24 October 2006

Sale of Liquor (Youth Alcohol Harm Reduction: Purchase Age) Amendment Bill

> Sale of Liquor (Youth Alcohol Harm Reduction: Purchase Age) Amendment Bill I'm unimpressed by the push to raise the drinking age. And, quite frankly, the Select Committee's report on this issue is a summary of submissions, not - as one might expect - a robust analysis of the issues and evidence. I'm fully supportive of those folk moving to lobby against the increase and will post my more detailed analysis of the issue in due course. However, in the interim, some immediate thoughts:
- First, many proponents of raising the age point to a study on alcohol-related car crashes which, they say, concluded that these have increased amongst 18 and 19-year olds since the drinking age was lowered. The Select Committee report appears to note this report:
Some people consider that alcohol-related harm to young people has worsened since the purchase age was lowered to 18 years in 1999. ... Some people are particularly worried about the increase in alcohol-related car crashes involving youth, and cited national and international studies linking the trend with the lowering of the legal purchase age.
However, if one cares to read the report, you will see that alcohol-related car crashes amongst 18 and 19-year olds have actually decreased in this period, not increased. The study bases its correlation with the lowering of the drinking age on a relative increase in alcohol-related car crashes. See my full analysis of the study when it was published earlier this year: > LAWS179 (13.01.2006): "Drinking Age" I think the distinction is important to note. The lowering of the drinking age was a package deal, associated with other measures to ameliorate any consequential harm - which, apparently, must have been effective. Ignoring the effect of those associated prophylactic measures is wrong in principle in my view.
- Secondly, the Bill undermines the principles underlying the Relationships (Statutory References) Act 2005 by drawing a distinction between married / civil union couples and de facto couples. The proposed exemptions only applies to underage people accompanied by their spouse or civil union partner, not their de facto couple. I guess the rationale for the distinction is one of proof. People can readily "prove" they are married or in a civil union by reference to their marriage / civil union certificate. However, otherwise there is no rational reason to say an underage person is more at risk if they are accompanied by a de facto partner, rather than spouse or civil union partner. This measure will undermine the harmonisation of benefits, protections, and responsibilities undertaken by the Relationships Act.
- Finally, the raising of the drinking age to 20-years is likely to have an adverse impact on gay and lesbian youth. The (arguably unfortunate) reality is that bars represent the predominant forum for gay and lesbian youth to connect with the gay and lesbian community. Most schools and other youth organisations are not the most welcoming places for gay and lesbian youth to come out or to come to terms with their sexuality. Gay and lesbian bars therefore play a major role in the coming out experience. It's been really interesting seeing the younger gay generations flourish over the last few years in gay bars. Raising the drinking age places that at risk because it will exclude gay and lesbian youth from a supportive gay environment at a critical time in their lives.

3 comments:

BillBass said...

Dean - any comments on the BORA-consistency report - see http://www.justice.govt.nz/bill-of-rights/bill-list-2005/s-bill/sale-of-liquor-amendment-bill.html

It seems pretty poorly reasoned and analysed to me. Basically they are passing the buck.

Graeme Edgeler said...

Thanks for the link Billbass - this was a particularly telling statement:

"However, after consideration of the context in which these issues arise and having regard to the degree of deference appropriately allowed to Parliament in matters of complex social policy, we have concluded that, although the Bill contains discriminatory aspects, it does not introduce discrimination that is so unreasonable as to be considered “unjustified” in terms of section 5 of the Bill of Rights Act."

Seems to me they've got it backwards. Is there really a margin of appreciation that might allow an unreasonable limit to be justified? I would have said not. And why quotation marks around the word "unjustified"? It doesn't appear in s 6.

There would arguably be a margin of appreciation in determining whether a limit was reasonable. But once it's found unreasonable, it's out - there are no demonstrably justifiable unreasonable breaches. For a limit to comply with BORA through s 6 it must be reasonable, and justifiably so. You don't need to be able to demonstrate unreasonableness for it to fail; if you can't demonstrate reasonableness it gets a section 5 report.

Rich said...

"the rights and freedoms contained ... may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society"

I'd say that's a higher hurdle than they think it is. "Demonstrable" is different from "politically attractive".

All the negative effects cited in justification for lowering the drinking age involve currently illegal acts (e.g. drink driving). So the Bill, by lowering the age, is imposing a discriminatory restriction on a generally legal activity in order to reduce illegal activity.

I'd say for the measure to be "demonstrably justifiable" the following would need to be true:
- the authorities are unable to prevent the illegal acts
- lowering the drinking age would be effective in preventing those acts

None of which is "demonstrably" true.

Course Outline

Lord Justice Lawton in Maxwell v Department of Trade and Industry [1974] 2 All ER 122 said:

"From time to time ... lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognise. As a result of these efforts a word in common usage has acquired the trappings of legalism: 'acting fairly' has become 'acting in accordance with the rules of natural justice', and on occasion has been dressed up with Latin tags. This phrase in my opinion serves no useful purpose and in recent years it has encouraged lawyers to try to put those who hold inquiries into legal straitjackets.... For the purposes of my judgment I intend to ask myself this simple question: did the [decision-maker] act fairly towards the plaintiff?"


This course examines the elephantine concept of fairness in the law, along with other contemporary legal issues.

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