Victorian Bills Explanatory Memoranda Victorian Bills Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
Liquor Control Reform Further
Amendment Bill 2011
Introduction Print
EXPLANATORY MEMORANDUM
Clause Notes
PART 1--PRELIMINARY
Clause 1 sets out that the main purpose of the Bill is to amend the Liquor
Control Reform Act 1998 to provide for a demerit points system
for licensees and permittees involved in non-compliance
incidents, to provide for a licence for wine and beer producers, to
recognise the importance of live music in the objects of the Act,
and for other purposes.
Clause 2 Subclause (1) provides that the Bill will commence on a day or
days to be proclaimed.
Subclause (2) provides that if the Bill does not come into
operation on 1 July 2012, it comes into operation on that day.
Clause 3 specifies the Liquor Control Reform Act 1998 as the Principal
Act for the Bill.
PART 2--AMENDMENTS TO THE LIQUOR CONTROL
REFORM ACT 1998
Clause 4 inserts the following definitions into subsection 3(1) the Liquor
Control Reform Act 1998--
authorised notifier means the police force of Victoria, a
court, tribunal or other entity involved in the
administration of the criminal justice system in Victoria,
another authority or person responsible for the
enforcement, investigation or prosecution of offences
571079 1 BILL LA INTRODUCTION 26/10/2011
under the Liquor Control Reform Act 1998, or a
member, employee or delegate of an entity referred to in
this definition;
infringement notice has the same meaning as in the
Infringements Act 2006;
infringement penalty hasthe same meaning as in the
Infringements Act 2006;
non-compliance incident means, in relation to a licence
or permit--
the payment of an infringement penalty in an
infringement notice served on the licensee or
permittee for an offence under sections 108(4),
119 or 120; or
the making of an order under section 59 of the
Infringements Act 2006 in respect of an offence
under sections 108(4), 119 or 120; or
the making of the first payment as part of an
agreement for a payment plan in respect of an
infringement notice served on the licensee or
permittee for an offence under section 108(4),
119 or 120; or
the successful prosecution of the licensee or
permittee for an offence under sections 108(4),
119 or 120;
permit means a BYO permit;
primary premises, in relation to a wine and beer
producer's licence under the new section 13, means--
premises occupied and used by the licensee for
the production, storage or distribution of liquor
that is the licensee's product; and
for the supply of liquor that is the licensee's
product for consumption on or off of the licensed
premises; and
2
for the supply of liquor that is not the licensee's
product for consumption on the premises; and
for the supply of liquor that is the licensee's
product to a person who makes an off-premises
request. An off-premises request refers to orders
made by mail, telephone, facsimile transmission,
internet or other electronic communication;
promotional event includes but is not limited to a craft
market, farmers' market, commercial market, festival,
agricultural show, food and wine event, gallery opening,
fair or local event but does not include a major event or
horse-racing event;
retail premises, in relation to a wine and beer producer's
licence, means premises to be occupied and used by the
licensee for the supply of liquor that is the licensee's
product for consumption off the premises;
Register means the Demerits Register established under
section 86A;
successful prosecution means a prosecution which
results in a licensee or permittee being convicted or
found guilty of an offence against sections 108(4), 119
or 120.
Subclause (b) of clause 4 substitutes "13(1)(a) (wine and beer
producer's" for "13(1)(b) (vigneron's" in the definition of licensed
premises as the wine and beer producer's licence replaces the
vigneron's licence.
Subclause (c) of clause 4 substitutes "wine and beer producer's"
for "vigneron's" in the definition of ordinary trading hours as the
wine and beer producer's licence replaces the vigneron's licence.
Subclause (d) of clause 4 repeals the definition of vigneron.
Clause 5 substitutes ", licensed hospitality and live music" for
"and licensed hospitality" to include a reference to live music in
the objects of the Liquor Control Reform Act 1998.
3
Clause 6 substitutes "wine and beer producer's" for "vigneron's"
in subsection 7(h) of the Liquor Control Reform Act 1998 to
include the wine and beer producer's licence, and remove the
vigneron's licence, in the categories of licences and permits that
may be issued under the Liquor Control Reform Act 1998.
