On September 11, Queensland Parliament passed the Liquor and Other Acts Amendment Bill 2008 (Amendment Act) which, from 1 January 2009 will introduce a new licensing regime in Queensland.
The Amendment Act is a consequence of the review of the Liquor Act 1992 (Act) by the State's Liquor Licensing Division, which is now incorporated within the Office of Liquor Gaming and Racing (OLGR).
The Amendment Act is the most significant change to the State's licensing laws since the introduction of the Act on 1 July 1992.
Since 1 March 2005, when the Government released the Brisbane City Safety Action Plan to address violence in and around licensed premises in Brisbane's CBD, the Government has had on its agenda a comprehensive overhaul of the Act to "ensure it appropriately reflects current community attitudes including concerns about alcohol abuse and binge drinking".1
When introducing the bill in Parliament, the Treasurer said "the Bligh Government's liquor reform proposals will see Queensland lead the way with the most significant alcohol reform program in Australia".2
Nearly 8,500 submissions were received by the Government in response to the Government's Regulatory Impact Statement/Draft Public Benefit Test (RIS/DPBT) released in February this year. The RIS/DPBT was the culmination of the original April 2006 Discussion Paper and A Report on Liquor Reform in Queensland (Report) issued in December 2007.
A number of the issues raised in the April 2006 Discussion Paper were not addressed in the Amendment Act. The Government has focused on prioritising harm minimisation as the primary object of the Liquor Act and, in particular, has addressed the social issues resulting from excessive alcohol consumption. On the other hand, the Amendment Act does not integrate the liquor licensing regime with State planning legislation (which would streamline development applications for licensed premises in Queensland) and various anomalies remain between liquor licensing and body corporate legislation.
One of the Act's objectives is to require the Government to facilitate and regulate the optimum development of tourism. This objective has not been removed by the changes, so there has been criticism in some circles that such anomalies have not been eliminated by the Amendment Act.
Although various industry stakeholders contend that consultation in relation to the Amendment Act has been inadequate, the Government did respond to various matters raised by the industry during the consultation stage.
Deacons made extensive submissions to the State Government on the impact of the proposed changes on special facility licence holders. The RIS/DPBT proposed not to retain special facility licences as a licence category and did not allow 24 hour trading. Deacons made submissions to the Government on the importance of retaining special facility licences (and the flexibility they allow large facilities, including the right to 24 hour trading). Extended trading hours are particularly important for airport outlets, casinos and tourist facilities. The Government took note of the submissions made by Deacons and special facility licence holders, and the Government's Final Policy Paper (published following the results of public consultation on the RIS/DPBT) includes the retention of special facility licences and 24 hour trading for airport and casino special facility licences.
Over the months leading up to the commencement of Queensland's new licensing regime, Deacons will be issuing further legal updates that focus on some of the more significant changes to the Liquor Act and also will be conducting a series of seminars for industry members dealing with the proposed changes and the effects on their business.
Snapshot Of Changes
The most significant changes proposed to the Act are the restructure of existing licence types, the introduction of new liquor licensing fees and the winding back of ordinary trading hours.
New Licence Types
The restructure of licence types under the Amendment Act categorises all existing licences into 2 distinct licence types – Commercial and Community. Commercial Licences are for commercial business and Community Licences for not-for-profit organisations and special interest groups. The restructure of licence types will see the introduction of a boutique bar or wine bar licence following the current trend in New South Wales and Victoria. The changes to the Act apply such that all existing types of licences will be recategorised.
The Amendment Act introduces a new section 292 of the Act which provides that licence applications lodged before 1 January 2009 will be decided under the provisions of the pre-amended Act. There are two advantages to retaining the current criteria for a licence until the end of the year:
- certainty, in that current applicants (or people about to apply for a licence) can continue with their application without disruption; and
- the fact that the old threshold tests for obtaining a licence apply and not the new ones created by the new focus on harm minimisation. This provides a window for businesses that feel they will get more favourable treatment under the current Act to apply for a licence under the existing criteria.
The State Government proposes to adopt a user-pays system to cover the direct costs to the State Government of regulating the industry, including:
- the assessment of applications;
- regulating compliance with the Act; and
- minimising health and social harms associated with excessive consumption of alcohol.
The new fees will include:
- a revision of application fees;
- the introduction of a grant fee; and
- the reintroduction of annual licence renewal fees.
