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1
Liquor Amendment Bill 2001
LIQUOR AMENDMENT BILL 2001
EXPLANATORY NOTES
Objectives of the Bill
The objectives of the Bill are:
· to implement recommendations arising from the National
Competition Policy Review of the Liquor Act 1992 ("the Act");
and
· to amend the Act in order to enhance the administrative efficiency,
clarify existing provisions and address anomalies.
Reasons for the Bill
The National Competition Policy Review of the Act identified a number
of provisions which are considered to be either barriers to market entry or
restrictions on trading practices which are not in the public interest. A
number of changes to the Act arise from this Review including:
· abolition of the payment of premiums for general and special
facility licences;
· an increase in the allowable distance between a detached bottle
shop and the main licensed premises from 5 km to 10 km;
· abolition of the 18 litre per member per day take-away limit for
clubs and reduction in the current distance for casual visitors from
40 km to 15 km;
· allowing casual drinking in on-premises (meals), on-premises
(cabaret) licences (before 5pm) and the restaurant part of
residential licences providing that the business conducted on the
premises or part of the premises continues to meet the primary
purpose of providing meals;
· an exemption for small bed and breakfast and host farm style
operations catering for up to 6 guests from the requirement to
obtain a liquor licence;
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Liquor Amendment Bill 2001
· the introduction of a limited take away facility for restaurants for
patrons who have dined and wish to purchase a single bottle of
wine for consumption off the premises;
· the strengthening of the provisions relating to public interest for a
licence to ensure that the interests of the community are fully
considered before the approval of a new licence;
Additionally, other miscellaneous and administrative amendments are
required to ensure the continued effective administration of the Act. The
Liquor Act 1992 recognised contemporary trends in the tourism and
hospitality industries, together with changing consumer preferences in
leisure and lifestyle pursuits. The Act has been amended a number of times
since 1992 and the amendments in this Bill continue to recognise the
changing trends and customer preferences. As well, improvements in
general administration of the Act result from legal decisions regarding
certain provisions of the Act and ongoing consultation with industry
stakeholders. The amendments in this category include:
· a restriction on trading between 5 am and 7 am;
· the improvement of the provisions relating to the administrative
review of decisions made under the Act;
· the strengthening the primary purpose provisions for each licence
type;
· improving the process related to disciplinary action;
· improving enforcement and administrative provisions relating to
noise emanating from licensed premises.
Estimated Cost of Government Implementation
Any expenditure associated with implementation of the amendments will
be met through existing budget allocations.
Fundamental Legislative Principles
Aspects of the Bill which raise potential fundamental legislative
principles are outlined below:
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Liquor Amendment Bill 2001
Retrospective effect of prohibition on drive-through facilities for clubs
Clause 54 amends section 85 of the Act by specifically stating (in new
subsection (1C) that a club licence does not authorise the sale or supply of
liquor from a facility ordinarily known as a drive-in or drive-through bottle
shop. This had been a long-standing Government policy although it was
never in the legislation.
Clause 106 inserts new section 264 which specifies that section 85(1C)
has effect even if before the commencement of the section, the holder of the
club licence could sell from a facility ordinarily known as a drive-in or
drive-through bottle shop.
The operation of these two sections together will preclude any clubs that
currently operate such facilities from continuing to do so. In fact, there is
only one club that currently operates such a facility.
The policy to prohibit facilities of this nature resulted from the National
Competition Review of the Act and was publicly announced in March 2000.
Subsequent to this announcement a club appealed to the Liquor Appeals
Tribunal against a decision of the chief executive to refuse an application to
operate a drive-in bottle shop. The Tribunal granted the application in June
2000 and the club commenced trading in October 2000.
The Government advised the club in July 2000 that it intended to pursue
a legislative amendment to prohibit these facilities.
It could be argued that the effect of the Bill is to adversely affect the
interests of this club. However the section does not purport to operate
retrospectively, in that it does not affect the trading that occurred prior to the
commencement of the Bill.
Even if the view is taken that a fundamental legislative principle is
infringed, it is considered that the infringement is justified. The policy was
well known within the industry and of long-standing. Additionally,
reasonable steps were taken to ensure that the particular club did not incur
costs without full knowledge of the Government's intention in this regard.
As stated earlier, the policy was publicly announced and the particular club
was advised in writing of the intended amendment.
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Liquor Amendment Bill 2001
Urgent Suspension of Licence
Clause 85 inserts a new section 137C which allows the chief executive to
immediately suspend a licence, where the chief executive believes there is
ground to take a disciplinary action with respect to the licence and harm may
be caused to members of the public if urgent action to suspend the licence is
not taken.
At the same time the chief executive must take disciplinary action. The
suspension lapses after 60 days unless earlier it is revoked or a decision
made about the disciplinary action. Licensees have the right to make
representations in the course of a disciplinary action and have a right of
appeal to the Liquor Appeals Tribunal.
There is no right for the licensee to make representations before the
suspension is imposed. It could be argued that this denies the licensee
natural justice. A suspension may affect a licensee's financial position.
However, the exercise of this power is subject to two conditions before it
may be imposed. A ground for taking disciplinary action must exist and
harm to the public a result if urgent action not taken.
In the past circumstances have arisen where such a power could have
been used. The circumstances in which an urgent suspension may be
required include an activity such as a rave or dance party where a significant
number of persons attending require medical attention due to drug use.
On balance, it is considered that such a power is justified.
Reversal of the onus of proof
Clause 93 amends section 155 of the Act relating to minors on licensed
premises.
Section 155 specifies that a licensee, permittee or person in control of the
premises to which the licence or permit relates must ensure that a minor is
not on the premises and if the minor is on the premises the licensee,
permittee and other person in control of the premises each commits an
offence.
Section 155(4) of the Act specifies the categories of minors to whom
section 155 restrictions do not apply.
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Liquor Amendment Bill 2001
Clause 93 replaces subsection (3) with new subsections (3) and (3A).
New subsection (3) clarifies that an employee or an agent of the licensee or
permittee also must not allow a minor to enter the premises to which the
licence or permit relates.
New subsection (3A) re-states the current position under subsection (3)
that the licensee, permittee and if another person is in control of the
premises, that person, are equally responsible criminally for failure to
ensure that a minor is not on the premises. It further specifies that if an
employee or agent of the licensee or permittee allowed a minor to enter the
premises that person is also equally responsible and commits an offence.
Each of the categories of persons is deemed criminally liable for each
other's failure to ensure that a minor is not on the premises.
Section 230 provides a defence to a charge under section 155 where the
defendant honestly and reasonably believed that the person was of the age of
and they had sighted acceptable evidence of age.
Additionally section 229 provides a defence for licensee's if they are able
to prove that the offence occurred without their knowledge or authority and
that they had exercised due diligence to avoid the offence. Due diligence
could be providing proper training for staff.
The provision is considered necessary to prevent persons from avoiding
their obligations with respect to minors on licensed premises by shifting
responsibility to security staff and door staff. Licensees have been able to
avoid liability as a result of other persons not appropriately checking
identification and allowing minors to enter.
Whilst the onus of proof is reversed by providing that each person
commits an offence if a minor is found on the premises, the defence
provisions available mitigate the apparent harshness of the provision.
The reversal of the onus of proof is necessary to ensure that licensees,
persons in charge of licensed premises and others involved in the industry
take their responsibilities in terms of underage persons seriously.
Increase in maximum penalty for breach of regulation
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Liquor Amendment Bill 2001
Clause 101 of the Bill amends section 235(3)(b) of the Act by increasing
the amount that may be fixed for an offence against the regulation from 10
penalty units to 40. This increase makes the penalty for a breach of the
regulation the same as that for a breach of a condition of an adult
entertainment permit.
The increase in penalty recognises reflects the nature of the regulatory
breaches that frequently occur. Matters dealing with adult entertainment
permits and responsible hospitality practices are detailed in the Regulation.
Consultation
The National Competition Review of the Act was carried out by an
independent panel which prepared a report which was released for public
comment in September 1999.
An Interdepartmental Working Group was established which as part of
its duties consulted with Aboriginal and Torres Strait Islander Community
Councils.
