Australian Capital Territory Numbered Acts

LIQUOR AMENDMENT ACT 2017 (NO. 13 OF 2017) - SECT 82

insert

Part 11A     Compliance testing

187A     Definitions—pt 11A

In this part:

"approved procedures" means procedures approved under section 187D (1) for carrying out an approved program of compliance testing.

"approved program" means a program of compliance testing approved under section 187C (1).

"authorised person" does not include a police officer.

"compliance test"—see section 187B.

"purchase assistant"—see section 187B (a).

187B     What is a compliance test ?—pt 11A

For this part, a "compliance test"—

        (a)     involves a young person (a purchase assistant ), under the supervision of an authorised person, purchasing, or trying to purchase, liquor from a licensee; and

        (b)     is carried out to obtain evidence that may lead to the prosecution of a person, or other action being taken against a person, for an offence against section 110 (Offence—supply liquor to child or young person—licensee or permit-holder); and

Example—other action

action under pt 11 (Complaints and occupational discipline)

Note     An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act

, s 126 and s 132).

        (c)     may involve the purchase assistant and the authorised person engaging in conduct that would, apart from section 187F (Lawfulness of compliance testing), be an offence against a territory law.

187C     Approval of compliance testing programs

    (1)     The Minister may approve a program of compliance testing.

    (2)     However, the Minister must not approve a program of compliance testing unless—

        (a)     the Minister is satisfied that the program is necessary to deter the sale of liquor to children and young people in the area where the program will operate; and

        (b)     the program states the area where the program will operate and when the program begins and ends; and

        (c)     the program is not longer than 3 months; and

        (d)     the Minister has approved procedures under section 187D.

Examples—considerations—par (a)

1     evidence of sales to children in the area where the program will operate

2     the success of other enforcement methods

3     the results of previous compliance tests in the area where the program will operate

4     the period since compliance testing was previously carried out in the area where the program will operate

Note     An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act

, s 126 and s 132).

187D     Approval of compliance testing procedures

    (1)     The Minister may approve procedures for carrying out approved programs of compliance testing.

    (2)     The Minister must not approve procedures under subsection (1) unless satisfied that the procedures—

        (a)     provide that, in carrying out a compliance test, a purchase assistant's welfare is paramount; and

        (b)     appropriately protect a purchase assistant's health and safety; and

        (c)     allow a purchase assistant to stop taking part in a compliance test at any time during the test; and

        (d)     ensure that, as far as practicable, a purchase assistant's identity is protected during a compliance test; and

        (e)     require a purchase assistant to be, as far as practicable, indistinguishable from other purchasers and to look like a young person; and

        (f)     require a purchase assistant not to lie to anyone about how old the assistant is during a compliance test; and

        (g)     only allow a compliance test to take place during normal business hours or at any other time when the premises where the test takes place is being used in relation to the licensee's normal business; and

        (h)     comply with anything else prescribed by regulation.

    (3)     An approval is a disallowable instrument.

Note     A disallowable instrument must be notified, and presented to the Legislative Assembly, under the Legislation Act

.

187E     Carrying out compliance testing

    (1)     An authorised person may carry out a compliance test in accordance with an approved program and the approved procedures.

    (2)     An authorised person may use a young person as a purchase assistant in a compliance test only if the young person, and at least 1 person who has parental responsibility under the Children and Young People Act 2008

, division 1.3.2 for the young person, have given informed consent to the young person being a purchase assistant.

Note     If 2 or more people share parental responsibility for a child or young person, any of them may discharge the responsibility (see Children and Young People Act 2008

, s 18 (2)).

    (3)     Each consent under subsection (2) must be in writing.

    (4)     In this section:

"informed consent", by a person, means consent given by the person after the following matters have been explained to the person:

        (a)     a purchase assistant's role in a compliance test, including the assistant's role in any prosecution of a person for an offence against section 110 (Offence—supply liquor to child or young person—licensee or permit-holder);

        (b)     the effect of section 187F and section 187G (Indemnification of authorised people and purchase assistants);

        (c)     anything else required by the approved procedures.

187F     Lawfulness of compliance testing

    (1)     Despite any other territory law, conduct engaged in honestly by an authorised person is not unlawful, and is not an offence by the person, if the conduct is engaged in for the purpose of carrying out a compliance test in accordance with an approved program and the approved procedures.

    (2)     Despite any other territory law, conduct engaged in honestly by a purchase assistant is not unlawful, and is not an offence by the assistant, if—

        (a)     the conduct is engaged in for the purpose of carrying out a compliance test; and

        (b)     the assistant acts in accordance, or substantially in accordance, with the instructions (if any) of an authorised person supervising the compliance test.

    (3)     However, this section does not—

        (a)     authorise a purchase assistant to enter or be in a place that would be otherwise unlawful for the assistant to enter or be in; or

        (b)     prevent action being taken against an authorised person under the Public Sector Management Act 1994

in relation to a failure by the authorised person or a purchase assistant to comply with approved procedures.

Example—par (a)

an adults-only area

Note     An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act

, s 126 and s 132).

187G     Indemnification of authorised people and purchase assistants

    (1)     An authorised person is not civilly liable for conduct engaged in for the purpose of carrying out a compliance test in accordance with an approved program and the approved procedures.

    (2)     A purchase assistant is not civilly liable for conduct engaged in for the purpose of carrying out a compliance test if the assistant acts in accordance, or substantially in accordance, with the instructions (if any) of an authorised person for the test.

    (3)     However, this section does not prevent action being taken against an authorised person under the Public Sector Management Act 1994

in relation to a failure of the authorised person or a purchase assistant to comply with approved procedures.

    (4)     Any liability that would, apart from this section, attach to an authorised person or purchase assistant attaches instead to the Territory.