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Whariki

Role of Liquor Licensing Authority and District Licensing Agencies

What the Bill proposes
(C.12, C.28, C.10, 18, 27new Part 5A; C.73)

• District Licensing Agencies to grant unopposed licence applications
• Police and Medical Officer of Health to investigate but only report if opposed
• Reports to be submitted within 15 working days
• System of ‘accreditation’ for DLAs to make all licensing decisions
• Appeal to high court if accreditation revoked by LLA.

Alcohol & Public Health Research Unit

• Supports devolving unopposed licence applications
• Supports reporting changes and time frame
• Considers further devolution to 'accredited' DLAs is
  an unnecessary change
• Totally opposes high court appeal against LLA taking back responsibility

Devolving state responsibility

These proposals involve decisions about the extent to which the responsibility of the state for

• ‘A reasonable system of control’ over the sale and supply of liquor should be devolved to local level. There is merit in the present two-tier system in that
• It combines local knowledge with a national overview, and
• Regulatory integrity is ensured by contested decisions being made at a distance from local interests and personalities - provided the views of all local parties are taken into account. (See recommendations in LLA annual reports 1996 and 1997 on its ‘powerlessness’ to response to community concerns).

The question is to whether and which decisions can be devolved to local level to speed up licensing processes while retaining that national overview and responsibility.

Devolution of unopposed decisions [C. 11, 28, SOL 11, 34]

The devolution of routine unopposed approvals to District Licensing Agencies is supported. All applications for licences or renewals that did not receive support from all statutory agencies, or which are opposed by members of the public, should continue to be referred to the Authority.

 

However, it would be appropriate for the Liquor Licensing Authority or its secretariat to audit the granting of licences by DLAs if responsibility is devolved. This audited devolution will speed the licensing process while ensuring its integrity.

Special licences are at present wholly at the discretion of District Licences Agencies, but the Alcohol and Public Health Research Unit believes these too should be audited by the national Authority. There has been concern expressed that special licences are sometimes granted where the requirements of a more appropriate licence category would not be met; or to allow clubs to sell to the public or on-licenses to extend authorised hours on a continuous basis, rather than 'from time to time' (Hill & Stewart 1996).

Licences and managers certificates are currently collected in a national register but there is little overview or analysis of this. This would be an appropriate role for the Authority’s secretariat.

Reporting changes (S.10, 18, 22, 27, 40) [SOL S.11, 20, new Part 1A 28D, 33, 78]

The Bill proposes that police and Medical Officer of Health continue to investigate applications and renewals but not be required report unless they opposed the application. Any reports are to be submitted within 15 working days, and the DLA may assume after 20 working days that no reports will be forthcoming.

 

These changes to process are supported in principle as practical measures to speed up the licensing process. Workloads may not be greatly reduced as processes internal to those agencies will no doubt require all investigations to be properly documented. Police and MOH views on this change should therefore be of primary importance.

 

Accredited DLAs

Full devolution to ‘accredited’ DLAs not supported [New Part 5A]

Although licensing processes may be slower than is desirable, the two tier local and national system is reported by officers to be working well in most areas. This proposal seems unnecessay. The review was intended to tidy up a radically changed licensing system, not to introduce more major changes.

 

The Alcohol & Public Health Research Unit does not support accreditation, on the grounds that

• No reason for the change is apparent;
• Submissions to the 1986 Laking review and local statutory officers interviewed in 1995 opposed full devolution of licensing to local level, because of fears that…
• …decisions could be influenced by local business and political pressures, particularly in smaller localities;

This appears to run counter to moves to reduce the role of local government (eg Local Government Amendment No.3 1996 ) unless perhaps as a move towards privatising regulation, which is not supported.

The Bill’s proposals are well-written and do take account of the readiness of each DLA to undertake the entire process of granting licences, certificates, granting or withdrawing dispensations, processing objections and holding their own public hearings. Criteria for assessment and revocation are laid down (C.60, new Part 5A). It may well be the case that some DLAs are willing and able to undertake this, particularly those few DLAs (in large urban hospitality centres) that have taken most of the cases of licence cancellation and suspension before the LLA.

However, in the 1995 interviews it was officers from well-organised districts that expressed fears about undue influence in smaller localities that they knew of. In the smaller localities there were indications in interviews that this might in fact sometimes be the case (Hill & Stewart 1996).

The devolution of unopposed decision making is supported. The devolution of all decisions, even if only to accredited DLA, is not. There is little evidence that this would improve the licensing system and strongly suggestions from those most closely involved that these changes could open up the system to increased danger of ‘regulatory capture’, a key concern of regulatory theorists in international debates (Ayres & Braithwaite 1992; Hill & Stewart 1998).

Court appeal on DLA accreditation strongly opposed
[C.73, SOL S.138 new 1A]

Clause 73 of the Bill proposes adding accreditation to matters on which an appeal to the high court can be made against an LLA decision on grounds of suitability.

 

This is inappropriate and should not be included in the Act. We are not talking here about a business opportunity, we are talking about the regulatory responsibilities of the state. Accreditation would devolve state authority to regulate business activities in the public interest in just the same way that the LLA delegates authority to its inspectors or to DLAs to administer applications.

If a DLA is accredited with such regulatory responsibilities by the LLA, and if for some reason the DLA finds itself unable to cope or the LLA is concerned about its performance or - a worst case scenario - there are public allegations of ‘regulatory capture’, then the LLA needs to be able to take back responsibility and sort things out as quickly as possible. The cancellation of some liquor licences has taken up to two years to achieve through the full processes of decision making by the LLA, High Court and Appeal Court. This may be appropriate as a matter of natural justice in regard to a business activity, but is entirely inappropriate for regulatory responsibilities, and is strongly opposed.

This proposal opens up the prospect of DLAs and LLA pursuing each other through the courts, with legal fees soaking up the resources provided by licensee fees, rates and taxes that would which should be directed towards the Object of the Act.

Role of local public heath officers on licensed premises

While on the subject of roles and responsibilities, we reiterate some comments on the role of public health officers in the licensing process, which we would like to see strengthened in balance with that of inspectors and police also working at the local level.

 

The requirement of Medical Officers of Health to report on licence applications and renewals has contributed a public health perspective on licensing which complements the more regulatory and enforcement oriented perspectives of the other statutory agencies. Locally based Health Protection or Health Promotion Officers inquiring on behalf of Medical Officers of Health have developed a very useful role in promoting responsible host practices on licensed premises. The active presence of a health promotion officer working with licensed premises tends to increase the attention given to food and other host responsibility practices by officers of other statutory agencies (Hill & Stewart 1996).

However, this work is not well supported by the Act. In particular, the MOH has no formal power of delegation and local health officers have reported that their role is sometimes in question because of this. Nor are the role and routine work of the Medical Officer of Health backed by the same power to apply for closure, suspension or cancellation that the police and inspectors have in their area of competence, except on matter of hygiene under the Food Act.

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