Part 8Disciplinary action

Part 8—Disciplinary action 118—Application of Part (1) This Part applies to— (a) a person who is or has been licensed or approved under this Act; (b) a person who has sold liquor without a licence; (c) a person who occupies or has occupied a position of authority in a licensed entity or an entity that has sold liquor without a licence; (d) a person who supervises or manages or has supervised or managed a business conducted under a licence or a business in the course of which liquor has been sold without a licence; (da) a person who has sold or supplied liquor on licensed premises; (e) an unlicensed person who has entered into an arrangement contrary to this Act with a licensee; (f) a lessor of licensed premises; (g) a person who has acted contrary to section 110A(1). 119—Cause for disciplinary action (1) There is proper cause for disciplinary action against a person to whom this Part applies— (a) if the person has improperly obtained a licence or approval under this Act; or (b) in relation to a business or activity that is being or has been conducted under a licence— (i) if liquor has been sold or supplied contrary to this Act or without proper authority under this Act; or (ii) if there has been a breach of a condition of the licence; or (iii) if the licensed premises have been altered without the approval of the licensing authority; or (iv) if the licensed premises are or have been in disrepair or in an unsatisfactory condition; or (v) if the safety, health or welfare of persons resorting to the licensed premises is or has been endangered by neglect of the premises or neglect in the conduct, supervision or management of the business or activity; or (vi) if a person has been convicted of unlawful gaming in respect of events occurring (wholly or partly) on the licensed premises; or (via) if a person has acted contrary to a provision of this Act or the Gaming Machines Act 1992 relating to the prevention of a person from entering, or the removal of a person from, licensed premises; or (vii) if a contravention or failure to comply with an industrial award or enterprise agreement has occurred; or (viii) if— (A) in the course of conducting, or being employed or otherwise engaged in, the business or activity a person has acted contrary to this Act or otherwise unlawfully, or negligently; or (B) the business or activity has otherwise not been properly conducted, supervised or managed in accordance with this or any other Act; or (c) if the person is or has been licensed or approved under this Act but is not a fit and proper person; or (d) if the person has acted contrary to— (i) this Act (which may be the basis on which this Part applies to the person); or (ii) a term or condition of a licence; or (iii) an order under this Act; or (iv) an undertaking under section 119A(1)(a); or (e) if the person is or has been licensed or approved under this Act but it would be contrary to the public interest if the person were to be or continue to be licensed or approved. (1a) For the purposes of subsection (1)(c), a trust or corporate entity that is or has been licensed under this Act will be taken not to be a fit and proper person if any person who occupies a position of authority in the trust or corporate entity is not a fit and proper person. (2) In determining whether there is proper cause for disciplinary action against a person who is or has been licensed or approved under this Act, regard may be had to such evidence of the conduct (no matter when the conduct is alleged to have occurred) of the person or persons with whom the person associates (or has associated at any relevant time) as the Court considers relevant, including information that existed at the time the licence or approval was granted, regardless of whether that information was before or could have been brought before the licensing authority at that time. 119A—Commissioner's power to deal with disciplinary matter by consent (1) If the Commissioner is of the opinion that proper grounds for disciplinary action exist, and the person liable to the disciplinary action consents to such a course of action, the Commissioner may determine not to lodge a complaint with the Court and instead— (a) obtain from the person an undertaking directed against continuation or repetition of the relevant conduct; or (b) in the case of a person licensed under this Act— (i) impose a condition on the licence (including a condition that varies the trading hours in respect of the licence fixed or required by or under this Act); and (ii) vary, suspend or revoke a condition of the licence (other than a mandatory condition contemplated by section 42); or (c) in the case of a person licensed or approved under this Act, suspend or revoke the licence or approval. (2) The Commissioner may, in determining whether to exercise a power under this section in relation to a person, take into account any previous action under this section or a previous finding by the Court that there was proper cause for taking disciplinary action against the person. 119B—Disciplinary action before Commissioner for certain matters (1) The Commissioner may hold an inquiry to determine whether there is proper cause for disciplinary action against a prescribed licensee. (2) The Commissioner must give the prescribed licensee at least 21 days' written notice of an inquiry under this section and afford the prescribed licensee a reasonable opportunity to call and give evidence, to examine and cross‑examine witnesses, and to make submissions to the Commissioner. (3) If a party does not attend at the time and place fixed by the Commissioner for the commencement or resumption of proceedings under this section, the Commissioner may proceed to hear and determine the matter in the absence of the party. (4) On giving notice to a prescribed licensee under this section, the Commissioner may, in the same or a subsequent notice, suspend the licence pending determination of the disciplinary proceedings. (5) If, on an inquiry, the Commissioner is satisfied there is proper cause for disciplinary action against a prescribed licensee, the Commissioner may take disciplinary action against the prescribed licensee by doing 1 or more of the following: (a) suspend the licence; (b) impose a condition on the licence (including a condition that varies the trading hours in respect of the licence fixed or required by or under this Act); (c) vary, suspend or revoke a condition of the licence (other than a mandatory condition contemplated by section 42). (6) A person who is dissatisfied with a decision made by the Commissioner under this section may apply to the Court in accordance with section 22 for a review of the Commissioner's decision. (7) No civil liability attaches to the Commissioner or the Crown in respect of the exercise of a power in good faith under this section. (8) In this section— prescribed licensee means a licensee— (a) who has been convicted of or expiated an offence against this Act of a kind prescribed by the regulations; or (b) who— (i) has been convicted of or expiated an offence against this Act (the second offence); and (ii) has been convicted of or expiated at least 1 other offence against this Act within the period of 5 years before the date of commission of the second offence. 