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| Submission to the Law Commission 17 November 2008 Lecretia Seales
Dear Lecretia Thank you for the recent opportunity to meet with myself and my colleagues Alyn Higgins and Scott Necklen at your offices regarding the Law Commission’s review of New Zealand’s liquor laws. The Hospitality Association of New Zealand (HANZ) represents in excess of 2,350 members, almost all of whom have a liquor licence and are engaged in the sale of liquor. The Association’s membership has a high focus on the on-premise consumption of liquor and represents a significant proportion of on-licences providing approximately 30% of liquor consumed on-premise in New Zealand. As promised what follows is, in the Association’s view, the central issues for the review, including suggested initiatives. The Association is happy to provide more detail should this be required. We would argue that any measures to address a societal change in New Zealand’s drinking culture ought to be related to consumption patterns. Specifically, that on premise licensees are but one limited player and that when considered alongside anecdotal evidence that suggests that approximately 70% of liquor is consumed in off premise environments that measures include a commensurate focus on the individual rather than mere further regulation of industry and on premise suppliers that in the Association’s view would essentially fail to address a society wide issue. By way of overview the matters that the Association considers are the central issues may be sumarised as follows:
The Purchase Age of Liquor and Supply There is a misconception among many New Zealanders that there is a drinking age set at 18 years. The Association believes that if New Zealand is to address under 18 drinking, and drinking to excess, then it is time for a rigorous and informed debate on whether there should be a drinking age of 18 rather than a purchase age. A drinking age would make it illegal for anyone under the age of 18 to purchase or consume liquor. The Association would however suggest there be an exception where liquor is supplied by a parent or guardian, but where such liquor was supplied then that parent or guardian should bear responsibility for any consequences of consumption of liquor by their children. Changing the age of purchase of liquor does nothing to address New Zealand’s drinking culture, making it illegal for those under the age of 18 to consume, except when supervised by their parent or guardian, could however send a strong signal against a youth drinking culture. Licensing Structure and Consistency of On-Premise Trading Rights The Association considers it illogical that some categories of licence are able to sell liquor without any constraints while others face complex restrictions on a few special holidays. Specifically, the Association supports repeal of sections 14 (2) and section 37 (1) of the Act to allow hotels and taverns to trade consistently with restaurants and clubs. It is simply ludicrous that a restaurant entertainment venue or conveyance can sell liquor to the public on certain days without the requirement for the patron to consume a meal yet a tavern must ensure that the patron not only consumes a meal but leaves the premises once finished eating simply because of the special status of the day. Related to this issue, and potentially a means of enshrining consistency, is an examination of the need for the current demarcation of licence categories. As community behaviour has developed the Association further considers merit in unifying the current categories of on-licence into one standard on-licence. The Licensing Renewal Framework Potentially a means of enshrining consistency is an examination of the need for the current demarcation of licence categories as well as the need to renew licences once issued. Specifically, the Association considers that there is merit in once a licence to sell liquor is obtained that the renewal process is largely unnecessary alongside rigorous enforcement provisions that enables enforcement agencies, such as police and local District Licensing Agencies, to bring applications for suspension and cancellation of licenses for licensing breaches. In other words, having to periodically renew licences irrespective of whether there are any issues in the licensee’s performance is in many cases unnecessary and can impose disproportionate compliance costs. Trading Hours The Association supports the ability of licensees to apply for an obtain 24 hour licensing where appropriate and an applicant is able to show need and responsible service subject to resource consent and does not consider that blanket or mandated limitations on trading hours an effective means of addressing liquor related harm. In particular, the Association considers that having all establishments within close proximity to one another closing at the same or similar times places constraints on transport and policing resources that could result in people driving their own vehicles after they have been out drinking increasing the potential for serious accidents and even death. Other consequences include an increased risk of violence, vandalism, loitering, noise and other disorderly behaviour associated with larger numbers of people vacating premises around the same times. The Association considers that allowing closing in a staggered and more structured pattern of closing with a limited number of establishments staying open at later hours rather than all within a confined time frame enables ease of patrons of licensed premises to enjoy their night out and get home safely. Further, when hours of operation are being considered, the Association considers that any options must be considered alongside off-premise consumption. Specifically, anecdotal evidence would suggest that restrictions on on-premise trading have the potential to increase off-premise consumption where issues associated with the consumption of alcohol are more difficult to address. These issues include not just uncontrolled consumption with the potential for liquor abuse, but also noise issues that have the potential to place additional demands on the resourcing of enforcement authorities such as police and noise control officers. Keeping members of the public drinking in controlled, safe and contained environments should be a priority, not pushing them to drink in unsupervised areas where there is no one to observe their