Tuesday, 8 September 2009

Sale of Liquor and the Law Commission

Law Commission

Recently the Law Commission announced that it was to undertake a comprehensive review of sale of liquor legislation.[1]The initiative was from the previous Labour Government, perhaps not surprising considering the long standing interest of the Labour Party in liquor control.[2] The brief was summarised by Rt Hon Sir Geoffrey Palmer to the Alcohol Advisory Council, 'Working Together' Conference, in Wellington on 15 May 2009 as:-

“The central issue for the Law Commission project is whether the pendulum has swung too far in the direction of liberality and the availability of alcoholic drinks and, if so, what measures can be adopted to combat the situation and limit the harm that it causes. Two things are necessary for that test to be met. First, there has to be an identifiable and explicit harm. Second, it must be shown that the measure proposed is likely to address the identified harm effectively.”[3]

The central issue is whether the Law Commission is the right body to undertake such a review. The mandate for the Law Commission is contained in the Law Commission Act 1985 and in particular Sections 3 and 5. It is important to set these out.

Section 3:-


The purpose of this Act is to promote the systematic review, reform, and development of the law of New Zealand.”

And Section 5:-


“(1) The principal functions of the Commission are—

(a) To take and keep under review in a systematic way the law of New Zealand:

(b) To make recommendations for the reform and development of the law of New Zealand:

(c) To advise on the review of any aspect of the law of New Zealand conducted by any Government department or organisation (as defined in section 8(2) of this Act) and on proposals made as a result of the review:

(d) To advise the Minister of Justice and the responsible Minister on ways in which the law of New Zealand can be made as understandable and accessible as is practicable.

(2) In making its recommendations, the Commission—

(a) Shall take into account te ao Maori (the Maori dimension) and shall also give consideration to the multicultural character of New Zealand society; and

(b) Shall have regard to the desirability of simplifying the expression and content of the law, as far as that is practicable.

(3) Except as expressly provided otherwise in this or any other Act, the Commission must act independently in performing its statutory functions and duties, and exercising its statutory powers under—

(a) this Act; and

(b) any other Act that expressly provides for the functions, powers, or duties of the Commission (other than the Crown Entities Act 2004).”

In this paper I suggest that the Law Commission has exceeded its mandate in undertaking this review, and is not only the wrong body to do so, but has stepped into an area well outside that of law reform, into social policy, which is a different discipline and requires an approach not bounded by the limitations of law reform and statutory recommendations.

The purpose of the Law Commission is clear in the statute. The job is to reform law. However the task of redrafting sale of liquor legislation is one matter. To decide whether the current law is too liberal (or not liberal enough) and whether it causes a harm must be well outside the ability of law reform body to determine.

To do so it is necessary to unpick the quote and other references made by Sir Geoffrey Palmer. He acknowledges in his 15 May 2009 speech that attempts to control liquor in the United States by prohibition laws were a spectacular failure. In the quote cited however, he raises the issue of whether the law can address the harm which is now said to be present[4] and tolerated by the present law. What effectively he suggests is that rewriting liquor laws will solve the problem, or that by changing the law we can get people to stop drinking too much, which I suggest is a fundamental fallacy. Some further guidance to the thinking of the Commission on this aspect is in an earlier speech given by Rt Hon Sir Geoffrey Palmer at the NZ Police 'Alcohol Related Harm' Breakfast, in Nelson on 24 April 2009,[5] where he suggested that the Commission may recommend an Act to be called the Alcohol Harm Reduction Act and said:-

“ The object of this Act is to establish a system of control over the sale and supply of alcohol to the public with the aim of contributing to the minimisation of harm caused by the misuse of liquor ad in particular the reduction of health harms that result from alcohol consumption, the prevention of crime and disorder associated with the use of alcohol and the protection of children and youth from alcohol related harms”

He acknowledges that the previous liquor legislation, prior to the Sale of Liquor Act 1989, was complex and when reformed led to the cafe and restaurant culture now widely accepted. The underlying thesis is that if we make significant changes then we will address the social harms. The particulars appear to include dropping the alcohol limits for drink driving offences, restricting advertising of liquor and reducing opening hours for licensed premises.

I question whether the issue of the harm caused by excess alcohol consumption can ever be solved or even modified by such measures. The complex liquor laws from the past, from days of 6 o clock closing, to the present have not ever come close to changing those who are addictive to alcohol, from stopping drinking. I would suggest that the initiatives from Alcoholics Anonymous (who don’t have any statutory recognition) have achieved far more for assisting problem drinkers than any statutes on the books. Closing an inner city bar at 6 am is not going to stop a rural farm worker from over indulging at a party in the local woolshed.

The whole history of sale of liquor legislation is littered with attempts to change drinking patterns. We are hampered by lack of real empirical evidence as to how these problems arise. For example, in the period after 6 o clock closing was introduced, what was the percentage of car ownership? How does the introduction of cheap Japanese imported cars, making cars affordable for many more people, affect the temptation to drink and drive? What is the effect of the secularisation of new Zealand, reducing the religious based objections and social controls? Those and many other interesting questions cannot be resolved by restricting advertising or closing bars early, or preventing alcohol from being sold with vegetables.

More importantly is it within the jurisdiction of the Commission to be suggesting controls as to sale of liquor to solve social problems?

[1] Comprehensive Review of Regulatory Framework for the Sale and Supply of Liquor

Published 6 Aug 2008 http://www.lawcom.govt.nz/ProjectPressReleases.aspx?ProjectID=154

[2] One of the founding strands of the Labour Party was in the Temperance movement.

[3] The speech is found at http://www.lawcom.govt.nz/ProjectPressReleases.aspx?ProjectID=154

[4] For the purpose of this paper, and it cannot be seriously argued to the contrary, it can be accepted that excess alcohol consumption by some people is a serious social problem in New Zealand

[5] http://www.lawcom.govt.nz/ProjectPressReleases.aspx?ProjectID=154

This article is now in New Zealand Lawyer Issue 122

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