Unique and Deplorable: Regulating Drinking in Victoria

In 1960 Judge Archibald Fraser, Chair of Victoria’s Licensing Court, reported back from an arduous overseas trip sampling the hotels, restaurants, bars and cafés of Europe and North America in order to observe how Victorian licensing laws and drinking habits compared. Apparently, they didn’t. In his report, Judge Fraser wrote: ‘Drinking habits in Australia are, from my observations in the places visited, unique. They are unique in the sense that they are deplorable.’

Victoria has something of a history of deplorable drinking habits or, at least, a history of people being deplored by the drinking habits of their fellow Victorians. This is the state, after all, where the temperance movement had its most fervent supporters. Melbourne was ground zero for Australia’s first temperance rallies and where an 1885 petition calling for a reduction in the number of licensed premises, signed by 45,000 Victorian women (a quarter of the female population), was presented to Parliament.

It’s also the state that, in more recent times, has done its fair share of hand-wringing about streets apparently awash with alcohol-fuelled violence and watched as its government-appointed licensing authority flailed about in a seemingly ill-planned response, often creating new problems (inadvertently undermining the viability of Melbourne’s live music scene) and overlooking potential solutions (staggering licence fee increases for the small intimate venues that are the antithesis of the stabbing/punching/glassing big city clubs) in the process.

There’s nothing new about governments mucking things up when it comes to regulating alcohol. Booze is a hard beast to pin down in legislative terms. The law is more familiar with the black and white approach of determining when and how people drink alcohol, even though to explore the issue of why they drink as much as they do might lead to more effective solutions. And, as study after study from Canberra to Washington to Glasgow has found, for the law to regulate the consumption of alcohol in any effective manner, restrictions on its availability would have to be so severe that, according to a 1984 Scottish report, ‘No elected government could contemplate the proposition.’

It hasn’t stopped them trying though. The deplorable drinking habits to which Judge Fraser was referring on his return from his junket in the Northern Hemisphere were mostly directed towards the notorious six o’clock swill, the practice described by the Sun News Pictorial in the late 1950s as a ‘daily demonstration of piggery … that no other country in the world can match’. The spectacle of hoards of men mobbing the public bars of hotels every night after work for an hour-long speed-drinking session, downing as many beers as possible before time was called and they all staggered out onto the streets to head home, three sheets to the wind, was undoubtedly unique. It’s also a great example of how wrong governments trying to deal with the availability and consumption of alcohol can get it, despite the best and most virtuous of intentions.

The six o’clock swill had come about as a supposedly temporary measure during the early years of the First World War. The temperance movement was particularly influential in Victoria at the time, having been instrumental in changes to the licensing laws that had resulted in more than 1000 hotels closing their doors between 1907 and 1916. With the coming of war, the movement’s oft-repeated mantra that alcohol was responsible for most crime, overflowing jails, lunacy, infidelity, economic malaise and the general undermining of culture took on extra gravitas and tapped into a general hardening of attitudes towards excessive alcohol consumption in the wider community.

At this time, pubs were the only places in Victoria where you could get a drink without a meal and they were able to trade from 6.00 a.m. to 11.30 p.m. When Australia entered the Great War, concerns were raised about the ability of young men to contribute fully to the defeat of the Kaiser if they were out carousing in pubs until late every night. And so in 1916, with the idea that a ‘well-ordered, self-disciplined and morally upright home front was a precondition for the successful prosecution of the war’, the Victorian Government passed the Temporary Restriction Bill, reducing pub trading hours to between 9.00 a.m. and 9.00 p.m. A year later, the legislation was revisited and all pubs and licensed grocers were forced to cease trading at 6.00 p.m.

Despite the fact that it was this morally focused legislation that brought about the most visible example of deplorable drinking habits in the form of the swill, Victoria retained laws that were supposed to lift standards of hotels and society more broadly. From the time the first Victorian statute concerning alcohol was enacted in 1852 until the major overhaul of licensing laws in the late 1980s more than 100 liquor-related items were included on the statute books, tinkering with licence types and opening hours and regulating the number and type of licensed premises operating in the state.

