Liquor Control Act 1988

In this Schedule, unless the context otherwise requires —

The mention of particular matters in this Schedule shall be without prejudice to the general application otherwise of section 36 and section 37 of the Interpretation Act 1984 (which relate to the effect of repeals).

Any reference, whether express or implied or having effect as such a reference, in any written law or document to, or to any provision of, the repealed Act shall be construed as a reference to this Act or, as the case may be, to the corresponding provision of this Act.

Any subsidiary legislation (other than regulations) made, or notice given or thing done, or having effect as being made, given or done, under a provision of the repealed Act which corresponds to a provision of this Act shall have effect as if it had been made, given or done under the corresponding provision of this Act.

A licence under the repealed Act corresponds to a particular class of licence under this Act if the licence would, if in force immediately before the appointed day, have been converted into a licence of that class by the operation of this Schedule.

A permit under the repealed Act corresponds to a particular class of licence under this Act or a particular kind of permit under this Act, as the case may be, if the permit would, if in force immediately before the appointed day, have been converted into a licence of that class or a permit of that kind by the operation of this Schedule.

A reference in this Schedule to the holder of a licence or permit under the repealed Act shall be read as including a person who is the holder of that licence or permit for the time being.

Any question as to whether —

a licence or permit under the repealed Act corresponds to a licence or permit under this Act; or

a provision of the repealed Act corresponds to a provision of this Act,

be treated as though it had been imposed, made or ordered under this Act, where a provision of this Act corresponds with the provision of the repealed Act concerned; and

be taken into account.

If, on the appointed day, an application for a licence or a permit had been made under the repealed Act but had not been determined and the decision had not been reserved, the proceedings based on that application may be continued and completed —

under this Act as if the application were an application for a licence of the corresponding class or a permit of a corresponding kind under this Act; or

subject to any direction or requirement made by the Director, where no corresponding provision appears in this Act as though for the purpose of determining the application the repealed Act continued to have effect, but any licence granted or permit issued shall be of a class or kind to which this Act applies.

If, on the appointed day, an application (not being an application for a licence or permit) had been made under a provision of the repealed Act but had not been determined and the decision had not been reserved, the proceedings based on the application may be continued and completed as if the application were an application under this Act in so far as a corresponding provision is contained in this Act.

Where in relation to any application made under the repealed Act for the renewal of a licence a notice of objection was lodged and that application had not been determined by the appointed day, the hearing of matters relating to that notice of objection may be continued as if the repealed Act continued to have effect but, if the Court determines that a ground of objection is established, effect may be given to section 96 as though the matter had been the subject of proceedings under section 95.

If, on the appointed day, an application under the repealed Act had been heard and the decision was then reserved, the decision may be given effect to as if the repealed Act continued to have effect but if a licence is granted pursuant to those proceedings it shall have effect as though it had been a licence of the kind granted in force immediately prior to the appointed day.

The Rules made under section 175 of the repealed Act shall continue to have effect as though —

made under section 22; and

a reference to the repealed Act or a provision of the repealed Act were a reference to this Act or a corresponding provision of this Act.

On the appointed day a person who, immediately before that day, held office —

as the judge under section 9 of the repealed Act, is deemed to have been appointed as the Liquor Licensing Court judge; or

as an acting judge under section 11 of the repealed Act, is deemed to have been appointed as an acting judge,

On the appointed day, the person who, immediately before that day, held office as Registrar of the Liquor Licensing Court —

shall be deemed to have been so appointed under the repealed Act; and

is deemed to have been appointed under the Public Service Act 1978 ² as Registrar for the purposes of this Act,

On the appointed day, the person who, immediately before that day, held an appointment as Director of Liquor Licensing under the repealed Act is deemed to have been appointed under the Public Service Act 1978 ² as Director of Liquor Licensing for the purposes of this Act.

On the appointed day, a person who, immediately before that day, held an appointment to an office under section 15 of the repealed Act is deemed to have been appointed under the Public Service Act 1978 ² to hold a like office for the time being under section 14 for the purposes of this Act.

The Governor may, by regulation, make transitional provisions —

fixing, or providing for the assessment and reassessment of, licence fees in respect of licences of any class that come into force by the operation of this Schedule or are granted in accordance with this Schedule in respect of not more than 2 licence years commencing after the appointed day; and

apportioning fees in respect of any licence or permit the period of which is terminated or extended by the operation of this Act; and

providing for the payment or refund of those fees.

Subject to subclause (4), a regulation made under subclause (1) shall have effect notwithstanding that it may be inconsistent with a provision of this Act.

The provisions of this Act and of the repealed Act, and in particular section 164B of that Act, relevant to the reassessment of licence fees under that Act and the recovery of fees in accordance with the reassessment shall have effect, notwithstanding the repeal of that Act, in respect of licence fees under that Act.

