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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).

Clause 6.

The Hon. T.A. FRANKS: I am continuing my remarks, where I was addressing the amendment put before us by the Hon. John Darley. I was noting that there are some venues, certainly in the CBD, that do not fall under the late night code of practice, yet they have put up the 3am lockout signage and are undertaking their business as if they were subject to those provisions. Even though they hold restaurant licences, they do not want the influx of those patrons looking to continue their night out. I find that interesting because if those particular venues are avoiding that clientele, clearly that clientele is going to go somewhere, and it will be no surprise if they head towards the Casino.

I question whether, with the Casino redevelopment, any of the bars that have been outlined—the new bars the Casino plans to have on its premises—will be more appropriately referred to as clubs. I would certainly seek an assurance from government that there will be no nightclubs in the new Casino redevelopment in order to give an assurance to those venues, such as Sugar and HQ, whose businesses were impacted by this lockout move. I sympathise with their concern that the Casino has been privileged over them.

I also ask the government to explain why, if the Casino is a particular destination venue, that destination would need to be arrived at after 3am. Surely anyone who is looking to go to the Casino could sort out their schedule to ensure that they arrived at this particular destination prior to 3am. I would like the government to address those concerns.

The Greens will be supporting the Hon. John Darley's amendment. Time and time again in this place we see that the Casino is privileged. Yes, it has been acknowledged that it has its own act, but that does not mean that it should be given carte blanche to operate without some of the agreed constraints that have been put on other licensed venues. It highlights that what we are doing here is not punishing the venues that do the wrong thing but that we are still taking a blanket approach.

Ruling particular venues in or out simply without that nuanced approach is not the way forward. Not addressing the root of the problem of alcohol-fuelled violence by those who perpetrate such violence rather than necessarily the premises they are around—and, in some cases, not even having attended—does seem to be putting the cart before the horse. In regard to his amendments, the Hon. Robert Brokenshire was quoted on radio as saying:

The government has pushed for a 3 o'clock lockout which I do support; chose to do it by regulation. Regulation is not as strong as legislation and does open the door for possible challenges in the court; whereas by legislating it's absolutely black and white.

If the Hon. Rob Brokenshire can indicate what legal advice he has had in terms of drafting the amendment before us, and whether he has had any contrary opinions put to him, it would be much appreciated.

The Hon. G.E. GAGO: I believe I have already put on record a number of reasons for the exemption for the Casino, so I will not repeat those. In addition, I can say that the primary focus of the Casino is on gambling or gaming, not clubbing, just as the primary focus of restaurants is on the serving of food, rather than clubbing or entertainment, and restaurants are exempt from the lockout provisions as well. I understand that a different point of view is held amongst some in this chamber, but that is the way the government looks on this.

In terms of the question around the exemption resulting in the Casino being able to set up a nightclub that might compete with other parts of the clubbing industry, we believe not because the exemption is to the primary gaming area only and, although we are still negotiating the definition of that, it is clearly our intention not to capture other general areas.

The Hon. R.I. LUCAS: The Hon. Tammy Franks put a question to the Hon. Mr Brokenshire, but I guess it is for him to respond as he chooses.

The Hon. R.L. BROKENSHIRE: I am happy to. I was just looking around, being a gentleman, as I always am.

The Hon. G.E. Gago: He's not one to push in.

The Hon. R.L. BROKENSHIRE: That's right. I am a very gentle person. I thank my honourable colleagues for their questions and, in order to satisfy a longstanding colleague I have worked with over an extended period of time, the Hon. Rob Lucas, first I will further explain and put on the public record, rather than email, the reasons we are moving these amendments.

The principal concern of these amendments relates to the late night trading code (LNTC), which was gazetted on 6 June and which came into operation nearly four weeks ago, on 1 October. I am satisfied that the LNTC strikes a balance between the need for public safety on the one hand and the freedom of liquor licensees to operate their businesses on the other hand.

I am aware that there is a court challenge to the LNTC by certain venues—two, I understand, and I am advised that one of those is probably reluctant to be there, but I will not go into that—affected by the changes and, whilst those matters are under appeal and therefore sub judice, the parliament is at liberty to clarify its intention on the Liquor Licensing Act by amendments of the nature I propose.

I do not take lightly nor do I apologise for bringing an amendment when there is a challenge to the code and regulations within the court. I also place on the public record that no-one has moved within the 10 sitting day period, which is about to expire tomorrow or thereabouts, to disallow the code of practice and the regulation, but I did look into the issue around being able to bring in an amendment when there is something before the courts.

If members want to have a look at a 2008 paper in the Sydney Law Review, the author, Peter A. Gerangelos, who is a senior lecturer in law, faculty of law, University of Sydney, actually acknowledges in the paper that 'the writer especially thanks Sir Anthony Mason for his commentary on this article and his invaluable comments on reading the article in draft'. For the record, Sir Anthony Mason was a former chief justice of the High Court, and it is a very detailed paper.

I will not go through the whole paper now, but suffice to say that it is concluded that it is right and proper for a member of parliament and for the parliament to move amendments to ensure that something that it is an intent is amended and enshrined in law. It is a detailed paper and I am happy for colleagues to have a look at it and, if they want a copy of it, I am happy for them to let me know over the meal break and I will give them a copy. But the bottom line—putting it simply—is that it is very right and proper under the constitution, and ultimately this paper says that parliaments have every right if they want to move an amendment to legislation whilst there is something before a court.