Various government agencies such as the Licences Reduction Board and the Licensing Court were charged with administering the law, but the parameters drawn by six o’clock closing, for example, militated against the improvements sought, turning many pubs into cold, utilitarian spaces that best suited the demands of the swill. Adapting to the short, intense period of post-work drinking, many publicans extended their bars, tiling almost every surface so that they could be simply hosed down after the pushing, shoving, beer-slopping crowds had departed. Beer taps were replaced by beer spigots attached to long hoses so that the bartenders could reach and fill more beer glasses in the quickest amount of time. In some instances, hotels with a series of small bars, billiard rooms and ladies’ lounges knocked out walls, minimised furniture and generally removed any impediments to their mostly male clientele getting as much beer into them in the shortest time. It was probably not the scene the temperance movement and sympathetic legislators had in mind when they imposed early closing by law.

For a supposedly ‘temporary’ measure, the legislation hung around for a long time. Whereas similar legislation in Tasmania and New South Wales was abandoned in 1937 and 1955 respectively, Victoria retained its early closing hours until 1966, despite a number of referendums being held over the issue, including an attempt in 1956 to have the early closing hours relaxed before the world came visiting with the Melbourne Olympic Games. That referendum was defeated by 300,000 votes. By 1960, however, when Judge Fraser was looking askance at the ‘childish’ idea of ‘people keeping their eyes on the clock as part of the process of drinking’, attitudes in Melbourne towards the availability of alcohol and the venues in which it could be consumed were changing.

There were a number of reasons for the change of heart. Mass migration in the 1950s, particularly from southern Europe, had seen many of Melbourne’s working-class suburbs in the inner city take on a noticeable Italian and Greek flavour. Espresso bars such as the iconic Pellegrini’s (opened in 1954) became all the rage among the young and the smart and people started seeking alternatives for eating and drinking in public beyond the fairly rigid pub–restaurant dichotomy that the law prescribed. Some of the Italian coffee bars, particularly in Carlton, North Melbourne and St Kilda, gained extra allure with the poorly kept secret that they might illegally serve their customers red wine, poured into coffee cups or Coke bottles. For many Melburnians at the time, drinking wine in a café seemed like an impossibly glamorous, Continental thing to do.

Another influence was the thousands of overseas sporting folk and visitors who descended on the city for the 1956 Olympic Games. For the first time, locals were able to see themselves and their city from the point of view of an influx of outsiders, a situation that saw such practices as the swill being placed in a thoroughly unflattering light, while the rise of café life in the Little Italy of Carlton was increasingly admired, praised in the Age in 1960 as a ‘true reflection of the changing life of our old city’.

The Games also brought many overseas chefs to Melbourne. The Olympic organising committee brought in 160 of them because there were simply not enough chefs in Melbourne to cope with the influx of visitors. Others arrived attached to various national teams. Not all of them stayed but many did (including Hermann Schneider, who later opened the much lauded Two Faces restaurant, and Giorgio Angele, a pastry chef attached to the Italian Olympic team whose family now owns Brunetti’s), and these people made a significant impact on the style and the food in Melbourne restaurants.

Perhaps the most significant influence on the changing attitudes, though, was the growing post-war affluence. More money was available for restaurant meals, cappuccinos and exotic new ingredients such as extra virgin olive oil, avocados and Parmesan cheese, and more people were travelling overseas, returning, like Judge Fraser, waxing lyrical about Continental drinkers ‘adopting a leisurely attitude, frequently sitting in restaurants … or at side street tables for periods of an hour or more, during which time they appeared … to be consuming their liquor with or without food or either reading, talking or perhaps merely listening to music’. People were suddenly wondering why they couldn’t have that kind of life in Melbourne.

Drinking habits were changing too, with beer consumption falling and wine drinking on the up, particularly of dry table-wine, sales of which exceeded the sweeter, fortified variety for the first time in 1971. Vineyards and wineries were springing up in the Mornington Peninsula, the Yarra Valley and the Goulburn Valley and, in Melbourne, a new generation of chefs and restaurateurs—Stephanie Alexander, Mietta O’Donnell and Gilbert Lau among them—were opening businesses, trying to push some boundaries and becoming increasingly frustrated with the restrictions that prevented them obtaining a licence to serve alcohol.

