Alcohol licensing and hearings: a guide for regulatory agencies

The Sale and Supply of Alcohol Act 2012 (SSAA, “the Act”) governs your role in the alcohol licensing process.  This section provides an overview for regulatory agencies of the Act and alcohol licensing processes.

SSAA aims to minimise harm from alcohol by managing the way it’s sold, supplied and consumed.

SSAA provides for community input to local alcohol licensing decisions.

Two bodies make decisions on alcohol licensing:

1. District Licensing Committees (DLCs), which are administered by local councils and consider and decide on all applications for alcohol licences within their local areas
2. the Alcohol Regulatory and Licensing Authority (ARLA), which deals with most enforcement actions and also decides appeals against decisions of DLCs.

The Sale and Supply of Alcohol Act 2012 (the Act) put in place a new system of control over the sale and supply of alcohol.

The Act aims to improve New Zealand’s drinking culture and minimise the harm caused by excessive drinking. The object of the Act is the safe and responsible sale, supply and consumption of alcohol and the minimisation of harm caused by its excessive or inappropriate use.

This is different from previous legislation, where the object of the Sale of Liquor Act 1989 was limited to establishing a “reasonable system of control” over the sale and supply of liquor in order to “reduce liquor abuse”.

The Sale and Supply of Alcohol Act 2012 represents a shift from a more liberal licensing regime to a stricter one aimed at reducing the harm to the community from excessive alcohol consumption. Councils are specifically empowered to adopt local alcohol policies that decision-making bodies must have regard to when considering licence applications.

The Act contains a number of new measures to achieve its object.  It:

• increases the ability of communities to have a say about alcohol licensing in their local area
• allows local-level decision making for all licence applications through district licensing committees (DLCs)
• introduces new criteria for issuing licences
• requires decision makers to consider the effects of renewal or issue of a licence on the amenity and good order of the locality
• requires the consent of a parent or guardian before supplying alcohol to a minor
• requires anyone who supplies alcohol to under 18-year-olds to do so responsibly
• strengthens the rules around the types of stores allowed to sell alcohol
• introduces maximum default trading hours for licensed premises
• restricts supermarket and grocery store alcohol displays to a single area
• introduces a risk-based licensing regime in which fees reflect risk factors of the specific premises.

The object of the Act is that “the sale, supply, and consumption of alcohol should be undertaken safely” and “the harm caused by the excessive or inappropriate consumption of alcohol should be minimised” (s 4(1)).

The Act defines “the harm caused by the excessive or inappropriate consumption of alcohol” (s 4(2)) as including:

(a) “any crime, damage, death, disease, disorderly behaviour, illness, or injury, directly or indirectly caused, or directly or indirectly contributed to, by the excessive or inappropriate consumption of alcohol; and

(b) any harm to society generally or the community, directly or indirectly caused, or directly or indirectly contributed to, by any crime, damage, death, disease, disorderly behaviour, illness, or injury of a kind described in paragraph (a)”.

Importantly, the object of the Act relates to the sale, supply and consumption of alcohol; and the definition of ‘harm’ relates to inappropriate or excessive consumption. DLCs are able to consider the effects of the consumption of alcohol purchased from a premises even where the alcohol is consumed elsewhere. This is particularly relevant for off-licence applications. 

One of the main aims of the Act is to give communities more involvement and visibility.

The Act contains measures that allow communities to participate in decision making by having local councillors and community members decide most licence and manager’s certificate applications (through DLCs).

Members of the public can object to licence applications on more grounds than under the previous Act. Communities can also contribute to local alcohol policies (LAPs). 

A LAP is a set of rules made by a council in consultation with its community about the sale and supply of alcohol in its local area. LAPs are developed under the Act. DLCs must have regard to any relevant LAP in all their decisions about alcohol licences. If they consider that the issue of a licence, or the consequences of the issue of a licence, would be inconsistent with a LAP they can refuse the licence or issue it subject to conditions. You can get further information on local alcohol policies here.

In addition, the Local Government (Alcohol Reform) Amendment Act 2012 makes changes to alcohol control bylaws (commonly known as liquor bans). The Act gives councils the power to make alcohol control bylaws covering areas such as school grounds, private car parks and other private spaces that the public has legitimate access to.

DLC are set up under the Act and are administered by local councils. They’re independent decision-making bodies. Within their local areas, DLCs decide applications for:

• new on-, off-, club and special licences
• renewals of on-, off- and club licences
• new and renewed manager’s certificates
• variations of licence conditions
• enforcement action for special licences.

