Liquor Licensing (Liquor Review) Amendment Bill

Committee Stage

In committee.

(Continued from 16 May 2017.)

Clause 95.

Ms CHAPMAN: I move:

Amendment No 2 [Chapman–1]—

Page 62, lines 19 to 25 [clause 95, inserted section 135A]—Delete inserted section 135A

The motion that I propose to speak to essentially provides a removal of the government's initiative (which is the kindest way I can describe it) to introduce a blacklist process. Essentially, this clause allows the commissioner to determine whether he or she might publish the names of licensees who have been convicted of an offence under the act. That is, the commissioner, at his or her discretion, can publish such prescribed details of any offence under the act as he or she thinks fit. We say that that is not appropriate.

During the course of the briefing on this bill, we were advised that this process operates in New South Wales. I am also advised by Commissioner Sulio that he considers that this is something, if he is given this responsibility, he can enforce and accommodate within his existing budget. He does not need any extra money to have a website page that displays these offending parties. I thank him for providing that information. There is no provision under the proposed regime to introduce this blacklist which tells us what information will be put on the website. It does not allow for any other forum of publication. It is only the website that is proposed.

The name, the particulars of the offence and the date of the offence seem to be the usual things published in these scenarios. Nevertheless, as we do not have any indication of what is in the regulations because they have not yet been drafted, we have no clue as to what this is going to be. Our position is that, whilst we can have a name and shame list or a blacklist—and indeed we have a child sex offender register in Australia that helps us to deal with people who have been convicted, but for certain reasons we need to protect the community and have a published list—we should also ensure that, where certain parties fail to comply with obligations of residence, they can be easily sought out and apprehended, if necessary, by the police in respect of the enforcement.

For example, if someone is on probation, they need to keep the police advised of their current address, particulars of their employment and so on. We have these types of lists to ensure that there is compliance. If there is not compliance, they can be further convicted and have their information published on a website. Indeed, we have processes now where, on police reference, photographs of people can be put on there and the public can be informed so that they know if someone is at large or in breach. It is not a new concept, but it is relatively unused, except in New South Wales, in respect of licensees of licensed premises who break the law.

Remember, of course, that people who break the law obviously have a punishment regime in any event; currently, that is by way of fine or imprisonment. There are myriad different offences and obviously they attract very different penalties. There is the circumstance where the commissioner can suspend or give notice of suspension, issue directions, add conditions, etc., in respect of licences, so there is very much an economic lever to ensure that licensees do the right thing or remedy some breach.

The problem with this process, which is to add a blacklist or add a name and shame list, is that there is clearly no provision here for a process as to how that is removed in the event that there has been some compliance. One of the examples raised with us is if a licensee is deemed to have committed an offence. Bear in mind that there is a whole lot of people who are obliged to ensure that there is no breach of conduct—for example, providing liquor to minors or continuing to provide alcohol to someone who is intoxicated—such as the licensee as a responsible person, a staff member behind the bar and other various people who attract liability when things are not done properly. That is fine and we understand that.

However, if the licensee goes on the blacklist for having fallen foul in respect of conduct that is the subject of an offence under this act and they are put on the blacklist, there is no provision, other than the fact that the commissioner must remove them from the website after five years, or they can stay on the website for no longer than five years. It is very much the introduction of a law that is really going to be at the discretion, it seems to me, of the commissioner of licensing to decide whether he is going to publish something on the list, what is going on the list that can be defined under prescription and how long it stays on the list.

It is sloppy drafting at best for an idea I think the government has thrown on the table. We simply say at this point that there is not necessarily any evidence to say that it is an effective means by which to bring recalcitrant licensees into check. Rather than doing something like this, as I have said here before, I would prefer that the commissioner for licensing do what he and his department are paid to do, and that is to make sure that there is compliance with the licensing obligations and, if they do not comply, that there is some serious financial consequence.

I am appalled that every year we come to this parliament and find that, except for being advised that there was one group that was given a notice, which was to suspend, there has been not one single suspension of a person's licence when we know that there are people out there in the community in this area who do not do the right thing. To be clear about that, there was a public order and safety notice, according to that same letter from the acting minister, Mr Malinauskas, that I referred to yesterday, in respect of a particular club lounge in August 2015. Apart from that, there has been no suspension on disciplinary grounds in respect of breaches under the Liquor Licensing Act and, further, no liquor licences have therefore been suspended by the commissioner in respect of compliance in the last two years.