The following agencies were also consulted:
Queensland Government
Arts Queensland
Department of Aboriginal and Torres Strait Islander Policy Development
Department of Communication & Information, Local Government,
Planning & Sport
Department of Employment, Training, & Industrial Relations
Department of Families, Youth,
& Community Care and Disability Services Queensland
Queensland Health
Department of Justice and Attorney-General
Department of Primary Industries (Office of Rural Communities)
Department of Premier and Cabinet
Department of State Development (Business Regulation Reform Unit)
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Liquor Amendment Bill 2001
Environmental Protection Agency
Liquor Appeals Tribunal
Queensland Police Service
Queensland Treasury
Queensland Treasury, National Competition Policy Unit
Tourism Queensland
Industry / Community
Brisbane City Council
Clubs Queensland
Gold Coast City Council
Queensland Bar Association
Queensland Cabarets Association
Queensland Golf Union
Queensland Hotels Association
Queensland Law Society
Restaurant & Caterer's Association
Royal Queensland Bowls Association
RSL & Services Clubs
Association Queensland
Valley Music Council
All Local Councils through the
Local Government Association
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Liquor Amendment Bill 2001
NOTES ON CLAUSES
Clause 1 sets out the short title of the Act.
Clause 2 provides that this Bill commences on a day to be fixed by
proclamation.
Clause 3 states that the Liquor Act 1992 is amended.
Clause 4 inserts a new section 3A which outlines the underlying principle
of the Act. A person selling liquor does so as part of conducting a business
on premises. That business is the primary purpose under the licence.
Subsection 2 specifies that the Act states the primary purpose of each
business under each licence type. Subsection 3 provides that the Act must
be administered in accordance with the underlying principle and subsection
4 makes a construction promoting the underlying principle the preferred
one. This clause reflects the increased importance of the primary purpose
provisions of the Act as the authority given by the various licence types
becomes more general and less unique to the individual licence.
Clause 5 amends section 4 (Definitions) by inserting new definitions
including:
"Detached bottle shop" - a new definition is inserted in the Act to
formally recognise the term that is commonly used in the industry for
premises approved under section 59(1)(d).
"Disciplinary action" - this definition outlines the disciplinary actions
that the chief executive may take against a licensee in certain
circumstances. The actions include cancelling the licence, suspending
the licence (not more than one year), closing the premises or part of the
premises for a stated period, varying the licence, reducing the times at
which the licensee may conduct business, disqualifying the licensee
from holding a licence (not more than five years) or requiring the
licensee to pay the department an amount of not more than $10,000 or
reprimanding the licensee. These actions are the same available to the
chief executive under the existing disciplinary procedures in sections
136 and 137. However, as these sections have been amended this new
definition is required.
New definitions of all the on-premises licence sub-categories are
inserted. In each case, the section refers to the substantive provisions
of the Act for the particular licence.
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Liquor Amendment Bill 2001
"Ordinarily set aside for dining" - this phrase is used in various
sections of the Act as the basis for particular sales of liquor in
particular circumstances, for example, on Christmas Day. The
definition specifies that such an area must not be set aside merely for a
particular occasion. It is the ordinary use of the area that is relevant.
"Provisional licence" - means a licence under section 123(2).
"Unlicensed person" - the effect of the amendment to this definition
is that a licensee under the Wine Industry Act 1994 and a person who is
the holder of an approval from the Commonwealth allowing them to
sell liquor, is a licensee under the Act for the purposes of section 84.
Section 84 specifies that the holder of a producer/wholesaler may sell
liquor to a licensee. A different amount of fees are payable by
producer/wholesaler licensees for sales made to unlicensed persons.
Subsection 3 amends the definition of "cabaret" by deleting words
which are no longer necessary as there is a new definition of entertainment
contained in section 4AA.
Clause 6 inserts new section 4AA, a definition of "entertainment" for
on-premises (cabaret) licence. The new definition does not change the
requirements in this respect. It merely places them in a separate section.
Clause 7 amends section 6 (Acceptable evidence of age) by providing
that the chief executive may approve a form of identification in writing that
is acceptable evidence of the age of a person for purposes of the Act. This
amendment will allow the chief executive to approve other forms of
evidence of age which may be suitable such as other licences issued by the
State.
Clause 8 amends section 7 which specifies that certain containers of
liquor are taken to be a total quantity of liquor.
Many producer/wholesaler licences have conditions which restrict sales
to a minimum quantity of 9 litres. Previously many spirits were packaged
in 750ml containers and the Act stated that 12 (one carton) of these
containers were an acceptable equivalent of 9 litres.
However, the industry standard has changed to 700 ml containers and
therefore a wholesaler would breach the Act by selling only one carton.
This amendment will correct this situation.
Similarly, the standard container for beer has been reduced from 375 ml
to 345 ml.
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Liquor Amendment Bill 2001
Clause 9 amends section 9 (Ordinary Trading Hours), in subsection
(3)(a)(i) by clarifying that for all licensed premises, on Anzac Day, ordinary
trading hours do not include any period before 1 pm except for a person
consuming a meal on the premises between 10 am and 1 pm or a period
between 6 am and 1 pm that the chief executive approves in a particular
case.
Clause 10 inserts a new section 10A dealing with meals prepared and
served to be eaten on the premises. A number of provisions of the Act refer
to meals prepared and served to be eaten on the premises. In particular, this
phrase is used when restricting the circumstances of trade on special days
such as Good Friday, Christmas Day and Anzac Day. This phrase is also
critical in the provision relating to the primary purpose of an on-premises
(meals) licence.
New section 10A provides that such meals must involve adding value to
the food comprising the meal. It further specifies that a person does not add
value to food comprising a meal by merely heating a product that the person
purchased as a pre-prepared product such as a pre-packaged pie. Subsection
3 however, states that the section does not prevent the provider of the meals
offering a menu that includes some items to which no value is added
providing the majority of menu items are meals that involve adding value.
Subsection 3 requires that the menu items must not only be offered but also
be available.
Clause 11 inserts a new section 12(2) stating the types of sales to which
the Act does not apply and therefore a licence is not required. These
exemptions from the Act are currently detailed in the Liquor Regulation
1992. Such an approach is an inappropriate delegation of the legislative
power and the opportunity has been taken to correct it.
As well, a further category of exemption has been added - a sale to a
guest at bed and breakfast and host farm accommodation. Definitions of
"bed and breakfast accommodation" and "host farm accommodation" are
included in subsection (4). Currently such establishments must obtain a
residential licence. Given the low level of impact on the community by the
sale of liquor in such establishments, it is considered an unnecessary
imposition for them to obtain a licence.
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Liquor Amendment Bill 2001
Clause 12 inserts new sections 20A and 20B. Section 20A provides that
a member of the Liquor Appeals Tribunal has, in performance of his or her
duties as a member, the same protection and immunity as a District Court
judge has in performance of the judge's duties.
Section 20B requires the chairperson of the Tribunal to give the Minister
a report containing a review of the operation of the Tribunal for the previous
year ending 30 June no later than 31 August each year.
Clause 13 amends section 21, which relates to the jurisdiction and
powers of the Tribunal, to reflect the new definition of disciplinary action
inserted in the Act.
Clause 14 amends section 22 which provides for the constitution of the
Tribunal. The Act currently provides that the Tribunal is properly
constituted by three of its members, one of whom must be legally qualified.
This amendment will allow the Tribunal to be constituted by one member
alone with legal qualifications for a minor appeal. New subsection (3)
specifies the meaning of minor appeal.
Clause 15 makes some consequential amendments to section 23
necessitated by the introduction of the concept of a minor appeal.
Clause 16 makes consequential amendments to section 26 reflecting the
introduction of minor appeals.
Clause 17 inserts new section 26A, a power for the Tribunal to give
directions about a matter within its jurisdiction. This new power will
complement the existing powers the Tribunal exercises when considering
appeals. Section 25 of the Act requires the Tribunal to operate with as little
formality as possible whilst still ensuring a fair hearing and a proper
consideration of the matter. The Tribunal is not bound by rules or practice
as to evidence and may inform itself on any matter that it considers
appropriate and may regulate its own procedures. Section 26 sets out the
powers of the Tribunal in proceedings. Section 26A is intended to
complement the existing powers.
Clause 18 replaces sections 30 and 31. Section 30 is amended to clarify
that licensees or permittees can appeal to the Tribunal against decisions of
the chief executive relating to disciplinary action or an urgent suspension of
a licence or cancellation, suspension or imposition or variation of conditions
of a permit.
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Liquor Amendment Bill 2001
Section 31 provides the process for starting an appeal under the Act.
