Liquor Licensing Act 1990 (Tas)

Liquor Licensing Act 1990 An Act to regulate the sale of liquor [Royal Assent 16 January 1991] Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows: PART 1 - Preliminary 1. Short title This Act may be cited as the Liquor Licensing Act 1990 . 2. Commencement The provisions of this Act commence on a day to be proclaimed. 2A. Object of Act (1) The object of this Act is to regulate the sale, supply, promotion and consumption of liquor so as to – (a) minimise harm arising from the misuse of liquor by – (i) ensuring that the supply of liquor is carried out in a way that is in the best interests of the community and does not, as far as practicable, detract from public amenity; and (ii) restricting undesirable liquor promotion and advertising and the supply of certain liquor products; and (iii) encouraging a culture of responsible consumption of liquor; and (b) facilitate the responsible development of the liquor and hospitality industries in a way that is consistent with the best interests of the community. (2) It is the obligation of any person on whom a function is imposed or a power is conferred under this Act to perform the function or exercise the power in such a manner as to further the object set out in subsection (1) . 3. Interpretation In this Act, unless the contrary intention appears – associate has a meaning given by section 3A ; authorized officer – see section 209 ; barring order means an order served or given under section 81(2) or (4) ; best interests of the community means interests that are prescribed for the purposes of this definition; club licence means a liquor licence referred to in section 10 ; Commission has the same meaning as in the Gaming Control Act 1993 ; Commissioner means the Commissioner for Licensing appointed under section 207 ; convicted includes found guilty, whether or not a conviction is recorded; false document includes a document that – (a) has been forged; or (b) has been fraudulently altered; or (c) belongs to a person other than the person in possession of it; general liquor exemption means a general liquor exemption published in accordance with section 16 ; hearing means a hearing under Division 2 of Part 5 ; intoxicated – see section 3B ; licence fee includes any supplementary or additional licence fee and any interest payable on any licence fee; licensed premises means – (a) premises specified in a liquor licence as premises on which liquor may be sold; and (b) in respect of the holder of a liquor licence – the premises specified in the liquor licence – and includes any part of those premises; licensee means the holder of a liquor licence; liquor means – (a) a beverage (other than a medicine) that – (i) is intended for human consumption; and (ii) has an alcoholic content greater than 0·5 per cent by volume when at a temperature of 20 degrees Celsius; or (b) any other substance that – (i) is prescribed as liquor for the purposes of this definition; and (ii) has an alcoholic content greater than 0·5 per cent by volume when at a temperature of 20 degrees Celsius; liquor licence means a valid licence granted under this Act that authorizes the sale of liquor; liquor permit means a permit that authorizes the sale of liquor; liquor restriction order means an order made by the Commissioner in accordance with section 39 ; meal means food that – (a) is eaten by a person at a table, or fixed structure used as a table, with cutlery provided for the purpose of eating the food; and (b) is of sufficient substance as to be ordinarily accepted as a meal; obtained includes produced; off-licence means a liquor licence referred to in section 9 ; off-permit means a liquor permit referred to in section 14 ; on-licence means a liquor licence referred to in section 8 ; on-permit means a liquor permit referred to in section 13 ; out-of-hours permit means a liquor permit referred to in section 12 ; partner means the person with whom a person is in a personal relationship, within the meaning of the Relationships Act 2003 ; permit means a valid permit granted under this Act; permit holder means the holder of a liquor permit; permit premises means – (a) premises specified in a special permit as premises on which liquor may be sold; and (b) in respect of the holder of a special permit, the premises specified in the permit; and (c) premises on which liquor may be sold under the authority of a small producer's permit; and (d) in respect of the holder of a small producer's permit, the premises on which liquor may be sold under the authority of the permit – and includes any part of those premises; premises includes – (a) land, whether or not covered by buildings; and (b) any structure, whether or not attached to land; and (c) a means of transport; and (d) a part of premises; records, in respect of a licensee, means the records kept by the licensee in accordance with this Act; resident, in relation to licensed premises, means a person who is able to provide evidence that he or she resides, or is staying overnight in, a part of the licensed premises that has been set aside for the purposes of accommodation; responsible adult means a person of or above the age of 18 years who, in relation to a person under the age of 18 years (the minor), belongs to one or more of the following classes of persons: (a) a parent, step-parent or guardian of the minor; (b) the spouse or partner of the minor; (c) a person who, for the time being, has parental responsibility for the minor; restaurant means premises in which the principal activity is serving food for consumption on the premises; sell means sell by wholesale or retail and includes – (a) offer, display or expose for sale; and (b) keep or have in possession for sale; and (c) barter or exchange; and (d) deal in or agree