With the debate about the legal age to buy alcohol now resolved (it remains at 18), Parliament will soon turn its mind to the rest of the detail in the Alcohol Reform Bill. Recently, the Government tabled its final Supplementary Order Paper on the Alcohol Reform Bill, which Minister of Justice Judith Collins has said "will improve the Bill's workability and effectiveness, and addresses detailed policy issues arising from consultation and recommendations".
Once the Bill is enacted, territorial authorities will need to embrace a large number of changes in the way decisions are made about liquor licensing. In this FYI we look at three areas that will have a relatively large impact on territorial authorities - local alcohol policies, licensing committees, and liquor control bylaws.
Local Alcohol Policies
One of the key aspects of the Bill deals with Local Alcohol Policies (LAPs). LAPs will give territorial authorities a much greater influence over decisions about liquor licensing in their districts and cities. It is not mandatory for a territorial authority to have a LAP (clause 75 of the Bill simply empowers a territorial authority to have a policy), but if a territorial authority chooses to have a LAP, it may include policies on one or more of the following matters only:
- the location of licensed premises in relation to broad areas and by reference to proximity to premises or facilities of particular kinds;
- whether further licences (or licences of a particular kind or kinds) should be issued for premises in the district concerned (the first two bullet points do not apply to special licences);
- maximum trading hours;
- the issue of licences subject to conditions; and
- one-way door restrictions (ie, after a certain time, no persons are to be admitted or readmitted into a licensed premises).
At present a territorial authority is able to prepare an alcohol policy without going through any sort of procedure (including the special consultative procedure). By comparison, the Bill sets out a detailed procedure as to how a LAP must be adopted and publicly notified. This includes using the special consultative procedure to produce a "provisional LAP". Note that any person who makes a submission on a LAP will then be able to appeal the provisional LAP to the new Alcohol Regulatory and Licensing Authority (Authority). The only ground on which an element of the provisional LAP can be appealed is that it is unreasonable in the light of the object of the new Act.
If there are no appeals to a provisional LAP, then it is "adopted" 30 days after the date of its public notification (the territorial authority must give public notice of its adoption and resolve to bring it into force on a certain date). All of the provisions of the LAP will come into force on that date, except for provisions relating to one-way door restrictions and maximum trading hours (that differ from those applying previously) which have at least a three month time delay.
How far can a territorial authority go in developing its LAP before the Act comes into force?
Until the Government's Supplementary Order Paper was released, there was some confusion as to how far a territorial authority could go in developing a LAP before the provisions relating to LAPs come into force. Originally, the LAP provisions did not come into force until 12 months after the date of Royal assent. The Supplementary Order Paper now provides that the provisions relating to the preparation and consultation come into force on the day after the date of Royal assent. The rest of the LAP provisions (for example the provisions relating to appeals and when the LAP itself is adopted and comes into force) come into force 12 months after the date on which the Act receives Royal assent.
This means that territorial authorities can get on with the tasks of developing, preparing and consulting on their LAPs in the first 12 months after the Act comes into force. However, the earliest a LAP can come into force will be 12 months after the date of Royal assent and there will be another three months delay for the elements relating to one-way door restrictions and maximum trading hours as noted above.
For communities that choose not to develop a LAP, the national framework will apply, which in summary means that premises must operate within the national maximum trading hours. When licences are granted the District Licensing Committee will have to consider whether the licence will have a negative effect on the community, and conditions can be set on individual licences to further limit trading hours.
District Licensing Committees
One of the Bill's policy objectives is to improve the operation of the alcohol licensing system. The Bill will establish District Licensing Committees (Committees) that will perform the functions currently fulfilled by District Licensing Agencies, as well as a number of functions that are currently performed by the Liquor Licensing Authority. A Committee is a first instance hearing body and is tasked with the bulk of the workload of determining applications.
A territorial authority is able to have one or more Committees and each Committee will consist of three members appointed by the territorial authority (one of whom must be an elected member of the territorial authority or in the case of Auckland, a member of the governing body or of a local board). A territorial authority must establish, maintain and publish its own list of licensing committee members. In order to be on the "list", persons need to have experience relevant to alcohol licensing matters. However, constables, Inspectors and Medical Health Officers are disqualified as are persons who have, directly or by virtue of their relationship with another person, such an involvement or appearance of involvement with the alcohol industry that they could not perform their duties without actual bias or the appearance of bias. There is an ability to appoint commissioners to district licensing committees, and a commissioner will assume the role of chairperson of the Committee.