The make-up of a DLC
Each DLC is made up of a chairperson (who can be either a councillor or a commissioner) and two members appointed from a list of members approved by the council.

The committee members have experience relevant to alcohol licensing matters (and can include elected members of the council). A commissioner is someone who is not a councillor but has the required knowledge, skill and experience relating to alcohol licensing, and is appointed under the Act.

The members must not be people who could be biased due to their current involvement in the alcohol industry, and for each hearing there’s a process to check that no one on a DLC has any conflict of interest.

DLCs are independent decision makers
The role of the DLC is to consider and decide licence applications. This includes listening to evidence and arguments for and against applications and making decisions on them.

The DLC is an independent and impartial body that makes its decisions by considering the reports and evidence presented to it against the criteria in the Act and any relevant case law. While the committee is administered by the council, and may include councillors, it makes its decisions independently of the council, according to the provisions of the Act.

DLCs can hold hearings
If there are any public objections to a licence application or opposition from reporting agencies, or the DLC decides that it wishes to call a hearing, the applicant is invited to attend a DLC hearing.

Hearings are reasonably formal so that applications are dealt with consistently and fairly, and all parties are given a fair opportunity to present their cases. DLCs have powers under the Act to require documents to be provided and summon (ie, require attendance by) witnesses. Hearings are usually held at council offices, although the chairperson can decide to hold them somewhere else.

DLC hearings are open to the public, and the news media may be present. Sometimes the committee will decide to exclude the public from parts of the hearing, or limit the public release of information eg, for commercial or privacy reasons.

Depending on the nature of the case, a hearing can last anywhere from half an hour to a full day or several days. While all DLCs follow the same basic processes, each operates slightly differently. Some are less formal, operating more like a meeting, while others are more formal and operate more like a court.

As a licensing inspector, Police Officer, Medical Officer of Health or delegate, your role is to provide the committee with information on the applications before them. 

The object of the Act is that the sale, supply and consumption of alcohol are undertaken safely and the harm caused by excessive or inappropriate use of alcohol is minimised.

The role of a DLC under the Act is to consider and decide on applications for alcohol licences and manager’s certificates. This includes listening to evidence and arguments for and against applications and making decisions on them, in accordance with the Act.

The information you provide is critical to the committee’s ability to make well-informed decisions on licence applications. The committee members cannot use their own knowledge in deciding an application (except that gathered during a site visit). They can only make decisions based on the evidence and submissions they receive.  

Even if you do not oppose the application, you must be prepared to provide any information requested by the Committee and make yourself available to attend hearings.

DLCs and ARLA have to consider a range of criteria when deciding licence applications.  These criteria are set out in the Act. 

This sub-section sets out the criteria for issuing different types licences. It sets out what decision makers cannot take into account.  It provides information on amenity and good order, which decision makers must have regard to, and on the regulations which underpin the Act.

Relevant case law and ARLA practice notes and guides provide information on how the criteria should be applied.  

Criteria for issuing on-, off- or club licences
When deciding whether to issue an on-, off- or club licence, a DLC or ARLA must have regard to (ss 105 and 106):

• the object of the Act
• the suitability of the applicant
• any relevant provisions in any local alcohol policy that exists and is in force
• the proposed days and hours of sale
• the design and layout of the premises
• whether the applicant is engaged in, or proposes to engage in, the sale of goods other than alcohol, low-alcohol refreshments, non-alcoholic refreshments, and food; and, if so, which goods
• the provision of other services
• how the amenity and good order of the area would be affected if the licence were or were not granted (see further detail below)
• whether the applicant has appropriate systems, staff and training to comply with the law
• any matters in reports by the Police, the licensing inspector or the Medical Officer of Health.
   

Criteria for renewing on-, off- or club licences
When deciding whether to renew an on-, off- or club licence, a DLC or ARLA must have regard to (s 131):

• the matters set out above in (s 105) apart from those relating to amenity and good order. 

