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1
Liquor Amendment
LIQUOR AMENDMENT BILL 1998
EXPLANATORY NOTES
GENERAL OUTLINE
Short Title of the Bill
Liquor Amendment Bill 1998
Objectives of the Bill
The objective of the legislation is to amend the Liquor Act 1992 (the Act)
to:
· enhance the administrative efficiency of the legislation;
· clarify existing provisions;
· address anomalies;
· strengthen existing enforcement provisions;
· review the financial provisions and increase flexibility in the
application of the Act in light of the High Court's decision of Ha
and anor v State of New South Wales & ors; Walter Hammond
& Associates v State of New South Wales & ors declaring the
collection of business franchise fees to be constitutionally invalid.
Reasons for the Bill
The Liquor Act 1992 recognized contemporary trends in the tourism and
hospitality industries, together with changing consumer preferences in
leisure and lifestyle pursuits. The review of the Act undertaken in 1994
resulted in a number of amendments, which at the time kept pace with the
rapidly changing needs of both consumers and the liquor industry. These
changes are continuing and it has been again necessary to address identified
anomalies and focus on ways to improve the efficiency of the Act.
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Liquor Amendment
Achieving the Objectives of the Legislation
The proposed legislation amends the Liquor Act 1992, by providing for:
· the alteration of the structure of premium payments for general,
hotel and special facility licences to ensure consistency and
fairness for industry participants and to remove an anomaly so as
to prevent applicants avoiding payment of an appropriate
premium for their facilities;
· a less formal and cost effective procedure for the review of
decisions made under the Liquor Act 1992;
· the chief executive to determine and enforce minimum standards
of facilities pertaining to new liquor licence applications;
· the alteration of the category name of general licences to hotel
licences, and to ensure that hotel licences are required to sell liquor
both on and off the premises.
· an increase in penalties for the sale of liquor at unlicensed
premises;
· the clarification of financial provisions of the Liquor Act 1992 and
the Wine Industry Act 1994, subsequent to the High Court's
decision in August 1997 declaring the collection of business
franchise fees to be constitutionally invalid.
Additionally, a number of minor amendments are proposed which will
assist with the administration of the Liquor Act 1992. These amendments
also serve to clarify certain issues and rectify anomalies in the Act.
Administrative Cost
The proposed amendments have both revenue and expenditure
considerations. It is estimated the revised premium and fee structure will
generate additional revenue of approximately $1.8M each financial year of
operation. This estimate is based on the current number of applications
made by hotel licence and special facility licence holders for increases in
licensed area, additions to licensed premises and new detached bottle shops.
Expenditure costs in the first year can be met within current budget
constraints. There will be an increase in administrative costs associated with
processing additional premiums, applying standards and reviewing the
general (hotel) licence category. This may be offset by the administrative
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Liquor Amendment
efficiencies gained in the new system for administrative review and some of
the minor administrative changes.
Fundamental Legislative Principles
Section 4(3) of the Legislative Standards Act 1992 provides that whether
legislation has sufficient regard to the rights and liberties of individuals
depends on whether the legislation :
(a) makes rights and liberties or obligations dependent on
administrative power only if the power is sufficiently defined and
subject to appropriate review; and
(b) is consistent with the principles of natural justice; and
(c) allows the delegation of administrative power only in appropriate
cases and to appropriate persons; and
(d) does not reverse the onus of proof in criminal proceedings
without adequate justification.
This Bill contains a number of provisions which give the chief executive
power to make decisions without specifying the matters that the chief
executive must have regard to when making the decisions. Such provisions
could be considered to constitute a breach of fundamental legislative
principles. Generally, such sections are not new, they are already contained
in the Act, but are now being highlighted as they are being either moved to
another part of the Act or are being amended.
Clause 5 of the Bill which inserts Section 4 contains a definition for
"disciplinary action". "Disciplinary action" includes :
· suspension of the licence for a stated period or until further
ordered by the chief executive, but for not more than one year;
· disqualification from holding a licence for a stated period or until
further ordered by the chief executive, but for not more than 5
years;
· requiring the licensee to pay to the Department an amount of not
more than $10,000 for each ground of disciplinary action taken
under Section 136.
The power of the chief executive to suspend or disqualify for an
undetermined period could be considered a breach of Section 4(3).
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Liquor Amendment
However, as the chief executive is limited to making such an order for a
period of one year in the case of suspension and five years in the case of
disqualification, it is considered that the power of the chief executive is
sufficiently defined. Also, the power is subject to review by a member of
the Liquor Review Panel. The decision of the Liquor Review Panel is
subject to judicial review under the Judicial Review Act 1991.
The power of the chief executive to order payment to the Department of
$10,000 for each ground of disciplinary action could also be considered a
breach of fundamental legislative principles. However, this is not a new
power, such power is currently contained in Section 137(1)(f) of the Act.
The purpose of the amendments is to clarify that the chief executive can use
show cause proceedings for disciplinary action against licensees. Currently,
show cause action, must threaten cancellation of the licence. This
amendment will allow the chief executive greater flexibility in dealing with
breaches of the Act by requiring licensees to explain their actions other than
under the threat of cancellation of the licence. In addition, it will reduce the
costs associated with show cause proceedings as many cases may be dealt
with by written submissions rather than by personal attendance. It has been
the experience in the past that many licensees who receive a notice to show
cause why their licence should not be cancelled often engage legal
representation although this is not the intended course of action by the chief
executive. Also, it is noted that the imposition of civil penalties is contained
in Section 61(1)(b) of the Surveyors Act 1977, Section 70(1)(e) of the
Education (Teacher Registration) Act 1988, Sections 49(1)(c)(ii) and 49(i)
of the Dental Technicians and Dental Prosthetists Act 1991 and Section
116(1)(g) of the Nursing Act 1992.
Clause 23 may also constitute a possible breach of fundamental
legislative principles. Section 104G provides that the chief executive must
grant a public functions approval subject to conditions, including about
trading hours that the chief executive, on reasonable grounds considers
appropriate. This section gives the chief executive a wide discretion to
impose conditions on the approval without providing any guidelines as to
how the discretion should be exercised. Accordingly, it could be argued that
the power of the chief executive is not sufficiently defined as required by
Section 4(3)(a) of the Legislative Standards Act 1992. On the other hand, it
is contended that the chief executive needs a wide discretion so as to deal
effectively with the various situations and circumstances that arise and
ensure that the public interest and safety is protected at all times.
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Liquor Amendment
Clause 27 which inserts Section 107A(1)(b) could be considered to
constitute a breach of fundamental legislative principles. This section states
that the chief executive must not grant an application for a licence or permit
unless (a) the premises comply with the minimum standard prescribed by
regulation, or (b) in any other case, the premises are, in the chief executive's
opinion, suitable for the conduct of business. It is considered that the
delegation of the power to the chief executive is sufficiently defined by the
matters to be prescribed by regulation under subsection (a). The purpose of
subsection (b) is to allow the chief executive to effectively deal with other
unexpected issues that may arise and are not covered under the regulation,
for example, approvals required from other authorities. Also, the decision
of the chief executive can be reviewed by a member of the Liquor Review
Panel. The decision of the Liquor Review Panel member is subject to
judicial review under the Judicial Review Act 1991.
