Like many of the regulatory requirements confronting liquor licensees in Queensland, it’s difficult to find any express reference in the Liquor Act to the consequences of an Approved Manager’s RMLV certificate expiring.  In fact, despite an intensive reading and searching exercise, I’ve failed to turn anything up. This surprised me as I expected one of two outcomes.

• The first was that hidden away in the high 142ZZZ(etc) sections of the Liquor Act would be an unnoticed provision declaring the automatic cancellation or suspension of the approved manager licence.
• The second was that there would be no consequence at all, and it would really be a matter for the approved manager to address on pain of being investigated and found to be no longer a suitable person to hold the approved manager status.

In the absence of any express provision, I formed the initial view that the second outcome was the real one, which I cautiously communicated to a particular liquor compliance officer.  However, perhaps prompted by a general sense of doubt – logically how can the lapsing of the basic qualification for being an approved manager not have any effect – the astute, if somewhat inexperienced compliance officer did some further homework and came back to me with an alternative and compelling proposition.

Under Section 155AE of the Liquor Act, a liquor licensee in Queensland is required to keep on the premises a copy of the current RMLV certificate of any approved manager employed in the business.  Note the word “current”. The offence carries a whopping 100 penalty unit maximum fine, which translates to a large sum of money – a penalty unit being similar in value to bitcoin. Unlike bitcoin, the value of a penalty unit increases every year without fail, roughly in line with the CPI, on 1 July.  As at the time of writing the value is $126.15 increasing to $130.55. Multiply this by 5 if the offender is a corporation.

So the simple version of things, concisely stated by the intrepid compliance officer, is that the clear intention of the legislation is that whilst an approved manager approval does not automatically lapse or get cancelled or suspended upon expiry of the RMLV certificate, that person should not act in the capacity of an approved manager until a new RMLV certificate has been obtained.

Although it seems like a glaring omission in the Act that it does not deal directly with such an obvious matter, it’s hard to argue with the logic. So, if you haven’t done so recently, now would be a good time to check the expiry dates on your approved managers’ RMLV certificates.

Liquor licence holders in Queensland continue to struggle with the vastly reduced opportunities to apply for one off extended hours permits. Here at LGS we have produced a flow chart and some notes which hopefully will help people navigate the new requirements. A couple of important things to remember…

First, applications for Queensland liquor permits are required to be lodged at least 21 days prior to the event. Recent experience has shown that OLGR are taking this quite seriously and will only accept a late application if it includes an endorsement of no objections from Police. Further recent experience has been that Police are equally reluctant to deal with applications lodged outside the statutory deadline. Therefore licensees would be wise to plan well in advance.

Second, the rule that a liquor licensee can effectively only obtain an extended hours permit for one event per month can have a harsh impact on businesses which would traditionally host numerous functions during a set period; such as Christmas parties during November and December. For licensees in this category it may be worth exploring a permanent extension of trading hours. LGS are working on strategies to minimise the cost of these kinds of approvals.

Lastly, despite the general policy of winding back liquor trading hours around the state, the one off extended hours permits can, remarkably, be applied for through until 5am. Hopefully this provides licensees with an opportunity to generate some additional revenue if only on the handful of significant dates throughout the year.

Download the extended hours approval flowchart and notes. (PDF viewer required.)

Triple J’s afternoon current affairs show Hack recently featured a nicely balanced report on the introduction of mandatory ID scanning for licensed premises in Queensland. Hack’s Stephen Stockwell prepared the report which included interviews with patrons, affected liquor licensees, privacy experts and LGS Director Matthew Jones. Queensland Attorney General Yvette D’ath also defended the scanning policy, answering questions from host Tom Tilley.

Hear the full report here.

Although as at the time of writing the debate about the merits (or lack thereof) of mandatory ID scanning continues, in the interests of trying to simplify a very complex policy we have developed the following flow chart and accompanying notes (PDF download). These attempt to set out the procedure and considerations at the door to the affected licensed premises. We have not included anything regarding the privacy obligations. Liquor licensees will have recently received email correspondence on this subject from OLGR. All of the content of those emails is also on the OLGR website and can be accessed here: Guideline 64: Privacy obligations for establishing and operating identification scanning systems.

ID Scanning Flowchart Notes

1: Patron

Defined as a person entering or seeking to enter the licensed premises to use the areas, facilities or services on offer at the premises.

2: Licensed Area

Strictly speaking, a patron needs to be scanned (if required) before they cross the threshold of the licensed area.

3: Trading period

The period starting on one day and extending to or beyond midnight into the following day.

