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Legislative Council - Fifty-Fourth Parliament, First Session (54-1)
2018-12-04 Daily Xml
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Bills

Summary Offences (Liquor Offences) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 15 November 2018.)

The Hon. K.J. MAHER (Leader of the Opposition) (15:25): I rise today to indicate Labor's support for this bill. The bill deals with a very serious issue, the unlawful distribution and sale of alcohol into prescribed areas and particularly into Aboriginal communities that are dry communities, a practice commonly known as grog running. The unlawful sale and supply of liquor into remote Aboriginal communities has significant side effects and often leads to serious alcohol-related harm, including violence, disorder, antisocial behaviour and medical problems for those dry communities.

This bill was introduced with largely similar provisions into the House of Assembly on 20 September 2017 and reached the Legislative Council on 14 November 2017. Unfortunately, it did not pass before the election. This bill is largely similar to the bill introduced by the Labor government, which did not pass.

There are a couple of key differences in terms of the distance from the designated dry area that this bill applies to and police power to stop and search vehicles. The opposition has consulted with both law enforcement agencies and Aboriginal groups about those changes, and both those constituencies are comfortable with the changes that have been made by the Liberal government to this bill. Therefore, we will be supporting them.

I have visited many remote Aboriginal communities in this state and have seen firsthand the damage it does to these dry communities. It is clear that the police currently have powers, but the current provisions in acts such as the Anangu Pitjantjatjara Yankunytjatjara act, the Maralinga Tjarutja act and the Aboriginal Lands Trust Act are not sufficient. This bill introduces new measures that should assist police and communities to deal with grog running. With those few words, I indicate Labor's support for the bill.

The Hon. D.G.E. HOOD (15:27): I rise to speak in support of this bill, which introduces some important measures to protect South Australia's most vulnerable communities from undue harm arising from unlawful and improper access to liquor, especially in dry areas. At present, there are numerous legislative restrictions in place to reduce the incidence of alcohol-related harm in these regions. These, of course, include conditions on high-risk liquor licences, which limit the amount of specific liquors that can be purchased per person per day and restricts the type of alcohol sold completely for off-premise consumption, as well as the prohibition of specific communities possessing and consuming liquor, albeit with some exemptions.

Following consultation with the relevant agencies, the Marshall Liberal government is aware that these initiatives have proven insufficient in mitigating what is commonly known as grog running, which is adversely affecting some of our Aboriginal communities in particular, and serves as the impetus for the introduction of these new provisions that are before us today.

This bill seeks to create new offences in the Summary Offences Act 1953 relating to possessing or transporting liquor for the purpose of sale, with the rebuttable presumption that possession above a prescribed quantity of liquor is for this intent. It will be an offence under this act for an individual who supplies liquor, or possesses or transports liquor with the intention to supply it, to a person in a dry community.

Designated areas are to be determined by the minister and, under this bill, not more than 20 kilometres from the boundary of a prescribed area. Under the Liquor Licensing Act 1997, it will be an offence for a holder of a licence who sells liquor to a person reasonably believed to be an unlicensed seller, intending to sell the liquor, where the unlicensed seller proceeds to do so. It will also be an offence under this act for an occupier or person in charge of premises who knowingly permits the unlicensed sale of liquor on those premises.

As many members would be aware, an iteration of this bill was introduced last year by the former state government, which did receive passage in the other place but lapsed on the dissolution of the parliament. This particular bill we are debating does differ in some ways, with revisions arising in response to more recent consultation with South Australia Police in particular. For instance, the designated area of land has been reduced quite substantially from 100 kilometres, as proposed in the previous bill, to 20 kilometres in this bill. The 100-kilometre limit was viewed as unnecessary by the government as it would encompass an extraordinarily vast geographical area.

My understanding is that SAPOL is supportive of this position—that is, the 20-kilometre position—indicating the 20-kilometre limit is entirely workable and will serve to achieve the intended effect. No doubt we would all appreciate the need to be realistic and reasonable, I guess, about what our police force can manage as regulators of these laws, given the vast responsibilities they are already tasked with performing throughout regional SA in particular.

As the Leader of the Opposition has mentioned, there are some other changes that present in this legislation. Those of particular note, given my previous voting on these issues, would be with respect to police powers, so-called stop and search powers. In consultation with the police force I understand the government has come to its current position, and I am pleased to be able to support that position because it is something on which the police ultimately should have a very strong view if they are seeking those sorts of powers from the parliament, and in this case I understand they are not. That being the case, I am happy to support the bill in its current form.

It is an unfortunate reality that our remote Indigenous communities face a number of unique challenges that are often exacerbated by the excessive consumption of alcohol in some of their lands. Alcohol abuse and dependency is, of course, known to cause many concerning problems, such as antisocial behaviour, increased crime, the onset of disease, potentially mental illness, family breakdowns, domestic violence, financial hardship and even premature death, all of which can be to the detriment of not only the individuals affected and their community but indeed the broader community.

