Liquor Control Reform (Underage Drinking and Enhanced Enforcement) Bill

Introduction Print

EXPLANATORY MEMORANDUM

General This Bill amends the Liquor Control Reform Act 1998 to make various changes concerning underage drinking; enhance the enforcement powers of members of the police force under the Act; increase the penalties that apply to a number of the offences under the Act and to widen the categories of infringement notice offences; and to make a number of technical changes to improve the operation of the Act. The Bill also amends the Business Licensing Authority Act 1998 to make minor changes to the constitution and operation of the Business Licensing Authority.

Clause Notes

PART 1—PRELIMINARY MATTERS

Clause 1 sets out the purposes of the Bill.

Clause 2 provides for the commencement of the Bill. Part 3 and section 37 come into operation on a day or days to be proclaimed. The rest of the Bill comes into operation on the day after the day the Bill receives the Royal Assent.

PART 2― AMENDMENTS TO THE LIQUOR CONTROL REFORM ACT 1998

Clause 3 sets out definitions for the purposes of the Bill. The clause inserts definitions of "guardian" and "responsible adult".

Clause 4 amends sections 120(1)(b)(i) and 123(1)(c)(v) of the Act to provide that a minor may be present on licensed premises if he or she is in the company of a responsible adult. It also provides that the test to be used when there is an issue about whether a person is a responsible adult is whether a reasonable person would be

551178 1 BILL LA INTRODUCTION 12/10/2004 justified in assuming that the accompanying person was a responsible adult.

Clause 5 amends section 22(1) of the Act to insert an additional category of premises that must not be licensed. They are premises that, in the opinion of the Director of Liquor Licensing, are intended by the occupier of the premises to be primarily used by people under the age of 18 years.

Clause 6 amends sections 119(5)(d), 120(2) and 123(2)(d) of the Act to clarify that the offences relating to minors being present on licensed premises do not apply where minors are employed to deliver packaged liquor to people over the age of 18 for consumption off the licensed premises and where they are on the premises by reason of that employment.

Clause 7 substitutes a new section 125 of the Act to insert 2 new offences relating to falsely procuring a proof of age card. Sub-section (1) makes it an offence for a person to supply false material with their application for the card. Sub-section (2) makes it an offence for another person to knowingly supply false material to an applicant for a proof of age card to use in support of the application.

Clause 8 amends section 128 of the Act to provide that the Court has a power to order forfeiture or destruction of liquor seized from minors where there has been a successful prosecution under the section.

Clause 9 sets out definitions of "associate", "convenience store", "domestic partner", "food court", "spouse" and "vending machine" and amends the definition of "guest" in section 3(1) of the Act.

Clause 10 inserts section 3B into the Act. This section clarifies where the supply of liquor occurs where the person asking for the liquor is not on the licensed premises at the time of the request.

Clause 11 amends section 5 of the Act to establish a new body called the Liquor Control Advisory Council to advise the Minister on problems of alcohol abuse and on any other matters referred to it by the Minister. The Co-ordinating Council established under the Act before the commencement of this section is abolished and the members of that Council cease to hold office.

Clause 12 amends section 9(1) of the Act to clarify that an on-premises licence authorises the licensee, if specifically authorised by the Director, to supply liquor in an open container for consumption in a food court.

2 Clause 13 amends section 12(1) of the Act to clarify to whom a licensee with a pre-retail licence can supply liquor.

Clause 14 inserts a new section 25A which provides that the Director's consent to allow a licensee to supply liquor by vending machine is subject to the approval of the Minister.

Clause 15 amends section 28 the Act to specify that an applicant for a licence must provide the details of the applicant's associates on the application. It also amends sections 29, 31 and 32 to provide that an applicant for a variation, transfer or relocation of a licence must provide a plan or depiction of the licensed premises with the application.

Clause 16 amends section 30 of the Act to provide that the Director must give a copy of an application by the Chief Commissioner or a licensing inspector for the variation of a licence to the licensee or permittee and to the owner and any mortgagee of the licensed premises registered with the Director. It also provides that the licensee or permittee may object to the application within 21 days after receiving a copy of the application.

Clause 17 amends section 34 of the Act to provide that the requirement to publicly display an application for the grant, variation or relocation of a licence does not apply to applications by the Chief Commissioner or licensing inspector under section 29(1)(b) for a variation of a licence.

Clause 18 amends sections 54, 80, 81, 104, 105, 106, 120 and 176 to provide that the applications or requests referred to in those provisions are to be accompanied by the fee specified in the regulations.

Clause 19 amends section 54 to clarify when a person becomes a nominee and when a person ceases to be a nominee. It also provides that the licensee or permittee must notify the Director when a person ceases to be a nominee.

Clause 20 inserts a new section 58A which provides that the Director may, at any time, vary a licence to correct various mistakes or errors.

Clause 21 amends section 88 of the Act to provide that the Chief Commissioner may apply to VCAT for a review of the Director's decision to grant or approve an application under sections 54, 62, 83 or 104 where the Chief Commissioner had lodged an objection to the application. A person who has objected to the giving of consent under sections 105 or 106 may also apply to VCAT for a review of the Director's decision to give that consent.

3 Clause 22 amends section 90(1) to expand the grounds for which an application may be made to VCAT for an inquiry into the licensee or permittee. The grounds include altering the licensed premises in a way which would have prevented the granting of a licence under section 22 had the alterations been in place at the time of the application for the licence.

