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Clause 1 Short Title
This is a formal clause which provides for the citation of the Bill.
The Bill when passed may be cited as the Alcohol Protection Orders Act 2013.
Clause 2 Commencement
This is a formal clause which establishes when the Act will commence. This Act will commence on the date fixed by the Administrator by Gazette notice.
Clause 3 Interpretation
This clause defines various words and expressions used in the Act.
The Act defines a qualifying offence as one under this Act, or an offence that may be punishable by 6 months imprisonment.
Clause 4 Application of Criminal Code
This clause makes pt IIAA of the Criminal Code applicable to an offence against this Act. Part IIAA contains the general principles for criminal responsibility, general defences and burden of proof involved in offences. It also defines and explains concepts commonly used in offences.
Part 2 Alcohol Protection Orders
Division 1 Alcohol protection orders
Clause 5 Effect of Alcohol protection order
This clause defines and explains what an alcohol protection order is and the conditions an adult issued an order must comply with. An alcohol protection order is an order issued to an adult that prohibits them from consuming alcohol, possessing alcohol or entering licensed premises.
An adult issued with an alcohol protection order may enter licensed premises if they live at that location or are required to be there for work.
A person who has a permit under the Liquor Act for a general, public or special restricted area and is subject to an alcohol protection order has their permit suspended for the duration of the alcohol protection order.
Division 2 Issue of alcohol protection order
Clause 6 Grounds for issue of alcohol protection
This clause sets out the elements necessary for an adult to be issued with an alcohol protection order. A police officer of the rank of sergeant or above is able to issue an alcohol protection order, or if it is not practicable, authorise a police officer to do so. The order can be made if a person is arrested, summonsed or served with a notice to appear in Court for allegedly committing an offence under cl 23, or an offence that is punishable by imprisonment for 6 months or more after the commencement of the Act; and the officer believes that the adult was affected by alcohol when the adult did the thing which caused the officer to arrest, summons or give the notice to appear to the adult.
Clause 7 Period alcohol protection order in force
This clause sets out the length of time an order will remain in force for. There are three options: 3, 6 or 12 months depending on whether the person has previously been subject to an alcohol protection order.
For a first alcohol protection order the period is 3 months from the date it is issued.
For a second order the period is 6 months from the date it is issued.
For a later alcohol protection order the time period is 12 months.
However, for a later order the time period begins on either the date the order is issued, or the date the previous order ceases to be in force.
The relevant date will be the later of the two options.
The clause also sets out the definitions of ‘first alcohol protection order’, ‘second alcohol protection order’ and ‘later alcohol protection order’.
Clause 8 When alcohol protection order ceases to be in force
This clause sets out when an order will no longer be in force. If a person is considered not to have allegedly committed a qualifying offence the order will no longer be in force. This will occur when the person is found not guilty for the qualifying offence, the charges are withdrawn or dismissed or for any other reason the person is not liable to be punished for the offence.
Clause 9 Application for reconsideration of issue of alcohol protection order
This clause allows for an application to be made for reconsideration of an issuing of an order under cl 6. The person must apply in writing,
state why the order should not have been issued and lodge it at a police station. The order remains in force even if an application has been made.
Clause 10 Reconsideration by senior officer
This clause sets out the procedure a senior officer must follow when reconsidering the issue of an order. The reconsideration must occur within 3 days of the application being lodged and a written notice must be given to the applicant containing the decision and information about applying to the Court for review of the senior officer’s decision.
If the decision is to revoke the order it immediately ceases to have force.
Clause 11 Application for review of senior officer’s decision
If the order is confirmed by the senior officer an application can be made to the Local Court for a merits review of that decision within 14 days of the notice of reconsideration that must be given in accordance with cl 10. While the Court is hearing the application the order will remain valid.
Clause 12 Hearing procedure
This clause outlines the procedure the Local Court must follow in hearing an application for the review of a senior officer’s reconsideration.
The review must be done on the merits and the Court is not bound to anything considered by the senior officer. The clause explains that the Court may take into account any information that was, or was not before the senior officer in making the reconsideration. The Court may also choose not to consider information that was before the senior officer in making the decision.
Clause 13 Decision on review of senior officer’s decision
This clause gives the Court power to confirm the senior officer’s decision or set it aside. If the decision is confirmed the order remains in force on the same terms. If the decision is set aside it immediately ceases to have force.
Division 3 Application for alcohol protection order
Clause 14 Application for issue of alcohol protection order
This clause allows a person to voluntarily apply for an alcohol protection order, even if they have not allegedly committed a qualifying offence. The clause prevents an application being made if there is already an order in force. The application must be lodged at a police station and can contain a request that the order be 3, 6 or 12 months in length.
