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Contents (2007 - 90)
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Liquor Act 2007 No 90
Current version for 1 December 2019 to date (accessed 20 February 2020 at 10:45)
Part 9
Part 9 Disciplinary action
137   Interpretation
(1)  In this Part, a reference—
(a)  to a licensee includes a reference to a former licensee and, in the case of a limited licence, includes a reference to the non-proprietary association on whose behalf the licence is held, and
(b)  to a manager includes a reference to a former manager, and
(c)  to a conviction for an offence under this Act or the regulations does not include a reference to a conviction for an offence prescribed by the regulations for the purposes of this section.
(2)  Without limiting the grounds on which disciplinary action may be taken under this Part, the grounds for taking any such action may relate to conduct occurring before the commencement of this Part.
(3)  For the purposes of this Part, a person is interested in the business, or in the conduct or profits of the business, carried on under a licence if the person—
(a)  is named in the written statement referred to in section 41 that accompanied the application for the licence, or
(b)  is a person referred to in section 55 who has become interested in the business, or the conduct of the business, carried out on the licensed premises concerned, or
(c)  in the case of a licence held by a corporation—is an individual who occupies a position of authority in the corporation that holds the licence, or
(d)  in the case where the person referred to in paragraph (a) or (b) is a proprietary company—
(i)  is a director of, or shareholder in, the proprietary company, or
(ii)  is a director of, or shareholder in, a corporation that, within the meaning of the Corporations Act 2001 of the Commonwealth, is a related body corporate of the proprietary company.
138   Secretary may carry out inquiries and investigations in relation to complaints and proposed complaints
(1)  The Secretary may carry out such investigations and inquiries as the Secretary considers necessary in connection with a complaint, or proposed complaint, under this Part in relation to—
(a)  a licensee, or
(b)  a manager, or
(c)  a close associate of a licensee.
(2)  The Commissioner of Police may inquire into, and report to the Secretary on, such matters as the Secretary may request concerning the licensee, manager or close associate to whom the complaint, or proposed complaint, relates.
(3)  The Secretary may, by notice in writing, require a licensee, manager or close associate who is the subject of an investigation under this section to do one or more of the following things—
(a)  provide, in accordance with directions in the notice, such information verified by statutory declaration as, in the opinion of the Secretary, is relevant to the investigation and is specified in the notice,
(b)  produce, in accordance with directions in the notice, such records as, in the opinion of the Secretary, are relevant to the investigation and permit examination of the records, the taking of extracts from them and the making of copies of them,
(c)  authorise a person described in the notice to comply with a requirement of the kind referred to in paragraph (a) or (b),
(d)  furnish to the Secretary such authorisations and consents as the Secretary requires for the purpose of enabling the Secretary to obtain information (including financial and other confidential information) from other persons concerning the person under investigation and the person’s associates.
(4)  A person who complies with a requirement of a notice under subsection (3) does not on that account incur a liability to another person.
(5)  A person must not fail to comply with a requirement of the Secretary contained in a notice under subsection (3).
Maximum penalty—20 penalty units.
139   Grounds for making complaint
(1)  A complaint in relation to a licensee, manager or close associate of a licensee may be made to the Authority by any of the following persons (referred to in this Part as the complainant)—
(a)  the Secretary,
(b)  the Commissioner of Police,
(c)  a person authorised by the regulations to make a complaint under this Part.
(2)  A complaint must be in writing and specify the grounds on which it is made.
