Liquor Licensing (Miscellaneous) Amendment Bill

Second Reading

Today, I introduce the Liquor Licensing (Miscellaneous) Amendment Bill 2019. The proposed amendments are largely in support of the review into the Liquor Licensing Act 1997, conducted by the Hon. Mr Tim Anderson QC in 2016, which led to the passage of the Liquor Licensing (Liquor Review) Amendment Act 2017 (the Liquor Review Act).

The Liquor Review Act has been commenced in stages and the final stage is proposed to commence on 18 November 2019. This will predominantly relate to the provisions that create new licence classes that transition the current licence classes to those new classes. Considerable consequential work, including in relation to the drafting of regulations, is being undertaken in the Attorney-General's Department to prepare for the new licensing regime.

With one exception, it is proposed that the amendments that are the subject of this bill be passed by parliament and given royal assent prior to 18 November 2019 so that they may be commenced when the remaining provisions of the Liquor Review Act are proposed to commence. This is reflected in the commencement clause of the bill.

The commencement clause provides that the provision in the bill creating interstate direct sales licences as a new class of licence will commence on proclamation, as this provision will require the making of supporting regulations. The purpose of the proposed amendments, some of which are technical and some more substantive, include:

  • to confer on the commissioner and the court the power to vary or revoke an exemption that has been granted by the commissioner or court or pursuant to a code of practice, but not statutory exemptions conferred by the Liquor Licensing Act itself. The commissioner considers that this would be a useful power to be able to exercise in appropriate circumstances;
  • to provide for fines and expiation fees on breach of codes of conduct to reflect the level of potential risk and significance of the breach;
  • to provide for a streamlined process whereby interstate licensed liquor retailers can obtain a licence in this state. These provisions are modelled on existing provisions in the Northern Territory's Liquor Act;
  • to reflect omitted portions of Mr Anderson's recommendations in respect of on-premises licences, namely, that liquor be able to be sold to a resident of the licensed premises for consumption on or off the premises;
  • to clarify the ability to impose annual fees for short-term licences;
  • to confer power on the Liquor and Gambling Commissioner to refuse a name change for licensed premises. It would be a matter for the commissioner to determine when the name should be refused; for example, the commissioner might refuse a misleading name or an offensive name;
  • to require a licensee to inform the commissioner of any changes to their contact details;
  • to confer on the commissioner and the Licensing Court the ability to exempt a licensee from a mandatory condition or rule that applies to a licence (other than conditions imposed under section 42 of the Liquor Licencing Act). The commissioner considers that this would be another useful power to be able to exercise in appropriate circumstances;
  • to introduce fines of a maximum of $2,500 and expiation fees of $210 for breaches of a direct sales licensee's obligation under section 107A(1) of the Liquor Licensing Act to indicate their licence number in any advertising and their obligation under section 107A(2) to require the prospective purchaser to notify the licensee of their date of birth;
  • to clarify provisions relating to the display of copies of liquor licences on the licensed premises, including that a copy be readily visible to members of the public and be up to date; and
  • to enable records of liquor transactions to be kept out of the state, for example, in servers located interstate.

For the benefit of members, I will now explain more complex provisions in the bill in more detail.

Currently under the Liquor Review Act, where a licensee sells liquor by a direct sales transaction to a person in the state the licensee can only dispatch and deliver the liquor between the hours of 8am and 9pm. This will be changed and clarified so that the obligation is only to deliver the liquor—the relevant factor—between the hours of 8am and 10pm. This will affect holders of the new Interstate Direct Sales Licence, General and Hotel Licence, Club Licence, Packaged Liquor Sales Licence and Liquor Production and Sales Licence when they sell liquor by a direct sales transaction.

The extended time frame is consistent with the period that holders of general and hotel licences, club licences and packaged liquor sales licences will be able to sell liquor on their premises for consumption off the premises. This particular provision was the subject of consultation with Retail Drinks Australia.

The bill makes an amendment to section 50A of the Liquor Licensing Act. This is the provision that relates to the obligation to pay annual fees and contains complex escalating sanctions for non-payment, including the first suspension of the licence under section 50A(5) and then a revocation under section 50A(5b).

When the remainder of the Liquor Review Act commences on 18 November 2019, section 50A(5b) will have the effect that if a person does not comply with a default notice to pay an annual licence fee before the day it is due to be paid, the commissioner may revoke the licence. The bill will change that time frame to non-payment within 60 days of the service of a notice of suspension under section 50A(5a). This change is sought to ensure that any overdue and outstanding invoices are dealt with prior to the ensuing annual fee period, including the revocation of any licences.

As a further red-tape reduction measure, the bill proposes that a licensee should be able simply to notify the commissioner if the licensee has reduced the number of trading hours, or capacity of the premises or no longer trades under endorsements previously applicable to the licence. The commissioner would then vary the licence accordingly. Currently, they would have to formally apply to the commissioner to make this change. This is proposed to be a notification process only and licensees will not receive a pro rata refund of fees as this is not consistent with current practice.

The bill would enable the commissioner to place on the commissioner's website an application required to be advertised under the Liquor Licensing Act, and associated material. Practically speaking, any person would then be able to access the material. Currently, the commissioner is only obliged to make this information available for inspection by a 'person with a genuine interest', who then is restricted to using that information only for the purpose of making submissions to the commissioner under the Liquor Licensing Act or intervening in proceedings.

The removal of the reference to persons with a genuine interest is necessary to facilitate inspection via the website, as it will be virtually impossible to determine if the person inspecting has a 'genuine interest' in doing so. Such persons would, however, still be subject to the restrictions on using the information so inspected.

The Liquor Review Act will insert section 65A into the Liquor Licensing Act in November 2019. Section 65A applies where a number of incorporated associations, each of which is the holder of a club licence under the Liquor Licensing Act, seek to amalgamate under the Associations Incorporation Act 1985 as a new single incorporated association that is to carry on business at the licensed premises of one of amalgamating clubs.

This provision will allow the commissioner to revoke the club licences of the amalgamating clubs and grant a new club licence in respect of those premises in favour of the single incorporated association. However, where one of the amalgamating clubs also holds a gaming machine licence under the Gaming Machines Act 1992, the desire of the amalgamating clubs may be that the new single incorporated association should continue to have the benefit of that licence at the premises at which the gaming machine licence applied.

The difficulty is that, as section 65A is currently drafted, section 34 of the Gaming Machines Act relevantly provides that, where a liquor licence is revoked, any gaming machine licence held by the licensee in respect of the same premises will be taken to have also been revoked. This outcome is not intended by the government. The intent of the amendment to section 65A in the present bill is that, if an amalgamating club also holds a gaming machine licence, the club's liquor licence will not be revoked but a replacement licence will issue in the name of the new single incorporated body, thereby avoiding the revocation of the club's gaming machine licence.

Finally, the bill would enable a prescribed person to require production of proof of age only where the prescribed person reasonably suspects the other person is a minor. This was the position that existed prior to 24 September 2018, when section 115 of the Liquor Licensing Act was amended by the liquor review act to remove this as a precondition to the exercise of the power.

Section 115 now applies to empower a prescribed person to require another person to produce evidence of their age simply if the other person is on, about to enter or in the vicinity of licensed premises or is, or has recently been, in possession of liquor. The commissioner considers that this power is excessive and open to misuse. SAPOL were also consulted on this amendment. I commend the bill to members and table a copy of the explanation of clauses.