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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2008-11-25 Daily Xml
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LIQUOR LICENSING (POWER TO BAR) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 13 November 2008. Page 742.)

The Hon. J.M.A. LENSINK (17:24): I rise to indicate Liberal Party support for this bill. By way of explanation, my speech follows a number of those made by Independent speakers. The reason for that is that we have a particular process whereby we obtain a briefing, as would all honourable members, but we are required to conform with our own guidelines in terms of submitting joint party papers for approval on the Thursday prior to our joint party meeting on the Tuesday morning of a sitting week. While I had a fair indication of what our position would be, it was not formally determined until this morning. That explanation is for members in case they were wondering what was the reason for the delay. There has been a bit of a timing issue because we have had reshuffles as well, and I was not able to obtain a briefing that would enable me to put a position to my party in the previous sitting week.

This particular measure arises, we are told, following the recent incidents in Gouger Street, involving shootings about which all South Australians deserve to be concerned. It is surprising, in some ways, that this proposal has not come before the parliament in the past. We have already provided licensees with the opportunity to seek to bar particular patrons based on threats to family welfare or relating to particular incidents of unruly behaviour and so forth, or on any other reasonable grounds. This bill will extend to certain prescribed officers within the police force the ability to bar patrons, as a result of which licensees will not have to suffer the harassment or intimidation they might otherwise experience if they were to take up the already legal grounds themselves. A person who is to be barred will not be aware of whether it is, in fact, the licensee who has sought the barring or whether it has been on police advice.

I have read contributions from the crossbenches, and I think all members support that principle. As I have said, it is surprising that parliament has not sought to introduce this measure previously, because I am sure that many incidents have occurred, not just those relating to Gouger Street. This bill will enable police to bar patrons on welfare grounds indefinitely, and in relation to incidents also for a period of three months, then six months, and then indefinitely; and on other reasonable grounds for those three different time periods. An officer of sergeant's rank or higher can ban for a period of less than 72 hours, and an inspector or above can ban for a period of greater than 72 hours. The 72-hour period, I am advised, has been determined because it coincides with the period of a long weekend—that is, three times 24 hours, equalling the three days of a long weekend—and it also covers limited licensed parties such as twenty-first birthday celebrations, and so forth.

It is understandable that the police have been frustrated if they have had good grounds to believe that patrons may have been present on licensed premises for questionable motivation, such as drug dealing. These barring measures are being extended so that, while no offence may have been detected, police officers may nevertheless hold concerns as to the safety and welfare of persons who are on those premises.

The amendments in the bill provide for reliance by the Commissioner of Police on criminal intelligence, where necessary, in order to bar particular persons. The Commissioner's order need only state—and I put this as a question to the minister whether, among the various amendments that have been circulating, this is still the case—that, unless the person was so barred, it would be contrary to the public interest.

I do note the concerns expressed by some members that using criminal intelligence to bar patrons by its very nature violates certain rights, that being the right to know what one is being charged with and the right to test that evidence alleged against the person concerned.

I understand that this evidence can be tested by appeal before a court, and I note that there is a case before the courts at the moment in which a potential licensee has challenged his right to hold a licence, which is under different parts of the legislation but is the same principle, so it will be interesting to see how that plays out in the courts.

The Liberal Party supports these principles, given the practical difficulties that exist and the attraction that people who might have very ill motives would have in attending licensed premises for their own ends, which may be quite illegal. A number of amendments to the bill have been proposed by the government and I will have questions on them in due course. There also will be some amendments from the Hon. Mark Parnell and some in particular from the Hon. Sandra Kanck which the Liberal Party will be quite attracted to. A number of these issues have been debated previously in relation to barring, so I do not wish to make a long-winded speech but will have some questions in committee.

The Hon. R.D. LAWSON (17:32): I indicate general support for the amendments proposed in the bill. However, I have reservations about one aspect of it, namely, the use of criminal intelligence for the purpose of issuing barring orders. This is a matter which the Hon. Mark Parnell canvassed in his contribution, and I share his concerns in relation to it. Before coming to that matter, I indicate that the current structure of the Liquor Licensing Act is such that there is a power to bar in section 125. It is a power granted to the licensee or the responsible person for licensed premises. The licensee or responsible person, in order to invoke those powers, must serve on the person a notice barring them. A person who remains on or enters licensed premises or remains there when so barred is guilty of an offence, for which the maximum penalty is $1,250. There is provision for a review of that barring order contained in section 128 of the existing legislation.

Licensees have complained for some time—and well before the most recent events at licensed premises where there were shootings—about the fact that that power contained in section 125 is difficult to exercise. If there is a highly desirable and possibly criminal person with associates who is the subject of a barring order from the licensee, there is a fair presumption on the part of the licensee that to issue a barring order in those circumstances may place the licensee or the licensee's responsible person in some danger to their own safety. The person banned or his associates might well retaliate, and a number of licensees have been complaining about that fact and requesting that the legislation be changed to give the police power to undertake that action, on the basis that there is less likely to be personal retribution to the licensee or the staff.

