Victorian Numbered Acts Victorian Numbered ActsAfter Part 9 of the Liquor Control Reform Act 1998 insert —
(1) The Victorian Liquor Commission is established.
(2) The Commission—
(a) is a body corporate with perpetual succession; and
(b) has a common seal; and
(c) may acquire, hold and dispose of real and personal property; and
(d) may do and suffer all acts and things that a body corporate may by law do or suffer.
(3) The common seal of the Commission—
(a) must be kept in such custody as the Commission directs; and
(b) must not be used except as authorised by the Commission.
(4) All courts must take judicial notice of the seal of the Commission affixed to a document and, until the contrary is proved, must presume that it was duly affixed.
In performing its functions and exercising its powers, the Commission represents the Crown.
(1) The functions of the Commission are—
(a) to perform the regulatory, investigative and disciplinary functions conferred on the Commission by or under this Act and the regulations; and
(b) to undertake licensing, approval, authorisation and registration activities under this Act and the regulations; and
(c) to promote and monitor compliance with this Act and the regulations; and
(d) to detect and respond to contraventions of this Act and the regulations; and
(e) to advise the Minister in relation to the Commission's functions under this Act and the regulations; and
(f) to advise the Minister on the operation of this Act and the regulations; and
(g) to ensure that Government policy in relation to liquor is implemented; and
(h) to inform and educate the public about the Commission's regulatory practices and requirements.
(2) The Commission also has the function of informing itself, in the manner it sees fit, as to its functions and the operation of this Act.
(3) The Commission, when performing functions or duties or exercising powers, must have regard to the objects of this Act.
Subject to this Act, the Commission has power to do all things necessary or convenient to be done for or in connection with the performance of its functions.
(1) The Commission consists of the following members—
(a) a commissioner appointed as Chairperson;
(b) one or more commissioners (other than the Chairperson) appointed as Deputy Chairpersons;
(c) as many additional and sessional commissioners as the Minister considers necessary to enable the Commission to perform its functions.
Note
Commissioners are appointed by the Governor in Council on the recommendation of the Minister—see sections 172H to 172K.
(2) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a commissioner in respect of the office of commissioner.
(3) For the purposes of the Public Administration Act 2004 , the Commission is the Commission as constituted under subsection (1), other than sessional commissioners.
(1) When recommending persons for appointment as commissioners, the Minister must ensure as far as is practicable that collectively the commissioners have the following—
(a) health sector experience, including experience in public health or psychology;
(b) regulatory experience;
(c) public policy experience;
(d) at least 5 years' practice as an Australian legal practitioner;
(e) any other qualifications, experience or expertise that the Minister considers relevant.
(2) Despite subsection (1), a person is not eligible to be appointed as a commissioner if the person has, at any time in the previous 2 years, been the subject of a disqualification determination under section 93D.
(1) The Governor in Council, on the recommendation of the Minister, may appoint an eligible person as Chairperson.
(2) The appointment may be on a full-time or part-time basis, on the terms and conditions determined by the Governor in Council.
(1) The Governor in Council, on the recommendation of the Minister, may appoint one or more eligible persons as Deputy Chairpersons.
(2) The appointment may be on a full-time or part-time basis, on the terms and conditions determined by the Governor in Council.
(1) The Governor in Council, on the recommendation of the Minister, may appoint eligible persons as additional commissioners.
(2) The appointment may be on a full-time or part-time basis, on the terms and conditions determined by the Governor in Council.
(1) The Governor in Council, on the recommendation of the Minister, may appoint eligible persons as sessional commissioners.
(2) The appointment of a sessional commissioner is to be on a part-time or daily basis, on the terms and conditions determined by the Governor in Council.
(3) A sessional commissioner may be appointed—
(a) for a specific period; or
(b) for a specific matter.
(4) If the instrument of appointment of a sessional commissioner specifies that the commissioner is appointed for the purposes of a specific matter, the commissioner—
(a) must be allocated to that matter; and
(b) may perform the functions of a commissioner only in relation to that matter.
(5) If a sessional commissioner is appointed for a specified period without a specified purpose as set out in subsection (3)—
(a) the Chairperson may allocate the sessional commissioner to a matter as the Chairperson sees fit; and
(b) the sessional commissioner may perform the functions of a commissioner in relation to that matter.
(1) A commissioner—
(a) holds office for the period, not exceeding 5 years, specified in the instrument of appointment; and
(b) is eligible for re-appointment for a further term or terms.
