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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2011-03-23 Daily Xml
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LIQUOR LICENSING (MISCELLANEOUS) AMENDMENT BILL

Introduction and First Reading

The Hon. G.E. GAGO (Minister for Regional Development, Minister for Public Sector Management, Minister for the Status of Women, Minister for Consumer Affairs, Minister for Government Enterprises) (18:06): 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 Regional Development, Minister for Public Sector Management, Minister for the Status of Women, Minister for Consumer Affairs, Minister for Government Enterprises) (18:06): I move:

That this bill be now read a second time.

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.

Currently, the Liquor Licensing Act 1997 prescribes standard trading hours for licensed premises, including hotels, clubs and entertainment venues. The act also provides for a special circumstances licence, which is granted for a premises that does not fit within any other licence category. Subject to specific licence conditions, extended trading authorisation and trading hour restrictions prescribed for particular licence classes in the act, trading in liquor can occur at some licensed premises in South Australia 24 hours a day.

Research shows that extended late-night trading hours lead to increased consumption of alcohol and related harms. Data indicates a link between extended trading hours, high density of licensed premises and adverse impacts on alcohol-related harm. South Australia Police report that that most offending peaks at around 3am and continues into the early hours of Saturday and Sunday mornings.

The bill provides for amendments to the act to restrict the trading hours of licensed premises and enforce a mandatory break in liquor trade between 4am and 7am for all late trading hotels, entertainment venues, clubs and holders of special circumstances licences. This mandatory break will help deal with alcohol-related crime and assist in the transition between the night and day crowds. The bill provides that the mandatory break in trade will not apply to the Adelaide Casino, except to such part of the casino as prescribed in the regulations.

Should a licensee wish to trade during the mandatory break on account of a special occasion—for example, New Year's Eve, ANZAC Day breakfast, etc.—the act will retain the provision under section 41 for a licensee to apply to the commissioner for a limited licence, which may be granted for a special occasion, and authorise a licensee to operate in circumstances in which the sale, supply or consumption of alcohol would otherwise be unlawful, that is, during the mandatory break in trade.

The bill provides for a new division in the act titled 'Division 4—Public order and safety', under which the new section 128B will be inserted. This section affords the commission the power 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 of public order and safety or to mitigate adverse consequences arising from an issue of public order and safety.

The Liquor and Gambling Commissioner will be able to issue this type of notice at his or her absolute discretion. The notice may affect the licence conditions (including authorised trading hours), may require the licensed premises to be closed and remain closed for specified hours or may suspend a licence. A public order and safety notice may be imposed for a period up to 72 hours. The bill also provides that no civil liability attaches to the commissioner or court, and the commissioner is of the opinion in the public interest it is desirable to take such action. The amendment recognises the significant practical impact a suspension could have on the individual person and 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. The bill introduces the concept of managed plans as an additional long-term measure to manage alcohol-related crime and antisocial behaviour in an area or precinct or for a specified licence class. Management plans are designed to improve public order and safety, in particular through measures designed to reduce alcohol-related crime and antisocial behaviour.

The management plans would contemplate the imposition of a range of conditions under section 43 of the act (for example, a requirement to use polycarbonate glass, implement a lock-out or maintain CCTV equipment). A plan may be applied to specified licence types, such as late trading venues or specified licences in a particular geographical area, precinct or community. Interested persons would be given reasonable opportunity to make written submission in relation to the development of a plan.

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 a large brawl or if a riot has started, or 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 adjunct to the premises for the purposes of providing entertainment when conditions under the act have not been met (section 105), liquor has been sold or supplied to intoxicated persons (section 108), and, liquor has been sold or supplied to a minor (section 110).

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 a 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 unlawful sale or supply of liquor to an intoxicated person, an offence involving trafficking drugs on the licensed premises or 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 the proceedings to require the court to either suspend or revoke a licence unless the licensee can show why such action should not be taken.

The bill contemplates that the code may provide the commissioner with the discretion upon application of a licence to grant exemptions, condition 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 purpose of the application of the code.

Finally, the bill makes some technical amendments designed to improve the administration of the act, including allowing a 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 including an amendment to support a waiver, reduction or refund of fees by the commissioner. I commend the bill to the council and seek leave to have the explanation of clauses inserted into Hansard without my reading them.

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 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 substituted. The new definition reflects the policy for a 4am closure of venues and clarifies that extended trade can be for the whole or any part of the hours listed.

A pointer definition to the new concept of management plans in new section 11B is included in the interpretation provision.

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, for the new concept of management plans and for the power to impose conditions relating to public order and safety.

5—Insertion of section 7A

New section 7A provides that closure hours will not apply to the casino except to such part as is prescribed by the regulations.

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

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

7—Insertion of section 11B—Commissioner's management plans

The new section contemplates management plans for licensed premises, or licensed premises of a specified class, within specified geographical areas designed to improve public order and safety in those areas, in particular, through measures designed to reduce alcohol-related crime and antisocial behaviour. A plan is to be developed in consultation with affected licensees and interested persons are to be given a reasonable opportunity to make written submissions in relation to the plan. The plans are relevant to the imposition of conditions under section 43.

