Small Business

Liquor Licensing (Miscellaneous) Amendment Bill

Bills, In Parliament, Speeches

Second Reading 
Adjourned debate on second reading. 
(Continued from 12 September 2019.) 

The Hon. K.J. MAHER (Leader of the Opposition) (15:29): I rise today to speak briefly on the Liquor Licensing (Miscellaneous) Amendment Bill 2019. I indicate that I am the lead speaker for this bill and that Labor broadly supports this legislation, but we reserve our final position on this bill subject to answers we receive during the committee stage. I would like to thank the staff at the Attorney-General’s Department for the briefing provided on this bill. 

As we are wont to do, I will be putting on record some of the problems we have with this bill and asking for confirmation of advice we have received. The bill before us amends the Liquor Licensing Act 1997, making mostly technical changes and also a few more substantive changes. For the most part, it is just tinkering, which is the wont of the Attorney-General: very little substance and major tinkering. It is a grave pity that this state does not have a solid Attorney-General, and there are some in the parliament who would make a great Attorney-General. 

We know that this Liberal government is no friend of a vibrant Adelaide, of small bars, of hotels and of a vibrant cultural scheme. Premier Steven Marshall, Attorney-General Vickie Chapman and Treasurer Rob Lucas have presided over the introduction of a huge, massive hike in liquor licensing fees, particularly to small venues. This massive hike has been described by some in the industry as a sixfold increase and a de facto lockout law to shut down fun in Adelaide. The bill does absolutely nothing to resolve many of these concerns. 

As I flagged earlier, we are broadly supportive of this bill, but we do require some answers to questions raised with the Attorney-General’s Department and the Attorney-General in the other place. In particular, we still have concerns about clause 12, which provides that annual fees can be charged for short-term licences. My colleague the member for Kaurna in the other place asked the Attorney-General what that fee would be, whether there had been any consultation and whether community events could end up paying more for their licence. The Attorney-General was unable to answer these questions, relying on the fact that the fees would be set by regulation. 

I think that members of the Legislative Council deserve to know what the fee structure will be before we pass these laws and make a decision on whether to support the bill. I am sure that crossbenchers would appreciate knowing what the fee structure will be before this bill is supported. Unlike other bills, where the Treasurer claims he is not a lawyer and is not sure about how legislation works, this question should be easy for him to answer as it involves yet another new tax and massive increase in fees on this state. 

Concerns have also been raised about clause 23, which relates to the display of liquor licences on licensed premises, including allowing a display on an electronic screen or device. In particular, questions that need answering are: how would a digital form of licence be displayed? Does it have to be static, or could the licence roll through and be one of many different images? The Attorney-General said she would provide some advice on this matter but as yet we have not seen this advice. 

We have also received conflicting advice about clause 4, which introduces a power for the commissioner to vary or revoke licence conditions. In the briefing we had with the Attorney-General’s Department, we were advised that power does not currently exist; however, the Attorney-General in the other place advised that the absence of that power was not entirely clear. It would be appreciated if the Treasurer, representing the Attorney-General, could clarify that particular matter. With those few words, I once again indicate Labor’s general support, but reserve our position subject to adequate answers to the questions put forward. 

The Hon. T.A. FRANKS (15:33): I rise on behalf of the Greens to speak to the Liquor Licensing (Miscellaneous) Amendment Bill 2019. I know that this bill gives the commissioner and the court the power to vary or revoke an exemption that has been granted previously, but not statutory exemptions conferred by the Liquor Licensing Act itself. It provides for fines and expiation fees for breaches of codes of conduct. It allows for a streamlined process for interstate licensed liquor retailers to obtain a licence in this state, modelled on existing provisions in the Northern Territory’s act. 

It also includes recommendations from the review that had been previously omitted. It clarifies the ability to impose annual fees for short-term licences and gives the Liquor and Gambling Commissioner the power to refuse a name change for licensed premises, for example, if the name is either misleading or offensive. 

