Liquor Control Reform (Amendment) Act 2001

i Liquor Control Reform (Amendment) Act 2001 Act No. 21/2001 TABLE OF PROVISIONS Section Page 1. Purpose 1 2. Commencement 2 3. Principal Act 2 4. Conditions of general licence 2 5. Conditions of packaged liquor licence 2 6. New section 18A inserted 3 18A. Licence condition (general licence)—8% packaged liquor licence limit 3 7. Prohibition on licensing premises situated in petrol stations 4 8. Limit on packaged liquor licences held by the same or related persons 5 9. New Division 3A inserted in Part 2 7 Division 3A—Controlling Interests 7 26A. Definitions and interpretation 7 26B. Relevant interest in a share 9 26C. Voting power 9 26D. References to Corporations Law 10 26E. Controlling interest in a body corporate 10 26F. Notification of existing controlling interest 11 26G. Notification of acquisition of controlling interest 12 26H. Director to notify body corporate over 8% limit 13 26I. Certain licences cease to be in force 14 26J. Restriction on relocation of licences 17 26K. No compensation 18 10. Grounds for inquiry 18 11. New section 179A inserted 18 179A. Supreme Court—limitation of jurisdiction 19 12. Transitional 19 13. Statute law revision 20 ═══════════════ ENDNOTES 21 -- 1 of 22 -- 1 Liquor Control Reform (Amendment) Act 2001† [Assented to 29 May 2001] The Parliament of Victoria enacts as follows: 1. Purpose The purpose of this Act is to amend the Liquor Control Reform Act 1998— (a) to ensure that the 8% limit on holders of packaged liquor licences is effective; Victoria No. 21 of 2001 -- 2 of 22 -- Act No. 21/2001 Liquor Control Reform (Amendment) Act 2001 2 (b) to ensure that the predominant activity carried on under a packaged liquor licence is the retail sale of liquor for consumption off the licensed premises; (c) to strengthen the prohibition against granting a liquor licence in respect of premises situated within a petrol station. 2. Commencement This Act comes into operation on the day after the day on which it receives the Royal Assent. 3. Principal Act In this Act, the Liquor Control Reform Act 1998 is called the Principal Act. 4. Conditions of general licence In section 8(2) of the Principal Act, after paragraph (c) insert— "(ca) if applicable, the condition set out in section 18A(2); and". 5. Conditions of packaged liquor licence In section 11(3) of the Principal Act, before paragraph (a) insert— "(aa) a condition that the predominant activity carried on in the area set aside as the licensed premises is the sale by retail of liquor for consumption off the licensed premises; and". s. 2 See: Act No. 94/1998 and amending Act Nos 24/1999, 6/2000 and 74/2000. LawToday: www.dms. dpc.vic. gov.au -- 3 of 22 -- Act No. 21/2001 Liquor Control Reform (Amendment) Act 2001 3 6. New section 18A inserted After section 18 of the Principal Act insert— "18A. Licence condition (general licence)—8% packaged liquor licence limit (1) This section applies to a general licence that is granted or transferred to a person if the grant or transfer of the licence to the person would have been prohibited by section 23(2) had the Director formed the opinion referred to in section 23(2)(a). (2) It is a condition of a general licence to which this section applies that the predominant activity carried on in the area set aside as the licensed premises is not the sale by retail of liquor for consumption off the licensed premises. (3) The condition set out in sub-section (2) does not apply at any time at which— (a) in the case of a licensee who is a natural person—the licensee does not hold more than 8% of all packaged liquor licences granted and in force under this Act; or (b) in the case of a licensee who is a body corporate—the sum of the number of packaged liquor licences held by the body corporate and by any related entities is not more than 8% of all packaged liquor licences granted and in force under this Act. (4) For the purposes of sub-section (3), a general licence— (a) held by— s. 6 -- 4 of 22 -- Act No. 21/2001 Liquor Control Reform (Amendment) Act 2001 4 (i) in the case of a licensee who is a natural person—the licensee; or (ii) in the case of a licensee who is a body corporate—the body corporate or any related entity; and (b) under which, in the opinion of the Director, the predominant activity carried on in the area set aside as the licensed premises is the sale by retail of liquor for consumption off the licensed premises— is to be taken to be a packaged liquor licence held by the natural person, body corporate or related entity, but no general licence held by any other person is to be taken to be a packaged liquor licence granted and in force under this Act.". 