LIQUOR CONTROL ACT 1988 - SCHEDULE 1
LIQUOR CONTROL ACT 1988 - SCHEDULE 1
[s. 177]
[Heading amended: No. 19 of 2010 s. 4.]
(1) In this Schedule,
unless the context otherwise requires —
Act includes subsidiary legislation made under
that Act;
application includes notice of an application;
appointed day means the day on which the Liquor
Act 1970 1 is repealed by this Act;
licence includes a licence within the meaning of
the repealed Act;
licensed premises includes licensed premises
within the meaning of the repealed Act;
licensee includes a licensee within the meaning of
the repealed Act;
permit includes a permit granted under the
repealed Act;
repealed Act means the Liquor Act 1970 1 .
(2) The mention of
particular matters in this Schedule shall be without prejudice to the general
application otherwise of section 36 and section 37 of the
Interpretation Act 1984 (which relate to the effect of repeals).
(3) Any reference,
whether express or implied or having effect as such a reference, in any
written law or document to, or to any provision of, the repealed Act shall be
construed as a reference to this Act or, as the case may be, to the
corresponding provision of this Act.
(4) Any subsidiary
legislation (other than regulations) made, or notice given or thing done, or
having effect as being made, given or done, under a provision of the repealed
Act which corresponds to a provision of this Act shall have effect as if it
had been made, given or done under the corresponding provision of this Act.
(5) A licence under
the repealed Act corresponds to a particular class of licence under this Act
if the licence would, if in force immediately before the appointed day, have
been converted into a licence of that class by the operation of this Schedule.
(6) A permit under the
repealed Act corresponds to a particular class of licence under this Act or a
particular kind of permit under this Act, as the case may be, if the permit
would, if in force immediately before the appointed day, have been converted
into a licence of that class or a permit of that kind by the operation of this
Schedule.
(7) A reference in
this Schedule to the holder of a licence or permit under the repealed Act
shall be read as including a person who is the holder of that licence or
permit for the time being.
(8) Any question as to
whether —
(a) a
licence or permit under the repealed Act corresponds to a licence or permit
under this Act; or
(b) a
provision of the repealed Act corresponds to a provision of this Act,
may be determined by
the Director and that determination is not subject to review or appeal.
2 . Continuing effect of convictions, forfeitures
etc.
A conviction or
forfeiture imposed or seizure made under the repealed Act shall for the
purposes of this Act —
(a) be
treated as though it had been imposed, made or ordered under this Act, where a
provision of this Act corresponds with the provision of the repealed Act
concerned; and
(b) be
taken into account.
3 . Proceedings part heard, rules of court, and
appointments under repealed Act
(1) If, on the
appointed day, an application for a licence or a permit had been made under
the repealed Act but had not been determined and the decision had not been
reserved, the proceedings based on that application may be continued and
completed —
(a)
under this Act as if the application were an application for a licence of the
corresponding class or a permit of a corresponding kind under this Act; or
(b)
subject to any direction or requirement made by the Director, where no
corresponding provision appears in this Act as though for the purpose of
determining the application the repealed Act continued to have effect, but any
licence granted or permit issued shall be of a class or kind to which this Act
applies.
(2) If, on the
appointed day, an application (not being an application for a licence or
permit) had been made under a provision of the repealed Act but had not been
determined and the decision had not been reserved, the proceedings based on
the application may be continued and completed as if the application were an
application under this Act in so far as a corresponding provision is contained
in this Act.
(3) Where in relation
to any application made under the repealed Act for the renewal of a licence a
notice of objection was lodged and that application had not been determined by
the appointed day, the hearing of matters relating to that notice of objection
may be continued as if the repealed Act continued to have effect but, if the
Court determines that a ground of objection is established, effect may be
given to section 96 as though the matter had been the subject of proceedings
under section 95.
(4) If, on the
appointed day, an application under the repealed Act had been heard and the
decision was then reserved, the decision may be given effect to as if the
repealed Act continued to have effect but if a licence is granted pursuant to
those proceedings it shall have effect as though it had been a licence of the
kind granted in force immediately prior to the appointed day.
(5) The Rules made
under section 175 of the repealed Act shall continue to have effect as though
—
(a) made
under section 22; and
(b) a
reference to the repealed Act or a provision of the repealed Act were a
reference to this Act or a corresponding provision of this Act.