Criteria for issuing special licences
When deciding whether to issue a special licence, a DLC or ARLA must have regard to (s 142):

• the object of the Act
• the nature of the particular event (specifically the sale of goods other than non-alcohol and low-alcohol drinks, and food, and the provision of other services)
• the suitability of the applicant
• any relevant local alcohol policy that exists and is in force
• whether the amenity and good order of the area would be affected if the licence were or were not granted (see further detail below)
• the proposed days and hours of sale
• the design and layout of the premises
• the provision of other services
• whether the applicant has appropriate systems, staff and training to comply with the law
• any areas of the premises that the applicant proposes should be designated as restricted or supervised
• any steps the applicant plans to take to ensure that the requirements of the Act relating to the sale and supply of alcohol to prohibited persons are observed
• the applicant’s proposals relating to the sale and supply of non-alcoholic drinks and food, low-alcohol drinks, and the provision of help with, or information about, alternative transport from the premises
• any matters in reports by the Police, the licensing inspector or the Medical Officer of Health.

What decision makers can’t consider
The decision makers cannot take into account the impacts of the new or renewed licence on business conducted under any other licence. This makes it clear that the potential impacts of competition on another licensee are not a relevant consideration. 

Amenity and good order
DLCs and ARLA must have regard to amenity and good order when deciding whether to grant a new licence or renew an existing one. 

For a new licence they must consider whether granting the application would reduce the amenity and good order of the locality to more than a minor extent (s 105(1)(h)). For a renewal they have to consider whether declining to renew the licence would increase the amenity and good order of the locality by more than a minor extent (s 131(1)(b)).

‘Amenity and good order’ is described in the Act as the extent to which, and the ways in which, the locality in which the premises is situated is pleasant and agreeable (s 5).

In deciding whether amenity and good order would be reduced or increased by more than a minor extent, the decision makers must take into account (s 106):

• current, and possible future, levels of noise, nuisance and vandalism
• the number of premises for which licences of the kind concerned are already held
• the compatibility of the proposed use with the purposes for which land near the premises is used. 

Regulations
The Act is supported by regulations.  The regulations provide the technical details that underpin the Act and may be subject to frequent change.  

The Act sets out both mandatory and discretionary conditions for the different types of licences. These are outlined here.  

Conditions for on-licences and club licences

Mandatory conditions
The DLC must ensure that every on-licence and club licence it issues is issued subject to conditions stating the (s 110(2)):

• days on which and the hours during which alcohol may be sold and supplied
• fees payable for the licensing of the premises concerned if there are regulations in force under this Act empowering the DLC to determine different levels of licensing fees for premises of different kinds, as prescribed by the regulations
• place or places on the premises at which drinking water is to be freely available to customers while the premises are open for business.
  In deciding the conditions for issuing a licence, the DLC may have regard to the site of the premises in relation to neighbouring land use.

Discretionary conditions

The DLC may issue an on-licence or club licence subject to conditions such as those (s 110(1)):

• prescribing steps to be taken by the licensee to ensure that the provisions of this Act relating to the sale or supply of alcohol to prohibited persons are observed
• prescribing steps to be taken by the licensee to ensure that the provisions of this Act relating to the management of the premises concerned are observed
• prescribing the people or kinds of person to whom alcohol may be sold or supplied
• imposing one-way door restrictions/policies
• requiring a manager to be on duty in the case of a club licence or an endorsed on-licence.
   

Conditions for off-licences

Mandatory conditions
The DLC must ensure that every off-licence it issues is subject to conditions that state (s 116(2)):

• the days on which and the hours during which alcohol may be sold or delivered
• the fees payable for the licensing of the premises concerned if there are regulations in force under this Act empowering the DLC to determine different levels of licensing fees for premises of different kinds, as prescribed by the regulations
• a place or places (stated directly or by description) on the premises at which drinking water is to be freely available to customers while alcohol is being supplied free as a sample on the premises.

In deciding the conditions described above, the DLC may have regard to the site of the premises in relation to neighbouring land use.

Discretionary conditions
The DLC may issue an off-licence subject to conditions such as those (s 116(1)):

• prescribing steps to be taken by the licensee to ensure that the provisions of the Act relating to the sale and supply of alcohol to prohibited persons are observed
• prescribing the people or kinds of person to whom alcohol may be sold or supplied
• relating to the kind or kinds of alcohol that may be sold or delivered on or from the premises, in the case of premises where (in the opinion of the DLC) the principal business carried on is not the manufacture or sale of alcohol.

Other discretionary conditions
Under (s 117), the DLC may issue any licence subject to any reasonable conditions not inconsistent with the Act. 

Conditions for special licences

Mandatory conditions
The DLC must ensure that every special licence is subject to conditions that state the (s 147(3)):

days on which and the hours during which alcohol may be sold or delivered
place or places on the premises at which drinking water is to be freely available to customers while the event (or any of the events) is taking place.

