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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2008-10-16 Daily Xml
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LIQUOR LICENSING (POWER TO BAR) AMENDMENT BILL

Introduction and First Reading

The Hon. G.E. GAGO (Minister for State/Local Government Relations, Minister for the Status of Women, Minister for Consumer Affairs, Minister for Government Enterprises, Minister Assisting the Minister for Transport, Infrastructure and Energy) (15:30): Obtained leave and introduced a bill for an act to amend the Liquor Licensing Act 1997. Read a first time.

Second Reading

The Hon. G.E. GAGO (Minister for State/Local Government Relations, Minister for the Status of Women, Minister for Consumer Affairs, Minister for Government Enterprises, Minister Assisting the Minister for Transport, Infrastructure and Energy) (15:30): I move:

That this bill be now read a second time.

Under section 125 of the Liquor Licensing Act 1997 (the act), a licensee or 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 often intimidated to assert their current rights.

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) in the public interest, or on any other reasonable ground, for an indefinite period or a period specified in the order. This new legislation gives police sergeants the power to bar people for 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 three months on the first occasion of the offence, or six months for the second time an offence occurs. A third offence could lead to an indefinite barring. Police inspectors will also be able to bar people indefinitely on welfare grounds if they believe that the welfare of the person or the person's family is seriously at risk as a result of the alcohol consumed by that person. Such orders will be subject to review by the Liquor and Gambling Commissioner, under section 128.

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 with information on the barring that identifies a person who has been barred.

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 state only that it would be contrary to the public interest if the person were to be, or continue to be, licensed or approved.

As a result of the proposed amendment 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 criminal intelligence to do so. Again, such a barring order by the Commissioner of Police need only that it would be contrary to the public interest if the person were not so barred.

It is proposed to amend section 125 of the act, the section that makes provision for licensees to make a barring order. This 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.

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 three months for a first offence; a person may be barred for no more than six months for a second offence; and a person who has committed a 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 six months, the order will lapse if information regarding the barring is not provided to the LG Commissioner within seven days of the order being made. The LG Commissioner may review an order if the person is barred for a period exceeding one month and may confirm, vary or revoke the order. For an order barring a person for a period exceeding six 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 three and six months for first and second barrings respectively, in which case the LG Commissioner's decision will be reviewable by the Licensing Court.

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. I commend the bill to members.

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

Leave granted.

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 to enable the discovery of the existence or identity of a confidential source of information relevant to law enforcement that, is so classified by the Commissioner of Police, is criminal intelligence). It is proposed to substitute subsection (1) so as to clarify that information that is classified by the Commissioner of Police as criminal intelligence for the purposes of the principal 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 the Commissioner of Police, by order, bars a person from licensed premises 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—Police barring orders—criminal intelligence

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 if the Commissioner of Police is satisfied, based on criminal intelligence, that it is in the public interest to do so.

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 barring orders—general

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.

Debate adjourned on motion of Hon. J.M.A. Lensink.

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