The Minimum Drinking Age
1 - The minimum drinking age
Undoubtedly, the minimum drinking age is the most controversial item on the Advisory Committee's terms of reference, and this is well evidenced in the submissions which were before us. The debate will not be silenced by any recommendation we may make, nor any law change.
All told, 233 submissions to the Advisory Committee contained comment on the minimum drinking age. Some 112 submissions expressed the view that the drinking age of 20 years should be retained (48 submissions recommended 20 years of age with no exceptions, 41 submissions recommended 20 years of age with exceptions, 23 submissions had no clear preference on the exceptions to the drinking age of 20 years). The 112 submitters were drawn mainly from health groups, church groups, and individuals, but significant among them was the Alcohol Advisory Council of New Zealand ("ALAC").
On the other hand, 106 submissions favoured a minimum drinking age of 18 years of age (55 submissions supported 18 years of age with no exceptions, 22 submissions supported 18 years of age with some form of exception, 29 submissions supported 18 years of age but did not indicate their preference for exceptions or no exceptions). This group of submitters were drawn mainly from District Councils, DLA's, licensing inspectors, and the liquor industry. Within these groups, there was strong support for a national identification card to be associated with a minimum drinking age of 18 years.
A further 15 submissions recommended a variety of different ages ranging from 16 to 21 years of age. The New Zealand Police did not make a recommendation as to a minimum drinking age, but did make a plea for the age selected to be made easier to enforce.
All this demonstrated the diversity of views with which we were faced. Those in favour of retaining 20 years of age mostly justified no reduction on the availability theory. The availability theory is based on the proposition that the degree of alcohol abuse in any community depends on the level of consumption, and that in turn depends on the level to which alcohol is available for sale. Those wishing to move to 18 years justified their approach on recognising reality and ease of enforcement.
In considering these submissions, the Advisory Committee found direction by having regard to the object of the Act, that is that a reasonable system of control over the sale and supply of liquor to the public should contribute to the reduction of liquor abuse insofar as that can be achieved by legislative means. The LLA, every DLA, and any Court on appeal are required to exercise their jurisdiction powers and discretion under the Act in the manner most likely to promote that object. It seemed that the Advisory Committee should also take this into account as a guide to any reform it proposed.
Clearly the object of the Act is concerned with harm minimisation through reducing abuse. But it is significant that the object clearly recognises that legislation is only one of the resources in the control of abuse. Enforcement, social and public health programmes, and self discipline among other restraints, have a prominent and equally important role to play in harm minimisation.
While acknowledging this, the Advisory Committee also recognised that the contribution of legislation to the control of abuse was mainly through the creation of properly-managed and licensed safe drinking environments for consumers. But it must be accepted that the largest proportion of liquor consumed by the public occurs outside of any licensed premises. It is also a fact that the volume of liquor consumed has reduced annually during the life of the current Act.
Currently, the Act provides so many exceptions to the so-called minimum drinking age of 20 years, that it almost convinced us that it is unrealistic to talk of a minimum drinking age. To understand the Advisory Committee's reason for this, it is necessary to detail as briefly as possible what the main exceptions are.
In "restricted areas", that is, any part of licensed premises so designated by the LLA or a DLA, persons under the age of 20 years shall not be admitted and sold or supplied liquor unless they are aged 18 years or over and accompanied by a spouse 20 years of age or over, or a parent or a guardian. Since the Act came into force in April 1990, the LLA, in converting older licences and issuing new licences, has used the "restricted" designation sparingly and mostly for strip clubs, massage parlours, individual night clubs, and bar rooms still recognised as reflecting yesteryear's standard of public bars as seen in "Once Were Warriors". There are a reducing number of the latter category.
In "supervised areas", similarly designated, any person under 20 years who is accompanied by a spouse aged 20 years or over, or a parent, or a guardian, or any other family member aged 20 years or over who is properly responsible for that person may be sold or supplied liquor. "Supervised areas" include modern good standard bars and house bars, and it is understood from the LLA that the majority of bar rooms are now in the "supervised" category. Furthermore, liquor may be sold or supplied to a person of 18 years or over who is alone in a supervised area if it is to be consumed along with a meal. In these areas, there is thus very little restriction upon the age at which a person under 20 years can be sold or supplied liquor.
