HANSARD
SITTING CALENDAR
SEARCH
LIVE BROADCAST
Hansard Dynamic Member Index
Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-10-13 Daily Xml
Contents
Pdf Xml

LIQUOR LICENSING (PRODUCERS, RESPONSIBLE SERVICE AND OTHER MATTERS) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 9 September 2009. Page 3120.)

The Hon. T.J. STEPHENS (15:54): I advise that the opposition supports this bill. We have consulted with industry stakeholders and listened to a number of arguments for and against the bill. We have certainly received quite a lot of feedback. At the end of the day, the Australian Hotels Association and industry stakeholders welcome the proposed amendments, so we will support them because, as Liberals, we listen to small business.

On the positive side of things, the improvements to a producer's licence is a good result for producers and consumers, and we welcome these changes. However, I place on the record some of my own concerns. This bill is designed to make Labor sound tough. It is part of the usual Labor spin about being tough on crime and tough on drugs. The trouble with this bill is that, in its rush to get a bill into parliament before the election, Labor has botched it.

Let me explain my concerns. Section 24 of the bill amends section 108 of the Liquor Licensing Act. It used to be the case that, if a licensee served an intoxicated person, the licensee was guilty of one offence. The bill creates a second offence for publicans. Under the proposal, licensees will also be guilty of an offence if they serve someone whose speech, coordination or behaviour is noticeably impaired by alcohol.

Let us examine the expression 'noticeably impaired'. The proposed bill does not say 'significantly impaired'; it does not say 'grossly impaired'—it says 'noticeably impaired'. In my experience, it is simplistic to describe someone as either drunk or not drunk. Intoxication is a state that occurs along a continuum and the high-end symptoms could include keeling over, vomiting, shouting, fighting or planning to elect Kevin Foley as the next leader of the parliamentary Labor Party!

At the low end of the intoxication continuum you may start to become a little more gregarious, perhaps more talkative. These signs are noticeable. However, if you are at the low end of the intoxication continuum you are generally not a danger to yourself, the licensed premises or society as a whole. There is no reason to turn off the tap when a customer is noticeably at the low end of the continuum. Honest, hard-working publicans and club licensees should not be found guilty of an offence simply because a person has become more gregarious.

This bill is the wowsers at work; it is the nanny state gone too far. By all means stop people from bingeing and becoming falling-down stupid drunk. There is nothing wrong with people having a quiet drink at the end of a long day or a long week, seeking to visibly enjoy the company of good friends, to intimately share stories and tell tall tales—all of these signs may be noticeable but they should not be criminal.

Will every footy player singing their club song be noticeably impaired? In my view, the minister clearly has not thought this through. If you want to focus on people who are very drunk then say 'very drunk' or 'significantly intoxicated' or something that clearly indicates that the legislation focuses on the high end of the continuum and not the low end.

We have heard that the regulators need the definition of 'intoxication' clarified because they have had difficulty in proving that a person was drunk. With the greatest of respect, what a load of rubbish! I realise that this must come as a great shock to the minister but there is a fair amount of drinking going on in South Australia and a percentage of these drinkers are getting drunk. A smaller percentage, on any given night of the year, get very drunk. There is no shortage of intoxicated people in South Australia.

The fact that the Office of the Liquor and Gambling Commissioner has not been able to find one of them since the Rann Labor government was elected has nothing to do with the inadequacy of the legislation but says volumes about the priorities of the minister and her department. If the Office of the Liquor and Gambling Commissioner wanted to prosecute a drunken person, it could find a very intoxicated person easily enough and it does not need a change in the legislation to go down that path. If it is arguing that it has problems proving intoxication in borderline cases, then it is barking up the wrong tree. Remember, it is not the drunk who is guilty of an offence, it is the licensee.

In both my official and unofficial capacities I have had a lot of dealings with hotel proprietors and club licensees. In my dealings it is clear to me that most licensees are busting a gut to comply with all the laws and regulations, codes of practice, directions from the commissioner and other red tape that gets imposed on them on a regular basis. The majority are doing the right thing. They have systems and procedures in place to prevent people from getting too drunk. They train their staff and they obey the law.

