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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
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LIQUOR LICENSING (MISCELLANEOUS) AMENDMENT BILL

Second Reading

Second reading.

The Hon. G.E. GAGO (Minister for Agriculture, Food and Fisheries, Minister for Forests, Minister for Regional Development, Minister for the Status of Women, Minister for State/Local Government Relations) (16:56): 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.

The relationship between excessive alcohol consumption, offending and public disorder is well established. As well as the detrimental effect to individuals, families, businesses and the community, the costs of policing, emergency services and health services must be met from the public purse. This means resources are stretched and may not be available to respond to other needs within the community.

The statistics are alarming:

There are approximately 12,500 hospital admissions and 600 deaths attributable to alcohol in South Australia per year.

Recent Australian research indicates that an estimated 53 per cent of injured persons presenting to hospital emergency departments between the hours of 10pm and 7am had consumed alcohol in the preceding 6 hours.

In South Australia in 2009-10, alcohol was the most common principal drug of concern for which treatment was sought from Drug and Alcohol Services South Australia, accounting for 56 per cent of all treatment episodes where clients were seeking treatment.

South Australia Police data indicates that in 2008-09 in the Adelaide CBD, 58 per cent of victim-reported crime was related to alcohol.

This Bill amends the Liquor Licensing Act 1997 (the Act) to better equip the Liquor and Gambling Commissioner, his staff and police to address problem drinking and alcohol-related violence. Greater responsibility will be placed upon licensees to prevent excessive alcohol-consumption occurring on their premises. The Commissioner's power to take action against licensees for inappropriate management of premises and to place restrictions on the sale of liquor where necessary for public order, safety, health or welfare grounds will be strengthened and the objects of the Act will be amended to specifically address alcohol-related violence and property damage.

At the same time the Bill introduces amendments to the Act to streamline administrative processes and to reduce red tape on both the liquor industry and government. The requirement that a responsible person be approved will be made more flexible so that approval will apply industry-wide. Notice requirements will be made less onerous. The requirement that separate entertainment approval be obtained for over-sized television screens will go. Companies limited by guarantee will be given the right to hold club licences. The processes by which dry areas are declared and educational courses are exempt from the need to be licensed will be made less onerous. The Bill also proposes a number of minor technical amendments to the Act to improve the efficiency and effectiveness of liquor regulation and to address out of date references to Commonwealth legislation.

Measures aimed at curbing excessive alcohol consumption and alcohol-related violence

I turn first to the amendments aimed at assisting regulatory authorities to address excessive alcohol consumption and alcohol-related violence.

Amendment to the Objects of the Act

The objects of the Act, as set out in section 3, make no reference to ensuring that the sale and supply of liquor occurs in a manner that minimises the risk of intoxication and associated violent or anti-social behaviour.

This has been highlighted by the Commissioner as a deficiency.

The Bill therefore amends section 3 to state this as an object of the Act.

This amendment will send a clear and important message to the community, licensees and regulatory officials about how licensed premises should be managed.

Codes of Practice

Section 11A of the Act provides that the Commissioner may, by notice in the Gazette, publish a code of practice that has been approved by the Minister. A Code of practice may impose on licensees measures to:

minimise the harmful and hazardous use of liquor or promote responsible attitudes in relation to the promotion, sale, supply and consumption of liquor;

minimise offence, annoyance, disturbance or inconvenience to people who reside, work or worship in the vicinity of licensed premises, or minimise prejudice to the safety or welfare of children attending kindergarten or school in the vicinity;

prevent offensive behaviour on licensed premises;

protect the safety, health or welfare of customers, staff, or minors on licensed premises;

ensure public order and safety at events expected to attract large crowds;

impose special requirements for the sale of liquor for consumption on licensed premises between 4am and 7am for the purpose of reducing alcohol-related crime and anti-social behaviour; and

promote compliance with the Act.

The Commissioner has proposed an amendment to section 11A to better equip him to deal with excessive alcohol consumption in licensed premises.

One of the measures proposed to be included in the Late Night Liquor Code of Practice is a ban on licensees supplying free or discounted liquor to patrons.

'Happy hours', as they are known, give patrons access to cheap (sometimes very cheap) alcoholic drinks, promoting the type of rapid and excessive consumption that quickly leads to high levels of intoxication. In addition to the health implications, highly intoxicated people are more likely to be involved in acts of alcohol-related violence both as perpetrators and victims.