By the 1980s, this frustration reached breaking point. Victoria’s licensing laws had been subject to so many reviews and amendments, commissions and committees over the years that they had become a tangle of rules and regulations that included twenty-nine licence categories and a further thirty-six permit categories. Anyone applying for a licence had to front the Licensing Court, a quasi-judicial body that not only could consider a person’s business credentials but could also deny someone a licence if it didn’t approve of the carpet, the wine list or the position of the toilets. The court once spent a whole day in the 1960s debating whether a pizza constituted a bona-fide meal.

It was a system that had also entrenched the monopoly of the hotels as pretty much the only places in the state where you could have a drink without being legally obliged to partake of ‘substantial refreshments’. The powerful local chapter of the Australian Hotels Association, out to protect its interests and investments, had an unofficial policy that if a permit for a restaurant licence was lodged in a particular area then all the hoteliers in that area were expected to lodge an objection. Mostly they were successful.

If you cast an eye over Victoria’s hospitality scene today, the one with small bars tucked into every conceivable nook and cranny, with businesses such as hairdressers, book stores and nurseries able to legally sell alcohol, with restaurants that operate like bars, wineries with cellar doors and restaurants and with cafés able to sell wine in-house and to take home, it can be hard to remember just how different the landscape was, even in the mid 1980s. The memory has become blurred in recent times, not just because it has become easy to take this relaxed, flexible approach to public eating and drinking for granted, but also because of a return to a prohibition-based approach to dealing with licensing in Victoria in recent years that has already taken some of the wind from the sails of the most creative and interesting sections of the hospitality industry.

While it can be argued that the hotel and restaurant industry, just like many others, is at the mercy of the market, the circumstances that brought about Melbourne’s unique and often idiosyncratic take on drinking and eating were highly particular. It would be difficult, if not impossible, to repeat them, which, in an ideal world, would see responses to problems take on a more imaginative cast than the clumsy one-size-fits-all approach of recent times.

In 1982, the newly elected Cain Labor government, the first Labor government in Victoria for twenty-seven years, brought a zeal for reform typical of parties that have been out of power for some time. In the early days of the government, reviews into the introduction of poker machines and a casino both returned a negative verdict, giving the government the slight hint of wowserism (not helped by John Cain rarely touching alcohol). This might have added extra impetus for a positive assessment in a proposed review of drinking laws but there was already real will in the government to do something positive about the state’s licensing laws both because it wanted to break the hotels’ monopoly and because sections of the media were making increasingly strident noises about the need for change.

In 1984, a review of the Liquor Control Act 1968 was announced and, for the first time in the long history of Victoria’s liquor laws being reviewed and reported on, the man appointed to head this one, Dr John Nieuwenhuysen, was not involved in the industry in any way at all. Nieuwenhuysen, a South African–born reader in economics at Melbourne University, had in a previous inquiry into the state tax system demonstrated a talent for untangling complicated legislative knots. For the Cain government looking to push its reform agenda, he was the ideal man for the job.

The Nieuwenhuysen Review, an 800-plus page, two-volume document, was handed to the government in 1986. Of the 184 recommendations in the report, the government accepted 167, so in 1988 Victoria’s licensing laws went from being the most restrictive in the country to the most liberal. There was now a deregulated industry with six licence types to replace the previous twenty-nine, the opportunity for restaurants to sell alcohol without meals and for hotels to be free of the obligation to provide both food and accommodation. The review championed the cause of small European-style bars and the ability of the market, rather than the government, to determine the style and location in which people could drink a glass of wine.

While the report’s recommendations were accompanied by much fearmongering about Melbourne drowning in a sea of unregulated alcohol, alcohol consumption remained stable and Melbourne during the 1990s saw a whole raft of new operators—Donlevy Fitzpatrick, Ronnie Di Stasio, Maurice Terzini, Con Christopoulos among them—taking advantage of the new flexibility and adapting Melbourne’s already flourishing food culture to the city’s laneways and shadowy, often neglected spaces. Restaurants became places where you could prop at the bar for a quick drink, cafés places where you could wash down a bowl of spaghetti with a beer. ‘Flexible’ and ‘casual’ became the buzzwords.