Clause 15 Consideration of application
This clause gives the consideration of an application a 2 day limit and sets out the requirements that must be met. Within that time an officer must consider the application and make a decision to issue an order or not. The officer may issue an order if the person is capable of making the application, consenting to the terms and understands the penalties imposed for breaching the order.
Clause 16 Period alcohol protection order in force
This clause sets out the considerations an officer must take into account in issuing a voluntary order. The officer must take into account any request made in the application under cl 14 regarding the length of the order and then must decide whether to issue it for 3, 6 or 12 months before issuing it accordingly.
Clause 17 Revocation of alcohol protection order
This clause allows an adult issued with a voluntary alcohol protection order to apply to have the order revoked. They may do so by lodging a written request at a police station or orally, by attending a police station and making the request to a police officer. As soon as practicable after the request the order must be revoked and the adult informed it has been revoked.
Part 3 Powers of Police
Clause 18 Breath testing
This clause gives police officers power to direct an adult who is issued with an alcohol protection order and has recently consumed alcohol to submit to a breath test or provide a sample of their breath for a breath analysis. The police officer may also take a record of the adults name, identification information, fingerprints, photograph and biometric identifiers. The list of other information that may be recorded is not exhaustive.
If the adult fails to comply with the direction to submit to a breath test they can be detained for a breath analysis. That analysis must be carried out by an authorised person using the correct prescribed instrument.
The terms ‘breath analysis’, ‘breath test’ and ‘prescribed breath analysis instrument’ are as defined in s 3(1) of the Traffic Act.
Clause 19 Seizure of alcohol
This clause gives police officers the power to search adults issued with an alcohol protection order and to seize and destroy any alcohol that is found. The power allows officers to seize any opened or unopened containers they reasonably believe contains alcohol. If no alcohol is found after a search is conducted the police officer may still direct the adult to submit to a breath test, provided they believe the adult has recently consumed alcohol and other requirements of cl 18 are met.
If the container is opened it may be emptied or if it is unopened it may be destroyed. Any containers not emptied or destroyed must be taken to the police station and be destroyed.
Part 4 Information Sharing
Clause 20 Sharing information
This clause gives a police officer power to share information regarding an alcohol protection order with a sharing authority to ensure effective administration of the orders. A police officer can give information about an order in force to a sharing authority provided that they reasonably believe the information will assist in the authority performing its functions or service to the adult and will ensure the effective enforcement of the order.
An information sharing authority is defined in cl 3 of the Act as either an agency Chief Executive Officer or public sector employee acting under a Territory law in relation to an adult issued with an order, a licensee as determined by s 4 of the Liquor Act, a person in charge of an organisation receiving Territory funding to provide drug and alcohol treatment, an employee of such an organisation or a legal representative of an adult subject to an order in force.
Clause 21 Restriction on use or disclosure of information
This clause prevents the disclosure of information by a sharing authority for a purpose other than that which it was given for. Any disclosure of the information shared with them by a police officer outside the authorities’ services and functions in relation to the adult will not be permitted.
This clause will have effect subject to any other Territory law.
Clause 22 Interactions with other laws
This clause allows pt 4 of the Act to operate despite other Territory laws restricting or prohibiting disclosure of information.
Part 5 Offences
Clause 23 Offence by adult to whom alcohol protection order issued
This clause makes it an offence to intentionally engage in conduct, where that conduct will either result in a contravention of an alcohol protection order or a contravention of a direction given to the adult.
A contravention may be possessing or consuming alcohol, or entering licensed premises unless it is for employment purposes. A direction might be to submit to a breath test under cl 18. Whether particular conduct of the adult results in a contravention of an order or a direction is a matter of strict liability.
If the order was issued under cl 6 then the maximum penalty for a breach will be 25 penalty units or 3 months imprisonment, while a breach of an order issued voluntarily under cl 15 will attract a maximum penalty of
5 penalty units
If the adult is able to provide a reasonable excuse for the offence they will have a defence.
Clause 24 Offence to permit contravention of alcohol protection order
This clause makes it an offence for a person to intentionally supply alcohol to a person issued with an alcohol protection order, if the supplier is aware of the order and is aware that it is in force. The supply must be intentional and the person must have knowledge that the order is in force.
Part 6 Miscellaneous matters
Clause 25 Averments
This clause provides that an averment by a prosecutor in proceedings under cl 23 in relation to whether a premises was a licensed premises, whether a liquid was alcohol or the date a particular order was issued is evidence of the fact averred.
Clause 26 Acquisition on just terms
This clause provides for a situation if property is seized other than on ‘just terms’ then the person is entitled to receive appropriate compensation. If necessary a Court of competent jurisdiction may make an order of compensation that will make the acquisition on just terms.