Most people are aware of why the Jade Monkey closed. After ten years in its current site, the building owner ended their tenancy using a Development Clause within their lease so as to develop the site into a hotel. There’s nothing hugely abnormal about that – except it marked another phase in which Adelaide’s smaller and older building stock disappeared in favour of larger buildings and car parks.
After that, Zac and Naomi looked at over thirty buildings, finding only two that might be useable. This is largely because (a) most smaller and older buildings have been turned into car parks and (b) those that remain are frequently non-compliant against current regulation.
Of the two sites that might have worked, one would have required at least $50,000 in upgrades and the other $100,000. For a while they were looking at the former Chesser Cellars site, which was a small wine bar with an entertainment consent. Unfortunately, the shift from being principally a bar with jazz bands, to principally a music venue with alcohol sales meant they’d need to upgrade the building to meet the same regulatory standards as the Festival Centre, which wasn’t achievable. This is because our regulatory system sees entertainment as more dangerous than just sitting around drinking.
As the Save the Jade Monkey petition had shown strong community support for the venue, it was good to see the Premier committing to support it, as well as senior staff from the Department of Planning and ArtsSA. Both through my time with Renew and after taking up my job with the National Live Music office I’ve seen this process and I can’t fault the State Government. They helped find the building the Jade is now trying to set up in, they’ve helped broker the lease, and they’ve been following the process through the Liquor Licensing system.
The Adelaide City Council is another story.
But the main problem has been that South Australia’s licensing system is a total mess. Even before we get on to the planning and building issues, the licensing system is such that the only way to get through it is to have very deep pockets and very good lawyers. Which is essentially why the Jade isn’t open.
After working with the State Government to gain access to the back section of the former St Paul’s site, Zac and Naomi lodged for a license application. The lease costs of the site are market value – which is four times what they were paying in their old site – and, like virtually every other building in the city, there’s a development clause in the lease, which means any investment in building upgrades on the Jade’s part would could disappear should development proceed. Thus, there is a limit to how much they can afford to spend trying to get this site operable and the higher rents dictate a need for a higher capacity.
That’s unfortunately taken them above the 120 capacity allowed in the new Small Venue License.
If the Jade was under that level, they’d already be open under that license as it removes the glitch that’s held the process up. Notably, that’s the same glitch that was declared in breech with the National Competition Policy and has long since been removed in every other state. And it’s the same glitch that the Liberals defended when they tried to block the Small Venue License. This isn’t standard Liberal policy. In general, the Liberals I’ve met nationally are interested in the removal of red tape and the allowance of healthy competition. I’m not sure why that attitude hasn’t filtered through to SA.
The answer to fixing this problem in the long term would be to remove this glitch for all the other liquor licensing categories. Unfortunately, that would require bipartisan support in the upper house, and most people think the Liberals would block those reforms.
But herein lies the rub. Because the SA licensing system is the only one in the nation to retain the glitch, to gain a license you need to go through a ‘conciliation process.’
Theoretically, what this process does is give the licensing applicant a chance to sit down with local residents and surrounding businesses and talk through their differences with the aim of finding a happy medium. If they can’t find a happy medium, the case then goes to court.
In practice, what they are is a mechanism whereby anyone from the police, the council, local residents and businesses, as well as other licensees, can refuse to provide their approval until an applicant has accepted a wealth of spurious conditions in their license. This is why you see licenses with conditions like ‘Cannot sell Australian beer on tap’ or ‘Only two piece jazz bands’. Essentially, someone applying for a license in SA either has to accept whatever conditions their objectors propose, or take them to court and argue it out. Most smaller businesses can’t easily afford to do that, particularly if they’ve been unable to trade due to a conciliation process that has, in the Jade’s case, lasted for three long months.
In this way, the conciliation process undermines all other approvals. For example, planning approvals, which are produced by elected members and responsive to democratic process, set things like noise levels and legal land use. But even if your elected member supports a mixed use zone in which music venues can begin legally operating, or even if an entire government supports it, a single complainant can bypass that approval and drag things out indefinitely through the liquor licensing conciliation processes. The process is not outcomes based. It can go on indefinitely.
To that end, for smaller businesses, the usual tactic of objectors is to (a) drag the process out as long as possible, delaying the granting of the license and making sure the applicant is making no money and then (b) eventually force the applicant to take the issue to court, knowing they won’t be able to afford a protracted court battle and will either give up or go broke.
This is, either deliberately or otherwise, what the objectors have done to the Jade. Those of you who know the Jade guys will know they’re pretty amicable people, and they tried hard to talk to their would be neighbours and find conditions they could all live with. For the bulk of objectors this was fine; after all, most people don’t want to stop people enjoying music.
Unfortunately, some people do. And they’ve used the process to push the Jade to the point of simply running out of money. The most recent episode involved appearing to agree to conciliation, and then – at the final moment of issuing the license – to re-instigate the entire process. This jam alone took up three weeks. The re-instigation of conciliation could take several more months – moreso because it now appears the objectors have stepped away from either conciliation yet haven’t announced whether they will take the issue to court. This leaves the Jade in a legal no man’s land; neither conciliating, nor seeking a final decision through the courts.
The difficult thing about this is that there’s not much the government can do in the short term; they can’t simply wave away an existing legal process, even when it’s obviously not working.
In the long term, provided there was support from the Opposition in the Upper House, South Australia could reform the entire Liquor Licensing Act to bring it into the 21st Century and alter the use of this glitch to block up reasonable applications for a license. Unfortunately, it is generally believed the Opposition don’t support those reforms. Thus, in the long term, if SA wants more cultural activity – not just music but arts, community spaces and things aimed at cultural rather than alcohol focused – it’ll need to alter its laws. The current system is only surmountable by larger players with the cash for lawyers, which is why Adelaide has a disproportionate amount of booze barns and big night clubs and not that many small venues.
In the short term, the only option is, realistically, for the Jade to find a pro bono lawyer and take the issue to court, or for community support to reinforce the social need for the Jade and work with the objectors to encourage them to withdraw their objections.
There’s also a bigger issue here as to what kind of city Adelaide wants to be. I wouldn’t say the complaints being lodged against the Jade are necessarily vexatious – although they are, to my eye, taking a suspiciously convoluted approach to the conciliation process. But they are an indicator that, even with mass community support backing the Jade, even with the State government backing the Jade, there is a process in place that privileges those who want the city to shut at five. If Adelaide wants to be a creative, active city, it needs to revise its processes to give the will of the four thousand people who signed the Save the Jade petition the same weight as those who want the place to go to bed early.