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House of Assembly - Fifty-First Parliament, Third Session (51-3)
2008-11-26 Daily Xml
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STATUTES AMENDMENT (POWER TO BAR) BILL

Introduction and First Reading

Received from the Legislative Council and read a first time.

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) (12:26): 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.

Amendment of Liquor Licensing Act 1997

Police power to bar

Under section 125 of the Liquor Licensing Act 1997 (the Act), a licensee or a responsible person for licensed premises can bar a person from the premises for any of the following reasons:

if the person behaves in an offensive or disorderly manner;

if the person commits an offence;

if the licensee or responsible person believes that the welfare of the person or the person’s family is seriously at risk as a result of the consumption of alcohol by the person;

on any other reasonable ground.

The power to bar is a protective order for the person concerned, another person with whom the person resides and other patrons and staff.

However, following incidents involving outlaw motorcycle gangs and licensed premises (such as the shootings at Tonic nightclub and more recently in the Gouger Street precinct), it has become apparent that there is a need to amend the Act to grant the Commissioner of Police, and other police officers on the authorisation of a police officer of a specified rank, the power to make an order to bar persons from licensed premises. Licensees have expressed concerns that, in certain circumstances, they are reluctant to issue barring orders, particularly if the patrons concerned are members of outlaw motorcycle gangs or the like; they are, understandably, too frightened and intimidated to do so.

In other situations, police are frustrated by undesirable patrons being present on licensed premises in circumstances where, while no offence has been detected, police nevertheless hold concerns as to the safety and welfare of persons resorting to those licensed premises.

Thus, it is proposed that Part 9 Division 3 (Power to bar) of the Act be amended. Some of the amendments will further divide that Division into Subdivisions, each of which will relate to barring orders.

Proposed new Subdivision 3 is headed 'Police barring orders' and contains sections 125A to 125D. Sections 125A and 125B will enable the Commissioner of Police to make, and police officers of a specified rank to authorise the making of, orders to bar persons from licensed premises (including multiple premises in certain cases) for an indefinite period or a period specified in the order.

Police sergeants will be given the power to bar people for up to 72 hours—for committing an offence or for disorderly or offensive behaviour—in or around licensed premises.

Police inspectors will be able to bar for longer periods of up to 3 months—on the first occasion of offensive behaviour or an offence being committed—and 6 months for the second time. A third offence could lead to indefinite barring. Police inspectors will also be able to bar people indefinitely on welfare grounds if they believe the welfare of the person or the person’s family is seriously at risk as a result of the alcohol consumed by that person.

Authorisations to police officers are subject to certain restrictions set out in new section 125B of the Bill.

It is also proposed that police will be required to provide relevant licensees of information on the barring that identifies a person who has been barred.

Barring orders made by the police will be subject to review by the Liquor and Gambling Commissioner (LG Commissioner) under section 128.

Criminal Intelligence

Section 28A of the Act provides that police may rely on criminal intelligence when lodging objections to applications or in disciplinary matters. In such cases, the objection or application need only state that it would be contrary to the public interest if the person were to be or to continue to be licensed or approved.

As a result of the proposed amendments to provide the Commissioner of Police with the power to bar persons, it is necessary to amend section 28A to provide that the Commissioner of Police may rely on information that is classified as criminal intelligence to do so. A barring order by the Commissioner of Police based on criminal intelligence need only state that it would be contrary to the public interest if the person were not so barred.

Provision of identification information

It is proposed to amend section 125 of the Act, the section that makes provision for licensees to make a barring order. The first amendment will enable police to provide information (including information that may identify a person) to licensees for the purposes of the licensee barring the person under subsection (1) of that section. It is an offence under section 125 for a licensee, a responsible person for licensed premises, or an employee of the licensee, to allow a person barred from the premises to enter or remain in the premises. The proposed amendment to section 125 that will allow police to provide licensees with information (including photos where available) which may identify persons who have been barred from premises should assist licensees so that they do not inadvertently contravene the section.

Extension of barring period

Currently, when a licensee or responsible person for licensed premises bars a person for welfare reasons under section 125(1)(aa), the barring order may be for an indefinite period or for any period the licensee or responsible person sees fit. In all other cases the following applies:

a person may be barred for no more than 3 months for a first offence;

a person may be barred for no more than 6 months for a second offence; and

a person who has committed third and subsequent offences may be barred indefinitely or for any period at the discretion of the licensee.

In the case of a barring made by a licensee for an indefinite period, or for longer than 6 months, the order will lapse if information regarding the barring is not provided to the LG Commissioner within 7 days of the order being made. The LG Commissioner may review an order if the person is barred for a period exceeding 1 month, and may confirm, vary or revoke the order. For an order barring a person for a period exceeding 6 months, or for an indefinite period, the LG Commissioner may vary the order until further order.