Clause 7 inserts a new subsection (ca) after section 8(2)(c) of the Liquor
Control Reform Act 1998 that provides that a general licence is
subject to the condition that the supply of liquor only for
consumption off the licensed premises must not be the whole of
the licensee's ordinary business supplying liquor.
Subclause (2) inserts after subsection 8(2) of the Liquor Control
Reform Act 1998 a new subsection (3) providing that for the
purposes of subsection 2(ca), gratuitous supply of liquor under
section 20 does not affect whether the supply of liquor only for
consumption off the licensed premises is the whole of the
licensee's ordinary business supplying liquor.
Clause 8 substitutes "licence; and" for "licence--" in subsection 11(1)(c)
of the Liquor Control Reform Act 1998 to allow for a new
subsection to be inserted following this section.
Subclause (2) inserts a new subsection (d) after subsection
11(1)(c) of the Liquor Control Reform Act 1998 providing that
a packaged liquor licence authorises the licensee to supply liquor
on the licensed premises in sealed containers, bottles and cans at
any time on Christmas Day and/or on Good Friday as determined
by the Director and as specified on the licence.
Clause 9 Subclause (1) substitutes "licence; and" for "licence--" in
subsection 11A(4)(b) of the Liquor Control Reform Act 1998
to allow for a new subsection to be inserted following this
section.
Subclause (2) inserts a new subsection (c) in section 11A(4) of
the Liquor Control Reform Act 1998 providing that a late night
(packaged liquor) licence authorises the licensee to supply liquor
on the licensed premises in sealed containers, bottles and cans at
any time on Christmas Day and/or on Good Friday as determined
by the Director and as specified on the licence.
4
Subclause (3) inserts a new subsection (da) in section 11A(5) of
the Liquor Control Reform Act 1998 providing that a late night
(general) licence is subject to the condition that the supply of
liquor only for consumption off the licensed premises must not
be the whole of the licensee's ordinary business supplying liquor.
Subclause (4) inserts a new subsection (5A) in section 11A of the
Liquor Control Reform Act 1998 providing that, for the
purposes of the new subsection 11(5)(da), gratuitous supply of
liquor under section 20 does not affect whether the supply of
liquor only for consumption off the licensed premises is the
whole of the licensee's ordinary business supplying liquor.
Subclause (5) substitutes "11(5)" for "11(4)" in subsection
11A(6) of the Liquor Control Reform Act 1998 to correct
numbering following the insertion of additional subsections.
Clause 10 substitutes a new section 13 into the Liquor Control Reform
Act 1998 which removes the provisions with regard to the
vigneron's licence and provides for the wine and beer producer's
licence. The section will include seven new subsections.
Subsection 13(1) provides that a wine and beer producer's licence
authorises the licensee to supply liquor that is the licensee's
product at any time and on any premises to another licensee.
The licence also authorises supply during ordinary trading hours
and at any other time determined by the Commission and
specified on the licence liquor that is the licensee's product for
consumption on or off the licensed premises, liquor that is not the
licensee's product for consumption on the licensed premises, and
packaged liquor that is the licensee's product to a person who
makes and off-premises request. An off-premises request refers
to orders made by mail, telephone, facsimile transmission,
internet or other electronic communication.
Subsection 13(2) provides that a wine and beer producer's licence
is subject to conditions set out in section 16 of the Liquor
Control Reform Act 1998 (compliance with planning scheme),
and if the licence authorises supply outside ordinary trading
hours, the condition set out in section 17(1) of the Liquor
Control Reform Act 1998, and if the licensee if a body
corporate, the condition set out in section 18 of the Liquor
Control Reform Act 1998, and any other conditions determined
by the Commission and specified in the licence.
5
Subsection 13(3) provides that references in the Liquor Control
Reform Act 1998 to liquor that is the licensee's product means
wine, cider, brandy, perry or beer that--
in the case of beer, has been brewed by or at the
direction of the licensee and the licensee has assumed
the financial risk of the production;
in the case of wine, cider, brandy or perry, liquor that is
the licensee's product is that which has been made from
fruit grown by the licensee and the licensee has assumed
the financial risk of the production, or that which has
been made under the direction of the licensee from fruit
grown in Australia that was not grown by the licensee
and the licensee has assumed the financial risk of the
production.
