2012

MINISTER FOR ALCOHOL POLICY

LiQUOR AND OTHER LEGISLATION AMENDMENT BILL 2012

                                      				SERIAL NO. 205   

EXPLANATORY STATEMENT

GENERAL OUTLINE

This Bill provides for the Liquor and Other Legislation Amendment Act 2012.

The object of the Act is to amend the Liquor Act and other legislation to address a number of procedural and other issues relating to alcohol, and to correct errors or uncertainty in the operation of legislation. 

The amendments include the repeal of Part VIA of the Summary Offences Act relating to ‘drinking in public places’ and insertion of replacement provisions in new Part VIIIB in the Liquor Act as ‘regulated places’. The provisions are modernised to reflect the provisions and style of the Liquor Act and also the manner in which consumption of liquor is regulated. As part of the repeal and replacement, two new offences are provided for in Part VIIIB which complement the ‘regulated places’ provisions which prohibit drinking liquor within 2 kilometres of a licensed premises.

The amendments also include provisions enabling the Alcohol and Drug Tribunal to make a person subject to income management through exercising power it is given in relation to income management as a recognised state/territory authority under the Social Security (Administration) Act 1999 (Cth) when making a Banning Alcohol and Drug and Treatment order under the Alcohol Reform (Prevention of Alcohol-related Crime and Substance Misuse) Act.  

The Bill also includes a number of minor amendments of a statute law revision nature to the Acts amended by this Bill. 

NOTES ON CLAUSES

Part 1	Preliminary matters

Clause 1.	Short title

This is a formal clause which provides for the citation of the Bill.  

The Bill when passed may be cited as the Liquor and Other Legislation Amendment Act 2012.

Clause 2.	Commencement

This clause provides that the Act commences on the day fixed by the Administrator as notified in the Gazette.

Part 2	Amendment of Liquor Act

Clause 3.	Act amended

This clause provides that Part 2 amends the Liquor Act.

Clause 4.	Section 4 amended

This clause inserts new definitions into section 4(1) and amends definitions as necessary for the inclusion of new sections inserted in the Act. 

New definitions include exemption certificate, exemption notice and regulated place. The definition of public place is moved into the general definitions from section 120F as set out in the Schedule amending clause 9.

Clause 5.	Section 8 amended

This clause amends section 8 by omitting brackets around the words ‘other than an  offence against section 75(1) or 101AE(1)’ so that the wording is clearly a substantive statement and not an aside.

The clause also adds new offence 101U(1) as an offence excluded from the provisions of Part IIAA of the Criminal Code as there are no fault elements attaching to the offence, nor is strict liability attached. 

Clause 6.	Section 51 amended

This clause makes statute law revision amendments, for example to sub clause (1) which inserts the words ‘any of the following’ after the word ‘means’ in section 51(11) of the Liquor Act relating to procedures for a hearing by the Liquor Commission. 

The clause also provides a consequential amendment to the main amendments of this Bill, being to provide for Part VIA which is repealed in the Summary Offences Act by this Bill and inserted into the Liquor Act, by inserting at sub clause (5) two new subsections in section 51(11) regarding applications to the commission relating to an exemption certificate. 

Subsection 51(11) sets out who may be parties to a hearing. New subsection 51(11)(e) provides a person that has applied for an exemption certificate or for the cancellation or variation of an exemption certificate is a party. New subsection 51(11)(f) provides that a person who has made a representation to the Commission in response to a notice published under section 101ZG may be a party when the representation is in response to an application.

Clause 7.	New Part VIIIB inserted

This clause inserts a new Part after Part VIIIA in the Act. Part VIIIB provides for regulated places in new section 101T through to new section 101ZI.

As the Liquor Act already contains regulations about the consumption of liquor in specific types of places (general restricted, public restricted and special restricted areas) the drinking in public places has been relabeled as ‘consumption of liquor in regulated place’.

Division 1 of Part VIIIB provides for consumption of liquor in regulated places. 

Section 101T sets out what is a regulated place, being a place, for the consumption of liquor, that is within 2 kilometres of licensed premises that is a public place or private premises where the lawful occupier is absent.  A place that is otherwise a regulated place is not a regulated place if the consumption of liquor is permitted by a special license, exemption certificate or exemption notice for the place. 

Section 101U provides that it is an offence to consume liquor at a regulated place. The penalty for this offence is the forfeiture of the liquor, which may be seized by a police officer under section 101Y.  The provision does not apply if the regulated place is in a designated area or if the person is an adult and has express permission of the owner or lawful occupier of the place.

