LIQUOR LICENSING (PRODUCERS, RESPONSIBLE SERVICE AND OTHER MATTERS) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 14 October 2009. Page 4299.)

The Hon. I.F. EVANS (Davenport) (16:19): I indicate that I am the lead speaker on this matter. I suspect that it will not take the house long to deal with this bill. We are debating the Liquor Licensing (Producers, Responsible Service and Other Matters) Amendment Bill 2009, which deals with a series of issues generally relating to the wine industry and the restaurant/hotel industry under a number of different topics. I will deal with the topics rather than the clauses.

We will start with the producers, and we are talking essentially wine producers. The opposition has been advised that a Survey of the Holders of Producers Licences, conducted by the Liquor and Gambling Commission and the South Australian Wine Industry Association, identified various proposals to ensure that the licence keep pace with the growth of the wine industry. Changes in structure, grape supply, production practices and new business models (including capturing and catering to the tourism markets) needed to be considered in any licensing regime.

Currently, the Liquor Licensing Act 1997 allows the holder of a producer's licence to sell liquor (that is, their own product) and to sell or supply liquor for sampling. The bill provides for amendments to the act that will benefit the holders of a producer's licence by allowing liquor other than their own product be provided as a sample in comparative tastings and to be offered to consumers in a designated dining area. It will also enable a producer to provide a complete dining experience without the requirement to hold both a producer's licence and an additional licence to sell other types of liquor for special functions.

The bill provides that an amount of liquor of a particular kind will not be considered to be a sample if it exceeds the prescribed amount for that kind of liquor. Can I suggest that the regulations should say that a normal wine glass of Grange should be considered a free sample. The prescribed amount will be included in the regulations at a date following further consultation with the industry. Currently, a licence may relate only to one licensed premises or to one premises.

This bill provides that, in the case of a producer's licence, a licensee may have up to two licensed premises approved under a single licence. It is interesting as to why it is restricted to two. However, two is better than one, so two it is, and I will be questioning the minister about that issue in a second. The bill provides that they can have up to two licensed premises under the single licence: one of these at the licensed production premises and one elsewhere, for example, a nearby town.

If the licensee does not have a production premises or does not wish to have an outlet at the production premises, the licensee will be able to have only one licensed premises. In the case of a producer of wine with production premises in a wine region, the second outlet must be in that wine region. They are deregulating it to the point where you can have another outlet nearby in the region, but, for instance, if you are an Adelaide Hills winery you cannot have one in the Coonawarra because that is in a different wine district.

In the case of a producer of wine with a production premises in a wine region, the second outlet must be in that wine region. The region for a wine producer is determined by the wine regions defined in accordance with the Australian Wine and Brandy Corporation Act 1980. Currently, the act does not allow two or more licence holders to operate from the same premises. The amendments will allow the holder of a producer's licence to enter into an arrangement with other producers to participate in a collective outlet.

A collective outlet is the part of the licence where each of the producers can sell or supply their products. The area to be used for the collective outlet will be approved under individual producers' licences; and, to the extent that premises are shared, each participating licensee will be responsible for all compliance matters and the employment of a responsible person at the collective outlet. An additional licence will not be required for the collective outlet, thereby reducing the cost to business. It does not reduce the cost: it just does not impose an extra cost because, currently, you cannot have collective outlets, but that is a minor debating point. The point is: the government is trying to do this as simply as possible.

The number of producers permitted to form a collective will be determined by the licensing authority, and an application will not be approved if the number of licensees involved or the nature and extent of trade mean that it will be better authorised by the retail liquor merchant's licence or the licence of some other category. The establishment of a collective outlet is designed to enable producers to reduce administrative staffing and other overheads, and also to assist in the promotion of tourism in the various wine regions. So, the government is trying to develop a structure that allows producers to expand their retail outlets, whether individually or collectively, but not to such an extent that they become a quasi bottle shop and compete against the bottle shop industry, for want of a better word.

