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1
Liquor and Other Acts Amendment Bill 2005
Liquor and Other Acts Amendment Bill
2005
Explanatory Notes
General Outline
Short Title
The short title of the Bill is the Liquor and Other Acts Amendment Bill
2005.
Policy Objectives of the Legislation
The primary policy objective of the Legislation is to amend the Liquor Act
1992 (Liquor Act) to impose statutory licence conditions on all licensed
premises in the Brisbane City Council area which are authorised to operate
after 1am.
The Legislation also aims to progress a number of miscellaneous
amendments to the Liquor Act which will minimise cumbersome
administrative processes for both government and stakeholders; reinforce
harm minimisation principles; and clarify the intent of particular sections
of the Act.
The additional minor administrative amendments to the Property Agents
and Motor Dealers Act 2000 (PAMD Act) and the Body Corporate and
Community Management Act 1997 (BCCM Act) relate to real estate
transactions. Specifically the amendments will clarify and codify the ways
that residential property contractual documents and pre-contractual
documents may be given to proposed buyers. Amendments to the BCCM
Act will also impact on the sale of lots in community titles schemes that are
not residential property.
Reasons for the Bill
The Premier and Minister for Trade hosted a summit on 25 February 2005
of Ministers, the Lord Mayor of Brisbane, the Lord Mayor of the Gold
Coast, licensees, industry representatives, the Queensland Police Service
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Liquor and Other Acts Amendment Bill 2005
and not-for-profit community organisations to discuss safety concerns in
Brisbane and possible solutions to the problem.
As a result the 17 Point Brisbane City Safety Action Plan (the Action Plan)
was released by the Premier and Minister for Trade on 1 March 2005. The
Action Plan is aimed at curbing inappropriate behaviour associated with
alcohol use in Brisbane. One of the recommendations in the Action Plan
was to amend the Liquor Act to impose tougher licence conditions on all
licensed premises in the Brisbane City Council area which are authorised
to operate after 1am.
In May 2003 the Liquor Licensing Division (the Division) of the
Department of Tourism, Fair Trading and Wine Industry Development
(DTFTWID) released a Discussion Paper which proposed a number of
amendments to the Liquor Act. A number of the proposed amendments
canvassed in the Discussion Paper are included in the Bill.
In 2002 a review of the PAMD Act conducted by the Office of Fair
Trading, identified a lack of clarity in the ways that seller or seller's agents
might give or deliver warning statements to proposed buyers. Under the
PAMD Act a warning statement must be attached as the first or top sheet of
the relevant or proposed relevant contract.
In July 2005, the Court of Appeal, in a matter before it, also made comment
which could limit the meaning of "attached" and noted that the facsimile
transmission of pre-contractual documents was not specifically included in
the legislation. This led to significant uncertainty in the real estate industry
and a demand to clarify the legislation. The amendments intend to define
"attach" in order to remove any doubt.
Where the transmission of contractual documents is by facsimile or email,
physical attachment of the warning statement to the proposed contract is
not possible. Processes to enable the delivery of contractual and pre-
contractual documents by facsimile or other means of electronic
communication, such as email transmission, have been developed. These
processes will ensure that consumers continue to have the greatest
opportunity to read and consider the warning statement which accompanies
the proposed relevant contract.
The BCCM Act includes consumer protection provisions relating to the
sale of lots in community titles scheme (for example, home units). The
provisions include a requirement for sellers to provide buyers with an
approved `information sheet' setting out various body corporate issues a
buyer should consider. Similar to the PAMD Act, the BCCM Act requires
the information sheet to be `attached' to the contract of sale. The Bill
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Liquor and Other Acts Amendment Bill 2005
includes amendments to the BCCM Act designed to ensure the processes
for providing buyers with BCCM information sheets complement those
proposed for the provision of warning statements under the PAMD Act. If
amendments to the BCCM Act are not made, the benefits of the proposed
amendments to the PAMD Act will not be realised in the sale of lots in a
community titles scheme.
Achieving the Objectives
The Bill contains amendments to the Liquor Act to impose statutory
licence conditions on all licensed premises in the Brisbane City Council
(BCC) area that are authorised to operate after 1am. These conditions
include a requirement that:
· all licensees develop and maintain a House Policy;
· licensees must employ sufficient numbers of crowd controllers as
outlined under the Regulation;
· a prohibition on competitions that involve contestants consuming
alcohol on the premises;
· all staff must complete Responsible Service of Alcohol (RSA)
training; and
· Closed Circuit Television (CCTV) be installed at each public entrance
and exit.
The amendments to impose statutory licence conditions on all licences in
the BCC area are the most efficient and effective means of imposing
uniform regulation. The amendments will increase community safety
through improved standards and increased security measures.
The Bill also contains a number of miscellaneous amendments to the
Liquor Act to minimise cumbersome administrative processes, clarify
intent and reinforce the objectives of the Act. Consultation on the
miscellaneous amendments has identified that they are the most effective
means of responding to industry, and community interests and meeting
government objectives.