8—Amendment of section 28A—Criminal intelligence

Section 28A is modified to take account of the fact that the grounds for imposing a licence condition to improve public order and safety or to issue a public order and safety notice may involve criminal intelligence.

9—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.

10—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.

11—Amendment of section 32—Hotel licence

The trading hours for a hotel licence for consumption of liquor on or off the licensed premises are altered so that, without an extended trading authorisation, the usual hours on any ordinary day are 7am to midnight. An extended trading authorisation may be granted to allow trading between midnight and 4am. Trade may not occur between 4am and 7am.

The holder of a hotel licence is not to be able to sell liquor in a designated dining area to a diner for consumption in that area with or ancillary to a meal provided by the licensee in that area between 4am and 7am on any day.

The holder of a hotel licence is not to be able to sell liquor in a designated reception area to a person attending a reception for consumption in that area between 4am and 7am on any day.

12—Amendment of section 33—Residential licence

Currently a residential licence, if the conditions of the licence so provide, authorises the licensee to sell liquor on any day except Good Friday and Christmas Day for consumption on the licensed premises by persons seated at a table or attending a function at which food is provided, although an extended trading authorisation is required for extended trade. This is altered so that the authorisation does not extend to the period between 4am and 7am on any day.

13—Amendment of section 34—Restaurant licence

Currently a restaurant licence, if the conditions of the licence so provide, authorises the licensee to sell liquor on any day except Good Friday and Christmas Day for consumption on the licensed premises by persons seated at a table or attending a function at which food is provided, although an extended trading authorisation is required for extended trade. This is altered so that the authorisation does not extend to the period between 4am and 7am on any day.

14—Amendment of section 35—Entertainment venue licence

Currently, the holder of an entertainment venue licence is authorised to sell liquor for consumption on the licensed premises, in a designated dining area, with or ancillary to a meal provided by the licensee at any time. This is altered so that the authorisation does not extend to the period between 4am and 7am on any day.

Currently an entertainment venue licence authorises the licensee to sell liquor for consumption on the licensed premises at any time when live entertainment is provided between 9pm on one day and 5am on the next. The provision is altered so that the authorisation is only until 4am on the next day.

Currently an entertainment venue licence, if the conditions of the licence so provide, authorises the licensee to sell liquor on any day except Good Friday and Christmas Day for consumption on the licensed premises by persons seated at a table or attending a function at which food is provided, although an extended trading authorisation is required for extended trade. This is altered so that the authorisation does not extend to the period between 4am and 7am on any ordinary day.

15—Amendment of section 36—Club licence

The trading hours for a club licence for consumption of liquor on the licensed premises are altered so that, without an extended trading authorisation, the usual hours on any ordinary day are 7am to midnight. An extended trading authorisation may be granted to allow trading between midnight and 4am.

The holder of a club licence is not to be able to sell liquor in a designated dining area to a diner for consumption in that area with or ancillary to a meal provided by the licensee in that area between 4am and 7am on any day.

The holder of a club licence is not to be able to sell liquor in a designated reception area to a person attending a reception for consumption in that area between 4am and 7am on any day.

16—Amendment of section 39—Producer's licence

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

17—Amendment of section 40—Special circumstances licence

The authorisation provided by a special circumstances licence is altered so that it does not authorise the licensee to sell liquor for consumption on or off the licensed premises between 4am and 7am (except to any lodger in the licensed premises for consumption on or off the licensed premises). An extended trading authorisation is required for trade between midnight and 4am.

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

18—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 or management plans. This is necessary because of the diverse circumstances covered by these licences.

19—Amendment of section 42—Mandatory conditions

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

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

Currently, under section 43(2)(f), the Commissioner may, on his or her own initiative, impose a licence condition if the licensing authority considers the condition necessary for public order or safety. This power is replaced with a power to impose a condition that the Commissioner considers will improve public order and safety at any time in order to give effect to a management plan, or a variation of a management plan, affecting the licence, or at any other time.

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.

21—Amendment of section 44—Extended trading authorisation

Currently, section 44(4) provides that an extended trading authorisation cannot authorise extended trade in liquor on the day after Good Friday or the day after Christmas Day. The provision is amended so that, when the day after Christmas Day is a Sunday extended trading may be authorised.

22—Amendment of section 45—Compliance with licence conditions

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

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

25—Amendment of section 101—Record of lodgers

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

27—Amendment of section 105—Entertainment on licensed premises

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

29—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.

30—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.

31—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.

32—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.

33—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.

34—Amendment of section 135—Evidentiary provision

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

35—Amendment of section 136—Service

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

36—Amendment of section 138—Regulations

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

37—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 the new arrangements, in particular the withdrawal of authorisations to sell liquor between 4am and 7am on any day. Clause 3 contemplates consequential variations to gaming machine licences to ensure that gaming operations cannot be conducted between 4am and 7am on any day.

Debate adjourned on motion of Hon. D.W. Ridgway.

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