Bills

Liquor Licensing (Miscellaneous) Amendment Bill

Introduction and First Reading

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General, Minister for Planning and Local Government) (16:58): Obtained leave and introduced a bill for an act to amend the Liquor Licensing Act 1997 and to make related amendments to the Gambling Administration Act 2019, the Gaming Machines Act 1992, the Local Nuisance and Litter Control Act 2016 and the South Australian Motor Sport Act 1984. Read a first time.

Second Reading

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General, Minister for Planning and Local Government) (16:59): I move:

That this bill be now read a second time.

I am pleased to introduce the Liquor Licensing (Miscellaneous) Amendment Bill 2021. This bill seeks to make a number of necessary amendments to the Liquor Licensing Act 1997 to continue to support the hospitality sector while ensuring that the interests and safety of the community are protected. It is essential that the Liquor Licensing Act 1997, which regulates the sale and supply of liquor, keeps up with industry trends and modern practices. However, an appropriate balance must be struck between reflecting emerging business models and ensuring that there are adequate safeguards in place to protect the community.

The COVID-19 pandemic has posed significant challenges for all of us, and we appreciate that the hospitality sector has been under remarkable strain as a result of the measures imposed to protect the community. From March last year, when the pandemic hit, the government acted swiftly and allowed liquor licence holders operating a community club, on premises licence, restaurant or residential licence to apply for a free, short-term temporary licence enabling them to sell a small amount of liquor along with a takeaway meal.

This has continued and has been a lifesaver for businesses that have had to shut down during lockdown. Purchases are currently limited to two bottles of wine or a bottle of wine and a six-pack of beer, cider or premixed spirits, and can be taken away only by the purchaser or delivered between the hours of 8am and 10pm. The bill seeks to make this temporary measure of limited quantities of takeaway alcohol with a meal permanent to ensure that the support for licensees and the hospitality industry under this model is maintained. This is in line with the approach being taken in other states.

A much-needed, enhanced regulatory framework for same-day alcohol deliveries is being introduced to ensure appropriate protections are in place in response to this emerging business model. Developments in technology, such as ordering alcohol via a phone app, and an increasing customer demand for fast and convenient online delivery services, have seen the continued growth of online alcohol sales and same-day delivery. This has been further exacerbated during the pandemic.

Amendments to this bill seek to address the heightened risk of minors or intoxicated people accessing same-day alcohol delivery and new requirements for training for same-day delivery providers and those delivering alcohol. The amendments capture the range of business models under which same-day alcohol deliveries are provided in South Australia and extend to employees and agents who undertake the deliveries. Importantly, the framework recognises that same-day delivery providers have certain obligations in relation to the people they engage to deliver alcohol as part of their business.

To protect the community from harms associated with liquor, the bill seeks to afford the commissioner the power to bar a person from a licensed premises or part of a licensed premises. The provisions are designed to expand the commissioner's ability to deal with alcohol-related harm issues and are consistent with similar existing provisions under the Gambling Administration Act 2019.

The proposed provisions would allow the commissioner to simultaneously bar the individual from multiple licensed premises via a single barring order or be restricted to just part of a licensed premises. This will allow voluntary or third-party welfare barring orders to be tailored and flexible, and not necessarily impact on a person's ability to continue to socialise and enjoy a drink whilst in the controlled environment of a licensed premises. This is particularly important in country or remote areas, where a person's main social interaction and sense of community may come from the local pub.

Expanding on these provisions, an additional new power is proposed with the support of the Liquor and Gambling Commissioner, South Australia Police, health agencies and community representatives to allow the commissioner to bar a person from purchasing takeaway alcohol from a licensed premises in specific regions. The intent of this provision is to help tackle issues such as are being experienced in and around areas such as Coober Pedy and Ceduna, where the purchase of takeaway alcohol is contributing to antisocial behaviour and significant alcohol-related harms in those communities.

An appropriate IT solution is being developed by the government to support these proposed new barring provisions, which will also significantly streamline the existing process for venues to record a barring order and notify the commissioner at the same time. It is also proposed to reinsert a previously deleted object of the act—that being, 'to encourage a competitive market for the supply of liquor'.

