Liquor Licensing (Liquor Review) Amendment Bill

Ms CHAPMAN ( Bragg—Deputy Leader of the Opposition) (11:18): I rise to speak on the Liquor Licensing (Liquor Review) Amendment Bill 2017. I indicate that the opposition will be presenting three amendments to the bill, but otherwise will be accepting the bill before us. As has been pointed out, on 29 March this year the Attorney-General introduced the bill to amend our liquor licensing regime under the current act of 1997.

 

May I say at the outset that we accept that the sale and distribution of alcohol, the general management of its consumption, and indeed its production, need to be regulated in South Australia. On our side of the house we accept that alcohol, drugs and dynamite are all in the category where there needs to be some restriction on their access to the public, in particular to minors, and a regulatory regime needs to apply.

This is a bit like fishing licences: as soon as you introduce a licensing scheme you introduce some complications. You include some and you exclude others, and there is always a level of tension between those who have the exclusive privilege of producing, distributing or selling a restricted item and those who do not. It is fair to say that whilst we in South Australia have moved from the very restrictive sale of alcohol through our public house provisions, increasing access to the opportunity to purchase liquor outside of a public house—into supermarkets, bottle shops and other venues—has attracted the need to review how this operates and, again, who gets in and who gets kept out and what rules are to apply.

 

Since the passage of the Liquor Licensing Act 1977, our current regime of law, there has been some significant expectation in the general community and a change of personnel involved in the actual industry, so, not unreasonably, the government appointed the Hon. Tim Anderson QC to conduct a review in respect of our existing liquor laws. That review, dated 29 June 2016, which had been sought back in late 2015, included very substantial recommendations. As I recall, there are about 129 of them, and they are substantial.

It is fair to say that the government has accepted a significant number. It has excluded some and, as is typical of the Attorney-General, the Attorney-General has modified, in his quirky way, some of the recommendations—some of which are reasonable and some of which are not. The government ultimately published a draft bill in late 2016 with draft guidelines in respect of community impact assessments, given that it was going to change the process by which liquor licence applications could be made. That is not unreasonable, and when the government does undertake a review there needs to be consultation with the industry, its nominated associations and representatives, so that there can be a very clear understanding of who is asking for what and why and an ability to hear both sides of the argument.

 

The crushing deficiency in this process is not the length of time, because some would argue that that has been almost too long. Nevertheless, it is fair to say that even the draft bill, which had amendments added after that consultation and the government's final bill, which is before us, has had a very long gestation period. What I think is completely unacceptable during this process is that one of the key players involved in the management of liquor licensing, its enforcement, and, in particular, the protection of the community, either in restricting their consumption of it or too much of it, is South Australia Police.

What concerned me throughout this exercise was that the government decided that they would receive the submission from SAPOL as advice to the government and, therefore, it was protected under cabinet and, therefore, it was not made public. If ever there was an agency that ought to have a view, ought to have an opportunity to have a view, and where other relevant stakeholders have an opportunity to know what they think, what they are relying on and what they are recommending in respect of the licensing of alcohol, it is South Australia Police.

 

However, the government chose, until very recently, to keep the submission secret. Ultimately, the Commissioner of Police provided evidence to the Budget and Finance Committee of this parliament. On 20 February 2017, the police commissioner made it abundantly clear that he had no issue with the contents of his report being disclosed and made public and that the only reason it was kept secret was that it was at the behest of the government.

After the evidence was given, guess what happened? The Attorney-General made the submission public. After it was identified that the government had kept the submission secret and had refused to let anybody see it, after the police said, 'Well, it's not up to us,' after the government was pressed and asked if it had any objection to it being released, it said no and finally gave up.

I find the whole process secretive, unnecessary and highly obstructive to the considered debate and the consideration of other stakeholders to properly review and hopefully improve the licensing system in this state. It is disgusting behaviour. It is disgraceful, particularly when the government's key objective in relation to the reforms that it is ultimately presenting to us relate to the safety and protection of children in that under-age drinking category.

I think it is important that we hear from the police about how they are going to deal with the secondary sale of alcohol to minors. I think it is important that we hear from the police their view as to how the current procedures are working—the lockout laws and other initiatives that the government has brought in and that this parliament has approved. We need to know that and other stakeholders need to know that.

