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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
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LIQUOR LICENSING (MISCELLANEOUS) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 17 October 2013.)

The Hon. G.E. GAGO (Minister for Agriculture, Food and Fisheries, Minister for Forests, Minister for Regional Development, Minister for the Status of Women, Minister for State/Local Government Relations) (11:09): I understand that there are no further second reading contributions to this bill and, by way of summarising, I wish to thank honourable members for their contributions and for their indications of support for the bill's passage through this chamber.

In making their contributions, a number of honourable members raised issues such as statutory reviews of a code of practice, the application of lockout provisions in the late night code of practice to the Casino, and the regulation of entertainment in licensed premises that are to be the subject of amendments in the committee stage. I think it best, obviously, that we deal with those particular issues in the context of the amendments at the appropriate time in the committee stage.

One issue I would like to deal with before we do go into committee is one raised by the Hon. Kelly Vincent. The Hon. Kelly Vincent notes that clauses 5 and 25 of the bill introduce amendments to the offence of serving or supplying intoxicated persons. As with the current offence, the amended offence provision defines intoxicated by reference to whether a person's speech, balance, coordination or behaviour is noticeably impaired. If I understand the Hon. Ms Vincent's concern, it is that untrained staff may wrongly assume that a person whose speech, balance, coordination or behaviour is affected by a disability is intoxicated and could refuse them service.

The Hon. Ms Vincent has asked that the government and the Australian Hotels Association ensure that staff receive training to assist them to distinguish between a person whose speech, balance, coordination or behaviour is affected by alcohol or drugs and a person with a disability. The government is advised that a number of the larger organisations providing training in response to service of alcohol in this state, including the AHA and Clubs SA, do not include in their training instructions on how to distinguish between a disability and intoxication.

If this becomes a problem, it may be that the government and the liquor industry will need to look at some form of mandated training in this area. However, as the larger training providers are clearly moving to incorporate disability training into their RSA courses, the government believes a watch and wait strategy is best at this stage. Again, I would like to thank honourable members for their support for the bill and look forward to discussing those other issues raised during the committee stage.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. R.I. LUCAS: I just want to address some general procedural issues at clause 1, and I seek guidance from the minister and others. Arriving in this chamber just 10 minutes ago, I note what would appear to be three new amendments that have been filed this morning by both the government and the Hon. Tammy Franks. The Hon. Tammy Franks' office at least had the courtesy, just before 11, to email her second draft of amendments, which I obviously have not had a chance to look at yet or, indeed, have any consultation with stakeholders.

On arriving in the chamber, as I understand it, there appeared to be two new sets of amendments from the minister, one which was drafted at 9.47am this morning and tabled at 11, which I have not seen, and another one drafted at 9.45am this morning, which would appear to be an amendment to an amendment from the Hon. Mr Brokenshire. Again, I have not seen them or had the opportunity to consult with the shadow minister responsible for the bill, and I have not had an opportunity to consult with stakeholders in relation to the impact of the amendments and what they are seeking to achieve and, indeed, what our attitude and the attitude of stakeholders will be.

In relation to the Hon. Ms Franks' amendments, as the cover note from her office indicates, whilst it is broadly the same intention as her original amendments, there are obviously some important changes to them in relation to limiting, in parts, the operation of her amendments. Again, I have not had an opportunity to read the amendments or have a discussion with stakeholders in relation to the drafting of the amendments.

I know there are two separate issues here. One is that Liberal Party at one stage flagged the final passage of this legislation should not pass until after the court proceedings on Friday. The government and other members have a different view from that, and obviously that will need to be determined today or tomorrow, prior to Friday's court proceedings. I have no idea how the majority of members in this chamber will vote on that particular issue. What I am arguing is that that issue should be addressed separately; that is, if a majority of members insist that before we get up tomorrow afternoon this bill has to be finally resolved, that ultimately is a decision for the majority of members in this chamber.

However, the point that I want to raise here and why I flagged that I intend to move to report progress at least for this morning is that it is entirely unacceptable, I would hope to all members in this chamber, irrespective of how they might vote on whether or not we debate the whole bill this week or the next sitting week, to force the consideration of amendments we have not seen, have not discussed, or had an opportunity to look at this morning. It is completely unacceptable in terms of the normal practice of this chamber and it is also unacceptable in terms of good legislative practices.

We do have some options. The house clearly can sit this evening, and if there is a majority view that we want to insist that these particular amendments be considered this evening, that would at least give those of us—and I am not sure how many others there are—who have never seen the government amendments and have only just seen the Hon. Tammy Franks' further amendments to her own amendments as of 11 this morning an opportunity, first, to read them, and then do some urgent consultation before being forced into a position of having to vote on the issue.

It would be my preference that the minister and other members would see the good sense at least in the second part of the argument that I have just put, that is, reporting progress this morning to allow members to at least read the amendments and do some consultation. I am sure that does not lock members into a position in relation to the more difficult issue for some members, and certainly one that will not be supported by the government, which is to delay the final consideration of this bill until the next sitting week. What I am suggesting is that it be broken down into two stages and I would hope there would be acceptance by the government and the majority of members. At least this morning members should be given the opportunity to try to understand what it is that the government is doing.

If the government was agreeable, it might be useful to have the government outline on the record at clause 1 what their two amendments are meant to do so that we can understand what the government is doing. The Hon. Tammy Franks might also want to indicate at clause 1 what her new amendments are seeking to do. That way all of us can hopefully report progress, and if need be come back this evening to further consider debate on both the amendments and the other amendments which have been on file and I am sure all members are in a position to debate.

The Hon. G.E. GAGO: The government has indicated that liquor licensing is its number one priority for this sitting week. We indicated our priority for progressing through committee stage for yesterday's sitting and the Liberal opposition indicated that it was not ready. I understand the reason that it gave was that it was not going to progress it until the court case had been completed, so we have delayed it a full day.

We indicated quite clearly that it was our number one priority for today. We have come in this morning to progress the government's priorities. We take liquor licensing and the consequences of alcohol abuse very seriously, and this is a significant piece of legislation which we wish to progress today and this morning. In terms of the amendments, the government's amendments are quite minor. They are consequential on the Hon. Robert Brokenshire's amendments and if the Hon. Robert Brokenshire's amendments do not get up then these amendments will not be progressed. One is a drafting issue and the other addresses a minor technical problem, but I am happy to give a little bit more detail here.

Amendment No. 1 most recently filed, addresses a minor drafting issue with the Hon. Robert Brokenshire's amendment to clause 6. This amendment deletes subclause (3) from clause 6 of the bill which inserts a new paragraph after paragraph (e) into section 11A(2). The Hon. Robert Brokenshire's amendment No. 1 deletes section 11A(2) (to which new paragraph (ea) relates) and replaces it with an entirely new subsection. As I have indicated, it does address a very minor technical drafting issue.

The second amendment is consequential upon the Hon. Robert Brokenshire's second amendment which validates a code of practice published before the date the amendment commences. The Hon. Robert Brokenshire's validation provision provides that a code of practice published before the commencement of the clause will be taken to be valid and always to have been valid if the code of practice or provision would have been valid had it been published under section 11A, as amended by the bill.

In order to be valid under section 11A (as amended), a code must have been the subject of prescribed consultation. Consultation on both the late night and general codes of practice was extensive, but was carried out before the new consultation requirements imposed by the Hon. Mr Brokenshire's amendments were known. This raises a possibility that someone wishing to challenge the validity of the late night code will argue that the consultation carried out by the commissioner in his office, although extensive, could not have complied with the new requirements.

To put the matter beyond doubt, government amendment No. 4 inserts a new subclause (1)(a) into clause 3 of schedule 1. This new subclause makes it clear that the consultation requirements in new subsection (4a) of section 11A do not apply to the code published before those provisions commenced.

