Liquor Licence Law

There are ten types of permanent liquor licences in Western Australia, each of which allow liquor to be sold and supplied in different ways.  Details on the types of licences available and their main features are provided in the FAQ section: [insert link to FAQ – “What types of liquor licences are available in WA”].  What type of liquor licence is best for you or your business will depend on how you propose to sell and supply liquor.

As well as identifying what type of licence is best for your needs, there are other factors which need to be taken into account such as who is to be the licensee (i.e. the person who operates the business of the licence), the location of the proposed premises, whether the premises are suitable for the proposed use, and the likely timeframe and costs for the licence application.  We can assist by providing advice on all of these issues.

To apply for a new liquor licence in Western Australia a formal application must be lodged at the licensing authority of Western Australia (being the Racing, Gaming and Liquor Division of the Department of Local Government, Sport and Cultural Industries).

Details on how to apply for a liquor licence, how long an application takes and cost are provided in the FAQ section: [insert link to FAQ – “How do I apply for a liquor licence in WA”] 

 The criteria, process, documents, costs and timeframe for a liquor licensing application in WA will depend on the type of liquor licence being applied for.  Premises such as hotels, taverns, liquor stores and some special facility licences are regarded as high risk venues.  Therefore the criteria to be satisfied for applications for these types of licences is more onerous and complex, such as addressing the public interest requirement.

An application for the grant of a new permanent liquor licence is also dealt with differently to an application for an occasional liquor licence (being a liquor licence for a one off event or function).  Further information on occasional liquor licences is provided below.

We can assist by providing advice on the application process, the criteria that has to be satisfied, the likely timeframes and costs.

We can also prepare and lodge applications on your behalf.  We deal with applications on a daily basis and have systems and processes in place to ensure the process is as efficient and cost effective as possible.

Occasional liquor licences are available for special events that cannot be covered under a permanent liquor licence.  If granted, the licence will permit the sale and supply of liquor at specified times and at specified place or places for a period not exceeding three weeks.

An occasional liquor licence will only be granted if certain criteria are met.  In particular, there must be a specific “occasion” such as a gathering, function or event, including a sporting contest show, exhibition, trade or other fair or reception at which it is proposed that liquor be sold or supplied and consumed.  The holder of the event, or proposed licensee must also demonstrate that that the event and manner of trade will be properly managed and supervised to ensure the risk of liquor related harm is minimized.

A formal application must be lodged at the WA licensing authority.  This can be done online. Specific lodgement deadlines apply depending on the number of people expected to attend the event.

In addition to preparing an application on your behalf we can assist by providing advice on the licensing authority’s requirements and what harm minimisation measures may be required.

Existing licensees of liquor licensed premises are able to apply for an extended trading permit which, if granted, will permit the licensee to sell and supply liquor in a manner that is not otherwise allowed under its liquor licence.

A range of extended trading permits are available, including the following:

• A permit to trade in an extended area, such as an adjoining alfresco dining area.
• A permit to trade extended hours.
• A permit enabling a licensee to be a caterer at a function or event.
• A permit allowing a restaurant to sell and supply liquor without a meal.
• A permit for Sunday trading of a liquor store located outside the Perth metropolitan area.

There are specific requirements that apply to each type of extended trading permit.  A formal application must be lodged at the WA licensing authority.

We can assist by providing advice on what extended trading permit may be available to your business and the requirements for an application.  We can also prepare an application on your behalf.

An existing liquor licence can be transferred.  Usually this occurs when the business operated under the licence is sold.  However there are other circumstances where the transfer of a licence is required, such as when the licensee abandons a premises or the business goes into administration and transfer of the licence to another party is required.

We can provide advice and assistance on the approach and application required for your particular situation.   We can also provide advice and assistance on the transfer application process, the sale contract and related issues, such as assignment of the premises lease.

Any person may object to a liquor licence application that has been advertised.  All applications for the grant of a new permanent liquor licence are required to be advertised.  Advertising of other liquor licence applications is at the discretion of the licensing authority.

To object to an application a formal Notice of Objection must be lodged at the licensing authority.  An objection may only be made on a ground of objection that is prescribed in the WA liquor legislation.  Currently these grounds are:

• That the grant of the application would not be in the public interest.
• That the grant of the application would cause undue harm or ill-health to people, or any group of people due to the use of liquor.
• That if the application were granted undue offence, annoyance, disturbance or inconvenience to persons who reside or work in the vicinity, or to persons in or travelling to or from an existing or proposed place of public worship, hospital or school, would be likely to occur.
• That the grant of the application would lessen the amenity, quiet or good order of the locality in which the premises of proposed premises are, or are to be, situated.
• That the grant of the application would otherwise be contrary to the liquor licensing legislation.

