License to Ill

In May last year, Inpress ran a cover story about the thriving independent music scene in Melbourne, and specifically about the Hold Hands! benefit gig for community radio. That show embodied an indie scene in rude health, drawing together a heap of bands from the rosters of seven excellent local labels, raising $6,738 for community stations in Melbourne and Sydney. It was held – where else? – at the Tote.

And now the Tote’s gone. As has been well-documented, it closed its doors last week due to ongoing difficulties with Liquor Licensing Victoria. The closure has attracted plenty of publicity, with 2,000 people attending a protest last Sunday, and thousands more joining “Save The Tote” Facebook groups, etc. It’s also thrown the spotlight on the liquor licensing regime in Victoria, and particularly the distinction it makes between venues determined to be high-risk in terms of potential for alcohol- related violence, and those deemed to be low-risk.

Speaking to Inpress this week, the Tote’s licensee Bruce Milne identified Liquor Licensing Victoria’s decision to treat the venue as high-risk as the defining factor in its closure. “It was a purely commercial decision [to close],” he said. “The issue is that we’re a high-risk venue with high-risk conditions. It’s quite simple – with the conditions they’ve put on us, we can’t afford to run the venue at a profit. I can’t afford to keep fighting it at VCAT, knowing I’m fighting a losing battle. I can’t afford to take out a ten-year lease and pay rent on an empty building for nine and a half years.”

The conditions he identifies include the requirement for CCTVs to be installed and the requirement for security to be provided every night of the week. “Our license only allows us to trade late on a Thursday, Friday and Saturday – which in reality is only Friday and Saturday. But those four hours of trade [between 1am and 3am on Friday and Saturday] place restrictions on us across the entire week. If they were saying, ‘You’re high risk after 1am on a Friday and Saturday, and you have to have a bunch of security and things,’ then fine, I would have done it. It’s just insane.”

Jon Perring of industry body Fair Go 4 Live Music suggests that other venues have been having similar problems – most obviously the Arthouse, which also announced its intention to close this week, citing similar concerns. “Just about every licence owner is under pressure at the moment. The Arthouse, obviously. Ding Dong had a 2am lockout cause put on their licence. The Rob Roy’s previous licencees went back from 3am to 1am because of the security clauses, and then clearly the economics didn’t work and they had to close the pub. The Railway Hotel… They close at 1am and they have these conditions; they had to bump their ten years residency.”

The person responsible for imposing the conditions is Liquor Licensing Victoria (LLV)’s Director Of Liquor Licensing, Sue Maclellan. Those unfamiliar with the minutiae of liquor licensing regulation may be startled by the amount of power afforded to Maclellan; responding to a question from Inpress, Tony Robinson – the State Minister for Consumer Affairs and Gaming, into whose portfolio liquor licensing falls – noted, “The Director has an existing, very broad discretion to modify licenses and impose additional conditions in the interests of public safety. These include the power to impose high-risk conditions, exempt venues from [those] conditions or modify the operation of [those] conditions.”

Inpress contacted Maclellan with a series of questions; she chose to reply in the form of a broad statement. Robinson provided more extensive responses and suggested that the problem may be one of misunderstanding: “Licensees have always been able to apply to the Director to have their license conditions varied … and can appeal to VCAT if not satisfied with her decision. Unfortunately, it appears that many venues were not aware of this or did not approach the Director.”

So did the Tote attempt to have its license reassessed? Milne says yes. “Talking to Liquor Licensing Victoria has been the most unbelievably frustrating thing,” he relates. “I’d say to them, ‘I’ll have to close my business’. They’d say, ‘What you do with your business is no concern of ours’. I’d say, ‘Surely we can find a compromise here’. All I ever wanted was a little bit of sense. It’s been an absolute blanket ‘no’. Every time I’ve called, every time I’ve asked, it’s been ‘no’.”

Such frustration has been echoed throughout the industry, as far back as the ill-fated 2am lockout trial in 2008. Several licensees have told Inpress they feel they have been unfairly targeted for speaking out. Milne told us, “This regime has been brutal and horrible. I have no doubt in mind that Liquor Licensing [Victoria] have targeted the Tote with a vengeance, and they [would have found] a way to close us down. They were visiting us all the time… they’d have tried to shut us down on the spot. It was only a matter of time before they’d go, ‘Oh, there’s too many people in the beer garden; you’re shut,’ kick everyone out, and say, ‘You can apply to have your license reinstated, but we’re not going to tell you how many days you’re going to be shut’. You can’t run a business when you have this fear.”