7. Prohibition on licensing premises situated in petrol stations In section 22 of the Principal Act, after sub- section (2) insert— "(3) For the purposes of sub-section (1)(b) regard must be had to the following factors— (a) the physical location of the area set aside as the licensed premises; and (b) the primary means of access to and egress from the area set aside as the licensed premises; and (c) whether or not a reasonable person would consider that the area set aside as the licensed premises is part of premises that are used primarily as a petrol station.". s. 7 -- 5 of 22 -- Act No. 21/2001 Liquor Control Reform (Amendment) Act 2001 5 8. Limit on packaged liquor licences held by the same or related persons (1) Insert the following heading to section 23 of the Principal Act— "Limit on packaged liquor licences and certain general licences held by the same or related persons". (2) In section 23 of the Principal Act, for "at the time of the application" substitute "at the time of the determination of the application". (3) At the end of section 23 of the Principal Act insert— "(2) The Director must not grant or transfer to a person a general licence if— (a) in the opinion of the Director, the predominant activity to be carried on in the area set aside as the licensed premises would be the sale by retail of liquor for consumption off the licensed premises; and (b) at the time of the determination of the application for the grant or transfer— (i) in the case of a natural person, the person holds more than 8% of all packaged liquor licences granted and in force under this Act; or (ii) in the case of a body corporate, the sum of the number of packaged liquor licences held by the body corporate and by any related entities is more than 8% of all packaged liquor licences granted and in force under this Act. s. 8 -- 6 of 22 -- Act No. 21/2001 Liquor Control Reform (Amendment) Act 2001 6 (3) If— (a) a person applies for the grant or transfer to the person of a packaged liquor licence or general licence; and (b) either— (i) in the case of a natural person, the person holds a general licence; or (ii) in the case of a body corporate, the body corporate or any related entity holds a general licence; and (c) in the opinion of the Director, the predominant activity carried on in the area set aside as the licensed premises under the general licence referred to in paragraph (b) is the sale by retail of liquor for consumption off the licensed premises— then, in determining whether or not this section prohibits the grant or transfer of a licence to the person, the general licence referred to in paragraph (b) is to be taken to be a packaged liquor licence held by the natural person, body corporate or related entity, but no general licence held by any other person is to be taken to be a packaged liquor licence granted and in force under this Act. Example Company A holds 7 packaged liquor licences and 5 general licences. Company B, which is a related entity of company A, holds 3 general licences. Company C, which is not a related entity of company A, holds 6 general licences. The Director is of the opinion that the predominant activity carried on under 2 of company A's general licences, under one of company B's general licences s. 8 -- 7 of 22 -- Act No. 21/2001 Liquor Control Reform (Amendment) Act 2001 7 and under 4 of company C's general licences is the retail sale of liquor for consumption off the licensed premises. Assume that company A applies for another packaged liquor licence or general licence and that, at the time of the determination of the application, there are a total of 100 packaged liquor licences in force. Company A cannot be granted a further packaged liquor licence (or a general licence in the circumstances referred to in sub-section (2)(a)), as under sub-section (1)(b) or (2)(b)(ii) (as applicable) the percentage of packaged liquor licences taken to be held by company A and its related entities is— ( ) ( ) 7 2 1 100 2 1 100% 9 7% + + + + × = ⋅ . 7 is the number of company A's existing packaged liquor licences; 2 is the number of company A's existing general licences predominantly for the retail sale of liquor for consumption off the licensed premises; 1 is the number of company B's existing general licences predominantly for the retail sale of liquor for consumption off the licensed premises. 100 is the number of actual packaged liquor licences granted and in force. None of company C's general licences are taken into account.". 9. New Division 3A inserted in Part 2 After Division 3 of Part 2 of the Principal Act insert— 'Division 3A—Controlling Interests 26A. Definitions and interpretation (1) In this Division— "associate" has the meaning, in relation to a person, it would have under the s. 9 -- 8 of 22 -- Act No. 21/2001 Liquor Control Reform (Amendment) Act 2001 8 Corporations Law if, in Division 2 of Part 1.2 of the Corporations Law— (a) for paragraphs (b) and (c) of section 12(1) of that Law, there were substituted— "or (b) the primary person's voting power in a body corporate or whether the primary person is in a position to exercise certain powers in relation to a body corporate;"; and (b) sections 13, 14, 16(2) and 17 of that Law were repealed; "commencement day" means the day on which section 9 of the Liquor Control Reform (Amendment) Act 2001 came into operation; "officer", of a body corporate, has the same meaning as in section 82A of the Corporations Law; "packaged liquor licence" includes a general licence under which, in the opinion of the Director, the predominant activity carried on in the area set aside as the licensed premises is the sale by retail of liquor for consumption off the licensed premises. (2) In this Division, a reference to a licence includes a reference to a licence that is renewed in accordance with Division 8. (3) In determining for the purposes of this Division the number of