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House of Assembly - Fifty-First Parliament, Third Session (51-3)
2009-10-14 Daily Xml
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LIQUOR LICENSING (PRODUCERS, RESPONSIBLE SERVICE AND OTHER MATTERS) AMENDMENT BILL

Second Reading

Second reading.

The Hon. J.M. RANKINE (Wright—Minister for Families and Communities, Minister for Northern Suburbs, Minister for Housing, Minister for Ageing, Minister for Disability) (16:24): I move:

That this bill be now read a second time.

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

Leave granted.

It is Government policy to promote a competitive business climate, responsible service and consumption of alcohol, and reduction in unnecessary red tape and cost for business within a framework of strong enforcement. The Liquor Licensing (Producers, Responsible Service and Other Matters) Amendment Bill 2009 is a reflection of that policy.

Producer's licence

A survey of the holders of producer's licences conducted by the Liquor and Gambling Commissioner and the SA Wine Industry Association identified various proposals to ensure that the licence keeps pace with the growth of the wine industry, changes in structure, grape supply, production practices and new business models including capturing and catering to tourist markets.

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 to be provided as a sample in comparative tastings, and to be offered to consumers in a designated dining area. This initiative will encourage further educational and innovative experiences to be developed at the cellar door. 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. This should reduce red tape and cost for business.

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'. The 'prescribed amount' will be included in the Regulations at a later date following consultation with industry.

Currently, a licence may only relate to one licensed premises. The 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, one at the licensee's production premises and one elsewhere, for example in a nearby town. If a licensee does not have a production premises or does not wish to have an outlet at the production premises, the licensee will only be able to have 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. 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 licensed premises where each of the producers can sell or supply their own products. The area to be used for the collective outlet will be approved under individual producer's licences and to the extent that premises are shared, each participating licensee would 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 cost to business. 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 the trade mean that it would be better authorised by the retail liquor merchant's licence or a 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 various wine regions.

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 their producer's licence. This will effectively extend the producers retail outlet to farmer's markets and will assist to optimise tourism. The details of the markets will be endorsed on the licence and, in the case of 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 of licence to ensure noise and disturbance issues are addressed.

It is not intended that large festivals such as the Schutzenfest, Glendi and various food and wine festivals be included because the nature and scale of these are such that it would be more appropriate to continue to cover them by limited licence. This will enable the licensing authority, SAPOL, local councils and organising committees to develop appropriate conditions to address noise, behaviour and safety issues.

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. This will allow producers to continue to operate, reducing the financial and other impacts of the circumstances on wine production. The amount of wine that can be purchased will be limited by the licensee's own production capacity. This does not in any way diminish the effect of laws applying to the labelling or marketing of wine.

The Bill amends and inserts various sections that are consequential to the amendments of section 39 and relate to the addition, removal or variation of a licensed premises on a producer's licence.

Previously producers had to obtain a special circumstances licence to conduct their business if the nature of their operations was not permitted under a producer's licence within the current Act. Transitional provisions are provided in the Bill to enable those producers to convert their licence to a producer's licence or satisfy the licensing authority that the licence could not appropriately be converted.

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 the liquor having a special appeal to minors;

regulating schemes for the promotion of liquor on licensed premises;

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

measures designed to minimise offence and disturbance to residents, protect the safety, health or welfare of minors, customers and staff; and

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

Sale and supply of liquor to intoxicated persons

The Bill provides for an 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, responsible person and 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. It is a defence for bar staff if the defendant believed on reasonable grounds that the impairment of the speech, balance, coordination or behaviour of the person to whom the liquor was sold or supplied was not the result of the consumption of liquor and it is a defence for licensees and responsible persons if the defendant exercised proper care to prevent the sale or supply of liquor in contravention of the provision. The amendments will bring the provision more into line with the approach in other jurisdictions 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.

The Act provides powers to refuse entry to or remove a person from licensed premises if the person is intoxicated or behaving in an offensive or disorderly manner. The Bill provides an additional power to remove persons who it is reasonable to suspect have supplied liquor, or are about to supply liquor to an intoxicated person or to a person in circumstances where that 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.

These amendments will encourage licensees and responsible persons to take a more proactive role in managing the sale and supply of liquor on licensed premises and were refined following comments made by the industry during recent consultation.

Prohibition of manufacture, sale or supply of certain liquor

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 such as Moo Joose and alcoholic ice blocks have been banned in other jurisdictions because of the potential for them to be confused with products that traditionally have been consumed by minors such as flavoured milk and 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 a non-alcoholic beverage. This further supports harm minimisation as the first object of the Act.

Except where an exemption under the Mutual Recognition (South Australia) Act 1993 is in force, a ban on the sale of a certain product will be enforceable for a period of 12 months.

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 regulations, a consultation process must be undertaken and the manufacturer, distributor or importer given the 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.

Expiation of certain offences

The Bill provides for the expiation of certain offences.

