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Matters of Substance

Travelling to a better place

Friday, August 28, 2009

Last year, the Labour Government asked the Law Commission to undertake a comprehensive review of New Zealand’s liquor laws to bring them into line with current behaviours and concerns.

The Law Commission released its first public discussion paper, Alcohol in our Lives, on 30 July, and Law Commission President Rt Hon Sir Geoffrey Palmer SC spoke with the Drug Foundation about the review’s progress and preliminary findings.

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A lot has changed since the introduction of the Sale of Liquor Act in 1989. Back then, we didn’t have the sophisticated environment for restaurants and cafés we have now. And while the proliferation of places to drink has had enormous benefits in terms of tourism and public enjoyment, it seems also to have contributed, at least in some measure, to the increased amount of alcohol we’re consuming and the mounting social and health harms that result.

At the time of its launch, Associate Justice Minister Lianne Dalziel said the review would be wide-ranging and fundamental, and the terms of reference given to the Law Commission were extremely broad. Rather than a patching up of existing liquor laws, this would be a ‘first principles’ rewrite of New Zealand’s alcohol legislation and policy framework.

Much of the work so far, Sir Geoffrey told us, has centred on recognising what the problem is. Why is it that 700,000 adult New Zealanders engage in binge drinking? Why do 20,000 of us each year get taken home in a drunken state by police or spend the night sleeping it off in a cell?

Preliminary consultations have taken place with key stakeholders such as the liquor industry, the addiction treatment sector, police and researchers.

Sir Geoffrey says, “One of the difficulties is that this problem has many different facets. The health effects of alcohol, for example, are probably worse than the general public realise. The World Health Organization has characterised alcohol as carcinogenic to humans, and I am sure many New Zealanders don’t know that. The medical colleges tell us we should pay attention to these health effects, because they are serious.

“There’s also the public order question. How can we prevent the problems that are brought on by excessive consumption of alcohol from flowing through into criminal offending, where undoubtedly they do flow into, if left unchecked? There is a whole question about how the night-time culture in New Zealand is organised and how people behave in it.

“Then there’s the question of how people drink. Do they know the effects of what they are drinking? Do they know how much it is safe to drink? Do they know the alcoholic content of what they are drinking?”

Alcohol in our Lives also contains key policy options under consideration that could underscore legislation to help address these concerns. The public and all alcohol stakeholder groups are now invited to provide feedback on those options to inform the Commission’s final report, which will be released in 2010 and make recommendations to the Government.

However, Sir Geoffrey is quick to point out that we should not put all our trust in law.

“The law can’t change the drinking culture by itself. It can nudge it towards a more responsible direction, but what we need is for people whose own choices are driving what is happening out there to internalise these problems and modify their behaviour.”

And Sir Geoffrey has seen what is happening out there.

As part of its consultation with stakeholders, Law Commission members have accompanied the police at night as they patrol difficult areas. It’s allowed them to witness firsthand just how the problems are manifesting.

The night he went out, he saw frequent fights, 17 arrests and a badly injured person too drunk to remember how he had been hurt.

He says we’re in danger of losing our dignity as a society.

“There is a developing habit of people drinking to get drunk. Then they throw up in disgusting circumstances, and their mates take pictures of them and put them on YouTube as if it’s some sort of right of passage to be admired. Well, we’ve always had youth problems with liquor – that’s nothing new – but what’s going on now seems to be behaviour of a sort that is actually different from what it used to be, and it’s a worrying trend.

“When you go through these places at 10 o’clock at night, everything looks orderly and wonderful and the great middle class goes home to sleep. But by 2 o’clock in the morning, it’s a zoo out there, it really is.”

Sir Geoffrey believes the problems really are worsening and that it’s not just that we have better understanding or reporting of what is happening. He says excessive drinking is an issue for men and women equally and that a new generation is now engaging in it with serious consequences.

“People need to think about how they are introducing their children to alcohol. They have to think what the effects of them as role models are. They have to think about parenting and about a whole range of things that they tend not to be thinking about, I’m afraid. Children learn by example, and some of the examples are not good.”

He also says that, as a society, we aren’t equipped to deal with the alcohol problem. He talks of huge gaps in addiction interventions in New Zealand and says there is a dramatic lack of co-ordinated effort in the treatment area that needs to be addressed.

“District Court judges have told us there are no facilities to which they can send repeat drunk-drivers. There are no facilities for short interventions, which are often needed for the person to own their own problem. Long-term treatment facilities are very scarce and quite badly distributed, so far as the public is concerned.”

He concedes, however, that improving treatment options is another area where the law can’t wave a magic wand and get rid of troubles overnight.

So, if legislation can’t work miracles or radically change our drinking culture, what role can it play?

Sir Geoffrey says the law can regulate. It can control who gets a licence and when, where and what they can sell. In doing so, it can make a significant contribution to change.