Licensees have expressed their concern that circumstances have arisen where serious incidents (including assaults, drug related offending or property damage) justify a period of barring in excess of that currently permitted under section 125(5) of the Act.

It is proposed to amend section 125 of the Act to empower a licensee to apply to the LG Commissioner to bar a person for a period exceeding 3 and 6 months for first and second barrings respectively, in which case the LG Commissioner’s decision will be reviewable by the Licensing Court.

Police power to require personal details.

The proposed insertion of section 125E will empower police to require a person to provide personal details and, if necessary, to verify any statement made. It will be an offence if a person refuses or fails, without reasonable excuse, to comply with such requirements carrying a maximum penalty of a fine of $1,250.

Reporting to Minister on barring orders

The proposed insertion of section 128A will require the LG Commissioner to report annually to the Minister in relation to barring orders made by licensees in force for an indefinite period or a period exceeding 6 months, barring orders made by the Commissioner of Police based on criminal intelligence, and the number of reviews of orders conducted under section 128 and the outcome of such review. The Minister must cause copies of the report to be laid before each House of Parliament.

Amendment of Casino Act 1997

It is also proposed to amend the Casino Act 1997 to enable the Commissioner of Police to bar persons from the Casino under that Act.

In contrast to the position in other jurisdictions in Australia, the Commissioner of Police does not currently have the power under the Casino Act to initiate a person’s exclusion from the Casino. This is despite the fact that the Commissioner of Police is better placed than either the Casino operator or the industry regulator to make an informed decision about barring orders that target criminal activities, particularly money laundering. Existing Casino barring provisions are focussed on problem gamblers and not preventing criminal activity.

The Bill inserts new section 45A into Part 4 Division 7 of the Casino Act. New section 45A gives the Commissioner of Police the power to bar a person from the Casino by written order for a period specified in the order on any reasonable ground. Subject to the non-disclosure of criminal intelligence, a barring order must set out the grounds on which the order is made and the barred person’s right to have the order reviewed. A copy of the order must be served on the barred person and on the licensee (along with information that identifies the barred person). A barred person who enters or remains on the casino while a barring order is in force is guilty of an offence. Reasonable force may be used to eject a barred person from the casino. The Commissioner of Police may delegate his power under section 45A, but only to a Deputy Commissioner or Assistant Commissioner of Police.

Amendments to section 65 of the Casino Act will ensure a barred person has the right to apply to the Independent Gambling Authority for a review of a barring order made by the Commissioner of Police.

As with the power to bar under the Liquor Licensing Act, the Commissioner of Police will be able to rely upon criminal intelligence when determining whether to make a barring order. Criminal intelligence will be protected from disclosure in the same way it is protected under the Liquor Licensing Act provisions.

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 28A—Criminal intelligence

Section 28A relates to information relating to actual or suspected criminal activity, the disclosure of which could reasonably be expected to prejudice criminal investigations, or enable the discovery of the existence or identity of a confidential source of information relevant to law enforcement. Such information is criminal intelligence if it is so classified by the Commissioner of Police. It is proposed to substitute subsection (1) so as to clarify that information classified by the Commissioner of Police as criminal intelligence for the purposes of the Act may not be disclosed to any person other than the Liquor and Gambling Commissioner (the LG Commissioner), the Minister, a court or a person to whom the Commissioner of Police authorises its disclosure.

An additional subsection to be inserted relates to the amendments to Part 9 Division 3 proposed by this measure. New subsection (5) provides that if a person is barred from licensed premises by the Commissioner of Police because of information that is classified by the Commissioner of Police as criminal intelligence, the order need only state that it would be contrary to the public interest if the person were not so barred.

Additional amendments are proposed to this section to provide for the maintenance of judicial functions in relation to the classification of information as criminal intelligence and the confidentiality of information that has been so classified in any proceedings under the principal Act (whether to be determined by the LG Commissioner, the Licensing Court, the Supreme Court or any other court).

5—Insertion of Part 9 Division 3 Subdivision 1 and heading to Subdivision 2

It is proposed to divide Division 3 of Part 9 into 4 Subdivisions. The first Subdivision (comprising new section 124A—Interpretation) is to be inserted before section 125 of the principal Act. New section 124A defines 'licensed premises' and 'premises' for the purposes of Division 3. The second Subdivision is to be headed 'Licensee barring orders'. That Subdivision is comprised of section 125.