(3)  The grounds on which a complaint in relation to a licensee, manager or close associate may be made are as follows—
(a)  that the licensee or manager has, while holding a licence or managing licensed premises, been convicted of an offence under this Act or the regulations (or under the former Act) or of an offence prescribed by the regulations,
(b)  that the licensee or manager has failed to comply with any of the conditions to which the licence is subject,
(c)  that the licensee has failed to comply with any of the conditions to which any authorisation or approval held by the licensee under this Act is subject,
(d)  that the licensee or manager has failed to comply with any other requirement under this Act or the regulations (or under the former Act), relating to the licence or the licensed premises,
(e)  that the licensee or manager has failed to comply with a direction or other requirement of the Authority, the Secretary or the Commissioner of Police under this Act (or of the Secretary or the Commissioner under the former Act),
(f)  that the licensee or manager has engaged in conduct or activities that are likely to encourage misuse or abuse of liquor (such as binge drinking or excessive consumption),
(g)  that intoxicated persons have frequently been on the licensed premises or have frequently been seen to leave those premises,
(h)  that acts involving violence against persons or damage to property have frequently been committed on or near the licensed premises by persons who have been on the licensed premises,
(i)  that the licensee is not a fit and proper person to be the holder of a licence (whether for the same reason as that set out in section 45(5) or otherwise) or the manager is not a fit and proper person to be the manager of the licensed premises (whether for the same reason as that set out in section 68(4A) or otherwise),
(j)  that the close associate is not a fit and proper person to be a close associate of a licensee,
(k)  that a complaint against a licensee under this section has been made and that—
(i)  the close associate knew or ought reasonably to have known that the licensee was engaging (or was likely to engage) in conduct of the kind to which the complaint relates, and
(ii)  the close associate failed to take all reasonable steps to prevent the licensee from engaging in conduct of that kind,
(l)  that the close associate is (or has become) a close associate of a licensee while disqualified by the Authority from being a close associate,
(m)  that a person who is interested in the business, or in the conduct or profits of the business, carried on under the licence is not a fit and proper person to be so interested,
(n)  that a person is (or has become) a person who is interested in the business, or in the conduct or profits of the business, carried on under a licence while disqualified by the Authority under this Part from being a person so interested,
(o)  in the case of a limited licence—that the licensee has not exercised proper control and supervision over a function held under the licence,
(p)  in the case of a limited licence—it is not in the public interest for liquor to be sold or supplied at functions held by or under the auspices of the non-proprietary association on whose behalf the licence is held,
(q)  in the case of a licence held by a corporation—that a person who occupies a position of authority in the corporation is not a fit and proper person to occupy such a position in a corporation that is the holder of a licence,
(r)  that public entertainment has been conducted on the licensed premises otherwise than in accordance with any requirements under the Environmental Planning and Assessment Act 1979 relating to the use of the premises for public entertainment,
(s)  that the licence has not been exercised in the public interest,
(t)  that the continuation of the licence is not in the public interest.
(4)  In subsection (3), former Act means the Liquor Act 1982 or the regulations made under that Act and includes, in the case of a licensee that is a registered club, the Registered Clubs Act 1976 as in force immediately before the repeal of section 9 of that Act by Schedule 2 to the Miscellaneous Acts (Casino, Liquor and Gaming) Amendment Act 2007.
140   Procedure for taking disciplinary action
(1)  If a complaint in relation to a licensee, manager or close associate is made under this Part, the Authority must, before taking any disciplinary action against the licensee, manager or close associate, notify the licensee, manager or close associate in writing of the grounds on which the Authority is proposing to take disciplinary action.
(2)  Any such notice is to invite the licensee, manager or close associate to show cause, by way of a written submission, as to why the Authority should not take disciplinary action against the licensee, manager or close associate.
(3)  The Authority must also, before taking disciplinary action against a licensee, invite written submissions from the following persons—
(a)  if the licensee occupies the licensed premises under a lease—the lessor,
(b)  each person named in the written statement referred to in section 41 that accompanied the application for the licence,
(c)  each person named in the information provided to the Authority (as required by section 55) who has become interested in the business, or the conduct of the business, carried out on the licensed premises concerned,
(d)  if the grounds for taking the proposed disciplinary action relate to a person (other than the licensee) not being a fit and proper person—that person.
(4)  The Authority may specify—
(a)  the time within which a submission under this section may be made, and
(b)  any other requirements that must be complied with in relation to the making of any such submission.
(5)  If any written submission is made in accordance with this section, the Authority must take the submission into consideration in deciding whether or not to take disciplinary action against the licensee, manager or close associate concerned.