As I said, the parliament is at liberty to clarify its intention in regard to the Liquor Licensing Act by amendments of the nature I propose. I will address the aspects of the amendment step-by-step. The first part of amendment No. 1 is a new subclause 11A(2). The existing list of measures that a code of practice may include has become needlessly prescriptive and unwieldy, and I believe that the act is better served by referring back to the objects of the act itself which for your assistance I restate below:

(a) to encourage responsible attitudes towards the promotion, sale, supply, consumption and use of liquor, to develop and implement principles directed towards that end (the responsible service and consumption principles) and minimise the harm associated with the consumption of liquor; and

(b) to further the interests of the liquor industry and industries with which it is closely associated—such as the live music industry, tourism and the hospitality industry—within the context of appropriate regulation controls; and

(c) to ensure that the liquor industry develops in a way that is consistent with the needs and aspirations of the community; and

(d) to ensure as far as practicable that the sale and supply of liquor contributes to, and does not detract from, the amenity of community life; and

(e) to encourage a competitive market for the supply of liquor.

If you like, this amendment resets the rationale for issuing a code of practice. I would have preferred the government—and I have said this before in a place on the public record—to have brought the code and associated statute and legislative requirements into the parliament some time ago rather than through a regulation format. That is why I was so strong on wanting to bring this amendment through. It is one of the reasons why, because at least we can have a democratic debate in the house now.

Secondly, it is important that we give clarity to this situation. I know going back a long time ago when I was police minister I went out on several patrols with police in Adelaide and it is eye-opening to see what goes on. I remind some members of the time we used to sit a lot later than we do now—fortunately we do not often sit late and it is much better. But when we used to sit very late and you would go around the corner of the Heaven nightclub at 2, 3 or 4 o'clock in the morning, you would see people who were totally inebriated and without any self-control doing things that I will not describe in the house before the dinner break. They were in the gutter, on the footpath or falling out over the road. Frankly, those sorts of people did not need to be going back into that venue; they needed a cab and they needed to go home and have a good sleep.

Since then I think it is fair to say that there has been a deterioration, which we have seen in the media over recent years. I am no wowser—and members know that—but there comes a point where if you want to drink anymore maybe you are better off to go home and drink. We have to come to a point where we can agree as a parliament on a way forward, and I am sure that all members agree we do not want to see this situation getting worse than it already is.

If we are going to get recommendations from organisations like Lonely Planet that we are in the top 10 visitation recommendations for 2014 then we need to ensure that, when people come and spend their money here and grow our economy, they can have a safe and enjoyable holiday. I am advised that, in the last few weeks, since the code has been in practice, there has been a huge reduction in behaviour. I have been advised by sources through the police that there has been a much better behaviour pattern. I have also been told that anecdotally by someone who comes into the city to do their business in the shops on a Saturday morning. They described the difference they now see in the city at 7 or 8 o'clock in morning.

Just to answer the Hon. Rob Lucas's question before I answer the Hon. Tammy Franks' question, I asked Rikki Lambert, because of my workload, to prepare for me an email to all of my colleagues. I instructed my adviser on what I wanted in the email, and I then I read it before it was authorised to be sent off. In the email, I did say:

If you like, this amendment re-sets 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 activity since his appointment and

who, secondly, is formerly the Police Commissioner for the Northern Territory.

I know that, had he not taken on that position, together with the excellent commissioner we have now in Mr Gary Burns, he would have been, together with Mr Grant Stevens and Mr Tony Harrison, I think, in the top four for the police commissioner role. There is no doubt in my mind that they have been for some time the shining lights at the executive level in policing. I do not mind putting on the public record that I do have full confidence that the commissioner will give effect to the objects of the act with these prescriptive provisions removed.

I respect the Hon. Mr Lucas's contribution, but I see it that we have only three options. One option is that the parliament takes more and more responsibility on the micro and macro issues around safety and licensing matters. To me, that would be unworkable and would be a real problem, but that is an option. Another option would be that everything is considered by the courts, but that would be costly and also unworkable. The other option would be that the parliament sets the framework through the objects within the act and then you have faith and confidence in the commissioner of the day.

Yes, I do agree with the Hon. Rob Lucas that I have been critical of some government appointments at executive level, but I think that you will find my criticism has always been directed at political appointments to chief executive officer and deputy chief executive officer positions within agencies and departments. I do not think that I have ever been critical of any appointment the former government or this government have made at commissioner level. For example, I have supported the concept for the current appointment of the ICAC commissioner, which I believe everybody says was a fine appointment. That is why I put those comments on the public record with respect to the commissioner, because when it comes to the workings and the practicalities of—

The Hon. R.I. Lucas: Didn't you move a motion on the Health and Community Complaints Commission?

The Hon. R.L. BROKENSHIRE: Yes, I may have with that one, but that was—

The Hon. R.I. Lucas interjecting:

The Hon. R.L. BROKENSHIRE: No, I will put on the public record the reason why. That was because—

The Hon. R.I. Lucas interjecting:

The Hon. R.L. BROKENSHIRE: He has a memory like an elephant.

The Hon. K.J. Maher interjecting:

The Hon. R.L. BROKENSHIRE: No, I am happy to put it on the public record. They did not fund adequately that whole area; that was the problem. But I do not believe the funding is an issue when it comes to the Liquor and Gambling Commissioner. To get back to the other point, yes, I agree with the Hon. Tammy Franks, I am on the public record saying in a radio interview that I wanted to enshrine in law 3 o'clock, and I stand by that—and this does, for all intents and purposes, as best we can, enshrine in law the 3 o'clock lockout.

When I started to hone in on how you can do that with an amendment, the advice I received was that this was the best way to have the amendment. We support both the Hon. Ann Bressington and the Hon. John Darley's intent to have a review, but if we were to put a simple line in there that said that 'the lockout will occur at 3 o'clock' then any time there needs to be any reconsideration of that it has to come back before the full parliament, which would be cumbersome.