(6) On the appointed
day a person who, immediately before that day, held office —
(a) as
the judge under section 9 of the repealed Act, is deemed to have been
appointed as the Liquor Licensing Court judge; or
(b) as
an acting judge under section 11 of the repealed Act, is deemed to have been
appointed as an acting judge,
for the purposes of
this Act, and shall continue in office under this Act upon, subject to this
Act, the like conditions.
(7) On the appointed
day, the person who, immediately before that day, held office as Registrar of
the Liquor Licensing Court —
(a)
shall be deemed to have been so appointed under the repealed Act; and
(b) is
deemed to have been appointed under the Public Service Act 1978 2 as Registrar
for the purposes of this Act,
and subject to this
Act shall continue in office under this Act, all determinations, decisions and
actions taken prior to the appointed day by that person being deemed to have
been lawfully taken and executed in compliance with, and under the authority
of, the repealed Act.
(8) On the appointed
day, the person who, immediately before that day, held an appointment as
Director of Liquor Licensing under the repealed Act is deemed to have been
appointed under the Public Service Act 1978 2 as Director of Liquor Licensing
for the purposes of this Act.
(9) On the appointed
day, a person who, immediately before that day, held an appointment to an
office under section 15 of the repealed Act is deemed to have been appointed
under the Public Service Act 1978 2 to hold a like office for the time being
under section 14 for the purposes of this Act.
(1) The Governor may,
by regulation, make transitional provisions —
(a)
fixing, or providing for the assessment and reassessment of, licence fees in
respect of licences of any class that come into force by the operation of this
Schedule or are granted in accordance with this Schedule in respect of not
more than 2 licence years commencing after the appointed day; and
(b)
apportioning fees in respect of any licence or permit the period of which is
terminated or extended by the operation of this Act; and
(c)
providing for the payment or refund of those fees.
(2) Subject to
subclause (4), a regulation made under subclause (1) shall have effect
notwithstanding that it may be inconsistent with a provision of this Act.
(3) The provisions of
this Act and of the repealed Act, and in particular section 164B of that Act,
relevant to the reassessment of licence fees under that Act and the recovery
of fees in accordance with the reassessment shall have effect, notwithstanding
the repeal of that Act, in respect of licence fees under that Act.
(4) Where the Director
is satisfied that if a licence fee were fixed under regulations made for the
purposes of this clause a licensee would be in a less favourable position than
if the repealed Act had continued to have effect, the Director may fix a fee
at discretion so as to ensure that, so far as is practicable, the licensee is
not placed in that position.
(5) The delivery of
distilled spirits in bond, by the occupier of a vineyard to the occupier of
another vineyard, in respect of a sale effected prior to the appointed day is
authorised and shall be deemed to be exempted from this Act.
5 . Continuing effect of conditions, delineated or
designated areas, approvals etc.
(1) Subject to this
Schedule, terms or conditions —
(a)
which were fixed or imposed under the repealed Act, whether by that Act or by
the licensing authority, in relation to licences, certificates, permits or
other authorisations that are by the operation of this Schedule converted into
licences or permits under this Act or otherwise continued in force under this
Act; and
(b)
which are not inconsistent with this Act,
shall have effect as
though they had been fixed or imposed under this Act.
(2) A delineation or
definition of any premises made for the purposes of the repealed Act continues
in operation, subject to this Act, for the purpose of ascertaining the extent
of those premises.
(3) Where for the
purposes of the repealed Act any part of any premises was designated as an
area in which liquor was authorised to be sold, supplied or consumed ancillary
to a meal, notwithstanding that it would otherwise have been unlawful, that
part of those premises continues, for the purposes of this Schedule, to be
such an area.
(4) The Director may,
after giving the licensee a reasonable opportunity to make submissions or to
be heard, redefine any licensed premises, within 2 years of the appointed day,
in order to —
(a)
exclude areas not required to be licensed under this Act; or
(b)
bring any area into conformity with the requirements of this Act; or
(c) give
effect to this Schedule.
(5) Any approval or
authorisation granted under the repealed Act continues in force, subject to
this Act, for the purposes of this Act.
(6) Where under
section 118(1)(b) of the repealed Act a licensee was required to cause a
notice of the name of a nominee to be maintained, it shall be sufficient
compliance with section 115(4) during the period of 6 months after the
appointed day to maintain such a notice, if the person named in the notice is
the manager.
