Liquor Licensing Act 1990

The Act defines several key concepts that underpin its operation. ‘Liquor’ under section 3 means a beverage or other substance intended for human consumption with an alcoholic content greater than 0.5 per cent by volume at 20 degrees Celsius, excluding medicines. ‘Intoxicated’ is defined in section 3B: a person is intoxicated if their speech, balance, coordination or behaviour is noticeably affected and it is reasonable to believe that affectation results from consumption of liquor or other substances. This definition triggers various offences and duties, notably the prohibition on selling or serving liquor to an intoxicated person (section 78) and the requirement for licensees to ensure intoxicated persons are not on the premises. ‘Associate’ (section 3A) captures persons who hold a relevant financial interest, relevant power or relevant position in the business of an applicant, licensee or permit holder; also relatives; and anyone the Commissioner is satisfied could exercise significant influence. This concept is critical to the fit and proper person assessment (section 22(1A)). ‘Best interests of the community’ is defined by section 3 as interests that are prescribed for the purposes of that definition, meaning it is a term left to regulation to specify. The Act distinguishes between licensed premises (premises specified in a liquor licence) and permit premises (premises specified in a permit or where a small producer’s permit operates). The definition of ‘sell’ in section 3 is broad: it includes offer, display, expose for sale; keep or have in possession for sale; barter or exchange; deal in or agree to sell; supply, send, forward or deliver for any payment or consideration; and authorise, direct, cause, attempt or permit any of those acts. This expansive definition catches conduct well beyond a simple cash transaction. ‘Resident’ means a person able to provide evidence they reside or are staying overnight in accommodation part of the licensed premises (section 3). ‘Responsible adult’ means a person 18 years or older who is a parent, step-parent, guardian, spouse, partner or person with parental responsibility for a minor. ‘Vicinity’ is defined as within a prescribed distance or, for barring orders, the distance specified by the police officer. ‘Meal’ means food eaten at a table with cutlery, of sufficient substance to be ordinarily accepted as a meal (section 3). This definition is important for exceptions allowing minors in restricted areas. The Act also defines ‘small producer’ by reference to prescribed classes (section 3). These definitions interact throughout the Act to create a detailed regulatory architecture aimed at responsible liquor supply.

The Act directly affects a wide range of persons and entities. Licensees and permit holders bear the primary regulatory burden: they must obtain authorisation before selling liquor (section 5), comply with conditions on their licence or permit (sections 25B, 34A), and observe numerous operational obligations. Applicants for licences or permits must satisfy qualification requirements in sections 22 and 31, including being a fit and proper person (or having associates who are fit and proper), being at least 18 years old, and having completed an approved course or having necessary knowledge and experience. Associates of applicants and licensees are also affected because the Commissioner can refuse a licence if an associate is not fit and proper (section 22(1A)). Employees of licensees are impacted by requirements concerning responsible service of liquor (section 46A) and minimum age requirements (section 46B). Persons under 18 years are subject to numerous prohibitions: they must not purchase liquor (section 73), consume liquor on licensed or permit premises (section 76), possess or control liquor on such premises (section 77), or enter restricted areas except in limited circumstances (sections 72, 84). They also face penalties for using false identification (section 72A). The general public is affected by provisions allowing barring orders (section 81), requiring persons to leave premises when asked (sections 80, 80A), and prohibiting disorderly behaviour and foul language (section 79D). Police officers and authorised officers have significant powers of entry, inspection, seizure and arrest (sections 85-95). The Commissioner for Licensing is the central administrative figure, with powers to grant, refuse, condition, vary, suspend and cancel licences and permits, and to issue liquor restriction orders and general liquor exemptions. The Commission (Tasmanian Gaming Commission) hears appeals from Commissioner decisions and conducts hearings for certain applications referred by the Commissioner (section 24(2)(b)). The Commissioner of Police provides reports on fit and proper person assessments and receives seized false documents. The Crown is bound by the Act (section 4). Supermarkets are restricted from obtaining liquor licences in connection with their activities (section 25A). The hospitality and liquor industries are directly regulated, and neighbours and local communities benefit from protections against undue annoyance and disorderly conduct (sections 39, 46C, 99(i)). Anyone who sells liquor without authorisation faces a penalty of up to 40 penalty units (section 5).