packaged liquor s. 9 -- 9 of 22 -- Act No. 21/2001 Liquor Control Reform (Amendment) Act 2001 9 licences held by a person, account is not to be taken of any general licence that was— (a) in force on 23 January 2001; and (b) held by the person on that day. 26B. Relevant interest in a share For the purposes of this Division, a person has a relevant interest in a share if, and only if, the person would be taken to have a relevant interest in the share because of sections 608 and 609 of the Corporations Law but a person does not have a relevant interest in a share in a body corporate only because the person has a right of pre- emption in relation to that share if the body corporate— (a) was formed by two or more persons for the purpose of enabling those persons to carry on an activity jointly by means of their joint control of, or by means of their ownership of shares in, that body corporate; and (b) those persons, or persons who have acquired some or all of the shares in that body corporate, continue to carry on that activity jointly by either of those means. 26C. Voting power For the purposes of this Division, the voting power a person has in a body corporate is the person's voting power determined in accordance with section 610 of the Corporations Law as if a reference in that section of that Law to a relevant interest were a reference to a relevant interest to which section 26B applies. s. 9 -- 10 of 22 -- Act No. 21/2001 Liquor Control Reform (Amendment) Act 2001 10 26D. References to Corporations Law A reference in this Division to the Corporations Law is a reference to that Law as it would apply if references in that Law to a body corporate, corporation or company included references to— (a) a body corporate of any kind wherever formed or incorporated and whether formed or incorporated under that Law or any other law; and (b) any unincorporated body, being a society, association, company of proprietors or other body, wherever formed, that, under the law of its place of formation, may sue or be sued, or may hold property in the name of the secretary or some other officer of the society, association or body, or in the name of any trustee or trustees; and (c) any unincorporated body, being a society, association, company of proprietors or other body or undertaking to which is applied, under the laws of the place of its formation, with or without exceptions, a law in force in that place relating to companies or corporations as if it were a company or corporation within the meaning of that law. 26E. Controlling interest in a body corporate For the purposes of this Division, a person has a controlling interest in a body corporate if— (a) the person's voting power in the body corporate is more than 50%; or s. 9 -- 11 of 22 -- Act No. 21/2001 Liquor Control Reform (Amendment) Act 2001 11 (b) the person and the person's associates have relevant interests in shares in the body corporate that confer or, if a dividend were declared or a distribution of profits were made by the body corporate, would confer a right to receive the benefit of more than 50% of the dividend or distribution; or (c) the person and the person's associates have relevant interests in shares in the body corporate that confer or, in the event of any other distribution of property or rights by the body corporate, whether on dissolution or otherwise, would confer a right to receive the benefit of more than 50% of the property and rights; or (d) the person is able, whether alone or in concert with another, and whether by any act or omission or otherwise, to dominate or control— (i) the body corporate; or (ii) the financial and operating policies or management of the body corporate; or (iii) the activities of the body corporate as a licensee. 26F. Notification of existing controlling interest (1) If, as a result of the acquisition of an interest on or after 18 April 2001 but before the commencement day, a person has a controlling interest on the commencement day in a body corporate— (a) that holds a packaged liquor licence or general licence; or s. 9 -- 12 of 22 -- Act No. 21/2001 Liquor Control Reform (Amendment) Act 2001 12 (b) a related entity of which holds a packaged liquor licence or general licence— the person must give written notice to the Director in accordance with this section. (2) The notice must be given within 28 days after the commencement day. (3) The notice must contain— (a) the date the interest giving rise to the controlling interest was acquired; and (b) the name of the person who has the controlling interest; and (c) the name of the body corporate in which the controlling interest is held. 26G. Notification of acquisition of controlling interest (1) If, on or after the commencement day, a person acquires an interest that results in the person having a controlling interest in a body corporate— (a) that holds a packaged liquor licence or general licence; or (b) a related entity of which holds a packaged liquor licence or general licence— the person must give written notice to the Director in accordance with this section. (2) The notice must be given within 7 days after the day on which the person acquires the interest giving rise to the controlling interest. (3) The notice must contain— s. 9 -- 13 of 22 -- Act No. 21/2001 Liquor Control