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Justice Legislation Amendment Bill
2011
Introduction Print
EXPLANATORY MEMORANDUM
Clause Notes
PART 1--PRELIMINARY
Clause 1 provides that the main purposes of the Bill are to amend the
Liquor Control Reform Act 1998 to enable persons to be barred
from licensed premises and their vicinity, to amend the
Summary Offences Act 1996 to increase the penalties for being
drunk and disorderly and to otherwise amend those Acts.
Clause 2 provides for the commencement of the various clauses of the Bill.
Subsection (1) provides that the provisions of the Bill will come
into operation on a day or days to be proclaimed.
Subsection (2) provides that any provision of the Bill that does
not come into operation before 1 February 2012 comes into
operation on that day.
PART 2--AMENDMENTS TO THE LIQUOR CONTROL
REFORM ACT 2010
Clause 3 inserts the following two definitions into section 3(1) of the
Liquor Control Reform Act 1998
· A definition of barring order, being an order served
under section 106D, whether or not that order is varied
under section 106I.
· A definition of responsible person, being a person
responsible for the management or control of a licensed
premises. Examples of the types of persons who would
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fall under this definition are general managers,
managers and bar managers. This definition does not
extend to security personnel, crowd controllers,
bartenders, servers and other employees not responsible
for the management or control of the licensed premises
as a whole.
Subsection (2) of clause 3 inserts a new section 3(4) to provide a
clarity on the meaning of "the vicinity of licensed premises",
being a public place that is within 20 metres of the licensed
premises. This is relevant to the new offences being inserted by
this Act which prohibit a person from re-entering or remaining in
the vicinity of licensed premises after being barred or requested
to leave.
Clause 4 inserts a new Part 7A in the Liquor Control Reform Act 1998,
dealing with barring orders. The Part will include nine new
sections, 106C to 106K.
Section 106C provides that for the purposes of barring orders,
licensed premises include "any area adjacent to the licensed
premises that is owned or occupied by the licensee". This is to
make clear that barring orders and requests to leave licensed
premises under section 114(2) apply to the entire premises or
building, not just the areas that are licensed.
Section 106D authorises a licensee, permittee, responsible
person or member of the police force to bar a person from
entering or remaining on licensed premises for a specified period.
This power is exercised by serving an order on a person in the
following circumstances
· where the person is drunk, violent or quarrelsome in the
licensed premises; or
· where the person serving the order has a reasonable
belief that the safety of the person, or any other person
in the licensed premises, is at substantial or immediate
risk as a result of the consumption of alcohol by the
person.
Section 106E requires members of the police force to produce
proof of their identity or status before serving an order on a
person. However, proof of identity is not required where the
member is in uniform.
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Section 106F states that a barring order must be in the prescribed
form.
Section 106G sets out the method for calculating the duration of
a barring order under Part 7A. The duration of a barring order is
based on a graduating scale, where the first barring order may not
exceed one month. Where one order has previously been served
on the person in respect of the licensed premises, the second
order must not exceed 3 months, while each subsequent order in
relation to that licensed premises must not exceed 6 months.
Each order is effective from the date and time it is served until
the expiry date (which must be stated on the barring order),
unless earlier revoked. For the purposes of determining whether
a person has previously been barred from a licensed premises,
only barring orders issued in the previous 3 years can be
considered.
Section 106H authorises members of the police force to request
the name and address and, if necessary, evidence of that
information from persons upon whom they intend to serve
barring orders. A request for evidence is only permitted where
the member has reasonable grounds to suspect that the name or
address provided is false. A person who is requested to provide
information may request the member of the police force to
provide their name, rank and place of duty. Failure to comply
with a request, or providing a false name or address, is an
offence, provided that the member informs the person it is an
offence to fail to comply at the time of the request.
Section 106I authorises a licensee, permittee, responsible person
or member of the police force to vary or revoke a barring order
that they have issued. This provision operates to prohibit
licensees, permittees or responsible persons from varying or
revoking barring orders issued by the police, and vice versa.
Subsection (2) provides that the Director, on the Director's own
motion or upon request from a licensee, permittee or responsible
person, a member of the police or the person the subject of the
barring order, may vary or revoke any barring order. Where the
Director varies an order, the variation is final and not subject to
further variation by any person. Any variation or revocation
under this section must be in the prescribed form or contain the
prescribed particulars, respectively. A copy of any variation or
revocation must be provided to the licensee or permittee and
member of the police, if relevant, for their records.
