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Effective date: 18 July 2011 Last amended: 2 July 2019Next review: July 2021
This policy is designed to provide information in regard to the subject matter covered, and with the understanding that the Director of Liquor Licensing is not passing legal opinion or interpretation or other professional advice. The information is provided on the understanding that all persons undertake responsibility for assessing the relevance and accuracy of its contents.
Section 6(1)(o) of the Liquor Control Act 1988 (the Act) states that the Act does not apply:
“where the sale or supply of liquor is to, or the consumption of liquor is by, a person who is at least 18 years of age and that sale, supply or consumption is exempted by the regulations from the application of this Act”.
This document provides guidance on the specific circumstances whereby the sale, supply and consumption of liquor is exempt from the application of the Act under the Liquor Control Regulations 1989 (the regulations).
The definition of ‘sell’ under section 3 of the Act includes:
Regulations 8, 8B, 8C, 8D and 8E of the regulations prescribe the situations whereby the sale of liquor (as per the above definition) is exempt from the Act. Regulations 8A and 8F prescribe the situations where the consumption of liquor (brought to the premises by the customer) is exempt from the Act. Regulation 8G of the regulations prescribe exemption of sale, supply or consumption of liquor in relation to liquor competitions.
The Act regulates the sale, supply and consumption of liquor. However, there are a number of situations where the sale, supply and consumption of liquor is specifically exempted from the application of the Act. Such situations involve small amounts of liquor supplied in controlled environments and social situations where relatively few people are in attendance. These prescribed situations are only considered to be exempt from the Act when the exact conditions of the exemptions, as stated in the regulations, are met. The prescribed exemptions and the conditions of each are summarised below:
This exemption applies only when BYO liquor is consumed at a live entertainment venue. “Live entertainment” is defined in regulation 8A for the purposes of this exemption only. Live entertainment is musical, theatrical, dance or comic entertainment provided by one or more persons present at the venue. Live entertainment does not include:
Where the primary purpose of a venue is to facilitate continuous live entertainment, the consumption of BYO liquor on the premises is exempt from the Act, provided this consumption is ancillary to the provision of live entertainment. This exemption does not allow the sale and supply of liquor by the venue operator.
All of the following conditions must be met, in order for the consumption of BYO liquor at live entertainment venues to be exempt from the Act:
Where liquor consumption takes place at alive entertainment venue, the premises is deemed to be a ‘regulated premises’ under section 122 of the Act. Offence provisions under section 122 and section 115 therefore apply to the supply of liquor to juveniles and drunk persons, the consumption and possession of liquor by juveniles and the consumption of liquor by drunk persons on these premises.
Whilst the consumption of BYO liquor is exempt from the Act in many circumstances, it is important to note that section 119(7) of the Act prohibits allowing unlicensed premises “to be kept or used as a place of resort for the consumption of liquor”. The exemption relating to live entertainment venues therefore clarifies that this type of BYO consumption is not a breach of section 119(7).
The ‘small functions’ exemption:
The sale or supply of liquor at a function (where the serving of liquor is ancillary to the purpose of the function) is exempt from the Act, provided:
An “attendee” does not include a person who is:
Additionally, a drunk person is not allowed to consume liquor at the function, nor is liquor to be supplied to a drunk person.
For the purposes of this exemption, a function is defined under section 3(1) of the Act as: “a gathering, occasion 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 to those present.”
Where liquor is sold or supplied at a small function, the premises on which the function takes place is deemed to be ‘regulated premises’ under section 122 of the Act. Offence provisions under section 122 and section 115 therefore apply to the supply of liquor to juveniles and drunk persons, the consumption and possession of liquor by juveniles and the consumption of liquor by drunk persons on these premises.
Relevant only to the gratuitous supply of liquor when it is provided ancillary to the purpose of a customer’s attendance at a business.
This exemption provides that businesses may supply liquor to customers, provided it is gratuitous (without charge) and ancillary to the purpose of the customer’s attendance at the business. However, the quantity of liquor supplied can not be more than two standard drinks for consumption on the premises or one litre of packaged liquor for consumption away from the premises.
For example, a hair salon may wish to offer a complimentary glass of wine or champagne to a client; or a real estate agent may wish to offer a complimentary bottle of champagne to a home buyer.
A standard drink is defined as a drink containing no more than 10 grams of ethanol measured at 20°c. The Australian Guidelines to Reduce Health Risks from Drinking Alcohol, published by the National Health and Medical Research Council in February 2009 provide further guidance on the Australian standard drink size.
Where gratuitous liquor is supplied by a business in these circumstances, the business premises is deemed to be ‘regulated premises’ under section 122 of the Act. Offence provisions under section 122 and section 115 therefore apply to the supply of liquor to juveniles and drunk persons, the consumption and possession of liquor by juveniles and the consumption of liquor by drunk persons on these premises.
This exemption does not provide the means by which an entity can establish a permanent business in the sale and supply of liquor. In these instances, it would be necessary to obtain a permanent liquor licence.
The gratuitous (without charge) supply of liquor by a tourism business, either on the business premises or during the course of a tour, is exempt from the Act under the following conditions:
For the purpose of the regulations, the person who supplies the liquor to the customer is taken to mean the person in charge of the business such as the owner/manager and the tour leader. Staff that are involved in serving liquor (such as pouring glasses of wine for guests) will also require training, however staff who simply place liquor in a room or on a table for example, do not require training.