There are a few legislative levers available, and the first of these is raising the price of alcohol, which, the evidence suggests, will lead to decreased consumption. The Law Commission is keeping a close eye on Scotland, where a minimum price per unit of alcohol is being investigated. This may help solve a lot of the problems associated with young people and drinking, he says.

The other option to raise alcohol prices is by increasing the excise tax, which currently yields more than $800 million a year in New Zealand. The primary purpose of that tax is to minimise harms resulting from excessive consumption, but the Law Commission realises there is a lot of controversy over how far that tax can be pushed.

No less controversial is the matter of advertising. Does advertising increase consumption, or is it merely aimed at preserving market share for brands, as is contended by the alcohol industry? It’s a contentious issue, says Sir Geoffrey, because the research isn’t entirely clear, and important free speech issues are involved.

“Businesses, like anyone else, have the freedom to impart their information, and that freedom is protected by the law. So the question is whether there need to be further controls on advertising than those that currently exist and, if so, what they should be.”

He also points out the benefits the alcohol industry has brought to New Zealand in that it employs a lot of people and makes a significant contribution to export earnings. He says the industry has been extremely obliging with the Law Commission by helping it understand the dynamics of the market and how its advertising works.

“There is no point in trying to demonise the alcohol industry. That industry responds to public demand, and it is the public that is responsible, not the industry. While there have to be curbs, we have to be sure we don’t throw the baby out with the bathwater.”

Greater enforcement options have also been suggested as potential solutions. These include reducing the blood alcohol content limit for drivers to .05, as they have done in Australia, and introducing spot fines for people drunk in a public place.

“This would mean people who have to be taken home by the police are actually paying something for that, because, at the moment, the police are operating an enormous free taxi service all round New Zealand.”

While there is evidence that lowering the drinking age to 18 has had some adverse effects, particularly amongst young people in already vulnerable groups such as Māori and Pacific Island communities, he acknowledges that, in terms of public policy, this will be a hard genie to get back into the bottle. Perhaps some form of compromise is possible.

“We will be suggesting that a split age might be acceptable so that at 18 you can drink at supervised and licensed premises but you can’t buy from off-licences until you’re 20.”

The Law Commission is critical of the current Sale of Liquor Act, which allows pretty much anyone to gain a licence to sell alcohol as long as they can prove they are of good character and will comply with local resource consents.

Sir Geoffrey says the Act was set up in 1989 under the hypothesis that the amount of licences granted has no impact on consumption.

“There needs to be a wider but specific group of grounds upon which a licence can be denied. There has been 20 years of research since the Act came into place, and our view now is that, in some circumstances, on some occasions, in some neighbourhoods, it does make a difference to consumption.”

He personally favours continuing with the Liquor Licensing Authority, but thinks the scope of its powers needs revisiting to give local communities a greater say in what happens with liquor outlets in their neighbourhoods.

So, having specified what it admits are difficult issues and controversial potential solutions, the Law Commission is now in listening mode.

“We’ve reached the end of the first half of the review, which was, ‘What is the problem? What are the possible solutions? What is the relevant information?’ We now hand that over to the public so we can get back views, submissions and careful analysis, and so we can get both popular and expert opinion,” Sir Geoffrey says.

He cites prohibition as an example of why it is so important that the public is heavily involved in the debate about liquor laws.

“Public policy has to be generated by the public. You can’t pass laws that are unacceptable and that people will scoff at. Prohibition in the United States was designed to remove the harms from alcohol. It probably did improve people’s health, but it was not accepted by the public. It induced an enormous criminal industry, and you’d never want to go down that road again.”

To facilitate public feedback, the Law Commission will use a variety of means. One is the ‘Talk Law’ website where visitors can download a copy of Alcohol in our Lives, participate in forum discussions, answer quick surveys and send in online submissions or comments.

The Law Commission has been at pains to write the report in accessible language so both the media and the public can understand and debate what it says without needing specialist knowledge or skills.

The Commission will also be meeting face to face with individuals and interest groups around New Zealand to discuss the issues it has raised before it formulates its final recommendations to the Government in a final report in March 2010. Depending on Government decisions, it should then be possible to introduce a Bill to Parliament before the end of 2010.

But, according to Sir Geoffrey, even that new legislation – whatever form it takes – should not be seen as the end of the road. Though this will be a lengthy and thorough review, it is still one fraught with difficulties.

“Finding the right balance between freedom and responsibility is like walking a tightrope. You can fall off very quickly if what you are proposing isn’t acceptable to the public. It will take a long time to change the culture. I think in some ways this needs to be seen as a milestone on a journey.

“We need to be optimistic. We’re travelling to a better place – we haven’t got there yet, but we could.”

  • Ross wrote this article, not really, Rob did