Of particular concern to the Commissioner and the government are happy hour promotions conducted late at night when many patrons have already consumed large amounts of alcohol. Both the Commissioner and the government believe these types of promotions should be limited to early in the evening when patrons have had far less to drink.

Unfortunately, as currently drafted, section 11A permits measures in a Code of Practice that impose special requirements for the sale of liquor, such as a limitation on promotions involving free or heavily discounted liquor, to apply only between the hours of 4am and 7am.

The government considers this to be an unreasonable restriction on the Commissioner's ability to regulate the behaviour of licensees.

The Bill therefore amends section 11A to include a new subsection (2)(fb) that allows a Code of Practice to impose special requirements in respect of the sale of discounted liquor, or the giving away of liquor for consumption on licensed premises between midnight and 7am.

Power of a licensing authority to impose conditions

Section 43 of the Act confers on a licensing authority the power to impose conditions on a liquor licence.

The Commissioner has recommended section 43 be amended to extend the power conferred on him impose conditions where he considers it necessary for public order or safety be extended to include reasons of public health and welfare. This will enable the Commissioner to act where the sale of liquor in a particular area is leading to excessive and dangerous consumption levels.

The negative impact of this on the community can be widely felt, going beyond public order and safety, affecting tourism, infrastructure (such as transport and accommodation) and local health services, including ambulance and emergency departments. An example that has been brought to the government's attention is of rural or remote communities where itinerant people descend on the town purchasing large quantities of cheap alcohol (such as large casks of cheap and fortified wine) which they consume in large quantities. As well as causing serious harm to their own health, these people often become victims or perpetrators of crime. This creates an enormous load on the resources of local councils, police and health services.

The government has accepted the Commissioner's advice. The Bill amends section 43 to extend the Commissioner's power to act of his own motion to where he considers it to be in the public interest. Section 4 of the Act is amended to include a definition of 'public interest', defined to include, but not be limited to, matters relating to:

(a) public order and safety; and

(b) public health (whether generally or in respect of particular groups or communities); and

(c) the welfare of particular groups or communities.

It is relevant to note that a licensee will retain the right to apply to the Licensing Court for a review of the Commissioner's decision if they are dissatisfied with the exercise by the Commissioner or his or her power under section 43 and amendments to subsection (1) make clear that a licensing authority may vary, suspend or revoke a condition impose on a licence.

Sale or supply of liquor to intoxicated persons

The offence of sale or supply of liquor to intoxicated persons is contained in section 108 of the Act.

Section 108 contains two offences. The first is the offence of selling or supplying liquor to an intoxicated person. The second is selling or supplying 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.

Where liquor is sold in breach of section 108, the licensee, the responsible person for the licensed premises and the person by whom the liquor is sold or supplied are each guilty of an offence.

Prosecution of offences under section 108 has proven to be problematic. SAPOL has identified several aspects to the offence provision that make prosecution difficult:

'intoxication' is not defined. SAPOL must, as a consequence, rely upon the 'faculty impairment' offence in subsection 108(1)(b);

neither 'intoxication' under subsection 108(1)(a) nor the faculty impairment test in subsection 108(1)(b) cover intoxication by drugs. SAPOL advise that this makes prosecution extremely difficult.

To address these shortcomings, the Commissioner and SAPOL propose that sections 4 and 108 be re-drafted to:

include a definition of 'intoxicated', to be based on the definition used in New South Wales and the Australian Capital Territory, but extended to cover intoxication by drugs. The definition would be:

(a) the person's speech, balance, co-ordination or behaviour is noticeably affected; and

(b) it is reasonable in the circumstances to suspect that the affected speech, balance, co-ordination or behaviour is the result of the consumption of liquor or other substances; and

repeal the 'faculty impairment' offence so that there is one offence, that of selling or supplying liquor to an intoxicated person on licensed premises.

The government has accepted this advice and the Bill amends sections 4 and 108 accordingly.

Offensive and disorderly behaviour

Section 117A of the Act creates the offence of behaving in an offensive or disorderly manner in or in the vicinity of licensed premises. The maximum penalty for the offence is $1,250. The expiation fee is $160.

Incidents of serious alcohol related violence all too often arise out of disorderly or offensive behaviour. The Commissioner advises that the current expiation fee of $160 does not properly reflect the seriousness of the consequences that can (and do) flow from a person who is affected by alcohol behaving disorderly or offensively.