The Hon. R.I. LUCAS: The minister has indicated that this bill is a priority for the government for this week, and the opposition acknowledges that that is what the government has indicated. I have said that this issue as to whether it is debated this week or next week can be, in my view, a separate issue determined by the majority in this council. However, the minister incorrectly put the opposition's position yesterday.

The opposition's position yesterday was in two parts, again. That is, our general position was that we did not want to see this bill determined until the next sitting week, and we accept that the government has a different view on that. In relation to progressing it yesterday, the government says that the reason we did not want to do it yesterday was that we wanted to put it off until the next week. As I said, that is in part correct, but the second part is inaccurate. That is, that the Hon. Tammy Franks said to us yesterday that she was looking at amending her amendment and, if we were going to do the committee stage yesterday, we actually had not seen the Hon. Tammy Franks' amendment, and that was not available until 10:23 this morning. It is a nonsense for the minister to indicate that the government could have proceeded yesterday because we did not have the Hon. Tammy Franks' amendment, so there was no delay by the Liberal Party yesterday. We did not have an amendment from the Hon. Tammy Franks.

The second point I make is: the minister says that she wanted to do it yesterday, but she did not table the two amendments from the government until this morning. They were not actually produced by parliamentary counsel until 9.45am and 9.47am today. How does the minister justify this furphy that they were going to proceed yesterday? These two particular amendments were not even filed by the government yesterday. The government was not ready to debate the bill yesterday because the government did not table its amendments. We did not see the amendments until 11 o'clock this morning. So, let's not be led down the garden path by the minister's claim that the government was ready to debate the bill yesterday, because they did not table their amendments until 11 o'clock this morning.

The Hon. T.A. FRANKS: For the benefit of the council, I rise to address my two sets of amendments, both of which reflect my private member's bill, which has been on the Notice Paper since 2012. Indeed, many members would have received a significant number of emails, particularly from Raise the Bar and Save Live Australia's Music, about it.

My amendment to remove the entertainment consent provisions currently under the act, under section 105, has been a long-held campaign. It is well known to those stakeholders. I have briefed several opposition spokespeople in this area on this issue. The fact that I have filed an amendment this morning to tweak the amendment, in consultation with the government, to simply pare it down a little, is something I could have moved on the floor in the debate. However, I thought, for the sake or clarity, that I would file the amendment to specify that, in agreement and in consultation with the government, I am happy to accept a compromise position on removing the entertainment consents not in their totality but between the hours of 11am and midnight, as currently now exists for the small venues licence.

Indeed, when that small venues licence passed this place with great acclaim, it was heralded as a move that could be embraced by other licensees to enjoy the removal of those entertainment consent provisions. In the same way that small venues licensees can now operate free of the burden of the entertainment consents between 11am and midnight, this amendment will replicate that circumstance for other licensees who do need to obtain entertainment consent as a condition of their licence or, indeed, in the CBD or declared entertainment precincts, licensees may be able to have that regulatory and red-tape burden lifted from them between the hours of 11am and 2am.

It is not 24 hours a day. As the Greens' advocate, I would have been happy to remove the 'culture cops' from liquor licensing laws and have that operate 24/7. However, I am happy to agree to compromise with the government, which will have to implement this amendment should it pass. I am happy not to have to progress debate on my private member's bill, given the opportunity of this particular revision of the act before us. Certainly, it is something that has been endorsed by the AHA.

My current set of amendments have been made in consultation with the AHA. This move to remove the entertainment consents from liquor licensing has been supported by the AHA, Music SA, the Musicians Union, Save Live Australia's Music and Raise the Bar. I have to say, when all of those groups can agree on something, when the AHA, Music SA and Save Live Australia's Music can agree on something, then I think we actually have an amendment worth debating on this bill. The amendment I have tabled this morning simply tweaks the hours that it will apply to 11am through to midnight or 2am inclusive.

If the Liberal opposition would like to support my first set of amendments in totality then I am happy to proceed with that, although I think the writing was on the wall. The indication I had was that the opposition was not looking to support my first set of amendments. Certainly, if the government was willing to support a pared back set of amendments then that is what I have put before the council today in the hope that it might actually pass. This debate has been before the council since 2012. It is not a new issue and there is certainly no excuse to hold the debate on the bill before us.

The Hon. R.I. LUCAS: As I have said, I am putting aside the issue of whether we debate the whole bill this week or next week. I am arguing that that is a separate argument. All I am going to indicate at this stage is that if members in this chamber are going to force a vote on these particular amendments when, as the person handling the bill for the Liberal Party who does not actually handle the portfolio area, so it is not my responsibility, has had no chance to read them, has had no chance to speak to the shadow minister in relation to them and has had no chance to speak to one or two of the key stakeholders before resuming the debate tonight, well then they will be the new rules.

If that is going to be the arrangement in relation to forcing people to vote on an issue when they are not in a position to adequately represent the views of their party on the floor of the chamber then so be it, they will be the new rules as we move forward. I think it would be unfortunate if that was the case, but so be it if that is going to be the view from henceforth in relation to this particular issue.

Can I also say that I hear from the minister that this is just a technical change. The Hon. Tammy Franks says this is just a tweaking. From my experience in this parliament in relation to liquor licensing, it is the technical changes, the tweaks, the minor amendments, etc., that end up being litigated and causing all of the grief and the problems in liquor licensing law in South Australia. So, with the greatest of respect to the minister and members who say to me, 'This is just a technical issue. It's consequential,' or, 'It's a tweak,' I am not disputing that; it may well be, after we have had a chance to look at it.

There have been many examples when this chamber and the parliament have been told, 'Well, this is just consequential, it's just technical, it's just a tweak and you should just accept our assurance in relation to it.' As I said, it is not as if, in relation to this particular debate, we are saying, 'Okay, we don't accept that in the end the majority in this chamber might force a vote on these issues this evening, in this evening's session, that is, in the same day, on this particular issue.' Then, at least, the opposition and those members who do want to be briefed on it will have a number of hours to have a look at it and to prepare for it.

There are two issues. We take the position, which we have explained, that at some stage we will test as to whether or not the whole bill should be debated before Friday or not. That is not the argument I am putting at this stage. This issue about being technical and tweaking is completely unacceptable to those of us in the Liberal Party. As I said, if it is to become the law of the jungle from here on that the majority of people, if they have a view and they can jam an amendment on at 11 o'clock in the morning that no-one has seen and then just say it is technical and a tweaking and then say, 'We are now going to jam this through,' if the law of the jungle is going to prevail here in the committee stage, then let the buyer beware.

The Hon. G.E. GAGO: The Hon. Rob Lucas is being overly dramatic. No-one is setting any new rules here. The government has established this bill as its highest priority for this sitting week. We have delayed it a day because of the Liberal opposition.

Members interjecting:

The Hon. G.E. GAGO: We would have been ready. We were willing to progress it. We failed to progress it yesterday because the Liberal opposition refused to progress it. So it is on the list today as a priority. These are minor amendments—

Members interjecting:

The CHAIR: Order! The Hon. Mr Lucas and all other contributors were heard in silence. Minister.

The Hon. G.E. GAGO: —and we will have as much time as we need through the committee stage today (this morning and this evening), however long we need to debate this during the committee stage. Honourable members will have ample time to discuss and consider and question this, but the government takes this piece of legislation extremely seriously. We have indicated that it is our priority to progress this matter this sitting week, and we intend to progress it this morning.

The Hon. A. BRESSINGTON: I am inclined to support the view of the Hon. Rob Lucas. We have had these sorts of stoushes before, about late amendments being dropped on us. I can actually remember when the Hon. Mark Parnell was the only Green in here and at times he would kick up a stink because we could not be on top of these amendments and understand what they were about when they came in at quarter to midnight all the time. Now that there are two Greens in the council it seems that the pressure is off.

