Liquor rules in the spotlight

Opinion

12 Dec

The Government has pledged to “fix” alcohol legislation – alcohol licensing lawyer Pervinder Kaur looks at what that will mean in practice…

At the end of October this year, Justice Minister Kiri Allan announced that the Government is “fixing” alcohol legislation that has been used by the alcohol industry and retailers to stop local communities from putting in place rules around the sale of liquor in their area.

As I mentioned in my last article (Drinksbiz Oct-Nov 2022), the proposed amendments to the Sale and Supply of Alcohol Act 2012 will remove the ability to appeal local alcohol policies (LAPs). The Government’s view is that the current appeal process is costing councils and ratepayers millions of dollars in legal fees as alcohol companies and supermarkets have thwarted efforts by local councils to limit the sale of alcohol in their communities.

Under the current legislation, local authorities can develop and adopt local alcohol policy (LAP) that regulates how the sale, supply and consumption of alcohol would be undertaken within a district. It places restrictions in terms of the number of new alcohol outlets, the location of such outlets, trading hours, and advertising of alcohol.

Following a draft LAP, public consultation is undertaken by Council to understand community views and preferences on the proposed LAP. Following this, Council then notifies a provisional LAP, which is subject to appeals from anyone who made submissions on the draft LAP. The appeal process is distinct to LAPs and has been a way for the alcohol industry to provide its input against the LAP provisions.

“The question arises as to whether it is justified to remove the appeal process in its entirety to improve this process.”

The changes in the legislation (if enacted) would remove the alcohol industry’s ability to provide any input against the provisions, which (in essence) would control how a licensed premises could operate within the given district.

There is no doubt that the current laws need reform, given the process to draft and adopt a LAP is long-winded and can take a lot of effort and resources. But the question arises as to whether it is justified to remove the appeal process in its entirety to improve this process.

This is particularly relevant when all local government processes take time and go through various checks and balances before they are finalised. For example, a district plan review can take several years because of various submitters appealing the council’s proposed plan and then hearings before the Environment Court and so on. The district plan review process also costs councils and ratepayers millions in legal fees, but there is no abolition of appeal rights in respect of that process.

Where a public body makes a decision affecting a person’s rights or interests, that person should generally be able to have the decision reviewed in some way. The ability to review or appeal a decision helps to ensure that those decisions are in accordance with the law. Also, the prospect of scrutiny encourages first-instance decision makers to produce decisions of the highest possible quality.(1)

In her October announcement, Minister Allan said: “The law isn’t working as intended. Local communities should be able to set their own rules to reduce alcohol harm, but are being blocked at every step by the booze industry.”

However, this could equally apply to the alcohol industry given it is their livelihood that would be impacted by such legislative change and that they are the ones being removed from the process and an opportunity to have a say is being denied.

It should not be some arbitrary decision-making. The requirement that decision-makers act within the law is fundamental to the rule of law. Therefore, an appeal should be available unless there are factors that would make an appeal inappropriate. And concerns about cost and delay could be dealt with by limiting the right of appeal, rather than denying it altogether(1).

Note: The Government says that a Bill proposing procedural changes to the alcohol licensing process will be introduced this year (2022), with the aim of passing it into law by mid-2023. Appeals that are in process when the amendments come into force will continue to be heard until those proceedings are complete.

(1)(see Legislation Design and Advisory Committee Guidelines – Appeal and Review – Chapter 28 – Creating a system of appeal, review and complaint).