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This is a Bill, not an Act. For current law, see the Acts databases.
iquor Amendment (3 Strikes) Bill 2011 No , 2011 A Bill for An Act to amend the Liquor Act 2007 to introduce a 3 strikes disciplinary system for licences in respect of premises on which multiple breaches of that Act are alleged to have occurred; and for other purposes. Clause 1 Liquor Amendment (3 Strikes) Bill 2011 The Legislature of New South Wales enacts: 1 1 Name of Act 2 This Act is the Liquor Amendment (3 Strikes) Act 2011. 3 2 Commencement 4 This Act commences on a day or days to be appointed by proclamation. 5 Page 2 Liquor Amendment (3 Strikes) Bill 2011 Amendment of Liquor Act 2007 No 90 Schedule 1 Schedule 1 Amendment of Liquor Act 2007 No 90 1 [1] Section 4 Definitions 2 Omit the definition of Director-General from section 4 (1). 3 Insert instead: 4 Director-General means the Director-General of the Department 5 of Trade and Investment, Regional Infrastructure and Services. 6 [2] Section 47H Restrictions on licence conditions imposed by 7 Director-General 8 Omit "of Communities NSW" from section 47H (1). 9 [3] Part 9A 10 Insert after Part 9: 11 Part 9A Disciplinary action--3 strikes 12 144A Part does not limit Part 9 13 This Part does not limit the operation of Part 9. 14 144B Definitions 15 (1) In this Part: 16 business owner in relation to a licence means the owner of the 17 business carried on under the licence. 18 prescribed offence in relation to a licence means an offence 19 against any of the following provisions of this Act (or a provision 20 of this Act or the regulations that is prescribed by the regulations) 21 that is alleged to have occurred on or in relation to the premises 22 to which the licence relates: 23 (a) section 11 (2) (breach of licence condition) but only in 24 respect of conditions imposed under this Part or 25 Schedule 4, 26 (b) section 73 (1) (a) or (b) (permitting intoxication or 27 indecent, violent or quarrelsome conduct), 28 (c) section 73 (2) (selling or supplying liquor to an intoxicated 29 person), 30 (d) section 74 (1) (b), (2), (3) (b) or (4) (permitting the sale, 31 use or possession of a prohibited plant or prohibited drug), 32 (e) section 117 (1), (2) or (8) (selling or supplying liquor to a 33 minor or allowing such sale or supply). 34 Page 3 Liquor Amendment (3 Strikes) Bill 2011 Schedule 1 Amendment of Liquor Act 2007 No 90 relevant person in relation to a licence means the licensee or 1 manager of the premises to which the licence relates or any 2 employee or agent of the licensee or manager. 3 (2) For the purposes of this Part: 4 (a) a person is taken to be charged with a prescribed offence if 5 a penalty notice or court attendance notice has been issued 6 to the person in respect of the offence, and 7 (b) any such charge is taken to be withdrawn or dismissed if 8 the penalty notice or court attendance notice is withdrawn 9 or if a court hears the matter and acquits the person, and 10 (c) prescribed offences that are alleged to have occurred in 11 relation to a particular licence are taken to be a single 12 prescribed offence with respect to that licence if those 13 offences occurred within a single 24 hour period, and 14 (d) an offence is taken to cause a strike if a person is charged 15 with the offence and that charge (or that charge along with 16 other charges) causes a strike to be incurred, regardless of 17 whether the charge is subsequently withdrawn or 18 dismissed. 19 144C Consequences of 3 strikes 20 (1) Licences other than club licences 21 The following provisions have effect if 3 strikes are in force in 22 respect of a licence (other than a club licence): 23 (a) the licence is automatically cancelled, 24 (b) within 12 months after that cancellation, a person cannot 25 be granted a licence in respect of the premises to which the 26 cancelled licence related (the subject premises) if the 27 applicant for the new licence or a close associate of the 28 applicant was the business owner (or was a close associate 29 of the business owner) under the cancelled licence at the 30 time the offence that caused the third strike is alleged to 31 have occurred, 32 (c) any person who was the licensee or manager of the subject 33 premises at the time the offence that caused the third strike 34 is alleged to have occurred is permanently disqualified 35 from holding a licence in respect of, or being appointed to 36 manage, the subject premises, 37 Page 4 Liquor Amendment (3 Strikes) Bill 2011 Amendment of Liquor Act 2007 No 90 Schedule 1 (d) any such person is also disqualified from holding any other 1 licence or being appointed to manage any other licensed 2 premises: 3 (i) permanently, or 4 (ii) if the person was not the licensee or manager (as the 5 case may be) when the first 2 strikes were incurred, 6 for the period (if any) decided by the 7 Director-General. 