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House of Assembly - Fifty-Second Parliament, First Session (52-1)
2011-09-13 Daily Xml
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LIQUOR LICENSING (MISCELLANEOUS) AMENDMENT BILL

Second Reading

The Hon. J.M. RANKINE (Wright—Minister for Families and Communities, Minister for Housing, Minister for Ageing, Minister for Disability) (16:58): 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 responsible service and consumption of alcohol and to ensure that our entertainment areas are safe and vibrant places. The Liquor Licensing (Miscellaneous) Amendment Bill 2011 is a reflection of that policy.

Special conditions for late night trading

The Bill provides that premises trading between the hours of 4am and 7am will be required to adhere to a higher standard of operation during those hours. These special conditions will be included in a Code of Practice and will reflect the increased risks associated with trading during this period. The Code may include conditions relating to:

CCTV and extra security requirements inside and outside of the venue;

Prohibition of alcohol consumption on footpaths or other outdoor areas;

A requirement for licensees to employ a 'drink marshal' whose sole responsibility is to monitor the responsible service and consumption of alcohol;

A requirement for licensees to maintain a register of all incidents that occur on premises; and

Prohibition of practices that encourage the rapid and excessive consumption of alcohol, for example, shots, laybacks etc.

Further, the Bill provides that if disciplinary action is taken against a licensee for breaching a condition of their licence or a requirement under the Act between the hours of 4am and 7am on a second or subsequent occasion within a two year period, the Court must alter the licence to prohibit the premises from trading between those hours, unless the licensee can show cause why such action should not be taken.

Improve the powers of the Liquor and Gambling Commissioner—public order and safety notices

The Bill affords the Commissioner a new power to provide a rapid response to threats against public order and safety by issuing a short term public order and safety notice in respect of a licence. The Liquor and Gambling Commissioner will be able to issue this type of notice at his or her absolute discretion.

The notice may be issued if the Commissioner considers that the notice is necessary or desirable to address an issue of public order and safety, or to mitigate adverse consequences arising from an issue of public order and safety.

A public order and safety notice may be imposed for a period up to 72 hours and may affect the licence conditions in respect of a licence, for example impose a new condition requiring that only low alcohol beer be served, may vary the trading hours in relation to the licence, or in extreme cases where it is unsafe for members of the public to enter or remain in a licensed premises, may require the licensed premises to be closed and remain closed for a specified period of time or suspend the licence.

Power of the Liquor and Gambling Commissioner to suspend or impose conditions on a person's approval pending disciplinary action

Currently, if a complaint has been lodged with the Court alleging proper grounds for disciplinary action exist against an approved person under the Act, the person may continue their involvement with the premises as normal until such time as the Court makes an order affecting the operation of their approval.

Taking disciplinary action can be a lengthy process and may require one or more hearings before the Licensing Court. There may be situations where, due to the serious nature of the cause for disciplinary action, it is in the public interest for the person to cease their involvement in the business immediately.

The Bill provides the Liquor and Gambling Commissioner with the power to suspend a person's approval, or impose conditions on an approval, pending disciplinary action before the Court. It is intended that this power would be used in the type of situation where the Commissioner becomes aware, for instance, that a person approved in a position of authority has been charged or convicted of serious drug dealing or fraud, which puts into question their integrity and rectitude of character as a person to be entrusted with the sort of work which this approval entails.

The amendment does not afford the Commissioner an absolute discretion to simply suspend a person's approval at any given time, but rather provides the Commissioner with the power to do so only when a complaint alleging grounds for disciplinary action has been lodged with the Court, and the Commissioner is of the opinion that, in the public interest, it is desirable to take action.

The amendment recognises the significant practical impact a suspension could have on the individual person and to a premises, and as such, places a reasonable limitation on its application. The Bill also provides the Court the power to revoke or vary any suspension or condition imposed by the Commissioner.

Increase the powers of the Commissioner of Police

Currently the Commissioner of Police has the power, under section 83BA of the Summary Offences Act 1953, to close a licensed premises if it is overcrowded. The powers of the police are therefore clearly limited in responding to an urgent situation at licensed premises, such as where a large brawl or a riot has started.

