exposed to the apparent dangers on our streets.

We also have a letter from the Youth Affairs Council of South Australia (YACSA) which states the following:

YACSA is under no illusions that alcohol use is a serious problem for young people. According to the most recent data from the Australian Institute for Health and Welfare, an estimated 37 per cent of 16 to 19 year olds and 45 per cent of 20 to 24 year olds drink at levels that place them at risk or at high risk of short-term alcohol-related harm. Long-term alcohol consumption can drastically increase the likelihood of a range of negative health conditions, including cancer, cirrhosis and alcohol-related brain damage.

However, YACSA acknowledges that the majority of young people who use alcohol do so responsibly, in order to enjoy themselves, within the law and in accordance with societal norms. Therefore, YACSA asserts that young people have a right to feel safe should they choose to visit licensed premises or other entertainment venues.

So it is particularly pleased the state government has committed to a harm minimisation approach but does make the point that the ABS shows that the highest proportion of risky and high level drinking occurs in the 45 to 54 year old age group. The submission goes on:

...YACSA also has a number of reservations regarding some of the proposed legislative measures discussed in A Safer Night Out. For example, the proposal to abolish 24-hour trading and require licensed premises to close at a certain hour may, as the discussion paper suggests, give patrons 'an opportunity to disperse during this time [so the] physical environment can be restored' in time for business hours, but it will also have significant implications at closing time.

Specifically, a large number of individuals, potentially intoxicated, will be leaving every venue at approximately the same time. YACSA is very concerned about the likelihood of conflict in a situation such as this, and look to the State Government for further information as to how this will be managed.

Business SA also made a submission to the review where it expressed concern about the significant costs being imposed on licensed premises which will not necessarily lead to a reduction in alcohol-related crime and antisocial behaviour. I now quote from its letter which states:

While increasing the powers of the Liquor and Gambling Commissioner could lead to potentially dangerous situations being resolved quickly, there is a risk that excessive use of such powers could result in a heavy-handed approach to public safety being forced upon licensees and patrons. Any use of extra powers and the imposition of possibly draconian restrictions on licensees should be limited to emergency situations.

Business SA is concerned that lock-outs and restricting trading hours for some premises may only result in the problem of alcohol-related crime and antisocial behaviour moving from one place to another and at the same time could unduly restrict some licensees. The same or similar times for lock-outs and closing times for licensed premises may lead to many people being on the streets at the same time, increasing the possibility of undesirable behaviour.

Business SA then goes on to talk about it being supportive of a proposal to develop agreements for particular areas or precincts which I understand most licensees would also welcome. The letter goes on to state:

However, there is a concern about their mandatory nature. A preferred approach would be to establish voluntary codes of conduct in the first instance.

I think that is eminently sensible. We have also received a comprehensive submission from the West End Traders Group which, again, talks about precinct agreements, a multidisciplinary approach and the possibility of expiation fees for individuals who are engaged in disruptive behaviour. It supports a ban on so-called 'booze buses' from the CBD, and it talks about police presence. I think our police spokesman, the Hon. David Ridgway, in particular, has said many times that increasing police presence, particularly within these precincts, would be the most effective way to reduce antisocial behaviour. The submission also notes that SAPOL is often readily available for public events, such as Schoolies Week, but ignores the West End, which has some 50,000 people on weekends.

The submission also makes the point that in relation to assaults it is very difficult to get any accurate data from SAPOL, and I think the whole research issue is a critical one that needs to be examined much further in this debate. Honourable members have been provided with a copy of a table that makes the point that, while the overall statistics might make it seem as if certain precincts within the CBD have high levels of crime, when we look at such issues on a smaller scale the actual numbers are not very high, given that they are a per annum figure.

