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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Liquor Licensing (Miscellaneous) Amendment
Bill 2011
A BILL FOR
An Act to amend the Liquor
Licensing Act 1997.
Contents
Part 1—Preliminary
1Short
title
2Commencement
3Amendment
provisions
Part 2—Amendment of Liquor Licensing
Act 1997
4Amendment of section
4—Interpretation
5Insertion of section
7A
7AClosure hours not to
apply to casino except in respect of prescribed areas
6Amendment of section 11A—Commissioner's
codes of practice
7Insertion of section
11B
11BCommissioner's
management plans
8Amendment of section 28A—Criminal
intelligence
9Amendment of section 29—Requirement to
hold licence
10Amendment of section 31—Authorised
trading in liquor
11Amendment of section 32—Hotel
licence
12Amendment of section 33—Residential
licence
13Amendment of section 34—Restaurant
licence
14Amendment of section 35—Entertainment
venue licence
15Amendment of section 36—Club
licence
16Amendment of section 39—Producer's
licence
17Amendment of section 40—Special
circumstances licence
18Amendment of section 41—Limited
licence
19Amendment of section 42—Mandatory
conditions
20Amendment of section 43—Power of
licensing authority to impose conditions
21Amendment of section
44—Extended trading authorisation
22Amendment of section
45—Compliance with licence conditions
23Amendment of
section 46—Unauthorised sale or supply of liquor
24Amendment of
section 100—Supply of liquor to lodgers
25Amendment of
section 101—Record of lodgers
26Amendment of section
103—Restriction on consumption of liquor in, and taking liquor from,
licensed premises
27Amendment of section 105—Entertainment
on licensed premises
28Amendment of section 108—Liquor not to
be sold or supplied to intoxicated persons
29Amendment of section
110—Sale of liquor to minors
30Insertion of section
120A
120ACommissioner's
power to suspend or impose conditions on approval pending disciplinary
action
31Amendment of section 121—Disciplinary
action
32Amendment of heading to Part 9
33Insertion of Part 9 Division 4
Division 4—Public order and
safety
128BPower of
Commissioner to issue public order and safety
notice
128CPower of
police to clear or close licensed premises etc
34Amendment of
section 135—Evidentiary provision
35Amendment of section
136—Service
36Amendment of section
138—Regulations
37Repeal of Schedule
Schedule 1—Transitional
provisions
1Amendments apply to existing licences,
approvals and authorisations
2Issue of replacement licence, approval or
authorisation
3Consequential modification of gaming machine
licence
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Liquor Licensing (Miscellaneous) Amendment
Act 2011.
This Act will come into operation on a day to be fixed by
proclamation.
In this Act, a provision under a heading referring to the amendment of a
specified Act amends the Act so specified.
Part 2—Amendment
of Liquor Licensing
Act 1997
4—Amendment
of section 4—Interpretation
(1) Section 4—after the definition of close associate
insert:
code of practice—see section 11A;
(2) Section 4, definition of extended trade—delete the
definition and substitute:
extended trade in liquor means the sale of liquor (other than
to a lodger or to a diner with or ancillary to a meal) during the whole or any
part of the following hours:
(a) between midnight and 4 am on any day other than Good Friday or
Christmas Day;
(b) between 8 am and 11 am on a Sunday;
(c) between 8 pm and midnight on a Sunday;
(d) between midnight and 2 am on Good Friday;
(e) between midnight and 2 am on Christmas Day;
(3) Section 4—after the definition of lodger
insert:
management plan—see section 11B;
(4) Section 4—after the definition of public
conveyance insert:
public order and safety includes matters of—
(a) personal safety and apprehension of danger to personal safety;
and
(b) safety of property and apprehension of danger to safety of property;
and
(c) public order unrelated to matters of public safety; and
(d) public safety unrelated to matters of public order;
public order and safety notice—see section
128B;
After section 7 insert:
7A—Closure hours not to apply to casino except in
respect of prescribed areas
The application of this Act to the special circumstances licence held in
respect of the casino by the holder of the casino licence under the Casino
Act 1997 is modified as follows:
(a) the definition of extended trade is to be read as
including the hours between 4 am and 7 am on any day; and
(b) despite section 40(3a) an extended trading authorisation may authorise
the sale of liquor for consumption on the licensed premises (except in any area
prescribed by the regulations) between 4 am and 7 am on any
day.
