New laws for same day alcohol delivery providers take effect from 1 July. The laws apply to licensed businesses that supply alcohol for same day delivery in New South Wales or businesses that outsource delivery to an employee or agent for the supply of alcohol on the same day it is purchased. From 1 July, same day delivery providers must: Ensure the delivery person is provided with written instructions from the licensee detailing the adult specified to receive the delivery. Employees and delivery agents must not be financially penalised for not completing a delivery no matter whether it is because they think the recipient is under-18, intoxicated or if delivery is refused because the recipient’s details don’t match the written delivery instructions. Same day delivery providers must:
Providers must ensure that systems are in place for those making deliveries to be able to check the identity and age of the recipient when they make the delivery. Providers must also collect sales and delivery data to report to Liquor & Gaming NSW. From Wednesday, providers, employees and agents making the deliveries must:
New South Wales’ laws are intended to help the online sale of alcohol remain safe, responsible and lawful. Training material will be available from Thursday on the Liquor & Gaming NSW website. By 1 December 2021, all same day alcohol delivery people must have completed the approved Responsible Supply of Alcohol Training (RSAT) and knowledge assessment and by 21 January 2022, delivery providers must start reporting data on same day deliveries to Liquor & Gaming NSW, with the initial report to cover the 1 July to 31 December period.
New South Wales has tightened regulation around same day alcohol deliveries, with legislation reforms coming into effect as of yesterday. A range of new laws are now being phased in to help prevent harm related to the online sale and delivery of alcohol to minors and people who are intoxicated. As of July 1, a range of new offences have been introduced, including:
Minister for Digital and Minister for Customer Service, Victor Dominello, said: “Demand for online alcohol sales has grown in recent years, including during the pandemic, and we need to ensure our laws reflect this changing landscape and prioritise safety. “These changes are an Australian first and ensure there are fit-for-purpose laws for the range of alcohol delivery business models that have emerged – particularly same day deliveries. They follow consultation with industry stakeholders. “The new laws raise the standards for providers and delivery people, making them more like those that apply at physical bottle shop businesses. Gone are the days of a minor trying to use a credit card online to purchase alcohol illegally. Those offering alcohol for same day delivery will have an explicit obligation to verify that the person placing the order is 18 years or older.” The reforms include a range of requirements for both licensees (and other providers), as well as delivery staff. Retail Drinks Australia has welcomed such reforms, many of which are modelled on the Retail Drinks Online Alcohol Sale & Delivery Code of Conduct, which has been in place for two years now. CEO Michael Waters said that by proactively becoming signatories to the code, members operating in this space had already demonstrated their commitment to the responsible retailing actions that are now legislated. “With many of the NSW Government’s same-day delivery laws formally in place, the regulatory environment now closely mirrors the framework created by our Code which has recently been recognised by the International Alliance for Responsible Drinking (IARD) as best-practice. Many of the practices adopted by Retail Drinks’ members who operate in accordance with the Code in fact go above and beyond the NSW Government’s new laws,” Waters said. “We have appreciated the collaboration with NSW Government over the past several years in designing a robust legislative framework for same day alcohol deliveries. “Retail Drinks helped coordinate an industry working group to co-design the new Responsible Supply of Alcohol online training course, designed to ensure that all same day delivery drivers are not only aware of their responsibilities, but to help reduce the risk of intoxicated and underage service.” The reforms also note a range of other requirements that will take effect later this year and next year. For example, from 1 December 2021, all delivery persons, licensees and other providers must successfully undertake approved responsible supply training and knowledge tests. Then, from 1 June 2022, a customer’s age will need to be verified when an online order is made, and systems need to be in place to authenticate the identity of regular customers. This is something which the industry is already working towards with technology providers. Waters said: “To help inform, educate and assist both industry and government with the new online age verification requirements coming into effect from June 2022, Retail Drinks also recently coordinated a successful ‘industry-first’ Age Verification Pilot with key stakeholders, and plans for an expanded phase 2 of the Pilot are underway. “Retail Drinks will continue to work closely with each of our members, the broader retail liquor industry and the NSW Government prior to the remainder of these changes coming into effect.” For more information about the reforms, head to the Liquor & Gaming website or check the same day delivery fact sheet. Part 4 Licensing procedures and related matters Division 1 Licence applications and granting of licences 40 Licence applications (1) Licence applications are to be made to the Authority.(2) An application for a licence may be made by—(c) in the case of a club licence—a club (or a person on behalf of a club) that meets the requirements specified in section 10(1) of the Registered Clubs Act 1976.(3) An application for a licence may not be made by—(a) an individual who is under the age of 18 years, or(b) a person who is disqualified from holding a licence or who holds a suspended licence, or(4) An application for a licence must—(a) be in the form and manner approved by the Authority, and(b) be accompanied by the fee prescribed by the regulations and such information and particulars as may be prescribed by the regulations, and(c) be advertised in accordance with the regulations, and(d) comply with such other requirements as may be approved by the Authority or prescribed by the regulations. 41 Statement as to interested parties (1) An application for a licence must be accompanied by a written statement, made by a person having knowledge of the facts, specifying—(a) that the person has made all reasonable inquiries to ascertain the information required to complete the statement, and(b) whether there are any persons (other than financial institutions) who will be interested in the business, or the profits of the business, carried on under the licence, and(c) if there are any such persons, their names and dates of birth and, in the case of a proprietary company, the names of the directors and shareholders.(2) For the purposes of subsection (1), a person is interested in the business, or the profits of the business, carried on under the licence if the person is entitled to receive—(a) any income derived from the business, or any other financial benefit or financial advantage from the carrying on of the business (whether the entitlement arises at law or in equity or otherwise), or(b) any rent, profit or other income in connection with the use or occupation of premises on which the business is to be carried on.