So, this has reaffirmed again what we already knew from estimates. That is a very effective instrument of discipline and a way of rooting out those who do not comply and freeing up those good, law-abiding licensees who do the right thing. This is a clumsy attempt to try to look like they are getting tough on breaches, and I think that it is crude and will be ineffective.

The Hon. J.R. RAU: I oppose this amendment. We have come to an interesting point with this debate today, in that the opposition have, by reason of their amendments, intervened in these proceedings before the parliament to help two groups of people. One group is those people who are all-night retailers of booze who are responsible for filling up our young people with alcohol at all hours of the morning and who are busily stuffing their pockets with young people's money and having these people coming to their establishments to consume alcohol. They are apparently the natural allies of the opposition.

If I have the choice of lining up with a bunch of avaricious purveyors of all-night alcohol who are greedily preying on young people or with every parent in South Australia who actually cares about whether their children are in a safe environment, guess whose side I will be on? I will be with the parents, not with greed and not with people who do not give a toss about the safe service of alcohol. So, congratulations, opposition. I hope you enjoy wearing that because that is exactly where you are. I want everybody in the parliament to understand that that is not where the government is.

We are not on the side of spivs who want to fill young people up with grog irresponsibly all night. We think it is reasonable that there should be three hours off when they can have a Nescafe. Goodness me, that is a radical move, isn't it? In three hours out of 24 you can have a coffee. That is point No. 1. That is the first group of people they have gone over to give a big hug to. Which is the second group of people they want to give a big hug to? It is people who are successfully prosecuted for breaching the provisions of the Liquor Licensing Act as licensees. That is their other group of friends.

They have the spivs selling grog to young people all night and they have the people convicted of breaching the Liquor Licensing Act, whom they want to give a big cuddle as well. My question is this: why should a parent, guardian or somebody who is trying to have some responsibility (not control or even advice) for the young person in their lives not have the opportunity of working out whether the venue they are proposing to go to is known for being unreliable in enforcing the law?

I think is quite reasonable that a parent should have access to that. I certainly would like to know. That is all we are talking about here. These are people who have actually been prosecuted; we are not talking about people against whom there is an allegation. We are talking about people who have been prosecuted who may wind up on this register where mums, dads, friends and relatives can actually check, if they want to, whether a certain venue has a reputation for problems. Why on earth would we want to conceal that from the public?

We are happy to have fine defaulters, for example, on a register. Terrific, go on there and find out who is not paying their fines—shaming people and all that. Nobody has a problem with that. I do not and I do not think the opposition does. But it is very different when you have breached the Liquor Licensing Act—no, that would not do. This is just ridiculous. Both the propositions that have been advanced by the opposition in here are directly opposed to reasonable measures, either to inform the public about unsafe environments or to protect people from their own stupidity and rapacious individuals who want to serve alcohol all night because they cannot stuff enough money into their pockets in 21 hours a day—they need 24 to get a little bit extra in. It is pretty simple. These are modest measures in the interests of public safety and in particular in the interests of younger people. Let's face it: there are not a lot of middle-age people in these venues at 4 and 5 o'clock in the morning.

Members interjecting:

The CHAIR: Order!

The Hon. J.R. RAU: And if there are, maybe they should be thinking about where they are, too. I am not one of them, I can say; I do not do that. So we oppose this. In short, the other amendments are of a piece, really. They are to do with the fees, this business about the listing and the break in trade. The good bit is that I will not keep repeating this afterwards.

Amendment negatived.

Ms CHAPMAN: Attorney, in the event that the compliance has been achieved—i.e., there has been notice given to the commissioner that the offending staff member who allowed the minor to buy the alcohol has since been relieved of duties—how is the process to work for the commissioner to remove that from the website, and what are the rules relating to that?

The Hon. J.R. RAU: The commissioner is obliged, under the new proposed section 135A(2); the commissioner must remove the conviction from the website not later than five years after the date of the relevant conviction. How in effect the commissioner does that—whether there is an alert put on the computer or what there is—is a matter of administration; it is not a matter of law.

Ms CHAPMAN: Attorney, if someone has complied, then, with the offending behaviour, as in the example, are they then stuck with waiting for the commissioner at his or her discretion to get rid of the blacklisting after five years, or is there going to be some process by which they can apply to the commissioner to have their name removed from the blacklist as a result of indicating the circumstances of compliance?