A confluence of circumstances in the first half of the 1990s put the final touches to what was to become recognised as a particularly Melburnian style of drinking and eating. The recession of the early 1990s had hit Victoria with particular force and the CBD was awash with vacant commercial space. At the same time, the Melbourne City Council had embarked on a program aimed at bringing life back into the city. This included encouraging young people, through grants and streamlined permit applications, to start up businesses in these vacant spaces, many of which were small, tucked away and ideal for the kind of business model that didn’t need passing trade and a visual presence to keep it afloat. Finally, amendments to the Liquor Control Act by the Kennett government in 1994, ostensibly changes to allow Crown Casino’s many bars to operate without having to serve food, came into being in the form of a General Licence Class B. The right to set up a bar without the need to install a kitchen led to the Melbourne-style bar and all the permutations and combinations of that model that have spread across the city.

There’s little doubt, given the numbers of people eating out every day in Melbourne and the staggering amount of writing—from blogs and websites to newspapers, guidebooks and magazines—dedicated to Melbourne’s food and bar scenes that this flexible model has gained widespread acceptance and popularity. It’s become an integral a part of the fabric of life that makes Melbourne such an appealing city. But as robust as the dining scene may appear, it is not indestructible, which makes the government’s approach to controlling alcohol abuse something of a concern.

Despite the lessons of the past in how not to achieve what you set out to do, a prohibition-based approach to containing the consumption of alcohol has come back into fashion. More than likely it’s all about being seen to be doing something, but the Brumby government’s approach to the most recent spate of alcohol fuelled violence brings to mind the story of the king, the mice and the cheese: The king’s advisers bring in cats to deal with mice that are eating the king’s cheese. Dogs are then brought into deal with the cats and on it goes to lions and then elephants before it all comes back to the mice again, albeit with a negotiated settlement between them and the king.

So appears to have been the approach taken by the former director of Liquor Licensing, Sue Maclellan, in the five years she held the post. Needing to do something to address the rates of assault in Melbourne city streets that statistics showed rising at an alarming rate since 2000, the government took the advice of Liquor Licensing and went with the prohibition line—increasing restrictions on the times and places where people would be able to consume alcohol, the same principle that was behind the dubious spectacle of the six o’clock swill.

Most worrying is the lack of differentiation between the small Euro-style success stories imagined by the author of the Nieuwenhuysen Report and the familiar trouble spots, usually large-scale, late-night venues that recall the notorious beer barns of the 1970s that were one reason the laws were overhauled in the eighties. A blanket approach to all businesses possessing a licence to serve alcohol ignores the diversity of these businesses and results in casualties, including, in this case, the credibility of Liquor Licensing.

In June 2008 a trial of the 2.00 a.m. lockout was instigated, based on its success in reducing violence in places such as Ballarat and Newcastle, provincial cities with very little in common with the much larger and diverse Melbourne. Rushed into place with virtually no consultation with the industry, the trial quickly fell apart as 120 of the venues to which the lockout applied were granted exemptions and a sizeable number of the non-exempted businesses threatened collective action over restraint of trade.

Then there was the increased surveillance of licensed premises. Some of these inspections, like one in 2009 on St Kilda’s Melbourne Wine Room that forced the restaurant’s immediate (albeit temporary) closure in the middle of Saturday night dinner over some red tape the owners had neglected to untangle, seemed, if not outside the law, heavy-handed and adversarial. The approach also seemed to hark back to the 1950s and 1960s when restaurants posted lookouts or provided large vases on the table so that patrons could dump their wine into them should the licence inspectors come a-calling, on the prowl for restaurant customers still drinking wine after eight o’clock.

Add the suspension in the granting of any new licenses trading beyond 1.00 a.m. and the unofficial but often mentioned go-slow in processing of new licenses and it would seem that the director of Liquor Licensing had decided to tackle the perennial problem of young men drinking too much by incrementally starving Melbourne’s renowned bar and restaurant scene of alcohol.

But there was more to come. The Liquor Control Reform Amendment (Licensing) Act 2009 changed the way licensing fees were structured, based on the perceived risk venues posed. The more people you wanted, the later you applied to open (a maximum of 1.00 a.m. these days, unless you already had an existing late-night licence) the more money you’d be charged. But the one-size-fits-all approach undermined the viability of smaller businesses.