The Commissioner recommends the expiation fee be increased to $500.

The government agrees with the Commissioner's view. While the offence of behaving in a disorderly or offensive manner is not, of itself, a particularly serious offence (reflected in the fact that the offence does not apply to behaviour involving violence or threat of violence), an exchange of insults can quickly spiral into something far more serious.

The Bill amends section 117A to increase the expiation fee in line with the Commissioner's recommendations.

Cause for disciplinary action

Section 119 of the Act sets out the circumstances in which there is proper cause for disciplinary action against a person licensed or approved under the Act.

Section 119(1)(c) provides that proper cause for disciplinary action exists if the person is or has been licensed or approved under the Act but is not a fit and proper person.

Section 56(1)(b) of the Act provides that where the applicant for a licence is a trust or corporate entity, each person who occupies a position of authority in the entity must be a fit and proper person to occupy such a position in an entity holding a licence of the class sought.

The Commissioner has asked that section 119 be amended to clarify that, where the licensee is a trust or corporate licensee, the person (being the trust or corporate entity) is not a fit and proper person if any person who occupies a position of authority in the trust or corporate entity is not a fit and proper person. This will allow disciplinary action to be taken against a licensee that is a trust or company where, for example, one of the directors ceases to be a fit and proper person and is not removed from that capacity.

I believe it sensible to clarify the effect of section 119(1)(c) as recommended by the Commissioner. The Bill amends section 119 accordingly.

Commissioner's power to deal with disciplinary matter by consent.

Section 119A(1) of the Act provides that if, the Commissioner is of the opinion that proper grounds for disciplinary action exist, and the person liable to the disciplinary action consents to such a course of action, the Commissioner may determine not to lodge a complaint with the Court and instead:

(a) obtain from the person an undertaking directed against continuation or repetition of the relevant conduct; or

(b) in the case of a person licensed under this Act, add to, or alter, the conditions of the licence; or

(c) in the case of a person licensed or approved under this Act, suspend or revoke the licence or approval.

Consistent with the Crown Solicitor's advice, the Commissioner has recommended his power under section 119A be expanded to empower him, with the consent of a licensee, to vary the trading hours fixed by the Act or a licensing authority in relation to a licence.

The government accepts the Commissioner's recommendation. The Bill amends section 119A accordingly.

Imposition or suspension of licence conditions pending disciplinary action

Section 120A of the Act provides that the Commissioner may, if of the opinion that it is desirable to do so in the public interest:

(a) suspend the approval of a person the subject of a complaint;

(b) impose conditions on the person's approval limiting the authority conferred by the approval,

pending hearing and determination of the complaint.

As a safeguard, where the Commissioner exercises his or her power under section 120A, the Licensing Court may revoke or vary the suspension or conditions imposed by the Commissioner.

This power does not extend to the imposition or suspension of conditions on a licence pending the hearing and determination of a complaint against a licence. This is because the Commissioner cannot make orders on a matter that is before the Court, i.e., where the Court's jurisdiction has been invoked under section 120 of the Act.

The Commissioner has advised that the hearing and determination of disciplinary action against a licensee can take several months during which time the ability to impose or suspend conditions of a licence would help him manage problematic licensees and premises.

To address this the Commissioner has recommended he be given the power under section 120A to:

impose a condition on a licence (including a condition varying the trading hours fixed by the Act or a licensing authority in relation to a licence);or

vary or suspend a condition of a licence,

where he believes disciplinary proceedings are warranted. I accept the Commissioner's advice. The Bill amends section 120A accordingly.

This power will be subject to an amended subsection 120A(2) which will provide a licensee dissatisfied by the Commissioner's decision to take action pending the determination of disciplinary proceedings with a right to seek a review of the Commissioner's decision.

Disciplinary action

Section 121 of the Act provides that, on the hearing of a complaint, the Licensing Court may, if it is satisfied on the balance of probabilities that there is proper cause for disciplinary action against a person, by an order or orders do one or more of the following:

(a) in the case of a person licensed under the Act, add to, or alter, the conditions of the licence;

(b) in the case of a person licensed or approved under the Act, suspend or revoke the licence or approval;

(c) in the case of any person—

(i) reprimand the person;

(ii) impose a fine not exceeding $15,000 on the person;

(iii) disqualify the person from being licensed or approved under the Act.