 

It is unacceptable conduct that, after nearly 16 years of this government, they still practise this juvenile and obstructive process of trying to keep documents out of the public realm, which not only should be there but should have been there right from the start. Notwithstanding that, I thank South Australia Police for their submission. Ultimately, when we were able to read it, it helped those of us in this parliament who were expected to make a contribution.

In terms of the other stakeholders—and there has been a significant number of them—I want to point out a very significant change in the process for the application of licences, the public consultation and the tests that are to apply. The Local Government Association put submissions to the government that a number of their councils, on behalf of their ratepayers, felt unfairly excluded. To a degree, the government listened to some of that contribution—clearly not all of it—and made some modification.

The Australian Hotels Association also has a very significant interest in respect of its clients and members, including hotels, which of course are either very big organisations or very small businesses, such as a husband and wife team that might operate a hotel, across to very substantial holdings by corporate and/or individuals. It is an industry that is also very involved in the legislative regulation of gaming and gambling. It is also an area of strict control by the statutes and regulations. So, clearly, they have a vested interest.

They have made a number of submissions, and I will place on the record my appreciation of their forensic assessment of this bill and their highlighting a number of areas that are of concern. One area in which they fought assiduously was the protection of their staff from random breath‑testing. This was apparently designed to support the protection of staff, presumably against the patrons of the hotel, from being drunk and disorderly while at work and from needing to be randomly breath-tested.

I do not think there is any evidence to support that; nevertheless, the AHA took the view that this was completely unnecessary. They presented a campaign publicly and for the benefit of other stakeholders, and the random alcohol and drug testing of staff was abandoned and ultimately did not see the light of day in the final bill. They were not so successful on a number of another initiatives that they felt were unreasonable; one of them relates to the massive proposed increase in the licensing fees.

As other speakers have said, in reality what we are getting here—as is usual with the government—is a backdoor way of propping up their budget with a massive increase in money. I am going to refer to that shortly. A number of other stakeholders came to us to present in respect of the opportunity for extended sale arrangements for liquor in supermarkets. I think it is fair to say that all members would have received submissions from members of that industry who felt that they were in a responsible position. They were able to provide sufficient protection to have expanded opportunities for the sale of alcohol in facilities within premises in supermarkets.

Mr Anderson and the government were not as forthcoming in accepting that. I think, at this point, there has not been an appetite in the general public for the need of it. From our perspective on this side of the house, there are opportunities for there still to be the sale of alcohol from supermarket facilities, as obviously they have separate entrances and so on. However, whilst the industry put powerful submissions to us, we accept what is currently in this bill to deal with that issue.

In general, the government claims the broad measures of this bill are designed to reduce red tape for new and existing licensees in the liquor supply market, increase efficiency in the regulation of liquor licensing in this state and enhance measures for safe drinking, including the enforcement of offences under the act. In respect of the first objective, there has been some streamlining of the number of licences and the nature of those that can be issued under the new law. It is fair to say that there had been a proliferation of different types of licences where food is sold or not sold, or within certain premises and the like. 

It is also fair to say that there had been a rambling list that was really quite complex and needed to be streamlined. I would not go as far as to say that they have reduced red tape. I think they have supplanted one shorter list with a highly regulated regime. I do not think they have actually achieved that, but they have at least streamlined the different types of licence numbers that are available in the liquor supply market.

In respect of increasing the efficiency in the regulation, let me say this: that is yet to be seen. We have a number of regulations under this statute that currently applies, and the government, as usual, does not show us the new regulations before we debate the bill, so we do not know whether their regulatory process is going to be any better. I suspect that, because they say that they have not yet decided on what the fee structure is going to be and that they are going to consult with the industry on that, in fact the truth of it is that they do not want to disclose that, and they do not want us to know about that before we debate this principal bill that is to provide a new umbrella under which the regulatory process will sit. 

Finally, the Attorney claims that it is to enhance measures of safe drinking, including for the enforcement of offences under the act. In this regard, I do want to say something. The Attorney claimed on 19 April this year that, in his view, under this bill liquor law reform was going to help combat teenage binge drinking. He said that there are going to be expiation fees of between $250 and $500 for individual offences. Then, if people are actually going to be prosecuted, the fines go up and are in the thousands of dollars. 'What I am hoping is not so much that we get a whole bunch of prosecutions but that we get this behaviour stopping,' he said. 