The Gertrude Street Enoteca is the kind of business that Melbourne is renowned for and is often featured in articles about the city’s food scene. It’s also the sort of business that has been slugged financially by the recent changes to the law. The café-bar-bottle shop that serves a small menu of good quality food opened in then not-quite-fashionable Gertrude Street in 2005 with a General Licence that permitted it to trade until 1.00 a.m. It’s an intimate venue in a small shopfront that seats twenty to thirty people but because it wants to trade beyond 11.00 p.m., the licence fee has risen from $795 per annum (up from around $500 when it first opened) to $2385. This is the same amount a venue seating up to 200 people would pay, the ‘risk assessment fee’ being solely determined on how late a venue chooses to trade.

It’s this lack of differentiation that has also caused the government so much grief in relation to Melbourne’s live music scene. There have been security obligations (crowd controllers and CCTV cameras) for numerous late-night venues across Melbourne since the late 1990s, but it was the application in 2009 of these obligations (two security staff for the first hundred patrons and an extra one for every hundred after that) all venues where ‘live or amplified music other than background music is provided’ that caused the problem. By automatically linking live music with high-risk behaviour, the licensing authorities suddenly drew every venue—be it a Greek taverna with a couple of traditional instrumentalists, a tiny shopfront bar in Northcote with a penchant for folk music, a long-standing rock venue like Collingwood’s The Tote or a large and troublesome King Street blood house—into the same net.

As Dr Shane Homan, Senior Lecturer in Media and Communications at Monash University, writes in a recent article:

In one sense, the (lack of) process in the implementation of the 2am lockout was being repeated. Both shared key processual features: the lack of evidence-based research undertaken to establish amenity and risk problems; the lack of nuanced detail about the history, scope and forms of activity; and the imposition of a blanket approach that bludgeoned premises that were not the sources of the problem.1

The most visible bludgeoning happened to The Tote, which famously closed its doors in January 2010 with licensee Bruce Milne attributing the closure to the increased costs associated with the new regulations. The Tote, an iconic Melbourne rock institution of thirty years’ standing, was included in the high-risk category simply because of the nature of its business and despite having no history of any alcohol-related violence—which the local police acknowledged.

The highly publicised protest outside The Tote shortly after its closure was announced and then the SLAM (Save Live Australian Music) rally in the centre of Melbourne a month later, which attracted an estimated 20,000 protestors, surprised the state government and warmed the hearts of the many Melburnians who are proud and protective of the city’s diversity. The day before the rally was held a Live Music Accord was signed by various members of the government and the live music industry, a hasty move that enabled Premier John Brumby to somewhat laughably claim the SLAM rally to be a celebration of live music rather than a condemnation of his government’s heavy-handed approach to licensing. The accord purports to uncouple the automatic association of live music and violence but at this stage it remains a document of promises and recommendations rather than a commitment to change.

In the meantime, Sue Maclellan has ended her five-year stint as director of Liquor Licensing and has been replaced by former Small Business Commissioner Mark Brennan. Developments so far—including the reopening of The Tote and Brennan’s claims that he’s more interested in ‘substance than technicalities’ and that ‘one size doesn’t fit all’—indicate the Liquor Licensing Board may be taking a less hard-line approach. Owners of Melbourne’s small bars and music venues are no doubt praying that there is no immediate outbreak of street violence, lest the government again feel the need to respond with further crackdowns.

Possibly the most infuriating thing for those operating trouble-free venues is that the government that has been making life increasingly difficult and expensive for them is the one that consistently uses Melbourne’s bar, restaurant and music culture to brand the city edgy and unique. Graffiti-laden laneways full of fashionably dressed urbanites flitting into obscure venues behind hidden doors seem to be as ubiquitous a feature in Victoria’s tourism campaigns as the sight of ecstatic footy crowds or trams sandwiched between Federation Square and Flinders Street station. But while members of the government might like what they see, they seem to lack understanding of how such a scene came to be or how to keep it functional. And all the while, many of the big late night venues that too often give rise to the current version of deplorable behaviour continue to pack ’em in no matter how many headlines and casualties they attract. Judge Fraser would not be pleased.


1. Shane Homan, ‘Governmental as Anything: Live Music and Law and Order in Melbourne’