(2) A commissioner is entitled to the remuneration specified in the instrument of appointment.
(1) The Minister may appoint a person to act in the office of commissioner (other than as a sessional commissioner), for a period not exceeding 6 months—
(a) if a commissioner is absent or, for any other reason, is unable to perform the duties of office; or
(b) during a vacancy in the office of commissioner; or
(c) if the Minister considers that an appointment under this section is necessary to assist the Commission in the performance of its functions.
(2) An acting commissioner is eligible for re‑appointment for a further term or terms.
(3) The Minister may—
(a) determine the terms and conditions of appointment of an acting commissioner; and
(b) terminate the appointment at any time.
(4) While acting in a commissioner's place, the acting commissioner—
(a) has and may perform all the functions of the commissioner; and
(b) is entitled to be paid the remuneration to which the commissioner would have been entitled.
(5) The Minister may appoint a commissioner to act in the office of Chairperson if the Chairperson is absent or, for any other reason, is unable to perform the duties of office.
(6) While acting in the Chairperson's place, the acting Chairperson—
(a) has and may perform all the functions of the Chairperson; and
(b) is entitled to be paid the remuneration to which the Chairperson would have been entitled.
(7) A person appointed under this section may resign from that acting appointment by notice in writing delivered to the Minister.
(1) A commissioner's office becomes vacant if the commissioner—
(a) becomes bankrupt; or
(b) is convicted in Victoria of an indictable offence or elsewhere of an offence that, if committed in Victoria, would be an indictable offence; or
(c) is removed from office under subsection (2); or
(d) resigns by notice in writing delivered to the Governor in Council.
(2) The Governor in Council, on the recommendation of the Minister, may remove a commissioner from office if the commissioner—
(a) has refused, neglected, or failed to carry out the functions or duties of office; or
(b) has engaged in misconduct in carrying out the functions, powers or duties of office.
(3) If a commissioner is removed from office under subsection (2), the Minister must cause to be laid before each House of Parliament a full statement of the grounds of the removal within 10 sitting days of that House after the removal.
A decision of the Commission is not invalid merely because of a defect or irregularity in, or in connection with, the appointment of a commissioner or acting commissioner.
(1) If a commissioner (other than the Chairperson) has an interest in a matter being considered, or about to be considered, by the Commission, the commissioner must, as soon as practicable after the relevant facts come to the commissioner's knowledge, disclose the nature of the interest to the Chairperson.
(2) If the Chairperson has an interest in a matter being considered, or about to be considered, by the Commission, the Chairperson must, as soon as practicable after the relevant facts come to the Chairperson's knowledge, disclose the nature of the interest to the Minister.
(3) The Commission must make guidelines specifying the types of interests that a commissioner must disclose for the purposes of this section.
(4) The Commission must cause guidelines made under this section to be published on the Commission's Internet site.
(1) A commissioner, or a delegate of the Commission or of a commissioner, is not personally liable for anything done or omitted to be done in good faith—
(a) in the exercise of a power or the performance of a function under this Act or the regulations; or
(b) in the reasonable belief that the act or omission was in the exercise of a power or the performance of a function under this Act or the regulations.
(2) Any liability resulting from an act or omission that, but for subsection (1), would attach to a commissioner or delegate attaches instead to the Commission.
(1) A commissioner (other than the Chairperson) is not authorised to perform the functions of an authorised person under this Act unless the commissioner is in possession of an identity card in the form approved by the Chairperson.
(2) The Chairperson is not authorised to perform the functions of an authorised person under this Act unless the Chairperson is in possession of an identity card in the form approved by the Commission.
(3) The identity card must bear a photograph and the name and signature of the commissioner.
(4) In the course of performing a function as an authorised person, a commissioner must, if requested to do so by a person affected by the performance of that function, produce the commissioner's identity card for inspection by the person, unless to do so would defeat the purpose for which the function is to be performed.
(1) Any employees that are necessary for the purposes of performing the functions of the Commission under this Act, the regulations and any other Act may be employed by the Secretary under Part 3 of the Public Administration Act 2004 .
(2) The Commission may—
(a) enter into agreements or arrangements for the use of the services of any staff of a Department, statutory authority or other public body; and
(b) engage persons with suitable qualifications and experience as consultants.
(3) The Commission may, by instrument, nominate a person by name to assist or advise the Commission in the performance of functions under this Act, the regulations or any other Act.