to sell; and (e) supply, send, forward or deliver for sale or for or in expectation of receiving any payment or other consideration; and (f) authorize, direct, cause, attempt or permit any act referred to in paragraphs (a) , (b) , (c) , (d) or (e) ; small producer means a producer, or class of producers, that is prescribed for the purposes of this definition; small producer's permit means a liquor permit referred to in section 15A ; special licence means a liquor licence referred to in section 11 ; special permit means a liquor permit referred to in section 15 ; Tasmanian wine means wine produced in Tasmania from fruit of which at least 85% is grown in Tasmania; vicinity, in relation to licensed premises or permit premises, means – (a) within the distance prescribed for the purposes of this definition; or (b) in the case of a barring order, within such distance of the premises, or within such area, as is specified by the police officer giving the barring order; or (c) in the case of a police officer who requires a person to leave the premises, within such distance of the premises, or within such area, as is specified by the police officer. 3A. Meaning of "associate" (1) For the purposes of this Act, a person is taken to be an associate of an applicant for a liquor licence or liquor permit, or of a licensee or permit holder if – (a) the person holds, or will hold, any relevant financial interest, or is, or will be, entitled to exercise any relevant power (whether in right of the person or on behalf of any other person) in the business of the applicant, licensee or permit holder and, by virtue of that interest or power, is able, or will be able, to exercise a significant influence over, or with respect to, the management or operation of that business; or (b) the person holds, or will hold, any relevant position, whether in right of the person or on behalf of any other person, in the business of the applicant, licensee or permit holder; or (c) the person is a relative of the applicant, licensee or permit holder; or (d) the Commissioner is satisfied that the person could exercise a significant influence over the applicant, licensee or permit holder. (2) In this section – relative means a spouse, partner, parent, child or sibling (whether full blood or half-blood); relevant financial interest, in respect of a business, means – (a) any share in the capital of the business; or (b) any entitlement to receive any income derived from the business; relevant position, in respect of a business, means – (a) the position of director, manager or other executive position or secretary, however that position is designated in that business; or (b) if that business is conducted in premises in respect of which a liquor licence is in force, the licensee; or (c) if that business is conducted in premises in respect of which a permit is in force, the permit holder; relevant power means any power, whether exercisable by voting or otherwise and whether exercisable alone or in association with others – (a) to participate in a directorial, managerial or executive decision; or (b) to elect or appoint any person to any relevant position. 3B. Meaning of "intoxicated" For the purposes of this Act, a person is intoxicated if – (a) the person's speech, balance, coordination or behaviour is noticeably affected; and (b) it is reasonable in the circumstances to believe that the affected speech, balance, coordination or behaviour is the result of the consumption of liquor or other substances. 4. Act to bind Crown This Act binds the Crown in right of Tasmania and, so far as the legislative power of Parliament permits, in all its other capacities. PART 2 - Sale of liquor Division 1 - Authorization to sell liquor 5. Liquor not to be sold except as authorized A person must not sell liquor except as authorized by– (a) a liquor licence; or (b) a liquor permit; or (c) a general liquor exemption. Penalty: Fine not exceeding 40 penalty units. 6. Types of liquor licences and permits The Commissioner may grant – (a) the following liquor licences: (i) a general licence; (ii) an on-licence; (iii) an off-licence; (iv) a club licence; (v) a special licence; and (b) the following liquor permits: (i) an out-of-hours permit; (ii) an on-permit; (iii) an off-permit; (iv) a special permit; (v) a small producer's permit. 7. General licence A general licence authorizes the sale of liquor– (a) between 5 a.m. and midnight on any day on the premises specified in the licence for consumption on or off those premises; and (b) at any time to a resident of the premises specified in the licence and any premises of which those premises form a part; and (c) subject to any condition specified in the licence. 8. On-licence An on-licence authorizes the sale of liquor – (a) between 5 a.m. and midnight on any day on the premises specified in the licence for consumption on those premises; and (b) at any time to – (i) a resident of the premises specified in the licence for consumption on those premises; or (ii) a resident of any premises of which the premises specified in the licence form a part for consumption on those premises; and (c) subject to any condition specified in the licence. 9. Off-licence An off-licence authorizes the sale of liquor between 5 a.m. and midnight, on any day on the premises specified in the licence, for consumption off those premises, subject to any condition specified in the licence. 10. Club licence A club licence – (a) authorises the sale of liquor between 5a.m. and midnight on any day on the premises of the club specified in the licence to prescribed persons for consumption on or off those premises; and (b) is subject to any condition specified in the licence. 11. Special licence A special licence authorizes the sale of liquor – (a) between times; and (b) on premises; and (c) subject to any condition– specified in the licence. 