Subsection 13(4) sets out that licensed premises may consist of a
primary premises, or both a primary premises and a retail
premises. In the case of licensed premises that consist of both a
primary premises and a retail premises, both premises must be
located in the same region specified in the Register of Protected
Geographical Indication and Other Terms kept by the Registrar
under the Australian Wine and Brandy Corporation Act 1980 of
the Commonwealth.
Subsection 13(5) provides that a licensee may make an
application under section 29 of the Liquor Control Reform Act
1998 for a condition to be placed on their wine and beer
producer's licence that authorises the supply of liquor that is the
licensee's product at promotional events that are conducted off
the licensed premises. This provision applies when the licensee
already holds a wine and beer producer's licence. New applicants
for a wine and beer producer's licence may apply for this
condition to be placed on their new licence when making the
initial application for the licence under section 27 of the Liquor
Control Reform Act 1998.
Subsection 13(6) sets out that an application under subsection (5)
must be accompanied by the prescribed fee and is subject to any
further condition determined by the Commission and specified on
the licence.
Subsection 13(7) sets out that section 23(3)(c)(ia) of the Liquor
Control Reform Act 1998 does not apply to an application
under the new subsection 13(5).
6
Subsection 13(8) provides that a licensee who has a condition of
the type referred to in the new subsection 13(5) must keep a
record of the name, date and location of all promotional events at
which it has supplied liquor that is the licensee's product,
including records of the times at which the licensee was
supplying the product at the event, and produce the records for
inspection upon request by an authorised person. The form in
which these records must be kept is not prescribed.
This requirement applies to the licensee of any wine and beer
producer's licence that has a condition of this type on their
licence, whether or not the condition was placed on the licence
through an application under the new subsection 13(5).
Clause 11 substitutes "liquor to be consumed, possessed or controlled on the
premises in respect of which the permit is granted" for
"the supply of liquor" in section 15A(2) of the Liquor Control
Reform Act 1998.
Clause 12 repeals the definitions of non-compliance incident and
successful prosecution in section 15E(3) of the Liquor Control
Reform Act 1998. These definitions are being replaced by
clause 4 of this Bill.
Clause 13 substitutes "wine and beer producer's" for "vigneron's", and
"13(1)(b)(i) or (ii)" for "13(1)(b)" in subsection 17(2)(c) of the
Liquor Control Reform Act 1998 as the wine and beer
producer's licence replaces the vigneron's licence.
Clause 14 Subclause (1) amends subsection 22(ca) of the Liquor Control
Reform Act 1998 to prohibit the granting of a licence or BYO
permit in respect of premises that, in the opinion of the
Commission, are intended by the occupier of the premises to be
primarily used by people under the age of 18 years, unless the
Commission is satisfied that the grant of a licence or permit
would not present a specific risk of supply of liquor to a person
under the age of 18 years.
7
Subclause (2 inserts a new subsection 22(3A) after
subsection 22(3) of the Liquor Control Reform Act 1998,
which sets out factors that the Commission may consider for the
purposes of making a determination under section 22(ca).
These include but are not limited to--
whether the proposed licence or permit authorises
supply of liquor at a time when the premises will not be
used primarily by persons under the age of 18 years; and
whether the proposed licence or permit provides that
any person under that age of 18 years must be
accompanied by a responsible adult at all times during
which the proposed supply of liquor is to occur.
Clause 15 inserts a new subsection 28(1)(ab) after subsection 28(1)(aa) of
the Liquor Control Reform Act 1998 providing that an
application for a licence or BYO permit must disclose any
demerit points that have accrued within the previous three years
on a licence or permit that the applicant or a nominee of the
applicant has held or holds at the time of the application.
Clause 16 inserts a new subsection 32(2)(ac) after subsection 32(2)(ab) of
the Liquor Control Reform Act 1998 providing that an
application for transfer must disclose any demerit points that
have accrued within the previous three years on a licence or
permit that the proposed transferee or a nominee of the proposed
transferee has held or holds at the time of the application.
Clause 17 Subsection (1) inserts "if they were the" into subsection 53(2) of
the Liquor Control Reform Act 1998, so that this subsection
provides that if a licence or BYO permit is granted or transferred
to a body corporate, the director of the body corporate are
severally liable as if they were the licensee or permittee.
