Environmental / Resource Management

The local alcohol policy predicament - striking a balance

"The principle under which we have approached this review is that New Zealanders live in a free and democratic society.  They are subject only to such limitation in their freedom as can be justified in such a society.  They have liberty to behave as they choose as long as their actions respect the rights of others and are not contrary to the law.  Public policy decisions that are made to restrict activity have to be justified by strong arguments that it is in the public interest that individuals and corporations do not exercise their freedom in particular ways".

Foreword to the Law Commission Report,  Alcohol in our lives: curbing the harm

The above extract is an appropriate summary of the local alcohol policy (LAP) dilemma we have continuously been exposed to over the last three years. Some territorial authorities claim that the larger commercial alcohol operators are monopolising the LAP process under the current legislation, which ultimately fails to provide communities with greater participation in the process, or , consequently to deliver on the object of the Act.  Alcohol operators on the other hand contend that the lack of empirical evidence produced by territorial authorities in the production of their LAPs means unreasonable restrictions are imposed without justification.

In December 2012, Parliament enacted the Sale and Supply of Alcohol Act 2012 (Act), following the Law Commission's Report referred to above.  The Report considered a broad range of issues concerning alcohol consumption in New Zealand and made recommendations for reform.

The issues

One of the key influences for reform was the increased focus on local decision-making, especially for local authorities to tailor some of the new national provisions to their own local circumstances through the development of a LAP.  Easier said than done.  There seems to be a lack of commonality between the views of local Councils, the community, and alcohol operators when it comes to the development of a LAP.  In recent weeks, some Councils have publicly displayed their scorn for the current legislation, which is allegedly failing to deliver the original objective of reducing alcohol related harm and increased community input.  Councils are frustrated. Hauraki District Council’s Mayor, John Tregidga has said the legislation "is poorly written, in parts, and absolutely needs a review".  Waikato District Council’s Mayor Allan Sanson has said "the legislation was passed with good intention of giving communities a large say, but it is an absolute mess which clearly hasn’t worked out that way".   

In a recent press release Mr Tregidga called the whole process of adopting a LAP "a nonsense".  In 2013, the Hauraki District Council resolved to adopt a LAP, which subsequently went through the public consultation and appeal process.  Nonetheless, two years later, the Council is still without a LAP.  Alcohol Healthwatch director Rebecca Williams said "there was an expectation from the legislation for local data to help inform decision-making and lawyers for the appellants insisted it be used to prove each case".  Williams also said that "the data didn’t exist and health groups and Councils shouldn’t be expected to collate it".

The emerging law

The Act prescribes the requirements and scope of a LAP.  In addition, there is a set of legal principles that apply to LAPs.  The Alcohol Regulatory and Licensing Authority (the Authority) has made it clear that evidence of national characteristics will seldom be of value except to provide background evidence of local issues.  It must be a local policy prepared by local people who know and understand the local problems in their locality.  As such, the requirement to present evidence and/or data to support a LAP seems just and reasonable.  The Law Commission statement suitably summarises the position, namely that "public policy decisions that are made to restrict activity have to be justified by strong arguments..", which includes evidence that the LAP will reduce alcohol related harm.  Territorial authorities around the country have sometimes lacked empirical evidence when it comes to placing restrictions on alcohol operators.

However, the Authority has recognised that a territorial authority does not need to be sure that a particular element of its LAP will minimise alcohol related harm.  Rather, a precautionary approach will be adopted when reviewing a LAP, provided there is evidence to support it.

Striking a balance

Overall, it seems as though the task of striking a balance between the requirement to produce empirical evidence, and allowing communities to genuinely influence the policies to be applied in their respective districts, may be more difficult than originally anticipated.  The requirements under the Act and the pressures placed on territorial authorities, the medical officer of health, the Police and alcohol operators appear equally frustrating and applicable to all.

There are a few Councils with operational LAPs in place, and at least fifteen regions across the country are at the end of the process with soon to be operational policies. It is definitely a noteworthy space to watch.

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The contents of this publication are general in nature and are not intended to serve as a substitute for legal advice on a specific matter. In the absence of such advice no responsibility is accepted by Brookfields for reliance on any of the information provided in this publication.

 

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