Reform (Amendment) Act 2001 13 (a) the date the interest giving rise to the controlling interest was acquired; and (b) the name of the person who has the controlling interest; and (c) the name of the body corporate in which the controlling interest is held. 26H. Director to notify body corporate over 8% limit (1) If the Director becomes aware that— (a) a body corporate (whether or not a licensee) has acquired an interest (whether before, on or after the commencement day) giving the body corporate a controlling interest in a licensee or in a related entity of a licensee; and (b) because of that controlling interest the sum of the number of packaged liquor licences held by the body corporate and by any of its related entities is more than 8% of all packaged liquor licences granted and in force under this Act— the Director must give written notice to the body corporate in accordance with this section. Note: see extended definition of "packaged liquor licence" in section 26A. (2) The notice must inform the body corporate— (a) that the body corporate and its related entities hold more than 8% of all packaged liquor licences granted and in force under this Act; and (b) that none of the packaged liquor licences held by the body corporate or s. 9 -- 14 of 22 -- Act No. 21/2001 Liquor Control Reform (Amendment) Act 2001 14 any of its related entities can be relocated while the body corporate and its related entities hold more than 8% of all packaged liquor licences granted and in force under this Act; and (c) the number of packaged liquor licences by which the body corporate and its related entities exceed the 8% limit; and (d) the day by which the body corporate and its related entities must cease to hold more than 8% of all packaged liquor licences granted and in force under this Act. 26I. Certain licences cease to be in force (1) If— (a) a body corporate (whether or not a licensee) has a controlling interest in a licensee or in a related entity of a licensee (whether the interest giving rise to that controlling interest was acquired before, on or after the commencement day); and (b) immediately after the interest giving rise to that controlling interest was acquired the sum of the number of packaged liquor licences held by the body corporate and by any of its related entities is or was more than 8% of all packaged liquor licences granted and in force under this Act; and (c) on the relevant day the sum of the number of packaged liquor licences held by the body corporate and by any of its related entities is more than 8% of s. 9 -- 15 of 22 -- Act No. 21/2001 Liquor Control Reform (Amendment) Act 2001 15 all packaged liquor licences granted and in force under this Act— certain of the packaged liquor licences held by the body corporate or by any of its related entities cease to be in force, in accordance with and by force of this section, at the end of the expiry day. Note: see extended definition of "packaged liquor licence" in section 26A. (2) The number of licences that cease to be in force is the number of licences by which the sum of the number of packaged liquor licences held by the body corporate and by any of its related entities on the expiry day exceeds 8% of all packaged liquor licences granted and in force under this Act. (3) The licences that cease to be in force are determined in reverse order to the order in which they were acquired by the body corporate. (4) For the purpose of sub-section (3)— (a) a licence held by a related entity of the body corporate is taken to have been acquired by the body corporate when the related entity became a related entity of the body corporate; (b) if some but not all of the licences referred to in paragraph (a) cease to be in force, the licences that cease to be in force are determined in reverse order to the order in which they were originally granted or transferred to the related entity (whether or not the related entity was a related entity at the time of the grant or transfer). s. 9 -- 16 of 22 -- Act No. 21/2001 Liquor Control Reform (Amendment) Act 2001 16 (5) If— (a) any packaged liquor licences were originally granted or transferred to an entity at the same time; and (b) it is necessary for the purposes of this section to determine which of those licences cease to be in force— the Director must determine, at his or her discretion, which of those licences cease to be in force. (6) Within 14 days after the relevant day, the Director must give written notice of each licence that ceases to be in force by virtue of this section to the holder of the licence. (7) The Director, by giving written notice to the body corporate before the day that would otherwise be the relevant day, may extend the relevant day once for a period not exceeding 90 days, if the Director is satisfied that— (a) special circumstances exist; and (b) the body corporate has demonstrated that it has made all reasonable efforts to ensure that the body corporate and any of its related entities do not hold more than 8% of all packaged liquor licences granted and in force under this Act; and (c) compliance by the body corporate and its related entities with the 8% limit is imminent. (8) In this section— s. 9 -- 17 of 22 -- Act No. 21/2001 Liquor Control Reform (Amendment) Act 2001 17 "expiry day" means the day on which the Director gives notice to a body corporate under sub-section (6); "relevant day" means— (a) if the interest that gave rise to the controlling interest referred to in sub-section (1)(a) was acquired on or before 18 April 2001—18 April 2002; or (b) if the interest that gave rise to the controlling interest referred to in sub-section (1)(a) was acquired after 18 April 2001—the first anniversary of the day on which the interest was acquired; or (c) if the Director grants an extension under sub-section (7)—the day specified by the Director in the notice of extension. 