In deciding conditions, the DLC concerned may have regard to the site of the premises in relation to neighbouring land use.

Discretionary conditions
The DLC concerned may issue a special licence subject to conditions. The DLC must give the parties an opportunity to be heard on the conditions where these are different from those in the application. It may impose conditions such as those (s 147(1)):

• prescribing steps to ensure that the provisions relating to the sale of alcohol to prohibited persons are observed
• prescribing the people or kinds of person to whom alcohol may be sold or supplied
• relating to the kind or kinds of alcohol that may be sold or delivered on or from the premises
• requiring the provision of food for consumption on the premises concerned
• requiring low-alcohol beverages to be available for sale and supply
• requiring non-alcoholic beverages to be available for sale and supply
• requiring assistance with or information about alternative forms of transport from the premises concerned to be available
• requiring the exclusion of the public from the premises concerned
• requiring alcohol to be sold and supplied on the premises concerned only in containers of certain descriptions (or not to be sold in certain types of containers)
• requiring the filing of returns relating to alcohol sold pursuant to the licence
• imposing any conditions of a kind subject to which any on-, off- or club licences may be issued
• imposing any reasonable conditions that, in the committee’s opinion, are not inconsistent with the Act.

Additional requirements for large-scale events
If, in the opinion of the DLC, an application for a special licence relates to a large-scale event, the DLC may require the applicant to (s 143):

• provide the committee with an Alcohol Management Plan (AMP) describing how the applicant proposes to deal with matters such as security, monitoring, interaction with local residents, and public health concerns
• provide the committee with a certificate issued by the territorial authority stating that the proposed use of the premises meets the requirements of the Resource Management Act 1991 and of the Building Code
• liaise with the Police and the territorial authority on planning for the event.

The DLC may also have regard to whether, and how well, the applicant has complied with any requirement relating to an AMP or planning, and whether the Police and the territorial authority are satisfied with any liaison that has taken place.

As a statutory agent, your role is to provide the District Licensing Committee (DLC) with information on the applications before them. This section outlines the types of information and evidence you can gather, and how to collect it, store it and use it.

Evidence gathering starts from the time you receive an application and continues through to the hearing and any appeal.

Evidence is the information presented at a hearing to prove an alleged fact. It includes written or spoken testimony from witnesses, documents, photographs, maps and videotapes.

You can collect ‘hard’ (quantitative) data such as alcohol-related crash numbers and ‘soft’ data (qualitative) such as changes in drinking behaviour. You need to work out what the data does and does not say and report these findings clearly.

You can collect a lot of evidence through your work. If you follow a few simple tips you will ensure that your evidence is of high quality and more likely to stand up under scrutiny at a hearing.

Evidence given before the committee should be factual, relevant and concise.

You need to demonstrate how the evidence relates to the application and the remedy you are seeking

Information and evidence gathering is an ongoing task throughout the licensing process.  It starts from the time you receive an application and continues through to the hearing and any appeal.

You need to collect information for your initial inquiry and report. You should continue to gather information after this to provide the DLC with all relevant evidence at the hearing.

If there is an appeal, it can take several months for appeals to be heard by ARLA so you need to keep gathering relevant information up until the date the appeal is heard.

Evidence is the information presented at the hearing to prove an alleged fact.  It includes written or spoken testimony from witnesses, and other material such as documents, photographs, maps and videotapes.  In practice, evidence is anything that backs up your position.

Evidence should focus on facts and be directly relevant to the application.  Use evidence to highlight how the licence, if granted, would go against the object of the Act. National or international research can be useful if it can be clearly linked to the case at hand. Evidence gathered over a period of time will be stronger than evidence gathered on just one occasion.  

Information on alcohol-related harm can come from a wide variety of sources.  It can be:

• ‘hard’ data:  these are numeric data, for example alcohol-related crash numbers and numbers of alcohol-related accident and emergency admissions.  These can be broken down, for example, into events involving women, men, and people of a certain age.  These are called quantitative data.  Quantitative data tend to be available in routine collections and can be standardised
• ‘soft’ data:  these are interpretative and perceptual data that are usually more descriptive.  They are typically expressed in words rather than numbers.  Soft data can be collected through observations, reported perceptions and viewpoints, stakeholder opinions, people’s stories, surveys, etc.  These are called qualitative data.  An example of qualitative data is observations about changes in drinking behaviour in a particular park or sports club.