I do not accept that for one moment. I do not see that the increase in the expiation fees is anything other than a further tax grab by the government. I will come to that in a short while, because it is all very well to suggest that high penalties for breaches of the law act as a deterrent, but the truth is they clearly have not to date. When I come to the prosecutions in this area, I think the parliament will see that that is just another tissue of fantasy presented by the Attorney in the hope that he will be given some public accolade for clamping down on under-age drinking. 

We have some strict laws already to deal with this, which I suggest are not being utilised to the best advantage. If you want any contemporary example, consider what has happened in Mount Gambier in the last couple of days, where we now have a teenager charged in respect of a death arising out of some brawl in Mount Gambier. All too often we hear of coward punches, and we hear of disputes that obviously result in injury and sometimes death where there has been excessive consumption of alcohol and/or drugs. 

The government's history in relation to this needs to be viewed in light of their agencies as well. Firstly, in respect of the use of false IDs for young people, the criminal law makes provision for the use of personal identification information to be an offence in the event that someone uses a false identity. I do not think there would be anyone in this house who is not aware that it is common for someone who applies to enter a licensed premises, who is clearly under the age of 18 years, to deliberately use a false paper or a false identification for the purposes of accessing that facility. They might have their older brother or sister's identification card or a false document of a person who does not exist. They use an identification that is clearly not of themselves, or, if it is, it contains false information about their age. They use that for the purposes of presenting it, when asked, on entering a licensed premises.

One of the difficulties that operators of licensed premises have is how they then deal with a reasonable belief that the person presenting the ID is in fact not the person accurately described on that. When I raised this issue some years ago with the previous attorney-general (now our Speaker), when we dealt with the Criminal Law Consolidation Act in respect of the use of false identities under our identity theft laws, he made it very clear that the law was going to be passed that if somebody assumed a false identity, or pretended to have particular qualifications to make a false pretext, it would be a criminal offence and that the misuse of that personal identification information—whether the person on the document was living or dead—would also constitute an offence and carry significant penalties. Imprisonment for up to three years is now ingrained in our criminal law to ensure that people do not use false IDs.

At that time, he also introduced a provision that stated that this whole area of law was not to apply to people under the age of 18 years. They were specifically excluded. At the time, I recall there was one particular late-night venue outlet that had a particular attraction for young people who were supposedly over the age 18. There were many public concerns and complaints raised in regard to those premises allowing entry to people under the age of 18 years using false IDs. 

Those premises no longer exist, but at the time it raised great concerns for parents who were trying to track down their children, and it obviously raised concerns for the police because a number of young people as young as 14 years of age were entering those premises. But still the government insisted that the criminal law should not be attracted to punish persons under 18. From that time on, that has prevailed in the 10 or so years since. 

We have at least said to the government, 'Well, you really do need to deal with this question of what is happening in hotels or licensed premises, not just in increased penalties and punishments and so on to the proprietors and operators but also to a young person who has been declared by the law not to be eligible to purchase or consume alcohol and they are clearly doing so.' Sadly, we are still seeing the legacy of this government's failure to deal with that hard issue. Nobody wants to punish children and nobody wants to bring them into a criminal system. At the very least, if they are going to pretend that the licensing law will be crafted in a way that will minimise teenage drinking and, as the Attorney says, combat teenage binge drinking, then do not come in here with that waffle if they are not prepared to exercise it. 

Let me turn to what the situation has been in respect of young people who are drinking under‑age. There has been significant change to the offences relating to how one can be charged, whether that charge can be expedited, how they can be prosecuted otherwise and the massive extra fines that apply to anyone who sells or provides liquor to a minor. We do not have an issue with that, but what we do say is that somewhere sometime this issue has to be looked at and that we need to consider under-age drinking. It is still an offence for someone who is under-age to consume alcohol, and I think that should be made clear. 

In respect of the data, I was disturbed to read in a report from SAPOL, which kindly gave us a briefing on the bill, the number of under-age persons who had obtained alcohol in a hotel or consumed alcohol in a public place, which were both criminal offences of a minor. In 2016, guess how many were prosecuted? Four. In 2015, guess how many were prosecuted? Four. 

