Commissioner for Fair Trading v 11 Lonsdale Pty Ltd t/a Assembly (Occupational Discipline)
[2023] ACAT 52
•10 March 2023
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
COMMISSIONER FOR FAIR TRADING v 11 LONSDALE PTY LTD t/a ASSEMBLY (Occupational Discipline) [2023] ACAT 52
OR 21/2022
Catchwords: OCCUPATIONAL DISCIPLINE – liquor license – consent orders – multiple breaches of liquor license – failure to comply with an approved risk-assessment management plan – whether proposed consent orders are appropriate – consent orders found to be appropriate – consent orders made
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 55, 65, 66
Liquor Act 2010 ss 13, 88, 90, 127, 130, 131, 183, 187
Security Industry Act 2003
Subordinate
legislation cited: ACT Civil and Administrative Tribunal Regulation 2009 cl 4
ACT Civil and Administrative Tribunal Procedure Rules r 130
Tribunal:Presidential Member H Robinson
Date of Orders: 10 March 2023
Date of Reasons for Decision: 6 September 2023
Date of Publication: 11 September 2023
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) OR 21/2022
BETWEEN:
COMMISSIONER FOR FAIR TRADING
Applicant
AND:
11 LONSDALE PTY LTD T/A ASSEMBLY
Respondent
TRIBUNAL:Presidential Member H Robinson
DATE:10 March 2023
CONSENT DECISION PURSUANT TO SECTION 55 OF THE ACT CIVIL AND ADMINISTRATIVE TRIBUNAL ACT 2008 (ACT)
The parties have reached an agreement as to the terms of a decision of the Tribunal that is acceptable to them;
The terms of the agreement have been reduced to writing, signed by or on behalf of the parties and lodged with the Tribunal;
The Tribunal is satisfied that a decision consistent with those terms would be within the powers of the Tribunal;
By consent, the Tribunal makes orders in the terms of the agreement signed by the parties and as follows:
Pursuant to section 66 of the ACT Civil and Administrative Tribunal Act 2008, the following orders for occupational disciplined are imposed:
The Respondent, 11 Lonsdale Pty Ltd t/a Assembly (the Licensee) is publicly reprimanded.
The Licensee gives a written undertaking with respect to training as stated in paragraph 28 of the Application for Disciplinary Action, as follows:
(a)The Licensee is to provide monthly training to ‘on board’ new staff (including security officers) and refresher training to others (including security officers) about the Licensee’s obligations under the Liquor Legislation, including with respect to:
(i) conditions of the Licensee’s Licence;
(ii) the Approved RAMP; and
(iii) the Liquor (Intoxication) Guidelines 2017 (No 1).
(b)The Licensee will give to the Commissioner a ‘Training Audit Report’ of the monthly training provided to each staff member on the 7th of the month for each of the months of:
(i) June 2023;
(ii) September 2023;
(iii) December 2023; and
(iv) March 2024.
Suspension of the Licensee’s Licence on Friday 14 April 2023, for one full trading day.
The Licensee is to give a public apology (in the form of words as set out below) acknowledging the Licensee’s non-compliance with the Liquor Legislation, to be displayed on the Licensee’s social media, and in the Licensed Premises (Assembly) on the day of the suspension.
The Commissioner for Fair Trading (Commissioner) has taken action in the ACT Civil and Administrative Tribunal for occupational discipline in relation to 11 Lonsdale Pty Ltd t/a ASSEMBLY, under the Liquor Act 2010 (the Liquor Act).
The Commissioner’s Application for Disciplinary Action was brought on the basis of thirteen (13) instances of non-compliance with the Liquor Act by ASSEMBLY.
We do not dispute the allegations of non-compliance raised by the Commissioner.
We have agreed to the orders sought by the Commissioner, including for the payment of the amount of $9,000 to the Territory and suspension of Assembly’s licence on 14 April 2023, for one full trading day.
In our three and half years of existence, it’s been a pretty crazy roller coaster. We were negligent in obeying rules placed on us and we have breached the ACT Liquor Act. For that, we are sorry and due to these indiscretions we will be closed today, 14 April 2023.
We will be taking this opportunity to have our, very belated, Christmas party.
Thank you for your understanding and loyalty.Cheers cobs.
The Commissioner be directed to put conditions on the Licensee’s Licence as set out in paragraph 28 of the Application for Disciplinary Action, as follows:
(a)The Licensee use the Access Canberra ‘Smart Form’ for the purposes of providing the Commissioner with written reports about incidents that happen at the Licensed Premises.
(b)That all written reports comply with the requirements of the Liquor Act and include all relevant and necessary details.
(c)The Licensee close all external doors and windows to the Licensed Premises by 10.00pm.
The Licensee pay to the Territory the amount of $9,000 within 14 days from the date of these Orders.