It requires a licensee to inform the commissioner of any changes to their contact details and it gives the commissioner and the Licensing Court the ability to exempt a licensee from a mandatory condition or rule that applies to a licence, except for conditions imposed under section 42. It also introduces fines and expiation fees for breaches of a direct sales licensee’s obligations to indicate their licence number in any advertising and their obligation to require the prospective purchaser to notify the licensee of their date of birth. 

It clarifies provisions regarding the display of the copies of liquor licences on licensed premises, particularly in this modern world, and enables records of liquor transactions to be kept out of the state, for example, on servers located interstate—again, reflective of this modern world. 

I thank the government for the briefing that we received on 4 September this year. We understand that, while we have not received submissions directly on this bill, although I have received some correspondence from the AHA which I will shortly come to, the government has consulted and received feedback from the AHA, SAPOL, SA Wine Industry Association, Restaurant and Catering Association, and Retail Drinks Australia. At the time of the briefing, there was no Law Society advice, although we will certainly check that, but we ask the government if that is yet to come forward. We are also interested if Clubs SA, Independent Retailers Association or Food SA have any contribution to make. 

I echo some of the sentiment of the previous speaker in terms of the opposition’s concerns, particularly about the new fees that will impact some quite small licensees for the believed risk that is associated with, not how they operate, not how many people are endangered on their premises, but simply for the time frame in which they are open. I will come to that further, but for the moment today I would like to draw the attention of the council in this debate to the behaviour of SAPOL in regard to licensing enforcement of liquor licensing in this state. 

In particular, there have been court proceedings with regard to the Kincraig Hotel. I note that these are public documents, although they have been raised with me by the AHA, and I thank them for providing me with the document which I will now draw detail from. In relation to this court case, in 2013 the Kincraig Hotel was the subject of action initiated through the Licensing Enforcement Branch’s covert operation within the hotel. 

That culminated with the camera recorder that was positioned on a table in the northern part of area 5, facing south in that particular bar, seeing male A returning to the undercover police officer’s table and talking to another police officer. In that, a young male wearing a Santa hat, so it was just before Christmas, buys male A one can of Bundaberg rum. He was served by the on duty responsible person working behind the bar. The responsible person could clearly see the younger male pass the can on to male A. Male A is clearly intoxicated. The responsible person in this particular situation was then prosecuted for serving somebody who was intoxicated. 

What is more interesting about this case is that, if one goes further forward in the evidence, the behaviour of the police—as I said, undercover, with a covert surveillance device, sitting in a bar, observing the pre-Christmas celebrations of some males—involves the police officers complaining that they could not see the cricket on the TV due to the antics of these blokes, and I quote from the affidavit. 

‘Get out of the way mate, can’t see the TV,’ says the police officer. Male B says, ‘He’s a legend, he’s gone till dark, you’re a legend, buddy’ (referring to Male A) ‘its 9 o’clock you’ve gone till its dark, haven’t put you in a taxi yet, haven’t put you in a taxi,’ to which the police officer interrupts, ‘[Guys] I can’t see the TV.’ 

Male A, the intoxicated person, approaches the police officer. The police officer says, ‘Hey mate, having a good night mate, what time did you get here mate?’ The intoxicated Male A says, ’12 o’clock.’ The police officer says, ‘Oh no.’ The intoxicated Male A says, ‘Today drinking alcohol,’ to which the police officer says, ‘You’ve been here all day?’ Male A replies, ‘Yeh.’ 

Police officer states, ‘What did you have, a Christmas show?’ Male A says, ‘Yes, where you from?’ Police officer answers, ‘Adelaide.’ Male A says, ‘Adelaide.’ Police officer says, ‘Yeh, just here for a weekend, have a look around.’ Male A says, ‘Very good.’ Police officer says, ‘Yeh, are you a local?’ Intoxicated Male A says, ‘Yes, yes, I drink a lot.’ Police officer says, ‘Have a good night. Don’t spill any.’ Intoxicated Male A says, ‘Have a great time.’ Police officer concludes with, ‘You too…’ Clearly, a very dangerous intoxicated person. 

