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This is a Bill, not an Act. For current law, see the Acts databases.
PARLIAMENT OF VICTORIA
Liquor Control Reform (Amendment) Act 2001
Act No.
TABLE OF PROVISIONS
Clause Page
1. Purpose 1
2. Commencement 2
3. Principal Act 2
4. Conditions of general licence 2
5. Conditions of packaged liquor licence 2
6. New section 18A inserted 3
18A. Licence condition (general licence)--8% packaged
liquor licence limit 3
7. Prohibition on licensing premises situated in petrol stations 4
8. Limit on packaged liquor licences held by the same or related
persons 5
9. New Division 3A inserted in Part 2 7
Division 3A--Controlling Interests 7
26A. Definitions and interpretation 7
26B. Relevant interest in a share 9
26C. Voting power 9
26D. References to Corporations Law 10
26E. Controlling interest in a body corporate 10
26F. Notification of existing controlling interest 11
26G. Notification of acquisition of controlling interest 12
26H. Director to notify body corporate over 8% limit 13
26I. Certain licences cease to be in force 14
26J. Restriction on relocation of licences 17
26K. No compensation 18
10. Grounds for inquiry 18
11. New section 179A inserted 18
179A. Supreme Court--limitation of jurisdiction 19
12. Transitional 19
13. Statute law revision 20
ENDNOTES 21
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541160B.A1-18/5/2001 BILL LA AS SENT 18/5/2001
PARLIAMENT OF VICTORIA
Initiated in Assembly 28 February 2001
As amended by Assembly 17 May 2001
A BILL
to amend the Liquor Control Reform Act 1998 with respect to
packaged liquor licences, certain general licences and the licensing of
petrol stations and for other purposes.
Liquor Control Reform (Amendment)
Act 2001
The Parliament of Victoria enacts as follows:
1. Purpose
The purpose of this Act is to amend the Liquor
Control Reform Act 1998--
(a) to ensure that the 8% limit on holders of
5 packaged liquor licences is effective;
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(b) to ensure that the predominant activity
carried on under a packaged liquor licence is
the retail sale of liquor for consumption off
the licensed premises;
5 (c) to strengthen the prohibition against granting
a liquor licence in respect of premises
situated within a petrol station.
2. Commencement
This Act comes into operation on the day after the
10 day on which it receives the Royal Assent.
3. Principal Act
See:
In this Act, the Liquor Control Reform Act Act No.
1998 is called the Principal Act. 94/1998
and
amending
Act Nos
24/1999,
6/2000 and
74/2000.
LawToday:
www.dms.
dpc.vic.
gov.au
4. Conditions of general licence
15 In section 8(2) of the Principal Act, after
paragraph (c) insert--
"(ca) if applicable, the condition set out in
section 18A(2); and".
5. Conditions of packaged liquor licence
20 In section 11(3) of the Principal Act, before
paragraph (a) insert--
"(aa) a condition that the predominant activity
carried on in the area set aside as the
licensed premises is the sale by retail of
25 liquor for consumption off the licensed
premises; and".
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6. New section 18A inserted
After section 18 of the Principal Act insert--
"18A. Licence condition (general licence)--8%
packaged liquor licence limit
5 (1) This section applies to a general licence that
is granted or transferred to a person if the
grant or transfer of the licence to the person
would have been prohibited by section 23(2)
had the Director formed the opinion referred
10 to in section 23(2)(a).
(2) It is a condition of a general licence to which
this section applies that the predominant
activity carried on in the area set aside as the
licensed premises is not the sale by retail of
15 liquor for consumption off the licensed
premises.
(3) The condition set out in sub-section (2) does
not apply at any time at which--
(a) in the case of a licensee who is a
20 natural person--the licensee does not
hold more than 8% of all packaged
liquor licences granted and in force
under this Act; or
(b) in the case of a licensee who is a body
25 corporate--the sum of the number of
packaged liquor licences held by the
body corporate and by any related
entities is not more than 8% of all
packaged liquor licences granted and in
30 force under this Act.
(4) For the purposes of sub-section (3), a general
licence--
(a) held by--
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(i) in the case of a licensee who is a
natural person--the licensee; or
(ii) in the case of a licensee who is a
body corporate--the body
5 corporate or any related entity;
and
(b) under which, in the opinion of the
Director, the predominant activity
carried on in the area set aside as the
10 licensed premises is the sale by retail of
liquor for consumption off the licensed
premises--
is to be taken to be a packaged liquor licence
held by the natural person, body corporate or
15 related entity, but no general licence held by
any other person is to be taken to be a
packaged liquor licence granted and in force
under this Act.".
