Part 6Conduct of licensed business

Part 6—Conduct of licensed business Division 1—Supervision and management 97—Supervision and management of licensee's business (1) The business conducted under a licence— (a) must, at all times when the licensed premises are open to the public, be personally supervised and managed by a natural person (a responsible person) who is— (i) the licensee or a director of the licensee and qualified for the purpose in accordance with subsection (1a); or (ii) a person approved by the licensing authority as a responsible person for the purposes of this section; or (b) must be supervised and managed in accordance with arrangements approved by the licensing authority under subsection (2). (1a) The licensee or a director of the licensee is qualified for supervising and managing the business conducted under a licence if— (a) the licensee has satisfied the licensing authority that the licensee or the director (as the case may be) is a fit and proper person for the purpose; or (b) the licence has been made subject to a condition that the licensee or the director (as the case may be) undertake specified accredited training within a specified time and the specified time has not elapsed or the condition has been satisfied. (2) If the licensing authority is satisfied on the application of the licensee that, in view of the limited scope of a business conducted under a licence, an exemption from the requirements of subsection (1)(a) may be granted without compromising the principle of responsible service and consumption of liquor, the licensing authority may approve alternative arrangements for the supervision and management of the business. (4) If at any time the business conducted under a licence is not supervised and managed as required under subsection (1), the licensee is guilty of an offence. Maximum penalty: $20 000. (5) A responsible person for licensed premises must, while acting as such on the licensed premises, wear identification in a form and manner approved by the Commissioner. 97A—Direction to complete training—responsible persons (1) The Commissioner may direct a designated person to undertake specified accredited training within a period specified in the direction. (2) A person who fails to comply with a direction under this section is guilty of an offence. (3) If a direction under this section applies to a responsible person or a person who sells, offers for sale or serves liquor on licensed premises, the licensee in respect of the premises must ensure that the person complies with the direction. designated person means— (a) a licensee; or (b) a responsible person; or (c) a person who sells, offers for sale or serves liquor on licensed premises. 98—Approval of assumption of positions of authority in corporate or trust structures (1) A person must not assume a position of authority in a trust or corporate entity that holds a licence (other than a short term licence or club licence) without the approval of the licensing authority. (2) A person who contravenes subsection (1) is guilty of an offence. Division 2—Profit sharing 99—Prohibition of profit sharing (1) Subject to this Act, if a licensee— (a) enters into partnership with an unlicensed person in relation to the business carried on under the licence; or (b) enters into any agreement or arrangement under which an unlicensed person may participate in the proceeds of the business carried on under the licence (but this paragraph does not prevent the members of a licensed club from benefiting as members of the club from the proceeds of the business conducted under the licence); or (c) remunerates an unlicensed person by reference to the proceeds or profits obtained from the business carried on under the licence or by reference to the quantity of liquor sold; or (d) permits an unlicensed person (not being a person approved by the licensing authority) to conduct, superintend or manage the business carried on at licensed premises under the licence; or (e) permits an unlicensed person to exercise control or substantial influence, without authorisation or approval under this Act, over the business conducted under the licence; or (f) permits an unlicensed person to hold himself or herself out to the public as the licensee, the licensee and the unlicensed person are each guilty of an offence. (2) The Commissioner may, on application by an interested person, approve an agreement or arrangement if— (a) the agreement or arrangement— (i) is likely to assist the liquor industry and industries with which it is closely associated—such as tourism and the hospitality industry; or (ii) is otherwise in the public interest, or there is some other good reason for approving the agreement or arrangement; and (b) the agreement or arrangement does not adversely affect the rights and reasonable expectations of persons presently in employment. (3) If an agreement or arrangement approved under subsection (2) provides for a trust or corporate entity to conduct, superintend or manage the business conducted under a licence, that business must nevertheless be conducted under the personal supervision