In all other licensed areas which have not been designated as "restricted" or "supervised", liquor may be sold or supplied to a person of 18 years or over who is accompanied by a spouse aged 20 years or over, or a parent or a guardian, but if the visit to the area is for consumption of a meal, the person aged 18 years or over does not need the requirement for an accompanying person. Moreover, anyone under 20 years of age may be sold or supplied liquor in "other areas" if that person is accompanied by a spouse aged 20 years or over, or a parent, or a guardian. Other areas include licensed restaurants of all varieties.
Furthermore, it is of interest that in the Defence Forces, which are exempted from the provisions of the Act, 18 year olds (and minors even younger than 18 years) may drink unaccompanied in canteens on bases. The Armed Forces Canteen Council runs supermarkets on defence establishments at which defence personnel and civilian dependants or visitors may shop regardless of age, and that shopping may include beer and wine.
It is this complex area of exceptions which causes so many problems in interpretation, enforcement and control, and which no doubt led to so many of those submitters concerned with enforcement and control to prefer a minimum drinking age with no exceptions, or more easily-understood exceptions.
However, it is important to understand, that the regime introduced by the current Act has revolutionised the ability of family and social groups of all ages to enjoy relaxation out of the home in safe drinking environments. These environments, and the controls which govern them, have created a quality of life for people where alcohol harm has been minimised. Were we to accept the views of all those who recommended to us a minimum drinking age of 18 or 20 years with no exceptions, we would be taking a step backward which would not be welcomed by the consuming public, and not readily understood. It is quite unrealistic to turn the clock back on this developing pattern of family and social enjoyment, and we would deserve public criticism because, with few exceptions, no alcohol abuse appears to have occurred.
Quite apart from the almost complete legal access to licensed premises described above, it was also clear to us from evidence presented that, young people from the age of 14 to 20 years are getting access to alcohol by a variety of means for consumption in unlicensed drinking environments such as in the home, or in other places. Recent research showed that at 14-15 years of age 69 percent of males, and 56 percent of females were drinkers, and by age 16 to 17 years comparable proportions of males (89 percent) and females (90 percent) were drinking. At age 18-19 years, females had dropped to 79 percent but males were relatively steady at 90 percent.
Just as clearly, alcohol abuse in this age area is showing up in alcohol related driving accidents and in other social problem areas. But such abuse is confined to a minority, which includes young adults of legal drinking age and others where abuse leads to drinking and driving, violence, and other social ills. Taking all this into account, however, the Act should contain provisions which encourage young people to consume alcohol moderately in safe drinking environments, instead of them having to resort to beach fronts or street lots, parks, cars, or unsupervised house parties to participate in alcohol consumption, where the risks of liquor abuse are very high.
It is tempting to interpret the effect of the current exceptions, and the high percentage of liquor consumed outside licensed premises, to justify not having a minimum drinking age at all. Given the content of submissions before us, we feel the community in general still wishes to have some form of age control, however imperfect, on which to base access to alcohol on licensed premises. Even though the age when a person begins to consume alcohol is not subject to any control for the largest proportion of alcohol consumed in New Zealand, it may be too early yet for the social conscience to accept that a minimum drinking age is a personal choice, and that the law will only intervene for harm minimisation purposes.
Bearing in mind the object of the Act, we adopted a set of criteria on which to make our own choice about the minimum age for drinking on licensed premises to be specified in the law. These criteria provide that the law:
- should be aimed at making clear that abuse of alcohol was the factor to be controlled, rather than the age of a person permitted to be present, and consume liquor in moderation on licensed premises;
- should be sufficiently clear in its expression so that it can be understood by those affected, and enforced by those responsible;
- must have a high degree of public acceptance, if it is to restrict the freedom of the individual, particularly among those affected by the restriction;
- must be fair in regard to other restrictions, or rights, which may apply to people of the same age.
This set of criteria was then used to examine in turn the minimum drinking age option, whether exceptions should continue, and to what extent.
In view of the 112 submissions in favour of a drinking age of 20 years, some without and some with exceptions, it is necessary for us to revisit the availability theory. But, before doing that, it is necessary to emphasise again that legal access to liquor on licensed premises is currently quite widespread for those under 20 years of age. What this tells us is that a reduction in minimum drinking age from 20 years to 18 years may not in New Zealand have much effect in increasing availability. It could be somewhat different if the present minimum drinking age for licensed premises was 20 years without exception, but even that is arguable, given empirical evidence that, notwithstanding legal barriers, under-aged persons are routinely getting access to liquor when they want it.