If a person is borderline intoxicated then the government should not be prosecuting licensees. Education for licensees—yes; training for venue staff—yes; a warning at the very most. However, if there are questions involving on which side of the drunkenness line a customer falls, then do not prosecute the licensee. That is why it is important to get the legislation right. The law should be clear. A licensee should be able to easily understand where the line is between intoxicated and okay to serve.

Personally, I believe that the minister's bill makes things worse. It pretty much declares that an offence is committed if anybody is visibly enjoying themselves in a pub or club. Under this bill just about every licensee will be committing an offence on every trading day. What that means is that licensees will have to rely on the goodwill and common sense of police officers and the Office of the Liquor and Gambling Commissioner inspectors not to prosecute them. How can liquor licensees be expected to run their business when, at any time, some petty official can decide to declare their behaviour to be criminal? Surely this is not the right way to regulate an industry. The minister says that similar clauses operate in other states, but that is simply not good enough. We need laws that take into account the practical realities of running a business in the liquor industry. We do not need laws that are dreamt up by the nanny state crowd who oppose people having any fun at all.

I understand that, after consulting with industry, the minister has agreed to amend her own bill. It is a pity that she did not consult up-front and get her bill right in the first place. On behalf of all liquor licensees, I only hope that the new defence she has created to counteract the possible implications of a new offence is broad enough to avoid innocent publicans and licensees from committing unwarranted criminal offences. So, for the sake of thousands of South Australian small businesses, I hope the minister has this right. South Australian licensees should not have to deal with badly thought out legislation just because the minister is desperate to get an article in tomorrow's Advertiser.

I move to my next concern: section 22. Section 22 of the bill amends section 104 of the Liquor Licensing Act. It proposes that, if at the end of having a meal at licensed premises you have not finished your bottle of wine, you have the legal right to take the remainder of the wine with you. This right applies despite any other provision in the Liquor Licensing Act. This looks like another clause that has been proposed without being properly thought through. What happens if the licensee has removed the patron for intoxication? What happens if they have been removed for bad behaviour, fighting, abusing staff or criminal damage? No matter how bad the behaviour of the customer, will they be able to take their booze with them? Will the problem be moved on to the streets and the surrounding precinct? I can see it now: Adelaide streets full of drunks, swigging from their bottle, because minister Gago has given them the legal right to keep drinking on the street.

What happens if the venue is in the middle of a dry zone? Dry areas are established under the Liquor Licensing Act, but the minister's bill may give a drunken customer the legal right to take away their booze, despite any other provision of the Liquor Licensing Act. So, does this new right override the dry zone laws?

Under this bill, if I want to drink in a dry zone, it looks as though all I have to do is buy a bottle of booze with a meal, tell the owner that I do not want any more food and walk out onto the street with a full bottle. This clause appears to be poorly thought through, unless the minister can explain things more clearly.

As a Liberal, I am guided by some fundamental philosophies, but now is not the time to set them out. However, this bill tramples on a few basic beliefs. Businesses need clear laws that are easy to follow. This bill fails the test. On the face of it, every liquor licensee will be committing an offence on almost every trading day. Adults should be free to make their own decisions about how they live their lives. This bill sends the message that this government opposes social drinking, and minister Gago is now the captain of the anti-fun police.

I oppose the philosophy behind this bill. I object to the poorly thought through manner in which the minister proposes to carry out her nanny state philosophy. I object to the possible impact this will have on thousands of South Australian small business people trying to make sense of their increasingly complicated regulatory scheme. I do not think behaviour should be criminal just because it is noticeable, and I think it is dumb to give drunks the right to take their unfinished booze on to the streets or into a dry zone. Having put that on the record, the opposition will be supporting the legislation.

The Hon. D.G.E. HOOD (16:03): I indicate that Family First is broadly supportive of this bill, which will operate to better regulate the supply and sale of liquor by holders of producer licences. Family First particularly welcomes the more detailed guidelines that the bill provides for the responsible service of alcohol and, in particular, the amendments recently tabled by the minister, which I think add clarity. I had some initial concerns about them, but I do think that the amendments reduce any potential for misunderstanding.