The camera is then positioned, the affidavit goes on, to further observe the behaviour of this group of drunk revellers enjoying Christmas festivities. In no way do I condone intoxication to this level in a pub, but one would have to be very unobservant to think that this is not typical Christmas behaviour. I question why a police officer has been stationed with his colleagues for several hours observing a few drunk blokes in a pub, in Santa hats, getting increasingly drunk. 

However, here is where I really question the behaviour of the police. The camera recorder is then positioned on the table in the northern part of area 5, facing south. Male A, still sitting at the police officer’s table, is not speaking, only using hand gestures, wiggling fingers. The police officer tries to communicate with Male A, although he is not speaking. Male C walks up to Male A. The police officer says, ‘Get this bloke another drink?’ His mate, Male C, says, ‘Nah, [expletive] him, you buy him one.’ 

The police officer says, ‘I’ll give you money, you buy him one?’ to which Male C says, ‘Alright, rum or scotch?’, asking intoxicated Male A, ‘Rum?’ The police officer hands Male C a $10 note. Male C walks to the bar and is served one butcher glass of liquor. Male C returns to the police officer’s table and gives intoxicated Male A the glass of liquor. Male A, intoxicated, stands up for a brief moment and urinates in his own pants, then sits down, having had a sip of the liquor. 

I ask you, what on earth is LEB doing handing out $10 notes to the friends of intoxicated pub patrons to entrap bar staff? I will have many more questions to raise on this topic in the next sitting week of parliament, but for the moment I ask the government to provide the number of covert operations LEB has undertaken in the last five years broken down to indicate which of those relate to liquor licensing. 

I also ask the government to provide information on the times that LEB has used surveillance devices, and how many times these have been reported under the appropriate acts. I also ask the government to provide information—obviously via SAPOL—on how many times LEB has handed patrons $10 notes, $20 notes, $50 notes, to buy alcohol for intoxicated patrons in order to then prosecute bar staff in this state. With those particular comments, I seek leave to conclude my comments. 

Leave granted; debate adjourned. 

Second Reading 

Adjourned debate on second reading. 

(Continued from 26 September 2019.) 

The Hon. T.A. FRANKS (16:31): I rise very briefly to continue my remarks made previously in this place and to continue my speech on the Liquor Licensing (Miscellaneous) Amendment Bill 2019. I have raised already some questions on the practices of the Licensing Enforcement Branch on those premises which do enjoy a liquor licence. Additionally, I asked the government to provide some responses on a question relevant to clause 17, which section will enable the ability, where an annual fee is to be paid, for a change in the time frame with regard to the payment of that fee. If the government could provide some response as to why this change is necessary, that would be most appreciated, either at clause 1 or clause 17, depending on which way it would like to operate. 

My further point of interest is at clause 14, which provides that the Liquor and Gambling Commissioner can refuse a name change for a licensed premises. The advice that we are told in the briefings to this bill that have been provided to the Attorney-General and her department indicates that currently there is no power to refuse a name change, and it is clear that there would be circumstances under which a name change should be refused; for example, if that proposed name was offensive. 

In the other place it was raised as to whether examples could be provided. One example I will draw on that has been raised previously in this council would be that of the PiMP Pad, a gaming lounge for gamers to eat their nachos and drink their beer with other gamers, rather than in the privacy of their lounge rooms, isolated, but to share communally in premises that enjoyed a liquor licence. 

The PiMP Pad was at one stage on Franklin Street and eventually, due to council protestations, was required to change its signage to become known as The Pad and to place its door down the back alley rather than on the frontage of Franklin Street. Not long after that it went out of business. It is now replaced by something called Crack Kitchen. I do not know if it has a liquor licence, but certainly the large signage on the front of Franklin Street is now ‘Crack’ in a quite large tiled black and white facia. 

My question to the government is: could they please provide examples of where clause 14 has been found to be required by the commissioner to refuse naming or name changes of licensed premises? With those few words, I conclude my comments. 