The availability theory drives most of those supporting a minimum drinking age of 20 years. As outlined earlier, the availability theory takes the view that the degree of alcohol abuse in any community depends on the level of consumption, and that in turn depends on the level to which alcohol is available for sale: therefore, liquor laws should be directed at limiting availability. We note, however, that liberalisation in the availability of liquor in safe drinking areas brought about by the current Act has seen a reduction in consumption rather than an increase. If the availability theory is to be taken to its logical conclusion, the law could cure alcohol abuse at all ages by a general prohibition on sale and supply of liquor. Most people know from historical experience that this is an impossible dream.
The Report of the Working Party on Liquor ("the Laking Report") which preceded the Act was rather more dismissive of the availability theory when it said:
We agree with ... the view that the explanatory power of the availability theory is limited, and that a simplistic application of its mechanistic elements does not tell us why many people use alcohol in different contexts; neither does it tell us how and why the great majority of them do so without harming themselves or others. Alcohol is now widely available and it is now both unhelpful and largely irrelevant for the debate to focus on an issue where the evidence in support can be described as both dubious and elusive.
This Advisory Committee some ten years later does not disagree with the Laking Report view, but does point out that the LLA, and DLAs do, where appropriate, impose availability conditions on licences which restrict hours of trading where to do otherwise might increase alcohol abuse.
It was brought to our attention by ALAC and others that there was international evidence of increased alcohol-related harm, particularly for those aged just below the minimum drinking age, when the legal minimum drinking age was reduced. No relevant research was available relating to New Zealand, but we were given the general impression that New Zealand experience would follow overseas precedents. As we have already explained, young people below the legal minimum age are already obtaining access to alcohol both through their parents or other adults, and the pattern of exceptions allowed by the Act, and it is clear also from research that they obtain access to liquor when they want it for consumption other than on licensed premises. It is difficult for us, therefore, to assume on the basis of overseas experience where the drinking-environment may not be the same as in New Zealand, that there will be a marked increase in consumption by teenagers, and/or increased abuse if the present minimum drinking age is reduced from 20 to 18 years.
It is of interest to note for comparison purposes that of 24 overseas countries researched by ALAC only two had a minimum drinking age in excess of 18 years.
Under the criteria set out above, we see little justification for a minimum drinking age of 20 years with or without exceptions, either on the grounds of the availability theory, or on the grounds that a practical analysis demonstrates that to change it to 18 years would create conditions which gave rise to greater alcohol abuse. We see stronger grounds under our criteria for adopting 18 years of age as the basis for controlling the drinking age for licensed premises.
Criteria (iii) and (iv) (as set out previously) are very relevant in relation to a drinking age of 18 years. It was pointed out to us very clearly in many submissions that 18 years was an age which was fair in relation to other restrictions, or rights which may apply to people of the same age. Because of that fairness, those under 18 years could better accept restrictions on their liberty, and the public could better accept that such restrictions were reasonable.
The New Plymouth District Youth Council forcibly put it to us in their submission that they wanted five principles of a valid law for a minimum age, viz, something which was readily enforceable, fair and just, addressed the need, was unambiguous, and where the punishment was known. Furthermore, they pointed out that at the age of 18 years, persons could:
legally gamble, have sex, enter into a marriage, serve in the military forces, vote in a general election, purchase firearms, be a commercial pilot, be convicted as an adult in a court of law, make their own wills, pay adult fares, work in a massage parlour, leave school, hold a drivers licence.
It cannot be contended that at age 18 years, whether or not to consume liquor, and the discipline of consuming in moderation, requires any more age maturity than that required to discharge the responsibilities listed above.
The Ministry of Youth Affairs, in a well reasoned statement, came to the conclusion that the minimum drinking age should be lowered to 18 years with no exceptions, saying that it recognised many rights and responsibilities of adulthood are conferred at 18 years, and that in most aspects of life 18-year-olds have responsibility for making decisions about matters that affect them. We think the following passage from the Ministry's submission is of particular significance:
The Ministry suggests a risk management approach to the minimum legal drinking age. Such an approach would recognise that many young people now drink under the legal minimum age and they would be better protected from harm if that fact was acknowledged and catered for. It is possible to view drinking as a form of risk taking behaviour. Risk taking behaviour is acknowledged as natural and common-place amongst young people. A variety of factors foster and perpetuate risky behaviour. Instead of trying to prevent young people from drinking the Ministry suggests that the focus should be on helping young people to make healthy drinking choices.