I find that disturbing, and I think other members should find it disturbing, because somewhere along the line, whilst there is a repeated focus, as there should be, on those who provide alcohol, responsible adults who have the privilege of the manufacture, sale and distribution of alcohol need to take it on the chin if they break the law. I have no issue with that. 

However, somewhere along the line we have to deal with this under-age consumption, which we clearly see at the end of the day not presenting as prosecutions in respect of the consumption in a hotel or a public place but, in fact, translating into more serious offences in respect of conduct, usually towards others, and sometimes resulting in harm or death of themselves or others. It has not been addressed and it is high time that it was. 

The government has told us that the lockout laws will stay, and we have debated those issues at some length here in parliament. Certainly, on our side at that time, we were not overexcited about the likelihood of their being successful. Quite frankly, when we read the final South Australian police submission when it came out of the closet of secrecy, it also told us that a diminution in the number of disturbances in public areas outside licensed premises had not been related to the lockout laws.

Nevertheless, the government said, 'We'll give this a crack.' It still does not apply to the Casino, and I think that is utterly absurd. I find it bizarre that people who walk out of the Casino, a 24-hour facility that sells alcohol, in some drunken stupor are treated differently from those who leave a public licensed premises. So, the police report does not provide us with any great comfort, in my view, that we are dealing with the teenage binge drinking problem by having it there—but it is still there and we are not going to interfere with it. 

Let me come then to the three areas that on our side we find inexplicable and without merit or in need of some protection. The first is that we propose to remove the provision for a three‑hour no-trading period. This is a curious addition proposed by the government, to the extent that in some way it is going to reduce the problems we have in relation to excessive alcohol consumption or even under-age consumption by making someone close their premises between 5 o'clock or 6 o'clock and 8 o'clock in the morning or whatever. 

Essentially, Mr Anderson recommended a period of time in the morning and some discussion was had about whether the particular premises could choose during which three-hour block they would not sell alcohol. There does not seem to be any restriction on their staying open; they can sell biscuits, muesli or something else, but they cannot sell alcohol. You can have a cup of tea, or you can have an orange juice or whatever. 

However, here comes the first quirky little addition of the Attorney: he decides that 9 o'clock in the morning is not night-time and that therefore we need to have a fixed period concluding at 8am. When did he become the expert on how to control teenage drinking by time-out restrictions for the sale of alcohol? There is just no basis for this that we can see to justify it and, again, rather than our trying to tinker around with this absurd little quirky addition by the Attorney, in our view it should go completely. 

It reminds me of the debate we had in this house that attempted to deal with deaths of young people on our roads by restricting them from driving their motor vehicles between midnight and, I think, 5am. The argument went something like this: that if you stopped young people driving in that time you would reduce the deaths on the road. 

Some amendments were made to say that if you were on your way to or coming home from employment and you had some certificate to say that you were finishing your job at McDonald's or Kentucky Fried Chicken, or whatever, you could have some leniency. There were some exceptions where you could have a relative in the car. You could drive your sister home, but not your girlfriend. I do not know why a sister's life is any less valuable than a girlfriend's, but we went through that. There were also provisions for emergencies and, I think, for attending sports practice or something of that nature. 

Yet, when the data came out, it was clear that most deaths of young people on the road actually occur between 9pm and midnight. We asked the question: why are you not restricting the driving of young people from 9pm to midnight, if those are the killer three hours? The answer was: well, that would not be acceptable. We have to fit in with what the public wants. 

This is what happens. You massage something into something else that becomes completely useless. Now we have a situation where country kids cannot drive around between midnight and 5am on their P-plates. Nobody in the government gives a toss about them, about how difficult it is for them to get around and have to drive within those hours. They do not have any access to public transport, and if they do it is once a year. We end up with a piece of legislation that is so corrupted by convenience, because they are trying to look good, that it becomes almost useless. I say that with respect to the three-hour no-trade rule that the Attorney, in his own peculiar, quirky way, is presenting as some antidote in the armoury of protection of young people. 

The second area relates to the proposal that we will have a register of licensees who have in some way been disciplined or suspended or the like. We have a blacklist, and this was presented as a sort of name and shame list, I suppose. It is not unique to the law. There are some circumstances where people commit criminal offences. They go on a register and it is accessible; sometimes it is on a website. It remains there indefinitely, particularly for child sexual offences.

