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Legislative Assembly for the ACT: 1998 Week 11 Hansard (9 December) . . Page.. 3417 ..

MR HUMPHRIES (continuing):

in a practical sense, will be responsible for the diligent implementation of company rules, policies and practices. Those who constitute the "directing mind and will" of the company may well be those who lay down systems designed to ensure that no breaches of the law will result from the company's operations. But the diligent implementation of those systems is in practice left to those to whom the company has entrusted responsibility for its day to day operations.

Here is the most pertinent bit, Mr Speaker:

Although it may well be unjust that a licensee who has taken reasonable precautions and exercised due diligence should face criminal prosecution for the actions of an employee, it seems to me that the desirable outcome might well be different where a disciplinary sanction is involved. It seems to me that it might well be reasonable that a licensee should be required to accept responsibility for a failure of diligence on the part of those employed to manage its day to day operations to ensure that its systems are properly implemented and that instructions given are properly observed.

What I think Professor Curtis is saying is that, where criminal sanctions are in issue, yes, it is reasonable to accept that due diligence is a defence. But where we are looking at a disciplinary sanction of the kind contained in the Liquor Act, then it is reasonable to accept that due diligence should not be an entire defence to a proceeding against that licensee, in this case before the Liquor Licensing Board.

Mr Speaker, those comments reflect the frustration which has been permeating the liquor enforcement mechanism of this Territory about the way in which the liquor legislation has in fact been applied. I think we should hear those concerns and we should reflect and pick up those concerns in our response. The appropriate response is to support the legislation which is before the house today. Yes, it does set a high standard. Yes, it means that a licensee who puts in place precautions that break down will be, in effect, opening themselves to proceedings before the Liquor Licensing Board. But that is an appropriate standard, in my view and the view of the Government, because we need to make sure that the highest standards are maintained in this area.

The fact is that almost on a weekly basis, certainly on a monthly basis, people are being prosecuted for sales of liquor to under-18s. If due diligence is supposed to be resulting in a high standard in the ACT's liquor outlets, it does not appear to be working. The number of breaches of the legislation that appear to be occurring is regrettably high, in fact alarmingly high. I believe we should support this legislation, thereby sending a signal that we consider this should not go any further.

In our view, unless a defence is available under the Act - and I am particularly thinking about those provisions that are provided for in the legislation for people seeing a proof of age card or other evidence of age, but that is another matter, so let us put it to one side - then I think an absolute liability ought to devolve onto the licensee. The Government therefore will be supporting Mr Osborne's Bill.

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