Liquor Control Act 1988

The Liquor Control Act 1988 regulates the sale, supply and consumption of liquor, the use of premises on which liquor is sold and the services and facilities provided in conjunction with, or ancillary to the sale of liquor in order to minimise harm or ill-health caused to people due to the use of liquor.

Liquor Control Act 1988 – Review Report

Liquor Control Act 1988

Regulations

Liquor Control Amendment Act 2018 summary of amendments

Phase 2 – effective 3 October 2018

Offsite Storage of liquor

  • Section 5 of the Amendment Act amends section 4 of the Act to specify that only licensees of producers, wholesalers or prescribed special facility licences may apply for approval to store and deliver liquor from premises other than the licensed premises.

Liquor Commission

  • Section 8 of the Amendment Act amends section 16(8) to specify that all hearings of the Liquor Commission are to be held in public unless the Commission determines otherwise to hold the hearing in private.
  • Section 10 of the Amendment Act amends section 22 to specify that the Rules of the Commission may be made when the Commission is constituted by three members (one being the Chairman).
  • Section 12 of the Amendment Act inserts new section 25A to allow the Liquor Commission to refer an application for a review of a decision of the Director to the State Administrative Tribunal (SAT).
    • an application for review can only be referred to SAT with the agreement of the President of SAT and matters must be heard by SAT under the same terms as the Commission would hear a review, ie. SAT may only have regard to the material that was before the Director;
    • when conducting a review involving a question of law, the Tribunal must be constituted by or include a lawyer;
    • a review shall not reconsider a person’s fitness and propriety, the suitability of a premises or the existence of a club unless the review is sought by a person who was found not fit and proper or the applicant;
    • SAT may affirm, vary or quash the decision subject to the review; make a decision in relation to any application or matter that should have been made in the first instance; give directions as to any question of law reviewed, or to the Director; and make any incidental or ancillary order.
  • Section 46 of the Amendment Act inserts new section 95(12) to specify that a hearing under section 95 (disciplinary action) is to be held in public unless the Commission considers the circumstances of the matter warrant the hearing to be held in private.

Inspection of documents

  • Section 8(3) of the Amendment Act amends section 16(11) to provide that a party to proceedings may inspect documentation that is relevant to a party’s case and that the licensing authority proposes to have regard to in making a determination.

Small Bars

  • Sections 21 and 22 of the Amendment Act inserts new sections 41A and 41B to establish a new class of licence for small bars (previously a small bar licence was a sub class of hotel licence).
  • There is no change to the permitted trading hours or the requirements relating to small bars ie. the maximum number of persons on the licensed premises is limited to 120 (excluding authorised and responsible persons) and the sale of packaged liquor is prohibited.

Public Interest Assessment and Tourism

  • Section 20 of the Amendment Act amends section 38(1) to specify that only applicants for prescribed kinds of licences are required to satisfy the licensing authority that the grant of a licence is in the public interest.These include hotel, tavern, liquor store and nightclub.
  • New section 38(4)(ca) provides that any effect the granting of an application might have in relation to tourism, community and cultural matters is included as a matter for the licensing authority to consider when determining whether the grant of an application is in the public interest.
  • New section 38(7) specifies that the Director is authorised to publish applications and supporting documents on the Department’s website.
  • Section 39 inserts new section 69(8AA) to specify that the Chief Executive Officer of Tourism WA may intervene in proceedings in a manner similar to the Commissioner of Police and the Chief Health Officer.

Club licences

  • Sections 25 and 26 of the Amendment Act amend sections 48 and 49 to remove the requirement for a club’s constitution or rules to be approved by the Director of Liquor Licensing.
  • New sections 48(2A) and (2B) authorise clubs to sell and supply liquor to visitors.A visitor is defined as:
    • someone who is at least 40 kilometres from their usual place of residence; and
    • is travelling for the purpose of a holiday, leisure or business; and
    • is required to pay a fee to the club (there is no prescribed fee).
  • Section 48(5) is amended to expand the temporary membership provisions under a club licence to include a member or official from another team, or a person assisting a member or an official of another club or team.

Extended Trading Permits

  • Section 32 of the Amendment Act amends section 60(4)(a) to remove the requirement for a permit to apply to a specified premises – this will enable a caterers permit to be issued for an ongoing period and allow licensees more flexibility to use this type of permit to cater at events away from their licensed premises.
  • Section 60(4(e) is amended to allow liquor to be sold and supplied on Sundays under an association’s extended trading permit.
  • Section 60(4)(g) is amended to increase the maximum period of an ongoing hours extended trading permit from 5 to 10 years.
  • Section 60(4)(h) is amended to allow liquor to be sold and supplied on Good Friday under an extended area permit such as in an alfresco dining area.This does not override the permitted trading hours which specify that liquor can only be sold and supplied ancillary to a meal on Good Friday.
  • Section 60(4)(ia) is amended to allow a cellar door extended trading permit to be issued to spirit producers (was previously restricted to wine and beer).