The Bill also contains amendments to the PAMD Act. The amendments
will enable real estate sellers and their agents to fax or email pre-
contractual and contractual documents to buyers. This will facilitate real
estate sales processes by providing alternative means of giving sales
documents to buyers without sacrificing consumer protection processes
provided by the warning statement. The amendments are in accord with the
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Liquor and Other Acts Amendment Bill 2005
objects of the PAMD Act in regulating for the protection of consumers and
promoting freedom of enterprise in the market place.
The Bill further contains amendments to the BCCM Act to allow sellers
and their agents to provide buyers with the required BCCM information
sheet by facsimile and other electronic means, while ensuring an
appropriate level of consumer protection is maintained. The amendments
are designed to provide a complementary framework for the provision of
required consumer information between the PAMD Act and the BCCM
Act.
Administrative costs
Any financial impact from the development and implementation of
initiatives in the Bill will be met from the Department of Tourism, Fair
Trading and Wine Industry Development's (DTFTWID) existing budget
allocations.
Fundamental Legislative Principles
None of the amendments raise issues relating to Fundamental Legislative
Principles.
The Liquor Industry is already highly regulated by statute and the proposed
amendments are consistent with the existing regulatory approach which
seeks to minimise the potential harm of liquor abuse and misuse on the
community as a whole.
Conditions are currently imposed, under section 107C of the Liquor Act,
which give the Chief Executive a wide discretion to impose licence
conditions. The only fetter on this power is that any condition imposed
must be reasonable in the circumstances. Licensees therefore have a right
to appeal the decision of the Chief Executive. As the proposed Action Plan
amendments licence conditions will be imposed by statute, licensees will
have no right of appeal. The right to appeal a condition of a licence, under
section 30 of the Act, only applies to decisions of the chief executive.
The measures form part of the Government's broader Action Plan to
manage alcohol abuse, misuse and associated violence in Brisbane and will
be applied equally to all licensees in the BCC area.
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Liquor and Other Acts Amendment Bill 2005
Consultation
Community
Action Plan Amendments
The Premier and Minister for Trade hosted a summit on 25 February 2005
of Ministers, the Lord Mayor of Brisbane, the Lord Mayor of the Gold
Coast, licensees, industry representatives, the Queensland Police Service
and not-for-profit community organisations to discuss safety concerns and
possible solutions to the problem. Key issues raised were policing,
licensing arrangements, the success of the lock out provision on the Gold
Coast and advertising of discount drinks.
The Brisbane City Safety Action Plan Taskforce, chaired by the Director
General of the Department of Tourism, Fair Trading and Wine Industry
Development has been consulted on the proposed amendments relating to
the implementation of the Brisbane City Safety Action Plan. The Taskforce
includes representatives from key stakeholder groups including industry
organisations, industry businesses, community groups and the BCC.
Consultation has also taken place with the Liquor Industry Consultative
Forum. This forum is also convened by the Director General of the
Department of Tourism, Fair Trading and Wine Industry Development with
representatives from industry organisations, licensees, social justice
groups, industry consultants, and representatives of the Gold Coast City
Council, Queensland Health and Queensland Police.
Consultation regarding the proposed ratio for security providers was
conducted with the working party for the Office of Fair Trading review of
the Security Providers Act 1993. This group comprises representatives
from the Office of Fair Trading, security industry, unions, Griffith
University, the Consumer's Association and representatives from the
Department of the Premier and Cabinet, Queensland Treasury, Justice and
Attorney-General and the Division.
The Liquor, Hospitality and Miscellaneous Workers Union have also been
consulted.
On the 23 March 2005, the Division mailed a questionnaire to all licensees
in the BCC area who have the authority to operate after 1am seeking
comment on the proposed amendments. The survey was distributed to
approximately 327 licensees with 80 response received (25% response
rate).
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Liquor and Other Acts Amendment Bill 2005
During mid June a telephone survey was conducted to canvass licensees
about three of the proposed amendments to determine how much of an
impact the proposals would have on business. These three items were
crowd controllers, CCTV and RSA training. Of the 327 licensees
contacted, 152 provided responses (46% response rate).
On 24 June 2005, senior officers of the Division met with representatives of
the Brisbane City Licensees Association (BCLA). BCLA is a group of
licensees representing the interests of liquor licensees in Fortitude Valley,
Caxton Street and the central business district.
Senior officers of the Division have also discussed the proposed
amendments with individual licensees and their representatives including
liquor consultancy companies.
The proposed amendments were also canvassed in a combined Regulatory
Impact Statement/Draft Public Benefit Test (RIS/DPBT), pursuant to the
Statutory Instruments Act 1992 and the National Competition Policy
agreements, that was released for public consultation on 22 July 2005 with
a closing date for submissions of 22 August 2005.
Generally stakeholders are supportive of the amendments as they realise
the need to satisfy the communities concerns in relation to safety and
amenity in the BCC area.
Miscellaneous Amendments
There has been limited on-going consultation with the Queensland Hotel's
Association, Clubs Queensland and the Restaurant and Caterers
Association who have been advised of the amendments which will affect
their industry. The Local Government Association of Queensland has also
been informed of the changes.
