Liquor Control Reform Amendment (Enforcement) Bill 2008

Liquor Control Reform Amendment (Enforcement) Bill 2008

Introduction Print

EXPLANATORY MEMORANDUM

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BILL LA INTRODUCTION 3/12/2008

General

The Bill will amend the Liquor Control Reform Act 1998 to strengthen enforcement powers and to make other miscellaneous amendments to improve the operation of the Act. The Bill makes provision for the appointment of compliance inspectors, who are a new class of authorised person with investigatory and enforcement functions under the Act. Theseprovisions support a new liquor compliance directorate within the Department of Justice that will perform enforcement functions in conjunction with the Director of Liquor Licensing and Victoria Police.

Clause Notes

Clause 1sets out the purposes of the Bill, which are to amend the Liquor Control Reform Act 1998 (the Act) to—

• strengthen enforcement powers under the Act;

• clarify the power of the Director of Liquor Licensing (the Director) to impose licence conditions in relation to security cameras; and
• require associates of licensees to be declared; and

• make other miscellaneous amendments to the Act.

Clause 2provides for the commencement of the Bill. Each provision of the Bill comes into operation on a day or days to be proclaimed, but must commence by 1 January 2010.

The default commencement date of 1 January 2010 is provided to ensure that there is a sufficient amount of time available for the implementation of the new provisions of the Act. The period will be less than 12 months from the date that the Bill receives Royal Assent.

Clause 3provides that in this Bill the Liquor Control Reform Act 1998 is referred to as the Principal Act.

Clause 4inserts six new definitions into section 3, the definitions section, of the Act. Subclause (1) inserts four of the new definitions and subclause (2) inserts two specific definitions in relation to certain categories of post school education and training bodies.

A new definition of Australian lawyer is inserted into the Act for the purposes of enabling the new compliance inspectors to be represented by an Australian lawyer in any proceedings under the Act or the regulations. The term Australian lawyer has the same meaning as in the Legal Profession Act 2004. Under the Legal Profession Act 2004, an Australian lawyer is a person who is admitted to the legal profession under the Legal Profession Act 2004 or a corresponding law. Under clause 26 of the Bill (newsection 172D(2) of the Act), compliance inspectors may bring proceedings for offences against the Act or the regulations with the prior approval of the Director and may appear in proceedings personally or by an Australian lawyer.

A new definition of authorised person is inserted into section 3 of the Act to provide that, for the purposes of Division 3 of Part 8 of the Act, an authorised person means the Director, a compliance inspector or a member of the police force. Division 3 of Part 8 of the Act sets out the investigatory powers under the Act.

A new definition of compliance inspector is inserted into section3 of the Act. A compliance inspector is a person appointed as such under new section 172A of the Act which is inserted into the Act by clause 26 of the Bill.

Secretary is defined as meaning the Secretary to the Department of Justice. Clause 26 of the Bill inserts new Division 5 into Part9 of the Act in relation to the appointment and probity checking of compliance inspectors, the requirement that compliance inspectors must possess identity cards to perform their functions and their general functions. As the Secretary to the Department of Justice is given certain powers in relation to the appointment of compliance inspectors, including conducting probity checks, it is necessary to define the term Secretary for the purposes of the Act. In addition, the Secretary will be required, under clause 24 of the Bill, (which inserts new section 156A into the Act) to ensure that the Director is provided with assistance as reasonably required.

Subclause (2) inserts two new definitions into section 3 of the Act. Both TAFE institute and university are defined as having the same meaning as in the Education and Training Reform Act 2006. A TAFE institute is an institute created under section3.1.11 of the Education and Training Reform Act 2006 whilst a university is defined in the Education and Training Reform Act 2006 as a University established by an Act of the Parliament of Victoria or the Australian Catholic University Limited.

The definitions are inserted into the Act in relation to the approval of a director of a body corporate under clause 7 of the Bill (substituted section 18(2)(a)(ii) of the Act) and clause 15 of the Bill (substituted section 103(3)(a)(ii) of the Act) and in relation to an application for a licence or BYO permit under clause 9 of the Bill (new sections 28(4) and 32(2)(ab) and 32(4) of the Act). As the terms TAFE institute and university will now appear in four separate provisions of the Act, it is appropriate to define those terms in the definitions section of the Act rather than defining the terms on each occasion that they will appear in the Act.

Clause 5inserts "the Director" and "a compliance inspector" into section6(j) of the Act so that the Act does not apply to the Director or a compliance inspector selling at auction any liquor that is taken in execution of or under any warrant of distress or that is forfeited. Section 6(j) already exempts certain persons from the application of the Act when such persons sell liquor at auction. Those persons are the Assistant Director, Asset Confiscation Operations in the Enforcement Management Division of the Department of Justice, the sheriff or a person authorised by the sheriff, a bailiff and a member of the police force.

The Bill supports the establishment of a new civilian compliance directorate comprised of compliance inspectors who will be appointed by the Secretary to the Department of Justice. Compliance inspectors will undertake investigatory and enforcement functions under the Act, in addition to the Director and members of the police force.