The Bill extends the powers of Police to ensure that a senior police officer (that is, a police officer of or above the rank of inspector) can issue certain orders if the officer believes on reasonable grounds that it would be unsafe for members of the public to enter or remain in licensed premises because of conditions temporarily prevailing there. A senior police officer may, for example:

order persons to leave the premises or part of the premises immediately;

order the licensee to immediately remove persons from the premises or part of the premises;

order the licensee to take other specified action to rectify the situation immediately or within a specified period; or

if satisfied that the safety of persons cannot reasonably be ensured by other means, order the licensee to close the premises or part of the premises immediately and for such a period as the officer considers necessary (not exceeding 24 hours) to alleviate the danger.

When a senior police officer is satisfied that the danger has been alleviated, he or she may revoke an order under this section.

Repeat offenders

The Government is introducing a suite of measures for dealing with offenders who repeatedly breach liquor licensing laws and licence conditions.

Increasing maximum penalties for serious breaches or offences

The Act has been reviewed and a range of sections have been identified of which subsequent breaches will be subject to a higher maximum penalty, in many cases the maximum penalty has been doubled. It is intended that these increased penalties will serve as a greater deterrent for licensees to repeatedly offend against liquor licensing laws.

The Bill provides for an increased maximum penalty for subsequent offences where:

a person is selling liquor without being licensed to do so (section 29);

a condition of a licence has not been complied with (section 45);

a licensee sells liquor when they are not authorised to do so (section 46);

conditions relating to the supply of liquor to a lodger are not observed (section 100);

a person fails to keep records of lodgers as required under the Act (section 101);

a person fails to abide by restrictions on consumption of liquor in, and taking from, licensed premises (section 103);

a licensee uses any part of a licensed premises, or any area adjacent to the premises, for the purpose of providing entertainment when conditions required under the Act have not been met (section 105);

liquor has been sold or supplied to intoxicated persons (section 108);

liquor has been sold or supplied to a minor (section 110).

Disciplinary action

The Act currently provides that if a licensee is convicted of an offence involving the unlawful sale or supply of liquor to a minor and a complaint has been lodged with the Court on the ground that conviction was due to a breach of duty, the Court must take disciplinary action against the licensee. If the conviction follows a previous conviction for such an offence, or previous disciplinary action for an incident involving such an offence, then the Court must suspend or revoke the licence unless the licensee can show why that action should not be taken.

The Bill provides for an extension of this provision to also include an offence involving the unlawful sale or supply of liquor to an intoxicated person, an offence involving trafficking drugs on the licensed premises and any offences of a class prescribed by the regulations.

This amendment will provide for tighter regulation and penalties for repeat offenders against these provisions of the Act by reversing the onus of proof in proceedings to require the Court to either suspend or revoke a licence unless the licensee can show why such action should not be taken.

Repeat expiation notices

The Act currently allows for expiation notices to be issued for breaches of certain licence conditions as prescribed in the regulations.

To reflect the serious nature of repeat offending against licence conditions, it is intended that the regulations will prescribe certain licence conditions where expiation notices will not be able to be issued for subsequent offences. This will mean that disciplinary action would be taken against a licensee and a broader range of penalties would be available to the Commissioner or the Judge in dealing with the matter, for example, licence suspension, or disqualification from holding a licence under the Act.

Offensive and disorderly conduct

The Bill creates a new expiable offence for offensive or disorderly conduct in, or in the vicinity of, a licensed premises. The maximum penalty for this offence is $1250, with an expiation fee of $160.

Without limiting the conduct that may constitute behaving in an offensive or disorderly manner, the conduct may be constituted of offensive language. This new offence does not, however, apply to any behaviour involving violence.

Code of Practice

A Code of Practice (the Code) is currently in force under section 42 of the Act. The South Australian Government amended the Act in 2009 to broaden the scope of the Code. With those legislative changes, the purpose of the Code was expanded beyond minimising the harmful use of liquor and promoting the responsible sale, supply and consumption of liquor, to be a means to support licensees to comply with their broader obligations under the Act. Effectively, the new Code of Practice will impose mandatory licence conditions.

A draft Code has been drafted in declaratory terms so that the obligations are clear to both licensees and regulators. The draft Code will strengthen mandated practices which licensees must comply with and practices which licensees must not engage in.

Provisions in the Code will encourage licensees to take a more proactive role in managing the behaviour of patrons in and around licensed premises and implement practices to clarify and support these obligations.

The Bill contemplates that the Code may provide the Commissioner with the discretion, upon application of a licensee, to grant exemptions (conditional or unconditional) from specified conditions of the Code.

The Bill also provides for a special circumstances licence and a limited licence to be classified for the purposes of the application of the Code.