Clause 27 also contains another possible breach of fundamental
legislative principles in Section 107A(2). This section states that the chief
executive must not grant an application for a licence or permit unless
satisfied that any other matter relevant to the conduct of the business at the
premises has been completed. This is another example of a power given to
the chief executive under the Act to make a decision which does not provide
guidelines for exercising the power. Whilst this could be considered a
breach of Section 4(3)(a) of the Legislative Standards Act 1992, that is, the
power is not sufficiently defined, it is considered that this wide discretion
given to the chief executive is necessary to give the chief executive the
flexibility and the ability to effectively deal with unforseen matters which
may arise in individual cases and ensure that the public interest and safety
are protected at all times.
Clause 39 may also breach Section 4(3) of the Legislative Standards Act
1992. Under Section 137 if the chief executive considers that there is a
ground upon which to take disciplinary action, the chief executive may give
written notice to the licensee which, inter alia, states the proposed action
which the chief executive may take. It is considered that Section 137(3)(b)
and (c) may constitute a possible breach of the principles of natural justice in
that they allow the chief executive to take a form of disciplinary action other
than the proposed action which the licensee has been notified of. The
intention of these subsections is to allow the chief executive to impose a
lesser penalty than that originally proposed and notified to the licensee.
However, the amendment does not take into consideration that in reality,
some licensees may prefer to have their licence suspended for a period of
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Liquor Amendment
time rather than pay a fine or be subject to another form of disciplinary
action. The chief executive will address this issue by allowing licensees to
make submissions on the penalty they consider should be imposed on
them.
Clause 39 contains another section, Section 137A which could be
considered to breach fundamental legislative principles as contained in
Section 4(3) of the Legislative Standards Act 1992. This clause inserts
Section 137A which empowers the chief executive to immediately suspend
a licence, if the chief executive believes on reasonable grounds that a ground
exists for taking disciplinary action in relation to a licence and harm may be
caused to members of the public if urgent action to suspend the licence is
not taken. The licensee may apply for a review of the decision within 28
days. The rights of the licensee must be balanced against the rights of the
public. As the chief executive must be satisfied that harm may be caused to
members of the public if urgent action to suspend the licence is not taken, it
is considered that this power is justified in the public interest. The chief
executive would use this power in cases where, for example, where there
are fire safety problems.
Clause 43 which omits Section 154 and inserts a new Section 154 is
another example of a provision which gives the chief executive powers
without specifying the matters the chief executive must take into
consideration when making a decision. Pursuant to Section 154(1) the chief
executive's approval is required to alter, rebuild, change, make additions to,
or increase the area of the licensed premises. A recent judicial review
decision has cast some doubt on the intent of this section. It is considered
that the chief executive requires a wide discretion to effectively deal with all
situations that may arise so as to ensure that the public interest is protected.
For example, the chief executive would be unlikely to approve an increase in
the area of the licensed premises that would cause undue noise and
annoyance to the local community, for example, by increasing the area of
the licensed premises to include the car park where a licensee could allow a
band to play music.
Clause 44 which amends Section 155 also contains a possible breach of
fundamental legislative principles. Under the current Section 155(3), if a
minor is on the premises, the licensee, permittee and other person in control
of the premises each commit an offence. The amendment provides that if an
employee or agent of the licensee or permittee allow the minor to enter the
premises, the employee or agent commit an offence. Whilst a defence is
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Liquor Amendment
available under Section 230 the provision effectively reverses the onus of
proof by providing that each of the persons referred to in Section 155(3A)
commit an offence. The reason for the amendment is that in many cases it is
not the licensee, permittee or person in control of the premises that allows
minors to enter licensed premises, but rather a doorperson, security person
or some other employee and it has not been possible to prosecute those
persons. It is considered that to effectively prevent the consumption of
liquor by minors on licensed premises the power to prosecute all persons
responsible for allowing the minor to be on the premises is required. In
practice, it is only those persons directly responsible for allowing the minor
to be on the premises that would be prosecuted.
Clause 46 amends Section 171 by stating that the maximum penalty
under the section is 250 penalty units or 6 months imprisonment. Whilst
the remainder of the section has not been amended, since there has been an
amendment to the section it is considered necessary to highlight that this
section contains a possible breach of Section 4(3)(d) of the Legislative
Standards Act 1992 by reversing the onus of proof in certain cases. The
onus of proof is easily satisfied by a genuine delivery person.
Consultation
Consultation has been carried out with the relevant Government
Departments and agencies including the Department of Justice, Queensland
Police and the National Competition Unit of Queensland Treasury. Liquor
industry associations consulted were:
· Queensland Hotels Association
· Registered and Licensed Clubs Association
· Restaurant and Caterer's Association
· Queensland Cabaret Association
· RSL and Services Clubs Association
NOTES ON CLAUSES
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Liquor Amendment
Short Title
Clause 1 sets out the short title of the Act.
Commencement
Clause 2 states that the Act (other than Section 54(1)) comes into
operation on the day fixed by proclamation.
Section 54(1) commences on 1 July 1999.
Act Amended
Clause 3 states that the Liquor Act 1992 is amended.
Amendment of s 3 (Objects of Act)
Clause 4 amends Section 3 which states the objects of the Act.
Subsection (b) of Section 3 which referred to the Liquor Appeals Tribunal is
omitted and replaced with a new subsection (b) which refers to the Liquor
Review Panel.
Amendment of s 4 (Definitions)
Clause 5 amends Section 4.
The definitions for "assessment period" and "licence period" have been
omitted as they are now obsolete as the financial provisions relating to the
assessment of licence fees are omitted.
The definitions for "chairperson" and "deputy chairperson" of the Liquor
Appeals Tribunal have been omitted as the Bill replaces the Tribunal with
the Liquor Review Panel.
A definition for "disciplinary action" is inserted for the purposes of
Section 136 and Section 137.The types of disciplinary action available to the
chief executive are specified.
The definition for "licensed premises" is omitted and replaced with a
new definition which clarifies when licensees cater for functions away from
the licensed premises under Part 4 Division 15, private functions are
considered to be held on unlicensed premises, whilst public functions are
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Liquor Amendment
considered to be held on licensed premises.
The definition of "meal" is amended by omitting ",or fixed structure
used as a table". These words are now obsolete in view of the definition for
table which has been inserted.
A definition for "ordinarily set aside for dining" is inserted for the
purposes of trading on special days such as Good Friday, Anzac Day and
Christmas Day when consumption of liquor is only allowed with a meal in
normal dining areas. This definition is required to confirm where trading
may take place to ensure that licensees do not allow, for example, a meal
eaten on a bar counter in a bar area. This has occurred in the past and is not
in keeping with the intent of the Act on these special days. The definition is
also inserted for the purposes of Sections 65, 72A and 73.
A definition for "panel" is inserted which means the Liquor Review
Panel.
A definition for "panel member" is inserted to mean a member of the
Liquor Review Panel.
"Table" is defined to include a fixed structure used as a table.
The definition for "Tribunal" has been omitted as the Bill proposes to
replace the Tribunal with the Liquor Review Panel.
The definition for "unlicensed person" is omitted and replaced with a
new definition which clarifies that a person licensed under the Wine Industry
Act 1994 is recognised as a licensed person under the Liquor Act 1992.