Clause 20 of the Bill amends section 131 of the Act to enable a compliance inspector, in addition to a member of the police force, to seize liquor in certain circumstances. It is an offence under the Act for a person who is not a licensee to sell liquor or to offer liquor for sale. As compliance inspectors will be able to seize liquor, it is necessary to include the Director and compliance inspectors in section 6(j) of the Act to ensure that they can sell liquor at auction without this action amounting to an offence.

Clause 6inserts "a compliance inspector" into section 10(4)(c) of the Act to provide that a club licence is subject to the condition that a compliance inspector, in addition to a licensing inspector, an authorised member of the police force, the Director and a person authorised by the Director, can, at any time, inspect a club licence.

Club licences are also subject to conditions, under section 10(4)(b) of the Act, to keep a members register containing the names and addresses of club members and their membership subscription particulars and a register of authorised gaming visitors, in the case of a club that has a venue operator's licence in force. Compliance inspectors will be able to inspect club registers, as applicable.

Clause 7substitutes "a university or a TAFE institute" for "a university or a TAFE institute within the meaning of the Education and Training Reform Act 2006" in section18(2)(a)(ii) of the Act. The amendment is required as a consequence of the new definitions of TAFE institute and university, which are inserted into section 3 of the Act by clause 4 of the Bill.

This amendment does not make any change to the operation of section 18(2)(a). A body corporate that holds a club licence or a body corporate that is a Council, a TAFE institute or a university, will continue to be exempt from the licence or BYO permit condition that requires all other bodies corporate to obtain the Director's approval before a person is appointed, or otherwise becomes, the director of that body corporate.

Clause 8substitutes a new section 18B for existing section 18B of the Act in relation to security camera licence conditions. New section 18B(1) provides that the Director may impose a licence condition on a licensee that requires them to fit security cameras on the licensed premises, authorised premises, or any other premises, land, fixtures or objects that are under the control of the licensee. Any security camera that is to be fitted in accordance with a licence condition must comply with any standards that are prescribed in regulations made under the Act.

New section 18B(2) allows for the regulations to prescribe standards relating to the quality and operation of security cameras for the purposes of a licence condition that requires such cameras to be fitted under section 18B(1). The new provisions mirror existing section 18B, in providing that any cameras that are required to be fitted by a licensee must comply with the regulations, if any. Regulations have recently been made under section 18B of the Act. The Liquor Control Reform Amendment Regulations 2008 amended the Liquor Control Reform Regulations 1999 to establish minimum standards for surveillance equipment in high-risk licensed premises.

New section 18B differs from existing section 18B by extending the Director's power to make licence conditions requiring security cameras to be fitted to authorised premises, other premises, land, fixtures or objects, rather than just the licensed premise itself, provided that such other premises, land, fixtures or objects are under the control of the licensee.

Authorised premises is defined in section 3 of the Act as being premises referred to in section 9(1)(b). Section 9(1)(b), in relation to an on-premises licence, enables the Director to authorise a licensee to supply of 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.

The intention of the amendment is to improve security around licensed premises. For example, the amendment will allow the Director to require cameras to be fitted on an object such as a pole that is under the licensees control and which is situated in the car park of a licensed premise.

Clause 9amends sections 28 and 32 of the Act in relation to the provision of information about the associates of the director's of a body corporate that is an applicant for a licence or a BYO permit or for a transfer of a licence or a BYO permit. The intention of these amendments is to extend the capacity of the Director to conduct appropriate probity checks on body corporate applicants.

Subclause (1) substitutes new section 28(1)(aa) for the existing provision, to require an application for a licence or a BYO permit to list the names, dates of birth and addresses of the associates of the applicant and, if the applicant is a body corporate, the associates of each director of the applicant. Existing section 28(1)(aa) already requires an application for a licence or a BYO permit to list the details of the applicants' associates but does not require the detail of associates of each director of a body corporate applicant to be provided.

Subclause (2) inserts new subsection (4) into section 28 of the Act to provide that substituted section 28(1)(aa)(ii) does not apply to a licence or BYO permit application that is made by a body corporate that is a Council, a university or a TAFE institute. A Council, a university or a TAFE institute that is a body corporate will continue to be required to list the names, dates of birth and addresses of its associates under substituted section 28(1)(aa)(i). The new requirement, under section 28(1)(aa)(ii), that a body corporate applicant must list the details of the associates of each its director's will not, however, apply to these particular entities.

Subclauses (3) and (4) will have essentially the same effect as subclauses (1) and (2), regarding the associates of a director of a body corporate, excluding Councils, universities and TAFE Institutes, in relation to applications for the transfer of a licence or a BYO permit.

Subclause (3) inserts new subsection (2)(ab) into section 32 of the Act to require an application for the transfer of a licence or a BYO permit to list the names, dates of birth and addresses of the associates of the applicant and, if the applicant is a body corporate, the associates of each director of the applicant. TheAct does not currently include any requirement that an application for a licence or a BYO permit transfer must provide details of associates.

