in this issue:
- Liquor Act 2007 – Is the devil in the details of the Regulation?
On Wednesday night the NSW government passed the Liquor Act 2007, just one week after the Bill was introduced. It has not yet commenced and likely will not commence for several months, until the Regulation is made.
- Review of Gaming Machines Act 2001 released today – temporary freeze on applications
A review of the Gaming Machines Act 2001 was tabled in Parliament today.The Review report recommends maintaining many elements of the existing Act, while introducing additional harm minimisation measures.
Liquor Act 2007 – Is The Devil In The Details Of The Regulation?
On Wednesday night the NSW government passed the Liquor Act 2007, just one week after the Bill was introduced. It has not yet commenced and likely will not commence for several months, until the Regulation is made.All of these changes have been carried through into the Act itself. However, much of the detail of how the new system will work in practice will be contained in the Regulation, which will not be finalised for some months.
Although draft Regulations have already been formulated (but not released), the government now proposes to engage in a 6 week period of stakeholder consultation before finalising the Regulation.
Administrative Based System
The "centrepiece" of the reforms is said to be the abolition of the Liquor Licensing Court and the Liquor Administration Board and the introduction of a new Casino, Liquor and Gaming Control Authority (the Authority) which will deal with all liquor related applications, complaints, and disciplinary proceedings.
Registered clubs are brought under the liquor licensing system and will be regulated by the new Act. The Registered Clubs Act will primarily deal with management and accountability of clubs.
As discussed in our November 2007 update, the new Act replaces the current Social Impact Assessment Process (SIA) with a simpler and cheaper Community Impact Statement (CIS).
A CIS will be required for any application for the grant or removal of a hotel licence, club licence or packaged liquor licence, or any application for extended hours in relation to these licences, on-premises licence or a producer/wholesaler licence.
How different the CIS process will be from the current SIA process will not be known until the Regulation is finalised. Discussion in parliament suggests that different formats of CIS will apply to low impact application (as determined by the Authority). The focus appears to be on active consultation with the community, rather than the preparation of "large amounts of data and… complex and costly assessments".
Categories Of Licence
The new Act consolidates the number of licences to 6. Of most interest are the "general bar" sub-category of hotel licence and the on-premises licence.
General bar licence
This type of licence is available for bars/hotels which do not keep or operate gaming machines and do not have takeaway sales of liquor. There is no size limit on the premises which may be entitled to such a licence (as was proposed by Clover Moore). However, we believe this licence is intended to make it simpler to open and operate bars (as opposed to larger-scale hotels).
Other than the proposed lower fee ($500), the distinction between the two types of hotel licence and the benefit of obtaining a general bar licence over a standard hotel licence are not clear in the Act itself. General bar licence applications will also be subject to the CIS process.
A general bar licence cannot ever be changed to a hotel licence, allowing gaming machines and takeaway sales of liquor. If this is sought, an entirely new hotel licence will need to be applied for.
The variety of businesses which can apply for a liquor licence has been expanded. The new Act takes the starting position that all businesses may apply for an on-premises licence and the Regulations can specify the types of businesses that cannot have an on-premises licence.
The current position is that on-premises licences are only available for specified types of businesses or premises.
The primary purpose of the business or activity carried out on the premises must not be the sale or supply of liquor. The licence must specify the type or business or activity carried out on the premises and the sale or supply of liquor must be ancillary to another product or service that is sold, supplied or provided to people on the licensed premises.
There is provision for the authority to endorse the licence with a special authorisation that allows liquor to be sold or supplied for consumption on the licensed premises otherwise than with, or ancillary to, another product or service. However, the primary purpose of the business must always remain something other than the sale or supply of liquor. "Primary purpose" is not defined in the Act.
Although there is no detail provided in the Act itself, the 2nd reading speech by the Minister indicated that the application process for such an authorisation would be simple, with only a minor processing fee being imposed. The Authority will assess each application on a case-by-case basis and will impose limits on the number of drinkers, and other controls designed to ensure that the primary purpose test is not breached.
The special authorisation can be readily withdrawn if problems occur (for example, if the Authority considers that the primary purpose test is being breached).
There is also an ability to apply for an authorisation to sell liquor for consumption away from the premises.
Noise And Disturbance Complaints – Order Of Occupancy
Order of occupancy is now a consideration in assessing a noise or disturbance complaint. It is hoped that this will go some way toward recognising that residents who move into areas with existing late night or live music venues are not necessarily entitled to expect the same level of amenity as residents in purely residential areas with no such venues.
While both the current and the new Act make it an offence to sell or supply liquor to an intoxicated person, the current Act has never defined intoxication. The new Act defines "intoxicated" and the Act allows for the director to issue guidelines to assist in determining whether or not a person is intoxicated for the purposes of the Act and these guidelines will be publicly available. It also provides that the guidelines issued by the director may indicate circumstances in which a person may be assumed not to be intoxicated for the purposes of the Act.
Offences And Increased Powers
The penalty for the major offences has been doubled.
The Authority is given the power to make "late hour entry" declarations (which are essentially lock-out orders) in respect of certain localities, classes of licences or a specific premises.
The Director will also be able to issue written directions concerning any matter relating to the licensed premises, including conduct upon the premises.
There are also expanded powers to take action against producers of products with names, design or packaging that is indecent, offensive or encourages irresponsible consumption, and to take action in relation to undesirable liquor promotions.
Review Of Gaming Machines Act 2001 Released Today – Temporary Freeze On Applications
A review of the Gaming Machines Act 2001 was tabled in Parliament today.
The Review report recommends maintaining many elements of the existing Act, while introducing additional harm minimisation measures.
A temporary freeze has been announced from today on applications by clubs and hotels to increase their gaming machine threshold.
Although many industry insiders have been expecting a relaxation of certain restrictions, the Report actually recommends:
- further reducing the Statewide cap on poker machines by 5,000 and continuing to reduce it
- maintaining existing gaming machine caps for individual hotels and clubs
- maintaining separate pools of entitlements for hotels and clubs
- maintaining poker machine forfeitures
- maintaining existing mandatory shut down periods
- bans on credit card cash withdrawal from ATMs and EFTPOS facilities in gaming venues
- introduction of a new Local Impact Assessment (LIA) to restrict poker machine increases in high density gaming Local Government Areas.
The new LIA process will require all Local Government Areas in NSW to be classified into three bands, based on local poker machine density and usage, and health and social data.
Localities with high numbers of gaming machines, high expenditure on those machines and low socio-economic rankings will be classed as Band 3 locations. Venues within these locations will need to undergo a rigorous class 2 LIA assessment process before increasing gaming machine numbers. At this stage it is proposed that band 3 areas would include Fairfield, Canterbury, Ashfield, Auburn, Marrickville, Burwood, Newcastle, Albury, Wyong, Bankstown, Wollongong, Kogarah and Penrith.
Band 2 venues (moderate) would have to undergo a slightly less rigorous LIA process, and Band 1 venues will be exempt.
Gaming and Racing Minister Graham West has said that "Pubs and clubs in band three - areas with a higher than average gaming machine density and usage - will find it extremely difficult to get additional gaming machines."
The Office of Liquor Gaming and Racing will now conduct consultation with key stakeholders before introducing the reforms into Parliament next year.
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