Producer/Wholesalers may only sell liquor to persons licensed under the
Liquor Act or persons exempted by the Act. As wine producers sometimes
require bulk wine for blending purposes, their avenues for purchase are
limited. This amendment corrects an anomaly which was not originally
intended to adversely affect wine producers.
Amendment of s 7 (Presumed quantity of liquor)
Clause 6 amends Section 7 by omitting "740 ml" and replacing it with
"700 ml and not more than 750 ml" and omitting "370 ml" and replacing it
with "345ml and not more than 370ml".
Many Producer/Wholesaler licences have conditions which prescribe a
minimum quantity of 9 litres of liquor for any sale. Previously, many spirits
were packaged in 750 ml containers and the Act stated that 12 (one carton)
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Liquor Amendment
of these containers were an acceptable equivalent of 9 litres. However, the
industry standard has changed to 700 ml containers and therefore a
wholesaler would breach the Act by selling only one carton. This
amendment will alter the quantity of liquor accepted as the equivalent of 9
litres to 12, 700 ml containers. Similarly, the standard container for beer
has been reduced from 375 ml to 345 ml. The amendment will also reflect
that 24, 345 ml containers are the equivalent of 9 litres for purposes under
the Act. The maximum amount has also been specified as a number of
licences have conditions which place a ceiling on the amount of liquor
which may be sold.
Amendment of s 9 (Ordinary trading hours)
Clause 7 omits Section 9(3) and replaces it with new Section 9(3) which
clarifies the approved hours of trading on Anzac Day. Anzac Day is one of
three special days under the Act (the others being Good Friday and
Christmas Day) where trading is restricted. This amendment is necessary
as the previous Section 9(3) allowed trading to continue after midnight from
the previous day's trading. This amendment clarifies that on-premises
(cabaret) licences will cease at 3.00 am and all other licences at 12 midnight.
Trading on Anzac Day in accordance with ordinary trading hours or
specifically approved early trading hours requires liquor to be dispensed
only in conjunction with a meal until 1 pm. This provision also applies to
on-premises (cabaret) licences.
Replacement of pt 2 (Liquor Appeals Tribunal)
Clause 8 omits Part 2 which contained Sections 14 to 41.These sections
established the Liquor Appeals Tribunal, and specified the jurisdiction,
powers and procedures of the Tribunal and appeals from the Tribunal. A
new Part 2 is inserted entitled "Review of Decisions". The intent of the Act
was for the Liquor Appeals Tribunal to hear appeals with a minimum of
formality. However, in practice many appellants are legally represented at
hearings. The amendments provide for a new appeal process comprising the
Liquor Review Panel which will achieve the informality and cost efficiency
which was originally contemplated by the legislation.
A new heading "PART 2 - REVIEW OF DECISIONS Division 1 -
Definition" is inserted.
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Section 14 is inserted which contains definitions for this Part.
"Aggrieved person" is defined to mean a person who made an application,
submission or objection for the matter for which the decision was made and
is aggrieved by the decision. A request for review is limited to those parties
who either made the application, lodged an objection to the application or to
parties making a submission, for example, Police and Local Government.
A "submission" for this Part is defined not to include a submission on
public need made under Section 118A of the Act. A person who provides a
submission on public need is not entitled to apply for a review, as a
submission on public need is merely a way in which other parties such as
competing licensees may inform the chief executive on matters relating to
public need.
A heading "Division 2 - Liquor Review Panel and members" is
inserted.
Section 15 is inserted which states that the Minister may by gazette notice
appoint adult individuals as members of the Liquor Review Panel. The
panel is to consist of between 3 and 6 members, 3 of whom must have
engaged in legal practice for at least 5 years. Of the remaining members the
Minister must have regard to the person's business expertise; or financial
management expertise; or knowledge of, and experience, in the hospitality
or liquor industries.
Section 16 is inserted which provides that a panel member may be
appointed for a term not longer than 3 years. Members may serve more
than one term. A member must notify the Minister in writing of their
resignation from the panel.
Section 17 is inserted which provides that panel members' remuneration,
allowances and conditions of office are decided by the Governor-in-Council.
Section 18 is inserted which states that the Minister may, for certain
specified reasons remove a panel member from office by written
notification.
Section 19 is inserted which provides that the Minister must appoint one
of the panel members as chairperson and one member as deputy
chairperson and specifies when the deputy chairperson is to act in the office
of chairperson.
A new heading "Division 3 - Review of decision on application by
aggrieved person" is inserted.
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Liquor Amendment
Section 20(1) is inserted which provides that an aggrieved person may
apply for a review of a decision made by the Chief Executive in relation to
certain specified matters.
Section 20(2) provides that the application for a review must be made in
the approved form to the chairperson of the panel within 28 days of
receiving notice of the original decision. It must be accompanied by the
grounds on which the review is sought and may include a request for a stay
of the original decision.
Section 20(3) states that an application for review does not stay the
original decision unless a stay is granted under Section 23.
Section 20(4) provides that a copy of the application for review must be
given to the chief executive on the same day that it is given to the
chairperson.
Section 20(5) provides the Chief Executive must give the file to the
chairperson with contact details of each person who made an application,
submission or objection about the matters, the subject of the review.
Section 21 is inserted which provides that if the chairperson is satisfied
that the applicant has made a valid application, the chairperson must appoint
an appropriate (in terms of the grounds specified and the
experience/knowledge of the panel members) a panel member to review the
decision and must give written notice to each person who made an
application, submission or objection about the matters, the subject of the
application for review. If an application for review relates to an urgent
suspension of a licence, the chairperson must make arrangements for the
review to be dealt with as soon as practicable.
Section 22 is inserted which provides that a panel member who has a
material personal interest in a matter to be reviewed must declare the interest
and be excused from reviewing the decision.
Section 23 is inserted which provides that if the application for review
contains a request for a stay of the original decision the panel member
appointed for the review may stay the decision for the review period (14
days).
Section 24 is inserted which provides the procedure to be followed for
reviewing decisions.
Section 25 is inserted which allows a panel member to state a case to the
Supreme Court for the Court's opinion. The Liquor Appeals Tribunal has
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Liquor Amendment
this power under the current provisions of the Act.
A new heading "Division 4 - Appeal by chief executive against review
decision " is inserted.
Section 26 is inserted. Section 26(1) allows the chief executive to appeal
against the decision of the Liquor Review Panel to the Supreme Court on
the ground of an error of law within 28 days after the decision is made.
Section 26(2) provides that the Supreme Court may set aside the decision
and remit it back to the panel member for a decision in accordance with the
law. An aggrieved person other than the chief executive may apply to the
Supreme Court under the Judicial Review Act 1991. (Under the current Act,
an aggrieved person has the right to appeal to the Supreme Court on a
ground of an error of law. It was proposed that the same right of appeal be
inserted in the Bill, however, after consultation with the Department of
Justice it was agreed that the review rights under the Judicial Review Act
1991 gave aggrieved persons a broader right to review than that proposed
and that there was no justification for providing two avenues of appeal to the
Supreme Court. The amendment limits the chief executive's appeal rights to
an appeal on the ground of an error of law as it is not clear whether the chief
executive would be entitled to apply for judicial review. It is considered
appropriate that the chief executive only appeal against a decision of the
Liquor Review Panel on the ground of an error of law.)