I know the AHA says that, if you are not that specific, then it might be that there could be a shift with the commissioner to 2 o'clock. Alternatively, if there is a review and it is recommended that it is 4 o'clock in six months or 12 months, then the flexibility is there to allow the industry to get on with its job and, therefore, to have the code of practice and the operational work being left with the commissioner. I am told by the AHA that they do not have a problem in respect of the commissioner running that code of practice. I am not a lawyer, but that is the advice I had.

Personally, I sit comfortably with my amendment; whether or not the house does, we will see tonight. However, in response to the Hon. Tammy Franks' good question, I sat comfortably with that answer. I can come back after 6 o'clock with a specific legal answer if you want me to further put that through, because I know the Hon. Rob Lucas wants to sit all night. If we have to sit all night then I guess we have to sit all night. I will leave it at that.

The Hon. G.E. GAGO: I will take this opportunity to place on the record advice that we received today from the Commissioner of Police on the operation of the first four weeks of the late night code. I thought members might find this useful in their consideration of the Hon. Robert Brokenshire's amendment. The total number of alcohol-related offences where the last drink location was a licensed venue in the suburb of Adelaide was 192 for the period 1 October to 31 October 2011. In 2012, it was 205, and it was 152 in 2013.

The figures for 2013 show a 20.8 per cent decrease on 2011 and a 25.8 per cent decrease on 2012. In addition, the levels of intoxication recorded for these offences have shown a significant decrease in the number of people being recorded as grossly intoxicated, as well as those recorded as slightly affected and not affected. The commissioner has also reported that anecdotal evidence from front-line police shows that the mood in and around Hindley Street has vastly improved, with less obvious tension and aggression displayed by people in the street.

The commissioner indicates that there is a high level of compliance with the code and that, generally, licensees are in favour of the code. There has also been a significant decrease in issues associated with licensed premises after 3am, particularly with people loitering in and around licensed premises. Police strongly support the conditions of the code. So, a vote against the Hon. Robert Brokenshire's amendment is obviously a clear attack on the integrity of the code and the government does not want any member voting on this bill to be unaware of the possible consequences. As you can see, there is some clear evidence that this is having a real impact out on our streets, improving the safety and general amenity of the entertainment district.


[Sitting suspended from 18:00 to 19:45]


The Hon. R.I. LUCAS: I do note that I made but one interjection prior to the dinner break, so I do not think the Hon. Mr Brokenshire or, indeed, other members can indicate that any delay before the dinner break had anything to do with me.

The only point I want to put on the record in response to the contribution from the Hon. Mr Brokenshire, the Hon. Ms Franks and others is the position of the AHA in terms of its representations to the Hon. Mr Brokenshire, me and others in relation to the Hon. Mr Brokenshire's amendments. I am aware of the views the AHA has put to the Hon. Mr Brokenshire in relation to the amendments, and this was from Ian Horne, who indicated as follows:

However, I remain somewhat confused as I heard you [Mr Brokenshire] on ABC 891 suggest that your amendments were designed to put the lockout into legislation rather than regulation, i.e., within the late night code. Your amendments don't do that but would appear to greatly increase the power of the Commissioner, who designs and creates the codes and further remove any legislative discussion.

The amendments seem to further reinforce that lockouts, whether at 3am, 12 midnight, even 4pm in the afternoon or whatever, remain exclusively at the discretion of the bureaucratic and administrative process and not that of parliament. Our problem is we have supported the late night code, warts and all, after significant discussion consultation, negotiation, only to have the very foundations of the code-making process uprooted at the finishing line.

They also indicated again to the Hon. Mr Brokenshire and to other members, including myself:

Recognising the intention of the Hon. Mr Brokenshire's amendment is to give a level certainty by deleting all of section 11A(2), which was included as a result of a debate in the Legislative Council to provide some guidance to the commissioner and industry of matters that could be included into a code. We are now faced with the commissioner being able to include any measure that can reasonably be considered appropriate and adapted into the furtherance of the objects of the act.

This is a particularly wide discretion and arguably even wider than the current power, given the proposed addition to the objects set out in the government's bill to ensure that the sale and supply of liquor occurs in such a manner as to minimise the risk of intoxication and associated violent or anti-social behaviour, including property damage and causing personal injury. Currently the commissioner must at least apply his mind to the matter set out in 11A(2). He will not be required to do that under the proposed amendment. While the proposed 4A is a laudable provision, in practice places no obligation on the commissioner to properly engage or even take into consideration any or all of our submissions.

I will not go on and read this.

The Hon. R.L. Brokenshire: I've read it.

The Hon. R.I. LUCAS: Well, there are pages of others. The Hon. Mr Brokenshire has read it, as have a number of other members. I wanted to place on the record the position of the Australian Hotels Association in relation to it. It is consistent with the legal opinion I put on the record when we debated this earlier today, and that is the concern that, in seeking to resolve the particular issues in relation to the code, the relatively blunt instrument being used in this amendment and being supported by the government gives an unelected official extraordinarily wide and unfettered powers in relation to the operations of businesses in the way that the lawyer and the AHA have outlined.

The AHA's position, as I just outlined, is that there was a lot of consultation and discussion that went on in relation to the late night code. They have indicated they had concerns, but in the end they signed up, as they say 'warts and all', to the late night code, and what they see from this amendment, supported by the government as they say, is the rug being pulled out of the AHA's position, right at the finishing line, when they believed they had a deal that had been negotiated with the government on this particular issue.