A mix of both qualitative and quantitative data will usually be required to describe and measure alcohol-related harm adequately.

You should make a genuine effort to understand what data says (and does not say) and to report these findings clearly. This will enhance the level of confidence that can be placed in the data you present. All data used as evidence need to be put into the context of the case and you need to be clear about how the data supports your case.

Questions to consider include:

• How complete is the dataset?
• What else could be affecting the data?
• Does the data relate to the specific site or circumstances of the application?

You can collect a lot of evidence through your work, for example via site visits and interviews. Following these simple tips will ensure your evidence is of high quality and more likely to stand up under scrutiny at a hearing:

• Make full notes at the time of compliance checks (‘contemporaneous notes’) – these can be used in evidence. Do not make notes days or weeks afterwards as the accuracy of your recall can be challenged at the hearing.
• Make sure all notes and reports are dated, clearly separated from other notes and presented chronologically.
• Keep your original report and notes if you’re drafting a supplementary report.
• Statements should be named and dated with the time, contact details, signatures, date of birth, and any other details in full. Any subsequent changes must be initialled.
• Get peer reviews – work together with colleagues to ensure consistency, quality and best practice.
• Your brief of evidence must match your recorded notes.
• Do not allow others to influence any factual changes.
• You need to keep all records for seven years.
• Physical evidence for an enforcement application must be kept until the appeal period is finished.

Provided you follow these tips, you can use any of these as evidence: contemporaneous notes; supplementary notes on non-compliance matters; renewal reporting outcomes; and any documents related to any graduated response enforcement.

You can source evidence from:

• floor plans, video, photos
• local area data such as noise and graffiti complaints
• relevant planning and consent information (eg, building certificates or resource consents)
• other relevant information such as fire and evacuation plans, environmental health (potable water)
• maps and graphs of premises density
• witness statements
• past complaints
• Police data (both qualitative and quantitative)
• case law which is current and relevant to the case
• other relevant information that supports your opposition
• evidence from non-biased sources such as local schools, Māori Wardens, and community patrols.

When carrying out interviews, follow these tips to ensure the information you collect is of the highest quality and can be used in the hearing:

• Use ‘What, Where, How, Who and When’ questions and avoid leading the interviewee; let them talk.
• Lay out statements and interviews clearly so that amendments can be made, identified and initialled.
• Make clear, unambiguous notes which won’t be easily challenged before the DLC.

Make sure you secure and protect your evidence:

• Download all photos and videos on return to the office – this avoids loss of evidence or its potential corruption or destruction.
• Check the quality and make sure it is suitable for presentation as evidence. For example, if important information presented in photos is not clear, you may need to take another set of photos.
• Sensitive information should be stored or locked with restricted access.

Evidence given before the DLC should be:

• factual or expert advice/opinion where the expert’s credentials have been established
• as brief and to the point as possible, and
• directly related to the issue before the committee.

The relationship between the evidence and the matter before the DLC may not always be direct. In these cases, you must spell out the connection or relevance of the evidence to the DLC.  You should do this during the initial outline out of the case or in the introduction of the witness. The case for the relevance of the evidence should not be part of the evidence itself.

Sometimes the reports of the statutory agencies are read into evidence to enable cross-examination on their contents. This means that the committee has the matters covered in the report at the forefront of their minds. It does, however, require discipline in the preparation of the report so that it meets the factual, concise and relevant criteria described above.

Licensing bodies must consider any local alcohol policy when they make decisions about alcohol licensing applications.

More broadly, decision makers do not have to confine themselves to matters relating to the particular premises or licence, and they can take into account wider factors, such as council policies (My Noodle Ltd v Queenstown-Lakes District Council [2009] NZCA 564).

You need to demonstrate how your evidence relates to the application, the grounds for your opposition under the Act, and the remedy you are seeking.

For example, you have an application for a renewal of an off-licence. The applicant wants to extend their opening hours. You are concerned about the level of noise and nuisance outside the premises currently.  You consider that extending the hours would increase harm and nuisance by increasing opportunities for accessing alcohol and facilitating continued late-night drinking. You could bring evidence about:

• the number of noise complaints relating to the premises or its customers
• the number of police visits to the area to deal with drunk and disorderly behaviour, and the times of greatest disturbance.