Subsection (5) provides that a condition may be imposed under section 121:

(a) limiting the kinds of liquor that may be sold under the licence;

(b) limiting the times when liquor, or liquor of a particular kind, may be sold under the licence; or

(c) limiting in some other way the authority conferred by the licence.

So as to ensure consistency with the proposed amendments to sections 43, 119A and 120A, the Bill amends section 121 so that a condition imposed by the Court upon a disciplinary finding may vary the trading hours fix by or under the Act. This amendment will have no legal effect. It is proposed simply to ensure consistency in the drafting of sections 43, 119A, 120A, 121 and 128B.

Powers of authorised officers

Section 122 of the Act provides that an authorised officer (the Commissioner, an inspector or a police officer) may:

enter licensed premises; and

inspect licensed premises; and

require a person to produce those books of account or other records for inspection; and

require a person to answer any question put by the authorised officer on that subject; and

examine books of account or other records produced; and

make copies of, or take extracts from, any such books of account or other records; and

retain the books of account or other records for a reasonable period for the purposes referred to above.

The Commissioner has recommended amendments to section 122 to clarify that an authorised officer may exercise the powers stated in that provision individually. The lack of clarity stems from the current drafting. Subsection (1) for example provides that an authorised officer may, at any reasonable time, (a) enter premises, and (b) inspect premises, and (c) require the production of documents etc.

The Commissioners seeks a drafting change to clarify that the power to, for example, require the production of document, may be exercised without the authorised officer first having entered the premises.

The government agrees that, as the Act is being amended, it is better to clarify that an authorised officer may exercise any of the powers granted under section 122 individually or in combination. The Bill amends section 122 to so clarify the use of the powers.

Public Order and Safety Notices

Section 128B of the Act empowers the Commissioner, in his or her absolute discretion, to issue a public order and safety notice in respect of a licence 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.

A public order and safety notice may:

impose a condition on a licence; or

vary or suspend a condition of a licence; or

vary the trading hours fixed by a licensing authority in relation to a licence; or

require licensed premises to be closed and remain closed for specified hours (despite a requirement of the Act to keep the premises open to the public during those hours); or

suspend a licence.

A public order and safety notice remains in force for no longer than 72 hours and the Commissioner may only issue another notice in respect of the same licence within 72 hours with the approval of the Minister.

To address the concern identified by the Crown Solicitor with regard to conditions that purport to vary statutory trading hours, the Bill amends section 128B to make clear the Commissioner may vary the trading hours of licence as fixed by the Act.

Subsection 128B(7) requires the Commissioner to replace the reference to the Commissioner including information about public order and safety notices in 'the Commissioners annual report'. The Commissioner advises there is no requirement that he provide an annual report and suggests this reference be amended to require him to report annually to the Minister about public order and safety notices. I agree. The Bill amends subsection 128B(7) to require the Commissioner to report annually to the Minister on the use of the power.

A new subsection (9) is also added. New subsection (9) is an evidentiary aid. It provides that a certificate issued by the Minister certifying approval to authorise the issue of a second public order and safety notice within 72 hours is, in the absence of proof to the contrary, proof of the matter certified.

Statutory trading rights

As a general rule, pursuant to the relevant section of the Act, a liquor licence authorises the sale of liquor during prescribed hours. Some, for example restaurant and entertainment venue licences, authorise the sale of liquor at any time for consumption with food.

There are a number of provisions in the Act that purport to give a licensing authority the power to vary the trading hours attaching to a licence. Section 17(1)(b)(i) provides that, where a contested application for a liquor licence is resolved by conciliation, the Commissioner must determine the matter so as to reflect the agreement reached at conciliation. Section 43(1) provides a licensing authority with the power to impose any condition on a liquor licence the authority considers appropriate.

Conditions limiting the trading hours of licensees are commonly imposed by the Commissioner under section 17(1)(b)(i) to reflect the agreement reached by the parties to a conciliation and by licensing authorities under section 43. This has been so since the Act commenced in 1997.

The Commissioner has raised concerns with the government that where the Act provides that a particular licence authorises the licence holder to trade at certain hours, a condition imposed by a licensing authority that purports to alter that right could be challenged as invalid. The risk identified by the Commissioner is that a court would find that imposing such a condition would have the effect of amending the Act, which is a function of Parliament only.