(3) The regulations may provide exceptions to this section. 42 Investigations, inquiries and referrals in relation to licence applications (1) If the Authority receives an application for a licence, the Authority—(a) may carry out such investigations and inquiries in relation to the application as the Authority considers necessary for a proper consideration of the application, and(b) is to refer the application to the Secretary (unless the regulations otherwise provide).(2) The Secretary is to inquire into, and to report to the Authority on, such matters in relation to the application as the Authority may request.(3) For the purposes of subsection (2), the Secretary may carry out such investigations and inquiries in relation to the application as the Secretary considers necessary.(4) In particular, the Secretary may refer to the Commissioner of Police details of the application together with any supporting information in relation to the application that the Secretary considers to be appropriate for referral to the Commissioner.(5) The Commissioner of Police may inquire into, and report to the Secretary on, such matters concerning the application as the Secretary may request. 43 Authority or Secretary may require further information (1) The Authority or the Secretary may, by notice in writing, require a person who has applied to the Authority for a licence, or a close associate of any such person, to do one or more of the following things—(a) provide, in accordance with directions in the notice, such information as, in the opinion of the Authority or the Secretary, is relevant to the investigation of the application and is specified in the notice,(b) produce, in accordance with directions in the notice, such records as, in the opinion of the Authority or the Secretary, are relevant to the investigation of the application and permit examination of the records, the taking of extracts from them and the making of copies of them,(c) authorise a person described in the notice to comply with a requirement of the kind referred to in paragraph (a) or (b),(d) furnish to the Authority or the Secretary such authorisations and consents as the Authority or the Secretary requires for the purpose of enabling the Authority or the Secretary to obtain information (including financial and other confidential information) from other persons concerning the person and the person’s associates.(2) A person who complies with a requirement of a notice under this section does not on that account incur a liability to another person.(3) The Authority may refuse to determine an application if a requirement made under this section in relation to the application is not complied with. 44 Submissions to Authority in relation to licence applications (1) Any person may, subject to and in accordance with the regulations, make a submission to the Authority in relation to an application for a licence.(2) If any such submission is made to the Authority, the Authority is to take the submission into consideration before deciding whether or not to grant the licence. 45 Decision of Authority in relation to licence applications (1) The Authority may, after considering an application for a licence and any submissions received by the Authority in relation to the application, grant the licence or refuse to grant the licence. The Authority may determine the application whether or not the Secretary has provided a report in relation to the application.(2) The Authority may, in such circumstances as the Authority considers appropriate, treat an application for a licence as having been withdrawn.(3) The Authority must not grant a licence unless the Authority is satisfied that—(a) the applicant is a fit and proper person to carry on the business or activity to which the proposed licence relates, and(b) practices will be in place at the licensed premises as soon as the licence is granted that ensure, as far as reasonably practicable, that liquor is sold, supplied or served responsibly on the premises and that all reasonable steps are taken to prevent intoxication on the premises, and that those practices will remain in place, and(c) if development consent is required under the Environmental Planning and Assessment Act 1979 (or approval under Part 3A or Part 5.1 of that Act is required) to use the premises for the purposes of the business or activity to which the proposed licence relates—that development consent or approval is in force. 46 Duration of licences (1) Except during any period of suspension, a licence continues to be in force until such time as it is surrendered to the Authority, cancelled or otherwise ceases to be in force or, in the case of a licence that is granted for a specified term, when that term expires.(2) A licence may be surrendered only in accordance with such arrangements as may be approved by the Authority. 46A Voluntary suspension of licence (1) A licensee may apply to the Authority to have the licence suspended by the Authority for a specified period.(2) An application for the suspension of a licence must—(a) be in the form and manner approved by the Authority, and(b) specify the period that the licensee is seeking to have the licence suspended, and(c) specify the reasons for the proposed suspension, and(d) be accompanied by such fee as may be prescribed by the regulations.(3) The Authority may, if the Authority is satisfied that the suspension of the licence is reasonable in the circumstances, suspend the licence, by notice in writing to the licensee, for the period specified in the notice. Division 1A 47A–47J (Repealed) pt 4, div 1A, hdg: Ins 2009 No 66, Sch 1 [1]. Am 2017 No 20, Sch 1 [6]. Rep 2020 No 40, Sch 2.1[2]. pt 4, div 1A: Ins 2009 No 66, Sch 1 [1]. Rep 2020 No 40, Sch 2.1[2]. s 47A: Ins 2009 No 66, Sch 1 [1]. Am 2010 No 36, Sch 1 [3]; 2012 No 91, Sch 1 [3]–[5]; 2014 No 3, Sch 1 [10] [11]; 2014 No 76, Sch 1 [12]; 2017 No 20, Sch 1 [7]. Rep 2020 No 40, Sch 2.1[2]. s 47AA: Ins 2012 No 91, Sch 1 [6]. Subst 2013 No 5, Sch 1 [7]. Rep 2020 No 40, Sch 2.1[2]. s 47AB: Ins 2014 No 3, Sch 1 [12]. Am 2017 No 20, Sch 1 [8]. Rep 2020 No 40, Sch 2.1[2]. s 47B: Ins 2009 No 66, Sch 1 [1]. Am 2017 No 20, Sch 1 [9]. Rep 2020 No 40, Sch 2.1[2]. s 47C: Ins 2009 No 66, Sch 1 [1]. Subst 2017 No 20, Sch 1 [10]. Rep 2020 No 40, Sch 2.1[2]. s 47D: Ins 2009 No 66, Sch 1 [1]. Am 2017 No 20, Sch 1 [11] [12]. Rep 2020 No 40, Sch 2.1[2]. s 47E: Ins 2009 No 66, Sch 1 [1]. Am 2017 No 20, Sch 1 [13]. Rep 2020 No 40, Sch 2.1[2]. s 47F: Ins 2009 No 66, Sch 1 [1]. Am 2017 No 20, Sch 1 [14]–[16]. Rep 2020 No 40, Sch 2.1[2]. s 47G: Ins 2009 No 66, Sch 1 [1]. Am 2017 No 20, Sch 1 [14] [17]. Rep 2020 No 40, Sch 2.1[2]. s 47H: Ins 2009 No 66, Sch 1 [1]. Am 2011 No 72, Sch 2 [8]; 2017 No 20, Sch 1 [18]. Rep 2020 No 40, Sch 2.1[2]. s 47I: Ins 2009 No 66, Sch 1 [1]. Am 2014 No 3, Sch 1 [13]; 2017 No 20, Sch 1 [19] [20]. Rep 2020 No 40, Sch 2.1[2]. s 47J: Ins 2009 No 66, Sch 1 [1]. Am 2017 No 20, Sch 1 [21]; 2018 No 25, Sch 5.24 [1]. Rep 2020 No 40, Sch 2.1[2]. Division 2 Miscellaneous provisions relating to licences and licence-related authorisations 49 Extended trading authorisation—general provisions (1) Application of section This section applies in relation to the following types of licences (referred to in this section as a relevant licence)—(c) an on-premises licence (other than an on-premises licence that relates to a vessel),(d) a packaged liquor licence,(e) a producer/wholesaler licence.