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LIQUOR CONTROL REFORM AMENDMENT (LICENSING) BILL 2009

   Liquor Control Reform Amendment
          (Licensing) Bill 2009

                         Introduction Print

               EXPLANATORY MEMORANDUM


                                  General
The Bill will amend the Liquor Control Reform Act 1998 to strengthen the
harm minimisation objects of the Act; to create new licence categories; to
provide for a risk-based fee structure for licence and BYO permit fees; and to
make other amendments to improve the operation of the Act.

                               Clause Notes
Clause 1    sets out the purposes of the Bill. The main purposes of the Bill
            are to amend the Liquor Control Reform Act 1998 to--
                    strengthen the objects of that Act in relation to harm
                     minimisation and the responsible consumption of
                     alcohol; and
                    create three new licence categories for late night
                     licences, restaurant and cafe licences and major event
                     licences; and
                    create late night (general) licences, late night
                     (on-premises) licences and late night (packaged liquor)
                     licences as sub-categories of late night licences; and
                    create renewable limited licences and temporary limited
                     licences as sub-categories of limited licences; and
                    provide a new risk-based structure for licence fees; and
                    make other minor and consequential amendments to that
                     Act; and
                    make consequential amendments to other Acts.




561334                                1      BILL LA INTRODUCTION 12/8/2009

 


 

Clause 2 provides for the commencement of the Bill. Sections 1, 2 and 31 of the Bill come into operation on the date on which the Act receives Royal Assent. This allows the transitional provision in section 31, which permits licensees holding on-premises licences subject to restaurant conditions under section 9(3), to apply to the Director to remain as an on-premises licence and prevent their licences automatically transitioning into the new restaurant and cafe licence category in accordance with clause 32. All other provisions of the Bill come into operation on a day or days to be proclaimed, but must commence by 1 July 2011. This is to allow sufficient time for the implementation of the Bill. Clause 3 provides that in this Bill the Liquor Control Reform Act 1998 is referred to as the Principal Act. Clause 4 inserts three new definitions and amends two existing definitions in section 3(1), the definitions section, of the Principal Act. Subclause (1) amends the definition of authorised premises to include references to the new sections 9A(1)(b) and 11A(3)(b). Under the existing definition authorised premises means a premises referred to in section 9(1)(b) of the Principal Act. Section 9(1)(b) enables the Director to authorise a licensee with an on-premises licence to supply liquor on a premises, in addition to the licensed premises, for consumption on the additional premises. An example of an authorised premise is an area of tables and chairs set aside on the footpath outside of licensed premises where a licensee's patrons may consume liquor. Under the new licence categories, both restaurant and cafe licences (under new section 9A(1)(b)) and late night (on-premises) licences (new section 11A(3)(b)) can authorise the supply of liquor on such additional premises. This amendment includes the additional premises that may be authorised under a restaurant and cafe licence or a late night (on-premises) licence in the definition of authorised premises. Subclause (2) amends the definition of ordinary trading hours in section 3(1) of the Principal Act to provide the ordinary trading hours for the new licence categories. A licence to which ordinary trading hours apply may only authorise the supply of liquor outside ordinary trading hours where determined by the Director and specified in the licence. The amendments provide that the ordinary trading hours for the new late night (general), late night (on-premises) and restaurant and cafe licences will be the same as the existing ordinary trading hours for general licences and on-premises licences. The ordinary trading hours for late night 2

 


 

(packaged liquor) licences will be the same as the existing ordinary trading hours for packaged liquor licences. Subclause (3) inserts three new definitions into section 3(1) of the Principal Act. A new definition of event is inserted into section 3(1) for the purpose of the new major event licence category. The term event is defined to include a series of events. Under clause 13 of the Bill (inserts a new section 14B into the Principal Act), the Director may determine that an event is a major event for the purposes of sections 14A and 26. Under the new section 14B, any event including a series of events may be determined by the Director to be a major event if the event is likely to have a significant impact. New section 26(2) provides that a temporary limited licence cannot be granted for a major event. A new definition of late night trading hours is inserted into section 3(1) of the Principal Act. The term late night trading hours is defined to capture the additional trading hours authorised by a licence or BYO permit after 1 a.m. on any particular day, where the licence or permit also authorises the supply of liquor up to 1 a.m. on the same day. This definition is intended to apply to those licences that authorise late trading (past 1 a.m.) and not those licences that only authorise trading up to 1 a.m. and early trading (commencing after 5 a.m. through to the commencement of ordinary trading hours). A new definition of major event is inserted into section 3(1) of the Principal Act. The term major event is defined by reference to the new section 14B inserted into the Act by clause 13 of the Bill. Under the new section 14B an event may be determined by the Director to be a major event in accordance with that section if the Director-- is satisfied the event is likely to have a significant impact; or determines that the event is likely to attract more than 5000 patrons (unless determined by the Director to be unlikely to have a significant impact). For any event determined or taken to be a major event only a major event licence may authorise the supply of liquor in relation to that event. 3

 


 