120—Disciplinary action before the Court (1) A complaint may be lodged with the Court alleging that proper grounds for disciplinary action exist against a specified person. (1a) The complaint must, subject to section 28A, state the grounds for disciplinary action. (2) A complaint may be lodged— (a) by the Commissioner; or (b) by the Commissioner of Police; or (c) if the subject matter of the complaint is relevant to the responsibilities of the council in whose area the licensed premises are situated—by the council. (3) A complaint may be lodged and disciplinary action taken against a person for conduct that constitutes an offence despite the fact that the person has not been prosecuted for the offence. (4) Notice of a complaint and of the time and place appointed for the hearing of the complaint must be served on the person to whom the complaint relates. 120A—Commissioner's power to suspend or impose conditions pending disciplinary action (a1) The Commissioner may, if of the opinion that it is desirable to do so in the public interest— (a) impose a condition on a licence (including a condition that varies the trading hours in respect of the licence fixed or required by or under this Act); or (b) vary, suspend or revoke a condition of a licence, to which a complaint relates pending hearing and determination of the complaint (including, to avoid doubt, a condition relating to the subject matter of the complaint). (1) The Commissioner may, if of the opinion that it is desirable to do so in the public interest— (a) suspend the approval of a person the subject of a complaint; or (b) impose conditions on the person's approval limiting the authority conferred by the approval (including, to avoid doubt, a condition relating to the subject matter of the complaint), pending hearing and determination of the complaint. (1a) The Commissioner may, despite the fact that a complaint has not been lodged against a person, exercise a power under subsection (a1) or (1) in respect of the person if the Commissioner believes on reasonable grounds that— (a) proper cause for disciplinary action exists against the person; and (b) it is necessary to do so in the public interest; and (c) a complaint will in due course be lodged against the person. (2) If the Commissioner has exercised a power under this section, the Court may revoke or vary the suspension or conditions imposed by the Commissioner. (3) A person who is dissatisfied with a decision made by the Commissioner under this section may apply to the Court for a review of the Commissioner's decision as if he or she were a party to proceedings before the Commissioner. See section 22. (4) Nothing in this section limits the Commissioner's powers under section 128B. (5) No civil liability attaches to the Commissioner or the Crown in respect of the exercise of a power in good faith under this section. 121—Disciplinary action (1) On the hearing of a complaint, the Court may, if it is satisfied on the balance of probabilities that there is proper cause for taking disciplinary action against the person to whom the complaint relates, by an order or orders do one or more of the following: (a) in the case of a person licensed under this Act— (i) impose a condition on the licence (including a condition that varies the trading hours in respect of the licence fixed or required by or under this Act); or (ii) vary, suspend or revoke a condition of the licence (other than a condition under section 42); (b) in the case of a person licensed or approved under this Act, suspend or revoke the licence or approval; (c) in the case of any person— (i) reprimand the person; (ii) impose a fine not exceeding $15 000 on the person; (iii) disqualify the person from being licensed or approved under this Act. (2) The Court may— (a) direct that a disqualification is to apply permanently; (b) direct that a suspension or disqualification is to apply— (i) for a specified period; or (ii) until the fulfilment of stipulated conditions; or (iii) until further order; (c) direct that an order is to have effect at a specified future time or is to have effect at a specified future time unless stipulated conditions are fulfilled; (d) vary an order imposing a suspension or disqualification. (a) a person has been found guilty of an offence; and (b) the circumstances of the offence form, in whole or in part, the subject matter of the complaint, the person is not liable to a fine under this section for conduct giving rise to the offence. (4) If a licensee is convicted of a prescribed offence and a complaint is lodged on the ground of the breach of duty leading to the conviction, the Court must— (a) take disciplinary action against the licensee; and (b) if the conviction follows a previous conviction for a prescribed offence of a similar kind or previous disciplinary action for an incident involving the commission of a prescribed offence of a similar kind—suspend or revoke the licence unless the licensee shows cause why that action should not be taken. (4a) If— (a) the Court finds that there is proper cause for taking disciplinary action against a licensee for an incident involving the commission of an offence against this Act on licensed premises during the hours between 4 am and 7 am on any day; and (b) the finding follows a conviction of the licensee for such an offence committed within the previous 2 years or previous disciplinary action for an incident involving the commission of such an offence within the previous 2 years, the Court must alter the conditions of the licence so that the licence no longer authorises trade during the hours between 4 am and 7 am on any day unless the licensee shows cause why that action should not be taken. (5) A condition may be imposed under this section— (a) limiting the kinds of liquor that may be sold under the licence; (b) limiting the times when liquor, or liquor of a particular kind, may be sold under the licence; (c) limiting in some other way the authority conferred by the licence. (6) An order imposing a fine may be registered in the Magistrates Court or the District Court and enforced as an order of the court in which it is registered. (7) In this section— prescribed offence means— (a) an offence involving the unlawful sale or supply of liquor to a minor; or (b) an offence involving the unlawful sale or supply of liquor to an intoxicated person; or (c) an offence involving trafficking in a controlled drug (within the meaning of the Controlled Substances Act 1984) in respect of events occurring (wholly or partly) on the licensed premises; or (d) an offence of a kind prescribed by the regulations.