On 1 March 2015, the remaining parts of the Liquor Legislation Amendment (Statutory Review) Act 2014 commenced. An important change was the amendment to the licensee’s defences to the charge of “permitting intoxication”. No longer will licensees be able to take the “all other reasonable steps” defence. Instead the defence is that the licensee “took the steps set out in the Guidelines” issued by the Secretary of the Department, relating to the prevention of intoxication on the licensed premises. The Secretary’s Guidelines can be found at http://www.olgr.nsw.gov.au/pdfs/olgr_intox_guidelines.pdf
By way of background, s.73(1) Liquor Act 2007 (Act) creates the offence of a licensee “permitting intoxication” on the licensed premises. The maximum penalty is a fine of $11,000.00. More importantly, a conviction under this section is a “prescribed offence”, for the purposes of the Three Strikes Regime.
In bringing this type of prosecution, the Police and OLGR Inspectors are assisted by a deeming provision contained in s.73(4). A licensee is “taken to have permitted intoxication” on the premises unless the licensee proves either of the three defences set out on s.73(4).
As a threshold issue for the prosecution however, it must prove that the person under observation was “intoxicated”, as defined by s.5 of the Act.
The s.73(4) defences are:
(a) That the licensee or its servants or agents took the steps set out in s.73(5); or
(b) The licensee or his servants and agents took the steps set out in the Secretary’s Guidelines; or
(c) That the intoxicated person did not consume alcohol on the licensed premises (s.73(4)(a), (a1),(b)).
The s.73(4) defences are alternates, so that (for example) if the licensee proves on the balance of probabilities, that the intoxicated person in question did not consume alcohol on the licensed premises, then there is no need for the licensee to have to prove that he or she took the steps set out in the new Secretary’s Guidelines, or took the s.73(5) steps.
The s.73(5) steps are that the licensee or his or her servants or agents:
(a) Asked the intoxicated person to leave the licensed premises;
(b) Contracted or attempted to contact the Police for assistance in removing the person;
(c) That the person was refused the service of alcohol upon becoming aware that the person was intoxicated.
Section 73(5) is badly written. At first glance, it might be taken to require the licensee to have taken each of the three steps set out in s.73(5)(a) to (c). Absent from s.73(5) is the word “or”, which can be found in s.73(4).
Does the licensee have to take each of the three steps as set out in s.73(5), in order to rely on that defence? In my view, the licensee does not. To construe the section as requiring each of the three steps to be taken would lead to an absurd result which would be that the licensee could not rely on the s.73(5) defence, if the patron in question readily agreed to leave the premises and therefore there was no need to call the police. On the usual principles of statutory construction, a construction is to be preferred if it avoids an absurdity or an impossibility of performance.
The same issue arises in the application of the Secretary’s Guidelines. Do all of the steps have to be taken in the circumstances? On the plain reading of the Guidelines, I am of the view that the Secretary clearly intended that the licensees had to take each of the steps, as the Secretary has said:
“Where a licensee seeks to rely upon this defence, it will be necessary to demonstrate that each of the steps involved in these Guidelines [were taken] at the time the offence of permitting intoxication was alleged to have occurred”. (Page 2 of Guidelines).
The defence now provided by s.73(4)(a1) is that the licensee “took the steps set out in the Guidelines”.
The Guidelines contain four “steps” commencing on page 2. Some of these steps are uncontroversial and speak for themselves, others need further comment.
Step 1(a) obliges a licensee to prove that the requirement not to sell or supply alcohol to an intoxicated person “is complied with”. That on the surface seems fairly simple, but in fact, this would require extensive due diligence procedures to be documented and put in place. The ultimate object of the exercise is to convince a Local Court Magistrate that the s.73(4)(a1) defence is available, because the licensee took each of the steps set out in the Guidelines.
Apart from documenting these due diligence procedures, Step 4 requires there to be a “written document such as a plan [of management] or house policy”, which complies with Step 4(a) in terms of it:
(a) “details” the measures in place to prevent intoxication; and
(b) “describes” how staff are instructed and trained; and
(c) is provided to police and OLGR inspectors upon request.
While staff training and instruction might seem simple on the surface – they go off to an RSA course before they can work in the venue, however, in order to comply with Step 4(b), an in-house training session must also be conducted because staff must receive “instruction and training on the contents” of the plan of management or house policy (step 4(b)). So the usual RSA course for staff is not sufficient to meet the Step 4(b) obligations.
The Guidelines are not legislation and are likely to be changed by the Secretary from time to time and (possibly) without notice. Licensees must keep watch on the OLGR website for any further changes to these Guidelines.
A permit intoxication conviction will lead to a strike being recorded under the 3 Strikes regime. The police will be wanting to use these 1 March 2015 amendments to the Act, having been frustrated by the “all other reasonable steps” defence for so long. A Local Court Magistrate is likely to take a rigid approach to compliance with the Guidelines so licensees must build up their due diligence defence material and develop a special House Police on compliance with the Guidelines.
4 March 2015