Risky impressions and judicial euphemisms

Dr Eric Crampton
The National Business Review
5 May, 2017

I may risk creating the impression that I enjoy judicial euphemisms. For the past few years, police have been getting stroppy about alcohol licences. This was most obvious when Parliament had to legislate around police obstructionism to allow bars to stay open to screen the Rugby World Cup in 2015.

Venues can apply for special licences to stay open for things like late-night rugby matches. It was a big part of the point of special licences. But police objections to special licence applications made it exceptionally difficult for publicans to use those licences for their intended purpose, and so David Seymour had to write special legislation letting punters have a pint while watching the matches.

But the underlying problem remains and goes beyond special licences.

Wellington’s Local Alcohol Policy (LAP) allows bars to be open until 4am and off-licences to be open until 11pm. Arguments over crime, public health, harms and nightlife were well canvassed when Wellington’s LAP was set. But alcohol licence renewals in downtown Wellington have been under attack by police and the local medical officer of health.

Objections to licence renewals like those at Liquor King Kent Terrace, or at Cuba St’s Liquor World, have police providing statistics on the number of late night arrests downtown – but nothing to link trading at any particular retailer with consequent harms.

The medical officer of health will tell you, hour by hour, how many late-night weekend hospital emergency department presentations involve alcohol – but none of the statistics show that reducing any licensee’s trading hours would reduce harm.

The simplest explanation is that both the police and the medical officer have been trying to impose policies they were not able to achieve during the LAP process, like earlier closing times and one-way door policies.

In the Liquor King Kent Terrace licence renewal process, Dr Stephen Palmer, the medical officer of health, was remarkably candid. His submission of February 29, 2016, stated that “[a] first step … is to reduce trading hours for liquor stores in central Wellington as their licences come up for renewal.”

Systematic strategy

In other words, objections to licence renewals are part of a systematic strategy aimed at reduced trading hours overall.

The council could have set more restrictive trading hours downtown during its LAP process; it instead adopted national default hours.

The police and the medical officer seem not to have liked that decision. If a bar owner didn’t like the decision and stayed open late, that owner would be in trouble. But the police have a bit more leeway to try to enforce their preferred hours, regardless of the law.

How can they do it? The power to veto is the power to legislate. The police and the medical officer can make the licensing process a hassle for any licensee by abusing their role in it.

As Hashigo Zake’s proprietor Dominic Kelly put it, “for a lot of applicants the hearing and the time taken for it to happen are unpalatable, especially if they’re applying for a new licence and any delay in the licence might delay their opening … So applicants tend to pay very close attention to any suggestions the police have for avoiding a hearing.”

And so we come to an interesting use of judicial language.

Shorter trading hours

The Alcohol Regulatory & Licensing Authority, which includes District Court judges, hears appeals of district licensing committee rulings. The police and medical officer of health appealed the Wellington district licensing committee’s decision to renew Cuba Liquor World’s licence. They wanted shorter trading hours to be imposed.

The authority’s ruling of March 17 upheld the licence and warned the police and the medical officer that the authority would be “concerned” if they had brought the licence renewal to a licensing committee hearing because they had been unable to negotiate earlier closing times with the licensee.

The authority’s decision states: “Reporting agencies [the police and medical officer of health] should be careful to avoid ‘negotiating’ conditions with an applicant in exchange for those agencies not opposing the application. Doing so risks creating the impression that they have used their statutory reporting function under s103 to achieve their own ends … the authority would take a dim view if opposition turned on whether an applicant agreed with reporting agencies’ recommendations on conditions… It would be an improper use of their reporting role in s103 if that was used in a way that effectively usurped the DLC’s licensing function.”

I rather like the “risks creating the impression” part. I may have to start telling my seven-year-old that her behaviour risks creating the impression that she has no respect for set bedtimes.

It sounds like the authority is telling the police and medical officer that they have overstepped the mark considerably – but I am not a lawyer.

As nice as the authority’s warning here is, I doubt it solves the problem. The Wellington police and medical officer seem to have gone beyond usurping the committee's licensing function. They risk creating the impression that they are thumbing their noses entirely at Wellington’s LAP and are trying to impose tighter closing times for the entire downtown through their power to impose costs on licensees.

And the police minister risks creating the impression that the police are not subject to democratic constraint. These kinds of impressions add up to something that’s a bit shy of a good look.

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