………………(signed)…………
Presidential Member H Robinson
REASONS FOR DECISION
On 8 December 2022, the Commissioner for Fair Trading (Commissioner) applied to the ACT Civil and Administrative Tribunal (Tribunal) for an occupational discipline order in relation to 11 Lonsdale Pty Ltd t/a Assembly (the Licensee) alleging 13 instances of non-compliance with the Liquor Act 2010 (the Liquor Act) at its licensed premises (the Premises).
On 8 March 2023, the parties filed an Agreed Statement of Facts and draft Consent Orders with the Tribunal. On 10 March 2023, the Tribunal made consent orders in the terms proposed by the parties. These are the Tribunal’s reasons for that decision.
The Allegations
The Commissioner’s allegations were as follows:
(a)The Licensee failed to give the Commissioner a written report as required by section 131 of the Liquor Act about an incident that happened at the Licensed Premises on 5 March 2022.
(b)The Licensee failed to give the Commissioner a written report as required by section 131 of the Liquor Act about an incident that happened at the Licensed Premises on 14 March 2022.
(c)The Licensee failed to give the Commissioner a written report as required by section 131 of the Liquor Act about an incident that happened at the Licensed Premises on 19 March 2022.
(d)The Licensee failed to give the Commissioner a written report as required by section 131 of the Liquor Act about an incident that happened at the Licensed Premises on 27 March 2022.
(e)The Licensee failed to comply with a condition of the Licence as required by section 13 of the Liquor Act by failing to ensure that a person who acted as a crowd controller at the Licensed Premises on 14 April 2022 was licensed to act as a crowd controller under the Security Industry Act 2003.
(f)The Licensee failed to comply with the approved risk-assessment management plan (RAMP) in force for the Licensed Premises as required by section 127 of the Liquor Act by failing to close windows and doors to the Licensed Premises by 10:00pm on 14 April 2022.
(g)The Licensee failed to comply with a condition of the Licence as required by section 13 of the Liquor Act by failing to ensure that each staff member and crowd controller working at the Licensed Premises on 14 April 2022 was aware of the contents of the approved RAMP for the Licensed Premises.
(h)The Licensee failed to comply with the approved RAMP in force for the Licensed Premises as required by section 127 of the Liquor Act by failing to close windows and doors to the Licensed Premises by 10:00pm on 15 April 2022.
(i)The Licensee failed to comply with the approved RAMP in force for the Licensed Premises as required by section 127 of the Liquor Act by failing to close windows and doors to the Licensed Premises by 10:00pm on 16 April 2022.
(j)The Licensee failed to comply with the approved RAMP in force for the Licensed Premises as required by section 127 of the Liquor Act by failing to close windows and doors to the Licensed Premises by 10:00pm on 17 April 2022.
(k)The Licensee failed to give the Commissioner a written report as required by section 131 of the Liquor Act about an incident that happened at the Licensed Premises on 17 April 2022.
(l)The Licensee failed to comply with a condition of the Licence as required by section 13 of the Liquor Act to store security camera images for at least 30 days on 4 May 2022.
(m)The Licensee failed to give the Commissioner a written report as required by section 131 of the Liquor Act about an incident that happened at the Licensed Premises on 22 May 2022.
Summary of the Legislation
Briefly stated, part 6 of the Liquor Act requires licensees to have a RAMP that set outs procedures, practices and arrangements for conducting the business of selling liquor at the premises.[1] A RAMP may be approved by the Commissioner.[2] A licensee who fails to comply with an approved RAMP commits an offence.[3] The Licensee’s RAMP included a condition that it:
mitigate noise from the premises in line with noise standards identified in the Environmental Protection Regulation 2005 by doing the following: Closing doors and windows at 10pm.
[1] Liquor Act 2010 section 88
[2] Liquor Act 2010 section 90
[3] Liquor Act 2010 section 127
A licensee also commits an offence if the licensee fails to comply with conditions imposed upon their licence.[4] Conditions imposed upon the Licensee’s licence included:
(a)that a person who acted as a crowd controller at the premises is licensed to act as a crowd controller under the Security Industry Act 2003, and
(b)that each staff member and crowd controller working at the Premises was aware of the contents of the approved RAMP; and
(c)that security camera footage be stored for 30 days.
[4] Liquor Act 2010 section 13
Further, section 131 of the Liquor Act requires that a licensee give the Commissioner a written report of any ‘incident’ that happens at the licenced premises. The section sets out the information that must be contained in the report, including a description of the incident, when it happened, and the name, address and contact details of staff and police connected to the incident. An ‘incident’ is defined in section 130 of the Liquor Act as an incident:
(a)involving violent, unlawful or anti-social behaviour at licensed premises or permitted premises; or
(b)involving violent or anti-social behaviour that—
(i) occurs in the immediate vicinity of licensed premises or permitted premises; and
(ii) involves a person who has recently left, or been refused admission to, the premises; or
(c)resulting in a person being removed from licensed premises or permitted premises; or
(d)occurring after midnight and before the time prescribed by regulation resulting in a person at licensed premises or permitted premises requiring medical assistance; or
(e)involving the seizure of a document under section 124 (1) (Licensee, permit-holder, etc may seize false identification document); or
(f)prescribed by regulation.