The evidence would need to relate specifically to the premises and the behaviour of its customers after purchasing alcohol from the premises. It would also need to link to the remedy you seek ie, a reduction (rather than an extension) of current hours.

International peer-reviewed evidence can be presented and may hold weight, but it needs to be well linked to the case at hand. The person who wrote the evidence will generally not be available for cross-examination. However, the Medical Officer of Health or their delegate has expertise in public health research and may be able to speak to the evidence or respond to questions from the committee.

DLCs and ARLA have an evaluative role. Their task is to consider all relevant information and come to a decision on the application. In VenusNZ Limited [2015] NZHC 1377 the High Court considered the burden of proof relating to amenity and good order. It found that there is no burden of proof on the parties; rather the parties should bring evidence to the decision makers (the District Licensing Committee or ARLA), who should play an inquisitorial role and make a decision based on the information in front of them.

If you are unsure about how to link your evidence to your case, talk with your colleagues who have expertise in this area. You can also seek information through professional networks.

Developing the theory of your case is an ongoing and fluid process.  It starts with receipt of the application and continues until hearings and any appeals are concluded.  You need to be flexible and responsive to new information throughout the entire licensing process.  This section supports you to develop the theory of your case.

Start developing the theory of your case during your initial assessment of the application.  Then revise it through the subsequent steps in the process.

First, ask yourself: should the application be granted on the terms sought?

Your grounds for opposition need to be factual and specific, and related to the grounds for opposition under the Sale and Supply of Alcohol Act 2012 (the Act).

Consider what the application is lacking: why it does not meet the object of the Act.

You need to determine why you are opposing the application and link the grounds of your opposition to the specific premises.

Identify the evidence you have to support your argument: it is important that you base your position on up-to-date data.

Think about the arguments that the applicant might make and the evidence they may bring. Consider how you could counter the applicant’s arguments

First, ask yourself: should the application be granted on the terms sought?

For an alcohol licence, consider the relevant criteria (eg s105 and s131). For a manager’s certificate, consider the criteria in section 222. When considering these criteria also bear in mind the object of the Act.

Police and the Medical Officer of Health could consider using a risk matrix to identify high risk applications and target resources to these. You may choose to let the low risk ones proceed unopposed and put more effort inquiring into those with high risk profiles. Your organisation may already have a risk matrix suitable for this purpose.  Or you can use the risk framework set out in Clause 5 of the Sale and Supply of Alcohol (Fees) Regulations 2013.

Your grounds for opposition need to be factual and specific, and related to the grounds for opposition under the Act. You will need to back them up with evidence.

If you decide to oppose the application, decide on the specific grounds for this under the Act. For example:

• Your opposition may relate to the object of the Act (section 4) ie, that:
  • “(a) the sale, supply, and consumption of alcohol should be undertaken safely and responsibly; and
  • (b) the harm caused by the excessive or inappropriate consumption of alcohol should be minimised”.
• Noise levels, rubbish or nuisance from the premises would affect the neighbourhood (section 105(1)(a) and (h)).
• There have been problems with a licensed premises (bar or bottle shop) run by the applicant before (section 105(1)(b)).
• The application does not meet the criteria set down in a local alcohol policy (section 105(1)(c)).

Consider what the application is lacking: why it does not meet the object of the Act. For example, is it lacking controls to ensure that alcohol-related harm will be minimised and amenity and good order will not be reduced other than to a minor extent?

You need to determine why you are opposing this application and link the grounds of your opposition to the specific premises. You need to look for local evidence of existing alcohol-related harm and if possible, any related to the premises in question.

For example, you may put to the committee that, in considering licence applications, it ‘must’ have regard to (i) the object of minimising the harmful effects of excessive or inappropriate consumption of alcohol and (ii) the effects on users of the locality.

You may argue, for example, that “Users of the locality include minors and persons who are particularly susceptible to the harmful effects of alcohol. The premises in question have failed several Controlled Purchase Operations in recent years. If granted, this licence would increase the exposure of alcohol and the availability of alcohol to such persons. That is clearly inconsistent with the object of minimising alcohol-related harm”.

What evidence do you already have to support your argument? Each agency needs to have effective mechanisms in place to record, store and retrieve data.

If you are dealing with a renewal, you need to look at what has happened in the intervening three years, not just what the situation is now. For example, have there been any Controlled Purchase Operations and what were the results? Have there been any breaches of licence conditions etc?

