The imminent closure of The Tote, at least under its current management, has generated a lot of debate and comment about liquor licensing in Victoria, some of it constructive, most of it, unfortunately, not. I’m quite well-versed in the law on this subject, and what follows will, I hope, give you a bit more insight than “bastard government killing live music rah rah”.

Despite having spent a large part of my teens and early twenties leaning against speaker stacks around Melbourne, I can’t say that I went to The Tote all that often, or that I particularly liked it. However, it’s an important part of Melbourne’s music scene, and the decision by licensee Bruce Milne to close the doors in the face of extra costs imposed by Liquor Licensing Victoria (LLV) has made it something of a touchstone on the issue.

Before digging into what seems to have gone wrong with LLV and its administration in the past decade or so, it’s important to understand why the tough new regulations and fees were brought in.

There’s been a problem with alcohol-fuelled violence and crime in Melbourne for years now. Large parts of the city at 3am are not the place you want to be walking around, or driving a taxi, or behind the counter at a 7-eleven. Hundreds of way-too-drunk young males are wandering around, if not looking for trouble, at least ready to give it a good kicking if it comes anywhere near them.

Brawls, head injuries, rapes, bashed taxi drivers, random assaults, smashed windows and deaths; all these things happen in the wee drunken hours in any city in the world, including our beloved Melbourne.

However, the recent uproar over assaults and robberies upon young Indian men in particular, combined with constant calls for more police on the streets, and the weeping parents of brain-damaged young men on A Current Affair have spurred our state government, after years and years of pointless violence and destruction, into its usual knee-jerk response of Ban Something, Fine Someone.

The Liquor Control Reform Act was first enacted in the 1980s, opening up liquor licensing in an effort to expand the culture and community of Victoria. No one can say that it hasn’t been a good thing; Melbourne is blessed with hundreds of excellent restaurants, bars, licensed cafes and band venues, and our nightlife truly is vibrant, full of variety, and fun, most of the time, in most places.

One section of the market reached saturation point several years ago, and the competition for young customers got cut-throat; economies of scale come into play, and we now have several enormous venues, owned by enormous corporations, enticing each other’s customers away anyway they can, mostly with cheap drink offers. As Jane and I wrote about in the Tribune some months ago, most of the big venues in the suburbs are either gone or transformed into pokies dens, so there’s a huge concentration of young people in the city and inner suburbs, full of alcohol and hormones, congregating around the largest venues trying to get in, trying to get home, or pissed off that they can do neither. Every now and again we see on the News how badly that can go.

The concept of Liquor Licensing is not all that hard to understand; if you want to be able to sell this potentially dangerous and extremely profitable product, you are going to have to take some responsibility beyond simply paying an annual fee and displaying your licence on the wall of your establishment.

There are dozens of conditions that can be applied to a liquor licence beyond trading hours and customer numbers. There’s a “red line” area on your floor plan, which is the only part of your premises you’re allowed to serve alcohol. This can include an outdoor area such as the footpath outside (so necessary in these days of no smoking indoors), which is strictly limited, in conjunction with your local council and landlord, as to area and number of patrons and tables. A restaurant can serve alcohol without a meal, but only if 75% of the licensed area is for seated dining.

There are also the famous, and currently notorious, High Risk conditions. A venue is defined as High Risk, thereby attracting HR conditions, if it trades late at night and/or provides live and/or amplified (louder than background) music. The HR conditions include mandatory high-quality CCTV recording facilities, available on demand by the police or LLV for viewing, and the employment of licenced Crowd Controllers, at specified numbers. That usually means two bouncers on the door, and one for every hundred patrons or part thereof. Some venues have very specific conditions, usually as a result of complaints from local residents, such as when and where they’re allowed to empty their bins, or which direction down the street departing customers are to be shepherded by the extra Crowd Controller employed specifically for the task. One venue I know of has to have a Crowd Controller or security guard constantly patrolling the immediate vicinity, to ensure that residents whose homes back onto the laneways nearby aren’t disturbed by the sound of vomiting and/or shagging.

In response to all the publicity that drunken violence has attracted, the government and LLV decided to Take Action. Their first attempt was the 2am lockout, which of course was a debacle, as all the venues with the money for lawyers and lobbyists got exemptions, so the only effect was a huge loss of income for all the smaller establishments who had never caused serious problems anyway.

Then all the Chief Commissioners of Police got together and set up a couple of weekends of massive police presence on the streets, which got a lot of TV footage of drunks being wrestled to the ground, but was in reality a concerted effort by the police to try and guilt their respective state governments into more funding for more law enforcement.

New Liquor Licensing regulations and fees came into place at the start of this year, and, as is so often the way, they have achieved, and will achieve, the opposite of their stated intent. Fees have increased dramatically on a sliding scale, based on patronage, previous compliance, and the dreaded High Risk. So my local, licensed for 26 patrons, having never had the slightest bit of trouble, is now paying about a third of the licence fee of a nearby barn that’s licensed for several hundred. Sword’s Wines at the Vic Market are open from 6am (as is required of all Vic Market stalls). 6am is classified as High Risk (outside normal trading hours), so their annual licence fee has increased exponentially. The conditions are being applied arbitrarily and technically, with no real room for manoeuvre or negotiation.

