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Intro

Foreword

The Liquor Licensing Act 1988 (‘the Act’) came into operation on 1 February 1989 and effectively remained unchanged for ten years; significant changes came into effect in 1998 and 2007.

Principal features of the Act from 1989 to 1998

The licensing authority was comprised of the Liquor Licensing Court (comprised a person eligible to be appointed as a District Court Judge) and the Director (appointed under the Public Service Act 1978).

The licensing authority had absolute discretion under section 33 of the Act to grant or refuse applications in the public interest where sections 5 and 38 were relevant when making a decision.

Section 5 of the Act set out the objects as:

  1. to regulate, and to contribute to the proper development of, the liquor, hospitality and related industries in the State;
  2. to cater for the requirements of the tourism industry;
  3. to facilitate the use and development of licensed facilities reflecting the diversity of consumer demand;
  4. to provide adequate controls over, and over the persons directly or indirectly involved in, the sale, disposal and consumption of liquor; and
  5. to provide a flexible system, with as little formality or technicality as may be practicable, for the administration of the Act.

Under section 38 of the Act an applicant for the grant or removal of a Category A licence was required to satisfy the licensing authority that ‘the licence is necessary in order to provide for the reasonable requirements of the public for liquor and related services…’

All contested Category A applications for the grant or removal of a licence were to be determined by the Court and decisions of the Director were subject to appeal to the Court. The Court also dealt exclusively with disciplinary matters.

In 1998 the Liquor Licensing Amendment Act 1998 implemented a number of changes identified in the June 1995 report of the Minister for Racing and Gaming on the review of the Liquor Licensing Act, which in turn was premised on the April 1994 report of the review of the Liquor Licensing Act 1988.

Principal changes to the Act in 1988

Introduced reference to the minimisation of harm or ill‐health due to the use of liquor as a primary object of the Act together with another primary object of ‘to regulate the sale, supply and consumption of liquor’.

In carrying out its functions under the Act the licensing authority was required to have regard to the primary objects of the Act and also to the existing objects.

All applications (including contested Category A licence applications) to be determined by the Director unless the Director considered it was appropriate to refer the whole or part of the matter for hearing and determination by the Court.

In 2007 the Liquor and Gaming Legislation Amendment Act 2006 implemented a number of recommendations of the May 2005 report of the review of the Liquor Licensing Act 1988.

Principal changes to the Act in 2007

Changed the short title of the Act to the Liquor Control Act 1988.

The needs test as set out in section 38 of the Act was repealed and replaced with a requirement that an applicant ‘must satisfy the licensing authority that granting the application is in the public interest.’

The distinction of Category A and Category B licences was repealed; however, the licence categories of hotel licence, liquor store licence, restaurant licence, club licence etc, remained with the addition of a new small bar licence sub‐category.

The objects of the Act were amended to read:

  1. The primary objects of this Act are to:
    1. to regulate the sale, supply and consumption of liquor; and
    2. to minimise harm or ill‐health caused to people, or any group of people, due to the use of liquor; and
    3. to cater for the requirements of consumers for liquor and related services, with regard to the proper development of the liquor industry, the tourism industry and other hospitality industries in the State.
  2. In carrying out its functions under this Act, the licensing authority shall have regard to the primary objects of this Act and also to the following secondary objects:
    1. facilitate the use and development of licensed facilities, including their use and development for the performance of live original music, reflecting the diversity of the requirements of consumers in the State; and
    2. to provide adequate controls over, and over the persons directly or indirectly involved in, the sale, disposal and consumption of liquor; and
    3. to provide a flexible system, with as little formality or technicality as may be practicable, for the administration of this Act.

The Liquor Licensing Court was replaced by the Liquor Commission.

In the five years since the 2007 amendments came into operation, there has been much community interest in the operation and effectiveness of various provisions of the Liquor Control Act 1988.

There has been particular interest from members of the Parliament, media, stakeholders in the liquor and tourism industries and the health sector, in the application of the public interest test to liquor licensing matters. In addition, Report No. 10 of the Education and Health Standing Committee of the Legislative Assembly (Alcohol: Reducing the Harm and Curbing the Culture of Excess) was tabled in the Parliament in June 2011.