Currently, an appeal may be started by a person filing a notice of appeal
with the registrar of the Tribunal within 28 days after receipt of notice of the
chief executive's decision. However, a copy of the notice of appeal does not
have to be given to the chief executive until 7 days after it is filed with the
registrar. This delay does not serve any purpose and can result in
unnecessary delays in the hearing of appeals. This amendment requires the
registrar to give a copy of the notice of appeal to the chief executive within 3
days of receiving it.
Clause 19 amends section 34 by omitting the existing subsection 1 which
states that an appeal is by way of re-hearing of the matter unaffected by the
decision appealed against and specifying that it is by a rehearing on the
evidence that was before the original decision maker. This amendment
makes the appeal a review of the original decision by the chief executive. It
is part of a series of amendments contained in this Bill which will
streamline the appeal process without interfering with a person's rights.
Proper supervision of the decision-making process is ensured.
Subsection 2 amends Section 34(2) by allowing extra time within which
an appeal must be set down for hearing. Currently, the time frame is 28
days after the filing of a notice of appeal with the registrar. This is extended
to 2 months. This will allow applicants more time to prepare their case for
the Tribunal.
Clause 20 inserts new Section 35A into the Act. This section ensures
that despite the operation of Section 34(1) which requires an appeal to be by
way of rehearing on the evidence that was before the original decision
maker, an appellant is not unjustly dealt with. In certain circumstances the
Tribunal may grant a participant leave to adduce fresh, additional or
substituted evidence ("new evidence"). The Tribunal must be satisfied that
the person who wishes to adduce the new evidence did not know, or could
not reasonably be expected to have known of the existence of the new
evidence at the original proceeding, or in the special circumstances it would
be unfair not to allow that evidence to be adduced. If the Tribunal grants
leave to adduce new evidence, it has a number of options available. It may:
· adjourn to allow the chief executive to reconsider the decision
together with the new evidence; or
· if appropriate for the applicant to make a new application - require
the applicant to make a new application to the chief executive; or
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Liquor Amendment Bill 2001
· continue with the appeal by way of re-hearing on the evidence
before the decision-maker and on the new evidence.
The section also gives the chief executive a right to apply to reconsider
the decision together with the new evidence and the Tribunal must grant an
adjournment for a reasonable time.
Subsection 5 sets out the criteria the Tribunal must consider when
deciding if it is appropriate for the applicant the make a new application.
This includes whether the new evidence substantially changes the
application, the subject of the appeal, or whether additional people may be
affected by the amended application and the additional people should have
an opportunity to comment or object to the amended application. This
section addresses the scenario where applicants present particular material to
the chief executive for consideration in making the original decision and
then upon appeal present further material to the Tribunal. People who the
Act intends to have an opportunity to comment or object to the application
are therefore prevented from doing so.
Clause 21 amends section 38 which deals with the costs on appeal. The
section provides that each party must bear their own costs except in the
limited circumstances set out in subsection (2). As new section 26A gives
the Tribunal power to order expert witnesses to prepare a report, it is
necessary to amend section 38 to give the Tribunal the power to order costs
as it considers appropriate.
Clause 22 omits existing section 39 and inserts a new section clarifying
that, with the consent of all parties to an appeal, the Tribunal may deal with
the appeal or part of the appeal without holding a hearing. In some cases, all
parties to an appeal may be satisfied with the matter being considered on the
basis of the written material before the Tribunal. This amendment clarifies
that this may occur. This may be of particular benefit to appellants who live
in remote areas.
Clause 23 inserts new section 41A. The section reflects current practice
by formally requiring the Tribunal to keep a written record of its decisions.
This record is to be available for inspection by members of the public. A
participant may ask the Tribunal to suppress information about the person's
reputation, history of behaviour or attitude to the management and discharge
of the person's financial obligations. This request may be made at the time
of the proceeding or at a later time. The Tribunal may order that the
sensitive information not form part of the record. Before making such an
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Liquor Amendment Bill 2001
order the Tribunal must ask the chief executive about the extent of
publication of the information and the time required to remove it. The type
of information that can be suppressed is "sensitive information" as defined
in subsection (6).
New section 47A allows the publication of such material on the internet
or other media pursuant to an arrangement between the Tribunal and the
chief executive. Together these clauses reflect existing practice but
safeguards are inserted to ensure that an individual's privacy is protected.
Clause 24 amends section 42 by allowing the chief executive's powers
under the Act to be delegated to a person employed by a local government.
This reflects the change in delivery of government services that has
occurred. Some functions under the Act may be delivered through local
government in the future. The section is further amended by requiring
persons to whom a delegation of powers is given by the chief executive
must be appropriately qualified. This accords with comments previously
made by the Scrutiny of Legislation Committee in this regard but also
reflects current practice.
Clause 25 amends section 43 which requires the chief executive to keep a
register of licences permits and applications. The new section 43 specifies
further the types of matters to be kept in the register. It also requires the
chief executive to ensure the register does not contain sensitive information.
"Sensitive information" is defined in section 41A(6). The chief executive
must ensure the register does not contain information the chief executive
reasonably considers is commercially sensitive. Particulars about
convictions given to the chief executive by court staff as required under
section 45 may not form part of the register. It is important that the details
of the register be specified to protect the privacy of individuals as the
register is available to the public.
Clause 26 amends the heading of section 45 to more accurately reflect the
content of the section.
Clause 27 inserts a new section 47A allowing the chief executive to
publish specific information in a way that the chief executive considers
appropriate including on the internet or through some other
telecommunication media. Specifically the chief executive may publish all
or part of the register of licences, permits and applications and, with the
agreement of the Tribunal, the decisions of the Tribunal. This section is
necessary due to the general restriction on release of information contained
in section 48 of the Act.
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Liquor Amendment Bill 2001
Clause 28 amends section 48 by adding categories that are exempted
from the general secrecy provisions contained in subsection (1). The
categories enhance the transparency of the administrative process in the Act
by allowing disclosure of appropriate information.
Clause 29 amends section 58(2) which currently specifies that only one
licence may be granted or held for any premises or any part of premises.
This provision is continued but clarified by stating that a licence may be
granted or held for the premises or part even though there is a licence under
the Wine Industry Act 1994 for the premises or part of the premises. The
section further specifies that in such circumstances, the licensee under both
Acts must be the same person and the nominee under the Liquor Act must
be a nominee under the Wine Industry Act 1994 and liquor may be sold
under the licence under this Act only for the trading hours authorised under
the licence.
Clause 30 inserts new section 58A specifying the primary purpose of a
business conducted under a general licence. The primary purpose of a
business conducted under a general licence is the sale of liquor for
consumption on the premises or the sale of liquor for consumption on and
off the premises. A general licensee may be required to provide meals and
accommodation under the licence.
Subsection (2) provides that the authority under a general licence to sell
or supply liquor does not apply unless a business is conducted on the
licensed premises in accordance with the primary purpose specified in
subsection (1).
The section further specifies that it is inconsistent with the primary
purpose of a business conducted under a general licence to only sell liquor
for consumption off the premises. To obtain a general licence it is
necessary to sell liquor for consumption on the premises and not only sell
take away liquor.
There are a small number of existing general licences that are permitted to
sell take-away only. These premises were originally licensed as spirit
merchant (retailer's) under the Liquor Act 1912 and the trading conditions
were preserved by the 1992 Act. To ensure that no individual is
disadvantaged by the operation of this section, these unique licences will
continue to be preserved by the transitional arrangements of this Act.
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Liquor Amendment Bill 2001
Clause 31 inserts a new section 60 which restricts the granting of a
general licence for premises that the chief executive considers are, or are to
be, used primarily for a supermarket. Such premises may not be granted a
general licence.
Clause 32 inserts new section 61A. Section 61A provides that the
primary purpose of the business conducted under a residential licence is the
provision of accommodation. As with the other primary purpose sections,
subsection (2) provides that the authority to sell or supply liquor does not
apply unless the business conducted on the licensed premises complies with
the primary purpose for the licence type.
Clause 33 amends Section 62. Subsection (1)(b) is amended by
clarifying that the authority of a residential licence to sell liquor to persons
dining on the premises, applies to the part of the premises stated in the
licence as ordinarily set aside for dining. In other words, the authority
extends to the restaurant section of such premises. Many holders of
residential licences such as motels have restaurant sections that are open to
the public. The Act specifies that such licensees may sell to the public as if
the licence were an on-premises (meals) licence for that part of the
premises. However, unlike on-premises (meals) licences, this authority
does not extend to the sale of liquor for consumption off the premises.