Expiation notices will only be issued for offences which are 'clear cut' and of a less serious nature where the breach is clearly defined in law, the facts are easily verified and the evidence is non controversial. The use of expiation notices to deal with these types of offences will enable enforcement in a quick, easy and inexpensive process without costly court action as is currently the case. As minor offences will be diverted from the court system, this proposal will result in a reduction in the time and costs involved for the offender, the Police, OLGC and the courts.

The Bill provides for expiations that range from $160 to $1200.

Removal of unfinished liquor from licensed premises

Currently, section 104 of the Act permits a person who has brought liquor onto licensed premises for consumption with a meal provided by the licensee, to take the unconsumed portion home from the licensed premises. The Bill will extend this concept in order to enable a patron to remove from the licensed premises a partially consumed bottle of wine purchased on the premises.

This will have a positive impact on the community as it will facilitate the responsible consumption of liquor on licensed premises.

Entertainment consent

The Bill makes it an offence for a licensee to provide entertainment unless the entertainment is provided while the licensed premises are open for the sale or supply of liquor 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.

Technical amendments

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 evidence of age to prescribed forms of identification.

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 Liquor Licensing Act 1997

4—Amendment of section 4—Interpretation

A definition of sample is added to enable the regulations to limit the quantity of liquor that may be sold or supplied as a sample.

5—Insertion of section 11A

New section 11A takes the place of current section 42(1). The Commissioner's codes of practice effectively impose mandatory licence conditions. Under the new section the codes will be subject to disallowance by resolution of either House of Parliament and must be approved by the Minister. The new section lists matters that may be the subject of codes but also allows a code to deal with any matter designed to promote compliance with the provisions and objects of the Act.

6—Amendment of section 39—Producer's licence

This clause makes some significant changes to the activities authorised by a producer's licence.

Currently a producer may have an outlet located either at the producer's production premises or with the approval of the licensing authority at some other location. The new provisions allow a producer to have an outlet at both a production premises (if the producer has one) and at another location. It also allows licensees to share premises as a retail outlet for each of the licensees or as a production outlet for 1 licensee and as a retail outlet for other licensees.

Currently a producer may, if the conditions of licence so provide, offer samples of the producer's product on a part of the licensed premises approved for the purposes by the licensing authority. Under the new provisions the producer will also be able to offer samples of other liquor of the same type as the licensee's product for the purposes of comparison.

Currently a producer may, if the conditions of licence so provide, sell the licensee's product in a dining or other approved area. Under the new provisions this is, in the case of the dining area, extended to any liquor.

Currently a producer may obtain a limited licence to sell product at a market or special event. Under the new provisions standard authorisations of this nature may be included in the producer's licence by way of a producer's event endorsement.

In order to facilitate the promotion of wine in a region, the new provisions require that second outlets and events authorised for a producer of wine with a production premises in a region be located in that region.

The new provisions also allow the licensing authority to temporarily authorise a producer of wine to produce wine other than wine comprised of, or including a substantial proportion of, wine fermented by or under the direction of the licensee or a related body corporate. This may be allowed where warranted by circumstances beyond the control of the licensee.

7—Amendment of section 42—Mandatory conditions

This clause is consequential on the insertion of new section 11A.

8—Amendment of section 45—Compliance with licence conditions

The section currently relies on the penalties set out in section 132. The amendment enables the regulations to specify breaches of licence conditions that will comprise expiable offences.

9—Amendment of section 48—Plurality of licences

This clause is consequential on the amendments to section 39.

10—Amendment of section 51—Form of application

The form of an application is already a matter for the Commissioner. The amendment expressly contemplates the Commissioner requiring an application to be accompanied by particular documents or material.

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

The amendment requires a notice advertising an application to specify where and when the application and associated material may be inspected.

12—Insertion of section 52A

The new section requires the Commissioner to make material associated with an application available for inspection to a person with a genuine interest except in circumstances described in subsection (2) requiring confidentiality.

13—Insertion of section 62A

The new section clarifies that application for removal of producer's licence in respect of one outlet to another is to be dealt with in the same way as an application for the removal of the licence to premises or proposed premises under the Division (even if the licence is not removed in respect of some other outlet).

14—Insertion of Part 4 Division 4A

This new Division contains new sections 62B and 62C. Section 62B (Addition of outlets to producer's licence) provides for the addition to a producer's licence of premises or proposed premises as a production outlet or retail outlet. It mirrors the current provision of the Act (section 60) relating to the removal of a licence to premises or proposed premises. Under the provisions an outlet is assessed in the context of its construction, planning issues and disturbance to the amenity of the surrounding area. Similarly, section 62C (Certificate of approval for addition to producer's licence of proposed premises as outlet) mirrors current section 62 of the Act, albeit in relation to a production outlet or retail outlet.

15—Amendment of section 68—Alteration and redefinition of licensed premises

This amendment allows for the removal of a production outlet or retail outlet from the licensed premises without it being substituted with another outlet.