Clause 5 amends section 4 of the Principal Act to strengthen the objects of the Principal Act in relation to harm minimisation and the responsible consumption of alcohol. Subclause (1) inserts "including" after "abuse of alcohol" into section 4(a) of the Principal Act to broaden the measures that may fall within the scope of the object of the Principal Act to contribute to minimising harm arising from the misuse and abuse of alcohol. Subclause (2) inserts a new paragraph (a)(iv) into section 4 of the Principal Act to include within the scope of the objects of the Principal Act the object of contributing to minimising harm arising from the misuse and abuse of alcohol by encouraging a culture of responsible consumption of alcohol and reducing risky drinking of alcohol and its impact on the community. This amendment is intended to strengthen the harm minimisation objects of the Act. Subclause (3) inserts a new subsection (2) into section 4 of the Principal Act to provide that it is the intention of Parliament that every power, authority, discretion, jurisdiction and duty conferred or imposed by the Principal Act must be exercised and performed with due regard to harm minimisation and the risks associated with the misuse and abuse of alcohol. Clause 6 substitutes a new section 7 for the existing section 7 of the Principal Act to provide for the categories of licences that may be issued under the Principal Act. The new section 7 differs from the existing section 7 by providing that, in addition to the existing licence categories, the new licence categories, being the late night, major event and restaurant and cafe licence categories, are licence categories that may be issued under the Principal Act. Clause 7 substitutes new sections 8(1)(a)(ii) and (iii) for the existing section 8(1)(a)(ii) of the Principal Act to reduce the hours that may be authorised under a general licence. Under the existing section 8(1)(a)(ii) of the Principal Act, a general licence may authorise the supply of liquor at any time outside ordinary trading hours if determined by the Director and specified in the licence. The new sections 8(1)(a)(ii) and (iii) restrict the hours outside ordinary trading hours that may be authorised under a general licence. Under the new section 8(1)(a)(ii) a general licence may authorise the supply of liquor, in addition to ordinary trading hours, between 11 p.m. and 1 a.m. if so determined by the Director and specified in the licence. Under the new section 8(1)(a)(iii) a general licence may also authorise the licensee to 4

 


 

commence early trading from a time not before 5 a.m. through to the commencement of ordinary trading hours. The new sections 8(1)(a)(ii) and (iii) differ from the existing section 8(1)(a)(ii) by restricting the late trading hours that may be authorised under a general licence. The intention of the amendment is to provide that trading after 1 a.m. through to the commencement of ordinary trading hours may only be authorised for on and off premises consumption under a late night (general) licence. The only exception will be where a licence authorises trading to commence before ordinary trading hours (but no earlier than 5 a.m.). Clause 8 subclause (1) substitutes new sections 9(1)(a)(ii) and (iii) for the existing section 9(1)(a)(ii) of the Principal Act. This amendment reduces the hours that may be authorised under an on-premises licence. Under the existing section 9(1)(a)(ii) of the Principal Act, an on-premises licence may authorise the supply of liquor at any time outside of ordinary trading hours if determined by the Director and specified in the licence. The new sections 9(1)(a)(ii) and (iii) restrict the hours outside ordinary trading hours that may be authorised under an on-premises licence. Under the new section 9(1)(a)(ii) an on-premises licence may authorise the supply of liquor, in addition to ordinary trading hours, between 11 p.m. and 1 a.m. if so determined by the Director and specified in the licence. Under the new section 9(1)(a)(iii) an on-premises licence may also authorise the licensee to commence early trading from a time not before 5 a.m. through to the commencement of ordinary trading hours. The new sections 9(1)(a)(ii) and (iii) differ from the existing section 9(1)(a)(ii) by restricting the late trading hours that may be authorised under an on-premises licence. The intention of the amendment is to provide that trading after 1 a.m. through to the commencement of ordinary trading hours may only be authorised for on premises consumption under a late night (on-premises) licence. The only exception will be where a licence authorises trading to commence before ordinary trading hours (but no earlier than 5 a.m.). Subclause (2) substitutes a new section 9(1)(b) for the existing section 9(1)(b) of the Principal Act. Section 9(1)(b), in relation to an on-premises licence, enables the Director to authorise a licensee to supply liquor on a premises, in addition to the licensed premises, for consumption on the additional premises. An example of an authorised premises is an area of table and chairs set aside on the footpath outside of the licensed premises 5

 


 

where a licensee's patrons may consume liquor. This amendment is intended to allow the Director to authorise a licensee to supply liquor on these additional premises during the same periods as the licensee is authorised to supply liquor on the licensed premises. Subclause (3) and (4) repeal sections 9(2)(a), 9(3), 9(4) and 9(5) of the Principal Act. These amendments are consequential amendments resulting from the introduction of the new restaurant and cafe licence category. The restaurant conditions set out in these sections 9(3), 9(4) and 9(5) of the Principal Act will no longer apply to on-premises licences (unless specified as a condition on a licence). Under clause 9 of the Bill (which inserts a new section 9A into the Principal Act) the new restaurant and cafe licences will be subject to the conditions that were provided in the repealed sections 9(3), (4) and (5) of the Principal Act. Clause 9 inserts a new section 9A into the Principal Act to provide the authorising provisions for the new restaurant and cafe licence category. Under the existing provisions, a restaurant or cafe may be licensed under either a general, on-premises or limited licence. This new section 9A creates a licence that may be used to authorise the supply of alcohol for consumption on the licensed premises or authorised premises where the predominant activity carried out at all times on the premises is the preparation and serving of meals to be consumed on the licensed premises. As is the case with the existing on-premises licences, the new sections 9A(1)(a)(i) and (ii) provide that a restaurant and cafe licence may authorise the supply of alcohol during ordinary trading hours and any other hours determined by the Director and specified in the licence. Late night trading hours may be authorised under a restaurant and cafe licence. The new section 9A(1)(b) enables the Director to authorise a licensee with a restaurant and cafe licence to supply liquor on premises, in addition to the licensed premises, for consumption on the additional premises. An example of an authorised premise is an area of tables and chairs set aside on the footpath outside of licensed premises where a licensee's patrons may consume liquor. Under the new section 9A, the new restaurant and cafe licences will be subject to the conditions provided in the existing section 9(3) of the Principal Act that previously applied to an on-premises licence if the permitted use of the licensed premises under the Planning and Environment Act 1987 was that of a restaurant. However, where the existing section 9(3)(a) of the Principal provides that the predominant activity carried on on the 6