Subsection (5) inserts a new subsection (4) which clarifies that where the
holder of a residential licence is catering for a function on premises other
than licensed premises, the sale of liquor must be to a person genuinely
attending the function and there must be some aspect of provision of food
by the licensee. This is consistent with similar provisions applying to other
licence types with this privilege.
Subsection (5) requires the chief executive, in deciding whether a licensee
of a residential licence is selling or will sell as if the licence were an
on-premises (meals) licence, to consider the indicators set out in section
73(3) and any other relevant factor. Section 73 deals with on-premises
(meals) licences.
Previously the authority under a residential licence to sell to persons
(other than residents) was restricted in a similar manner to on-premises
(meals) licence. Except in limited circumstances a person had to be
consuming a meal to be supplied with liquor. Like on-premises (meals)
licences the restriction has now be removed and liquor may be supplied, in
the dining area, other than in conjunction with the consumption of a meal
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Liquor Amendment Bill 2001
providing the primary purpose of that part of the premises is the provision
of meals prepared and served to be eaten on the premises.
Clause 34 omits section 63(c) which specified the number of residential
units required on premises to which a residential unit related. This is an
unnecessary restriction given that the requirement to comply with the
primary purpose has been strengthened.
Clause 35 inserts a new section 64 which clarifies the circumstances in
which liquor may be supplied under authority of a residential licence to a
resident or a guest of a resident (in the resident's company). Outside
ordinary trading hours liquor must be consumed in a residential unit on the
licensed premises or a part of the licensed premises approved for the time
being by the chief executive for the purpose, for example, a guest's lounge.
Clause 36 inserts a new section 65 which specifies that liquor supplied
under the authority of a residential licence to a person as if the licence were
an on-premises (meals) licence, must be consumed in a part of the licensed
premises stated in the licence as set aside for dining. This section does not
prevent persons attending a genuine function from consuming liquor
elsewhere on the premises. The restriction merely relates to members of the
public using the restaurant facilities, whether to dine or just drink liquor as is
now permissible.
Clause 37 amends section 67 of the Act by omitting subsections (2) and
(3). Subsection (2) is now covered by section 62. Subsection (3) contained a
reference to certain types of premises under section 63(c) which has now
been omitted.
Clause 38 amends section 70. It clarifies that the authority under an
on-premises licence to sell liquor for consumption off the licensed premises
is restricted to the sale of liquor as ancillary to a function. It does not
include the authority to sell liquor for consumption off the premises, that is,
take away. It also provides that the licensee must provide food for the
function. This provision applies to all the different types of on-premises
licences.
In the case of an on-premises (other activity) licence the function must
relate to the activity as specified in the licence by the chief executive.
This section does not inhibit the right of the holder of an on-premises
(meals) licence to sell liquor to persons in accordance with section 73A(b).
Section 70 deals with sales where the licensee is catering for a function.
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Liquor Amendment Bill 2001
Clause 39 inserts a new section 70A which specifies that the primary
purpose of an on-premises (function) licence is the provision of premises
and catering facilities for use by persons genuinely attending a function held
on the premises.
The authority of the licence to sell does not apply in the absence of a
business being conducted on the premises complying with the primary
purpose.
Clause 40 inserts a new section 71A which provides for the primary
purpose of a business under an on-premises (cabaret) licence. Such
premises are unique in that there is a different primary purpose for one part
of the day compared to the other. Between the hours of 10 am and 5 pm
such premises must trade as if it was an on-premises (meals) licence. After
5 pm the primary purpose of cabaret premises is the provision of
entertainment. The section specifies that the indicators relevant to
on-premises (meals) licences stated in section 73A(3) are also relevant for
cabaret licences.
Clause 41 inserts a new section 72A which reflects the change in trading
conditions for on-premises (meals) licences which these amendments are
introducing. Previously, the holders of such licences could only sell and
supply liquor in conjunction with the consumption of a meal. There was an
exception to this rule to the extent of 20% of the number of persons who
can be seated to eat a meal in the part of the premises ordinarily set aside for
dining. On-premises (cabaret) licences were subject to the same restriction
between the hours of 10am and 5pm. The restaurant section of residential
licences were also subject to this restriction. This Bill removes the 20%
restriction, allowing liquor to be sold or supplied without requiring the
consumption of a meal providing that the primary purpose of the business
conducted on the premises at that time, ie the provision of meals, is still
met.
The authority of the holder of an on-premises (cabaret) licence to sell and
supply liquor to persons who are dining on the premises does not extend to
the sale of liquor for consumption off the premises.
Clause 41 also inserts a new section 72B which extends the authority to
supply liquor on cabaret premises to persons genuinely attending a function
held on the premises.
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Liquor Amendment Bill 2001
Clause 42 inserts new sections 73, 73A and 73B. Section 73 provides
for the primary purpose of a business conducted under an on-premises
(meals) licence. The primary purpose of such licences is the provision of
meals prepared and served to be eaten on the licensed premises.
Subsection (2) specifies that the authority under the licence to sell or
supply liquor does not apply unless a business is conducted on the premises
with a primary purpose as mentioned in subsection (1).
Subsection (3) specifies some indicators that are to be considered in
deciding whether the primary purpose of the licence is or will comply with
subsection (1). The indicators include matters such as seating and standing
arrangements, the number of staff for preparing and serving meals, kitchen
arrangements including the hours of operation of the kitchen and a
comparison of the number of meals consumed and the amount of liquor
sold. This list is not exhaustive and other matters may be considered. The
types of indicators outlined demonstrate that the entire operation of a
particular business will be considered rather than individual incidents in
determining whether the primary purpose is being met.
Section 73A specifies that under the authority of an on-premises (meals)
licence liquor may be sold or supplied for consumption on the premises to a
person eating a meal on the premises and to other persons. Each adult diner
may be sold or supplied with one unopened bottle and one opened bottle of
wine to take away.
Section 73B extends the authority under an on-premises (meals) licence
to the supply and sale of liquor to persons genuinely attending a function on
the premises, if the chief executive specifies so on the licence.
Clause 43 amends section 74 by substituting the new definition of
on-premises (meals) licence in place of the previous wording. It also makes
a consequential amendment to the section by deleting paragraph (b) which
was necessary when restaurants could have approval for up to 20% of
diners to be supplied liquor without having to consume a meal.
The opportunity has been taken to redraft this section to clarify who is
responsible for displaying the details as required under the section.
Clause 44 inserts a new section 74A specifying the primary purpose of a
business conducted under an on-premises (transport) licence. The primary
purpose is carrying passengers commercially on a boat, train, vehicle or
aircraft.
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Liquor Amendment Bill 2001
Clause 45 amends section 75 by making some consequential
amendments.
Clause 46 inserts section 75A specifying that the primary purpose of a
business under an on-premises (presentations) licence is the provision of
facilities for sporting, cultural, theatrical or cinematographic presentations.
As with all the sections a business consistent with the primary purpose
must be conducted on the premises for the authority of the licence to apply.
This does not alter the primary purpose currently existing under the Act;
it just expresses it in a manner consistent with the other sections of the Act.
Clause 47 amends section 76 by making a consequential amendment.
Clause 48 amends section 77(1) by making a consequential amendment.
Clause 49 inserts new sections 78, 79, 80 and 81. Section 78 specifies
that the primary purpose of a business conducted under an on-premises
(tourist) licence is the provision of entertainment or visual instruction to
tourists on-premises developed as a tourist attraction and links the authority
of the licence to the conduct of the business.
Section 79 continues the existing requirement for the sale of liquor on
such premises to be at a liquor outlet specified in the licence for
consumption within that outlet. Subsection (2) of section 79 specifies that
liquor may be sold and supplied to persons genuinely attending a function
held on the premises on the conditions the chief executive states in the
licence.
A new subdivision 8 is inserted headed - Other Activity. New section 80
specifies the primary purpose of a business conducted under an
on-premises (other activity) licence as the provision by the licensee of an
activity for persons on the licensed premises as stated in the licence. The
Act previously provided, in Section 69(1)(h) that an on-premises licence can
be granted where the primary purpose of the premises is for the use of any
other activity and purpose approved by the chief executive. The Act
however was silent with respect to any further provisions relating to licences
in this category.
