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Liquor Licensing (Liquor Review) Amendment Bill 2016 – what you need to know (December 14th, 2016)

Further to former Supreme Court Judge, the Hon. T.R. Anderson’s Review of the Liquor Licensing Act 1997 (see our Alert), the State Government has now released the draft Liquor Licensing (Liquor Review) Amendment Bill 2016 for consultation.

Consultation on this draft Bill is open until 5:00pm on Friday 6 January 2017.

The draft Bill, draft Community Impact Assessment Guidelines and a summary of the changes to the Liquor Licensing Act are available at the SA Government Yoursay site.

In order to assist in the preparation of submissions, we provide below, our comments on features of the draft Bill which may be of particular interest to councils.

License classes (clause 20)

The Bill proposes to introduce new license classes as follows:

General liquor license

This license is, effectively, a replacement for Hotel licenses.

This type of license authorises:

  • the sale of liquor on the licensed premises at any time for consumption on the licensed premises;
  • the sale of liquor for consumption off the licensed premises between 7.00am and 10.00pm;
  • the sale of liquor at any time on the licensed premises to residents for consumption on or off the licensed premises; and
  • the sale of liquor through direct sales transactions on the proviso that liquor to be delivered to addresses within SA is delivered between 8.00am and 9.00pm only;

On premises license

This license allows the sale of liquor at any time for consumption on the licensed premises.

Residential license

This license allows the sale of liquor on the licensed premises at any time to:

  • residents for consumption on or off the premises;
  • guests of residents for consumption on the licensed premises, provided that the guest is present on the licensed premises;
  • to a person dining on the licensed premises for consumption with or ancillary to a meal provided by the licensee; and
  • for consumption on the licensed premises to a person attending a reception, or attending a function at which food is provided or otherwise seated at a table.

Residential licenses are subject to a condition that the business conducted at the licensed premises is at all times the primary service provided to the public at the premises.

Restaurant and catering license

This license authorises:

  • the consumption of liquor on the licensed premises at any time with, or ancillary to, a meal provided by the licensee; and
  • the licensee to sell liquor at any time for consumption on the licensed premises with or ancillary to a meal provided by the licensee or, in further circumstances which will be prescribed by regulations;
  • the licensee to sell liquor at any time to a person attending a function at which food is provided, or otherwise to a person seated at a table;
  • the licensee to sell or supply liquor for consumption at the site of a function off the licensed premises by persons attending the function, provided that food is provided by the licensee at the function and the licensee has been given notice of the function at least 24 hours before the function and the licensee maintains records relating to the function in accordance with any requirements of the licensing authority.

A restaurant and catering license is subject to the condition that business must be conducted at the licensed premises such that the supply of meals is at all times the primary service provided to the public at the premises, except as otherwise allowed by a condition of the license.

Club license

Club licenses authorise the licensee to:

  • sell liquor at any time for consumption on the licensed premises;
  • sell liquor on the licensed premises on any day between 7 am and 10 pm for consumption off the licensed premises;
  • to sell liquor on the licensed premises to a resident on licensed premises for consumption on or off the licensed premises; and
  • sell liquor at any time through direct sales transactions to a member of the club (provided that, if the liquor is to be delivered to an address in this State, the liquor is dispatched and delivered only between the hours of 8 am and 9 pm).

Club licenses are to be subject to a condition that the license does not authorise the sale of packaged liquor from a drive-in or drive through bottle shop.

Club licenses can only be held by not-for-profit organisations, being associations incorporated under the Associations Incorporation Act 1985 (SA) or companies limited by guarantee established under the Corporations Act 2001 (Cth).

The Bill proposes a number of measures to allow flexibility in club licenses; the licensing authority may authorise the sale or supply of liquor on a particular site (i.e. a sporting ground), the sale of liquor for consumption on or off the site during specified events and for consumption in club vehicles.

Small Venue Licences

The areas in which small venue licenses can be applied for and obtained will remain confined to the City of Adelaide CBD, for now.  This is despite calls from several councils to expand this area, and despite a recommendation in the review that the area be expanded to include North Adelaide.

Clause 20 does provide for the ability for new areas to be declared by regulation. Consistent with other amendments applicable to other forms of licenses proposed in the Bill, clause 20 purports to allow small venues to trade on Good Friday or Christmas Day. Further, the condition prohibiting entertainment of a prescribed kind at small venues (being entertainment of a sexually explicit nature or a professional or public boxing or a martial art event) has been removed – small venues will be permitted to trade from 8am on one day until 2am on the next day, rather than the current 11am until 2am.