Applications

  • Section 35 of the Amendment Act inserts new section 64(1AB) to allow regulations to be made to specify minimum lodgement periods for one off applications to add, vary or cancel a condition on a licence.

Disciplinary Action

  • Section 46 of the Amendment Act amends section 95(4)(k) to specify that the Liquor Commission may take disciplinary action against a licensee due to an act or neglect of the licensee, an employee or agent of the licensee, or a person acting on behalf of the licensee that endangers the safety, health or welfare of persons who resort to the licensed premises (was previously limited to a licensee’s actions).
  • New section 95(1A) defines an employee as a person engaged under a contract for services by the licensee, or a person holding a crowd controller’s licence engaged by the licensee or occupier or manager of the premises to which a licence or permit relates to supply the services of crowd controllers at those premises.

Offences and Penalties

  • Section 56 of the Amendment Act inserts new section 115(4B) to replace the offence previously specified in section 115(5)(c) and increases the penalty for failing to leave a licensed premises from $2,000 to $5,000.
  • Section 115(6) is amended to increase the penalty for the offence of remaining in the vicinity of licensed premises from $2,000 to $5,000.

Police Powers

  • Section 62(2) of the Amendment Act amends section 155(7)(b)(ii) to replace ‘believes’ with ‘suspects’ in relation to police powers to seize unopened containers of liquor where a person is likely to cause undue offence, annoyance, disturbance or inconvenience to other persons.

Infringement Notices

  • Section 63 of the Amendment Act amends section 167 to remove the requirement for infringement notices and withdrawal notices to be a prescribed form in the regulations.
  • Instead the forms will be approved by the Director of Liquor Licensing.

Liquor Control Amendment Act 2018 summary of amendments

Phase 1 – effective 18 August 2018

Objects of the Act

  • Section 6 of the Amendment Act amends section 5(2) to include an additional secondary object of the Act to encourage cultural change and responsible attitudes and practices towards the sale and consumption of liquor.

Decisions of the Director of Liquor Licensing

  • Section 9 of the Amendment Act inserts new section 18AA to enable the Director to issue a notice of decision or a decision including reasons in regard to an application.
  • If a notice is issued, a party to proceedings may request a decision including reasons within 28 of receiving the notice of the decision.
  • Party’s to proceedings have 28 days to seek a review with the Liquor Commission from the date the applicant/party to proceedings receives the reasons for the decision.

Approved Managers

  • Section 15 of the Amendment Act amends section 34(2)(a) to enable the licensing authority to consider an application for an approved manager if the applicant has been bankrupt or subject to insolvency laws.The provisions relating to bankruptcy now apply only to applications for a grant or removal of a licence, a transfer of licence or the approval of a trustee or person in position or authority.
  • Section 52 of the Amendment Act amends section 100 to authorise a temporary manager being appointed by a licensee or an approved manager.

Casino liquor licence

  • Section 23 of the Amendment Act amends section 44(1)(a) to authorise the sale and supply of packaged liquor for consumption off premises licensed under a casino licence, as part of an accommodation, restaurant or dining package or as part of a function or promotional activity.

Restaurant licences (liquor without a meal)

  • Section 27 of the Amendment Act inserts new section 50A to more easily facilitate the issue of an extended trading permit for the purpose of selling liquor without a meal under a small restaurant licence.
  • A small restaurant is a licence that is subject to a condition limiting the number of persons (excluding authorised and responsible persons) who may be on the licensed premises to 120.
  • If an applicant for a small restaurant indicates on the application form that they are seeking a permit to sell liquor without a meal, the licensing authority may grant a permit when they grant the licence.
  • Applicants are not required to complete a separate application form or pay an additional fee.
  • Large restaurants are required to apply separately for a permit and pay an additional fee.
  • Licensees of existing restaurants will be contacted and given the option of seeking a permit without fee.

