1. The applicants applied for permanent approval from the respondent pursuant to section 120 of the Act. The effect of this approval, if granted, would be to allow unaccompanied minors to be on the licensed premises, relevant to the licence, simply for the purpose of gaining access to the auditoria/performance areas. There was no suggestion that the approval would or should provide for the consumption of alcohol by minors or the purchase of alcohol by minors.
2. The initial application by the applicant was for an approval to have effect until 11.00pm on the days provided for within the licence. The licence itself provides for licensed trading (in all but external and smoking areas) until 1.00am the following morning.
3. The On-premises licence issued by the respondent makes no provision for an approval pursuant to section 120 of the Act. In making this determination the respondent quotes the aim of 'harm minimisation' and says that this is particularly expressed in the Act by requiring that persons under the age of 18 are not exposed to alcohol in licensed premises except in the supervision of a responsible adult.

1. The relevant parts of section 120 of the Act provide;

(a) is on licensed premises or any authorised premises; and

(ii) on the premises for the purpose of partaking of a meal; or

(iii) in the case of a licence under which accommodation is provided, a resident of those premises-

(e) to the presence on licensed premises or authorised premises of a person under the age of 18 years in accordance with the approval of the Director and any conditions to which that approval is subject.

(3) If the Director grants or revokes an approval for the purposes of subsection (2)(a) or (e), the Director must cause the licence or permit to be endorsed accordingly.

1. The applicant correctly submits that the grant of the authority must be made with consideration of the objectives of the Act. Section 4 details the Objects;

(a) to contribute to minimising harm arising from the misuse and abuse of alcohol by-

(i) providing adequate controls over the supply and consumption of liquor; and

(ii) ensuring as far as practicable that the supply of liquor contributes to, and does not detract from, the amenity of community life; and

(iii) restricting the supply of certain other alcoholic products; and

(b) to facilitate the development of a diversity of licensed facilities reflecting community expectations; and

(c) to contribute to the responsible development of the liquor and licensed hospitality industries.

1. The evidence of the applicants is that most theatres, including the theatre, the subject of these proceedings, are designed in such a way that the foyer to the theatre is not only the entrance to the theatre but also the place where people gather, before, during and after the performance. It was also said that almost without exception, the foyer is where patrons purchase their refreshments.
2. The area covered by the relevant On-premises licence includes all of the foyer area and thus all of the entrance area. This area is categorised as, the licensed premises. The result is that it is not possible to enter the theatre itself, without passing through the licensed premises. There is physically no other way for patrons to enter the theatre itself.
3. Without the appropriate grant of approval by the Director under section 120 of the Act, if an unaccompanied minor is in the foyer area and thus the licensed premises, the licensee is guilty of an offence under the Act. As such, without the Directors grant of approval it is not possible for an unaccompanied minor to enter the theatre itself without the licensee committing an offence. This is so even if the unaccompanied minor, is simply passing through the foyer to enter the theatre.
4. There was evidence that approval in accordance with section 120 has been provided in regard to the licences relevant to The Arts Centre and the Playbox Malthouse Theatre. These are two theatres in the immediate geographic vicinity of the subject premises. Approval in these cases covers all of the periods applicable to the relevant licences.
5. There was also evidence of six other theatres in the Melbourne city and suburban areas where approval had also been granted. In each of these other six cases, the approval was for periods of less than the trading period of the licence generally.
6. The thrust of the applicants' argument was fourfold. First, 'all' front of house staff are well versed and trained in the 'Responsible Serving of Alcohol'. It was submitted that these skills would minimize or remove any risk of minors, or for that matter, all patrons, being exposed to the misuse or abuse of alcohol. Second, the absence of the Directors approval would unreasonably prevent unaccompanied minors from attending this theatre and potentially discourage them from an interest in theatre generally. Third, this theatre should be on equal footing with other theatres and in particular, the two local theatres referred to above. Further, there was nothing to distinguish those two local theatres with this theatre. Fourth, the respondent had not produced any valid evidence that supported the submission that the approval should be refused. In this regard, the applicant contended that the respondent was reaching conclusions without supporting evidence.
7. During the hearing, the parties advised the Tribunal that the respondent had offered to resolve this matter by granting the Directors approval, pursuant to section 120, with the condition that unaccompanied minors were required to have departed the licensed premises within 15 minutes of the performance having concluded.
8. At no time did the applicant withdraw their application to have the Directors approval for all trading hours under the licence. However, the applicant did ask the Tribunal to consider the merit of the respondents offer, although the applicants' concern was that 15 minutes was insufficient.
9. The evidence of the General Manager of the Melbourne Theatre Company, Ann Tonks, was that 15 minutes was insufficient to ensure that someone would be off the premises. The witness gave this evidence, factoring in the patrons possible need to use the toilets, return hired binoculars, collect a coat from the coat attendant, purchase a program and possibly await the entrance of the performers to the foyer area - apparently a common event. Ms Tonks, was pressed on this issue, but remained resolute that 30 minutes was a much more reasonable and achievable time.
10. The respondent did not present evidence on this point but submitted that 15 minutes was a reasonable period and that things like, purchasing a program, could be done prior to the performance or during the interval.
11. Ms Tonks gave evidence that the finishing time of performances was subject to variation and that there were many factors that may influence that variation. However, the experience since January 2009 (the granting of the licence) was that performances could finish as late as 12 midnight and would often finish between 11.00pm and 12 midnight.
12. The licence the subject of these proceedings allows for trading hours to conclude at 1.00am.
13. Under cross-examination, Ms Tonks conceded that the result of the primary application was that unaccompanied minors could be on the premises until 1.00am (the end of trading hours) and 1.30am (if you factor in the period of grace patrons are allowed, to leave the premises after trading under the licence has concluded).
14. Ms Tonks was adamant that she did not want unaccompanied minors on the premises until 1.00am or 1.30am. Without her saying as much, the Tribunal was satisfied that if it were to occur, Ms Tonks would regard it as an undesirable result.
15. The respondent submitted that the Flinders Street railway station was five to ten minutes walk to the premises. The respondent submitted that youngsters might make their way from the station to the premises. The respondent did not present any evidence to support this submission. In fact, the respondent did not provide any evidence that the Directors' approval may or would be contrary to the Objects of the Act. The respondents' submissions were based upon conjecture and concern, albeit genuine concern.
16. There was no evidence either way that a minor would be discouraged from attending theatres generally should the Director refuse approval in this case. On the other hand, it is difficult to see how one could obtain evidence on this point.
17. The applicant gave evidence that at the other eight theatres referred to above, where approval had been granted, to a lesser or greater degree, there had been no reports of trouble and certainly no evidence of misuse or abuse of alcohol amongst minors or for that matter, patrons generally. The respondent did not dispute this evidence.
18. Neither party provided evidence as to the similarities or differences between this theatre and the other eight theatres referred to above. The applicants' case was put more on the general basis that there should be parity between the theatres. The assumption was that they were equal, but save for photographs of the other theatres, there was no evidence lead.
19. The Tribunal has been given a report detailing the demographics of the theatre going crowd. It comes as no surprise that the results point to a more genteel, older group. It was suggested that as a consequence of these demographics, the theatre was unlikely to be one involving the misuse or abuse of alcohol. It was also suggested that this environment was unlikely to attract unaccompanied minors unless they were attending the theatre for a performance.