 


 

licensed premises must be the preparation and serving of meals for consumption on the licensed premises, a restaurant and cafe licence will only authorise the supply of liquor under the new section 9A(1)(a) if the preparation and serving of meals is the predominant activity at all times. Under the new section 9A(2)(a) a restaurant and cafe licence is subject to the condition that tables and chairs must be placed in position on the licensed premises so as to be available for at least 75% of the patrons attending the premises at any one time. This reflects the condition imposed under the current section 9(3)(b) of the Principal Act which is repealed by clause 8 of the Bill. Under new section 9A(2)(b) restaurant and cafe licences are also subject to additional conditions that relate to the playing of live and recorded music at licensed premises. The new section 9A(2)(b) prohibits live musical performances and the playing of recorded music on the premises at higher levels than background music level at any time outside ordinary trading hours. This reflects the condition imposed under the current section 9(3)(c) of the Principal Act which is repealed by clause 8 of the Bill. The new section 9A(3) provide that the conditions in new section 9A(2)(b) do not apply to music played at a function held outside ordinary trading hours when such a function is held in an area of those premises set aside exclusively for that function and is attended only by those persons and guests. New section 9A(4) provides a definition of background music level. This is a level whereby patrons are able to conduct a conversation at a distance of 600 millimetres without having to raise their voices to a substantial degree in order to be heard. In addition to the conditions that are specific to the restaurant and cafe licence category, the new restaurant and cafe licence will be subject to the same conditions that currently apply to an on-premises licence, being-- that the use of the premises does not contravene the planning scheme that applies to the licensed premises under the Planning and Environment Act 1987 (section 16 of the Principal Act); that the licensee does not cause or permit undue detriment to the amenity of the area to arise out of or in connection with the use of the premises to which the licence relates during or immediately after those hours 7

 


 

outside ordinary trading hours (section 17(1) of the Principal Act); where the licensee is a body corporate, that a person must not become a director of the body corporate without the approval of the Director (section 18 of the Principal Act); and any other conditions determined by the Director and specified in the licence. Clause 10 substitutes new sections 11(1)(b) and (c) for the existing section 11(1)(b) of the Act. This amendment reduces the hours that may be authorised under a packaged liquor licence. Under the existing section 11(1)(b) of the Principal Act, a packaged liquor licence may authorise the supply of liquor at any times outside ordinary trading hours if determined by the Director and specified in the licence. The new sections 11(1)(b) and (c) differ from the existing section 11(1)(b) by restricting the late trading hours that may be authorised under a packaged liquor licence. Under the new section 11(1)(b) a packaged liquor licence may authorise the supply of liquor, in addition to ordinary trading hours, between 11 p.m. and 1 a.m. if so determined by the Director and specified in the licence. Under the new section 11(1)(c) a packaged liquor licence may also authorise the licensee to commence early trading from a time not before 5 a.m. through to the beginning of ordinary trading hours. The new sections 11(1)(b) and (c) differ from the existing section 11(1)(b) by restricting the late trading hours that may be authorised under a packaged liquor licence. The intention of the amendment is to provide that trading that continues after ordinary trading hours up to any time after 1 a.m. through to the commencement of ordinary trading hours may only be authorised for off premises consumption under a late night (packaged liquor) licence. The only exception will be where a licence authorises trading to commence before ordinary trading hours (but no earlier than 5 a.m.). Clause 11 inserts a new section 11A into the Principal Act to provide the authorising provisions for the new late night licence category. Under the existing provisions of the Principal Act, late night trading hours (trading after 1 a.m. through the commencement of ordinary trading hours) may be authorised under general, on- premises and packaged liquor licence. Under the new late night licence category, authorisation for late night trading hours is 8

 


 

restricted to the new late night licence category. The only exception will be where a licence authorises trading which commences before ordinary trading hours but no early than 5 a.m. The new section 11A(1) creates three sub-categories of the new late night licence category-- late night (general) licence; late night (on-premises) licence; and late night (packaged liquor) licence. New section 11A(2) provides that the new late night (general) licence may authorise the supply of liquor on the licensed premises during ordinary trading hours and any other times as determined by the Director and specified in the licence for consumption on or off the licensed premises. This includes late night trading hours after 1 a.m. through to the commencement of ordinary trading hours. As is the case with a general licence under sections 8(1)(b) and (c) of the Principal Act, under new sections 11A(2)(b) and (c), a late night (general) licence may authorise the supply of liquor on the licensed premises at any time to a resident or guest of a resident of the licensed premises and if the licensee resides on the licensed premises, to supply liquor to a guest of the licensee for consumption on the licensed premises at any time. New section 11A(3) provides that the new late night (on-premises) licence may authorise the supply of liquor on the licensed premises during ordinary trading hours and any other times as determined by the Director and specified in the licence for consumption on the licensed premises. This includes late night trading hours after 1 a.m. through to the commencement of ordinary trading hours. As is the case with an on-premises licence under sections 9(1)(b) and (c), under new sections 11A(3)(b) and (c), a late night (on-premises) licence may authorise the supply of liquor on any additional premises authorised by the Director and specified in the licence for consumption on those premises and if specifically authorised by the Director, to supply liquor in an open container for consumption in a food court next to, or near, the licensed premises. New section 11A(4) provides that the new late night (packaged liquor) licence may authorise the supply of liquor on the licensed premises during ordinary trading hours and any other times as determined by the Director and specified in the licence for 9

