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Liquor and Accommodation Act 1990 (No. 44 of 1990)
|Requested: 19 May 2013|
|Consolidated as at: Sessional|
PART 5 - Administration
Division 1 - Administrative structure
206. Licensing Board
(1) There is established a Licensing Board.
(2) The Board consists of
appointed by the Governor.
(a) a presiding member; and
(b) 2 other members
(3) One member of the Board shall be a legal practitioner.
(4) The Governor may appoint a deputy of a member of the Board.
(5) The deputy of the member referred to in subsection (3) shall be a legal practitioner.
(6) If a member is absent from a meeting of the Board the member's deputy may attend, and, when doing so, is to be taken to be a member.
(7) When the deputy of the presiding member attends a meeting of the Board the deputy is to be taken to be the presiding member.
(8) A member or deputy member holds office for the term set out in his or her instrument of appointment.
(9) A member or deputy member may resign at any time by giving written notice of resignation to the Minister.
(10) It is a term of the appointment of a member or deputy member that the Governor may terminate the appointment at any time for inability, inefficiency, misbehaviour or physical or mental incapacity.
(11) The quorum for a meeting of the Board is 2.
(12) A member or deputy member is to be paid a remuneration and allowances determined by the Governor.
(13) Except as otherwise provided in this Act, the Board may regulate its proceedings.
207. The Commissioner for Licensing
(1) There is an office of Commissioner for Licensing.
(2) A person may be appointed to the office of Commissioner by the Governor for a period of 5 years.
(3) A person appointed to be Commissioner may resign at any time by giving written notice of resignation to the Minister.
(4) A person appointed to be Commissioner is entitled
determined by the Governor.
(a) to a period of leave; and
(b) to a salary and allowances
(5) The Governor may remove a person from the office of Commissioner if the Governor is satisfied that the person
but shall not otherwise remove that person from office.
(a) has been convicted of an offence (whether in Tasmania or elsewhere) of such a nature that it is in the public interest the person be removed from the office of Commissioner; or
(b) has applied to take, or has taken, advantage of the law relating to bankruptcy, or has compounded with the person's creditors; or
(c) has been guilty of misbehaviour, negligence or incompetence in the performance of the duties of the office of Commissioner; or
(d) has become incapable of performing the duties of the office of Commissioner; or
(e) has engaged in other paid employment without the Minister's consent
(6) If a person who is an employee, within the meaning of the Tasmanian State Service Act 1984, is appointed Commissioner that person retains all existing and accruing rights as if service as Commissioner were service as such employee.
(7) A person appointed to be Commissioner shall be taken to be an employee within the meaning and for the purposes of the Retirement Benefits Act 1993.
208. Delegation by Commissioner
(1) The Commissioner may, by written instrument, delegate any of the Commissioner's powers or duties under this Act (other than this power of delegation) to another person.
(2) A delegation is revocable at will and does not prevent the exercise by the Commissioner of any power or duty so delegated.
209. Authorized officer
(1) The Commissioner may, by instrument of appointment, appoint a person to be an authorized officer for the purposes of this Act.
(2) An appointment under subsection (1) may be limited to specified provisions of this Act or as specified in the instrument of appointment.
(3) A power that may be exercised under this Act by an authorized officer may be exercised by the Commissioner.
210. Authorized officer to produce authority
An authorized officer, exercising a power under this Act, shall produce the officer's instrument of appointment if requested to do so.
Division 2 - Appeals and hearings
211. Right to appeal to Board
A person may appeal to the Board against a decision by the Commissioner in respect of the following matters:
(a) a refusal to grant a permit;
(b) the conditions subject to which a licence or permit was granted;
(c) a refusal to give any approval;
(d) the cancellation of a permit;
(e) the suspension or cancellation of a licence;
(f) any requirement specified in a notice given in accordance with section 41(1);
(g) a decision that a person is not qualified to hold a licence;
(h) the classification or reclassification of tourist accommodation;
(i) the provisions contained in a wine standard.
212. Procedure on appeal
(1) An appeal against a decision by the Commissioner shall be made, in writing, to the Board.
(2) Following receipt of an appeal, the Board shall hold a hearing to consider the appeal.
213. Hearings by Board
(1) If the Board is required to hold a hearing under this Act it shall fix a date, time and place for the hearing and shall inform the Commissioner and other interested parties to the hearing accordingly.
(2) At a hearing the Board
(a) shall decide the procedure to be followed; and
(b) shall give the applicant or appellant, as the case may be, the opportunity to be heard; and
(c) may receive evidence orally or in writing; and
(d) may take evidence on oath or affirmation; and
(e) is not bound by rules of evidence but may inform itself in such manner as it thinks most appropriate; and
(f) shall observe the rules of natural justice in so far as they are applicable.
(3) For the purpose of subsection (2)(d) the person presiding at the hearing may administer an oath or affirmation.
(4) A hearing may, at the Board's discretion, be conducted in public or in private.
(5) The Board may, by notice signed by the presiding member, require a person
(a) to attend a hearing to give evidence; and
(b) to produce at a hearing a document or anything else specified in the notice.
(6) A person is not entitled to be represented at a hearing unless the Board is satisfied that injustice could otherwise result.