Subsection (2) inserts "if they were the" into subsection 53(3) of
the Liquor Control Reform Act 1998 so that this subsection
provides that if a club licence is granted to a person on behalf of
an unincorporated club, the members of the committee of
management of the club are severally liable as if they were the
licensee.
8
Clause 18 inserts a new Part 4A in the Liquor Control Reform Act 1998,
dealing with the Demerits Register. The Part will include 11 new
sections, 86A to 86K.
Section 86A provides that the Commission must keep a Demerits
Register and must record against a licence or permit any demerit
points that are incurred in relation to that licence or permit.
Section 86B provides that the Commission must record in the
Register a demerit point against a licence or permit if the
Commission is notified by an authorised notifier that a non-
compliance incident has occurred in respect of the licensed
premises. However, the Commission must not record demerit
points against a licence or permit in the Register if more than
12 months have elapsed since the Commission was notified by an
authorised notifier of the non-compliance incident.
Section 86C requires that the Commission record demerit points
in the Register in relation to the day the offence that is alleged to
have been committed which is the basis of the non-compliance
incident to which the demerit point relates.
Section 86D provides that if a demerit point has been incurred in
respect of a licence or permit, the Commission must give the
licensee or permittee a notice advising that the demerit point has
been incurred. The notice must contain the following details--
details of the licence or permit;
the offence that is alleged to have been committed
which is the basis of the non-compliance incident to
which the demerit point relates;
the date on which the demerit point was recorded on the
Register; and
the total number of demerit points recorded against the
licence or permit in the previous three years.
Section 86E provides the suspension periods that the
Commission is to apply to a licence or permit that has accrued a
certain number of demerit points. These are--
in the case of a licence or permit that has accrued five
demerit points in a three year period, for 24 hours,
commencing during ordinary trading hours;
9
in the case of a licence or permit that has accrued ten
demerit points in a three year period, for seven days,
commencing during ordinary trading hours; and
in the case of a licence or permit that has accrued
15 demerit points in a three year period, for 28 days,
commencing during ordinary trading hours.
The three year period commences on the date that the first
demerit point is recorded in the Register. A suspension must not
commence on a day which is not during the authorised trading
hours of the licence. If the Commission suspends a licence or
permit for 28 days, the Commission must, when calculating
demerit points recorded against the licence or permit at any time
after the period of suspension, disregard all demerit points
recorded against the licence or permit as at the date of
suspension.
A suspension must commence--
on the same day of the week as the day that the alleged
offence that is the basis of the non-compliance incident
occurred that resulted in the latest demerit point being
recorded; or
if the alleged offence that is the basis of the
non-compliance incident that resulted in the latest
demerit point being recorded occurred between
12.01a.m. and 7.00a.m. on the same day of the week as
the previous day of the week that the incident occurred;
or
if the alleged offence that is the basis of the non-
compliance incident that resulted in the latest demerit
point being recorded occurred on a day that was not
ordinarily part of the licensee's authorised trading hours,
on the next day that falls within the licensee's authorised
trading hours.
Examples are provided in this section to clarify the intent of these
provisions.
Section 86F provides that the date of commencement of a
suspension must be a day no less than 14 days after the date of a
notice under the new section 86G and no more than 60 days after
the date that the latest demerit point was recorded on the
Register.
10
Section 86G provides that the Commission must give notice to
the licensee or permittee if their licence or permit is to be
suspended under the new section 86E. The notice must contain
the following details--
details of the licence or permit to which the suspension
relates;
the period of the suspension;
the date the suspension commences;
the date the suspension ends; and
any other prescribed details.
Section 86H authorises the Minister to delay, cancel or shorten a
suspension of a licence or permit if the Minister is satisfied that
the cost to the community of the suspension outweighs the
benefit of the suspension. A licensee or permittee is able to make
an application under this section to delay, cancel or shorten a
suspension. Should this occur, the suspension of the licence or
permit does not take effect until the Minister determines the
application.
