The fight between the Victorian Government and music venue operators in the state over liquor licensing is heating up with Jon Perring, owner of iconic venue The Tote which served as a lightning rod for the SLAM Rally last year, writing an open letter to the Victorian Minister for Consumer Affairs urging the government to reconsider some of their strategy to combat licensing issues.

The shit storm began after the Victorian Liberal Government passed legislation in the twilight of 2011 that made reforms to the Liquor Control Reform Act 1998  that ensure the benefits and needs of live music will be taken into account in liquor licensing decisions. However hidden amongst the changes, which were part of the live music accord the Liberal Party signed up as part of an election pledge, was the framework for the setup of a ‘demerit point’ system for licensed venues.

The actions that can lead to a venue being penalised under the new system have far reaching and broad definitions that some venue operators see as a thinly veiled attempt by the government to expand it’s powers to silence ‘problem’ venues swiftly and quietly. The issue of the definition of ‘amenity’ has also been highly criticised.

Peter Iwaniuk of the Nightclub Owners Forum, a body that represents licensed venues in Melbourne, told media after the legislation was passed that “it is absolutely ludicrous that, under the recently added Section 3AA of the Liquor Act, incidents inside a licensed premises including swearing, littering and vandalism can be deemed to affect the amenity of the area outside a licensed premises and can be grounds for police to issue an infringement notice against a licensee.”

The Nightclub Owners Forum recently released a report, influenced by data obtained through Freedom Of Information, that is highly critical of the current state government’s policy towards liquor licensing. You can read more about the report here.

Read below for the open letter written by Jon Perring.

Dear Minister,

I would like to thank you for delivering on one of the commitments that the Victorian Government made under the Live Music Accord, in the recent amendment to the Liquor Control Reform Further Amendment Bill 2011, to include consideration of the needs of Live Music in licensing decisions as one the key Objects of the Act.

I would like to also remind you that consideration was also required of an order of occupancy provision (the Agent of Change principle as recommended by the Victorian Government’s Live Music Task Force report).

This principle should be introduced into the Victoria Planning Provisions so that it has statutory weight in planning and liquor licensing decisions.

Since the election of the Baillieu Government there has been no progress or even a forum convened to discuss this matter. While there is a commitment to convening the Premier’s Round Table in the near future, where this and other matters may be discussed, a firm date or agenda has not been set.

Your Government is considering an amendment (3AA) in regard to extending and defining amenity breaches in the Liquor Control Reform Act 1998. We believe that this is putting the cart before the horse, and that the amendment will cement what is currently an unacceptable situation in regards to the rights of licensed venues in amenity disputes.

The situation now is that if a venue is comfortably operating in its location within the community and a new residential development is placed in close proximity to the licensed venue, that venue can fall out of compliance with the noise standard SEPP-N2 through no fault of its own, and as a result of no change to its venue activities or licensing conditions.

The proposed amendment to section 3AA(i) “noise disturbance to occupiers of other premises” could force a review of a venue’s liquor license. In addition, it could be enforced by local government as a nuisance under current Health Act provisions.

This is not only unacceptable and unfair, it is a backward step in ensuring prosperous and healthy music activity in this State.

The amendment is opposed by the Australian Hotels Association and the Association of Liquor Licensees Melbourne. Save Live Australia’s Music, Music Victoria and Fair Go 4 Live Music are also concerned about its likely detrimental impact upon music venues.

Essentially, the amendment is designed to define what is detrimental to amenity, both internal and external, relating to licensed premises. However these are not the same, and standards must be able to vary according to the location.

Amenity is not single experience that is the same across the urban environment. Standards of residential amenity in the CBD cannot reasonably be expected to be the same as those in a leafy residential street in Kew. Nor can amenity be expected to be the same inside a venue as out. These views are shared by the Supreme Court and reflected in the City of Melbourne’s planning scheme which defines qualitative differences to amenity in different municipal locations.

The new amendments do not “clarify” the situation or “return the evidentiary situation to that which existed prior to that VCAT ruling”. They fundamentally change the existing law. The existing law is as per the recent ruling of the Supreme Court (not VCAT) in the Bar 20 case (see here).

The only people who truly believed that “amenity of the area” included what happens inside the premises were the police and perhaps it seems now, RAV. Everybody else thought that it meant what it said, and the Supreme Court has confirmed this was in fact what it meant. The notion of “returning to the prior situation” is a falsehood. This is an attempt to change the prior situation, and change it in a way that places unreasonable burdens on licensed premises operators.

Further, the approach is neither practical nor commonsense. What is “practical” about creating a legal fiction where swearing inside a venue is deemed to affect the amenity of the area when in reality it doesn’t? What is “commonsense” about saying that things that happen inside a premises and have no impact on anyone outside should be regarded as though they do? This is a very poor approach. The amendment will disrupt an existing situation based upon legal clarity and in turn produce a legal and operational landscape that is entirely unknown and unknowable. This clearly will threaten investment in the industry.

These changes have been proposed in the absence of a Regulatory Impact Statement and proper consultation with affected stakeholders. In a process sense, this is, again, unaceptable.

