Legislative Assembly for the ACT: 1998 Week 11 Hansard (10 December) . . Page.. 3562 ..
APPENDIX 3: Incorporated in Hansard on 9 December 1998 at page 3421
LIQUOR (AMENDMENT) BILL 1998
GOVERNMENT AMENDMENT TO MR OSBORNE'S BILL AMENDING THE LIQUOR ACT 1975
The Government supports the intention of the Bill. However, as the Bill has been presented it also removes, from subsection 104B (3), the provisions which establish that liquor licensees are vicariously liable for the action of their staff.
I am advised that it is possible, in the absence of words expressly imposing vicarious liability, that the provisions of an Act may possibly be interpreted to impose vicarious liability for an offence. However, it would be preferable to avoid the need to put this to the test. The likelihood of vicarious liability being negated by Mr Osborne's Bill is more probable as a result of the repeal of all of subsection 104B (3) as it could be argued that the legislature's intent, with the repeal of all of the subsection, was to reverse the current position under the Act.
I now turn to the substantive issue sought to be addressed by Mr Osborne's Bill in relation to the defence of "reasonable precautions and due diligence". While the defence has only been used by licensees on a few occasions, mostly in relation to allegations associated with the sale of liquor to minors, there has been a consistent inclination by the Courts to set requirements for satisfying the defence at such a low level that it is available in almost all circumstances when it is raised. The incidence of the defence being raised is also increasing as a result of it having been used successfully by liquor licensees to avoid convictions for offences under the Act.