Maintaining fitness and propriety

Sections 33 and 34 of the Liquor Control Act 1988 require the licensing authority to be satisfied that persons to be approved in positions of authority with respect to any liquor licence are fit and proper.

The licensing authority carries out initial assessments of prospective licensees and each individual proposed to hold a position of authority during the application process by obtaining full personal particulars and police clearance certificates.  Prior to 2011 the licensing authority used to obtain the certificate internally but a recent policy change has meant persons to be approved must now supply their own police certificate at the point of lodgement of their application.

This scrutinising aspect of the licensing system can be easily forgotten after an application has been approved.  There is in fact an ongoing obligation on all licensees, managers and others in positions of authority to remain fit and proper.  A recent spate of investigations and actions against licensees suggests the police and the licensing authority have increased their vigilance of this requirement.

Should the Director of Liquor Licensing suspect a person is no longer fit and proper, he can either issue a show cause letter (under s64 of the Act) requesting an explanation from the individual or bring an application in the Liquor Commission (under s95 of the Act).  It is also possible for the police to bring an application in the Liquor Commission, independent of the Director, to have a person deemed unfit or improper.  Examples of some recent cases include the following:

• The police sought to remove a director from a company holding a Geraldton nightclub licence after one of the bouncers working there died following an after hours staff party.
  
  
• The Director brought an application before the Liquor Commission in November 2010 to remove the licensee of the Beaufort River Tavern as he no longer deemed him to be ‘fit and proper’ following his conviction of a drink driving offence.  Despite the Commission finding that the licensee had ‘exercised extremely poor judgment’ it was not satisfied that a ‘proper cause for disciplinary action exists’.  Part of the complaint was also brought on the basis that the licensee had failed to notify the Director of his conviction within 14 days.  (All people occupying a position of authority in a body corporate which is a licensee, or a person approved as a manager are reminded there is an obligation to give notice of convictions under s37A of the Act).
  
  
• The Commission also recently threw out a s95 complaint against a prominent Perth nightclub owner who had been convicted of a drug offence which was unrelated to the operation of the licence.

These increased prosecutions by the police and the licensing authority should serve as a timely reminder for all licensees and managers that the obligation to remain fit and proper is an ongoing one.

If you have any other queries about this article, please do not hesitate to contact Dan Mossenson, Partner on (08) 9288 6769 / dan.mossenson@lavanlegal.com.au or Alec Weston, Solicitor on (08) 9288 6873 / alec.weston@lavanlegal.com.au.