6—Amendment
of section 11A—Commissioner's codes of practice
Section 11A(3)—delete subsection (3) and substitute:
(3) A code of practice may—
(a) be of general or limited application; and
(b) vary in operation according to factors stated in the code;
and
(c) provide for the granting by the Commissioner of exemptions
(conditional or unconditional) from specified provisions of the code.
After section 11A insert:
11B—Commissioner's management
plans
(1) For the purposes of this Act, the Commissioner may develop management
plans for licensed premises, or licensed premises of a specified class, within
specified geographical areas designed to improve public order and safety in
those areas, in particular, through measures designed to reduce alcohol-related
crime and antisocial behaviour.
(2) A management plan is to be developed in consultation with affected
licensees and interested persons are to be given a reasonable opportunity to
make written submissions in relation to the plan.
(3) Management plans are to be kept available for inspection free of
charge on a website and at the principal office of the Commissioner during
normal office hours.
(4) Management plans are to be kept under review by the
Commissioner.
8—Amendment
of section 28A—Criminal intelligence
Section 28A—after subsection (2) insert:
(2a) If the Commissioner proposes to impose a licence condition to improve
public order and safety or to issue a public order and safety notice in respect
of a licence and the decision to do so is made because of information that is
classified by the Commissioner of Police as criminal intelligence, the
Commissioner is not required to provide any grounds or reasons for the decision
other than that it would be contrary to the public interest if the condition
were not imposed or the notice were not issued.
9—Amendment
of section 29—Requirement to hold licence
Section 29, maximum penalty—delete the maximum penalty and
substitute:
Maximum penalty:
(a) for a first offence—$20 000;
(b) for a second or subsequent offence—$40 000.
10—Amendment
of section 31—Authorised trading in liquor
Section 31(1)—after "the licence" insert:
(including the trading hours fixed by the licensing authority)
11—Amendment
of section 32—Hotel licence
(1) Section 32(1)(a)—delete "5 am" and substitute:
7 am
(2) Section 32(1)(f) and (g)—delete paragraphs (f) and (g)
(inclusive) and substitute:
(f) to sell liquor at any time (except between 4 am and 7 am on any day)
in a designated dining area to a diner for consumption in that area with or
ancillary to a meal provided by the licensee in that area; and
(g) to sell liquor at any time (except between 4 am and 7 am on any day)
in a designated reception area to a person attending a reception for consumption
in that area; and
12—Amendment
of section 33—Residential licence
Section 33(1)(b)—delete paragraph (b) and substitute:
(b) if the conditions of the licence so provide—authorises the
licensee to sell liquor at any time (except between 4 am and 7 am on
any day or on Good Friday or Christmas Day) for consumption on the licensed
premises by persons—
(i) seated at a table; or
(ii) attending a function at which food is provided,
(but extended trade in liquor is not authorised under this paragraph unless
an extended trading authorisation is in force).
13—Amendment
of section 34—Restaurant licence
Section 34(1)(c)—delete paragraph (c) and substitute:
(c) if the conditions of the licence so provide—authorises the
licensee to sell liquor at any time (except between 4 am and 7 am on
any day or on Good Friday or Christmas Day) for consumption on the licensed
premises by persons—
(i) seated at a table; or
(ii) attending a function at which food is provided,
(but extended trade in liquor is not authorised under this paragraph unless
an extended trading authorisation is in force).
14—Amendment
of section 35—Entertainment venue licence
(1) Section 35(1)(a)—after "time" insert:
(except between 4 am and 7 am on any day)
(2) Section 35(1)(b)—delete "5 am" wherever occurring and substitute
in each case:
4 am
(3) Section 35(1)(c)—delete paragraph (c) and substitute:
(c) if the conditions of the licence so provide—to sell liquor at
any time (except between 4 am and 7 am on any day or on Good Friday or
Christmas Day) for consumption on the licensed premises by
persons—
(i) seated at a table; or
(ii) attending a function at which food is provided,
(but extended trade in liquor is not authorised under this paragraph unless
an extended trading authorisation is in force).