The Hon. J.A. DARLEY (16:34): My contribution on this bill will be very brief. I understand the outcome of this bill will be predominantly administrative, and I do not have much to say about this. However, I want to put on the record the inordinate increase in liquor licence fees that licence holders have experienced from last year to this. When we were considering the changes to the liquor licensing laws under the former government, we were told explicitly that, whilst there would be increases in fees, they would not be significant. 

I have been contacted by licensees who are experiencing increases of 270 per cent from last year. This is not a cost that could have been anticipated and it is a significant impost to small businesses. I understand that this matter is not within the ambit of this bill, but nonetheless I want to take the opportunity to put this information on the record. The government really owes licensees and the community an explanation for why there has been such a dramatic increase in licence fees, especially when we were advised to the contrary. 

The Hon. R.I. LUCAS (Treasurer) (16:36): I thank honourable members for their contributions to the second reading and look forward to the committee stage of the debate. 

Bill read a second time. 

Committee Stage 

In committee. 

Clause 1. 

The Hon. T.A. FRANKS: I had several questions, not only today but in my previous contribution, that I put on record, and that I asked the government to provide answers to. 

The Hon. R.I. LUCAS: I can share some information, if the honourable member wants to indicate whether that actually answers her question or not. If not, she obviously can ask further questions. I am advised that the bill makes an amendment to section 50A of the Liquor Licensing Act. This is the provision that relates to the obligation to pay annual fees and contains complex escalating sanctions for non-payment, including first suspension of the licence under section 50A(5) and then revocation under section 50A(5b). 

When the remainder of the liquor review act commences on 18 November 2019, section 50A(5b) will have the effect that if a person does not comply with a default notice to pay an annual licence fee before the day it is due to be paid, the commissioner may revoke the licence. The bill will change that time frame to non-payment within 60 days of the service of a notice of suspension under section 50A(5a). This change is sought to ensure that any overdue and outstanding invoices are dealt with prior to the ensuing annual fee period, including the revocation of any licences. 

The Hon. T.A. FRANKS: I commend the minister for being able to answer my questions from today so far, although we can deal with clause 14 at clause 14. However, I refer to my questions from 26 September with regard to the LEB covert operations, surveillance of licensed premises and the lawful reporting as required of those. 

The Hon. R.I. LUCAS: In relation to the honourable member’s question about the number of covert operations that have been undertaken over the last five years, the advice I am provided with is that that really has nothing to do with this particular bill. It may well be of interest to the honourable member. It may well be the subject of a question we might direct to the appropriate minister in question time or something, but it is actually not covered by this particular piece of legislation. 

Similarly, with regard to the honourable member’s question about how many times the LEB has used surveillance devices and how many times these have been reported under the appropriate acts, again, I am advised that this legislation does not cover those particular provisions from which those acts, if I can refer to it that way, may or may not have occurred. Again, if the honourable member has an interest, as obviously she does, in relation to those, they can be directed by way of question to the appropriate minister in question time or by way of correspondence with the appropriate minister, but my advice is that (a) I do not have the answers to those questions, on the basis that they do not relate to this particular bill. 

The Hon. T.A. FRANKS: That is quite disappointing in terms of this bill is with regard to liquor licensing. The policing of liquor licensing, I would have thought, is quite appropriate to be considered as we consider reforms to licensing laws in this state. I will leave it for the moment. It would have been appreciated had the advisers in their response provided that information that they were not going to provide a response. It will be unusual, I would say, for questions relating to the general workings of legislation to be refused, as they are being today, but I will not hold up the debate for the moment. 

However, I will echo my previous words made in September, that we are dealing here with a piece of liquor licensing legislation reform, but the policing of this legislation, I believe, has some serious questions to answer with regard to the very staff that are employed who have to abide by this act, and how SAPOL enforces the very laws that we are currently discussing. 

If you do not want to wait until clause 14, let’s have some of those titles of licensed premises that the commissioner has found unacceptable and that we need to change the law for today to rule out from potential licensees calling their bars or pubs or clubs or licensed cafes. 

