A short review of the NSW Government’s “one-punch” alcohol control reforms

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In February 2016, former High Court Justice the Hon. Ian Callinan AC QC was appointed by the NSW Government to review the effectiveness of the “lockouts” and the 3am liquor sales cessation period on the Sydney CBD entertainment precinct, the Kings Cross precinct, and potential displacement areas.

Mr Callinan will also consider the impact of the 10pm closing time for bottleshops, with a particular focus on rural and remote communities.

These are perhaps the best known “one punch” alcohol controls introduced by former NSW Premier Barry O’Farrell’s government following a number of highly-publicised assaults by alcohol-affected persons on Sydney streets.

 

Why did the NSW government act?

In July 2012, 18 year old Thomas Kelly was walking with his girlfriend down Victoria Street, Kings Cross, when he was punched in the face.  It was an unprovoked attack.  He fell back, cracking his skull on the pavement.

His life support system was turned off two days later.

Ralph Kelly, Thomas’ father, told the media his son’s life had been finally taking off”, after difficult times at school, with the good news of a cadetship with a Sydney accounting firm.

The young man who threw the punch, Kieran Loveridge, was sentenced to 4 years for manslaughter.

The Crown appealed on the grounds that the sentence was manifestly inadequate.  The NSW Court of Criminal Appeal agreed, extending the minimum sentence to ten years.

In December 2014, Loveridge’s application for leave to appeal to the High Court was refused.

Thomas Kelly was not an isolated incident.

For example, Daniel Christie hit the pavement just metres from where Thomas Kelly fell, after being fatally punched on New Year’s Eve 2013.

Fady Taiba spent 19 days in a coma after refusing an intoxicated man entry to Bar 333 in September 2013.

34-year old Brazilian Lucio Stein Rodrigues was killed by a “ferocious” punch outside a pub in the CBD in November 2013.

Between 2000 and December 2013, 90 people were killed in this way, by a single blow to the head.

 

Preventive alcohol controls prior to the “one punch” alcohol laws

According to John Green, from the NSW Branch of the Australian Hotels Association, “It’s not good enough anymore to use hotels as whipping posts…We need to target those thugs in the community who think it is OK to pre-fuel and hit people.”

But how exactly do you “target thugs”, before – rather than after – they become violent, without burdening the service of alcohol?

Three “preventive” controls are worth mentioning.  These controls were already in place when Thomas Kelly, Daniel Christie and others like them hit the pavement.

Firstly, s. 198 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) authorises police to give “move on” orders to people who are drunk in public.

In 2011, Parliament introduced the offence in s 9 of the Summary Offences Act 1988 (NSW).  This is an offence for continuing intoxicated and disorderly behaviour, following a section 198 order.

According to the NSW Ombudsman, over a 1 year period (October 2011-September 2012), NSW police issued 110,949 formal orders to intoxicated persons. 33,580 were orders issued under s. 198.

Secondly, under s 206 of the Law Enforcement (Powers and Responsibilities) Act, police can detain an intoxicated person who is behaving in a disorderly manner, or in need of physical protection due to their intoxication.

Finally, the NSW Government had already introduced “three strikes” legislation, which imposes “strikes” when a licensee or manager commits one of a number of serious offences in relation to an alcohol licence.

After a third prescribed offence, the Independent Liquor and Gaming Authority can decide whether to impose a third strike, and thereafter to cancel, suspend or impose additional conditions on a liquor licencee’s license.

Preventive laws have taken different forms since 2014.

 

The NSW Government’s “one punch” alcohol reforms

Five reforms are worth noting; for a broader discussion of the government’s response, see here.

Firstly, the Government introduced sections 25A-25B into the Crimes Act 1900 (NSW).  Section 25A is a new statutory offence for an assault causing death.  Section 25B imposes a minimum mandatory custodial sentence of 8 years for this offence if the accused had a blood alcohol concentration of 0.15 (3 times the legal driving limit).

Amendments to the Law Enforcement (Powers and Responsibilities) Act 2002 (s. 138G) authorise police to detain and require a person to undergo breath testing (within 2 hours of the alleged commission of this offence), or to give a blood or urine sample at a hospital, within 4 hours of the alleged commission of this offence.

In 2014, a Bill (the Crimes Amendment (Intoxication) Bill 2014) was introduced to create a number of additional aggravated intoxication offences, with a minimum period of imprisonment for each offence.  However, it was never passed.

Secondly, changes to the Liquor Act 2007 and its regulations introduced the idea that a geographic area can be declared to be a “prescribed precinct” (s 116C).  The Act then sets out the kinds of restrictions the regulations can impose on premises within a “prescribed precinct” (s. 116I).  These may include:

  • Restricting use of glasses or breakable containers;
  • Prohibiting or restricting sale of certain kinds of liquor;
  • Prohibiting patrons from entering licensed premises at certain times (ie “lock outs”);
  • Requiring incident registers to be kept;
  • Requiring licensees to contribute to the costs of measures to prevent violence and alcohol-related harm in the precinct.

Additionally, the Liquor Act 2007 and Liquor Regulation 2008 set out a number of specific controls that apply to the Kings Cross Precinct, and the Sydney Entertainment Precinct, respectively: these take effect as licence conditions applicable to licencees within each precinct.