Clause 23 amends section 91(1)(b)(iv) to increase the maximum fine that VCAT may impose upon a licensee or permittee and also amends a number of sections to increase the penalties applicable to various offences under the Act.

Clause 24 amends section 100 to provide that a licensee must produce the residents' register for inspection if asked to do so by a member of the police force.

Clause 25 inserts a new section 101A which provides that the Director may, at any time, require a licensee or permittee to provide a current plan or depiction of the licensed premises and that the Director may certify that the plan is in the required form. It also inserts new section 101B which provides that a licensee or permittee must keep a copy of the plan provided with applications or a plan certified under section 101A on the premises. The licensee or permittee must produce the plan of the licensed premises for inspection if asked to do so by a member of the police force.

Clause 26 inserts a new section 103A which provides that a licensee must notify the Director of a change in his, her or its associates within 14 days of the change.

Clause 27 makes a minor amendment to section 105(1) to insert a word that was inadvertently left out of that section.

Clause 28 inserts a new section 106A which applies to a lessee or assignee of licensed premises who has consent under section 105 or a person who has consent under section 106 to carry on the business of supplying liquor on a licensed premises. This section provides that the lessee, assignee or the person carrying on the business is liable for offences under the Act as if he or she were the licensee or permittee. The section also provides that if that person is a body corporate, its directors are severally liable for acts or omissions as if they were the licensee or permittee. This section does not affect or reduce the liability of the licensee or permittee.

Clause 29 inserts new sections 108A and 108B. Section 108A provides that if it is a condition of a licence or permit that a licensee or permittee or a person acting on their behalf complete a

4 responsible service of alcohol course, the licensee or permittee must produce for inspection at the request of a member of the police force evidence that the course has been completed. Section 108B provides that a licensee who is a body corporate must give a list of the names and addresses of its directors as at a specified date to a member of the police force within 48 hours of a request. A licensee who is a club must give a list of the names and addresses of the members of its committee of management as at a specified date to a member of the police force within 48 hours of a request.

Clause 30 inserts a new section 109A which provides that a person must not sell liquor through a vending machine unless the Director has authorised it under the licence; the vending machine is on licensed premises and the person complies with any conditions specified by the Director in the licence concerning the use of the vending machine.

Clause 31 repeals sections 126(2) and 126(3), which have become redundant since the introduction of the proof of age card.

Clause 32 amends section 130(1) to clarify that the power to seek a warrant to enter and search premises applies to premises which are required under the Act to hold a liquor licence in order to supply liquor. This would not apply to private residences which are not required to hold a licence. The section also provides that the power to take possession of any document relating to the supply of liquor applies to these types of premises. The section also provides that the person exercising the powers is to bring any thing that was seized before the Court as soon as is practicable to enable the thing to be dealt with according to law.

Clause 33 inserts new section 130A which provides that where a search warrant is being executed, the member of the police force must identify himself or herself if not in uniform and must give the occupier a copy of the warrant.

Clause 34 amends section 133 of the Act to provide that where a search warrant is being executed under section 133 an authorised person who is not a member of the police force must produce evidence of their authority to act and a member of the police force must produce his or her identification if not in uniform. It is not an offence under sub-section (2) if the person was not warned by the authorised person that the act or omission constitutes an offence. The clause also adds the Chief Commissioner and licensing inspectors to the list of who is authorised to exercise search and seizure powers under section 133.

5 Clause 35 inserts new sections 133A to 133E which set out the requirements that an authorised person must comply with when executing a seizure warrant under section 130, or when exercising the search and seizure powers conferred by section 133. These include giving copies of seized documents to the owner or custodian of the document under section 133B and allowing the owner or custodian reasonable access to seized documents under section 133C. Sections 133D and 133E provide that an authorised person may use necessary electronic equipment to examine or process documents found at the premises, and may operate electronic equipment already at the premises, or may require the owner or an employee to operate the equipment in order to access information. The authorised person may also take documents to another place so that examination or processing can be carried out.

Clause 36 amends section 141(2) to insert additional offences under the Act which can be enforced by way of an infringement notice.

Clause 37 amends Schedule 3 of the Act to allow voting in Dry area polls to be conducted by way of postal voting. The applicants for the licence are liable for the reasonable expenses incurred by the Electoral Commissioner in conducting a vote.

PART 3― AMENDMENTS TO THE BUSINESS LICENSING AUTHORITY ACT 1998

Clause 38 amends section 5 of the Business Licensing Authority Act 1998 to provide that the Authority is constituted by a Chairperson, Deputy Chairperson, the Director of Liquor Licensing and any other person appointed by the Governor in Council.

Clause 39 amends clauses 4 and 5 in the Schedule to the Business Licensing Authority Act 1998 to provide that when the office of Chairperson of the Authority is vacant or the Chairperson is absent from Victoria or unable to act, the Deputy Chairperson must act as Chairperson. The Minister may appoint a member of the Authority to act as Deputy Chairperson during a vacancy in the office of Deputy Chairperson or during any period that the Deputy Chairperson is acting in the position of Chairperson. Clause 6 of the Schedule is also amended to provide that an act or decision of the Authority is not invalid only by reason of a vacancy in the membership of the Authority or because of a defect or irregularity in appointments of members or acting members.