Liquor Act 2007 (NSW)

Liquor Act 2007 No 90 An Act to regulate and control the sale and supply of liquor and the use of premises on which liquor is sold or supplied; to repeal the Liquor Act 1982; and for other purposes. Part 1 Preliminary 1 Name of Act This Act is the Liquor Act 2007. Note— This Act is part of the gaming and liquor legislation for the purposes of the Gaming and Liquor Administration Act 2007. That Act contains administrative and other relevant provisions that apply in relation to this Act (including investigation and enforcement powers and provisions relating to the probity of officials). 2 Commencement This Act commences on a day or days to be appointed by proclamation. 3 Objects of Act (1) The objects of this Act are as follows— (a) to regulate and control the sale, supply and consumption of liquor in a way that is consistent with the expectations, needs and aspirations of the community, (b) to facilitate the balanced development, in the public interest, of the liquor industry, through a flexible and practical regulatory system with minimal formality and technicality, (c) to contribute to the responsible development of related industries such as the live music, entertainment, tourism and hospitality industries. (2) In order to secure the objects of this Act, each person who exercises functions under this Act (including a licensee) is required to have due regard to the following— (a) the need to minimise harm associated with misuse and abuse of liquor (including harm arising from violence and other anti-social behaviour), (b) the need to encourage responsible attitudes and practices towards the promotion, sale, supply, service and consumption of liquor, (c) the need to ensure that the sale, supply and consumption of liquor, and the operation of licensed premises, contributes to, and does not detract from, the amenity of community life, (d) the need to support employment and other opportunities in the— (i) live music industry, and (ii) arts, tourism, community and cultural sectors. 3A Meaning of dedicated live music and performance venue For the purposes of this Act, a dedicated live music and performance venue means licensed premises that are on a list of live music and performance venues— (a) kept by the Secretary for the purposes of this section in accordance with the regulations, and (b) published on an appropriate government website. 4 Definitions (1) In this Act— accommodation premises means premises that provide temporary accommodation to travellers and includes a bed and breakfast establishment, but does not include a boarding house, lodging house, nursing home, caravan park or any other type of premises prescribed by the regulations for the purposes of this definition. adult means a person of or above the age of 18 years. airport means a public airport established and maintained by a local council. authorised officer has the same meaning as in the Law Enforcement (Powers and Responsibilities) Act 2002. Authority means the Independent Liquor and Gaming Authority constituted under the Gaming and Liquor Administration Act 2007. bar area, in relation to a hotel or club premises, means any part of the hotel or club premises in which liquor is ordinarily sold or supplied for consumption in the hotel or on the club premises, but does not include— (a) a dining area in the hotel or on the club premises, or (b) any part of the hotel in which liquor is, otherwise than as authorised under section 17(6), sold or supplied exclusively to residents, or (c) any part of the hotel in respect of which a minors area authorisation or minors functions authorisation is in force, whenever the authorisation operates to authorise the use by a minor of that part, or (d) any part of the club premises in respect of which an authorisation under section 22 of the Registered Clubs Act 1976 specifying the part as a non-restricted area is in force, or (e) any part of the club premises in respect of which— (i) a junior members authorisation under section 22A of the Registered Clubs Act 1976 is in force, or (ii) a club functions authorisation under section 23 of that Act is in force, whenever the authorisation operates to authorise the use by a minor of that part. bed and breakfast establishment means premises that provide temporary guest accommodation (other than dormitory-style accommodation) and where— (a) the establishment is operated by the permanent residents of the establishment, and (b) meals are provided for guests only. beer means liquor that is beer, ale, lager, pilsener, porter, stout or any other fermented malt liquor or any fermented liquor made from hops or that for the purposes of sale is held out to be beer. category 1 demerit offence means an offence against— (a) any of the following provisions of this Act— (i) section 9 (sale or supply of liquor contrary to licence), but only where the offence relates to the sale or supply of liquor on or in