I have not had an opportunity to look at the Hon. Tammy Franks' amendments, I have not had a chance to look at the government's amendments, and I am not prepared to proceed based on the assurances of either the minister or the Hon. Tammy Franks. As the Hon. Rob Lucas says, the devil is always in the detail. No doubt, in times gone by, when we have allowed late amendments to be debated and supported, it has never gone smoothly. So, I would be inclined to ask the government to please reconsider, and I will be supporting the Liberals' call to have this at least postponed until later in the day to give the Liberals time to consider what their position would be, as well is myself.

The CHAIR: The Hon. Mr Brokenshire.

The Hon. R.L. BROKENSHIRE: I gather I am not talking to my amendments at this point.

An honourable member: We are on clause 1.

The Hon. R.L. BROKENSHIRE: Yes. All I would say on the amendments at this point is that obviously, as I have indicated to colleagues and as I have put in writing over a week ago, the amendment that we have put up needs to be debated this week.

The Hon. A. Bressington: It's not about your amendment. It's about the government's late amendments.

The Hon. R.L. BROKENSHIRE: Yes, I know. The fact of the matter is that we have been ready to debate this for some time. I indicated that to my colleague the Hon. Rob Lucas yesterday so, in this instance, we would be supporting the government because we think everyone needs to get on and get this sorted out one way or another.

The Hon. J.A. DARLEY: I have listened to the comments of the government, the Hon. Tammy Franks, the Hon. Ann Bressington, the Hon. Rob Brokenshire and also the Hon. Rob Lucas and I would be more than happy to come back tonight and consider the bill.

The Hon. R.I. LUCAS: If no-one else wants to speak, I move:

That progress be reported.

The committee divided on the motion:

AYES (8)
Bressington, A. Darley, J.A. Dawkins, J.S.L.
Lee, J.S. Lensink, J.M.A. Lucas, R.I. (teller)
Ridgway, D.W. Stephens, T.J.
NOES (11)
Brokenshire, R.L. Finnigan, B.V. Franks, T.A.
Gago, G.E. (teller) Hood, D.G.E. Hunter, I.K.
Maher, K.J. Parnell, M. Vincent, K.L.
Wortley, R.P. Zollo, C.
PAIRS (2)
Wade, S.G. Kandelaars, G.A.

Majority of 3 for the noes.

Motion thus negatived.

The Hon. R.I. LUCAS: Can the minister indicate the government's intention in relation to the final passage of the legislation, if it is concluded today or tomorrow, in terms of assent and proclamation?

The Hon. G.E. GAGO: I have been advised that proclamation will depend on the success of the Hon. Robert Brokenshire's amendments. If the Hon. Robert Brokenshire's amendments succeed then we will move to proclaim those amendments as soon as possible—so straightaway. I have been advised there are regulations required to support some of the remaining amendments and we will progress with those regulations as quickly as we possibly can.

The Hon. R.I. LUCAS: But I am assuming that the government will partially proclaim those sections of the bill prior to Friday's court case. Whilst the minister says that the intention is as soon as possible, is it the government's intention that the proclamation of these provisions, which have been referred to by the minister as the Brokenshire amendments, will be proclaimed before Friday?

The Hon. G.E. GAGO: I am advised that if we can we will, but we are not particularly confident that we necessarily will be able to do it in that time frame.

The Hon. R.I. LUCAS: That would be my understanding, that it would be extraordinarily difficult to conclude it before Friday. If that is the intention, what is the legal impact then on the position of the court case? I presume it then continues on Friday on the basis that this legislation has no legal impact—on Friday.

The Hon. G.E. GAGO: I am advised that the codes will be legally valid at the time of proclamation. The codes will be validated at that time and taken to have always been valid.

The Hon. R.I. LUCAS: That was not my question, though. My question was: given that the Brokenshire amendments, as the minister has referred to these particular provisions of the bill, will not be law at the time of the court hearing on Friday—because the minister has indicated it is going to be extraordinarily difficult to be able to proclaim those sections by Friday—is the legal position therefore that the court case will proceed on the basis of the current law and not on the basis of the soon-to-be-proclaimed law at some stage after Friday?

The Hon. G.E. GAGO: Obviously we cannot anticipate the court's decision; however, it is anticipated that the court would make its decision based on existing law and then the codes would be validated post that case once they have been proclaimed.

The Hon. R.I. LUCAS: We have listened for a week or so to the Attorney-General and the government's defenders of the bill saying that these provisions need to be rushed through the parliament because this is going to prevent unnecessary costs and expenses in relation to the court proceedings. The minister has just made it clear, which would seem logical advice that she is receiving now, that the court can only proceed on the basis of the law as it stands, and the law as it stands will not include any potential changes which occur today or tomorrow, including the Brokenshire amendments. Can the minister outline to the house where the savings or the reduction in court costs for individual stakeholders and others is going to accrue, as claimed by the Attorney-General, in relation to the court case on Friday? The minister seems to concede that the court case will proceed on the existing law.

The Hon. G.E. GAGO: That is why the government is doing everything it can in its power to progress this thing today. We would hope to have this completed today so that there is a chance we can have this matter proclaimed prior to the court case. It is our intention to do the very best we can to progress this as quickly as possible so that it can be proclaimed prior to the case.

The Hon. S.G. WADE: Considering that the minister has indicated to the council that there is a real possibility that the case will be determined on current law, is the government not forgoing the opportunity to actually get the judgement out of the Supreme Court, perhaps get a better understanding of the legislation, so that the Legislative Council in the next sitting week might be able to have not just the benefit of the government's advice and amendments, but also the considered view of the Supreme Court? Then perhaps we do not need to come back to this council again for yet another tweak to the licensing laws.

The Hon. G.E. GAGO: As I have said, it is the government's preference and our priority to finalise these matters prior to the case. That is our intention and that is where all our efforts will be directed.

The Hon. R.I. LUCAS: The minister, on advice, took advice that—Hansard will recall the words—it is highly improbable or unlikely that this is going to be able to be proclaimed, even if passed today, prior to the court hearings on Friday. The point that the Hon. Mr Wade has made is entirely on the mark; that is, that many in the community and many members have been led to believe that this was all to be done to prevent this particular court decision being determined under the current arrangements, but the minister is now conceding the reality that that is improbable. It is unlikely. What is going to happen is the decision will be determined Friday on the existing law.

It may well be that this attempt to tidy it up, and whatever else it is, is the appropriate way to tidy it up, but it may well be, as the Hon. Mr Wade indicates, that something comes out of the court decision that indicates to the government and to the parliament that maybe a better way of tidying it up and fixing it is a different set of amendments in relation to it. Heaven only knows we have seen the government's attempts in relation to a number of other areas where the courts have indicated that the government's thinking has been wide of the mark in terms of resolving the issue.

I will not enter into that particular debate or argument, but in this case what we are now being told is, lo and behold, the court is going to determine the case on the existing law on Friday. That is what is highly likely. That is what is highly probable. We may well confront the circumstances that the Hon. Mr Wade indicated, where we have to come back again for further technical amendments or tweaking, to use the phrases used by the minister and other members in this chamber. That is obviously a decision for the government.

I can only repeat that the minister claims that the government was ready to proceed yesterday. Let the Hansard record that that is not true. The government was not able to proceed yesterday because it did not table its amendments until about 10 o'clock this morning. So, how can the minister can keep a straight face and say that the government was ready to proceed yesterday, when two further amendments, moved by the government to their own legislation, were not moved until this morning?