Section 86I provides that a licensee or permittee to which a
licence that has accrued demerit points is transferred may apply
to the Commission to remove any demerit points that were
accrued before the transfer from the Register. An application
must be accompanied by the prescribed fee. The Commission
must not remove any demerit points unless it is satisfied that the
new licensee or permittee has taken sufficient measures in respect
of the licence or permit to improve compliance with the Liquor
Control Reform Act 1998. Factors the Commission may
consider in deciding to remove demerit points include but are not
limited to--
written evidence that the new licensee or permittee has
no business or family association with the previous
licensee, permittee or the nominee of the licensee or
permittee, or any associates of the licensee or permittee;
and
evidence of a change of management practices or staff
training.
11
Section 86J requires that the Commission remove a demerit point
from the Register on the day after three years have expired since
the date the demerit point was incurred.
Section 86K provides that the Commission may publish details
on its website in relation to a licence or permit. These details
are--
details that appear on the licence or permit;
details of a licence or permit that has accrued demerit
points, including details of the licensee or permittee or
nominee of the licensee or permittee;
a copy of any licence or permit;
the total accumulated demerit points relating to a licence
or permit; and
any other prescribed information.
Sections 32 and 33 of the Infringements Act 2006 do not apply
to the extent necessary to give effect to this section.
Clause 19 substitutes "wine and beer producer's" for "vigneron's" in
subsection 108(2)(b) of the Liquor Control Reform Act 1998 as
the wine and beer producer's licence replaces the vigneron's
licence.
Clause 20 substitutes "wine and beer producer's" for "vigneron's" in
subsection 109(2)(b) of the Liquor Control Reform Act 1998 as
the wine and beer producer's licence replaces the vigneron's
licence.
Clause 21 inserts a new infringement offence into subsection 141(2) of the
Liquor Control Reform Act 1998, subsection 141(2)(aaa),
failure to notify Commission of person ceasing to be nominee.
It also amends subsection 141(2)(n) to substitute "directions);"
for "directions)." to enable new subsections to be inserted
following subsection (n). Two new subsections are inserted
following subsection (n)--
subsection 141(2)(o), providing that offences against
clause 25(2), (3), (4), (5), (6), (7) or (9) of Schedule 3
(transitional provisions--Liquor Control Reform
Amendment Act 2010) are infringeable; and
12
subsection 141(2)(p), providing that an offence against
clause 26 (transitional provision - Liquor Control
Reform Further Amendment Act 2011) is
infringeable.
Clause 22 repeals section 144(5) of the Liquor Control Reform Act 1998.
Clause 23 substitutes "be a responsible person" for "have management or
control of the licensed premises" in subsection 148X(2) of the
Liquor Control Reform Act 1998.
Clause 24 substitutes "be a responsible person" for "have management or
control of the licensed premises" in section 148Y of the Liquor
Control Reform Act 1998.
Clause 25 substitutes "be a responsible person" for "have management or
control of the licensed premises" in section 148ZA of the Liquor
Control Reform Act 1998.
Clause 26 substitutes "be a responsible person" for "have management or
control of the licensed premises" in subsection 148ZE(1) of the
Liquor Control Reform Act 1998.
Clause 27 substitutes "be a responsible person" for "have management or
control of the licensed premises" in subsection 148ZF(3) of the
Liquor Control Reform Act 1998.
Clause 28 substitutes "be a responsible person" for "have management or
control of the licensed premises" in subsection 148ZP(2) of the
Liquor Control Reform Act 1998.
Clause 29 inserts two new subsections following subsection 108(4)(a) of the
Liquor Control Reform Act 1998. New subsection (ab)
provides that regulations with respect to fees may provide for
different fees or discounts on fees depending on whether the
licence or permit has incurred demerit points under Part 4A or is
the subject of non-compliance incidents. New subsection (ac)
provides that the regulations with respect to fees may provide for
different fees for licences that have different conditions.
Clause 30 substitutes "114(2)" for "114(d)".
13
Clause 31 divides Schedule 3 of the Liquor Control Reform Act 1998 into
two parts, Part 1--General Provisions, and Part 2--Liquor
Control Reform Further Amendment Act 2011. Part 1
commences before clause 1 of Schedule 3, and Part 2 commences
after clause 25 of Schedule 3.
In the new Part 2, 5 new clauses 26 to 30 are inserted.