PAMD Act and BCCM Act Amendments
While consultation with the real estate industry, through the Real Estate
Institute of Queensland (REIQ), was undertaken to determine the
magnitude and urgency of the problem, no community consultation was
undertaken.
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Liquor and Other Acts Amendment Bill 2005
Notes on Provisions
Clause 1 sets out the short title by which the Act will be known.
Clause 2 provides for the commencement date of the Act. Clauses 3, 4
(other than the excepted provisions), 25 to 31, 36 (other than the excepted
provisions) and Part 3 relate to the BCC Action Plan Liquor Act
amendments and commence on 1 December 2005. Part 4 relates to the
BCCM amendments and Part 5 relates to the PAMD Act amendments
which also commence on the 1 December 2005. The remaining clauses and
provisions relate to the miscellaneous amendments to the Liquor Act and
commence on the 1 January 2006.
Clause 3 states that Part 2 of the Bill amends the Liquor Act.
Clause 4 makes a number of amendments to the definitions contained in
section 4 of the Liquor Act. Clause 4(1) deletes the current definition of
trading period. Clause 4(2) inserts definitions for the following terms:
· Anzac Day event;
· approved training course;
· commencement;
· crowd controller;
· current training course certificate;
· development approval;
· exit;
· incident register;
· post-amended Act;
· pre-amended Act;
· trading period;
· training course certificate; and
· training register.
Clause 5 inserts a new section 4D into the Act. This new section will
confirm that the note is part of the Act.
Clause 6 amends section 9 in relation to the ordinary trading hours of
licensed premises to include the period from 5am until 1pm for an RSL or
Services Club providing a function on Anzac Day.
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Liquor and Other Acts Amendment Bill 2005
Clause 7 amends subsection 10(b) to allow liquor to be supplied on
Christmas Day, Anzac Day and Good Friday after the consumer orders a
meal and before they finish eating.
Clause 8 amends section 59 to specify that the phrase `approvals under
section 59(1)(d)(ii)' of the Act means detached bottle shops.
Clause 9 inserts into section 102A a new subsection (2) to authorise
licensed premises to trade between 5am and 1pm on Anzac Day if they
enter into an agreement with an RSL or Services Club to provide services
for an Anzac Day function at their premises. The new subsection
102A(2)(b) will limit the sale of liquor to the function.
Clause 10 will insert into section 102C a new subsection to allow for an
extended hours permit, that includes trading between 5am and 7am for a
one-off occasion, for a limited or special facility licensee. The new
subsection 102C(2)(a) will provide that the permit must not be granted
unless trading coincides with an event that the chief executive reasonably
considers to be a special event that occurs in the locality in which the
premises is located and is of particular significance or special interest to the
regular patrons of the premises. The new subsection 102C(2)(b) allows a
one off extended hours permit for a licensee holding a function at the
premises of an RSL or Services Club on Anzac Day.
Clause 11 inserts into section 102F(4) a new subsection to allow the chief
executive to grant a limited or special facility licensee a catering away
permit to supply liquor at an RSL or Services Club premises function on
Anzac Day. The new subsection 102F(4)(b) will limit the sale of liquor to
the function.
Clause 12 inserts in section 109 a new subsection to clarify that a person
may not be nominee for a licence if the same person is the holder of a
licence for which there is no nominee under the Act.
Clause 13 amends section 111(1) to clarify that a licensee may apply to
vary a licence by amending or revoking a condition of the licence. A new
subsection 111(1A) provides that only a limited or special facility licensee
may make application under this section to alter the times when business
may be conducted, as these two licenses are not subject to ordinary trading
hours. Trading hours for these two licenses are set by the conditions on
their licence. Therefore a licensee may make application to vary a licence
under this section by amending or revoking a condition of the licence.
The new subsection 111(1B) will allow a producer/wholesaler licensee to
apply to vary their licence by changing the description of the licensed
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Liquor and Other Acts Amendment Bill 2005
premises under the licence. This allows multiple warehouses and offices to
be listed under one produce/wholesaler licence.
The new subsection 111(2) is a consequential amendment which allows
Anzac Day trading from 5am.
Clause 14 will amend subsection 116(1)(b) to reiterate that the referral to
section 59(1)(d) means a detached bottle shop.
Clause 15 amends section 117 to provide that the chief executive may
choose to refer any application for a liquor licence to the local government
or the Officer in Charge of the police for the locality in which the applicant
is applying for the liquor licence. To make this clear, the term `relevant' has
been added to the section, and a definition of `relevant application' is
provided.
Clause 16 expands section 118 to exempt an application for a variation of a
special facility or limited licence for a one-off extended hours permit from
advertising, unless requested to do so, by written notice from the chief
executive. A new subsection 118(6B) will require the chief executive to
have regard to the nature of the proposed variation when considering an
application for an adult entertainment permit. A one-off adult
entertainment permit is currently excluded from advertising requirements.
Clause 17 amends subsection 121(6) to extend the existing six month
renewal period for an extended hours permit for the extension of trading
hours beyond 3am to a maximum renewal period of 12 months. Under the
amended subsection 121(6) applicants will be limited to applying for the
renewal within the period the chief executive decides and advises.