15—Amendment
of section 36—Club licence
(1) Section 36(1)(a)—delete "5 am" and substitute:
7 am
(2) Section 36(1)(f) and (g)—delete paragraphs (f) and (g)
(inclusive) and substitute:
(f) to sell liquor at any time (except between 4 am and 7 am on any day)
in a designated dining area to a diner for consumption in that area with or
ancillary to a meal provided by the licensee in that area; and
(g) to sell liquor at any time (except between 4 am and 7 am on any day)
in a designated reception area to a person attending a reception for consumption
in that area; and
16—Amendment
of section 39—Producer's licence
Section 39(4)—after the definition of licensee
insert:
production of liquor includes any step in production
including the growing of grapes or other primary produce for production of
liquor;
17—Amendment
of section 40—Special circumstances licence
(1) Section 40(1)—delete "A" and substitute:
Subject to this section, a
(2) Section 40—after subsection (3) insert:
(3a) A special circumstances licence does not authorise the licensee to
sell liquor for consumption on or off the licensed premises between 4 am
and 7 am on any day (except to any lodger in the licensed premises for
consumption on or off the licensed premises).
(3) Section 40—after subsection (4) insert:
(5) The terms and conditions of a special circumstances licence may
classify the licence for the purposes of the application of the Commissioner's
codes of practice or management plans.
18—Amendment
of section 41—Limited licence
Section 41—after subsection (5) insert:
(6) The terms and conditions of a limited licence may classify the licence
for the purposes of the application of the Commissioner's codes of practice or
management plans.
19—Amendment
of section 42—Mandatory conditions
Section 42(1)—delete "(see section 11A)"
20—Amendment
of section 43—Power of licensing authority to impose
conditions
(1) Section 43(2)(f)—delete paragraph (f)
(2) Section 43—after subsection (2) insert:
(2a) The Commissioner may also impose a condition on a licence under
subsection (1) that the Commissioner considers will improve public order
and safety—
(a) at any time in order to give effect to a management plan, or a
variation of a management plan, affecting the licence; or
(b) at any other time.
(3) Section 43—after subsection (3) insert:
(4) A licensee who is dissatisfied with a decision made by the
Commissioner to impose a condition in circumstances in which there are no
proceedings before the Commissioner may apply to the Court for a review of the
Commissioner's decision as if he or she were a party to proceedings before the
Commissioner.
21—Amendment
of section 44—Extended trading authorisation
Section 44(4)(c)—after "Day" insert:
(unless that day is a Sunday)
22—Amendment
of section 45—Compliance with licence conditions
Section 45, maximum penalty, (a)—delete paragraph (a) and
substitute:
(a) in the case of the licensee—
(i) for a first offence—$10 000;
(ii) for a second or subsequent offence—$20 000;
23—Amendment
of section 46—Unauthorised sale or supply of liquor
(1) Section 46(1), maximum penalty—delete the maximum penalty and
substitute:
Maximum penalty:
(a) for a first offence—$20 000;
(b) for a second or subsequent offence—$40 000.
(2) Section 46(2), maximum penalty—delete the maximum penalty and
substitute:
Maximum penalty:
(a) for a first offence—$20 000;
(b) for a second or subsequent offence—$40 000.
24—Amendment
of section 100—Supply of liquor to lodgers
Section 100(2), maximum penalty, (a)—delete paragraph (a) and
substitute:
(a) in the case of the licensee—
(i) for a first offence—$10 000;
(ii) for a second or subsequent offence—$20 000;
25—Amendment
of section 101—Record of lodgers
Section 101(3), maximum penalty—delete the maximum penalty and
substitute:
Maximum penalty:
(a) for a first offence—$10 000;
(b) for a second or subsequent offence—$20 000.
26—Amendment
of section 103—Restriction on consumption of liquor in, and taking liquor
from, licensed premises
Section 103(4)—insert at the foot of subsection (4):
Maximum penalty:
(a) for a first offence—$10 000;
(b) for a second or subsequent offence—$20 000.
27—Amendment
of section 105—Entertainment on licensed premises
Section 105(5), maximum penalty—delete the maximum penalty and
substitute:
Maximum penalty:
(a) for a first offence—$10 000;
(b) for a second or subsequent offence—$20 000.
28—Amendment
of section 108—Liquor not to be sold or supplied to intoxicated
persons
Section 108(1), maximum penalty—delete the maximum penalty and
substitute:
Maximum penalty:
(a) for a first offence—$20 000;
(b) for a second or subsequent offence—$40 000.
29—Amendment
of section 110—Sale of liquor to minors
(1) Section 110(1), maximum penalty—delete the maximum penalty and
substitute:
Maximum penalty:
(a) in the case of the licensee or responsible person—
(i) for a first offence—$20 000;
(ii) for a second or subsequent offence—$40 000;
(b) in any other case—$5 000.