The Act imposes a web of duties and confers corresponding rights. Licensees and permit holders must ensure effective control over the sale and consumption of liquor on the premises (section 46) and must ensure responsible sale and service by requiring staff to complete an approved course (section 46A). They must not allow a person to sell or serve liquor who is under the minimum prescribed age (section 46B). They must ensure that the sale and consumption of liquor does not cause undue annoyance or disturbance to neighbours, customers, schools, religious services, or persons lawfully on the premises, and does not cause disorderly conduct (section 46C). Licensees must display their licence conspicuously (section 54), display any permit (section 55), display any liquor restriction order (section 56), and display notices about minors’ entry (section 60). They must require persons who are violent, quarrelsome, disorderly or using profane language to leave (section 62). Off-licence holders must not allow consumption on the premises unless authorised by an on-permit (section 63). On-licence holders must not allow liquor to be taken off premises unless authorised by an off-permit (section 64). Licensees must not allow persons to enter or remain outside authorised hours except certain exempt persons (section 65). They must notify the Commissioner of prolonged absence exceeding 14 days (section 66). The Commissioner has the right to vary conditions of licences or permits on their own motion (sections 25C, 34B) subject to notice and appeal rights, or on application by the holder (sections 25D, 34C). Licensees and permit holders have the right to appeal to the Commission against many decisions: refusal of an application, imposition of conditions, suspension, cancellation, variation, liquor restriction orders, disciplinary action, and certain notices (section 211). A person may also appeal a police barring order determination (section 81A(3) to the Commission, and then to the Commission under section 211(2)). Barring orders can be issued by licensees or their agents for up to six months (section 81(2)) or by police with senior authorisation for up to six months (section 81(4)). Persons who are barred must not enter the premises or remain in the vicinity (sections 81(7), (8)). They may apply for review of police barring orders to the Commissioner of Police (section 81A). The Act also confers rights on authorised officers and police to enter premises, inspect, seize documents and liquor, and ask for names and addresses (sections 85-92). Persons must not hinder authorised officers (sections 67, 82) and must give name, address and date of birth when required by police (section 83). Importantly, section 86(8) provides a privilege against self-incrimination for questions asked by an authorised officer, and section 86(9) provides that answers are not admissible except in proceedings for hindering or for contravention of licence/permit conditions.

Enforcement under the Act combines criminal penalties, disciplinary action, infringement notices and administrative sanctions. The most serious criminal offence is selling liquor without authorisation, carrying a maximum fine of 40 penalty units (section 5). Selling undesirable liquor products declared by the Minister attracts a fine of 50 penalty units for the seller and 100 penalty units for the licensee or permit holder who authorised the sale (section 38A). Selling or serving liquor to an intoxicated person carries 50 penalty units for the individual and 100 penalty units for the licensee/permit holder who authorised it (section 78). Selling or serving to a minor carries 50 penalty units for the individual and 100 penalty units for the licensee/permit holder (section 70). Supplying liquor to a minor on licensed or permit premises carries 50 penalty units (section 71). Licensees and permit holders also face vicarious liability for acts of their authorised staff (e.g. sections 69A(2), 70(2), 78(2)). The penalty for allowing an intoxicated person to sell or serve liquor is 50 penalty units for the licensee/permit holder (section 69A(2)). Disciplinary action under Division 8 of Part 2 (sections 98-107) allows the Commissioner to cancel or suspend a licence or permit, vary it, impose a fine not exceeding 100 penalty units, or issue a letter of censure (section 98). Grounds for disciplinary action include contravention of the Act or conditions, loss of qualification, failure to comply with a written notice (section 40), conviction for an offence, imprisonment, failure to discharge financial obligations, obtaining the licence by false statement, causing undue annoyance or disorder, associate unfitness, loss of control, and ceasing to use the premises (section 99). The procedure in section 100 requires the Commissioner to notify the licensee/permit holder, allow 14 days for submissions, then decide. For urgent cases, section 104 allows immediate suspension if harm to the public is likely, with the suspension lasting up to 30 days pending full disciplinary proceedings. Section 105 allows cancellation or suspension where a restaurant on-licence is no longer used as a restaurant, the licensee is no longer the owner/occupier, or failure to pay annual fees within one month. Infringement notices can be issued for prescribed offences with a maximum penalty of 25 penalty units (section 223). Police may seize liquor and its container if they reasonably believe it is being kept for sale, sold, or to be consumed contrary to the Act (section 95), and the court may order forfeiture on conviction (section 96). Forfeited liquor is disposed of as the Commissioner determines, with proceeds paid into the Public Account (section 96(2)). False documents seized under section 92A may be disposed of by police. The evidentiary provisions in section 218 assist enforcement: an allegation in a complaint that a substance was liquor, or as to licence/permit status, is evidence of that matter. Proof that liquor was supplied, sent, forwarded or delivered is evidence of sale (section 218(3)), and proof that bottles or glasses commonly used for liquor were found on premises and had been used recently is evidence of sale (section 218(4)). The Act also makes it an offence to hinder an authorised officer (section 82, up to 100 penalty units) and to refuse to provide name, address and date of birth to police (section 83, up to 50 penalty units). The cumulative effect is a robust enforcement regime aimed at deterrence and compliance.