 


 

consumption off the licensed premises. This includes trading any time after 1 a.m. through to the commencement of ordinary trading hours. New section 11A(5) provides that late night licences will be subject to the following conditions-- that the use of the premises does not contravene the planning scheme that applies to the licensed premises under the Planning and Environment Act 1987 (section 16 of the Principal Act); that the licensee does not cause or permit undue detriment to the amenity of the area to arise out of or in connection with the use of the premises to which the licence relates during or immediately after those hours outside ordinary trading hours (section 17(1) of the Principal Act); where the licensee is a body corporate, that a person must not become a director of the body corporate without the approval of the Director (section 18 of the Principal Act); and any other conditions determined by the Director and specified in the licence. In addition to these conditions, new section 11A(5)(d) provides that a late night (packaged liquor) licence is subject to the same conditions that apply to a packaged liquor licence under section 11(3)(aa) to 11(3)(aad) of the Principal Act. New section 11A(6) also provides that sections 11(2) and 11(4) to 11(8) of the Principal Act also apply to late night (packaged liquor) licences as it if were a packaged liquor licence. These amendments have the effect of ensuring that the same conditions that apply to a general, on-premise and packaged liquor licence under the existing Principal Act apply equally to the new late night (general), late night (on-premises) and late night (packaged liquor) licences. Clause 12 subclause (1) substitutes new sections 14(1), (1A) and (1B) for existing section 14(1) of the Principal Act. Subclause (1) substitutes new section 14(1) to create two sub- categories of limited licences. The new section 14(1) provides that a limited licence may be a temporary limited licence or a renewable limited licence. 10

 


 

New sections 14(1A) and 14(1B) provide the authorising provisions for the sub-categories of limited licences. These sections maintain the existing authorisation for limited licences under the existing section 14(1) of the Principal Act as both a temporary limited licence and renewable limited licence may authorise the licensee to supply liquor at the times determined by the Director and specified in the licence. The new sections depart from the existing section 14(1) of the Principal Act by providing that while a renewable limited licence may be renewed in accordance with the Principal Act, a temporary limited licence is not renewable. Subclause (2) extends the scope of section 14(3) of the Principal Act to provide that a club that is granted a limited licence must purchase liquor from either the holder of a general licence, late night (general) licence, packaged liquor licence or late night (packaged liquor) licence. The amended section 14(3) differs from the existing section 14(3) of the Principal Act by including the new late night (general) and late night (packaged liquor) licences. Clause 13 inserts new sections 14A and 14B to provide the authorising provisions for the new major event licence category and to determine where an event will be a major event. Under the existing Act, one-off events or a series of events may be authorised under a temporary limited licence. Clause 27 of the Bill inserts a new restriction on the grant of temporary limited licences by providing in new section 26(2) that the Director must not grant a temporary limited licence for an event if the Director determines the an event is a major event, or an event is taken to be major event, under section 14B. The definition of major event inserted into section 3(1) of the Principal Act by clause 4(3) of the Bill defines a major event to be an event determined or taken under section 14B to be a major event. New section 14A(1) provides that a major event licence authorises the licensee to supply liquor in relation to a major event at the times determined by the Director and specified in the licence. This new licence is intended to apply to all licences applications that relate to the major event including-- events at which the organiser of the event applies for a liquor licence; 11

 


 

events at which liquor licence(s) are applied for by parties other than those organising or promoting the event but which are directly associated with the event; and applications for liquor licence(s) by parties which are not directly associated with the event but which can be indirectly linked to an event. New section 14A(2) provides that where a licensee is a body corporate, a major event licence is subject to the condition that a person must not become a director of the body corporate without approval (section 18 of the Principal Act). A major event licence may also be subject to any other conditions determined by the Director and specified in the licence. The new section 14B sets out the criteria upon which the Director may determine whether an event will be a major event. Where the Director determines an event is a major event, under the new section 26(2) (inserted by clause 17 of the Bill), the Director must not grant a temporary limited licence for that event. The new section 14B(2) provides that the Director may determine that an event is a major event if satisfied that the event is likely to have a significant impact. Under the new section 14B(4) the Director may determine that an event is likely to have a significant impact if-- the event will require significant enforcement effort or oversight by authorised persons; the event will have a significant impact on the provision and organising of public transport and emergency services; or the event will have a significant impact on public safety and the amenity of the area in which the event is to be held. In determining whether an event is likely to have this significant impact, the Director must have regard to the factors sets out in new section 14B(4). Under the new section 14B(3), if the Director determines that an event is likely to attract more than 5000 patrons the event will be taken to be a major event. Where an event is likely to attract more than 5000 patrons the Director may however determine that 12