16—Insertion of Part 4 Division 8A

The new Division contemplates variation of a producer's event endorsement and is consequential on the amendments to section 39.

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

The amendment makes an offence comprised of a responsible person not wearing identification expiable.

18—Amendment of section 100—Supply of liquor to lodgers

The amendment makes certain offences relating to the supply of liquor to lodgers expiable.

19—Amendment of section 101—Record of lodgers

The amendment makes an offence of failing to keep records relating to lodgers expiable.

20—Amendment of section 102—Restriction on taking liquor from licensed premises

The amendment makes an offence of taking liquor away from licensed premises when this is not authorised by the licence expiable.

21—Amendment of section 103—Restriction on consumption of liquor in, and taking liquor from, licensed premises

The amendment makes an offence of purchasing or consuming etc liquor in a manner not authorised by the licence expiable.

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

Section 104 currently contemplates a person taking the unconsumed portion of BYO liquor brought for consumption with a meal away from the licensed premises. The provision is amended to require the liquor to be in the container in which it was brought onto the licensed premises. The provision is extended to enable the unconsumed portion of bottled wine purchased on the licensed premises for consumption with a meal to be taken away.

23—Amendment of section 105—Entertainment on licensed premises

The amendment makes it an offence for a licensee to use a part of the licensed premises or an adjacent area for the purposes of entertainment unless, in the case of a licence that authorised consumption of liquor on the licensed premises, the entertainment is provided while the licensed premises are open for the sale or supply of liquor for such consumption or unless the licensing authority has expressly allowed entertainment on the premises without the premises being open for the sale or supply for such consumption. The amendment also makes the offences in the section expiable.

24—Amendment of section 108—Liquor not to be sold or supplied to intoxicated persons

Section 108 makes it an offence for liquor to be sold or supplied on licensed premises to a person who is intoxicated. The amendment extends this to sale or supply 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.

The defence in section 108(2) is modified so that in the case of contravention of subsection (1)(b) (as inserted) by the person by whom the liquor was sold or supplied, it is a defence to prove that the defendant believed on reasonable grounds that the impairment of the speech, balance, coordination or behaviour of the person to whom the liquor was sold or supplied was not the result of the consumption of liquor.

25—Amendment of section 109—Copy of licence to be kept on licensed premises

The amendment makes an offence of failing to display a copy of the licence expiable.

26—Amendment of section 109B—Returns

The amendment limits the expiable offence to one of failing to make an annual return.

27—Amendment of section 110—Sale of liquor to minors

Section 110 makes it an offence to sell liquor to a minor. One of the elements to a defence is that the licensee or some person acting on behalf of the licensee required the minor to produce evidence of age. The amendment requires the request to comply with the requirements of the regulations.

28—Amendment of section 113—Notice to be erected

The amendment makes an offence of failing to display a notice relating to minors expiable.

29—Amendment of section 124—Power to refuse entry or remove intoxicated persons or persons guilty of offensive behaviour

Under section 124 an authorised person may remove a person from, or prevent the entry of a person onto, licensed premises if the person is intoxicated or behaving in an offensive or disorderly manner. This is extended, in line with the amendments to section 108, to any person whose speech, balance, coordination or behaviour is noticeably impaired if it is reasonable to believe that the impairment is the result of the consumption of liquor.

It is also extended to a person who it is reasonable to suspect has supplied or is about to supply liquor to another person on licensed premises in circumstances in which the other person is intoxicated or in which the other 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.

30—Amendment of section 131—Control of consumption etc of liquor in public places

Dry areas are set up under section 131. If a person in taking the unconsumed portion of a container of liquor away from licensed premises under section 104 enters a dry area and the person is prosecuted for the dry area offence the question of the lawfulness of the action under section 104 will arise. The amendment places the onus of proving that the possession was lawful under section 104 on the defendant.

31—Insertion of Part 10A

New section 131AA enables a Ministerial notice or regulations to be made declaring certain liquor to be prohibited. The Minister must be satisfied that, because of its name, design or packaging or for any other reason, the liquor is likely to have a special appeal to minors or be confused with confectionery or non-alcoholic beverage.

If the declaration is by notice it will expire after a maximum of 42 days. Before a regulation is made the Minister must give manufacturers, importers and distributors of the liquor known to the Minister at least 7 days within which to comment on the proposed regulation.

32—Substitution of section 131A

Section 131A makes it an offence for a person not to leave licensed premises when requested in certain circumstances. The provision is extended in line with the amendments to section 108 and 124.

33—Amendment of section 138—Regulations

The amendment fixes the maximum expiation fee that may be imposed by regulation.

Schedule 1—Transitional provisions

1—Conversion of special circumstances licence to producer's licence

This clause gives certain holders of existing special circumstances licences 2 years within which to seek conversion of the licence into a producer's licence or convince the licensing authority that the licence could not appropriately be so converted.

Debate adjourned on motion of Ms Chapman.

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