How can the minister can keep a straight face and claim that the government was ready to proceed yesterday and that it was only the Liberal Party and other members that prevented them? That is palpably untrue and demonstrated by the fact of the government tabling amendments this morning.

The Hon. G.E. GAGO: The government's intention is to complete this bill today. We believe that it certainly increases our chance of being able to have this matter proclaimed prior to the court case. We indicated those intentions well in advance and the reasons for them. This laborious discussion the honourable member is undertaking is simply the opposition's intent to delay this. The opposition is intent on making sure that this bill is not progressed prior to the court case. It has made its position very clear and it has made its views very clear: it does not want this progressed prior to the court case.

The government does want it progressed for very good reason. We believe we can deliver this prior to Friday, but this would have to be completed today. In my earlier response, I believe I said words to the effect that we are not confident that we will be able to deliver this.

The Hon. R.I. Lucas: You said 'highly unlikely', or 'highly improbable'.

The Hon. G.E. GAGO: I believe I said I am not confident but, anyway, the reason government is not confident we are going to complete this is that we know that the opposition is hell-bent on using every strategy it can, every devious tactic it can, to delay and to stop this, because we know that they are great friends of the industry involved, and their position is quite clear. If we want to deliver these savings, we need to get on with the real debate around the content of this bill and progress it as expediently as possible.

The Hon. S.G. WADE: I appreciate the government would have had advice on the form of words in the amendment itself in relation to liquor licensing legislation. Has the government had specific crown law advice in relation to the issues of the independence of the Supreme Court in making decisions and whether its amendment risks constitutional issues?

The Hon. G.E. GAGO: I have been advised no.

The Hon. R.I. LUCAS: As I said, the minister again in her last contribution repeats an untruth when she indicates that it was that it was the Liberal Party that held up debate yesterday: it was the government that held up the debate yesterday because they did not table their own amendments until this morning. The Liberal Party has not moved amendments this morning: it is the government that has moved two further amendments to their own legislation this morning. The untruthfulness of the statement that the government was ready to proceed yesterday is self-evident to anyone who looks at the facts in relation to the situation.

Again, the point is that as the minister has indicated—and she will not be able to rewrite Hansard—her statement based on advice was quite clear that it was either unlikely or improbable, words to that effect, that this will be able to be proclaimed. She went on to answer further questions on advice that it was likely that the decision on Friday would be determined on the current law. The Hansard record is clear for everyone so the minister cannot rewrite the Hansard record because it is now inconvenient. She has found herself in a corner and it is now inconvenient for her to have answered in that way earlier. But the reality is, her answers are on the record.

My question relates to the government's position on the timing of the proclamation and the determination of the court decision on Friday. The government has tabled amendments today which we will debate the detail of later on, and as I have said, we have not seen them or consulted with them. Can the government indicate whether the two amendments that they have dumped on the table at the last moment today have received consultation with key stakeholders, and if they have, who were they and what were their views?

The Hon. G.E. GAGO: I have been advised no in relation to the first amendment because it is a drafting instruction or drafting issue. I will have to take the second amendment on notice and get back to the honourable member.

The Hon. R.I. LUCAS: Can the minister clarify: given there were two amendments dumped at the last stage, she has referred to one as the first amendment and one as the second. Can she indicate which is the first amendment that was not consulted and which is the second amendment?

The Hon. G.E. GAGO: The first amendment is to delete subclause (3) which is a minor drafting issue. The second amendment is the consequential amendment to the Hon. Robert Brokenshire's amendment.

The Hon. R.I. LUCAS: The first amendment to which the minister refers is the 9.47am amendment and the second amendment is two minutes earlier, which is the 9.45am amendment. Can I clarify that what the minister is saying is that, with the first amendment, there has been no consultation with anyone on this particular issue—any stakeholder or any group in relation to that—and we are to accept her assurances. 'Trust me, we're from the government, we know best: (a) we haven't consulted anybody; (b) none of you saw this until 11 o'clock this morning when you sat in the house; (c) we, together with our fellow travellers in this house, will force you to vote on it this morning.' What a tangled web the government weaves in relation to this particular issue.

Regarding the first one—and the minister has conceded—there was no consultation at all, just 'Trust us, we're from the government; we know best; we're here to help you.' Can the minister clarify the second amendment, which is the 9.45am amendment. The minister said there has been no consultation on the first one, but can the minister clarify with this particular amendment what the consultation was again and who was consulted and what their attitude was to the proposed amendment?

The Hon. G.E. GAGO: In relation to the first amendment, if our amendment is not passed it will refer to a clause that simply will not exist. There is no-one relevant to consult with. It is a technical drafting issue: if not passed, there will be a subclause that will be sitting there in complete isolation because the Hon. Robert Brokenshire's amendment takes the clause out. So, it will relate to a clause that simply will not exist. As I said, it is a minor technical drafting issue. In relation to the second amendment, I have already put on the record that I would need to seek advice on what level of consultation took place.

The Hon. R.I. LUCAS: The minister is the one who is insisting on this being voted on this morning, so how are we to know whether stakeholders, such as the AHA, the individual proponents in the court case, or indeed others, have been consulted on the issue? If the minister wants this bill to be debated this morning, then it is incumbent on her to indicate whether or not there has been any consultation and whether or not there has been support for the amendment.

The opposition is not in a position to consult stakeholders because the government and its fellow travellers in the chamber are forcing a vote on it. So, we are not in a position to consult stakeholders to say, 'Have you seen it? Have you had legal advice on it? Do you accept that it's a technical amendment, a drafting amendment or a tweaking amendment?' It may well be. I am not in a position to argue that it is not. I am not a lawyer. I do not handle liquor licensing for the Liberal Party; I am representing the shadow minister who does.

It is entirely different in a chamber where you are the responsible person on behalf of the opposition who has handled all the negotiations, and this is all foreign ground to me in terms of the detail. I am just representing the views of the Liberal Party and the shadow minister who has handled all the negotiations on the issue. I ask the minister again: is she in a position to indicate to the committee which groups have been consulted and what their attitude has been to the proposed amendments?

The Hon. G.E. GAGO: I have already indicated that I would need to take that question on notice and seek advice. The second amendment is, again, a very minor amendment consequential on the Hon. Robert Brokenshire's amendment. I have already indicated that I would need to seek advice, and I will bring that information back to the chamber when I have it.

The Hon. R.I. LUCAS: Isn't that lovely? The minister will take advice and bring back an answer when she gets it. So, it may well be that the government and the fellow travellers in this chamber can jam the legislation through before we have even had an opportunity (a) to do any consultation ourselves, or (b) find out whether the government has consulted at all on any aspect of this further amendment, as I said, dumped on the table at 11 o'clock this morning.

Clause passed.

Clause 2.

The Hon. R.I. LUCAS: We were talking specifically about the provisions that might relate to the court case on Friday, but I will now turn to the wider issues. The minister said that there are regulations to be developed. My first question is: will there be consultation with stakeholders in relation to the regulations and what is the government's proposed time frame for the regulations?

The Hon. G.E. GAGO: I have been advised that consultation around the regulations has already commenced and has involved key industry stakeholders, including the AHA. The time frame for, I think the question was the completion of the regulations, again this is a rough estimation, but it could be about a month, as a rough indication.

The Hon. R.I. LUCAS: I accept the government is probably not in a position to know a specific date for the proclamation of the total act, not just the provisions that might have been moved by the Hon. Mr Brokenshire, but is it the government's intention to have the total act proclaimed by no later than the end of this calendar year?

The Hon. G.E. GAGO: I have been advised that we are working with the industry to negotiate on a final date.

The Hon. R.I. LUCAS: The minister is indicating that it is possible, after those negotiations, that the proclamation of the final act will not be until next year. It could be this year, but it could be next year. There is no definite time commitment to have this done before the end of the calendar year.