Clause 18 amends section 121A which provides for the renewal of
extended hours permits for an extension of trading hours beyond 3am. This
amendment will insert a new statutory process for the application of
renewal of permits. The amendments to section 121A will establish
specific timeframes for both the applicant and the Liquor Licensing
Division to comply. Accordingly, the process is:
· The Division will have four days after the receipt of an application or
renewal for an extended hours permit, to analyse and ensure all
necessary information has been received;
· The local government of an area and the Assistant Commissioner of a
locality may comment on, or object to, the application by giving
written comments or objections to the chief executive within 28 days
of receiving the chief executive's advice about the application.
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Liquor and Other Acts Amendment Bill 2005
Direction regarding the form of written comments will be contained in
guidelines prepared by the Division.
· The Division has five days to review the written report from the local
government of an area and the Assistant Commissioner of a locality
and forward it to the applicant.
· The applicant has fourteen days to respond to, and lodge any
objections against issues raised in the written report from the local
government and the Assistant Commissioner.
· The LLD has fourteen days for negotiations between the applicant, of
an area and the Assistant Commissioner of a locality to issue/reissue/
trial period licence.
Clause 19 amends subsection 123(3) to align the approval of a provisional
licence with the relevant period for a development approval given to the
applicant by a local council under the Integrated Planning Act 1997.
Clause 20 amends subsection 123A(3) which enables the chief executive to
grant authority to trade for a staged development. The amendment will
increase the period for the completion of the development from one to two
years.
Clause 21 amends section 123B, which provides for situations where a
provisional licence and a staged development approval are linked. This
amendment will link the process for the allocated time period to the
relevant period for the development approval given to the applicant by the
local council under the Integrated Planning Act 1997. An amendment to
subsection 123B(5) will limit the period of time for the currency of a
staged development approval by only allowing the approval to be renewed
four times.
Clause 22 amends subsection 123C(3) to provide that a provisional licence
is only current for the length of time stated in the licence. With the linking
of the relevant period for a development approval given to the applicant by
a local council under the Integrated Planning Act 1997, this may not
always be known when applying for the provisional licence. Therefore the
provisional licence is only valid while it is in force.
Clause 23 amends subsection 131(2) to provide that a person may not be
nominee for a licence if the same person is already the holder of a licence
for which there is no nominee under the Act. Under section 129 of the Act
a licensee must be physically present or appoint a nominee. Thus in the
absence of a nominee for one premise they cannot become a nominee for
another.
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Liquor and Other Acts Amendment Bill 2005
Clause 24 amends section 133 in regards to the surrender of club licenses.
The amendment will enable the surrender of licenses in cases where
licensees and interested parties associated with the licence, like mortgagees
and lessees, cannot reasonably be located. The amendments include a
process to enable the surrender of the licence in these circumstances.
Clause 25 deletes subsection 142AB(4) which outlines a definition of the
term patron. This definition has been moved to section 4 of the Act, as it
now applies to the whole Act and not exclusively to the section under
which it was written.
Clause 26 inserts a new Division 6 into Part 5 of the Liquor Act. The new
division imposes statutory licence conditions on licensed premises which
operate after 1am in the Brisbane City Council area. The new division is
required as the statutory conditions only apply to a specific area namely the
Brisbane City Council area.
Specifically clause 26 inserts new sections 142AD, 142AE, 142AF, and
subdivision 2 which includes sections 142AG, 142AH, 142AI, 142AJ,
142AK, 142AL, 142AM. Also inserted is Subdivision 3 which inserts
section 142AN.
Section 142AD sets out the definitions for Division 6. Under the division
`crowd controller' means the holder of a crowd controller's licence under
the Security Providers Act 1993. `Current training course certificate' means
a training course certificate that is valid for the period of three years from
the date of completion of the course. `Exit' is defined to exclude
emergency exits from the CCTV provisions under subsection 142AH(a).
`Incident register' refers to the term used and the keeping of such a register
under subsection 142AI(1)(a). `Trading period' is the period starting at
8pm on any day and ending at 7am the following day. `Training course
certificate' defines the type and currency of the certificate which complies
with the mandatory RSA training requirement contained in the new section
142AK. `Training register' refers to the term used and the keeping of such
a register contained in the new subsection 142AI(2)(a).
The new section 142AE identifies who the statutory licence conditions
apply to and which statutory licence conditions do not apply. In summary,
they apply to all licensed premises in the Brisbane City Council area who
are authorised in their liquor licence to sell or supply liquor on the premises
at any time after 1am. The licensee or permittee must comply with the
provisions every night they operate even if they only have authority to
operate after 1am on specific days of the year or the week.
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Liquor and Other Acts Amendment Bill 2005
The new subsection 142AE(2) provides that the Division does not apply to
licensed premises if the premises is only authorised, under subsection
9(13), to sell or supply liquor after 1am on New Year's Day. Nor does it
apply to that part of licensed premises which is used principally for the
residential accommodation of guests. The new subsection 142AE(3)
provides that it does not apply to premises which are authorised under
section 102C to trade, or if they are on the premises of an RSL or Services
Club, at 5am on Anzac Day only.