26J. Restriction on relocation of licences Despite anything to the contrary in Division 6, if— (a) a body corporate (whether or not a licensee) has a controlling interest in a licensee or in a related entity of a licensee (whether the interest giving rise to that controlling interest was acquired before, on or after the commencement day); and (b) immediately after the interest giving rise to that controlling interest was acquired the sum of the number of packaged liquor licences held by the body corporate and by any of its related entities is or was more than 8% of all s. 9 -- 18 of 22 -- Act No. 21/2001 Liquor Control Reform (Amendment) Act 2001 18 packaged liquor licences granted and in force under this Act— an application for relocation of a packaged liquor licence cannot be granted to the body corporate or any of its related entities if, at the time of the determination of the application, the sum of the number of packaged liquor licences held by the body corporate and by any of its related entities is more than 8% of all packaged liquor licences granted and in force under this Act. Note: see extended definition of "packaged liquor licence" in section 26A. 26K. No compensation (1) No compensation is payable by the State or the Director to any person for any loss or damage as a result of the enactment of this Division. (2) Without limiting the generality of sub- section (1), no compensation is payable as a result of— (a) anything done by the Director under this Division; or (b) a licence ceasing to be in force by operation of this Division; or (c) the operation of section 26J.'. 10. Grounds for inquiry In section 90(1) of the Principal Act, after paragraph (f) insert— "(fa) has failed to give notice to the Director as required by section 26F or 26G; or". 11. New section 179A inserted After section 179 of the Principal Act insert— s. 10 -- 19 of 22 -- Act No. 21/2001 Liquor Control Reform (Amendment) Act 2001 19 "179A. Supreme Court—limitation of jurisdiction It is the intention of section 26K to alter or vary section 85 of the Constitution Act 1975.". 12. Transitional In Schedule 3 to the Principal Act, after clause 18 insert— "19. Transitional provisions—Liquor Control Reform (Amendment) Act 2001 (1) Section 11(3)(aa), as inserted by section 5 of the Liquor Control Reform (Amendment) Act 2001, extends to packaged liquor licences in force at the commencement of that section 5. (2) Section 18A, as inserted by section 6 of the Liquor Control Reform (Amendment) Act 2001, applies to a general licence granted or transferred to a person on an application made on or after 23 January 2001. (3) Section 22(3), as inserted by section 7 of the Liquor Control Reform (Amendment) Act 2001, applies to the grant of a licence or BYO permit on or after the commencement of that section 7 whether the application for the grant was made before, on or after that commencement. (4) Section 23, as amended by section 8 of the Liquor Control Reform (Amendment) Act 2001, applies to the grant or transfer of a licence to a person on an application made on or after 23 January 2001. (5) However, section 23(3), as inserted by section 8(3) of the Liquor Control Reform (Amendment) Act 2001, does not apply to a general licence that was in force on 23 January 2001. (6) If— (a) an application was made on or after 23 January 2001 for the grant or transfer of a licence to a person; and (b) the licence was granted or transferred to the person before the commencement of the -- 20 of 22 -- Act No. 21/2001 Liquor Control Reform (Amendment) Act 2001 20 Liquor Control Reform (Amendment) Act 2001; and (c) the grant or transfer of the licence would have been prohibited by section 23 had the amendments to that section by section 8 of the Liquor Control Reform (Amendment) Act 2001 been in operation at the time of the grant or transfer— the licence ceases to be in force, by virtue of this sub- clause, on the commencement of that Act.". 13. Statute law revision In the Principal Act, sections 181 and 183 and Schedules 2 and 4 are repealed. ═══════════════ s. 13 -- 21 of 22 -- Act No. 21/2001 Liquor Control Reform (Amendment) Act 2001 21 ENDNOTES † Minister's second reading speech— Legislative Assembly: 1 March 2001 Legislative Council: 22 May 2001 The long title for the Bill for this Act was "to amend the Liquor Control Reform Act 1998 with respect to packaged liquor licences, certain general licences and the licensing of petrol stations and for other purposes." Constitution Act 1975: Section 85(5) statement: Legislative Assembly: 16 May 2001 Legislative Council: 22 May 2001 Absolute majorities: Legislative Assembly: 17 May 2001 Legislative Council: 24 May 2001 Endnotes -- 22 of 22 --