4: Exempt Classes

At the moment, the exempt classes of liquor licence are commercial special facility licences for casinos and convention centres, subsidiary on-premises (meals) licences – so restaurants and cafes – and subsidiary on-premises licences if the principal activity of the business conducted under the licence is the provision of accommodation.

5: Function

Defined as an event or occasion to which persons are invited by or for the organiser. The definition also in effect requires that the organiser must be someone other than the licensee.

6: Meal

Defined as food that—

1. is eaten by a person sitting at a table, or fixed structure used as a table, with cutlery provided for the purpose of eating the food; and
2. is of sufficient substance as to be ordinarily accepted as a meal.

7: Dining Area

Here dining area means an area ordinarily set aside for dining, which is defined as the part of the licensed premises that is set aside as the regular or usual place for dining on the licensed premises, but does not include a part of the licensed premises set aside merely for a particular day.

8: Exempt Minors

Minors are of course only permitted on licensed premises if they are an exempt minor. The exempt categories include:

1. the minor is a resident on the premises; or
2. the minor is on the premises to—
   1. perform duties as an employee of the owner, or occupier, of the premises or a part of the premises; or
   2. perform duties in the conduct of a lawful business; or
   3. perform duties while receiving training for employment or work experience; or

3. the minor is attending a function being held on the premises; or
4. the premises are premises to which a community club licence, community other licence, craft beer producer permit or restricted liquor permit relates and the minor’s presence does not contravene the club’s rules or a condition of the licence or permit; or
5. the minor is on the premises for a purpose, and in circumstances, approved by the commissioner or stated in a condition of the licence or permit; or
6. the minor—
   1. is eating a meal on the premises; or
   2. is accompanied by a responsible adult who is responsibly supervising the minor.

However, a minor is not an exempt minor merely because the minor is eating a meal on the premises or accompanied by a responsible adult if—

1. the minor is on premises after 5p.m.; and
2. the licence for the premises is a nightclub licence.

9: Exemptions

It’s possible for a licensee to apply to have the regulated hours for scanning adjusted, or to have an area of the premises declared as not requiring scanning. For example, you may be successful in having the requirement for scanning removed for patrons attending only to use a gaming room, or accessing certain outdoor areas, such as a footpath dining area.

10: Scanner Malfunction

A scanner malfunction is what the Act refers to as a system failure meaning relevantly for a licensee a fault in, damage to the ID scanner; or a failure ID scanning system to which the ID scanner is linked.

11: Banned List

If there is a system failure then the licensee must check patrons against a banned list. The banned list must be provided to the licensee by the scanner company and it remains valid for 7 days.

12: May be welcomed into your venue

Note that whether or not a person is scanned successfully and the system tells you they’re not a banned person, your normal procedures for vetting entry will still apply, and you retain your usual rights to exclude undesirable people from your venue.

 

I can’t recall just how long ago, but my guess would be more than 10 years. Possibly even 15? It might have been at one of the Maguire’s pubs, but it consisted of a rigged up thing like an overhead projector with a CCTV camera in the bottom pointing up at the glass. The punter’s ID would simply be placed face down on the glass and would then be recorded on the time and date stamped CCTV system, which could be precisely matched to the door CCTV footage of the punter entering the licensed premises. Genius.

I’ve heard it said by the erstwhile owners of the one-time icon of Brisbane nightlife Adrenalin Sportsbar, that back in those days many problems were avoided by simply having security approach a group of patrons, check their ID and either record or at least make a pretence of recording information about each in the group.

Anonymity. Or rather the lack thereof. That was the key. If I play up, they’ll know who I am. Better keep a lid on it.

One licensee I know that uses a scanning system won’t accept a foreign passport for entry purposes. Why not? Because chances are that person is heading off shore some time soon, and consequently may be less concerned about how they behave during the final days of their time here. Interesting approach.

So it’s about removing anonymity, and removing fearlessness. Maintaining fear. Maintaining guilt, which of course is essentially fear of being caught. And it seems to work.

So here I stand, an unrepentant fan of the scan.

Except, I don’t like my ID being scanned. I feel weirdly violated. Surely I look harmless… over 18, un-banned? If I’m a fan, why do I feel like this? My concerns about my ID being stolen, or my Twitter account being hacked (@_MattJ), or sundry other first world digital age infiltrations of my private life are largely assuaged by a general feeling that no one would be remotely interested in me, so it’s something other than that. And it’s simpler, more basic. When your privacy is compromised without a good reason, then it feels wrong. I accept that I need a TFN, an ABN, that my photo needs to be on my driver’s licence, that there’s a chip containing personal information incorporated into it, etc etc. I don’t wear a tinfoil hat to ward off the aliens, but as I say, if there’s no apparent reason, then it feels wrong. And if I feel like this, even with a sympathetic bias, then there is little doubt that others will feel the same. On balance, it will be a negative experience for those who encounter it.