Further, the new subsection 142AE(4)(a) provides that the crowd controller
ratios as prescribed under section 142AG and Closed Circuit Television
(CCTV) requirements under section 142AH do not apply to the Brisbane
International or Domestic Terminal Buildings. Subsection 142AE(4)(b)
provides that the crowd controller ratios prescribed under section 142AG
do not apply to on-premises (meals) licensees (restaurants), Suncorp
Stadium, Queensland Sports and Athletics Centre, the Brisbane Cricket
Ground (Gabba), and the Brisbane Convention and Exhibition Centre.
The objects of the new section 142AF are the same as those provided for in
current subsection 148A(1). Sub section 148A(1) imposes obligations on
licensees and permittees in the conduct of their business for maintaining a
safe environment for patrons and staff, and ensuring liquor is served,
supplied and promoted in a way that is compatible with minimising harm.
The new Subdivision 2 of Division 6 provides for conditions of licensed
and permits.
The new section 142AG provides for the conditions. In subsection
142AG(a) licensee or permittee must ensure that at least the minimum
number of crowd controllers are engaged when the premises is open for
business and at least one hour after the close of trade. Subsection 142AG(b)
provides that the licensee or permittee must ensure that at least one of the
prescribed crowd controllers is located at each entrance and exit of the
licensed premises which patrons access during the trading period.
Subsection 142AG(c) provides that the crowd controller must have a
current training course certificate; must give the licensee or permittee a
copy of the certificate and a copy of the licence issued to the crowd
controller under the Security Providers Act 1993; and must be dressed in a
way that distinguishes the crowd controller from patrons of the premises.
Subsection 142AG(d) provides that the crowd controller's certificate and
licence must be kept in the training register whilst they are engaged in
maintaining order in and around the premises.
The new section 142AH outlines the conditions about closed circuit
television (CCTV). Subsection 142AH(a) provides that the licensee or
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Liquor and Other Acts Amendment Bill 2005
permittee must ensure that they install closed circuit television equipment
at each entrance and exit of the licensed premises which patrons access
during the trading period. The CCTV equipment must meet the standards
prescribed under the regulation. It must be operational and recording for
the trading period which starts at 8pm and ends at the time the premises
would ordinarily otherwise close for business. With respect to privacy laws,
signage must be displayed in the premises to notify patrons that CCTV is
installed and operating. The CCTV must not be operated by anyone other
than the licensee, permittee or nominee or a designated person responsible
for the management of the premises. The recordings must be kept in a
secure place and available for inspection or viewing by an investigator as
requested, until it is erased or destroyed or given to an investigator. The
recordings cannot be viewed, erased or destroyed by a person other than an
investigator, licensee, permittee or nominee or a designated person
responsible for the management of the premises. The recordings, unless
they are given to an investigator, must be kept for at least 28 days (the
retention period) after they are made if there is not an incident on them
which is to be recorded in the incident register, but must not be kept longer
than 30 days after the 28 day period. For all other purposes the recordings
must be destroyed not earlier than one year after the retention period for the
recording ends.
The new section 142AI sets out the requirements for incident and training
registers. Subsection 142AI(1) outlines that an incident register must be
kept in relation to any incident on the licensed premises in which a person
is injured or required to be removed from the premises. The details which
must be kept in the incident register are prescribed under the regulation.
The incident register must be signed by all members of staff who dealt with
the incident and must be available to an investigator as requested. In respect
of privacy laws the incident register must be kept in a secure place at the
premises and must not be inspected by anyone other than the licensee,
permittee or nominee or a designated person responsible for the
management, and the staff involved in an incident recorded in the register.
Subsection 142AI(2) outlines that a training register must be kept, with the
details to be contained in that register prescribed under the regulation.
Current training course certificates, as outlined in the crowd controllers
provisions and to be outlined under section 142AK, state the conditions
about training course certificates for particular persons. The training
register must also contain information relating to training persons involved
in the service of supply of liquor at the licensed premises or premises to
which the permit relates. The training register must be available to an
investigator as requested.
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Liquor and Other Acts Amendment Bill 2005
The new section 142AJ provides for the condition about a house policy.
The licensee or permittee must have a house policy for the premises to
which the licence or permit relates, and it must be available for inspection
as requested by patrons and investigators. Signage must be displayed at the
premises identifying that there is a house policy and it is available for
inspection. The licensee or permittee must ensure all staff of the premises,
including crowd controllers, are aware of and perform their duties at the
premises in compliance with the house policy. The licensee or permittee
must also ensure that as soon as possible after the house policy is prepared,
the chief executive of the Division must receive an approved form about the
policy. For the purposes of this section house policy is defined in
subsection 142AJ(3) as a document containing information about the
procedures and practices, relating to the matters prescribed under the
regulation, for the conduct of business at the premises.