You may want to provide generic evidence of the availability of alcohol to vulnerable persons or effects of exposure of minors to alcohol. However, your argument will carry more force if you link your evidence to the specific community and premises in question.

You need to build a picture from the evidence that you have, and produce it in chronological order to demonstrate any patterns in alcohol-related harm or impacts on amenity and good order. It is important that you base your position on up-to-date data.

Draw on research and evidence that supports the case and use precedents that support the links and the desired outcome.

What arguments might the applicant make? How might you respond to these?

For example, if you are opposing based on minimisation of alcohol-related harm and amenity and good order, the applicant might argue that there has previously been an on-licence and an off-licence at precisely this location so harm is unlikely to change. They may challenge your arguments around availability, given the ready availability of alcohol in the community already.

What evidence might the applicant be able to gather in support of their case? How can you counter this evidence?

Think through how you might counter the applicant’s arguments.

For example, the applicant might argue that alcohol has been sold previously in the area.  You could counter that the price of alcohol sold at the previous on-licence and off-licence was high enough to mitigate alcohol-related harm associated with increased availability. Or that the generic mitigations through the offering of food etc are ineffective because the increase in exposure and availability is inherent in the establishment of licensed premises.

You need to understand the principles of natural justice because they underpin the operation of DLCs. Natural justice is about fair process and ensuring that decision making is fair and reasonable. This section explains what natural justice is, and how it is applied in the context of the alcohol licensing process.

All public decision-making bodies, including DLCs, must be independent and impartial and their procedures must be fair and transparent

The purpose behind natural justice is to ensure that decision making is fair and reasonable.

As a statutory officer you must act without bias, or the appearance of bias.

Your position must be based on evidence, which must be disclosed to the other parties.

People must be allowed an opportunity to present their case where their interests and rights may be affected by a decision maker. 

Decision makers must be unbiased when holding a hearing or making the decision. 

Decisions must be based on logical proof or evidence. 

Natural justice can be enforced by the courts, administrative tribunals or Ombudsmen.

Natural justice is part of New Zealand law. New Zealand has inherited many of the principles of the English legal system. Some of these go back to Roman law, which is where natural justice principles came from. They were regarded as principles that were 'natural’ or self-evident and originally related to two main maxims:

• ‘the right to be heard’
• ‘no person may judge their own case’.

Today, this means that any public decision-making body, including a district licensing committee (DLC) is required to be independent and impartial and its procedures are required to be fair and transparent.

Natural justice is a legal requirement that applies to people in government (including local government and DLC members) who have the power to make decisions that affect the rights, interests and expectations of New Zealanders. Natural justice can be enforced by the courts, administrative tribunals or Ombudsmen.

Under the New Zealand Bill of Rights Act 1990, an aggrieved person can apply for a judicial review in a higher court if they believe the principles of natural justice have been breached.

The purpose behind natural justice is to ensure that decision making is fair and reasonable. It is important not to confuse those objectives with what is legally required. Determining whether a decision complies with natural justice will generally depend on whether a fair and proper procedure was followed in making it.

A common outcome of judicial review is that the review body sends the decision back to the decision maker to make again using due process. That is, successful judicial review will not typically result in the review body substituting its own decision (though it can do so).

Three common law rules are generally referred to in relation to natural justice or procedural fairness. 
 

The Hearing Rule 

This rule requires that people must be allowed an opportunity to present their case where their interests and rights may be affected by a decision maker. 

To ensure that these rights are respected, the decision maker must give people the opportunity to prepare and present evidence, and to respond to arguments presented by the opposing side. 

When conducting an investigation in relation to a complaint, the person being complained against must be advised of the allegations in as much detail as possible and must be given the opportunity to reply to the allegations. 

The Bias Rule

This second rule states that no one should judge his or her own case. This requires the decision maker to be unbiased when holding a hearing or making the decision. 

Additionally, investigators (regulatory agencies) and decision makers must act without bias in all procedures connected with the making of a decision. 

A decision maker must be impartial and must make a decision based on a balanced and considered assessment of the information and evidence before them without favouring one party over another. 

Even where no actual bias exists, investigators and decision makers should be careful to avoid the appearance of bias. Investigators should ensure that there is no conflict of interest which would make it inappropriate for them to conduct the investigation. 

The Evidence Rule 

The third rule is that an administrative decision must be based on logical proof or evidence. 

