Summary Offences (Liquor Offences) Amendment Bill

Second Reading

The Hon. K.J. MAHER (Minister for Employment, Minister for Aboriginal Affairs and Reconciliation, Minister for Manufacturing and Innovation, Minister for Automotive Transformation, Minister for Science and Information Economy) (00:15): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation and explanation of clauses inserted in Hansard without my reading it.

Leave granted.

The unlawful sale of liquor and the supply of liquor in or around remote communities where the possession and consumption of liquor is generally prohibited, often leads to alcohol related harm including serious violence, disorder, anti-social behaviour and medical problems for those communities.

The Government is proposing a package of reforms to target the unlawful selling of liquor and various activities associated with the supply of liquor to further protect communities where the possession and consumption of liquor is generally prohibited (also known as dry communities).

The impacts of the harmful use of liquor in Aboriginal and Torres Strait Islander communities has been the subject of a number of reports and inquiries. As outlined in the House of Representatives Standing Committee on Indigenous Affairs, 'Alcohol, hurting people and harming communities: Inquiry into the harmful use of alcohol in Aboriginal and Torres Strait Islander communities' (2015), the Australian Human Rights Commission reports 'that up to 71.4 per cent of Aboriginal and Torres Strait Islander homicides involve alcohol at the time of the offence, compared with 24.7 per cent of non-Indigenous homicides' (at page 12). That inquiry also reports that 'Aboriginal and Torres Strait Islander women are vastly overrepresented as victims of alcohol fuelled-violence' (at page 12).

In South Australia legislation and initiatives have been implemented to reduce the incidence of alcohol related harm to Aboriginal communities. These initiatives and legislation include:

Licence restrictions

Conditions have been placed on the holders of high risk liquor licences under the Liquor Licensing Act 1997 ('the LL Act'). An example of one of those restrictions is a condition that the licensee will restrict the sale of wine in casks for consumption off licensed premises to one cask of not more than two litres capacity per person per day. Another example of a condition is that the licensee shall not sell or supply port or fortified wine for off-premises consumption.

Liquor Licensing Act 1997

The LL Act contains an offence provision for a person who sells liquor without a licence. The LL Act also enables police to serve orders barring a person from entering or remaining on specified licensed premises, licensed premises of a specified class, licensed premises of a specified class within a specified area, or all licensed premises within a specified area. The criteria for barring orders are proposed to be widened as part of the reforms in the Liquor Licensing (Liquor Review) Amendment Bill 2017 ('the Liquor Review Bill'), which is currently before Parliament. The criteria explicitly include factors such as the risk of alcohol abuse or misuse and domestic violence.

The Liquor Review Bill also includes a framework for liquor accords to enable interested parties (such as licensees, the local council, the Commissioner of Police, the Liquor and Gambling Commissioner and other persons/bodies prescribed by regulation) to agree on restrictions around the sale of liquor for the purpose of preventing or reducing alcohol related violence in a particular locality.

Legislation regulating Indigenous matters

There are also prohibitions in specific communities, such as under the Anangu Pitjantjatjara Yankunytjatjara Lands Rights Act 1981 ('the APY Lands Act') and the Aboriginal Lands Trust Act 2013 ('the ALT Act'). The APY Lands Act, as a result of by-laws gazetted on 18 June 1987, prohibits the possession and consumption of liquor on the lands (some exemptions exist). The ALT Act, through the regulations, prohibits the possession and consumption of liquor on Umoona Community and Yalata Reserve (some exemptions exist).

However, consultation with relevant agencies highlight that these measures are not doing enough to reduce the incidence of alcohol related harm.

The reforms in the Bill include:

Creating offences in the Summary Offences Act 1953 ('the SO Act') relating to possessing or transporting liquor for the purpose of sale as well as offences targeting those on whose behalf the liquor was possessed or transported and those expected to derive a benefit from the sale.

Creating an offence in the SO Act for a person that supplies liquor or, possesses or transports liquor with intention to supply it to a person in a dry community.

Providing a power in the SO Act in relation to the new offences for police to stop, search and detain vehicles (without suspicion) within certain areas determined by the Minister.

Creating an offence in the LL Act for a holder of a licence to sell liquor to a person reasonably believed (or ought to have reasonably believed) to be an unlicensed seller intending to sell the liquor and the unlicensed seller then sells that liquor.

Creating an offence in the LL Act for an occupier or person in charge of premises who knowingly permits the unlicensed sale of liquor on those premises.

Amending the Criminal Investigation (Covert Operations) Act 2009 so that serious criminal behaviour includes offences against section 29 of the LL Act (including the two new offences proposed) and the new offences in proposed sections 21OB and 21OC of the SO Act.

Amending the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 so that a 'forfeiture offence' includes the new offences in proposed sections 21OB(1) and 21OC(1) of the SO Act.