(7) Where a person was
immediately before the appointed day a person who was approved as the nominee
in relation to a licence under the repealed Act that person shall be deemed to
have been approved under this Act as the manager in respect of the premises to
which the licence under the repealed Act related.
6 . Conversion of licences generally
(1) On and after the
appointed day a person who immediately before that date held a licence or a
provisional certificate granted or permit issued and currently in force under
the repealed Act shall, subject to this Act, be deemed to be the holder of a
licence or permit in accordance with this Schedule, relating to the same
premises, until —
(a)
where a permit was issued for a specified period or would otherwise have
expired under the repealed Act, that permit expires; or
(b) a
licence is granted or a permit is issued to that person in accordance with
subclause (2) in respect to those premises; or
(c) it
is surrendered; or
(d) that
licence or permit is cancelled under this Act by reason of —
(i)
section 93; or
(ii)
a determination made under section 96.
(2) As soon as
practicable after the appointed day, the Director shall, without requiring any
application unless this Schedule otherwise provides, grant to a person to whom
subclause (1) applies a licence under this Act of a corresponding class, or
shall issue to him a permit of a corresponding kind, relating to the same
premises as were the subject of the former licence or permit under the
repealed Act.
(3) In determining the
terms and conditions of the licence or permit to be issued under subclause
(2), the Director shall have regard —
(a) to
the type of licence or permit held under the repealed Act; and
(b) to
any term or condition to which clause 5(1) applies and which relates or
formerly related to the premises,
and the determination
of the Director is not subject to review or appeal.
(4) Where a licence or
permit under the repealed Act is converted under this Schedule or a licence is
to be granted under this Schedule, no approval or consent that would otherwise
have been required in respect of a licence of that class under this Act is
required for the purposes of or in relation to that conversion or grant.
(5) Any conditions
that were under the repealed Act imposed in relation to a provisional
certificate for the grant or removal of a licence shall be deemed to have been
imposed in relation to a conditional grant made under section 62 in respect of
a licence of a corresponding class upon the same terms as were applicable to
the provisional certificate.
(6) Where, for any
reason, the operation of a licence or permit was suspended or a licence was
temporarily removed under the repealed Act, that licence or permit shall be
deemed to be a licence or permit the operation of which is in like manner
suspended or temporarily removed under this Act.
(7) A licence or
permit which comes into force or is issued under this Schedule —
(a) does
not have effect so as to prejudice any proceedings which may have been
instituted under the repealed Act in relation to the carrying on of a business
under that Act; and
(b) is
subject to proceedings under section 95 in respect of any matter of complaint
which arose prior to the coming into operation of that section and is not the
subject of proceedings under the repealed Act.
A hotel licence that
was in force under the repealed Act immediately before the appointed day
shall, on that day, become a hotel licence under this Act subject to the
condition referred to in section 41(4) but not subject to the requirements of
section 122(3) of the repealed Act.
A limited hotel
licence that was in force under the repealed Act immediately before the
appointed day shall, on that day, become a hotel restricted licence under this
Act subject to the condition referred to in section 41(4) but not subject to
the requirements of section 122(3) of the repealed Act.
A tavern licence that
was in force under the repealed Act immediately before the appointed day
shall, on that day, become a hotel licence under this Act, of the kind
referred to as a tavern licence but is not subject to the requirements of
section 26(2) of the repealed Act.
10 . Obligatory trading hours relating to hotel
licences
Where a licence under
the repealed Act becomes a hotel licence under clause 7, 8 or 9, on and from
the appointed day section 98 applies to the licensed premises, save that,
where notice of a period chosen by the licensee under section 24(2)(a) of the
repealed Act has been given by the licensee to the Director and the Director
has acknowledged the notice, effect shall be given to that notice in relation
to a hotel situated in the metropolitan area as though it had been a notice
given and acknowledged under section 98(2).
11 . Winehouse licences and Australian wine
licences
(1) A winehouse
licence, or an Australian wine licence, that was in force under the repealed
Act immediately before the appointed day shall, on that day, become a special
facility licence under this Act, subject to the like provisions as to the kind
of liquor that may be sold and the conditions under which it may be sold as
had effect in relation to that licence immediately before the appointed day,
authorising the sale of liquor on the days, within the hours, in so far as
they are not inconsistent with the permitted hours applicable to a hotel
licence, that were applicable immediately before the appointed day, but not
subject to the provisions of section 29(2) and section 39(4) of the repealed
Act.