The Hon. R.I. LUCAS: My advice on this is that a previous bill this parliament supported, possibly in 2017, removed the requirement for licensees to apply to and seek approval from the commissioner for the names of their premises. Under the old arrangements you had to apply, therefore there was a capacity for the commissioner to refuse. Under a previous bill, which I presume we all supported—I cannot remember it—that approval was changed to just a notification, in the interests of reducing red tape. Someone would just notify the commissioner that they were changing their name, and so there was no approval process. That is the current situation. 

The current situation is that you just notify; you do not need to seek the approval of the commissioner in relation to it. The previous bill that we passed has not come into operation yet; it has been delayed. But if it had, then the commissioner would not have had the authority to reject an application, which is what he used to have. 

This bill seeks to reinstate the reserved power that the commissioner had to reject a particular application. Under the old arrangements, prior to about 2017 or whenever we approved this change, the commissioner had a power to reject. That bill, which we supported, removed it. That bill has not been enacted. We are now seeking to give the commissioner the power that he previously had to reject an application in, I assume, limited circumstances. 

The Hon. T.A. FRANKS: What power of appeal do people have if their name application is rejected? 

The Hon. R.I. LUCAS: We are not in a position to indicate at this stage. We will have to take on notice what appeal rights exist now, if any, and whether any appeal rights existed under the old arrangements pre-2017. I do not know the answer to either of those two questions. It may well be that if there are no appeal rights under this—that is, that the commissioner’s decision is final—it may well have been under the old arrangements in 2017 that the commissioner’s decision was final at that stage. 

I am afraid we are not in a position to give the honourable member an answer. We can either take that on notice and have the Attorney-General write to the honourable member with an answer to that or, if this is an issue of some significance, we can delay the bill for a couple of weeks and not proceed with it. I am really in the hands of the honourable member as to what significance she places on this particular issue. 

The Hon. T.A. FRANKS: The minister need not worry that I will hold the bill up for those purposes. I am concerned that the government does not understand its own legislation and cannot provide answers and examples for why it is necessary. It seems likely to me that there is no right of appeal should the commissioner decide to deny your name. 

Going back to that previous example, the PiMP Pad was so-called because they also had a business called PiMP.tv, so PiMP Pad tied to their business of PiMP.tv. Once they had that word ‘pimp’, as in ‘pimp my ride’—as in make your lounge, your pad, a bit more special—and once they lost the right to that particular branding it actually destroyed the linkage between their gaming online business. So at the stroke of a pen a commissioner can do quite significant damage to a business with what are arbitrary decisions seemingly lacking in appeal rights. 

My further question is: while this will now apply when an application is made for a name change, can it be retrospectively applied? Can the commissioner suddenly realise or think that a name is unacceptable and require the licensee to change the name of their business? 

The Hon. R.I. LUCAS: I am advised no. 

Clause passed. 

Clauses 2 to 11 passed. 

Clause 12. 

The Hon. K.J. MAHER: Clause 12 relates to the annual fee for a short-term licence. Can the minister give an example of what sort of things—businesses or events—this short-term licence will apply for, how long is the duration of short-term licences and examples of where short-term licences have been granted in the past? 

The Hon. R.I. LUCAS: The first part of the question is that a short-term licence can be as short as a day or an event for a couple of hours, three or four hours or whatever it might happen to be. 

The Hon. K.J. MAHER: And what is the maximum duration a short-term licence can be granted for? 

The Hon. R.I. LUCAS: The sort of example, I am told, is what I would refer to as a mobile business (that is probably not the correct term), where they might be conducting events in people’s backyards, bowling clubs, or whatever it is. They might actually get what is called an up to five-year short-term licence, which allows them to conduct occasional events in people’s backyards, on weekends, in parks, or whatever it might happen to be. For each of those, they have to notify the commissioner, so there is a running tally or record kept of however many it is, and there is a judgement or discretion for the commissioner’s staff to say, ‘In the end, it may well be you’re using this too many times to justify the five-year short-term licence. You might have to get a more permanent licence if that might be a more suitable form of licence.’ 