Where the Director is satisfied that if a licence fee were fixed under regulations made for the purposes of this clause a licensee would be in a less favourable position than if the repealed Act had continued to have effect, the Director may fix a fee at discretion so as to ensure that, so far as is practicable, the licensee is not placed in that position.

The delivery of distilled spirits in bond, by the occupier of a vineyard to the occupier of another vineyard, in respect of a sale effected prior to the appointed day is authorised and shall be deemed to be exempted from this Act.

Subject to this Schedule, terms or conditions —

which were fixed or imposed under the repealed Act, whether by that Act or by the licensing authority, in relation to licences, certificates, permits or other authorisations that are by the operation of this Schedule converted into licences or permits under this Act or otherwise continued in force under this Act; and

which are not inconsistent with this Act,

A delineation or definition of any premises made for the purposes of the repealed Act continues in operation, subject to this Act, for the purpose of ascertaining the extent of those premises.

Where for the purposes of the repealed Act any part of any premises was designated as an area in which liquor was authorised to be sold, supplied or consumed ancillary to a meal, notwithstanding that it would otherwise have been unlawful, that part of those premises continues, for the purposes of this Schedule, to be such an area.

The Director may, after giving the licensee a reasonable opportunity to make submissions or to be heard, redefine any licensed premises, within 2 years of the appointed day, in order to —

exclude areas not required to be licensed under this Act; or

bring any area into conformity with the requirements of this Act; or

give effect to this Schedule.

Any approval or authorisation granted under the repealed Act continues in force, subject to this Act, for the purposes of this Act.

Where under section 118(1)(b) of the repealed Act a licensee was required to cause a notice of the name of a nominee to be maintained, it shall be sufficient compliance with section 115(4) during the period of 6 months after the appointed day to maintain such a notice, if the person named in the notice is the manager.

Where a person was immediately before the appointed day a person who was approved as the nominee in relation to a licence under the repealed Act that person shall be deemed to have been approved under this Act as the manager in respect of the premises to which the licence under the repealed Act related.

On and after the appointed day a person who immediately before that date held a licence or a provisional certificate granted or permit issued and currently in force under the repealed Act shall, subject to this Act, be deemed to be the holder of a licence or permit in accordance with this Schedule, relating to the same premises, until —

where a permit was issued for a specified period or would otherwise have expired under the repealed Act, that permit expires; or

a licence is granted or a permit is issued to that person in accordance with subclause (2) in respect to those premises; or

it is surrendered; or

that licence or permit is cancelled under this Act by reason of —

section 93; or

a determination made under section 96.

As soon as practicable after the appointed day, the Director shall, without requiring any application unless this Schedule otherwise provides, grant to a person to whom subclause (1) applies a licence under this Act of a corresponding class, or shall issue to him a permit of a corresponding kind, relating to the same premises as were the subject of the former licence or permit under the repealed Act.

In determining the terms and conditions of the licence or permit to be issued under subclause (2), the Director shall have regard —

to the type of licence or permit held under the repealed Act; and

to any term or condition to which clause 5(1) applies and which relates or formerly related to the premises,

Where a licence or permit under the repealed Act is converted under this Schedule or a licence is to be granted under this Schedule, no approval or consent that would otherwise have been required in respect of a licence of that class under this Act is required for the purposes of or in relation to that conversion or grant.

Any conditions that were under the repealed Act imposed in relation to a provisional certificate for the grant or removal of a licence shall be deemed to have been imposed in relation to a conditional grant made under section 62 in respect of a licence of a corresponding class upon the same terms as were applicable to the provisional certificate.

Where, for any reason, the operation of a licence or permit was suspended or a licence was temporarily removed under the repealed Act, that licence or permit shall be deemed to be a licence or permit the operation of which is in like manner suspended or temporarily removed under this Act.

A licence or permit which comes into force or is issued under this Schedule —

does not have effect so as to prejudice any proceedings which may have been instituted under the repealed Act in relation to the carrying on of a business under that Act; and

is subject to proceedings under section 95 in respect of any matter of complaint which arose prior to the coming into operation of that section and is not the subject of proceedings under the repealed Act.

A winehouse licence, or an Australian wine licence, that was in force under the repealed Act immediately before the appointed day shall, on that day, become a special facility licence under this Act, subject to the like provisions as to the kind of liquor that may be sold and the conditions under which it may be sold as had effect in relation to that licence immediately before the appointed day, authorising the sale of liquor on the days, within the hours, in so far as they are not inconsistent with the permitted hours applicable to a hotel licence, that were applicable immediately before the appointed day, but not subject to the provisions of section 29(2) and section 39(4) of the repealed Act.