(2) Extended trading authorisation for consumption on premises In the case of a relevant licence (other than a packaged liquor licence) that authorises the sale or supply of liquor for consumption on the licensed premises, the Authority may, on application by the licensee, authorise the licensee to sell or supply liquor, for consumption on the licensed premises only, during any of the following periods—(a) in the case of a hotel licence—a specified period between midnight (other than midnight on a Sunday) and 5 am on any day of the week (other than a Monday),(b) in the case of a relevant licence other than a hotel licence—a specified period between midnight and 5 am on any day of the week,(c) in any case—a specified period between 5 am and 10 am on a Sunday,(d) in any case—a specified period between 10 pm and midnight on a Sunday.(2A) Without limiting subsection (2), the Authority may, in the case of an on-premises licence, authorise the licensee, on application by the licensee, to sell or supply liquor for consumption on the licensed premises during any of the following periods—(a) a specified period between 5 am and noon on a restricted trading day,(b) a specified period between 10 pm and midnight on a restricted trading day. 49A Extended trading authorisation—small bars (1) The Authority may, on application by the holder of a small bar licence, authorise the licensee to sell or supply liquor, for consumption on the licensed premises only, during a specified period outside of the standard trading period for small bars. 49B Special provisions relating to multi-occasion ETAs (1) This section applies to an extended trading authorisation of the kind referred to in section 49(5)(c) or 49A(3)(c) (a ).(2) A multi-occasion extended trading authorisation cannot be granted in respect of licensed premises situated in such part of the State (if any) as may be prescribed by the regulations.(3) Despite any other provision of this Act, a multi-occasion extended trading authorisation cannot be granted to authorise the sale or supply of liquor on licensed premises after 3 am.(4) A multi-occasion extended trading authorisation is subject to the condition that, at least 6 weeks before liquor is sold or supplied on each occasion authorised by the extended trading authorisation, the following persons or bodies are to be notified by the licensee in the form and manner approved by the Secretary—(b) the local consent authority, 50 Drink on-premises authorisation (1) The Authority may, on application by the holder of a producer/wholesaler licence, endorse the licence with an authorisation (referred to as a ) relating to the sale, supply and consumption of liquor on the licensed premises.(2) A drink on-premises authorisation authorises the licensee to sell liquor by retail on the licensed premises, for consumption on the licensed premises only—(a) on any day of the week (except a restricted trading day)—during the standard trading period for that day or during such other period as may be authorised by an extended trading authorisation, and(b) on 31 December in any year—from the start of the standard trading period for that day until 2 am on the next succeeding day, and(c) on a restricted trading day—from noon to 10 pm. 51 General provisions relating to licence-related authorisations (1) This section applies to the following authorisations granted by the Authority under this Act—(a) an extended trading authorisation,(b) a drink on-premises authorisation,(c) any other authorisation that may be granted by the Authority under Part 3 (other than a licence),(d) a minors area authorisation,(e) a minors functions authorisation,(f) a minors authorisation.(2) An application for an authorisation to which this section applies must—(a) be in the form and manner approved by the Authority (or, in the case of an application for an extended trading authorisation for a small bar, by the Secretary), and(b) be accompanied by the fee prescribed by the regulations and such information and particulars as may be prescribed by the regulations, and(c) if required by the regulations to be advertised—be advertised in accordance with the regulations, and(d) comply with such other requirements as may be approved by the Authority (or, in the case of an application for an extended trading authorisation for a small bar, by the Secretary) or prescribed by the regulations.(3) In determining an application for an authorisation, the Authority has the same powers in relation to the application as the Authority has in relation to an application for a licence. The Authority may determine the application whether or not the Secretary has provided a report in relation to the application.(4) If, before an application for an authorisation is determined by the Authority, a change occurs in the information provided in, or in connection with, the application (including information provided under this subsection), the applicant must immediately notify the Authority of the particulars of the change.(5) Any person may, subject to and in accordance with the regulations, make a submission to the Authority in relation to an application for an authorisation.(6) If any such submission is made to the Authority, the Authority is to take the submission into consideration before deciding whether or not to grant the authorisation.(7) The regulations may prescribe, or provide for the determination of, a fee in respect of the granting of an authorisation. If any such fee is prescribed or determined, the authorisation does not take effect unless the fee has been paid.(8) The Authority may, in granting an authorisation, specify requirements that are to be complied with before the authorisation takes effect. The authorisation does not take effect until such time as any such requirements have been complied with.(9) An authorisation—(a) is subject to such conditions—(i) as are imposed by the Authority (whether at the time the authorisation is granted or at a later time), or(ii) as are imposed by or under this Act or as are prescribed by the regulations, and(b) may be varied or revoked by the Authority on the Authority’s own initiative or on application by the licensee, the Secretary or the Commissioner of Police.(10) Any such application by a licensee to vary or revoke an authorisation (including any conditions to which the authorisation is subject that have been imposed by the Authority) must be accompanied by the fee prescribed by the regulations.(11) For the purposes of this Act, any condition to which an authorisation is subject is taken to be a condition of the licence to which the authorisation relates.(12) An authorisation has effect only while all the conditions to which it is subject are being complied with.(13) The Authority must not impose a condition on an authorisation, or revoke or vary an authorisation, other than a variation made on application by a licensee, unless the Authority has—(a) given the licensee to whom the authorisation relates a reasonable opportunity to make submissions in relation to the proposed decision, and(b) taken any such submissions into consideration before making the decision.