(4) A nomination under subsection (3) must specify the functions in relation to which the nominated person is to assist or advise the Commission.
(5) A nomination under subsection (3) remains in force for the period determined by the Commission and may be extended from time to time by the Commission.
(1) The Commission, by instrument, may delegate any power or function of the Commission under this Act or the regulations, other than a function specified in subsection (2), to—
(a) a commissioner; or
(b) a person employed under Part 3 of the Public Administration Act 2004 .
(2) The following functions of the Commission are not delegable under subsection (1)—
(a) a late hour entry declaration for an area or locality under section 58B;
(b) a function under Divisions 1 and 2 of Part 6 (other than the giving of a specified notice);
(c) internal reviews under Division 2 of Part 9 (other than the giving of a notification under section 154).
(3) Despite sub section (2), the Commission, by instrument, may delegate to a commissioner—
(a) the power to determine whether to conduct an inquiry under section 91 or 94, but not the power to conduct the inquiry; and
(b) the power to allow a longer period under section 153(2)(a)(iii) for an application to be made under section 153; and
(c) the power to make a decision under section 160 to stay the operation of a decision pending review, including the power to attach conditions to the stay under section 160(5).
(4) For the purposes of subsection (2)(b), "specified notice" means notice given or published under any of the following—
(a) section 92(1);
(b) section 92A(1)(a);
(c) section 92A(1)(b);
(d) section 93(2)(a);
(e) section 93D(4)(a);
(f) section 93E(3)(a);
(g) section 94A(1);
(h) section 94B(1).
(1) The Commission must endeavour to perform its functions and exercise its powers without undue formality, and as expeditiously as practicable, as the requirements of this Act and the proper consideration of the subject matter permit.
(2) Without limiting subsection (1), the Commission is required to inform an applicant for a licence or BYO permit of the Commission's decision in respect of the applicant's matter, and any other party to that matter, as soon as practicable after making the decision.
(3) When performing functions or exercising powers under this Act or the regulations, the Commission must—
(a) comply with any directions of the Minister under section 172V; and
(b) have regard to any decision-making guidelines issued by the Minister under subsection (4).
(4) The Minister may issue decision-making guidelines in respect of the regulation of liquor.
(5) Decision-making guidelines issued by the Minister under subsection (4) must be published in the Government Gazette.
(1) Subject to subsection (2), the Minister may give a written direction to the Commission in relation to the performance of its functions or the exercise of its powers.
(2) A direction cannot be given under this section in relation to—
(a) the content of any advice, report or recommendation given to the Minister by the Commission; or
(b) the granting, issuing, variation, transfer, relocation, suspension or cancellation of a licence or BYO permit; or
(c) the conducting of an inquiry or taking of disciplinary action under Part 6.
(3) Subject to subsection (4), the Minister must cause to be published in the Government Gazette—
(a) a direction given under this section; and
(b) the reasons for giving the direction.
(4) The Minister is not required to publish any information under subsection (3) that in the Minister's opinion is confidential or commercially sensitive.
(1) A function or power of the Commission is to be performed or exercised by the Commission at a meeting, or an inquiry, in accordance with this Division and Division 2 of Part 9B.
(2) A function of the Commission that this Act or the regulations provides may be performed by any commissioner may also be performed by the Commission at a meeting convened or inquiry arranged in accordance with this Division and Division 2 of Part 9B.
(3) In performing a function or exercising a power, the Commission—
(a) except when exercising a power under Division 5 of Part I of the Evidence (Miscellaneous Provisions) Act 1958 , is not bound by the rules of evidence but may inform itself in any way it thinks fit; and
Note
See section 172ZF(3).
(b) is bound by the rules of natural justice.
(1) The Chairperson—
(a) must convene as many meetings of the Commission as the Chairperson considers necessary for the efficient conduct of its affairs; and
(b) may arrange for the Commission to conduct an inquiry.
(2) A meeting convened, or inquiry arranged, in accordance with this section, may be conducted at a place determined by the Chairperson.
(3) The Chairperson, or in the Chairperson's absence and if there is no acting Chairperson, a Deputy Chairperson, is to preside at a meeting of the Commission.
(4) Subject to this Act and the regulations, the Commission may regulate its own procedure.
(5) If the Chairperson arranges an inquiry to be conducted by 3 or more commissioners, the Chairperson may be the presiding commissioner, or must appoint one of the commissioners to be the presiding commissioner.
(1) A meeting of the Commission may be conducted by telephone, closed circuit television or other means of communication that does not require the physical presence of each commissioner in the same room.
