Australians all, let us rejoice, for we are young and free.

“The way things are going, I would not be surprised that in ten years’ time if you wanted to have a nice bottle of 1959 Grange Hermitage with dinner, that you would need to go to the doctor to get a prescription, go on a registered alcohol offender’s list, say three Hail Marys and wear a high visibility vest. It would come delivered between the hours of nine and eleven am and on the Monday before in a plain plastic bottle with a picture of a diseased liver on it.” – Matt Barrie

Sydney University Law Society “Law in Society” (Sem 1 2016) *Photography by Jonathan Gu

It’s 1:31am. You’re out with mates on Bayswater Road in Kings Cross and the street is quiet. Licensed clubs are closed. The bars are closed. Hotels, restaurants and public entertainment venues, all closed. Some, permanently. If this was a Western film, a tumbleweed would blow past.  One taxi trip later, and you’re pouring into The Star with a mass of others. It’s more vibrant here, the lights, and the casino machines playing repetitive tunes, there are many more people, pilgrims from closing pubs across the lockout zone congregating as one mass, in one venue. Security guards watch you at every step, a closed circuit television camera monitors your alcohol consumption. The alcohol flows through small plastic cups and people meander around, picking pointless fights as if the night is already over; as if there is nowhere else to go. There ironically isn’t.

You wait two hours in the taxi line to go home.

It’s a morbidly melancholic portrait of situational strictness, anti-social norms, and a mutant mix of gambling and alcohol. The Nanny State construct has manifested in reality in an age old debate of liberty versus social responsibility. Yet, how and when did things derail from the liberties of individual agency and civil obedience? The story starts, perhaps controversially, with individuals. The death of 18 year old teenager Thomas Kelly in an unprovoked attack in Kings Cross in 2012 and its parallels in Daniel Christie’s death in 2013 set the groundwork for the whiplash that often characterises errors of judgement. The then O’Farrell Liberal Government in New South Wales passed the Liquor Amendment Act 2014 (NSW) and the Crimes Amendment (Alcohol and Intoxication) Act 2014 (NSW), directing 8 year minimum mandatory sentences for fatally striking a person with a single punch while under the influence of alcohol. The blanket effect was immediate and the pursuit of some denunciative and general deterrence purpose was unleashed, targeting the end outcomes of the drinking cycle rather than social causes of alcohol fuelled violence. The Liberal Party stands on the footing of being “tough on crime” and the reduction of recidivism, but is this really true? A deeper insight unravels some of the deeper hypocrisies within Liberal Party theory and the law.capture1

The first victim of the Acts was not the violent drunk wandering the streets of King’s Cross, looking for trouble, but rather, Sydney’s nightlife, ironically felled by the very party that preaches “lean government” and economic liberalism. Rather than incentivising individual and private sector initiative, the Baird Liberal government and its predecessor have thoroughly intervened in commercial enterprise, propagating rules, regulations and red-tape, effectively dismantling a night-time economy most reliant on commercial and individual autonomy in the culture of “bar-hopping” and “pub crawls,” as well as freedom to pioneer innovation and avant garde in arts, music and culture.

The lockout laws embody hardline, heavy handed instruments which lack nuance and a commitment to the need for social and attitude shifts. Despite The Star’s tighter regulation under the Casino Control Act 1992 (NSW) it has always remained, to this day, one of the most dangerous spots in Sydney, with the Bureau of Crime Statistics and Research (BOCSAR) reporting 75 incidents of alcohol-related non-domestic assault in the Star Casino between April 2014 and March 2015. This is more than three times the number at The Ivy Bar – the “most violent venue” named by the NSW government in the same period. The Liberal Party, insofar as its beliefs suggest, simply cannot claim to legislate for the maintenance of public safety on a moral high ground while excluding one of the most dangerous precincts in Sydney. The loss of transparency and confidence by the electorate is necessarily the result of such policy, particularly when the NSW Liberal Government is the primary recipient of hundreds of millions of dollars in tax revenue from The Star on an annual basis. If the economic, cultural and social damage of the Lockout laws is an insufficient reason for protest, surely, the Liberal Party contradicting its own foundational principles warrants criticism.

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The Liberals help business and free enterprise. The Liberals are dedicated to individual freedoms and a small government. The Liberals encourage and nurture incentive. The Liberals facilitate the highest possible standards of living. The Liberals do not stifle the creators of wealth and employment and oppose Labor’s corporate state. All buzzwords and entrenched Liberal commitments subverted by the Lockout Laws. Kings Cross has one of the highest densities of small and medium enterprise in New South Wales, yet the atypical small bar, restaurant, and hotel has suffered. There are less people on the streets, yet there are greater imposed costs, more red tape and stricter enforcement licensing requirements than ever. In criminal law, the ‘whiplash’ effect resulting from the eight year mandatory sentencing legislation highlights the heavy hand of the state and the hasty dismissal of individual freedoms. Further, the cultural and social identity characterising Sydney’s nightlife has been drowned by decreasing foot traffic to the lockout zone, lowering the standard of living in Sydney, not only for the myriad of jobs lost, but also due to reduced choice and greater corporatisation of the night market. The sixteen venues in the lockout zone exempt from the restrictions share one common feature. They all have poker machines.