(14) This section does not authorise the revocation or variation of a condition to which an authorisation is subject if the condition is imposed by this Act or is prescribed by the regulations. 52 Authority may impose special licence conditions (1) Conditions relating to harm minimisation The Authority may impose conditions on a licence prohibiting or restricting activities (such as promotions or discounting) that could encourage misuse or abuse of liquor (such as binge drinking or excessive consumption).(2) Conditions relating to serving of liquor The Authority may impose conditions on a licence requiring a licensee, in specified circumstances—(a) to cease to serve liquor on the licensed premises, or(b) to restrict access to the licensed premises in a manner and to the extent provided by the conditions,or both, from a time of day that is earlier than the time at which, as otherwise required by the licence, trading must cease.(3) Conditions relating to local liquor accords The Authority may impose conditions on a licence requiring the licensee to participate in, and to comply with, a local liquor accord. 53 Authority may impose, vary or revoke licence conditions (1) Without limiting any other provision of this Act, the Authority may at any time—(a) on application by the Secretary or the Commissioner of Police, or(b) on the Authority’s own initiative,impose conditions on a licence.(1A) The conditions that may be imposed by the Authority on a licence under this section include, but are not limited to, conditions—(a) prohibiting the sale or supply of liquor on the licensed premises before 10 am or after 11 pm (or both), and(b) restricting the trading hours of, and public access to, the licensed premises. 54 Secretary may impose, vary or revoke licence conditions (1) Without limiting the power of the Secretary to impose conditions on a licence under any other provision of this Act, the Secretary may impose conditions on a licence for such reasons, or in such circumstances, as the Secretary considers necessary or appropriate.(1AA) The Secretary may, on application by the licensee, impose conditions of the kind imposed on a licence under section 116I in respect of a licence relating to premises in a prescribed precinct. Subsection (3) does not apply to such an application.(1A) The conditions that may be imposed by the Secretary on a licence include, but are not limited to, conditions—(a) prohibiting the sale or supply of liquor on the licensed premises before 10 am or after 11 pm (or both), and(b) restricting the trading hours of, and public access to, the licensed premises.(2) The Secretary may, on application by the licensee or the Commissioner of Police or on the Secretary’s own initiative—(a) vary or revoke a licence condition that has been imposed by the Secretary under this section or any other provision of this Act, or(b) vary or revoke a licence condition—(i) relating to the trading hours of any licensed premises, or(ii) relating to licensed premises situated wholly or partly in the precinct to which a precinct liquor accord applies or in an area to which a community event liquor accord applies, or(iii) relating to licensed premises situated wholly or partly in a prescribed precinct,that has been imposed (or taken to have been imposed) by the Authority.(2A) An application by a licensee under subsection (1AA) or (2) must—(a) be made in the form and manner approved by the Secretary, and(b) be accompanied by the fee prescribed by the regulations, and(c) be accompanied by such information and particulars as may be prescribed by the regulations, and(d) if required by the regulations to be advertised—be advertised in accordance with the regulations, and(e) comply with such other requirements as may be imposed by the Secretary or prescribed by the regulations.(2B) The regulations may provide for the waiver, remittance or postponed payment of the whole or any part of a fee payable under subsection (2A)(b).(3) The Secretary must not impose a condition on a licence under this section, or vary or revoke a condition otherwise than on the application of the licensee, unless the Secretary has—(a) given the licensee a reasonable opportunity to make submissions in relation to the proposed decision, and(b) taken any such submissions into consideration before making the decision.(4) The power of the Secretary to impose conditions on a licence under this section, or to vary or revoke a condition, may also be exercised in relation to any authorisation to which section 51 applies that is held in relation to the licence concerned.(5) Except in the case of a condition imposed under subsection (1A) or in the case of the variation or revocation of a condition referred to in subsection (2)(b), this section does not authorise the Secretary—(a) to impose a condition that is inconsistent with a condition that has been imposed by the Authority or is imposed by this Act or the regulations, or(b) to vary or revoke a condition of a licence that has been imposed by the Authority or is imposed by this Act or the regulations. 54A Directions relating to “sale on other premises” authorisations (1) The Secretary may give a licensee who is the holder of an authorisation under section 25(6), or any employee or agent of such a licensee, a written direction that relates to the operation of the authorisation.(2) Without limitation, any such direction may prohibit or restrict the sale of liquor under the authorisation during such times, or on such premises, as may be specified in the direction.(3) A direction under this section—(a) takes effect when it is given to the licensee or person concerned or on a later date specified in the direction, and(b) may be varied or revoked by the Secretary, and(c) has effect despite the authority conferred by the authorisation concerned.(4) A licensee or person who fails to comply with a direction under this section is guilty of an offence. 55 Requirement to provide information in relation to persons interested in licensee’s business (1) If a person (other than the licensee or a financial institution) becomes interested in the business, or the conduct of the business, carried out on licensed premises, it is a condition of the licence that the Authority is provided with the following information within 28 days after the other person becomes so interested—(a) the name and date of birth of the person so interested and, in the case of a proprietary company, the names of the directors and shareholders,(b) a statement, signed by the licensee, that the licensee has made all reasonable inquiries to ascertain the information referred to in paragraph (a).(2) For the purposes of subsection (1), a person is interested in the business, or the conduct of the business, carried out on licensed premises if the person is entitled to receive—(a) any income derived from the business, or any other financial benefit or financial advantage from the carrying on of the business (whether the entitlement arises at law or in equity or otherwise), or(b) any rent, profit or other income in connection with the use or occupation of the premises on which the business is to be carried on.(3) The information required to be provided to the Authority under this section may be provided by the interested person.(4) This section does not apply in relation to limited licences.(5) The regulations may create exceptions to this section. 