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Legislative Assembly for the ACT: 1998 Week 3 Hansard (27 May) . . Page.. 605 ..

Wednesday, 27 May 1998


MR SPEAKER (Mr Cornwell) took the chair at 10.30 am and asked members to stand in silence and pray or reflect on their responsibilities to the people of the Australian Capital Territory.


MR OSBORNE (10.31): I present the Liquor (Amendment) Bill 1998, together with its explanatory memorandum.

Title read by Clerk.


That this Bill be agreed to in principle.

This Bill is a simple one which seeks to remove the ability of a liquor licensee to apply a defence of due diligence to a prosecution for the sale of liquor to minors. The Bill comes about as a result of a recent decision by the ACT Supreme Court in an appeal from a decision by the Liquor Licensing Board against Woolworths. The board held that Woolworths sold liquor to a minor from its Dickson store. Woolworths argued, unsuccessfully, that, while they did not dispute the facts of the case, they had established reasonable precautions and exercised due diligence to avoid the act taking place. Nevertheless, the act took place.

Mr Speaker, the effect of the Supreme Court upholding the appeal by Woolworths is that the due diligence test is now so broadly defined that as long as a licensee can argue that he had procedures in place to require staff, for example, to seek identification from purchasers, despite their neglect to do so, it would constitute a rock-solid defence to a prosecution for the sale of liquor to a minor. I quote His Honour Justice Gallop in his finding in the case:

Mere error of judgement by an employee cannot construe a lack of diligence on the part of an employer if it is reasonable for the employer to establish a compliance system that relies on the employee making that judgement.

In practical terms, the outcome of the Supreme Court's ruling is that, if a licensee has established a system that includes instructions in elements relevant to the offence which is sought to be avoided - in this case, sale of liquor to an under-age person - then the licensee will be entitled to the "reasonable precautions and due diligence" defence.

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