Inpress asked the Director Of Liquor Licensing for her response to allegations that LLV had been vindictive or inflexible; no answer was contained in her statement. We asked Robinson the same question, and he noted only that the high-risk conditions were not new regulations. We also asked whether Maclellan retained the Government’s support as Director Of Liquor Licensing; his response was that “Sue Maclellan remains the Director Of Liquor Licensing”, although he did also note that “I have encouraged the Director to write to all licensees with high-risk conditions to ensure that they understand their position in regard to her decisions” and that Maclellan “is working with industry so that these high-risk conditions are better targeted and applied to those venues presenting a greater risk to the community”. No information as to how this might be done was forthcoming.

However, the fact that the Tote – a venue at which the risk of violence was clearly lower than at, say, a King St nightclub – was ever placed in a high-risk category does raise the question: why? Do the Government and LLV understand live music? Perring is adamant: “No, and I’ll tell you why: [The Government] have never done any research on [live music venues] and they have absolutely no policy or have ever developed any that looks at the needs of live music to thrive in Melbourne and Victoria. I don’t think they have quite figured out that’s it’s our culture. [Closing the Tote] is equal to burning Blue Poles.”

It’s certainly instructive to look at the new Liquor Control Reform Regulations, which were introduced in January this year. These use a similar risk-based structure, with venues’ annual fees determined by reference to the risk they pose. While the increased fees are minimal compared to the cost of security, etc – as Milne says, “They’re a few beers a day” – they do give an insight into on what basis a venue is to be “high risk”.

The Regulations use only three factors for determining this: opening hours, capacity and compliance history. In both the report on which they are based – Allen Consulting’s Alcohol-Related Harm And The Operation Of Licensed Premises, tabled to the Department Of Justice in July last year – and the Regulatory Impact Statement that preceded them, no distinction is drawn between live music and recorded music. Both documents lump these into a blanket live/recorded music category, so that venues with identical opening hours and capacity are treated identically – even if one is the Tote and the other is, say, a nightclub in King St.

Both the Report and the RIS concede that research into live music venues has been incomplete – p45 of the Report notes “the findings for licensees with live and recorded entertainment should be interpreted with a high degree of caution. It is understood that the unknown group of venues, which includes 2,094 licensed premises, most likely includes many venues with live and/or recorded entertainment.”

We asked Maclellan why further research into live music venues has not been carried out. Her statement said, “Live and amplified music was not included as a separate risk factor as information on which venues provide this entertainment is currently limited to those who [sic] trade after 1am. In those cases, the risks were considered adequately addressed in the operating hours risk factor.”

Perring suggests that this betrays a fundamental misunderstanding of live music: “99% of gigs finish before 1 o’clock so it is not even a high risk activity. They have no reason to link the two, but at some point someone has made a bad decision, now they are trying to defend it.”

Robinson disagrees: “This Government does support live music – for example, have a look at the Victoria Rocks program administered through Arts Victoria, providing grants for recording, touring and development for our musicians.” However, he also concedes that the closure of live music venues is not what his Government wanted. “No one wants to see legendary venues close, and we look forward to a new licensee staking over and reopening the Tote shortly and for licensee to continue operating the Arthouse next year.”

Inpress asked Milne whether this was likely to happen. “I’ll make it very simple. The Tote cannot operate at a profit under the current conditions on its license. If the Government makes some sensible changes… to remove us from the high-risk category, someone will probably be able to work out a way to make a profit out of it.”

Milne says that he hopes the closure of the Tote is “a line in the sand”, rather than the first of many. Perring suggests that the Government has been taken aback by the public outcry at its closure, and notes that in his own dealing with LLV, “Until the rally at the Tote, there was no real willingness to acknowledge our point of view or do anything about it, but that seems to have changed in the last week.”

If not, the entire Melbourne music scene is under threat. Perring notes that, “[This] is not going to affect the bigger venues like the Hi Fi Bar – they are all used to operating at high risk. Where the problem is, is at the grassroots level, with the small level gigs. They don’t make their money, they are there for the love of it.”

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