South Australian Consolidated Acts South Australian Consolidated Acts99—Prohibition of profit sharing
(1) Subject to this
Act, if a licensee—
(a)
enters into partnership with an unlicensed person in relation to the business
carried on under the licence; or
(b)
enters into any agreement or arrangement under which an unlicensed person may
participate in the proceeds of the business carried on under the licence (but
this paragraph does not prevent the members of a licensed club from benefiting
as members of the club from the proceeds of the business conducted under the
licence); or
(c)
remunerates an unlicensed person by reference to the proceeds or profits
obtained from the business carried on under the licence or by reference to the
quantity of liquor sold; or
(d)
permits an unlicensed person (not being a person approved by the licensing
authority) to conduct, superintend or manage the business carried on at
licensed premises under the licence; or
(e)
permits an unlicensed person to exercise control or substantial influence,
without authorisation or approval under this Act, over the business conducted
under the licence; or
(f)
permits an unlicensed person to hold himself or herself out to the public as
the licensee,
the licensee and the unlicensed person are each guilty of an offence.
(2) The Commissioner
may, on application by an interested person, approve an agreement or
arrangement if—
(a) the
agreement or arrangement—
(i)
is likely to assist the liquor industry and industries
with which it is closely associated—such as tourism and the hospitality
industry; or
(ii)
is otherwise in the public interest,
or there is some other good reason for approving the agreement or arrangement;
and
(b) the
agreement or arrangement does not adversely affect the rights and reasonable
expectations of persons presently in employment.
(3) If an agreement or
arrangement approved under subsection (2) provides for a trust or
corporate entity to conduct, superintend or manage the business conducted
under a licence, that business must nevertheless be conducted under the
personal supervision and management of a natural person approved by the
licensing authority.
(4) The Commissioner
may, on application by the holder of a licence authorising the sale of liquor
by wholesale, approve an agreement or arrangement between that holder and an
unlicensed agent under which the agent is to be remunerated by reference to
the quantity of wholesale sales of liquor made by the agent.
(5) The Commissioner
must not approve an agreement or arrangement under subsection (4) unless
satisfied—
(a) that
the agent is a fit and proper person to act as an agent of the licensee; and
(b) that
the nature and scale of the business to be conducted by the agent under the
proposed agreement or arrangement is not such that, taken alone or in
conjunction with the business conducted under all other similar agencies held
by the agent with other holders of wholesale licences, the agent should
properly hold an appropriate licence under this Act in relation to that
business.
(6)
Subsection (1) does not apply to—
(a) an
agreement or arrangement approved under subsection (2) or (4) or any
other provision of this Act, or anything done under any such approved
agreement or arrangement; or
(b) any
contractual provision for the remuneration of an employee of a licensee (other
than a provision that confers on the employee a right to a share of the
profits of the business conducted under the licence or provides that the
remuneration of the employee is to vary by reference to the quantity of liquor
sold); or
(c) an
agreement or arrangement providing for the disbursement of profits or proceeds
to a person in a position of authority in a trust or corporate entity that
holds the licence or to a shareholder or beneficiary approved by the licensing
authority as being a fit and proper person.
(7) For the purposes
of subsection (2)—
"interested person" includes an association formed to protect or further the
interests of—
(a) the
liquor industry or a particular section of the liquor industry; or
(b)
employees in the liquor industry or a particular section of the liquor
industry.