A few weeks ago I was privileged to visit the Elura Drug and Alcohol Rehabilitation Clinic in North Adelaide, which is a rehabilitation service administered by DASSA. I assure members that it was a fact-finding mission and nothing else.

The Hon. G.E. Gago interjecting:

The Hon. D.G.E. HOOD: Yes; it's clear, isn't it? You would expect nothing less. Elura is a facility where drink drivers are obliged to attend what I understand are called section 47J assessments if a court prescribes a driver's concentration of alcohol on more than one occasion within a three-year period. The service decides whether or not a person is what is deemed to be a habitual drinker. If it makes such a finding, it advises the Magistrates Court and the person is subsequently disqualified from driving until further notice.

I want to put on record my appreciation for the at least hour-long discussion I had with Dr Keith Evans, with whom I have not always seen eye to eye. I certainly appreciate the time he took to present the centre to me, the discussion we had regarding drug and alcohol rehabilitation service operations in the state and, indeed, the insight he was able to give me into DASSA's program. I came away with the impression that he and the counsellors at the service are motivated and sincere people struggling in a system that could operate much more effectively if they were given the legislative framework to do so, particularly with respect to police drug diversion initiatives.

The DASSA office is also one of many that administers the police drug diversion initiative. Frankly, I am astounded at how the system has been set up. In particular, section 40(1) of the Controlled Substances Act works to effectively decriminalise simple possession of small quantities of illicit drugs. Upon being apprehended by police, for an offender found in possession of small quantities of drugs, apart from cannabis, the regime found in division 6 of the Controlled Substances Act operates to provide that, should the offender attend a meeting at the DASSA counselling office, such as Elura that I visited recently, and not be terminated from that program, then no prosecution can proceed against them. I have been advised anecdotally on more than one occasion that, in many cases, when offenders do not attend the counselling session there are rarely any consequences at all.

The provision means that there is an inconsistency in dealing with simple cannabis possession offences, which are dealt with in section 45A of the act by way of $150 or $300 fines if the person is found in possession (pursuant to schedule 5 of the Controlled Substances Regulations 2000), compared with the possession of small quantities of so-called harder drugs for which there is no financial penalty. I find this quite amazing.

Family First's position is that possession of any illicit drug, which is the subject of a division 6 counselling session, such as you would receive at the Elura clinic, excluding, perhaps, the possession of trace amounts of a drug, should also be subject to a fine similar to the fine imposed for the possession of cannabis. In this way, people found in possession of a drug face a real penalty, and there is no argument that the possession of small quantities of drugs is legal or has no penalty associated with it, as is currently the case.

I also believe that, in cases where offenders are charged with being drunk and disorderly (turning back to the contents of this proposed bill), they should be required to attend this DASSA counselling. Dr Evans indicated to me that DASSA would be 'willing' and 'keen' (to use his words) to provide more counselling in these sorts of circumstances for those who may be alcoholics.

The counselling sessions described in division 6 of the Controlled Substances Act are the first port of call for most people who have started experimenting with drugs, and it is the first time that they have contact with the so-called system. It is important that we catch early offenders and give them all possible assistance before their drug or alcohol abuse becomes worse. In any event, Family First is exploring a private member's bill at a future stage to address this issue and provide for mandatory counselling for people who are arrested or charged with drunk and disorderly offending or other illicit drug offences.

Research revealed this week from Victoria's Deakin University and the National Stroke Research Institute indicates that Australians are among the heaviest drinkers in the world. We drink more than Americans, Canadians, Swedes and Norwegians. As a consequence, it is no wonder that we are spending billions of dollars a year mopping up after our excessive consumption of alcohol, something in the order of $16 billion per year. Approximately 3,000 Australians die every year due, directly or indirectly, to alcohol consumption.

