Guidelines for issuing and administration of liquor licences – 4-6 | Department of Infrastructure, Transport, Regional Development, Communications and the Arts

4. Variation of Licences

4.1 By the licensee

A request by a licensee to vary the conditions of a current licence is treated in the same way as an application for a new licence. The effect of this is that a licensee must apply on the approved form, which can be obtained from the forms section of this page, or by request from:

General Manager
Airports Branch
Department of Infrastructure and Transport
GPO Box 594
Canberra ACT 2601

Ph: 02 6136 7111
email: regulation@infrastructure.gov.au

Approval of a variation should only be given where the applicant can demonstrate that the variation will not:

Be detrimental to the amenity of the airport, or any part of the airport, on which the premises are situated

The applicant will need to show that the proposed variation will not interrupt the normal business of the airport or make it difficult for passengers to reach their flights or disembark from aeroplanes. The applicant should also be able to prove that variation will not make the environment in or around the site of the business unpleasant for those in the vicinity who are not using the facility.

Whether there is a demonstrated need for the activity proposed under the licence

The applicant needs to show that the variation will enable the applicant to provide a facility for the travelling public or meet a particular need at a particular point in time.

Whether the variation to the licence would be likely to lead to the misuse or abuse of alcohol

The applicant should describe the manner of operation of the business or function that will be conducted if the variation is granted.

If the applicant is not the airport-lessee company for the airport on which the premises is situated—the views of the airport-lessee company

A letter from the airport lessee, supporting the variation should be included with the application for variation of a general or function licence. The letter need not be in any particular form, but should be on the airport-lessee company's letterhead and signed by an authorised officer of that company.

Other Factors

The views of any other person consulted about the application by the Secretary

Any other matter which the Secretary reasonably thinks should be considered

4.2 By the Secretary

The Secretary may, at any time, vary the conditions of a licence (including the location and limits of a licensed premises). Such a decision should only be recommended after a premises inspection has been made, or a potential breach of licence conditions has been investigated, the results of which indicate this to be the appropriate action.

A decision by the Secretary to vary a licence is a reviewable decision. The Secretary must be able to explain the reasons for the variation to the applicant and, if necessary, to the Administrative Appeals Tribunal. The reasons for making the variation must be put in writing and kept with the application.

Where a licence variation is recommended, the reasons for making the variation must also be set out in full in the submission to the Secretary recommending the variation of the licence.

5. Surrender, Suspension and Cancellation of Licences

5.1 Surrender

A licence can be surrendered at any time. The licensee must give notice to the Secretary in the case of general and function licences. A sub-licensee of a passenger terminal licence holder must notify the licence holder as well as the Secretary.

The licence itself must be returned to the Secretary.

5.2 Suspension and cancellation

The Secretary has the power to suspend or cancel a liquor licence in the following circumstances:

where the licensee has contravened, or permitted a contravention of the Regulations or the licence conditions;
where the licensee is not a “fit and proper person” to act as a licensee in relation to the licensed premises;
where the continuation of activities permitted under the licence would be detrimental to the amenity of the airport, or any part of the airport, on which the premises is situated;
the activities permitted under the licence are likely to encourage the misuse or abuse of alcohol;
there is no nominee in respect of the licence; or
the licensee has ceased to carry out activities under the licence.

The act of suspending or cancelling a licence is a very serious one. It is the ultimate form of sanction that the Secretary has for regulating the sale and control of liquor on airport sites. It is a serious act because it has the capacity to destroy the business of the licensee and affect the lives of the people who work in the premises and the families who depend on their income.

Therefore any recommendation to suspend or cancel a licence is to be made only after a careful examination of all the circumstances. For example, a contravention of a Regulation or a licence condition may be considered minor or accidental. In such circumstances, a warning of the consequences of continued contravention and a recommendation to the licensee that the matter be rectified may be appropriate. This can then be followed up with an inspection to ensure that rectification has occurred.

If rectification has not occurred, the next step will be to ask the licensee to explain why the licence should not be suspended or cancelled. This is called a “show cause” letter.

5.3 The “show cause” procedure

When requesting a licensee to show cause why a licence should not be cancelled, a letter must first be sent to the licensee, specifying the day, time and place when and where cause may be shown. The letter must be sent by registered mail to the licensee.

The licensee is then heard on the matter. There are no rules for the way the hearing should take place, except that there should be at least two officers from the Department present, one of whom should take notes of the meeting. There are no limits on the information that a licensee may submit to support his or her case why the licence should not be cancelled.