Consequently, the Honourable Terry Waldron MLA, Minister for Racing and Gaming, appointed an independent review Committee in December 2012, consisting of Mr John Atkins (Chairman), Mr Ian Stanley and Ms Nicole Roocke. Mrs Donna Kennedy was appointed as the Executive Officer to the Committee.

The Committee sought input and comments from a wide cross‐section of the community on the matters raised in the Terms of Reference. A request for public submissions was published in The Weekend West and The Weekend Australian on 12 January 2013 and The Sunday Times on 13 January 2013.

In total 149 submissions were received (Refer Appendix 1) with 84 of those submissions being published on the Department or Racing, Gaming and Liquor website with the consent of the submitter. Where the submitter did not consent, the submission was not published.

In addition to the written submissions, follow‐up meetings were conducted with a number of parties who had lodged a submission and other relevant stakeholders where the Committee identified a need. Refer Appendix 2.

The Committee also met with regulators, police and industry stakeholders in Victoria, New South Wales and New Zealand.

One of the Terms of Reference required the Committee to consider ‘the appropriateness of the current restrictions allowing the consumption of liquor without a meal in restaurants’. However, on 30 May 2013 the State Government announced changes to make it easier for restaurants to serve liquor without a meal by amending the Liquor Control Regulations to reduce the red tape, time and expense for restaurants applying for a liquor without a meal permit. The provisions came into effect on 4 June 2013 with the government making a commitment the provisions relating to restaurant licences would be amended as part of the review.

It was not possible for the Committee to specifically address every issue raised in the various submissions received. Many suggestions can already be accommodated under the existing provisions of the Act or were matters the Committee considered but did not support. The Committee would like to express its appreciation and thank all those persons and organisations who lodged submissions or gave their time to meet with the Committee.

Terms of Reference

In conducting the review, the Committee is to consider matters relevant to the operation and effectiveness of the Liquor Control Act 1988, having regard to the changing community needs and attitudes relating to the accessibility of liquor and related services. In considering the interest and needs of the West Australian community, the Committee is to have particular regard to:
  • balancing the requirements of consumers for liquor and related services with minimizing harm or ill‐health caused to people or any group of people, due to the use of liquor;
  • the interests and needs of persons selling or supplying liquor; and
  • the interests and needs of the tourism industry and other hospitality industries in this state.

Other matters the Committee should consider include:

  • the appropriateness of the objects of the Act;
  • the constitution of the licensing authority;
  • the public interests criteria for low risk venues versus high risk venues;
  • the continuation of the section 38(5) restriction of three years on re‐applying for a liquor licence that is refused in the public interests;
  • the continuation of the current licence classification system, inclusive of issues relating to:
    • the small bar licence as a category of hotel licence and the viability of the current restriction of 120 persons;
    • the impact of the electronic age and the rapid development of internet sales; and
    • producers meeting the requirements of consumers for liquor on‐site.
  • the appropriateness of the current restrictions allowing the consumption of liquor without a meal in restaurants;
  • non‐metropolitan liquor stores trading on Sundays;
  • the trading hours of hotels and the role of extended trading permits in this regard, with particular reference to the distinction between the services offered by hotels and nightclubs;
  • introducing into the Act a penalty for the secondary supply of liquor to juveniles;
  • the definition of ‘drunk’;
  • exemptions provided under section 6 of the Act;
  • the appropriateness of penalties contained within the Act; and
  • the advertising and marketing of liquor products.

Introduction

“We have to accept ... that ‘alcohol is not an ordinary commodity’. If it is left to personal choice as an entirely libertarian issue, we will run into problems. It is a drug. It is a drug of dependence. It is a psychoactive drug. It happens to be legal. We do not want to make it illegal, but it does require different handling from soap powder and other things that may be dealt with otherwise by the free market.”
Sir Ian Gilmore, UK Professor, July 2012

Liquor is a legal product which has played a central role in our culture for generations as both a social activity and a religious ceremonial ritual. Attempts at prohibition have never been successful. Notwithstanding this, there is a reason why we need to rigorously regulate the sale, supply and consumption of liquor in Western Australia.

