I advise that the opposition supports this bill. We have consulted with industry stakeholders and listened to a number of arguments for and against the bill. We have certainly received quite a lot of feedback. At the end of the day, the Australian Hotels Association and industry stakeholders welcome the proposed amendments, so we will support them because, as Liberals, we listen to small business.
On the positive side of things, the improvements to a producer’s licence is a good result for producers and consumers, and we welcome these changes. However, I place on the record some of my own concerns. This bill is designed to make Labor sound tough. It is part of the usual Labor spin about being tough on crime and tough on drugs. The trouble with this bill is that, in its rush to get a bill into parliament before the election, Labor has botched it.
Let me explain my concerns. Section 24 of the bill amends section 108 of the Liquor Licensing Act. It used to be the case that, if a licensee served an intoxicated person, the licensee was guilty of one offence. The bill creates a second offence for publicans. Under the proposal, licensees will also be guilty of an offence if they serve someone whose speech, coordination or behaviour is noticeably impaired by alcohol.
Let us examine the expression ‘noticeably impaired’. The proposed bill does not say ‘significantly impaired’; it does not say ‘grossly impaired’—it says ‘noticeably impaired’. In my experience, it is simplistic to describe someone as either drunk or not drunk. Intoxication is a state that occurs along a continuum and the high-end symptoms could include keeling over, vomiting, shouting, fighting or planning to elect Kevin Foley as the next leader of the parliamentary Labor Party!
At the low end of the intoxication continuum you may start to become a little more gregarious, perhaps more talkative. These signs are noticeable. However, if you are at the low end of the intoxication continuum you are generally not a danger to yourself, the licensed premises or society as a whole. There is no reason to turn off the tap when a customer is noticeably at the low end of the continuum. Honest, hard-working publicans and club licensees should not be found guilty of an offence simply because a person has become more gregarious.
This bill is the wowsers at work; it is the nanny state gone too far. By all means stop people from bingeing and becoming falling-down stupid drunk. There is nothing wrong with people having a quiet drink at the end of a long day or a long week, seeking to visibly enjoy the company of good friends, to intimately share stories and tell tall tales—all of these signs may be noticeable but they should not be criminal.
Will every footy player singing their club song be noticeably impaired? In my view, the minister clearly has not thought this through. If you want to focus on people who are very drunk then say ‘very drunk’ or ‘significantly intoxicated’ or something that clearly indicates that the legislation focuses on the high end of the continuum and not the low end.
We have heard that the regulators need the definition of ‘intoxication’ clarified because they have had difficulty in proving that a person was drunk. With the greatest of respect, what a load of rubbish! I realise that this must come as a great shock to the minister but there is a fair amount of drinking going on in South Australia and a percentage of these drinkers are getting drunk. A smaller percentage, on any given night of the year, get very drunk. There is no shortage of intoxicated people in South Australia.
The fact that the Office of the Liquor and Gambling Commissioner has not been able to find one of them since the Rann Labor government was elected has nothing to do with the inadequacy of the legislation but says volumes about the priorities of the minister and her department. If the Office of the Liquor and Gambling Commissioner wanted to prosecute a drunken person, it could find a very intoxicated person easily enough and it does not need a change in the legislation to go down that path. If it is arguing that it has problems proving intoxication in borderline cases, then it is barking up the wrong tree. Remember, it is not the drunk who is guilty of an offence, it is the licensee.
In both my official and unofficial capacities I have had a lot of dealings with hotel proprietors and club licensees. In my dealings it is clear to me that most licensees are busting a gut to comply with all the laws and regulations, codes of practice, directions from the commissioner and other red tape that gets imposed on them on a regular basis. The majority are doing the right thing. They have systems and procedures in place to prevent people from getting too drunk. They train their staff and they obey the law.
If a person is borderline intoxicated then the government should not be prosecuting licensees. Education for licensees—yes; training for venue staff—yes; a warning at the very most. However, if there are questions involving on which side of the drunkenness line a customer falls, then do not prosecute the licensee. That is why it is important to get the legislation right. The law should be clear. A licensee should be able to easily understand where the line is between intoxicated and okay to serve.
Personally, I believe that the minister’s bill makes things worse. It pretty much declares that an offence is committed if anybody is visibly enjoying themselves in a pub or club. Under this bill just about every licensee will be committing an offence on every trading day. What that means is that licensees will have to rely on the goodwill and common sense of police officers and the Office of the Liquor and Gambling Commissioner inspectors not to prosecute them. How can liquor licensees be expected to run their business when, at any time, some petty official can decide to declare their behaviour to be criminal? Surely this is not the right way to regulate an industry. The minister says that similar clauses operate in other states, but that is simply not good enough. We need laws that take into account the practical realities of running a business in the liquor industry. We do not need laws that are dreamt up by the nanny state crowd who oppose people having any fun at all.
I understand that, after consulting with industry, the minister has agreed to amend her own bill. It is a pity that she did not consult up-front and get her bill right in the first place. On behalf of all liquor licensees, I only hope that the new defence she has created to counteract the possible implications of a new offence is broad enough to avoid innocent publicans and licensees from committing unwarranted criminal offences. So, for the sake of thousands of South Australian small businesses, I hope the minister has this right. South Australian licensees should not have to deal with badly thought out legislation just because the minister is desperate to get an article in tomorrow’s Advertiser.
I move to my next concern: section 22. Section 22 of the bill amends section 104 of the Liquor Licensing Act. It proposes that, if at the end of having a meal at licensed premises you have not finished your bottle of wine, you have the legal right to take the remainder of the wine with you. This right applies despite any other provision in the Liquor Licensing Act. This looks like another clause that has been proposed without being properly thought through. What happens if the licensee has removed the patron for intoxication? What happens if they have been removed for bad behaviour, fighting, abusing staff or criminal damage? No matter how bad the behaviour of the customer, will they be able to take their booze with them? Will the problem be moved on to the streets and the surrounding precinct? I can see it now: Adelaide streets full of drunks, swigging from their bottle, because minister Gago has given them the legal right to keep drinking on the street.
What happens if the venue is in the middle of a dry zone? Dry areas are established under the Liquor Licensing Act, but the minister’s bill may give a drunken customer the legal right to take away their booze, despite any other provision of the Liquor Licensing Act. So, does this new right override the dry zone laws?
Under this bill, if I want to drink in a dry zone, it looks as though all I have to do is buy a bottle of booze with a meal, tell the owner that I do not want any more food and walk out onto the street with a full bottle. This clause appears to be poorly thought through, unless the minister can explain things more clearly.
As a Liberal, I am guided by some fundamental philosophies, but now is not the time to set them out. However, this bill tramples on a few basic beliefs. Businesses need clear laws that are easy to follow. This bill fails the test. On the face of it, every liquor licensee will be committing an offence on almost every trading day. Adults should be free to make their own decisions about how they live their lives. This bill sends the message that this government opposes social drinking, and minister Gago is now the captain of the anti-fun police.
I oppose the philosophy behind this bill. I object to the poorly thought through manner in which the minister proposes to carry out her nanny state philosophy. I object to the possible impact this will have on thousands of South Australian small business people trying to make sense of their increasingly complicated regulatory scheme. I do not think behaviour should be criminal just because it is noticeable, and I think it is dumb to give drunks the right to take their unfinished booze on to the streets or into a dry zone. Having put that on the record, the opposition will be supporting the legislation.