Client Alert

Who does this affect?

Anyone having an interest in the operation of licensed premises whether they be landlords, developers, local Councils and all operators of existing licensed premises.

What do you need to do?

Ensure that internal policies and procedures adequately discharge your responsible service of alcohol and venue safety management obligations and ensure that they are followed.

Authors
Debra Townsend  
Partner

Jason Browne  
Solicitor

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Debra Townsend  
Partner
T +61 2 9296 2341

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Introduction

In two recent decisions, the NSW Supreme Court has dismissed two urgent applications which sought to challenge the validity of the Liquor Amendment (Special Licence Conditions) Regulation (2009) NSW (the Regulation). Both applications sought declarations that the decision of the Director General of Communities NSW in recommending to the Minister to include the licensed premises known as Ivy and Establishment as Level 2 Licences and the Colombian Hotel as a Level 1 Licence were both invalid and should therefore be set aside.

Liquor Amendment (Special Licence Conditions) Regulation (2009) NSW (the Regulation)

In furtherance of the NSW government’s much publicised actions to address alcohol related violence and anti social behaviour in NSW pubs and clubs, the Regulation amended Schedule 4 of the Liquor Act 2007 (NSW) (the Act) so as to classify the Colombian Hotel, operated by McHugh Holdings Pty Limited as a “Level 1 Licence” and to classify both Ivy and Establishment, operated by Hemmes Trading Pty Ltd as “Level 2 Licences”. The effect of these classifications is to impose special conditions on these premises with the potential to impact on the profitability of trade and adversely affect the reputation of the premises.

Implications

The decisions are important in that they:

• confirm that the correct characterisation of the enactment of the Regulation is an exercise of non-legislative executive power by the Minister which does oblige the Director General to afford procedural fairness to any affected party in relation to the making of the Regulation;

• further clarify and endorse the findings of Hall J in McGuiness & Anor v State of New South Wales & Ors [2009] NSWSC 40 that the issue of irrationality or illogicality regarding the BOCSAR crime statistics is not concerned with the level of accuracy of the data, but is concerned with determining whether these statistics provide a proper basis for ALEC and the Director General to rely upon to provide advice to the Minister as to whether or not a particular venue should be included in Schedule 4 of the Act. The decisions confirm that both the COPS database and the BOCSAR crime statistics provide such a proper basis;

• highlight the difficult task for any aggrieved venue to successfully challenge the inclusion of its liquor licence in Schedule 4 of the Act on administrative law grounds given the inability of venues to apply for a review of the merits of the decision to include them in the Schedule.

Recent amendments concerning disturbance complaints

A recent amendment to section 80 of the Liquor Act 2007 (NSW) (the Act) contained in the Liquor and Registered Clubs Legislation Amendment Bill 2009 (the Bill) is further evidence of the NSW Government’s affirmative approach to addressing alcohol-related, anti-social behaviour.

Section 80 now provides greater clarity regarding the way in which the Director General may deal with section 79 disturbance complaints. The section now makes it clear that the Director General may decide to take no further action relating to a complaint. Alternatively, the Director General may either convene a conference to hear oral submissions or alternatively, deal with a complaint by reference to written submissions only.

The Bill originally proposed to deny a venue the subject of a section 79 disturbance complaint the right to be legally represented at any conference convened to deal with the complaint. While the Bill as passed was amended to remove this provision, it is noteworthy that the transcript of the Hansard of 24 September 2009 records the Minster for Gaming and Racing Mr Kevin Greene as saying:

“The Government acknowledges that there are concerns about the provision in this bill that a complainant or licensee is not entitled to be legally represented at a disturbance complaint conference. While this provision is consistent with the aim that the complaint process be accessible and effective mechanism to address neighbourhood disturbance, and the Government supports the intent of the original amendment, given the concerns raised by industry around implementation we will consult further with the industry with a view to reintroducing the provision at a later date.”