The most significant controls that apply to the new CBD precinct are the “lock out” and liquor sales cessation periods.  These are discussed separately below.

Thirdly, the Liquor Act authorises a police officer to issue a temporary banning order that prohibits a person from entering or remaining on specified licensed premises within a prescribed precinct for up to 48 hours (s. 116F).

Fourthly, the Act provides the basis for payment of risk-based licence fees by liquor licensees.  Fees are set by taking into account the location of the premises, its trading hours, patron capacity, offences committed, and compliance with licence requirements (s. 58A).

Click here for an overview.

The final control included in this short review is the 10pm closing time for bottle shops and other take-away retail liquor establishments: s 12(1C) of the Act.  This was discussed in a previous post.

 

Lock out and liquor sales cessation controls

There are 7 categories of liquor licence in NSW.  Taking the Sydney CBD precinct as an example, under ss 53Y-53Z of the Regulations, the lock out and liquor sales cessation restrictions apply specifically to hotels, clubs, high-risk venues (including large hotels which operate after midnight), and premises to which a “level 2” licence applies (due to previous incidents of violence).

The “lock out period” is defined in s 3 of the Regulations to mean after 1.30am until the beginning of the standard trading period the following day.  During a lock out period, new patrons may not enter the premises, although patrons can remain on the premises, and leave at any time.

During a liquor sales cessation period, hotels, clubs and high risk venues must not sell liquor.  The liquor sales cessation period” is defined to mean between 3am until the beginning of the following day’s trading period.

Additional controls apply to after midnight trading (the general late trading period) in respect of declared venues with a history of alcohol-related violence.  For example, glasses must be removed from patrons and drinks cannot be sold in glasses during the late (after midnight) period.

During the general late trading period, venues within the Sydney CBD Entertainment Precinct are also prohibited from selling certain kinds of alcoholic drinks (see Regs s. 53ZB).  These include:

  • Shots (any drink designed to be consumed rapidly);
  • drinks containing more than 50% liquor;
  • any ready to drink beverage containing more than 5% alcohol by volume, and
  • drinks containing more than 30ml spirits.

However, these restrictions do not apply to cocktails.

During the late general trading period, no more than 4 alcoholic drinks, or the contents of one bottle of wine, may be served to the same patron.

This requires licencees to keep tally of the number of drinks sold to any one patron.

Under s 53ZE, licencees of premises within the CBD Precinct must keep a “round the clock” incident register.  Where a violent incident does occur, the licencee must preserve and keep the area where the incident occurred intact (s 53ZF).

S 53ZG also requires licencees to exclude entry to people wearing clothing or symbols of a number of motorcycle clubs such as the Bandidos, Gypsy Jokers, or Rebels.

 

Are NSW’s one-punch laws working?

One man who has seen it all is Dr Gordian Fulde, head of emergency at Sydney’s St Vincent’s Hospital, Darlinghurst, who was named Senior Australian of the year in 2016

Decades ago, nobody would punch a nurse”, he says.  But these days spitting, punching and kicking are common occurrences.

Dr Fulde is the lead author of a recent paper in the Medical Journal of Australia comparing emergency presentations to his hospital’s emergency department before and after the one-punch reforms.   The study confirms that presentations for alcohol-related serious injuries are much higher during the “high alcohol time” from 6pm Friday to 6am Sunday.

This study also found that after the introduction of the one-punch laws in 2014, there was a 25% reduction in patients presenting with serious alcohol-related injuries during the high alcohol period.  The authors note: “The reduction was most marked in the period after midnight, which corresponds with the main thrust of the changed regulations”.

According to a study by the NSW Bureau of Crime Statistics and Research, the one-punch reforms were associated with an immediate 32% reduction in the number of reported assaults in Kings Cross, and a 26% reduction in assaults in the Sydney CBD.

These reductions suggest that changes to alcohol trading hours – including lock-outs, liquor sales cessation periods, and bans on late-night take-away liquor sales – are part of an effective package for reducing alcohol-related violence.

However, as with tobacco controls, it may be difficult to definitively quantify the specific contribution of each measure and to link it to reductions in violent assaults.  It is the overall impact of the package of controls that speaks.

Recently, a grassroots organisation called “Keep Sydney Open” have opened a petition to the Premier, Mike Baird, to remove the lockout and last drinks laws.

What is their solution to unprovoked attacks by alcohol-affected young men who are angry at the world?

“We demand smarter solutions — a holistic and lateral approach to preventing assaults which examines transport, CCTV, tougher sentencing, density and diversity of licensed premises, venue management, culture as a placating tool and the tendency towards violence among certain groups of individuals.”

CCTV, tougher sentencing, freezes on new licences?  These are not new ideas, as a glance at the Act and Regulations illustrates.

“Culture as a placating tool”?  What do they have in mind here?

The uncomfortable truth is that Australia’s alcohol culture is partly created by the easy availability of alcohol, the ubiquitous nature of alcohol advertising, and the relative affordability of alcohol (availability, advertising, and price).

Lawmakers may find it more difficult than they would hope to meet community expectations about safety from unprovoked, alcohol-fuelled assaults without relying on laws that burden the business of service of alcohol, and impact indirectly on levels of alcohol consumption.

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