Producers licences

  • Section 28 of the Amendment Act amends section 55(1) to allow all producers (wine, beer and spirit) to sell and supply liquor for consumption on and off the licensed premises.Licensees wishing to trade in this manner should contact the Department as they may need to lodge an application to vary their trading conditions.
  • Section 28 of the Amendment Act also amends and section 55(3) to allow any producer to sell liquor that a related body corporate has produced.No application is required as this is a permitted activity.
  • Section 29 of the Amendment Act amends and section 56(3) to allow a wine producer to use the services of a spirit producer to produce a spirit made from wine.No application is required as this is a permitted activity.
  • Sections 28 and 30 of the Amendment Act delete section 55(1a) and 58(2a) which have been replaced with section 59A.Section 31 of the Amendment Act inserts new section 59A to allow licensees who are authorised to sell packaged liquor (producer, wholesaler, hotel, tavern, liquor store and some special facility licences) and interstate licensees, with the agreement of a host licensee, to conduct free tastings and accept orders on the host licensee’s premises (liquor can only be delivered from the licensed premises of the licensee attending the event).No application is required as this is a permitted activity, however, licensees should be mindful of the provisions of section 104 of the Act relating to profit sharing.

Extended Trading Permits

  • Section 33 of the Amendment Act amends section 61(1) to remove the requirement for an applicant for an extended area permit to provide evidence to the licensing authority that the local government authority has approved the application.
  • Section 34 of the Amendment Act amends section 61A to allow a cellar door extended trading permit to be issued to spirit producers (was previously restricted to wine and beer).
  • Section 61A(5) has been amended to specify that each licensee involved in a cellar door operation under an extended trading permit is jointly and severally liable for breaches under the Act.

Advertising of applications

  • Section 37 of the Amendment Act amends section 67 to replace the requirement for details of licence applications to be displayed at the office of the Director and advertised in the Government Gazette with a requirement for details of application to be published on the Department’s website.

Objections and Submissions

  • Section 41 of the Amendment Act inserts new section 72A to enable the lodgement of submission in support of or opposing an application.Unlike a person who lodges an objection, a person who makes a submission is not a party to proceedings and the Director is not obliged to acknowledge receipt of a submission.
  • Section 42 of the Amendment Act inserts new section 73(4A) specifying that the Director must serve a copy of an objection on the applicant (previously the objector was required to serve a copy of the objection on the applicant).
  • Section 44 of the Amendment Act amends section 75(2)(b) to allow objections to be lodged against an occasional licence if the application is advertised.

Permitted Trading Hours

  • Sections 47 and 50 of the Amendment Act make technical amendments to sections 98 and 98E to clarify the permitted trading hours on New Year’s Day.
  • Section 48 of the Amendment Act inserts new section 98AA setting out the permitted trading hours for small bars. The permitted hours of trade for small bars replicate those currently in place for hotels and taverns.
  • Section 51 of the Amendment Act amends section 98G to set out the permitted trading hours for beer and spirit producers to sell liquor for consumption on licensed premises as between the hours of 10am and 10pm.
  • Section 55 of the Amendment Act amends section 112(1)(a)(i) to extend the ‘drink-up’ time to 30 minutes after the end of permitted hours (previously the period was 15 minutes).Liquor must have been purchased prior to the closing time but can be consumed in the 30 minutes after the closing time.

Takeaway liquor

  • Section 54 of the Amendment Act amends section 110(6) to specify that where wine is sold to a person for consumption ancillary to a meal on a licensed premises, the purchaser is permitted to take an unconsumed portion of the wine from the licensed premises.This provision primarily applies to premises that are not permitted to sell packaged liquor such as restaurants, small bars and tavern restricted licences.

Barring Notices

  • Section 57 of the Amendment Act amends section 115AA(2) to enable the Commissioner of Police to issue a barring notice to a person exhibiting anti-social behaviour on licensed premisesor in the vicinity of a licensed premises and inserts new section 115AA(7B) specifying that the exemption for a barred person to enter licensed premises for the purpose performing duties relating to their work does not include attending a function.
  • Section 58 of the Amendment Act amends section 115AC(1)(a) to include the authorisation for the Commissioner of Police to publish a person’s date of birth and full address on the secure website.
  • Section 59 of the Amendment Act amends section 115AE to provide a defence for a responsible person who permits a barred person from entering and remaining on the licensed premises ie. a responsible person does not commit an offence if they permit a barred person to enter and remain on the licensed premises if the barred person is there for the purposes of performing duties relating to their work.

Prohibition Orders

  • Section 61 of the Amendment Act inserts new section 152B(2) to specify that the Commissioner of Police is required to serve a copy of an application for a prohibition order on the person that the application relates to.

Liquor Accords

  • Section 66 of the Amendment Act inserts new section 174B to specify that participation in a liquor accord is an authorised activity for the purposes of the Competition and Consumer Act 2010.
  • Statutory Review

    • Section 69 of the Amendment Act amends section 178 to insert a requirement for the effectiveness of the Act to be reviewed within 5 years of commencement.

    Last updated: 11/10/2018 14:14:53 PM

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