The functions of Committees include, amongst other things, considering and determining applications for licences and manager's certificates, their renewal, and applications for the variation, suspension and cancellation of special licences. A committee remains the first port of call to decide on any application, but with the leave of the chairperson of the licensing authority, it may refer an application to the Authority for decision. The Bill does not state the grounds for leave to refer an application from a Committee to the Authority, although as noted below, the ability of the Authority to issue practice directions for the guidance of the Committee, could potentially be utilised to address this omission in the Bill.
The provisions relating to Committees come into force 12 months after the date of Royal assent but territorial authorities will need to have sorted out their Committee membership before this time. Committee members will need to be up to speed with their new functions so that when the licensing provisions come into force (also 12 months after the date of Royal assent) the Committees will be able to get straight into the task of carrying out their new role.
Alcohol Regulatory and Licensing Authority
The current Liquor Licensing Authority will be replaced by the new Alcohol Regulatory and Licensing Authority. The Authority is intended to operate primarily in an appellate role (although some matters can be referred directly to it).
The Authority has the following functions:
- to consider and determine applications for licences, renewals, variations and manager's certificates (including renewals), when those matters are referred to it by a Committee;
- to consider and determine appeals from decisions of a Committee;
- to consider and determine appeals against elements of draft LAPs;
- to consider and determine applications by inspectors and constables for the variation, suspension or cancellation of licences and manager's certificates; and
- any other functions conferred on it.
Generally the Authority is intended to operate at a higher level than the current Liquor Licensing Authority. The new Authority is tasked with determining applications for variation, suspension and cancellation of licences and manager's certificates. All other applications, opposed or otherwise, are to be considered and determined by the newly established District Licensing Committees.
The Authority will be comprised of up to three District Court Judges and any number of other members. It can refer matters to the District Licensing Committees for investigation and may issue practice directions for the purpose of ensuring that the application and administration of the Bill is consistent.
Liquor Control Bylaws
One of the measures contained in the Bill relates to the management of alcohol in public places through an alcohol-control bylaw. Section 147 of the Local Government Act 2002 already allows territorial authorities to make bylaws that prohibit the consumption or possession of liquor in a public place (commonly referred to as a liquor ban). However, the Bill proposes replacing the current section 147 with four new sections relating to liquor bans. New section 147A introduces a wide range of criteria that territorial authorities must be satisfied of before making a bylaw. The territorial authority must be satisfied that:
- the bylaw can be justified as a reasonable limitation on people's rights and freedoms (except in the case of bylaws applying temporarily for large scale events);
- there is evidence that the area to which it is intended to apply has experienced a high level of crime or disorder that can be shown to be caused or made worse by alcohol consumption in the area; and
- the bylaw is appropriate and proportionate in the light of that crime or disorder.
If a liquor ban bylaw leaves matters to be determined by resolution (for example, it might provide that the territorial authority can by resolution impose a liquor ban on a certain area), then the Bill also provides that the territorial authority needs to be satisfied of similar matters before making the resolution.
These tests were introduced to meet the Law Commission's concerns "that deficiencies remain with the law contained in the Local Government Act 2002 relating to the establishment and scope of liquor bans". However, we wonder just how local authorities are going to be able to satisfy these stringent requirements in the future.
Conversely, the definition of public place is also being extended to include school grounds, private car parks and other private spaces to which the public has legitimate access for the purposes of issuing a liquor ban. This is a good thing.
Helpfully, the associated enforcement provisions will allow infringement notices to be issued for breaches of liquor ban bylaws (it appears that summary prosecutions will no longer be available).
Finally, hidden away in clause 410 of the Bill is a requirement that unless earlier revoked, a bylaw made before the commencement of clause 410 will expire five years after the commencement of Part 9 of the Bill. This means territorial authorities will need to schedule in a review of their current liquor ban bylaws within the next 5-6 years and decide whether they wish to remake them under the new provisions.
The new bylaw and associated enforcement provisions come into force 12 months after the Royal assent date.