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Legislative Assembly for the ACT: 1998 Week 11 Hansard (9 December) . . Page.. 3416 ..

MR HUMPHRIES (continuing):

There is a problem with the enforcement of laws which prevent the sale of alcohol to children under the age of 18. A succession of judgments by ACT courts have relied upon the provisions in the Liquor Act to suggest that a licensee has exercised due diligence in putting in place some scheme, in theory, to prevent the sale of liquor to a child under 18. A practice has developed around those provisions which effectively gives a licensee the capacity to argue a defence to a charge that they have sold to a child under 18. I think we go too far with those provisions. We have certainly reached the stage where a number of licensees, notwithstanding that they have not only knowingly sold liquor to under-18s but repeatedly sold liquor to under-18s on a number of occasions - - -

Mr Quinlan: Knowingly?

MR HUMPHRIES: Knowingly or not, they have made those sales. The Government believes that we should approach this issue on the basis that an absolute liability of sorts ought to rest on a retailer of liquor to ensure that systems are in place which not only are designed to prevent the sale of liquor to under-18s but actually result in the sale of liquor to under-18s not being possible. This is what this Bill Mr Osborne has brought forward does.

These are serious steps that we take. We certainly make it more difficult for a licensee to avoid a conviction. I think that is the message the Territory would like to be sending to such licensees - that they ought to put in place mechanisms to ensure that a person who is acting in their employ does not sell to an under-18 and that if their measures fail to be effective they have to wear the consequences of that failure. It is a high bar to set, I concede, but it is an appropriately high bar, given the important question at stake here, the question of ensuring that children are not able to purchase liquor from ACT retail outlets.

I want to quote at length from a decision brought down earlier this year by the then president of the Administrative Appeals Tribunal, Professor Lindsay Curtis. He and his tribunal had considered a number of such decisions over a period of time and, I think it is fair to say, reached the view that we had got to the stage where too low a standard was being imposed on retailers in the ACT. I quote from the last page of his judgment:

... the licensee escapes penalty notwithstanding that there was error on the part of the manager trusted with the day to day operation of the store. The same result was reached in the Woolworths' case. There must, I think, be a real question whether this is a satisfactory outcome from the point of view of administration of the Liquor Act. The judgements of the House of Lords in Tesco Supermarkets v Nattrass make it clear that the policy considerations behind the decision in that case concerned the perceived unfairness of making a company criminally liable for the actions of an employee. It may be doubted, however, whether this accords with the reality of practical management. Those who are entrusted with the day to day management of the operations of a business are those who,

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