The types of businesses that currently hold on-premises (other activity)
licences are commercial sporting enterprises, for example, indoor cricket
centres. Such businesses are ineligible to apply for other categories of
licence such as a club licence as they are a commercial venture and to obtain
a club licence under the Act a body must be non-profit.
21
Liquor Amendment Bill 2001
Section 81 extends the authority, in certain cases, of an on-premises
(other activity) licence to the sale of liquor to persons on the licensed
premises genuinely attending a function relating to the activity stated in the
licence. This particular extension of the authority of the licence requires the
chief executive to state it on the licence and is subject to the conditions stated
in the licence.
Clause 50 inserts new section 81A providing that the primary purpose of
a business conducted under a producer/wholesaler licence is either or both
of the following -
· the production and wholesale sale on the premises of liquor made
on the premises;
· the wholesale sale on the premises of liquor.
Subsection (2) requires the business conducted on the premises to
comply with the primary purpose for the authority to apply.
Clause 51 makes a consequential amendment to section 83 resulting
from the new primary purpose provision.
Clause 52 amends section 84. Section 84 specifies the types of sale that
the holder of the producer/wholesale licence is permitted to make. The
section is deficient in that it fails to make provision for the holders of
approvals under the Commonwealth to sell liquor, although it does refer to a
person authorised by the law of another state or territory or foreign country.
This deficiency is rectified.
The section is also clarified by specifying further categories of persons to
whom a producer/wholesaler may sell.
Section 84(4) is amended by clarifying that the section does not apply,
where a licensee also holds a brewery licence under The Excise Act 1901, to
sales of the licensee's liquor. "Licensee's liquor" is liquor produced on the
licensed premises. This ensures there is no conflict between the
Commonwealth legislation and the Act. Where such licensees are selling
liquor other than licensee's liquor, the provisions of section 84 apply.
Clause 53 inserts new section 84A specifying the primary purpose of a
business conducted under a club licence. The primary purpose of the
business conducted under a club licence is the provision of facilities and
services to the club's members and the achievement of the club's objectives.
It is intended that the focus of the club should be these things and not the
sale of liquor. Whilst the sale of liquor could be seen to be a service to
22
Liquor Amendment Bill 2001
members, it is intended that it be ancillary to the other services the club
provides.
Clause 54 amends section 85. Section 85(1)(a)(v) states that liquor may
be sold to a visitor to the club whose ordinary place of residence is in the
state at least 40 km from the club's premises for consumption on the
premises. This distance is reduced to 15 km by this amendment.
The amendment to this section will also allow RSL or services clubs to
sell liquor for consumption on the premises to defence members. Defence
member is later defined in section 85(5). This provision is not mandatory,
it merely allows RSL or services clubs to sell to defence members if the
club choses to do so.
A new subsection (1A) is inserted into section 85 which will eliminate
the need for many clubs to apply for general purpose permits to sell liquor
from areas on the playing fields attached to the club or at another location.
The licensed premises under a club licence covers the clubhouse and not the
playing fields attached to the clubhouse. When sporting fixtures are played
on the fields adjoining the clubhouse, a general purpose permit is required to
enable the sale of liquor from specified areas on the field. Similarly clubs
must obtain general purpose permits where their playing fields may be
located some distance from the clubhouse.
This amendment will allow a club to specify, in the licence, the areas
from which it intends to sell liquor on particular occasions, for example, its
sporting fixtures to be held at the playing fields either adjacent to the club
house or at some distance to the club house. If these areas are specified on
the licence the club will be authorised to sell liquor from the areas during the
ordinary trading hours for the club licence to members of the public
attending the particular event for consumption in that defined area. The
event must be the playing of a sport or game for which the club is
established.
At least fourteen days before the event the club must give written notice
about the event to the police officer in charge of the locality in which the
event is to be held. No take away liquor may be sold in these defined areas.
New section (1B) specifies that the defined area referred to in subsection
(1A) becomes part of the licensed premises for the period the licensee is
authorised to sell liquor. This ensures that the obligations and rights of a
licensee continue to apply in those areas.
23
Liquor Amendment Bill 2001
New subsection (1C) specifies that a club licence must not operate a
facility ordinarily known as a drive-in or drive through bottle shop. Section
264 states that this section applies to existing operations of this nature.
Subsection (5) makes some consequential amendments to section 85(2)
and subsection (6) inserts a definition of "defence member" for the
purposes of subsection (1)(a)(vii).
Clause 55 amends section 86 by inserting a new paragraph (a) in
subsection (1) stating that the chief executive may only grant a club licence
where the primary purpose of the business to be conducted on the premises
is as mentioned in section 84A(1).
Clause 56 omits section 87 which restricted a club from selling more
than 18 litres of liquor on each day to a member of the club or a reciprocal
club for consumption off the premises. There will no longer be any
limitation on the amount clubs can sell to members.
Clause 57 inserts a new section 92 which specifies the primary purpose
of a business under a special facility licence.
Clause 58 amends section 94 by inserting a reference to the primary
purpose specified in section 92 in subsection (1). Section 94 is also
amended by the addition of subsection (3) which specifies that the chief
executive must not grant a special facility licence to a person for premises
that the chief executive reasonably considers is or is to be, used primarily as
a supermarket.
Clause 59 inserts a new section 94A stating the primary purse of a
business under a limited licence. Again, the authority under the licence does
not apply unless such a business is conducted on the licensed premises.
Clause 60 inserts a new subsection (2) in section 96 specifying that
premises used primarily as a supermarket may not be granted a limited
licence.
Clause 61 amends section 97 by inserting a reference to a new type of
permit - a catering away permit.
Clause 62 omits section 103 and inserts new sections 102A-G and 103.
New section 102A replaces existing section 103 which restricts the grant
of an extended hours permit. The existing restriction regarding the granting
of extended hours permit on Good Friday, Christmas Day or Anzac Day is
continued.
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Liquor Amendment Bill 2001
Sections 102B and 102C establish a scheme for the consideration of
applications for extended hours permits that would result in the trading
between 5 am and 7 am. Section 102B relates to such applications that
would extend trading hours on a regular basis. In such cases the chief
executive must give a copy of the application to the local government for the
area in which the premises are situated asking for a recommendation and
reasons about the application. Before deciding the application, the chief
executive must have regard to the recommendation of the local government
and so far as practicable having regard to the objects of the Act, adopt the
recommendation.
Such permits may not be for more than six months. However renewal
of a permit is possible. The same procedure applies for a renewal as applies
for the initial application. The views of the local government for the area in
which the licensed premises are situated must again be sought for the
forthcoming period.
Subsection (5) of section 102B ensures that the other matters required by
the Act to be considered when deciding an application for an extended hours
permit that would extend trading hours on a regular basis must still be
considered. In particular, the matters set out in sections 116, 118, 121 and
121A must still be considered.
Section 102C deals with applications for an extended hours permit that
include trading between 5 am and 7 am in other circumstances that is,
one-off occasions. Subsection (2) states some limitations on the chief
executive's discretion to grant such applications.
Subsection (3) specifies that any other section that would apply to such
an extended hours permit continues to apply, for example section 110.
Section 102D defines the terms used in the new Division 12A - Catering
away permits for public events. For the purposes of this division "licence"
means a general licence, a residential licence, an on-premises licence and a
limited licence. Each of these licences has an extension of the authority
under the licence which allows the sale of liquor on premises that are not the
main premises. This allows the holder of such licences to cater for
functions away from the licensed premises.
"Main premises" means the licensed premises described in a licence.
The terms "private event" and "public event" are defined in this
section.
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Liquor Amendment Bill 2001
Section 102E requires a licensee who is planning to sell or supply liquor
at a public event to apply for a catering away permit. Subsection (2) states
that an application must describe the area where the liquor will be sold or
supplied and consumed and the area where any catering to be provided by
the licensee will take place. Additionally such an application must be
accompanied by a proposed event management plan for the public event
stating matters about which the chief executive is to be satisfied.
This section does not limit the general powers regarding the making of
applications which are contained in section 105 of the Act.
Section 102F lists the matters about which the chief executive must be
satisfied before granting a catering away permit for a public event. In
general, in catering for the public event, the licensee must be complying
with the primary purpose of the business under the licensee's licence. This
does not apply in the case of residential licences where the primary purpose
is the provision of accommodation which obviously would not be part of
catering for a function.