(2) Notwithstanding
clause 6(2), the Director may, instead of granting to a person who immediately
before the appointed day held a licence under sections 29 or 39 of the
repealed Act in respect of the same premises a special facility licence of the
kind referred to in subclause (1), upon the lodging of a notice of application
grant to that person in respect of premises comprising the whole or a part of
the premises formerly licensed —
(a) a
special facility licence subject to a condition restricting the sale of liquor
to —
(i)
wine and brandy, for consumption on or off the premises;
and
(ii)
beer (not being beer sold on draught) and spirits (other
than brandy), for consumption on the licensed premises only;
or
(b) a
restaurant licence; or
(c) a
cabaret licence,
having regard to any
representations made to the Director by or on behalf of the licensee, to the
requirements of this Act in relation to the grant of licences of that class,
and to the premises and the services and facilities provided, or capable of
being provided, there and the determination made by the Director is not
subject to review or appeal.
A casino liquor
licence that was in force under the repealed Act immediately before the
appointed day shall, on that day, become a casino liquor licence under this
Act.
(1) A cabaret licence
that was in force under the repealed Act immediately before the appointed day
shall, on that day, become a cabaret licence under this Act.
(2) Notwithstanding
subsection (1), where the licensed premises to which the cabaret licence
relates were wholly or partly within licensed premises to which another
licence related, and the holders of the licences respectively applicable agree
or are the same person, the Director may, upon the lodging of a notice of
application and the surrender of the cabaret licence, issue in respect of the
premises to which the cabaret licence related an extended trading permit
relating to that other licence on terms and conditions not less favourable to
the licensee than those which applied in respect of the cabaret licence
immediately before the appointed day.
(1) A restaurant
licence that was in force under the repealed Act immediately before the
appointed day shall, on that day, become a restaurant licence under this Act.
(2) Where, immediately
before the appointed day, the holder of a restaurant licence held a
lodger’s permit under section 34 of the repealed Act, or a reception
area permit under section 40 of the repealed Act, in conjunction with the
restaurant licence that permit continues in force as though it were an
extended trading permit issued in relation to that licence.
15 . Restaurant facilities on premises formerly
licensed as a hotel, tavern, limited hotel, or winehouse
(1) Where, pursuant to
the repealed Act, the holder of a hotel licence, a tavern licence, a limited
hotel licence or a winehouse licence under the repealed Act had maintained on
the licensed premises a dining room in which liquor was sold ancillary to a
meal supplied by the licensee, the licensee is authorised, within the hours
and upon the same terms and conditions that were applicable immediately before
the appointed day, to continue to sell liquor for consumption in that dining
room, or in a reception area used in conjunction with that dining room and to
which a permit issued under section 40 of the repealed Act applied, ancillary
to a meal supplied by the licensee in that dining room, until —
(a)
where the dining room was in a winehouse, a restaurant licence is applied for
and granted; or
(b) an
extended trading permit is applied for and issued in respect of that dining
room; or
(c) a
period of 2 years has expired since the appointed day,
whichever first shall
happen.
(2) Where a person to
whom subclause (1) applies lodges a notice of application and satisfies the
Director that the dining room, and any reception area used in conjunction with
it, had immediately before the appointed day habitually been used for
consumption of liquor ancillary to a meal supplied by the licensee the
Director, as soon as practicable after the appointed day, shall —
(a)
where the dining room was in a winehouse, grant a restaurant licence; or
(b)
otherwise, issue an extended trading permit relating to the licence held by
the applicant under this Act,
to that person in
respect of the dining room and any related area or facilities habitually used,
or that may be required to be used, by persons dining there.
(1) A store licence
that was in force under the repealed Act immediately before the appointed day
shall, on that day, become a liquor store licence under this Act.
(2) Where, immediately
before the appointed day, the holder of a store licence held a late delivery
permit under section 36(3) of the repealed Act in conjunction with the store
licence that permit continues in force as though it were an extended trading
permit issued in relation to that licence.