(2) The quorum for a meeting of the Commission is 3 commissioners, at least one of whom must be the Chairperson or a Deputy Chairperson.
(3) If a sessional commissioner has been appointed for a specific matter, the quorum for a meeting of the Commission that is to perform any function in relation to that matter must include that sessional commissioner.
(4) A matter arising at a meeting is determined by a majority of votes of the commissioners present and voting on the question and the person presiding has a deliberative vote and, if voting is equal, a second or casting vote.
(1) The Commission may conduct meetings and inquiries in public or private.
(2) However, an inquiry conducted for the purposes of making a finding or a determination relating to any of the following matters must be conducted in public unless the Commission determines, under subsection (3), that there are special circumstances requiring that the inquiry or part of it should be conducted in private—
(a) a liquor licence application if an objection, on the grounds of either amenity or harm under section 38, 40 or 41(1)(b), is lodged in accordance with the requirements of this Act;
(b) a late hour entry declaration for an area or locality under section 58B;
(c) a disciplinary action inquiry under section 91;
(d) an inquiry into amenity or disuse under section 94.
(3) The Commission may direct that an inquiry or part of it be conducted in private if the Commission considers that special circumstances of a kind specified in paragraph (a) or (b) exist—
(a) to prevent the unreasonable divulgence of information relating to the personal affairs of any person (including a deceased person); or
(b) it is otherwise in the interests of justice or the public interest to do so.
(4) The Commission must advise that the Commission is conducting an inquiry in public by notice published on the Internet site of the Commission.
(5) In the notice published under subsection (4), the Commission must—
(a) specify the type of inquiry being conducted; and
(b) specify the date, time and place of the inquiry.
(1) The Chairperson may, by instrument, appoint as a liquor inspector for the purposes of this Act and the regulations a person employed under Part 3 of the Public Administration Act 2004 who, in the Chairperson's opinion—
(a) is competent to perform the functions of an inspector; and
(b) is of good reputation, having regard to character, honesty and integrity.
(2) Unless the Chairperson considers that there are special circumstances, the Chairperson cannot appoint as a liquor inspector a person who is, or at any time in the previous 2 years has been, the subject of a disqualification determination under section 93D.
(1) The Commission may require a person under consideration for appointment as a liquor inspector to consent to having the person's photograph, finger prints and palm prints taken.
(2) The Commission must refer a copy of any photograph, finger prints and palm prints and any supporting documentation to the Chief Commissioner of Police.
(3) The Chief Commissioner of Police must inquire into and report to the Commission on matters relating to whether the person under consideration is of good repute, having regard to character, honesty and integrity.
(4) The Chief Commissioner of Police must ensure that—
(a) any copies of photographs, finger prints and palm prints and any supporting documentation received under subsection (2) are destroyed—
(i) within 28 days after they are no longer required in connection with the Chief Commissioner's inquiry and report under subsection (3); or
(ii) no later than 6 months from the date they were received—
whichever is the earlier; and
(b) the person to whom they relate is notified of the destruction as soon as practicable.
(5) The Chairperson must ensure that—
(a) any photographs, finger prints or palm prints taken under subsection (1) are destroyed—
(i) within 28 days after they are no longer required in connection with the consideration of the person's appointment as a liquor inspector; or
(ii) no later than 6 months from the date they were taken—
whichever is the earlier; and
(b) the person to whom they relate is notified of the destruction as soon as practicable.
(1) A liquor inspector has the following functions—
(a) any functions conferred on a liquor inspector under this Act or the regulations;
(b) any other functions conferred on a liquor inspector under any other Act or regulations made under any other Act.
(2) A liquor inspector has all the powers necessary to perform the inspector's functions.
(3) Without limiting subsection (2), a liquor inspector may—
(a) with the approval of the Commission, bring proceedings for offences against this Act or the regulations; and
(b) appear personally or be represented by an Australian lawyer in any proceedings the liquor inspector has become involved in as a consequence of performing the functions of a liquor inspector.
(1) A liquor inspector is not authorised to perform the functions of a liquor inspector unless the liquor inspector is in possession of an identity card in the form approved by the Chairperson.
(2) The identity card must bear a photograph and the name and signature of the liquor inspector.
(3) In the course of performing a function as a liquor inspector, a liquor inspector must, if requested to do so by a person affected by the performance of that function, produce the liquor inspector's identity card for inspection by the person, unless to do so would defeat the purpose for which the function is to be performed.