12. Out-of-hours permit An out-of-hours permit authorizes the sale of liquor – (a) on the licensed premises; and (b) between the times (being times after midnight and before 5 a.m. on any day); and (c) subject to any condition– specified in the permit. 13. On-permit An on-permit authorizes the sale of liquor – (a) on premises (being premises specified in an off-licence); and (b) between any times; and (c) subject to any condition– specified in the permit for consumption on those premises. 14. Off-permit An off-permit authorizes the sale of liquor – (a) on premises (being premises specified in an on-licence); and (b) between any times; and (c) subject to any condition– specified in the permit for consumption off those premises. 15. Special permit A special permit authorizes the sale of liquor – (a) on premises; and (b) between times; and (c) subject to any condition– specified in the permit. 15A. Small producer's permit A small producer's permit authorizes the sale of liquor by a small producer – (a) at any premises approved by the Commissioner in writing to the permit holder; and (b) subject to any condition specified in the permit. 16. General liquor exemptions (1) If the Commissioner is of the opinion that– (a) the sale of liquor in a particular manner; or (b) the sale of a particular class of liquor– should not require to be authorized by a liquor licence or a liquor permit, the Commissioner may, by notice in the Gazette, grant a general liquor exemption which authorizes the sale of liquor in that manner or the sale of that particular class of liquor. (2) A general liquor exemption shall – (a) specify – (i) the manner of sale of liquor; or (ii) the class of liquor that may be sold – that is authorized by the general exemption; and (b) specify any condition to be complied with when liquor is sold in that manner or when that class of liquor is sold. (3) If a condition specified in a general liquor exemption in accordance with subsection (2) (b) is not complied with the general liquor exemption is not authorization to sell liquor as specified in the exemption. 17. . . . . . . . . 18. Sale of liquor on premises to be otherwise lawful A liquor licence, a liquor permit or a general liquor exemption does not authorize liquor to be sold on premises if the use of those premises for that purpose is otherwise unlawful. 19. Authorized opening hours may be extended generally on specific occasions, &c. (1) If, in respect of a specific event or occasion, the Commissioner considers it appropriate that the hours during which liquor is authorized to be sold on licensed premises by virtue of sections 7 (a) , 8 , 9 , 10 and 11 should generally be extended the Commissioner may, by notice in the Gazette, extend those hours. (2) A notice published in accordance with subsection (1) shall – (a) specify – (i) the event or occasion in respect of which the extension is granted; and (ii) the hours during which the extension is to apply; and (iii) any condition which is to be complied with during the period of the extension; and (b) specify whether the extension applies – (i) throughout the State or to a specified part of the State; and (ii) to all licensed premises or to a specified class of licensed premises. (3) If a condition specified in a notice in accordance with subsection (2) (a) (iii) is not complied with the notice is not authorization to sell liquor during the period specified in the notice. 20. Effect of suspension of liquor licence (1) A liquor licence that has been suspended in respect of all or any part of the premises specified in it is not authority for the sale of liquor on the premises or that part of the premises in respect of which the licence has been suspended during the period of suspension. (2) . . . . . . . . 21. Effect of failure to display liquor permit A liquor permit is ineffective to authorize the sale of liquor on premises for the purpose of this Part unless it is displayed in a conspicuous position on the premises specified in it. Division 2 - Liquor licences 22. Qualifications for liquor licence (1) A person is qualified to be granted a liquor licence if – (a) he or she is a natural person who has attained the age of 18 years; and (b) the Commissioner is satisfied that the person is a fit and proper person to be a licensee; and (c) the Commissioner is satisfied that the person will be able to exercise effective control over the service, and any consumption, of liquor on the premises for which the licence is sought; and (d) the person has successfully completed a course or traineeship approved by the Commissioner relating to the service of liquor or has satisfied the Commissioner that the person has the necessary knowledge, experience and competency. (1A) However, a person is not qualified to be granted a liquor licence if the Commissioner reasonably suspects that any associate of the person who is a natural person and likely to have any influence over the management of the business to be carried on under licence is not a fit and proper person to be an associate of a licensee. (2) For the purposes of this section, the Commissioner may take into account, having regard to the type of liquor licence applied for and the premises in respect of which it is sought, the knowledge, experience and competency of the applicant in respect of the service of liquor and the conduct and management of licensed premises. (3) If it appears to the Commissioner that it is not practicable to require an applicant for a liquor licence to have successfully completed a course or traineeship approved by the Commissioner relating to the service of liquor at the time when the licence is granted, the Commissioner may make the grant of the licence subject to a condition that the holder is to successfully complete the course or traineeship within such period as the Commissioner may direct. (4) The Commissioner may, if satisfied that it is not contrary to the public interest to do so, exempt an applicant for a special licence from the requirement in subsection (1)(d) . 