I only place on the record the AHA's position as someone the government has certainly indicated has the support of its proposal in relation to the late night code and this whole debate. They have been oft quoted by the Attorney-General in this particular debate, so it is important to place on the record their concerns about the amendment being moved by the Hon. Mr Brokenshire, and a warning sign, I think. I guess that time will tell; whoever is in government after March next year when the review is conducted can look at the reality of what has occurred.

Just before the dinner break the minister quoted, I think, four weeks figures immediately after the start-up. A review will not be done by the police commissioner. The police commissioner and the police have a strong view in relation to this. If there is going to be a review it would need, obviously, to canvass not only the views of the police commissioner but also we need to look at it, because my understanding, from the discussions last Friday with the member for Fisher in looking at Newcastle, is that the view of police there was that the key thing was not the lockout or lock-in issue but the increased police vigilance and presence in the entertainment precinct—I think $550 on-the-spot fines and a variety of punitive measures in terms of the police presence.

In judging a mechanism such as a lockout, you can only fairly do it if you also compare the police presence during the four weeks of the period and other periods because, if at the same time as introducing the lockout you have a significantly increased police presence (which is something we have always supported), and a crackdown in terms of poor behaviour from the minority who do misbehave in a public place or within licensed premises (we have always supported that), you may well get improved figures, hopefully, and the issue then is which part is due to the increased police presence and vigilance and a crackdown and which part is due to your lockout or lock-in provision?

If you want to support a lockout or a lock in, you say, 'It is all due to the lockout or the lock in,' and you say, 'What a great initiative this was.' An independent review might support that or an independent review might support what many of us have been calling for, for years now: a significantly increased police presence, particularly on Friday and Saturday evenings and early mornings in the entertainment precincts like the CBD. Through that mechanism you are likely to see significantly improved behaviour and reduction in the number of incidents of crime and misbehaviour in a public place.

The CHAIR: The question is that subclause (1) lines 9 to 12, as proposed to be struck out by the Hon. Mr Brokenshire, stand as printed.

The committee divided on the question:

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

Majority of 3 for the noes.

Question thus negatived; Hon. R.L. Brokenshire's new subclause (1) inserted.

The CHAIR: The next question is that new subclauses (1a) and (1b) as proposed to be inserted by the Hon. John Darley be agreed to.

The committee divided on the amendment:

AYES (6)
Brokenshire, R.L. Darley, J.A. (teller) Franks, T.A.
Hood, D.G.E. Parnell, M. Vincent, K.L.
NOES (13)
Dawkins, J.S.L. Finnigan, B.V. Gago, G.E. (teller)
Hunter, I.K. Lee, J.S. Lensink, J.M.A.
Lucas, R.I. Maher, K.J. Ridgway, D.W.
Stephens, T.J. Wade, S.G. Wortley, R.P.
Zollo, C.

Majority of 7 for the noes.

Amendment thus negatived.

The CHAIR: The question now is that new subclause (1a), as proposed to be so inserted by the Hon. Mr Brokenshire, be so inserted.

Hon. R.L. Brokenshire's new subclause (1a) inserted.

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

Amendment No 1 [AgriFoodFish–2]—

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

I have already spoken to this amendment at clause 1 so I have nothing further to add unless there are questions in relation to that. As I have indicated, it addresses a minor drafting issue.

The Hon. R.I. LUCAS: The Liberal Party had a test vote earlier in relation to the Brokenshire-government team's agreement on this particular issue—the 'coalition of the willing'—so we do not seek to delay the proceedings by calling for votes on each and every subsection. However, this was one of the issues that was dumped on the table at 11 this morning.

We were able to consult with some stakeholders this afternoon, and I was also able to speak with the shadow minister. Certainly, the AHA's advice to us during the afternoon was that this was consistent with the package of amendments that the Brokenshire-government team was moving on this particular issue, and they had no particular concern about this particular element of it. They expressed their reservations about the Family First-government package on this issue, but this is, in essence, a consequential part of that, and we accept that.

Amendment carried; clause as amended passed.

New clause 6A.

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

Amendment No 2 [Darley–2]—

Page 4, after line 18—Insert:

6A—Insertion of section 11B

After section 11A insert:

11B—Review of codes of practice

(1) The Minister must cause a review of the operation of any codes of practice published under section 11A to be conducted immediately following the first anniversary of the commencement of this section.

(2) A review under subsection (1) must be completed, and a report on the results of the review provided to the Minister, within 6 months after the first anniversary of the commencement of this section.

(3) The Minister must, within 12 sitting days after receipt of a report, cause copies of the report to be laid before each House of Parliament.

It is a straightforward amendment. It requires that a review of the operation of any codes of practice be conducted immediately following the first anniversary of the commencement of these provisions. I think we all know the benefits provided by these sorts of reviews by now. I trust this provision will enable us to appropriately assess the impact of the late night trading code and whether it results in the desired effect, especially with respect to alcohol-fuelled violence. In addition to any other benefits, it will enable us to identify any pitfalls and consider the need for further legislative change. I urge all honourable members to support the amendment.

The Hon. G.E. GAGO: The government supports the amendment. The need to review the operation of a code of practice is something the government has already started thinking about in terms of the data that would need to be collected to ensure a review can take place. Mandating a review in legislation poses some challenges in terms of statutory deadlines and the like, but nothing that the government considers unreasonable, particularly in this case with the review to be commenced at the 12-month mark and completion within six months. So, we are happy to support the amendment.

The Hon. R.I. LUCAS: The Liberal Party supports the amendment for review.

The Hon. R.L. BROKENSHIRE: Family First supports this as well. It is always healthy to have a review and keep us busy.