6—Amendment of section 125—Licensee barring orders

The first amendment proposed to this section deletes words as a consequence of the insertion of new section 124A. The next amendment allows a police officer to provide a licensee with information that may identify a person for the purposes of enabling a licensee to bar a person from licensed premises or to identify a person who has been so barred.

It is also proposed to amend subsection (5) of this section to allow a person to be barred for such period as may be approved by the LG Commissioner that exceeds the period specified in subparagraph (i) or (ii) of subsection (5)(b).

7—Insertion of Part 9 Division 3 Subdivisions 3 and 4

It is proposed to insert new Subdivision 3 after section 125 of the principal Act. That Subdivision will provide for the making of barring orders by the police.

Subdivision 3—Police barring orders

125A—Commissioner of Police barring orders

New section 125A provides that the Commissioner of Police may, by order served on a person, bar the person from entering or remaining on—

specified licensed premises; or

licensed premises of a specified class; or

licensed premises of a specified class within a specified area; or

all licensed premises within a specified area,

for an indefinite period or a period specified in the order on any reasonable ground.

The Commissioner of Police may—

revoke an order under this section by subsequent order; and

delegate his or her power under this section to a Deputy Commissioner or an Assistant Commissioner of Police.

125B—Police officer barring orders

New section 125B provides that a police officer may, on the authorisation of a senior police officer, by order (a barring order) served on a person, bar the person from entering or remaining on—

(a) specified licensed premises; or

(b) licensed premises of a specified class; or

(c) licensed premises of a specified class within a specified area; or

(d) all licensed premises within a specified area,

for a specified period not exceeding any applicable limit fixed by this section—

(e) if the police officer is satisfied that the welfare of the person, or the welfare of a person residing with the person, is seriously at risk as a result of the consumption of alcohol by the person; or

(f) if the person commits an offence, or behaves in an offensive or disorderly manner, on, or in an area adjacent to, the licensed premises; or

(g) on any other reasonable ground.

An order under this section may be varied or revoked by subsequent order.

An authorisation to issue a barring order under this section—

is subject to the provisions set out in proposed subsection (3) that relate to the length of time for which an order will remain in force;

may be granted orally or in writing (but a written record must be kept of the authorisation and certain details relating to the authorisation and the order).

In this new section, a senior police officer is defined to mean—

(a) in the case of a barring order that is to be made on the grounds referred to in subsection (1)(e)—a police officer of or above the rank of Inspector;

(b) in the case of a barring order that is to be made on the grounds referred to in subsection (1)(f) or (g)—

(i) if the order is to be made for a period exceeding 72 hours—a police officer of or above the rank of Inspector; or

(ii) in any other case—a police officer of or above the rank of Sergeant or the officer in charge for the time being of a police station.

125C—Offences

A person who enters or remains on licensed premises from which he or she is barred under this Subdivision is guilty of an offence, the penalty for which is a fine of $1,250.

A licensee, a responsible person for licensed premises, or an employee of the licensee, who knows or ought reasonably to know that a person has been barred from licensed premises under this Subdivision and who allows a person to enter or remain on those premises, is guilty of an offence, the penalty for which is a fine of $1,250.

125D—Evidence

This new section provides for evidentiary matters in relation to orders and authorisations under this new Subdivision.

Subdivision 4—Miscellaneous

125E—Power to require personal details

A police officer may, for the purposes of Division 3, require a person to state all or any of the person's personal details. It is an offence for a person, without reasonable excuse, to refuse or fail to comply with the requirements of this section, the penalty for which is a fine of $1,250.

A police officer who has required a person to state all or any of the person's personal details under this section is required to comply with a request to identify himself or herself, by—

producing his or her police identification; or

stating orally or in writing his or her surname, rank and identification number.

8—Amendment of section 126—Orders

It is proposed to insert new subsection (1a) to provide that if a person has been barred from premises by order under Subdivision 3, the relevant licensee must, within 14 days of the service of the order, be provided with a copy of the order and information that identifies the person. Failure to comply with this subsection does not, however, affect the operation of the order.

9—Amendment of section 128—Review of orders

The proposed amendments to this section result from the determination that if the period for which an order made under section 125(5)(b)(i) or (ii) is extended for a period approved by the Liquor and Gambling Commissioner, any application for review of the order must be made to the Licensing Court. Thus the amendments are consequential on substituting the term 'licensing authority' for Commissioner in the section.