The hearing process
Following the first directions hearing on 9 January 2023, the matter was referred to mediation on 2 February 2023 (the mediation).
At the mediation, the parties agreed that the allegations were substantiated, that the Licensee had not complied with the Liquor Act, and on the disciplinary action to be taken. They requested the tribunal to make proposed consent orders, as set out below.
Section 65 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) sets out the factors the Tribunal should consider when making orders for occupational discipline, and section 66 sets out the orders that may be made. Relevantly, section 65 provides that:
65 Considerations before making orders on application for occupational discipline
(1) This section applies if the tribunal is considering an application for occupational discipline against a person (the subject person).
(2) The tribunal may make an order for occupational discipline in relation to the subject person if satisfied that a ground for occupational discipline exists against the person.
(3) In considering what occupational discipline to use against the subject person, the tribunal must consider the following:
(a) whether the person took reasonable steps to avoid the action (the contravention) that is the ground for occupational discipline;
(b) whether occupational discipline has previously been used against the person for a similar act;
(c) whether the person has taken steps to mitigate the effect of the contravention;
(d) the impact of the contravention on any other person;
(e) the likelihood that the person will act in a way that is a ground for occupational discipline in the future;
(f) whether the entity bringing the application has applied for particular occupational discipline to be used and, if so, the kind of occupational discipline applied for.
Example—par (c)
the person has changed a method of work or given a direction to staff to prevent further contraventions
(4) The tribunal may consider any other relevant matter.
As this is a disciplinary matter, and matters of public safety are involved, the Tribunal must satisfy itself that the proposed orders are appropriate, considering the factors in section 65 before making the orders. This is the case even if the matter is agreed between the parties.
The facts as agreed clearly constituted grounds for occupational discipline, and thus it was open to the Tribunal to make orders for occupational discipline under section 66 of the ACAT Act. The question was whether they were appropriate.
Accordingly, following the mediation, the Tribunal made orders that the parties file an agreed statement of facts and draft consent orders by 21 February 2023. Those orders were subsequently amended to allow the parties to file the documents by 8 March 2023, which they did.
The proposed consent orders
Following the mediation, the parties proposed that the Tribunal make consent orders pursuant to section 55 of the ACT Civil and Administrative Tribunal Act 2008 in the following terms:
1. The Respondent, 11 Lonsdale Pty Ltd t/a Assembly is publicly reprimanded.
2. The Licensee gives a written undertaking with respect to training as stated in paragraph 28 of the Application for Disciplinary Action, as follows:
(a)The Licensee is to provide monthly training to ‘on board’ new staff (including security officers) and refresher training to others (including security officers) about the Licensee’s obligations under the Liquor Legislation, including with respect to:
(i)conditions of the Licensee’s Licence;
(ii)the Approved RAMP; and
(iii)the Liquor (Intoxication) Guidelines 2017 (No 1).
(b)The Licensee will give to the Commissioner a ‘Training Audit Report’ of the monthly training provided to each staff member on the 7th of the month for each of the months of:
(i)June 2023;
(ii)September 2023;
(iii)December 2023; and
(iv)March 2024
3. Suspension of the Licensee’s Licence on Friday 14 April 2023, for one full trading day.
4. The Licensee is to give a public apology (in the form of words as set out below) acknowledging the Licensee’s non-compliance with the Liquor Legislation, to be displayed on the Licensee’s social media, and in the Licensed Premises (Assembly) on the day of the suspension.
The Commissioner for Fair Trading (Commissioner) has taken action in the ACT Civil and Administrative Tribunal for occupational discipline in relation to 11 Lonsdale Pty Ltd t/a ASSEMBLY, under the Liquor Act 2010 (the Liquor Act).
The Commissioner’s Application for Disciplinary Action was brought on the basis of thirteen (13) instances of non-compliance with the Liquor Act by ASSEMBLY.
We do not dispute the allegations of non-compliance raised by the Commissioner.
We have agreed to the orders sought by the Commissioner, including for the payment of the amount of $9,000 to the Territory and suspension of Assembly’s licence on 14 April 2023, for one full trading day.
In our three and half years of existence, it’s been a pretty crazy roller coaster. We were negligent in obeying rules placed on us and we have breached the ACT Liquor Act. For that, we are sorry and due to these indiscretions we will be closed today, 14 April 2023.
We will be taking this opportunity to have our, very belated, Christmas party.