As Family First Senator Steve Fielding has pointed out on many occasions, we have a culture of binge drinking in this country, with Australians spending some $672 million in August alone at liquor outlets across the country. This is an increase of something like 20 per cent over the same month last year. The report found that 98,000 cases of alcohol-related disease could be prevented by cutting drinking habits by a third. The Victorian health-backed study found that reducing our average intake of 773 standard drinks per year per adult to Norway's figure of 505 drinks a year would save many lives and approximately $1.2 billion per year in health expenditure.

For these reasons, Family First supports the provisions in this bill that expand section 108, which relate to the sale and supply of liquor to intoxicated persons. The bill also makes it an offence to serve liquor to a person in circumstances in which the person's speech, balance, coordination or behaviour is noticeably impaired and it is reasonable to believe that the impairment is the result of the consumption of liquor. In the same circumstances, patrons can be ejected and can now also be refused entry.

As the minister has noted, the current defences will still apply. It is a defence for bar staff if the defendant believed on reasonable grounds that the person to whom liquor was supplied was not intoxicated and for licensees and responsible persons if the defendant exercised proper care to prevent the sale or supply of liquor in contravention of the provision.

There are still subjective indications, and it will no doubt be tremendously difficult to enforce. Indeed, I think the Hon. Mr Stephens outlined some of the concerns, which I think will be practical concerns, in the implementation of these new provisions. There was a stage in my life when I worked as a bartender for a number of years as I paid my way through university. I can assure you that, when a bar is full of people, the music is loud and there is lots of activity, it can be very difficult for a bartender to judge exactly how drunk some patrons are.

One must remember that being drunk is a sliding scale, from being slightly over the limit to being very drunk indeed; exactly where the cut-off point is becomes difficult to judge and no doubt will be applied differently by different bar staff. However, the extra objectivity in the new rules probably provides some useful guidance, and I certainly think that the amendments also assist. The extra clarity will be welcomed by the industry.

Perhaps the bulk of the bill is taken up with more sensibly dealing with the way in which the producer's licence operates, after, as I understand it, fairly detailed consultation with the industry. For example, currently, the Liquor Licensing Act 1997 allows the holder of a producer's licence to sell liquor that is their own product and to sell or supply liquor for sampling.

The bill allows holders of a producer's licence also to provide liquor other than their own product as samples and comparative tastings and to be offered to consumers in a designated dining area. Of course, this really has to do with the situation of many wine cellars now offering restaurants and cafes, allowing them to offer additional wines—that is, other producers' wines—without having to apply for a second licence, thus reducing administrative costs, and we certainly support that. There are also new limits on the amount of liquor that can be provided as samples, and this is welcome, too.

Family First realises that the wine and grape industry is currently struggling to some degree. There was a report this week that export markets for wine reduced from some $3 billion in 2006-07 to $2.35 billion in the past 12 months. This is a substantial decline. I think that anything we can do in this place to reduce red tape and reduce costs for this industry is welcome.

With those words, I indicate Family First's general support for the bill. Amongst other things, we are pleased to see that it will better regulate the sale and supply of liquor in South Australia.

The Hon. A. BRESSINGTON (16:12): I rise to indicate my support for the bill before us. It makes comprehensive changes to the Liquor Licensing Act, particularly to the provision related to producers and the activities allowable under their licences. The move to support smaller boutique wineries is sensible and, from the feedback I have received, the proposed reduction in red tape, and subsequent costs to businesses, is long overdue.

The bill also makes changes to the responsible service provision in the Liquor Licensing Act, most of which are without contention, and they will lead to be easier enforcement. However, I have several concerns about clause 24, which amends section 108 (liquor not to be sold or supplied to intoxicated persons), which includes the additional offence of supplying alcohol to a person where their speech, balance, coordination or behaviour is noticeably impaired and it is reasonable to believe that the impairment is the result of the consumption of liquor.

This is by far more descriptive than the existing offence, which provides 'liquor is sold or supply on licensed premises to an intoxicated person', and I believe is intended to make it easier for licensees, bar staff and those enforcing the act to assess a person's level of intoxication. While I can see this is true, particularly for those enforcing the act, I have several concerns arising from the wording of the provision.

