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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2008-11-13 Daily Xml
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LIQUOR LICENSING (POWER TO BAR) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 11 November 2008. Page 574.)

The Hon. R.P. WORTLEY (15:39): Speaking earlier this year on the Firearms (Firearms Prohibition Orders) Amendment Bill and the Serious and Organised Crime (Control) Bill, I referred to the government's strategic program of law reform in particular areas of criminal law and the justice system.

The bill before us today represents an associated element in the government's response to issues of criminal and antisocial behaviour. It bears particular reference not only to the activities of outlaw motorcycle gangs in hotels but also to the behaviour of undesirable patrons who threaten and harass patrons and workers in licensed premises.

Section 125 of the Liquor Licensing Act 1997 provides that a licensee or person responsible for licensed premises can bar a person from those premises for any of the following reasons: if the person behaves in an offensive or disorderly manner; if the person commits an offence; if the licensee or responsible person believes that the welfare of the person or the person's family is seriously at risk as a result of the person's consumption of alcohol; or on any other reasonable ground. Essentially, the power to bar to which the section refers is a protective order for the person concerned, another person with whom the person resides and, of course, the other patrons and staff.

I alluded to the activities of outlaw motorcycle gangs when I opened my remarks, and it is in the context of their illegal activities, to a significant degree, that the need for the amendment to the 'power to bar' provisions has emerged. As all members are aware, there has been a series of shootings, assaults and other antisocial acts in and around Adelaide nightclubs and entertainment precincts in recent times. We have all heard of innocent people becoming involved in these events simply by accident of proximity. As I said when discussing the Serious and Organised Crime (Control) Bill, there are people whose memories will forever be imprinted by shockingly violent events and whose sense of personal safety and security has been violated, and possibly compromised, for an indefinite period.

While no law-abiding citizen wishes to witness or be involved in criminal or antisocial behaviour, by the same token, no licensee wishes to see patrons endangered or, indeed, custom fall off because of the presence or behaviour of undesirable patrons. Reluctance to issue barring orders on the part of often fearful or intimidated licensees, particularly if the patron in question is a member of or associated with a criminal or outlaw gang, is understandable. After all, who among us in such circumstances would feel differently?

The amendment of the present act to allow the Commissioner of Police and other police officers having the authorisation of an officer of a prescribed rank the power to make an order barring a person from licensed premises is both timely and necessary. In other circumstances, undesirable patrons may be present at licensed premises but not actually committing an offence at the time. We have all been in such circumstances or are familiar with such scenarios. The sense of threat in the air in these situations can be palpable, and police are obviously concerned about the safety and welfare of those present on such occasions.

As an example of how these matters can get out of control, I raise the memory of the Milperra massacre in Sydney's west. What undoubtedly started as a happy family occasion for many patrons in the hotel outside of which the shootings took place ended in indelible horror and tragedy. The Father's Day 1984 shooting war between the Bandidos and the Comancheros claimed seven lives, including that of an innocent teenage girl caught in the lines of fire.

This is an extreme example but, given recent events, it is possible that something like that could happen in our state. It is for these reasons that the amendments will empower the Commissioner of Police and the prescribed officers to bar persons from premises, including more than one premises, for a specified period or for an indefinite period in the public interest or on any other reasonable ground.

In addition, police sergeants will be empowered to bar people who have committed an offence or who have behaved in a disorderly or offensive manner in or around licensed premises, for 72 hours. Police inspectors will be empowered to bar for three months for a first offence and six months for a second offence, and a third offence could result in indefinite barring. An indefinite bar on welfare grounds will also be available to police inspectors if they believe that the consumption of alcohol is putting the welfare of a person or the person's family seriously at risk.

The Liquor and Gaming Commissioner will have the power to review these orders pursuant to section 128 of the act. Of course, authorisations to police officers will be subject to certain restrictions as per the proposed amendments, and licensees will be provided with details pertinent to the barring, including the identity of the barred person.

I now turn to the amendments relating to the barring of a person by a licensee. Section 125 of the act will enable police to provide information, including details that may identify a person (such as photographs), to licensees so that the licensee may bar that person. Because it is an offence under section 125 for a licensee, responsible person or staff member to allow a barred person to enter or remain on premises, this amendment will assist licensees and others so that that section is not unknowingly contravened.

The legislation also provides for licensee bars for welfare reasons according to various circumstances and for barring persons where assaults, property damage or drug-related offending occurs. A mechanism for review by the Liquor and Gaming Commissioner is included, and a further avenue for review exists in the jurisdiction of the Licensing Court.

The amendments provide for reliance by the Commissioner of Police on criminal intelligence, where necessary, in order to bar persons. The Commissioner's order need only state that if the person were not so barred it would be contrary to the public interest.

Finally, police will be empowered by the proposed insertion of section 125E to require a person to provide personal details and, if necessary, to verify any statement made. A maximum penalty of $1,250 will apply to remedy the offence of refusing or failing without reasonable excuse to comply with such a requirement.

It must be made abundantly clear to the community that the government is determined to deal with those who demonstrate through their own actions that they would willingly participate in criminal or anti-social behaviour to the detriment of others entitled to reasonable enjoyment of their recreation or to the detriment of their families. I support the bill and commend it to honourable members.