The Hon. G.E. GAGO: That is what I have been advised.

Clause passed.

Clauses 3 and 4 passed.

Clause 5.

The Hon. T.A. FRANKS: I do not propose to move [Franks-1]; I propose to move [Franks-2] only. Given the indication that I do not believe the amendments [Franks-1] will have the support of this council, I do not propose to waste the time of the council and so indicate that. So, I withdraw [Franks-1].

The Hon. R.I. LUCAS: My question is to the Hon. Ms Franks. Given that I have not had the opportunity to have any consultation in relation to [Franks-2], which was a part of this package of amendments, part of the original package of amendments moved by the Hon. Tammy Franks was this amendment to clause 5 which was to delete the definition of 'entertainment'. The definition of 'entertainment' in the bill was:

entertainment means a dance, performance, exhibition or event (including a sporting contest) calculated to attract and entertain members of the public;

Can I ask—because, as I said, I have not had a chance to read all of the Hon. Ms Franks' new amendment 2—why is the member, in moving from [Franks-1] to [Franks-2], now removing her deletion of the definition of 'entertainment'?

The Hon. T.A. FRANKS: Chair, would it not be more orderly to address the amendment I have when I actually move it? I have withdrawn my amendment No. 1 [Franks-1] and I have just been asked a question on amendment No. 1 [Franks-1], not on amendment No. 2, which we have not come to yet.

The CHAIR: The Hon. Mr Lucas.

The Hon. R.I. LUCAS: The Hon. Ms Franks is obviously entitled to not answer questions at this stage because she has withdrawn her amendment. I accept that. I can put the question again at a later stage. However, given that we are now passing over this particular provision and given that we are trying on the run and without consultation to understand the tweaking that the Hon. Ms Franks says she has achieved in amendment No. 2, the issue I want to pursue at this stage is this definition of 'entertainment'. Under the definition of 'entertainment' in the bill, it includes a wide variety of entertainment, obviously a dance performance, an exhibition or an event, including a sporting contest calculated to attract and entertain members of the public.

The Hon. Tammy Franks in her original amendment (which we have seen) was removing that particular definition of entertainment, we assume for some reason or purpose. We assume that there must have been some problem with the government's new definition of entertainment according to the member's argument and the stakeholders that she consulted. It is only an assumption because it was removed from the Hon. Tammy Franks' original amendment.

When we come to debate the second part of this package, we note from the amendments that have been tabled only this morning that, on a very quick read, there does not appear to be that provision in the new package. For some reason, the Hon. Tammy Franks, we assume, is now happy with the government's definition in the bill of 'entertainment', whereas in the first amendment she was not. I assume that that is on the basis of stakeholder consultation or somebody saying, 'Hey, if you remove this particular definition there's an unintended consequence or there's a problem.' That was the purpose of the question.

I accept entirely that it the prerogative of the Hon. Tammy Franks not to respond to that particular question during the definition stage, but that is the only part of this bill where we are going to be able to look at the definition of entertainment in particular, because when we get to the insertion of new clause 24A, which I think is the Hon. Ms Franks' new provision, there is no reference to the government's definition of entertainment. So my question to the minister is: has any concern been raised with the government by stakeholders regarding the definition of entertainment as included in the bill?

The Hon. T.A. FRANKS: Given the opposition member's questions and his statement that the government has somehow inserted a new definition of entertainment, I would just like to clarify that there is no new definition of entertainment inserted in this bill. Certainly there is a provision—and I welcome this provision from the government—that now excludes television sets exceeding two metres by two metres square from the current definition of entertainment. That is a very welcome change in this bill. However, there is certainly no new definition of entertainment inserted in this bill. I believe it would be better and more orderly for me to present my amendment when we get to it and then speak to it and address questions.

I can jump at shadows and try to second-guess the opposition questions with regard to entertainment. I would certainly say that my redrafted amendments have the same effect as the original amendments; there has certainly been no backing away from addressing the issues arising from the need for entertainment consents, which have been a red tape regulatory burden on licensees in this state for decades and which have been constantly raised with me. No doubt other members who deal with liquor licensing have had these issues raised, and I look forward to presenting my amendment when we get to it.

The Hon. G.E. GAGO: It just may assist the Hon. Rob Lucas: my understanding around the definition of entertainment is that, in relation to [Franks-1], the definition of entertainment ceased to be relevant, but it remains relevant to [Franks-2]. I think we should stop the filibustering and move on. In relation to a question asked of me about whether concerns were raised with the government, the advice I have received is, no, in terms of the definition of entertainment.

The Hon. R.I. LUCAS: I thank the minister for that. Can the minister indicate then, given that she has given that answer, why it was not relevant in relation to [Franks-2] and was relevant in relation to [Franks-1]?

The Hon. G.E. GAGO: No, it's the other way around. The definition of 'entertainment' ceased to be relevant in [Franks-1], but it remains relevant to [Franks-2], so that is why it was deleted.

The Hon. R.I. LUCAS: My question is the same: what is the reason for the relevance in one amendment and not in the other?

The Hon. G.E. GAGO: I cannot speak for the Hon. Tammy Franks, but the advice I have received in relation to the government's understanding of this is that, in relation to the [Franks-1] amendment, it removed the requirement for the licensee to seek an entertainment consent, so therefore the definition of 'entertainment' was irrelevant, but in [Franks-2] it only removes the requirement to seek consent of entertainment between certain hours, so therefore the definition remains relevant.

The Hon. R.I. LUCAS: I thank the minister for that explanation. I point out to members that, as I indicated, this is a new definition of 'entertainment' being inserted in the bill, contrary to the assertion by the Hon. Ms Franks. The Liquor Licensing Act indicates:

entertainment means:

(a) a dance, performance, exhibition or event (including a sporting contest) calculated to attract and entertain members of the public; or

(b) a visual display but not if provided by means of a television screen not exceeding dimensions fixed under the regulations;

So, it is clear that this is a new definition of 'entertainment' being inserted by the government in this bill and does amend the definition of 'entertainment' that is in the act, and there are further definitions on 'live entertainment' and others included in the parent act as well. I thank the minister for her response to the question.

The Hon. G.E. GAGO: It might also assist if I advise the chamber that the AHA requested the amendment to remove the reference to TV screens in the definition.

Clause passed.

Clause 6.

The Hon. R.L. BROKENSHIRE: I move my amendment, which has two parts:

Amendment No 1 [Broke–1]—

Page 4, lines 9 to 12 [clause 6(1)]—Delete subclause (1) and substitute:

(1) Section 11A(2)—delete subsection (2) and substitute:

(2) Without limiting the matters that may be included in a code of practice, a code of practice may include measures that can reasonably be considered appropriate and adapted to the furtherance of the objects of this Act.

(1a) Section 11A—after subsection (4) insert:

(4a) The Commissioner must, before making or varying a code of practice, undertake consultation (in such manner as the Commissioner thinks fit) with persons or bodies that the Commissioner is satisfied represent the interests of licensees affected by the proposed code or variation.

The CHAIR: You may speak to both as well.

The Hon. R.L. BROKENSHIRE: Last week or it may have been the week before—it probably was the week before—I sent a detailed paper to colleagues in the Legislative Council relevant to these amendments. The purpose of this amendment is to simplify the working of the powers under the act and work hand-in-hand with my second part, which is not consequential on this amendment. The commissioner could have power to introduce codes in this area. As I said, I sent a memo to MLCs on 15 October explaining the rationale for this amendment so I will not go into that now unless members want me to. The AHA has indicated opposition to this aspect and I accept the council's view in relation to the amendment. The second part of the first amendment (to insert new subsection (4a)) states:

The Commissioner must, before making or varying a code of practice, undertake consultation (in such manner as the Commissioner thinks fit) with persons or bodies that the Commissioner is satisfied represent the interests of licensees affected by the proposed code or variation.