Section 101V provides that it is an offence to consume liquor at a regulated place and in consuming the liquor causes a nuisance to other people. The term nuisance is used to describe an activity or condition that is harmful or annoying to others (e.g. indecent conduct, or a rubbish heap) and the harm caused by the activity or condition (e.g. loud noises or objectionable odors). ‘Nuisance’ is addressed at stopping bothersome activities or conduct which unreasonably interferes with the rights of the general public. It includes conduct that interferes with public health, safety, peace or convenience. The maximum penalty for this offence is 5 penalty units. The offence is an offence of strict liability. Clause 13 amends Schedule 2, Part 1 of the Liquor Regulations to include this offence as a police infringement offence enabling an infringement notice to be issued. Clause 15 amends section 9(4) of the Alcohol Reform (Prevention of Alcohol-related crime and Substance Misuse) Act to include the offence as an ‘alcohol-related infringement notice’ offence.

Section 101W provides that it is an offence to consume liquor at a regulated place that is a designated place. An area may be declared a designated area by the Minister under section 120F of the Liquor Act where alcohol-related violence has occurred in a public place in the vicinity of licensed premises within the designated area and the exercise of powers by police under Division 3 or 4 (relating to banning notices) in relation to the designated area is reasonably likely to be an effective way of preventing or reducing the occurrence of alcohol-related violence in the area. The offence in section 101W is an offence of strict liability and the maximum penalty for this offence is 5 penalty units. Clause 13 amends Schedule 2, Part 1 of the Liquor Regulations to include this offence as a police infringement offence enabling an infringement notice to be issued. Clause 15 amends section 9(4) of the Alcohol Reform (Prevention of Alcohol-related crime and Substance Misuse) Act to include the offence as an ‘alcohol-related infringement notice’ offence.

Division 2 of Part VIIIB provides for police powers of search, seizure and forfeiture. 

Section 101X provides that for Division 2 sections 101U(1), 101V(1), 101W(1) and 101Z(4) are relevant offences.

Section 101Y provides that a police officer may search a person and seize any opened or unopened containers of liquor without a warrant if it is reasonably believed that the person is committing a relevant offence. A search may only be made on a person by a police officer who is the same gender. When a police officer seizes a container they may empty the container or destroy the container. Any containers that are not emptied or destroyed must be taken to a police station to be destroyed.

Section 101Z provides that a police officer may give a contravention notice to a person if it is reasonably believed that the person has committed an offence against section 101U(1) and the police officer has seized unopened containers of liquor in relation to the offence. The contravention notice must contain information including the name of the alleged offender, the date, time and place of the alleged offence, a description of the alleged offence and the liquor seized. The notice must also state that the alleged offender may choose to have the matter dealt with by the court of summary jurisdiction.

Section 101ZA provides that if no application is made under section 101ZB in relation to a contravention notice given under section 101Z, then the court of summary jurisdiction may make an order that the alleged offender committed the offence.

Section 101ZB provides that an alleged offender with a contravention notice given under section 101Z may apply to the court of summary jurisdiction for the alleged offence to be dealt with by the court. The section sets out how the application must be made and what the court must do when the application is received. The application must be made within 28 days of the alleged offence and heard by the court no sooner than 14 days after last day the offender may make an application.

Section 101ZC provides how the court of summary jurisdiction must deal with the offence alleged in the contravention notice.  If more than one application is made under section 101ZB which arise out of the same facts then the court may try the matters together.

Section 101ZD provides that interest in the liquor destroyed under section 101Y is an amount of money equal to the value of the liquor. The interest in the value is forfeited to the Territory when an order is made under section 101ZA when no application is made to the court under section 101ZA in respect of a contravention notice or if the court finds a person guilty of a relevant offence following application.  If the court does not find a person guilty then compensation for the interest may be sought from a court.

Division 3 of Part VIIIB provides for exemption notices and exemption certificates.

Section 101ZE provides for the publishing of an exemption notice in relation to a public place within 2 kilometres of licensed premises to allow consumption of liquor at that place. An exemption notice must include information describing the place, and state that the consumption of liquor is permitted, and may specify conditions about the type of liquor, for example light beers or no spirits, the periods when the liquor may be consumed, for example during weekends or public holidays between the hours of 12pm and 10pm and also the persons who may or may not enter the place. A contravention of a condition of the exemption notice is an offence. The maximum penalty is 5 penalty units.  The offence is an offence of strict liability.

Section 101ZF provides for the issuing of exemption certificates for a public place within 2km of licensed premises to a person allowing consumption of liquor. The issue of exemption certificates may be made by the Commission by application under section 101ZG(1) and authorize the consumption of liquor in a public place. The certificate must describe the relevant place, state that consumption is permitted and may also specify conditions such as type of liquor, periods when it may be consumed and who may or may not enter the place.