The Act does not operate in isolation. Section 18 provides that a liquor licence, permit or general exemption does not authorise sale on premises if the use of those premises for that purpose is otherwise unlawful, meaning compliance with planning, building and local government laws is required. The Act explicitly interacts with the Gaming Control Act 1993: the term ‘Commission’ has the same meaning as in that Act (section 3), and the Commission (which hears appeals) is the Tasmanian Gaming Commission. The Relationships Act 2003 is referenced in the definition of ‘partner’ (section 3). The Personal Information Protection Act 2004 is overridden by section 81(6), which allows police to provide identifying information about barred persons to licensees despite that Act. The Monetary Penalties Enforcement Act 2005 governs infringement notices under section 223. The Security and Investigations Agents Act 2002 is referenced in the definition of ‘crowd controller’ for the purpose of seizing false documents (section 92A(5)). The Dairy Industry Act 1994 is mentioned in relation to statistical information about grape growers and wine producers (section 222A). The Rules Publication Act 1953 is excluded for notices declaring undesirable liquor products (section 38(6)). The Act also binds the Crown in right of Tasmania (section 4), meaning government agencies must comply when selling liquor. Previously, the Act was named the Liquor and Accommodation Act 1990; section 224A(4) and (5) provide that references to the former name in any Act or document are to be read as references to the Liquor Licensing Act 1990 where appropriate. Schedule 3 lists consequential amendments to other Acts including the Coroners Act, Fire Service Act, Local Government Act, Police Offences Act, Shop Trading Hours Act, and Tourism Act. The Act is also affected by the State Service Act 2000 for appointment of the Commissioner and authorised officers (sections 207, 209). The Act’s regulation-making power in section 226 allows prescription of matters such as minimum age requirements for sellers (section 46B), record-keeping, barring order procedures, and evidence of age documents. Importantly, the Act does not provide for private civil liability for breach; enforcement is through criminal penalties and disciplinary action, although section 221 provides indemnity for Commission members, the Commissioner and authorised officers acting in good faith. The Act also interacts with general criminal law, as section 79A requires licensees to take reasonable action to prevent offences under this or any other Act being committed on the premises, with a penalty of up to 100 penalty units. The broad definition of ‘premises’ including a means of transport means the Act may apply to mobile sellers such as catering vehicles.

The Act has been amended extensively since its enactment in 1990. Significant amendments include: No. 73 of 1994 (introduced sections on interim authority to act as licensee, police powers, false documents, and offence of hindering); No. 75 of 1999 (repealed the original disciplinary provisions and substituted new Divisions 8 and 9 of Part 2, later further amended); No. 40 of 2003 (inserted associate definition, changed qualification requirements, added requirement for Commissioner to consider best interests of community, and introduced course completion conditions); No. 9 of 2002 (amended club licence provisions, public notice requirements, and other procedural matters); No. 7 of 2008 (significant reforms: substituted fit and proper person test in section 22, added police reports for applications, replaced section 46A with responsible service provisions requiring approved courses, inserted power to seize false documents in section 92A, and updated authorised officer provisions); No. 37 of 2004 (introduced annual licence fee in section 26A); No. 24 of 2004 (amended various sections including extension of hours, suspension effect, and transitional provisions renaming the Act from Liquor and Accommodation Act); No. 9 of 2015 (Liquor Licensing Amendment (Liquor and Gaming Administrative Restructuring) Act 2015) was a major administrative restructuring: it abolished the Board (the former decision-making body), transferred its functions to the Commissioner and the Commission, and substituted the object provision (section 2A). Schedule 1 contains savings and transitional provisions dealing with the abolition of the Board and pending matters. No. 51 of 2015 (Liquor Licensing Amendment Act 2015) was another major reform, commencing 1 September 2016. It introduced or amended: the definition of intoxicated (section 3B), small producer’s permit (sections 15A, 6), conditions and variations (sections 25B-25D, 34A-34C), obligations to ensure no undue annoyance (section 46C), internet sales requirements (section 46D), minimum age for sellers (section 46B), barring orders (section 81), review of police barring orders (section 81A), vending machine provisions (section 79B), prohibition on bringing liquor onto premises (section 79C), prohibited behaviour (section 79D), undesirable liquor products (section 38A), disciplinary action (sections 98-107), cancellation/suspension in other circumstances (Division 9 of Part 2), and miscellaneous offences. This amendment also repealed sections 41, 42, 44, 45, and others. Parts 3 and 4 were repealed earlier (by No. 24 of 2004 and No. 9 of 2002 respectively). The Act continues to be amended from time to time via the Tasmanian legislative process.