Subclause (4) inserts new subsection (4) into section 32 of the Act to provide that new section 32(2)(ab)(ii) does not apply to an application for the transfer of a licence or a BYO permit that is made by a body corporate that is a Council, a university or a TAFE institute. Accordingly, a Council, a university or a TAFE institute that is a body corporate will only be required, under new section 32(2)(ab)(i), to list the names, dates of birth and addresses of its associates and not those of each of its directors.

Clause 10inserts new subsection (e) into section 66 of the Act to include the circumstance of a licensee or a permitee that is a body corporate being wound up or deregistered under the Corporations Act as a circumstance that will cause a licence or a BYO permit to cease to have force after 90 days after the winding-up or deregistration occurs.

Section 66 of the Act already provides for the cessation of effect of a licence or a BYO permit in the event that the licensee or permittee dies, becomes an insolvent under administration, becomes a represented person within the meaning of the Guardianship and Administration Act 1986 or becomes an externally-administered body corporate within the meaning of the Corporations Act.

The amendment will ensure that licences and BYO permits do not unnecessarily continue to have effect where the licensee or permittee is wound-up or is deregistered.

Clause 11repeals section 96A(1)(b) of the Act to remove the requirement that a senior police member must believe, on reasonable grounds, that a licensee will continue to engage in conduct that would constitute grounds for an application to the Victorian Civil and Administrative Tribunal for an inquiry into the licensee under section 90 of the Act before the senior police member may suspend the licensees' licence for a period not exceeding 24hours.

Section 96A empowers a senior police member to suspend a licensees' licence for up to 24 hours in certain circumstances. Asenior police member is defined in section 96A(3) as the Chief Commissioner, a Deputy Commissioner of Police or an Assistant Commissioner of Police.

Section 96A(1) of the Act currently requires a senior police member to believe on reasonable grounds that—

• the licensee has engaged in conduct that would constitute grounds for an application to the Victorian Civil and Administrative Tribunal, under section 90 of the Act, foran inquiry into the licensee; and

• it is likely that the licensee will continue to engage in that conduct; and

• there is a danger that a person may suffer substantial harm, loss or damage as a result of the licensee's conduct unless the licence is suspended.

The Bill does not affect the requirements of 96A(1)(a) and (c). Accordingly a senior police member will still need to believe on reasonable grounds that those elements have been satisfied before the member can issue a notice suspending a licensee's licence for up to 24 hours. The Bill repeals the requirement of a belief that the licensee will continue to engage in the conduct as this element has been identified as being difficult to satisfy, especially where a licensee simply states that they will cease that conduct.

Clause 12inserts new section 96B into the Act to provide the Director with a new power to suspend a licensee's licence in certain circumstances.

New section 96B(1) allows the Director, subject to the requirements of new section 96B(2), to suspend a licensee's licence, by notice in writing, for a period that must not exceed five days. The Director may only suspend a licence under this new power if the Director believes on reasonable grounds that—

• the licensee has engaged in conduct that would constitute grounds for an application to the Victorian Civil and Administrative Tribunal, under section 90 of the Act, foran inquiry into the licensee; and

• unless the licence is suspended, there is a danger that a person may suffer substantial harm, loss or damage as a result of the licensee's conduct.

The requirements contained in new section 96B(1) will be identical to the requirements of section 96A, the power of a senior police member to suspend a licensee's licence for up to 24hours, as that section will appear following the commencement of the repeal amendment in clause 11 of the Bill.

New section 96B(2) precludes the Director from suspending a licensee's licence under new section 96B(1) until the Director has taken certain steps. Before suspending a licensee's licence, the Director is required to serve a notice in writing, at least 48 hours before the suspension, setting out the following information—

• the conduct that the Director believes the licensee has engaged in and the grounds for the Director's belief; and

• a time period within which the licensee must respond to the notice; and

• a statement that the Director intends to suspend the licensee's licence unless the Director is satisfied with the response provided by the licensee.

The time period which the Director must give the licensee for the purposes of the licensee providing a response to the notice must be not less than 48 hours after the service of the notice on the licensee.

The Director cannot suspend a licensee's licence unless, having served the notice as required, the Director has then considered any response that is given by the licensee within the time period which the Director has allowed for, and which was stated in the notice, being not less than 48 hours from the service of the notice.

New section 96B(3) clarifies when a notice of suspension of a licence takes effect and when it ceases to have effect. Asuspension of a licence under new section 96B(1) takes effect when the notice of the suspension is given to the licensee or at any later time that the Director specifies in the notice of suspension. A suspension ceases to have effect at the time that is specified in the notice of the suspension.

New section 96B(4) provides that a licence can be suspended by the Director under these new provisions regardless of whether or not certain other steps have been taken under the Act. A licence may be suspended under these new provisions whether or not an application has been made to the Victorian Civil and Administrative Tribunal under section 90, 94 or 95 of the Act or the Director has served a breach notice on the licensee under section 97A of the Act.