The effect of this is to cast doubt on the Commissioner's power to give effect to conciliated outcomes as required by section 17(1)(b)(i) where the agreement is that licensing hours be limited to less than the hours permitted by the Act, and to likewise cast doubt on a licensing authority's power to restrict a licensee's statutory trading rights by condition imposed under section 43, even where the licensing authority considers that necessary for reasons of public order and safety. It has also cast doubt on the validity of existing conditions.

In order to clarify that a licensing authority may vary the trading rights prescribed by the Act in respect of a particular category of licence, the Commissioner has recommended the provisions of the Act fixing the statutory trading rights for each category of licence be amended to make clear that these rights are subject to the power of a licensing authority to impose conditions, including conditions varying the prescribed trading hours. To prevent challenges to existing conditions, the Commissioner has recommended the inclusion of a provision retrospectively validating conditions restricting trading rights imposed before commencement of these amendments.

The government has accepted the Commissioner's advice and the Bill amends sections 32, 33, 34, 35, 36, 37, 38, 39, 39A, 40, 40A and 41 accordingly. Consequential amendments are made to sections 43, 119A, 120A, 121 and 128B. A provision retrospectively validating existing conditions is also included.

Red Tape Reduction Measures

I now turn to the amendments that will streamline administrative processes and reduce the regulatory burden on industry and regulators.

Approval to hold a Club Licence

Sections 49(1) and (2) of the Act provide that a club licence may only be held by a club that is:

a non-profit association incorporated under the Associations Incorporations Act 1985; or

an association that is unable to become incorporated; or

an unincorporated association where it would be inappropriate for the association to become incorporated.

Sections 49(3) and (4) lay down additional requirements relating to membership and governance, membership fees and the keeping of records that must be satisfied by a club before it is entitled hold a club licence.

In its inquiry into the suitability of certain close associates of the South Australian Jockey Club, the Independent Gambling Authority recommended that the government amend the Act and the Gaming Machines Act to remove any impediment or disincentive to the SAJC or a body in a like position from becoming a body incorporated under the law relating to companies.

This requires an amendment to section 49 of the Act to permit a company that is limited by guarantee (being a company established for non-profit purposes) to hold a club licence.

Regulation of companies limited by guarantee by ASIC under the Corporations Act 2001 and other Commonwealth legislation is rigorous. In many cases, the company structure suits the organisation better that the incorporated association structure. The government does not believe it is, or should be, the role of government to dictate, through the liquor licensing regime, the legal structure that must be adopted by not-for-profit clubs.

I have consulted the Commissioner. He has no objection to the Act being amended to permit the holder of a club licence to also be a company limited by guarantee.

The necessary amendment to section 49 is included in the Bill.

Approval of 'responsible persons'

Section 71 of the Act provides that the licensing authority may, on application by a licensee, approve a natural person or persons as a responsible person or responsible persons for the business conducted under the licence.

Section 97(1)(a) of the Act provides that the business conducted under a liquor licence must, at all times when the licensed premises are open to the public, be personally supervised and managed by a natural person (a 'responsible person') who is either:

(i) the licensee or a director of the licensee; or

(ii) a person approved by the licensing authority as a responsible person for the business conducted under the licence.

The effect of sections 71 and 97 is that a person is approved as a responsible person only for the premises operated under a particular licence.

This can be contrasted with approval to act as a crowd controller. Section 71A provides for the Commissioner to approve a person as a crowd controller. Once approved, the approval operates industry-wide.

The liquor industry has for a considerable period of time argued that approval of a person as a 'responsible person' for the purposes of section 97 should be industry-wide, as many people in the industry work in more than one premises. The requirement that a person be approved for each premises at which they work is unnecessary, as they are subject to the same test (whether they are a 'fit and proper person') in respect of each application, and the requirement imposes unnecessary regulation and costs on licensees.

To reduce the regulatory burden on licensees, the Bill amends sections 71 and 97 to provide for industry-wide approval as a 'responsible person'.

Display of licence

Section 109 of the Act requires a licensee to keep a copy of the licence, showing all conditions of, and endorsements on, the licence displayed at or near the front entrance to the licensed premises at all times. A licensee who fails, without reasonable excuse, to comply with this requirement is guilty of an offence which carries a maximum penalty of $10,000 or an expiation fee of $1,200.