The new section 142AK provides for the condition about training course
certificates for the completion of the Division's RSA training program. The
section provides that licensees or permittees, nominees, and all other staff,
including bartenders, glass collectors, floor hosts or hostesses, and room
service staff, must all have a current training course certificate. Subsection
142AK(2) provides that members of staff have 30 days from beginning
employment to obtain a training course certificate. The section also
reiterates the provisions set out in section 142AI(2) with regards to a
training register.
The new section 142AL provides for the condition about drinking
practices. Subsection 142AL(1) provides that the licensee or permittee
must not conduct on the licensed premises a competition or game in which
contestants or players consume liquor on the premises or free or discounted
liquor is given as a prize. Other activities which must not be conducted are
prescribed under the regulation. Subsection 142AL(3) provides that the
licensee must not conduct a `restricted activity', defined as an activity in
relation to which liquor is available for consumption on the premises at a
price less than that normally charged for the liquor. Subsection 142AL(2)
provides an example of a `restricted activity', a happy hour, which must not
be conducted for more than two hours a day or after 9pm in the trading
period. This amendment will complement the Liquor Licensing Division's
Code of Practice for the Responsible Service, Supply and Promotion of
Liquor.
The new section 142AM provides that licensed premises to whom the
conditions contained in Division 6 relate to must comply with the
conditions. The section additionally provides that if a licensee or permittee
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Liquor and Other Acts Amendment Bill 2005
breaches the statutory licence condition a maximum penalty of 100 penalty
units or $7,500 for individuals or $37,500 for corporations may be applied.
The new section 142AN ensures that a breach of the statutory licence
conditions contained in the new Division 6 are grounds for cancellation,
suspension or variation of a permit and grounds for disciplinary action
under sections 134 and 136 of the Liquor Act.
Clauses 27 to 31 replace the current term used in the Act for the licensees
and nominees course from `course' to `an approved training course'.
Clause 32 inserts new subsections into section 154 to provide for the
alteration and maintenance of licensed premises. The new subsection
enables the chief executive to request that a management plan be lodged
with all applications regardless of whether they involve a permanent or
temporary change to the licensed area.
Clause 33 expands subsection 155(4)(e) to enable the chief executive to
permanently exempt by way of a licence condition a minor being on
premises. It is anticipated that this provision will be utilised in limited
situation such as to enable minors to travel on licensed premises.
Clause 34 amends section 228 and provides for the automatic suspension of
a licence if within a two year period two convictions are recorded against
the holder of a licence for offences relating to the sale of liquor to minors or
unduly intoxicated persons. This amendment will clarify the existing power
of the chief executive.
Clause 35 expands section 233 to include other matters which may be
accepted by a court as being an accurate statement or record without further
investigation or evidentiary procedure. These other matters are a statement
that the specified date was Good Friday in that calendar year and a
statement from the chief executive that a particular person does or does not
hold a licence or permit.
Clause 36 inserts a new Division 6 in Part 12 which outlines the transitional
provisions for the amendments to the Act. Transitional provisions are
applied to current sections 268, 269, 270, 271, 271A, 272, 273 and 274.
Most of the transitionals are technical however the new amendment to
section 273 will provide that if a person has completed RSA training within
3 years of the commencement of the new requirements then their training is
considered to be current. The new section 274 will provide that the
statutory licence condition requiring training course certificates will not
take effect for 30 days after the commencement. This will allow an
appropriate period for licensees to ensure that new staff are suitable for the
position before they engage in training.
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Liquor and Other Acts Amendment Bill 2005
Clause 37 inserts a new Part 3 into the Liquor Amendment Act 2005.
Clause 38 amends section 8 of the Liquor Amendment Act 2005 to delete
the definition for trading period and replace it with the following definition
outlined under the new section 142AD. `Trading period' means the period
starting at 8pm on any day and ending at 7am on the following day.
Body Corporate and Community Management Act 1997
Clause 39 identifies the Body Corporate and Community Management Act
1997 (the BCCM Act) as the Act being amended by Part 4.
Clause 40 inserts two new sections (sections 205A and 205B). Section
205A defines `attached' and `electronic communication' for the purposes
of Chapter 5. The section also establishes an identifying tag (`disclosure
statement') for body corporate information required to be provided to
buyers under sections 206(2) to (4) and sections 213(2) to (4). In addition,
the section establishes the meaning of `residential property' by reference to
the Property Agents and Motor Dealers Act 2000 (the PAMD Act).
One of the purposes of amendments of the BCCM Act is to facilitate the
use of communication technology in real estate transactions. Section 205B
establishes that Chapter 5 is subject to the Electronic Transactions
(Queensland) Act 2001.
Clause 41 amends section 206. Section 206 requires the seller of an
existing lot in a community titles scheme to provide the buyer with a
statement setting out certain information about the particular scheme
(tagged as a `disclosure statement'), as well as an approved `information
sheet' which provides general information about body corporate issues.
Clause 41 amends subsections (1), (2), (3), (4) and (8) to incorporate the
identifying tag `disclosure statement'.
