Regulating Sale of Liquor
As a research contribution towards the review and probable amendment of the Sale of Liquor Act 1989, the Alcohol & Public Health Research Unit undertook a legislation and literature review of liquor licensing in twelve comparable countries. This review was conducted in the second half of 1996 and documents and the findings document the state of play in policy and legisation at that time.
The aim was to learn how various regulatory issues of concern under the New Zealand licensing system were being dealt with elsewhere in legislation and in enforcement practices, and what problems and solutions had resulted from different approaches. The twelve states or countries selected for study were England and Wales, Scotland, New South Wales, Queensland, South Australia, Victoria, Western Australia, Tasmania, Ontario, Manitoba, California, and Norway. Information was collected over a four month period from July to November 1996.
Researcher: Linda Hill
This review of liquor licensing legislation and literature in states and countries comparable to New Zealand showed common trends towards change and development in a number of areas, and allows some critical comparisons to be made with New Zealand's own licensing system.
A public health perspective Recent Acts and amendments show a move towards articulating clear policy objectives in legislation, to act as an guide in interpretation and application of particular provisions. New Zealand is well to the forefront with its object of 'a reasonable system of control...with the aim of contributing to the reduction of liquor abuse'.
Since legislative reviews are infrequent, some states have adopted the faster and more flexible approach of include any new requirements in Regulations under the Act, or less formally in manuals and other documents through which the regulatory authority conveys its expectations and enforcement practices to licensees.
From courts to conciliation
Over the last decade a number of states have shifted from licensing by a court of record to granting licensing authority to a less formal body, while others have shifted their licensing authority from Justice to another department of government. Most of the Acts state that decisions shall be made on the balance of probabilities, rather than under formal court rules of evidence.
In keeping with principles of natural justice, legislation included a right of appeal against decisions of the licensing authority. However, in most cases appeal was permitted to just one level higher and still within the framework of liquor licensing legislation and its authorities. Generally only points of law can be appealed to a court constituted under civil law. New Zealand's Liquor Licensing Act is unsually in allowing the substance of decisions, made under 'softer' rules of evidence, to be tested through appeals to civil law. Given New Zealand's legal framework, however, two amendments suggested by other legislation which could improve enforceability in the courts are granting officers the right to seize in evidence (eg. drinks, ID cards), and court recognition of 'averment' by an officer that a substance is what it appeared to be.
Recent amendments in a number of states relate to improving the management of licensed premises. Examples are tighter 'suitability' criteria for licence applicants; requiring age identification, greater powers of inspection; prohibiting promotions which encourage excessive or rapid drinking. Several states are moving towards requiring applicants to show evidence of training in responsible management
New Zealand's Act is innovative in its requirement to provide food (which can slow the absorption of alcohol) and non-alcoholic drinks, and this fits with the international trends towards host responsibility and venues less exclusively focused on drinking. The purpose of many legislative amendments elsewhere is to improve enforcement of existing legislation prohibiting the sale of alcohol to serving underage and intoxicated persons, as statistics and other research have increasingly demonstrated the association between road fatalities, violence and injury with alcohol, and in particular with drinking on licensed premises by young men.
Many of the licensing Acts provided the licensing authority with discretion powers, as well as listing a range of possible licence conditions, grounds for complaint and sanctions for infringements. This contrasts with the New Zealand Act in which the Authority is largely limited in its powers to approve or reject the character of the licensee, setting hours of trading and granting, suspending or cancelling the licence. The main area of flexibility is in setting hours of trading, and this has become a key means of controlling poorly managed premises (Hill & Stewart 1996).
New Zealand's licensing hours are extremely liberal in comparison with the states and countries reviewed, where standard hours are generally set by law with extensions granted by the licensing authority. In a number of states the hours of later opening premises are currently being reduced in response to intoxication, disorder and violence in the inner cities.
Licensing in the public interest
Most legislation reviewed requires the licensing authority to consider 'the public interest' in granting a licence, and the impact of the premises on people and activities in the area. Australian Acts in particular go into considerable detail on requirements 'to minimise offence, annoyance, disturbance or inconvenience' to others.
This contrasts with the present situation in New Zealand where, despite the shift to administering liquor licensing through local government, the law allows little room for consideration of the impact on the neighbourhood and community, or for objection from the public (Hill & Stewart 1986).
A proactive role
In many states the licensing authority plays a much wider role than in New Zealand; one that is as much preventative as punitive. Some provide licensees with manuals detailing legislative requirements and expected management practice; some are involved in training, either of licensees or of inspectors. A number publish regular newsletters about licensing issues and disciplinary outcomes. To support this wider role, comparison of fee structures suggests that an annual operating fee might provide a better basis of funding than the application fee currently charged in New Zealand.
New Zealand's liquor licensing legislation, its problems and practices, have much in common with those of the states and countries examined here, and New Zealand is well up with the play in seeking to encourage more responsible management of both off- and on-licensed premises. The research report provides many examples of other ways of doing things which not only contextualise the New Zealand licensing system, but may open up vision to suggest new regulatory strategies, new ways of writing legislation, and new directions of development for local and national licensing bodies.
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