Unless expressly referred to in this explanatory note, proposed amendments set out in this Supplementary Order Paper are technical or verbal only.
The amendment to clause 2 adjusts the sequence of commencements provided for by that clause. At present, it provides that—
certain formal provisions come into force on assent:
clause 60(3) (which requires holders of off-licences to take reasonable steps to verify that a buyer of alcohol sold by remote sale, and any person receiving it on behalf of the buyer, is not under the purchase age) is to be brought into force by Order in Council:
all other provisions come into force either 6 months or 12 months after assent.
The adjustments have the effect of providing for a more orderly initiation of the mechanisms provided for by the Bill, by—
changing the commencement of a number of provisions from 6 months after assent to 12 months after assent; and
changing the commencement of a number of other provisions from 12 months after assent to 6 months after assent.
Several amendments to clause 5(1) (which contains definitions of terms used in the Bill) are proposed.
First, a redrafted definition of alcohol is proposed. In essence, it is the same as the present definition. But it is expanded slightly to allow for the possibility of new methods of processing and delivering alcohol (for example, aerosols).
Secondly, a new definition of intoxicated, aligning more closely with the criteria used by the Police in day-to-day policing, is proposed.
Thirdly, new definitions of alcohol area, beer, fruit or vegetable wine, grape wine, mead, principal business, and single-area condition are proposed. The definitions of alcohol area, principal business, and single-area condition arise out substantive amendments proposed later in this paper. The definitions of beer, fruit or vegetable wine, grape wine, and mead replace equivalent definitions at present contained in clause 59(3).
Proposed new clause 5A
Proposed new clause 5A is a global provision enabling people (if they wish) to use electronic means of recording information for the purposes of the Bill, rather than paper-based records. The clause does not apply to obligations to display a notice or sign.
Clause 35A is a key provision of the Bill, in that it is a mechanism for decision-makers to use in determining whether premises are a grocery store. One criterion is that the principal business carried on in the premises must be the sale of food products. To help decision-makers decide what is a food product, subclause (1) contains a partial definition of food product providing that neither ready-to-eat prepared food nor snack food is a food product.
It is now proposed to add 2 further partial definitions—of ready-to-eat prepared food and snack food. These will not displace the everyday meanings of those terms. Rather they will enable those meanings to be clarified by regulation. Regulations will be able to make clear that (for the purposes of the Bill) either of the categories described by those terms includes or does not include food of a particular description.
In addition, the new definition of principal business proposed to be inserted into clause 5(1) will have the effect of requiring decision-makers to determine what the principal business of a shop is by using a means prescribed by regulation.
At present, clause 57 requires the holder of an on-licence or off-licence to display at all times a sign attached to the outside of the premises, so as to be easily read by people immediately outside each principal entrance, stating the ordinary hours of business during which the premises are open for the sale of alcohol. It is proposed to amend the clause so that the requirement is that there should, for each principal entrance to the premises be displayed a sign attached to the inside or outside of the premises, so as to be easily read by people immediately outside the entrance.
It is proposed to replace clause 59 with a simplified clause to largely the same effect. It now relies on the definitions of beer, mead, fruit or vegetable wine, and grape wine proposed to be inserted into clause 5(1); and it no longer contains any link to the New Zealand food standards under section 11C of the Food Act 1981.
Clause 100 states the criteria for issue of licences. One criterion is whether, in the opinion of the licensing authority or licensing committee making the decision,
“the amenity and good order of the locality would be likely to be reduced, by more than a minor extent, by the effects of the issue of the licence”. This does not engage directly with a situation where the amenity and good order of the locality are already so badly affected by the effects of the issue of existing licences that they would be unlikely to be reduced further by the effects of the issue of another licence.
It is now proposed to add another criterion making clear that the authority or committee may refuse a licence in such a situation.