One, some, or all of the above grounds can be relied upon by an objector.  However, such grounds must be established by the objector.  That is, probative, compelling evidence that supports the ground of objection being relied upon must be provided.

We can assist with preparing a Notice of Objection and provide advice on, and help to secure, the evidence and material required to support the objection.

An interim authorisation gives a person the right to carry on the business of the licence for 28 days following the occurrence of the event that gives rise to the authorisation.  There are only specific circumstances where an interim authorisation will be granted, such as: the death, disability or bankruptcy of the licensee, where the licensee is an individual; or when the licensee goes into external administration.

A protection order is also a temporary authorisation given to a person to carry on the business of a liquor licence where the licensee is unable to do so.  It enables the business of the licence to continue trading until such time as the licensee is able to recommence trading or the licence is transferred to another person.  Similar to an interim authorisation there are only specific circumstances where a protection order will be granted.  Common situations include: where the licensee has abandoned the premises or when a person entitled to seek an interim authorisation wants to carry on the business for a period of greater than 28 days.

We can provide guidance on whether an interim authorisation or protection order is suitable for your situation and assist with applications on your behalf.

A person who is dissatisfied with a decision made by the licensing authority in respect of an application may be able to apply for review of the decision.   Most, but not all, decisions are reviewable.  For instance, decisions relating to an application for the grant of an extended trading permit or an occasional liquor licence or administrative decisions made in the course of an application are not reviewable.

An application for review must be made to the Liquor Commission of WA within one month after the written reasons for the decision are issued.

The review process involves a “hearing afresh”.  That is, the Liquor Commission will consider the material and information that was before the original decision maker and will make its own decision.  The process is quite formal in nature and generally involves a hearing before the Liquor Commission.

If a party is dissatisfied with the Liquor Commission’s decision, further right of appeal may be available to the Supreme Court of Western Australia.  However, this is only available in limited circumstances.

We can provide advice and assistance on what, if any, review or appeal rights may be available and represent you in the review or appeal.  We can also provide advice on the merits of a review and the process involved.

There are some issues unique to liquor licensed premises that need to be taken into account when leasing this type of premises.  Most critically, the person or legal entity that is the tenant under the lease, must also be the licensee of the liquor licence.  Other issues include:

• Who is to “own” the rights to the liquor licence.
• The tenant’s rights and obligations in relation to the liquor licence during the term.
• What happens to the licence at the end of the lease.

Where the premises is to be leased subject to a new liquor licence being obtained, consideration needs to be given to additional issues such as:

• How long the liquor licence application and decision will take.
• The relevant timeframes and trigger points in the lease for factors such as the commencement date of the lease; hand-over and fit-out, rent commencement date, if holding rent is to be paid, etc.

We can assist with providing advice on the issues that should be considered relevant to your circumstances.  We can also prepare a lease document or provide appropriate clauses for inclusion in the lease.  Or, for an existing lease, review the lease and advise on these provisions and recommend any changes.

When buying or selling a business, there are many issues that have to be considered and dealt with, such as: determining the value or price of the business; what assets are to be included; how to deal with employees, etc.

Where the business is a liquor licensed business that sells and supplies liquor, such as a hotel, bar, liquor store or restaurant, or liquor wholesaler, the liquor licence is a critical component of the business.

While a liquor licence is commonly regarded as property, over which the licensee has ownership, it is not.  It is a statutory right granted under the Liquor Control Act (WA) 1988.  Therefore, it can only be dealt with in accordance with the Act.

The Act requires that where an existing licensee wants to sell, transfer or assign the business to another party it cannot do so unless there is an express condition in the relevant contract or agreement that the arrangement is subject to the prior approval of the Director of Liquor Licensing to the transfer of the liquor licence from the licensee (the seller or transferor) to the proposed incoming party (the buyer or transferee).

It is critical that settlement of the sale and purchase, assignment of lease and transfer of the liquor licence occur simultaneously.  This is because it is a condition of every licence (excluding club and occasional licences) that the licensee has exclusive possession of the licensed premises.

We can assist with all aspects of the transaction including: advice on the selling or buying process; key issues to consider; review or preparation of the sale agreement; preparation of the application to transfer the liquor licence; and settlement.