57 Authority may establish administrative policies and procedures in relation to licensing matters (1) The Authority may approve policies and procedures for administering the licensing scheme under this Act.(2) Any such policies and procedures may be applied by the Authority—(a) in dealing with applications for licences, authorisations or other matters that may be granted by the Authority under this Act, and(b) in determining those applications. 58 Courses of training and instruction for applicants and licensees (1) The Authority may require an applicant or class of applicants for such kinds of licences as the Authority determines to attend a course of training or instruction approved by the Secretary.(2) If an applicant is required to attend any such course of training, the Authority—(a) may refuse to grant the licence until such time as the applicant has completed the course to the standard required by the Authority, or(b) may grant the licence subject to the condition that the licensee completes the course to the standard required by the Authority within such time as the Authority determines.(3) The regulations may require a licensee, or any employee or agent of a licensee, to undertake and satisfactorily complete such further courses of training or instruction as may be approved by the Secretary. Division 2A Periodic licence fees pt 4, div 2A: Ins 2014 No 3, Sch 1 [18]. 58A Periodic licence fee (1) A periodic licence fee is payable to the Secretary for a licence while the licence is in force or under suspension and is so payable on each due date prescribed by the regulations for the purposes of this section.(2) Regulations may be made prescribing the periodic licence fees payable under this section and for and with respect to—(a) times for payment of the fees (including payment of different elements of the fees at different times), and(b) penalties for late payment of the fees, and(c) the circumstances in which the fee, or a proportion of such a fee, may be re-assessed, waived or refunded, and(d) information to be provided to the Secretary for the purpose of calculating the fee.(3) The regulations may provide that a periodic licence fee (or an element of a periodic licence fee) is to be determined by reference to matters including, but not limited to the following—(a) the location of the relevant licensed premises,(b) the trading hours of the licensed premises,(c) the patron capacity of the licensed premises,(d) offences committed at or in relation to the licensed premises,(e) compliance by the licensee with the requirements of this or any other Act with respect to the licensed premises,(f) the number of packaged liquor licences held by the same person, or in which the same person (other than a financial institution) is interested in the business, or profits of the business, carried on under the licences, or both.(4) For the purposes of subsection (3), a person is interested in the business, or the profits of the business, carried on under the licence if the person is entitled to receive—(a) any income derived from the business, or any other financial benefit or financial advantage from the carrying on of the business (whether the entitlement arises at law or in equity or otherwise), or(b) any rent, profit or other income in connection with the use or occupation of premises on which the business is to be carried on. 58B Suspension and cancellation for late payment of periodic licence fee (1) If the periodic licence fee payable for a licence has not been paid before the expiration of 28 days after the due date for payment as provided by the regulations, the licence is suspended.(2) The suspension is lifted if—(a) the periodic licence fee, and(b) the late payment fee prescribed by the regulations,are paid within 28 days of the suspension.(3) However, if the periodic licence fee payable for a licence and any such late payment fee are not paid before the expiration of the 28 day period after the licence is suspended, the licence is cancelled on the expiration of the period. 58C Application for reinstatement of cancelled licence (1) The following persons may apply to the Secretary for the reinstatement of a licence cancelled by the operation of section 58B—(a) the former holder of the licence,(b) any other person (other than a financial institution) who is interested in the business, or the profits of the business, carried on under the licence.(2) Such an application may only be made within 56 days after the cancellation of the licence.(3) An application under this section must—(a) be made in the form and manner approved by the Secretary, and(b) be accompanied by—(i) the unpaid periodic licence fee concerned, and(ii) the late payment fee prescribed by the regulations, and(iii) the application fee prescribed by the regulations (if any), and(c) be accompanied by such information and particulars as may be prescribed by the regulations, and(d) comply with such other requirements as may be imposed by the Secretary or prescribed by the regulations.(4) The Secretary may reinstate the licence if the Secretary is satisfied that there is a reasonable explanation for the failure to pay the periodic licence fee.(5) A cancelled licence that is reinstated under this section is to take effect and continue in force as if the licence had been suspended during the period of cancellation.(6) Regulations may be made for and with respect to the circumstances in which a fee that accompanies an application under this section, or a proportion of such a fee, may be waived or refunded.(7) For the purposes of subsection (1), a person is interested in the business, or the profits of the business, carried on under a licence if the person is entitled to receive—(a) any income derived from the business, or any other financial benefit or financial advantage from the carrying on of the business (whether the entitlement arises at law or in equity or otherwise), or(b) any rent, profit or other income in connection with the use or occupation of premises on which the business is carried on.(8) Sections 23(2) and 28(2) of the Gaming Machines Act 2001 do not apply in relation to a licence that has been cancelled by the operation of section 58B and reinstated under this section. Division 3 Licence removals and transfers 59 Removal of licence to other premises (1) A licensee may apply to the Authority for approval to remove the licence to premises other than those specified in the licence.(2) An application for approval to remove a licence to other premises must—(a) be in the form and manner approved by the Authority, and 60A Alternative process for transfer of licence (1) A licence may not be transferred under this section if the transfer involves a change in the ownership of the business carried on under the licence.(2) A licence may be transferred under this section to another person (the transferee) but only if—(a) the transferee is the holder of a licence of the same type as the transferred licence or was, at any time during the period of 3 years immediately before the transfer, the holder of a licence of the same type as the transferred licence, and(b) the transferee has not committed a demerit offence during that 3-year period, and(c) the licence has not been suspended (otherwise than under section 46A) or cancelled, or the licensee has not been disqualified from holding a licence, during that 3-year period.