Preliminary
On 11 February 2016 the Deputy Premier, Troy Grant MP, appointed the retired High Court Judge, Ian Callinan, to undertake a review of the 1:30am lockout and 3:00am cease sale of alcohol restrictions, imposed upon venues within the Kings Cross Precinct and Sydney CBD Precinct. Also as part of that review, Mr Callinan was asked to review the periodic fee licence regime, as well as the prohibition on take-away alcohol sales applying from 10:00pm across the State.
At about 5:00pm on Tuesday, 13 September 2016, Mr Callinan’s report was released into the public domain (Review Report).
A copy of Mr Callinan’s report can be obtained via the following link:
http://www.liquorlawreview.justice.nsw.gov.au/Documents/report/LiquorLawReviewReport.pdf
Public reaction to the Review Report
The 1:30am lockout and the 3:00am cease sale of alcohol time has attracted much controversy since these measures were imposed in 2014. Following the Review Report being released into the public domain, a number of groups have welcomed its release and called for the lockout and 3:00am cease sale of alcohol restriction, to be imposed across NSW. Both the Foundation for Alcohol Research & Education (FARE) and the so-called Last-Drinks Coalition have made these calls. Naturally, the peak liquor industry representative bodies are disappointed with the Review Report.
Review Report findings
Principally, Mr Callinan finds that the 1:30am lockout and the 3:00am cease service of alcohol restrictions, have fulfilled their legislative purpose. Furthermore, the objectives of the amendments to the Act and Regulation introducing these restrictions, are both valid and appropriate. Accordingly, both the 1:30am lockout and the 3:00am cease service of alcohol restrictions are likely to remain.
Despite this principal finding, Mr Callinan believes there should be a “staged relaxation” for “genuine entertainment venues” (whatever that means) in these two Precincts. This staged relaxation is to be trialled over a period of two years, whereby the 1:30am lockout time is extended to 2:00am and the 3:00am cease service of alcohol time is extended to 3:30am. One has to ask, what is the point of these minor concessions, given the principal findings?
The risk‑based licence fee regime was found to be in keeping with the objects of the Act and will remain.
The sale of takeaway alcohol, whether before or after 10:00pm, was found to make “little or no contribution to violence and anti‑social behaviour in the Precincts” [at 9.10]. If that was the case then why did Mr Callinan regard it necessary to limit takeaway sales to 11:00pm? Home delivers can, however, be made to 12:00 midnight.
Did Mr Callinan bring an open mind?
On a fair reading of the whole of the Review Report, a question arises as to whether Mr Callinan brought an open mind to the task in hand?
At [9.2] Mr Callinan says:
“On all of the evidence that I have reviewed, and having regard particularly to the statistics objectively collated and professionally analysed by BOCSAR, and the informed police and medical evidence based on actual experience, I have formed the view that the two Precincts at night were grossly overcrowded, violent, noisy, and in places dirty, before the Amendments, but that after them, they were transformed into much safer, quieter and cleaner areas.”
This observation appears to be harsh and an overstatement of the condition of these two Precincts as a whole.
At [4.12] Mr Callinan says:
“It is possible to gain the impression from submissions from some owners of licensed premises that they are engaged in an altruistic endeavour unrelated to profit from sales of liquor. In making this observation, I do not in any way disparage the legitimate objective of carrying on a business for profit. But unfortunate social consequences flowing from the conduct of the business of selling alcohol can no more be expected to be ignored by the legislatures than those flowing from other business activities potentially harmful such as, for example, selling tobacco.”
So the operators of licensed venues are grouped with tobacco retailers, in Mr Callinan’s view.
Elsewhere in the Review Report, one cannot help but feel that Mr Callinan has very little sympathy for the operators of licensed venues in either of these two Precincts, particularly those who have gone out of business as a consequence of these restrictions being imposed. The claims concerning the number of businesses that have had to close as a consequence of these restrictions, according to Mr Callinan, “may have been exaggerated” (at [5.36]).
As to the change in the nature of the Kings Cross area, which some licensees have said was a direct consequence of the restrictions being imposed, Mr Callinan simply puts that change down to the inevitable process of “gentrification” (at [5.61]).
The elephant in the room
Reflecting on my youth (and I did from time to time visit Kings Cross) the phenomenon of the “king hit” or “coward’s punch” was unknown. What is it that drives young men into a state of rage, where they purposely visit high density population areas, simply looking for someone to punch?
In respect of the arguments raised by some submitters to the review, that drug-taking has increased, at (at [5.63]) Mr Callinan said:
“During my meeting with the Commissioner of Police and his senior staff, I was told that drug related crime has not increased since the Amendments …” [in early 2014].
I find it difficult to reconcile this statement attributed to the Commissioner of Police, against the BOCSAR June 2016 Quarterly Report on recorded crime statistics. According to this Quarterly Report, the trend over the previous 24 months to June 2016 in respect of possession and or use of amphetamines was up 18.6% across NSW. The possession and or use of other drugs was up 12.7%. In the Sydney Local Government Area by using the Crime Mapping Tool on the BOCSAR website for all drug offences in this LGA over the past two years there was an up‑trend of 11.3%.
In the Quarterly Report for the period ending December 2015, the two year trend for possession and/or use of cocaine was up 35.9% and for amphetamines, was up 30.6%.
It would be self-evident from these statistics, that there would be an increase in drug related crime, particularly in high population densities like Kings Cross and the Sydney CBD.
So where to from here?
On 13 September 2016 the Deputy Premier, Troy Grant MP issued a Media Release in response to the Review Report being released. Mr Grant said that the government will “now consider the Report and deliver its response before the end of the year …. There is significant community and stakeholder interest in this Report and we are releasing it immediately to give everyone a chance to consider its findings and recommendations.”
If I were a “betting man”, the smart money would be on the Government doing nothing.
I also predict that some media release will possibly be issued in the middle of the Christmas/New Year Holiday Period and by the time the next State election comes around, Mr Callinan and his Review Report will be long-forgotten.
There is no sunset date on these lockout and 3:00am cease service of alcohol restrictions, so they can simply continue on. Doing nothing, is therefore the easy option for the Government.
As to extending these restrictions across NSW? Despite the urgings of anti‑alcohol groups like FARE and the Last‑Drinks Coalition, I do not believe that the Premier will have the electoral nerve to extend these restrictions across NSW. That would be (in the words of Sir Humphry Appleby) a “politically courageous” decision.
Bruce Bulford
22 September 2016