Amendment of s 58 (Available licences)
Clause 9 amends Section 58 which specifies the types of licences that
may be granted. In Section 58(1)(a) "general licence" is omitted and
replaced with "hotel licence". New Section 58(1A) is inserted which states
"Also, a person may hold a general licence". The reason for this
amendment is that no new general licences will be granted but those in
existence will continue to operate until such time as they are surrendered or
cancelled. The general licence category, which previously included hotel
operations is to be divided into two categories, that of a hotel licence and a
general licence. A review of all the licences in the general licence category
will be undertaken and those which relate to hotel businesses will be
changed to hotel licences. This section also clarifies that a general licence
may be held, but no new general licences will be granted. Section 58(3) is
inserted to clarify that a licence under the Liquor Act 1992 and a licence
under the Wine Industry Act 1994 may be held concurrently for the same
area.
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Liquor Amendment
Amendment of s 60 (Restriction on grant of general licence)
Clause 10 amends Section 60(a)(i) to clarify that hotel licences must
provide facilities for the consumption of liquor both on and off the
premises. The current wording of the provision incorrectly allows
on-premises sales without any takeaway facility.
Amendment of s 62 (Authority of residential licence)
Clause 11 omits "premises, other than the licensed premises" in Section
62(2) and inserts "other premises" to provide consistency in the Act as to
the meaning of licensed and unlicensed premises.
Section (2A) is inserted to clarify that premises which contain less than
16 residential units and have no public dining room are not eligible for
approval to cater for functions on other premises.
Amendment of s 65 (Consumption of liquor with meals or when meals
are being served)
Clause 12 amends Section 65 by omitting subsection (3) and replacing it
with a new subsection (3) to clarify the requirements of trading approvals
granted under a residential licence which allow persons to be served liquor
without a meal. The amendment provides that the number of persons who
may at any time be supplied with liquor without eating a meal must not be
more than the number equal to 20% of the seating currently available for
diners at tables in that part of the licensed premises ordinarily set aside for
dining and which are set with cutlery for the purpose of eating a meal.
Omission of s 67 (Restriction on sale of liquor for consumption off the
premises)
Clause 13 omits Section 67. All provisions relating to catering off
licensed premises have been inserted in new Part 4 Division 15.
Amendment of s 68 (Authority of on-premises licence)
Clause 14 omits from Section 68(2) "premises other than the licensed
premises" and inserts "other premises" to provide consistency in the Act as
to the meaning of licensed and unlicensed premises.
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Liquor Amendment
Omission of s 70 (Restriction on sale of liquor for consumption
off-premises)
Clause 15 omits Section 70. All provisions relating to catering off
licensed premises have been inserted in Part 4 Division 15.
Amendment of s 72A (Restriction on sale and supply of liquor at
cabarets)
Clause 16 amends Section 72A by omitting subsection (2) and replacing
it with a new subsection (2) to clarify the requirements of trading approvals
granted under an On-Premises (Cabaret) Licence which allow persons to be
served liquor without a meal. The amendment provides that the number of
persons who may at any time be supplied with liquor without eating a meal
must not be more than the number equal to 20% of the seating currently
available for diners at tables in that part of the licensed premises ordinarily
set aside for dining and which are set with cutlery for the purpose of eating a
meal.
Amendment of s 73 (Restriction on the sale of liquor under
on-premises licence)
Clause 17 amends Section 73 by omitting subsection (2) and replacing it
with new subsections (2) and (3). The purpose of new subsection (2) is to
clarify that the non-dining approval does not over-ride the primary purpose
of the licence and allow the establishment to trade as a bar. New subsection
(3) clarifies the requirements of trading approvals granted under an
on-premises licence which allows persons to be served liquor without a
meal. The amendment provides for the number of persons who may at any
time be supplied with liquor without eating a meal must not be more than
the number equal to 20% of the seating currently available for diners at
tables in that part of the licensed premises ordinarily set aside for dining and
which are set with cutlery for the purpose of eating a meal.
Replacement of s 78 (Restriction on sale of liquor)
Clause 18 omits Section 78 and replaces it with a new Section 78 to
correct an oversight in the Act. Under the repealed Liquor Act 1912
premises developed as tourist attractions were allowed to cater for functions
on the premises, for example, for weddings. The ability which was
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Liquor Amendment
inadvertently removed from the Act is reinstated by this amendment.
Replacement of pt 4, div 4, sdiv 8
Clause 19 omits Sections 79 to 81 which constituted subdivision 8 of
division 4 of part 4. These provisions were included in the Act to cover the
licensing arrangements for a small number of railway refreshment rooms
which were privately leased from Queensland Rail. All of these licences
have now been surrendered. Should any new applications be received for a
similar type of operation they can be licensed under another licence
category. This amendment will streamline the number of licence categories.
A new Section 79 is inserted which provides that an on-premises (other
activity) licence, if specified in the licence, authorises the licensee to cater for
functions held on the licensed premises. The catering services of the licensee
must include the provision of a meal to which the liquor sold under the
licence is ancillary.
Amendment of s 84 (Restriction on sale of liquor under
producer/wholesaler licence)
Clause 20 renumbers Section 84(1)(e) as 84(1)(i). Subsection (1)(c) and
(d) of Section 84 are omitted and replaced with new subsections. Section
84(1)(c) allowed the holder of a producer/wholesaler licence to sell liquor to
a person engaged in an activity mentioned in Section 206(a). Section 206 is
to be repealed. The purpose of this amendment is to insert the relevant
subsections from 206(a) into section 84 to ensure that the holders of
producer/wholesaler licences retain their ability to sell liquor to specified
unlicensed entities.
Subsection (1)(h) of Section 84 is added which will allow the holders of
producer / wholesaler licences to sell liquor to persons authorised by a law
of the Commonwealth as well as to persons authorised by a law of another
State or of a foreign country. This amendment will ensure the holder of a
producer/wholesaler licence can sell to persons authorised to sell liquor at
Commonwealth airports.
Amendment of s 95 (Authority of limited licence)
Clause 21 amends Section 95(1)(c) by omitting "premises other than the
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Liquor Amendment
licensed premises" and inserting "other premises" to provide consistency in
the Act as to the meaning of licensed and unlicensed premises.
Insertion of new pt 4, div 9A
Clause 22 inserts a new heading "Division 9A-General licence" after
Section 96.
Section 96A is inserted to provide for the authority of a general licence.
This amendment is necessary as a result of amendments to Section 59 of
the Act. The current category of general licence under the Act will be
divided into hotel licences and general licences. Those businesses which
will operate under the general licence category will include those which were
originally granted as Spirit Merchant's (Retail) Licences under the repealed
1912 Liquor Act and changed to general licences under the current Act.
The general licence will allow the sale of liquor for consumption in a
manner stated in the licence. The authority of a general licence may not be
varied except in relation to the size of the licensed premises.
Insertion of new pt 4, div 15
Clause 23 inserts a new heading "Division 15 - Catering for public or
private functions" which reflects the content of the new division. The
purpose of this new division is to place all sections together which deal
specifically with approvals for licensees to cater for functions away from the
licensed premises. This amendment will allow private functions to be
catered for without further reference to the chief executive. However, public
functions such as rock concerts in the park will require the licensee to liaise
with the chief executive, Police and the local government for the locality in
the preparation of an appropriate management plan to control the event and
to seek prior approval in providing the catering facilities.
