Committee
Resumed from 26 June. The Deputy Chair of Committees (Hon Adele Farina) in the chair; Hon Alannah MacTiernan (Minister for Regional Development) in charge of the bill.
[Speeches and comments from various members]
Clause 20: Section 38 amended —
Hon ALISON XAMON: I spoke to my concerns about this provision during my contribution to the second reading debate. The clause does a few things but one aspect is particularly opposed by the Greens. Currently an application for a grant or removal of a licence is subject to a public interest assessment. Clause 20(1) proposes to narrow this to apply only to licences of a kind that are prescribed. As I comprehensively detailed in my contribution to the second reading debate, alcohol is not a drug without its issues. Although the risk it poses, on the face of it, can appear to be fairly low, when we are talking about the establishment of particular licences, the Greens are of the view that a public interest assessment is merited in all cases. Another reason a public interest assessment should apply in all cases that a grant is being considered—I think this is quite important—is that one low-risk venue is one thing, but a proliferation of a range of venues is a quite different situation. I think, therefore, that a public interest assessment should be required.
As I said before, the public interest assessment guidelines on the Department of Racing, Gaming and Liquor website confirm at page 3 that the level of detail to be provided varies depending on the complexity of the public interest issues that arise. The Greens say that a proportionate approach is appropriate, but an abandonment of the public interest assessment process altogether, even for a seemingly low-risk licence is not. When the independent review contemplated the director having the discretion to consider an application, it was for the removal of a licence within a short distance and an alteration or redefinition of a licensed premises without the need for a public interest assessment submission to be lodged. But this bill goes a lot further than that. Again, the independent review supported the act of distinguishing between low-risk and high-risk licences. It identified low-risk licences as club licences, restaurants, small bars, wholesalers, and producers. It identified high-risk licences as hotels, taverns, nightclubs, liquor stores, casinos and special facilities. It supported using a proportionate approach and a less detailed public interest assessment for low-risk licences. Importantly, it did not recommend abandoning the public interest assessment altogether.
The minister has already given some response to this question in her reply to the second reading debate but I would like, in the first instance, to get on the record which licences will be prescribed as per the new provision in the act so that they will not have to meet the public interest assessment.
Hon ALANNAH MacTIERNAN: I think the member is aware of which ones we are considering prescribing. Is that what the member is seeking clarification on?
Hon ALISON XAMON: I am seeking to get which ones are likely to be prescribed clearly on the record.
Hon ALANNAH MacTIERNAN: We will prescribe the high-risk ones. The others will be there by way of exception. At this point we propose that those that will be prescribed will be high-risk ones—that is, hotels, taverns, liquor stores, nightclubs, and some facility licences. It is also important to understand that the director can, nevertheless, require a public interest test for any of those classes that are not prescribed. He has a discretion under the existing legislation for any other application for which the director decides it is appropriate for the public interest test to apply. There will be those that are prescribed, which will be required to have it and, in addition, for those that are not necessarily required to have public interest assessments—I think the member articulated the remainder—the director will have the capacity to deem for whatever purpose that it might require a public interest test.
I listened intently to the member’s comments during the second reading debate and I understand that she focuses very much on the harm that attaches to alcohol.
I have an addition to the list of prescribed licences—that is, casino licences.
Hon Alison Xamon: I thank the minister. I was hoping that she would confirm that.
Hon ALANNAH MacTIERNAN: The member is very concerned about the harm generated by alcohol. To some extent that informs where she believes the burden should lie. We are also very conscious that alcohol outlets and venues are also very important parts of the social infrastructure of our community. They are part of the amenity and lifestyle opportunities that people seek and also part of a tourism product. In the lead-up to the election, Minister Papalia indicated that the government was going to try to remove some of the regulatory burden in those areas that were considered to be low risk. That assessment of low risk has arisen from an understanding of the sorts of concerns that may arise from the community, or that we see the incidence of violence and bad behaviour associated with those types of outlets. It is not a perfect assessment, but quite clearly some of these licences over time have showed themselves to be less likely to contribute to high-risk behaviour than others, so we are making the distinction between the different classes of licence.
Hon ALISON XAMON: I thank the minister for documenting that so it is quite clear which ones are intended to be prescribed. The Greens’ concern is always about trying to make sure that we are achieving the right balance between what we would accept and agree are the outcomes in encouraging tourism and vibrancy within certain precincts, while at the same time ensuring that we are taking a harm-minimisation approach to these services. The principal concern is going to be around the accumulation of these particular licences. I suspect that we can agree that one licence is unlikely to be onerous within a particular precinct or community, but it can be cumulative in an entire precinct. I note that club licences can bring their own special challenges around increases in antisocial behaviour in particular, and that is one of the reasons the Greens are of the view that maintaining that public interest test is still quite important. We end up having the capacity to make sure that that sort of cumulative impact is potentially able to be addressed. I suppose aggravating this is the fact that, as I understand it, the impact of this provision specifically, by removing the public interest test for these classes of licenses, is not intended to be specifically monitored. I note that the McCusker Centre for Action on Alcohol and Youth requested that this provision should be monitored, and if we were to monitor it, there would be statistics showing whether there will be a spike in low-risk applications and whether there were increased levels of police interventions or more complaints or negative impacts on the public order. That also adds to the concern about the loss of this particular provision. We will never really quite know where there will be an increase in concern.