Thank you for your understanding and loyalty.
Cheers cobs.5. The Commissioner be directed to put conditions on the Licensee’s Licence as set out in paragraph 28 of the Application for Disciplinary Action, as follows:
(a)The Licensee use the Access Canberra ‘Smart Form’ for the purposes of providing the Commissioner with written reports about incidents that happen at the Licensed Premises.
(b)That all written reports comply with the requirements of the Liquor Act and include all relevant and necessary details.
(c)The Licensee close all external doors and windows to the Licensed Premises by 10:00pm.
6. The Licensee pay to the Territory the amount of $9,000 within 14 days from the date of these Orders.
Are the proposed consent orders appropriate?
In making the orders, I considered the parties submissions and the material contained in the Tribunal documents filed by the applicant in accordance with section 130 of the ACT Civil and Administrative Tribunal Procedures Rules 2020, having regard to the factors in section 65(3) of the ACAT Act.
The “incidents” of 5 March 2022, 14 March 2022, 19 March 2022, 27 March 2022, 17 April 2022, and 22 May 2022 (in relation to which the respondent failed to file a report as required section 131 of the Liquor Act) related primarily to the removal of intoxicated patrons, as well as a fight over an alleged drug deal gone wrong, and the report to police of a drink spiking incident. These are serious incidents. Also concerning was that no incidents had been reported to the Commissioner since 2019.
The incident of 4 May 2022 was a failure by the Licensee to provide security footage of an incident when requested to do so by the Commissioner. The security footage had apparently been deleted, prior to the minimum storage period of 30 days, due to an “IT upgrade”.
Further, during an inspection of 14 April 2021, the Commissioner had identified that an individual who was undertaking security activities, including checking ID, was not appropriately licenced. Further, the manager on duty on 14 April 2021 was unaware of the requirements of the RAMP in relation to noise, and neither he nor any other staff member had closed the windows and doors to minimise noise. The RAMP requirements in relation to noise were also breached on 15, 16 and 17 April 2022.
Taken together, the admitted allegations demonstrated a pattern of non-compliance with regulatory requirements over some months, if not considerably longer.
The regulatory requirements in relation to the reporting of incident and the keeping of security footage are imposed for the protections of the patrons, as well as staff and the Licensee. The noise restrictions are for the protection of the community more broadly. The Licensee’s failure to comply with these requirements was, by its own admission, negligent. Such failures are unacceptable.
To its credit, the Licensee appears to have taken responsibility for the breaches. It conceded during the hearing process it had made mistakes.
The aim of disciplinary proceedings is to protect the public and maintain compliance with regulatory standards, not punish[5]. Any penalty should be appropriate to ensure both general and specific deterrence, but there is no call for retribution[6].
[5] Eg. Clyne v. N.S.W. Bar Association [1960] HCA 40; New South Wales Bar Association v Evatt [1968] HCA 20; (1968) 117 CLR 177 at 183
[6] See discussion in Australian Building and Construction Commissioner v Pattinson [2022] HCA 13 (13 April 2022) re civil penalties.
The Licensee had been trading for a period of three and a half years at the time of the disciplinary process. In 2021, it received a warning from the Commissioner in relation to noise levels, but there was no suggestion of previous disciplinary action having been taken in relation to it.
The suggested disciplinary action includes appropriate training for new staff and auditing requirements. These are consistent with preventing regulatory lapses in relation to staff screening and training going forward. Additional conditions on the Licensee’s licence will make its obligations in future very clear, with the possibility of further conditions were it to be non-compliant in the future. These conditions go some way to mitigating any future risks of non-compliance.
The maximum fine available in relation to a corporation is $25,000.[7] A $9,000 fine is toward the middle of what may be imposed. The fine is perhaps less than what I would generally consider appropriate, given the number and nature of the offences, but it must be considered in the context of the agreed suspension of the licensee’s licence on a lucrative Friday night, and having regard to the licensee’s contrition and the swift resolution of the matter, which minimised the use of public resources in undertaking a full hearing. The fine and period of closure, as well as the public reprimand, serve as a deterrent to similar conduct both to the respondent, and other licensees more generally.
[7] ACT Civil and Administrative Tribunal Regulation 2009 section 4
Also relevant are the views of the Commissioner, as the regulatory authority, as to what is reasonable disciplinary action.
Accordingly, the Tribunal is satisfied that the proposed orders are within the scope of what was appropriate and accordingly made the orders sought.
………………………………..
Presidential Member H Robinson
| Date(s) of hearing: | In chambers |
| Counsel for the Applicant: | Christopher Phillipson |
| Solicitors for the Applicant: | ACT Government Solicitor |
| Counsel for the Respondent: | Alisa Taylor |
| Solicitors for the Respondent: | Meyer Vandenberg Lawyers |
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