8 (2) It is a condition of any subsequent licence issued in respect of the 9 subject premises that a person who is disqualified under 10 subsection (1) (c) must not be employed or otherwise engaged as 11 an employee or agent of the licensee or manager of those 12 premises. 13 (3) Club licences 14 If 3 strikes are in force against a club licence, the person who was 15 the secretary of the registered club at the time the offence that 16 caused the third strike is alleged to have occurred: 17 (a) automatically ceases to be the secretary (if that person is 18 still the secretary when the third strike comes into force), 19 and 20 (b) is permanently disqualified from being the secretary of that 21 registered club or from being appointed to manage any of 22 the club's premises, and 23 (c) is disqualified from being the secretary of any other 24 registered club, holding any licence or being appointed to 25 manage any other licensed premises: 26 (i) permanently, or 27 (ii) if the person was not the secretary when the first 28 2 strikes were incurred, for the period (if any) 29 decided by the Director-General. 30 (4) It is a condition of a club licence that a person who is disqualified 31 from being the secretary of the club under subsection (3) (b) must 32 not at any time be employed or otherwise engaged as an 33 employee or agent of the club or of the manager of any of the 34 club's premises. 35 144D Conditions may be imposed if strikes incurred 36 (1) The Director-General may decide to impose conditions on a 37 licence (or vary such conditions) in relation to licensed premises 38 if one or 2 strikes are in force in respect of the licence. 39 Page 5 Liquor Amendment (3 Strikes) Bill 2011 Schedule 1 Amendment of Liquor Act 2007 No 90 (2) If one strike is in force, the conditions may relate to any one or 1 more of the following: 2 (a) the use of plans of management and incident registers, 3 (b) prohibitions on the use of glass or other breakable 4 containers, 5 (c) the engagement of persons to promote responsible service 6 of alcohol, 7 (d) any other matter that may be prescribed by the regulations. 8 (3) If 2 strikes are in force, the conditions may relate to any one or 9 more of the following: 10 (a) any matter referred to in subsection (2), 11 (b) the implementation of security measures, 12 (c) prohibiting patrons from entering at certain times, 13 (d) prohibiting the sale or supply of liquor at all times for a 14 period of up to 6 months, 15 (e) prohibiting the sale or supply of liquor at certain times, 16 (f) prohibiting the sale or supply of certain types of liquor 17 (including liquor with a high alcohol content or liquor that 18 is intended to be consumed rapidly such as a shot), 19 (g) prohibiting certain types of entertainment, 20 (h) the persons who may be appointed as a manager, 21 (i) reducing or changing trading hours, 22 (j) any other matter that may be prescribed by the regulations. 23 (4) A condition cannot be imposed under this section for a period of 24 more than 24 months. 25 (5) The Director-General may decide to revoke a condition at any 26 time. 27 (6) A strike ceasing to be in force in respect of a licence does not 28 cause a condition imposed under this section to cease to apply. 29 144E Incurring a first strike 30 A first strike is incurred in respect of a licence if no other strike 31 is in force in respect of the licence and a relevant person in 32 relation to the licence is charged with committing a prescribed 33 offence (the trigger offence) and: 34 (a) within 12 months before the day on which the trigger 35 offence is alleged to have been committed, 2 other 36 prescribed offences are alleged to have been committed 37 Page 6 Liquor Amendment (3 Strikes) Bill 2011 Amendment of Liquor Act 2007 No 90 Schedule 1 and charges for those offences have been made against one 1 or more relevant persons in relation to the licence 2 (regardless of whether those charges have been withdrawn 3 or dismissed), or 4 (b) the Director-General decides that a strike should be 5 incurred because of the seriousness of the alleged trigger 6 offence or because of the seriousness of any harm that may 7 have resulted from, or been associated with, the 8 commission of that alleged offence. 9 144F Incurring a second strike 10 (1) A second strike is incurred in respect of a licence if one strike (the 11 first strike) is in force in respect of the licence and a relevant 12 person in relation to the licence is charged with committing a 13 prescribed offence (the trigger offence) and: 14 (a) the first strike came into force within 12 months before the 15 day on which the trigger offence is alleged to have been 16 committed, and 17 (b) another prescribed offence (the supporting offence) is 18 alleged to have been committed since the first strike came 19 into force and a charge for the offence has been made 20 against a relevant person in relation to the licence 21 (regardless of whether the charge has been withdrawn or 22 dismissed), and 23 (c) both the trigger offence and the supporting offence (even 24 if different types of offences) are each the same type of 25 offence as an offence that caused the first strike. 