In brief - Licensed businesses should seek legal advice about their state's amendments to liquor licensing regimes announced by their local licensing body
Liquor licensing regimes are being amended around the country in response to the nationwide closure of bars and pubs, and the restriction of restaurants and cafés to takeaway and delivery only, pursuant to the National Cabinet's announcement on 22 March 2020.
This article gives a high-level overview of some recent announcements by state licensing bodies in Victoria, New South Wales, Queensland and South Australia and includes a useful table of these amendments. The article does not explain the intricacies of each state's individual licensing regimes or comment on current licensing practice. These regimes are in a state of flux and licensed businesses should seek advice in addition to regularly checking with their local regulatory body.
The Victorian Commission for Gambling and Liquor Regulation has introduced a scheme whereby businesses with existing liquor licences (which do not already permit the supply of liquor for off-premises consumption) can apply for temporary limited licences to supply liquor for takeaway or delivery. Such applications will be fast-tracked with a view to granting them within three business days.
The temporary limited licence permits the licensee to supply up to two bottles of wine or twelve 375ml containers of beer, cider, or pre-mixed spirits (including cocktails), or one bottle of wine and six 375ml containers of beer, cider, or pre-mixed spirits (including cocktails). Businesses with a BYO permit or restaurant and café licence may only supply alcohol with a meal.
All liquor licensing application fees for 2020 will be waived (including applications for the temporary licences to supply liquor off-site), and all 2020 renewal fees which have already been paid will be refunded.
New South Wales
Liquor & Gaming NSW has relaxed the enforcement of existing licence laws rather than require impacted businesses to obtain a new licence. A Statement of Regulatory Intent by the Deputy Secretary of the Better Regulation Division of the Department of Customer Service, dated 23 March 2020, indicated that Liquor & Gaming NSW would "take a reasonable and proportionate response to compliance" and, importantly, that "[t]his includes where a licensed premises, such as a restaurant, café or small bar, does not have authorisation for the sale or supply of liquor for consumption away from the premises, but wishes to provide take-away or home delivery services."
An FAQ page on the Liquor & Gaming NSW website provides further detail as to the meaning of the Statement of Regulatory Intent, confirming that small bars and other licensed restaurants and cafés are now able to sell alcohol for takeaway and delivery. The website also notes that there is no requirement that alcohol purchases be accompanied by food, nor are there restrictions on the volume or type of alcohol that can be sold, but "formal regulations will be put in place should examples of inappropriate practices emerge".
The Statement of Regulatory Intent noted impending changes to the Liquor Regulation 2018 to "provide certainty to these arrangements."
The Liquor Amendment (Waiver of Fees) Regulation 2020, which passed on 8 April, allows people to apply to the Secretary of the Department of Customer Service to have licence fees waived, reduced, postponed or refunded if the applicant is suffering financial hardship or special circumstances exist. Where the application is for the waiver of a periodic licence fee, the licence holder must submit the application no later than 7 days before the due date for payment or an alternative date set by the Secretary. The Secretary may waive or refund any licence fees without an application, if satisfied that it is appropriate because special circumstances exist.
Like in New South Wales, it appears that licence holders in Queensland may now sell alcohol for takeaway and delivery without needing to apply for a new licence. The Business Queensland website provides a table stipulating different conditions for each category of licence holder. For example, businesses with a "Commercial other - bar" licence can sell up to 2.25 litres of liquor per transaction, including 750ml of distilled spirits, via takeaway. Licensed cafés and restaurants may supply alcohol (being packaged beer, wine, cider, and ready-to-drink beverages such as premixed spirits) for takeaway or delivery in conjunction with a food order, to a maximum volume of 2.25 litres.
Licensed hotels can also operate takeaway liquor sale areas that are detached from the licensed venue, or within or attached to the licensed venue. Community clubs can operate takeaway liquor sale areas within the licensed venue to sell alcohol to members and staff. Certain craft brewers or distillers holding a producer/wholesaler licence are permitted to sell alcohol for takeaway or delivery. For hygiene reasons, no business may refill customers' growlers, squealers, or other BYO containers.
Licence fees will be waived for 2020-21. Licensees will not be eligible for a pro-rata refund of their 2019–20 liquor licence fees.
In South Australia, Consumer and Business Services have announced that from 26 March 2020, licensees who hold a restaurant and catering, residential, small venue, club or on premises licence can apply for a short-term licence (at no fee) which will enable them to sell alcohol for takeaway or delivery with meals. Licensees can sell up to two bottles of wine or one bottle of wine and a six pack of beer, cider, or pre-mixed spirits per transaction.
Annual liquor licensing fees for 2020-21 have been waived for certain liquor licence categories and holders of a General and Hotel licence who have a bottle shop will receive reduced fees, or a full waiver if they do not have a bottle shop.
Each of the states discussed above is taking steps to mitigate the strain on hospitality businesses caused by COVID-19 and associated social distancing measures by amending liquor licensing regimes. However, it is important to note that the regulatory bodies nationwide have made it clear that laws prohibiting supplying alcohol to minors are still in place, and no state permits businesses which do not currently hold any form of liquor licence to sell liquor. Responsible Service of Alcohol requirements will still be strictly enforced and proof of age should still be required to confirm a person is 18 or over before that person is allowed to accept a delivery of liquor, in any case where there might be doubt.
Further, licensed business which are open for takeaway must be cognisant of the obligations to ensure physical distancing operative in their state (in New South Wales, for example, the Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020 stipulates that businesses must not allow persons to enter the premises if the size of the premises is insufficient to ensure that there is four square metres of space for each person on the premises).
In New South Wales and Queensland, where businesses are not required to formally apply for a new licence, it would be prudent for businesses to seek legal advice or contact their local regulator before selling alcohol for off-site consumption if they are not sure how the changes impact them.
Finally, it is also necessary for licensed businesses to consult both the premises lease and the development consent regarding any restrictions imposed with respect to liquor licensing, and how the premises may be used, before changing their current practices.
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2021.