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Section 106J contains new offences, which prohibit a person
subject to a barring order from entering or remaining on licensed
premises or remaining in or re-entering the vicinity of the
licensed premises without a reasonable excuse.
Section 106K requires licensees and permittees to keep records
of all barring orders, including all variations and revocations,
issued under this Part. A licensee or permittee must produce the
records of barring orders issued in respect of the licensed
premises for inspection at the request of a member of the police
force or a compliance inspector. Licensees and permittees are
prohibited from disclosing those records, or information
contained in those records, to persons except for the purpose of
inspections. All records relating to barring orders must be
destroyed 3 years after their expiry to assist in keeping barred
persons' personal information confidential.
Clause 5 amends section 108AA(3) of the Liquor Control Reform Act
1998 to replace "person responsible for the management or
control of the licensed premises" with the new defined term
"responsible person".
Clause 6 amends section 108AD of the Liquor Control Reform Act 1998
to replace all references to "person responsible for the
management or control of the licensed premises" with the new
defined term "responsible person".
Clause 7 makes the following amendments to the Liquor Control Reform
Act 1998
· amends subsection 114(2) to increase the penalty from
20 to 50 penalty units;
· inserts a new subsection 114(3) to create a new offence
prohibiting a person who has been refused entry to a
licensed premises, or who has been requested to leave a
licensed premises, from remaining in the vicinity of that
licensed premises without reasonable excuse;
· inserts a new subsection 114(4) prohibiting a person
who has been refused entry to a licensed premises, or
requested to leave a licensed premises, from re-entering
the premises without reasonable excuse within 24 hours
of being refused entry or leaving the premises; and
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· inserts a new subsection 114(5) which extends any
reference to a licensed area in section 114 to include any
area adjacent to the licensed premises owned or
occupied by the licensee or permittee.
Clause 8 makes the following amendments to the Liquor Control Reform
Act 1998
· amends section 141(1AA) to prohibit compliance
inspectors from issuing infringement notices in respect
of the infringements set out in subsections (2)(dd), (de),
(df), (dg), (dh), (fc), (gb), (gc), (m) and (n);
· amends section 141(2) by inserting the following
offences in respect of which infringement notices may
be served--
· (dd) section 106H(3)(a) (refusal to give name or
address);
· (de) section 106H(3)(b) (giving false name or
address);
· (df) section 106H(7) (refusal to provide evidence
of name or address);
· (dg) section 106J(1) (entering or remaining on
licensed premises from which a person is
barred);
· (dh) section 106J(2) (re-entering or remaining in
the vicinity of licensed premises from which a
person is barred);
· (di) section 106K(1) (failure to keep records of
barring orders);
· (dj) section 106K(2) (failure to produce records
of barring orders upon request);
· (dk) section 106K(4) (unauthorised disclosure of
records); and
· (dl) section 106K(5) (failure to destroy records).
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· amends section 141(2)(eab) by replacing "person
responsible for the management or control of the
licensed premises" with the new defined term
"responsible person"; and
· after section 141(2)(ga), inserts the following new
provisions--
· (gb) section 114(3) (remaining in the vicinity of
licensed premises after being refused entry or
requested to leave); and
· (gc) section 114(4) (re-entering licensed
premises within 24 hours of being refused entry
or requested to leave).
PART 3--AMENDMENTS TO THE SUMMARY OFFENCES
ACT 1966
Clause 9 amends section 14 of the Summary Offences Act 1966 to
increase the penalty for the offence of a person being drunk and
disorderly in public as follows--
· For the first offence20 penalty units or imprisonment
for three days; and
· For a second or subsequent offence20 penalty units or
imprisonment for one month.
Clause 10 amends section 60AB of the Summary Offences Act 1966 by--
· deleting the reference to section 14 from subsection (4);
and
· inserting a new subsection (5) which sets the
infringement penalty for an alleged offence against
section 14 at 5 penalty units or, in the case of a person
who has previously been served with an infringement
notice under section 60AA in the previous 3 years, or
been convicted of an offence against section 14, 10
penalty units.
Clause 11 inserts a new section 60AC which excludes the operation of the
expiation principles set out in sections 32 and 33 of the
Infringements Act 2006 to the extent necessary to give effect to
section 60AB(5)(b).
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PART 4--GENERAL
Clause 12 provides that section 141(2)(ea) of the Liquor Control Reform
Act 1988 is repealed.
Clause 13 provides that this amending Act will be repealed on 1 December
2012. This repeal will not affect the continuing operation of the
amendments made by the Act.
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