(3) Where hours of
trading were chosen by the licensee under section 36(1a)(c) of the repealed
Act and notified to the Director, that notification shall be deemed to have
effect for the purposes of section 98(5).
17 . Vigneron’s licences and brewer’s
licences
(1) A vigneron’s
licence that was in force under the repealed Act immediately before the
appointed day shall, on that day, become a producer’s licence under this
Act.
(2) Subject to
subclause (4), a brewer’s licence that was in force under the repealed
Act immediately before the appointed day shall, on that day, become a
producer’s licence under this Act.
(3) A producer’s
licence to which this clause applies shall, until a period of 2 years has
expired since the appointed day, not be subject to the requirement that liquor
supplied by way of free sample is to be consumed only on a part of the
licensed premises approved for the purpose by the Director.
(4) The brewer’s
licence that was, immediately before the appointed day, held by Carlton and
United Breweries Limited in respect of premises at Lot 200 Fargo Way,
Welshpool, shall, on that day, become a wholesaler’s licence under this
Act.
(5) Where —
(a)
before the appointed day a person purchased, or assumed the conduct of, a
business conducted under a vigneron’s licence; and
(b) that
person holds a producer’s licence that is converted from a
vigneron’s licence under this clause,
that person may sell
liquor that was, at the time the person purchased or assumed the conduct of
the business, part of the trading stock of the business as if it had been
produced by that person.
(1) A wholesale
licence that was in force under the repealed Act immediately before the
appointed day shall, on that day, become a wholesaler’s licence under
this Act.
(2) A
wholesaler’s licence to which this clause applies shall, until 1 July
1990, be deemed not to be subject to the condition referred to in
section 58(3)(b).
(3) In the assessment
period commencing 1 July 1989 the holder of a wholesaler’s licence shall
not, sell to unlicensed persons a greater percentage of liquor than was sold
to unlicensed persons in the assessment period ending on 30 June 1989, that
percentage being determined by the Director, and notified to the licensee by
the Director in writing, and the determination of the Director not being
subject to review or appeal.
19 . Club licences and unlicensed club permits
(1) A club licence
that was in force under the repealed Act immediately before the appointed day
shall, on that day, become a club licence under this Act.
(2) An unlicensed club
permit that was in force under the repealed Act immediately before the
appointed day shall, on that day, become a club restricted licence under this
Act subject to conditions restricting the authorisation for the sale of liquor
—
(a) to
liquor purchased for the purpose by or on behalf of the club from one or more
of suppliers authorised under section 42(2) of the repealed Act; or
(b)
where a term of, or condition applicable to, the permit under the repealed Act
restricted the sale of liquor to liquor sold for consumption on the premises
or the club’s hours of trading, or otherwise limited its activities, to
liquor sold so as not to contravene that restriction or limitation; or
(c) in
such other manner as the Director may, by notice in writing varying the
authorisation conferred by the former permit in a manner not less favourable
to the licensee, direct,
and an unlicensed club
permit that was in force under the repealed Act immediately prior to 1 January
1989 shall, if the appointed day occurs on or after that date, be deemed to
have continued in force under the repealed Act until the appointed day, unless
sooner surrendered or cancelled (otherwise than by effluxion of time) under
the repealed Act.
(3) Where, immediately
before the appointed day, the holder of a club licence held a voluntary
associations permit under section 35 of the repealed Act in respect of the
club premises that permit continues in force as though it were an extended
trading permit issued in relation to that licence.
(4) Where, in relation
to a club licence held by a body of persons not incorporated, a person was
nominated under section 42(4) of the repealed Act to be responsible as permit
holder on behalf of the club and was a person approved under the repealed Act,
that person shall continue to be the person responsible accordingly in respect
of the licence, until such time as some other person is nominated by the club
and approved by the Director under this Act to hold the licence as trustee on
behalf of the club.
(5) Where a club
comprises a body of persons not incorporated or deemed to be incorporated
under the Associations Incorporation Act 1987 or any other written law and the
Director is of the opinion that it is a body which is inappropriate to
continue to be licensed by reason of it being unincorporated then —
(a) if
the Director so requires, the club shall seek to become an incorporated body;
and
(b) on
lodgement of a copy of the certificate of incorporation, the Secretary of the
club with the consent of the trustee may apply for the licence to be vested in
that body and the licence shall be varied accordingly,
but, if the licence is
not so vested before a period of 2 years has expired since the date on which
the requirement was made known by the Director, the Director may cancel the
licence.