I have been contacted by several constituents living with a disability who fear that the new wording may adversely impact on their ability to purchase alcohol. This may be particularly true of those living with an acquired brain injury or intellectual or physical disability. During the briefing provided by the minister, my office was assured that consultation had been undertaken with disability groups to address these concerns. So, one can imagine my surprise when I contacted several prominent disability groups, who not only had not been consulted but also were not aware of the bill. These included the Julia Farr organisation and the Brain Injury Network of South Australia. Each group expressed concerns about the proposed wording and recounted examples of where their clients have been deemed to be intoxicated under the present act, based on nothing more than the symptoms of their disability.

Subsequently, I contacted the minister's office, to be informed that the only group to be consulted was Disability SA, which is really government consulting with government. However, a redeeming feature is that I believe the minister's intention is to consult more broadly in relation to the complementary code of practice that is to be developed following the passage of this bill. I seek a commitment from the minister prior to committee that this is actually her intention.

I add that I have some concerns about the responsibility we are now further placing on the shoulders of bar attendants to make these kinds of assessment. I was telling someone from the minister's office about my experience on about the third night of working as a bartender in a front bar, when it was necessary to inform a patron that I was not going to serve him any more rum and coke. I was literally pulled across the bar by the lapels of my jacket and threatened that, If I did not continue to serve him, it would be to my own detriment.

The Hon. B.V. Finnigan: Bundy or white rum?

The Hon. A. BRESSINGTON: Bundaberg; we are talking about Queensland.

An honourable member interjecting:

The Hon. A. BRESSINGTON: No, I headbutted him actually, which was the next part of my story, had you let me finish. It was necessary to headbutt him to get him to put me down.

The Hon. T.J. Stephens: Did he wince a bit?

The Hon. A. BRESSINGTON: He fainted. Members may think it is amusing, but back in those days it was quite a disturbing experience for me to have to go to those lengths to have my feet touch the ground again. In the hospitality industry, especially in hotels, we have, as the Hon. Dennis Hood said was his experience, students working to pay their way through uni. We have young people working in those situations and they are faced with those sorts of situation, especially in the front bars of hotels, and it can be very distressing for them, even under the current laws. Without considering that we will now extend the requirement for them to assess even more detailed behaviour, it is a matter of concern to me.

My office has been told by the AHA that it will provide training for staff to deal with this, but I remain sceptical that the level of training will be adequate to ensure that bar staff are not open to be threatened and intimidated by people used to having their way in a particular pub. I also take on board some of the comments of the Hon. Terry Stephens. We are trying to moderate people's drinking patterns and deal with heavy drinking, and I find it a little curious that in this place we would defend a person's right to drink to excess or to the point where their behaviour is disruptive and then say that—

The Hon. T.J. Stephens interjecting:

The Hon. A. BRESSINGTON: If a bar attendant is to make an assessment that somebody has had too much to drink, as the Hon. Dennis Hood said that will be a very subjective call. It may just be that the person who is being seen as being disruptive views himself or herself as simply having a good time and it makes it very difficult. My concern is for the staff and for people who do not know when enough is enough. I know that a code of conduct is coming out and all these things will be prescribed in regulation, and I hope that we are able to do this for the protection of everyone involved and not just for the person who is drinking in the bar and having a good time but is a nuisance to everybody else.

I have raised concerns about Elura's assessment process in this place on a number of occasions. In regard to people who are constantly confronted with having their drinks supply cut off because they are a pain in the neck, there should some sort of referral service or card that bar attendants can hand out, as happens with gambling, where certain people may be invited to call Gamblers Anonymous and get help. I urge the minister to consider that the assessment processes and tools of Elura have caused some concerns in the past involving, for instance, people who have gone there with alcohol or drug problems having their driving licence suspended. I have previously raised the case of a person who went there for three months and was then issued with a certificate actually saying that he was cured of his addiction, which is what every addict wants to hear. Subsequently he went out, continued to use, got on his motorbike and had an accident and, when his family tried to intervene after the certificate had been issued, he said that he had verification from professionals that he was no longer an addict and that it was not a concern any more.