So it’s a case of looking at the pros and cons, but before embarking on that exercise, it’s important to know what two things are being compared. Unfortunately, this isn’t a simple question of whether a licensee should or should not scan patrons…

What the Queensland Government has legislated is a mandatory ID scanning regime. There are many exemptions, which I note below, but if it applies, then after 10pm licensees will have to scan anyone entering or re-entering the licensed premises. There is no discretion. If a person has no acceptable form of ID, then the licensee will commit an offence if they allow that person to enter the licensed premises. The scanning system which must be used is one of, at present, just two systems which have been given the green light by the Government. Scanning systems offered by other service providers (or homemade ones such as that described above) will not be acceptable.

The comparison should therefore be between, on the one hand, the mandatory scheme outlined above, and, on the other, either no ID scanning at all, or ID scanning which is voluntary like it is at present.

Let’s start with the pros, which is the much shorter discussion.

Using an approved scanning system will be a (mostly) reliable, effective method of determining whether the scanned ID belongs to a person who is the subject of a banning order or venue ban.

It will also bring the benefits of a non-mandatory ID scanning system, which are as I mentioned at the outset, the removal of a patron’s anonymity and fearlessness, to deter bad behaviour, or deter bad people from entering your venue.

To the cons then. Where to start…

The holes in the whole thing

Former Premier Campbell Newman told the estimates committee on 15 July 2014:

And then there is the initiative of networked ID scanners. So, if you misbehave and are banned in Gladstone then you will not get into a venue in Rockhampton.

The reality is actually a little different. If you misbehave and are banned in Gladstone, then you will not get into a venue in Rockhampton provided:

1. It’s after 10pm
2. It’s a non-exempt venue
3. It’s in that part of Rockhampton defined as a Safe Night Precinct
4. You are not attending for the purpose of having a meal in an area ordinarily set aside for dining
5. You are not attending a function
6. You furnish your own ID rather than someone else’s; and
7. The scanner works properly and doesn’t misread

In other words, if you are banned in Gladstone (or anywhere else for that matter) you will get into any licensed venue you want unless you are a complete idiot.

In other words, this complex and expensive system will not even achieve the fundamental purpose for which it was created.

Identity theft

I think there have been enough well-publicised cases of personal information being stolen by hackers for everyone to stop attributing or confining these concerns to the crazy conspiracy theorists. We’re told by the scanning companies that their security systems are as good as the banks. As if no-one ever steals information from banks…

A quick Google search will give you dozens of examples, including T-Mobile, Target, Ashley Madison, FaceBook, the US Government, the 2016 Australian Census, Apple, Amazon, Yahoo etc etc etc.

Licensees have expressed concern on a narrower level as well. Issues like facilitating stalking, victimising individuals by creating fake bans and the like are serious issues potentially assisted by the presence of scanning technology.

The proposed networking of venue-based bans in particular carries with it the potential for abuse. Put yourself in the shoes of a licensee who upon scanning an inbound customer discovers that the person has been banned by another venue. What is your course of action? It probably doesn’t even require a call to your insurance broker to know that you can’t safely admit that person to your venue. If they misbehave and someone is hurt, and it emerges that the you as licensee were on notice that the person had a predisposition to misbehave, then best of luck convincing the underwriter to support your cause.

The potential for victimisation of individuals in this scenario is as plain as day. A false entry against a person in effect destroys their social life and reputation. Mental health issues are a real and proximate consequence of these actions.

Inflexibility – lack of discretion for licensees

ID scanning is an excellent tool, and has been lauded by many liquor licensees around Queensland as well as in other parts of Australia. One might say it is a useful servant but a dangerous master. However, the rules as they stand do not allow entry to a regulated premises during the regulated period by a person without an ID. At all. Period. It doesn’t matter if the person is the licensee’s most regular customer, known not to be banned from anywhere, or a visiting celebrity, (this event occurred after publication but is included here to show the difficulties faced by licensees) or even a family member. No ID? No entry.

Compare this to a licensee’s obligations with respect to underage persons, arguably just as important an area of regulatory policy. Most licensees these days have a practice of checking ID for anyone who looks under 25. A practice, that is. If a licensee knows that a person is not a minor, and allows them into the premises without ID, then no offence is committed. The adequacy of ID for the purpose of determining a person’s age is only ever an issue if the person is in fact underage. Of course, if an underage person is found unlawfully in licensed premises and it transpires that there was no ID check, then the licensee is left without many defences.