The Hon. J.R. RAU: The way I read this is that proposed section 135A(1) gives the commissioner a discretion in the first place as to whether to publish at all because it says the commissioner 'may' do so. It may be that the commissioner chooses not to because the offence is trivial or relatively trivial or there is an extenuating circumstance that persuades the commissioner not to do it. As I would read what this is actually saying, if the commissioner may or may not do something, I am pretty sure it would be within the scope—from an interpretation point of view—that the commissioner could equally remove something. Subsection (2) provides that it must be removed from the website no later than five years on.

So, the combination of those two things, it would seem to me, is clear. It may go on, and once it is on it may be removed pretty much at any time as long as that is not any longer than five years. It would simply be a matter of the person who is aggrieved by it contacting the commissioner, and the commissioner would have to determine whether or not they had a reasonable—

Ms Chapman: Case for removal.

The Hon. J.R. RAU: —case for removal.

Clause passed.

Clauses 96 and 97 passed.

Clause 98.

The Hon. J.R. RAU: I congratulate the Chair on the eloquence and simplicity of this. On behalf of the Chair (member for Florey), I move:

Amendment No 1 [Bedford–1]—

Page 64, after line 14 [clause 98(1), after inserted subsection (1a)]—Insert:

(1b) Without limiting the generality of subsection (1), the regulations may regulate, restrict or prohibit advertising, sponsorships and other practices designed to promote or publicise liquor and its consumption.

I do not oppose the amendment.

Ms CHAPMAN: I note the amendment moved by the Attorney on behalf of the member for Florey. It appears to make a prescriptive arrangement as to what the regulations can or cannot do that is very general but largely appears to relate to minimising excessive advertising in respect of alcohol and/or sponsorships. It then states 'and other practices designed to promote or publicise liquor and its consumption'.

On the face of it, it appears to be sending a message of conservatism in respect of the promotion of alcohol. If it was to say, for example, that there was to be no advertising in and around a child's primary school or a kindergarten, then I understand the importance of that; if it relates to allowing television advertising during children's viewing time or, more importantly these days, in games on electronic equipment, that might expose them to the promotion. If there were any analogy, I suppose it would be the significant restrictions we have on the promotion of gambling in respect of a sporting activity, which on the face of it is attractive to young people who might be tempted to get involved in such an activity that is not to their benefit and advancement.

I am with the member for Florey entirely in relation to what should be able to be done under the regulations. What I am not sure of is how these issues are already covered in respect of advertising restrictions in any event—and there are some national laws I am aware of in relation to that—where any of the examples I have used would suffice to cause a contravention and could not be continued and, in fact, the advertisers would probably be fined. At this stage, I have not had an opportunity to discuss it with our members to have a position on it, but I note what appears to be the intent here. We will certainly have a look at it between the houses to consider how it might be dealt with.

Alcohol and liquor, in Americanised wording, is a legal product that can be consumed by all but a small portion of the community. That small portion includes children and people who are intoxicated. In that category, we have many laws to protect them from accessing it, but it is a lawful product and, in fairness, most people would consume it responsibly and, therefore, as a lawful product, restriction on its advertising needs to be very tailored.

Between the houses, we will certainly look at how we might identify what is already there to protect against this and what is already available to the commissioner in respect of conditions that attach to a licence—for example, where a premises might operate from, the hours of trade and it not being co-located next to a children's facility. We will have a look at it, and I thank the member for bringing it to our attention. Obviously, we will try to consult as soon as possible with people on this matter.

Amendment carried.

Ms CHAPMAN: I move:

Amendment No 3 [Chapman–1]—

Page 64, after line 16 [clause 98, after subclause (2)]—Insert:

(2a) Section 138—after subsection (2a) insert:

(2b) A regulation required to be laid before each House of Parliament in accordance with the Subordinate Legislation Act 1978 that prescribes fees for the purposes of this Act may not prescribe or provide for any matter that is not prescribed in connection with such fees.

This amendment, which I know the Attorney has made some dismissive comment on, is to ensure that any regulation that sets the rules that are to apply to the fees for licensed premises needs to be clear of the clutter of any other regulation.

Essentially, that means that, instead of bringing in a set of regulations complementary to this legislation to set out all the regulations for application, two sets of regulations will have to be brought in: one to identify what the formula will be in respect of the fee structure for licensing and all the rest in the other. They can put in 10 others if they wish to, but they will not be allowed to introduce regulation for anything other than the fees in one set of regulations. This will enable the parliament to challenge the continued standing of that regulation if it is so offensive that it should not progress and the situation needs to be further considered.