7. Prohibition on licensing premises situated in petrol
20 stations
In section 22 of the Principal Act, after sub-
section (2) insert--
"(3) For the purposes of sub-section (1)(b) regard
must be had to the following factors--
25 (a) the physical location of the area set
aside as the licensed premises; and
(b) the primary means of access to and
egress from the area set aside as the
licensed premises; and
30 (c) whether or not a reasonable person
would consider that the area set aside as
the licensed premises is part of
premises that are used primarily as a
petrol station.".
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8. Limit on packaged liquor licences held by the same or
related persons
(1) Insert the following heading to section 23 of the
Principal Act--
5 "Limit on packaged liquor licences and certain
general licences held by the same or related
persons".
(2) In section 23 of the Principal Act, for "at the time
of the application" substitute "at the time of the
10 determination of the application".
(3) At the end of section 23 of the Principal Act
insert--
"(2) The Director must not grant or transfer to a
person a general licence if--
15 (a) in the opinion of the Director, the
predominant activity to be carried on in
the area set aside as the licensed
premises would be the sale by retail of
liquor for consumption off the licensed
20 premises; and
(b) at the time of the determination of the
application for the grant or transfer--
(i) in the case of a natural person, the
person holds more than 8% of all
25 packaged liquor licences granted
and in force under this Act; or
(ii) in the case of a body corporate,
the sum of the number of
packaged liquor licences held by
30 the body corporate and by any
related entities is more than 8% of
all packaged liquor licences
granted and in force under this
Act.
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(3) If--
(a) a person applies for the grant or transfer
to the person of a packaged liquor
licence or general licence; and
5 (b) either--
(i) in the case of a natural person, the
person holds a general licence; or
(ii) in the case of a body corporate,
the body corporate or any related
10 entity holds a general licence; and
(c) in the opinion of the Director, the
predominant activity carried on in the
area set aside as the licensed premises
under the general licence referred to in
15 paragraph (b) is the sale by retail of
liquor for consumption off the licensed
premises--
then, in determining whether or not this
section prohibits the grant or transfer of a
20 licence to the person, the general licence
referred to in paragraph (b) is to be taken to
be a packaged liquor licence held by the
natural person, body corporate or related
entity, but no general licence held by any
25 other person is to be taken to be a packaged
liquor licence granted and in force under this
Act.
Example
Company A holds 7 packaged liquor licences and
30 5 general licences. Company B, which is a related
entity of company A, holds 3 general licences.
Company C, which is not a related entity of
company A, holds 6 general licences.
The Director is of the opinion that the predominant
35 activity carried on under 2 of company A's general
licences, under one of company B's general licences
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and under 4 of company C's general licences is the
retail sale of liquor for consumption off the licensed
premises.
Assume that company A applies for another packaged
5 liquor licence or general licence and that, at the time
of the determination of the application, there are a
total of 100 packaged liquor licences in force.
Company A cannot be granted a further packaged
liquor licence (or a general licence in the
10 circumstances referred to in sub-section (2)(a)), as
under sub-section (1)(b) or (2)(b)(ii) (as applicable)
the percentage of packaged liquor licences taken to be
held by company A and its related entities is--
( 7 + 2 + 1)
× 100% = 9 7% .
(100 + 2 + 1)
15 7 is the number of company A's existing packaged
liquor licences;
2 is the number of company A's existing general
licences predominantly for the retail sale of liquor for
consumption off the licensed premises;
20 1 is the number of company B's existing general
licences predominantly for the retail sale of liquor for
consumption off the licensed premises.
100 is the number of actual packaged liquor licences
granted and in force.
25 None of company C's general licences are taken into
account.".