I referred earlier to some research that the minister provided to me, and there are several reports that have been published by the New South Wales Bureau of Crime Statistics and Crime Research: the 'Impact of Restricted Alcohol Availability on Alcohol-Related Violence in Newcastle', which was published in November 2009; secondly, 'The Nature of Assaults Recorded on Licensed Premises' published in December 2010; and, thirdly, 'The Association between Alcohol Outlet Density and Assaults on and around Licensed Premises', which was published quite recently in January 2011.

Without going into the reports in a great deal of detail, the conclusion I draw from each of them is that it is hard to compare apples and oranges, in that in some jurisdictions—particularly in Newcastle and Queensland—the level of control or the regime under which the licensed premises were operating were quite different and I think, to use the vernacular, were probably quite slack compared with what already exists in South Australia.

Certainly, there has not been any level of research of that nature done in South Australia. The SAPOL paper, 'Alcohol and Crime: late night liquor trading and the real cost of a big night out in the Adelaide CBD', is not a reference document, and I certainly do not think it would survive a test of rigor to be published in any respected journal around the world or in Australia. I have also sought out a submission made to the Queensland parliamentary committee inquiry which was provided by the Centre for Accident Research and Road Safety.

It did a literature review and looked at reducing alcohol outlet density, which I think has been found to be somewhat more effective. On page 52 of that submission, it turns to the issue of restricting the hours and days of alcohol sales. The paper says that the research evidence noted previously—that is, in earlier parts of the document—supports that ever-increased availability of alcohol through extended liquor trading results in higher rates of injury due to assaults and drink-driving related crashes.

The paper talks about Scandinavian research and, in its second paragraph on this particular issue, states that, in contrast, the research findings within Australia in relation to restricting alcohol trading hours have been mixed. It refers to some research done in the ACT and goes on to say that restrictions to alcohol access in some regional and remote Aboriginal communities have been more successful. The big clanger for me was where, in summary, it stated that studies examining the impact of restricting hours and days of alcohol sales have lacked controlled methodology and have been inconsistent. Regardless of the operational hours and days for the availability of alcohol, responsible service of alcohol may be a more effective method to minimise alcohol-related harm.

If we return to those statistics that I provided earlier, there a very strict regime in South Australia in relation to responsible service of alcohol, and those issues are not being addressed in prosecutions of licensees. So, in other words, if that is the problem and it is not being enforced, then why do we need this particular measures?

The interstate approaches, which are not along the lines, seem to be having more effect. I will return to the argument that we need more police to be policing antisocial behaviour. That appears to be the case, according to the Mayor of Melbourne, in the Victorian experience. In Fortitude Valley in Brisbane, extra police, bans on troublemakers and safe drinking zones are helping to curb alcohol-fuelled violence, and so forth.

Certainly, the experience interstate, where police numbers have been increased, has led to some positive results, but these particular measures that have been proposed are untested, for starters, but also there is no evidence that they will lead to any improvement. Now, we have heard a lot of rhetoric from this government about them being sick of people ruining other people's nights out. Indeed, the Police Commissioner in 2008 was questioning why young people go out so late. He said—I think it was on ABC radio:

Personally, I don't know why premises have to trade so late and so early in the morning or indeed 24 hours a day. You can have a lot more fun without having to stay out until those sorts of hours.

I think it would be interesting to unpack that statement, and I will just return to the comments from the proprietor of the Dog & Duck, who wrote about how young people go out at midnight or later. The last time I checked, Australia was a free country and we did not dictate to people how they have fun, at what time of the day, or in what measure; as long as they were not breaking the law, then those were legitimate activities.

Now, you and I, Mr President, may not wish to be out at four in the morning having a drink, but that is the choice of other young people. I think there is a furphy, too, that people are drinking 24 hours a day. There may be individuals at any one time in South Australia having a drink at four or five in the morning, but I would be quite reassured that they are not all the same people drinking at every hour of the day because, quite frankly, if anybody tried to go on such a bender, they would more than likely find themselves in the emergency department of one of our esteemed teaching hospitals. So, I think people do go out at different times. The young people I know who go out will usually have a nap in the evening, and then that will give them enough wakefulness to be able to head out for the evening.