Currently, holders of a producer's licence cannot sell or provide samples of their product off the licensed premises unless they apply for a limited licence each time they wish to attend a local market or festival. The bill will allow producers with production premises to sell or sample their products at regional festivals and farmers' markets under the producer's licence. The details of the markets will be endorsed on the licence and, in the case of the wine, the approval will be limited to sites and events occurring within the same region as the producer's licensed premises. The licensing authority will have the power to impose conditions on the licence to ensure noise and disturbance issues are addressed.

It is not intended that large festivals such as the Schutzenfest, the Glendi and various food and wine festivals be included. My understanding is the reason behind that provision is that, if you go to something like the Glendi, the crowd is so big that there are special circumstances that need to be dealt with in the way that the product is going to be served, and I guess control becomes the issue in the very large festivals. However, my experience of the Schutzenfest at the Hahndorf Oval in my youth was that there was not always a lot of control during such festivals.

The bill provides the licensing authority with the power to exempt a producer from the requirement that a substantial proportion of blended wine is the licensee's own product in special circumstances beyond the control of the licensee (such as a failed crop or a fire). This will allow producers to continue to operate, reducing the financial and other impacts of the circumstances on wine production. Logically, if you have set up a business structure with overheads and a fire wipes out your crop, you obviously want to be able to keep trading, particularly in the retail area, so, allowing other people to bring in product, with the approval of the commissioner, to carry you over that time of difficulty makes a lot of sense to the opposition.

That deals mainly with the issues to do with producers. I should say that the opposition totally supports this bill, so there will not be any amendments from the opposition to the bill.

The second area I want to touch on is the use of codes of practice. The act currently provides for the Liquor and Gambling Commissioner to issue codes of practice that minimise the harmful and hazardous use of liquor and promote responsible attitudes in relation to the promotion, sale, supply and consumption of liquor. A code of practice effectively contains mandatory licence conditions. The bill provides for the scope of the codes to be broadened to allow a code to deal with any matter designed to promote compliance with the provisions and objects of the act, including:

requiring staff to undertake specified accredited training;

prohibiting advertising that is likely to result in liquor having a special appeal to minors (it would be interesting how that would go during Schoolies Week);

regulated schemes for the promotion of liquor on licensed premises;

preventing offensive behaviour on the licensed premises (including offensive behaviour by persons providing the entertainment);

measures designed to minimise offence and disturbance to residents;

protecting the safety, health or welfare of minors, customers and staff; and

ensuring public order and safety at events attended by large crowds.

So, through these codes the commissioner is going to have very broad powers to address what are, I guess, the public niggle points, if you like, or can become the niggle points, within the industry when things go wrong, as they sometimes do in this type of environment.

One of the more interesting areas of the bill relates to intoxicated persons. I am glad the member for Kavel is here to listen to this particular section of the act. The bill provides for the expansion of section 108, which relates to the sale and supply of liquor to 'intoxicated persons'. It is currently an offence for liquor to be sold or supplied to an intoxicated person. The offence is committed by the licensee or responsible person, the person by whom the liquor is sold or supplied.

The bill also makes it an offence to serve liquor to a person in circumstances in which the person's speech, balance, coordination or behaviour is noticeably impaired and it is reasonable to believe that the impairment is the result of the consumption of liquor. As the opposition has been briefed, the current—

Mr Goldsworthy interjecting:

The Hon. I.F. EVANS: The member for Kavel says that is just his normal behaviour. The defence rests. The member for Kavel will be pleased to know that the current defences will apply. It is a defence for the bar staff if the defendant believed, on reasonable grounds, that the person to whom the liquor was supplied was not intoxicated, and for licensees and responsible persons, if the defendant exercised proper care to prevent the sale or supply of liquor in contravention of this provision.

The amendments will bring the provision more into line with the approach in other jurisdictions—I think there are three or four other states with this particular model—and are designed to make it easier for licensees, bar staff and those enforcing the act to make an assessment of a person in those terms.