9. New Division 3A inserted in Part 2
After Division 3 of Part 2 of the Principal Act
insert--
30 'Division 3A--Controlling Interests
26A. Definitions and interpretation
(1) In this Division--
"associate" has the meaning, in relation to a
person, it would have under the
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Corporations Law if, in Division 2 of
Part 1.2 of the Corporations Law--
(a) for paragraphs (b) and (c) of
section 12(1) of that Law, there
5 were substituted--
"or
(b) the primary person's voting
power in a body corporate or
whether the primary person
10 is in a position to exercise
certain powers in relation to
a body corporate;"; and
(b) sections 13, 14, 16(2) and 17 of
that Law were repealed;
15 "commencement day" means the day on
which section 9 of the Liquor Control
Reform (Amendment) Act 2001 came
into operation;
"officer", of a body corporate, has the same
20 meaning as in section 82A of the
Corporations Law;
"packaged liquor licence" includes a
general licence under which, in the
opinion of the Director, the
25 predominant activity carried on in the
area set aside as the licensed premises
is the sale by retail of liquor for
consumption off the licensed premises.
(2) In this Division, a reference to a licence
30 includes a reference to a licence that is
renewed in accordance with Division 8.
(3) In determining for the purposes of this
Division the number of packaged liquor
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licences held by a person, account is not to
be taken of any general licence that was--
(a) in force on 23 January 2001; and
(b) held by the person on that day.
5 26B. Relevant interest in a share
For the purposes of this Division, a person
has a relevant interest in a share if, and only
if, the person would be taken to have a
relevant interest in the share because of
10 sections 608 and 609 of the Corporations
Law but a person does not have a relevant
interest in a share in a body corporate only
because the person has a right of pre-
emption in relation to that share if the body
15 corporate--
(a) was formed by two or more persons for
the purpose of enabling those persons
to carry on an activity jointly by means
of their joint control of, or by means of
20 their ownership of shares in, that body
corporate; and
(b) those persons, or persons who have
acquired some or all of the shares in
that body corporate, continue to carry
25 on that activity jointly by either of
those means.
26C. Voting power
For the purposes of this Division, the voting
power a person has in a body corporate is the
30 person's voting power determined in
accordance with section 610 of the
Corporations Law as if a reference in that
section of that Law to a relevant interest
were a reference to a relevant interest to
35 which section 26B applies.
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26D. References to Corporations Law
A reference in this Division to the
Corporations Law is a reference to that Law
as it would apply if references in that Law to
5 a body corporate, corporation or company
included references to--
(a) a body corporate of any kind wherever
formed or incorporated and whether
formed or incorporated under that Law
10 or any other law; and
(b) any unincorporated body, being a
society, association, company of
proprietors or other body, wherever
formed, that, under the law of its place
15 of formation, may sue or be sued, or
may hold property in the name of the
secretary or some other officer of the
society, association or body, or in the
name of any trustee or trustees; and
20 (c) any unincorporated body, being a
society, association, company of
proprietors or other body or
undertaking to which is applied, under
the laws of the place of its formation,
25 with or without exceptions, a law in
force in that place relating to
companies or corporations as if it were
a company or corporation within the
meaning of that law.
30 26E. Controlling interest in a body corporate
For the purposes of this Division, a person
has a controlling interest in a body corporate
if--
(a) the person's voting power in the body
35 corporate is more than 50%; or
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(b) the person and the person's associates
have relevant interests in shares in the
body corporate that confer or, if a
dividend were declared or a distribution
5 of profits were made by the body
corporate, would confer a right to
receive the benefit of more than 50% of
the dividend or distribution; or
(c) the person and the person's associates
10 have relevant interests in shares in the
body corporate that confer or, in the
event of any other distribution of
property or rights by the body
corporate, whether on dissolution or
15 otherwise, would confer a right to
receive the benefit of more than 50% of
the property and rights; or
(d) the person is able, whether alone or in
concert with another, and whether by
20 any act or omission or otherwise, to
dominate or control--
(i) the body corporate; or
(ii) the financial and operating
policies or management of the
25 body corporate; or
(iii) the activities of the body corporate
as a licensee.
26F. Notification of existing controlling interest
(1) If, as a result of the acquisition of an interest
30 on or after 18 April 2001 but before the
commencement day, a person has a
controlling interest on the commencement
day in a body corporate--
(a) that holds a packaged liquor licence or
35 general licence; or
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(b) a related entity of which holds a
packaged liquor licence or general
licence--
the person must give written notice to the
5 Director in accordance with this section.
(2) The notice must be given within 28 days
after the commencement day.
(3) The notice must contain--
(a) the date the interest giving rise to the
10 controlling interest was acquired; and
(b) the name of the person who has the
controlling interest; and
(c) the name of the body corporate in
which the controlling interest is held.