 


 

the event is unlikely to have a significant impact and such an event will not require a major event licence. When determining the number of patrons likely to attend an event the Director must have regard to the factors listed in new section 14B(5). Clause 14 substitutes new section 17(2)(d) and (e) for the existing section 17(2)(d) to provide that section 17(1) does not apply to limited licences and major event licences that do not authorise late night trading hours. Section 17(1) provides, subject to section 17(2), that it is a condition of every licence that authorises the supply of liquor outside ordinary trading hours that the licensee does not cause or permit undue detriment to the amenity of the area to arise out of or in connection with the use of the premises to which the licence relates during or immediately after the hours outside ordinary trading hours to which it relates. The new section 17(2)(d) and (e) provides that only those limited licences and major event licences that do not trade during late night trading hours will not be required to comply with section 17(1). The new sections 17(2)(d) and (e) differ from the existing section 17(2)(d) which provides that section 17(1) does not apply to any limited licences. Clause 15 inserts "or a late night (packaged liquor) licence" in section 24 of the Principal Act and replaces the heading of this section to ensure that the restriction that applies to the grant of packaged liquor licences, which prevents the Director from granting a packaged liquor licence unless satisfied that the predominant activity to be carried on in the licensed premises is the retail sale of liquor for consumption off premises, applies equally to the new late night (packaged liquor) licences. Clause 16 inserts new sections 26(2), (3), (4) and (5) into section 26 of the Principal Act to provide further restrictions on the grant of a limited licence. The existing section 26 provides that the Director may grant a limited licence only if satisfied that the scale and scope of the supply of liquor the subject of the licence is limited in nature. The Bill inserts a new subsection (2) into section 26 of the Principal Act to provide that the Director must not grant a limited licence for an event that the Director determines or is taken under section 14B to be a major event. 13

 


 

Subclause (2) inserts new subsection (3), (4) and (5) into section 26 of the Principal Act to provide that where an application is made for a temporary limited licence and the Director determines that it is a major event, the Director must notify the applicant that the Director will consider the application as if it were an application for a major event licence upon payment of the fee specified in the notice. This amendment is intended to avoid licensees who apply for the temporary limited licences when they should have applied for a major event licence needing to submit a new licence application for a major licence. Under the existing section 28(3) the Director may request any other information that the Director may need to determine the major event licence application. The fee that will be specified in the notice will be the difference in the fee paid by the applicant upon application for a temporary limited licence and the fee payable for an application for a major event licence. The Director will not be required to consider the application further until the specified fee has been paid. Clause 17 inserts a new section 26A to provide a restriction on the grant of a major event licence. As is the case with a limited licence under the existing section 26 of the Principal Act, the Director may only grant a major event licence if satisfied that the scale and supply of the sale of liquor under a major event licence is limited in nature. Clause 18 subclause (1) inserts a new paragraph (aa) into section 29(2) of the Principal Act to allow applications for variations of licence category to be treated in the same way as a variation of licence conditions. This amendment is intended to avoid existing licensees having to submit new licence applications where the licensee wishes to vary their licence category. Section 29 of the Principal Act sets out the procedure for a licensee to apply for a variation of a licence or BYO permit. Subclause (2) amends section 29(3)(c)(ii) of the Principal Act to provide that in addition to the applications for variations made by the Chief Commissioner or the licensing inspector, prescribed applications for variations of licences and BYO permits will not be required to pay the prescribed fee for an application for variation. 14

 


 

Clause 19 amends section 33(3) of the Principal Act to provide that the Director is not required to (but may at his or her discretion) provide a copy of an application for a prescribed variation of a licence or BYO permit to the police or the relevant council. This amendment is intended to reduce the regulatory burden on the government in relation to applications for variations that do not give rise to any public issues that are prescribed in the Regulations. Clause 20 amends section 34(1) and 34(7) of the Principal Act to provide that prescribed variations of licences are not required to display a notice of the application unless required by the Director. This amendment is intended to streamline the variation process for application for variations that do not give rise to any public issues that are prescribed in the Regulations. Clause 21 amends section 35 of the Principal Act to provide that prescribed variations of licences are not required to advertise the application unless required by the Director. This amendment is intended to streamline the variation process for application for variations that do not give rise to any public issues that are prescribed in the Regulations. Clause 22 amends section 38(1A) of the Principal Act to provide that the additional ground upon which a person may object to an application for a packaged liquor licence applies equally to a late night (packaged liquor) licence. The amendment provides that a person may object to a packaged liquor licence or late night (packaged liquor) licence, in addition to the grounds provided in section 18(1) of the Principal Act, on the ground that the grant, variation or relocation of these licences would be conducive to or encourage the misuse or abuse of alcohol. Clause 23 amends sections 40(1A)(a) and 40(1A)(b) of the Principal Act to provide that the additional ground upon which the Council may object to an application for a packaged liquor licence applies equally to a late night (packaged liquor) licence. The amendment provides that the Council may object to the grant, variation or relocation of a packaged liquor licence or a late night (packaged liquor) licence, in addition to the grounds provided in section 40(1), on the ground that the grant, variation or relocation would be conducive to or encourage the misuse or abuse of alcohol. 15

 


 

