I <3 the Justices of the High Court

[nonny too]

THE High Court has dramatically shifted the responsibility for drunken actions on to the individual, ruling that the nation's publicans have no general duty of care to protect patrons from the consequences of getting drunk.

http://www.news.com.au/story/0,27574,26334692-421,00.html

Using RSA and RCG laws to extend duty of care beyond an obligation to comply with alcohol licensing requirements was ridiculous - with luck, this ruling will halt any future misuse of those laws. It will be interesting to see how the individual states respond to the ruling.

[WednesdayAddams]

Interesting. What were the laws concerning decreased capacity before the ruling?

[nonny too]

Interesting. What were the laws concerning decreased capacity before the ruling?

Until such time as a person places their key in the ignition and attempts to operate a motor vehicle on public property, whether their capacity to do so is affected by drugs or alcohol is irrelevant legally. Simply being drunk or stoned or pinging is not in and of itself an offence, although each can be an offence (some criminal, some civil) in certain contexts. Nor is it a legal defence.

This whole thing's kind of weird. Under state Responsible Service of Alcohol laws, it's an offence to purchase alcohol while intoxicated or to supply to someone who is intoxicated. If someone is caught doing so, it's a fine for the purchaser (was $550, but I think it's just doubled), for the person who served them (which is 10 times that amount), and for the licensee (which is 100 times the amount of the fine levied on the purchaser). Only this week, fines were introduced for patrons who buy drinks for their mates who have been refused service.

Pubs and other places which serve alcohol are supposed to refuse service to intoxicated people (intoxication is not defined by PCA for this purpose in the way it is for driving offences) and may ask them to leave the premises. But they do not have any right to right to detain or deprive them of their property (even if that property was an illegal weapon). The publican could have called the police to remove the patron from the premises, but could not have kept him there until they arrived (which could be a very long time on busy nights) and the police would not have been happy at being called to remove any patron who was not being unruly - they aren't a taxi service.

Many pubs have courtesy buses which used to pick up patrons from their homes and drop them back home later in the night. But then that was perceived as encouraging binge drinking, so now many only offer a "drop home" service. And nobody knows what the legal status of a pub which refused to drop off a patron would be if that patron got hit by a car walking home - it's all of those kinds of boundaries of institutional responsibility which are now being tested.

Legally, the publican in this incident could not have refused to return the patron's keys (and had he done so and the bike been damaged overnight, he would probably have been liable for the replacement cost). Even the police could not have taken the patron's keys - although they could have conducted a breath test and arrested him the moment he struck the key in the ignition. In theory the publican could have called the police to

I'm glad that the High Court smacked this case down - you can guarantee that it would have been followed by lawsuits against pubs from battered wives, robbery victims, etc.

This ruling will affect the way that responsible service of alcohol laws are enforced, but exactly how remains to be seen. The intention of the RSA laws was never to make publicans liable for the actions of their patrons, but to minimise their financial incentive for encouraging/allowing patrons to get drunk. Trying to extend their liability to the actions taken by patrons after leaving the premises was always legally tenuous.

If the community wants laws which do that, then they should be enacted in their own right - but by and large this is not a nation which supports people being financially rewarded for stupidity. The couple of times when state courts have made insane civil awards (a few years ago a law suit from someone who broke their neck diving into shallow water on a public beach threated the survival of surf life saving organisations Australia-wide) they have ultimately been smacked down by the High Court as being beyond the scope of the legislation under which they were launched.

[Higgs Boson]

You are one edumacational nonny.

[nonny too]

You are one edumacational nonny.

Sssssh. Don't tell the other nonnies. We're all supposed to be lazy, basement-dwelling bottom-feeders.

[Higgs Boson]

OK. I'll be super-quiet.

[Pamplemousse!]

Couldn't agree more about the ruling.

I'm all for the RSA rules (although really, have you ever seen them enforced? Judging by the sloppy drunks I've seen in town, I don't think it's taken seriously) but making pub staff responsible for what some drunken yobbo does once he leaves the premises is unreasonable.

It assumes they have nothing better to do than babysit one person, whereas they're usually rushed off their feet serving and can't be expected to track every stupid git who gets up from his table to see if he's leaving and if he's carrying motor vehicle keys.

ETA: And as you noted, the problem with RSA ruling is that it prohibits the serving of alcohol to someone who is 'obviously intoxicated'. The point at which people become obviously intoxicated and the point at which they may be driving over the limit are not necessarily in alignment. A person may look reasonably sober and be over the limit for driving.

[WednesdayAddams]

Thanks for the info nonny. So... how does a server competently decide whether or not someone is legally intoxicated? Sure there are some people who are very obvious in their inability to maintain, but other people can drink and drink and just seem ever so slightly off. Without a breathalyzer, who's to know? You may as well sell your bar and become a tv repairman or something.

So obviously, there were portions of the law that were very vague. There also seem to have been some reasonable portions, however. This:

Until such time as a person places their key in the ignition and attempts to operate a motor vehicle on public property, whether their capacity to do so is affected by drugs or alcohol is irrelevant legally. Simply being drunk or stoned or pinging is not in and of itself an offence, although each can be an offence (some criminal, some civil) in certain contexts. Nor is it a legal defence.

I agree with. it's a shame the law could not simply be revamped. Are they planning on introducing new legislation to that effect?

[Uthrecht]

I'll also note that, no matter whether someone can hold their composure while drunk or not, if they are obviously intoxicated they are already a danger to other drivers, so it's pointless to require the publicans to not serve them, while simultaneously not allowing them to restrain the person. Hell, you're better off giving the person a couple more drinks while calling the police to come 'round and get them while they're engaged.

[nonny too]

Thanks for the info nonny. So... how does a server competently decide whether or not someone is legally intoxicated? Sure there are some people who are very obvious in their inability to maintain, but other people can drink and drink and just seem ever so slightly off. Without a breathalyzer, who's to know? You may as well sell your bar and become a tv repairman or something.

So obviously, there were portions of the law that were very vague. There also seem to have been some reasonable portions, however. This:



I agree with. it's a shame the law could not simply be revamped. Are they planning on introducing new legislation to that effect?

I'm not sure about the other states, but over the last couple of years NSW has added a lot of knee-jerk amendments to the Licensing/RSA laws with unintended and often ridiculous consequences. The ideal is a return to the original focus of those laws but with better enforcement of them.

Few people want to see being drunk per se return to being a summary offence. What the laws are aimed at minimising is anti-social behaviour (and especially violence) resulting from intoxication. The laws to do that already exist - they need to be applied more intensely and more consistently, and perhaps the penalties need to increase for some offences and intoxication be made an aggravating factor which increases the penalty.

Perhaps the licensing squad needs to employ more officers, at least in the short term, so that the risk of being caught and fined for breaching the current licensing/RSA laws is no longer seen as trivial. If licensing squad police were as visible and proactive as breath-testing units and radar units, a lot of the anti-social behaviour would be self-correcting.

As things stand now, a lot of licensed premises are getting fined for technical breaches (having straws on the bar in a glass after X pm, for instance or allowing a person to "shout" the table) of those laws rather than for the breaches which actually increase anti-social behaviour (because if the licensing squad comes into your pub once a month, then the other 29 days of the month you're going to get away with serving or not ejecting intoxicated customers who aren't being disruptive) - a lot of the current enforcement raises revenue without really discouraging the behaviour which the laws were designed to minimise.

We'll see what the states do in response to this ruling - my guess is that different states will respond differently.