Clause 41 also amends subsections (5) and (6) which require sellers of lots
included in community titles schemes to provide buyers with an approved
information sheet. Subsection (5) is amended to require the seller of a lot
that is not residential property (as defined in the PAMD Act) to give the
buyer an information sheet in accordance with the new section 206A.
Subsection (6) applies for contracts for the sale of lots that are residential
property. Specifically, subsection (6) is amended to provide that a seller
must provide a buyer with an information sheet and a warning statement in
accordance with specified provisions of the PAMD Act.
Due to the amendments to subsections (5) and (6) described above, Clause
41 amends subsection (7) which allows a buyer to cancel a contract if a
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Liquor and Other Acts Amendment Bill 2005
seller fails to comply with requirements of section 206. Subsection (7) is
amended to allow a buyer to cancel a contract if a seller fails to comply
with subsections (1), (5) or (6).
Finally, Clause 41 omits the definition of `residential property' in
subsection (9) which is to be included in the new section 205A.
Clause 42 provides for a new section 206A. As provided in section
206A(1), the new section sets out how a seller of a lot that is not residential
property provides a buyer with the required information sheet. The
requirements under section 206A are not as strict as those required for the
sale of residential property. This recognises that generally, purchasers of
residential property require stricter protection regarding information about
their purchase than buyers of non-residential or commercial property.
However, it is considered that arrangements in subsections (2) to (4) of
section 206A will provide an appropriate level of protection for buyers of
non-residential property.
Subsection (2) applies to sellers providing buyers with the information
sheet and contract by facsimile. The subsection stipulates the order in
which documents are to be faxed to the buyer. The provision seeks to
ensure that the information sheet and contract are prominent and brought to
the attention of the buyer. Unlike provisions relating to residential property
under the PAMD Act, subsection (2) allows for other documents to
accompany the facsimile (subsection (2)(d)), however, these must follow
the information sheet and contract.
Subsection (3) applies to sellers providing buyers with the information
sheet and contract by electronic means, other than facsimile. The
subsection requires the seller to provide the buyer with a single electronic
document with the information sheet as the first or top page of the
document.
Subsection (4) applies to sellers providing buyers with the information
sheet and the contract in a way other than by electronic communication.
The subsection requires the information sheet to be attached to the contract.
Clauses 43 to 45 amend sections 207 to 209 to incorporate the identifying
tag `disclosure statement'.
Clause 46 amends section 213. Section 213 requires the seller of a
proposed lot intended to come into existence as a lot included in a
community titles scheme to provide the buyer with a statement setting out
certain information about the proposed scheme (tagged as a `disclosure
statement'), as well as an approved `information sheet' which provides
general information about body corporate issues.
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Liquor and Other Acts Amendment Bill 2005
Clause 46 amends subsections (1), (2), (3), (4) and (7) to incorporate the
identifying tag `disclosure statement'.
Clause 46 also amends subsection (5) which requires sellers of lots
proposed to be included in community titles schemes to provide buyers
with an approved information sheet. Subsection (5) is amended to require
the seller of a lot that is not residential property (as defined in the PAMD
Act) to give the buyer an information sheet in accordance with the new
section 213A. A new subsection (5A) applies for contracts for the sale of
lots that are residential property. Specifically, subsection (5A) is amended
to provide that a seller must provide a buyer with an information sheet and
a warning statement in accordance with specified provisions of the PAMD
Act.
Due to the amendments to subsection (5) and the new subsection (5A)
described above, Clause 41 amends subsection (7) which allows a buyer to
cancel a contract if a seller fails to comply with requirements of section
213. Subsection (7) is amended to allow a buyer to cancel a contract if a
seller fails to comply with subsections (1), (5) or (5A).
Finally, Clause 46 omits the definition of `residential property' in
subsection (8) which is to be included in the new section 205A.
Clause 47 provides for a new section 213A. As provided in section
213A(1), the new section sets out how a seller of a lot that is not residential
property provides a buyer with the required information sheet. The
requirements under section 213A are not as strict as those required for the
sale of residential property. This recognises that generally, purchasers of
residential property require stricter protection regarding information about
their purchase than buyers of non-residential or commercial property.
However, it is considered that arrangements in subsections (2) to (4) of
section 213A will provide an appropriate level of protection for buyers of
non-residential property.
Subsection (2) applies to sellers providing buyers with the information
sheet and contract by facsimile. The subsection stipulates the order in
which documents are to be faxed to the buyer. The provision seeks to
ensure that the information sheet and contract are prominent and brought to
the attention of the buyer. Unlike provisions relating to residential property
under the PAMD Act, subsection (2) allows for other documents to
accompany the facsimile (subsection (2)(d)), however, these must follow
the information sheet and contract.
Subsection (3) applies to sellers providing buyers with the information
sheet and contract by electronic means, other than facsimile. The
subsection requires the seller to provide the buyer with a single electronic
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Liquor and Other Acts Amendment Bill 2005
document with the information sheet as the first or top page of the
document.
Subsection (4) applies to sellers providing buyers with the information
sheet and the contract in a way other than by electronic communication.
The subsection requires the information sheet to be attached to the contract.
Clauses 48 to 51 amend section 214 to 217 to incorporate the identifying
tag `disclosure statement'.