Clause 24 inserts new subsections (5), (6) and (7) into section 44 of the Principal Act to allow the Director, where an uncontested application is made for a new late night licence, to grant a licence that does not authorise the late night trading hours where the Director refuses to grant a late night licence. Section 44 of the Principal Act sets out the Directors power to grant, or refuse to grant, an uncontested licence application. Under the existing section 44, the Director may grant, or refuse to grant, a contested licence application. The Principal Act also provides some flexibility for the applicant to make certain changes to the application with the consent of the Director (section 28 of the Principal Act) and for the Director to impose any conditions that he or she thinks fit on the grant of an application (section 49 of the Principal Act). The amendments are intended to maintain this flexibility by providing a mechanism for an application for a late night licence that is refused by the Director, to be granted as a general, on-premises or packaged liquor licence that does not authorise trading hours after 1 a.m. instead of a late night licence. The new subsections (5), (6) and (7) provide that if the Director refuses to grant an uncontested application-- for a late night (general) licence then the Director may grant a general licence; for a late night (on-premises) licence then the Director may grant a on-premises licence; or for a late night (packaged liquor) licence then the Director may grant a packaged liquor licence. Clause 25 inserts new subsections (4), (5) and (6) into section 47 of the Principal Act to allow the Director, where a contested application is made for a new late night licence, to grant a licence that does not authorise the late night trade (after 1 a.m.) where the Director refuses to grant a late night licence. Section 47 of the Principal Act sets out the Directors power to grant, or refuse to grant, a contested licence application. Under the existing provisions, the Director may grant or refuse to grant a contested licence application. The Principal Act also provides some flexibility for the applicant to make certain changes to the application with the consent of the Director (section 28 of the Principal Act) and for the Director to impose any conditions that he or she thinks fit on the grant of an application (section 49 of the Principal Act). 16

 


 

The amendments are intended to maintain this flexibility by providing a mechanism for an application for a late night licence that is refused by the Director, to be granted as a general, on-premises or packaged liquor licence that does not authorise trading hours after 1 a.m. instead of a late night licence. New subsections (4), (5) and (6) provide that if the Director refuses to grant a contested application-- for a late night (general) licence then the Director may grant a general licence; for a late night (on-premises) licence then the Director may grant a on-premises licence; or for a late night (packaged liquor) licence then the Director may grant a packaged liquor licence. Clause 26 inserts a new subsection (aa) into section 58(2) to permit the Director to vary, at his or her discretion, the category of licence held by a licensee. The new subsection 58(2)(aa) permits the Director to make variations of licence categories from-- late night (general) to general; or late night (on-premises) to on-premises; or late night (packaged liquor) to packaged liquor. These amendments are intended to allow the Director sufficient flexibility to permanently reduce the trading hours authorised under a licence. Clause 27 inserts a new section 66A into the Principal Act to enable authorised persons (the Director, compliance directorate, members of the police force or employees of the Department of Justice authorised by the Secretary) to collect information from licence and permit holders about the conduct of the licensed premises for the following purposes-- to assist in determining the relevant fee in relation to the licence or permit; or to identify and measure the factors that contribute to the risk of alcohol-related harms. Licence and permit holders must comply with any request for information made under new section 66A and when the information provided under this section changes, the licence or permit holder must notify of that change as soon as reasonable practicable. 17

 


 

A definition of authorised persons is provided in section 66A(4) to provide that, for the purposes of section 66A, an authorised person includes an authorised person within the meaning of Division 3 of Part 8 and an employee of the Department of Justice authorised by the Secretary. Authorised person is defined in Division 3 of Part 8 to mean the Director, a compliance inspector or a member of the police force. Clause 28 amends section 120(2)(d) of the Principal Act to allow minors on licensed or authorised premises during ordinary trading hours where a restaurant and cafe licence is held or where an on-premises licence is held and under the Planning and Environment Act 1987, the permitted use of that licensed premises is that of a restaurant. Section 120(1) of the Principal Act provides that a licensee or permittee is guilty of an offence if a person under the age of 18 years is on the licensed or authorised premises and is not-- in the company of a responsible adult; or on the premises for the purpose of partaking of a meal; or in the case of a licence under which accommodation is provided, a resident of that premises. Section 120(2) provides the circumstances which will not give rise to an offence under section 120(1). The existing section 120(2)(d) provides that it will not be an offence under section 120(1) where a person under 18 years of age is on the licensed or authorised premises during ordinary trading hour if the premises is licensed under an on-premises licence that is subject to the conditions set out in section 9(3). Clause 8(3) of the Bill repeals section 9(3) of the Principal Act. Section 9(3) referred to premises in respect of which an on-premises licence was held and the permitted use of the licensed premises under the Planning and Environment Act 1987 is that of a restaurant. The amendments to section 120(2)(d) remove the reference to section 9(3) as a consequence of this section being repealed. The amendments are intended to ensure that the premises that were covered by the existing section 120(2)(d) remain covered by the amended section 120(2)(d). The amended section 120(d) provides that it will not be an offence under section 120(1) where a person under 18 years of age is on the licensed or authorised premises during ordinary trading hour if the premises is licensed under-- 18

 


