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Legislative Council - Fifty-Third Parliament, Second Session (53-2)
2017-10-31 Daily Xml
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Liquor Licensing (Liquor Review) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 19 October 2017.)

The Hon. R.I. LUCAS (16:02): I rise on behalf of Liberal members to address the Liquor Licensing (Liquor Review) Amendment Bill. This is indeed a comprehensive bill, and I have to say at the outset that, perhaps unlike many other pieces of legislation, I do not think it could be fairly criticised on the basis that the government and the minister, in particular, did not undertake a thorough consultation prior to its arrival in the parliament. This bill has had a long gestation period.

The minister appointed their go-to reviewer, the former Supreme Court Justice the Hon. Tim Anderson QC, to conduct a review of the liquor licensing laws in South Australia. Members will be aware that, in recent times, he has also conducted a review of gambling regulation and licensing, but, unlike the liquor review where we actually saw a copy of the report, I am not sure that we have yet seen a copy of the gambling, licensing and regulation review report.

The review by Mr Anderson QC was comprehensive. I know he spoke to a number of members of parliament, both past and present. Certainly, I was one of a number of persons whom he consulted with. I think that at one particular time during the review he conducted, I was the shadow minister responsible for this particular area that has subsequently become the responsibility of the shadow attorney-general. At that particular time, I was involved with stakeholders in the review. His report, which was dated 29 June 2016, contained over 100 recommendations. He said that he had considered almost 100 written submissions and held face-to-face discussions with 58 other organisations which expressed a view on the liquor licensing review.

In its response, the government indicated that it has accepted the vast majority of the recommendations in full, in part or in principle. There were some notable exceptions and we will address some of those during the second reading and committee stage of the debate. Then—again, to be fair to the government—the government released a draft bill for public comment in November 2016 and there was a seven-week consultation period over the end of 2016 and the start of 2017, and here we are in October 2017, with the bill having passed through the House of Assembly and now in its final stages for discussion and debate in the Legislative Council.

As I said, unlike many other areas that this government has engaged itself in, it would not be fair criticism to say that the government, and the minister in particular, had not been through an appropriate process of, firstly, review consultation, a draft bill and then further consultation, and now final consideration by the parliament.

There are too many measures in this bill for me to sensibly go through all of them. The shadow minister did address some of those in the debate in the House of Assembly. Other members in the assembly debate did address a number of issues. I do not propose to address all of the issues canvassed for amendment in the bill before us, but I will address a number of what I think are more significant issues in the legislation.

The Attorney summarised the bill's position and the government's position by saying that, broadly, there were three goals in mind for the legislation: to reduce red tape, to increase efficiency in the regulation of liquor licensing, and to enhance measures for safe drinking, including for the enforcement of offences under the act. In terms of reducing red tape and increasing efficiency, streamlining the classes of licences and reducing the number of classes of licences in South Australia is an important element in those particular reforms.

I think with the passage of time we will see that, potentially, there will be some problems that will be highlighted by individuals. Certainly, we support the government's general position. Essentially it said, 'We are trying to collapse the number of licences,' and we support that, and essentially, 'If you have an existing provision in your licence, we will find some way to transition you to one of the new licences so that you are not disadvantaged.'

That is the general principle and people with all sorts of strange provisions, restrictions or advantages on their existing licence have been comfortable with the assurance from the government that, in the transition, all of those existing provisions will be protected. That is a comforting assurance. It is not legislatively provided for to any great extent. I will explore that in the committee stage, I guess, but I think it is a statement of policy principle and ultimately it is going to be for the government and the officers working under the new legislation to seek to implement that policy goal.

This is one of the areas where I suspect that whoever is there after March next year may well have an individual licence holder who comes along and says, 'Hey, my old licence allowed me to do this, this and this and I have been transitioned to a new licence and I was given assurance that I would still be able to do the same things, but I am now told that I can't do certain things under this new licence and they are not prepared to allow me to do so.'

Here, in this parliament, we cannot envisage all of those particular circumstances, but I highlight and put on the public record that I suspect that whoever is the minister will have, and the parliament may well have, concerns raised at some stage in the future as this transitioning of old licences into new licence categories occurs and whoever is the minister and whoever is the government is going to have to address that within the framework of the commitments that have been given. That is, the existing entitlements will be protected under the new arrangements.