15 26G. Notification of acquisition of controlling
interest
(1) If, on or after the commencement day, a
person acquires an interest that results in the
person having a controlling interest in a body
20 corporate--
(a) that holds a packaged liquor licence or
general licence; or
(b) a related entity of which holds a
packaged liquor licence or general
25 licence--
the person must give written notice to the
Director in accordance with this section.
(2) The notice must be given within 7 days after
the day on which the person acquires the
30 interest giving rise to the controlling interest.
(3) The notice must contain--
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(a) the date the interest giving rise to the
controlling interest was acquired; and
(b) the name of the person who has the
controlling interest; and
5 (c) the name of the body corporate in
which the controlling interest is held.
26H. Director to notify body corporate over 8%
limit
(1) If the Director becomes aware that--
10 (a) a body corporate (whether or not a
licensee) has acquired an interest
(whether before, on or after the
commencement day) giving the body
corporate a controlling interest in a
15 licensee or in a related entity of a
licensee; and
(b) because of that controlling interest the
sum of the number of packaged liquor
licences held by the body corporate and
20 by any of its related entities is more
than 8% of all packaged liquor licences
granted and in force under this Act--
the Director must give written notice to the
body corporate in accordance with this
25 section.
Note: see extended definition of "packaged liquor
licence" in section 26A.
(2) The notice must inform the body corporate--
(a) that the body corporate and its related
30 entities hold more than 8% of all
packaged liquor licences granted and in
force under this Act; and
(b) that none of the packaged liquor
licences held by the body corporate or
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any of its related entities can be
relocated while the body corporate and
its related entities hold more than 8% of
all packaged liquor licences granted
5 and in force under this Act; and
(c) the number of packaged liquor licences
by which the body corporate and its
related entities exceed the 8% limit;
and
10 (d) the day by which the body corporate
and its related entities must cease to
hold more than 8% of all packaged
liquor licences granted and in force
under this Act.
15 26I. Certain licences cease to be in force
(1) If--
(a) a body corporate (whether or not a
licensee) has a controlling interest in a
licensee or in a related entity of a
20 licensee (whether the interest giving
rise to that controlling interest was
acquired before, on or after the
commencement day); and
(b) immediately after the interest giving
25 rise to that controlling interest was
acquired the sum of the number of
packaged liquor licences held by the
body corporate and by any of its related
entities is or was more than 8% of all
30 packaged liquor licences granted and in
force under this Act; and
(c) on the relevant day the sum of the
number of packaged liquor licences
held by the body corporate and by any
35 of its related entities is more than 8% of
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all packaged liquor licences granted
and in force under this Act--
certain of the packaged liquor licences held
by the body corporate or by any of its related
5 entities cease to be in force, in accordance
with and by force of this section, at the end
of the expiry day.
Note: see extended definition of "packaged liquor
licence" in section 26A.
10 (2) The number of licences that cease to be in
force is the number of licences by which the
sum of the number of packaged liquor
licences held by the body corporate and by
any of its related entities on the expiry day
15 exceeds 8% of all packaged liquor licences
granted and in force under this Act.
(3) The licences that cease to be in force are
determined in reverse order to the order in
which they were acquired by the body
20 corporate.
(4) For the purpose of sub-section (3)--
(a) a licence held by a related entity of the
body corporate is taken to have been
acquired by the body corporate when
25 the related entity became a related
entity of the body corporate;
(b) if some but not all of the licences
referred to in paragraph (a) cease to be
in force, the licences that cease to be in
30 force are determined in reverse order to
the order in which they were originally
granted or transferred to the related
entity (whether or not the related entity
was a related entity at the time of the
35 grant or transfer).
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(5) If--
(a) any packaged liquor licences were
originally granted or transferred to an
entity at the same time; and
5 (b) it is necessary for the purposes of this
section to determine which of those
licences cease to be in force--
the Director must determine, at his or her
discretion, which of those licences cease to
10 be in force.
(6) Within 14 days after the relevant day, the
Director must give written notice of each
licence that ceases to be in force by virtue of
this section to the holder of the licence.
15 (7) The Director, by giving written notice to the
body corporate before the day that would
otherwise be the relevant day, may extend
the relevant day once for a period not
exceeding 90 days, if the Director is satisfied
20 that--
(a) special circumstances exist; and
(b) the body corporate has demonstrated
that it has made all reasonable efforts to
ensure that the body corporate and any
25 of its related entities do not hold more
than 8% of all packaged liquor licences
granted and in force under this Act; and
(c) compliance by the body corporate and
its related entities with the 8% limit is
30 imminent.