A balance needs to be considered. That practice may have changed—it was about 18 months ago that I raised the issue in this place. However, if we are to refer people to services like this we need to be sure that those services, as an unintended consequence, will not have a detrimental effect on a person's behaviour. In saying all that, I support the bill and will seek from the minister that undertaking in committee about further consultation with the disability sector. I am hopeful that this bill will do what it is intended to do, namely, try to curb the drinking patterns of people in public places.

The Hon. G.E. GAGO (Minister for State/Local Government Relations, Minister for the Status of Women, Minister for Consumer Affairs, Minister for Government Enterprises, Minister Assisting the Minister for Transport, Infrastructure and Energy) (16:22): I thank all honourable members who contributed to the second reading debate. I will seek to answer some of the questions and comment on some of the issues raised during the second reading debate and then, perhaps, deal with any outstanding matters during the first clause of the committee stage, if I could beg your indulgence, Mr Acting President.

In relation to comments made by the Hon. Terry Stephens about the extended definition of 'intoxication' involving the word 'noticeably', he is absolutely right, as is the Hon. Dennis Hood, and the Hon. Ann Bressington also alluded to it. There is an element of subjectiveness to this. It is not a definitive measure. However, what we have found in the past is that the current act makes it an offence to serve alcohol to an intoxicated person. That is an existing offence and there is already a high degree of subjectivity related to that.

What the industry has done is it has come to us and sought assistance to provide greater clarification to assist it to identify in a simpler and easier way what that might entail. That is why we have added those extra provisions around impairment of speech, balance, coordination or the behaviour of a person to whom the liquor is sold, and noticeable behaviours. That is the point, I guess, that it has to be noticeable, that is, those behaviours need to be of such a magnitude that it is brought to the attention of the licensee or bar staff—or police, for that matter.

The honourable member suggests that, if someone is singing and having a good time, and being a bit rowdy, that might result in a person being refused service. That is not so. It is a nonsense to suggest that, just because a person or a group of people are singing after a successful game of football or netball, they are intoxicated and will therefore be refused service. Clearly, the assessment around intoxication is broader than that. It is the same with boisterousness: it needs to be linked to an impairment, and the impairment linked to the consumption of alcohol.

I accept that there remains a degree of subjectivity and that this does not overcome all elements of subjectivity. Nevertheless, I believe it provides clearer direction and is an improvement on the current provisions. This provision is consistent with other states. I am advised that it is present in most other states and it is clearly not creating social demise throughout the rest of Australia, so it is obviously a workable provision in other states.

This bill has been consulted to death. I am not certain how many years it has been in the making, but it has been a long time. An enormous degree of consultation has occurred with industry representatives, including the AHA, police, unions, a whole range of community organisations, and, as far as I am aware, they all support this definition of 'intoxication'. I will clarify that with my adviser during the committee stage, but my understanding is that we have broad support across the industry, police, unions and other organisations that, although they are not seeing this is a panacea, nevertheless, they believe that it is an improvement and are supporting it.

This is about trying to protect all of us, not only patrons who want to have an enjoyable night out and do not want their night spoiled but also bar attendants, many of whom are young people, like the Hon. Dennis Hood, who serve in bars in pubs and clubs during their student years. It is about protecting their health, safety and wellbeing, and it is also about protecting the licensee. This provides some clarity regarding their legal obligations as well. It also assists the police, I have been advised, in helping them to make their assessments of intoxication.

In relation to the consultation with the disability sector, this is an issue that is very dear to my heart, personally, and that is because both of my uncles suffered from muscular dystrophy. They suffered from a form that was mature onset, which meant that they were adult men. They had loss of motor movement, particularly fine motor movement, and it also affected their vocal chords, so it could be said that they sounded intoxicated. I was very aware and very sensitive to the way that they were treated in public because, in fact, their symptoms mimicked that of someone who is intoxicated.