actions and levels of intoxication. Where there are issues with later hours of operation the Association considers that these may be addressed in the resource consent process or by imposing appropriate conditions on licences or ultimately through the enforcement provisions. Special Licences for Extra Normal Events Similarly is the issue of special licences. Because of the trading restrictions on hotels and taverns on the special days the ability exists for such licensees to apply for and obtain special licences for those days, along with other times outside the licensed trading hours. However, practically and through judicial interpretation, the reality is markedly different with for example licensees in practice unable to obtain special licences for such events as international sporting fixtures because the event does not take place on premises, despite Parliament’s intention in 1999 that special licences be easier to obtain on such occasions. Intoxication in Public A key issue of concern is New Zealand’s culture of binge drinking and this applies to both adults and minors. The Alcohol Advisory Council have repeatedly noted that drinking behaviour among young persons simply reflects adult norms. Until the public at large are confronted with some significant and immediate consequences for their state of intoxication it will remain an acceptable norm within society. Currently the only offences around intoxication are where operators of licensed premises, including licensees, managers (and in some situations servers), sell or supply liquor to an intoxicated person (section 166 of the Sale of Liquor Act), allow a person to become intoxicated on licensed premises (section 167) or allow drunkenness or disorderly conduct on licensed premises (section 168) and allow intoxicated persons to be or to remain on licensed premises. The offences under sections 167 and 168 of the Sale of Liquor Act however place liability only on licensees and managers of licensed premises. The Association believes that it should be made an offence, as it once was under the Summary Offences Act, to be intoxicated in a public place, as well as on licensed premises sending a very clear and powerful message to all New Zealanders that intoxication, wherever it occurs, is unacceptable. It has however been suggested that intoxication is too difficult to define. The Association however considers that in an environment where operators of licensed premises are required by the Sale of Liquor Act to refuse entry and service to intoxicated persons and that this law is enforced by Police and District Licensing Agency Inspectors that this challenge should not preclude intoxication being made an offence for the individual. Further, the Police Alco link programme has, in recent years, included Police training in assessing the level to which persons are affected by liquor. Consequently, it should not be difficult to enforce an offence of intoxication. Finally, successful strategies in the areas of drink driving, speeding and seat belt wearing have all included individuals receiving penalties alongside strong social marketing campaigns. The Association does not believe that even the best social marketing campaign can achieve substantive change in behaviour toward excess liquor consumption and intoxication in isolation though accepts that this could form the centre piece of any such campaign. Prohibition on the advertising of price The Association believes that the advent of supermarkets using liquor as a “loss leader”, whereby liquor is sold below cost to attract shoppers who will purchase other items alongside liquor, has contributed significantly to the availability and supply of liquor to minors. The Association advocates that the use of price be prohibited in all forms of liquor advertising on both on and off-licences with any price promotions being strictly limited to on-premise or in store. Excise Tax The Association does not support the use of increased excise tax as a means of limiting access of liquor to minors and does not believe this an effective strategy. The history of excise tax increases has seen supermarkets and/or suppliers absorb the increases. Consequently, the actual price of liquor in the off-premise sector has not impacted on the retail price with on-premise pricing continuing to rise increasing the differential between on-premise versus off-premise and potentially unsupervised consumption. The Association therefore considers that use of excise tax increases will only further exacerbate this trend. Indeed, a decade ago an estimated 40% of liquor was consumed on-premise with 60% consumed elsewhere. It is believed that this has now shifted to approximately 30% on-premise and 70% elsewhere. Making a False Representation to a Licensee – Infringement Offence for the Use of False IDs Licenses are constantly under attack from young people endeavouring to access liquor from licensed premises with little if any policing or penalties applied to those minors seeking to access liquor illegally. The Association believes it is time to send a strong signal to young people that attempts to access liquor illegally through making false representations, including using someone else’s identification or false identification will be punished in an immediate and appropriate way. Accordingly, the Association strongly supports the extension of legislation around the use of liquor infringement offence notices under section 162 of the Sale of Liquor Act to include section 172 – making false representation to licensees and managers of licensed premises. Licence Proliferation and Moratorium on new Liquor Licences The Association is concerned that the unlimited number of liquor licences has created an environment of intense competition and extremely competitive pricing. It has been suggested by some that the number of liquor licences should be limited. The Association would support a moratorium on the issuing of new liquor licences with the proviso that existing licences be able to be traded, with the buyer of the licence meeting the requirements of the holder. Thank you for the continuing opportunity for input into the review and the Association looks forward to meeting again with the Commission to work through the detail of the above issues and in the meantime if there is anything further that we can assist with do not hesitate to contact us. Yours sincerely Bruce Robertson |
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