(3) The transfer of a licence under this section does not have effect until—(a) the transferee has given the Authority notice in writing of the transfer, and(b) the Authority, on payment of such fee as may be prescribed by the regulations, endorses the licence to the effect that the licence is held by the transferee.(4) The Authority may refuse to endorse the licence to that effect if the Authority is of the opinion that the requirements under subsection (2) are not satisfied in relation to the transfer of the licence.(5) A notice under this section must—(a) be in the form approved by the Authority, and(b) be accompanied by the written consent of the owner of the business carried on under the licence to the transfer, and(c) must be accompanied by a declaration in writing, in a form approved by the Authority, certifying such matters as may be required by the approved form (including matters relating to the transferee’s responsibilities in relation to, and capacity to implement, practices in place at the licensed premises for ensuring the responsible sale, supply and service of alcohol, and the prevention of intoxication, on the premises).(6) For the purposes of subsection (2)(b), a demerit offence is committed in the circumstances referred to in section 144C. 61 Application for transfer of licence on dispossession of licensee (1) This section applies in relation to a licence (other than a club licence) if—(a) the licensee is evicted from the licensed premises, or(b) the owner of the licensed premises comes into, or becomes entitled to, possession of the licensed premises to the exclusion of the licensee, or(c) the licensee is no longer employed by the owner of the business carried on under the licence (the business owner), or(d) the licensee is not complying, or does not have the capacity to comply, with the requirement under section 91(1) to be responsible at all times for the personal supervision and management of the business of the licensed premises.(2) An application for a transfer of the licence may be made by the owner of the licensed premises or by the business owner.(3) The owner of the licensed premises who comes into, or is entitled to, possession of the premises, or the business owner (as the case requires), is taken to be the licensee of the premises until—(a) the day that is 28 days after this section becomes applicable, or(b) the day on which application is made under subsection (2),whichever first occurs.(4) If an application is made under subsection (2) not later than 28 days after this section becomes applicable, the applicant is, until the application is determined by the Authority, taken to be the licensee under the licence to which the application relates.(5) The Authority is not to determine an application for the transfer of a licence under this section unless—(a) the Authority is satisfied—(i) that notice of the application was given to the dispossessed licensee at least 3 clear days before the Authority determines the application (or that all reasonable steps necessary for giving notice were taken by or on behalf of the applicant and that failure to give notice was not due to any neglect or default of the applicant), and(ii) if so notified, that the dispossessed licensee has been given a reasonable opportunity to make submissions in relation to the application, and(b) the Authority is satisfied that any lessee of the licensed premises has been notified of the application for the transfer of the licence and been given a reasonable opportunity to make submissions in relation to the application, and(c) the Authority has taken any submissions made under this subsection into consideration.(5A) If—(a) an application under subsection (2) in respect of the licensed premises is not made within 28 days after this section becomes applicable, or(b) such an application is made but the transfer of the licence to the applicant is refused by the Authority,the licence is suspended until such time as the licence is transferred to another person.(6) Section 60 applies, with such modifications as are necessary, in relation to an application for the transfer of a licence under this section. 62 Carrying on licensee’s business after death etc of licensee (1) In this section, a reference to the business of a licensee is a reference to the business of the licensee carried on by the licensee under the licence immediately before the licensee’s death, bankruptcy or other disability referred to in this section.(2) If a licensee dies, the business of the licensee may be carried on for a period not exceeding one month by a person of or above the age of 18 years who—(a) was the spouse or de facto partner of the licensee, or(b) is a member of the family left by the licensee, or(c) carries on the business on behalf of the family left by the licensee,so long as the Authority is notified immediately that the business of the licensee is being so carried on.(3) If, within the period of one month referred to in subsection (2), an application is made to the Authority by—(a) the person carrying on the business of the licensee under subsection (2), or(b) a person who claims that, for the purpose of continuing to carry on the business, the person should be preferred to the person referred to in paragraph (a),for endorsement of the licence, as agent, of the name of the applicant, the person referred to in paragraph (a) may continue to carry on the business of the licensee until the application is determined.(4) If, under the Bankruptcy Act 1966 of the Commonwealth, a trustee holds office in relation to the business of a licensee, the business of the licensee may be carried on by the trustee, or by a person authorised for the purpose by the trustee, so long as—(a) the Authority is notified immediately that the business is being so carried on, and(b) an application is made to the Authority by the trustee as soon as practicable for endorsement on the licence, as agent, of the name of the person so authorised.(5) If a licensee becomes a mentally incapacitated person, the business of the licensee may be carried on by the NSW Trustee and Guardian or a person authorised for the purpose by the NSW Trustee and Guardian, so long as—(a) the Authority is notified immediately that the business of the licensee is being so carried on, and(b) an application is made to the Authority by the NSW Trustee and Guardian as soon as practicable for endorsement on the licence, as agent, of the name of the person so authorised.(6) A person who carries on the business of a licensee under this section is, while the person so carries on the business, taken to be the licensee.(7) An application under this section must be accompanied by the fee prescribed by the regulations.(8) The Authority is to notify the Secretary and the Commissioner of Police of any application under this section and the Secretary and the Commissioner are entitled to make submissions in relation to such an application. 63 Grant of application for endorsement of licence following death etc of licensee (1) The Authority may grant an application under section 62 if the Authority is satisfied that the person whose name the applicant seeks to have endorsed on the licence is a fit and proper person to carry on the business to which the application relates.