While moderate, unproblematic drinking is the norm in Western Australia, there is the potential for liquor to be misused with serious negative consequences. While only a minority of the community are drinking at excessive and immediately risky levels, the potential for harm resulting from lower level alcohol consumption is becoming more and more evident.

There is a growing body of research and growing community awareness that it is not just episodic, determined or binge drinking that is a problem, but also the risks associated with what is considered by many to be normal drinking over long periods of time.

While attention is often given to the immediate harm caused by alcohol consumption there is evidence which shows the long term impact across the community of drinking above the recommended drinking guidelines is just as serious.

The impact of all forms of harmful drinking extends beyond the drinker and has a significant impact on families and carers as well as health and law enforcement services, local government and government agencies such as child protection, education, corrective services, mental health and housing.

In this regard, the rates of alcohol‐related Emergency Department presentations have increased significantly in the last five years and the number of alcohol‐related hospitalisations has increased by over a third for residents in the Metropolitan area.1

The financial cost this imposes on the whole community through increases in taxes and charges and regulation is very significant.

The Committee notes while the majority of liquor is supplied through packaged liquor outlets such as liquor stores, hotels and taverns, the harm or inconvenience to society and individuals caused by anti‐social behaviour tends to mostly become apparent in and around venues where liquor is consumed such as hotels, bars and nightclubs and on the resulting impact on the health, Police and community services systems. It is also important to consider the harm caused in domestic settings such as alcohol‐related domestic violence.

The Committee considers both short term and long term alcohol‐related harm needs to be addressed and believes this will require a degree of cultural change around our society’s habits and behaviours. In this regard, while regulation is an important part of the solution, it cannot achieve cultural change alone.

Community education is equally if not more important. Piecemeal measures are unlikely to be effective.

Alcohol policy should be thought of as a long term integrated strategy with a comprehensive approach incorporating regulation and education.

There is also considerable community concern about alcohol use by young people. The Committee considers there is a particular need to take strong action to address the concerns and issues in relation to juveniles and their access to liquor.

There is apparent community support for strategies such as secondary supply provisions and controlled purchase operations as ways to reduce access to liquor by juveniles, which will ultimately lead to a reduction in alcohol‐related harm amongst juveniles.

The Committee considers the right to sell and supply liquor comes with responsibilities. While industry participants have expressed concerns regarding delays in process and procedure, it is important to recognise from a community perspective the overall impact of liquor has far reaching consequences. Pursuing efficiency in processes should not come to the detriment of preventing negative health outcomes.

Notwithstanding this, the Committee acknowledges the liquor industry contributes significantly to the State economy and provides broad employment opportunities. The economic viability of these businesses is a legitimate factor to be taken into account when considering the nature and extent of regulation.

Aims of the recommendations

In making the recommendations contained in this report the Committee focussed on:

  • Minimising harm and protecting juveniles and other at risk members groups in the community;
  • Providing certainty for applicants, stakeholders and industry participants and improving transparency and expediency;
  • Improving stakeholder and community engagement;
  • Regulatory reform and reducing regulatory burden;
  • Strengthening compliance and enforcement provisions; and
  • Community attitudes and culture.

It is important to note in formulating the recommendations, the Committee took care to ensure the amendments proposed in the recommendations will not impose an unreasonable compliance burden on industry or administrative costs on government that are not balanced by the benefits they will deliver.

The Committee through its recommendations has endeavoured to construct a flexible framework allowing regulation to evolve to meet changing community expectations.

Harm Minimisation

The Committee considered measures to restrict the availability of alcohol such as outlet density, hours of operation and access to liquor by juveniles. Strategies to reduce both short and long term alcohol‐related harm as well as the impact of harmful drinking on the social environment and the WA Police, health services and government agencies were also considered. In this regard, the Committee has made recommendations which will provide an avenue to partially fund the significant education exercise that needs to be undertaken to address the cultural change required if we are to achieve an improved drinking culture. The Committee has made recommendations which:‐  seek to address community concerns with respect to juveniles and young people;  will enhance the public interest assessment process through including reference to outlet density; and  change the objects of the Act, which while seeking to maintain the positive tension created by balancing legitimate community interest with a very strong focus on minimising harm, seek to rebalance that relationship towards a greater emphasis on minimising harm.