The Hon. T.A. FRANKS: The Greens rise to support this very sensible amendment, and indeed have indicated that without an appropriate review we would not look so favourably on support for the bill overall. We commend the Hon. John Darley for ensuring that we have due process and actually making sure that what this bill purports to do it, indeed, does. I look forward to real information coming from that review and I hope that it is not done in a hasty or non-thorough way.

The Hon. K.L. VINCENT: Not that any further support for this very sensible amendment is required, but just for the record, as I think I mentioned in my second reading contribution on this bill, Dignity for Disability supports this very sensible amendment.

New clause inserted.

Clauses 7 to 24 passed.

New clauses 24A and 24B.

The Hon. T.A. FRANKS: I move:

Amendment No 1 [Franks–2]—

Page 7, after line 23—Insert:

24A—Substitution of Part 6 Division 5

Part 6 Division 5—delete Division 5 and substitute:

Division 5—Prescribed entertainment not to be provided without consent

105—Prescribed entertainment not to be provided without consent

(1) A licensee must not use any part of the licensed premises, or any area adjacent to the licensed premises, for the purpose of providing prescribed entertainment without the consent of the Commissioner.

Maximum penalty:

(a) for a first offence—$10,000;

(b) for a second or subsequent offence—$20,000.

Expiation fee: $1,200.

(2) A licensee must not use any part of the licensed premises, or any area adjacent to the licensed premises, for the purpose of providing entertainment—

(a) if the licensed premises are located within a prescribed entertainment area—during the period between 2 am and 11 am; or

(b) if the licensed premises are not located within a prescribed entertainment area—the period between midnight and 11 am,

without the consent of the Commissioner.

Maximum penalty:

(a) for a first offence—$10,000;

(b) for a second or subsequent offence—$20,000.

Expiation fee: $1,200.

(3) A consent under this section—

(a) may be conditional or unconditional; and

(b) may be varied or revoked by the Commissioner.

(4) An application for consent under this section—

(a) must be made in a manner and form determined by the Commissioner; and

(b) must be accompanied by such information as the Commissioner may reasonably require to determine the application; and

(c) must be accompanied by the prescribed fee.

(5) In this section—

Adelaide central business district means the area of the City of Adelaide bounded—

(a) on the north by the northern bank of the River Torrens; and

(b) on the south by the northern alignment of South Terrace; and

(c) on the east by the western alignment of East Terrace and its prolongation north to the northern bank of the River Torrens; and

(d) on the west by the eastern alignment of West Terrace and its prolongation north to the northern bank of the River Torrens;

prescribed entertainment area—the following are prescribed entertainment areas:

(a) the Adelaide central business district;

(b) any other area declared by the regulations to be a prescribed entertainment area for the purposes of this section;

prescribed entertainment means—

(a) adult entertainment; and

(b) a professional or public boxing or martial art event (within the meaning of the Boxing and Martial Arts Act 2000),

but does not include entertainment of a kind excluded by the regulations from the ambit of this definition.

24B—Amendment of section 106—Complaint about noise etc emanating from licensed premises

(1) Section 106—after subsection (1) insert:

(1a) 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.

(2) Section 106—after subsection (9) insert:

(10) In this section—

prescribed entertainment has the same meaning as in section 105.

At this point, I would like to address the issues covered by the amendment. The amendment seeks to minimise the impact of what I have dubbed the culture cops in previous media releases, and certainly my private member's bill addresses this issue, and to remove those culture cops from policing the Liquor Licensing Act; not from policing the responsible provision of alcohol but, indeed, from policing entertainment.

It may come as a surprise to members of the community, and indeed some members of this council, that we do actually have archaic laws where a live performance or activity which would be considered a normal activity and an activity not worthy of regulation in hotels, bars, restaurants, clubs and cafes across the entirety of the country falls within the purview of liquor licensing authorities in South Australia.

We have incredibly old-fashioned liquor licensing law provisions in our current practices, and I am certainly keen to remind members of just a few of the conditions we currently see in licensed premises in our state. One is at The Elephant in Cinema Place, which holds a liquor licence. That venue has a special circumstances licence. Clause 3 of that licence states that any live entertainment provided on the licensed premises 'shall be appropriate to and compatible with the operation of a themed Irish bar or British pub'.

Some might think they know exactly what that means. Does that include a U2 cover band or does it strictly cover Irish traditional folk music? Does it include Ronan Keating or indeed Westlife or Coldplay or Spice Girls cover bands? They are either Irish or UK themed. I suspect that should any of those types of cover bands—or indeed a Rolling Stones or Beatles cover band—perform at The Elephant, they may indeed—

The Hon. K.J. Maher: Oasis.

The Hon. T.A. FRANKS: Or Oasis, as another member said, or Pulp or Blur—

The Hon. K.L. Vincent interjecting:

The Hon. T.A. FRANKS: Or the Sex Pistols, as the Hon. Kelly Vincent quite rightly points out. Indeed, we could go on and on. Do they fall within the definition in that particular liquor licence and, as I say, are they appropriate to and compatible with the operation of a themed Irish bar or British pub?

One might think that somebody going to an Irish bar or a British pub might go to hear Irish or British music. One imagines that all of those bands would comply with that definition. What I would say is that there are no guarantees for that venue. Indeed, should they go down the path of the conditions of the former venue down at Glenelg, the Dublin Hotel—clearly also with somewhat of an Irish theme—they may find, to their dismay, where that venue had a specification that it had to play folk music, that folk music is rather limited in the definition that the liquor licensing enforcement authorities placed upon that venue. Indeed, they were prosecuted successfully for having a disc jockey, or a DJ.

The definition of folk music was not ever specified in the actual licence. There is some sort of belief by these enforcement authorities that it must be a particular theme, but I would argue that the word 'folk' means 'of the people'. So how one could define any music that was of the people as not being folk music does indeed throw up a few questions.