In the grant of an application for a liquor licence, the licensing authority is required to be satisfied that the grant would not be inconsistent with the objects of the Liquor Licensing Act. Prior to the 2019 amendments to the act, an application for a hotel licence or a retail liquor merchant licence was required to satisfy the licensing authority that the licence was necessary in order to provide for the needs of the public in that locality. This was known as the needs test.

This was removed in 2019, following a recommendation by former Supreme Court Justice Tim Anderson QC that its relevance had dissipated as a result of the abolition of the needs test on 19 November 2019. As a result of this recommendation, the needs test was replaced with a community impact assessment, which is applied to certain high-risk categories of licence applications. As part of this assessment, the applicant is required to demonstrate that the grant of a licence is in the community interest.

The ACCC has written to the commissioner and raised competition concerns in relation to the possibility of the new test making it easier for larger operators to expand further with the grant of new licences where they already have significant market presence. The ACCC has suggested that the assessment of an application should take into account the broader consumer interest of ensuring that consumers enjoy the benefits of a retail liquor market that is not dominated by a small number of large suppliers.

The reinsertion of the object of the act 'to encourage a competitive market for the supply of liquor' is intended to provide consumers greater freedom of choice, product and price for the purchase of alcohol, while ensuring that larger operators are not able to saturate the market driving out smaller independent competitors.

An amendment has also been included in the bill to allow South Australian liquor businesses to seek funding through crowd-sourced funding arrangements. Currently, the act is incompatible with the commonwealth crowd-sourced funding legislation, meaning that SA businesses cannot use this method of funding. Crowd-sourced funding is a form of fundraising that allows a company to access capital from a large number of investors. This amendment will provide greater funding opportunities for smaller independent businesses.

Currently, the act requires that a person must personally attend the office of Consumer and Business Services to inspect documents relating to an application for a liquor licence. The bill seeks to allow the commissioner the power to publish certain documents and material relevant to an application on the CBS website, such as a copy of the plan of the proposed premises. This is a necessary amendment, particularly highlighted by the COVID environment, as it removes the requirement for a person to physically attend the office of Consumer and Business Services to inspect an application for a liquor licence.

These amendments will ensure the commissioner can still exclude information considered to be information of a personal nature or considered commercial-in-confidence. While strengthening the harm minimisation measures, the bill also seeks to support industry by reducing red tape. Measures are proposed to assist community clubs by allowing them to sell takeaway liquor to their members and also to provide clubs with the ability to trade from 5am on ANZAC Day without the need to apply for a short-term licence to extend their trading hours.

The bill also contains a number of other administrative and technical amendments, the need for which has become apparent since the commencement of the Liquor Licensing (Liquor Review) Amendment Act 2017.

Finally, as a result of the recent implementation of the government's gambling reform package, a consequential amendment to the act is proposed to ensure consistency in relation to restrictions on the use of facial recognition technology in areas of licensed premises outside the gaming room and to ensure that such technology cannot be used in a manner that encourages or provides incentives to a person to consume alcohol or gamble.

Mr Anderson QC has undertaken comprehensive work in liquor and gambling reform under contract from a previous government and we thank him for that work. Sometimes, though, when new laws come into place, we identify some weaknesses in the application, so this is a remedy, together with ensuring that we contemporise the need for 2021 business models. Within the envelope of COVID, we have learned some lessons about how we might accommodate the matters that have had to be pivoted to be able to ensure that our hospitality industry survives and that our people are protected. I commend this bill to the house and seek leave to insert the explanation of clauses without reading it.

Leave granted.

EXPLANATION OF CLAUSES

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Liquor Licensing Act 1997

4—Amendment of section 3—Objects

An object of encouraging a competitive market for the supply of liquor is included.

5—Amendment of section 4—Interpretation

Various definitions are inserted and amended for the purposes of the measure.

6—Amendment of section 5—Resident on licensed premises

Existing section 5(2)(b) is deleted.