I will make some comments on this provision. I know the intent of the provision is to make it easier. I am not convinced that, in practice, it will actually end up that way, and I suspect that we might be back here in a few years' time talking about this particular provision again.

The issue that comes to my mind—and this is not the Liberal Party's position, it is just a matter for consideration for parliaments of the future—is that given the continuing increase in drug use within the community and the, I think, recognised problem of drug use in licensed premises generally, the question then comes: how does the person selling the liquor know whether someone is intoxicated, which I assume means through the use of alcohol, or simply off their face on some other drug?

So, is my speech slurred because I am on ice, heroin, amphetamines, or whatever, or is it slurred because I have had one too many Bundies? Somehow the salesperson has to make that distinction, because the salesperson has no capacity to address the issue of people's behaviour, as in the stopping of service in relation to people's behaviour for drug use. We are only doing it for people who are intoxicated through alcohol. Of course, when alcohol and drugs are mixed you quite often get indifferent human behaviour.

I did give some consideration to moving an amendment so that 'intoxication' had a broader definition than just intoxication by alcohol. I consulted the Hotels Association and spoke it through with Ian Horne of that association, and that association is of the view that at this point no other jurisdiction has moved, from memory, to that point, and that we should let these new laws run for a few years and see what the impact is at the bar level, the service level, because in the Hotels Association's view it might become even more difficult for the responsible person, or the bar staff, to actually get involved in that judgment.

In fairness to the industry, I have not proposed any amendments in relation to that principle, but I think the parliament will be back here within three or four years addressing that very principle. Elsewhere in this bill there are provisions that will stop licensed premises from operating and having entertainment outside of their licensing hours, because there are so many people dancing and drinking lots of water. They might be taking other things, but no alcohol is being served; they are just dancing all night and drinking lots of water and taking, I suspect, other vitamins to carry them through the night.

In this bill we are introducing provisions that prevent that from happening, so a licensed premise cannot provide entertainment outside of their hours of licensing, but, of course, anyone can, I assume, do that in their private capacity in other venues. The point I am making is this: the bill recognises that there is a high level of drug use in the party culture. We are trying to address it in licensed premises by restricting that activity, but we are not addressing it in the service of alcohol to people who are affected by drugs. I am saying that we will be back here dealing with that sooner than we think, because the level of drug use is high and increasing.

The act provides powers to refuse entry to or remove a person from a licensed premise if—and the member for Kavel needs to listen to this one—the person is intoxicated or behaving in an offensive or disorderly manner. The bill provides an additional power to remove the person if it is reasonable to suspect having supplied liquor or about to supply liquor to an intoxicated person or to a person in the circumstances where that person's speech, balance, coordination or behaviour is noticeably impaired and has reason to believe the impairments involve the consumption of liquor; so, you cannot provide liquor to your drunk mate.

Currently, there is no provision in the act that enables the minister to ban certain liquor products that appeal to minors in the way they are packaged, for example, alcoholic milk, which was around at one stage. In fact, I see there are some products still on the market—moo juice or alcoholic ice blocks and icy poles. They have been banned in other jurisdictions because of the potential for them to be confused with the products that traditionally have been consumed by minors such as flavoured milk and traditional ice blocks.

The bill gives the Minister for Consumer Affairs the power to prohibit the manufacture, sale and supply of undesirable liquor products in South Australia if satisfied that, because of its name, design or packaging, the liquor is likely to have a special appeal to minors or be confused with confectionery or non-alcoholic beverage. A ban can be brought into effect quickly by means of a gazette notice. Such a ban expires after a maximum of 42 days. Before any permanent ban is brought into effect by means of regulation, a consultation process must be undertaken and the manufacturer, distributor or importer given an opportunity to show cause why the product should not be prohibited.

