Introduction
On 1 July 2015, changes to the Liquor Act 1992 (Qld) will come into force, significantly changing the liquor licencing regime for venues (including restaurants) which trade after 1.00am. Many restaurants will either have to reduce their hours of trade or will be required to change to a new licence carrying stricter (and costlier) licence conditions.
These changes follow on from the 'Safe Night Out' precinct and related amendments which came into force in September 2014 following the enactment of the Safe Night Out Legislation Amendment Act 2014 (Amendment Act). The Amendment Act was intended to enhance liquor compliance and ensure the Queensland liquor licensing system provides a more responsive approach to concerns about community safety.
Key changes
The key changes which come into force on 1 July 2015 are:
- the permitted extended trading hours for a Subsidiary on-premises (meals) licence (Restaurant Licence) will be automatically reduced to 1.00am (despite any previous grant of later extended trading hours);
- all new and current applications for approval of extended trading hours for a Restaurant Licence will be limited to 1.00am;
- the assessment of whether a business trading under a Restaurant Licence has the "principal activity" of providing meals will need to be demonstrated on a daily basis;
- a new licence class – a Nightclub licence – will be created, which will permit extended trading until 5.00am, but will require the licenced premises to have male and female toilets within the licenced premises itself; and
- all existing Subsidiary on-premises (entertainment) licences will be converted to Nightclub Licences with the same approved trading hours as the existing licence had.
Changes to Restaurant Licences
Commercial other (subsidiary on-premises) licences are available to licensees where the sale of liquor is considered to be a subsidiary activity of the business. Such licenses are generally available for businesses that principally provide entertainment, meals and accommodation.
The Amendment Act introduces significant changes to Commercial other (subsidiary on-premises) licences for which the principal activity is the provision of meals (Restaurant Licence).
Prior to the introduction of the Amendment Act, licensees who held a Restaurant Licence were able to apply for approval of permanent extended trading hours up to 5.00am. The former Queensland Government was concerned that venues, especially those in key night-life locations around the State, traded under a Restaurant Licence to provide meals during the day but to operate predominantly as a bar at night. The Amendment Act seeks to address concerns with that model by limiting the trading hours of premises operating under a Restaurant Licence to 1.00am, and by clarifying the circumstances in which the "principal activity" of "provision of meals" will be demonstrated.
Trading hours reduced
From 1 July 2015, existing licensees who currently hold a Restaurant Licence with approved extended trading hours will no longer be permitted to trade past 1.00am. If a venue wishes to continue to trade past 1.00am, it will be required to apply for either a Nightclub Licence or another kind of licence (e.g. a Commercial hotel licence).
Restaurant operators will need to weigh the interest in continuing to have extended trading hours against the potentially greater fees and heavier regulatory burdens which alternative classes of licence carry. For example, venues licenced to trade after 1.00am in the Brisbane City Council area may be required to maintain and operate CCTV recording facilities at the premises.
Change to licence fees
The Queensland Government has advised that additional annual fees for extended trading hours will still be payable for the period of 12.00am to 1.00am, but these fees will be at a reduced rate compared to the amount payable by licensees permitted to trade to 3.00am.
Clarification of "principal activity" requirements for all licenced restaurants
From 1 July 2015, a licensee will be taken not to be conducting a business on the licensed premises that is "consistent with the principal activity of the licence" unless:
- for each trading day (i.e. the total time the premises trades in any one day), the majority of patrons of the business on that day consume a meal on the premises;
- throughout each trading day, the majority of the area of the licensed premises is set up with tables and chairs, or another combination of seating and surfaces, that are being used or ready for use by patrons for consuming meals;
- the kitchen on the licenced premises is open throughout each trading day other than a period of up to 1 hour before the end of a trading day; and
- throughout each trading day there are sufficient staff at the licensed premises engaged in, or available to engage in, the preparation and service of meals.
These requirements apply to all venues trading under a Restaurant Licence, not just those which are authorised to trade in extended trading hours. Venues trading under a Restaurant Licence should therefore consider carefully whether they will need to adjust their operations to satisfy all of these requirements. For example, even restaurants that are licenced to trade only in ordinary trading hours (i.e. until 12.00am) will be required to have their kitchens open and appropriately staffed until 11.00pm.
The new Nightclub Licence
The Amendment Act also introduces a new class of licence – the Nightclub Licence – and abolishes the Commercial other (subsidiary on-premises) licence for venues that have the principal activity of "entertainment" (Entertainment Licence). Any licensees who currently hold an Entertainment Licence will automatically be changed to a Nightclub Licence.
The principal activity of a business conducted under a Nightclub Licence must be the provision of live entertainment on the licensed premises and the sale of liquor for consumption on the premises while the entertainment is provided. However, a Nightclub Licence does permit a business to supply liquor for consumption on the premises during part of the day without providing entertainment, so long as during that part of the day the liquor is supplied in association with a consumer eating a meal on the premises. A Nightclub Licence may therefore suit venues which trade as a restaurant during the day and as a bar in the evening.
Extended trading hours applications can be made for a Nightclub Licence for trading hours until 5.00am. Restaurant operators who wish to continue to trade after 1.00am might therefore consider converting their Restaurant Licence into a Nightclub Licence. However, that conversion could raise town planning issues and applicants may need to lodge a material change of use application with the relevant Local Government.
Moreover, for a venue to be granted a Nightclub Licence, it must have toilet facilitates for male and female patrons within the licenced premises itself (and not, for example, toilets that are shared with other venues in a retail complex). Restaurants might therefore need to make renovations which could impact on profitable floor space.
Under the transitional provisions, Entertainment Licences which are converted to Nightclub Licences will continue to operate under the conditions which were applicable to the converted Entertainment Licence. Licensees presently operating under an Entertainment Licence will therefore not be required to comply with the new on-site toilet requirements.
