Big News for Live Music in SA

29 November, 2012

An important development to support live music in South Australia was announced last night.  John Wardle, probably Australia's best known live music advocate and a tireless campaigner for legislative change in NSW, tell us all about it:

The introduction of the Small Venue Licence to the South Australian liquor licensing system announced last night is an historic and progressive reform.

The exemption of Small Venue Licences from separate entertainment approvals process and the anti-competitive needs test on application are significant aspects of the new licence.

This is a fantastic development for the hospitality and entertainment industry, and should be acknowledged and celebrated.

The exemption of Small Venue Licences from the separate entertainment approvals process and the anti-competitive needs test on application highlights the fundamental problems inherent in the rest of the licensing system and not addressed by these Act amendments. Hotels, Restaurants, Entertainment Venue and Special Circumstances licenses still require a separate entertainment approval. This provision is not applied to liquor licences in the rest of Australia. The removal of the NSW Place of Public Entertainment (PoPE) has seen a dramatic increase in live entertainment since this 2009 reform. The removal of separate entertainment approvals process in the South Australian liquor licensing system will continue to be a priority for the live music industry.

Of significant concern to the live music industry alongside the retaining of separate entertainment approvals under South Australian liquor licensing is the application of place of assembly Building Code of Australia (BCA) construction compliance for ancillary entertainment in retail hospitality premises consent process, and that whilst the liquor licensing system may not require entertainment approvals, local government may. A practice note from planning could be considered to instruct consent authorities that entertainment is ancillary to the primary retail purpose of selling alcohol, and that the application of theatre level place of assembly compliance is inappropriate. South Australia will need to address the Building Code implications for Small Venue Licences if their intent to support the live music and entertainment industry is to be realised. The National Construction Code (NCC) under which the BCA sits is an initiative of the Council of Australian Governments (COAG), and there are best practice obligations inherent in COAG agreements.The 2009 NSW Variation should be adopted nationally for those states where the problematic (c)(i) "showstopper" reference is applied, including South Australia.

The shadow of competition policy implications still falls on the Small Venue Licence and the rest of the licensing system. Small Venue Licences are capped at 120 patrons (embedding the commercial advantage of larger existing premises protected by the needs test), and whilst the needs test is not referenced on new licence applications, to allow these licenses to be available outside the inner city of Adelaide, industry associations must be consulted. The restricting of Small Venue Licences to 120 patrons and the City of Adelaide, whilst indeed a historic and progressive reform, yet again exposes the South Australian licensing system to the fundamental integrity challenge posed by competition policy obligations.

Capping new licenses at 120 patrons also adds complexity with regards to development consent and BCA assessment. The BCA has a table that determines capacity on floor area and whether patrons are standing or seated in various ways. It is this method that is applied in NSW where there is no small bar licence, but a general bar licence. A bar is a small bar if the room is small. Simple.The NSW general bar licence was introduced as part or a 25 year omnibus rewrite of the entire Act and the 120 patron small bar licence doesn't actually exist in NSW, though oddly people still go around saying they definitely created it. Where there is sound logic in introducing a Small Venue Licence category is in this circumstance, where a full rewrite of the act is not undertaken, and an additional option to an existing system is drafted. Again, the South Australian Government is to be congratulated, however, the integrity issues and entertainment approvals process retained in the Liquor Licensing Act will mean that there is a further review of these aspects of the law to be done further down the track.

Of additional concern is the duplication in amenity complaints process between liquor licensing and environmental protection process, and the failure of the introduction of order of occupancy principles in the Act to deliver the protections intended for venues and the live music industry.

Liquor Licensing (Small Venue Licence) Amendment Act 2012.

Small Venue Licences are:

• Capped at 120 patrons, or a lower number determined by the licensing authority
• Limited to within the City of Adelaide for the first 12 months
• Exempt from separate entertainment consent,
• Exempt from the highly anti-competitive needs test in applications process

Also:

• No take-away sales or pokies
• By including the Small Venue Licence as section 40a, it could be considered a sub-category to the Section 40 special circumstances licence
• Changes to the application process mean that all applications are at the discretion of the commissioner, not the court
• Applicants can apply for a review of decisions by the commissioner. SAPOL can apply for a review of an application, but only on public interest or fit and proper person grounds
• There is a specific reference to competition policy for Small Venue Licences, the Commissioner ... is not to take into account an economic effect on other licensees in the locality affected by the application
• Extended trading authorisations can be granted for trading outside the applied standard trading hours of 11am-12am, from 8am -11am, and 12am-2am. or sell alcohol ancillary to a meal at any time.

Many thanks to John Wardle for his efforts, and for allowing us to publish this article.