The Commissioner has advised me that the current expiation fee is too high given the relatively minor nature of the offence. He advises that his officers are reluctant to issue expiation notices for this reason. He has suggested the expiation fee be reduced to $160.

The government agrees with the Commissioner's recommendation. The Bill amends section 109 accordingly.

Minors

Sections 111, 112 and 113 of the Act regulate the entry of minors into licensed premises and areas of licensed premises. Each provision refers to 'a part' of the licensee premises. The Commissioner advises that plans it issues refer to 'areas' not 'parts'. The Commissioner has requested sections 111, 112 and 113 be amended to refer to 'an area' rather than 'a part' of licensed premises in order to reduce confusion for licensees and inspectors. The Bill amends these provisions accordingly.

Both sections 112 and 113 require a licensee to erect notices regarding areas prohibited to minors both at the entrance to each area and the entrance to the premises.

Industry representatives have suggested that the display of a notice at the entry to premises is unnecessary and of little assistance to patrons or licensees. The Commissioner agrees and has proposed that the requirements to display a notice in sections 112 and 113 be amended so that a notice at the entry to the area that is prohibited to minors is all that is required. The Bill amends sections 112 and 113 accordingly.

Definition of 'entertainment'

Section 105 of the Act prohibits a licensee, other than one that holds an entertainment venue licence, from using any part of the premises that is subject to the licence for entertainment unless a licensing authority has issued an entertainment consent.

Section 4 defines 'entertainment' to mean:

(a) a dance, performance, exhibition or event (including a sporting contest) calculated to attract and entertain members of the public; or

(b) a visual display but not if provided by means of a television screen not exceeding dimensions fixed under the regulations.

Regulation 4 of the Liquor Licensing (General) Regulations 2012 prescribes, for the purpose of paragraph (b) of the definition of entertainment, entertainment that includes a visual display but not if provided by means of a television screen the dimensions of which do not exceed 2 metres by 2 metres.

The government believes that requiring a licensee to obtain separate entertainment consent in order to run a television in the premises, whatever the size, is archaic. As technology progresses, television screens are becoming larger and larger. This requires regular amendment of regulation 4.

The Bill amends the definition of 'entertainment' so that it no longer includes a visual display by means of a television of any size accordingly.

Codes of Practice

I have already outlined two amendments to section 11A to enhance the Commissioner's power to regulate the conduct of licensees through Codes of Practice.

In addition to those amendments the Bill amends section 11A to address a concern raised by industry.

Section 11A of the Act provides that the Commissioner may, by notice in the Gazette, publish a code of practice that has been approved by the Minister.

The Commissioner has proposed a Late Night Trading Code of Practice (Late Night Code) that will apply to venues trading between 3am and 7am. One of the requirements that will apply under the Late Night Code will be that of a Drink Marshal.

A Drink Marshal is an RSA (responsible service of alcohol) trained staff member whose duties will be to patrol the premises and observe patrons, identifying those who should be refused service, as well as ensuring the other obligations under the Act and the General Code of Practice are being met. A Drink Marshal will provide assistance to bar staff to identify and stop service to intoxicated patrons and to security staff to identify troublesome patrons who need to be removed.

Industry representatives have raised concerns that a drink marshal's duties may come within the meaning of 'controlling crowds' under the Security and Investigation Agents Act 1995 thereby requiring a drink marshal to be licensed under that Act.

This is not the government's intention.

To address these concerns the Bill amends section 11A to make clear that a person performing prescribed duties under a Code of Practice is exempt from the operation of the Security and Investigation Agents Act 1995. Amendments to the regulations will prescribe the functions of a drink marshal for this purpose.

Educational courses

Under section 29 of the Act, a person who sells liquor without a licence commits an offence. Section 29 is subject to section 30 which provides that a licence is not required for the sale of liquor in specified circumstances, one of which, in subsection 30(c), is where the liquor is supplied in the course of an educational course declared by the regulations to be an approved course for the purposes of section 29.

Approved courses are prescribed by regulation 7(1) of the Liquor Licensing (General) Regulations 2012.

In order to enable timely exemptions for schools and training institutions, the Commissioner recommends that it would be more appropriate that exemptions for schools and training institutions be approved by the Minister and published in the Gazette.

The government agrees with the Commissioner's suggestion. The Bill amends section 30 accordingly.