We have discussed the matter with Disability SA. We approached that group because we believed that to be the peak organisation representing disability organisations. Certainly, consultations will not be exclusive to that organisation. I am committed to having an extensive consultation with those disability groups that want to participate and contribute. These matters, we intend, will be dealt with in the development of the code of practice, and we hope that that will outline training requirements for industry staff, amongst other things.

It is my intention that this training, as well as a new fact sheet, will be developed by the Office of Liquor and Gambling. That will further assist people to differentiate between someone who is intoxicated and someone who could be suffering from a disability. If they have other suggestions for mechanisms to deal with that, then I am very open to listening and taking on board that advice as well. With those remarks, I thank honourable members for their contribution and look forward to this being dealt with expeditiously through the committee stage.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. G.E. GAGO: The Hon. Terry Stephens asked a question in relation to a partially consumed bottle of wine being given to an obviously intoxicated person. The advice I have received is that a licensee is not required to give a partially consumed bottle back to someone whom they assess as being intoxicated; however, given that the bottle is actually the property of that person, if the person insists that their property be returned to them the licensee is required to return it.

The honourable member also asked about a person transporting a partially consumed bottle, removed from licensed premises, through a dry zone. The advice I have received is that they will be permitted to do that, as long as they do not consume that alcoholic beverage whilst in the dry zone. So, they can pass through a dry zone with it in their possession. It is pretty obvious when someone is on their way to their vehicle or on their way home as opposed to someone sitting on a park bench with a bottle open and drinking from it; I think there is some common sense around those matters.

The Hon. S.G. WADE: I welcome the minister's commitment to respect the rights of people with a disability, both in the construction of the bill and the operation of the act, but I would like to clarify something. The minister suggested that the department had consulted Disability SA and that Disability SA was the peak body for disability organisations. Did the minister actually mean Disability SA? As I understand it, Disability SA is a division of the Department for Families and Communities, which is hardly a peak body; it is a government department. If the minister did mean to refer to Disability SA, could she give an indication whether anyone with a disability or any non-government disability organisations have been consulted on this issue?

The Hon. G.E. GAGO: The honourable member is quite right; it is a government agency. However, it is highly regarded as an overarching body that provides services to a wide range of disability groups, and we believe it is able to reflect the broad views of the disability sector.

I have quite clearly put on the record our preparedness to consult on issues, and issues around disability will be dealt with in the code, so consultation on details does not need to occur until later. I have given a very firm commitment that we are prepared to consult much more broadly than that in the development of that code.

The Hon. S.G. WADE: I do not feel reassured at all. We are used to a government which tells the community what it will do—

The ACTING CHAIRMAN (Hon. I.K. Hunter): Mr Wade, you ask questions of the minister in the committee stage; you do not make a speech.

The Hon. S.G. WADE: This is a contribution to clause 1. I understood that I had the right to make a contribution to clause 1, and I propose to do that.

The ACTING CHAIRMAN: A contribution to clause 1; not a speech.

The Hon. S.G. WADE: I am sorry. I was in my first sentence; it was hardly a speech.

The ACTING CHAIRMAN: It seemed to me that that was the way you were going. Please confine yourself to asking questions on clause 1.

The Hon. S.G. WADE: I propose to make a contribution in response to the minister's response to my question. My response to the minister's question is: we are used to a government that tells the community what it will do, in the name of consultation; now we have a government that tells us that it will talk to itself and call that consultation. I make it clear to the minister that the disability community expects far more: the disability community expects to be consulted publicly and openly as individuals and as organisations.

The Hon. T.J. STEPHENS: Minister, I also have a concern with regard to policing and police resources. Does this open a bit of a Pandora's box? Given that the city is a dry zone, if the police come upon someone with an open bottle of alcohol on a busy Saturday night and the response the person gives to the police is, 'Well, I've been to a restaurant, and I brought this bottle out of the restaurant,' it will be very difficult, knowing how stretched our resources are, for the police to check that statement. We could be opening a Pandora's box with this.