(6)  Subsection (1) does not require the Authority to disclose any criminal intelligence.
141   Disciplinary powers of Authority
(1)  The Authority may deal with and determine a complaint that is made to it under this Part.
(1A)  If the Authority is satisfied that the criminal organisation associate ground applies in relation to a licensee, the Authority must do one or both of the following—
(a)  disqualify the licensee from holding a licence for such period as the Authority thinks fit,
(b)  cancel the licence.
(1B)  If the Authority is satisfied that the criminal organisation associate ground applies in relation to a manager, the Authority must do one or both of the following—
(a)  disqualify the manager from being the manager of licensed premises for such period as the Authority thinks fit,
(b)  withdraw the manager’s approval to manage licensed premises.
(2)  If the Authority is satisfied that any of the grounds (other than a criminal organisation associate ground) on which the complaint was made apply in relation to the licensee, manager or close associate, the Authority may decide not to take any action or may do any one or more of the following—
(a)  cancel the licence,
(b)  suspend the licence for such period not exceeding 12 months (or, if circumstances of aggravation exist in relation to the complaint, not exceeding 24 months) as the Authority thinks fit,
(c)  order the licensee or manager to pay, within such time as is specified in the order—
(i)  a monetary penalty not exceeding 500 penalty units (in the case of a corporation) or 200 penalty units (in the case of an individual), or
(ii)  if circumstances of aggravation exist in relation to the complaint—a monetary penalty not exceeding 1,000 penalty units (in the case of a corporation) or 400 penalty units (in the case of an individual),
(d)  suspend or cancel any authorisation or other approval (other than the licence itself) held by the licensee under this Act,
(e)  impose a condition to which the licence, or any authorisation or approval held by the licensee under this Act, is to be subject or revoke or vary a condition to which the licence or any such authorisation or approval is subject,
(f)  disqualify the licensee from holding a licence, or from being the manager of licensed premises or the close associate of a licensee, for such period as the Authority thinks fit,
(g)  withdraw the manager’s approval to manage licensed premises,
(h)  disqualify the manager from being the manager of licensed premises, or from holding a licence or being the close associate of a licensee, for such period as the Authority thinks fit,
(i)  in the case of a limited licence held on behalf of a non-proprietary association—order that a limited licence is not, for a period of not more than 3 years from the date on which the decision takes effect, to be granted to any person on behalf of the non-proprietary association,
(j)  disqualify the close associate from being a close associate of a licensee or the manager of licensed premises for such period as the Authority thinks fit,
(k)  disqualify the close associate from holding a licence for such period as the Authority thinks fit,
(l)  order the licensee, manager or close associate to pay the amount of any costs incurred by—
(i)  the Secretary in carrying out any investigation or inquiry under section 138 in relation to the licensee, manager or close associate, or
(ii)  the Authority in connection with the taking of disciplinary action against the licensee, manager or close associate under this section,
(m)  reprimand the licensee, manager or close associate.
(2A)  Any monetary penalty or costs ordered to be paid under subsection (2) are payable to the Secretary.
(3)  If the Authority orders a licensee or manager to pay a monetary penalty under this section and the penalty is not paid within the time specified in the order, the Authority may—
(a)  cancel the licence, or
(b)  suspend the licence until such time as the penalty is paid (or for such other period as the Authority thinks fit).
(4)  While a person is disqualified by the Authority from being a close associate of a licensee, the person is conclusively presumed for the purposes of this Act to be a person who is not a fit and proper person to be a close associate of a licensee.
(5) Action against other interested persons In deciding whether to take disciplinary action under this section against a licensee in relation to a complaint, the Authority may take disciplinary action against a person who is interested in the business, or in the conduct or profits of the business, carried on under the licence (regardless of whether the Authority takes any disciplinary action under this section against the licensee concerned).
(6)  If the Authority decides to take disciplinary action against any such interested person, the Authority may do any one or more of the following—
(a)  disqualify the person, for a period commencing on a specified day, from being a person interested in the business, or in the conduct or profits of the business, carried on under a licence,
(b)  reprimand the person.