Clause 52 amends the dictionary in schedule 6 of the Act to define
"attach", "disclosure statement", "electronic communication" and
"residential property" by reference to the new section 205A.
Property Agents and Motor Dealers Act 2000
Clause 53 notes that Part 5 amends the PAMD Act.
Clause 54 amends section 363(b) to include a requirement that proposed
relevant contracts, as well as relevant contracts, must include a statement
that the contract is subject to a cooling-off period (the PAMD Form 30c
Warning Statement).
Clause 55 adds definitions for "attached", "electronic communication",
"information sheet", "unit sale" and "warning statement" to apply in
Chapter 11 of the PAMD Act. Examples of "attached" indicate ways of
attaching the warning statement, and the information sheet (in the case of a
unit sale), to the contract or proposed contract so that there is compliance
with the provisions of the PAMD Act. Inclusion of definitions of
"information sheet" and "unit sale" ensure that requirements in the BCCM
Act to provide an information sheet for the sale of lots or proposed lots in a
community title scheme in addition to the PAMD Act requirement for the
warning statement, fit within the processes for providing documents.
Clause 56 confirms that Chapter 11 is subject to the Electronic
Transactions (Queensland) Act 2001 in a new section 364A.
Clauses 57 to 59 amend the PAMD Act by omitting section 365, inserting a
new section 365 and amending sections 365A and 365B as necessary.
These amendments do not change the intention of the omitted provision in
establishing when the buyer and seller are bound under a relevant contract
as this is the critical point at which the cooling-off period commences for
the buyer, but provide greater detail depending on the method by which
contracts and pre-contractual documents are provided.
The amending sections confirm that where the warning statement, the
information sheet (in the case of a unit sale), and the relevant contract,
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Liquor and Other Acts Amendment Bill 2005
signed by both the buyer and seller, can be physically attached when given
to the buyer by the seller or seller's agent, the warning statement must be
attached as the first or top sheet of the relevant contract. Where the
documents are provided by facsimile or by other means of electronic
communication, when the documents cannot be physically attached, the
provisions detail processes for giving a cover page or message providing
information about the documents; the warning statement, information sheet
(in the case of a unit sale); and relevant contract.
Clause 60 omits Chapter 11, part 2 of the PAMD Act and inserts a new part
2 with a number of new sections to allow for the provision of the warning
statement, information sheet (in the case of a unit sale) and proposed
relevant contract (that is, the pre-contractual documents) to a proposed
buyer in a variety of ways, including by electronic communication.
Section 366 provides for the giving of the warning statement, information
sheet (in the case of a unit sale) and proposed relevant contract to a
proposed buyer by fax. The section provides a process for giving a message
which provides information about the documents; the warning statement;
information sheet (in the case of a unit sale); and relevant contract.
Section 366A provides for the giving of the warning statement; information
sheet (in the case of a unit sale); and proposed relevant contract to a
proposed buyer by electronic communication, other than fax, for example
by e-mail. The provision provides a process for giving a message which
provides information about the documents; the warning statement,
information sheet (in the case of a unit sale) and relevant contract.
Section 366B provides for the giving of the warning statement and
proposed relevant contract to a proposed buyer in a way other than by fax
or other electronic communication. This section provides the process when
the documents are given directly to the proposed buyer in hard-copy form,
that is, directly handed to the buyer, or sent to the buyer, such as by
Australia Post or parcel delivery services.
A new section 366C provides for the correction of any error in the process
of giving or delivering a proposed relevant contract to a proposed buyer, by
allowing the seller or seller's agent to give a written notice to the proposed
buyer. The notice must identify the failure to comply with the processes for
giving the documents, state that the proposed relevant contract is
withdrawn and advise whether new documents which comply with the
requirements of Part 2 of Chapter 11 will be sent to the proposed buyer.
Errors can only be corrected if the notice is given to the proposed buyer
before the proposed buyer and the seller have both signed the proposed
relevant contract.
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Liquor and Other Acts Amendment Bill 2005
New section 366D retains the parts of the omitted provision in relation to
the contents of a warning statement which require a statement purporting to
be a warning statement to be presented substantially in the same way as the
in the approved form; require a warning statement to be signed and, where
the contract is handed to the buyer, that it is to be signed prior to the signing
of the proposed relevant contract.
New section 367 (Buyer's rights if a warning statement is not given or is
not effective) is substantially the same as the omitted section 367 save for
amendments in order to make it consistent with the other amendments to
Chapter 11, Part 2.
The amendments preserve the buyer's rights to terminate the relevant
contract at any time before settlement of the contract if the warning
statement requirement for a proposed relevant contract or relevant contract
is not complied with or the warning statement is of no effect (such as, not
being substantially in accordance with the approved form).
Clauses 61 to 64 correct references to "contract" by substituting the words
"relevant contract" and, where appropriate, omit reference to "proposed
contract" and insert "proposed relevant contract" to standardise and clarify
the wording in all appropriate sections.
Clause 65 makes complementary amendments to the Dictionary.
© State of Queensland 2005