Legislative Assembly for the ACT: 1998 Week 11 Hansard (10 December) . . Page.. 3563 ..
2In contrast to the position adopted by the Courts, the Liquor Licensing Board has set a higher threshold in relation to what constitutes "reasonable precautions and due diligence" and was recently supported in its position by the Administrative Appeals Tribunal. That decision was, however, appealed to the Supreme Court and it was held that the Board's and the AAT's decisions should be set aside.
In practical terms, the Supreme Court decision is that if a licensee has established a system that includes training in elements relevant to the offence sought to be avoided then the licensee will be entitled to the "reasonable precautions and due diligence" defence if an offence is alleged which involves an error of judgement on behalf of an employee of the licensee.
In respect of the offence of sale of liquor to minors, particularly, such an outcome is unacceptable to the Government. As the Assembly is aware, the Liquor Act has been progressively amended, with generally the full support of the Assembly, to ensure that liquor licensees are held accountable for the anti-social and inappropriate conduct that takes place in licensed premises.
While the removal of the "reasonable precautions and due diligence" defence will result in a stricter test applying to the actions of liquor licensees, there still remains in respect of most of the offence provisions of the Act the statutory defence of "reasonable grounds" and the common law defence of "honest and reasonable mistake".
I note, however, that the defence of "honest and reasonable mistake" would, in all likelihood, not apply in the case of an alleged breach of the