(2) Section 110(1a), maximum penalty—delete the maximum penalty and
substitute:
Maximum penalty:
(a) for a first offence—$20 000;
(b) for a second or subsequent offence—$40 000.
(3) Section 110(2), maximum penalty—delete the maximum penalty and
substitute:
Maximum penalty:
(a) for a first offence—$20 000;
(b) for a second or subsequent offence—$40 000.
After section 120 insert:
120A—Commissioner's power to suspend or impose
conditions on approval pending disciplinary action
(1) The Commissioner may, if of the opinion that it is desirable to do so
in the public interest—
(a) suspend the approval of a person the subject of a complaint;
or
(b) impose conditions on the person's approval limiting the authority
conferred by the approval,
pending hearing and determination of the complaint.
(2) If the Commissioner has exercised his or her power to suspend or
impose conditions, the Court may revoke or vary the suspension or conditions
imposed by the Commissioner.
31—Amendment
of section 121—Disciplinary action
(1) Section 121(4)—delete subsection (4) and substitute:
(4) If a licensee is convicted of a prescribed offence and a complaint is
lodged on the ground of the breach of duty leading to the conviction, the Court
must—
(a) take disciplinary action against the licensee; and
(b) if the conviction follows a previous conviction for a prescribed
offence of a similar kind or previous disciplinary action for an incident
involving the commission of a prescribed offence of a similar kind—suspend
or revoke the licence unless the licensee shows cause why that action should not
be taken.
(2) Section 121—after subsection (6) insert:
(7) In this section—
prescribed offence means—
(a) an offence involving the unlawful sale or supply of liquor to a minor;
or
(b) an offence involving the unlawful sale or supply of liquor to an
intoxicated person or to a person in circumstances in which the person's speech,
balance, coordination or behaviour is noticeably impaired and it is reasonable
to believe that the impairment is the result of the consumption of liquor;
or
(c) an offence involving trafficking in a controlled drug (within the
meaning of the Controlled
Substances Act 1984) in respect of events occurring (wholly or
partly) on the licensed premises; or
(d) an offence of a kind prescribed by the regulations.
32—Amendment
of heading to Part 9
Heading to Part 9—delete the heading and substitute:
Part 9—Special powers and
enforcement
33—Insertion
of Part 9 Division 4
After Part 9 Division 3 insert:
Division 4—Public order and
safety
128B—Power of Commissioner to issue public order
and safety notice
(1) The Commissioner may, in his or her absolute discretion, issue a
public order and safety notice in respect of a licence if the Commissioner
considers that the notice is necessary or desirable to address an issue or
perceived issue of public order and safety or to mitigate adverse consequences
arising from an issue or perceived issue of public order and safety.
(2) A public order and safety notice may—
(a) vary or suspend a condition of the licence; or
(b) impose a condition on the licence; or
(c) vary the trading hours fixed by the licensing authority in relation to
the licence; or
(d) require the licensed premises to be closed and remain closed for
specified hours, despite a requirement of this Act to keep the premises open to
the public during those hours; or
(e) suspend the licence.
(3) Unless the urgency of the circumstances require otherwise, the
Commissioner must, before issuing a public order and safety notice in respect of
a licence, give the licensee a reasonable opportunity to make submissions about
the making of the notice and its proposed terms (however, failure to comply with
this subsection does not affect the validity of the notice).
(4) A public order and safety notice in respect of a licence takes effect
when served on the licensee or at a later time specified in the notice and
remains in force for a period of not more than 72 hours specified in the
notice.
(5) A public order and safety notice in respect of a licence may not be
issued except with the approval of the Minister if the licence has been subject
to another public order and safety notice within the 72 hours immediately
preceding the period for which the notice would apply.
(6) A public order and safety notice in respect of a licence may be varied
or revoked by the Commissioner by notice in writing served on the
licensee.
(7) The Commissioner must include in the Commissioner's annual report to
the Minister a record of—
(a) the number of notices issued under this section during the period to
which the report relates; and
(b) in relation to each notice issued during that period—
(i) the licence in relation to which the notice was issued; and
(ii) the period for which the notice was in force; and
(iii) the grounds on which the notice was issued; and
(c) any other matters the Commissioner considers relevant.
(8) No civil liability attaches to the Commissioner or the Crown in
respect of an act or omission in good faith in the making, variation or
revocation of a public order and safety notice.