Whilst this section requires the chief executive be satisfied that
appropriate planning for the public event has been carried out with the Police
Service and the local government for the locality in which the public event is
to be held, it does not mean that the applicant for the permit must have
carried out such planning. At large events such as a race meeting or a rock
concert the licensee who is providing the catering does not have the sole
responsibility for carrying out such planning. This is recognised in the
section. What the chief executive would require would be evidence that
such planning has been carried out by the organiser of the event.
Similar considerations apply with respect to the matters specified in
paragraphs (c) and (d) of section 102F which relate to amenity and safety
issues in the locality in which the event is to be held.
Subsection (3) specifies that the chief executive must not grant catering
away permits at any time on Good Friday or Christmas Day or before 1 pm
on Anzac Day. This provision is consistent with restrictions on trading
hours for all licensed premises on these special days.
Section 102G specifies that for the period the licensee is authorised to sell
liquor at the public event the area defined in the permit forms part of the
licensee's licensed premises. This ensures that the obligations and rights of
a licensee apply in such circumstances, for example, licensees may not
serve intoxicated persons on licensed premises.
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Liquor Amendment Bill 2001
New section 103 sets out the authority under a catering away permit
which includes selling liquor at the public event stated in the permit; and at
the time or days stated in the permit and subject to the conditions stated in
the permit. Subsection (2) states that the authority extends to the sale or
supply for consumption within the defined area at the public event. It does
not extend to the sale of take-away liquor.
A licensee who, for example, has a contract to cater at regular events at
the same venue may apply for a permit that would cover all such events.
An example, might be the contract to supply catering at the Brisbane Cricket
Ground for all cricket matches for the next two years.
Clause 63 amends section 103G(1)(v) to clarify that an adult
entertainment permit is for the time stated in the permit. Existing section
103G(3) states that adult entertainment permits are subject to the conditions
prescribed under a regulation or imposed by the chief executive. There is
some doubt as to whether this includes times that are different to ordinary or
extended trading hours. This amendment clarifies that an adult
entertainment permit may be granted for times that differ from such hours.
Further, this amendment omits section 103G(2) which restricted a
permitee to providing adult entertainment in one approved area at any time.
In practice, some premises are configured in such a way that it is acceptable
for adult entertainment to be provided in more than one area at any time.
Clause 64 inserts new section 103K which restricts the grant of an adult
entertainment permit. An adult entertainment permit relating to premises
where a public or private event is to be held may not be granted other than at
the main premises under a licence or in the case of a general purpose permit
or a restricted club permit, the premises to which the permit relates. Main
premises in this context do not include a detached bottle shop or areas
defined in accordance with section 85(1A) in the case of a club licence.
Clause 65 amends section 104 by omitting subsection (2). Section 104
allows patrons of licensed premises to consume liquor purchased before the
end of trading hours for a period of thirty minutes after the end of trading
time. Subsection 2 specifically excluded approved areas where adult
entertainment was being provided from this privilege. However, in practice,
it has been found that this restriction is very difficult for licensees to enforce
as the customers from the approved area mingle with customers from other
areas on the licensed premises.
27
Liquor Amendment Bill 2001
Clause 66 inserts new subsections (2), (3) and (4) in section 105. The
purpose of this amendment is to enhance the administrative process under
the Act by requiring applicants to provide further information within a stated
time. Withdrawal of the application is the penalty for failure to provide the
requested information within the stated time. Together with the new
powers given to the Liquor Appeals Tribunal to refer matters back to the
chief executive this section should prevent a practice in the industry of
presenting too few details to the chief executive and then providing
enhanced material to the Tribunal upon appeal.
Clause 67 inserts new section 107AA. This section clarifies that the
chief executive may impose conditions on licences and permits to ensure
appropriate compliance with the Act or to give effect to an agreement that
has resulted from a conference held under section 121 or a decision of the
Tribunal.
Clause 68 amends section 109. This amendment makes some minor
and consequential amendments and also omits subsection (4) and (5). The
contents of subsections (4) and (5) are contained in new section 113A
which deals with a transfer of a licence or permit held on behalf of an
unincorporated association.
Clause 69 amends section 110 by replacing a reference to the Assistant
Commissioner for Police with a reference to the police officer in charge of
the locality. Section 110(2) requires an applicant for an extended hours
permit to give a copy of the application to the relevant police office for the
locality to which the relevant premises is situated, who may then comment
or object to the chief executive about the application within fourteen days. It
is not considered necessary for the matter to be referred to the Assistant
Commissioner in each case.
Clause 70 amends section 112 by inserting subsection (2) specifying that
when a variation of a licence results from a disciplinary action under section
137A of the Act it is not necessary to follow the notice provisions set out in
112 of the Act. This is because the disciplinary procedures of the Act
require notification to be given to the licensee and an opportunity be given
for the licensee to object or comment on the proposed variation.
Clause 71 inserts new section 113A which sets out the process where a
licence is held by a person for or on behalf of an unincorporated association
and the association becomes incorporated. The section requires that the
licensee and the association must, within three months after the association
28
Liquor Amendment Bill 2001
is incorporated, apply for the licence to be transferred to the association.
These provisions were formerly contained in section 109 of the Act.
Clause 72 amends section 116. Currently the Act refers to the concept of
public need in section 116. This amendment changes that concept to public
interest. The amendment makes it clear that rather than the reasonable
requirements of the public for liquor and related services being the relevant
issue, it is the public interest that is important. The omission of section
116(3)(d) and the amendment to subsection (2) emphasise that it is the
public interest that is the paramount consideration. The change in emphasis
has resulted from the National Competition Review of the legislation.
Whilst the concept of proving a "public need" may be considered to have
created a barrier to competition, the amended section has a different focus.
It supports the aim of the National Health Policy on Alcohol, which is an
objective of the Act (section 3).
Subsection (4) has been amended by expanding the factors that must be
taken into account with respect to public interest. In particular the impact
the licence or new trading hours will have on the community and
sub-communities within the community must be considered.
Clause 73 amends section 118 in a number of ways. Subsection (1)(b)
is amended to reflect the new definition of detached bottle shop.
Subsection (1) is also amended by inserting a new paragraph (d) that will
require an adult entertainment permit (other than a one-off permit or
subsequent permit) to be advertised. One-off applications for adult
entertainment or subsequent permits may still be required to be advertised if
the chief executive requires, by written notice to the applicant, this to occur
under paragraph (e).
Subsection (3) is omitted and replaced with new subsection (2A) and
new (3). These amendments allow more flexibility in the way signage
relating to an application must be displayed on the premises.
Subsection (6) and (7) are omitted as the requirement to keep a list of all
applications that are required to be advertised is now found in section 43
relating to the register of licences permits and applications.
New subsection (6) sets out matters the chief executive must have regard
to in deciding whether an application for an adult entertainment permit must
be advertised.
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Liquor Amendment Bill 2001
Subsection (7) inserts definitions of "one-off permit" and "subsequent
permit".
Clause 74 makes some consequential amendments to section 118A
resulting from the change from public need to public interest.
Clause 75 amends section 119 by drawing a distinction between the
grounds of objection for application generally and the grounds of objection
for an adult entertainment permit. This ensures that any additional concerns
that may arise due to the nature of the entertainment may be considered.
Clause 76 amends section 121(5). This subsection specified the powers
of the chief executive in making a decision upon an application. The
subsection mentions the situation where a conference was held and an
agreement was reached and a situation where no conference was held.
However it does not consider the situation where a conference was held but
no agreement was reached.
Clause 77 inserts new sections 123, 123A-C and 124 which deal with a
provisional grant of licence and a staged development approval.
New section 123 expands upon the existing provisions of the Act by
clarifying the circumstances in which a provisional grant of licence may be
made. In particular it emphasises that before a provisional grant may be
made the chief executive must be satisfied that the primary purpose of the
proposed licence will be met and the requirements under section 107
relating to the suitability of the applicant have been fulfilled. It also
emphasises that development approval from the relevant local government
is a requirement before the granting of such a licence.
If the preconditions are met, but final certificates relating to building work
or such things as hygiene certificates are still required, the chief executive
may grant the application for licence provisionally, subject to the condition
that the applicant produce the required approvals or certification within one
year. If the applicant does not produce the required material the provisional
licence is cancelled.
