By Andrew Starke
The NSW Government has unveiled the final shape of its ‘Three Strikes’ legislation and appears to have taken into account industry concerns over exactly what will constitute a serious offence.
Minister for Tourism, Major Events, Hospitality, Racing and the Arts, George Souris, said the revised policy followed consultation with the industry and key stakeholders over draft legislation introduced to Parliament earlier this year.
“The draft Liquor Amendment (3 Strikes) Bill 2011 was introduced in June with the express commitment that the industry would be consulted and have an opportunity to make submissions about this important legislation,” he said.
“The Government has carefully considered submissions and representations to ensure this policy targets rogue operators and does not adversely impact on responsible licensees.”
Legal experts and the NSW Opposition had variously described the draft legislation as ‘impractical’, ‘deeply flawed’ and ‘an extraordinary attack on the civil liberties of licensees’.
Of particular concern was that a ‘strike’ could stand even if a licensee defended the allegation in court.
However, Souris said his department realised its responsibility to publicans and other stakeholders and that venue size and capacity, change of licensee and business practices, compliance and incident history, and crime statistics would all be taken into account
“This policy delivers severe penalties so it’s paramount that the scheme operates fairly and effectively to deliver maximum benefits to communities where there are incidents of unacceptable alcohol-related behaviour,” he said.
“The scheme simplifies the policy and sends a clear message that there is no place for rogue licensees in the NSW liquor industry.”
Outgoing Australian Hotels Association (AHA NSW) CEO, Sally Fielke, said a number of key issues were still to be resolved.
“AHA (NSW) has said all along we are not out to protect poor operators and welcomes moves by the Government to curtail their activities,” she said.
“Whilst Government appears to have listened to stakeholders’ concerns in relation to this Bill, there are still some unintended consequences we intend to raise with Government affecting those operators doing the right thing.”
The key elements of the Three Strikes and You’re Out policy are:
- Strikes are incurred when a licensed venue is convicted of one of a range of serious offences under the Liquor Act;
- Offences include permitting intoxication, allowing violent behaviour on the premises, supplying alcohol to a minor or an intoxicated patron, selling alcohol outside authorised trading hours, allowing a substance on premises the licensee suspects is an illicit drug, failing to comply with an official direction, non compliance with a closure order and breaching key licence conditions;
- The first strike is automatically incurred upon conviction for an offence and is in force for three years. A second and third strike can be incurred upon further offence convictions within three years;
- A decision that a venue incurs a second strike is made by the Director General of NSW Trade and Investment;
- The Casino, Liquor and Gaming Control Authority – the State’s independent statutory body responsible for liquor licensing – will determine if a venue incurs a third strike and is subject to a review by the Administrative Decision Tribunal;
- Venue size and capacity, change of licensee and business practices, compliance and incident history, and crime statistics will need to be taken into account;
- A third strike can result in licence suspension for up to 12 months, licence cancellation and a moratorium on a new liquor licence being granted at the venue for the same business operators for up to 12 months or disqualification of a licensee for any period of time;
- In the case of a registered club a third strike can result in disqualification of a club secretary, dismissal of any or all of the club directors or the appointment of an external administrator to manage the club;
- Conditions can be imposed on licensed venues in response to the behaviour that led to strikes being incurred. These include bans on glass and responsible service of alcohol marshals for venues with one strike, and reduced trading hours, lockouts, drink restrictions and extra security measures for those subject to two strikes;
- Licensees will also be required to comply with any notice issued by the Director General restricting or prohibiting any activity that encourages misuse or abuse of alcohol such as drinking games;
- Reviews of decisions will be available by the Authority or the Administrative Decisions Tribunal;
- The Office of Liquor, Gaming and Racing will maintain a public registry of strikes;
- The Three Strikes and You’re Out legislation will be reviewed after four years to ensure it is operating effectively.
“This policy can deliver the ultimate sanction to rogue licensees who repeatedly put the safety of patrons and the broader community at risk – loss of licence and disqualification from the industry,” Souris said.
“The community should not have to tolerate licensees repeatedly committing serious liquor offences that lead to violence, anti social behaviour and neighbourhood disturbance.
“This scheme forces venues to lift their game. If a pub or club is convicted of one serious offence the first strike is automatically incurred. From this point on the venue is effectively on a good behaviour bond for three years, forcing them to maintain the highest standards to avoid further offences and strikes.”