26 (2) Alternatively, a second strike is incurred in respect of a licence if: 27 (a) one strike (the first strike) is in force in respect of the 28 licence, and 29 (b) a prescribed offence is alleged to have been committed 30 within 12 months after the first strike came into force, and 31 (c) a relevant person in relation to the licence is charged with 32 committing the prescribed offence, and 33 (d) the Director-General decides that a strike should be 34 incurred. 35 (3) The Director-General may decide under subsection (2) that a 36 strike should be incurred only if: 37 (a) the Director-General is satisfied that a strike should be 38 incurred because of the seriousness of the alleged offence 39 or the seriousness of any harm that may have resulted 40 Page 7 Liquor Amendment (3 Strikes) Bill 2011 Schedule 1 Amendment of Liquor Act 2007 No 90 from, or been associated with, the commission of the 1 alleged offence, or 2 (b) at least one other prescribed offence is alleged to have been 3 committed since the first strike came into force and a 4 charge for the offence has been made against a relevant 5 person in relation to the licence (regardless of whether the 6 charge has been withdrawn or dismissed) and the 7 Director-General is satisfied that a strike should be 8 incurred in the circumstances. 9 (4) For the purposes of this section, an offence is the same type of 10 offence as another offence if the offence is charged under the 11 same provision of this Act or the regulations as that other offence 12 or under the same provision as any one of the offences that may 13 be taken to be that other offence because of section 144B (2) (c). 14 144G Incurring a third strike 15 (1) A third strike may be incurred in respect of the licence if: 16 (a) 2 strikes are in force in respect of the licence, and 17 (b) within 12 months after the second of those strikes came 18 into force, a prescribed offence is alleged to have occurred 19 and a relevant person in relation to the licence is charged 20 with the offence and the charge has not been withdrawn or 21 dismissed, and 22 (c) the Director-General decides that a strike should be 23 incurred in the circumstances. 24 (2) Before deciding that a third strike should be incurred in respect 25 of a licence, the Director-General must be satisfied that since the 26 date of the first alleged offence that caused the first strike, at least 27 6 charges have been proven for prescribed offences by one or 28 more relevant persons in relation to the licence. 29 (3) However, if a strike has been incurred in relation to a charge 30 because of section 144E (b) or 144F (3) (a), that charge, if 31 proven, counts as 3 charges towards the total of 6 charges 32 required by subsection (2). 33 (4) For the purposes of this section, a charge is proven if: 34 (a) an amount is paid under a penalty notice in respect of the 35 offence to which the charge relates, or 36 (b) a finding of guilt (being a finding that is not the subject of 37 an appeal) is made by a court in relation to that offence. 38 Page 8 Liquor Amendment (3 Strikes) Bill 2011 Amendment of Liquor Act 2007 No 90 Schedule 1 144H When strikes are in force 1 (1) A strike comes into force: 2 (a) on the day on which an offence is alleged to have occurred 3 being the last (or only) offence that caused the strike, or 4 (b) in the case of a third strike, on the day decided by the 5 Director-General and notified in writing to the licensee. 6 (2) A strike ceases to be in force on the day decided by the 7 Director-General and notified in writing to the licensee. 8 (3) The Director-General must decide that one strike ceases to be in 9 force in respect of a licence for each 12-month period that passes 10 without a relevant person in relation to the licence being charged 11 with a prescribed offence. 12 (4) The Director-General may also decide that a strike ceases to be in 13 force if one or more of the charges that caused the strike to be 14 incurred are withdrawn or dismissed. 15 (5) A strike does not automatically cease to be in force even if all of 16 the charges that caused the strike to be incurred are withdrawn or 17 dismissed. 