1. It is insufficient, in the Tribunals' view, to simply say that there should be parity between the theatres. The decisions on this matter make it clear that;

"...the particular circumstances, site and premises should be taken into account and dealt with in a specific context."[1]

1. The theatre, the subject of these proceedings, is in what can safely be called a theatre and performing arts district. It is not near residential properties and there is an absence of other venues that might attract unaccompanied minors. The highest the respondent could take their argument on this point, was a reference to the Flinders Street railway station. While, that location does appear to be one that attracts unaccompanied minors, it is a five or ten minute walk to the theatre and in the Tribunals' view, there are many other attractions in between, to take the eye of the wandering unaccompanied minor.
2. The evidence is that the patrons are likely to be of a more mature, genteel type and the evidence is that neither this, nor similar venues, has presented evidence of the misuse or abuse of alcohol in this type of environment.
3. The respondent relies upon the objective of 'harm minimisation' in support of the decision not to grant approval under section 120. Harm minimisation cannot be relied upon in a general sense only. The respondent is required to present a demonstrable case, evidencing particular concerns.[2] The respondent has not done so.
4. For the Directors' approval, in the interests of harm minimisation, to be declined in all cases, irrespective of their individual circumstances, it requires an assumption that there would be an increase in youth drinking problems if the Director were to do otherwise. The Tribunal, in the absence of specific evidence, is not prepared to make that assumption.[3] The Tribunal is not satisfied that the attendance of unaccompanied minors on licensed premises, simply for the purpose of accessing and attending a performance is a cause for concern, in this case. The Tribunal is not satisfied that such attendance is inconsistent with the objects of the Act, in this case.
5. On the other hand, the General Manager of Melbourne Theatre Company was clearly concerned by the prospect of unaccompanied minors potentially being on the premises until 1.00am or 1.30am. This is between one, and one and half hours after the conclusion of a late finishing performance. On its face, this would seem to be an unnecessarily long period for an unaccompanied minor to remain on licensed premises.
6. The Tribunal considers that the suggestion made by the Director to allow a departure time after the conclusion of a performance to be a reasonable one. This suggestion address the purpose for which the unaccompanied minor is on licensed premises. That is, simply to attend a theatre performance.
7. The suggestion is also specifically directed to the objective of harm minimisation. That is, that the unaccompanied minor is to leave the licensed premises as soon as is reasonably possible after the conclusion of the performance. In those circumstances, the exposure to alcohol consumption is kept to a minimum.
8. The issue for the Tribunal is as to what is a reasonable period. It seems to the Tribunal that this question involves a balance between the practical question of, given all the circumstances, how long does it physically take to leave and the objective of minimising the time on licensed premises.
9. In considering the correct balance, the Tribunal is mindful of the fact that all front of house staff are trained in the responsible service of alcohol. One is entitled to presume that if approval is granted and the applicants' licence is endorsed accordingly, all front of house staff will be briefed on their obligations associated with the approval. These obligations would include the role of identifying who in fact is a minor. It is also reasonable to assume that in accordance with accepted customer relations practice, front of house staff will act in a firm but fair fashion to ensure that unaccompanied minors depart the premises within the required time.
10. The Tribunal accepts the evidence of the General Manager, Ms Tonks, that 30 minutes is a reasonable and achievable balance between practicality and achieving the Acts objectives.
11. In accordance with section 87 of the Act the Tribunal proposes to vary the relevant licence so as to include the approval contemplated by section 120 of the Act. The approval shall be limited by a requirement that minors leave the licensed premises within 30 minutes of the conclusion of the performance which they have attended.

[1] Black Lula Evangeline & Cooke Brian v Liquor Licensing Victoria & Green Dragon Pty Ltd [2000] VCAT 459.

[2] Palace Cinema Nominee Pty Ltd v Director of Liquor Licensing (Occupational & Business Regulation) [2007] VCAT 1829 at 16.

[3] Nardi v Director of Liquor Licensing (Occupational & Business Regulation) [2005] VCAT 323 at 35.