Legislation passed to tackle alcohol - fuelled violence in Queensland

Legislation passed to tackle alcohol - fuelled violence in Queensland

Alcohol-fuelled violence has consistently been a hot topic in Australian media in recent times and one which the Queensland Government has indicated it wishes to confront. In order to address the issue, the Attorney – General and Minister for Justice and Minister for Training and Skills, Yvette D’Ath introduced the Tackling Alcohol-Fuelled Violence Legislation Amendment Bill 2015 (the Legislation) into Parliament in November 2015 as part of an election commitment made by the Palaszczuk Government to address the damage caused to society by alcohol –fuelled violence in Queensland.

Notably, the Legislation sought to reduce allowable extended trading hours for most licensed premises in Queensland, amend the existing lockout provisions under the Liquor Act 1992 (Qld) (the Liquor Act) and introduce the concept of “3 am safe night precincts” (3 am Safe Night Precincts). When the Legislation was first introduced, it received substantial opposition from the hotel and nightclub sectors and the minority Government was unsuccessful in obtaining bipartisan support for the Legislation and the backing of the 3 independent members of Parliament. As a consequence, the general industry consensus was that the legislative changes would not be passed by Parliament.

However, in light of overwhelming public outcry against the most recent senseless death of Cole Miller in Brisbane as a result of a ‘coward punch’, political sentiment swayed and in the early hours of 18 February 2016 the Government struck a last minute deal with Katter’s Australian Party to gain support, and the Legislation was passed by the Queensland Parliament.

This means that from 1 July 2016, licensed venues that are not within a 3 am Safe Night Precinct will call last drinks at 2 am and licensed venues that are within a 3 am Safe Night Precinct, must call for last drinks at 3 am. The only change to the original Bill is that the 1 am lockout imposed on all venues within a 3 am Safe Night Precinct will now come into effect from 1 February 2017, providing these venues with time to transition to their appropriate operating model. The Legislation also removes the link between licensed gaming hours and alcohol consumption hours, however makes no change to the current restriction on gaming before 10 am. As prescribed in the Legislation, these laws will be independently reviewed in July 2018, two years after commencement.

The passing of these changes to licensing laws has come as a shock to licensees, particularly within the hotel industry, which is now grappling with the commercial impact the new legislation will have on licensed venues in Queensland.

Amendments to the Liquor Act 1992 (Qld)

Amongst other statutory amendments, the Legislation amends the Liquor Act by:

• preventing the sale and supply of alcohol after 2 am, except in the case of premises within a 3 am Safe Night Precinct, which may trade until 3 am (upon approved application for extended trading hours), and airports and casinos with commercial special facility licences, which may still apply for extended trading to 5 am. A 30 minute grace period will continue to apply, which allows patrons to finish their drinks after last drinks are called, and licensees retain their current ability to apply for up to 12 one-off permits per year to sell or supply liquor beyond their approved liquor trading hours up to 5 am;¹
• providing for the approval of existing Safe Night Precincts as 3 am Safe Night Precincts in consultation with the local boards. Only 11 out of the 15 existing Safe Night Precincts have a local board, which is a prerequisite under the Legislation to applying to become a 3 am Safe Night Precinct. If a 3 am Safe Night Precinct is declared, licensed venues that are currently approved for liquor trading until 3 am or later will automatically be approved to sell or supply liquor until 3 am from 1 July 2016. Venues within a 3 am Safe Night Precinct that do not have approval for extended liquor trading hours but wish to trade beyond standard hours (ie after 12 midnight) may apply for extended hours permits for liquor trading up to 3 am. The Minister may revoke a 3 am Safe Night Precinct approval if the local board does not provide adequate safeguards for 3 am trading, if the local board no longer wants the precinct to trade until 3 am or if the Minister determines that continued 3 am trading would have an undue adverse effect on health, safety or amenities. If the designation as a 3 am Safe Night Precinct is revoked, the entire precinct is required to end trading at 2 am;²
• bringing forward the existing 3 am lockout time under sections 142AA and 142AB of the Liquor Act to 1 am. The 1 am lockout provisions apply to all liquor suppliers in a 3 am Safe Night Precinct who trade after 1 am, including those that stop trading at 2 am. The lockout does not apply to premises located outside a 3 am Safe Night Precinct;³
• prohibiting the sale or consumption of high alcohol content and rapid consumption drinks (eg shots) after midnight, except at venues that specialise in premium spirits. The specific types and amounts of alcohol to be prescribed will be determined following a stakeholder consultation;⁴
• removing the ability for all commercial hotel, community club and commercial special facility licensees to apply for extended trading hours (outside of the standard 10 am - 10 pm) for the sale of takeaway liquor so that such applications can only be made for airports and casinos with commercial special facility licences. The transitional provisions within the Legislation prohibited, from 10 November 2015, any new applications for extended trading hours for the sale of takeaway liquor from being accepted or approved and provided for any such applications that were undecided as at 10 November 2015 to lapse. However, these changes do not affect existing extended trading approvals for takeaway liquor. Venues that currently sell or supply takeaway liquor to 12 midnight are able to continue to do so;⁵ and
• requiring licensees whose car parks are designated as part of their licensed premises to obtain approval from the Commissioner of Liquor and Gaming (the Commissioner) before holding an event where alcohol is to be consumed or supplied in the car park. This overrides existing approvals or conditions on licences. Such car park approvals are limited and will only apply on the day and during the specified hours stated in the Commissioner’s approval.⁶