The Ministry then concluded:
Rather than affecting the amount of alcohol consumed it seems that reaching the legal drinking age merely relieves the fear of being embarrassed by being turned away from licensed premises or being refused alcohol.
We have already recognised the reality of this situation when earlier describing the present exceptions, and in coming to our conclusions.
The risk taking approach, coupled with the reality of teenager access and consumption of liquor, points to the need for the Act to continue to encourage the setting up of safe drinking environments. The New Zealand Police, in looking at the minimum age question, supported the notion that it was necessary to follow a harm minimisation process with a strong focus on safe drinking environments. We fully subscribe to that view and our recommendations elsewhere further develop the legislation to support this process.
For the reasons given in this section, we have concluded that the minimum drinking age should be reduced to 18 years of age, but with only one exception.
We have already looked at existing exceptions and concluded that while they present problems of enforcement, the public have appreciated the opportunities they have provided, and would react adversely if a minimum drinking age without exceptions was adopted. Furthermore, by lowering the drinking age from 20 to 18 years, a number of areas which presented problems for enforcement have been eliminated.
With the reduction to age 18 years we consider it impracticable to continue to authorise an adult spouse to be an accompanying person. For similar reasons of legal interpretation and enforcement we have also decided to propose the dropping of the authorisation of an adult family member who is "properly responsible for him or her" as an accompanying person.
To further ease the problems of enforcement we propose only one exception to a minimum drinking age of 18 years. That is, that persons under the age of 18 years of age may have access to any licensed premises, other than "restricted" areas, and may be sold or supplied liquor provided they are accompanied by a parent or guardian.
In recommending this exception we were careful not to require liquor to be consumed as part of a meal. What has constituted a meal has been one of the difficulty factors for enforcement. We are well aware that a licensee's and/or certificated manager's role on licensed premises requires regard to be had to host responsibility which includes the requirement to make food available. That same responsibility extends to observing the conditions of a licence and the enforcement of the laws in the Act, including those we propose should apply to minors through this exception. Safe drinking environments will continue to be fostered by the Act's overall effect on the licensing environment, by public education, and by the process of competition, together with the public's demand for better performance standards.
There was strong support from submitters for a nationally-recognised and tamper proof system of age identification to support a minimum legal age provision. ALAC recommended such a system because it would help bar staff identify underage drinkers, assist legal drinkers of youthful appearance to be served, help the Police with enforcement, and assist in the prosecution of licensees and bar staff who provided minors with alcohol.
Young people were said to produce a wide variety of identification to justify their legal entitlement to drink on licensed premises. These included drivers' licences, and photographic identification cards from educational institutions or from other organisations including the "Pub Card" issued by the Hospitality Association of New Zealand ("HANZ"). It appears that much evidence exists to show how these identification means can be tampered with to permit underage drinkers to support their case for admission to licensed premises.
We came to the conclusion that while the arguments in favour of a national identity card may solve the problem of identification for eligibility to be on licensed premises or to purchase liquor from an "off-licence", there were five reasons which made the issue of a national card for this purpose impracticable:
- The requirement of a national identity card for young people for this purpose is in our view improperly discriminatory. The question of a national identity card has been raised before and has been publicly rejected. If a national identity card is to be introduced, it should be for all ages, have a clear objective in social policy, and be socially acceptable. As the Privacy Commissioner submitted, a review of the Sale of Liquor Act is not an appropriate springboard to recommend the introduction of a major social change such as a national identity card.
- Identity cards are common for special purposes and appear to be acceptable to individuals wishing to participate in the activity for which they are issued. This includes identity cards currently used for identification for other purposes such as for access to licensed premises. If these unique purpose cards include a photo and date of birth, and new available technology is used to make them which is tamper proof, licensees and bar staff may have confidence to accept them.
- Tamper proof technology is now available for identification cards and, in any case, section 172 of the Act sets a very heavy maximum fine of $1,000 on any person who falsely represents to a licensee or manager on licensed premises that he or she is a person to whom liquor may be sold or supplied under a licence.