The facts speak for themselves, with statistics revealing that the average life expectancy of Indigenous people is approximately ten years less than non-Indigenous Australians; that 20 per cent of Indigenous women would have experienced some form of physical violence in the last month, as opposed to approximately 7 per cent of non-Indigenous women; that Indigenous adults in remote areas are 1½ times more likely than non-Indigenous adults to have a disability or long-term health condition; and that the national imprisonment rate for Indigenous adults is 15 times higher than that of non-Indigenous adults. This bill will go a very small way towards improving some of those statistics.

The Marshall Liberal Government recognises a holistic approach should be taken to effectively assist our remote communities in improving their current predicament, which certainly includes the implementation of adequate laws to remove the threat of actions motivated by financial gain that are ultimately at the expense of some of the most vulnerable members of our community. I am confident the provisions proposed in this bill will prove to be in the best interests of not only the people to which it specifically applies but indeed to the wider South Australian community, with the potential to support and enhance the health and vitality of those throughout South Australia. I certainly commend the bill and support the legislation.

The Hon. T.A. FRANKS (15:32): I rise briefly on behalf of the Greens to indicate that we will also be supporting this bill. We welcome the changes that have been made by the new Marshall government with regard to the previous Labor incarnation of the same scheme. This, of course, seeks to support those communities who choose to be dry communities to ensure that those communities are safe.

We commend the government for taking on board particularly the concerns of the Law Society. We note that this bill has reduced the designated area of land from some 100 kilometres down to 20 kilometres, which is a far fairer number. We also note that this bill has reduced and removed those proposed police stop and search powers, which the Law Society and many other groups, including the Greens, would have thought to be used in a discriminatory fashion, particularly in terms of racial discrimination.

The Greens also welcome the government's amendments that they propose to move to this bill to ensure that it has the impact of creating safe communities and of allowing those communities who so choose the power, the autonomy and the self-determination that they should rightly have. With those few words, we commend the bill.

The Hon. C. BONAROS (15:34): For the record, I would like to indicate SA-Best's support also for this bill.

The Hon. R.I. LUCAS (Treasurer) (15:34): I thank honourable members for their second reading contributions and indications of support for the bill.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. T.A. FRANKS: I am interested to know which groups the government consulted with in putting together this bill in between the former government having prepared their version.

The Hon. R.I. LUCAS: I am advised that there was further consultation with the Aboriginal Legal Rights Movement; Anangu Pitjantjatjara Yankunytjatjara; Ngaanyatjarra, Pitjantjatjara and Yankunytjatjara Women's Council Aboriginal Corporation; the Aboriginal Lands Trust; Yalata Anangu Aboriginal Corporation; Umoona Community Council Incorporated; Far West Coast Aboriginal Corporation; Ceduna Aboriginal Corporation; Aboriginal Drug and Alcohol Council (SA) Incorporated; Commissioner for Aboriginal Engagement; South Australian Aboriginal Advisory Council; Maralinga Tjarutja Administration; the Law Society; and SAPOL.

Clause passed.

Clauses 2 and 3 passed.

Clause 4.

The Hon. R.I. LUCAS: I move:

Amendment No 1 [Treasurer–1]—

Page 4, line 10 [clause 4, inserted section 21OB(3)(a)]—Delete 'pecuniary' and substitute 'commercial'

I am advised that, broadly speaking, proposed section 21OB(1) in the bill would create an offence if a person possesses or transports liquor for the purpose of unlawful sale. Where that offence is committed, a separate offence would be committed under proposed section 21OB(3) by a second person if that second person would obtain a direct or indirect pecuniary benefit from the sale of the liquor and knew or ought reasonably to have known that the first person possessed or transported the liquor for the purposes of the sale but could not prove that they reasonably believed that the liquor was possessed or transported by the first person for the purpose of a lawful sale.

The proposed section 21OB(3) offence is intended to capture people who derive a commercial or quasi-commercial pecuniary benefit from the unlawful sale of liquor. However, the word 'pecuniary' has a broader meaning and may have unintended consequences. This amendment better reflects the policy intent of this provision.

The Hon. K.J. MAHER: I guess this is in relation to the amendment but applies more generally to the clause and I guess in relation to all the amendments. I know the Hon. Tammy Franks has asked about the consultation on the bill generally before its reintroduction. What was the consultation in relation to these amendments? In particular, were the Aboriginal Legal Rights Movement, SAPOL or the Australian Hotels Association consulted on the amendments that are being put forward now?

The Hon. R.I. LUCAS: I am advised that the amendments arose as a result of feedback from the ALRM, so that is why the amendments were being moved, and SAPOL were consulted. I think you asked about the AHA. I do not believe they were consulted.

The Hon. K.J. Maher: Did SAPOL support them?