7—Amendment of section 6—Persons with authority in a trust or corporate entity

is removed from The list of situations in which a person will be considered to hold position of authority in a trust or corporate entity is amended so that only shareholders who own more than 5% of the shares in a proprietary body corporate are included.

8—Amendment of section 11—Disclosure of information

The disclosure of information relating to barring orders to the Commissioner of Police, licensees, responsible persons and security personnel is authorised.

9—Amendment of section 20—Representation

Certain technical amendments are made to this provision.

10—Amendment of section 25—Representation

Reference to 'counsel' is amended to 'a legal practitioner'.

11—Amendment of section 28AA—Intervention by Commissioner of Police

This amendment is technical.

12—Amendment of section 28A—Criminal intelligence

This amendment is technical.

13—Amendment of section 32—General and hotel licence

Specific reference to the licensing authority's power to include a condition on a general and hotel licence allowing the sale of liquor from a bottle shop area between 8 am and 10 pm for consumption off licensed premises is provided for.

14—Amendment of section 33—On premises licence

Specific reference to the licensing authority's power to include a condition on an on premises licence allowing—

the sale of liquor of the prescribed kind and not exceeding the prescribed quantities between 8 am and 10 pm for consumption off licensed premises with a meal is provided for; and

the sale of liquor of the prescribed kind and not exceeding the prescribed quantities at any time through direct sales transactions provided that the liquor is delivered between 8 am and 10 pm and with a meal provided by the licensee.

15—Amendment of section 34—Residential licence

Similar amendments to the on premises licence provision are made to this provision.

16—Amendment of section 35—Restaurant and catering licence

Similar amendments to the on premises licence provision are made to this provision.

17—Amendment of section 36—Club licence

Similar amendments to the on premises licence provision are made to this provision.

In addition, specific reference is made to the licensing authority's power to include a condition authorising a licensee to sell liquor on the licensed premises to a member of the club on any day over a continuous period authorised by the licensing authority (which must not exceed 13 hours) between 8 am and 10 pm for consumption off the licensed premises.

Other amendments relate to trading from 5am on ANZAC day. Another amendment is technical relating to bottle shops.

Further amendments relate to procedural matters concerning notices and notifications given under existing section 36(4).

18—Amendment of section 37—Small venue licence

Similar amendments to the on premises licence provision are made to this provision.

19—Amendment of section 39—Liquor production and sales licence

This amendment is consequential.

20—Amendment of section 40—Short term licence

Section 40(2) is amended to include the words 'or on a temporary basis for another purpose considered appropriate by the Commissioner'.

Another express ground for refusing a short term licence is included. Other amendments are consequential.

21—Amendment of section 41—Interstate direct sales licence

The provision relating to interstate direct sales licences (inserted by Liquor Licensing (Miscellaneous) Amendment Act 2019) is amended to allow for a discretion to refuse a licence if the trade to be authorised under the interstate direct sales licence would be better authorised under a licence of a class set out in section 31(2) (instead of the rule in existing section 41(2)(c)).

22—Amendment of section 42—Mandatory conditions

A right of review is included in section 42. Another amendment relates to the use of facial recognition technology.

23—Amendment of section 50A—Annual fees

Provision is made in relation to the annual fee for a licence granted part way through an annual fee period.

24—Amendment of section 50B—Notification of certain variations to licences

This amendment is technical.

25—Amendment of section 51—Form of applications

This amendment is technical.

26—Amendment of section 51A—Applications to be given to Commissioner of Police

An application for the removal of a licence is added to the list of applications to be given to the Commissioner of Police.

Another amendment is technical.

27—Amendment of section 52—Certain applications to be advertised

Various amendments are made in relation to the advertising of applications.

28—Amendment of section 52A—Confidentiality of certain documents and material relevant to application

Certain amendments are made relating to confidentiality of documents and material relevant to applications.

29—Insertion of section 52B

New section 52B is inserted:

52B—Information relating to applications may be published on a website

Provision is made in relation to publication of information relating to applications.

30—Amendment of section 53—Discretionary powers of licensing authority

An amendment is made to the discretionary powers of licensing authority.