Wine Australia

Section 39(1e) of the Act provides that, if a licensee's production premises are in a particular wine region and are to be used for the production of wine, any site specified in a producer's event endorsement must be in that wine region. A 'wine region' is defined in subsection (4) to mean a geographical area in relation to which a geographical indication is in force under the Australian Wine and Brandy Corporation Act 1980. The Australian Wine and Brandy Corporation Act 1980 has been renamed the Wine Australia Corporation Act 1980. The Commissioner has asked that this reference be updated. The Bill amends section 39 accordingly.

Dry areas

Section 131 of the Act provides for the making of regulations to prohibit the possession and consumption of liquor in a public place.

The Liquor Licensing (Dry Areas) Regulations 2012 define the particular public places where the possession and consumption of liquor is prohibited. The regulations include detailed maps and descriptions of the dry areas.

To streamline the process through which dry areas are proclaimed, the Bill amends the Act to remove the requirement that a dry area prohibition be imposed by regulation. Under the amended provision:

long term dry areas will be approved by the Minister; and

short term dry areas will be approved by the Commissioner.

Dry areas will be established by the publication of a notice in the Government Gazette which will include a description of the area. An application for a dry area will still be made by the Council to the Commissioner. Councils will be required to include with an application supporting documentation, including, but not limited to, a detailed description and map of the proposed dry area and a letter of support from the local police and Member of Parliament. The Commissioner will then assess the application and, in the case of a long term dry area application, advise the Minister whether or not to approve the application, and, in the case of a short term dry area application, determine whether the approve the application or not.

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 3—Objects

This clause amends section 3 of the Act to add to the objects those set out in new paragraph (f).

5—Amendment of section 4—Interpretation

This clause amends section 4 of the Act, inserting or amending key terms used in provisions inserted or amended by this measure.

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

This clause relieves employees etc in licensed premises from needing to comply with the Security and Investigation Agents Act 1995 in respect of certain functions prescribed by the regulations.

The clause also extends the scope of codes of practice to include the protection of the public interest.

7—Amendment of section 30—Cases where licence is not required

This clause amends section 30 of the Act to allow the Minister to exempt certain person from the provisions of the Act relating to sales by notice in the Gazette rather than by regulation as the Act currently requires.

8—Amendment of section 31—Authorised trading in liquor

This clause amends section 31 of the Act to make clear that the authorisations conferred by a licence are subject to modification under the Act.

9—Amendment of section 32—Hotel licence

This clause amends section 32 of the Act in the same way as the amendment in clause 31.

10—Amendment of section 33—Residential licence

This clause amends section 33 of the Act in the same way as the amendment in clause 31.

11—Amendment of section 34—Restaurant licence

This clause amends section 34 of the Act in the same way as the amendment in clause 31.

12—Amendment of section 35—Entertainment venue licence

This clause amends section 35 of the Act in the same way as the amendment in clause 31.

13—Amendment of section 36—Club licence

This clause amends section 36 of the Act in the same way as the amendment in clause 31.

14—Amendment of section 37—Retail Liquor Merchant's licence

This clause amends section 37 of the Act in the same way as the amendment in clause 31.

15—Amendment of section 38—Wholesale Liquor Merchant's licence

This clause amends section 38 of the Act in the same way as the amendment in clause 31.

16—Amendment of section 39—Producer's licence

This clause amends section 39 of the Act in the same way as the amendment in clause 31.

17—Amendment of section 39A—Direct sales licence

This clause amends section 39A of the Act in the same way as the amendment in clause 31.

18—Amendment of section 40—Special circumstances licence

This clause amends section 40 of the Act in the same way as the amendment in clause 31.

19—Amendment of section 40A—Small venue licence

This clause amends section 40A of the Act in the same way as the amendment in clause 31.

20—Amendment of section 41—Limited licence

This clause amends section 41 of the Act in the same way as the amendment in clause 31.

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

This clause amends section 43 of the Act, clarifying that the licensing authority may take the specified actions in respect of conditions on a licence, and setting out when that can occur. This includes imposing or varying conditions in a way that limits the authority conferred by a liquor licence, for example by reducing trading hours below those contemplated by Part 3 Division 2 of the Act.

22—Amendment of section 49—Special provision for club licences

This clause amends section 49 to of the Act to allow a company limited by guarantee under the Corporations Act to hold a club licence.