New section 123A deals with the situation where the proposed premises
are to be developed in stages and one or more of the stages have been
completed. Again the primary purpose of the proposed licence and the
requirements of section 107 must be met. Providing the completed stage
meets the primary purpose of the proposed licence and has received
certification as required by law for use as licensed premises or for conduct
in the premises of a business for which the licence was sought and the chief
30
Liquor Amendment Bill 2001
executive would grant the application if all the other stages were completed,
then the chief executive may grant the application provisionally and issue a
staged development approval subject to the applicant completing the
remaining stages within one year.
Section 123B provides that a provisional licence or staged development
approval remains in force for the stated reasonable time from the day on
which it is granted or if no time is stated, one year from which it is granted.
A provisional licence may be renewed for a period of not more than one
year if the chief executive considers that there are special circumstances for
the applicant not producing the evidence stated in the licence within the
stated time. This would include for example delays in completing the
proposed premises because of adverse weather conditions. A provisional
licence cannot be renewed more than once.
A staged development approval may be renewed more than once.
Section 123C sets out the effect of a provisional licence. The most
important aspect is that a provisional licence does not give the applicant
authority to trade until the licence is granted.
If the appropriate requirements are met the section states that the chief
executive must grant the appropriate licence. It also provides that if the
requirements are not met the chief executive must cancel the licence.
Section 124 states the effect of a staged development approval. In this
case trading can commence in that part of the premises subject to the
approval.
Clause 78 amends section 125. A new subsection is inserted allowing,
for example, in the case of a general licence, where the main premises are
destroyed, the detached bottle shop to continue trading.
New subsection 4 provides that a temporary authority to trade where
premises are wholly or partially destroyed can be granted for no more than
two years. The chief executive must be satisfied that special circumstances
exist to extend for further terms each of which may not be longer than two
years.
Clause 79 amends section 128. Existing paragraph (b) provides that
where a licence is held by or for the benefit of a club and at any time there is
no nominee each of the members of the club's management committee is
subject to the same liabilities under this act as a licensee. In practice,
licences are held either by an incorporated body with a nominee, in which
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Liquor Amendment Bill 2001
case the absence of the nominee is dealt with in paragraph (a) or by a
individual person by or for the benefit of an unincorporated association. In
the latter case, as the licence is held by a individual there may be no
nominee. The amendment corrects this anomaly.
Clause 80 amends section 129 which makes provision for circumstances
where trading may continue, such as a licensee's death or bankruptcy or a
licensee ceasing to conduct business on the premises. The section allows
certain people to apply for authority to continue trading. The section is
amended by the addition of subsection (4) which provides that certain
people may apply to the chief executive to conduct the business of a club
licence where that person is in possession of the licensed premises. The
application must state the way in which the person will continue trading
under the club licence for the benefit of the club. The persons who may
apply include a owner or mortgagee or the owner of a financial interest in
the trading of the licensed premises who have given the chief executive
particulars of their interest in the licence under section 44A.
Subsection (4) does not prevent the other persons specified in sections
129 from applying in the relevant circumstances with respect to a club.
Clause 81 amends section 131A by inserting new subsection (3A) which
restricts persons mentioned in new section 129(4) to a maximum period for
an authority of not more than six months after the date of application.
Clause 82 amends section 132 which allows for the discharge of a
licensee or a permitee from obligations in certain circumstances. The
amendment specifies that the chief executive may do all or any of the things
specified in paragraphs (d) and (e). The Act currently states that the chief
executive must both, discharge the nominee or licensee and suspend the
licence. In cases where it is the nominee being discharged, it may not be
necessary to also suspend the licence.
Clause 83 amends section 133 which provides for the process upon
surrender of a licence. The section requires that a request to surrender a
licence must be accompanied by the consent of all mortgagees or lessees of
the licensed premises or any part of the licensed premises. The amendment
clarifies that it is those mortgages and lessees who have given the chief
executive their particulars under section 44A whose consent is required.
Unless mortgagees and lessees register under section 44A the chief
executive has no knowledge of their interest in the premises.
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Liquor Amendment Bill 2001
Clause 84 inserts new sections 134A-C which provide a procedure for
the chief executive to take action in relation to a person's adult entertainment
permit on the ground that the person is no longer suitable to provide adult
entertainment. The sections set out a scheme whereby the chief executive
must give a person written notice of the action proposed to be taken
including the grounds and the facts and circumstances forming the basis for
the grounds. The notice must invite the person to show cause why the
relevant action should not be taken within a stated period of not less than
fourteen days.
After making a decision regarding the proposed action, the chief
executive must give written notice regarding the proposed action to the
licensee including the reasons for the decision and details of appeal rights to
the Liquor Appeals Tribunal.
Clause 85 omits section 136 and 137 and replaces them with new
sections. The new sections establish a new procedure for taking disciplinary
action against a licensee, although the grounds for taking action and the
action that may be taken have not changed.
The wording of the existing sections require the chief executive when
taking action against a licensee, to specify in the notice that the licensee must
show cause why the licence should not be cancelled. Naturally, many
licensees feel compelled to take action, such as engaging legal
representation, and appearing personally in order to protect their interests.
In many cases the chief executive does not intend cancelling the licence but
rather to take one of the other disciplinary actions that are available under the
Act.
The amendment allows the chief executive to specify at the start of the
proceeding what action he or she intends to take. Licensees are given an
opportunity to respond and may choose to do so in a manner that
corresponds to the seriousness of the proposed action.
A power for the chief executive to urgently suspend the licence is inserted
in section 137C. This power may only be used where a ground exists for
taking disciplinary action and harm may be caused to the public if the
licence is not suspended. Where this power is exercised a notice must be
given to the licensee outlining the reasons for the suspension and the
avenues for appealing the decision. At the same time the chief executive
must give the licensee a notice under section 137 relating to the disciplinary
action.
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Liquor Amendment Bill 2001
Unless revoked or a decision is made about the disciplinary action the
suspension continues for 60 days.
New section 137B repeats the provisions of existing section 137(4).
Clause 86 amends section 143 which specifies the particulars that a
licensee must display on the exterior of licensed premises. The section
specifies that the particulars must be in legible character at least 50 mm in
height. This requirement has been reduced to 15mm.
Clause 87 amends section 147 by extending its application to employees
or agents of the licensee or permitee. Section 147 creates offences of
allowing liquor to be consumed or removed from the premises outside the
approved hours. In line with similar offences under the Act it is extended to
include persons who may be in charge at the time these offences are
committed.
Clause 88 amends section 148 which provides a defence to offences
committed under section 146 or 147. This amendment extends that defence
to employees or agents of the licensee or permitee. It also makes a minor
amendment to paragraph (d).
Clause 89 amends section 150 by making a minor amendment and
inserting a new subsection (2). Section 150 requires a corporation to give
the chief executive written notice of every change in the beneficial
ownership of the controlling interest in the corporation. Subsection 2 deals
with special facility licences where part of the licence premises are let or
sublet; or the right to sell liquor is let or sublet; or a franchise or
management agreement for part of the licensed premises has been entered
into. The chief executive must be notified as to any change in these
arrangements including a change in the beneficial ownership of the
controlling interest in any lessee, sub-lessee, franchisee or holder of
management rights. It is an offence to fail to notify the chief executive in
accordance with subsection (2).
Clause 90 amends section 152 by correcting a anomaly. Subsection (2)
was expressed to apply only to a general licence. The amendment corrects
this by applying it to all licensees. The section prevents the name of the
licensed premises being used for or in connection with a business or service
to the public other than the business or service that may be conducted or
supplied on the licence premises under subsection (1). Subsection 1 sets
out the types of businesses that may be conducted on the licensed premises,
including that authorised by the licence.
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Liquor Amendment Bill 2001
Clause 91 amends section 154 by omitting the heading and subsection
(1) and (2). New subsections are inserted. Currently the owner and
licensee of licensed premises must notify the chief executive before altering
or rebuilding the licensed premises. Subsection (2) prescribed the way in
which owners and licensees of licensed premises could change the area of
those licensed premises.
The new subsections require owners, licensees or other persons in
control of licensed premises to gain the chief executive's approval before
altering, rebuilding, changing or increasing the area of the licensed premises.
Subsection (2) requires the chief executive to have regard to the primary
purpose of the licence in giving an approval. It also specifies that a change
in the area includes not using a part of the licence premises as if the part
were not licensed premises.