relation to licensed premises outside of the trading hours of the premises, (ii) section 11(2) (breach of licence conditions), but only in respect of a condition imposed under— (A) Division 4 of Part 6, or (B) Subdivision 2 or 3 of Division 4 of Part 9A, that restricts the trading hours of licensed premises or prohibits patrons from entering licensed premises at certain times, (iii) section 73(1)(a) or (b) (permitting intoxication or indecent, violent or quarrelsome conduct), (iv) section 73(2) (selling or supplying liquor to an intoxicated person), (v) section 74(1)(b) or (2) (permitting the sale, possession or use of a prohibited plant or drug), (vi) (Repealed) (vii) section 82(6) (failure to comply with a short-term closure order), (viii) section 84(7) (failure to comply with a long-term closure order), (ix) section 102A(2) (failure to comply with a notice issued by the Secretary), (x) section 114J (supplying liquor to an intoxicated person), (xi) section 114L (making a same day delivery past the cut-off time), (xii) section 149 (licensees and managers liable for act of employees etc) in respect of a contravention of section 73(2) or 75(3), or (b) any other provision of this Act or the regulations that is prescribed by the regulations for the purposes of this definition, or (c) the Gaming and Liquor Administration Act 2007, section 34A. category 2 demerit offence means an offence against— (a) any of the following provisions of this Act— (i) section 117(1), (2) or (8) (selling or supplying liquor to a minor or allowing such sale or supply), (ii) section 149 (licensees and managers liable for act of employees etc) in respect of a contravention of section 117(1) or (2), or (b) any other provision of this Act or the regulations that is prescribed by the regulations for the purposes of this definition. catering service means a service for supplying food or liquor (or both) for consumption at a function, occasion or event. close associate means a close associate within the meaning of the Gaming and Liquor Administration Act 2007. club premises means the premises to which a club licence relates. community event liquor accord—see section 136A. complainant, for Part 5, Division 3—see section 79B(4). criminal intelligence means information classified by the Commissioner of Police as criminal intelligence within the meaning of the Crimes (Criminal Organisations Control) Act 2012, or declared by the Supreme Court under that Act to be criminal intelligence. dedicated live music and performance venue—see section 3A. demerit offence means a category 1 demerit offence or a category 2 demerit offence. demerit point, in relation to a licensee, manager of licensed premises or club licence, means a demerit point— (a) incurred against a licensee or manager of licensed premises under section 144H, or (b) incurred against a club licence under section 144I, or (c) imposed against a licensee or manager of licensed premises, or a club licence, under section 144N(1)(b). dining area, in relation to licensed premises, means a part of the licensed premises used permanently and primarily for the consumption of meals at tables. disturbance complaint, for Part 5, Division 3 and Schedule 1, clause 71—see section 79B(1). drink on-premises authorisation means an authorisation referred to in section 50. employ includes engage under a contract for services. employee includes— (a) a person engaged by a licensee or the manager of licensed premises under a contract for services, and Example— a person engaged by a licensee under a contract to provide catering at a registered club (b) a person employed by a person mentioned in paragraph (a). evidence of age document for a person means any of the following documents that bears a photograph of the person and that indicates (by reference to the person's date of birth or otherwise) that the person has attained a particular age, but does not include any such document that has expired or otherwise appears not to be in force— (a) a motor vehicle driver or rider's licence or permit issued by Transport for NSW under the Road Transport Act 2013 or by the corresponding public authority of another State or Territory or under the law of another country, (a1) a digital driver licence within the meaning of the Road Transport Act 2013, (b) a Photo Card issued under the Photo Card Act 2005, (b1) a digital Photo Card within the meaning of Part 2A of the Photo Card Act 2005, (c) a document (referred to as an existing RTA proof of age card) issued by the Roads and Traffic Authority under section 117EA of the Liquor Act 1982 and in force immediately before the repeal of that section by this Act, Note— Existing RTA proof of age cards cease to be valid for any purpose on 14 December 2008—see Division 3 of Part 2 of Schedule 1 to this Act. (d) a proof of age card (however described) issued by a public authority of the Commonwealth or of another State or Territory for the