Getting back to The Elephant, clause 6 goes on to state that the premises shall not be used as a nightclub, discotheque, rock band venue or similar, while clause 13 adds that entertainment shall not include any disc jockey activity. Now what activity other than playing music a disc jockey might undertake also raises a few questions. In CIBO Espresso's licence it states that 'at no time shall there be any blues, heavy metal or grunge bands, nor any bands which rely on amplified musical instruments.'

Blues bands—I had to refresh my memory—could include The White Stripes, Jimi Hendrix, AC/DC, The Doors, Dr Feelgood, Status Quo, Aerosmith, Eric Clapton, Derek and the Dominos, ZZ Top, the Faces (clearly not necessarily Rod Stewart), the Rolling Stones, Led Zeppelin or the Black Crowes. Should that music be played over the in-house PA, one wonders whether they would fall foul of contravening that no-blues specification.

At Purplez, their special circumstances licence states in clause 8 that no live entertainment will be played on a Monday and Tuesday. Clause 9 states that any live entertainment played on a Wednesday will be limited to solo, duets or one and two-piece bands. I have said this before and I will say it again: I am not quite sure how solos or duets differ from one or two-piece bands but, clearly, there was a need to re-emphasise that point.

Clause 18 of the licence of that particular premises states that they shall always advertise/promote the venue as 'an over-30s venue'. I note that I have no understanding of what, indeed, the promotion of an over-30s venue would entail, other than perhaps they may have to say that you must be over 30 to attend, or attend with somebody over 30 if you are in your 20s. Who knows exactly what that means or why liquor licensing enforcement authorities feel the need to put that in the licence?

The licence also notes that that venue may not advertise/promote or conduct the premises as a rock band or heavy metal venue. Again, I have raised this before. I am not sure there are that many people over 30 into those genres of music, but previously when I said that I was strongly corrected online, so I must say that it is not mutually exclusive for a venue both to be for over 30s and heavy metal focused—in fact, it is possibly more likely. Foxy's Lady has a special circumstances licence, and that states that there shall be:

...no musical entertainment on the vessel other than a guitarist/vocalist entertaining without the use of any amplification and background music and that there be no music, amplified sound or other sounds as to cause loud, continuous or repeated noise or so as to cause a nuisance to persons residing within the vicinity of the operation of the vessel or to persons being carried on the vessel.

I imagine they would not be pursuing a very good business model if they were causing a nuisance to the people being carried on the vessel. They possibly would not be paying to be on the vessel in that case or buying their drinks there.

We have also an interesting plethora of licences which specifically define that they shall not play grunge, heavy metal or rock. Why those particular genres—and, indeed, techno, which gets a guernsey more than it should—seem to be repeated through various licences, I do not know, when there are hundreds of genres of music. What one person might call grunge, another person may call a completely different genre. One person may call it retro, particularly in this day and age.

At what point does something become grunge? Why is a Monday or a Tuesday any different from a Wednesday or a Sunday, particularly when you are talking about there being only a duo on those days but perhaps a trio on the following day? What happens if somebody calls in sick that day?

I kid you not: there are licences which specify solos or trios but do not allow for duos. Whether that is a simple oversight and whether that will be policed, one may think it a story that is a little far-fetched. Indeed, at the Seven Stars, you are allowed to have four performers on that stage but not five. I ask: what if the fifth performer was just a dancer, like Bez in the Happy Mondays? Would that count? I am not sure whether we will get an answer from liquor licensing on this.

Some members might think I am being facetious in raising these issues, but I can assure them that there is a lot of bureaucratic, publicly-funded time being spent policing these things which, surely, should not be falling within the purview of liquor licensing. As I said, at least one venue was in fact prosecuted for not playing folk music as defined in its licence, and that venue not only went through that expensive court process but then paid the expense to change its licence.

It was a venue in very much an entertainment area, and certainly a venue that would probably not be able to make a profit if it were only allowed to play what was clearly very narrowly defined as folk music—something I would define much more broadly and, I imagine, most people with a cultural or an artistic description and definition would lean to. Then again, if there is an opportunity to increase red tape and extract more money from the pockets of licensees, it seems to be something that will be pursued under this state government's bureaucracy.

I have not given too much information previously about this particular venue, but I have alluded to it in the past, and I want now to talk about Suzie Wong's Room on Port Road. It has been heralded by the Charles Sturt council as a great boon for that area. Nina, from Suzie Wong's, has very much fallen foul of the culture cops and other liquor licensing enforcement nightmares over the past few years. It is certainly a tribute to her that she continues to keep that venue open.

Nina was charged by the OLGC for operating without a licence when, indeed, she had lodged it and they had lost it. However, even worse, she was monitored by police both in her venue and online, on her Facebook page, and then successfully prosecuted not for providing entertainment, when she was not licensed to, but under the then further restrictions placed by the council for advertising that she was providing entertainment which she was licensed to provide.

On her Facebook site, after she had fallen foul of liquor licensing enforcement for having an A-frame outside her venue promoting the fact that a particular performer or group of performers was playing in her venue, she then resorted to very obscure references to the fact that there would be music playing in what is, in fact, largely a restaurant environment, where there is also a small bar, and that there would be a few people playing music in the front window.

She alluded to that on Facebook by telling people that if they wanted to come in that night they would enjoy 'a jazzy trio melody pizza'. This play on words fell foul of those conditions which were enabled by this culture cop approach to entertainment. She fell foul of the provision that she not advertise the fact that she had entertainment on those premises. How this play on words makes a venue any more dangerous a place to have alcohol is beyond me. As Ianto Ware quipped on his blog:

But I can only be thankful it wasn't a grunge trio melody pizza in which case it probably would have also been a crime under the prevention of disrespect to Kurt Cobain act.