At the briefing which was provided to me, the commissioner advised that he is quite convinced—and I think, in part, based on his experience as a policeman in the Northern Territory—that there is too much alcohol-related harm in our community, and he believes that the measures in this bill will send a message about binge drinking. He also believes that the CBD is open 24 hours for seven days a week and is therefore a magnet for such behaviours, and that I think it might come down to the belief that 'something must be done'. I must admit, I recall similar arguments in relation to when Prime Minister Rudd made his alcopop announcement.

The government has said that it does not want to punish those licensees who do the right thing, but I think even they would acknowledge that the measures in this bill will harm all licensees, and I firmly believe that the licensing enforcement branch needs to enforce existing laws in relation to the serving of intoxicated patrons prior to taking these measures.

There were some 61 submissions to these bill and yet no final report has been tabled. I think that is disappointing. I think using youth as a scapegoat—because a lot of young people are not into socialising at those same hours—makes a lot of assumptions as to what is happening in licensed premises and in those precincts, without the benefit of firsthand knowledge, to which I will turn from our own personal consultation.

On Saturday 2 April and into Sunday, the next day, Tammy Franks organised what I think she entitled a 'Big Night Out', and I will leave some of this for her to explain in greater detail because I would like to give her credit for having organised that visit. I am very grateful that she was able to contact a very broad range of venues. Steven Marshall and I accompanied her, not to protect her in any way; I think we might have needed protection, if anybody was in need of it. The clear impression I obtained from that visit was that there were a very broad range of diverse offerings, if we can use the marketing parlance the government has been throwing around, with a different range of target markets.

We started at 11.30 at night and ended at about 6am. There was a change to daylight saving, so I do not think anybody knew what the time was by the time we finished. We visited La Boheme, Tuxedo Cat, Format, City, and I assume that the Hon. Ms Franks will go into much greater detail about what we discovered at each of these venues and some of the voluntary measures we witnessed. We also visited the Marble Bar, which has a very young target market; HQ; the Rosemont; Red Square; The Strathmore, and the Casino, which certainly had a much older group of people. If I were to be a nanna and cast judgement on them, I would say, 'Why do people need to be gambling or drinking at that hour of night?' I would say that to older people who I think often unfairly target younger people. We also passed several crowded taxi ranks.

On speaking to people, it was evident that none of the venue managers or proprietors want to have the silly young drunks, if I can call them that, in their venues, and a number of them have voluntarily implemented measures to improve safety and to keep out other undesirable patrons. The major concern, I think, is that the closure from four to seven is a one-size-fits-all approach, which unfairly disadvantages the staff's safety, as they finish work at the same time and are competing with patrons for taxis. There are a number of recurring themes, I think, in a lot of the submissions I have read out and a lot of the issues that have been raised, in relation to not just this this particular set of measures but also the interstate experience.

In summary, there has been a lot of rhetoric about drunken louts, but the fact that there has not been any prosecution for drunkenness or for serving drunk patrons means that the solution the government has come up with to shut premises and penalise licensees is just a knee-jerk reaction. I also note that it was the release of this to the public domain was made at a time when a couple of the Rann government ministers had opened their mouth and thought out loud on the issue of whether we should have nuclear power. So, I do wonder whether this was rushed out without their having thought about it beforehand.

We will oppose the third reading of this bill. We will not oppose it at the second reading because we believe that the hypocrisy needs to be exposed and that therefore the committee stage is an important one to demonstrate all of the things that are wrong with this bill.

We will not be supporting the Greens' amendment to include the Casino in the curfew because we think the whole four to seven mandatory closure is a bad policy for any venue, so it is also a silly one for the Casino. We would be interested in the concept of expiation fees, and I place this on the record and ask the minister how far the issue of developing expiation fees for individuals who engage in antisocial behaviour has progressed. With those comments, I look forward to further contributions to this bill.