Section 104A is inserted which contains definitions for the division. A
definition for "cater" for a public or private function is inserted to mean sell
and supply liquor in conjunction with providing food or a meal, as required
under Section 104H, to persons genuinely attending the public or private
function. A definition for "main premises" is inserted to mean the licensed
premises stated in the licence. A definition for "private function" is inserted
which contains examples of a 21st birthday party and a company cocktail
party. "Public function" is defined and includes examples including rock
18
Liquor Amendment
concerts and race meetings. "Public function approval" is defined by
reference to Section 104C.
Section 104B is inserted. Section 104B states that the purpose of this
division is to allow certain licensees to cater for public and private
functions.
Section 104C is inserted. Section 104C(1) provides that a licensee whose
licence authorises the sale of liquor at other premises may provide catering
for a private function at the other premises only if the licensee has notified
the police in the locality where the function is to be held of specified details
concerning the function. In the case of a public function, the licensee may
provide catering only if the licensee's licence authorises catering for public
functions or the licensee holds a public functions approval granted by the
chief executive for the function. Section 104C(2) provides that the trading
hours during which a licensee may sell or supply liquor at a private function
are the ordinary or extended trading hours under the licence, or in the case of
a limited licence, the hours specified in the licence. Subsection (3) restricts
the on-premises (other activity) licence in catering for public and private
functions to occasions associated with the activity or primary purpose for
which the licence was granted.
Section 104D is inserted which provides that an application for a public
function must be made to the chief executive and accompanied by the
particulars required under a regulation.
Section 104E is inserted which specifies the categories of licence holders
to whom the chief executive may grant a public functions approval. The
approval may only be granted to licence types whose authority to sell liquor
includes the ability to apply for a catering authority on the licence and who
have been granted such an authority.
Section 104F is inserted. Section 104F(1) specifies the matters which the
chief executive must be satisfied of on reasonable grounds before granting a
public functions approval. Section 104F(2) provides that if the licensee will
be providing catering for a particular function on a regular basis, for
example, sporting events at the Brisbane Cricket Ground, the chief executive
may state on the licence that the licensee may provide catering for the
function without further approvals.
Section 104G is inserted which provides that the chief executive must
grant a public functions approval subject to the conditions or trading hours
that the chief executive on reasonable grounds considers appropriate.
19
Liquor Amendment
Section 104H is inserted to provide that a licensee may only sell liquor at
the other premises whilst providing catering facilities for the public function.
Section 104H(b) specifies the extent to which the holders of different
categories of licences must meet their primary purpose in providing catering
services and the extent to which food must be provided to persons attending
the function.
Amendment of s 105 (Requirements for applications)
Clause 24 omits subsection (c) and inserts a new subsection (c) which
clarifies the requirements to be lodged in making an application under the
Act. It clarifies that in addition to the specific items detailed in the
Regulations which should accompany an application, the applicant must
provide sufficient information to enable the chief executive to fully consider
the merits of the application.
Amendment of s 106 (Who may apply for licence or permit)
Clause 25 amends Section 106. Section 106(1) which states who is able
to apply for a licence or general purpose permit is amended by omitting "a
general purpose". Amendments to the Act in 1994 extended the types of
permits available under the Act. This amendment is necessary so that the
section refers to all permits and not only to general purpose permits.
A new subsection (2) is inserted which states that an adult individual may
apply for a licence or permit on behalf of an unincorporated association.
Amendment of s 107 (Restrictions on grant of licence or permit)
Clause 26 omits "permit" from the heading of Section 107 and inserts
"permit to fit and proper persons". Subsection (4) of Section 107 is
omitted. The intent of Section 107(4) is now reflected in Section 107A.
Insertion of ss 107A-107G
Clause 27 inserts Section 107A which contains the matters which the
chief executive must consider when considering an application. It allows
the chief executive to grant an application for a new licence or permit only if
the minimum standards prescribed in the regulations have been complied
with (for example, the provision of toilets by restaurants) and if the
20
Liquor Amendment
premises are, in the chief executive's opinion appropriate for the type of
business proposed to be conducted and that all relevant matters have been
completed (for example building occupation, fire and food hygiene
certificates obtained).
The chief executive must refuse to grant an application in cases where
evidence has not been produced that the conduct of the business on the
premises is a permitted use under the local government's town planning
scheme or building work on the premises has not been completed to the
satisfaction of the chief executive or the relevant local government.
Section 107B is inserted which allows the Chief Executive to issue a
preliminary approval where town planning and building completion have
not been finalised. The preliminary approval will allow applicants to have an
early indication of the chief executive's opinion on the application prior to
expending further funds on seeking approvals through Local Government.
Currently the chief executive cannot give a decision on an application until
after these approvals are obtained. This amendment will provide an early
indication to allow the applicant to proceed to other agencies.
The preliminarily approval must state the evidence the applicant is to
provide or the work to be completed before the licence will be granted.
When the relevant evidence that all approvals have been obtained and work
completed, the Chief Executive must grant the licence or permit which was
applied for.
Section 107C is inserted which provides that preliminary approval
remains in force for one year from the day it is granted. The chief executive
may renew a preliminary approval more than once for a period of not more
than one year. The intent of the preliminary approval is to assist a
prospective licensee in obtaining an indication of the attitude of the chief
executive to the application prior to expending further money in pursuing
local government approvals or completing work. It is not the intention that
this section is used to secure an area to prevent other licensees from entering
the market. Rather, this approval is subject to periodic review to ensure the
applicant is diligently pursuing the relevant approvals or completing
building work. If not, the chief executive must consider not renewing the
preliminary approval. If the approval is not renewed the matter reverts to an
incomplete application which will require further consideration as to its
grant or refusal by the chief executive in terms of its ability to meet the
requirements of the Act and the needs of the public in the area at the time it
21
Liquor Amendment
is finally considered.
Section 107D is inserted which provides that if the chief executive grants
an application for a preliminary approval and while that approval is in force,
another application for the same locality is made, the public need
requirements for that locality are taken to have been satisfied by the earlier
application to the extent they were assessed.
Section 107E is inserted which clarifies what is meant by a preliminary
approval. It does not allow the applicant to commence business operations
until the final matters are completed and the chief executive formally grants
the licence.
Section 107F is inserted which states that if the holder of a preliminary
approval produces evidence that the work required to be done in the
preliminary approval has been done, the chief executive must grant the
appropriate licence or permit.
Section 107G is inserted. Previously, this section was included in the
Financial Provisions under Part 9. However, as Part 9 has been
substantially reviewed subsequent to the 1997 High Court decision of Ha
and anor v State of New South Wales and ors; Walter Hammond &
Associates v State of New South Wales & ors on the imposition of
business licence fees, it was considered more appropriate to retain this
section and to relocate it. Effectively, it states that a licence exists until such
time as it is either cancelled or surrendered and clarifies that the licence has
no effect whilst suspended. This means that the business may operate as a
BYO for the period of suspension.
Amendment of s 109 (Nominees)
Clause 28 amends Section 109. Section 109(1)(c) is omitted and
replaced by new subsection (1)(c) which clarifies that an incorporated
association, for example, a club, must have a nominee, that is, a person
responsible for the day to day running of the business.
