“Drunk or disorderly persons on licensed premises” defences now much tougher under new Liquor Control Reform Act changes

Recent changes to the Liquor Control Reform Act (“the Act”) have considerably reduced the current defences available to licensees in relation to a drunk or disorderly patron present on their premises.

Previously the Act required that a licensee ensure that drunken or disorderly persons were not on the licensed premises. However, if a licensee could prove they did not know that the drunk or disorderly person was on the premises and they had taken reasonable steps to avoid this, the licensee had a defence to any such charge under the Act.

Now, for a licensee to defend a charge that there was a drunk or disorderly person on the licensed premises, the licensee will need to prove that:

  1. The licensee did not know the drunk or disorderly person was on the premises, and all employees, agents, directors and the nominee of the licensee who were on the premises at the time of the alleged offence, also did not know the drunk or disorderly person was on the premises; and
  2. That either the licensee or its employees, agents, directors or the nominee had taken reasonable steps to ensure that the drunk or disorderly person was not on the licensed premises.

These amendments have effectively increased the number of people who must take reasonable steps to prevent an offence occurring; and more importantly, must not have been aware of the drunk or disorderly person being on the premises.

As a result, they place a heavier burden on licensees and their employees to ensure that a drunk or disorderly person is not on the licensed premises, and once detected, to remove that person immediately.

The maximum penalty in relation to the offence is 120 penalty units (currently a fine of $17,713.20).

The amendment will force licensees to exercise stricter control over the management of their premises. Licensees must make sure all employees are aware of the changes to the Act, are adequately trained in the responsible service of alcohol and continually monitor and identify a drunk or disorderly person and remove such a person from the licensed premises.

If a licensee is found guilty of having a drunk or disorderly person on its licensed premises, this will result in:

  1. A significant increase in licence fees in the following year (if the premises trade after 1 am); and
  2. The incurring of a demerit point (a certain number of demerit points will ultimately result in the suspension of a licence, and also affect the licensee’s star rating).

What should licensees do?

Licensees must have appropriate management procedures in place to prevent a drunk or disorderly person being on licensed premises. This should ideally include written management procedures manuals, which should be made available to all staff, and which staff should acknowledge having read and understood.

Licensees should meet regularly with staff to make them aware of the increased onus on licensees, and to stress that staff must monitor patrons on licensed premises to ensure no is drunk or disorderly.

If a licensee receives an infringement notice or a charge alleging a drunk or disorderly person has been on the licensed premises, they should seek appropriate legal advice before paying the infringement or pleading guilty to the charge. This will help them determine whether the charge is defendable, given the significant implications that would flow from paying an infringement notice or having a charge proven.

Having the best possible management procedures – including written procedures manuals available to all staff – will improve the chances of a successful defence.

Licensees should also be aware that the law applies equally to a drunk or disorderly patron. That is, a licensee must remove a disorderly patron, even if not drunk, and remove a drunk patron even if the patron was not disorderly.

The offence also continues to apply to drunk patrons, as opposed to intoxicated patrons, which is an important distinction and might be relied upon in defending any infringement notice. Some of the drafting of the new sections of the Act may be open to a more liberal interpretation by a Court.

Given all this, it is important to obtain appropriate legal advice before paying any infringement notice. If you have any queries in relation to the amendments to the Act, please contact:

Michael Scully mscully@bsplawyers.com.au; or Elizabeth Priddle epriddle@bsplawyers.com.au