The Hon. R.I. LUCAS: Yes, SAPOL supported them.

The Hon. F. PANGALLO: Why were gaol terms not put in for a second or subsequent offence?

The Hon. R.I. LUCAS: I am advised that it is consistent with the existing penalties in the Liquor Licensing Act where there are fines but no gaol terms. It is consistent with existing similar provisions within the Liquor Licensing Act.

Amendment carried.

The Hon. R.I. LUCAS: I move:

Amendment No 2 [Treasurer–1]—

Page 5, line 9 [clause 4, inserted section 21OC(2)]—After 'transported' insert 'more than the prescribed amount of'

Proposed section 21OC(1) would create an offence of supplying liquor to another person or possessing or transporting liquor for the purpose of supplying it to the other person where the other person is in a prescribed area. Section 21OC(2) creates a rebuttable presumption that possession or transportation of liquor in a designated area is taken to be possession or transportation of the liquor intending to supply it to another person.

Currently, the presumption in section 21OC(2) would apply irrespective of the quantity of the liquor and would apply when a person is found with a relatively small quantity of liquor, raising the question of whether the liquor was for supply or personal use. The amendment inserts a provision that would set a threshold amount for the purposes of this presumption. This threshold is to be prescribed in the regulations.

The effect of the amendment would be that, below a certain threshold, the police would need to establish beyond reasonable doubt that the small quantity of liquor found on the accused was intended to be supplied to a person and that person was in a prescribed area. Above that threshold, the onus would shift to the accused to rebut the presumption that their intention was to supply the liquor to a person, but the police would still need to prove beyond reasonable doubt that this person was in a prescribed area. There is already a similar threshold for the section 21OB offences in this bill on which this and the next amendment in this set are modelled.

The Hon. K.J. MAHER: The minister talked about the amendments applying to a prescribed area. Are prescribed areas intended to be all dry areas within South Australia?

The Hon. R.I. LUCAS: Assuming I have understood the honourable member's question—if not, he can correct me—my advice is that it will apply to all dry areas in the state, bearing in mind that the definition in the legislation of a prescribed area does include some areas which are not dry areas. If the honourable member's question was, 'Will it apply to all dry areas in the state?' the answer to that question is yes.

The Hon. K.J. MAHER: There are some metropolitan foreshore areas where alcohol is prohibited so, in general, would the act apply to within 20 kilometres of those dry areas on metropolitan beaches, etc.?

The Hon. R.I. LUCAS: The answer to that question is yes.

The Hon. K.J. MAHER: I think the minister said areas other than dry areas could be prescribed areas. What has been contemplated in relation to that?

The Hon. R.I. LUCAS: No, only dry areas are being contemplated. I was advised that the definition of 'prescribed area' includes some areas which are not dry areas, but the intent of the policy is to apply these restrictions just to dry areas.

The Hon. K.J. MAHER: I wonder if the minister could elaborate. What are those areas that could be in there that the policy does not apply to that are not dry areas, but the policy is not being applied to?

The Hon. R.I. LUCAS: I can refer the honourable member to subclause (b) of the definition of 'prescribed area', which states, 'Trust Land within the meaning of the Aboriginal Lands Trust Act 2013'. The intention is to prescribe by regulation parts of that area, which are the dry areas, not the whole of the area. So there will be parts of that particular subclause (b), 'Trust Land within the meaning of the Aboriginal Lands Trust Act', which are not currently dry areas, therefore, the policy will not apply to those parts.

The Hon. K.J. MAHER: Just for complete clarification: anywhere that is currently a designated dry area—those places being gazetted under section 131 of the Liquor Licensing Act, metropolitan beach areas or other places—this absolutely will apply to those.

The Hon. R.I. LUCAS: I think that is the third time the member has asked the question. I can only give the same answer on advice the third time; that is, yes.

Amendment carried.

The Hon. R.I. LUCAS: I move:

Amendment No 3 [Treasurer–1]—

Page 5, after line 12 [clause 4, inserted section 21OC]—After subsection (2) insert:

(3) A regulation for the purposes of subsection (2) may vary according to the area, circumstances or any other specified factor to which the regulation is expressed to apply

This is consequential on amendment No. 2. It just allows for different thresholds and different circumstances, but I am advised it is a consequential amendment on the one we have just passed.

Amendment carried; clause as amended passed.

Schedule 1.

The Hon. K.J. MAHER: Part 3 of schedule 1, section 29(3)(a), is similar to provisions that we have just amended under clause 21OB—Possession, transportation of liquor for sale, which introduced defences for those. Why were they introduced previously in that amendment but not in this particular section?

The Hon. R.I. LUCAS: My advice is they are different offences and therefore do not need the same defences.

Schedule passed.

Title passed.

Bill reported with amendment.

Third Reading

The Hon. R.I. LUCAS (Treasurer) (15:50): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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