Liquor Licensing (Miscellaneous) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 26 September 2019.)

The Hon. T.A. FRANKS (16:31): I rise very briefly to continue my remarks made previously in this place and to continue my speech on the Liquor Licensing (Miscellaneous) Amendment Bill 2019. I have raised already some questions on the practices of the Licensing Enforcement Branch on those premises which do enjoy a liquor licence. Additionally, I asked the government to provide some responses on a question relevant to clause 17, which section will enable the ability, where an annual fee is to be paid, for a change in the time frame with regard to the payment of that fee. If the government could provide some response as to why this change is necessary, that would be most appreciated, either at clause 1 or clause 17, depending on which way it would like to operate.

My further point of interest is at clause 14, which provides that the Liquor and Gambling Commissioner can refuse a name change for a licensed premises. The advice that we are told in the briefings to this bill that have been provided to the Attorney-General and her department indicates that currently there is no power to refuse a name change, and it is clear that there would be circumstances under which a name change should be refused; for example, if that proposed name was offensive.

In the other place it was raised as to whether examples could be provided. One example I will draw on that has been raised previously in this council would be that of the PiMP Pad, a gaming lounge for gamers to eat their nachos and drink their beer with other gamers, rather than in the privacy of their lounge rooms, isolated, but to share communally in premises that enjoyed a liquor licence.

The PiMP Pad was at one stage on Franklin Street and eventually, due to council protestations, was required to change its signage to become known as The Pad and to place its door down the back alley rather than on the frontage of Franklin Street. Not long after that it went out of business. It is now replaced by something called Crack Kitchen. I do not know if it has a liquor licence, but certainly the large signage on the front of Franklin Street is now 'Crack' in a quite large tiled black and white facia.

My question to the government is: could they please provide examples of where clause 14 has been found to be required by the commissioner to refuse naming or name changes of licensed premises? With those few words, I conclude my comments.

The Hon. J.A. DARLEY (16:34): My contribution on this bill will be very brief. I understand the outcome of this bill will be predominantly administrative, and I do not have much to say about this. However, I want to put on the record the inordinate increase in liquor licence fees that licence holders have experienced from last year to this. When we were considering the changes to the liquor licensing laws under the former government, we were told explicitly that, whilst there would be increases in fees, they would not be significant.

I have been contacted by licensees who are experiencing increases of 270 per cent from last year. This is not a cost that could have been anticipated and it is a significant impost to small businesses. I understand that this matter is not within the ambit of this bill, but nonetheless I want to take the opportunity to put this information on the record. The government really owes licensees and the community an explanation for why there has been such a dramatic increase in licence fees, especially when we were advised to the contrary.

The Hon. R.I. LUCAS (Treasurer) (16:36): I thank honourable members for their contributions to the second reading and look forward to the committee stage of the debate.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. T.A. FRANKS: I had several questions, not only today but in my previous contribution, that I put on record, and that I asked the government to provide answers to.

The Hon. R.I. LUCAS: I can share some information, if the honourable member wants to indicate whether that actually answers her question or not. If not, she obviously can ask further questions. I am advised that the bill makes an amendment to section 50A of the Liquor Licensing Act. This is the provision that relates to the obligation to pay annual fees and contains complex escalating sanctions for non-payment, including first suspension of the licence under section 50A(5) and then revocation under section 50A(5b).

When the remainder of the liquor review act commences on 18 November 2019, section 50A(5b) will have the effect that if a person does not comply with a default notice to pay an annual licence fee before the day it is due to be paid, the commissioner may revoke the licence. The bill will change that time frame to non-payment within 60 days of the service of a notice of suspension under section 50A(5a). This change is sought to ensure that any overdue and outstanding invoices are dealt with prior to the ensuing annual fee period, including the revocation of any licences.

The Hon. T.A. FRANKS: I commend the minister for being able to answer my questions from today so far, although we can deal with clause 14 at clause 14. However, I refer to my questions from 26 September with regard to the LEB covert operations, surveillance of licensed premises and the lawful reporting as required of those.

The Hon. R.I. LUCAS: In relation to the honourable member's question about the number of covert operations that have been undertaken over the last five years, the advice I am provided with is that that really has nothing to do with this particular bill. It may well be of interest to the honourable member. It may well be the subject of a question we might direct to the appropriate minister in question time or something, but it is actually not covered by this particular piece of legislation.

Similarly, with regard to the honourable member's question about how many times the LEB has used surveillance devices and how many times these have been reported under the appropriate acts, again, I am advised that this legislation does not cover those particular provisions from which those acts, if I can refer to it that way, may or may not have occurred. Again, if the honourable member has an interest, as obviously she does, in relation to those, they can be directed by way of question to the appropriate minister in question time or by way of correspondence with the appropriate minister, but my advice is that (a) I do not have the answers to those questions, on the basis that they do not relate to this particular bill.