The intention of this aspect of the amendment is for certainty and the comfort of licensees that they will have to be consulted at law if there are future changes to the code. Family First accepts the economic interest licensees have in being consulted. As I indicated, this is not consequential on the earlier part but stands alone. I have moved that two-part amendment in my name, and that is all I have to say at this stage.

The Hon. G.E. GAGO: The government rises to support both parts of this amendment. In relation to amendment No. 1 the honourable member would be aware that the commissioner's late night trading code of practice is subject to legal challenge. I can advise that the current restrictive wording in section 11A(2), which sets out the measures that can be included in the code of practice, is central to the plaintiff's case. This amendment replaces subsection (2) with the straightforward provision that provides that a code of practice may include measures that can reasonably be considered appropriate and adapted to the furtherance of the objects of this act.

We believe this is a sensible approach. The objects of the Liquor Licensing Act are set by parliament and it is the government's opinion that it is entirely reasonable that the commissioner's power to regulate licences through a code of practice extends to measures to promote compliance with the provisions and objects of the act.

In relation to the second part, this amendment inserts a transitional provision into the act which retrospectively validates a code of practice. It is the government's view that the consultation and other work that has gone into the late night code of practice should not be undone by an adverse ruling on its validity. As honourable members would be aware, the consultation of the late night code was extensive. A draft code was released for public consultation for a period of six weeks from 17 October 2012. Targeted industry consultation with organisations such as the AHA took place. A consultation draft was discussed at the meeting of the Adelaide Liquor Licensing Accord on 19 November 2012. The Adelaide Liquor Licensing Accord is an agreement between licensees, the Adelaide City Council, the commissioner's office, South Australian police and other interested parties.

In all, 46 submissions on the consultation draft were received by the commissioner's office. A number of changes were made to the draft code to reflect comments made in those submissions. The code was approved by the minister in May 2013 and published in the Government Gazette on 6 June 2013. The code is expressed to commence operation on 1 October. On 24 June 2013 the commissioner wrote to licensees authorised to trade after 3am advising them of the code's gazettal and inviting them to attend a further information session. This session was held on 8 July and I am advised about 28 people attended, including representatives of 15 licensees.

In addition to the extensive consultation on the code, the government has put in place a number of measures in support of both licensees and patrons. The commissioner's office has provided licensees in the Adelaide precinct with information packs on the late night code. These packs included stickers for licensees' entrances advertising the late night restricted entry requirements 'no entry or re-entry after 3am' and information cards for patrons on the after midnight bus service.

The commissioner's office has also prepared and provided to licensees a poster aimed at explaining the intended application of the code and a frequently asked questions document in respect of the code. The commissioner's office has also undertaken an advertising campaign specifically addressing the target market of 18 to 29 year olds. This campaign included targeting FM radio, street press including Rip It Up magazine, and social media to ensure patrons who wish to depart the city at 3am are able to do so. The Department of Planning, Transport and Infrastructure has arranged for 20 extra after midnight bus services to operate on Saturday nights.

The late night code is gazetted as a result of extensive consultation and demonstrates the goodwill that exists between government, the AHA and licensees, the vast majority of whom conduct their businesses in an entirely responsible manner. Both the government and licensees have invested much in preparing the code's commencement. It seems to the government irresponsible in the extreme not to do everything possible to put beyond doubt the validity of the code that the government and the industry have put so much collective effort into. For these reasons we are supporting both parts of amendment No. 1. Can I move both of my amendments at this point?

The CHAIR: Yes.

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

Amendment No 1 [AgriFoodFish–1]—

Page 4, after line 12—After subclause (1) insert:

(1a) Section 11A—after subsection (3) insert:

(3a) A code of practice may include provisions regulating the entry and exit of persons in and out of licensed premises at any time, or for periods of time, during which a licensee is authorised to sell liquor but may not include provisions preventing all sales of liquor on licensed premises at any time that the licensee is authorised to sell liquor on the licensed premises.

(1b) Section 11A—before subsection (5) insert:

(4b) The Commissioner may, in his or her absolute discretion, call for submissions to be made in relation to a proposal to make or vary a code of practice.

(4c) The Commissioner must have regard to any submissions made—

(a) in the course of any consultation undertaken in accordance with subsection (4a); or

(b) in response to a call for submissions under subsection (4b).

Amendment No 1 [AgriFoodFish–2]—

Page 4, lines 17 and 18 [clause 6(3)]—Delete subclause (3)

I have already outlined the amendments at clause 1 and I do not have any additional information to add.

The CHAIR: You have moved amendment No. 1 [AgriFoodFish–1] which is at clause 6, page 4, after line 12?

The Hon. G.E. GAGO: That is right. It deletes subclause (3) from clause 6.

The Hon. J.A. DARLEY: I will be supporting these amendments.

The Hon. G.E. GAGO: Just for clarification, the amendment that I have is amendment No. 1 [AgriFoodFish–2], clause 6, page 4, lines 17 and 18 [clause 6(3)]—delete subclause (3).

The CHAIR: Minister, we will get to that amendment later. The Hon. Mr Darley, you also have an amendment?

The Hon. J.A. DARLEY: I move:

Amendment No 1 [Darley-2]—

Page 4, after line 12—After subclause (1) insert:

(1a) Section 11A(3)—delete 'A code' and substitute:

Subject to subsection (3a), a code

(1b) Section 11A—after subsection (3) insert:

(3a) Nothing in subsection (3) authorises the Commissioner to exempt—

(a) the casino (within the meaning of the Casino Act 1997); or

(b) a gaming area (within the meaning of the Gaming Machines Act 1992),

from a code of practice, or specified provisions of a code of practice.

As mentioned during my second reading contribution, the amendment seeks to prevent the commissioner from exempting the Casino and gaming machine venues from the late night code of practice or specified provisions of that code and, indeed, any other code. In particular, it would mean that the 3am closure would apply equally to these venues.

The decision by the government to exempt the Casino from the lockout has certainly been the subject of some intense criticism and, according to the AHA, it is this aspect of the proposal that has caused the most anger and angst among its members. There are definitely warranted concerns that the Casino is receiving preferential treatment over other licensed venues when it does not in fact hold a liquor licence that is any different from any of its competitors.

There has in the past been some argument that the Casino attracts a different clientele to that of nightclubs or that people who go to the Casino go there with a different attitude. Personally, I do not buy this argument. The Casino would be rubbing its hands with glee over this proposal, because there is no question that this move will see more late-night partygoers funnelled through their premises. What this signals is that the government is not serious about the harmful impacts of gambling.

In its most recent report, the Productivity Commission found there is evidence that higher risk gamblers represent a much greater share of those people playing late at night. Moreover, at that time gamblers are more likely to be playing under the influence of alcohol, reducing the capacity for informed consent on a potentially very costly activity where impulsivity and faulty cognitions are already widespread.

The Productivity Commission concludes by suggesting there would be significant benefits from requiring hotels and clubs to shut down their gaming rooms no later than 2am. Of course, as we would all be aware by now, the government likes to pick and choose from the Productivity Commission's findings and recommendations according to what best suits its needs rather than those of the community. We saw that during the recent debate on the Gambling Reform Bill.

As I mentioned at the outset, the amendment would not apply only to the Casino but to other gaming machine venues as well. The negative effects of alcohol are not limited to violence. Excessive drinking and gambling are not a healthy combination—plain and simple. I urge all honourable members to support this amendment.

