Naturally Resourceful

03 Sep 2009

The Law Commission's view on 'Alcohol in our Lives' – a Local Authority perspective

On 30 July 2009, the Law Commission released an issues paper 'Alcohol In Our Lives' which reviews the regulatory framework relating to the sale and supply of liquor. The Commission's aim is to end up with a completely redrafted Sale of Liquor Act, instead of further amendments that might only further complicate the system. Within this very broad proposal there are a wide number of issues the Commission has considered, many of which have particular relevance to local authorities, both generally and in their role as District Licensing Agency. In this article, we discuss the matters in the Commission's paper that are of significant interest to Councils.

Bylaws Creating Liquor Ban Areas

Section 147 of the Local Government Act 2002, empowers Councils to enact bylaws to prohibit or control the consumption and possession of alcohol in a public place.

The Commission believes that the current system of local bylaws is complicated and problematic. Due to the vast number of bylaws, it is difficult to ascertain what the law is in different places. To complicate matters further, many restrictions on alcohol only operate at certain hours of the day, whereas others are 24 hours.

The Commission recognises the necessity and importance of liquor bans, but also acknowledges that consolidating this issue into a simple and robust regime creates difficulties. Some possibilities would be to make it an infringement to drink in a public place or be drunk in a public place. However while this would reduce public disorder it would also restrict individual freedom and decision making. The Commission recognises these inherent conflicts and welcomes public submissions on this issue. The possible options suggested by the Commission are:

• continue the status quo, where liquor bans are dealt with by way of local authority bylaws;
• provide the Police with a power to issue an infringement offence for breach of a liquor ban, with a reserve power of arrest for the purposes of safety of persons;
• place no restrictions on drinking in a public place;
• reintroduce the offence of being drunk in a public place;
• create an offence of drinking in a public place;
• provide a power for the police/Licensing Authority to ban specified persons from entering or remaining in an area or on specified premises within an area;
• provide that where the Police have reasonable cause to suspect that a beverage contains alcohol, and have taken steps to ascertain that the beverage contains alcohol, that shall be sufficient proof that the beverage in fact contains alcohol for the purposes of seizure and destruction of the alcohol; and 
• empower persons other than the police (for example, persons employed by local authorities) to transfer intoxicated persons home or elsewhere for safety reasons.

A solution which provides simplicity for local authorities will be welcomed. It is unlikely that Councils will want a power for its staff to deal with intoxicated persons, but reintroducing some form of nationally applied offence or liquor ban may provide a straightforward answer instead of allowing a multitude of varying liquor bans instigated through a bylaw making power.

District Licensing Agency (DLA) Duties under the Sale of Liquor Act

The Law Commission favours retention of the Liquor Licensing Authority (LLA) as the specialist regulator. However they propose that the LLA be given enhanced powers and functions which will enable a more proactive approach and uphold the intention of the Sale of Liquor Act. The Commission recommends that the flow of information and data between the LLA and the DLA be a routine requirement to ensure analysis and information on the use of licences is current.

The Commission believes the powers and functions of DLAs need to be restructured and enhanced. Currently, the practice of DLAs around the country varies incredibly.

The Commission recommends that:

• there should be higher levels of performance and reporting from DLAs;
• local authorities should be allowed to keep the fines imposed as a result of their prosecutions;
• inspectors employed by the DLA should receive mandatory training;
• the fees set for the issuing of a licence should be sufficient to ensure that DLAs can properly exercise their functions, including enforcement; and
• the decision making powers of the DLA are separate from the Council itself.

The Commission also notes that while it is important to provide for local opinion to influence licensing decisions, it is equally important to note that the final decision rests with the LLA.

The Commission also believes that every Council should have a local alcohol policy. The policy would be drafted and introduced with advice from the DLA, with further input from the Police and medical professionals. This idea has already been proposed in the recent Sale and Supply of Liquor and Liquor Enforcement Bill, for which submissions closed in April, with the Select Committee report due in November.

Fees

The Commission believes that local authorities should be able to set their own licensing fees. This ensures that each DLA's costs in processing, monitoring and enforcing licences can be closely correlated and reflected in the fees and charges. In the alternative, the Commission considers local authorities could be allowed to impose an annual "supervision" fee that could reflect the burden of the number of inspections required for each premises. 

