Guidelines for issuing and administration of liquor licences – 7-9 | Department of Infrastructure, Transport, Regional Development, Communications and the Arts

7. Guidelines for Holders of Passenger Terminal Licences

7.1 Introduction

Underlying the Commonwealth's decision to regulate the sale and supply of liquor in leased Federal Airports in New South Wales, is the fundamental concept that landlords at Sydney (Kingsford-Smith) Airport will be issued with passenger terminal licences. At the present time, the landlords at the Airport are:

Sydney Airport Corporation Limited at the international terminal building, the domestic express terminal and Terminal 2; and
Qantas at its domestic terminal building.

The grant of a passenger terminal licence enables these entities to sell and supply liquor in their own right. It also enables the landlords to sub-licence terminal liquor concessions.

It is considered appropriate for the landlords to control the sale and supply of liquor in these circumstances. They have the commercial and operational responsibility for the terminals and are best placed to ensure that alcohol is sold and supplied in a manner consistent with the Commonwealth's overall policies regarding the responsible service of alcohol.

It is also assumed that landlords will not wish to see the amenity of their premises affected by irresponsible supply of alcohol and will therefore take appropriate steps to self-regulate this aspect of business on terminal premises.

It is pointed out, however, that the Commonwealth will inspect premises to ensure that the spirit, as well as the letter of the Regulations is being adhered to. Breaches of the Regulations will be viewed seriously, and it is not impossible that a landlord could face suspension or cancellation of its passenger terminal licence.

7.2 Issuing of sub-licences

Licensees who have the capacity to issue sub-licences for the sale and service of alcohol are expected to issue those sub-licences subject to similar considerations that were taken into account when the Commonwealth issued the passenger terminal licence. They should also be consistent with the Airports (Control of On-Airport Activities) Regulations 1997. The licence document must be prominently displayed on the concession premises.

Trading hours for a sub-licence are limited by the trading hours specified under the passenger terminal licence.

The sub-licensee will need to have a nominee if a person other than the sub-licensee is to operate the concession.

The Airports Act 1996 makes no provision for levying fees in relation to liquor licensing. The Commonwealth does not charge a fee for passenger terminal licences, nor should the holders of these licences charge fees for issuing or transferring sub-licences to their liquor concession operators. The Regulations provide for a very simple mechanism for the transfer of existing licences and sub-licences. There is no justification, in the Commonwealth's opinion, for charging fees based on an argument of administrative cost recovery.

7.3 Inspections of sub-licenced premises

Licensees have an express power under Regulation 4CL to inspect a concession to determine whether the terms of the sub-licence are being adhered to. It is expected, however, that an authorised officer of the licensee would identify him/herself, when entering the premises concerned and that the inspection process will be carried out in accordance with the conditions set out in the Regulation.

7.4 Responsible service of alcohol

A licensee must take all reasonable steps to ensure that activities that encourage the misuse of alcohol (such as promotions and discounting, for example two drinks for the price of one) do not occur within terminal buildings or any other airport site where alcohol is sold or served.

A licensee should maintain a register that lists all sub-licensees, the location of their premises and includes a copy of the certificate of satisfactory completion of the Responsible Service of Alcohol course by the sub-licensee and any nominees. The register is to be made available for inspection upon request by a duly authorised officer of the Commonwealth Department of Infrastructure and Regional Development and in any event is to be produced to the Secretary as part of the Annual Review process.

Licensees should develop house policies on harm minimisation and responsible service of alcohol and ensure that all sub-licensees adopt them. These policies should be kept up to date and produced to the Secretary as part of the Annual Review process.

7.5 Duties of sub-licensees

A sub-licensee and its nominee should at all times be a fit and proper person to hold a sub-licence to sell or supply liquor at a passenger terminal. A sub-licensee should be able to show this to the licensee, by providing evidence that it has adopted the licensee's in-house policies for the responsible service of alcohol. The sub-licensee should also be able to provide evidence that the sub-licensee or nominee has been cleared by the Australian Federal Police after passing its probity test, and provide a certificate of satisfactory completion of the Responsible Service of Alcohol course by the sub-licensee and any nominees.