Section 109(4) and (5) are omitted. The intent of these subsections is
now contained in Section 113A which provides that a person must hold a
licence as licensee on behalf of an unincorporated association until the
association becomes incorporated.
22
Liquor Amendment
Amendment of s 110 (Application for grant of extended hours permit
not on regular basis)
Clause 29 amends Section 110 by omitting "Assistant Commissioner"
and replacing it with "police officer" in subsections (2) and (3). This
amendment is necessary to reflect changed administrative arrangements.
Currently, if a licensee wishes to apply to extend their trading hours on a
particular occasion, a copy of the request must be given to the Assistant
Commissioner of Police responsible for that area to enable comments or
objections to be forwarded to the chief executive. The Assistant
Commissioner then forwards this through to district level for comment, a
report is then submitted back through regional headquarters. The
amendment reflects a streamlining of the administrative processes for Police
by requiring the application to be given direct to the local officer in charge
who would then comment and forward the application back through the
Assistant Commissioner. This amendment will save time for the applicant.
Amendment of s 111 (Variation of licence)
Clause 30 amends Section 111 by inserting a new subsection (5) which
states that this section does not apply to a general licence. This amendment
is necessary as Section 96A provides that a general licence may not be
varied except in relation to the size of the licensed premises. If the holder of
a general licence wishes to vary the licence, an application for a new
category of licence would be needed.
Insertion of new s 113A
Clause 31 inserts Section 113A which provides that if a person holds a
licence or permit on behalf of an unincorporated association and the
association becomes incorporated, the licensee must within 3 months after
the association becomes incorporated, apply to the chief executive to transfer
the licence to the incorporated association.
Amendment of s 114 (Restriction on transfer of licence)
Clause 32 amends Section 114 by omitting "fees" and replacing it with
"fees and premiums" to ensure that a licensee pays all outstanding amounts
prior to transferring a licence.
23
Liquor Amendment
Amendment of s 116 (Public need relevant to applications)
Clause 33 amends Section 116 by inserting "(e) the objects of this Act"
in Section 116(4) to clarify the matters which the Chief Executive must
have regard to in considering public need. New Section 116 (4A) is
inserted which provides that subsection (4) does not limit the matters which
the chief executive may consider in making the decision.
Amendment of s 118 (Advertisement of applications)
Clause 34 amends Section 118 by inserting subsection (2A) to clarify
where notices are to be displayed when calling for public objections to an
application including an application for a new licence or extended trading
hours. Currently only one copy of the notice of intent is required to be
displayed. The amendment will require, in cases where there is more than
one road frontage, that a sign must be placed on each road frontage to
ensure that members of the public will see it. The sign must be clearly
visible to the passing public and if the premises are not located at street
level, the sign must be placed at street level. This amendment is a result of
problems which have been revealed through the appeals process where
licensees have placed a sign in a conspicuous place, but on a side of the
building where fewer people will see it.
Amendment of s 128 (Liability of licensees in certain cases)
Clause 35 amends Section 128(b) by omitting "or for the benefit of a
club" and replacing it with "by an incorporated association" to clarify that in
the case of an incorporated association, the association's management
committee is responsible for the day to day running of the club if there is no
nominee for a period of time.
Replacement of pt 5, div 3 hdg
Clause 36 omits the heading for part 5 division 3 and replaces it with a
new heading "Division 3 - Surrender and disciplinary action".
Amendment of s 133 (Request to surrender)
Clause 37 omits subsection (3)(b) of Section 133 and inserts a new
subsection (3)(b). Pursuant to Section 44A any person with a financial
24
Liquor Amendment
interest in licensed premises is required to register this interest with the chief
executive. In the case of a request to surrender a liquor licence, the Act
currently requires the chief executive to obtain the consent to the surrender
from all owners, mortgagees and lessees of the premises. This amendment
clarifies that the chief executive is required to contact and obtain consent to
the surrender only from those persons who have registered a financial
interest under Section 44A.
Replacement of ss 136 and 137
Clause 38 omits Sections 136 and 137 and inserts new Section 136 and
137. There are no changes to the penalties under this section, rather the use
of this section and administrative operations have been clarified. The
amendment will allow the use of a show cause procedure for the purpose of
disciplinary action against licensees. Currently, show cause action must
threaten cancellation of a licence. The amendment will allow the chief
executive greater flexibility in dealing with breaches of the Act by requiring
licensees to explain their actions other than under the threat of cancellation of
the licence. This amendment will also reduce costs associated with show
cause hearings as in many cases the action may be dealt with by written
submissions rather than personal attendance. It has been the experience in
the past that many licensees who received a notice to show cause why the
licence should not be cancelled often engaged legal representation although
this is not the intended course of action of the chief executive.
Section 137A is inserted which allows an urgent suspension of a licence
if the chief executive believes on reasonable grounds that disciplinary action
is required and continued trading may cause harm to the public. However,
the chief executive must immediately give written notice to the licensee of
the suspension together with the reasons for the suspension. If the licensee
is aggrieved by the decision to urgently suspend the licence, a review may
be requested within 28 days after the notice is received. When issuing the
notice of urgent suspension to the licensee, the chief executive must also
give the licensee a notice under Section 137 in relation to the grounds for
taking disciplinary action. The disciplinary action will then proceed in
accordance with Section 137 whilst the licence remains suspended. The
suspension will continue until it is revoked, the disciplinary action is
finalised or until after 60 days have elapsed after the notice of suspension
was given to the licensee.
Decisions made by the chief executive under Sections 136, 137 and
25
Liquor Amendment
137A are subject to review by a member of the liquor review panel.
Replacement of pt 6, div 1, hdg
Clause 39 omits the heading "Part 6, division 1" and inserts "Division 1
- Provisions binding licensees, permittees, employees and agents".
Amendment of s 146 (Sale or supply contrary to licence or permit)
Clause 40 amends Section 146 by omitting "The licensee or permittee"
and inserting "A licensee or permittee, or an employee or agent of the
licensee or permittee". This section currently makes it an offence for a
licensee or permittee to sell liquor outside approved trading times. This
section is inconsistent with other offence provisions contained in the Act in
that it only makes it an offence for the licensee or permittee. In most cases,
the licensee is not on the premises when the offence occurs, but rather the
manager or an employee or agent has been left in charge. The amendment
makes it an offence for an employee or agent of the licensee to sell liquor
outside approved trading hours.
Amendment of s 148 (Gratuitous supply of liquor)
Clause 41 amends Section 148 by omitting "The licensee or permittee"
and inserting "a licensee or permittee, or the employee or agent of the
licensee or permittee". This section currently provides that a licensee or
permittee does not contravene Sections 146 and 147 by the gratuitous
supply of liquor and permitting the consumption of liquor gratuitously
supplied in certain specified circumstances. The amendment extends this
defence to employees and agents of the licensee or permittee.
Replacement of s 154 (Alteration and maintenance of licensed
premises)
Clause 42 omits Section 154 and replaces it with a new Section 154. The
amendment confirms that the chief executive's approval must be obtained
for alterations, rebuilding, changes and increases including additions to the
area of the licensed premises. Pursuant to Section 219(1A) the chief
executive can impose an additional premium for an increase in the size of
the licensed premises for hotel, general and special facility licences. The
approval process ensures that the required premium is paid and that the
proposed changes are appropriate and do not adversely affect the public.
