by kavina Mistry

Introduction

 

New Zealand has a big problem-drinking culture which brings about significant harm in our communities. Almost one in five adults represented a high-risk drinking pattern that was likely to cause future damage to their health in 2021/2022. Auckland has the highest degree of alcohol-related harm of any city in New Zealand.

 

The recent Supreme Court judgment Woolworths New Zealand Ltd v Auckland Council ruled against supermarkets’ opposition to Auckland Council’s proposed time restrictions on the sale and supply of alcohol. What is the effect of this decision, and would restricting alcohol sale hours result in a significant reduction of alcohol-related harm to individuals, families, and communities?

 

Background

 

Supermarkets often carry an off-licence that allows them to sell alcohol for the public to consume outside of their premises. The national maximum alcohol sale hours for off-licence holders are between 7am and 11pm. After special consultative processes, Auckland Council introduced a provisional local alcohol policy (“PLAP”) provision in 2015 that restricted alcohol sale hours to between 9am and 9pm.

 

Supermarket giants Foodstuffs and Woolworths New Zealand spent eight years litigating the matter. The Sale and Supply of Alcohol (Community Participation) Amendment Bill (“the Bill” would remove the ability to appeal PLAPs. This would prevent substantial resources and money from being spent abusing the court system. Whilst the two companies argued that they were giving consumers certainty, lucrative motives remain apparent.

 

Procedural History

 

First, the supermarkets argued that the PLAP provision was unreasonable. The Licensing Authority (“the Authority”) found that the 9am opening hour was unreasonable. However, it also found that the 9pm closing hour was not unreasonable in the light of the Sale and Supply of Alcohol Act’s ("the Act") object of ensuring safe and responsible alcohol use and minimising alcohol-related harm. Therefore, appropriate trading hours for supermarkets were 14 hours a day between 7am and 9pm.

 

The supermarkets sought judicial review of the Authority’s decision in the High Court. The Court ruled in favour of the appellants that supermarkets and bottle stores, both holding an off-licence, could be distinguished. The Court allowed for a review and reverted the matter to the Authority as the decision was not made lawfully. The Council then appealed to the Court of Appeal, where the majority reversed the High Court decision and held that the Authority’s reasoning was sufficient.

 

Supreme Court

 

The Supreme Court dismissed the supermarkets’ claims and upheld the Authority’s original decision. The maximum trading hours were not a yardstick as to what was reasonable within the status quo, nor what stood out as the community’s preference. The objects of the Act do not require a balancing exercise but sway largely towards the same direction of ensuring safe alcohol consumption. The real and considerable possibility of decreasing the risk of alcohol-related harm is not determinative of the unreasonableness standard.

 

Reflection on community needs and interests

 

Restricting trading hours incentivises earlier pre-drinking or ‘preloading’. This would arguably prolong these ‘social rituals’ that allow people to consume relatively more before going out. However, people have the freedom to access and buy alcohol between prescribed trading hours, and they do not need to wait until evening. On-licence holders, such as bars and restaurants, allow people to consume alcohol later into the evening, within their operating hours. Rules regulating off-licence holders should be more scrutinised than on-licence holders because there are higher risks in letting people independently consume alcohol in an uncontrolled environment.

 

Ultimately, confining alcohol sales to before 9pm serves as an inconvenience to people. Its result is to targets people who buy alcohol during their grocery shop. However, seeing as the PLAP provision applies to all off-licence holders in Auckland, including bottle shops.

 

Smaller liquor stores are likely to take a hit to profitability as they cannot open for longer. Reduced late trading hours may lessen the risk of alcohol-related violence. This is particularly so in the central town centre, where alcohol-fuelled violence tends to be increasingly common.

 

Costs relating to harm caused by alcohol are estimated to be $7.5 billion per year and will soon overtake the GST and alcohol excise taxes imposed on alcohol by the government. These alcohol consumption costs will likely include hospital costs, absenteeism from lost productivity, and criminal justice system costs.

 

Does it make a difference?

 

The object of the Sale and Supply of Alcohol Act 2012 expressly uses the wording of ‘minimising’ alcohol-related harm, instead of eliminating it. The Authority’s reasoning was based on evidence and whether there was a reasonable likelihood that restricted trading hours would minimise harm. Whether such difference warrants a modest or significant effect depends on individuals making choices about their alcohol consumption. Supermarkets would still have 14 hours to sell instead of the default maximum of 17. In theory, this would generally reduce alcohol-related harm if all things remained the same. Nonetheless, many factors could affect the outcome.

 

The future 

 

Auckland Council is committed to an Alcohol Harm Minimisation Strategy to implement appropriate safeguards to help protect our communities. Using bylaws to regulate and control alcohol supply and sale is a particularly tailored way to minimise risks of alcohol-related harm at a local level. The proposed Bill sought to restrict alcohol advertising and give communities control over alcohol policy; however, it did not pass at first reading. Since Auckland is a growing, densely-populated city, regular review and consultation are needed to ensure that policies adapt and accommodate change. The latest PLAP was created eight years ago and should be reviewed promptly to support individuals, families, and communities against alcohol-related harms.

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Featured image source: Geograph