31—Amendment of section 53A—Licensing authority to be satisfied that designated application is in community interest

This amendment is technical.

32—Amendment of section 55—Provisions governing whether person is fit and proper

Certain mandatory considerations are made discretionary. Another amendment removes related bodies corporate from the list of close associates.

33—Amendment of section 57—Requirements for premises

This amendment is technical.

34—Repeal of section 59A

The provision relating to paying a licence fee on grant of a licence is deleted.

35—Amendment of section 66—Suspension of licence

These amendments are technical and consequential.

36—Insertion of section 66A

New section 66A is inserted:

66A—Revocation of licence

A power to revoke licences is inserted.

37—Amendment of section 67—Surrender of licence

This amendment is technical.

38—Insertion of Part 4 Division 6A

A new Division 6 is inserted into Part 4:

Division 6A—Jointly held licences—removal of licensee

67A—Jointly held licences—removal of licensee

Provision is made in relation to the removal of a joint licence holder from the licence.

39—Repeal of Part 4 Division 9

Part 4 Division 9, which is not necessary due to section 43, is repealed.

40—Amendment of section 73—Devolution of licensee's rights

These amendments are technical.

41—Amendment of section 76—Commissioner of Police may make written submissions

This amendment is technical.

42—Amendment of section 77—General right to make written submissions

One amendment provides that written submissions in respect of an application that relate to a matter that is, or should be, dealt with or addressed under the law relating to planning or carrying out building work may not be made under section 77.

The other amendments are technical.

43—Amendment of section 78—Further written submissions

This amendment is technical.

44—Amendment of section 82—Variation of written submissions

This amendment is technical.

45—Amendment of section 97—Supervision and management of licensee's business

Certain technical amendments are made in relation to the supervision and management of a licensee's business.

46—Amendment of section 97A—Direction to complete training—designated persons

A director of a licensee is added to the list of designated persons.

47—Amendment of section 98—Approval of assumption of positions of authority in corporate or trust structures

This amendment is technical.

48—Amendment of section 99—Prohibition of profit sharing

The words '(but this paragraph does not prevent the members of a licensed club from benefiting as members of the club from the proceeds of the business conducted under the licence)' are deleted from section 99(1)(b) and moved into new subsection (1a) (which extends to shareholders owning less than 5% of the shares in a body corporate).

49—Substitution of section 104

Section 104 is substituted:

104—Liquor may be brought onto, and removed from, licensed premises in certain cases

The scope of section 104 is extended to all premises where consumption of liquor on the premises is authorised (currently, it applies to premises where consumption of liquor is authorised with or ancillary to a meal provided by the licensee. The section is also amended to provide for consumption of liquor brought onto public conveyances.

50—Amendment of heading to Part 6 Division 5

This amendment is consequential.

51—Amendment of section 105—Adult entertainment on licensed premises

The references to prescribed entertainment are amendment to refer to adult entertainment.

52—Amendment of section 106—Complaint about noise or behaviour emanating from licensed premises

The basis on which a complaint may be made is amended to cover noise or behaviour emanating from persons at licensed premises, or persons making their way to or from licensed premises or entertainment at licensed premised.

Another amendment deletes requirements relating to a 14 day period after service during which conciliation or hearing of a complaint cannot occur.

Other amendment delete certain mandatory considerations from section 106(6).

Another amendment includes a power to refer a complaint to another person or body. Other amendments are consequential.

53—Amendment of section 107—Minors not to be employed to serve liquor in licensed premises

Amendments are made to the limited exceptions relating to certain minors permitted on licensed premises.

54—Insertion of heading to Part 6 Division 7A Subdivision 1

This amendment is consequential.

55—Amendment of section 107A—Sale of liquor through direct sales transaction—general

These amendments are related to the insertion of Part 6 Division 7A Subdivision 2 (same day deliveries).

56—Insertion of Part 6 Division 7A Subdivision 2

New Part 6 Division 7A Subdivision 2 is inserted. The Subdivision regulates same day liquor deliveries (which are a type of direct sales transaction). The Subdivision imposes requirements relating to records, training and other matters relating to same day liquor deliveries.