Section 101ZG sets our how an application may be made for an exemption certificate. An application may be made by an owner of the place or by a person responsible for the management of the place. The person may be required to publish a notice or notices in a newspaper or newspapers stating that an application for an exemption certificate has been made. The Commission must consider matters such as the general nature of the use of the public place, what the provisions are for disposal of litter at the place and also any representations made in response to a published notice.

Section 101ZH provides that the Commission may conduct a hearing for an exemption certificate if it is considered appropriate, however the Commission must conduct a hearing if required by the Minister.

Section 101ZI provides for variation, suspension or cancellation of exemption certificates by the Commission. Contravention of conditions or allowing consumption of liquor to become a nuisance to people using the public place are factors which, if the Commission is satisfied of those factors, lead to the Commission varying, suspending or cancelling an exemption certificate. Any variation, suspension or cancellation must be in writing. The person who holds the certificate may also apply to the Commission for variation of conditions or for cancellation of the certificate.

Clause 8.	New Part XVII inserted 

This clause inserts after section 145 a new Part XVII which provides for the transitional matters relating to the repeal of Part VIA in the Summary Offences Act and the replacement in new Part VIIIB in the Liquor Act. Section 147 provides for the continuation of exemptions under the repealed provisions as if the provisions continued in force. If a person is alleged to have committed an offence against repealed section 45EA(2) but was not charged before commencement, then the person may be charged and dealt with under the repealed provisions of the Summary Offences Act as if they were not repealed.

New section 148 provides that applications or hearings before the Commission immediately before the commencement day will continue being dealt with as if the application had been made under new Part VIIB, Division 3.

Clause 9.	Act further amended

This clause provides that the Schedule, which sets out minor statute law amendments has effect.

Part 3	Amendment of Liquor Regulations

Clause 10.	Regulations amended

This clause provides that Part 3 amends the Liquor Regulations.

Clause 11.	Schedule 2, Part 1 amended

This clause amends Schedule 2, Part 1 of the Regulations which relate to police infringement notices to provide that the offences in sections 101V(1), 101W(1) and 101ZE(4) are infringement notice offences. The penalty for the infringement notices is 0.5 of a penalty unit.

Part 4	Amendment of Alcohol Reform (Prevention of Alcohol-related Crime and Substance Misuse) Act

Clause 12.	Act amended

This clause provides that Part 4 amends the Alcohol Reform (Prevention of Alcohol-related Crime and Substance Misuse) Act.

Clause 13.	Section 3 amended

This clause amends the objects of the Act by inserting ‘or are reasonably believed to be’ in relation to whether a person is affected by alcohol or drugs. The amendment is a consequential amendment to give effect to amendments relating to income management in Division 3 of the Act.

Clause 14.	Section 4 amended

This clause inserts new definitions into section 4 and amends definitions as necessary for the inclusion of new sections inserted in the Act. 

New definitions include income management and eligible welfare payment recipient.

Clause 15.	Section 9 amended

This clause amends section 9(4) to insert the new offences of the Liquor Act, offences 101V(1), 101W(1) and 101ZE(4) as provided for in clause 9 of this Bill, as offences that fall within the definition of alcohol-related infringement notice.

Paragraph (c) in the definition of alcohol-related infringement notice is omitted as this refers to section 45D in the Summary Offences Act which is repealed.

Paragraph (b) in the definition of alcohol-related offence is also amended so that it is the police officer attending at the scene of the offence, rather than making the arrest, who must have reasonable belief that the alleged offender was affected by alcohol at the time the offence was committed. This enables an alleged offender who is either summonsed or charged, as provided for in section 9(2)(a)(i)  of the Act, to be issued a Banning Alcohol and Treatment notice (BAT notice), not just an alleged offender who is arrested.

Clause 16.	Section 26 amended

This clause inserts after subsection 26(2) relating to the making of General Alcohol Prohibition orders (GAP orders), a subsection (3) which provides that the GAP order must state the period the order remains in force, details for the banned person to arrange assessment, the matters mentioned in section 30 and any other matter the Tribunal considers appropriate. This was previously provided for in section 28(2) which is repealed by clause 17.

Clause 17.	Section 28 amended

This clause omits subsection 28(2) which is now provided for in subsection 26(3) of the Act.

Clause 18.	Section 30 amended

This clause amends section 30 in relation to what the Alcohol and Drug Tribunal may do if the banned person does not attend for assessment within the period of the GAP order. The Tribunal may now also conduct a hearing to decide whether to make a Banning Alcohol and Drug and Treatment order (BADT order) for the banned person. Previously the Tribunal was limited to making a further GAP order for 3 months. 

Clause 19.	Section 31 amended

This clause amends section 31 to provide for the making of a BADT order for a person who has failed to attend for assessment when subject to a GAP order. It also provides for orders relating to income management for a banned person who is an eligible welfare payment recipient. 