 

an on-premises licence where the permitted use of the licensed premises under the Planning and Environment Act 1987 is that of a restaurant; or a restaurant and cafe licence. Clause 29 amends section 180 of the Principal Act in relation to the power to make regulations with respect to fees. Subclause (1) substitutes new section 180(4)(b) for the existing section 180(4)(b) in relation to the power to make regulations with respect to fees that vary according to time. The existing section 1804(b) provides that the regulations with respect to fees may provide for fees that vary according to time. Substituted section 180(4)(b) retains this power and clarifies its intended meaning by providing some examples of how the regulations may vary according to time, including but not limited to fees that vary according to trading hours and the period of time for which a licence is granted. Subclause (2) inserts a new section 180(5) to provide that the regulations may provide for fees varied on any of the factors set out in the new subsection 180(5). New section 180(6) also enables the regulations to provide for fees that are not limited to the cost of providing a service. These amendments are intended to provide sufficient flexibility in the way fees are prescribed in the Regulations to support the introduction of a risk-based fee structure. Clause 30 provides consequential amendments to the Principal Act by amending the Principal Act to insert references to the new licence categories in the existing provisions where appropriate. Paragraph (a) inserts "late night (general) licence" after "general licence" in the definition of guest in section 3(1) of the Principal Act. The amendment provides that a guest in relation to a licensed premises under a general licence or a late night (general) licence, means a person introduced to the premise by a resident. Both general and late night (general) licences authorise the supply of liquor to guests of residents of guests or a licensees who resides on the licensed premises. Paragraph (b) amends section 16(2) of the Principal Act to provide that a major event licence is not subject to a condition that the use of the licensed premises does not contravene the planning scheme that applies to the licensed premises under the Planning and Environment Act 1987. The existing section 16(2) also applies to limited licences and pre-retail licences. 19

 


 

Paragraph (c) inserts a new subsection (ab) into section 17(2) of the Principal Act to provide that, where a late night (general) licence authorises the supply of liquor outside ordinary trading hours only to residents of a licensed premises or guests of the licensee, the late night (general) licence is not subject to the condition set out in section 17(1). Section 17(1) provides a licence condition that applies to licences that authorise trading outside of ordinary trading hours which relates to the condition that the licence not cause undue detriment to the amenity. Section 17(2) provides the licences that are exempt from this condition. Paragraph (d) amends section 25(1)(b) of the Principal Act to provide that the Director must not grant a club licence unless satisfied that in the case of a restricted club, that supplies of liquor for the club will be purchased only from a person who holds a general, late night (general), a packaged liquor licence or late night (packaged liquor) licence. This differs from the existing section 25(1)(b) which allows the purchase only from a person who holds a general or packaged liquor licence by including the relevant new late night subcategories. Paragraph (e) makes the necessary amendments to reference to limited licences in sections 60(4), 61(2) and 62(8) of the Principal Act to ensure the renewable provisions that apply to limited licences only apply to the renewable limited licences and not temporary limited licences. Paragraph (f) amends section 72(a) of the Principal Act to provide that Division 2 of Part 3 will apply to an application by a casino operator for the grant or variation of an on-premises licence or a late night (on-premises) licence in respect of premises within the casino area approved by the Authority. This differs from the existing section 72(a) which applies only to on-premises licences. Paragraph (g) amends section 100 of the Principal Act to provide that, in addition to general licences or on-premises licences the requirement to keep a residents' register where accommodation for residents is provided on the licensed premises also applies to late night (general) licences and late night (on-premises) licences. Paragraph (h) makes the necessary consequential amends to sections 114(1)(c), 123(2)(c), 123(f), 129(6) and 129(7) to insert "or a late night (general) licence" after "general licence" to ensure that where these offence and enforcement sections apply to general licences they apply equally to late night (general) licences. 20

 


 

Paragraph (i) amends section 123(c)(iii) of the Act to provide that it will not be an offence for a minor to enter or remain on a premises where liquor is served, in the case of a general licence, late night (general) or an on-premises licence or late night (on-premises) licence under which accommodation is provided, if the minor is a resident of the licensed premises. This differs from the existing section 123(c)(iii) by applying the section to premises licensed under a late night (general) and late night (on-premises) licences as well as the premises licensed under a general licence and on-premises licence. Paragraph (j) amends section 131(1)(b) of the Principal Act to exclude residents of licensed premises under late night (general) and late night (on-premises) licences, in addition to general and on-premises licences, from the power of police or compliance inspectors to seize liquor in the circumstances under section 131(1)(b). Paragraph (k) makes the necessary amendment to section 135(b) of the Principal Act to include reference to the new late night (general) and late night (on-premises) licences where accommodation for residents is provided in addition to general licence and on-premises licences that provide this accommodation. Paragraph (l) makes the necessary amendments to section 148O of the Principal Act to include the relevant new licence categories. Section 148O provides that in the case of a premises in respect of which an on-premises licence is in force, a reference in Part 8A (Banning Notices and Exclusion Orders) to licensed premises includes a reference to authorised premises. Under the new licence categories, both late night (on-premises) licences and restaurant and cafe licences may also authorise the supply of liquor on authorised premises (in addition to the licensed premises). The amended section 148O provides that for premises in respect of which late night (on-premises) licences and restaurant and cafe licences are in force references to licensed premises include references to authorised premises. Clause 31 inserts a new transitional provision for existing on-premises licences subject to the restaurant conditions under section 9(3) of the Principal Act. New clause 23 of Schedule 3 of the Principal Act allows the holder of an existing on-premises licence subject to restaurant conditions under section 9(3) of the Principal Act, that do not want the licence to transition into the new restaurant and cafe licence category (because they cannot or do not want to meet the new conditions that the predominant activity at all times must be 21