There are times when we have been asked to support that type of approach, to have a blacklist, as an effective way of attempting to deal with people who do not do the right thing in the supply of liquor, supplying to someone they should not be providing to, whether because they are under-age or because they are inebriated. If there are people out there who have the privilege of having a licence to manufacture, supply or sell alcohol to the general community—and they are a privileged group; they are a restricted group; they have to jump through a number of hoops to get that opportunity—and they break the law, then, yes, they should be prosecuted.

Over here, we have a whole regime under the commissioner of licensing, Mr Soulio, who also has a team (all government funded), to make sure that when people do breach the rules and are culpable, in addition to being prosecuted they can also have that privilege taken away—their licence can be suspended. It can be completely discharged. They can be removed from the right to operate in this space at all. Every year, I ask our commissioner for liquor licensing at estimates how many people in the last year he has shut down or suspended the licence of because of a breach in their obligations in respect of their licence. Every year it comes back a big fat zero. 

If there are bad people out there in the industry, which is highly regulated, which is within the complete purview and on the watch of the government, and on which a lot of money is spent, then why are these bad people not being identified, prosecuted if appropriate, and having their licences taken away or suspended? The government just wants to turn a blind eye to that, and it does two things: first, it means that we have a whole waste of money in respect of a licensing regime. It sends a very poor message out to the general public, and it does not recognise and reward the efforts of those licensees. Whether they are running a restaurant, a hotel, a bar or a pop-up space during a festival, it sends a bad message to all the good ones that they will be acknowledged and that bad people in their industry will be cut out. That is the problem. 

In addition to that, I think the liquor licensing authority spends a lot of time dealing with the low-hanging fruit. They are not the first agency that I have criticised for this. They seem to turn a blind eye to the big events and the big issues, and they pick off at the low-hanging fruit, some poor bunny, some poor local footy club out in the middle of nowhere that might allow alcohol to be sold at five minutes past the authorised hour, or not let a local police station know that they are serving alcohol for the local footy club wind-up. That is the problem. There are other agencies that do that as well. I could start on a whole list, but I will leave the EPA for another day. 

From our perspective, there is no justification for having this register sitting there. As stakeholders have pointed out, if a licensee has had a black mark put against their name and they have remedied it, or they have ensured that if a staff member was not doing the right thing they have been removed and replaced with someone who is going to do the right thing and comply with the job, there is no opportunity for them to get off the list. I find the whole process superficial and demeaning when they have a whole capacity sitting over here which they could exercise. This is the cheap, easy option which we so often find the government taking rather than addressing the real issue. 

The third area which we say is utterly unconscionable is that the government received, in the Anderson report, a new set of rules that should apply to the setting of the licence fees for the new level of licences that are now going to be under the operation of this bill and, largely, they still reflect a level of risk. I am completely at a loss as to how that works, to be honest, but it seems to be a situation where a hotel that has a bottle shop is a lot riskier than someone who buys their alcohol in a restaurant and that somehow or other that should be reflected in the amount of the licence fee that they pay. 

Looking at the current regime of licence fees, which are relatively modest in the scheme of things, there is already some variation and it seems to relate to fees that ultimately apply to what turnover they might have and what benefit they might get from alcohol sales. This does not seem to reflect other revenues that might be coming into these premises, that is, if hotels also have gaming facilities, (whereas a restaurant may not have another avenue) of which they also, incidentally, pay very high regulatory fees to have the privilege and exclusivity of being able to have poker machines. 

What is so offensive about the government deciding that they will accept Mr Anderson's recommendation and change the formula upon which the licence fees will be set, is that they do nothing to identify what that is going to be. Unsurprisingly, when this is thrown on the industry, they say, 'We don't know what it's going to be, but if it's going to be the same as Mr Anderson has recommended, then we are going to be paying hundreds of thousands of dollars more in our licence fees and we still don't know who it's going to apply to and how it's going to apply.'

The government says, 'Look, don't worry. We're going to consult with the industry about how that's going to work. We'll sit down and have a chat with them and we'll discuss what that might be.' It may be something lesser. Who knows? It could be more. But what was highlighted by the stakeholders—in particular, the AHA did a lot of work on this, but I also recently had a submission from the South Australian wine industry—is that they too are very concerned about this. 