There are other changes: removing restrictions on the sale of liquor on certain days where there are restrictions—Christmas Day, Good Friday, New Year's Eve, New Year's Day, Sundays. As someone with a very small 'l' liberal view to when liquor should be able to be sold and where it should be sold within reason, I do not have a concern. The Attorney is obviously comfortable in this particular area in terms of trading to remove red tape.

I guess it is not the shoppies union here that controls the issue; it is whatever the old liquor trade union is now called that has a view in relation to this. Clearly, that has been acceptable to the union, the workers and certainly the minister has been prepared to allow freer trading and greater choice in terms of when people can purchase liquor on a number of current restricted trading days.

There is an automatic trading extension on New Year's Eve until 2am on New Year's Day. Again, it makes sense, rather than having to go through various hoops to seek that extension, the removal of various restrictions on obligation of meals for some classes of licenses and a number of other areas where there have been restrictions removed, red tape removed, and the Liberal Party is pleased to support a number of those changes that the minister has introduced.

There was one area during the consultation where all members, I suspect, were being lobbied furiously by stakeholders on various sides of the argument, which is summarised in the government's response to the independent review report. On page 22 it is under the packaged liquor sales in supermarket section. I read onto the public record what the recommendation was and what the government's view was. Recommendation 74 states:

The requirement in section 37(2) that the licensed premises must be devoted entirely to the business conducted under the licence and must be physically separate from the premises used for other commercial purposes, should be retained. Notwithstanding this, the legislation must make it clear that licensed premises can however exist under the same roof as a supermarket.

The government response is as follows:

The Government accepts this recommendation, noting that the new Community Impact and Public Interest Test (the new Test) will still operate as a guard against outlet proliferation, in particular in risky areas. For example, where there is a supermarket within a shopping centre and already a bottle shop nearby within the centre, the application of the Test may well prevent the supermarket getting a licence to establish an additional bottle shop within the supermarket area. However, where that supermarket business owns the bottle shop in question, it may be successful in removing the bottle shop from the separate premises to within the supermarket area, provided it can meet the separation and other requirements.

The physical separation requirements also safeguard against harm. The Government agrees that the 'shop within a shop' concept as set out in recommendation 75 provides significant protection without need for a separate roof, and acknowledges that in fact there are already examples of licences issued under the present Liquor Licensing Act provisions where physical separation has not entailed a separate roof. However, the Government believes physical separation needs to be more than proposed in the Report and should also require a separate entrance. In the case of supermarkets, this would mean that the entrance to the liquor shop must be a separate entrance from the street or shopping centre. Further, to guard against legal arguments about what constitutes adequate 'physical separation', the Government also proposes to legislate that this must include a permanent and substantial physical barrier, nontransparent and at least 2.5 metres high.

Recommendation 75 was:

The licensed premises in respect to a Packaged Liquor Sales Licence should have a separate checkout with an adult operator trained in responsible service of alcohol and supervised/managed by a responsible person at all times.

The government's response is that the government accept this recommendation. This particular issue of packaged liquor sales in supermarkets was, as I said, a relatively vexed and controversial issue. There were strongly held views and lobbyists lobbying on both sides of the equation. You had the views of the supermarket operators. A number of them were strongly lobbying to allow the sale of packaged liquor in supermarkets.

In some cases it was potentially just up and down the aisles with any other product, but in most cases the lobbyists were arguing that in some way there would be a distinction of packaged liquor sales from other products within a supermarket. The argument significantly was practice and precedent in other states and territories. That was the circumstance, that South Australia was an outlier in that respect, and the lobbyists argued that South Australia should allow greater access to the sale of packaged liquor by supermarkets.

There are other stakeholders who are trenchantly opposed to that. The AHA obviously had very strong views. A number of other stakeholders were concerned about the sale of packaged liquor through supermarkets in terms of safe drinking culture and access to alcohol by minors, and there were other persons who opposed major changes in that area.

I think it is fair to say that, while the government's adaptation of Mr Anderson's recommendations has not been widely applauded by everyone in the industry, they battled themselves into a nil-all draw where people were prepared to accept it as a compromise that they were willing to work with. I suspect that when we get our first legal tests of what community interest is and a court ultimately determines, under some of these new provisions, whether or not it will allow the opening of a new outlet next door, attached to or part of a supermarket outlet, a future minister and a future parliament may well need to address and clarify what the intent and the impact of these particular laws were meant to be.

Certainly, at this stage I think most of the stakeholders have, as I said, grudgingly accepted that this was a compromise, and most of them have retreated to their corners, saying, 'Well, let's just see how it operates.' From that viewpoint, the Liberal Party's position has been not to propose any change and to support the government's adaptation of the reviewer's recommendations as incorporated in the legislation we have before us.

