I’ve just been reading an article in the May 20th edition of InDaily, in which the AHA’s Ian Horne discusses the Jade Monkey’s long delayed license application. I quote:
Hotels representative Ian Horne says the struggle by live music venue the Jade Monkey to get a liquor licence isn’t evidence the system needs reform – and he’s working with the Jade’s owners to help them secure a licence.
Horne, the general manager of the SA branch of the Australian Hotels Association, also told Indaily he didn’t believe a small venue licence would have helped the Jade Monkey, even if the live music venue had been eligible to apply for one.
It’s great to see the AHA’s Ian Horne offering to help out the Jade Monkey as it wades through the regulatory process. I know Ian’s a big live music supporter and its worth noting the hotels sector in general is a major driver of the live music sector, particularly in SA with the Metro, The Grace, Exeter and Ed Castle all hosting live music regularly. It’s also worth noting that the AHA has a strong record for supporting its members to wade through the labyrinthine networks of red tape and has done a lot of great work. So, Ian, if you’re reading this – don’t take it as a personal attack. I know we have a lot of common interests and I appreciate the immense work the AHA has done for the live music sector and for the pubs that host it.
But I’m also pretty bewildered as to why Ian and the AH don’t see this as proof the system needs reform or how you could think the Small Venues License wouldn’t work for a venue like the Jade Monkey. If the Jade was operating at a capacity under 120, the conciliation process it is currently unable to negotiate would have been subject to a final decision by the Commissioner, who would have weighed up the concerns of local residents and businesses, compared those options back against the planning approvals, and made a decision. This is basically what happens in every other state.
It doesn’t happen like this in SA because, despite two reviews strongly suggesting its reform, South Australia has the most outmoded licensing laws in the entire country.
What does that mean in practice? SA is the only state where a larger pub can object to a smaller competitor based on the grounds that they compete for a ‘social need’. It is also the only state where it is possible for a single resident to use the conciliation process to override development approvals. So, what’s meant to happen is that a new licensing applicant is meant to prove there’s a social need for them to serve alcohol, and they’re meant to sit down and talk to all their neighbours. Fair enough. Except no one neutral, including the Commissioner, has the power to say, “Okay, you’ve all had your say and this is the best option for all of you.” Instead, it’s possible for an objector to simply keep objecting and drag the conciliation process out until the new licensing applicant either takes it to court or gives up.
Which has what has happened to the Jade Monkey.
Now, there’s attempts at the moment to portray the existing licensing conciliation system of ensuring residents aren’t overrun with nightclubs playing drum and bass till 5AM. That isn’t the licensing system’s job – that’s a planning issue. Look at it this way:
The Jade Monkey’s location was chosen because it was zoned within the State’s Capital City Development Plan – which is basically a piece of planning law built through community consultation. People said they wanted the City of Adelaide to be a mixed use zone with certain levels of acceptable noise and certain activities allowed – like running a music venue – and their elected members responded to that demand. Thus, the Jade is legally allowed to operate provided it works within the parameters set through that planning law. It has attained ‘Development Approval’, which means it is legally allowed to operate provided it doesn’t breech the noise levels or amenity requirements that are set by law. If it did, then it would be the subject of legal action under those laws.
To that end, the Jade could open tomorrow. Its noise, amenity and planning approvals are all in place. Provided it didn’t leave rubbish on the street or breech noise levels set within planning law, it’d be fine. The only issue is that it doesn’t have a license to serve alcohol and, for better or worse, music venues make their money through alcohol sales.
And this is where things get problematic. Because South Australia’s licensing law is ten year behind the rest of the country, it is possible for one complainant with deep pockets to force the issue into court because they don’t like the idea of a music venue in their street. They can do this because licensing law has retained the conciliation process associated with the above mentioned ‘Need Test’.
This system provides a mechanism whereby other stakeholders within the city, such as local businesses or residents, can drag out the conciliation process until a new applicant either accepts outrageous conditions that go well beyond their planning approvals, or simply give up and move to Melbourne, Sydney, Perth, Brisbane or a city where this legal glitch has been removed.
This isn’t about conciliation or being good neighbours. Amenity is a planning issue. The planning system dictates what noise levels can be made and what the amenity requirements are. Notably it also responds, more or less, to democratic process. Licensing is a separate process that is, in this case, being used by a single objector to over ride planning laws introduced by elected members. Essentially, this is a mechanism whereby the minority who want Adelaide to go home early can override planning law and continue to drive Adelaide’s descent into a glorified suburb.
Of this situation, Ian’s noted that “I can’t see what law you can do to overcome it.” With all due respect, perhaps he should visit every other state in Australia, where the decisions of the electorate on things like Mixed Use zoning are less subject to the complaints of individuals who don’t like competition or simply don’t like the idea of a city with music venues.
If I was a suspicious person, I would suggest that the AHA’s claim that there’s no legal reform that could help the Jade Monkey is potentially driven by the knowledge that if the Liquor Licensing Act came under full review, we’d see the removal of the anti-competitive clauses that allow larger competitors to object to new licensees. Which is why the AHA objected to these reforms in the other states, a fight they ultimately lost.
It’s strange. Whenever I’ve talked to Ian we both agree that pubs in SA are doing it tough. Our difference seems to be that I think Adelaide needs to allow business flexibility and encourage a greater degree of diversity, for the fairly simple reason that without flexibility and diversity there isn’t enough of an offering to get people to turn off their televisions or log out of Facebook.
Ian’s position seems, and I’m sure he’ll correct me if I’m wrong, that we should maintain the status quo and leave the laws as they are. If you think Adelaide’s night time economy is great, and you think larger beer barns, pokies and televised sport is the best SA can hope for, then by all means, don’t reform the laws and enjoy your next night out on Hindley Street. I hear the mechanical bull at the Woolshed is particularly good at this time of year.
On the other hand, if you think South Australia should have a fairer, simpler system for small businesses like the Jade Monkey, the current system pretty clearly doesn’t work. If it did, the Jade Monkey – an enterprise focused on live music with ten years of responsible service of alcohol to their credit – would already be open. Ultimately, the goal shouldn’t be just to alter the licensing act to help small bars. It should be to make a fairer system for everyone, including the numerous pubs – particularly those that are owner operated – that struggle in the face of a regulatory and licensing system that simply doesn’t work anymore.