Ministerial power to ban undesirable liquor products operates in the interstate jurisdictions of New South Wales, Queensland and Western Australia. The bill provides for expiation notices of certain offences. Expiation notices will be issued only for offences which are clear cut and of a less serious nature where the breach is clearly defined in law and the facts reasonably verify the evidence is noncontroversial, as they always are with expiation notices.

As minor offences will be diverted from the court system, this proposal will result in a reduction in the time and cost involved for the offender, the police, the office for liquor and gambling and the courts. The bill provides for expiation notices that range from $116 to $1,200. Currently, section 104 of the act permits a person who has brought liquor onto the premises for consumption with a meal provided by the licensee to take the unconsumed portion home from licensed premises. The bill will extend this concept in order to enable a person to remove from the licensed premises a partially consumed bottle of wine purchased on the premises.

The Hon. J.M. Rankine interjecting:

The Hon. I.F. EVANS: No, that does not affect the member for Kavel, minister, because he always finishes his bottle of wine. That is unfair to the member for Kavel.

The bill makes it an offence for a licensee to provide entertainment unless the entertainment is provided while the licensed premises are open for sale or the supply of liquor—this is the provision I was talking about earlier—or unless the licensing authority has expressly allowed entertainment to occur at other times. This is designed to ensure that licensed premises cannot be used as entertainment venues at times that have not been taken into account in relation to disturbance and noise in the neighbourhood.

Finally, the bill makes some technical amendments designed to improve the administration of the act, including: empowering the licensing authority to release information held by the authority in whatever manner it considers appropriate in the exercise of its absolute discretion; empowering the licensing authority to seek further documentation as part of the application process; and amending the defence provisions in section 110 to restrict requests for the evidence of age to prescribed forms of identification.

That is a reasonable summary of the various clauses of the bill. The opposition is going to support the bill. We think it brings a simplification of the process for the wine industry and a good opportunity to promote their products. For those serving alcohol, hopefully it will provide some clarity as to who they should serve and when and what protection they are going to have. For those in the restaurant industry, it allows you basically to take your unfinished bottle of wine off premises. We think it is a collection of sensible reforms and the opposition supports it, but we might have a few questions in committee.

Mr BIGNELL (Mawson) (16:42): I rise briefly to add my support for this bill and to pass on some feedback from the people in the seat of Mawson who are involved in the wine industry. They are very appreciative of these changes. There is a lot of common sense being brought into this place that will make changes that are good for the wine industry and also good for individuals. As the member for Davenport pointed out, if you have a half empty bottle of wine that you have had over dinner, then it is common sense that you would be allowed to take that home with you rather than have to drink it all down and then run the risk of breaking the law and putting yourself and others in danger on the roads. I support the bill.

The Hon. J.M. RANKINE (Wright—Minister for Families and Communities, Minister for Northern Suburbs, Minister for Housing, Minister for Ageing, Minister for Disability) (16:43): I thank the opposition for its support for this legislation. It has been some considerable time coming. As the member for Davenport pointed out, there has been considerable consultation with all sectors of the industry and, by and large, we think that some very sensible proposals are encompassed in this legislation. I want to thank the member for Mawson for his brief contribution. I know how hard he works in his electorate promoting the wine industry. I am sure they are looking forward to the innovations in relation to the producer's licence. On that note, I thank everyone for their support.

Bill read a second time.

Committee Stage

In committee.

Clauses 1 to 33.

The Hon. I.F. EVANS: I just want to clarify how the collective licence will work. Is it possible for a producer to have second stand-alone premises in their wine region and be part of collective premises somewhere else?

The Hon. J.M. RANKINE: It has to be all within their wine region. They can have cellar-door premises at their place of production, and they can have a second outlet, either with other producers or on their own.

The Hon. I.F. EVANS: For ease of explanation, they cannot have 2½ premises: they cannot have a facility at their production outlet, a stand-alone facility of their own and then join in a collective in their own region. Why not? Given that it is restricted to 2½, if you like, under this model—not your model, but the model I am proposing—it would be restricted to two outlets plus a collective. The question is: what is wrong with that?