Redrafting of certain provisions in the Act

The Bill introduces redrafted provisions that relate to the hours in which premises covered by each licence class are permitted to trade. These amendments assist in the overall administration of the Act by making the provisions easier to understand and regulate.

Administration of Licensing Court

The Bill introduces a number of amendments to address administrative matters relating to the Licensing Court. These are purely administrative in nature and include:

ensuring that the Court will have such seals as are necessary for the transaction of its business;

providing for an acting Licensing Court Judge in the absence of the usual Licensing Court Judge responsible for the administration of the Court;

providing for sittings, adjournment and hearings in public or private; and

providing for rules of the Court to be made under the Act.

Technical amendments

Finally, the Bill makes some technical amendments designed to improve the administration of the Act including:

providing a definition of the 'production of liquor' in respect of a Producer's Licence;

allowing service on licensees of notices and documents to be executed by fax or email;

extending the evidentiary aids in legal proceedings to include public order and safety notices; and

an amendment to support a waiver, reduction or refund of fees by the Commissioner.

Criminal intelligence

It is foreshadowed that an amendment will be moved to reinstate the amendment inserting section 28A(2) relating to criminal intelligence. The proposed new powers of issuing a public order and safety notice in respect of a licence or imposing a licence condition to improve public order and safety may be exercised on the basis of information that is classified by the Commissioner of Police as criminal intelligence. The proposed subsection provides that in such a case, the Commissioner is not required to provide any grounds or reasons for the decision other than it would be contrary to the public interest if the condition were not imposed or the notice were not issued.

This provision is consistent with the approach current taken in the Act in respect of other decisions based on criminal intelligence such as a decision to refuse a licence or an approval or to revoke an approval of a crowd controller. The main purpose of the provisions is to protect the life and safety of informants.

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 new reference to the Commissioner's codes of practice is included in sections 40 and 41 (allowing special circumstances licences and limited licences to be classified for the purposes of the application of the codes) and so a pointer definition is included in the interpretation provision.

The definition of extended trade is deleted and a pointer definition included for extended trading authorisation.

A pointer definition to the new concept of a public order and safety notice in new section 128B is included in the interpretation provision. An inclusive definition of public order and safety is included for the purposes of that new section and for the power to impose conditions relating to public order and safety.

5—Amendment of section 11A—Commissioner's codes of practice

Section 11A(2) is modified to contemplate codes of practice including special requirements for the sale of liquor for consumption on licensed premises between 4 am and 7 am on any day for the purpose of reducing alcohol-related crime and anti-social behaviour.

Section 11A(3) is an amendment allowing codes of practice to contemplate exemptions being granted by the Commissioner.

6—Insertion of section 13A—Seal

7—Amendment of section 15—Judges

8—Insertion of section 16A—Rules

9—Insertion of sections 22A to 22C—Time and place of sittings, Adjournment from time to time and place to place, Hearing in public

10—Amendment of section 24—Powers with respect to witnesses and evidence

11—Insertion of section 24A—Entry and inspection of property

These clauses contain a series of technical amendments relating to improvements in the processes of the Liquor Licensing Court.

12—Amendment of section 29—Requirement to hold licence

This amendment doubles the maximum penalty for a second or subsequent offence of selling liquor without being licensed to do so.

13—Amendment of section 31—Authorised trading in liquor

This amendment is technical and clarifies that a licence may set out trading hours fixed by the licensing authority.

14—Amendment of section 32—Hotel licence

15—Amendment of section 33—Residential licence

16—Amendment of section 34—Restaurant licence

17—Amendment of section 35—Entertainment venue licence

18—Amendment of section 36—Club licence

These amendments spell out in full the maximum trading hours of each of the relevant categories of licences and for what hours an extended trading authorisation is required. They are designed to clarify the Act and resolve various ambiguities.

19—Amendment of section 39—Producer's licence

This amendment clarifies that production premises will include a vineyard or like premises.

20—Amendment of section 40—Special circumstances licence

This amendment clarifies trading hours in the same vein as clauses 8 to 11.

The amendment also enables the licence to be classified for the purposes of the application of the Commissioner's codes of practice. This is necessary because of the diverse circumstances covered by these licences.

21—Amendment of section 41—Limited licence

The amendment enables the licence to be classified for the purposes of the application of the Commissioner's codes of practice. This is necessary because of the diverse circumstances covered by these licences.

22—Amendment of section 42—Mandatory conditions

This is a consequential amendment to the inclusion of the definition of code of practice.