A lawyer, Mr Tony Tropeano, has been prominent in making that submission publicly, and I certainly share his concerns and those of others, and for that reason I support the principle, namely, that barring orders should be issued by police rather than by the licensee in certain circumstances.

There is already in the Liquor Licensing Act provisions dealing with criminal intelligence. Basically, the description of criminal intelligence is in section 28A of the existing law and, as other members have indicated, this is intelligence that enables the Commissioner of Police or a police officer to have regard to what is in effect secret information which is not required to be divulged to other parties other than a court, or a person to whom the Commissioner of Police authorises disclosure, or to the minister.

I am somewhat bemused by the inclusion of the fact that a minister can be made aware of criminal intelligence, but that is the existing provision. That is an important provision in the current scheme of the act. If a licence is to be granted to someone and that person has, for example, undesirable or criminal antecedence, it may well be appropriate that criminal intelligence be part of the information laid before the licensing authority responsible for granting a licence. We supported that initially and I continue to support it. However, in relation to this bill we are being asked to extend the use of criminal intelligence from what is an important general issue—namely, who should be licensed—to the relatively insignificant issue of who should be barred. I believe that using criminal intelligence in the latter circumstance is actually using a sledge-hammer to crack a nut.

The Law Society of South Australia has provided comment on this bill in response to a request made initially by the Hon. Iain Evans in another place. In a letter dated 28 March 2008, the Law Society president wrote:

The society has considered the bill and second reading speech and while we consider some matters raised to be worthy of support there are other matters which cause some concern for a variety of reasons. The society comments as follows:

1. Power to bar. Traditionally this has been a power exercised by licensees or responsible persons for licensed premises. In our experience the current system has been reasonably efficient and effective in dealing with situations where patrons have behaved in an inappropriate manner on licensed premises and where the licensee or responsible person seeks to bar that individual from their licensed premises. In our experience such barring orders are generally respected by recipients and it is not common for matters to be taken on review to the Liquor and Gambling Commissioner.

I interpose that I do not share the comfort that the Law Society has about the operations of the existing system. I believe that it has not given sufficient heed to the concerns expressed by Mr Tropeano and others. I continue with the Law Society letter, as follows:

The proposal to give the Commissioner of Police the power to issue such barring notices is a significant departure from the current system. We are generally supportive of the proposal that police be given the opportunity to become involved in the barring process. However, it may be appropriate for the Commissioner of Police to be required to satisfy the same test as a licensee is required to satisfy in issuing a barring order.

Further, we consider that the 'criminal intelligence' provision in the bill is excessive. If a member of the public is to be barred from licensed premises, then we are of the view that they should be entitled to be advised of the reasons for such barring and be given the opportunity to respond to same before the licensing authority. It is one thing for such 'criminal intelligence' provisions to be raised against an applicant for a liquor licence whom the Commissioner of Police might consider to be undesirable for reasons which cannot be disclosed for public interest grounds. We consider the non-disclosure of the grounds for barring such reasons of 'criminal intelligence' to be unnecessary, excessive and undesirable.

I interpose my own expression 'using a sledge-hammer to crack a nut'. The Law Society continues:

One other odd outcome should the bill proceed in its present form is that police may bar a person from licensed premises where the licensee takes no issue with the recipient of the barring order. That would appear to be an undesirable outcome. We wonder whether a licensee should be given the right to participate in any such applications by the Commissioner of Police to issue a barring notice and be given the right to oppose such a barring order. Alternatively, the licensee's consent could be required where police seek to bar a person from particular licensed premises.

We note that penalties apply where a licensee or responsible person for licensed premises allows a barred person to be on their licensed premises.

We are also concerned by the very wide scope for such barring orders to be issued by the Commissioner of Police so that, for example, a barring order may bar a person from all licensed premises within the state. Again, we consider that to be excessive. It would, for example, prevent such a recipient of a barring order from attending public places which are licensed such as AAMI Stadium, Adelaide Oval, licensed restaurants, cafes or other venues where there may well be no good reason to prevent the entry of persons to such premises.

As an alternative, it may be appropriate for the Commissioner of Police to be required to satisfy the current test in section 125(1) which must be met by a licensee in issuing a barring notice to a patron—that is for reasons of welfare, offensive or disorderly behaviour, or any other reasonable ground.

I interpose that I do not agree that, for the reasons just stated by the Law Society, this regime should be dismantled. I do not dismiss its concerns but I think it is somewhat far-fetched to imagine that there will be state-wide barring orders in circumstances where there is no necessity for them—although I can imagine circumstances where it is entirely appropriate for someone, let us say, an alcoholic, who might be the subject of a general barring order on the existing grounds, namely, for the welfare of that person or a member of that person's family. The Law Society continues:

As an aside we note that the current section 125(4) of the act makes it an offence for a licensee or responsible person for licensed premises, or even an employee of a licensee, to allow a person to enter or remain in a place from which the person is barred. It is a licensee or responsible person who issues the barring order. A licensee or responsible person has power to revoke an order. It appears odd that such a licensee or responsible person should be liable to a fine where they allow a barred person to enter or remain on the licensed premises. It is quite feasible that should these amendments proceed then the Commissioner may well issue tens, hundreds or even thousands of such barring notices. Enforcement and compliance by licensees and responsible persons would become very difficult if not impossible, even with the provision of photographs to licensees. Similar problems have been experienced in relation to persons barred from gaming rooms.