The Hon. T.A. FRANKS: That is quite disappointing in terms of this bill is with regard to liquor licensing. The policing of liquor licensing, I would have thought, is quite appropriate to be considered as we consider reforms to licensing laws in this state. I will leave it for the moment. It would have been appreciated had the advisers in their response provided that information that they were not going to provide a response. It will be unusual, I would say, for questions relating to the general workings of legislation to be refused, as they are being today, but I will not hold up the debate for the moment.

However, I will echo my previous words made in September, that we are dealing here with a piece of liquor licensing legislation reform, but the policing of this legislation, I believe, has some serious questions to answer with regard to the very staff that are employed who have to abide by this act, and how SAPOL enforces the very laws that we are currently discussing.

If you do not want to wait until clause 14, let's have some of those titles of licensed premises that the commissioner has found unacceptable and that we need to change the law for today to rule out from potential licensees calling their bars or pubs or clubs or licensed cafes.

The Hon. R.I. LUCAS: My advice on this is that a previous bill this parliament supported, possibly in 2017, removed the requirement for licensees to apply to and seek approval from the commissioner for the names of their premises. Under the old arrangements you had to apply, therefore there was a capacity for the commissioner to refuse. Under a previous bill, which I presume we all supported—I cannot remember it—that approval was changed to just a notification, in the interests of reducing red tape. Someone would just notify the commissioner that they were changing their name, and so there was no approval process. That is the current situation.

The current situation is that you just notify; you do not need to seek the approval of the commissioner in relation to it. The previous bill that we passed has not come into operation yet; it has been delayed. But if it had, then the commissioner would not have had the authority to reject an application, which is what he used to have.

This bill seeks to reinstate the reserved power that the commissioner had to reject a particular application. Under the old arrangements, prior to about 2017 or whenever we approved this change, the commissioner had a power to reject. That bill, which we supported, removed it. That bill has not been enacted. We are now seeking to give the commissioner the power that he previously had to reject an application in, I assume, limited circumstances.

The Hon. T.A. FRANKS: What power of appeal do people have if their name application is rejected?

The Hon. R.I. LUCAS: We are not in a position to indicate at this stage. We will have to take on notice what appeal rights exist now, if any, and whether any appeal rights existed under the old arrangements pre-2017. I do not know the answer to either of those two questions. It may well be that if there are no appeal rights under this—that is, that the commissioner's decision is final—it may well have been under the old arrangements in 2017 that the commissioner's decision was final at that stage.

I am afraid we are not in a position to give the honourable member an answer. We can either take that on notice and have the Attorney-General write to the honourable member with an answer to that or, if this is an issue of some significance, we can delay the bill for a couple of weeks and not proceed with it. I am really in the hands of the honourable member as to what significance she places on this particular issue.

The Hon. T.A. FRANKS: The minister need not worry that I will hold the bill up for those purposes. I am concerned that the government does not understand its own legislation and cannot provide answers and examples for why it is necessary. It seems likely to me that there is no right of appeal should the commissioner decide to deny your name.

Going back to that previous example, the PiMP Pad was so-called because they also had a business called PiMP.tv, so PiMP Pad tied to their business of PiMP.tv. Once they had that word 'pimp', as in 'pimp my ride'—as in make your lounge, your pad, a bit more special—and once they lost the right to that particular branding it actually destroyed the linkage between their gaming online business. So at the stroke of a pen a commissioner can do quite significant damage to a business with what are arbitrary decisions seemingly lacking in appeal rights.

My further question is: while this will now apply when an application is made for a name change, can it be retrospectively applied? Can the commissioner suddenly realise or think that a name is unacceptable and require the licensee to change the name of their business?

The Hon. R.I. LUCAS: I am advised no.

Clause passed.

Clauses 2 to 11 passed.

Clause 12.

The Hon. K.J. MAHER: Clause 12 relates to the annual fee for a short-term licence. Can the minister give an example of what sort of things—businesses or events—this short-term licence will apply for, how long is the duration of short-term licences and examples of where short-term licences have been granted in the past?

The Hon. R.I. LUCAS: The first part of the question is that a short-term licence can be as short as a day or an event for a couple of hours, three or four hours or whatever it might happen to be.

The Hon. K.J. MAHER: And what is the maximum duration a short-term licence can be granted for?

