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

Committee Stage

In committee (resumed on motion).

New clauses 24A and 24B.

The Hon. R.I. LUCAS: I rise to address this particular issue and amendments. The Liberal Party has been sympathetic to the principles behind the issue being raised by the Hon. Tammy Franks. I think, as the Hon. Ms Franks has indicated, back in September of last year, she first raised this general issue in her Liquor Licensing (Entertainment) Amendment Bill. I am not sure whether, at that time, she had discussions with the respective shadow ministers, but certainly I know in recent times she has engaged with the shadow minister, Steven—

The Hon. T.A. Franks interjecting:

The Hon. R.I. LUCAS: Sorry?

The Hon. T.A. Franks interjecting:

The Hon. R.I. LUCAS: I said I assumed the Hon. Ms Franks would have had discussions, but certainly I know in recent times she has continued to have discussions with the member for Goyder, who is the shadow minister responsible for this particular area. The AHA have put a point of view to a number of our members as well, indicating their sympathy for the principles and their support also for, I suspect, the amendment as finally drafted.

Many of the issues that the Hon. Tammy Franks raised in her speech in September of last year and again today most rational members of parliament would support, in my view, but some of them did not seem to make too much sense at all. The final version of this amendment was tabled, as I indicated earlier this morning, just at the start of the session today at 11 o'clock. I must admit that my misunderstanding, obviously, was that the government was going to be supporting the Greens on this particular amendment of [Franks-2] which supersedes [Franks-1]. That was clearly a misunderstanding because the government has spoken strongly against the amendments this evening, for a variety of reasons. However, as I said, my misunderstanding of [Franks-2]—

The Hon. T.A. Franks: You were not wrong at the time.

The Hon. R.I. LUCAS: The Hon. Ms Franks says I was not wrong at the time. I know things do change—but from this morning to this evening. Certainly my understanding was that, therefore, this was an amendment which was likely to pass the Legislative Council because the government was supporting it and the government is obviously in a position with its advisers to look at a lot of the issues that I raised with AHA representatives when they briefly raised this with me last Friday.

I said to them that, in essence, as I looked at [Franks-1], we were looking almost at a blank cheque; that is, there were clearly silly and antiquated provisions in some licences which we would all agree to get rid of but I am assuming that there were some logical ones supported by local residents and others which may well be supported not only by local residents but may well be supported by members of parliament like myself—and others who have a similar view to myself. That was in relation to [Franks-1].

Since then there has been this further work done on trying to refine the Hon. Tammy Franks' first amendment to something that was more acceptable and something that perhaps met that initial view that I know I put to the AHA: how do we know, if we sign up to this, that you (the hoteliers) are not getting away with a blank cheque? That is, you are getting antiquated provisions removed, which we would all agree to get rid of, but at the same time there may well have been logical, hard fought for and well considered restrictions that residents in particular who live near to the venues would be strongly opposed to if they were going to be removed in some way.

As of this morning, when I heard that there was now amendment [Franks-2], my understanding at the time and for the rest of the day—I did not worry too much about it—was that this was going to be supported by the government and therefore would pass through the Legislative Council. Now we find that the government is strongly opposed to it, and I suspect, therefore, some other members in the chamber may also be strongly opposed to it. Given the strong Family First-government position on this particular bill it would surprise me if—

The Hon. R.L. Brokenshire: I think you're drawing a very long bow.

The Hon. R.I. LUCAS: It would surprise me—

Members interjecting:

The ACTING CHAIR (Hon. J.S.L. Dawkins): Order!

The Hon. R.I. LUCAS: It would surprise me if Family First were not supportive of the government's position on this in opposing the amendment—

The Hon. R.L. Brokenshire interjecting:

The ACTING CHAIR (Hon. J.S.L. Dawkins): Order! This is not a conversation. The Hon. Mr Brokenshire can get on his feet in a moment.

The Hon. R.I. LUCAS: The concern I have, in particular—and, again, the dilemma is having had the understanding that this was likely to go through with government support, I have obviously not had the opportunity to have a party room meeting or a joint party room meeting and to say to my colleagues, 'Hold on, there are some particular issues that we need to think about again in relation to this.'

The particular one that I am concerned about is the potential impact on local residents. I was not firing on all four cylinders earlier when I was listening to the minister's response so I only picked up bits and pieces of it. I will read it in greater detail tomorrow in the Hansard. However, in looking at the Hon. Tammy Franks' amendments, in particular 24B, there is a new provision to be inserted which comes under 106(1) in the act, the complaint about noise emanating from licensed premises. For the benefit of members, 106(1) states the following:

If—

(a) an activity on, or the noise emanating from, licensed premises; or

(b) the behaviour of persons making their way to or from licensed premises

is unduly offensive, annoying, disturbing or inconvenient to a person who resides, works or worships in the vicinity of the licensed premises, a complaint may be lodged with the Commissioner under this section.