Why then would ID scanning not be voluntary? A licensee is under an obligation not to admit a banned person. Exempt licensees, and non-exempt licensees prior to 10pm (plus meal and function exemptions) are under exactly the same obligation, but are permitted the flexibility to manage compliance as they see fit. And the adequacy of the measures taken will only become an issue in the unlikely event of a banned person being detected on the premises.

Practical impacts

Once again, these issues have been raised time and time again, but seem to fall on deaf ears. Let’s run through some of them again anyway…

• Slowing down entry into the licensed venue. Scanning someone’s ID takes longer using the technology. It’s an additional step (or should be). Regardless of what the service providers say, the actual experience of licensees using high quality scanning systems is that the entry procedure is far slower, leading to longer queues and the attendant frustration. Even without scanning contributing to the problem, excessive queuing is a cause of constant concern to the authorities.
• Problems with less well-informed would-be patrons turning up without a correct form of ID. These potentially include interstate and overseas visitors – tourists, that is. Apparently one of the key pillars of the Queensland economy.
• Observations of venues where scanning is well-entrenched reveal a lower level of diligence with respect to other entry criteria, such as dress standards and intoxication levels. The attitude is that the scanner is doing all the work required. Door staff (naturally enough) have their attention drawn to and focussed on the technology rather than the individual.
• The requirement to be scanned creates a negative impression in the minds of visitors to a precinct. Legitimately a person could perceive an area as being so dangerous that it requires these extreme measures. It creates the look of over-regulation, is unwelcoming, and inconsistent with the pursuit of a good, safe, fun night out.

Another odd practical implication that a client of mine pointed out to me recently concerns minors. Minors entering the relevant licensed premises do not have to be scanned. But how does a licensee determine if the person is under 18? Most 15, 16 or 17-year-olds don’t carry around proof that they are underage. Do we now need an 18 minus card? So, if the door staff are in doubt, and the person cannot produce proof of age, then I guess it will be a case of apologising to the parents and not admitting the alleged minor.

Big Brother

I also cringe a little inside thinking about the access to data which will be gained by government agencies as a result of mandatory scanning. Not only will information be gathered about the numbers of patrons heading into the regulated areas of non-exempt venues during the regulated period, but the names, addresses and photographs of those patrons will also be collected.

I have this mental image of a Commissioner tracing the movement of young OLGR staff members from one venue to the next, seeing how often they enter or re-enter licensed premises, and whether they are rejected or banned. As fanciful as this is, it begs the question who will have access to that raw data? This isn’t the same as monitoring gaming activity, where the player’s identity is not checked. This system will collect and store the name, photograph and other personal information of tens of thousands of patrons on an ongoing basis – a truly frightening prospect.

Economic considerations

The direct costs will be those associated with the installation of the scanning unit and the contract with the service provider. At least one of the scanning companies is asking for $1000 for each scanner up front, $495 per month for the first unit, and $395 per month for each additional unit on an 18-month contract. If you have two entrances to your premises that will require a scanner, then the total cost for the contract will be a tick over $18,000. If you can get away with just one, then the contract cost will be just under $10,000.

The indirect costs are a little more elusive. There is a debate happening at the moment about whether the scanning function needs to be carried out by a licensed security provider or not. The latest information from OLGR is that it can be undertaken by a member of staff without a security provider’s licence, provided the person is supervised by a licensed security provider. If this is correct, and I personally don’t believe it is, then it makes little difference because either way, the costs for additional security will be incurred on nights when venues ordinarily don’t require them.

To do the math, consider a hypothetical venue with authority to trade on a Tuesday night until 1.00am. Whether or not that venue operates until 1, the licensee will still be required to scan patrons from 10pm. I’m reliably told that security companies work on a minimum 4-hour callout, but putting this to one side, if you do the calculation at $45 per hour for say the 2 hours until midnight, then for that one night the additional cost for the 18 month contract period will be just over $7000. Multiply this by the number of trading days where you will require security when previously they were not required.

For nights where a venue already has security on the door, say Friday and Saturday night for sure, then the hourly rate will be reduced to that of the staff member undertaking the scanning function under the supervision of the security provider already on deck. Let’s call it $25 per hour. If we assume trading until 3am, then 5 hours per night times two nights per week adds another $19,500 to the contract period.

To make it sound really scary, let’s consider the cost for the contract term to a venue with 2 entrances, with authority to trade until 3am 7 nights per week, but which usually closes at 12 midnight Sunday to Thursday…

Basic contract costs (as above for 2 scanners)	$18,000
Extra wages Sun to Thurs ($7000 x 5 days x 2 entrances)	$70,000
Extra wages Fri and Sat ($19,500 x 2 entrances)	$39,000
TOTAL	$127,000

If the venue trades later than midnight through the week the wage costs will be higher, as will be the case if the venue has more than 2 entrances. If the minimum 4 hour call out for licensed security is correct, then again, the costs will be higher.