23. Application for liquor licence (1) An application for a liquor licence shall – (a) be made on a form approved or provided for the purpose by the Commissioner; and (b) be accompanied by any prescribed application fee; and (c) be made at least 28 days before the licence is to take effect, or such lesser period as the Commissioner may agree. (2) The Commissioner may require an applicant for a liquor licence to supply the Commissioner with such further particulars (including plans and specifications of any relevant premises and information about any associates) as the Commissioner considers necessary for a proper consideration of the application. (3) An applicant for a liquor licence is to give public notice of the application. (4) A public notice is to – (a) be in a form approved by the Commissioner; and (b) contain a statement that representations in respect of the application may be made; and (c) be placed in a prominent position on the premises in respect of which the liquor licence is sought, if the Commissioner so directs; and (d) be published in a daily newspaper circulating in the area in which the premises are situated, if the Commissioner so directs. (5) The Commissioner is to make available on request a copy of an application. (6) The Commissioner, in his or her discretion, may waive or refund all or part of a prescribed application fee payable under this section in any circumstances he or she considers appropriate. 23A. Representations relating to liquor licences (1) A person may make a written representation to the Commissioner in respect of an application for a liquor licence. (2) A representation is to be made within 14 days after whichever of the following is the later: (a) a public notice is placed according to section 23(4)(c) ; (b) a public notice is published in accordance with section 23(4)(d) . (3) . . . . . . . . 24. Consideration of application for liquor licence (1) After receiving an application for a liquor licence the Commissioner shall satisfy himself or herself that the applicant is qualified to hold the licence applied for. (1A) The Commissioner may make such inquiries regarding an application for a liquor licence as the Commissioner considers necessary or expedient for a proper consideration of the application. (1B) Without limiting the generality of subsections (1) and (1A) , the Commissioner may – (a) forward a copy of an application for a liquor licence to the Commissioner of Police; and (b) request the Commissioner of Police to provide a report as to whether, in the opinion of the Commissioner of Police – (i) the applicant is a fit and proper person to be a licensee; and (ii) any associate of the applicant who is a natural person and likely to have any influence over the management of the business to be carried on under the licence is a fit and proper person to be an associate of a licensee. (2) If the Commissioner is satisfied that an applicant for a liquor licence is qualified under section 22 to hold the licence, the Commissioner – (a) is to consider the application; or (b) if of the opinion it is in the public interest to refer the application to the Commission, is to, within 30 days after public notice of the application is given under section 23(3) , refer the application and any representations made under section 23A to the Commission for a hearing. (2A) As soon as practicable after referring an application to the Commission under subsection (2) (b), the Commissioner is to provide the applicant with written notice of that referral. (3) The Commissioner is not required to take any action in respect of an application for a liquor licence if – (a) the prescribed application fee has not been paid; or (b) any further particulars required by the Commissioner in accordance with section 23 (2) have not been supplied. (4) If the Commissioner is not satisfied that the applicant is qualified to hold the liquor licence applied for the Commissioner shall– (a) notify the applicant accordingly; and (b) inform the applicant of the applicant's right to appeal to the Commission against the Commissioner's decision. 24A. Requirements for licence (1) In considering an application for a liquor licence, the Commissioner or the Commission must make a decision which, in the opinion of the Commissioner or the Commission, is in the best interests of the community. (2) In considering an application for an off-licence, the Commissioner or the Commission must be satisfied that the principal activity to be carried on at the premises will be the sale of liquor. (3) In considering an application for an on-licence in respect of premises operating as a restaurant, the Commissioner or the Commission must be satisfied that the premises are, or are intended to be, used as a restaurant. 24B. Updating of licence application (1) If a change occurs in the information provided in, or in connection with, an application for a liquor licence (including in any documents lodged with the application) before the application is determined, the applicant must give the Commissioner written particulars of the change as soon as is reasonably practicable. (2) If particulars of a change are given, those particulars form part of the original application. 