Page 4749 - Week 16 - Wednesday, 28 November 1990
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The second problem that the committee had relates to the second change. The law at present allows a licence to be cancelled if the disturbance or inconvenience is being caused to a person residing in the neighbourhood of the premises. The proposed change allows the licence to be cancelled if the inconvenience is caused to a person occupying premises in the neighbourhood. Again, it looks like lawyers' language, but there is a substantial difference. The present law applies only to residents: the law as proposed will apply to occupiers. What that means, in effect, is that the law does not apply at present to licensed premises in an industrial or service area, and an example that comes to mind might be premises out at Phillip, because there is no resident who can complain. From time to time we hear complaints from occupiers of commercial premises that are near some licensed premises that they regularly have problems with patrons of the licensed premises in the early hours of the morning causing vandalism, fouling the footpath or indulging in other rather unpleasant activities.
There obviously was a problem with the law there. Those occupiers are entitled to some protection. We support the change to the law. We support the extension of this power to give some protection to occupiers of commercial premises; but, again, the rules are changing. The law has changed and a complaint that has been lodged and is being dealt with will be dealt with under the new law.
I notice that in the Attorney's letter of today to the chair of the committee he says that he does not believe that there will be any prejudicial retrospectivity as a result of this amendment, and I can well understand that in practice that may be the case. One would think that, because the law is being widened, inspectors or officers of the licensing authorities would not be bringing complaints against persons now unless they fall within the residential provision, so you would not have a complaint in progress that could have the retrospective law applied to it. But it is an important principle, that needs to be jealously guarded in this place, that where you are changing a law and applying it retrospectively you need to be on guard to prevent a set of circumstances that were lawful at the time suddenly being rendered unlawful.
If an officer of the licensing authorities or a citizen took a mistaken view of the law at present and lodged a complaint in relation to premises in a non-residential area, as the law presently stands, if that complaint came before the authority the licensee could properly say, "I am not committing an offence; my conduct is lawful because I am in a non-residential area", and that complaint would be dismissed.
If, however, the retrospective operation of this new law is allowed to apply, the person will be found guilty of the offence even though at the time of the complaint the law was different. That is a dangerous possibility that, as I
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