Packaged liquor sales license

This license authorises the licensee to sell:

  • liquor on the licensed premises on any day over a continuous period authorised by the licensing authority (which must not exceed 13 hours) between the hours of 8 am and 10 pm for consumption off the licensed premises;
  • liquor at any time through direct sales transactions (provided that, if the liquor is to be delivered to an address in this State, the liquor is dispatched and delivered only between the hours of 8 am and 9 pm); and
  • to sell or supply liquor by way of sample for consumption on the licensed premises.

This license does not authorise the sale of liquor from drive-ins or drive-through bottle shops.

These licenses can, generally, only be granted where the licensed premises is devoted entirely to liquor sales and not to any other purposes and where the premises is physically separate from premises used for other commercial purposes.

Physical separation may be achieved through a permanent barrier that is not transparent and is of a height of at least 2.5 meters and where the licensed premises cannot be accessed from other commercial premises.  This requirement allows bottle shops within shopping malls, where access is provided through a common area, but does not allow in-supermarket liquor sales.

An exemption may be granted for this requirement where the licensing authority is of the view that it is in the public interest to grant such an exemption.

Liquor production and sales license

This license authorises to the licensee to:

  • sell liquor (including the licensee’s product) by wholesale on the licensed premises at any time for consumption off the licensed premises;
  • sell liquor (other than the licensee’s product) by retail in an aggregate quantity of 4.5 litres or more on the licensed premises for consumption off the licensed premises;
  • sell the licensee’s product by retail on the licensed premises at any time for consumption on or off the licensed premises;
  • sell liquor (including the licensee’s product) at any time through direct sales transactions (provided that, if the liquor is to be delivered to an address in this State, the liquor is dispatched and delivered only between the hours of 8 am and 9 pm);
  • sell or supply liquor (including the licensee’s product or, for the purposes of comparison with the licensee’s product, other liquor of the same type as the licensee’s product) by way of sample for consumption on the licensed premises;
  • sell liquor at any time on the licensed premises to a resident on licensed premises for consumption on or off the licensed premises;
  • sell liquor at any time for consumption on the licensed premises with or ancillary to a meal provided by the licensee or to a person attending a function at which food is provided; or where that person is seated at a table.

This license imposes a number of rules on licensees including, but not limited, to:

  • the types of premises able to licensed (i.e. production outlet, retail outlet or wholesale outlet);
  • premises being able to be shared by two (2) or more licensees;
  • production and sales event endorsements, where the licensing authority endorses a license to sell or supply liquor during an event for consumption on or off the site as specified in the endorsement;
  • when liquor is to be regarded as the licensee’s product (see proposed section 39(7)).

Short term license

Short term licenses are similar to limited licenses in that they authorise:

  • the licensee to sell or supply liquor; or
  • the consumption of liquor, in accordance with the conditions of the license, in circumstances in which the sale, supply or consumption of liquor would otherwise be unlawful,

for an event or occasion or a series of events or occasions.

Under the Bill, regulations can be made to provide for classes of short term licenses, with different requirements and restrictions for each class of short term license.

Of note, short term licenses will be able to be granted for a term of no more than 3 years. This will allow event organisers to apply for licenses over multiple events and over multiple years.

General Right to Make Written Submissions

The Bill proposes to significantly alter the manner in which councils interact and become involved in liquor license applications.

Presently, section 76 of the Act provides councils with a right to intervene in proceedings before the Liquor and Gambling Commissioner or the Licensing Court in respect of existing or proposed licensed premises in their area.  The purpose of an intervention is to introduce evidence or make representations on any question before the Commissioner or Court.

Interventions can be made in respect of licensing applications, complaints or any other proceedings commenced under the Act.  The effect of an intervention is that the council becomes a party to the proceedings.  If the concerns of the council are not resolved at a conciliation conference before the Commissioner, the proceedings must be referred to the Licensing Court for determination.

Under the Bill, councils, together with members of the public, will have a right to make submissions to the Commissioner on advertised license applications only (see clause 53 of the Bill, proposed section 77).  Councils may make submissions on one or more of the following grounds:

  • that the grant of the application would not be consistent with the objects of the Act or would be contrary to the Act in some other way;
  • in the case of a designated application—that the granting of the designated application is not in the community interest;

“designated applications” pertain to applications for the following forms of license:

a general liquor license;

an on premises license (except those for public conveyances and major sporting venues or where the license is to be subject to a condition that the primary service at the premises is the provision of accommodation);

 

a club license where it is proposed to seek approval for sales of liquor for consumption off the licensed premises;