The Hon. R.I. LUCAS: The sort of example, I am told, is what I would refer to as a mobile business (that is probably not the correct term), where they might be conducting events in people's backyards, bowling clubs, or whatever it is. They might actually get what is called an up to five-year short-term licence, which allows them to conduct occasional events in people's backyards, on weekends, in parks, or whatever it might happen to be. For each of those, they have to notify the commissioner, so there is a running tally or record kept of however many it is, and there is a judgement or discretion for the commissioner's staff to say, 'In the end, it may well be you're using this too many times to justify the five-year short-term licence. You might have to get a more permanent licence if that might be a more suitable form of licence.'

It is meant to be a flexible option in this day and age with mobile businesses, etc., to allow people—rather than every time they have an event in a park, someone's backyard, or wherever it might happen to be, to go along to get a separate licence each and every time. As I understand it, this is meant to cater for the new world in terms of people who have—and this is not the correct phrase—mobile businesses in terms of how they would run themselves.

The Hon. K.J. MAHER: Does it differ from a special events licence? Is this one where a person putting on one show in the grandstand of the West Adelaide Football Club gets a licence for that one particular event one time, or is this a different one in that it is expected to reoccur?

The Hon. R.I. LUCAS: I am told that under the current regime that would be called a limited licence; you would get a licence for that limited event. Under this new regime, you would get one of the short-term licences. You will get a short-term licence, which would be the equivalent of the old limited licence, which will allow you, the Labor Party, to have your one-off event at the West Adelaide Football Club, if you wanted to.

The Hon. K.J. MAHER: Under the old regime of the limited licence is there also a different category for an ongoing or recurrent event? Is this a direct replacement of the old one?

The Hon. R.I. LUCAS: I do not think there is, and that is why this argument for the short-term licence has been developed. That is, you would have had to get a limited licence for one event, and then you go back and get another limited licence, and get another one, and if you are actually running a business of doing these things in footy clubs, or weekends, parks, or people's backyards, or whatever it is, each time you did it you would have to get a limited licence.

The Hon. K.J. MAHER: For these sorts of licences under the old regime how were fees levied? That is, how was the level of the fee decided and what were the fees that were levied? If it was a two-day event was it a fee per day? How was the fee arrived at?

The Hon. R.I. LUCAS: I am told there were three fees: there was an application fee and then there was a daily fee, and if there was a high-risk event there was a high-risk event fee.

The Hon. K.J. MAHER: And what were those fees? I might explain. We have had representations that this could significantly increase the cost to people, particularly those who put on only one single event as a once only. Can we get some assurances that those costs for putting on that one single event will not increase as a result of this new regime?

The Hon. R.I. LUCAS: The simple answer is that it has not been decided yet; it is still subject to regulations in cabinet. The annual fees have been established, but the issue in relation to short-term fees has not been established. If there have been concerns expressed, it may well be concerns expressed but not knowing what the situation is. At this stage, I am advised that cabinet has not yet approved or seen what the recommendations are.

The Hon. K.J. MAHER: I guess the Treasurer, then, understands the nature of the concern that some people may hold that under a new regime we are being asked to pass a different way that these licences will be issued, the short-term licence rather than the limited licence in the past. People are concerned that it is a different sort of licence, although it may be used for the same purpose in some circumstances but not others, and have no assurance at all that they might not see fees for the old one-off dramatically increase. Maybe the Treasurer can advise if there is any intention to substantially increase those one-off fees.

The Hon. R.I. LUCAS: I am not the lawyer, the Leader of the Opposition is, but let me give him some legal advice. They are going to have to be set by regulations, so if the Leader of the Opposition and his party are unhappy with the level of fees set it is a disallowable instrument—if I can explain that to him—and he has the power to move for disallowance of the regulations if that were to be the case. Ultimately, my advice is that it will have to be done by regulation. In relation to what the intent is the answer is no, I have no idea. That level of detail in relation to—

The Hon. K.J. Maher: You are not aware of anything?

The Hon. R.I. LUCAS: No; the only thing I can say is that clearly we have increased the annual fees—

The Hon. K.J. Maher interjecting:

The Hon. R.I. LUCAS: Yes, whatever they are called—what are they called again, annual fees? We have increased the annual fees, and I think the Hon. Mr Darley raised the issue about the liquor licensing fees and concerns about the extent of the increase there. I cannot rule anything out because I do not know the answer in relation to that, but ultimately if it is by regulation then it will be disallowable.

Clause passed.

Remaining clauses (13 to 25), schedule and title passed.

Bill reported without amendment.

Third Reading

The Hon. R.I. LUCAS (Treasurer) (17:03): I move:

That this bill be now read a third time.

Bill read a third time and passed.