The Hon. SANDRA KANCK (15:47): Earlier in the year when I was being attacked by the local newspaper for consulting with people potentially impacted by the so-called bikies bill, my staff took a call from a nightclub owner who forcefully expressed his disagreement with what I was doing. He did so because he had experienced problems with bikies and wanted police to have the power to bar people because, for him to do so, he risked retribution. I have no argument with that. A constituent who runs a nightclub has just had the scary experience of a party going out of control and turning into a brawl. The Hon. Ms Bressington has also related her very valid experiences dealing with certain intimidating people. So I support that part of the bill.

However, I cannot support the criminal intelligence provisions. They violate basic rights—the right to know what you are being charged with and the right to test the evidence against you. It is a sign of surrender to fear that we have legislation like this. We are fearful that we will throw away long-established rights. Benjamin Franklin, one of the founders of the United States, is widely attributed with saying, 'They who can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.' English lawyer John Cooke was another person who formulated great legal principles. He was the only person brave enough to try King Charles. Later, when the king was restored to the throne, John Cooke was hanged, drawn and quartered on the order of King Charles.

The principles of freedom and fair trials were not developed by intellectuals safely tucked away in ivory towers. They were developed by people who saw what happened when kings, emperors and governments had too much power. In recent years, our society seems to have grown impatient with ideals such as rights, freedoms and liberties, but it is still very clear that governments abuse their powers. So let us look at some recent examples.

The US government created secret prison camps for suspected terrorists such as David Hicks, and held people there for years—in fact, some of them are still there. They were shipped around the world to dictatorships that would allow torture in their jurisdictions. A majority of those prisoners were handed over as Taliban collaborators by Afghan warlords from different tribes that received cash payments. These people were then presumed guilty and information denied to them about the basis of the charges against them.

Here in Australia we imprisoned refugees in Woomera, and then Baxter, for the crime of seeking refuge in this country. We kept them there, knowing of suicide attempts, traumatised 10 year olds resorting to bed wetting and people sewing their lips shut. I can report to members that the good-hearted people in our community, who spent years arguing for a fair go for refugees, including visiting them in their prison camps, are now having the pleasure of attending their citizenship ceremonies. All over Adelaide people who were once considered so dangerous that they had to be locked up without trial are being accepted as Australian citizens. It was all a disgusting lie, playing on fear for political gain. These sorts of lies resulted in miscarriages of justice, such as that which befell Dr Haneef. We all are familiar with the cliché that power corrupts and absolute power corrupts absolutely, and those few examples demonstrate just that.

Let me remind members that this particular concept—'criminal intelligence'—was developed to fight terrorists—people who would kill thousands at a time if they got the chance. There is an arguable case for criminal intelligence provisions when dealing with people like this, but it is another thing to use it to control violence and intimidation in pubs. That sort of behaviour is plain, ordinary criminal behaviour—and should be treated as such. Where do we draw the line? Once these extreme concepts are applied to ordinary criminal activity, why would government not keep applying this principle in other areas where there is any possibility of violence or intimidation? The potential for abuse is very clear.

Under proposed new section 125A, the police can bar a person from entering or remaining on specified licences premises, or licensed premises of a specified class, or licensed premises of a specified class within a certain area, or all licensed premises within a specified area. Taken to its logical extreme, it could include all licensed premises in South Australia—so it is an extensive power. The Hon. Mark Parnell in his contribution suggested that the barring orders in this bill could be used as a form of punishment or harassment against individuals without there being any real rigour attached to whether or not the barring order was appropriate. I agree with him about that potential for abuse.

Even with existing provisions, we see abuse of power. Just this week I was given an example (which happened a few years ago in Ceduna) when a white man attempted to enter a hotel accompanied by a well-dressed, well-behaved Aboriginal man and the Aboriginal man was denied entry. Recently, I learnt of a Sudanese man who likes driving flashy cars, which he legitimately purchased as a consequence of working hard and holding down several jobs, but he is regularly pulled over by police and questioned.

In my briefing on this bill, the Liquor and Gambling Commissioner informed me that a licensee or the police would be entitled under the amendments in this act to bar a person simply because they associated with a group which was known to have caused trouble in the past. Given the previous examples and the tragic stabbing in Adelaide yesterday, one could imagine, therefore, a Sudanese male being denied entry to a pub or club because some other Sudanese males have caused trouble. Any significant departure from established rights and principles must be justified, and the government has failed to present a case for using criminal intelligence in this instance. They have provided some anecdotes but not the statistics; and, once again, I am forced to observe that South Australia has no ICACC to control abuses that will occur under this legislation.

I oppose those aspects of the bill relating to criminal intelligence and the barring provisions. However, I expect that the opposition will support the bill in its entirety, as part of its usual competition to prove that it is as tough, if not tougher, on crime than the government. I know I will not be able to alter those aspects of the bill.

Because we have no ICACC we must have some limited accountability, and for that reason I will be moving amendments to require reporting to parliament. These reporting provisions will relate only to the six months and indefinite barring orders. It would require presentation of demographic data to allow the parliament to see whether particular ethnic groups are bearing the brunt of these orders. I will be supporting the second reading of this bill but, ultimately, if the criminal intelligence provisions remain in the bill after the committee stage, I will be forced to vote against the bill at the third reading.

Debate adjourned on motion of Hon. J. Gazzola.

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