26
Liquor Amendment
Section 154A is inserted. This amendment states that licences issued
under Section 59(1)(d) are for "detached bottle shops". Whilst the term
"detached bottle shop" has been used by the chief executive, the liquor
industry and the Courts since 1988, the term has not been contained in the
Act. The inclusion of the term in the Act will ensure there are no
misunderstandings in relation to the meaning of Section 59(1)(d) approvals.
The amendment also provides that a licensee must make application to the
chief executive for approval to relocate a detached bottle shop to another
location. The chief executive can only approve relocation to another location
within the same shopping precinct. Also, if the detached bottle shop is to be
relocated more than 5 kilometres from the main licensed premises the chief
executive must refuse the application (see Regulation 6C(1)(c)(i)). Section
154A(6) allows the chief executive to grant a relocation which is more than
5 kilometres from the main premises in circumstances where:
· the licensee obtained an approval for the detached bottle shop
before 2 December 1994 (the date that Regulation 6C(1)(a)(i)
which states that detached bottle shops must be no more than 5
kilometres from the main licensed premises came into effect) or
· if the bottle shop had been specifically approved after this date to
provide services which would not otherwise be available for a
remote area (see Regulation 6C(2)).
In deciding whether to grant an application to relocate a detached bottle
shop the chief executive must consider whether or not the applicant should
be required to advertise under Section 118. For example, if the chief
executive considers different persons will be affected to those originally
affected, the applicant would be required to advertise the application and an
objections conference would be held. Pursuant to Section 154A(7) if the
chief executive approves the relocation of a detached bottle shop, the chief
executive must adjust the licensee's licence by decreasing the licensed
premises by the size of the existing detached bottle shop and increasing the
size of the licensed premises by the size of the relocated bottle shop.
Section 154B provides for the transfer (upon sale) of a detached bottle
shop from one licensee to another. A joint application is required from both
licensees. When deciding whether to grant a transfer of a detached bottle
shop, the chief executive must have regard to the matters prescribed under a
regulation for this section. Pursuant to Section 154B(4), if the chief
executive approves the transfer of the detached bottle shop, the chief
27
Liquor Amendment
executive must adjust the first licensee's licence by decreasing the size of the
licensed premises by the size of the existing detached bottle shop and adjust
the second licensee's licence by increasing the size of the licensed premises
by the size of the new detached bottle shop. Pursuant to Section 154B(5) a
premium is not payable under Section 219 for the transfer of a detached
bottle shop.
Amendment of s 155 (Minors on premises)
Clause 43 omits Subsection (3) of Section 155 and inserts a new
subsection (3).This amendment provides that in addition to a licensee,
permittee or person in control of the premises, an employee or agent of the
licensee or permittee now also commit an offence by allowing a minor on
the premises. The reason for this amendment is that it is often the
doorperson, security or some other employee who has allowed the minor
entry to the licensed premises and it is these persons who should be
prosecuted. A defence is provided under Section 230 if the person has
sighted an acceptable proof of age card and reasonably believed the patron
was over 18 years.
Amendment of s 169 (Authority required for sale)
Clause 44 amends Section 169 by omitting the maximum penalty of 250
penalty units and replacing it with 250 penalty units or 6 months
imprisonment. This section makes it an offence to sell liquor without an
appropriate licence. The purpose of this amendment is to allow the Courts
to impose a term of imprisonment of up to 6 months as well as the
monetary penalty. This will allow the Courts additional scope in dealing
with repeat offenders.
Amendment of s 171 (Carrying or exposing liquor for sale)
Clause 45 amends Section 171 by omitting the maximum penalty of 250
penalty units and replacing it with 250 penalty units or 6 months
imprisonment. This section makes it an offence to carry or expose liquor
for sale. The purpose of this amendment is to allow the Courts to impose a
term of imprisonment of up to 6 months as well as the monetary penalty.
This will allow the Courts additional scope in dealing with repeat offenders.
28
Liquor Amendment
Omission of ss 193-196
Clause 46 omits Sections 193 to 196 inclusive which relate to prohibition
orders. These sections were repealed in 1994, however, due to an
administrative printing error they were not deleted from the Act.
Omission of pt 9, div 1, hdg
Clause 47 omits the heading "Division 1 - Assessment and payment of
fees". The provisions which relate to the calculation of annual licence fees
have been affected by the 1997 High Court decision of Ha and anor v State
of New South Wales and others; Walter Hammond & Associates v State of
New South Wales and others which held that the imposition of a business
franchise tax on tobacco was constitutionally invalid. The implications of
this decision have been examined by the Queensland Government which
has determined that licence fees on liquor will not in future be collected by
this State. Arrangements have been made with the Commonwealth
Government to collect these fees through an increase in the amount of sales
tax, for subsequent remittance to the States and Territories with the annual
Grants Commission subsidies.
As the method of collection of these fees by the Commonwealth
Government would result in a higher tax being imposed than was
previously experienced in this State, the Queensland Government has
entered into a scheme of subsidising the difference between the original fee
and the new fee imposed. This scheme was designed to ensure that the
price of liquor did not suddenly increase for the Queensland consumer. In
reviewing the financial provisions of the Liquor Act, this scheme was taken
into consideration in terms of the type of information from both licensees
and wholesalers which it may be necessary to obtain for audit purposes to
ensure that appropriate reimbursements are made.
Replacement of ss 199 - 204
Clause 48 omits Sections 199 to 204 inclusive which related to the
assessment and payment of fees.
Section 199 is omitted which defined "the gross amount paid or payable
for liquor" which was used in the calculation of licence fees.
Section 200 is omitted which defined "licence period" and "assessment
period" for a licence.
29
Liquor Amendment
Section 201 is omitted which specified the duration of a licence and stated
that a licence does not have effect during a period for which it is suspended.
The effect of these provisions is reflected in Section 107G.
Section 202 is omitted which provided for fees that were payable under
the Act and Regulations.
Section 203 is omitted which provided for the assessment of licence fees
and annual fees. The payment of annual fees will be contained in new
Section 199.
Section 204 is omitted which provided for the payment of additional fees
for an approval to sell liquor to non-diners in certain premises. These
provisions are contained in new Section 199. The fees will be prescribed by
regulation.
New Section 199 is inserted which provides for the payment of an annual
fee prescribed for a licence or permit under a regulation. The annual fee is
payable by 31 July and is paid in advance to the end of the financial year.
Amendment of s 205 (Filing of returns)
Clause 49 amends Section 205 by omitting subsection (1). In subsection
(2) and (3) "In each licence period the holder" is omitted and replaced with
"The holder", "assessment period" is omitted and replaced with "financial
year". In Subsection (3), "or certificate" is omitted. In subsections (4) and
(5), "subsection (2)" is omitted and replaced with "subsection (2) or (3)".
A new subsection (7) is inserted which states that subsection (2) expires on
30 September 1999. The effect of these amendments will be to clarify that
licensees must file their last annual return detailing liquor purchases by 21
July 1999. Producer/wholesalers and limited licence holders with a licence
under the Wine Industry Act 1994 must continue to lodge returns detailing
liquor sales.
Omission of s 206 - 214
Clause 50 omits Sections 206 to 214 inclusive which related to the
assessment of fees. These sections are now obsolete as liquor fees are no
longer payable under the Act.
