Whenever you hear your favourite warm and cuddly ACT Minister utter the word “”consultation” freeze.
Go back over the sentence and ask what does it really mean. “”Consultation” is the buzz word. Nothing happens without consultation. Well, last week the ACT Government got caught.
The story starts a year ago when the Minister for Idle Youth, Terry Connolly, noted seething masses of drunken, smoking yobs crowding the bars and clubs of Canberra, mostly in upstairs or downstairs hideaways with narrow entrances.
He quite rightly asked: what if there were a fire? The youth would fry. Something had to be done. A law had to be passed.
When the law was introduced, Connolly told the House on May 13: “”This legislation has been prepared üin close consultation with@ the Australian Hotels Association and persons involved in the catering and hospitality industry.”
What impression do you get from that? A picture of hoteliers and drafters huddled together working out a reasonable plan to stop over-crowding? That, I’m sure is the one Connolly wanted to convey.
Why then is the AHA up in arms about the legislation? They were consulted all right. But their view was ignored. Instead, the legislation was a classic of unworkable black-letter law full of unintended consequences for several hundred small businesses.
It provided for precise measurements to be taken of the floor area of every licensed premises in Canberra. One person per square metre was to be the rule. No account was to be made for: the number of exits; whether the place was on the ground floor; if it was non-smoking on entertainment nights (reducing fire hazards); whether furniture was cleared on entertainment nights; or a myriad of ordinary precautions that businesses wanting to survive would take on their own accord.
And guess who measures the licensed premises? Fire officers. Extra money for driving the big yellow truck to measure the floors of pubs and clubs.
We now know what consultation means. It means listening politely to the views of a directly affected party and then going off and doing precisely what the Government had in mind anyway _ pandering to those that help the government most: unions, the big end of town and the tiny minorities who have critical numbers in pre-selection. And too bad for the vast mass of small businesses and middle-class punters in the suburbs.
So when you hear “”consultation” it does not mean “”consent” or even “”reasonable compromise”. It means “”we did it for show”.
In this case those “”consulted” _ hundreds of licensees running quite safe premises _ have had their clientele culled. They included Tilley’s which had to go to the expense of an action in the Administrative Appeals Tribunal.
The episode also tells us something about ACT (and indeed Australian) law-making. When this law was exposed in the tribunal as bureaucratic overkill, the Leader of the Opposition, Kate Carnell, jumped in with a call for a complete revamp of licensing laws with a shot at Government for stifling business.
She acknowledged the Opposition had supported the amendments but said, “”Surely, an arbitrary assessment of fire safety should encompass factors other than the square metres of space available inside a club.”
Surely, indeed. But that is what the law the Opposition voted for provided. On May 13, the Opposition Spokesman on Idle Youth, Gary Humphries, told the House: “”The provisions in this Bill are not especially onerous, in our view.”
Humphries is a supporter of move-on powers and wants to clear the pavements of expectorating youths who frighten little old ladies catching buses. So he naturally leapt in supporting the Bill on overcrowding in pubs and clubs, momentarily forgetting his small-business constituency.
Helen Szuty (Independent) at least objected to a punitive approach, preferring a preventative one. But she did not press her point and voted for the legislation anyway.
They might be excused for not reading the Bill on the ground that it is in fact unreadable. But MPs should not pass unreadable laws. If they cannot understand them, they should reject them. And they should certainly not put out plaintive, post-hoc press releases complaining about the effects of the laws they and their party agreed to.
It is a fine example of Australia’s legislative dilemma _ nationally and locally. The dilemma is whether to have simple legislation (called fuzzy law) or to have massive details in legislation (black-letter law).
A fuzzy-law provision would simply say: “”Licensed premises shall not be over-crowded. Penalty $25,000.” The court would decide whether particular circumstances were “”over-crowded”. It is fuzzy and uncertain. But so is black-letter law. Despite laying down things in great detail, it is no more certain. First, people cannot understand pages and pages of legalese. Secondly, even with that amount of detail there are often unintended consequences. So black-letter law is self-defeating.
Fuzzy law, however, requires gutsy magistrates full of commonsense who know what an over-crowded bar is and are not prepared to listen to a whole lot of defensive, artful lawyers’ claptrap arguing the Black Hole of Calcutta Bar is really the Saudi Empty Quarter Bar for Teetotallers.
Alas, it is probably too late. The artful lawyers whose loop-hole finding tactics a generation ago were met defensively with more black-letter law are now themselves magistrates and judges.