Allied with that will be the interesting issue of the new community interest test. As members will be aware, under the current licensing act there is something known as the needs test, which essentially means that if there is an applicant for a hotel licence or a retail liquor merchant's licence, they have to satisfy a licensing authority that the licence is necessary in order to provide for the needs of the public in that locality. That is known as the needs test.

As a result of the recommendation of Mr Anderson, the bill replaces that needs test with a test based on the concept of community interest. That, supposedly, according to the Attorney, will refocus the application process on community interest rather than focusing solely on competition. The Attorney believes that it will also widen the scope of applications subject to the test. Further on, the Attorney-General indicates that he believes that the new community interest test will consider harm that might be caused, whether to a community as a whole or a group within a community, due to excessive or inappropriate consumption of liquor, the cultural recreation, employment or tourism impacts, and the social impact in and the impact on the amenity of the locality of the premises or proposed premises and any other prescribed matter.

As I indicated at the outset, I suspect that at some stage, once we get the first legal judgements in relation to the impact of this new community impact assessment, a future minister is likely to get complaints from aggrieved parties. In saying that, I do not propose that there is, and we do not propose that there is, any better process that should be adopted. We have accepted the government's acceptance of Mr Anderson's recommendations in this respect and we are prepared to, to use a colloquial expression, 'suck it and see' and see what the impacts are likely to be once it is tested legally.

Other aspects have been raised by stakeholders during the consultation and subsequent to it. One relates to addressing under-age drinking in a number of particular provisions of the act. A number of changes are recommended here, and we have supported the changes proposed in the bill. One in particular is the recommendation of Mr Anderson to allow prescribed persons—and that would be a police officer, inspector, a licensee, a responsible person or a crowd controller—to seize an evidence-of-age document if certain preconditions are satisfied.

If the prescribed person reasonably believes that the person who has produced the document is not the person identified in the document, that the document contains false or misleading information about the name or age of the person, that the document has been forged or fraudulently altered, or that the document is being used in contravention of the act, then that document can be seized. As I said, the prescribed person is not just a police officer; it could be a crowd controller or the responsible person in a hotel or nightclub.

The prescribed person has to provide a receipt about the seizure of the document, which again needs to comply with prescribed requirements. There is an exemption: a passport is exempt from these provisions and cannot be seized by a prescribed person. Regulations may also prescribe other documents that may not be seized, and we will be asking at the committee stage what the government might have in mind in relation to that extra power it has sought.

Again, I think that is probably going to be fraught with some difficulties in its implementation, particularly if there is an overzealous crowd controller or responsible person, but again the Liberal Party is prepared to accept Mr Anderson's recommendation and the government's endorsement of that in the legislation, and we will see what eventuates as a result of the bill over the coming period.

There are three or four areas that the Liberal Party will, when we get to the committee stage, outline in greater detail and we will be moving amendments. The shadow attorney-general outlined, I think, three of those in the debate in the House of Assembly. One has subsequently arisen as a result of further consultation with the shadow attorney-general. I think the amendments have been placed on file in my name.

The government is proposing a three-hour trading restriction between 3am and 8am. It is the Liberal Party's position that the government already has a lock-out provision and, from the Liberal Party's viewpoint, no evidence has been presented to us to convince us whether or not the existing arrangements are successful. There is some debate about it.

On the weekend, I noted a person described on commercial television as a security expert explaining that the current lock-out laws had led to the street brawling in Hindley Street at around about 3am last weekend, I think on the Friday or the Saturday night, and expressing concern about the operation of the lock-out provisions, so there are certainly differing views.

The government thinks they are the greatest thing since sliced bread. A lot of young people are very angry about the lock-out provisions. As I said, this security expert quoted by commercial television on the weekend took the view of the young person and, I suspect, some of the licensees in the entertainment precinct as well. Certainly, there is not a united view in relation to whether or not the lock-out provisions have succeeded, but the government certainly argues that they have.

We have seen no evidence why, in light of the current operations and significant restrictions, there is justification for a further three-hour trading restriction for a small number of outlets. My personal view is that if there are traders wanting to trade, and if the vast majority of customers are prepared to drink sensibly, then the small number who are not prepared to drink sensibly should have the full force of the law brought crashing down on their heads in a punitive way, but the majority should not be penalised for the actions of the minority in relation to this.

