Amendments to the Liquor Act were assented to on 1 June 2017, and are expected to commence shortly. They will bring some sensible reforms to the liquor licence freeze and Three Strikes provisions. These changes will be welcome news to venue operators, landlords, and financiers alike.
The Three Strikes regime will be amended so that a strike no longer attaches to the bricks and mortar of the premises itself, and strikes instead attach to the licensee or approved manager.
All existing strikes attaching to premises will be revoked, although any remedial action in place as a result of those strikes will continue to operate.
This change does not apply to club premises, where strikes will continue to attach to the club premises.
While this change will be welcome news to licensed businesses, landlords and financiers, it is important to note that a strike incurred by a licensee will still impact on the operation of the licensed premises itself, as the consequences of a strike remain essentially unchanged, including the potential for the licence to be suspended or cancelled for three strikes.
Where a condition is imposed on the licence as the result of a strike, the Authority can specify a period for which the condition is to apply but if no period is specified the condition will remain in force, even after expiration of the strike, until varied or revoked by the Authority.
Obviously a licensed premises operator will have the opportunity to terminate a licensee who has incurred a strike, to avoid the potentially serious consequences of having a three strike licensee. However, if the Authority is satisfied that an operator has adopted a practice of terminating licensees primarily to avoid remedial action being taken with respect to the licence, and there has been no improvement in the management of the premises under new licensees, it can impose conditions on the licence to avoid this practice and to manage or reduce the risk of prescribed offences occurring at the premises.
Because a first strike will no longer be automatically incurred, it will now be able to be appealed. All decisions on strikes will be transferred to the Authority (away from the Secretary) and will be subject to review by the Civil and Administrative Appeals Tribunal.
A licensee/manager will also be able to apply to the Authority for a review of a strike after the strike has been in place for at least 6 months and the Authority can revoke the strike if, during that time no other prescribed offence has occurred and the licensee/manager has:
- complied with any remedial action imposed as a result of the strike; and
- implemented measures, or undertaken a course of training or instruction, to manage or reduce the risks that contributed to the commission of the offence for which the strike was incurred.
The liquor licence freeze has been extended to 1 June 2018, but may be further extended by the Liquor Regulation.
The prohibition on the grant of new licences in freeze precincts will no longer apply to producer/wholesaler licences or on-premises licences (other than public entertainment venues).
Previously it had been possible to apply for a new on-premises licence but it was necessary to satisfy the Authority that the grant of the licence was not likely to result in an increase in the number of people entering the freeze precinct principally to consume alcohol.
This test appeared several times throughout the freeze provisions but will be deleted completely, with the result that any application that was contingent upon meeting this test will no longer be contingent on meeting this test, such as an application for extended trading hours for a special occasion.
The test was considered too subjective and it was having the effect of preventing refurbishments of existing premises as applicants had to counter the argument that making their premises more attractive would result in higher patronage numbers and therefore more people entering the freeze precinct principally to consume alcohol. Instead, the more objective criteria of an increase in patron capacity will be used.
An on-premises or producer/wholesaler licence cannot be removed from outside or, or within, a freeze precinct if the new premises would have a greater patron capacity. As there is no longer any prohibition on the grant of a new producer/wholesaler or on-premises (non-public entertainment venue) licences in freeze precincts, this prohibition on removals is strange.
The power to suspend a licence for a prescribed offence has been moved from the Secretary to the Authority and been made subject to a right of review by the Civil and Administrative Appeals Tribunal.