Clause 26 provides that a pre-2011 general licence means a
general licence as in force before the commencement of section 7
the Liquor Control Reform Further Amendment Act 2011
under which a licensee supplies packaged liquor only for
consumption off the licensed premises as the whole of the
licensee's ordinary business supplying liquor.
This clause authorises the Commission to impose a condition that
the licensee of a pre-2011 general licence comply with the code
of conduct (if any) determined by the Minister under
subsection 11(5) of the Liquor Control Reform Act 1998, as in
force from time to time, and charge the prescribed renewal fee
for a licence that is subject to the condition set out under this
clause. This clause also requires that on and from the
commencement of section 7 of the Liquor Control Reform
Further Amendment Act 2011, a licensee of a pre-2011 general
licence must notify the Commission in writing within three
months after commencing supply of packaged liquor only for
consumption off the licensed premises as the whole of the
licensee's ordinary business supplying liquor. The penalty for not
doing so is 10 penalty units.
Clause 27 sets out that subsection 11(1) of the Liquor Control
Reform Act 1998 as amended by the Liquor Control Reform
Further Amendment Act 2011 is taken to have applied in
respect of any packaged liquor licence in force on or after
1 January 2010. This clause validates any decision made by the
Director of Liquor Licensing regarding Christmas Day and Good
Friday trading for packaged liquor licensees on or after 1 January
2010.
14
Clause 28 sets out that subsection 11A(4) of the Liquor Control
Reform Act 1998 as amended by the Liquor Control Reform
Further Amendment Act 2011 is taken to have applied in
respect of any late night (packaged liquor) licence in force on or
after 1 January 2010. This clause validates any decision made by
the Director of Liquor Licensing regarding Christmas Day and
Good Friday trading for late night (packaged liquor) licensees on
or after 1 January 2010.
Clause 29 sets out that on and from the commencement of the
Liquor Control Reform Further Amendment Act 2011, any
vigneron's licence that was in force immediately before that
commencement is taken to continue in force (subject to any
conditions on which it was granted) as if it were a wine and beer
producer's licence.
Clause 30 provides that a licensee of a licence that is not a late
night licence that was in force immediately before the
commencement of the section 10 of Liquor Control Reform
Further Amendment Act 2011 may, within one year of that
commencement, apply to the Commission for a variation of the
licence to a wine and beer producer's licence. The Commission
may authorise the variation if it is satisfied that the conditions for
a wine and beer producer's licence have been met. Section 29 of
the Liquor Control Reform Act 1998 does not apply to an
application under this clause, and the application is not subject to
any fee.
PART 3--AMENDMENTS TO THE INFRINGEMENTS
ACT 2006
Clause 32 amends the section 34 of the Infringements Act 2006 to insert
a new subsection 34(c) providing that an offence under
sections 108(4), 119 or 120 of the Liquor Control Reform Act
1998 does not prevent the incurring of demerit points under that
Act in relation to that offence.
15
PART 4--FURTHER AMENDMENTS TO LIQUOR CONTROL
REFORM ACT 1998
Clause 33 amends section 11(1)(d) of the Principal Act (as inserted by
clause 8(2) of this Bill) to substitute "Commission" for
"Director". This amendment is consequential upon the
establishment of the Victorian Commission for Gambling and
Liquor Regulation as provided for in the Victorian Commission
for Gambling and Liquor Regulation Bill 2011. It is proposed
that clause 8 of this Bill is commenced before Christmas Day
2011 and that this clause is commenced after the commencement
of the Victorian Commission for Gambling and Liquor
Regulation Bill 2011.
Clause 34 amends section 11A(4)(c) of the Principal Act (as inserted by
clause 9(2) of this Bill) to substitute "Commission" for
"Director". This amendment is consequential upon the
establishment of the Victorian Commission for Gambling and
Liquor Regulation as provided for in the Victorian Commission
for Gambling and Liquor Regulation Bill 2011. It is proposed
that clause 9(1) and (2) of this Bill are commenced before
Christmas Day 2011 and that this clause is commenced after the
commencement of the Victorian Commission for Gambling and
Liquor Regulation Bill 2011.
PART 5--REPEAL OF AMENDING ACT
Clause 35 provides that this amending Bill will be repealed on 1 June 2013.
This repeal will not affect the continuing operation of the
amendments made by the Bill.
16