WHAT IS THE PUBLIC INTEREST TEST?
WHAT IS THE PUBLIC INTEREST TEST?
In June 2016, the review of the Liquor Licensing Act 1997 was completed and 129 recommendations were presented to the Attorney General. One key recommendation, which has been substantially accepted by the South Australian Government, is the replacement of the needs test with a Community Impact and Public Interest Test to apply to certain high risk categories of licence.
The needs test has been part of South Australian liquor licensing history since 1967. It has been applied in different forms since that time and has been the subject of many appeals and interpretations by the Supreme Court. Over time, it was found that the needs test had evolved into a vehicle for objectors to control competition within a locality and was no longer an acceptable test to be applied.
As a result, the replacement of the needs test with a public interest test was recommended. The new test will require an applicant to satisfy the Licensing Authority that granting of the application will not detract from the safety and well-being of the community and it is in the public interest.
The public interest test is based on the principle that licensed premises must operate within the interests of the local community. The Butterworth’s Australian Legal Dictionary defines the term ‘public interest’ as:
‘an interest in common to the public at large or a significant portion of the public and which may, or may not involve the personal or propriety rights of individual people’
The public interest test will involve the Licensing Authority balancing any benefits against any detriment. In its response to the recommendation, the Government stated that careful consideration will need to be given to framing the new test to protect against proliferation of liquor outlets and alcohol-related harm.
There is no general template that exists or that can be applied to all applications because each community is different and each licensee’s business unique to the particular premises. The aim is for the community impact and public interest test to be a wide test to capture a broad range of matters. Rather than prescribing or entrenching these matters within the Liquor Licensing Act, it was recommended that the Commissioner issue guidelines about what matters will be considered as part of that test. This will allow the Licensing Authority to be unfettered in the matters that it can consider.
Western Australia provides for a public interest test, namely that the granting of the application is in the public interest whilst Tasmania provides for a community interest based test, that in considering an application that the decision is in the best interests of the community.
In determining the public interest, a number of factors need to be considered, including what ‘at risk’ groups live or visit the locality, the harm and health impacts the premises would have on the community, including the exiting levels of alcohol related harm and hospitalisations, information about the suburb or council (i.e. population, demographics crime statistics and socio-economic factors), cultural, recreational, employment and tourism benefits and the existing facilities and licensed premises already in the locality, to name just a few.
The benefit of utilising the public interest test is the flexibility to assess each individual application on its merits.
If you would like further information regarding the public interest test requirement, please contact Jarrod Ryan (firstname.lastname@example.org) or Alyce Cassettai (email@example.com).