I interpose here that I think that, once again, the Law Society is stretching the point a little in suggesting that there will be thousands of these orders issued and that it will be impossible for licensees and responsible persons to comply with their obligations. However, I will be asking the minister in her second reading response to indicate the government's stance on that proposition advanced by the society. The society continues with its final point (point 2) on the length of barrings. Its letter states:

The current situation is that a Licensee may not bar a person for greater than three months for a 'first offence'. The second barring can be for up to six months and the third barring can be for an indefinite period. The proposal to allow a period of greater than three months barring for a 'first offence' where approved by the Commissioner we think has merit.

One drawback is that the current system is simple and efficient and barring notices for up to three months can be issued without any involvement of the Liquor and Gambling Commissioner. It would be undesirable to see Licensees issue indefinite barrings for a 'first offence' which may well result in increasing numbers of Applications for Review by barred persons to the Commissioner. In our experience the three month barring period for a first offence is generally effective and efficient and deals with the problem patron without great drama.

Once again I express my gratitude to the Law Society and its committee for expressing those views. As I indicated, I share their concerns about the use of criminal intelligence. I note that there are amendments on file, I think, from the Hon. Mark Parnell, and I will be listening keenly to the arguments that he advances. Personally, I have a good deal of sympathy for those amendments.

I also note that just today the government has placed on file an extensive series of amendments, which appear to deal with the casino. I have not had an opportunity to study them, although my colleague the shadow minister, who has the conduct of the legislation, has done so. I indicate that I may not necessarily agree with all of the position adopted by my party in relation to this measure.

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) (17:47): I thank honourable members for their indications of support for this bill. The Hon. Mark Parnell, the Hon. Sandra Kanck, the Hon. Michelle Lensink and the Hon. Rob Lawson have raised some concerns about the provision of the bill that protects from disclosure information classified by the Commissioner of Police as criminal intelligence. Honourable members objected to the fact that this material may not be disclosed to a person or persons about whom it relates—in this context, a person who is the subject of the barring order.

These provisions are contained in clause 5 of the bill. They prohibit disclosure of criminal intelligence to any person other than the Liquor and Gaming Commissioner, the minister, a court or a person to whom the Commissioner of Police authorises disclosure. The provisions also establish a procedure under which information identified by the Commissioner of Police as criminal intelligence may be protected from disclosure in court proceedings, but only where the court determines that the information meets the definition of criminal intelligence in the legislation.

This definition, which is amended by clause 4 of the bill, is very narrow. The only information that will qualify for protection is that relating to actual or suspected criminal activity, the disclosure of which could reasonably be expected to prejudice criminal investigations, enable the discovery of the existence or identity of a confidential source of information relevant to law enforcement or endanger a person's life or physical safety. It is the government's position that information that meets these criteria should not be disclosed to the criminals about whom it relates.

These types of provisions are by no means unique. Criminal intelligence, as defined in this bill, relevant to administrative decisions and determinations or tendered as evidence in court proceedings, is protected from disclosure under several South Australian acts, including the Serious and Organised Crime (Control) Act, the Security and Investigation Agents Act and the anti-fortification provisions of the Summary Offences Act. Similar provisions can be found in the laws of other jurisdictions; for example, the Western Australian Crime and Corruption Commission Act 2003 protects from disclosure criminal intelligence tendered in review proceedings under the state's anti-fortification provision. That provision was upheld as constitutionally valid by the High Court in Gypsy Joker Motorcycle Club Inc v Commissioner of Police.

The Hon. Sandra Kanck indicated that she would move amendments to the bill to require barring orders to be reported to parliament. The government will be opposing these amendments and, obviously, I look forward to debating them during the committee stage.

The Hon. Robert Brokenshire raised concerns about illegal firearms and police resources, particularly those necessary to support Operation Avatar. Regarding firearms, the Hon. Robert Brokenshire will be pleased to learn that the government's Firearms (Firearms Prohibition Orders) Amendment Act 2008 will commence shortly. This legislation directly targets the possession of firearms by criminals. The new provisions will authorise the registrar of firearms, or the police in urgent cases, to make firearm prohibition orders against a person on the grounds that possession of a firearm by that person would likely result in due danger to life or property; or that the person is not a fit and proper person to possess a firearm and it is in the public interest to prohibit the person from possessing and using a firearm.

Regarding police resources, the Hon. Mr Brokenshire may not have realised, but the highly successful Operation Avatar was replaced last November by a new Crimes Gang Task Force. This task force more than doubles the number of officers dedicated to investigating the activities of criminal gangs in South Australia, with staffing boosted from 20 to 44 members.

SAPOL advises that this new task force has a multidisciplinary capacity, including investigators, general duties officers, Star operations members, motorcycle officers, forensic accountants, criminal intelligence experts and high-level analysis staff. Over the next five years, SAPOL will invest more than $5 million in IT to support the work of the task force. In closing, I thank all honourable members for their contribution during the second reading debate, and I look forward to the committee stage.

Bill read a second time.

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