Anecdotally, I’m lead to believe that venues that would ordinarily trade through until midnight or later during the week will have no choice but to close at 10pm to avoid the additional labour costs. “Avoiding the additional labour costs” of course = fewer hours for workers, and a reduced level of service to the public, so the whole outcome looks pretty rubbish from most angles.

Limited competition in the market

There are at present only two approved operators. Anecdotally, there are other active ID scanning service providers who have looked at the requirements in Queensland and decided not to participate. This does not auger well for the success of the current duopoly. Where, for example, would it leave a licensee legally if both providers withdrew from the market? Or worse became insolvent?

A related and unusual bit of information was relayed to me recently about a internationally-owned and operated licensed premises where that company’s rules prevent contracting with a service provider without first obtaining three quotes. This is of course a commonplace and sensible business practice – probably a requirement for Government contracts – so an interesting and perhaps inappropriate departure from conventional wisdom.

So all of this – the insane costs, the disruption and inconvenience, the unwelcoming Police State look, the provocation and negativity – for what? To find the banned needle in the haystack?

The sad and alarming truth of the matter is this: for all the obvious and quite terrible things about this scheme there is in fact no balancing positive at all. If the authorities would come clean with the statistics, they would show what licensees have been told by senior Police for many years: that almost all the misbehaviour that (these days) leads to a banning notice (among other things) is a one-time thing. Repeat offenders are effectively a myth. The State’s entertainment precincts are simply not populated by violent recidivists, and the chances of anyone picking up some daring, ban-defying individual as a result of this scanning system are a million to one.

I realised the other day that as of March 2017 I have, alarmingly, been working in liquor licensing for 30 years. In that period I have seen myriad regulatory policies come and go – the 20% non-dining rule for restaurants, metal detectors, the lock out and its 16 siblings… and now what I would have to rate as perhaps the worst piece of policy I’ve ever seen.

There’s an art installation as you come off the Story Bridge and swing down into McLachlan Street in Fortitude Valley which reads “The more I think about it the bigger it gets”. This is one of those things. The more you pick apart this policy and realise its utter uselessness the more incredulous you become. The costs, both direct and indirect, the inconvenience and negativity, and the diminution in the general appearance that will be caused in our entertainment precincts is not offset to any extent by some bold positive outcome. It simply isn’t there.

So, what needs to happen? Clearly, the current, ill-conceived and impotent legislation needs to be amended to remove the mandatory elements before 1 July, or before some other date fixed by Government as the informal time for actual commencement. This is not to say that the work undertaken to consider and approve systems and service providers will be wasted. There will still be buyers for a voluntary scheme, just as there are, and have been for many years, buyers for ID scanning technology within the industry. Those adopting the Government endorsed systems will enjoy the benefits of access to banning data, and the opportunity to share information within the Government-run environment, but with the necessary flexibility to make the system work without the plethora of negative elements which come with the removal of management discretion.

A voluntary system will redress the anti-competitive elements of the current scheme, so licensees should have access to the technology and support systems for a more reasonable price.

Of course, the location, trading patterns and clientele of certain venues might attract the attention of the Commissioner and provide a valid basis for conditions requiring ID scanning to be included in their licences. Others will adopt the system as a result of negotiations with OLGR, QPS and other stake holders which regularly occur through the early intervention process.

Perhaps there are others who will read this and simply be inspired to build their own old-school OHP-based devices and achieve the deterrent benefits at minimum cost.

After all, isn’t this what good leadership is all about? Supporting rather than mandating the uptake and implementation of initiatives? Pulling rather than pushing? Adjusting settings and levers, rather than petulantly bullying and blasting away at change-weary business owners who have done nothing to deserve it?

The objects of the Liquor Act include:

minimising harm, and the potential for harm,  from alcohol abuse and misuse and associated violence

Clearly, the use of banning notices is in pursuit of this objective.

However, the objects also include:

to provide for a flexible, practical system for regulation of the liquor industry of the State with minimal formality, technicality or intervention consistent with the proper and efficient administration of this Act

Unfortunately, the misconceived mandatory ID scanning framework will not achieve the first object and will be contrary to the second, and therefore should be abandoned in favour of a voluntary scheme at the earliest opportunity.

And for once let’s forget about the possibility of negative press and the party politics. This is bad policy no matter which side you’re on. Let’s consign it to its proper place in history.