The ‘Provide Responsible Service of Alcohol’ course (SITHFAB002) is a nationally accredited course of training in responsible practices in the sale, supply and service of liquor which covers topics such as refusal of service, juveniles, identifying intoxication and refusal of service. Whilst parts of the course will not be relevant (as staff are not selling liquor), it is important that staff are aware of responsible practices so that liquor is not supplied to a juvenile or a drunk person in contravention of the exemption conditions.
The supply of liquor by a person who conducts, supervises or manages a bed and breakfast facility (with a maximum capacity of 8 guests at any one time) is exempt from the Act provided that all of these conditions are met:
The operator of a bed and breakfast facility may instead elect to rely on the tourism operator exemption, if they meet the requirements of that exemption category (see above).
Where one or more liquor producers host a stall at a farmers market, liquor may be sold or supplied where it is no more than 9 litres of packaged liquor per customer or by way of free sample. Orders can also be taken for larger quantities, with the sale or supply of the liquor to take place at a later date.
“Sample sizes” are prescribed in regulation 5A and can not be greater than 100ml for beer, 50ml for wine and 15ml for spirits.
“Farmers’ markets” are those markets where primary producers display and sell their products directly to the public. “Primary producers” include agriculture, pastoral pursuits, horticulture, grazing, dairy farming, bee-keeping, orcharding, viticulture, silviculture or other similar farming activities.
The stall and the area immediately surrounding the stall in which customers congregate to sample or purchase liquor, is deemed to be ‘regulated premises’ under section 122 of the Act. Offence provisions under section 122 and section 115 therefore apply to the supply of liquor to juveniles and drunk persons, the consumption and possession of liquor by juveniles and the consumption of liquor by drunk persons on these premises.
Where the organiser of a function enters into an arrangement with a licensee of an appropriately licensed premises and:
then, the sale or supply of liquor by the function organiser is exempt from the Act, provided that:
The consumption of liquor supplied by the passengers in charter vehicles that are licensed by the Department of Transport, are exempt from the Act, provided that all of the following conditions are met:
*On-demand charter vehicle authorisation is defined in the regulations as "a passenger transport vehicle authorisation that authorises the operation of the vehicle for use in providing an on-demand charter passenger transport service under the Transport (Road Passenger Services) Act 2018.
A ‘responsible adult’ is defined in section 125(2)(b) as:
“...an adult who is a parent, step-parent, spouse, de facto partner or legal guardian of the juvenile, or other person in loco parentis to the juvenile”.
Where BYO liquor consumption takes place in a charter vehicle, the vehicle is deemed to be ‘regulated premises’ under section 122 of the Act. Offence provisions under section 122 and section 115 therefore apply to the supply of liquor to juveniles and drunk persons, the consumption and possession of liquor by juveniles and the consumption of liquor by drunk persons on these premises.
Where a premises is licensed as a warehouse (under the Customs Act 1901) and the sale of liquor in bond by the proprietor occurs with a person who proposes to personally take the liquor outside of Australia, this sale is exempt from the Act.
The sale and supply of liquor is exempt when it occurs:
The sale or supply of liquor together with flowers, food or other products to be delivered by the vendor or supplier as a gift, to a person other than the purchaser, vendor or supplier is exempt from the Act, provided that the following conditions are met:
The value of the liquor and its container is based on the cost of buying that liquor from a liquor store/hotel licence.
The sale or supply of liquor as a prize in a lottery conducted in accordance with the Gaming and Wagering Commission Act 1987 is exempt from the Act.
The retail sale of an alcohol based food essence is exempt from the Act. This is defined as a flavour substance in liquid form, with a concentration of ethanol exceeding 1.15% by volume in a container that has a volume exceeding:
The sale must be authorised in writing by the Director of Liquor Licensing, in order for the exemption to apply.
The sale or supply of liquor is exempt from the Act where it is to a patient or resident at a:
The sale or supply of liquor is exempt from the Act where it is to a patient or resident and their guests at a:
The sale or supply is authorised by the person who conducts, manages, owns or operates the premises or is the approved provider of residential care. In respect of retirement villages, a resident who is a member of the residents’ committee, subcommittee, incorporated association or other body of residents is also authorised to sell/supply liquor.
The sale or supply of liquor and the consumption of liquor in a liquor competition is exempt for a:
as long as the liquor is sold or supplied by way of sample and the sale or supply and consumption of the liquor is incidental to the competition.
Offence provisions
Despite being exempt from the application of the Act, in many of the above situations the venue/premises are deemed to be regulated premises under section 122 of the Act. This means that offence provisions apply if a juvenile or drunk person is sold, supplied or permitted to consume liquor on the premises. The penalty for a breach of these sections of the Act is a fine of up to $10,000.
Section 3A of the Act states that a person is ‘drunk’ for the purposes of the Act if:
Business owners, managers and function organisers are advised to implement strategies to ensure that liquor is not consumed by juveniles or drunk persons on their premises.
The nationally accredited training unit on providing responsible service of alcohol covers topics such as duty of care, harm minimisation, refusal of service, affects of alcohol, juveniles, identifying intoxication and conflict resolution. Whilst this is not compulsory, training may assist with ensuring that liquor is not supplied to or consumed by juveniles and drunk persons, in breach of the Act. Further details regarding the course can be found in the Director’s Policy titled Mandatory Training.