The hearing should be informal and it should also be completely confidential. The only circumstances in which the results of the hearing should be communicated to a person other than the Secretary is where the Department obtains information which raises a reasonable suspicion in an officer's mind, that an unlawful activity is taking place on the premises. In those circumstances the officer should raise his or her concerns with his or her supervisor. If the supervisor agrees that the issue warrants further investigation, the matter should be referred to the General Manager, Airports Branch.

Whether or not sufficient cause has been shown will depend on the circumstances of the case. The reasons for the decision must be fully explained in writing. If the decision is to recommend to the Secretary that the licence be cancelled or suspended, the recommendation must be able to provide evidence to show why there are reasons to believe that:

the licensee has contravened, or permitted a contravention of the Regulations or the licence conditions; or
the licensee is not a “fit and proper” person to act as a licensee in relation to the licensed premises; or
the continuation of activities permitted under the licence would be detrimental to the amenity of the airport, or any part of the airport, on which the premises is situated; or
the activities permitted under the licence are likely to encourage the misuse or abuse of alcohol; or
there is no nominee in respect of the licence; or
the licensee has ceased to carry out activities under the licence.

It is not enough for an officer to have a suspicion that one of the above conditions has been met. Where there is insufficient evidence to support a conclusion that one of the above activities has taken place, a warning should be given to the licensee.

Where evidence is available and an appropriate recommendation has been made to the Secretary, who is then satisfied that sufficient cause has not been shown why the licence should not be suspended or cancelled, the licence may be suspended or cancelled by order of the Secretary.

An order suspending a licence can either be made for a specific period or until the Secretary gives notice to the licensee that the suspension has ended. It should take effect 14 days from the making of the order.

An order cancelling a licence should also take effect 14 days after it is issued.

A decision to suspend or cancel a licence is reviewable. The Secretary must be able to explain the reasons for the decision to the applicant and, if necessary, to the Administrative Appeals Tribunal. The reasons for making the decision must be put in writing and kept with the show cause letter, the transcript of the show cause meeting and the evidence on which the decision is based.

Where a licence suspension or cancellation is recommended, the reasons for making the variation must also be set out in full in the submission to the Secretary recommending the suspension or cancellation.

6. Guidelines for Appointment of Nominees

6.1 Introduction

A licensee doesn"t have to be responsible for the day to day operation of the licensed premises but can nominate a person (or persons in the case of a passenger terminal licence) to operate it. If the licensee decides to do this, an alternative nominee must also be named who can operate the business when the principal nominee cannot. Both the nominee and the alternative nominee must be over 18 years of age.

The nominees are responsible for ensuring that liquor is sold or supplied only in accordance with the licence and the licence conditions. The nominees must obey the Regulations just as if they were the licensee and are liable for an offence in the same manner. Both the licensee and the nominees can be punished for a contravention by the nominees.

6.2 Approval of a nominee

The Application for a Liquor Licence makes provision for a prospective licensee to nominate both a principal and an alternative nominee. The application for approval of a nominee and alternative nominee must be made at the same time that the licence is applied for.

The matters that the Secretary must take into account when considering whether or not to approve a nominee are broadly the same as those he considers when examining the application for the licence itself.

Just as in the case of the licence application itself, the Secretary has 30 days after receiving the Application to obtain additional information about the nominees, if it is needed. The same time limitations apply to nominee approvals so it is important to make sure that if more information is needed about potential nominees, a letter requesting that information goes out as soon as possible after the application is received.

The decision whether or not to approve a nominee or alternative nominee will depend on consideration by the Secretary of the following matters:

Whether the nominee and alternative nominee are fit and proper persons to act in those positions

A person will be deemed a fit and proper person provided that person:

has had no substantial convictions under any Liquor Act of any State or Territory; and
is of good repute and does not have a history of behaviour that would render the person unsuitable to operate a licensed premises. This will be determined by a police report.

Whether the nominee and the alternative nominee are reasonably able to discharge the responsibilities of the licensee under the licence

This requirement will be fulfilled where the nominees can demonstrate a knowledge and understanding of the obligations of serving alcohol to the public. The Secretary can ensure this by placing a condition on the approval that both nominees attend and complete a Responsible Service of Alcohol training course.

The views of any other person consulted about the nomination by the Secretary

Any other matter the Secretary thinks fit

6.3 Duration of approval

Once accepted by the Secretary, an approval of a nominee remains in force until any of the following events occur:

the Secretary suspends or withdraws approval because the nominee has demonstrated that he or she is not fit to act as a nominee; or
the nominee resigns by giving notice in writing to the licensee and the Secretary; or
a new nominee is nominated.

Alternative nominee

The alternative nominee will act as nominee when the principal nominee is absent from the premises for more than 28 days.

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