Hon ALANNAH MacTIERNAN: I understand the point that the member makes, but I think we can take some comfort from the fact that the director has the power at any time to require a public interest test in relation to a particular applicant. If we saw an area—Leederville, for example—where there was an extraordinary proliferation of small bars and creative groups that came together to get club licences, and this was generating a problem, the director has within his power the capacity for any future application to be subject to that public interest test. Having that in there provides a power for the director to manage these problems. It is important to understand that the director will want to do this. We do not want unmanaged outcomes and public outcry. We understand the member’s concern, but it is a question of getting this balance right. We think that the provision that the director can, in respect of any class of licence, require the public interest test gives us some protection, and there is always the capacity if this is emerging as a problem to amend the regulation adding a new class.
Hon ALISON XAMON: Thank you, minister. I am aware that the director cannot be everywhere at all times, and it would be unreasonable to expect that the director would necessarily know of any community concerns that might be emerging or starting to bubble away in a particular area or precinct, or pertaining to a particular licence. Would the minister be able to give any indication of how a member of the public, concerned about the operations of a low-risk licence that has not been subject to the public interest test, might be able to raise those concerns directly with the director so that the director might be aware of any cumulative concerns in a particular precinct?
Hon ALANNAH MacTIERNAN: I can assure the member that the police, the public and the local government are very quick to inform the director of Liquor Licensing of problems that are emerging. Notification of what is going on has not been a problem. There is a very great readiness on the part of the public, local government and the police to inform the director of Liquor Licensing of places that are considered problematic. It is important to understand that, in response to that, the director has, even in respect of a licence that is already operating, the power to introduce new conditions to control this, because there are overarching responsibilities to keep good order in and around the premises. That capacity is there. I do not think this provision is in any way going to allow a free-for-all, but it is trying, to some extent, to free up time so that those things that in the past have been shown to be low risk are not subject to the same full process. That then leaves more resources to focus on those more high-risk classes, and to respond to other emerging problems, and to jump on them and impose conditions to manage those problems as and when they arise.
Hon ALISON XAMON: I thank the minister for putting those comments on the record. That is helpful. I move —
Page 13, lines 2 to 4 — To delete the words.
[Speeches and comments from various members]
Amendment put and negatived.
Clause put and passed.
[Speeches and comments from various members]
Clause 52: Section 109A inserted —
Hon ALISON XAMON: I have proposed an amendment to this clause. The clause makes it an offence to carry in a vehicle more than the amount of liquor prescribed in a prescribed area of the state. Effectively, it is dealing with the sly grogging provisions. The Greens have no problem with the principle that this provision is trying to achieve, nor with the maximum proposed penalty of a $10 000 fine. The concern we have is the minimum penalty of a $1 000 fine that has been prescribed, which has the inadvertent effect of being a mandatory penalty. In this amendment, we are proposing to simply remove the prescribed minimum so that the maximum penalty remains, but judicial discretion can still apply if the case should arise that someone who is a suspected sly grogger is to be prosecuted. I am sure that I do not need to go through in detail why it is problematic to have mandatory fines in an environment in which we are talking about primarily Aboriginal people who are likely to be caught up in these provisions, although not always. There is already an unacceptable level of incarceration of Aboriginal people due to the issue of unpaid fines, and the concern we have is that this applies to the contrary. I acknowledge that section 109, immediately preceding this proposed section, contains mandatory minimum fine penalties for the sale of liquor offences. However, we are of the view that that does not consider it sufficient justification to enact a further mandatory minimum penalty. Before I move the amendment, I may see whether the minister wants to reply.
Hon ALANNAH MacTIERNAN: The member’s point is well argued and we will support that amendment.
Hon COLIN HOLT: I just want to touch on what Hon Alison Xamon was talking about. Proposed section 109A(2) states —
Penalty for this subsection: a fine of $10 000 ...
The minister accepts the amendment, but I wonder, if the minimum penalty is a fine of $1 000 and that gets deleted, can it be interpreted that the fine has to be $10 000?
Hon Alannah MacTiernan: No. If you have a maximum penalty that is death or life imprisonment —
Hon COLIN HOLT: It does not say that it is the maximum penalty; that is all.
The DEPUTY CHAIR: I am going to call Hon Alison Xamon, but I suggest that you move the amendment so that we can debate the amendment.
Hon ALISON XAMON: In that case, hopefully so that we can move on, I would like to move the amendment standing in my name. I move —
Page 35, lines 25 to 26 — To delete “a fine of $10 000, but the minimum penalty is a fine of $1 000.” and substitute —
"a fine of $10 000".
When I originally drafted the amendment, I had included the words “up to $10 000” precisely for the reason that the honourable member articulated. I wanted to ensure that it could not be interpreted as “the fine”, as opposed to part of a potential maximum fine. I was assured by the drafters that a better way of drafting this particular provision was to simply have it as $10 000 and that that meaning would apply. So, a maximum penalty was still prescribed, but it will probably be useful to get on the parliamentary record that the way that I was advised that this should be drafted is how it is intended.
Hon ALANNAH MacTIERNAN: I am advised that as a matter of statutory interpretation, the way that the phrase is structured means that it is a maximum, not a mandatory, penalty.
Amendment put and passed.
[Speeches and comments from various members]
Bill read a third time and returned to the Assembly with amendments.