Subdivision 2—Same day liquor deliveries

107B—Preliminary

107C—Liquor not to be supplied in certain areas

107D—Training relating to same day deliveries

107E—Self-exclusion agreements

107F—Same day delivery providers liable for acts of employees and agents

57—Amendment of section 109—Copy of licence etc to be available at licensed premises

Electronic display of licences is provided for.

58—Amendment of section 109A—Records of liquor transactions

A requirement relating to form of records is removed.

59—Amendment of section 111—Areas of licensed premises may be declared out of bounds to minors

Certain amendments are technical. Another amendment relates to the power for an authorised officer to require a minor to leave a part of licensed premises declared out of bounds.

60—Amendment of section 112—Minors not to enter or remain in certain licensed premises

These amendments are consequential and technical.

61—Repeal of section 113

Section 113 is repealed.

62—Amendment of section 113A—Requirements relating to notices

The offence from section 113 is relocated into this provision.

63—Amendment of section 115—Evidence of age may be required

This amendment is consequential.

64—Amendment of section 115A—Seizure of evidence of age document

This amendment is consequential.

65—Amendment of section 119A—Commissioner's power to deal with disciplinary matter by consent

Publication of an undertakings by the Commissioner is provided for.

66—Insertion of section 121A

New section 121A is inserted:

121A—Commissioner of Police to make available relevant information

Information held by the Commissioner of Police relevant to disciplinary action may be made available to the Commissioner.

67—Amendment of section 124A—Interpretation

These amendments are consequential on other amendments to Part 9 Division 3.

68—Insertion of Part 9 Division 3 Subdivision 1A

New Subdivision 1A is inserted. The Subdivision provides for the Commissioner to make barring orders on certain grounds.

Subdivision 1A—Commissioner barring orders

124B—Commissioner may make barring order on request

124C—Commissioner barring orders relating to consumption off premises

124C—Offences

124D—Evidence

69—Amendment of section 125—Licensee barring orders

A power for prescribed persons to require certain information is included. Another amendment changes '6 months' to '1 month' in section 125(6). Another amendment is technical.

70—Amendment of section 125A—Commissioner of Police barring orders

These amendments are consequential.

71—Amendment of section 125B—Police officer barring orders

These amendments are consequential.

72—Amendment of section 125C—Offences

These amendments are consequential.

73—Amendment of section 125D—Evidence

This amendment is consequential.

74—Insertion of section 125DA

New section 125DA is inserted:

125DA—Disclosure of information—police barring orders

The Commissioner of Police is authorised to disclose information relating to orders under the Subdivision to the Commissioner.

75—Amendment of section 126—Orders

These amendments are technical and consequential.

76—Amendment of section 127—Power to remove person who is barred

These amendments are technical and consequential.

77—Amendment of section 128—Review of orders

These amendments are consequential.

78—Amendment of section 128A—Reports on barring orders

One amendment changes '6 months' to '1 month' in section 128A(1)(a). Other amendments are consequential.

79—Amendment of section 136—Service

Section 136(2)(e) is amended to allow for licensee barring orders to be served by SMS.

Schedule 1—Related amendments

Part 1—Amendment of Gambling Administration Act 2019

This Part provides for amendments to the Gambling Administration Act 2019 related to the amendments to the Liquor Licensing Act 1997.

Part 2—Amendment of Gaming Machines Act 1992

This Part provides for amendments to the Gaming Machines Act 1992 related to the amendments to the Liquor Licensing Act 1997 (including amendments that make provisions of the Gaming Machines Act 1992 consistent with equivalent provisions in the Liquor Licensing Act 1997).

Part 3—Amendment of Local Nuisance and Litter Control Act 2016

This Part makes amendments to the Local Nuisance and Litter Control Act 2016 related to the amendments to section 106 of the Liquor Licensing Act 1997.

Part 4—Amendment of South Australian Motor Sport Act 1984

Section 27B is repealed.

Debate adjourned on motion of Hon. A. Piccolo.