I have to agree with many of the things Ianto Ware has raised in terms of his concerns about the way South Australia lags behind in terms of what is indeed support for vibrancy in our state.

We hear a lot of talk about vibrancy, but here we have an issue that absolutely kills vibrancy. It absolutely kills those licensees who would like to have entertainment, unfettered and without the threat of police monitoring their Facebook pages to check whether or not there is some sort of reference to something that is not gambling or sitting down and drinking alcohol or, indeed, being incredibly passive consumers in a licensed premises. It is absolutely clamping down on the vibrancy of a premises which has entertainment and interaction and which has what I would define as vibrancy.

Ianto, as many of you would be aware, has made a great contribution to debates about what has led to this vibrancy theme—I am sure he would not use that word anymore. He was at that very early forum at the Jade Monkey as one of the panellists—as, indeed, was Nina from Suzie Wong's Room. Through his work in both Renew Australia and Format, he has gone some way to contributing to exposing some of the absolutely bureaucratic, stifling culture that exists. I thank him and I thank Raise the Bar campaign and, indeed, John Wardle, for bringing these issues to my attention.

Like many of you, at first, when I heard some of these conditions, I did not believe they were real. I did not believe that we would actually see licensing authorities going to such lengths as to sit and monitor for days, and go undercover into venues to clamp down on somebody, as I say, putting on their Facebook page that they had a 'jazzy trio melody pizza' in their venue that night—and then pursuing that to the point of taking it through the courts and prosecuting and fining her.

Had that particular venue been in New South Wales in this day and age, due to the wonderful reforms they have had there in recent years where they had some similar barriers as these culture cops only a few short years ago, Nina would have faced simply a $500 licensing fee where she would have been allowed to provide entertainment, unfettered—and she would have been able to advertise that entertainment, be it on an A frame (should that comply with council regulations and by-laws) or on her Facebook page.

Here we are debating a bill and talking about lockouts and increasing safety, yet one of the things we could be doing to ensure that our drinking culture in this state is a more responsible one and that we are not simply rewarding those venues that offer passivity and have a few pokies and expect people to simply sit and drink and perhaps play the pokies—

The Hon. T.J. Stephens interjecting:

The Hon. T.A. FRANKS: I have no problem with that but, should you throw in some entertainment, some interaction and some actual vibrancy, suddenly that all seems a little bit frightening for the bureaucracy.

This is, indeed, a real and present problem which affects many licensed premises, and I will draw on a final example. The Cuckoo Bar in Hindley Street, which inherited its licence from another group, is a reasonably small venue. It comes very close to, and almost could comply with, a small venue licence, had those existed at the time of its inception. It has a small dance floor and gets in international DJs, and it has a beautiful cocktail bar with high-end and reasonably high-priced cocktails. Its licence on the wall says that it cannot operate as a nightclub or a discotheque—some of those particular phrases which are littered through most of the liquor licensing conditions that I have seen.

I asked the management how they complied with that particular criteria given that, clearly, to me, they had a disco ball over a dance floor and they had DJs in, so how were they neither a discotheque nor a nightclub? They told me that liquor licensing authorities, when they asked them that particular question (having inherited this licence), told them not to have too many flashing lights and everything would be fine. Should another authority come in and perhaps feel that they had too many flashing lights or, indeed, that a dance floor and a disco ball somehow contravened their licence, they may find themselves in undue strife.

My amendment goes some way to removing those ridiculous conditions that have been in place in our state but are not in place in any other state in this country. In compromise discussions with the government I have certainly looked to minimise the timing of when these red-tape restrictions would apply. These restrictions and burdens on the liquor licences of those who seek entertainment consent, if my amendment were to be supported by this council, would only apply for venues in general for the same period of time each day, as now is currently enjoyed by the small venues licence which this council very much supported, that is, between 11am in the morning and midnight at night. Typically across the state these entertainment consent provisions would not apply. That is under section 105 of the act.

What would apply, of course, and what has never been in question is section 106 of the act which deals with noise. All of the provisions around noise and nuisance remain and, in fact, you can have noise and nuisance regardless of the genre that you have in your venue. That is certainly an issue more of management of your venue rather than the type of entertainment you may think will attract people to your venue.

Should a premises be in the CBD, then those conditions would not apply between 11am and 2am in the morning, an additional two hours for those in the CBD and there is provision in this clause to ensure that if there is, say, a festival or an entertainment district identified by government, then they could also enjoy that extra two hours of freedom from the culture cops. With those words, I commend this amendment to the council.

The Hon. G.E. GAGO: The government rises to oppose both amendments Nos 1 and 2. We really see this first amendment as a test case for both amendments. Amendment No. 1 repeals section 105 of the act which is the provision prohibiting entertainment on licensed premises in the absence of an entertainment consent. There is an exception for small venues. A small venue may be used for entertainment other than prescribed entertainment—essentially adult entertainment, boxing, martial arts contests, and such like—between 11am and midnight, provided the conditions of the licence so permit.

In its place, amendment No. 1 inserts a new section 105. The new section 105 provides that an entertainment consent is, as now, required for prescribed entertainment for other than prescribed entertainment: firstly, in the case of a premises located in the prescribed entertainment area, the CBD or any other prescribed area between 2am and 11am; and, secondly, in the case of a premises located elsewhere that is outside of the prescribed entertainment area between midnight and 11am.