The Hon. G.E. GAGO: As I have indicated, there has been extensive ongoing consultation in relation to this bill for an extraordinary amount of time, and the police have been involved along the way. The police are supportive of this bill, and they have not raised any issues of concern around resourcing in respect of that particular matter.

I have also been advised that, in relation to carrying partially consumed liquor when passing through a dry zone, the onus is on the person with the liquor to be able to demonstrate that they are, in fact, passing through. The onus would be on them to demonstrate where they had purchased the bottle, where they had been dining that evening, the location of their vehicle or home or where they were travelling. So, the onus would be on the person to justify and explain their actions at that time.

The Hon. T.J. STEPHENS: I appreciate the minister's response but, to be fair, I go back to the point I have just made. It is unworkable, and the police would have to acknowledge that fact. I really am concerned. We talk about Hindley Street and disruptive behaviour and that sort of stuff. At the moment, if someone was wandering down Hindley Street with a bottle, the police would pounce on them pretty quickly. I think the minister is opening a bit of a Pandora's box with this. I do not know whether the minister can give me a satisfactory answer now, but it is something that might need tweaking further down the track.

The Hon. G.E. GAGO: I do not know about tweaking but, anyway, I will not go there. As I have said, the police have been extensively involved throughout the consultation on all of this bill. It is not a matter the police have raised as a concern. It is outrageous to say that the police would find this unworkable. That is not what the police have indicated at all. In fact, currently that same predicament, or almost the same predicament, already exists for those persons carrying BYO alcohol. I have been advised that, currently, a person can carry BYO alcohol through a dry zone to a restaurant. So, that situation currently exists, and I am not aware that has created any major problems or resource implications for our police service.

Clause passed.

Clauses 2 to 23 passed.

Clause 24.

The Hon. G.E. GAGO: I move:

Page 13, after line 24—After its present contents (now to be designated as subclause (1)) insert:

(2) Section 108(2)(a)—delete paragraph (a) and substitute:

(a) if the defendant is the person by whom the liquor was sold or supplied—

(i) in the case of contravention of subsection (1)(a)—that the defendant believed on reasonable grounds that the person to whom it was sold or supplied was not intoxicated; or

(ii) in the case of contravention of subsection (1)(b)—that the defendant believed on reasonable grounds that the impairment of the speech, balance, coordination or behaviour of the person to whom it was sold or supplied was not the result of the consumption of liquor; or

This is quite a straightforward amendment. The bill contains a proposed amendment, under section 108, which is designed to assist in the clarification of the term 'intoxicated'. The objective of the amendment is to enable prosecutions to be more easily brought about and thus to discourage the serving of liquor to intoxicated persons.

Shortly after the introduction of the bill, the AHA raised the concern that proposed new section 108(1)(b) did not reflect the defence contained in the current 108(2)(a), which will not be amended by the draft bill, and suggested an amendment that the AHA felt would address that concern. Advice was sought from the Crown Solicitor's Office in relation to the expansion of section 108 generally. Advice was obtained from the Crown that suggested that the AHA's proposed defence was fairly confusing in its drafting. The Crown suggested a modified drafting of AHA's proposal which maintained the intent but provided further clarity.

The Crown further advised that, although an amendment to the defence provisions was not legally necessary, its view was that the defence provision already pertained throughout those sections. Nevertheless, the Crown's view was that the proposed amendment was a very low risk in terms of interfering with the application. In light of that, we have put forward this amendment.

The Hon. T.J. STEPHENS: Given that it was only today that we received a copy of the amendment, can the minister give us an assurance that this is the amendment that made the AHA comfortable with this bill?

The Hon. G.E. GAGO: My advise is that, yes, it is.

Amendment carried; clause as amended passed.

Remaining clauses (25 to 33), schedule and title passed.

Bill reported with an amendment.

Bill read a third time and passed.

PARLIAMENTARY BUSINESS
MEMBERS
GET INVOLVED
ABOUT PARLIAMENT
VISIT
LEGISLATIVE COUNCIL
HOUSE OF ASSEMBLY
CONTACT