The Hon. Tammy Franks' amendment package seeks to insert a (1a) after subsection (1) that says:

However, a complaint may only be lodged under this section in relation to entertainment (other than prescribed entertainment) provided at licensed premises in accordance with this Act on the grounds that the noise emanating from the licensed premises is excessive.

Mr Acting Chairman, I am not a lawyer, I do not practise in this particular jurisdiction and I have not had the benefit of consulting with my joint party room colleagues, such as your good self and others, but my quick reading of that would indicate that, in the act we are talking about, the noise coming from a licensed premises for a complaint to be lodged, and potentially for action to be taken, only has to meet a level of criteria, being 'unduly offensive, annoying, disturbing or inconvenient to a person who works, resides, works or worships'.

The new amendment which says that this complaint can only be lodged on the ground that the noise emanating from the licensed premises is excessive, to me, potentially, would indicate that that is a higher threshold—a higher noise threshold and a higher legislative threshold—that would need to be met before a complaint on the ground of noise can be lodged. I am interested in both the government's views (because they are opposing this amendment) and the Hon. Tammy Franks' views on my interpretation of that.

Certainly, if that is the case—that is, that residents will be placed in a weaker or significantly weaker position in terms of being able to complain about noise from licensed premises—and at this stage I can only speak on my behalf, I believe, and I would be guessing the majority of my colleagues would agree with me, that if we were going to move down that particular path we would need to do that after we had thoroughly considered what the ramifications of that might be in relation to many licensed premises around the state.

We have a dilemma, and this is why, as I said, I recounted the conversation I had with the AHA last week about their almost asking us to sign up to a blank cheque—not them asking: at that stage they were asking us to support the Hon. Tammy Franks' amendment—in relation to removing all these restrictions. I am interested in the government's response to that.

It is issues like that that I am concerned about so, whilst I think we have indicated through the member for Goyder that the principle behind what the Hon. Tommy Franks is seeking to do we are supportive of, I am concerned about this amendment, and now this refined amendment which the government, on its best advice, is saying is going to create significant problems, from the Liberal Party's viewpoint.

First, before I put down our final position on the amendment, I am interested in getting the minister's response, if I could, and whether the Hon. Ms Franks has a particular perspective on this issue of excessive noise before we could have a complaint, as opposed to something we have at the moment, which appears to be 'offensive, annoying, disturbing or inconvenient'.

The Hon. G.E. GAGO: In relation to the question from the Hon. Rob Lucas about whether the difference in the definitions lifts the height of the bar, the advice I have received is that it is likely to lift the bar a little but probably not a lot.

The Hon. T.A. FRANKS: I thank the spokesperson for the opposition for his contribution and his expression of some sympathy for the intent of the bill, and I note that, while he cited that the government had had strong opposition, indeed, they also expressed sympathy for the intent of the amendment.

In consultation with the government, I was attempting (as a crossbencher without a department and the resources a government has) to come up with a solution to what I believe we are all now agreeing is a real problem. Certainly the aspect of the changed wording to excessive has been remarked upon, both by the Law Society and, as members would be aware, by the AHA. The AHA believes that my amendment does not go far enough and sets the bar too high and makes it too easy for those residents to complain.

The AHA has pointed to a solution to this where, instead of simply one person being able to trigger complaints, that perhaps we set that number, that is also cited currently in the act, as 10. I do have some sympathies in giving some parliamentary guidance to the commissioner that we would see that the number of 10 complainants being the bar that is typically met, rather than simply one which I understand from the representations that I have had from licensees is more commonly the practice. Certainly, I would be open to exploring wording around that, taking on the Law Society's concerns with regard to the definition of excessive as well, itself being open to interpretation, but as is offensive, annoying, disturbing or inconvenient. All those words are quite subjective as, in this case, is entertainment.

The Hon. R.I. LUCAS: I thank the Hon. Tammy Franks and the minister for their responses. I indicate that I think there are potentially a number of ways forward, and I am not the shadow minister responsible in this area. The minister flagged a particular approach. I think there are two possible approaches that merit consideration. The Hon. Tammy Franks has raised a couple of specific issues which I think merit consideration as well. However, in terms of these antiquated provisions (of which she listed many), possibly what a government should be looking at, with all the resources available to it, is to come up with a system which would fast-track changes to licensing provisions.