Certainty and transparency

The Committee considered ways to improve the licensing process with the aim of improving efficiency, transparency and the administration of the Act while balancing the regulation of the sale and supply of liquor and the potential impact on the community and public health outcomes. In this regard, the Committee has made recommendations which should improve the transparency and efficiency of the system at all levels.

Improving stakeholder and community engagement

The Committee considered the importance of opportunities for community members to express their concerns regarding the potential impact of a proposed licensed premises and looked at ways to allow for efficient opportunities for residents and community members to engage in the licensing process. In this regard, the Committee has made recommendations which will improve and enhance community engagement in the decision making process.

Regulatory reform and reducing regulatory burden

The Committee considered ways to reduce regulatory burden on industry participants where possible and where appropriate. This includes measures to make processes more efficient and in some cases, removing the need to apply for certain approvals.

Compliance and enforcement

The Committee considered the degree to which the provisions of the Act are enforced, the impact that has on the operation of licensed premises and the compliance rate of licensees and if there was an opportunity to strengthen or enhance the existing offence provisions in the Act.

Community attitudes and culture

The Committee acknowledges changing attitudes through government policy and regulation is difficult but believes a positive change in Western Australian’s drinking culture is crucial to addressing both short and long term alcohol‐related harm. This change in culture will be evidenced by changing social norms around alcohol consumption, with individuals not drinking at risky levels and consuming alcohol at more moderate levels; people being held responsible for their drinking behaviour and a general intolerance of disruptive drinking. As mentioned previously, this will only be possible as part of a comprehensive approach. In this regard, the Committee has made recommendations which will create greater accountability and responsibility for both licensees and consumers as well as providing an avenue to partially fund the significant education exercise needed to address the cultural change required if we are to achieve an improved drinking culture.

As a result of the 2005 review of the Act and the adoption by the government of the majority of the recommendations made in the Freemantle Report, significant amendments were made to the Act in 2006 and 2007. These include:

  • The establishment of the Liquor Commission and the changed role of the Director of Liquor Licensing which resulted in a less adversarial approach;
  • The introduction of the small bar licence which has had a positive impact on the drinking culture in Western Australia;
  • The move to a public interest test rather than a public need test for a licence and the subsequent adoption of public interest assessments;
  • Upgraded training requirements for licensees, approved managers and staff in the management of licensed premises and the responsible service of alcohol;
  • Provisions to enable liquor restrictions to be imposed on a remote community;
  • The introduction of Sunday trading for metropolitan liquor stores;
  • The ability for restaurants to sell liquor without a meal in the whole licensed premises by way of an extended trading permit;
  • The ability for the licensing authority to use confidential police information to determine applications; and
  • Provisions requiring licensees to provide free drinking water at all times. The Committee has sought to preserve and enhance these positive measures introduced as part of the last major review, while removing some anomalies.

While the administrative changes of the last review have been largely positive the Committee acknowledges there is room for improvement including removing or applying a light handed level of administrative oversight where it is demonstrated through performance that risk to the community is relatively low.

There is a clear desire for greater transparency in process in the operations of the Liquor Commission and the licensing authority.

The Committee also notes with approval a number of the recommendations in this report are along similar lines to those made in the Alcohol Action Plan published by the Australian National Council on Drugs (Refer Appendix 3). The Alcohol Action Plan makes the following recommendations:

  1. Increase informed public engagement with the harms associated with alcohol;
  2. Obtain data on alcohol consumption and harms essential to informing effective responses that have currency and are sensitive to change;
  3. Support local‐level interventions in alcohol‐related harms;
  4. Recognise the critical role of regulating the availability of alcohol in reducing alcohol‐ related harms;
  5. Regulate alcohol advertising, promotions and sponsorship;
  6. Enhance treatment responses for the whole population and for specific high‐risk groups;
  7. Address alcohol‐related problems among older Australians; and
  8. Address alcohol consumption and harms among young people.

Structure of report

Unless indicated by quotation marks, the submissions have been summarised and referenced in the relevant section. It should be noted the Committee has not expressed a view on the submissions where they have been summarised and the submitters views have been referenced in full. The Committee’s views can be found under the conclusions of each section only.

Related pages

Page reviewed 25 June 2019