The Hon. J.M. RANKINE: The object was to allow people to have premises other than their production premises, give them two outlets but allow them to go into a collective if they could not afford to do a stand-alone. That was the reasoning.

The Hon. I.F. EVANS: I understand that, but I just question why we are restricting it to that level. Indeed, in relation to collectives, why are we restricting it to just their wine region? I live in the Adelaide Hills, so all the wineries in the Adelaide Hills can have a production facility, or a stand-alone facility, or they can go into a collective, so I am restricted to only Adelaide Hills wines. With the collective especially, why are we not allowing a cross-pollination through wine regions? Some of the wine regions are enormous in geographical distance; for example, the Coonawarra area is massive. I do not understand what the policy reason is—that, with a collective licence, you are not allowing them to take wine from outside their wine region, outside a disaster, such as fire.

The Hon. J.M. RANKINE: I guess it was a case of considering all the factors. It was about ensuring that we did not have quasi bottle outlets set up and that they did not turn into retailers; it was about giving producers the opportunity really to promote their region, their wines and their tourism without impinging on another region. Their products can still be sold in other regions through retail outlets, but we did not want the wineries turning into those retail outlets. My understanding is that this was really the preferred model that came through from the industry. In relation to the number of outlets, you could have two, 2½ or four. At some point, you have to draw a line, and this is changing substantially the way the industry is able to operate currently.

The Hon. I.F. EVANS: If a new hotel wants to open, there is a public interest test, and I think when a new bottle shop wants to open there is a public interest test. So, is there a public interest test for a winery that wants to open up in the town next door to the bottle shop and the pub? Does it have to go through exactly the same process in relation to opening up the facility?

The Hon. J.M. RANKINE: There is no public interest test in the first place, in getting the producer's licence, and this just expands what they can do under the producer's licence.

The Hon. I.F. EVANS: There are two pubs in Naracoorte, and they have gone through a process. Naracoorte is in the South-East wine region, where there would be a couple of hundred wineries. My understanding is that there is no limit on how much wine they can stock from that region, so you could knock up a fairly good outlet with a couple of hundred wineries. In small regional communities, what process protects the local pub or the local bottle shop from being opened up to competition from a totally different licensing and taxing regime liquor product?

The Hon. J.M. RANKINE: Those are all the issues we had to deal with in coming up with the content of this legislation, so that is why we are not having 2½, three, four or five outlets by the same producer. They are restricted to selling their own product; it may be a collective of people within the region, but they can sell only their own product. They are winemakers selling wine. They cannot sell, as I understand it, beer and other products that they have not produced, and it is subject to the commissioner's discretion.

The Hon. I.F. EVANS: If I could now move off producers and go to clause 24, which deals with the principle about liquor not being sold or supplied to intoxicated persons. I am just wondering what the feedback has been from the other states, particularly from the staff that actually sell, in relation to what reaction they get from people who are alleged to be intoxicated simply because they slur their speech or they have a balance or coordination problem. How much anger has gone back against the pub staff, and what has been the feedback interstate? When it is 3 o'clock in the morning and you say to some big six foot four rugby player or someone, 'You are not going to get your next Bundy because your speech is slurred,' what has been the experience interstate?

The Hon. J.M. RANKINE: It is the case currently that you are not supposed to serve someone who is intoxicated, so this clause is clarifying that for people. It is consistent with legislation that is operating in four states, as I understand it, and my advice is that there have not been any particular issues of concern that have been relayed to us in relation to that operation. People working in hotels and clubs currently do have that responsibility, but there has been some concern about what it actually means.

The Hon. I.F. EVANS: I am just wondering what provisions the commissioner is going to put in place in relation to obligating the hotel to deal with issues outside their premises when they remove an intoxicated person from their premises. For instance, at 3 o'clock on a Saturday night, the rugby team comes in for a big night out—I had better not pick on rugby. The rowers go in for a big night out and the bar staff say, 'I'm sorry, but we're removing you outside.' Is there any power for the commissioner to actually enforce onto the publican or the licence holder that they actually have to do something outside in relation to security? I know some hotels have security staff outside, but is there going to be a possibility of an obligated provision enforced on them by the commissioner or is that simply left to the hotel's discretion?