As I understand it—although I do not understand it as well as the Hon. Tammy Franks—it is the view of some licensees that the current system is cumbersome in terms of making changes to the provisions, so maybe what the government should be establishing is some fast-tracking mechanism for these antiquated provisions. It should not be beyond the wisdom of a government and its officers to come up with a proposal like that.

The other one I raised with the AHA might actually put the mettle on a government of whatever persuasion to move. The Liberal leader Steven Marshall has indicated that, if elected, there will be an annual repeals day. This would seem to be a perfect example—while it is not legislation but it is red tape and removal—of something which could be done. The other option might be that you could sunset clause some of these provisions and basically say, 'You have a year, two years, or whatever it is, to justify the continued retention of them, and if you have not been able to justify them, they will disappear.' There should be possibilities.

Now that everyone—this government, an alternative government, the Greens and others—has acknowledged that there are some problems, I would have thought that, with goodwill, there are a number of potential ways we could tackle some of these issues to the satisfaction of the people who use the premises, the hoteliers and the licence holders, but equally so that we do not disadvantage unduly residents and locals who may well be disadvantaged if we were to go down the particular model that is before us. Having engaged and listened to that debate, I would indicate that at this stage the Liberal Party will not support the amendments before the chamber.

New clauses negatived.

Remaining clauses (25 to 41) passed.

Schedule 1.

The Hon. R.L. BROKENSHIRE: I move:

Amendment No 2 [Broke-1]—Schedule 23—Insert:

3—Certain codes of practice taken to be valid

(1) A code of practice, and any provision of a code of practice, that—

(a) was published under section 11A of the Liquor Licensing Act 1997 (as in force before the commencement of this clause); and

(b) is purportedly in force on the commencement of this 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 of the Liquor Licensing Act 1997 as amended by this Act.

(2) However, no action may be taken under the Liquor Licensing Act 1997 in respect of a person's refusal or failure to comply with the provision of the Late Night Trading Code of Practice during the period commencing on 1 October 2013 and concluding on the date on which this clause comes into operation.

(3) In this clause—

Late Night Trading Code of Practice means the Late Night Trading Code of Practice under the Liquor Licensing Act 1997.

Note—

The Late Night Trading Code of Practice was published by notice in the Gazette on 6 June 2013 then came into operation on 1 October 2013.

I have already spoken in part to this amendment. I am happy to again reiterate all that I have said in an email if the house so decides. Suffice to say—if I can just do a brief summing up—the practical effect of this amendment is that it does validate the existing late night code of practice and it does bring to an end the questions currently on appeal in the Supreme Court.

As I indicated earlier, personally I make no apology for that. I indicated that very highly educated constitutional legal people confirm that this practice has occurred and can occur. We make the laws in this parliament, not the courts and, where an uncertainty has been identified, the parliament is within its rights to clarify the law.

Firstly, I have moved subsection (2) in this amendment to protect those licensees who might otherwise be adversely affected by retrospectivity of this amendment. They have, if you like, immunity until the new legislatively endorsed code of practice comes into effect. I think that is only fair and reasonable.

Secondly, I urge the government to consider its position on legal costs in relation to the present case before the courts based on what we are doing here and the fact that there was a trial period. Unless there are any requests for me to go into more detail, I think I have covered it in the debate on the previous amendment.

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

Amendment No 1 [AgriFoodFish-4]—

Amendment to Amendment No 2 [Broke—1]—

Schedule 1, page 13, after line 23—After inserted clause 3(1) insert:

(1a) The requirements of section 11A(4a) do not apply in relation to a code of practice referred in to subclause (1).

I have spoken to this amendment in clause 1; it is consequential on the Hon. Robert Brokenshire's second amendment which validates the code of practice published before the date the amendment commences.

The Hon. R.I. LUCAS: The Liberal Party will consider this as part of the package of amendments Family First and the government team are putting in relation to this legislation. We indicated our position earlier; that is, we oppose it. We divided earlier to indicate the strength of our position. We do not propose to divide again.

Amendment carried; amendment as amended carried.

The ACTING CHAIR (Hon. J.S.L. Dawkins): There is one further amendment to the schedule, and that is [Franks-2] 2, schedule 1, page 13, after line 23. I call the Hon. Tammy Franks.

The Hon. T.A. FRANKS: Thank you, Mr Acting Chair. As that is a consequential amendment, I will not move that amendment.

Schedule as amended passed.

Title passed.

Bill reported with amendment.

Third Reading

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) (21:56): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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