(1A) Without limiting subsection (1), in determining whether a person is a fit and proper person to carry on the business to which the application relates the Authority is to consider whether the person—(a) is of good repute, having regard to character, honesty and integrity, and(b) is competent to carry on that business.(2) In deciding whether or not to grant an application under section 62, the Authority is to take into consideration any submissions made by the Secretary or the Commissioner of Police in relation to the application.(3) If, following the death of a licensee, the Authority is so satisfied in relation to more than one such person, the Authority may grant the application of such one of them as the Authority thinks fit.(4) The granting of an application under section 62 takes effect with respect to a licence when the Authority endorses the licence accordingly.(5) A person whose name is endorsed on a licence under subsection (4) is, while the endorsement has effect, taken to be the licensee.(5A) If, following the death of a licensee—(a) an application under section 62 for endorsement of the licence is not made within the period required by section 62(3), or(b) such an application is made within that period but the application is refused by the Authority,the licence is suspended until such time as the licence is transferred to another person.(6) Subject to section 64(4), an endorsement under this section has effect for the period specified by the Authority. Any such specified period may, before the period expires, be extended by the Authority on application by the person who is taken to be the licensee. 64 Transfer of licence after death etc of licensee (1) If probate of the will of a deceased licensee is, or letters of administration of the deceased licensee’s estate are, granted, the executor or administrator must, as soon as practicable, apply to the Authority for the transfer of the licence to the executor or administrator, or to a person nominated by the executor or administrator, as transferee.(2) A trustee referred to in section 62(4) who holds office in relation to the business of a licensee may apply under section 60 as transferor for the transfer of the licence to a person nominated by the trustee.(3) If section 62(5) applies in relation to a licensee, the NSW Trustee and Guardian may apply under section 60 as transferor for the transfer of the licence to a person nominated by the NSW Trustee and Guardian.(4) If a licence is transferred under an application authorised by this section, any endorsement of the licence under section 63 ceases to have effect. Division 4 Special provisions relating to corporate licensees 65 Application of Division This Division applies in relation to any licence that is held by a corporation (including a registered club). 66 Appointment of managers (1) A licensee (other than a registered club)—(a) must appoint a manager approved by the Authority under this Division for the licensed premises, and(b) must not cause or permit the conduct of business under the licence for a period of more than 28 days except under the personal supervision and management of a person so approved. 67 Restrictions on who may be appointed as manager (1) The following provisions apply to the appointment under section 66 of a manager of licensed premises—(a) a person may not be appointed as the manager of licensed premises unless the person is approved by the Authority to manage licensed premises and the approval applies to the premises or class of premises concerned,(b) only an individual may be appointed to manage licensed premises,(c) a person cannot be appointed as the manager of licensed premises if at the time of the appointment the person already holds an appointment as the manager of other licensed premises.(2) Subsection (1)(c) does not apply in the case of a registered club referred to in section 66(3).(3) Subject to section 66(4), an appointment in contravention of this section is void for the purposes of this Act. 68 Approval of persons to manage licensed premises (1) An application for the Authority’s approval of a person to manage licensed premises must be in the form and manner approved by the Authority and be accompanied by the fee prescribed by the regulations.(2) The Authority may grant any such application or refuse to grant the application.(3) In determining an application for approval of a person to manage licensed premises, the Authority has the same powers in relation to the application as the Authority has in relation to an application for a licence.(4) The Authority’s approval may not be given unless the Authority is satisfied that the person concerned—(a) is a fit and proper person to manage licensed premises, and(b) understands the person’s responsibilities in relation to, and is capable of implementing, practices in place at licensed premises for ensuring the responsible sale, supply and service of alcohol and the prevention of intoxication, and(c) if the Authority has required the person to attend a course of training or instruction approved by the Secretary—has completed the course to the standard required by the Authority.(4A) Without limiting subsection (4)(a), a person is not a fit and proper person to manage licensed premises if the Authority has reasonable grounds to believe from information provided by the Commissioner of Police in relation to the person—(b) that the nature and circumstances of the person’s relationship with the organisation or its members are such that it could reasonably be inferred that improper conduct that would further the criminal activities of the declared organisation is likely to occur if the person is granted an approval.(4B) The Authority is not, under this or any other Act or law, required to give any reasons for not granting an approval because of subsection (4A) to the extent that the giving of those reasons would disclose any criminal intelligence.(4C) Without limiting subsection (4)(a), in determining whether a person is a fit and proper person to manage licensed premises the Authority is to consider whether the person—(a) is of good repute, having regard to character, honesty and integrity, and(b) is competent to manage licensed premises.(5) If the Authority is satisfied that there is nothing that might preclude the Authority from approving of the person to manage licensed premises, but requires more information before making a final decision, the Authority may give a provisional approval of the person to be such a manager.(6) A provisional approval is sufficient to authorise the appointment of the person, in accordance with section 69, as manager of the licensed premises until such time as the Authority confirms the approval of the person.(7) An approval or provisional approval of a person to manage licensed premises may be given so as to apply in relation to any particular licensed premises, to all licensed premises of a specified class or to all licensed premises, as the Authority thinks fit. 69 Notice of appointments (1) A licensee must give the Authority notice of the appointment of a person as manager of licensed premises. 70 Liability of licensee for contravention by manager The licensee of licensed premises is taken to have contravened any provision of this Act or the regulations that the manager of the licensed premises has contravened as a result of section 91 unless the licensee establishes that the licensee—(a) did not authorise or knowingly permit the contravention by the manager, and(b) maintained control over and supervision of the activities of the manager of the licensed premises in an effort to prevent any such contravention occurring. 