The Hon. J.M. RANKINE: My understanding is that it is currently often a condition of the licence that they are responsible for a particular area external to their hotel. Many hotels, when they operate late at night, have security staff, and I am sure you are aware of issues in hotels where it currently has been a problem. Certainly, there are issues that I have had to deal with out in my electorate in years gone by where that has been a problem.

The Hon. I.F. EVANS: In relation to clause 29, which deals with the power to refuse entry or remove intoxicated persons or persons guilty of offensive behaviour. This is the provision where the authorised person may, if necessary, use reasonable force to remove a person from the licensed premises if they think that that person has supplied or is about to supply liquor to another person on the licensed premises where the other person is intoxicated or the person's speech is affected. This is the mate buying his intoxicated mate a drink. Whose judgment is it as to whether that person is intoxicated? I buy the member for Kavel a drink; he is always uncoordinated, so—

Mr Bignell: He's a good cricketer.

The Hon. I.F. EVANS: He's a good cricketer.

The Hon. J.M. Rankine: You are so unkind. He's such a lovely fellow.

The Hon. I.F. EVANS: Without being unfair to the member for Kavel, what I am saying is that when I buy a drink for my mate and my mate is deemed to be intoxicated, is there a defence for me (who is about to be penalised) to say, 'Well, in my opinion, he's not intoxicated,' or is it only the opinion of the responsible person, and does the responsible person have to give a warning? Does the responsible person have to say, 'I'm sorry, Bill, if you are buying drinks for Fred, I think he is going to be over the limit. His speech is slurred. He can't have any more. If you serve him any more, you're out.' Does there have to be a warning or can it just be cold?

The Hon. J.M. RANKINE: We would hope that generally in most circumstances some common sense applies, but in the circumstance where you are buying the member for Kavel a drink and I have said to the member for Kavel, 'I'm not going to serve you any more,' you already know that he has not been served. That is generally the reason they would get a third person to come and buy a drink for them. There has usually already been refusal of service.

The Hon. I.F. EVANS: What happens if there hasn't been?

The Hon. J.M. RANKINE: Technically, you could still be asked to leave. This is about asking you to leave but, in the main, it is expected that it would be in a circumstance where refusal of alcohol has already occurred.

The Hon. I.F. EVANS: The commissioner has put licensing conditions on the licensee that they have to do something outside. I assume there is a section of the exterior area which may well be covered by the licence, so there is a line somewhere on the licence that says that the hotel has power over this area but not over an area outside the line. When they ask me to leave, what powers does the licensee have other than to ask me to move off the licensed premises? Isn't there an issue here in your big party centres like Hindley Street that you are simply getting intoxicated people out onto the street where they become vulnerable to attack because they are drunk, not coordinated and easy targets?

I guess what I am asking is: what reform is proposed to deal with the outside licensed premises issue, because it is all right to give the licensee an obligation to deal with the drunk person inside and on the licensed property, but if their only obligation is simply to move them off and then there is no system from there, all we have done is move the problem two metres down the road. What is the commissioner proposing in relation to dealing with that issue and is there a working party with the hotels association, or what strategy does the government have, because every weekend you hear in the media about problems in Hindley Street and, to a large extent, that is drunk people being shoved out onto the street where they are totally uncontrolled, and that is where the issues arise?

The Hon. J.M. RANKINE: I am told that the example that you use is not necessarily what is happening in Hindley Street; that is, in fact, often people are coming into Hindley Street who are already intoxicated and being refused entry. This is about ensuring that a third person does not continue to buy someone who is already intoxicated more alcohol.

Clauses passed.

Schedule and title passed.

Bill reported without amendment.

Third Reading

Bill read a third time and passed.