(8) In this section--
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"expiry day" means the day on which the
Director gives notice to a body
corporate under sub-section (6);
"relevant day" means--
5 (a) if the interest that gave rise to the
controlling interest referred to in
sub-section (1)(a) was acquired on
or before 18 April 2001--18 April
2002; or
10 (b) if the interest that gave rise to the
controlling interest referred to in
sub-section (1)(a) was acquired
after 18 April 2001--the first
anniversary of the day on which
15 the interest was acquired; or
(c) if the Director grants an extension
under sub-section (7)--the day
specified by the Director in the
notice of extension.
20 26J. Restriction on relocation of licences
Despite anything to the contrary in
Division 6, if--
(a) a body corporate (whether or not a
licensee) has a controlling interest in a
25 licensee or in a related entity of a
licensee (whether the interest giving
rise to that controlling interest was
acquired before, on or after the
commencement day); and
30 (b) immediately after the interest giving
rise to that controlling interest was
acquired the sum of the number of
packaged liquor licences held by the
body corporate and by any of its related
35 entities is or was more than 8% of all
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packaged liquor licences granted and in
force under this Act--
an application for relocation of a packaged
liquor licence cannot be granted to the body
5 corporate or any of its related entities if, at
the time of the determination of the
application, the sum of the number of
packaged liquor licences held by the body
corporate and by any of its related entities is
10 more than 8% of all packaged liquor licences
granted and in force under this Act.
Note: see extended definition of "packaged liquor
licence" in section 26A.
26K. No compensation
15 (1) No compensation is payable by the State or
the Director to any person for any loss or
damage as a result of the enactment of this
Division.
(2) Without limiting the generality of sub-
20 section (1), no compensation is payable as a
result of--
(a) anything done by the Director under
this Division; or
(b) a licence ceasing to be in force by
25 operation of this Division; or
(c) the operation of section 26J.'.
10. Grounds for inquiry
In section 90(1) of the Principal Act, after
paragraph (f) insert--
30 "(fa) has failed to give notice to the Director as
required by section 26F or 26G; or".
11. New section 179A inserted
After section 179 of the Principal Act insert--
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"179A. Supreme Court--limitation of jurisdiction
It is the intention of section 26K to alter or
vary section 85 of the Constitution Act
1975.".
5 12. Transitional
In Schedule 3 to the Principal Act, after clause 18
insert--
"19. Transitional provisions--Liquor Control Reform
(Amendment) Act 2001
10 (1) Section 11(3)(aa), as inserted by section 5 of the
Liquor Control Reform (Amendment) Act 2001,
extends to packaged liquor licences in force at the
commencement of that section 5.
(2) Section 18A, as inserted by section 6 of the Liquor
15 Control Reform (Amendment) Act 2001, applies to
a general licence granted or transferred to a person on
an application made on or after 23 January 2001.
(3) Section 22(3), as inserted by section 7 of the Liquor
Control Reform (Amendment) Act 2001, applies to
20 the grant of a licence or BYO permit on or after the
commencement of that section 7 whether the
application for the grant was made before, on or after
that commencement.
(4) Section 23, as amended by section 8 of the Liquor
25 Control Reform (Amendment) Act 2001, applies to
the grant or transfer of a licence to a person on an
application made on or after 23 January 2001.
(5) However, section 23(3), as inserted by section 8(3) of
the Liquor Control Reform (Amendment) Act
30 2001, does not apply to a general licence that was in
force on 23 January 2001.
(6) If--
(a) an application was made on or after 23 January
2001 for the grant or transfer of a licence to a
35 person; and
(b) the licence was granted or transferred to the
person before the commencement of the
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Liquor Control Reform (Amendment) Act
2001; and
(c) the grant or transfer of the licence would have
been prohibited by section 23 had the
5 amendments to that section by section 8 of the
Liquor Control Reform (Amendment) Act
2001 been in operation at the time of the grant
or transfer--
the licence ceases to be in force, by virtue of this sub-
10 clause, on the commencement of that Act.".
13. Statute law revision
In the Principal Act, sections 181 and 183 and
Schedules 2 and 4 are repealed.
15
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Endnotes
Act No.
ENDNOTES
By Authority. Government Printer for the State of Victoria.
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