Clause 92 inserts new sections 154A and 154B providing for the
relocation and transfer of detached bottle shops. An application may be
made under section 154A to relocate an existing detached bottle shop within
the same shopping precinct. The chief executive must consider whether the
application should be advertised. The new location may not be further from
the main licensed premises than is allowable under the Liquor Regulation
1992, unless the bottle shop the subject of the application had approval to
operate outside the distance prescribed. This can occur as the relevant
distance was changed in 1994.
Section 154B allows the transfer of a detached bottle shop from one
general licensee to another. The transfer must not be granted if the proposed
operator of the bottle shop would then have more than 3 detached bottle
shops under the particular general licence to which the detached bottle shop
is attached.
Clause 93 amends section 155 which makes it an offence for certain
persons to allow a minor on the premises. The amendment applies this
section to an employee or agent of the licensee or permittee as well. An
employee or agent of the licensee or permittee who allows a minor to enter
the premises is guilty of an offence.
Clause 94 amends section 155AA by inserting new subsection (3). The
subsection removes any doubt by declaring that a minor cannot be in an
approved area in the capacity of a performer of adult entertainment.
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Liquor Amendment Bill 2001
Clause 95 amends section 162(2)(a) which relates to the taking of liquor
onto or away from on-premises licences. Currently it is an offence to take
liquor from such premises unless it was opened on the premises or brought
to the premises. In conjunction with the amendment to section 73, the Act
has been clarified to state that a person may take one open and one
unopened bottle of wine from such premises, providing the person has
consumed a meal on the premises.
Clause 96 amends section 187 dealing with the abatement of nuisance or
dangerous activity on licensed premises. Section 187 provides that if an
investigator believes on reasonable grounds that noise from licensed
premises or an attached utility area is a nuisance to persons residence on the
licensed premises or other premises near or contravenes an order under
section 46 the investigator may give written notice to the licensee, permittee
or person who appears to be in charge of the premises requiring that the
noise stop or be reduced to a level that is no longer a nuisance. Additionally
an investigator can order that premises be closed immediately. The Act
does not provide any guidance to assist an investigator in making
assessments as to the appropriate level of noise.
Section 187 is amended by omitting the concept of nuisance and inserting
instead a concept of "unreasonable noise". Unreasonable noise is noise that
exceeds limits prescribed under a regulation. It is intended that the
regulations prescribe limits that are currently used by investigators as a
guide to assist in their assessment. These limits have been developed in
consultation with the Environment Protection Authority.
New subsection (2A) of section 187 specifies that a number of factors
must be considered by an investigator in deciding whether to give a written
notice to reduce or cease noise from licensed premises. The subsection
recognises that the problem of noise from licensed premises, particularly in
inner city areas, calls for a balanced approach to the interests of all parties
involved.
Clause 97 omits section 193 to 196. These sections were repealed in
1994, however, due to an administrative printing error were not deleted
from the Act.
Clause 98 inserts new section 221 specifying that division 2 of part 9
expires one year after the commencement of this section. This division
requires a premium to be paid by an applicant for a general licence or a
special facility licence. This was identified as creating a barrier to entry to
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Liquor Amendment Bill 2001
the market in the National Competition Review of the Act and is therefore to
be phased out over a 12 month period.
Clause 99 amends section 226 which makes it an offence for a person to
contravene a condition specified in a licence or permit. The penalty for such
an offence is increased from 25 penalty units to 40 penalty units. The
penalty is increased in recognition of the potential harm non-compliance
with conditions of licences may cause in the areas of health, safety or public
nuisance.
Clause 100 inserts new section 232 into the Act. The Act is currently
silent as to the way proceedings for an offence against the Act are to be
taken. Accordingly, this section requires that proceedings for an offence
against the Act be taken in a summary way under the Justices Act 1886.
Clause 101 amends section 235, the regulation making power in the Act.
This section is amended by inserting new paragraphs in subsection (2)
dealing with:
· the requirements for event management plans for the conduct of
public functions;
· the requirements for management plans for the conduct of an
establishment under an adult entertainment permit;
· the limits for noise coming from licensed premises.
Section 235 is also amended by increasing the maximum penalty for an
offence against a regulation from 10 penalty units to 40 penalty units. With
the introduction of adult entertainment permits in addition to regulations
dealing with other important matters such as responsible hospitality
practices, it is necessary to increase the penalty for a breach of the
regulations to a level that reflects the gravity with which a breach is
regarded.
Clause 102 amends section 238 which was a transitional provision
relating to the completion of proceedings in the Licensing Court, previously
constituted under the Liquor Act 1912. The amendment provides that the
section stop applying on the 30th June 2003. All proceedings remaining
before the Licensing Court must be completed by that date.
Clause 103 amends section 238A by providing that the section stop
applying after 30 th June 2003. The section preserved the power of the
Licensing Court under the Liquor Act 1912 to deal with a particular type of
application. All such matters must be completed by the 30th June 2003.
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Liquor Amendment Bill 2001
Clause 104 amends section 239 which provided that on completion of all
proceedings under section 238 or 238A the Licensing Court ceased to exist.
If the Court has not ceased to exist by 30th June 2003, the amendment
provides that it ceases to exist on that day.
Clause 105 amends section 241 by providing that the section stops
applying on the 30th June 2003. This section gave the chief executive the
power to deal with applications under the 1912 Act that had not been
completed before the 1992 Act commenced. Any such applications must
be completed by 30th June 2003.
Clause 106 inserts new part 12, division 2 after section 258. This new
division contains transitional provisions for the bill.
Section 259 provides that an appeal started before the Liquor Appeals
Tribunal, but not decided, before the commencement of this section is to be
heard in the same way that it would have been as if the Liquor Amendment
Act 2000 had not commenced.
Section 260 ensures that the change in provisions relating to the primary
purpose of general licences does not disadvantage particular general
licences.. Under the Liquor Act 1912 a number of spirit merchants (retail)
licences, existed where the licensees were able to sell take-away liquor only.
With the introduction of the 1992 Act, there was no category of licence that
directly corresponded with such a licence type. The transitional provisions
of the 1992 Act preserved the trading rights of those individual licences.
Section 260 ensures that this Bill, with its requirement to comply with a
primary purpose of selling liquor for consumption on the premises as well
as off the premises does not prohibit such licensees from continuing to
trade.
Section 261 specifies that subject to subsections (3) and (4) an
application made before the commencement of this Act must be decided as
if the Act had not commenced.
Subsection (3) provides that new section 105(2) to (4) applies to
applications already made at the commencement of the legislation. These
new subsections give the chief executive the power to require the applicant
to give further information about the application within a reasonable time to
help the chief executive decide the application. If the information is not
provided the application is taken to be withdrawn. The application of these
provisions to existing applications before the chief executive does not alter
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Liquor Amendment Bill 2001
the nature of the application to be considered or the factors that the chief
executive must take into account.
Subsection (4) specifically requires that an application for extended
trading hours that includes trading between the hours of 5am and 7am must
comply with the new provisions of section 102B or 102C.
Section 262 is a transitional provision applying to temporary authorities
granted before the commencement of the legislation. Such an authority may
be extended under section 125 (4)(b) as if the authority were granted after
the commencement of the legislation.
Section 263 ensures that notices given under section 187(2), relating to
noise on licensed premises continue to have affect after the commencement
of the legislation.
Section 264 specifies that section 85(1C) has effect in relation to a club
licence even, if before the commencement of the section, the licensee could
sell or supply liquor from a facility known as a drive-in or drive-through
bottle shop.
Section 265 requires the chief executive to review all licences to ensure
that the conditions to which the licence is subject are not inconsistent with
the current Act and that the licence is endorsed with all conditions
considered appropriate by the chief executive following the commencement
of this Act.
The section gives the chief executive the power to require the licensee to
produce the licence.
Section 107 is an amendment to omit headings following
cross-references.
Section 108 amends the Schedule to the Act by correcting a cross
reference and deleting paragraph (e). This paragraph prevented an officer or
employee of a club being paid an amount by way of commission or
allowance calculated by reference to the quantity of liquor sold or supplied
by the club or the receipts of the club for such liquor. This amendment
reflects the changed business and trading environment in which clubs
operate in the year 2000.
The Schedule to the Bill makes consequential and minor amendments to
the Act.
State of Queensland 2001