The Act does not cite any specific case law. However, the Act establishes a structured appeal and review mechanism. Appeals against decisions of the Commissioner lie to the Commission (Tasmanian Gaming Commission) under section 211. The appeal must be made in writing within 14 days of receipt of the decision or such further period as the Commission considers appropriate in the interests of justice (section 212(1)). The Commission holds a hearing within a reasonable period (section 212(3)). The Commission is not bound by the rules of evidence but must observe natural justice (section 213(2)). After the hearing, the Commission may confirm, revoke the Commissioner’s decision, or direct the Commissioner to take such action as the Commission considers appropriate (section 214(1)(c)). For appeals against police barring order determinations under section 81A(3), the Commission may confirm, revoke, or remit for reconsideration by the Commissioner of Police (section 214(1)(b)). The Commission must comply with directions of the Commission (section 214(2)), and the Commissioner of Police must comply with directions or recommendations (section 214(3)). Questions of law may be referred to the Supreme Court by way of a case stated by the Commission, either on its own motion or if ordered by a judge in chambers (section 215). The Supreme Court hears the question and remits its decision to the Commission, which is bound by it (section 215(2)-(3)). Except for this case stated procedure, a decision of the Commission is final and without appeal (section 215(6)). This means that the Commission is the ultimate decision-maker on factual and policy matters, with only legal error reviewable by the Supreme Court. Prior to the 2015 amendments, the Board heard appeals and could be reviewed by the Supreme Court; transitional provisions in Schedule 1 preserved pending appeals and cases stated. The Commission also conducts hearings for applications referred by the Commissioner under section 24(2)(b) where the Commissioner considers it in the public interest. In practice, litigation under the Act would involve challenges to licensing decisions, disciplinary actions, liquor restriction orders, and barring orders. The Act does not provide for merits review by a tribunal other than the Commission. Given the Act’s focus on community impact and fit and proper person assessments, decisions are likely to be highly fact-specific and resistant to appeal except on legal grounds. The infringement notice system under section 223 allows minor offences to be dealt with without court proceedings, but a person may elect to have the matter heard by a court.

Several provisions in the Act may catch practitioners off guard. The most significant is the supermarket prohibition: section 25A states a liquor licence must not be granted in connection with the activities of a supermarket. This prevents large grocery retailers from obtaining an off-licence for their premises, a deliberate policy to separate liquor retailing from general grocery shopping. Another trap is the requirement for off-licences: the principal activity of the business must be the sale of liquor (section 24A(2)). This means a convenience store cannot obtain an off-licence unless its primary business is selling liquor, not general merchandise. For restaurants operating under an on-licence, the Commissioner must be satisfied the premises are or are intended to be used as a restaurant (section 24A(3)). If the premises cease to be used as a restaurant, the Commissioner may cancel or suspend the licence under section 105(1)(a)(i). The definition of ‘meal’ is strict: food must be eaten at a table with cutlery and be of sufficient substance to be ordinarily accepted as a meal (section 3). This matters for exceptions allowing minors in restricted areas (section 84(2)). A mere snack or takeaway food will not suffice. Internet and distance sales are heavily regulated by section 46D. Licensees must display their licence number on advertisements and the website, include a prescribed notice, require the purchaser’s date of birth, and give written delivery instructions requiring delivery to an adult. If a person under 18 takes delivery, both the licensee and the deliverer are guilty of an offence. The defences in section 46D(5) and (6) are limited: compliance with subsection (3) is a defence for the licensee, and reasonable ignorance is a defence for the defendant. Section 79B prohibits vending machine sales unless specifically authorised in the licence or permit and the machine is on the premises. Vending machines are broadly defined to include any machine designed to enable purchase by electronic funds transfer, money or token. Barring orders under section 81 can be issued by a licensee, their agent, or a permit holder for up to six months, and by police (with senior authorisation) for up to six months. A person who is barred must not remain in the vicinity for the remainder of the day’s trading or six hours, whichever is longer, subject to reasonable excuses (section 81(8)-(9)). The reasonable excuse includes residing in the vicinity, needing transport, or fearing for safety. This vicinity requirement applies equally to persons required to leave under sections 80 and 80A. The associate concept in section 3A is broad: it covers not only financial interests and positions but also relatives and anyone the Commissioner is satisfied could exercise significant influence. This means the Commissioner can scrutinise family members and silent backers. The fit and proper person test for licensees in section 22(1A) extends to associates: a person is not qualified if the Commissioner reasonably suspects any associate who is a natural person and likely to have influence is not fit and proper. This effectively requires full disclosure of associates. The power of the Commissioner to vary conditions on their own motion (sections 25C, 34B) is limited: for general, on, off and club licences granted before the commencement of the 2015 amendments, the Commissioner cannot add new conditions (section 25C(2)). However, for post-2015 licences, conditions can be added, amended or omitted. The urgent suspension power in section 104 allows immediate suspension for up to 30 days if harm to members of the public is likely. This is a powerful tool and the licensee has a right to appeal to the Commission, which must sit within 14 days (section 104(6)). Finally, liability is not extinguished by surrender, transfer, expiry or cancellation of a licence or permit: section 107 provides that disciplinary action or cancellation/suspension under Division 9 may still proceed against former licensees or permit holders.