and management of a natural person approved by the licensing authority. (4) The Commissioner may, on application by the holder of a licence authorising the sale of liquor by wholesale, approve an agreement or arrangement between that holder and an unlicensed agent under which the agent is to be remunerated by reference to the quantity of wholesale sales of liquor made by the agent. (5) The Commissioner must not approve an agreement or arrangement under subsection (4) unless satisfied— (a) that the agent is a fit and proper person to act as an agent of the licensee; and (b) that the nature and scale of the business to be conducted by the agent under the proposed agreement or arrangement is not such that, taken alone or in conjunction with the business conducted under all other similar agencies held by the agent with other holders of licenses authorising the wholesale sale of liquor, the agent should properly hold an appropriate licence under this Act in relation to that business. (6) Subsection (1) does not apply to— (a) an agreement or arrangement approved under subsection (2) or (4) or any other provision of this Act, or anything done under any such approved agreement or arrangement; or (b) any contractual provision for the remuneration of an employee of a licensee (other than a provision that confers on the employee a right to a share of the profits of the business conducted under the licence or provides that the remuneration of the employee is to vary by reference to the quantity of liquor sold); or (c) an agreement or arrangement providing for the disbursement of profits or proceeds to a person in a position of authority in a trust or corporate entity that holds the licence or to a shareholder or beneficiary approved by the licensing authority as being a fit and proper person. (7) For the purposes of subsection (2)— interested person includes an association formed to protect or further the interests of— (a) the liquor industry or a particular section of the liquor industry; or (b) employees in the liquor industry or a particular section of the liquor industry. Division 3—Supply of liquor to residents on licensed premises 100—Supply of liquor to residents on licensed premises (1) The following conditions must be observed in relation to liquor supplied under a licence authorising the sale of liquor to residents on licensed premises: (a) if the liquor is supplied to a resident on licensed premises for consumption on the licensed premises and the licence does not (when the liquor is supplied) authorise the sale of liquor to the public for consumption on the licensed premises— (i) the liquor must be consumed by the resident personally or by a guest of the resident in the presence of the resident and at the resident's expense; (ii) there must be no more than 6 adult guests of the resident present at the time the liquor is consumed; (iii) liquor must not be supplied to, or consumed by, a minor; (b) if the liquor is supplied to a resident on licensed premises for consumption off the licensed premises and the licence does not authorise the sale of liquor to the public for consumption off the licensed premises—the liquor may only be supplied in quantities likely to be consumed by the resident and guests on the day on which it is supplied. (2) If any of the conditions prescribed by subsection (1) is contravened, the licensee and the resident on licensed premises are each guilty of an offence. (a) in the case of the licensee— (i) for a first offence—$10 000; (ii) for a second or subsequent offence—$20 000; (b) in the case of a resident on licensed premises—$2 500. Expiation fee: for an offence of contravening conditions prescribed by subsection (1)(a)— (a) in the case of the licensee—$1 200; (b) in the case of a resident on licensed premises—$210. 101—Record of residents on licensed premises (1) A licensee who holds a licence that authorises the sale of liquor to residents on licensed premises must keep a record of all residents to be provided with accommodation at the licensed premises. (2) The record— (a) must be kept in writing or electronically; and (b) must contain the name and address of the resident; and (c) must include any other prescribed information. (3) A person who fails to keep a record as required by this section is guilty of an offence. Division 4—Removal and consumption of liquor 102—Restriction on taking liquor from licensed premises (1) Subject to this Division— (a) if a licensee is not authorised under the licence to sell liquor for consumption off the licensed premises, a person who takes liquor away from the licensed premises is guilty of an offence; (b) if a licensee is authorised under the licence to sell liquor for consumption off the licensed premises during certain authorised trading hours, a person who takes liquor away from the licensed premises more than 30 minutes after the relevant trading hours is guilty of an offence. (2) This section does not prevent the removal of liquor won as a prize. 