Clause 20.	Section 33 amended

This clause amends section 33(4) which relates to providing a copy of the assessment report to a person at risk when the Tribunal notifies the person of a hearing so that it only need be provided if the person has actually been assessed by a clinician. The omitted subsection is split so that new subsection 33(5) provides that subsection 33(4) does not apply if the Tribunal considers that access to the report may cause harm to the person at risk or put the safety of others at risk.

Clause 21.	Section 34 amended

This clause amends section 34 so that a clinician must attend a hearing only if the person at risk has been assessed. The clause also clarifies that despite the requirement for attendance of the person at risk or voluntary applicant at the hearing that the Tribunal may decide to conduct the hearing in the absence of that person. An order may be made in the persons absence pursuant to section 59(3) of the Act.

Clause 22.	Section 35 amended

This clause amends section 35 to include what the Tribunal must have regard to when considering whether to make a BADT order when a banned person has not been assessed by a clinician after a GAP order has been made.

Clause 23.	Section 36 amended

This clause amends section 36 by inserting a new subsection (7) which provides that if a BADT order includes a statement that the banned person is subject to income management then the Tribunal must give the Secretary (defined in section 4 of the Act as amended by clause 14) notice that the person is required to be subject to income management along with a copy of the BADT order.

Clause 24.	Section 43 amended

This clause amends section 43 by inserting a new subsection (6) to clarify that the Tribunal may decide to conduct the hearing in the absence of a person despite the attendance of that person being required. An order may be made in the persons absence pursuant to section 59(3) of the Act.

Clause 25.	Section 44 amended

This clause amends section 44 to provide review of a BADT order made for a banned person who did not attend assessment when on a GAP order but has now been assessed. The clause also amends the timeframe that an order for an assessment of a person who did not attend assessment when on a GAP order and a BADT order is made. 

The clause also amends section 44 to insert a new subsection (7) which requires that where a banned person is required to be subject to income management. The Secretary must also be given notice that the person is required to be subject to income management along with a copy of the BADT order. New subsection (8) provides that if the BADT order is varied or no longer required (and is revoked) then the Tribunal must notify the Secretary of this and provide a copy of the BADT order.

Clause 26.	Section 45 amended

This clause provides that the Tribunal is not required to give the Secretary an information notice.

Clause 27.	Part 3, Division 5 inserted

This clause inserts a new Division in Part 3 of the Act.

Division 5 provides for notices relating to income management.

Section 45A sets out when the Division applies. The Division applies if a BADT order includes a statement that the banned person is required to be subject to income management.

Section 45B defines who is an eligible welfare payment recipient pursuant to the Commonwealth Social Security Administration Act (defined in section 4 as amended by clause 14).

Section 45C sets out what information is required in a notice requiring the person to be subject to income management. The notice must be in a form approved by the Chief Executive Officer and include the banned person’s name and other information as specified in the form.

Section 45D sets out what information is required if income management is revoked. It must be in a form approved by the Chief Executive Officer and include the name of the person and why they are no longer required to be subject to income management.

Clause 28.	Division 57 amended

This clause amends section 57 by clarifying which forms the Chair of the Alcohol and Drug Tribunal does not approve.

Clause 29.	Section 72 amended

This clause repeals section 72 and replaces it so that the prohibition on supply of alcohol to a banned person by an individual who knows the person is banned applies to all prohibitions mentioned in section 31A(2) of the Liquor Act. This therefore includes orders made by the court such as bail and sentencing orders.

A contravention of section 72(1) is not an offence, however if a police officer reasonably believes that a contravention of section 72(1) has occurred then they must give a BAT notice under section 9(2)(b)(iii). 

Part 5 	Amendment of Summary Offences Act

Clause 30.	Act amended

This clause provides that this Part amends the Summary Offences Act.

Clause 31.	Part VIA repealed

This clause repeals Part VIA of the Summary Offences Act, which is now provided for in clause 7 which inserts new Part VIIIB into the Liquor Act.

Part 6	Amendment of Summary Offences Regulations

Clause 32.	Regulations amended

This clause provides that this Part amends the Summary Offences Regulations.

Clause 33.	Regulation 3 amended

This clause omits the reference to section 45EA in Regulation 3 which fell within repealed Part VIA of the Summary Offences Act.

Clause 34.	Regulation 8 repealed

This clause repeals Regulation 8 which provided for the form in section 45G of repealed Part VIA of the Summary Offences Act.

Clause 35.	Schedule repealed

This clause repeals the Schedule which set out the form referred to in Regulation 8 repealed in clause 35 above.
 
Schedule 	Liquor Act further amended

This schedule makes a statute law revision and consequential amendments to section 31A(2), the heading of Part IX, the heading of Part IX Divisions 1 and 2 and to section 120F(3).