23—Amendment of section 71—Approval of management and control

This clause amends section 71 of the Act to provide that a person's approval under the section is transferable to other licensed premises or businesses. The current provision means that an approval is for a particular business only.

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

This clause amends section 97 of the Act, and is consequential upon clause 23.

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

This clause substitutes section 108(1) of the Act, and is consequential upon the new definition of 'intoxicated' inserted by clause 5(3).

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

This clause amends section 109 of the Act, bringing the expiation fee into line with similar offences in the statute book.

27—Amendment of section 111—Areas of licensed premises may be declared out of bounds to minors

This clause amends section 111 of the Act to replace the word 'part' with 'area', reflecting current terminology.

28—Amendment of section 112—Minors not to enter or remain in certain licensed premises

This clause amends section 112 of the Act, and is consequential upon clause 27.

29—Amendment of section 113—Notice to be erected

This clause amends section 113 of the Act, and is consequential upon clause 27.

30—Amendment of heading to Part 7A—Offensive or disorderly conduct

This clause makes a consequential amendment to the heading of Part 7A of the Act.

31—Amendment of section 117A—Offensive or disorderly conduct

This clause amends section 117A of the Act, increasing the expiation fee to reflect the seriousness of the offence.

32—Amendment of section 119—Cause for disciplinary action

This clause amends section 119 of the Act, inserting a new subsection (1a) to provide that, when determining whether a licensed person is a fit and proper person for the purposes of section 119(1)(c), if any person who occupies a position of authority in a licensee that is trust or corporate entity is not a fit and proper person, then the licensee is not a fit and proper person.

33—Amendment of section 119A—Commissioner's power to deal with disciplinary matter by consent

This clause amends section 119A of the Act, clarifying that a condition imposed under the section can vary the trading hours in respect of the licence fixed or required by or under the Act.

34—Amendment of section 120A—Commissioner's power to suspend or impose conditions pending disciplinary action

This clause amends section 120A of the Act, extending the scope of the section to allow the Commissioner to take action under the section against a licensee pending the hearing and determination of a complaint.

New subsection (1a) further extends the provision to allow the Commissioner to take specified action even where a complaint has yet to be lodged against a person, provided the Commission is satisfied of the matters set out in the subsection.

The exercise of powers by the Commissioner is reviewable under section 22 of the Act, despite there not being proceedings on foot.

35—Amendment of section 121—Disciplinary action

This clause amends section 121 of the Act. Subclause (1) amends section 121(1)(a) clarifying that a condition imposed under the section can vary the trading hours in respect of the licence fixed or required by or under the Act. Subclause (2) is consequential upon the new definition of 'intoxicated' inserted by clause 5(3).

36—Amendment of section 122—Powers of authorised officers

This clause amends section 122 of the Act, substitution subsection (1) to clarify that the powers of authorised officers set out in the section can be exercised separately.

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

This clause amends section 124 of the Act, and is consequential upon the new definition of 'intoxicated' inserted by clause 5(3).

38—Amendment of section 128B—Power of Commissioner to issue public order and safety notice

This clause amends section 128B of the Act, clarifying that a condition imposed under the section can vary the trading hours in respect of a licence fixed or required by or under the Act, and modifying the reporting obligations of the Commissioner under the section so that he or she must provide a report to the Minister on the operation of the section at least once in every 12 month period.

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

This clause amends section 131 of the Act, allowing the Minister (in the case of longer term dry areas) or the Commissioner (short term dry areas) to establish dry areas by notice in the Gazette rather than requiring it to be done by regulations.

40—Amendment of section 131A—Failing to leave licensed premises on request

This clause amends section 131A of the Act, and is consequential upon the new definition of 'intoxicated' inserted by clause 5(3).

41—Amendment of section 138—Regulations

This clause amends section 138 of the Act, allowing regulations to be made for transitional or savings purposes.

Schedule 1—Transitional provisions

1—Responsible persons

This clause provides that the approval of a person under section 71 of the Liquor Licensing Act 1997 (as in force before the commencement of this clause) will be taken to be approved as a responsible person under section 71 of that Act, as amended by this Act. That is, an approval will be an industry-wide approval despite having been granted in respect of a particular business.

2—Certain conditions taken to be validly imposed etc

This clause clarifies that conditions imposed on a licence that limited the authority conferred by the licence are valid.

Debate adjourned on motion of Hon. J.S.L. Dawkins.

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