Just forget about this concept that suddenly we are only talking about, in the liquor industry world, some very rich hoteliers. The fact is that we have a kaleidoscope of an enormous variety of people who have the right to sell alcohol in restricted circumstances, and they are very big business across the very small operators. Some sell certain alcohol and not others and, obviously, the turnover and revenue from these are very different, but the cost increase is also of concern to the South Australian wine industry. 

They claim, for example, that the new fee for the liquor production and sales licence would be between $375 and $750, which is an increase of between 338 per cent and 676 per cent. The wholesale liquor merchant licence, currently $771 per annum, will be between $375 and $750. The restaurant and catering licence will be between $250 and $500, which is a 225 to 450 per cent increase, and the residential licence will be between $375 and $500, a 338 per cent to 450 per cent increase. 

I do not need to perhaps identify the very public number of outlets in respect of hotels that provide music as part of the feature of their establishment, along with the sale of alcohol, food and other beverages, but you only have to look at the papers and the press on this to see that something as small as the Udaberri outlet currently has a fee of $111 as at 1 July 2016, and if it progresses as per the Anderson inquiry, it would be $1,500, which is a 1,389 per cent increase. How is that fair? 

How is it acceptable that the government expects us to pass a law where that may be the maximum but we are not allowed to know what it is going to be, that we will massage that through the industry and we will do some deals and discuss with them how we are going to progress that? They might give some relief to some of the small groups. I see that on the same assessment another small outlet, Casablabla—quite popular; I have even had a drink there myself—goes from a licence fee of $771 to $6,050. That is a 5,279 per cent increase. How is that justified? 

When you read The Advertiser or see these things advertised or read the submissions that have been put to you, you might say, 'If the South Eastern Hotel in Mount Gambier has a fee increase of $2,754 to $7,000, who gives a toss?' Well, I do, and people in Mount Gambier do because they will be the ones paying for the increased cost of what they buy from the hotel. I am sure the member for Mount Gambier will be concerned about that. 

The government seems to have no conscience in bringing in a piece of legislation with a rider that says, 'Just trust us. We'll nut this out and it will all be fine.' I do not accept that for one moment and neither should you. Therefore, we will be moving an amendment to provide that any regulation that introduces a new regime for licensing fees must not have any other area of regulation in it. 

The reason for that amendment is to enable us as a parliament to challenge the determination of the government, if it is ultimately unacceptable and unconscionable in respect of the fee regime, so that we have some capacity to deal with it. We do not want the government, as is their usual practice, to put the unsavoury bits of regulation in with a whole lot of other regulation that is necessary for the proper implementation of a new law which is largely appropriate. 

We are facing a situation where the whole lot will fail under our challenge in respect of regulation fees that currently operate here in the parliament. In other words, we cannot peel off a bit of that and say, 'Look, 90 per cent of this is okay, but this 10 per cent in relation to fees is unacceptable.' We have no power to do that. This amendment from us will introduce a statutory restriction in respect of a regulation that imposes a new licensing fee arrangement, which will therefore be challengeable, independently of other regulation.

In conclusion, I thank the stakeholders who have worked very hard to put in very important submissions. There were a great number of them both in the consultation process with Mr Anderson's review and subsequently on the amendment. I thank those who voiced their concerns publicly because it is important that people do speak up, especially if they are representing a group in the community who are about to be smashed by something from the government. Some people do not speak up.

Some people feel compelled to remain silent, which is why we keep fighting all the time in this parliament to enable people to be able to go public after three months when governments do not act on whisteblowers' claims in respect of incompetent government or governance. We will continue to fight for that because too many people in our community are crushed into silence by this government where they hold the purse strings, they are the employer or they are the party that gives the contracts to a community that is very heavily dependent on government money and regulation. 

However, some of our stakeholders are brave and they are prepared to speak up for their members, and good on them because that is exactly what their job is. I thank them for that. I wish to thank SAPOL and the SAPOL commissioner, who did provide a briefing on the practical implementation of the licensing laws. I thank them also for their submission, although at that time they were compelled to keep their lips sealed on the release of their submission. 

I also thank commissioner Soulio and members of his staff, as well as advisers in relation to the Attorney-General's office. They were prompt in their provision of briefings, which is always appreciated. After all, their job is to make sure we are convinced of the benefits of these pieces of legislation, but I thank them for their courteous and prompt attention to those matters. With that, I indicate that we will introduce those amendments.