It is meant to be a flexible option in this day and age with mobile businesses, etc., to allow people—rather than every time they have an event in a park, someone’s backyard, or wherever it might happen to be, to go along to get a separate licence each and every time. As I understand it, this is meant to cater for the new world in terms of people who have—and this is not the correct phrase—mobile businesses in terms of how they would run themselves. 

The Hon. K.J. MAHER: Does it differ from a special events licence? Is this one where a person putting on one show in the grandstand of the West Adelaide Football Club gets a licence for that one particular event one time, or is this a different one in that it is expected to reoccur? 

The Hon. R.I. LUCAS: I am told that under the current regime that would be called a limited licence; you would get a licence for that limited event. Under this new regime, you would get one of the short-term licences. You will get a short-term licence, which would be the equivalent of the old limited licence, which will allow you, the Labor Party, to have your one-off event at the West Adelaide Football Club, if you wanted to. 

The Hon. K.J. MAHER: Under the old regime of the limited licence is there also a different category for an ongoing or recurrent event? Is this a direct replacement of the old one? 

The Hon. R.I. LUCAS: I do not think there is, and that is why this argument for the short-term licence has been developed. That is, you would have had to get a limited licence for one event, and then you go back and get another limited licence, and get another one, and if you are actually running a business of doing these things in footy clubs, or weekends, parks, or people’s backyards, or whatever it is, each time you did it you would have to get a limited licence. 

The Hon. K.J. MAHER: For these sorts of licences under the old regime how were fees levied? That is, how was the level of the fee decided and what were the fees that were levied? If it was a two-day event was it a fee per day? How was the fee arrived at? 

The Hon. R.I. LUCAS: I am told there were three fees: there was an application fee and then there was a daily fee, and if there was a high-risk event there was a high-risk event fee. 

The Hon. K.J. MAHER: And what were those fees? I might explain. We have had representations that this could significantly increase the cost to people, particularly those who put on only one single event as a once only. Can we get some assurances that those costs for putting on that one single event will not increase as a result of this new regime? 

The Hon. R.I. LUCAS: The simple answer is that it has not been decided yet; it is still subject to regulations in cabinet. The annual fees have been established, but the issue in relation to short-term fees has not been established. If there have been concerns expressed, it may well be concerns expressed but not knowing what the situation is. At this stage, I am advised that cabinet has not yet approved or seen what the recommendations are. 

The Hon. K.J. MAHER: I guess the Treasurer, then, understands the nature of the concern that some people may hold that under a new regime we are being asked to pass a different way that these licences will be issued, the short-term licence rather than the limited licence in the past. People are concerned that it is a different sort of licence, although it may be used for the same purpose in some circumstances but not others, and have no assurance at all that they might not see fees for the old one-off dramatically increase. Maybe the Treasurer can advise if there is any intention to substantially increase those one-off fees. 

The Hon. R.I. LUCAS: I am not the lawyer, the Leader of the Opposition is, but let me give him some legal advice. They are going to have to be set by regulations, so if the Leader of the Opposition and his party are unhappy with the level of fees set it is a disallowable instrument—if I can explain that to him—and he has the power to move for disallowance of the regulations if that were to be the case. Ultimately, my advice is that it will have to be done by regulation. In relation to what the intent is the answer is no, I have no idea. That level of detail in relation to— 

The Hon. K.J. Maher: You are not aware of anything? 

The Hon. R.I. LUCAS: No; the only thing I can say is that clearly we have increased the annual fees— 

The Hon. K.J. Maher interjecting: 

The Hon. R.I. LUCAS: Yes, whatever they are called—what are they called again, annual fees? We have increased the annual fees, and I think the Hon. Mr Darley raised the issue about the liquor licensing fees and concerns about the extent of the increase there. I cannot rule anything out because I do not know the answer in relation to that, but ultimately if it is by regulation then it will be disallowable. 

Clause passed. 

Remaining clauses (13 to 25), schedule and title passed. 

Bill reported without amendment. 

Third Reading 

The Hon. R.I. LUCAS (Treasurer) (17:03): I move: 

That this bill be now read a third time. 

Bill read a third time and passed.