If the current national fee system remained, the Commission recommends the fees should be graduated to reflect the relative risk posed to the community by each licence. 

As the current fees, and the system for regularly updating them, are sadly inadequate, any changes which improve the ability for Councils to collect the "real" costs of administering the liquor licence regime will be a positive step forward.

Licensing and Authority Recommendations

The Commission also proposes a number of possible recommendations, in relation to licences and the powers of the LLA and DLA, which are of note to local authorities/DLAs:

Licence Options

• leave the system of four basic licences as it is;
• leave the system as it is, but remove the existing exemptions from the need to obtain a licence for some or all of the following: chartered clubs, police canteens, defence establishments, fire-fighters’ facilities, and Parliament;
• have a single liquor licence with conditions added on to it to reflect the nature of the business;
• increase the licence fees to better reflect the costs that the granting of a particular licence is likely to generate;
• create a graduated licence fee structure to reflect the risk posed to the community by the relevant licence;
• clarify the requirements for managers and temporary managers, and require multiple managers for large licensed premises; or
• increase the education, age and training requirements for managers and door staff working in all licensed premises.

Licence Criteria and Objection Options

• no change; or
• change the law to allow the licensing decision-maker to refuse licences on wider grounds than at present, for example, on grounds that:
  • the overall social impact of the licence is likely to be detrimental to the well-being of the local or broader community, taking into account matters such as the site of the proposed premises, the density and type of other premises in the area, and the health and social characteristics of the local population;
  • granting the licence would be inconsistent with the object of the Act;
  • the amenity, quiet or good order of the locality would be lessened by the granting of the licence; and
  • the licence would be inconsistent with the relevant local alcohol policy.
• Allow the licensing decision-maker to impose any licence condition it considers appropriate for the purpose of reducing alcohol-related harm.
• Widen the category of persons who can object to a licence application.
• Specifically authorise medical officers of health to report on all types of licences and licence renewals.
• Better define and strengthen the criteria for suitability of licence applicants.
• Improve the effectiveness and efficiency of the process for notifying the public of licence applications.

Liquor Licensing Authority Options

• maintain the status quo with regard to the functions and powers of the Liquor Licensing Authority;
• transfer the functions of the Licensing Authority to the District Court;
• establish a special Licensing Commission with a substantial staff, with both enforcement and adjudicative powers; or
• retain the Licensing Authority as the specialist regulator, but give it enhanced powers and functions, for example to:
  • monitor and report on trends and adjust aspects of sale policy, like promotions;
  • award costs;
  • impose fines on licensees, managers and staff of licensed premises for breaches of any of the provisions of the Act;
  • enhance the flow of data from inspectors, police, District Licensing Agencies (DLAs), medical officers of health, and licensees; and
  • implement quality control of DLA output and compliance.

District Licensing Agency Options

• leave the powers and functions of District Licensing Agencies (DLAs) as they are;
• abolish DLAs and incorporate their functions and powers in a central body; or
• enhance the powers and functions of DLAs, for example by:
  • requiring higher levels of performance and reporting from DLAs;
  • allowing local authorities to keep the fines imposed as a result of their prosecutions;
  • providing for mandatory training for their inspectors;
  • enabling the setting of fees for the issuing of licences to allow the DLAs’ functions to be performed effectively;
  • ensuring that DLAs’ decisions are independent of the Council of the relevant local authority; and
  • specifying by statute a particular membership for DLAs.

If your Council has a view on any of these issues, we encourage you to make a submission to the Law Commission, by Friday 30 October 2009. If you require help with a submission, or need advice on any liquor licensing issues then we have a team of experienced people who are able to assist.

Authors

Robert Gapes

Partner - Dispute Resolution

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Bill Loutit

Partner - Public Sector

DDI: +64 9 977 5092

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Padraig McNamara

Partner - Public Sector

DDI: +64 9 977 5095

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Jonathan Salter

Partner - Public Sector

DDI: +64 4 924 3419

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Judith Cheyne

Senior Associate - Public Sector

DDI: +64 3 365 0961

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Vivienne Wilson

Senior Associate - Public Sector

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