A further imposition of a three-hour compulsory shutdown in relation to trading between 3am and 8am is not something the Liberal Party has decided it will support. It will be moving amendments to, in essence, just return us to the current provisions that still exist but were sought to be changed under the government's bill.

There is an amendment in relation to licence fees. Significant licence fee increases have been potentially flagged in the consultation, and by 'significant' I am talking about, in some cases, licensees up for many thousands of dollars extra in terms of the licence fee they have to pay. There is the capacity under the current bill, I am informed, for the parliament to disallow the regulations, clearly, but, as is the case with a liquor licensing bill, it is possible for a government to introduce a package of regulations, one part of which is a massive increase in licence fees. If the opposition or a minor party then seeks to disallow it, the argument is, 'Well, if you disallow that, you are going to disallow all the regulations under the licensing act. What a terrible lot you people are. You will be doing this and you will be doing that and you will cause all this havoc.'

The amendment that the shadow attorney-general has crafted with parliamentary counsel's advice simply says that the licence fee regulation should be a licence fee regulation by itself. All the other regulations can be done together, but when the licence fee regulation comes, it will be just the licence fees. It does not predetermine a position for anyone; it just allows an opposition or an Independent party or a third party, if it so chooses, to seek to disallow or support a disallowance of a massive increase in fees. If they do not support it, then they do not have to support the disallowance, but there will not be this criticism that you have to disallow every regulation under the licensing act as opposed to just the specific ones that relate to licence fees.

There is also an amendment that the shadow attorney-general has flagged in relation to a recommendation from Mr Anderson to legislate to require that offences relating to the sale of liquor to minors and strict liability offences with offending licensees be recorded in a register and details published on the CBS website. The government has accepted that recommendation and inserted section 135A into the bill to publish the names of certain licensees on the CBS website who have been convicted of an offence. These details will be removed after five years from the date of convictions.

The AHA has strongly opposed what they call the blacklist, claiming the licensee has already been penalised and, further, if they have taken reasonable steps to remedy the problem—that is, perhaps terminating the employee responsible and implementing new policies—why should they continue to be ostracised by being publicised on a blacklist for a period of time? The AHA's argument is, 'Look, they as the licensee might have got into trouble because a particular manager or employee has done the wrong thing and that employee and the licensee gets penalised for that.'

The licensee may well argue, 'Here were our instructions. The particular employee didn't follow the instructions. Rightly, they have been penalised and so have we. We accept that fact,' but they are arguing that if that person has then been terminated, 'We have got rid of it, we have convinced the appropriate authorities that we have implemented the changes,' why should they continue to be ostracised by having their names kept on a blacklist? So, the shadow attorney-general has an amendment seeking to correct that particular position.

The final amendment, which has come as a result of a discussion between the houses, concerns this age-old argument about not being allowed to stand in certain areas to have a beer at a table in a hotel; that is, you have to be seated to have a beer. The current president of the AHA at one of his Christmas lunches a number of years ago highlighted the absurdity of this provision, and there has been a convoluted process allowed where, if you go through the local government council, you are able to get around that if you get the appropriate approvals.

The amendment drafted by the shadow attorney-general seeks to put in the legislation a scheme of arrangement that will allow greater flexibility, in terms of allowing in certain circumstances customers to stand with their mates around a table drinking a beer. They are not going to be required by the Liquor Licensing Act to sit down and, more particularly, if they do not sit down, the licensee will not be then penalised under the act for not ensuring that their drinking customers are seated whilst drinking a beer at a particular table.

I suspect there might even be a couple of government backbenchers who might be interested in that provision, so I urge members to have a look at that amendment from the shadow attorney-general when we get to the committee stage of the debate, potentially some time later this week, although if other matters take precedence it might not be until the next sitting week that that amendment is considered by non-government and backbench members. It seems to be an entirely sensible amendment, and I suspect that some government backbench members and their mates might be quite happy to see greater flexibility for drinking in certain circumstances in certain hotels around South Australia.

With that, I indicate the Liberal Party's support for the bill. When we do get to the committee stage of the debate, we will explore those amendments. There are amendments from the Hon. Tammy Franks and possibly further amendments from the government. Yes, there is the infamous amendment moved by the member for Florey, which will need to be discussed and debated in this chamber. It is now part of the bill. There was a massive outcry about that provision, so we will be interested to see the government's position in relation to that when we get to the committee stage of the debate.

Debate adjourned on motion of Hon. J.M. Gazzola.

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