71 Liability of directors etc for offences by corporation—accessory to the commission of the offences (1) For the purposes of this section, a corporate offence is an offence against this Act or the regulations that is capable of being committed by a corporation (including a licensee that is a corporation).(2) A person commits an offence against this section if—(a) a corporation commits a corporate offence, and(b) the person is—(i) a director of the corporation, or(ii) an individual who is involved in the management of the corporation and who is in a position to influence the conduct of the corporation in relation to the commission of the corporate offence, and(c) the person—(i) aids, abets, counsels or procures the commission of the corporate offence, or(ii) induces, whether by threats or promises or otherwise, the commission of the corporate offence, or(iii) conspires with others to effect the commission of the corporate offence, or(iv) is in any other way, whether by act or omission, knowingly concerned in, or party to, the commission of the corporate offence. 71A Evidence as to state of mind of corporation (1) Without limiting any other law or practice regarding the admissibility of evidence, evidence that an officer, employee or agent of a corporation (while acting in his or her capacity as such) had, at any particular time, a particular state of mind, is evidence that the corporation had that state of mind.(2) In this section, the state of mind of a person includes—(a) the knowledge, intention, opinion, belief or purpose of the person, and(b) the person’s reasons for the intention, opinion, belief or purpose. 72 Corporate licences—interpretative provisions (1) A reference in this Act to a in a corporation is a reference to the position of chief executive officer, director or secretary of the corporation.(2) For the purposes of this Act, a person who occupies a position of authority in a corporation is to be regarded as interested in an application for a licence made by the corporation and as interested in the business of the licensed premises to which a licence held by the corporation relates.(3) For the purposes of this Act, a person who is a shareholder in a corporation is not (merely because of being a shareholder) to be regarded as a person who will be interested in an application for a licence made by the corporation or in the business, or the profits or conduct of the business, to be carried on pursuant to the licence applied for or of the licensed premises to which a licence held by the corporation relates. Division 5 Cumulative impact assessments pt 4, div 5 (ss 72A–72H): Ins 2020 No 40, Sch 2.1[4]. 72A Definitions In this Division— 72B Preparation of cumulative impact assessment (1) This section applies if, because of the number of relevant licences or related authorisations in force for an area, the Authority considers that granting any further relevant licences or related authorisations for premises in the area is likely to be inconsistent with the Authority’s social impact duty. 72C Contents of cumulative impact assessment (1) A cumulative impact assessment must include the following—(a) the reasons the Authority considers that granting any further relevant licences or related authorisations for premises in the area is likely to be inconsistent with the Authority’s duty under section 48(5) to ensure that the overall social impact of the granting of a licence or authorisation will not be detrimental to the well-being of the local or broader community,(b) details of the evidence on which the Authority has formed that opinion,(c) a map showing the area the subject of the assessment,(d) any other information prescribed by the regulations.(2) A cumulative impact assessment may relate to—(a) all relevant licences and related authorisations for premises in an area, or(b) only relevant licences or related authorisations, or classes of relevant licences or related authorisations, specified in the assessment, or(c) only classes of premises specified in the assessment.(3) A cumulative impact assessment may also include guidance about other types of approvals in relation to an existing relevant licence that it considers are likely to have an overall social impact in the area to which the assessment applies that is detrimental to the well-being of the local or broader community, including—(a) approval of changes to the specified boundaries of the licensed premises, within the meaning of section 94, if the change in boundaries would increase the floor space of the licensed premises, or(b) approval of a variation to the conditions of the licence if the variation would extend the trading hours of the licensed premises. 72D Consultation with relevant stakeholders After preparing a draft cumulative impact assessment, the Authority must—(a) consult about the draft assessment with relevant stakeholders for the assessment, and(b) give the stakeholders a reasonable period in which to provide feedback about the assessment. 72E Publication of cumulative impact assessment If, after consulting with relevant stakeholders, the Authority still considers the cumulative impact assessment is necessary the Authority must publish it on a publicly accessible government website. 72F Review of cumulative impact assessment (1) The Authority must, at least every 2 years, review each cumulative impact assessment that is in force.(2) The first review of a cumulative impact assessment must be completed not later than 12 months after the assessment is published.(3) A review of a cumulative impact assessment must include consultation with relevant stakeholders for the assessment. 72G Variation of cumulative impact assessments (1) The Authority may, at any time, vary a cumulative impact assessment.(2) However, the Authority may vary a cumulative impact assessment in relation to a matter mentioned in section 72C(1) only if the Authority has—(a) consulted with relevant stakeholders for the assessment about the proposed variation, and(b) given the stakeholders a statement explaining the reasons for the proposed variation, and(c) given the stakeholders a reasonable period in which to provide feedback about the proposed variation.(3) If the Authority varies a cumulative impact assessment it must publish, on a publicly accessible government website—(a) a copy of the assessment as varied, and(b) if a statement was prepared explaining the reasons for the variation—the statement. 72H Revocation of cumulative impact assessments (1) The Authority may revoke a cumulative impact assessment if the Authority no longer considers that granting further relevant licences or related authorisations for premises in the area to which the assessment applies is likely to be detrimental to the well-being of the local or broader community.(2) However, before revoking the cumulative impact assessment the Authority must consult with relevant stakeholders for the assessment.(3) If, after considering the views of relevant stakeholders, the Authority revokes the cumulative impact assessment it must publish, on a publicly accessible government website, a statement—(a) that the assessment has been revoked, and(b) that includes information about why the assessment is no longer necessary. |
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