  • in the case of an application by a natural person for the grant or transfer of a license, or for the conversion of a temporary license into an ordinary license—that the applicant is of bad reputation or character or is in other respects not a fit and proper person to be licensed;
  • in the case of an application by a trust or corporate entity for the grant or transfer of a license, or for the conversion of a temporary license into an ordinary license—that the applicant is not a fit and proper person to be licensed or that a person who occupies a position of authority in the entity is of bad reputation or character or is in other respects not a fit and proper person to hold such a position in an entity that holds a license;
  • in the case of an application for the grant or removal of a license—that the position, nature or quality of the premises renders them unsuitable to be licensed, or to be licensed under a license of the kind to which the application relates;
  • that if the application were granted, undue offence, annoyance, disturbance or inconvenience to people who reside, work or worship in the vicinity of the premises or proposed premises to which the application relates would be likely to result or, the safety or welfare of children attending kindergarten, primary school or secondary school in the vicinity of the premises or proposed premises to which the application relates would be likely to be prejudiced or, the amenity of the locality in which the premises or proposed premises to which the application relates are situated would be adversely affected in some other way.

Councils will not be able to make any submissions which relate to “a matter that is, or should be, dealt with or addressed under the law relating to planning or carrying out building work”.

This provision is intended to reduce overlap between planning issues and liquor licensing issues and reflects the recommendations of the Review.

Where a licensed premises has a development approval, councils will not be able to make submissions on or object to licensing matters which relate to the approval.  For instance, if a development approval does not restrict operating hours, a council may not be able to seek reduced operating hours to be imposed on a subsequent liquor license.

If a submission is made, the relevant license application will be listed for conciliation in the first instance.

Unlike the present system, however, the Commissioner will have the ability to determine license applications in respect of which a submission has been made (see clause 9 – proposed section 17).   The determination may be made on the basis of the application documents and submissions alone (see proposed section 81).

The Commissioner is not bound to refer such matters to the Licensing Court but may choose to refer matters to the Court in his or her discretion (see proposed section 80).

These measures are designed to reduce the potential for license applications to be frustrated or abandoned by applicants.  Presently, if an objection is not resolved through the conciliation process, the Commissioner must refer the relevant license application to the Licensing Court.  The cost and delays associated with this process often become prohibitive to a license applicant; particularly where the applicant is starting a new hospitality business and does not have significant capital to support the costs of this process.

Liquor Accords

Clause 89 of the draft Bill inserts a new Part 9A regarding ‘liquor accords’.

A liquor accord is, for the purposes of the draft Bill, a written code of practice, memorandum of understanding or other arrangement that—

  • affects the supply of liquor, the opening and closing of licensed premises or other aspects of the management of, or the conduct of business on, licensed premises; and
  • is made under this Part for the purpose of preventing or reducing alcohol-related violence.

Under section 128N, a council is able to draft a local liquor accord in conjunction with one (1) or more licensees to be approved by the Commissioner.

Liquor accords are voluntary agreements which can authorise or require licensees to cease sales of liquor for consumption on or off their premises, to restrict the public’s access to the licensed premises or to “take any measure prescribed by the regulations as a measure that may be taken to prevent or reduce alcohol-related violence”.

This wording is not dissimilar to that used in the Victorian, New South Wales and Queensland legislation, where liquor accords have been successfully utilised by councils which are experiencing community issues relating to alcohol dependence and alcohol-fueled violence.

Dry Areas

Presently, section 131 of the Act allows the Minister, by notice in the Gazette, to declare an area in which the consumption or possession or both of liquor in a public place is prohibited – i.e. a dry area.

The Commissioner is allowed to declare a dry area by notice in the Gazette, but only for a period of no more than 14 days.

These provisions will not change.  However, clause 91 of the draft Bill amends section 131 to empower councils to declare dry areas for a period of up to 48 hours.

Councils must declare a dry area by notice in the Gazette and must, at least 21 days prior to publishing the notice in the Gazette, give notice to both the Commissioner and the Commissioner of Police of the proposed dry area.

The Commissioner has the ability, within 14 days of received notice, to direct the council to vary the notice or otherwise order that the Gazette notice not be published (which prevents the dry area from being declared).

This measure will allow councils the flexibility to declare short-term dry areas to coincide with particular events, for instance, New Years Eve events, concerts and the like.

In the Government’s initial response to the Review, it was suggested that that the Commissioner would only be able to intervene in these declarations if it was in the public interest to disallow or vary a notice. However, this is not required in the draft Bill.

We suggest that councils may wish to advocate for particular grounds upon which the Commissioner may block a declaration, or for criteria to be prescribed by regulation.  This reform may have little or no benefit if declarations can be blocked for any reason whatsoever.

If you have any questions regarding the above please contact Victoria Shute on 8113 7101 or vshute@kelledyjones.com.au