Judicial Intervention in Alcohol Regulation: An Empirical Legal Analysis

Abstract

Objective: While governments draft law and policy to promote public health, it is through cases put before the judiciary that the implementation of law can be challenged and where its practical implications are typically determined. In this paper, we examine the role of court judgements on efforts in Australia to regulate the harmful use of alcohol.

Methods: Australian case law (2010 to June 2015) involving the judicial review of administrative decisions relating to development applications or liquor licences for retail liquor outlets (bottle shops), hotels, pubs and clubs was identified using a case law database (WestLaw AU). Data were extracted and analysed using standard systematic review techniques.

Results: A total of 44 cases were included in the analysis. Of these, 90% involved appeals brought by industry actors against local or state government stakeholders seeking to reject applications for development applications and liquor licences. The proportion of judicial decisions resulting in outcomes in favour of industry was 77%.

Conclusions: Public health research evidence appeared to have little or no influence, as there is no requirement for legislation to consider public health benefit.

Implications for public health: A requirement that the impact on public health is considered in legislation will help to offset its strong pro-competition emphasis, which in turn has strongly influenced judicial decision making in this area.

Keywords: alcohol regulation, judiciary, public health

JEL Classification: K10, K30