The Hon. G.E. GAGO: The government rises to oppose the Hon. John Darley's amendment No. 1. It just might help if we indicate at this point that we will be supporting his second amendment. In relation to amendment No. 1, the effect of this amendment will be to prevent the commissioner from exempting the Casino or a gaming area from a code of practice or a specified provision in a code of practice. It is, the government understands, a response to late-night codes exemption of the Casino from the 3am lockout provision. Casinos in all other Australian capital cities have 24-hour trade. Enforcing a late-night restriction entry at the Casino would place South Australia at a disadvantage in comparison to other states.

The Casino has always been understood to be an anomaly, if you like, in local licensing terms. In addition to being covered by the Liquor Licensing Act, it is also covered by its own unique act. Concerns have been raised that if the Casino is the only venue exempt from late night restricted entry provisions this may increase the potential of alcohol-related antisocial behaviour at the Casino. This risk will be mitigated by the fact that the Casino is subject to very strict capacity thresholds in respect of each of its licence areas, which are monitored and enforced. If issues of overcrowding arise at the Casino, there are overcrowding provisions in clause 7.10 of the approved licensing agreement between the state government and the Casino that can be utilised.

Furthermore, amendments to the Liquor Licensing Act, passed in 2011, equip the commissioner with additional powers to respond to issues affecting public order and safety. In a particularly serious situation, the commissioner could order the temporary suspension of the Casino's liquor licence. This would effectively require the cessation of the service of liquor at the Casino for a period of time and assist in defusing a situation affecting public order or safety whilst not breaching the approved licensing agreement.

The appropriateness of exempting the Casino from the 3am lockout aside, this amendment will prevent the commissioner from exempting the Casino from any provision of a code of practice significantly disadvantaging one of the state's major entertainment drawcards. The commissioner has advised the government that he has granted exemptions to the Casino for provision of the late night code. For example, the restriction on using glassware in premium gaming areas does not apply.

The government stresses that it is not just the Casino that has received the benefit of exemptions. The commissioner advises he has granted exemptions to the 3am lockout provision of the code to a number of venues for the gaming area only and for patrons participating in gaming.

The Hon. R.I. LUCAS: Mr Chairman, we have a real dog's breakfast before us at the moment on this. I wonder if you can clarify for those of us who have had some of these amendments dumped at a late stage—and we currently have Mr Brokenshire's amendment which we have had plenty of notice of—which of the minister's amendments are we currently considering of those that she dumped on the table this morning?

The CHAIR: None.

The Hon. R.I. LUCAS: We are not considering any? But the minister spoke to one of the amendments and moved it.

The CHAIR: Yes, that was later. All we are dealing with is—

The Hon. R.I. LUCAS: Mr Chairman, she spoke to an amendment and moved it.

The CHAIR: No.

The Hon. T.A. Franks: No, she—

The Hon. R.I. LUCAS: Well, she did.

The Hon. T.A. Franks: If you listened—

The Hon. R.I. LUCAS: I listened, and she did.

The CHAIR: It was wrongly moved under advice because there was amendment No.1 and amendment No. 2.

The Hon. G.E. Gago: That's right.

The Hon. R.I. LUCAS: So, we are not considering either of the minister's two amendments at this stage?

The CHAIR: We are not considering amendment No. 1 which the minister has withdrawn.

The Hon. R.I. LUCAS: Withdrawn?

The CHAIR: Well, wrongly moved.

The Hon. R.I. LUCAS: But are we considering any of the minister's amendments at this stage?

The CHAIR: No.

The Hon. R.I. LUCAS: So, all we have before us is the amendment from the Hon. Mr Brokenshire and an amendment from the Hon. Mr Darley?

The CHAIR: Correct.

The Hon. R.I. LUCAS: Okay, thank you. In relation to the Hon. Mr Brokenshire's original amendment, as he said, he has given the opposition and all members considerable notice of this and we thank him for that. The member indicated that he had sent around an email to members on 15 October which explained his reasons for it and he was not going to go into the detail. That is wonderful for those of us who received the email, but this is a critical issue and the debate ultimately will be followed by those in the industry with some interest, I am sure, and I would hope that at some stage the member might at least briefly place that on the record, because I think he would be the first to acknowledge that sending an email around to members is not part of the record in terms of his explanation and justification.

In the email that he is referring to—and I think it is the same email, because there are so many emails in relation to this issue—which came from Mr Rikki Lambert on behalf of Mr Brokenshire, in speaking on behalf of Mr Brokenshire his argument in part is as follows:

If you like, this amendment resets the rationales for issuing a code of practice giving broad powers to the commissioner who firstly has shown a responsible and even hand in his regulatory activities since his appointment and who, secondly, is formerly the police commissioner for the Northern Territory. I have—

I assume that is Mr Brokenshire rather than Mr Lambert—

full confidence that the commissioner will give effect to the objects of the act with these prescriptive provisions removed.

Even if that is true in relation to the commissioner, I do not offer a personal view but I think it will not surprise either the commissioner or the Hon. Mr Brokenshire that that is not necessarily a unanimously held view. But I hasten to say that I am sure that has never been the case that that would be a unanimously held view of all stakeholders in the industry about any commissioner, so I do not make that comment as any specific criticism of the current commissioner.

The point that I make—and I will expand on this with the legal advice that has been provided to a number of members—is that the legislation that we are putting down here is not solely dependent on the current incumbent in the position of the commissioner. Whether or not he is a good person, a capable person or a former police commissioner is interesting for however long the current commissioner may hold his position, but I am sure he would be the first to acknowledge that at some stage he will be replaced by a future commissioner who might have an entirely different skill set base and be seen by the industry in an entirely different manner.

In terms of the legislation that we put down, that is one of the reasons why we believe—and no-one is ever 100 per cent pure in relation to this, and by that I mean both Labor and Liberal governments—that, in terms of the continuum, the parliament can indicate what its powers are, and the courts have indicated to them what their powers are, and then the third category that I would nominate in my hierarchy of importance is, with the greatest of respect, unelected officials or unelected public servants.

The Hon. Mr Brokenshire is the first to rail passionately against the powers of public servants and unelected officers in a number of pieces of other legislation. Those in this chamber have had the benefit of listening for many hours to him speaking about those pieces of legislation and the powers that parliaments have bestowed on unelected officials.

As I said, we in this chamber are intrigued that the Hon. Mr Brokenshire is a passionate supporter of the current commissioner in terms of his capacity and, as I said, I will not offer a personal opinion on that because it is neither here nor there. The point I make is that, as to the principle that the Hon. Mr Brokenshire and others espouse in many other pieces of legislation, he clearly is very comfortable, as per this particular amendment, in essence, to say that, 'There is the position of the parliament, there is the position of courts that may well have made decisions based on the law in relation to licensing issues, but we are going to give unfettered discretions to an unelected officer to make his decisions on this particular issue.'

I will read some legal advice from people much more experienced in liquor licensing law than me, because (a) I am not a lawyer and (b) I do not practise in the jurisdiction, obviously, and I do not profess to be an expert in the area of liquor licensing. I understand the Hon. Mr Brokenshire and other members are aware of the considerable experience that this particular lawyer has. This is his advice in relation to section 11A:

Section 11A has been in the Act since 2009 and commenced operation from 26 November 2011 after considerable discussion and debate. There was one amendment effective 5 March 2012 adding an additional 'purpose' for measures which could be included in a Code of Practice. The Section in its present form contains eight such specific permitted purposes, and a number of examples for two of them. Some of them use language mirrored elsewhere in the Act and which has been the subject of interpretation and application over many years by the Licensing Authority.

The Section gives clear guidance to the Commissioner, the liquor industry and the general public as to the content of Codes of Practice, which, in turn, the Act makes conditions of licences affected. It gives Parliament some control of what can properly go into a Code.

The proposed amendment to Section 11A(2) removes the purposes and examples altogether, and gives the Commissioner virtually a totally unfettered discretion as to what measures he considers appropriate to go into a Code to further the objects of the Act.