103—Restriction on consumption of liquor in, and taking liquor from, licensed premises (1) Subject to this Division, if at a particular time a licensee is not entitled under the licence to sell liquor to a particular person, that person is not then entitled— (a) to purchase or consume liquor on the licensed premises; or (b) to be in possession of liquor on the licensed premises; or (c) to take liquor from the licensed premises, and a person who does so is guilty of an offence. (2) A person who is on licensed premises for the purpose of purchasing or consuming liquor contrary to subsection (1)(a) is guilty of an offence. (3) In any proceedings for an offence against subsection (2) in which it is proved that the defendant was on licensed premises when not entitled to purchase or consume liquor, it will be presumed, in the absence of proof to the contrary, that the person was there for the purpose of purchasing or consuming liquor in contravention of subsection (1)(a). (4) A licensee who permits a person to act in contravention of this section is guilty of an offence. (5) No offence is committed by a person under this section— (a) because the person, within 15 minutes of the conclusion of the relevant authorised trading hours— (i) consumes; or (ii) has possession of, liquor lawfully sold by the licensee for consumption on the licensed premises; or (b) because the person, within 30 minutes of the conclusion of the relevant authorised trading hours— (i) has possession of; or (ii) takes from licensed premises, liquor lawfully sold by the licensee for consumption off the licensed premises. (6) No offence is committed under this section— (a) because of the consumption of liquor on licensed premises— (i) by a resident on licensed premises; or (ii) by— (A) a licensee or a member of the licensee's family; or (B) a responsible person for the licensed premises or a member of a responsible person's family, who is residing on the licensed premises; or (iii) by a guest of a person referred to in subparagraph (i) or (ii), if the liquor was supplied in the presence, and at the expense, of that person; or (iv) by a non-resident licensee; or (v) by an employee of the licensee; or (b) because of the taking of liquor from licensed premises— (i) by a resident on licensed premises; or (ii) by— (A) a licensee or a member of the licensee's family; or (B) a responsible person for the licensed premises or a member of a responsible person's family, who is residing on the licensed premises. 104—Liquor may be brought onto, and removed from, licensed premises in certain cases If a licence authorises the consumption of liquor (or the sale and consumption of liquor) on the licensed premises with or ancillary to a meal provided by the licensee, then, despite any other provision of this Act, it is lawful for a person— (a) to bring liquor onto the licensed premises, with the consent of the licensee, intending that it be consumed with or ancillary to a meal provided by the licensee on the licensed premises and later to take from the licensed premises the unconsumed portion of liquor so brought onto the licensed premises in the container in which it was brought onto the licensed premises; or (b) if a bottle of wine has been purchased on the licensed premises by the person intending that the wine be consumed with or ancillary to a meal provided by the licensee on the licensed premises, to take from the licensed premises the unconsumed portion of wine so purchased in the bottle in which it was purchased. Division 5—Regulation of prescribed entertainment 105—Prescribed entertainment on licensed premises (2) A licensee must not use any part of licensed premises for the purpose of providing prescribed entertainment except in accordance with the consent of the licensing authority. (a) for a first offence—$10 000; (b) for a second or subsequent offence—$20 000. (3) The licensing authority may only grant its consent under this section if satisfied that— (a) the giving of the consent is consistent with the objects of this Act; and (b) the prescribed entertainment is unlikely to give undue offence to people who reside, work or worship in the vicinity of the premises. (4) The consent of the licensing authority under this section— (a) may be conditional or unconditional; and (b) may be varied or revoked by the licensing authority. (5) For the purposes of this section, a reference to licensed premises will be taken to include a reference to any area adjacent to the licensed premises that is under the control of the licensee for the licensed premises. prescribed entertainment means— (a) entertainment of a sexually explicit nature; or (b) a professional or public boxing or martial art event within the meaning of the Boxing and Martial Arts Act 2000; or (c) any other entertainment of a kind prescribed by the regulations for the purposes of this definition, but does not include entertainment of a kind excluded by the regulations from the ambit of this definition. Division 6—Noise 106—Complaint about noise etc emanating from licensed premises (a) an activity on, or the noise emanating from, licensed premises; or (b) the behaviour of persons making their way to or from licensed premises, is unduly offensive, annoying, disturbing or