In dealing with this bill, we are being asked by the government to accept that they will act in good faith and that they will consult with the industry about what the rules are going to be in respect of a new fee regime. Mr Anderson QC has identified what he thinks it should be. In fact, he has outlined a model that would give the government nearly $5 million a year more in licence fees from licensed premises, if it is applied against the current cohort of licensees, according to the information provided to us by the government. They say to us, 'Pass this bill. We're going to do all our consulting in due course. We'll draft up the model and discuss it with the industry. Trust us. All will be fine.'

We do not trust the government; that is the last thing we would do. We note that this is the secondary exercise that they are going to undertake. In doing that, we as a parliament want to be clear in our capacity to challenge that without causing the balance of regulation, most of which we expect would be perfectly appropriate, for the implementation of the new aspects of the bill. It is quite comprehensive change to the Liquor Licensing Act, so we understand that there will be a consequential regulatory regime that needs to be implemented.

That is all we are doing. We are separating the fees, which are a complete mystery to us at the moment. They are clearly not going to be what they currently are, which brings in about $2.6 million a year to the government. They are apparently not going to be up at the $7.2 million revenue range. They are going to be somewhere in between. We need to have some more detail about that to be able to identify whether any licensed premises is going to be unfairly caught in an alleged risk assessment process that would impose on them a fee far beyond what it should be.

If I have to come back and argue that Casablaba or somewhere is not to have a 5,000 per cent increase in its fees, then I will do that. I do not want to put a wrecking ball through other regulatory requirements that need to be in place to accommodate the change. The government know this. It is not uncommon for governments to put the whole lot up in the full knowledge that anyone who challenges a piece that is offensive will cause the whole of the regulation to fail. It is a tactic governments use all the time. It is true that, if it fails on the basis of the parliament saying to the government, 'No, we will not accept this,' the government has the power to issue a new regulation, and governments often do this. They just play tag team with the parliament and say, 'This is what's going to happen.'

Of course, there are a number of times when regulations are not challenged because the offending issue and its potential success in challenging it is, I suppose, subservient to the need to introduce other amendments. So, that is the basis of this. We would have thought that, if the government were at least honest in its assertion to us that it is going to negotiate this in full faith, it would welcome this regulation impost and that this amendment would then be supported. I will not hold my breath.

The Hon. J.R. RAU: I do not want the member for Bragg to have to hold her breath for too long or, indeed, to hold her breath at all, so I will respond. I have not had the chance to consult with parliamentary counsel or others on whether or not there are other aspects of this particular proposition that might be disadvantageous. If it was as simple as is suggested by the deputy leader, that may be one kettle of fish; if it is not, that might be another. For that reason—but not necessarily saying that if it were to bob up again we would oppose it—I oppose it now, but that is only so I can get proper advice about it.

Amendment negatived; clause as amended passed.

Schedule 1.

Mr KNOLL: In schedule 1, I find reference to part 5(9), which talks about trespassers at a private party. I have a couple of questions about private parties.

The CHAIR: Where are you looking? Where does it say that?

Mr KNOLL: Page 66, part 5(9)—Amendment of section 17AB. It makes reference to private parties, which is of particular interest. Obviously, this secondary supply of alcohol to minors is coming in and I want to get a better understanding of how this will be enforced. I understand that essentially what we are saying is that you cannot give alcohol to minors except if you are a responsible adult or you have the consent of the responsible adult and the supply is consistent with the responsible supervision of the minor.

My question is: how are we actually going to do this in practice? Is it going to be permission slips? Do you check the kid in at the door with his two lemon Ruskis, look at his permission slip and that works? That is the first thing. The second point is: what happens if kid number one with his two lemon Ruskis happens to flog some sort of Midori and lemonade from some other kid who is at the party and has three drinks instead of two? Will that make the supervising adult a criminal? When police go in to try to police this thing, are they literally going to sit there, tick off the permission slips and breath-test every kid who is in the venue to try to ascertain whether he or she is over or under what their permission slips says?

The Hon. J.R. RAU: It is a good question. This is one of the matters that we did spend a bit of time talking about because we were trying to deal with the problem without inadvertent capture of other things. I will explain to you what the mischief is that we are trying to deal with. I do not think anyone would argue if a minor's parent or guardian is in place and is a responsible adult and says, 'Look, you can have a shandy,' or, 'You can have a little glass of something.' Nobody wants to interfere in that and certainly not me. That was not the problem.