I interpose at this stage to say that the Liberal Party's position in relation to the Hon. Mr Brokenshire's amendment has been that we believe that there should be a court decision on Friday, the parliament should be informed as a result of that and then we can make a judgement as to whether we believe we should support the Hon. Mr Brokenshire's amendments, or versions of them, in the future. That is, if there are weaknesses in the legislation identified then we can address them at that particular time with the full knowledge of what the court has decided.

The concerns of many experienced in liquor licensing law, and some of the stakeholders, is that the Hon. Mr Brokenshire, in concert with the government, is seeking, in essence, to confirm the government's position on the court case on Friday, and that is understood. The concern is that in doing so he is giving such a broad and unfettered discretion, not just to solve the problem of Friday's case but in a much wider area than might otherwise have been required. That will be confirmed, or not, on Friday in terms of the court decision because it is highly likely that is going to be based on the current law anyway, as we discussed earlier.

What these experts in liquor licensing law are saying is that in seeking to fix the particular problem on Friday, what the Hon. Mr Brokenshire is doing and what the government is very happy to do, of course, is to give a completely unfettered discretion to the commissioner over not just the issues that are in dispute on Friday but on a whole variety of other issues. I repeat what this very experienced lawyer says:

...and gives the Commissioner virtually a totally unfettered discretion as to what measures he considers appropriate to go into a Code to further the objects of the Act.

So, it is what he considers; it is not what the parliament considers, not what the elected members representing the electorate consider. We might all be elected with views being expressed to us in a government or opposition as to what the community's views are on liquor licensing issues and codes, but it is not going to be an issue there, it is going to be an issue for the commissioner in his discretion as to what is going to go into the code. Let me continue with this legal advice:

A degree of certainty and control is being removed. The proposed requirement for the Commissioner to consult with industry bodies is no real restraint or control, because the Commissioner alone is given the right to determine the manner of consultation and is not required to take any notice of matters raised with him during any consultation that does occur. I consider the proposed amendment a dangerous one for the liquor industry. It simply further increases the already considerable powers of the Liquor and Gambling Commissioner, and also potentially would permit trading hours and other licence conditions authorised by the Act and/or fixed by experienced Licensing Court Judges over the years, to be arbitrarily reduced and/or taken away.

That is the end of the legal advice. Let us be clear on the last part of that advice from this experienced lawyer in the jurisdiction. It increases the already considerable powers of the commissioner and, potentially, would permit that trading hours and other licence conditions which have been authorised by the act and/or fixed by an experienced licensing court judge be arbitrarily reduced and/or taken away.

What this licensing lawyer is saying is that the amendment being moved by the Hon. Mr Brokenshire, supported by the government and others, is basically saying that where you have trading hours for a licensed premises, you have licence conditions authorised by the act and they have then been fixed by licensing court judge decisions, judicial decisions, over a period of time. So, you have the act, you have licensing court decisions in relation to trading hours and licensing conditions. What this lawyer is saying is that we are going to give an unfettered discretion to the licensing commissioner to arbitrarily reduce those trading hours or licence conditions or to take them away. That is the power that we are going to give to the commissioner.

I think it is important, because clearly the Hon. Mr Brokenshire, the government and others are going to impose these particular legislative changes, that this advice be put on the record. That is why I am saying that I think it is important for the Hon. Mr Brokenshire to indicate his explanations for the amendments because he may well not agree with the learned legal advice I have just put on the record and if that is the case it is important for that to be on the record. There is a second letter from the same legal adviser which I place on the record as well.

The Hon. R.L. Brokenshire: Legal adviser or lawyer?

The Hon. R.I. LUCAS: Lawyer; yes. I guess they are both. A lawyer is a legal adviser. It reads:

In this letter I am making separate comment on the second of the proposed two amendments likely to be debated later today, namely a deeming provision that all Codes of Practice published under Section 11A of the Liquor Licensing Act to date, including the Late Night Trading Codes of Practice, are valid.

This amendment appears to be an 11th hour attempt at very short notice to interfere in the Full Court of the Supreme Court hearing listed this month. That hearing can be expected to give the Liquor and Gambling Commissioner, the Police, the Government and the industry guidance and direction with the new Late Night Code of Practice. The respective arguments for all relevant parties are, I understand, prepared and ready to be put to the Full Court. There will be submissions on behalf of affected licensees, the Liquor and Gambling Commissioner, the Commissioner of Police and the Government. The expensive and almost complete litigation in the Supreme Court should be allowed to proceed and be completed and not rendered academic. The proposed amendment would be totally unnecessary should the Full Court rule the Late Night Code of Practice to be valid and enforceable. Regardless of what the Full Court says, Parliament should not at such a late stage and at short notice meddle and interfere with the important work of the Supreme Court as a matter of principle.

That is the second of the legal opinions in relation to the amendment.

In concluding, the Liberal Party's position, as I said in the second reading, is that our preference was to await the advice of the court decision on Friday and then determine a position on the Hon. Mr Brokenshire's amendments or some tweaking or further amending of the Hon. Mr Brokenshire's amendment based on the advice that the court gives us on Friday.

Given that we are not in a position to be able to do that, we are in a position where, even though there might be some merit at some stage given a court decision to make some amendments to these provisions, we would not rule that out completely. At this stage we will not be supporting the Hon. Mr Brokenshire's amendment.

In relation to the Hon. Mr Darley's amendment, which relates to the operations of the Casino, vis-a-vis other licensed establishments in South Australia, the Liberal Party's position has been on the record for a long period of time. As I said, we have accepted for a long period of time that it is a separate and unique establishment, so much so that it has its own legislation in relation to the Casino Act, and there are many provisions which apply to the Casino which do not apply to other licensed establishments.

Indeed, over the years there have been many onerous security and oversight requirements that apply to the Casino that do not apply to licensed establishments, particularly in relation to gaming machines. They have become less different over the years—I concede that—but there are still significant differences. So from our viewpoint, we see it as a unique establishment with its own legislation and we do not support the Hon. Mr Darley's amendment.

The other point—and I guess only the government would be in a position to advise the committee—is that it is likely, I suspect, that if something like this was to occur, the taxpayers and the government might be exposed to compensation, given the long-term agreements that have been entered into by the government and the Casino (although I have not seen them), which I am sure probably relate to issues such as their operations. It might well be argued by the Casino that this impacts on them and it might well trigger compensation provisions. I do not know that for a fact because I have not seen the Casino agreements with the government, but certainly I know that that would certainly have been the case in other cases for legislative change. It might well be the case in relation to this, but I just do not know.

The Hon. T.A. FRANKS: I rise on behalf of the Greens to address, first, the amendment put forward by the Hon. John Darley with regard to removing the exemption that the Casino has from the 3am lockout. The Greens certainly support that amendment and do not believe the Casino should be exempted from the rules that are to now apply under the late night code to all other venues in that category.

I do note that it is often argued that somehow the Casino is a unique venue or destination, and that it is competing against the other casinos. The reality is that, if the other venues which hold a licence subject to this particular code are not able to let in patrons after 3am, then those in the CBD, or indeed those in the suburbs, where patrons are looking to continue to be on licensed premises will head to the Casino. Yes, they may also head to a restaurant, and so on, but I note that I have actually spoken to a particular licensee who has a restaurant licence and who has put up all the 3am lockout signs because they certainly do not want people walking from venues into their premises after 3am, and they fear they will become a place where people will seek to continue to stay out and socialise, and that is not their business model. So it is affecting them in that way in that, prior to this, they would have taken in people after 3am. I seek leave to conclude my comments.

Leave granted; debate adjourned.


[Sitting suspended from 13:01 to 14:17]


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