- There is no reason why the HANZ should not continue to respond to requests from young people for a "Pub Card", and use tamper proof technology to produce it. While the demand for it has fallen off in recent times, HANZ could do more to promote it. The Privacy Commissioner advised us that he would have few qualms with a truly voluntary identity card scheme which people can opt into solely for one particular purpose.
- There is no easy solution to evidence of eligibility. In the end, it is the licensee or staff of licensed premises who have to make a decision. If they are not satisfied that the person seeking service is of the minimum legal age, then they must refuse service and leave onus of proof of age to rest on the individual. That is their responsibility, and they must decide for themselves in each case by whatever means they can. The Police need to consider that taking action occasionally under section 172 of the Act may assist enforcement.
During the course of our review, the Department of Internal Affairs (Documents of National Identity) indicated to us by letter that it wished to register its interest in becoming a provider of a national identity card should one be advocated by us. Clearly, if a national identity card is ever developed this department has the expertise to provide it. However, for the reasons given above, we are not prepared to recommend a national identity card.
We recognise the problems of enforcement of the minimum age provision in the Act, and sought a solution which might facilitate enforcement, given that a national identity card is not yet available. We noted that there are many different types of identity card which could serve as evidence of age, but we also recognise that many of them are not tamper proof, nor do they have photographs.
In the end we have drawn a precedent from the liquor laws of the State of Victoria for a new defence for the sale or supply of liquor to minors. We therefore propose that section 155(4) of the Act be repealed and replaced with the following:
(4) It is a defence to a charge under subsection (1) or subsection (2) of this section if the defendant proves that the person who sold or supplied the liquor had sighted an evidence of age document of the person whose age is material to the offence, indicating that that person is of or over the age of 18 years.
The change of minimum age which we have recommended will require consequential amendments to the Act, but it will also be necessary to incorporate the above defence into section 164 of the Act which relates to permitting minors to be in restricted or supervised areas. In that case, section 164(2) of the Act should be repealed and replaced with:
(2) It is a defence to a charge under subsection (1) of this section if the defendant proves that, at the time of the offence that he or she had sighted an evidence of age document of the person whose age is material to the offence, indicating that that person is of or over the age of 18 years.
Given that a national identity card is not available it is important for the purposes of this Act to define what an "evidence of age document" is. We propose that the following interpretation be placed in section 2 of the Act immediately following the definition of "District Licensing Agency".
"Evidence of age document" means:
(a) A document issued by a person, organisation, corporate body, government department, or other Crown agency or statutory board, and approved by the Minister as an evidence of age document for the purpose of this Act; or
(b) A New Zealand or foreign passport; and
(c) Every document in (a) and (b) above must:
(i) Bear a photograph of the person to whom it is issued; and
(ii) Enable the age of the person to whom it is issued to be determined whether by reference to the person's date of birth or otherwise.
Section 162 of the Act, which sets a maximum fine of $1000 for minors who purchase liquor on or from licensed premises, will need to be considerably revised to accommodate the changes we have recommended in the legal minimum drinking age, and to apply it to premises where a dispensation from licensing exists as well as those that are licensed.
We have considered what more we might do to facilitate enforcement of this section, and believe there is one step which might be introduced to assist Police to administer this section. The public have accepted instant fines for traffic violations, and more recently they have been introduced to the Resource Management Act 1991. It is our view that the Police should be empowered to impose such fines pursuant to section 162 of the Act up to a maximum of $200. This would mean any minor found to be a prohibited person who purchases any liquor on or from any premises in respect of which a dispensation from licensing, or an "on" or "off"-licence is held.
We would expect the level of instant fine within the maximum of $200 to reflect the nature of the offence. If a person subject to an instant fine is not able to produce acceptable evidence of age, and the issuing officer has good reason to believe that person is a prohibited minor he or she may impose the fine. It will then be up to the person to produce convincing evidence that they are in fact aged 18 years or more to the Police at a later time to justify cancellation of the fine.
- Reduction of the legal minimum drinking age to age 18 years, with one exception that a person under the age of 18 years may have access to any licensed premises, other than restricted areas, and may be sold or supplied liquor provided he or she is accompanied by a parent or legal guardian.
- An improved defence to a charge under sections, 155 and 164 of the Act, together with a new definition of what constitutes an "evidence of age document".
- Revision of section 162 of the Act to bring it into line with the changes we have recommended in this report, and to provide for an instant fine to be available to the Police for use against prohibited minors who purchase any liquor on or from premises subject to the Act.