Clauses 105A to 105D
Another key provision of the Bill is clause 105A, which requires off-licences for premises that are a supermarket or grocery store to be subject to a condition describing one part of the premises (not containing a thoroughfare) as a permitted area for the display and promotion of alcohol. Such a condition takes effect as a condition that the licensee—
must ensure that no display, advertisement, or promotion of alcohol occurs outside the part described; and
must not arrange the premises in such a way that any part of the part described becomes a thoroughfare.
It is now proposed to replace that clause with different and more detailed provisions.
Clause 105A states the purpose of clauses 105A to 105C (which is to limit (so far as is reasonably practicable) the exposure of shoppers in supermarkets and grocery stores to displays and promotions of alcohol, and advertisements for alcohol), and requires off-licences for premises that are a supermarket or a grocery store to be subject to a condition (a single-area condition) describing one area within the premises (the alcohol area) as a permitted area for the display and promotion of alcohol.
The following explanation refers only to displays of alcohol (or products that are not alcohol). But the provisions to which the explanation relates apply equally to promotions of and advertisements for alcohol (or products that are not alcohol).
Clause 105B states the process by which it is to be determined how an alcohol area is to be described for any premises.
It must be described by means of a plan of the footprint of the premises, which must show the configuration and arrangement of the premises and the perimeter of the area.
It must not contain any area that, in the opinion of the decision-maker,—
is an area through which the most direct pedestrian route between any entrance to the premises and the main body of the premises passes; or
is an area through which the most direct pedestrian route between the main body of the premises and any point of sale passes.
An alcohol area may be (but does not have to be) described so that it is divided into 2 or 3 sub-areas. In that case the areas will be designated as—
the core area and the secondary area; or
the core area, the secondary area, and the overflow area.
Clause 105C states the effect on licensed premises of a single-area condition, which is that—
If the alcohol area has not been divided into sub-areas, the condition also has the effect that no display of a product that is not alcohol can occur within the alcohol area.
If the alcohol area has been divided into 2 sub-areas, the condition also has the effect that—
no display of a product that is not alcohol can occur within the core sub-area:
a display of a product that is not alcohol can occur within the secondary sub-area if no display of alcohol is occurring there.
If the alcohol area has been divided into 3 sub-areas, the condition also has the effect that—
no display of a product that is not alcohol can occur within the core sub-area:
a display of a product that is not alcohol can occur within the secondary sub-area if no display of alcohol is occurring either there or in the overflow sub-area:
a display of a product that is not alcohol can occur within the overflow sub-area if no display of alcohol is occurring there.
Clause 105C(5) makes clear that (for the purpose of the various restrictions on promotions of alcohol) neither of the following is a promotion of alcohol:
a sign (consistent with other general signage in the supermarket or grocery store concerned) giving directions to, or describing the location of, an area where alcohol is available:
a newspaper, magazine, or catalogue containing a promotion of or advertisement for alcohol.
Clause 105D applies to new single-area conditions, whether—
a single-area condition imposed on the renewal of an off-licence that has not been subject to a single-area condition; or
a single-area condition imposed on the renewal of an off-licence that has been subject to a materially different single-area condition.
It allows the operation of a new single-area condition to be postponed for up to 18 months so as to allow the licensee to make any necessary changes to the premises.
New clauses 139A and 139B
New clauses 139A and 139B relate to the effect on certain kinds of decision made under the Bill of the lodging of an appeal, and take the place of existing clauses 154 and 155.
New clause 139A relates to decision to grant a licence or a manager's certificate, Such a decision has no effect until the time allowed for filing an appeal has expired if—
an objection to the application for it has been filed and not withdrawn; or
a report by the Police, an inspector, a member of the fire service, or a Medical Officer of Health recommended that the application be refused.
New clause 139B relates to decisions of the licensing authority (other than decisions to which clause 139A applies) that are appealed against. As a general rule, such a decision continues in force pending the final determination of the appeal. But if there is an appeal from the licensing authority to the High Court, the High Court can freeze the decision pending the final determination of the appeal.