23—Amendment of section 43—Power of licensing authority to impose conditions

The provision is amended to expressly provide that a licensee who is dissatisfied with a decision made by the Commissioner to impose a condition in circumstances in which there are no proceedings before the Commissioner may apply to the Court for a review of the Commissioner's decision as if he or she were a party to proceedings before the Commissioner.

24—Amendment of section 44—Extended trading authorisation

Section 44 is consequentially amended.

25—Amendment of section 45—Compliance with licence conditions

26—Amendment of section 46—Unauthorised sale or supply of liquor

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

28—Amendment of section 101—Record of lodgers

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

30—Amendment of section 105—Entertainment on licensed premises

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

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

These amendments double the maximum penalty for a second or subsequent offence for relevant offences committed by a licensee or responsible person for licensed premises.

33—Insertion of Part 7A—Offensive or disorderly conduct

New section 117A makes it an offence to behave in an offensive or disorderly manner in licensed premises or in the vicinity of licensed premises. The offence is expiable.

34—Insertion of section 120A

The new section introduces a new power to suspend an approval of a person under the Act or impose conditions pending disciplinary action. The Court is given power to revoke or vary the suspension or conditions imposed by the Commissioner.

35—Amendment of section 121—Disciplinary action

Section 121(4) currently provides that if a licensee is convicted of an offence involving the unlawful sale or supply of liquor to a minor and a complaint is lodged on the ground of the breach of duty leading to the conviction, the Court must take disciplinary action against the licensee and, if the conviction follows a previous conviction for such an offence or previous disciplinary action for an incident involving such an offence, the Court must suspend or revoke the licence unless the licensee shows cause why that action should not be taken. The amendment extends this approach to an offence involving the unlawful sale or supply of liquor to an intoxicated person, an offence involving trafficking drugs on the licensed premises and any offences of a class prescribed by the regulations.

In addition, a licensee is required to show cause why a licence should not be altered to remove an authorisation to trade during the hours between 4 am and 7 am on any day if there is proper cause for taking disciplinary action against the licensee for an incident involving the commission of an offence against this Act on licensed premises during those hours and the finding follows a conviction of the licensee for such an offence committed within the previous 2 years or previous disciplinary action for an incident involving the commission of such an offence within the previous 2 years.

36—Amendment of heading to Part 9

This is a consequential amendment in recognition of the inclusion of new powers in Division 4 relating to public order and safety.

37—Insertion of Part 9 Division 4

The new Division includes 2 new powers.

The first is a power for the Commissioner to issue a short term public order and safety notice in respect of a licence. The notice may be issued if the Commissioner considers that the notice is necessary or desirable to address an issue or perceived issue of public order and safety or to mitigate adverse consequences arising from an issue or perceived issue of public order and safety. The notice is at the absolute discretion of the Commissioner. The notice may affect the licence conditions (including trading hours), may require the licensed premises to be closed and remain closed for specified hours despite a requirement of this Act to keep the premises open to the public during those hours, or may suspend the licence. The notice can last for a maximum of 72 hours. Ministerial approval is required if the licence has been subject to another public order and safety notice within the 72 hours immediately preceding the period for which the notice would apply. The provision provides that no civil liability attaches to the Commissioner or the Crown in respect of an act or omission in good faith in the making, variation or revocation of a public order and safety notice.

The second is a power for a senior police officer to issue certain orders if the officer believes on reasonable grounds that it would be unsafe for members of the public to enter or remain in a licensed premises or part of a licensed premises because of conditions temporarily prevailing there. The orders are the same as those that may be made under section 83BA of the Summary Offences Act 1953 in circumstances of overcrowding of a public venue.

38—Amendment of section 135—Evidentiary provision

This is a technical amendment to extend the evidentiary aids to public order and safety notices.

39—Amendment of section 136—Service

This amendment allows fax or email to be used for service.

40—Amendment of section 138—Regulations

This is a technical amendment to support waiver, reduction or refund of fees by the Commissioner.

41—Repeal of Schedule

This is an amendment of a statute law revision nature.

Schedule 1—Transitional provisions

Clause 1 is an important provision designed to ensure that all the changes will have effect in relation to existing licences, approvals and authorisations. Clause 2 enables a licence, approval or authorisation to be substituted to reflect its trading hours and, in certain cases, classification for the purposes of the codes of practice. Clause 3 contemplates consequential variations to gaming machine licences to reflect that gaming operations can only be conducted during liquor trading hours.

Debate adjourned on motion of Mr Goldsworthy.

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