purpose of attesting to a person's identity and age, (e) an Australian or foreign passport, (f) any other class of document prescribed by the regulations for the purposes of this definition. extended trading authorisation means an extended trading authorisation under section 49 or 49A. financial institution means a bank or authorised deposit-taking institution. function means any dinner, ball, convention, seminar, sporting event, race meeting, exhibition, performance, trade fair or other fair, fete or carnival, or any other event or activity, that is conducted for public amusement or entertainment or to raise funds for any charitable or other purpose and, in relation to a surf life saving club, includes any gathering of members of the club (and their guests) organised by the club for social purposes. gaming machine has the same meaning as in the Gaming Machines Act 2001. general bar licence—see section 16. hotel means the premises to which a hotel licence relates. hotelier means the holder of a hotel licence under this Act. incentivised event means— (a) an event prescribed by the regulations, or (b) a live music performance or other arts and cultural event designated by the Secretary, in accordance with the regulations, to be an incentivised event. inspector means an inspector within the meaning of the Gaming and Liquor Administration Act 2007. intoxicated—see section 5. Kings Cross precinct—see section 4A. licence means a licence under this Act. licensed premises means the premises to which a licence relates. licensee means the holder of a licence. liquor means— (a) a beverage which, at 20° Celsius, contains more than 1.15% ethanol by volume, or (b) (Repealed) (c) any other substance prescribed by the regulations as liquor. liquor accord means a local liquor accord, precinct liquor accord or community event liquor accord. local consent authority, in relation to licensed premises or proposed licensed premises, means— (a) the local council in whose area (within the meaning of the Local Government Act 1993) the premises are, or will be, situated, or (b) if consent to the carrying out of development on the land concerned is required from a person or body other than the council—that person or body. local liquor accord—see section 131. manager of licensed premises means any of the following— (a) a person appointed by the licensee under section 66 to manage the licensed premises, (b) in the case of a registered club that has only one set of premises or is a registered club referred to in section 66(3)—the secretary of the registered club, (c) in the case of a high risk venue within the meaning of section 116B—a person appointed by the licensee, in accordance with licence conditions imposed by the regulations under section 116I, to be present in the venue in accordance with those conditions. marine authority means— (a) the Minister administering the Ports and Maritime Administration Act 1995, or (b) Transport for NSW. meal means a genuine meal consumed by a person at a dining table and includes, in the case of an on-premises licence that relates to accommodation premises— (a) a meal supplied by the proprietor for immediate consumption (otherwise than at a dining table) on or away from the premises, and (b) a picnic-style hamper supplied by the proprietor for consumption (otherwise than at a dining table) away from the premises on the same day as it is supplied. minor means a person who is under the age of 18 years. minors area authorisation means an authorisation referred to in section 121. minors authorisation, for a small bar—see section 122A. minors functions authorisation means an authorisation referred to in section 122. navigable waters— (a) means all waters that are, from time to time, capable of navigation and open to or used by the public for navigation, whether on payment of a fee or otherwise, but (b) does not include flood waters that have temporarily flowed over the established bank of a watercourse. non-proprietary association means— (a) an incorporated or unincorporated body or association of persons (including a club) that, by its constitution or any law that governs its activities— (i) is required to apply its profits (if any) and other income to the promotion of its objects or to purposes provided for by any such law, and (ii) is prohibited from paying dividends, or distributing profits or income, to its shareholders or members, or (b) a local council, or (c) any public authority or community organisation prescribed by the regulations to be a non-proprietary association for the purposes of this definition. owner of premises means the person entitled to the rents or profits of the premises. person authorised to sell liquor means— (a) a licensee, or (b) a person who is authorised by the law of another State or Territory to sell liquor, or (c) any person who sells or supplies liquor (whether in New South Wales or elsewhere) but is not required by