As part of the restructuring of licences in Queensland, the OLGR will also identify various risk factors for licensed premises which will impact on the quantum of the new annual renewal fee. It is clear from the RIS/DPBT that CBD late night traders are to bear the brunt of this new licence fee regime. Licence fees will be increased if premises trade late so that late night traders will contribute to the costs of addressing community harm and amenity issues.
As a result of the Government's push to curb social harm, there has been quite a deal of media speculation about restrictions being placed on trading hours. A proposal to impose a 3am closing time limit was widely reported, however, under the Amendment Act, approved licensed premises will still be able to trade until 5am (although they will be required to pay significantly higher licensing fees than those premises trading only until midnight). As previously stated, 24 hour trading is permitted under a special facility licence for airport and casino premises.
Under the Government's final policy position, higher fees will be charged to those venues that wish to trade late. General licence holders (as an example) will be charged an annual fee of $2,700 to trade until from 10am to midnight, while those trading from 10am until 5am will be charged $20,200. This is less than the annual fee of $44,500 to trade until 5am originally proposed in the RIS/DPBT. However, the Government has also produced a hybrid fee structure which includes further fees (as discussed below) for a range of risk factors.
Special facility licence holders will be charged $27,500 to trade 24 hours (where permitted). As a result of the submissions made by Deacons and other special facility licence holders, this fee will cover up to 10 outlets operating under a special facility licence. Each outlet over 10 will incur a further fee of $1,000.
Further fees will be added if other risk criteria apply to the premises, such as not having food available for purchase (up to an extra $10,000 per year if no food is available during extended trading hours), generating high volume noise (up to an extra $2,000 per year) and poor compliance history (up to an extra $20,000 per year for premises with a history including a 'major trauma').
The regulations to accompany the Act will contain the new fee regime. As a draft of the new regulations has not yet been released, it is not possible to confirm that the fee structure outlined in the Government's final policy position will be the final fee structure.
While this new fee structure appears to be aimed at discouraging those wishing to trade outside of normal hours, it remains unclear how a discounting scheme will be applied to those licensees actively participating in their local liquor accord. This was hinted at during the Liquor Accords Conference in September 2007. Given the potential impact for licensees, it is hoped the regulations will clarify the position.
Ordinary Trading Hours
Ordinary trading hours for all licences (other than special facility licences at airports and casinos) will be from 10am to midnight.
It was initially thought that the privileges currently enjoyed by licence holders would be transitioned over to the new licensing regime created by amendments to the Act, but this has not occurred with respect to hours of trade. For example, late night traders who operated under the authority of an on-premises (cabaret) licence currently have ordinary trading hours to 3am. As from 1 January 2009, trading past midnight will come at a substantial cost and it would appear that the proposed changes to the Act will make the traditional nightclub licence a thing of the past.
- Harm minimisation will become the first objective of the Liquor Act;
- there will soon be powers for the Chief Executive to issue guidelines to assist in the interpretation and application of the Liquor Act and its regulations;
- introduction of a ministerial power to ban undesirable alcohol products that are targeted to encourage young people to rapidly consume alcohol;
- introduction of an approved manager dispensing with the concept of a nominee;
- mandatory Responsible Service of Alcohol (RSA) training for all staff at licensed premises and mandatory Responsible Management of a Licensed Venue (RMLV) training requirements for licensees and approved managers;
- legislative recognition of liquor accords, however membership remains voluntary;
- introduction of a risk assessed management plan to do away with house policies;
- replacement of the "public interest" test as the threshold for obtaining a licence and now requiring "community impact statements" that focus on harm minimisation; and
- creation of an irresponsible supply provision to make it an offence for adults to supply alcohol to minors in private places.
How Much Will It Cost The Industry?
As with the introduction of most new legislation, the devil will be in the detail. Without seeing the draft of the regulations that will accompany the changes to the Act it is impossible to say how much the new fees will cost the State's licensees.
The clear message that can be taken from the Amendment Act is that, if you are currently thinking about applying for a liquor licence in Queensland, you should do so before 1 January 2009 so that the current criteria for assessing licence applications is still applicable. After 1 January 2009 applicants will also need to satisfy requirements of the new Act that focus on the potential for harm as assessed by community impact statements, rather than the current public interest assessment.
1. See Liquor and Other Amendment Bill 2008 – Explanatory Notes
2. Hansard – Liquor and Other Amendments Bill Second Reading – 26 August 2008
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.