'Three Strikes' disciplinary scheme commences on 1 January 2012
The Liquor Amendment (3 Strikes) Act 2011 was passed by the NSW Parliament on 9 November 2011. The Act introduced the Government's 'Three Strikes' disciplinary scheme for licensed premises.
The scheme is effective from 1 January 2012. Breaches of the liquor laws that occur on, or before, 31 December 2011 are not included in the scheme.
Development of the scheme followed consultation with the liquor industry and key stakeholders over draft legislation introduced into the Parliament earlier in 2011. Submissions were carefully considered to ensure the final 'Three Strikes' disciplinary scheme targets rogue operators, and does not adversely impact on responsible licensees.
A key principle of the scheme is that strikes can be imposed when a licensee or approved manager is convicted (including via payment of a penalty notice) of one of a range of the most serious offences under the Liquor Act.
These offences are prescribed in the Act and include:
- permitting intoxication on licensed premises
- permitting indecent, violent or quarrelsome conduct on licensed premises
- selling or supplying alcohol to an intoxicated person or a minor
- allowing alcohol to be sold or supplied to a minor on licensed premises
- permitting the use or sale of substances which a licensee or manager suspects are illicit drugs
- not complying with a direction issued by the Director General to a licensee or staff
- selling or supplying alcohol outside of authorised trading hours
- non-compliance with a closure order issued under the Liquor Act to prevent or reduce a significant risk to the public interest where there are serious breaches of the Act, and
- a breach of key liquor licence conditions applying to violent venues listed in schedule 4 of the Liquor Act, or conditions imposed on a venue that has incurred strikes.
The defendant for these offences must be the licensee or the approved manager.
Under the scheme, a first strike is automatically incurred upon conviction for a single offence and is active for three years from the date of the offence. It should be noted that licence conditions may be imposed when a first strike has been incurred.
A second and third strike is discretionary, and can be imposed upon conviction for further offences committed within three years of the first offence.
Whether the premises are prescribed in schedule 4 of the Liquor Act, venue size and patron capacity, change of licensee and business owners, changes to business practices, compliance and incident history, and crime statistics all need to be taken into account when determining whether strikes should be incurred and licence conditions imposed.
A third strike can result in the imposition of licence conditions, licence suspension for up to 12 months, licence cancellation and a moratorium on a new liquor licence being granted for the same business operators at the venue for up to 12 months, and/or disqualification of a licensee for any period of time.
For registered clubs, a third strike can result in imposition of licence conditions, disqualification of a club secretary, dismissal of any or all of the club directors, and/or the appointment of an administrator to manage the club.
Conditions can be imposed on licensed venues in response to the behaviour that led to strikes being incurred.
The following conditions and restrictions can be imposed as a result of a first strike:
- a requirement for a plan of management or an incident register
- a prohibition on the use of glass and breakable plastic containers
- engagement of dedicated staff to promote responsible service of alcohol
- notification to persons that the strike has been incurred, and
- in the case of a club licence–requiring members of the governing body of the club to undergo training.
The following conditions and restrictions can be imposed following a second strike:
- additional security measures
- drink restrictions targeting high strength and rapid consumption drinks
- "lock outs" where patrons cannot be admitted after a certain hour
- a requirement to cease serving alcohol prior to venue closure
- a prohibition on the conduct of types of entertainment
- a requirement that members of the governing body of a registered club undergo training
- restrictions on who may be appointed as manager of the premises; and
- reductions to trading hours before 10am or after 11pm.
A new offence has been introduced whereby licensees are 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.
Decisions at the first and second strike stage are made by the Director General of the Department of Trade and Investment, Regional Infrastructure and Services. Third strike decisions are made by the Independent Liquor and Gaming Authority.
Applications can be made to the Authority for a review of any decision made by the Director General, while applications can be made to the Administrative Decisions Tribunal for a review of decisions made in the first instance by the Authority. Notification and due process requirements apply – including notification of potential second and third strikes to business and premises owners (who are able to apply for a review of these decisions).
The 'three strikes' scheme provides a good opportunity for licensees and managers to review their business practices and any alcohol and security management plans to reduce the risk of incidents that can lead to liquor offences and strikes being incurred.
Licensees need to proactively manage any risks they may have in their business model, and implement appropriate remedial measures. This could include a higher level of security, better monitoring of patron service and consumption patterns, and greater vigilance in the refusal of service to patrons if they are approaching intoxication.
The NSW Office of Liquor, Gaming and Racing provides a range of tools on this website to assist in reducing risk and remaining compliant with the liquor laws – including self-audit checklists, as well as intoxication and liquor promotion guidelines.
A fact sheet on the scheme provides further detail on the scheme – including a list of the Liquor Act offences included in the scheme.
Agreement in principle speech(PDF 49 kb) given by the Hon George Souris MP, Minister for Tourism, Major Events, Hospitality and Racing, and Minister for the Arts. The agreement in principle speech provides a detailed explanation of the new laws.
Media Release - Three Strikes and You're Out passed by Parliament(PDF 134 kb)
Media Release - Licensees warned: Three Strikes to start in new year (PDF 80 kb)
Fact Sheet - 'Three Strikes' Disciplinary Scheme under the Liquor Act 2007 (PDF 244 kb)
Questions and answers (PDF 30 kb)