this Act to hold a licence in respect of the sale or supply of liquor in New South Wales, or (d) a person who is prescribed by the regulations, or who is of a class of persons prescribed by the regulations, for the purposes of this definition. precinct liquor accord—see section 136A. premises includes— (a) a building or structure, or (b) land or a place (whether built on or not), or (c) a vehicle, vessel or aircraft. prescribed precinct—see section 116C. prohibited drug and prohibited plant have the same meanings as in the Drug Misuse and Trafficking Act 1985. public entertainment venue means any of the following— (a) a cinema, (b) a theatre, (c) premises in respect of which the primary business or activity is the provision of entertainment to members of the public by a person who is physically present on the premises and is actually providing the entertainment. published cumulative impact assessment, for Division 5 of Part 4—see section 72A. racing club means a body (whether incorporated or unincorporated) registered as a racing club by Racing New South Wales, Harness Racing New South Wales or Greyhound Racing New South Wales. registered club means a club that holds a club licence under this Act. related authorisation, for Division 5 of Part 4—see section 72A. related corporation of a licensee means— (a) if the licensee is a corporation—a corporation that, within the meaning of the Corporations Act 2001 of the Commonwealth, is a related body corporate of the licensee, or (b) if the licensee is an individual—a corporation— (i) that employs the licensee, or (ii) in respect of which the licensee occupies a position of authority. relevant licence, for Division 5 of Part 4—see section 72A. relevant stakeholders, for Division 5 of Part 4—see section 72A. resident of licensed premises means a person (other than the licensee) who resides, or is staying overnight in, a part of the premises that has been set aside for the purposes of accommodation. responsible adult, in relation to a minor, means an adult who is— (a) a parent, step-parent or guardian of the minor, or (b) the minor's spouse or de facto partner, or (c) for the time being standing in as the parent of the minor. responsible person for licensed premises means any of the following— (a) the licensee, (b) the manager of the premises, (c) an employee or agent of the licensee or manager, (d) a person acting or purporting to act on behalf of the licensee or manager. restaurant means premises (however described) in respect of which the primary purpose is the business of preparing and serving meals to the public. restricted alcohol area means any part of the State declared by the regulations under section 115 to be a restricted alcohol area for the purposes of this Act. restricted trading day means Good Friday or Christmas Day. same day delivery, for Division 1B of Part 6—see section 114E. same day delivery provider, for Division 1B of Part 6—see section 114E. Secretary means the Secretary of the Department of Enterprise, Investment and Trade. secretary of a registered club has the same meaning as in the Registered Clubs Act 1976. sell includes any of the following— (a) barter or exchange, (b) offer, agree or attempt to sell, (c) expose, send, forward or deliver for sale, (d) cause or permit to be sold or offered for sale. small bar means the premises to which a small bar licence relates. social impact duty, for Division 5 of Part 4—see section 72A. special entertainment precinct has the same meaning as in the Local Government Act 1993, section 202. standard trading period—see section 12. statement of risks and potential effects—see section 48(1). supply includes dispose of or deliver. surf life saving club means a body (whether incorporated or unincorporated) that provides surf life saving services to members of the public in New South Wales. tasting, in relation to liquor, means sampling a small amount of a particular product (including such an amount as may be prescribed by the regulations) usually for the first time or for the purpose of deciding whether to purchase a larger quantity of the product (or both), but does not include sampling to the extent that it is no longer ancillary to the primary purpose for which customers or intending customers are being supplied with the product, namely purchasing the product for consumption away from the licensed premises concerned. tertiary institution means— (a) a university, or (b) a TAFE establishment within the meaning of the Technical and Further Education Commission Act 1990, or (c) any higher education provider (within the meaning of Division 16 of Part 2-1 of the Higher Education Support Act 2003 of the Commonwealth) prescribed by the regulations. trading hours of licensed premises means the times during which, subject to this Act and the conditions of the licence, the sale or supply of liquor on the premises is authorised. Note— The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) In this Act, a reference to the exercise of a function (except in the context of a function as defined in subsection (1)) includes a reference to the exercise or performance of a power, authority or duty. (3) Notes included in the text of this Act do not form part of this Act. 4A Meaning of "Kings Cross precinct" (1) For the purposes of this Act, the Kings Cross precinct is the area including and bounded by the streets or parts of streets specified in Schedule 2. (2) (Repealed) (3) The regulations may amend Schedule 2 by adding or removing, or varying the description of, a street or part of a street. 