128C—Power of police to clear or close licensed
premises etc
(1) If a senior police
officer believes on reasonable grounds that it would be unsafe for members of
the public to enter or remain in a licensed premises or part of a licensed
premises because of conditions temporarily prevailing there, the officer
may—
(a) order persons
to leave the premises or part of the premises immediately; or
(b) order the
licensee immediately to remove persons from the premises or part of the
premises; or
(c) order the
licensee to take other specified action to rectify the situation immediately or
within a specified period; or
(d) if an order under
paragraph (a),
(b) or
(c) is not obeyed,
take action to carry out the order; or
(e) if satisfied
that the safety of persons cannot reasonably be ensured by other means, order
the licensee to close the premises or part of the premises immediately and for
such period as the officer considers necessary (but not exceeding 24 hours)
for the alleviation of the danger; or
(f) if a closure order under
paragraph (e)
cannot for any reason be given to the licensee, or if a closure order, having
been given to the licensee, is not immediately obeyed, take action to close the
premises or part of the premises for such period as the officer considers
necessary (but not exceeding 24 hours) for the alleviation of the
danger.
(2) If a person given an order under this section refuses or fails to obey
the order, the person is guilty of an offence.
Maximum penalty: $2 500 or imprisonment for 6 months.
(3) An order under this section may be given orally or by notice in
writing.
(4) If a closure order under this section is given orally, the officer
must as soon as practicable cause a written notice containing the order to be
served on the licensee.
(5) When a senior police officer is satisfied that the danger has been
alleviated, he or she may revoke an order under this section.
(6) A senior police
officer may authorise another police officer to issue an order under
subsection (1) if
satisfied (whether on the basis of his or her own observations or the report of
another police officer) that urgent action is required.
(7) A police officer may use such force to enter a place, or to take other
action under this section, as is reasonably necessary for the purpose.
(8) The Commissioner of Police must include in his or her annual report to
the Minister to whom the administration of the Police
Act 1998 is for the time being committed a record
of—
(a) the number of orders made under this section during the period to
which the report relates; and
(b) in relation to each order made during that period—
(i) the licensed premises or part of licensed premises in relation to
which the order was made; and
(ii) the period for which the order was in force; and
(iii) the grounds on which the order was made; and
(c) any other matters the Commissioner of Police considers
relevant.
(9) This section does not derogate from the powers of a police officer
under any other Act or law.
(10) In this section—
senior police officer means a police officer of or above the
rank of inspector.
34—Amendment
of section 135—Evidentiary provision
Section 135(2)—after "certificate" wherever occurring
insert:
, notice
35—Amendment
of section 136—Service
(1) Section 136(1)—after paragraph (c) insert:
or
(d) by transmitting it to the licensee by fax or email to the fax number
or email address last provided to the Commissioner by the licensee for that
purpose.
(2) Section 136(2)—after paragraph (d) insert:
or
(e) by transmitting it to the person by fax or email to the fax number or
email address last provided to the Commissioner by the person for that
purpose.
(3) Section 136—after subsection (3) insert:
(4) A notice or other document transmitted to a person under this section
will be conclusively presumed to have been served on the person at the time of
transmission.
36—Amendment
of section 138—Regulations
Section 138—after subsection (4) insert:
(5) A regulation may provide for the Commissioner to waive, reduce or
refund fees payable under this Act.
Schedule—delete the Schedule
Schedule 1—Transitional
provisions
1—Amendments
apply to existing licences, approvals and authorisations
An amendment to the Liquor
Licensing Act 1997 effected by a provision of this Act applies in
respect of a licence, approval or extended trading authorisation granted under
that Act, or the holder of a licence, approval or authorisation under that Act,
whether the licence, approval or authorisation was granted before or after the
commencement of that provision (and any existing licence, approval or
authorisation is taken to be modified accordingly).
2—Issue
of replacement licence, approval or authorisation
The Commissioner may issue to the holder of a licence, approval or extended
trading authorisation under the Liquor
Licensing Act 1997 in force immediately before the commencement of
a provision of this Act a replacement copy of the licence, approval or
authorisation in order to take account of modifications effected by the
provision (in particular the withdrawal of authorisations to sell liquor between
4 am and 7 am on any day).
3—Consequential
modification of gaming machine licence
The Commissioner must, in relation to each gaming machine licence that is
in force under the Gaming
Machines Act 1992 at the commencement of this clause, vary the
condition fixing the hours during which gaming operations may be conducted on
the licensed premises to such extent (if any) as is necessary to ensure the
gaming operations cannot be conducted on the premises between 4 am and 7 am on
any day.