(7) Circumstances of aggravation For the purposes of this section, circumstances of aggravation exist in relation to a complaint if (and only if) each of the following paragraphs applies—
(a)  the complaint concerns a contravention or alleged contravention of section 73 or 74,
(b)  the complaint alleges that for the reasons specified in the complaint the matter of the complaint is so serious as to warrant the taking of action that is available to the Authority when circumstances of aggravation exist,
(c)  the Authority, in finding that the matter of the complaint has been made out, is of the opinion (having regard to any matter such as the number of contraventions of the Act involved, the seriousness of the contravention involved, the number of people involved in the contravention or the seriousness of the outcome of the contravention, or any other relevant consideration) that the matter of the complaint is so serious as to warrant the taking of action that is available to the Authority when circumstances of aggravation exist.
(8)  In this section—
criminal organisation associate ground means—
(a)  in relation to a licensee—that the licensee is not a fit and proper person to be the holder of a licence for the same reason as that set out in section 45(5), or
(b)  in relation to a manager—that the manager is not a fit and proper person to be the manager of the licensed premises for the same reason as that set out in section 68(4A).
142   Procedure for implementing disciplinary action
(1)  If the Authority decides to take disciplinary action against or in relation to a licensee, manager, close associate or other person under this Part, the Authority is required to serve on the licensee, manager, close associate or person a notice informing the person of the Authority’s decision.
(2)  The notice must include the reasons for the Authority’s decision.
(2A)  Subsection (2) does not require the Authority to disclose any criminal intelligence.
(3)  Any disciplinary action under this Part takes effect when notice of the action is served on the licensee, manager, close associate or person concerned (or on such later date as may be specified in the notice).
(4)  The Authority may, by serving a further notice on the licensee, manager, close associate or person concerned, cancel a notice under this section before the notice takes effect.
(5)  The Authority is not prevented from taking disciplinary action under this Part merely because the licensee, manager, close associate or person concerned is subject to criminal or civil proceedings that relate to the same matters or incident to which the disciplinary action relates.
(6)  If a licensee is disqualified from holding a licence under this Part, the Authority, may, on application by—
(a)  the spouse or de facto partner of the licensee, or
(b)  a member of the family of the licensee who is of or above the age of 18 years, or
(c)  the owner of the licensed premises, or
(d)  a person directly or indirectly interested in the business, or the conduct of the business, carried out on the licensed premises,
transfer the licence to that spouse, de facto partner or member of the family or to some other person approved by the Authority.
143   Requirement for legal member of Authority to be present
The Authority cannot determine any complaint made to it under this Part (including any decision to take any disciplinary action) unless a member of the Authority who is or has been a Judge, or who has been an Australian lawyer for at least 7 years, is present at the meeting of the Authority (or the committee of the Authority) at which the complaint is determined or the decision to take the action is made.
144   Administrative review by NCAT of decisions by Authority under this Part
(1)  Each of the following persons may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of a decision by the Authority in relation to a complaint under this Part—
(a)  the person against whom any disciplinary action is taken by the Authority in relation to the complaint,
(b)  the complainant.
(2)  Part 2 of Chapter 3 of the Administrative Decisions Review Act 1997 does not apply to an application to the Civil and Administrative Tribunal for an administrative review of a decision by the Authority under this Part.
(3)  In determining an application for a review of any decision by the Authority under section 141(1A) or (1B), the Civil and Administrative Tribunal (and any Appeal Panel of the Tribunal in determining any internal appeal against such a review under the Civil and Administrative Tribunal Act 2013)—
(a)  is to ensure that it does not, in the reasons for its decision or otherwise, disclose any criminal intelligence without the approval of the Commissioner of Police, and
(b)  in order to prevent the disclosure of any criminal intelligence, is to receive evidence and hear argument in the absence of the public, the applicant for the administrative review, the applicant’s representative and any other interested party, unless the Commissioner of Police approves otherwise.