It’s the blanket imposition of far more stringent High Risk conditions that have led to Bruce Milne deciding to pull the pin. Live music goes on at the Tote almost every day and night, and under the new regs he’s going to have to employ Crowd Controllers, in greater numbers than before, almost all the time he’s open. Makes sense, you say, and what’s the harm in having three bouncers on when you’ve got a hundred and fifty patrons? Not much, except that he’s got to have those three bouncers there if he’s only got ten patrons listening to two girls playing guitars and singing folk songs on a Sunday afternoon; that does not make financial sense.

The same thing is happening to bars and pubs, large and small, all over the state. Some are big enough and profitable enough to soak up the extra cost and get on with it, but many are like the Tote, looking at huge extra outgoings and deciding that it can’t be done.

Let’s take half a step back here. The problem is violence in the streets around large licensed premises. The problem is caused by people being allowed to get way too drunk. You can have the best video cameras, and one bouncer for every ten patrons if you like, but if you’re letting people in who are already pissed, and you continue to serve them until they’re staggering, the problem will remain. All the big venues already have excellent CCTV, and phalanxes of Crowd Controllers, but the problems still occur when their punters walk out the door. Because these places are run to make money, and they make money by selling alcohol. Lots of it.

LLV and the government haven’t explained, because they can’t, how blanket imposition of harsher conditions on all the other establishments is going to have the slightest impact on anything other than the expansion of the security industry. To paraphrase Marieke Hardy on The Drum recently, this is like protesting against Japanese whaling by going to St Kilda pier and punching a fisherman in the mouth.

The whaling fleet/solo fisherman analogy leads me to what is the real issue here, and I’ll start by explaining as simply as possible what happens when a licensed premises breaches its licence, and why LLV is hitting the soft targets and leaving the problem children alone.

All of the conditions on a licence must be met while the licensee is serving alcohol; if there are, say, too many punters drinking in the Outside Area, the licensee is serving alcohol In Breach of Licence. This can result in a Penalty Infringement Notice (PIN). Once a premises has had three breaches proven, there’s a “please explain” sit-down with LLV and/or the local police Inspector, with the possibility of further sanction, such as licence variation or removal of licensee or directors.

A PIN can be proven by the payment of the fine, which is an effective plea of Guilty. However, you can object to a PIN and ask that it be heard in court. This means a brief is prepared, and it can be up to 12 months before a full hearing and decision of Guilty or Not by a Magistrate. If the licensee’s found Guilty, it’s just a quick trip across the road to the County Court to appeal, then possibly over to the Supreme Court after that, then of course there’s the VCAT hearing, and the Supreme Court applications to stay or appeal VCAT’s decision, all of which can add up to years, and hundreds of thousands of dollars in legal fees.

Most small, one-owner establishments can’t afford the squadrons of lawyers to run these sort of cases, so they just pay the tickets, wear the black marks, and cop whatever sanction LLV imposes at VCAT.

But the venues whence all the problems stem? They take the first option, of dragging every single breach through all levels of the courts for as long and expensive a time as possible. Because they can afford to; ALH, one of the biggest licensed premises operators in the country, is a truly enormous company, part-owned by Woolworths, with turnover in the hundreds of millions of dollars annually. If one of their venues were to be hit with a sudden drastic change in operating hours or patron numbers the effects would be felt all over their other holdings, so they fight, and they fight hard.

LLV and the government are too scared or too cheap or both, to take on this sort of fight; so, in order to be seen to be Doing Something, they task LLV inspectors and the police to do more walk-throughs, lock up more drunks (outside venues only, please), and issue more PINs, but only in the smaller venues. Of course, this results in Stats, and nothing else.

So, what would be an effective way to get licensed premises to start to serve alcohol more responsibly?

Imagine if, one weekend, three brawler vans parked in King St, and twenty coppers walked into one of the barns: “Manager? Over here please. We’ve just rounded up twenty severely drunk patrons, and we’ve observed your staff continuing to serve very intoxicated people. That’s a number of breaches, this venue is no longer safe. Here’s my authority from the Assistant Commissioner, turn the lights up, everybody out, you’re closed for 48 hours as of now.”

Thousands of dollars of lost revenue later, with the promise that exactly the same thing could happen next weekend, perhaps these places would start to see the light. Perhaps they’d see that what they’re doing is causing problems, and that we’re sick of it, and the government is actually going to do something about it.

Of course, what would happen is this: immediate appeals to the Supreme Court to stay or overturn the 48 hour closure. Civil action against the Police, LLV, and the State for restraint of trade, and breaches of the Human Rights Charter. Dozens of lawyers and lobbyists from ALH, the AHA, and all the other big-money stakeholders descending on Spring Street to kick the shit out of Brumby and Overland and McLellan, resulting in a complete back-down on the policy, the police being left out to dry, and a promise of an advertising campaign, a meeting with stakeholders, and self-regulation of the industry.

Meanwhile, the Tote and many others will close, my local and yours will have to find ways to scrape together the extra thousands in licence fees each year, and the blood and vomit and broken glass will get washed down the gutter in King Street every morning, just like it always has.

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