Notwithstanding clause 6(2), the Director may, instead of granting to a person who immediately before the appointed day held a licence under sections 29 or 39 of the repealed Act in respect of the same premises a special facility licence of the kind referred to in subclause (1), upon the lodging of a notice of application grant to that person in respect of premises comprising the whole or a part of the premises formerly licensed —

a special facility licence subject to a condition restricting the sale of liquor to —

wine and brandy, for consumption on or off the premises; and

beer (not being beer sold on draught) and spirits (other than brandy), for consumption on the licensed premises only;

a restaurant licence; or

a cabaret licence,

A cabaret licence that was in force under the repealed Act immediately before the appointed day shall, on that day, become a cabaret licence under this Act.

Notwithstanding subsection (1), where the licensed premises to which the cabaret licence relates were wholly or partly within licensed premises to which another licence related, and the holders of the licences respectively applicable agree or are the same person, the Director may, upon the lodging of a notice of application and the surrender of the cabaret licence, issue in respect of the premises to which the cabaret licence related an extended trading permit relating to that other licence on terms and conditions not less favourable to the licensee than those which applied in respect of the cabaret licence immediately before the appointed day.

A restaurant licence that was in force under the repealed Act immediately before the appointed day shall, on that day, become a restaurant licence under this Act.

Where, immediately before the appointed day, the holder of a restaurant licence held a lodger’s permit under section 34 of the repealed Act, or a reception area permit under section 40 of the repealed Act, in conjunction with the restaurant licence that permit continues in force as though it were an extended trading permit issued in relation to that licence.

Where, pursuant to the repealed Act, the holder of a hotel licence, a tavern licence, a limited hotel licence or a winehouse licence under the repealed Act had maintained on the licensed premises a dining room in which liquor was sold ancillary to a meal supplied by the licensee, the licensee is authorised, within the hours and upon the same terms and conditions that were applicable immediately before the appointed day, to continue to sell liquor for consumption in that dining room, or in a reception area used in conjunction with that dining room and to which a permit issued under section 40 of the repealed Act applied, ancillary to a meal supplied by the licensee in that dining room, until —

where the dining room was in a winehouse, a restaurant licence is applied for and granted; or

an extended trading permit is applied for and issued in respect of that dining room; or

a period of 2 years has expired since the appointed day,

Where a person to whom subclause (1) applies lodges a notice of application and satisfies the Director that the dining room, and any reception area used in conjunction with it, had immediately before the appointed day habitually been used for consumption of liquor ancillary to a meal supplied by the licensee the Director, as soon as practicable after the appointed day, shall —

where the dining room was in a winehouse, grant a restaurant licence; or

otherwise, issue an extended trading permit relating to the licence held by the applicant under this Act,

A store licence that was in force under the repealed Act immediately before the appointed day shall, on that day, become a liquor store licence under this Act.

Where, immediately before the appointed day, the holder of a store licence held a late delivery permit under section 36(3) of the repealed Act in conjunction with the store licence that permit continues in force as though it were an extended trading permit issued in relation to that licence.

Where hours of trading were chosen by the licensee under section 36(1a)(c) of the repealed Act and notified to the Director, that notification shall be deemed to have effect for the purposes of section 98(5).

A vigneron’s licence that was in force under the repealed Act immediately before the appointed day shall, on that day, become a producer’s licence under this Act.

Subject to subclause (4), a brewer’s licence that was in force under the repealed Act immediately before the appointed day shall, on that day, become a producer’s licence under this Act.

A producer’s licence to which this clause applies shall, until a period of 2 years has expired since the appointed day, not be subject to the requirement that liquor supplied by way of free sample is to be consumed only on a part of the licensed premises approved for the purpose by the Director.

The brewer’s licence that was, immediately before the appointed day, held by Carlton and United Breweries Limited in respect of premises at Lot 200 Fargo Way, Welshpool, shall, on that day, become a wholesaler’s licence under this Act.

Where —

before the appointed day a person purchased, or assumed the conduct of, a business conducted under a vigneron’s licence; and

that person holds a producer’s licence that is converted from a vigneron’s licence under this clause,

A wholesale licence that was in force under the repealed Act immediately before the appointed day shall, on that day, become a wholesaler’s licence under this Act.

A wholesaler’s licence to which this clause applies shall, until 1 July 1990, be deemed not to be subject to the condition referred to in section 58(3)(b).

In the assessment period commencing 1 July 1989 the holder of a wholesaler’s licence shall not, sell to unlicensed persons a greater percentage of liquor than was sold to unlicensed persons in the assessment period ending on 30 June 1989, that percentage being determined by the Director, and notified to the licensee by the Director in writing, and the determination of the Director not being subject to review or appeal.