As is now, a consent may be conditional or unconditional and may be varied or revoked by the commissioner. As with the Hon. Ms Franks' original amendment, section 106, which provides for complaints about noise emanating from a licensed premises, is amended so that a noise complaint relating to entertainment may only be made if the noise emanating from the premises is excessive. The Hon. Ms Franks' amendment No. 2 inserts a transitional provision into the act. The effect of this transitional provision is to void any existing entertainment consent, other than an entertainment consent applying to prescribed entertainment or an entertainment consent that authorises entertainment between midnight and 11am, which are taken to be entertainment consents granted under the new section 105.

A consent that is preserved under the transitional provision is taken to be subject to any condition that was in effect immediately before the amendments commence, meaning conditions attaching to a consent permitting prescribed entertainment remain in force, as do conditions imposed on other entertainment, but in the case of the latter only between the hours of midnight and 11am. Under these amendments, entertainment, other than prescribed entertainment, will be permitted in any and all licensed premises automatically without the need for further consent between the hours of 11am and midnight or 2am, depending on where the premises are situated. This is irrespective of the type or size of the premises, the vicinity of the premises to residential premises, the type of entertainment or where—inside or outside of the premises—the entertainment will be carried on. Any existing condition imposed in respect of entertainment between 11 and midnight is also declared void.

Many, if not most, of these conditions exist because they have been carefully negotiated by the parties. They reflect and accommodate the often competing interests of licensees, residents and other businesses. They act to prevent problems associated with entertainment in licensed premises before they arise, cutting down the need for residents and other businesses to revert to the noise complaints regime provided for in section 106 of the act—albeit not a perfect system, as the Hon. Ms Franks has outlined in some examples.

What happens to those existing licences that do not currently have an entertainment consent? It may be that local residents and businesses agree to the primary licence application because the premises were not to be used for entertainment, safe in the knowledge that, should the licensee wish to do so at some point in the future, a separate application would be required, giving them an opportunity to scrutinise and have a say on the licensee's proposal. If these amendments are passed, these premises will automatically be able to have entertainment without a need for a separate application between the hours of 11am and midnight or 2am.

In the government's opinion, these amendments go too far. They fail to strike an appropriate balance between the interests of licensees and nearby residents and businesses. The government accepts that the existing regime of separate entertainment consent is somewhat cumbersome and can lead to overly restrictive conditions being placed upon the type or style of entertainment permitted at some premises. Any solution which must take account of the competing interests of licensees, the live music industry, residents and businesses requires a wholesale examination of not just the liquor licensing laws but also planning and development laws.

The intersection between the two frameworks is something that the government will ask the Expert Panel on Planning Reform to examine; so we do accept there are some real problems in that area. It is far from perfect, and further work should and needs to be done on this, but we do not believe that the amendment before us really fixes that problem. The government is also keen to examine the soon-to-be released report on live music by our live music Thinker in Residence; we are looking forward to that. The government does not, however, agree to the approach that this amendment seeks to take, although we certainly have a great deal of sympathy for the current anomalies.

The Hon. K.L. VINCENT: I doubt that it will come as a surprise to many of us here that I will be supporting the Hon. Ms Franks' amendments, as one of those grungy under-30s who have been discussed, and I guess there are a few points that I want to put forward. One is that I am—and I probably speak for many people in this chamber tonight, although some of them probably will not admit it—sick and tired of hearing the word 'vibrancy' and 'vibrant' bounced about in debate and never actually acted upon. 'Vibrancy' is not a noun: it is a verb. It is something you do, it is something you feel, it is something you experience.

Unfortunately, as much as I love this city and as much as it has its strengths, I do not feel that vibrancy. I do not feel vibrant when I walk down a bike lane in Leigh Street that has been temporarily painted blue. I feel vibrant when I can go out and spend time with my peers and people my own age doing activities that we like to do and doing it in a way that does not define what entertainment is or should be to us. Let us be honest here: how can we possibly, in legislation or otherwise, define entertainment? That is literally impossible because entertainment is a completely subjective experience. I guess I have been giving this a lot of thought, as you can probably tell, and I am probably not articulating those thoughts as well as I would like.

I would like to read a quote from an article by an acquaintance and, I would hope, a friend of mine, Jane Howard, who is a young Adelaide resident, a well-known theatre reviewer and well-respected art critic here in Adelaide. This is from an article she wrote I think about a year ago on why young people and young artists, in particular, choose or feel forced to leave Adelaide. Obviously, it will not be completely relevant because it talks about the arts, but since this is a debate about culture, I want to read just a brief quote from that article. It states:

It is not only artists who leave, it is the other people interested in punctuating their lives with arts and culture outside of the festival context. The more these people leave, the harder it is for artists to find audiences, and the more artists leave to move interstate. The pull of the Adelaide artists in Sydney or Melbourne grows ever stronger, the pull of Adelaide grows ever weaker. But it's not just the people which contribute to this drain. 'The venues' issue is one which pops up a lot and it is one which has severe ramifications on Adelaide as a presenter of work, and it is directly contributing to the drain.

Even though this article is talking about art venues, I think that it says a lot about cultural venues throughout this fair city of ours. It is hard for us, as people involved in arts and culture, to find the venues to perform our art, let alone find the everyday sort of venues to share with our peers and extend ideas with our contemporaries.

Quite frankly, I am sick and tired of feeling like I have to fly to Melbourne or Sydney just to see a lot of the people I enjoy spending time with because more and more this town is pushing these people out. With those few very inadequate words, I strongly support these amendments.

The Hon. G.E. GAGO: I ask the indulgence of members of the committee. I know that we are all very keen to expedite the passage of this bill, but, in order to be able to accommodate all members through the debate, I seek to report progress to allow for a short, 10-minute break, following which we will resume debate in committee.

Progress reported; committee to sit again.


[Sitting suspended from 20:50 to 21:03]


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