115 01 May 2017
07 April 2017
File: (17/636)
Report no: PRC2017/2/119
Code of Practice - District Licensing Committee 2017
Purpose of Report
1. To advise the Committee of amendments to the Code of Practice (COP) for Hutt City District Licensing Committee.
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Recommendations It is recommended the Committee: (i) receives the Code of Practice for the Hutt City District Licensing Committee (COP), attached as Appendix 1 to the report; (ii) notes the amendments to the COP; and (iii) endorses the COP. |
Background
2. The Sale and Supply of Alcohol Act 2012 (the Act) requires territorial authorities to appoint District Licensing Committees (DLC) as quasi-judicial bodies to decide matters relating to the issue of alcohol licenses and managers’ certificates, amongst other things.
3. The Act sets out some process and procedures in relation to the powers and functions of the DLC, but largely leaves it to the DLC to regulate its own proceedings.
4. The COP operates as a set of practices and procedures for the DLC to follow, unless there is a good reason to do otherwise.
Discussion
5. The Act provides a base set of practices and procedures for the DLC to follow.
6. Despite this, the DLC is able to regulate its proceedings as it sees fit. There is some advantage in this approach as it allows the DLC to be a more flexible body and allows for more effective participation by interested parties.
7. However, it is important to have an established set of operating procedures to promote a consistent and fair process that is in line with the principles of natural justice. This provides a measure of certainty for applicants and submitters, as well as the DLC members.
8. The difficulty is striking a balance between the flexibility that is allowed by the Act and a desire to have an established and fair set of procedures that can be followed by all members of the DLC. The COP should be viewed as a starting point in trying to achieve this balance and it deliberately allows for departures from it, where this is good reason to do so.
9. The amendments to the COP recognise how the practice of the DLC has evolved and as this area of law and practice has developed. It should be specifically noted that the Alcohol Regulatory and Licensing Authority (the body that sits above the DLC in the judicial scheme) has issued practice directions from time to time, which may trump the practices outlined in the DLC and will need to be followed. This is specifically referenced in the COP.
Options
10. The adoption of a COP is not a requirement of the legislation. It has been an undertaking for the benefit of the DLC, by giving them an initial set of practices and procedures to work from – as well as to provide comfort to Council that the DLC is conducting a fair process, in line with natural justice principles.
11. There is obvious reason for the Committee to decline to endorse the COP.
Consultation
12. There are no further consultation requirements.
Legal Considerations
13. The COP, as it stands, has enough flexibility incorporated within it to withstand any challenge that the document fetters the discretion of the DLC.
14. It notes that the provisions of the legislation prevail over it, in the event of any conflict. It further notes that no proceedings will be invalided by reason of the COP not being followed.
15. Ultimately the DLC should determine its own procedure – making the endorsement of the DLC Chair and members essential.
Financial Considerations
16. There are no financial considerations.
Other Considerations
17. In making this recommendation, officers have given careful consideration to the purpose of local government in section 10 of the Local Government Act 2002. Officers believe that this recommendation falls within the purpose of the local government in that it meets the current and future needs of the community be providing good quality regulatory process. It does this in a way that is cost-effective because it creates a best practice document that should ensure the process is efficient and streamlined and reduces the risk of legal challenges.
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Code of Practice - District Licensing Committee 2017 |
115 |
Author: Bradley Cato
Solicitor
Approved By: Joycelyn Raffills
General Manager, Governance and Regulatory