(6) Where the
constitution or any rules of a club which held a licence or permit under the
repealed Act have not been approved by the Director under that Act, they shall
for the purposes of this Act be deemed to have been provisionally approved as
at the appointed day subject to any subsequent direction given by the
Director.
20 . Certain licences to become special facility
licences
(1) A canteen licence
that was in force under the repealed Act immediately before the appointed day
shall, on that day, become a special facility licence under this Act, but for
the purposes of the continuance in force of the term imposed by section 66(2)
of the repealed Act —
(a) the
reference to “will not be renewed after” shall be construed as
“, on application to the Court by the Director, may be cancelled
on”; and
(b) the
reference to “an hotel or tavern licence” shall be construed as
though it were a reference to a hotel licence, other than a hotel restricted
licence, under this Act;
(2) A theatre licence
that was in force under the repealed Act immediately before the appointed day
shall, on that day, become a special facility licence under this Act.
(3) A ballroom licence
that was in force under the repealed Act immediately before the appointed day
shall, on that day, become a special facility licence under this Act.
(4) A reception lodge
licence that was in force under the repealed Act immediately before the
appointed day shall, on that day, become a special facility licence under this
Act.
(5) A packet licence,
and where the Director so requires all the packet licences held by the same
licensee, in force under the repealed Act immediately before the appointed day
shall, on that day, become a special facility licence under this Act, and
where a permit was issued under section 33(4) of the repealed Act in relation
to a day subsequent to the appointed day the terms and conditions of that
permit shall have effect as though they were terms and conditions of an
extended trading permit relating to the licence.
(6) A railway
refreshment room licence that was in force under the repealed Act immediately
before the appointed day shall, on that day, become a special facility licence
under this Act.
(7) Where an Order was
made under section 176 of the repealed Act relating to an historic inn, any
licence or exemption granted pursuant to the Order that was in force under the
repealed Act immediately before the appointed day shall, on that day, become a
special facility licence under this Act authorising the sale of liquor on the
days and within the hours applicable to a hotel licence under section 97.
(8) Subject to
subclause (7), for so long as a special facility licence remains in force by
the operation of this clause in relation to any licence formerly held under
the repealed Act it authorises the sale of liquor on the premises to which it
relates on the days and within the hours that were authorised in relation to
those premises by the repealed Act.
A caterer’s
permit that was in force under the repealed Act immediately before the
appointed day shall, on that day, become an extended trading permit under this
Act in relation to the licence in respect of which it was obtained, subject to
clause 6(1)(a).
A person who was
immediately before the appointed day the occupier of a vineyard or orchard and
regularly conducted there sales to which the exemption conferred by
section 6(1)(h) of the repealed Act referred is authorised, subject to the
same conditions as related to that exemption, to continue to conduct sales of
that kind until —
(a) a
certificate of exemption takes effect under section 54; or
(b) a
period of 2 years has expired since the appointed day,
whichever first shall
happen.
23 . Certain licences may become special facility
licences
Where the holder of a
hotel licence, a tavern or a limited hotel licence that was in force under the
repealed Act immediately before the appointed day lodges a notice of
application before the expiry of a period of 6 months since the appointed day
and satisfies the Director —
(a) that
the licensed premises are, and throughout the occupancy of the licensee have
consistently been, of an exceptionally high standard; and
(b) that
the requirements of section 46 are met,
the Director may grant
a special facility licence on terms and conditions which the licensee, after
consultation with the Director, agrees.
24 . References in other written laws
(1) References in a
written law other than the repealed Act to the principal clerk or any other
clerk of the Licensing Court of Western Australia, or to the Principal
Receiver of Revenue, shall, if and to the extent that it is appropriate in the
context so to do, be read and construed as references to the Director.
(2) References in
Order 64 of the Rules of the Supreme Court 1971 3 to the Licensing Court of
Western Australia shall be read and construed as references to the Liquor
Licensing Court.
(3) References in the
Liquor Licensing (Moratorium) Act 1983 4 or in an order made under section
5(1) of that Act to the Licensing Court of Western Australia shall, to the
extent that it is appropriate in the context so to do, be read and construed
as references to the licensing authority.