A club licence that was in force under the repealed Act immediately before the appointed day shall, on that day, become a club licence under this Act.

An unlicensed club permit that was in force under the repealed Act immediately before the appointed day shall, on that day, become a club restricted licence under this Act subject to conditions restricting the authorisation for the sale of liquor —

to liquor purchased for the purpose by or on behalf of the club from one or more of suppliers authorised under section 42(2) of the repealed Act; or

where a term of, or condition applicable to, the permit under the repealed Act restricted the sale of liquor to liquor sold for consumption on the premises or the club’s hours of trading, or otherwise limited its activities, to liquor sold so as not to contravene that restriction or limitation; or

in such other manner as the Director may, by notice in writing varying the authorisation conferred by the former permit in a manner not less favourable to the licensee, direct,

Where, immediately before the appointed day, the holder of a club licence held a voluntary associations permit under section 35 of the repealed Act in respect of the club premises that permit continues in force as though it were an extended trading permit issued in relation to that licence.

Where, in relation to a club licence held by a body of persons not incorporated, a person was nominated under section 42(4) of the repealed Act to be responsible as permit holder on behalf of the club and was a person approved under the repealed Act, that person shall continue to be the person responsible accordingly in respect of the licence, until such time as some other person is nominated by the club and approved by the Director under this Act to hold the licence as trustee on behalf of the club.

Where a club comprises a body of persons not incorporated or deemed to be incorporated under the Associations Incorporation Act 1987 or any other written law and the Director is of the opinion that it is a body which is inappropriate to continue to be licensed by reason of it being unincorporated then —

if the Director so requires, the club shall seek to become an incorporated body; and

on lodgement of a copy of the certificate of incorporation, the Secretary of the club with the consent of the trustee may apply for the licence to be vested in that body and the licence shall be varied accordingly,

Where the constitution or any rules of a club which held a licence or permit under the repealed Act have not been approved by the Director under that Act, they shall for the purposes of this Act be deemed to have been provisionally approved as at the appointed day subject to any subsequent direction given by the Director.

A canteen licence that was in force under the repealed Act immediately before the appointed day shall, on that day, become a special facility licence under this Act, but for the purposes of the continuance in force of the term imposed by section 66(2) of the repealed Act —

the reference to “will not be renewed after” shall be construed as “, on application to the Court by the Director, may be cancelled on”; and

the reference to “an hotel or tavern licence” shall be construed as though it were a reference to a hotel licence, other than a hotel restricted licence, under this Act;

A theatre licence that was in force under the repealed Act immediately before the appointed day shall, on that day, become a special facility licence under this Act.

A ballroom licence that was in force under the repealed Act immediately before the appointed day shall, on that day, become a special facility licence under this Act.

A reception lodge licence that was in force under the repealed Act immediately before the appointed day shall, on that day, become a special facility licence under this Act.

A packet licence, and where the Director so requires all the packet licences held by the same licensee, in force under the repealed Act immediately before the appointed day shall, on that day, become a special facility licence under this Act, and where a permit was issued under section 33(4) of the repealed Act in relation to a day subsequent to the appointed day the terms and conditions of that permit shall have effect as though they were terms and conditions of an extended trading permit relating to the licence.

A railway refreshment room licence that was in force under the repealed Act immediately before the appointed day shall, on that day, become a special facility licence under this Act.

Where an Order was made under section 176 of the repealed Act relating to an historic inn, any licence or exemption granted pursuant to the Order that was in force under the repealed Act immediately before the appointed day shall, on that day, become a special facility licence under this Act authorising the sale of liquor on the days and within the hours applicable to a hotel licence under section 97.

Subject to subclause (7), for so long as a special facility licence remains in force by the operation of this clause in relation to any licence formerly held under the repealed Act it authorises the sale of liquor on the premises to which it relates on the days and within the hours that were authorised in relation to those premises by the repealed Act.

a certificate of exemption takes effect under section 54; or

a period of 2 years has expired since the appointed day,

that the licensed premises are, and throughout the occupancy of the licensee have consistently been, of an exceptionally high standard; and

that the requirements of section 46 are met,

References in a written law other than the repealed Act to the principal clerk or any other clerk of the Licensing Court of Western Australia, or to the Principal Receiver of Revenue, shall, if and to the extent that it is appropriate in the context so to do, be read and construed as references to the Director.

References in Order 64 of the Rules of the Supreme Court 1971 ³ to the Licensing Court of Western Australia shall be read and construed as references to the Liquor Licensing Court.

References in the Liquor Licensing (Moratorium) Act 1983 ⁴ or in an order made under section 5(1) of that Act to the Licensing Court of Western Australia shall, to the extent that it is appropriate in the context so to do, be read and construed as references to the licensing authority.