18 144I Matters to be considered by Director-General 19 (1) The Director-General must, when making a decision under this 20 Part: 21 (a) notify the following persons in writing that the 22 Director-General is deciding the matter and invite those 23 persons to make a submission within a specified period of 24 at least 21 days: 25 (i) the licensee, 26 (ii) the manager (if any) of the premises to which the 27 licence relates, 28 (iii) if the Director-General is deciding whether a third 29 strike should be incurred, the business owner and 30 the owner of the premises to which the licence 31 relates and any former licensee or manager who 32 may be adversely affected by the decision, 33 (iv) any other person prescribed by the regulations, and 34 (b) take into account any submissions received before the end 35 of the specified period from any of the following: 36 (i) a person referred to in paragraph (a), 37 (ii) the NSW Police Force, 38 Page 9 Liquor Amendment (3 Strikes) Bill 2011 Schedule 1 Amendment of Liquor Act 2007 No 90 (iii) the Office of Liquor, Gaming and Racing, 1 Department of Trade and Investment, Regional 2 Infrastructure and Services, 3 (iv) the Bureau of Crime Statistics and Research of the 4 Department of Attorney General and Justice, and 5 (c) take into account each of the following to the extent that it 6 is relevant to the decision: 7 (i) whether the premises to which the licence relates 8 (the licensed premises) were declared premises 9 within the meaning of Schedule 4 when the offences 10 that caused a strike are alleged to have occurred, 11 (ii) whether any of the charges that caused a strike to be 12 incurred have been withdrawn or dismissed, 13 (iii) the size and patron capacity of the licensed premises 14 and how this may impact on the ability of the 15 licensee or manager to prevent the occurrence of 16 prescribed offences, 17 (iv) the history and nature of the commission of 18 prescribed offences by relevant persons in relation 19 to the licence or on or in relation to the licensed 20 premises, 21 (v) the history and nature of violent incidents that have 22 occurred in connection with the licensed premises, 23 (vi) whether other action would be preferable to 24 imposing a condition or deciding that a strike should 25 be incurred, 26 (vii) whether there have been changes to the persons who 27 are the licensee, manager or business owner, 28 (viii) any other matter prescribed by the regulations. 29 (2) Nothing in this section prevents the Director-General from taking 30 into account any other matter that the Director-General thinks is 31 relevant to his or her proper making of a decision under this Part. 32 (3) The Director-General must, as soon as practicable after making a 33 decision under this Part, give notice in writing of the decision, the 34 reasons for the decision and any right of review in respect of the 35 decision to each person that the Director-General is required to 36 notify under subsection (1) (a) in respect of the decision. 37 (4) A submission provided to the Director-General under 38 subsection (1) (b) (i) may not be used for the purposes of 39 prosecuting an offence under this Act. 40 Page 10 Liquor Amendment (3 Strikes) Bill 2011 Amendment of Liquor Act 2007 No 90 Schedule 1 144J Reviews 1 (1) An application for the review of a decision of the 2 Director-General under this Part may be made to the 3 Administrative Decisions Tribunal by any person that the 4 Director-General is required to notify under section 144I in 5 respect of the decision. 6 (2) Any such application is to be made no later than 21 days after the 7 applicant receives notice in writing of the Director-General's 8 decision under section 144I. 9 (3) Part 2 of Chapter 5 of the Administrative Decisions Tribunal Act 10 1997 does not apply to an application to the Administrative 11 Decisions Tribunal for a review of a decision of the 12 Director-General under this Part. 13 (4) An application for such a review does not operate to stay the 14 decision of the Director-General unless the Administrative 15 Decisions Tribunal otherwise directs. 16 (5) In determining an application for review under this section, the 17 Administrative Decisions Tribunal must take into account any 18 matter that the Director-General is required to take into account 19 in making the decision that is the subject of the review. 20 [4] Section 150 Penalty notices 21 Insert "or 9A" after "Part 9" in section 150 (5). 22 [5] Schedule 1 Savings and transitional provisions 23 Insert at the end of clause 1 (1): 24 Liquor Amendment (3 Strikes) Act 2011 25 [6] Schedule 1, Part 6 26 Insert after Part 5: 27 Part 6 Provisions consequent on enactment of 28 Liquor Amendment (3 Strikes) Act 2011 29 32 Offences occurring before commencement of Part 9A 30 Part 9A does not apply to or in respect of an offence committed, 31 or alleged to have been committed, before the commencement of 32 that Part. 33 Page 11 Liquor Amendment (3 Strikes) Bill 2011 Schedule 1 Amendment of Liquor Act 2007 No 90 [7] Schedule 4 Special licence conditions for declared premises 1 Omit "Attorney General's Department" from clause 9 (3). 2 Insert instead "Department of Attorney General and Justice". 3 Page 12
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