25. Grant of licence (1) If the Commissioner decides to grant a liquor licence, or the Commission directs the Commissioner to grant a liquor licence under section 214(1)(a)(i) , the Commissioner must – (a) inform the applicant accordingly; and (b) request the applicant to pay – (i) any prescribed fee payable on the grant of a liquor licence; and (ii) the annual liquor licence fee payable under section 26A . (2) The Commissioner must not grant a liquor licence until the fees specified in subsection (1) (b) have been paid. (3) The Commissioner, in his or her discretion, may waive all or part of a prescribed fee payable on the grant of a liquor licence in any circumstances he or she considers appropriate. 25A. Restriction on grant of licence in connection with supermarket A liquor licence must not be granted in connection with the activities of a supermarket. 25B. Conditions of licence (1) The Commissioner may grant a liquor licence subject to such conditions as the Commissioner thinks fit. (2) The holder of a liquor licence must comply with the conditions of that licence. Penalty: Fine not exceeding 20 penalty units. 25C. Variation of conditions of licence by Commissioner (1) Subject to subsection (2), the Commissioner may, by written notice served on the licensee, vary the conditions of a liquor licence on the Commissioner's own motion by doing one or more of the following: (a) omitting a condition; (b) amending or substituting a condition; (c) adding a condition. (2) The Commissioner must not add a new condition under subsection (1)(c) to a general licence, an on-licence, an off-licence or a club licence, if that licence was granted before the commencement of section 24 of the Liquor Licensing Amendment Act 2015. (3) If the Commissioner varies a condition under subsection (1) , the Commissioner is to notify the licensee of – (a) the variation; and (b) the reason for the variation; and (c) the date on which the variation takes effect; and (d) the licensee's right to appeal to the Commission against the variation. (4) The Commissioner is to give the licensee at least 14 days' notice of the variation unless satisfied that, because of special circumstances, the variation should be effected more urgently. 25D. Variation of conditions of licence by application (1) The Commissioner may vary the conditions of a liquor licence on the application of a licensee by doing one or more of the following: (a) omitting a condition; (b) amending or substituting a condition; (c) adding a condition. (2) The application must be – (a) made on a form approved or provided for the purpose by the Commissioner; and (b) accompanied by any prescribed application fee. (3) The Commissioner may require the applicant to supply any further information that the Commissioner considers necessary for a proper consideration of the application. (4) After considering the application, the Commissioner is to – (a) approve or refuse the variation; and (b) inform the applicant accordingly. (5) In the case of a refusal, the Commissioner is also to inform the applicant of the applicant's right to appeal to the Commission against the refusal. 26. Duration of liquor licence A liquor licence is valid from the date specified in it until it is terminated in accordance with this Act. 26A. Annual liquor licence fees (1) The person to whom a liquor licence is to be granted must pay the prescribed annual liquor licence fee to the Commissioner on the grant of the licence. (2) A licensee must pay the prescribed annual liquor licence fee to the Commissioner on or before 31 March in each year. (3) The prescribed annual liquor licence fee relates to the period of 12 months starting on 1 January each year. (4) The Commissioner may reduce the prescribed annual liquor licence fee proportionately where a liquor licence is granted on a day other than 1 January. (5) Where a liquor licence is surrendered under section 30 , the Commissioner may refund a proportion of the prescribed annual liquor licence fee. (6) The Commissioner is to notify the holder of a liquor licence of the prescribed annual liquor licence fee payable in respect of the liquor licence. (7) If a licensee fails to pay the prescribed annual liquor licence fee payable under this section by 31 March in a particular year, the licensee is to pay an additional fee of 10% of the amount due for payment. (8) The Commissioner, in his or her discretion, may waive all or part of a prescribed annual liquor licence fee payable in respect of a liquor licence in any circumstances he or she considers appropriate. 27. Liquor licence not transferable without approval (1) A liquor licence cannot be transferred to another person without the approval of the Commissioner. (2) If an attempt is made to transfer the benefit of a liquor licence to another person without the approval of the Commissioner the licence is suspended with effect from the date of the attempted transfer. (3) The suspension of a liquor licence under subsection (2) ends if and when – (a) the Commissioner approves a transfer of the licence; or (b) the licensee informs the Commissioner that the attempted transfer has been rescinded. 28. Application for transfer of liquor licence (1) A licensee may apply to the Commissioner for approval to transfer a liquor licence to another person (the transferee). (2) An application under subsection (1) must be – (a) made on a form approved or provided for the purpose by the Commissioner; and (b) accompanied by any prescribed fee; and (c) made at least 28 days before the day on which the transfer is to take effect, or such shorter period as the Commissioner may determine. (3) In considering an application under subsection (1) , the Commissioner may require the applicant or the transferee to supply the Commissioner with such further particulars (including plans and specifications of any relevant premises and information about any associates of the transferee) as the Commissioner considers necessary for a proper consideration of the application. (4