Compliance under the Act requires a proactive and systematic approach. The first step is to determine the correct authorisation. Any entity intending to sell liquor must apply for either a liquor licence or a liquor permit, or rely on a general liquor exemption (section 5). The applicant must meet the qualification requirements in section 22 (for licences) or section 31 (for permits). This includes being a natural person at least 18 years old (corporate entities may hold licences via a qualified natural person), being a fit and proper person, satisfying the Commissioner as to ability to exercise effective control, and having completed an approved course or having necessary knowledge and experience (section 22(1)(d) and (2)). The Commissioner may make the grant conditional on completing a course within a period (section 22(3)). Associates must also be fit and proper (section 22(1A)). The application must be on the approved form, accompanied by the prescribed fee, and made at least 28 days before the licence is to take effect (23(1)), or 7 days for a permit (32(1)(c)). Public notice must be given (section 23(3)-(4)), and representations may be made within 14 days (section 23A). The Commissioner may refer the application to the Commission for a hearing (section 24(2)(b)). Once granted, conditions must be complied with (sections 25B, 34A). Display requirements are mandatory: the licence must be displayed conspicuously (section 54), any permit must be displayed (sections 55, 55A), and any liquor restriction order must be displayed (section 56). Notices regarding minors’ entry must be displayed at each entrance to designated areas (section 60). Staff training is critical: section 46A requires that any person selling or serving liquor must have completed an approved course (or be within the first three months of employment while undertaking such a course). The licensee must keep records of course completion and produce them on demand (section 46A(2)). Section 46B prescribes a minimum age for sellers and servers, which will be set by regulation. Operational compliance includes: ensuring the sale and consumption of liquor does not cause undue annoyance or disturbance to neighbours, customers, schools or religious services, and no disorderly conduct occurs (section 46C). Licensees must require violent or disorderly persons to leave (section 62) and must not allow entry outside authorised hours except for exempt persons (section 65). Off-licence holders must ensure liquor is not consumed on the premises unless an on-permit is in force (section 63). On-licence holders must ensure liquor is not taken off premises unless an off-permit is in force (section 64). For internet/telephone/mail order sales, the licence number must be displayed prominently, a prescribed notice must appear on the website, the purchaser’s date of birth must be collected, and delivery must be to an adult (section 46D). The licensee must also comply with record-keeping requirements, which may be prescribed or directed by the Commissioner (section 46A(2), 226(2)(be)). Annual licence fees must be paid by 31 March each year (section 26A(2)), with a 10% additional fee for late payment (section 26A(7)). The licensee must notify the Commissioner of any change in situation within 14 days as specified in writing (section 49). If the licensee will be absent for more than 14 days, notice must be given specifying the details of the person in charge (section 66). Any alteration to the licensed area requires the Commissioner’s approval (section 47). Liquor restriction orders must also be complied with and displayed. Licensees and permit holders must cooperate with authorised officers (section 67) and police (sections 89-92). They have the power to bar persons (section 81) but must follow the form and procedures. If a barring order is issued by police, the licensee may be provided with identifying information (section 81(6)). Finally, if disciplinary proceedings are commenced, the licensee or permit holder must respond within 14 days and may appeal to the Commission. A systematic compliance program should include: training logs for all staff, incident registers for refusals of service and ejections, age verification policies (including accepting only prescribed documents), regular review of conditions, maintenance of required signage, and timely payment of fees and notification of changes. The Commissioner has discretion to waive fees in appropriate circumstances (sections 23(6), 25(3), 26A(8)), which may offer some relief. Regular consultation with the Commissioner’s office and legal advice on fit and proper person assessments is advisable, particularly for applications involving associates with prior criminal or regulatory history.