Where the sub-licensee is a company, the directors of the company should also have been cleared by the Australian Federal Police after passing its probity tests.

Sub-licensees should ensure that their employees, contractors and agents comply with all of the requirements placed on them by the licensee. Failure to do so will result in a prima facie entitlement on the part of the licensee to cancel the sub-licence.

7.6 Surrender, suspension and cancellation of a sub-licence

Surrender

A sub-licence can be surrendered at any time. A sub-licensee must notify the licensee and the Secretary of the Department of Infrastructure and Regional Development. The sub-licence should be surrendered to the licensee.

Suspension and cancellation of sub-licences

A licensee is not constrained by the principles of administrative law, as the Secretary of the Department of Infrastructure and Regional Development is, to make decisions in a fair, reasonable and transparent manner and to review those decisions when requested by persons who are affected by them.

However, it is expected that sub-licensees of holders of passenger terminal licences will be accorded similar rights and consideration as is extended to the licensee itself.

There are no special powers given to licensees when it comes to the suspension or cancellation of licenses. For example, it may be appropriate that a breach of the conditions of the lease or license under which the concessionaire operates may give rise to considerations whether to suspend or cancel the sub-licence for the sale or supply of alcohol.

These considerations are open to contractual negotiation between the parties. However any dispute relating to liquor licences can be referred to the Secretary of the Department of Infrastructure and Regional Development under Regulation 4CM for resolution.
Reference to the Secretary is not compulsory, and parties who prefer to resolve their disputes through normal civil litigation or by commercial dispute resolution are free to do so. The advantage of asking the Secretary to mediate on the matter is that it is free of the costs that are generally incurred in seeking resolution of a matter through the Courts or by a commercial arbitrator. Another advantage is that the Secretary's decision is reviewable by the Administrative Appeals Tribunal.

Other circumstances that the licensee will need to consider include those also applicable to the retention of its own licence:

where the sub-licensee has contravened, or permitted a contravention of the Regulations or the licence or sub-licence conditions;
where the sub-licensee is not a “fit and proper person” to act as a sub-licensee in relation to the sub-licensed premises;
where the continuation of activities permitted under the licence or sub-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 or sub-licence are likely to encourage the misuse or abuse of alcohol;
there is no nominee in respect of the sub-licence; or
the nominee has ceased to carry out activities under the sub-licence.

Licensees may wish to put in place a procedure or policy dealing with the issue of suspension and cancellation of sub-licences. This should be done with the assistance of a legal adviser to ensure that the position of the licensee is protected against claims for wrongful suspension or cancellation. For guidance on the Commonwealth's standards, see section 1.7.2 of the Guidelines.

7.7 Appointment of a nominee

Just as the holder of a passenger terminal licence can nominate a person to be responsible for the day to day operation of the licensed premises, a sub-licensee should ensure that, if it does not propose to manage the facility directly, a nominee is appointed with whom the licensee can deal directly. That person must be over 18 years of age.

The nominees are responsible for ensuring that liquor is sold or supplied only in accordance with the sub-licence conditions. The nominees must also comply with the Regulations. A licensee is entitled to ensure that this person is suitable to undertake this role, by requesting information about him or her.

This information can be obtained in the following forms:

a letter to the applicant sub-licensee asking for more information about the nomination; or
a police probity check; or
a statutory declaration by the applicant as to the accuracy of the information given.

The licensee is entitled to approve or refuse the nomination at the same time as the decision is made about the application for the sub-licence itself. The matters that the licensee could take into account include:

Whether the nominee is a fit and proper person to act in the position

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 is reasonably able to discharge the responsibilities of the sub-licensee under the sub-licence

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

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

Any other matter the licensee thinks fit

7.8 Duration of approval

Once accepted by the licensee, an approval of a nominee remains in force until removed by the licensee.

It might be removed in any of the following circumstances:

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 sub-licensee and the licensee; or
a new nominee is nominated.