There is a further, central question: does the amendment operate retrospectively (e.g. is swearing last year now deemed to be an amenity impact?)? Such questions may only be answered through costly litigation.

We have real difficulty in seeing how a decision maker could make practical use of this new provision, in the sense of dealing in a sensible and fair way with internal incidents which clearly have no real impact on the amenity of the area, but what the proposed law says, must be regarded as having that impact. It is deeming something that isn’t, something that is.

Inconsistent logical systems are not useful in getting at “the truth”. Consider the following proof by Bertrand Russel:

If 2+2=5, that means 4=5.
so, lets subtract 2 from each side, that gives us 2=3. Transposing, we
have 3=2.
now, lets subtract 1 from each side. 2=1.
Now, since the Pope and Russel are two different people, and 2=1.
Therefore, the Pope and Russel are one.

Clearly, this doesn’t make it so even if it is deemed so with a logical inconsistency.

Further, consider the following within amendment 3AA:

(d) using profane, indecent or obscene language
(e) using threatening, abusive or insulting language
(f) behaving in a riotous, indecent, offensive or insulting manner
(g) disorderly behaviour

These are all value judgments that may have a place in the kindergarten but should not be offences inside spaces that are used by adults for cultural and recreational reasons. Such intervention by the state is completely unacceptable, and a threat to robust performance culture. The Premier and Minister for the Arts, Ted Baillieu, as Leader of the Opposition, told me personally that he wanted live music in this state to be “edgy”. This amendment will certainly compromise this.

Let me pose some hypothetical examples based upon actual past situations I’m aware of as a licensee. In each of these examples, there is a possible negative amenity impact, however, the venue has not been the cause.

1. Several Sudanese youth, known to the venue, are refused entry because of previous unacceptable behavior. Threats are made by these youths and the language could be considered offensive, but not by the security guards who have heard it all before. Accusations of racism are made, even though the security guards are African and Indian in origin.

2. Two men enter a licensed premises. They appear not to be intoxicated. They are not regulars and are not known to the venue. Five minutes later, for no apparent reason, one of these men starts strangling a female patron. Security staff quickly intervene and an un-avoidable fight results. Security staff and patron have been assaulted and the two males are later arrested and charged with assault. It is likely that the men had been using amphetamines prior to entering the licensed premises.

3. Two men are refused entry because they are drinking stubbies on the street. They cross the road and throw the stubbies at the licensed premises resulting in its window breaking.

In each of these examples, it would be feasible that the venue could unfairly face disciplinary action as a result of the proposed amendment. If a consistent pattern of violent incidents occurs, then there is obviously merit in police pursuing some form of licence review as is the case now. However, a single well-handled incident shouldn’t warrant action.

Considering how problematic this amendments is, this does leaves open the possibility of misuse and misinterpretation, creating possible court action around what can be complex social issues, quite often better handled by other agencies.

If we look at the police statistics for assaults within licensed premises, the number of assaults has been flat from 2004 to the current period while overall assault figures have risen by 31.3 %. Assaults in licensed premises have fallen from 5.3 to 4% of overall assaults, reversing the community trend.

Yearly period Assaults in Total
Licensed Premises Assaults

2004/05 1,487 28,147
2005/06 1,423 29,024
2006/07 1,538 31,067
2007/08 1,587 31,347
2008/09 1,601 33,668
2009/10 n/a n/a
2010/11 1,484 36,962

The overall performance of the industry can only be regarded as excellent and does not warrant the need for this current amendment. If these police statistics continue as is likely, it will only create a case for the ineffectiveness of this amendment while creating a lawyers’ banquet.

Violent incidents and other serious amenity breaches are a statistical reality. Regulatory responses should only be applied where there is a statistical distortion and that response should primarily targeted at the perpetrator. In the case of the operator, if they are fulfilling their obligation under their liquor license and the Liquor Act, then they should not be pursued by the state for actions by others and that are out of their control. The logic behind this amendment is like making the police accountable for a crime rate greater than zero.

Alcohol will continue to provide challenges to regulators and operators of licensed premises; however, blaming the operator for what is a societal problem isn’t the answer.

Licensed premises play an important role in providing spaces to be used for cultural practices such as live music, comedy, theatre and other performances. This cultural capital will also help address and mitigate negative amenity impacts associated with alcohol. It is vital that cultural spaces, both licensed and unlicensed, can operate on a fair and functional regulatory framework and that the positive amenity created is equally recognised and protected in law as is residential amenity.

In summary, regulatory reform is urgently required as follows:

• The proposed amendment 3AA should be abandoned
• SEPP-N2 should be reformed so that it becomes functional
• The order of occupancy principle needs to be included in Victorian
Planning Schemes and the Liquor Act (as is the case in most other states).

I look forward to consideration of these issues by a State Government which has shown interest in the good health of a licensed premises industry that provides infinite artistic, cultural, social and economic benefits to the entire community.

Best regards,

Jon Perring (Director: Tote Hotel, Yah Yah’s Bar Open and Pony)
For FG4LM and SLAM

James Young, the owner of iconic Melbourne venue Cherry Bar, recently wrote an opinion editorial outlining why venue operators are objecting to the law.

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