Taituarā’s best-practice resources and advice provide councils with guidance in areas around legislation obligations. Our SectorGoodToolkit® has been updated to reflect these recent changes to the Privacy Act and case law updates for the Sale and Supply of Alcohol Act.
Privacy Act
Simpson Grierson has completed a rewrite of the Privacy Act module following the legislation changes to the Act. Our updated guidance includes a step-by-step flow chart for ‘Mandatory Notification of Privacy Breaches’ to help councils pre-prepare for any future privacy breach.
Check out our Privacy Toolkit module.
Alcohol Regulation
Our Alcohol Regulation Toolkit module on the Sale and Supply of Alcohol Act was reviewed and updated by Simpson Grierson in 2020. Case law has been included throughout the flow charts and they now include case information, e.g. determining who has “greater interest” than the public generally, and whether there is an onus to prove causative links between the licence application and alcohol related harm. The Simpson Grierson review also incorporated legislative changes to the Act, such as the amended definition of a working day.
Community groups – can they be heard at a hearing?
People can make objections to a licence application if they have a greater interest in it than the public generally.
There is a significant body of case law on what amounts to a ‘greater interest’ than the public generally, which can be referred to if there is any question about whether a person has standing to make an objection at a hearing.
A person, or organisation (ie. Trust), who has concerns about the effects of alcohol on the community in general, but who lives in a different area, may not meet the criteria for 'greater interest'. In the case Gisborne Liquormart Ltd v Ka Pai Kaiti Trust [2018] NZARLA 316 at [84 & 85]. In this case a community group, the Ka Pai Kaiti Trust had objected to the licence. The Alcohol Regulatory & Licensing Authority ruled that:
“It is not sufficient for the Trust to be a “responsible public interest group that represents a relevant aspect of the community” as Dr Gordon submits the Trust is. The Trust’s interest must not only be greater than that of the public generally, but the Trust must have an interest greater than that of the public in respect of this particular application. Regardless of whether this interest is established on a notional basis of geographic proximity or otherwise, it must be established.”
A similar decision was made in GRD Trading Ltd v Communities Against Alcohol Harm Inc [2019] NZARLA 222. In all cases, the person or organisation must establish an interest greater than the public generally by demonstrating that they would be affected in some way by the grant of the application.
Of note, however, in 2019 the Alcohol Regulatory and Licensing Authority recognised, in the Flaxmere Liquor case, that the Takitimu District Māori Council with its status under the Māori Community Development Act had “an enhanced interest regardless of geographical boundaries” and a greater interest than the general public due to a significant proportion of the demographic being Māori.
Examples of an accepted 'greater interest' are residents or businesses located in the same street as the proposed premises, or within a one to two-kilometre radius (which has been used as a notional area to determine interest).
Finally, the standing of any objector is made at the time of the hearing. If an objector’s circumstances change after making an objection but before the hearing, this may affect their ability to object: Re Grammade Enterprises Ltd [2014] NZARLA 696.
Does a direct link between the licenced premises and health harm need to be made?
It is important to know that there is no onus on the Medical Officer of Health to prove that there is a causative link between the premises and alcohol related harm or risk. This matter arose in the Birthcare proceedings, where the Medical Officer of Health opposed the grant of an on-licence due to concerns regarding alcohol consumption by breastfeeding women. When the proceedings advanced to the High Court on appeal, the Court found that the Medical Officer of Health correctly discharged its responsibilities by placing before the Committee a body of evidence that described the relevant risks, but without necessarily demonstrating a clear link to the application itself. The High Court in Birthcare found that requiring proof of a causative link was both ‘unrealistic” and “contrary to the correct legal position”: Birthcare, at [113].
Check out our Alcohol Regulation Toolkit module for more case law updates.