New “Alcohol Violence” Restrictions Affecting Hundreds Of Premises – Are Your Premises At Risk?

Hot on the heels of the freeze on new liquor licenses (reported in our June update - click here to read), last week the Premier announced a new graded range of measures that will be introduced to tackle the problem of alcohol related violence in licensed premises. A list of targeted venues will be published every six months, with as few as eight assaults annually being enough to earn you a place on the list. The new measures will apply to hundreds of licensed premises.

Rather than simply targeting the 50 premises that have the greatest number of reported assaults, the new measures will focus on the raw number of assaults per annum, and a sliding scale of restrictions will apply, depending upon the number of reported assaults recorded against each venue. The sliding scale of restrictions are set out below.

Level 1 (19 or more assaults)

• 10 minute time out or alternatively, the provision of free water and food for 10 minutes every hour after midnight

• Cease service 30 minutes prior to closure

• No glass after 12am

• 2am lockout

• No shots, no doubles and no RTDs over 5%, and a limit of four alcoholic drinks per customer per order

• Extra security measures

Level 2 (12 to 18 assaults)

• 10 minute time out or alternatively, the provision of free water and food for 10 minutes every hour after midnight

• Cease service 30 minutes prior to closure

• No glass after 12am

Level 3 (8 to 11 assaults)

• Lower risk premises will be given help by the NSW Office of Liquor, Gaming and Racing (OLGR) to strengthen alcohol and security management

The top level restrictions will continue to apply for venues with 19 or more reported assaults each year. The figure of 19 assaults has been conveniently plucked directly from last year's notorious top 50 list, where all premises in the top 50 had 19 or more reported assaults recorded for the year. Five of those premises had just 19 reported assaults. By dropping their figures by just one reported assault, these premises will fall into the level two category on the next list, which will mean that the 2am lockout and shot restrictions should no longer be required.

The 10 minute timeout has been reconsidered, and premises will now be given the option of distributing free drinking water or food to patrons, and actively encouraging the consumption of water during the 10 minute periods instead. This would mean that no cessation of alcohol service is required, as long as free water and/or food is actively pressed upon patrons for 10 minute periods each hour after midnight. This change now applies to the premises currently affected by the restrictions, with a new regulation gazetted on 10 July 2009.

The Premier has indicated that a premises' placement in one of the levels of restrictions will be reviewed every six months, when new data is available from the Bureau of Crime Statistics and Research (BOSCAR). It has been suggested that a revised list will be compiled on 1 December and 1 June each year. Although BOCSAR currently releases this information quarterly (which means that a premises' annual number of reported assaults may fluctuate every three months), the Premier has made it clear that once a premises finds itself on the list, the restrictions will apply for a minimum of six months.

The most recent list was released several weeks ago and covers the period from April 2008 to March 2009. Depending upon when these new restrictions begin to be implemented, we expect that it may be this list that will be relied upon. The list is reproduced at the end of this article.

It should be noted that the list is based purely on incidents reported to BOCSAR by local police commands. Inconsistencies in reporting across police districts, as well as in the reliability of the data itself, make this something of a suspect document to rely upon for the imposition of serious restrictions that may have a punitive effect on these venues. The fact that an assault occurs inside a licensed premises may have nothing to do with the management of the premises. Equally so, it is problematic that a particular venue that reports all incidents to the police , however minor, may be compared to another venue that avoids reporting incidents to the police at all. In this scenario, the increased number of reported incidents by the first venue does not mean it is a more violent venue than the latter – indeed, the opposite may be true.

Based on this list, level 1 and level 2 restrictions will apply to 91 premises. Those premises with 11 reported assaults should be wary, as just one more assault could push them into level 2 restrictions.

In order to capture level 3 premises (those premises with eight or more but less than 11 assaults) the list will need to be greatly expanded and will capture hundreds of premises. The good news for level 3 venues is that no automatic restrictions are proposed at this stage, their operations will simply be reviewed by OLGR and they may be required to strengthen their alcohol and security management measures.

The fate of the 48 premises that are currently specifically listed in the Liquor Act as "declared premises" is somewhat uncertain. In order for these premises to be integrated into the new three tiered level of restrictions, an amendment to the Liquor Act will be required to remove their names. As the Act currently stands, the highest level of restrictions will continue to apply to these premises regardless of how many assaults are reported for each venue. As these restrictions have now been in place at these premises for more than six months, it would seem unfair to deny these premises the opportunity for a six month review, when this is a key component of the new system.

How the new restrictions will be implemented is yet to be revealed. Theoretically, it could be achieved within the confines of the existing system, as the Casino Liquor and Gaming Control Authority, as well as the Director of Liquor Gaming and Racing, currently have the power to impose such conditions. However, these bodies are required to provide the licensee with notice of any proposed licence variation and must provide the licensee with a reasonable opportunity to make submissions in relation to that variation. There is also some limited scope of appeal.

The Premier has previously subverted this process by altering licence conditions by way of legislative amendment that had the effect of avoiding any requirement for procedural fairness, and preventing any legal challenge.

Operators should keep a close eye on developments and consider whether there is any ability to be heard in relation to restrictions proposed to be imposed on their licences.

The List

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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.