Amendments to the Gaming Machine Act 1991 (Qld)

The Legislation also amends the Gaming Machine Act 1991 (Qld) (the Gaming Act) so that gaming hours and liquor consumption hours are no longer linked. Key changes include:⁷

• existing gaming hours are “grandfathered” under the Legislation so that venues that currently offer gaming and adult entertainment are able to continue to provide those activities for the duration of the approved gaming and adult entertainment hours in effect immediately prior to 1 July 2016, despite the winding back of liquor trading hours on 1 July 2016; and
• after 1 July 2016, gaming hours may be approved for up to two hours after the service of liquor has ceased, allowing gaming services to continue to trade up to 5 am in a 3 am Safe Night Precinct and 4 am outside of a 3 am Safe Night Precinct. Despite questions being raised in Parliament at the Second Reading Speech, the Legislation does not amend the prohibition on gaming before 10 am.⁸ The Palaszczuk Government has made it clear that it has no intention to change this regulation, nor will licences be provided that allow for pre-10 am trading.

Practical Considerations

Some of the practical consequences of the amendments to the Liquor Act include:

• local boards of Safe Night Precincts must apply to become 3 am Safe Night Precincts to allow their constituent licensed venues to trade until 3 am (upon individual approval of extended trading hours). Such applications have to be approved by the Minister before the Minister makes a recommendation to the Governor in Council to prescribe the Safe Night Precinct as an approved 3 am Safe Night Precinct. The boards of Safe Night Precincts have until 1 February 2017 to be officially prescribed as 3 am Safe Night Precincts, otherwise licensees within the Safe Night Precincts will automatically have their trading hours reduced to 2 am;⁹
• if a Safe Night Precinct does not currently have a local board, then one must be established in order to apply to the Minister to become a 3 am Safe Night Precinct;
• the primary beneficiaries of the Legislation are airports and casinos that hold commercial special facilities licences whose existing late night trading hours, or right to apply for extended trading hours until 5 am, remain intact and who are not affected by the 1 am lockout provisions;
• as existing gaming hours are unaffected by the Legislation, other beneficiaries of the Legislation include venues that are already licensed to provide gaming activities until 5.30 am, which will have at least a 30 minute, and up to a 1.5 hour trading advantage over other licensees who do not have extended gaming hours approvals before 1 July 2016;
• until 1 July 2016, the Liquor Act and Gaming Act still allow licensees to apply for extended liquor and gaming hours until 5 am and 5.30 am, respectively. Therefore, in order to lock in late night gaming until 5.30 am and despite the fact liquor trading hours will automatically reduce to 2 am or 3 am, depending on whether the venue is located within a 3 am Safe Night Precinct, from 1 July 2016, licensees who do not currently have approved extended trading hours may apply for extended liquor and gaming hours until 5.00am and 5.30am, respectively. However, the likelihood of applications being prepared, considered and approved by the Commissioner between now and 1 July 2016 is low and liquor applications not approved before 1 July 2016 will automatically be treated as applications to trade until 2 am or 3 am, as the case may be, which would mean extended gaming hours could only be approved until 4 am or 5 am, as the case may be. It is therefore likely that licensees who have not already lodged applications for extended trading hours will miss out on this advantage;
• due to the Legislation decoupling liquor and gaming trading hours, there will be the ability to offer gaming (upon approved application) well beyond the impending reduced liquor trading hours, which may be of some consolation to licensees who anticipate revenue losses due to reduced liquor sales.

Norton Rose Fulbright expertise

Norton Rose Fulbright is experienced in all aspects of the tourism and entertainment industries. Our comprehensive industry expertise includes a particular strength in liquor licensing, gaming regulations, town planning and property matters. We combine an unrivalled insight into the complex legal requirements of the industry with a real understanding of the commercial and practical aspects of our clients’ ventures. For further information please contact Tom Young or Julie Brown.