Page 4748 - Week 16 - Wednesday, 28 November 1990
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I understand that at the detail stage of this Bill the Attorney will be moving some amendments which arise in response to the report of the Scrutiny of Bills and Subordinate Legislation Committee. A possible problem was detected in that at one point this Bill refines the circumstances in which a licence can be cancelled.
At present section 46 of the Act gives the authority powers to give directions and, at the end of the day, perhaps suspend a licence if the "licensee has permitted his licensed premises to be used so as to cause undue disturbance or inconvenience to persons residing in the neighbourhood of the premises". The sexist language is to be corrected, which is a good thing. This is to be changed to:
... licensee has permitted the licensed premises to be used so as to cause disturbance or inconvenience to persons occupying premises in the neighbourhood; ...
There are two changes there, Mr Speaker. The present law allows a suspension if undue disturbance or inconvenience is established. The proposed amendment would allow the licence to be cancelled if disturbance or inconvenience were caused. Perhaps that does not look like a major change, but in terms of a legal approach to proving an offence it is much harder to prove undue inconvenience than it is to prove inconvenience. They are, in effect, lowering the standard of inconvenience that must be established.
The committee noted that that could have undesirable consequences. It could, in effect, be retrospective criminal legislation because the transitional provisions say, in effect - I will paraphrase them because transitional provisions are always complex - that, where a charge or a complaint is presently progressing under this Act, when the law is changed the authorities will proceed to deal with the charge or complaint as though it were brought under the changed law. In effect, the new law will apply to a matter that is in progress.
That is probably a good thing generally, especially, as I mentioned earlier, where the greater flexibility is provided to the licensing authorities in relation to suspensions rather than simple cancellations of licences. It is a good thing that a matter in progress will be able to be dealt with more flexibly. But it becomes a problem if the actual offence changes so that conduct which would have been lawful suddenly becomes unlawful. I note that the Attorney has agreed that there is a problem with the change from "undue disturbance or inconvenience" to "disturbance or inconvenience" and has indicated that he will be moving an amendment to reinstate the word "undue" so that the level of disturbance will remain the same.
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