 


 

the preparation and service of meals to be consumed on the licensed premises) to apply to the Director for the licence to remain as an on-premises licence. If an application is granted by the Director, the licence will continue in force-- if the licence authorises trading after 1 a.m., as a late night (on-premises licence); and in any other case, as an on-premises licence. An application under this clause must be made by the Director before the transitional provisions in clause 32 of the Bill commence. This clause also permits applications for the new kinds of licences to be made before the licence provisions commence. Clause 32 inserts new transitional provisions. The new clause 24 of Schedule 4 of the Principal Act provides for the existing licences that will transition into the new licence categories, and for existing applications for licences that will be taken to be applications for a licence under the new licence categories. New section 24(1) provides the transitional provisions for the existing general licences that will be taken to continue in force as a late night (general) licences. Those existing general licences that authorise trading after 1 a.m. will transition into the new late night (general) licence category. New section 24(2) provides the applications that have been made but not finally determined that will be taken to be applications for late night (general) licences. Those applications which have been made for general licences that authorise trading after 1 a.m. will be taken to be applications for a new late night (general) licence. New section 24(3) provides the transitional provisions for the existing on-premises licences that will be taken to continue in force as a late night (on-premises) licences. Those existing on-premises licences that authorise trading after 1 a.m. will transition into the new late night (on-premises) licence category. The only exception will be those on-premises licences that were subject to the conditions referred to in the existing section 9(3) (restaurant conditions) of the Principal Act. These licences will transition into the new restaurant and cafe licence category even where they authorise trade after 1 a.m. New section 24(4) provides the applications that have been made but not finally determined that will be taken to be applications for late night (on-premises) licences. Applications which have been 22

 


 

made for on-premises licences that authorise trading after 1 a.m. will be taken to be applications for a new late night (on-premises) licence. The only exception will be applications for on-premises licences that would if granted have been subject to the restaurants conditions in existing section 9(3) of the Principal Act. These licences applications will be taken to be applications for the new restaurant and cafe licence category even where they seek authorisation to trade after 1 a.m. New section 24(5) provides the transitional provisions for the existing licences that will be taken to continue in force as restaurant and cafe licences. Except in relation to on-premises licences that are to continue as on-premises licences in accordance with clause 31 of the Bill, those existing on-premises licences that are subject to the restaurant conditions set out in section 9(3) will transition into the new restaurant and cafe licence category. New section 24(6) provides the applications that have been made but not finally determined that will be taken to be applications for restaurant and cafe licences. Applications for on-premises licences that would if granted have been subject to the restaurants conditions in existing section 9(3) of the Principal Act. These licences applications will be taken to be applications for the new restaurant and cafe licence category even where they seek authorisation to trade after 1 a.m. New section 24(7) provides the transitional provisions for the existing licences that will be taken to continue in force as a late night (packaged liquor) licences. Those existing packaged liquor licences that authorise trading after 1 a.m. will transition into the new late night (packaged liquor) licence category. New section 24(8) provides the applications that have been made but not finally determined that will be taken to be applications for late night (packaged liquor) licences. Those applications which have been made for packaged liquor licences that authorise trading after 1 a.m. will be taken to be applications for a new late night (packaged liquor) licence. New section 24(9) provides the transitional provisions for the existing licences that will be taken to continue in force as a renewable limited licences. Those limited licences that were granted as renewable licences will transition into renewable limited licences. New section 24(10) and 24(11) provide transitional provisions for existing applications for limited licences. 23

 


 

New section 24(12) provides the transitional provision for applications for temporary limited licences that may be treated as applications for major event licences. Applications for licences in relation to events that are capable of being determined to be a major event under new section 14B will require major event licences if the proposed event is to take place after the commencement of clause 13 of the Bill. Clause 33 amends the definition of pub licence in the Gambling Regulation Act 2003 to include the new late night (general) licence category. Under this Act, a premises may be approved as suitable for gaming for any premises to which a pub licence, club licence or a racing club licence applies. Under the existing definition a pub licence means a general licence under section 8 of the Liquor Control Reform Act 1998. This amendment includes late night (general) licences in the definition of pub licence which allows venues in respect of which late night (general) licences are held to also be approved premises for the purpose of the Gambling Regulations Act 2003. Clause 34 amends the definition of licensed premises in section 3(1) of the Control of Weapons Act 1990 to insert references to the relevant new licence categories. The existing definition of licensed premises under section 3(1) of the Control of Weapons Act 1990 means licensed premises within the meaning of the Liquor Control Reform Act 1998 in respect of which a general licence, an on-premises or a club licence has been issued. The amendment substitutes existing paragraphs (a) and (b) for new paragraphs (a), (b) and (ba) of the definition of licensed premises to include premises in respect of which late night (general) licence, late night (on-premises) licence and restaurant and cafe licences have been issued. Under section 5(1A) of the Control of Weapons Act 1990 a person who is in a licensed premises or in the immediate vicinity of licensed premises must not posses, carry or use a prohibited weapon without an exemption under that Act. The amendments to the definition of licensed premises ensure that the premises currently captured by section 5(1A) are captured under the new licence categories. Clause 35 provides for the automatic repeal of this amending Bill on 1 July 2012. The repeal of this Bill does not affect in any way the operation of the amendments made by this Bill (see section 15(1) of the Interpretation of Legislation Act 1984). 24

 


 

 


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