The Bill seeks to implement measures to assist in reducing the incidents of alcohol related harm to Aboriginal people in communities where the possession and consumption of liquor is already generally prohibited. The Government considers that these measures will assist in addressing alcohol related harm including serious violence, disorder, anti-social behaviour and medical problems for Aboriginal people within these communities.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Summary Offences Act 1953

4—Insertion of Part 3B

New Part 3B is proposed to be inserted:

Part 3B—Liquor etc

21OA—Interpretation

Definitions are inserted for the purposes of the Part. The definitions of liquor and sale are the same as in the Liquor Licensing Act 1997.

The other definitions relate to designated areas—certain offences and powers under the Part apply in designated areas—and prescribed areas.

21OB—Possession, transportation of liquor for sale

This section sets out an offence of possessing or transporting liquor for the purpose of sale (as defined). If such an offence is committed, liability is extended to—

a person (if any) on whose behalf liquor is possessed or transported; and

a person who would derive a direct or indirect pecuniary benefit from the sale of the liquor who knew, or ought reasonably to have known, that the first person was in possession of or transporting the liquor for the purpose of sale.

The offences in subsections (1) and (2) do not apply to the possession or transportation of liquor for the purpose of a sale that may lawfully be made.

A defence is provided for in relation to the offence set out in subsection (3).

An evidentiary provision provides that if, for an offence against subsection (1) or (2) it is proved that the amount of liquor possessed or transported exceeds the prescribed amount, it is presumed, in the absence of proof to the contrary, that the liquor was possessed or transported (as the case requires) for the purpose of sale.

21OC—Supply etc of liquor in certain areas

This section sets out an offence relating to the supply of liquor to a third person who is in a prescribed area. The offence extends to the transportation of liquor with the intention to supply, or believing that another person intends to supply, the liquor to the third person and to the possession of liquor with the intention to supply it to the third person.

An evidentiary provision provides that if, for an offence against the section, it is proved that a person possessed or transported liquor in a designated area, it is presumed, in the absence of proof to the contrary, that the person possessed or transported the liquor intending to supply it to a third person.

21OD—Designated areas

This section empowers the Minister (by notice published in the Gazette) to designate an area of land as a designated area for the purposes of the Part. A designated area cannot include land that is more than 100km from the boundary of a prescribed area. Notices published under this section must be tabled in Parliament and may be disallowed by either House of Parliament.

21OE—Power to search vehicles for liquor in designated areas

This section sets out powers for police to stop and search vehicles and seize property in relation to the proposed new offences set out in the Part. The section also allows for the destruction, disposal or forfeiture of any such seized property.

The powers relating to seizure under this section do not apply to a motor vehicle. Another part of the measure amends the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 to allow for the clamping, seizure, impounding and forfeiture of motor vehicles in accordance with that Act.

21OF—Analysis and evidence

This section allows for the appointment of analysts by the Commissioner of Police for the purpose of analysing the seized property (and for proof of such appointment in proceedings) and for the development of guidelines on the manner in which the seized material will be analysed and the records to be kept in relation to such analysis. The section goes on to provide for proof that a specified substance is liquor by evidentiary certificate of an analyst. A further evidentiary provision provides for a presumption that a label on a sealed container that states or indicates that it contains liquor is proof that the container contains liquor of the description and in the quantity and concentration stated on the label.

21OG—Regulations

This section allows for the regulations to disapply the Part or provisions of the Part in prescribed circumstances or to a specified class of persons or to provide for exemptions from the Part or provisions of the Part for classes of persons or activities.

Schedule 1—Related amendments

Part 1—Amendment of Criminal Investigation (Covert Operations) Act 2009

1—Amendment of section 3—Interpretation

Certain of the new offences provided for in the measure (being offences against section 29 of the Liquor Licensing Act 1997 and offences against section 21OB or 21OC of the Summary Offences Act 1953) are added to the definition of serious criminal behaviour.

Part 2—Amendment of Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007

2—Amendment of section 3—Interpretation

Certain of the new offences provided for in the measure (being offences against section 21OB(1) or 21OC(1) of the Summary Offences Act 1953 (defined as designated liquor offences)) are added to the definition of forfeiture offence for the purposes of clamping, impounding and forfeiture of motor vehicles.

Part 3—Amendment of Liquor Licensing Act 1997

3—Amendment of section 29—Requirement to hold licence

A new provision provides that an occupier or person in charge of premises on which liquor is sold in contravention of existing section 29(1) who knowingly permits the sale is guilty of an offence

In addition, if a prescribed person (which is defined) sells liquor to another person and the prescribed person reasonably believes, or ought reasonably to believe, that the other person intends to sell the liquor in contravention of existing section 29(1) and that other person then sells the liquor in contravention of subsection (1), the prescribed person is guilty of an offence.

Debate adjourned on motion of Hon. J.S.L. Dawkins.