inconvenient to a person who resides, works or worships in the vicinity of the licensed premises, a complaint may be lodged with the Commissioner under this section. (2) A complaint under this section may be lodged by— (a) the Commissioner of Police; or (b) the council for the area in which the licensed premises are situated; or (c) a person claiming to be adversely affected by the subject matter of the complaint. (3) A complaint cannot be made under subsection (2)(c) unless— (a) the complainant is authorised to make the complaint by at least 10 persons who reside, work or worship in the vicinity of the licensed premises; or (b) the Commissioner is satisfied that the nature or gravity of the complaint is such that it should be admitted despite non-compliance with paragraph (a). (3a) If a complaint is lodged with the Commissioner under this section— (a) the Commissioner must cause a copy of the complaint to be served on the licensee of the licensed premises to which the complaint relates no later than 7 days after its lodgement; and (b) no conciliation meeting or other hearing may be held on the complaint until the period of 14 days has elapsed from the day of that service. (4) Unless either party to the proceedings on a complaint requests that the matter proceed direct to a hearing and the Commissioner is of the opinion that good reason exists for concurring with the request, the Commissioner must endeavour to resolve the subject matter of the complaint by conciliation and— (a) the Commissioner may, before or during the course of the conciliation proceedings, make an interim order about the subject matter of the complaint; and (b) if the matter is settled by conciliation, the Commissioner may make a final order against the licensee reflecting the terms of the settlement, (and the terms of an interim or final order under this subsection become conditions of the licence). (5) If the subject matter of the complaint is not to be conciliated, or is not resolved by conciliation, as the case may be— (a) if the parties to the proceedings request the Commissioner to do so—the Commissioner must determine the matter; and (b) in any other case—the Commissioner must refer the matter for hearing and determination by the Court. (6) In hearing and determining a complaint under this section, the Commissioner or the Court, as the case may be— (a) must give the complainant, the licensee and any other person whom the Commissioner or the Court thinks fit to hear an opportunity to be heard; and (b) must take into account— (i) the relevant history of the licensed premises in relation to other premises in the vicinity and, in particular, the period of time over which the activity, noise or behaviour complained about has been occurring and any significant change at any relevant time in the level or frequency at which it has occurred; and (ii) the unreasonableness or otherwise of the activity, noise or behaviour complained about; and (iii) the trading hours and character of the business carried out by the licensee on the licensed premises; and (iv) the desired future character of the locality in which the licensed premises are situated as stated in any relevant provision of the Planning and Design Code under the Planning, Development and Infrastructure Act 2016; and (v) whether or not any environment protection policy made under Part 5 of the Environment Protection Act 1993, or guidelines published by the Environment Protection Authority established under that Act, applicable to the provision of live music on the licensed premises have been complied with; and (vi) any other matter that the Commissioner or the Court considers relevant. (6a) On completing the hearing of the complaint the Commissioner or the Court, as the case may be, may— (a) dismiss the complaint; or (b) make an order against the licensee resolving the subject matter of the complaint. (7) The order may add to or vary the conditions of the licence. (8) If a proposal for settlement of the subject matter of the complaint is made in the course of proceedings before the Commissioner, evidence of the proposal is inadmissible in proceedings before the Court. (9) An interim order of the Commissioner under this section continues in force until the making of a final order on the complaint by the Commissioner or the Court, or earlier revocation of the interim order by the Commissioner or the Court. Division 7—Employment of minors 107—Minors not to be employed to serve liquor in licensed premises (1) If a minor is employed to sell, supply or serve liquor on licensed premises, the licensee is guilty of an offence. (2) However, this section does not prevent the employment of a minor to sell, supply or serve liquor on licensed premises if— (a) the minor is of or above the age of 16 years, a child of the licensee or a responsible person for the licensed premises and resident on the premises; or (b) — (i) the minor is of or above the age of 16 years and a child of the licensee or a responsible person for the licensed premises; and (ii) the licensing authority, on application, approves the employment of the minor for that purpose.