Page 4095 - Week 09 - Thursday, 26 August 2010
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There will be strict liability offences for licensees, permit holders, employees and members of the public who serve alcohol to intoxicated persons, together with a strict liability offence for anyone who abuses, threatens or intimidates staff who refuse to supply liquor to an intoxicated person.
Record-keeping requirements include keeping copies of RSA certificates and maintaining an incident register. A range of criminal offences are introduced. The commissioner will be able to issue binding written directions to a licensee or permit holder. The police will be able to close premises in an emergency for up to 24 hours. There will be new enforcement powers for police and investigators. There will be a range of provisions relating to children and young people, including dealing with underage drinking and attendance in licensed premises.
Many of the provisions carry offences or strict liability offences and there is an offence caution provision. There will be exemptions for young people who are employed or being trained. The commissioner will be able to declare public places as temporary alcohol-free zones.
Finally, the executive will be able to make regulations on a range of matters, including opening times, marketing activities, licence and permit conditions, permanent alcohol-free zones, the content of risk assessment management plans, conditions for young person’s events, licence forms and matters for the commissioner to consider when deciding new licence or permit applications.
I have already mentioned a number of the failings of the bill in its attempt to reform the liquor laws in the ACT, but I want to elaborate on those a bit more. Firstly, there is considerable subjectivity brought into play in the decision-making process under the proposed law. For example, clause 10 of the bill sets out the principles that a decision maker must consider when making a decision under the act. The principles are fundamental to achieving the aims of the new legislation, but they are very subjective. For example, the language includes phrases such as “responsible attitudes and practices”, “responsible development”, “likely to continue”, “noise should not be excessive” and premises should not be located where they would “be likely to cause undue disturbance” and so on.
There is subjectivity, too, in the process the commissioner must follow in deciding on licence applications. Again, the language is subjective, like “satisfied” that the premises are suitable and that the applicant and premises comply and are “likely to comply” with the act. The subjectivity continues in other elements such as the assessment of the suitability of premises. The subjectivity could discriminate against current or proposed licensees or permit holders. Even the definition of whether a person is judged to be intoxicated is subjective. The bill says a person can be considered intoxicated if the person’s speech, balance, coordination or behaviour are noticeably affected. It is reasonable to believe that these conditions are as a result of the consumption of liquor.
The subjectivity in decision making fails to provide certainty to the industry and/or patrons and members of the public. The bill also shows a lack of understanding of cultures. Division 7.2 allows the commissioner to approve an application to use an
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