5 Meaning of "intoxicated" (1) For the purposes of this Act, a person is intoxicated if— (a) the person's speech, balance, co-ordination or behaviour is noticeably affected, and (b) it is reasonable in the circumstances to believe that the affected speech, balance, co-ordination or behaviour is the result of the consumption of liquor. (2) Accordingly, a reference in this Act to intoxication in relation to licensed premises is a reference to the presence of intoxicated persons on the licensed premises. (3) The Secretary is to issue guidelines to assist in determining whether or not a person is intoxicated for the purposes of this Act. Such guidelines are to be made publicly available in such manner as the Secretary considers appropriate. (4) The guidelines issued by the Secretary may also indicate circumstances in which a person may be assumed not to be intoxicated for the purposes of this Act. 6 Exemptions from Act (1) General exemptions This Act does not apply to or in respect of the following— (a) the sale of liquor to an adult on such trains under the control of Sydney Trains or NSW Trains as are determined by those corporations, (b) the sale of spirituous or distilled perfume as perfumery only and not for drinking, (c) the sale of liquor for medicinal purposes by a medical practitioner, nurse practitioner, midwife practitioner or pharmacist, (d) the sale of liquor to an adult at an auction conducted by an auctioneer, but only if such requirements (if any) as are prescribed by the regulations are complied with, (e) the sale of liquor taken in execution or under similar process, or forfeited to the Crown, if the sale is by or on behalf of the sheriff or a sheriff's officer, or a bailiff or a police officer, (f) the sale of liquor to an adult on board a vessel engaged in interstate or overseas voyages, but only if such requirements (if any) as are prescribed by the regulations are complied with, (g) the sale of liquor to an adult on board an aircraft, except in the case of a charter service where a person other than the aircraft operator sells or supplies liquor on board the aircraft, (h) the sale of liquor authorised by a law of the Commonwealth for the export of the liquor from the Commonwealth, (i) (Repealed) (j) the sale or supply of liquor to an adult who— (i) is accommodated in a nursing home within the meaning of the Public Health Act 2010, and (ii) is receiving nursing care, if the liquor is sold or supplied by a person in charge of, or a person acting with the authority of a person in charge of, the nursing home, (k) the sale or supply of liquor to an adult who— (i) is an in-patient of a public hospital within the meaning of the Health Services Act 1997, or (ii) is an overnight patient of a private health facility within the meaning of the Private Health Facilities Act 2007, or (iii) is an in-patient of any other medical facility of a class prescribed by the regulations, if the liquor is sold or supplied by a person in charge of, or a person acting with the authority of a person in charge of, the hospital or facility, (l) the sale or supply of liquor in such other circumstances as may be prescribed by the regulations. (1A) Exemption for gift services in certain circumstances This Act does not apply to or in respect of the sale or supply of liquor that is part of a sale of flowers or food designed to be delivered as a gift to a person (other than the purchaser) specified by the purchaser, but only if the following requirements are complied with— (a) the business of the vendor is promoted or marketed as a genuine gift service, (b) the gift is packaged and presented in such a manner that any person receiving it would assume it to be a genuine gift, (c) the gift is delivered to the person specified by the purchaser at a place other than the premises at which the business of the vendor is conducted, (d) the person to whom the gift is delivered is an adult, (e) the gift is delivered between 7am and 7pm (except in the case where unforeseen circumstances have delayed the delivery of the gift during that period), (f) the volume of liquor supplied as part of the gift does not exceed 2 litres, (g) the liquor has been purchased by the vendor on a retail basis. (2) Exemption for bed and breakfast establishments in certain circumstances