214. Decision of Board after hearing
(1) After a hearing the Board shall
(a) in the case of a hearing relating to an application for a licence direct the Commissioner
(i) to grant the licence; or
(ii) to refuse the application; and
(b) in the case of an application by the Commissioner for approval to cancel or suspend a licence
(i) direct the Commissioner to cancel the licence or suspend the licence for such period as the Board determines; or
(ii) refuse the application; and
(c) in the case of an appeal against any other decision of the Commissioner
(i) confirm the Commissioner's decision; or
(ii) revoke the Commissioner's decision; or
(iii) direct the Commissioner to take such action as the Board considers to be appropriate in the circumstances.
(2) The Commissioner shall comply with a direction of the Board.
215. Powers of Supreme Court
(1) The Board
state a case for the opinion of the Supreme Court on any question of law arising on an application or appeal under this Act.
(a) may at any time; and
(b) shall, if ordered to do so by a judge in chambers following an application made in a summary way by an applicant or appellant at a hearing of the Board
(2) The Supreme Court shall
(a) hear and determine a question of law referred to it; and
(b) remit its decision to the Board.
(3) The Board is bound by a decision given in accordance with subsection (2)(b).
(4) The Supreme Court may make such order as to cost of any case referred to it as it considers appropriate.
(5) An application shall not be made to a judge under subsection (1)(b) except by a person who has already asked the Board to state a case on a question.
(6) Except as provided by this section, a decision by the Board is final and without appeal.
216. Policy to be followed when considering an application for a licence or permit
(1) When considering an application for a licence or permit the Commissioner or the Board shall make a decision which, in the opinion of the Commissioner or the Board, will best aid and promote the economic and social growth of Tasmania by encouraging and facilitating the orderly development of the hospitality industry in the State.
(2) While, in coming to that decision, the Commissioner or the Board may have regard to any legitimate interests and concerns of any section of the community the Commissioner or the Board shall have greater regard for the legitimate interests and concerns of the community as a whole.
217. Witnesses to appear at hearing, &c.
(1) A person who has been served with a notice to appear at a hearing of the Board shall
(a) attend in accordance with the notice; or
(b) produce a document or any other thing specified in the notice.
Fine not exceeding 5 penalty units.
(2) A person called as a witness at a hearing before the Board shall not
(a) refuse to be sworn or to affirm; or
(b) refuse to answer any question the person would be required to answer in a court; or
(c) answer any question incorrectly.
Fine not exceeding 5 penalty units.
Division 3 - General administration provisions
218. Evidentiary provisions
(1) In proceedings for an offence under this Act, an allegation in the complaint
is evidence of that matter.
(a) that a substance referred to in the complaint was liquor; or
(b) that a person named in the complaint was or was not on a specified date the holder of a licence or permit; or
(c) that premises referred to in the complaint were or were not on a specified date specified in a licence or permit; or
(d) that a person referred to in the complaint was on a specified date under the age of 18 years
(2) In legal proceedings, a document apparently certified by the Commissioner to be the original or a copy of a document granted under this Act
(a) is admissible in evidence; and
(b) shall be accepted as the original or a copy of that document.
(3) In proceedings for an offence in relation to the sale of liquor, proof that liquor was supplied, sent, forwarded or delivered to a person is evidence of the sale of the liquor.
(4) In proceedings for an offence against section 5, proof that bottles, decanters, glasses or other vessels commonly used to contain liquor were found on premises where the offence is alleged to have been committed and had been used recently is evidence of the sale of liquor on those premises.
218A. Time and place at which sale of liquor by mail order, &c., occurs
For the purposes of this Act, if liquor is sold by a licensee on the basis of an order received by mail, telephone, facsimile transmission or other electronic process, the sale is taken to have occurred at the time at which, and at the licensed premises from which, the licensee dispatches the liquor.
219. Service of documents
A document required by this Act to be served on or sent to a person may be served or sent
(a) by giving it to the person; or
(b) by sending it by post to
(i) that person's last known place of residence; or
(ii) in the case of a licensee the premises specified in the licence; or
(c) by leaving it at in an envelope addressed to that person; or
(i) that person's last known place of residence; or
(ii) in the case of a licensee the premises specified in the licence
(d) if that person is a facsimile service subscriber by sending a copy via that service to the person's facsimile service number.
220. Form of licences, permits and approval
Licences and permits granted, and approvals given, under this Act shall be in such form as the Commissioner determines and may, in appropriate circumstances, be combined in one document.
An action or proceeding, civil or criminal, does not lie against
acting as such, for anything done or omitted to be done in good faith.
(a) a member of the Board; or
(b) the Commissioner; or
(c) an authorized officer
222. Recovery of fees by civil process
A fee payable under this Act is a debt due to the Crown and is recoverable accordingly.
223. Powers of Commissioner of Taxes
(1) In this section
the Commissioner of Taxation means the Commissioner of Taxation appointed under section 4 of the Taxation Administration Act 1953 of the Commonwealth;
the Commissioner of Taxes means the Commissioner of Taxes appointed under section 6 (1) of the Land and Income Taxation Act 1910.
(2) The Commissioner of Taxes may disclose information gained in the course of the administration of this Act to authorities vested with the administration of liquor licensing laws in other States and in Territories of the Commonwealth.
(3) The Commissioner of Taxes is authorized to perform the functions of a State taxation officer under Part IIIA of the Taxation Administration Act 1953 of the Commonwealth.
(4) The Commissioner of Taxes is authorized to communicate information disclosed or obtained under or for the purpose of the administration of this Act to the Commissioner of Taxation.