10—Insertion of section 128A

128A—Report to Minister on barring orders

The Minister must, each year, table in the Parliament a report of the LG Commissioner specifying the following information in relation to the financial year ending on the preceding 30 June:

in relation to an order made under Subdivision 2 barring a person from licensed premises for an indefinite period or a period exceeding 6 months—

(i) in the case of welfare orders (that is, an order made under section 125(1)(aa))—

the number of welfare orders made; and

the location of the licensed premises from which the persons were barred;

(ii) in any other case—

the number of orders made; and

statistical information about the type of conduct giving rise to the orders; and

the location of the licensed premises from which the persons were barred;

in relation to an order made under Subdivision 3 because of information classified by the Commissioner of Police as criminal intelligence—

the number of orders made; and

the location of the licensed premises from which the persons were barred; and

statistical information about—

(A) the period for which the orders have effect; and

(B) the age, gender, race and residential postcode of the persons barred;

the number of reviews of orders conducted under section 128 and the outcome of any such review.

Part 3—Amendment of Casino Act 1997

11—Amendment of section 3—Interpretation

It is proposed to insert a definition of criminal intelligence in this section, consistent with the definition of criminal intelligence in the Liquor Licensing Act 1997.

12—Insertion of section 45A

45A—Commissioner of Police's power to bar

New section 45A gives the Commissioner of Police the power to bar a person from the casino for a period specified in the order or for an unlimited period on any reasonable ground. This power mirrors the power of the licensee to bar under section 44 and the LG Commissioner's power to bar under section 45 and is substantially similar in its terms.

Except where the order is made because of information that is classified by the Commissioner of Police as criminal intelligence, the order must—

state the grounds on which the order is made; and

set out the rights of the excluded person to have the order reviewed by the Authority; and

be given to the person against whom it is made personally or by sending it by post addressed to the person at the last known postal address.

Where the order is made because of information that is classified by the Commissioner of Police as criminal intelligence, the order need only state that it would be contrary to the public interest if the person were not so barred.

The section further provides that the licensee must, within 14 days of the service of the order on the excluded person, be given—

a copy of the order; and

information that identifies the person,

(but a failure to comply with this requirement does not affect the operation of the order).

It is an offence for an excluded person to enter or remain in the casino while subject to an order under this proposed section (with a penalty of $2,500). It is also an offence if the licensee allows an excluded person to enter or remain in the casino while subject to an order (with a penalty of $10,000).

An order under this section may be revoked by the Commissioner of Police at any time.

The Commissioner of Police may not delegate his or her power under this section except to a Deputy Commissioner or Assistant Commissioner of Police.

13—Amendment of section 65—Review of decisions

This proposed amendment will make provision for a person who is aggrieved by a decision of the Commissioner of Police to bar the person from the casino to apply to the Independent Gambling Authority for a review of the decision.

14—Insertion of section 66A

66A—Procedure in relation to criminal intelligence

This new section provides for the procedure relating to the confidentiality of information classified by the Commissioner of Police as criminal intelligence in any proceedings under Part 8. It makes provision for the maintenance of judicial functions in relation to the classification of information as criminal intelligence and the confidentiality of information that has been so classified in any court proceedings.

15—Substitution of section 69

69—Confidentiality of criminal intelligence and other information provided by Commissioner of Police

This new section provides that information provided by the Commissioner of Police under this Act to the Authority or the Commissioner may not be disclosed to any person other than the Minister, a court or a person to whom the Commissioner of Police authorises its disclosure, if the Commissioner of Police asks for the information to be kept confidential on the ground that its disclosure might create a risk of loss, harm or undue distress.

Information that is classified by the Commissioner of Police as criminal intelligence for the purposes of this Act may not be disclosed to any person other than the Authority, the Commissioner, the Minister, a court or a person to whom the Commissioner of Police authorises its disclosure.

The Commissioner of Police may not delegate the function of classifying information as criminal intelligence for the purposes of this Act except to a Deputy Commissioner or Assistant Commissioner of Police.

The Hon. J.M. RANKINE (Wright—Minister for Families and Communities, Minister for Northern Suburbs, Minister for Housing, Minister for Ageing, Minister for Disability) (12:26): I move:

That standing orders be so far suspended as to enable the bill to pass through all stages without delay.

The DEPUTY SPEAKER: I draw attention to the state of the house.

A quorum having been formed:

Motion carried.

Dr McFETRIDGE (Morphett) (12:28): I indicate that the Liberal Party is supporting the changes to the Statutes Amendment (Power to Bar) Bill 2008. I am the lead speaker but, having said that, I will not keep the house very long at all, because we strongly support this piece of legislation.

The need to be able to give the police the licence to bar patrons from licensed premises is one that not only the Liberal Party and the government but many people in South Australia strongly agree with. I think that there are a few civil libertarians out there who are concerned about the use of the police criminal intelligence powers to decide whether their police are to be given the power to bar somebody. I seek leave to continue my remarks.

Leave granted; debate adjourned.

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