Alternative nominee

An alternative nominee should be appointed where the nominee is not available for an extended period of time.

7.9 Effect of the cancellation, suspension or surrender of a passenger terminal licence

The Secretary has the power to cancel or suspend a passenger terminal licence. If this happens all the sub-licences issued under that licence are automatically converted to general licences. The general licences are deemed to contain the same conditions as the original sub-licence. The intention is that all concessions within a passenger terminal that were licenced by the passenger terminal licence holder to serve alcohol will be able to continue trading, under direct Commonwealth supervision and control until the Secretary lifts the suspension or a new passenger terminal licence holder is appointed.

A sub-licensee can apply for the conversion of a sub-licence to a general licence, where a passenger terminal licence is surrendered within 60 days from the date of the surrender. In those circumstances, the conditions of the original sub-licence will continue to apply until the decision regarding the application for a general licence is finally determined.

7.10 Commonwealth's overview of the sub-licensing process

The Secretary maintains an overview of the sub-licensing process, reflecting the special trading needs at the Airport, but does not take any role in, or set out criteria for, the application for a sub-licence, its issuing, its terms or the relationship between the licensee and the sub-licensees, unless requested under Regulation 4CM.

The Secretary's role is to:

issue guidelines for the administration of sub-licences;
monitor compliance by requiring an Annual Compliance Return from each head licensee;
suspend or cancel a sub-licence where a sub-licensee is not conducting its business in a manner consistent with the conditions of the head licence and the head licensee will not take steps to resolve the matter.

The Secretary's decisions in relation to these matters are binding on the parties, but subject to review by the Administrative Appeals Tribunal.

8. Annual Compliance Return

All holders of licences are required to submit an Annual Return that sets out the actions taken, decisions made and the results of those actions and decisions by the head licensee, while administering the sub-licensing regime.

The annual compliance return should include the following:

A list of sub-licences in force for the whole or part of the year, including sub-licences suspended or cancelled during the year. (not required for General Licences)
A list of the names of nominees for sub-licences having nominees. (not required for General Licences)
For a licensee that is a corporation — a list of the persons who are, at the time of giving the return, directors of the corporation.
Details of any offences under this Part committed by the licensee, sub-licensees, or nominees, during the year, together with details of the steps (if any) taken by licensees or sub-licensees to prevent the recurrence of such offences and the extent to which the steps taken were effective.

This Return should not refer to the individual sub-licensees who were involved in these matters. The Secretary's concern is not to identify the sub-licensees against whom action was or was not taken, but to ensure that in light of the freedom given to passenger terminal licensees to control liquor activities within the terminals that they are doing so in a manner that is consistent with the objects of the Regulations.

If the Secretary considers that the head licensee has acted in deliberate breach of the objects of the Regulations or has deliberately failed to comply with the conditions on which the licence was issued, such as allowing a sub-licensee to trade in a manner inconsistent with the responsible service of alcohol, the Secretary will consider suspending or cancelling the licence.

9. Forms

Privacy Notice (APP5)

Liquor Licence Application

The Department of Infrastructure and Regional Development is collecting personal information in the forms below and in any supporting documentation for the purposes of applying for a liquor licence at federally leased airports in NSW which is authorised under the Airports (Control of On- Airports Activities) Regulations 1997.

The Department will use this information for assessing whether the application is to be approved or refused. If you do not provide the information your application will not be able to be approved. The information will be used for internal assessment purposes only and will not be disclosed to any external third parties, other than where disclosure is required by law.

The Department's on-line privacy policy contains information regarding complaint handling processes and how to access and/or seek correction of personal information held by the Department. The Privacy Officer can be contacted on (02) 6274 6495.

Application for Licence RTF: 443 KB PDF: 33 KB
Form A RTF: 264 KB PDF: 11 KB
Form B RTF: 71 KB PDF: 7 KB

Further Information

For further information please contact the Department
Ph (02) 6136 7111, email: regulation@infrastructure.gov.au