At present, clause 199(1) provides that the requirement to have a manager on duty at all times when alcohol is being sold or supplied to the public on any licensed premises does not apply to a club licence or a licence for a BYO restaurant.
It is proposed to replace this provision with 2 new subclauses that exempt a larger range of premises from the requirement.
The requirement will not apply to:
And at a time when no alcohol is being sold or supplied for consumption on the premises, it will not apply to winery premises for which both an off-licence and an on-licence is held.
Two significant amendments to clause 224 (which creates offences in relation to the supply of alcohol to young people) are proposed.
First, it is proposed to insert a new subclause (1A), making it an offence to supply alcohol irresponsibly to a person aged 18 or 19. This will apply whether or not the supplier is a parent or guardian, or has the consent of a parent or guardian.
Secondly, one of the 3 defences stated in clause 224(3) in relation to the offence of supplying alcohol to a minor is tightened.
At present it is a defence if the supplier believes on reasonable grounds that he or she has the consent of a parent or guardian of the minor, and supplies the alcohol in a responsible manner. It is now to be a defence only if the supplier believes on reasonable grounds that he or she has the express consent of a parent or guardian of the minor (and supplies the alcohol in a responsible manner).
Clauses 254 to 257
Now that the Search and Surveillance Act 2012 is in force, it is proposed to replace clauses 254 to 257 (which relate to search warrants, powers of entry and search, and powers of people assisting a constable executing a search warrant) with a new clause 253A, simply providing that Part 4 of the Search and Surveillance Act 2012 applies to warrants issued under clause 253.
It is proposed to make to clause 260 an amendment having the effect of reinstating some elements of an evidential/procedural provision whose effective deletion was recommended to the Justice and Electoral Select Committee, but is now seen to have effects that go further than originally expected.
Proposed new subclause (2A) relates to offences containing an element to the effect that the defendant—
was not entitled to have alcohol sold or supplied to him or her; or
was not entitled to consume or procure alcohol or have it in his or her possession on licensed premises (or any particular part of any licensed premises).
The subclause provides that such an element must be treated as having been proved, unless at least 20 working days before the hearing the defendant puts the question in issue by notice to the prosecution.
New clauses 382A and 383B
New clauses 382A and 383B apply to alcohol that is not beer, mead, and wine, but contains less than 15% ethanol.
New clause 382A empowers the making of regulations regulating or prohibiting the sale on licensed premises of alcohol of this kind. The regulations may apply to all alcohol of this kind, or only certain categories. And they may apply to all licensed premises, or only to premises for which a licence of a particular description is held.
New clause 382B requires the Minister to consult persons representative of interests likely to be substantially affected by regulations to be made under clause 382A before recommending that they be made.
New clauses 389 and 389A
It is proposed to replace clause 389 (which provides for certain applications made under the Sale of Liquor Act 1989 to be disposed of under that Act) with 2 more elaborated clauses.
New clause 389 relates to applications for a licence, the cancellation, renewal, or suspension of a licence, or a variation of a licence, made under the 1989 Act before the day 6 months after the day on which the Bill receives the Royal assent (the day of assent). If the clause applies to an application, the application must be dealt with by the licensing authority or District Licensing Agency—
But any licence granted takes effect as an interim licence only, expires 12 months after it is issued, and cannot be renewed.
An applicant can, however, opt to have an application dealt with under clause 389A instead, and obtain a renewable licence.
New clause 389A relates to certain applications made under the 1989 Act between 6 and 12 months after the day of assent. (This will be possible, because some provisions of the Bill do not come into force immediately, and the corresponding provisions of the 1989 Act stay in force until they do.) An application for a licence, the cancellation, renewal, or suspension of a licence, or a variation of a licence to which the clause applies must be dealt with by the licensing authority or District Licensing Agency under the 1989 Act; but—
as if certain provisions of the Bill had effect in place of the corresponding provisions of the 1989 Act ; and
as if certain provisions of the Bill that do not have corresponding provisions in the 1989 Act were provisions of the 1989 Act.