However, the crux of the issue drawing such extensive debate is not one only about Sydney’s night-time economy. It is a discussion of what constitutes good Liberal policy and proper political process. One should question how all of this aligns with the Liberal Party’s foundational beliefs, and whether Mike Baird’s moral high ground reinforcing the Lockout Laws is warranted outside of evangelical principle or if it is indeed a poisoned chalice of policy. Mike Baird himself asserted “Innocent people should be protected from drunken violence” but the lights have turned off for a whole new range of innocent people as a result of the lockout reforms, which continue to power a misdirected and preferential approach to the NSW Liberal Party’s liquor law policy platform.

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Proprietors in Kings Cross, Darling Harbour and across the lockout zone have closed down or suffered major revenue declines. Job losses have plagued the smaller bars with spiralling costs of security requirements as part of licensing conditions. Financial revenue from tourism losses total in the tens of millions per capita. Alcohol fuelled violence is at higher levels in certain proximal displacement spots outside of the lockout area such as Pyrmont which saw 115 alcohol-related assaults over 2015-2016 compared to 69 in 2013-14. The dislocation of revellers to surrounding areas such as Newtown and Surry Hills is not substantively correlative to higher rates of violence and certainly, total assaults have declined. However, amongst the other innocent victims are international tourists and the average citizen who might be misled by the scourge of mistruths pervading this debate. The oft cited statistic is that assaults are down 45% in Kings Cross and 20% in the CBD’s precincts since the lockout laws. Yet, foot traffic and general activity in the period since the Lockout Laws has also substantially declined  in both areas, meaning the incidence of assault in Kings Cross might still remain proportionally higher than or equal to that before the introduction of the laws, especially in light of a 90% decrease in pedestrian numbers in Kings Cross by 4am. Polls are rarely independent and the Galaxy Poll reporting that 68% of respondents in NSW support the government’s lockout law policies is an example of this. The results were derived from a sample size of 353 adults commissioned by the pro-lockout Foundation for Alcohol Research and Education. There is no stronger force in the debate than moral hyperbole and the image of collective support from one’s peers. But truth is of utmost priority and it must remain the desired outcome of constructive debate. One truth is that nightclubs are not the only source of alcohol-fuelled violence and the undercurrent of the debate ultimately links to irresponsible facets of drinking culture as a whole. In one example, the Australian Medical Association of NSW, in its submission to the Callinan Review cited that there were more than 10,000 incidents of alcohol fuelled violence in a domestic setting in 2010-2011 alone, a statistic which dwarfs that in Sydney’s streets yet receives comparably lesser attention in policymaking.

Public safety in Sydney is and always will be a paramount priority. Violence is unacceptable and we should not fall into the trap of accepting a base, unavoidable level of violence in our major cities. But, the solution should not come at great economic, social and cultural costs and so the current measures should be diluted in lieu of alternative mechanisms, such as a more efficient 24 hour public transport system, improved responsible service of alcohol (RSA) enforcement and venue management, city density planning and a more efficient police presence and response system. Moreover, intellectual capital on tried and tested solutions for relevant guidance can be sourced in considering other major world cities such as London and Amsterdam with the “Night mayor” model. So, whether the solution is about prevention or policy, whether there should be development of a focus on education on responsible alcohol consumption in the long term, or a customised lockout system to apply only to venues which have been the base of repeat instances of non-compliance and violence, the solution and implementation must be measured.

The scale of actions by a minority set of individuals should not compromise or interfere with the utility, and social identity of law abiding Sydney-siders, much less broadly limit an efficient private sector and existing free enterprise in a global city’s nightlife market. Make no mistake, there are winners from the Lockout laws as well, casino magnates for one. Inner-city property developers are another. Yet, both represent clear private interests, interlocked with the Liberal party room. The Star and James Packer’s forthcoming Crown Casino in Barangaroo are deleteriously exempt from the lockout laws. The Star was never subject to the Statewide Violent Venues List Scheme introduced in 2008 and remains exempt from the Three Strikes Scheme against breaches of licensing laws. The bitter palate of irony and hypocrisy resonates in the Liberal Party’s relationship with these beneficiaries. Of the 2000 submissions made to the Independent Liquor Law Review, two stand as particularly emphatic. The NSW Young Liberals emphasised a need to champion an onus on the responsible individual rather than punish the collective by interfering with its social and cultural existence. On the opposing end, the National Alliance for Action on Alcohol labelled the 10pm take-away sales restriction as “modest” and “appropriate.” If one thing is certain in this debate, it is a paradigm of polarity. The only channel to reconcile such polarities is through compromise and a shared search for empirical truth.

At the end of the night, whether that is 10pm, 1:30am or 3am, robust debate and consultation is essential to proper reform and policymaking and only a discourse pursuing truth can construct a reasonable outcome for the Independent Liquor Law Review presided over by retired High Court Justice Ian Callinan AC QC. Callinan’s report is expected for submission to the NSW government in August and carries a unique potential for an independent and transparent assessment of existing statistical evidence provided by BOCSAR and the personal experiences of stakeholders across the city. This will assist in establishing an empirical foundation and legitimacy for the future of the state’s liquor laws.

No process of reform occurs without winners and losers. The role of any government ought to be maximising the winners and minimising the losers. So, assumptions must be challenged with a scalpel, not a hammer and when anyone takes the stance that such laws are “modest” or that Sydney nightlife remains the same as it always was, the answer must be that liberty and civil freedoms underlie our contemporary society, and to remove them comes at great cost. Long live Sydney.

 

 

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