30
Liquor Amendment
Amendment of s215 (Refund of fee)
Clause 51 omits "other than a discontinuance fee" in Section 215.
Omission of s 215A (Refund of fees - general)
Clause 52 omits Section 215A as this section is now obsolete as the
licence fees are no longer payable under the Act.
Amendment of s 216 (Unpaid fees a debt to State)
Clause 53 omits "fees" in the heading to the section and replaces it with
"amount". In Section 216 "as a fee payable" is omitted. As licence fees
are no longer payable under the Act, it is more appropriate to refer to unpaid
amounts rather than fees as debts due to the State.
Amendment of s 217 (Records to be kept by licensee)
Clause 54 omits Subsection (1) of Section 217 and inserts a new
subsection (1) which provides for the holders of a producer/wholesaler
licence or a limited licence relating to a business operated by the holder of a
licence under the Wine Industry Act 1994 to keep details of their transaction
records. The replacement of this subsection does not take place until 1 July
1999.
Subsection (4) of Section 217 is omitted and replaced with a new
subsection (4) which provides that the licensee must keep the accounting
records on the premises to which they relate or in another place approved by
the chief executive for 6 years.
Subsection (6) of Section 217 is omitted.
Omission of pt 9, div 2, hdg
Clause 55 omits the heading "Division 2 - Assessment and payment of
premiums".
Amendment of s 219 (Payment of premium for general licence and
special facility licence)
Clause 56 inserts a new heading for Section 219. New Section 219(1A)
31
Liquor Amendment
is inserted which provides for the payment of an additional premium for:
· an increase in the size of licensed premises for a hotel, general or
special facility licence; or
· an increase in the facilities provided under a hotel or special
facility licence.
Subsection (2) of Section 219 is amended by inserting "or additional
premium" after " the premium".
Amendment of s 220 (Basis of calculation of premium)
Clause 57 amends the heading of Section 220 by omitting "premium"
and inserting "premium and additional premium" to reflect the new content
of the section. New subsection (2) is inserted which specifies the matters the
chief executive must have regard to when fixing the amount of an additional
premium.
Amendment of s 235 (Regulations)
Clause 58 amends Section 235(2) by inserting subsection (2)(j) which
states that regulations may be made with respect to the minimum standards
for premises at which a business may be conducted under authority of a
licence or permit. Subsection (2)(k) is inserted which allows regulations to
be made with respect to the premium or additional premium to be paid for a
hotel, general or special facility licence.
Omission of ss 242 - 244
Clause 59 omits Sections 242 to 244 inclusive. These are transitional
provisions which are now obsolete.
Omission of s 247 and 248
Clause 60 omits Sections 247 and 248. These are transitional provision
which are now obsolete.
32
Liquor Amendment
Omission of ss 249A - 250
Clause 61 omits Sections 249A and 250. These are transitional
provisions which are now obsolete.
Omission of pt 12
Clause 62 omits part 12 which is now obsolete and inserts a new Part 12
entitled "Miscellaneous Transitional Provisions".
Section 252 is inserted which contains definitions for this Part.
Section 253 is inserted which is a transitional section for proceedings
which have been started but not completed by the Tribunal.
Section 254 is inserted which is a transitional section which provides that
an application for a general licence made immediately before the
commencement of the amendment Act is taken to be an application for a
hotel licence.
Section 255 is inserted which is a transitional section for decisions about
applications for general licences. If the refusal of an application for a
general licence occurred before the commencement of these amendments,
the panel member or tribunal deciding the matter must consider the
application as an application for a hotel licence. Therefore the application
must be considered in terms of its ability to meet the appropriate facilities
and services required for a hotel licence.
Section 256 is inserted which is a transitional section for existing general
licences, and describes the licences which will become hotel licences and
those which will remain as general licences. In the case of a general licence
granted since 1992, if the licence restricts the manner of trading, this
restriction must remain. To alter or vary the conditions which will be
specified in the licence, the licensee must submit details on public need (and
conduct advertising of the application if required by the chief executive) to
allow full consideration of the matter which will also include the
appropriateness of the premises to carry out the proposed business. A
premium will also be payable in these circumstances.
Section 257 is inserted which is a transitional section which requires the
chief executive as soon as practicable after the commencement to conduct a
review of licences that, immediately before the commencement, authorised
the sale of liquor on other premises. The chief executive may vary the
33
Liquor Amendment
licence to the extent necessary to ensure the conditions of the licence are
consistent with part 4, division 15.
Section 258 is inserted which is a transitional section which provides that
the chief executive must as soon as practicable after the commencement
conduct a review of licensed premises under hotel, general and special
facility licences. The chief executive may vary a hotel, general or special
facility licence to the extent necessary to clarify the area of the licensed
premises under the licence.
Amendment of sch (Rules of clubs)
Clause 63 omits 92 in the Schedule Rules of Clubs and inserts Section
103D to correct a typographical error.
Minor and Consequential Amendments
Clause 64 states that Schedule 1 makes minor amendments to the Liquor
Act 1992. Schedule 2 makes some consequential amendments to the acts
mentioned in it.
SCHEDULE 1
MINOR AMENDMENTS
Schedule 1, clause 1 omits "or a territory" in Sections 6(a), 47(a),
84(1)(i), 107(5)(b) and 149.
Schedule 1, clause 2 omits "general licence" in Sections 9(12), 58(1)(a),
59, 60, 61, 116(1)(b), 118(1)(b), 219(1) and 235(2)(g) and inserts "hotel
licence". This amendment is necessary as hotel licences will be granted
after the commencement instead of general licences.
Schedule 1, clause 3 omits the heading "General licence" from Part 4,
division 2 and inserts "hotel licence".
Schedule 1, clause 4 omits "general licence" from the example in Section
34
Liquor Amendment
86(2) and inserts "hotel licence".
Schedule 1, clause 5 omits "general licence" in Section 152(2) and inserts
"hotel licence or general licence".
SCHEDULE 2
CONSEQUENTIAL AMENDMENTS
GAMING MACHINE ACT 1991
Schedule 2, clause 1 omits the definition of "general liquor licence" in
Section 3 and inserts a definition for "hotel liquor licence".
Schedule 2, clause 2 omits "general liquor licence in Section
39(1)(b),(d)(i) and (e)(i) and inserts "hotel liquor licence".
Schedule 2, clause 3 omits "general liquor licence" in Section 53(1) and
(3)(a) and inserts "hotel liquor licence".
WINE INDUSTRY ACT 1994
Schedule 2, clause 4 omits the heading in Division 11 and inserts
"Division 11 - Review of decisions" to reflect that reviews will replace
appeals.
Schedule 2, clause 5 omits the heading in Section 33 and inserts "Review
of decisions made by chief executive" to reflect that reviews will replace
appeals.
Schedule 2, clause 6 omits in Section 33(1) "A decision" to "appealed
against" and inserts "An application for the review of a decision of the chief
executive under this Act may be made" to reflect the review procedure has
replaced appeals.
Schedule 2, clause 7 omits the definition of "Tribunal" in Schedule 2.
35
Liquor Amendment
Schedule 2, clause 8 omits Part 9 which deals with transitional provisions
which are now obsolete.
© The State of Queensland 1998