(1) For the purposes of performing its functions or exercising its powers under this Act or the regulations, the Commission may carry out investigations.
(2) An investigation under this Division may include (but is not limited to) an investigation of any or all of the following—
(a) a person who, in the opinion of the Commission, is a regulated person;
(b) the conduct and practices of a person referred to in paragraph (a);
(c) a person who, in the opinion of the Commission, could affect the exercise of functions in or in relation to the conduct of the operations of a regulated person under a licence or BYO permit;
(d) a person who, in the opinion of the Commission, could be in a position to exercise direct or indirect control over a regulated person, in relation to functions in or in relation to the conduct of operations under a licence or BYO permit;
(e) any contravention or suspected contravention of this Act;
(f) matters relevant to the functions, powers or duties of the Commission or the operation of this Act or the regulations.
(3) An investigation under this Division may include making an enquiry of a preliminary nature.
(4) In this section—
"regulated person" means—
(a) a licensee or permittee; or
(b) a responsible person; or
(c) a member of the committee of management of a licensee or permittee (if it is a club); or
(d) a nominee of the licensee or permittee (if it is a club); or
(e) a person who, directly or indirectly, is concerned in or takes part in the management of licensed premises; or
(f) an applicant for a licence or BYO permit; or
(g) a person who carries on a business specified under sections 6A to 6D.
(1) The Commission may conduct an inquiry for the purposes of performing its functions or exercising its powers under this Act or the regulations.
(2) At least one commissioner must preside at an inquiry.
(3) When conducting an inquiry for the purposes of performing its functions under section 172D(1)(a), (b), (c) or (d), the Commission is taken to be a board appointed by the Governor in Council and Division 5 of Part I (including section 21A) of the Evidence (Miscellaneous Provisions) Act 1958 , as in force immediately before the repeal of that Division, applies accordingly.
(4) If a sessional commissioner has been appointed for a specific matter, that sessional commissioner must sit on any inquiry in relation to that matter.
(5) When the Commission is conducting an inquiry for the purposes of a function referred to in section 172T(2)(b), the commissioner who initiated the inquiry may sit on the inquiry.
Subject to this Act and the regulations, the Commission may conduct any inquiry in any manner the Commission considers appropriate.
Note
For provisions of this Act to which this section is subject, see, for example, sections 172W(3) and 172ZF(3).
(1) The Commission may determine that an inquiry it is proposing to, or must, conduct is a community interest inquiry.
(2) In making a determination under subsection (1), the Commission must have regard to the subject matter of the proposed inquiry and the functions and powers it will perform or exercise for the purposes of that inquiry.
(3) If directed to do so by the Minister, the Commission must conduct a community interest inquiry into any matter specified by the Minister that is relevant to the administration of this Act or the regulations.
(4) A direction made by the Minister under subsection (3) must be in writing.
(1) The Commission must conduct a community interest inquiry in public.
(2) In conducting a community interest inquiry, the Commission may—
(a) determine the area or locality in the State to which the inquiry relates; and
(b) call for submissions from interested organisations and members of the public; and
(c) consult with persons or bodies the Commission considers appropriate and seek submissions from those persons and bodies.
(3) The Commission must advise that a community interest inquiry is being conducted by the Commission—
(a) by notice published in the Government Gazette; and
(b) by notice published on the Commission's Internet site; and
(c) if the inquiry relates to a particular area or locality—by notice published in a newspaper (whether printed or published by electronic communication) circulating in the area or locality to which the inquiry relates.
(4) The Commission must—
(a) in the notices required to be published under subsection (3), invite the public to make submissions to the Commission in relation to the community interest inquiry within the time specified in those notices; and
(b) set out the manner and form in which submissions may be made.
(5) All submissions made to the Commission that—
(a) relate to the subject matter of the community interest inquiry; and
(b) are made within the time, manner and form specified by the Commission in the notices required to be published under subsection (3)—
must be considered by the Commission before the community interest inquiry is concluded.
(1) The Minister may, in writing, request the Commission to provide an interim report, within a time specified by the Minister, on any community interest inquiry being conducted by the Commission before the inquiry is concluded.
(2) An interim report made by the Commission and given to the Minister under subsection (1) may be made orally or may be in writing.
(1) At the conclusion of a community interest inquiry, the Commission must give the Minister a report on the outcomes of the inquiry.
(2) A report made by the Commission and given to the Minister under subsection (1) must be in writing.".