This Act does not apply to or in respect of the sale or supply of liquor to the guests of a bed and breakfast establishment (the B&B), but only if the following requirements are complied with— (a) no more than 8 adult guests are staying at the B&B at the one time, (b) the liquor is not supplied to a minor, (c) the liquor has been purchased by the proprietor of the B&B on a retail basis, (d) the sale or supply is ancillary to the provision of accommodation or a meal, (e) any person who sells, supplies or serves liquor to a guest has obtained the same qualifications with respect to responsible service of alcohol as licensees and employees of licensees are required to obtain under this Act, (f) the proprietor of the B&B has notified the Authority, in the form and manner approved by the Authority, that the B&B sells or supplies liquor to guests as provided by this subsection. (3) Exemption for retirement villages in certain circumstances This Act does not apply to or in respect of the sale or supply of liquor to an adult who is a resident of a retirement village (or who is the guest of such a resident) at any gathering held in the village, but only if the following requirements are complied with— (a) a member of the Residents Committee for the village, or a person nominated by the Residents Committee, is present at the gathering to supervise the sale and supply of liquor and the conduct of the gathering, (b) the liquor that is sold or supplied at the gathering has been purchased on a retail basis, (c) the gathering has not been organised, or is not being conducted, by the operator of the retirement village. (4) In subsection (3), operator, resident, Residents Committee and retirement village have the same meanings as in the Retirement Villages Act 1999. (5) Exemption for fundraising functions held by non-proprietary associations Subject to this section, this Act does not apply to or in respect of the sale or supply of liquor at a function held by or on behalf of an eligible non-proprietary association if the following requirements are complied with— (a) the purpose of the function is to raise funds for the benefit of the association or the community, (b) the sale or supply of liquor is ancillary to that purpose, (c) liquor is sold or supplied from one bar only, (d) liquor is sold or supplied for consumption on the premises only and only in open containers, (e) liquor is sold or supplied for a continuous period of not more than 4 hours, (f) liquor is not sold or supplied before 6 am or after midnight, (g) any person who sells, supplies or serves liquor at the function has the same qualifications with respect to responsible service of alcohol as licensees and employees of licensees are required to have under this Act, (h) liquor is not sold or supplied to minors, (i) a member of the non-proprietary association who is an adult, or a person involved in the management of the association who is an adult, and who is not intoxicated, is to be present in the immediate vicinity of the bar area at all times that minors are present at the function, (j) liquor is not sold or supplied to a person who is intoxicated, (k) meals or other prepared food (namely, food requiring preparation, cooking or reheating before being eaten) and free drinking water are available whenever liquor is sold or supplied, (l) police officers and inspectors are permitted full and free access to the premises where the function is held at all times while the function is being held, (m) notice, in the form and manner approved by the Secretary, of the function has been given, at least 14 days before the function is held, to the Secretary, local police and the local council in whose area the function is to be held, (n) no more than 250 people are attending the function, (o) no more than 6 functions in any period of 12 months are held in accordance with the exemption under this subsection. (6) A non-proprietary association is not an eligible association for the purposes of subsection (5) if— (a) the association is subject to an order under subsection (7), or (b) a limited licence is held on behalf of the association, or (c) an order under section 141(2)(i) that a limited licence is not to be granted to any person on behalf of the association is in force, or (d) any disciplinary action under section 141 has, during the period of 6 months before any function is held in accordance with the exemption under subsection (5), been taken against a person who held a limited licence on behalf of the association, or (e) the association, or the secretary or an office holder of the association, has committed a prescribed offence within the meaning of section 144B during the period of 6 months before any function is held in accordance with the exemption under subsection (5). For the purposes of paragraph (e), a prescribed offence is committed in the circumstances referred to in section 144C. (7) The Secretary may, by or