Where we start to get into difficulty is in the following scenario. The member for Schubert has a younger brother. He revealed that the other day, although it was not the first time he had revealed it; maybe he has a number of them, actually. Let's say that we jump into a time machine and go back to the moment when the member for Schubert turned 18, which seems but a twinkling of an eye ago. At that moment he may have had a 14-year-old or a 16-year-old brother, maybe both, and he would have been able to lawfully go to the pub and buy as many lemon Ruskis or whatever as he chose to buy. He might have decided that it would be terrific to supply his younger brother and all his mates at their cricket club annual bash with lemon Ruskis.

What we wanted to capture was that circumstance where, technically, an adult is purchasing the alcohol but they are not a responsible adult, if the member understands me. They are not so much a person who is responsible for the younger person and acting responsibly as some convenient person who happens to be of an age where they can purchase alcohol and they are used as a method by which those people can circumvent the law.

Mr Knoll: A booze mule.

The Hon. J.R. RAU: Exactly. One often sees this referred to in South Park, where this happens frequently, but I will not spend too much time on that. The point is that that is what we were trying to deal with. It is not so much a matter of getting slips and whatnot; it is a matter of the relationship between the purchaser and the supplier of the alcohol and the young person. That is what we were trying to draw the distinction between. Hopefully, that is how it will work in practice.

We did not want to just say something as crude as, 'Look, anybody who is over 18 can buy alcohol.' We wanted to leave a carve out for the adult who is the responsible parent-type figure, but still make it difficult for the older brother, older sister or unrelated friend (for want of a better word), who wants to cooperate in the supply of alcohol, to do that without there being a problem. That was the point of it.

Mr KNOLL: Who is a 'responsible adult'?

The Hon. J.R. RAU: A responsible adult is, I guess, a question of fact and degree. There is a definition in clause 70 on page 47:

responsible adult in relation to a minor, means an adult who is—

(a) a parent of the minor; or

(b) standing in a position…of…;or

(c) the spouse or domestic partner of the minor.

Ms CHAPMAN: I also have a question on this aspect. It is proposed, in relation to the secondary supply offences relating to minors and being at someone's residence, that a prescribed place where this can occur, apart from a residence or a public place (which is presumably a park or a zoo or something)—

The CHAIR: The beach.

Ms CHAPMAN: Yes, the beach, a helpful contribution by the Chair, thank you—to be other places by regulation. Where else does the government consider this will apply? At this point, we have a prescribed place for the sale of alcohol, we have private premises, we have public space. I am just trying to work out where else we are talking about. Would it be renting a hall at the local footy club or something, which does not have a licence, or what?

The Hon. J.R. RAU: I do not know what the answer to that is, but I think it was put there on the basis that, if in consultation something emerged that we had not thought of, there was an opportunity to put it in. We do not have anything in mind in particular at the moment.

Ms CHAPMAN: In relation to the offences, overall there is a substantial increase in very severe penalties for an adult who either provides alcohol to a minor or allows them to enter premises, etc., where it is sold and so on. In the course of it, there has been a reduction of what used to be the maximum for under-age minors who knowingly sought to have alcohol. I suppose to some degree this relates to how that is going to be managed, and I think the member for Schubert asked that question.

At the moment, we have quite a severe maximum penalty available for children, and we know that very few are ever prosecuted. Is there some reason why we are reducing this down to $2,500, because some 17 year old who has significant financial means may attract, reasonably, a much higher penalty? I want to understand where that has come from.

The Hon. J.R. RAU: It is a very good question. Now that I am reminded, the reason it was changed came through the feedback we had in consultation where DCSI was of the view that in a sense the young person here is the victim (not the right use of terminology) rather than in a sense the perpetrator, so it is a question about to what extent there is any utility or, philosophically, an objective, good reason to put that much emphasis on the young person. As the member for Bragg has said, there is also the fact that the actual prosecutions for this are virtually negligible.

In the end, I was of the view that in practical terms it is still illegal and there is still a deterrent there. Whether the scale of the deterrent adds any value between what we are suggesting here and what it is now makes any material difference I think is very difficult to say. I am not especially committed to that proposition one way or the other. I can see both sides of that argument.