Investigators and decision makers should not base their decisions on speculation or suspicion, or on assurances of what might be done at a future date. Rather, an investigator or decision maker should be able to clearly point to the evidence on which the inference or determination is based. 

Evidence (arguments, allegations, documents, photos, etc) presented by one party must be disclosed to the other party, who may then subject it to scrutiny.

Judicial review is a process by which a court reviews a decision made by a public body. Judicial reviews are different from appeals, in that an appeal is usually brought to challenge the outcome of a particular case. The judicial review process, on the other hand, analyses the process by which public bodies made their decision in order to decide whether or not that decision was lawful.

The judge usually won’t look at whether the decision maker made the ‘right’ decision, but will look instead at the way the decision was made, for example, whether the parties were given the chance to put their case, and whether the decision maker considered all the relevant factors. The court’s role isn’t to substitute its own decision for that of the public body. Rather it is to make sure the decision maker acted within their legal powers – in particular, that they followed the process that the law requires.

The right to apply for judicial review through the High Court is a central part of the ‘rule of law’. A core role of the courts is to enforce legal rights and obligations. Judicial review is a way of making sure that government bodies and officials, like private citizens, act within the law and not arbitrarily.

The grounds on which a High Court Judge can overturn the decision of a government decision maker include, among others, that:

• the decision maker was mistaken about the facts or about the law
• the decision maker took into account irrelevant factors, or ignored relevant factors
• the decision was made for an improper purpose
• the decision maker didn’t follow the rules of natural justice. For example, they were biased against a party, or they didn’t give a party a chance to put their side of the story.

Any of the parties who take part in a DLC hearing have the right to appeal to the Alcohol Regulatory and Licensing Authority (ARLA) if they are dissatisfied with the decision or any part of the decision.

If the application was first considered by a DLC, the only appeal right is to ARLA. ARLA decisions can be appealed to the High Court, and then, if leave is granted, to the Court of Appeal. In an appeal a judge will review the merits of the earlier decision, and determine whether it was the ‘right decision’. 

ARLA can:

• confirm the decision of the DLC
• modify the decision of the DLC
• reverse the decision of the DLC
• refer the matter back to the DLC to consider it again (usually with guidance on particular issues).

You need to be familiar with case law, understand how it is relevant to your role, and know how to apply it.  This section supports you to do this.

Case law is law established by the decisions of the courts in former cases.

Case law on licensing decisions is established by DLCs, ARLA and the courts.

You may need to refer to case law where it:

• is relevant to the application
• relates to the grounds for any agency opposition or public objection
  has been referred to in an application, an agency report, submissions or a public objection.

Case law is the law created by judges when deciding individual disputes or cases. It includes the common law (areas of law that rest mainly or entirely on court decisions) and also decisions interpreting and applying statutes (Acts).

Case law is built up from judgments given by higher courts when they interpret and apply statutes in the cases brought before them. Sometimes called ‘precedents’, these cases are binding on all courts (in lower jurisdictions), and must be followed as good law in similar cases to help achieve correctness and consistency. Over time, these precedents are recognised, affirmed and enforced by the subsequent court decisions, thus continually refining and developing the common law.

The common law might change as society’s expectations change or as statutes change. You therefore need to be careful that cases you rely on have not been surpassed, negatively commented on, or overturned on appeal.

Case law differs from the laws enacted by Parliament, which include:

• Statutes (legislation) – statutes enacted by Parliament eg, the Sale and Supply of Alcohol Act 2012 (the Act)
• regulations – regulations established by government agencies based on statutes eg, the Sale and Supply of Alcohol (Fees) Regulations 2013. Regulations will generally be derived from, and subordinate to, the relevant statute.

Courts decide the law that applies to a specific case by interpreting statutes and applying precedents. 

Our courts follow the doctrine of stare decisis, which means that a lower court is bound by a higher court where the facts/issues are materially the same.

Generally speaking, higher courts do not have direct oversight over the lower courts. They cannot act on their own initiative to overrule judgments of the lower courts. A party to the decision has to appeal it to a higher court. If a decision maker acts against precedent and the case is not appealed, the decision will stand and be binding on the parties to it.

Case law on licensing decisions in New Zealand is established by DLCs, ARLA and the courts. A decision of a DLC can be appealed to ARLA. Decisions of ARLA can be appealed to the High Court, and then, if leave is granted, to the Court of Appeal. ARLA issues practice notes and guides, which DLCs should be fully aware of and follow. 

DLCs are not bound by their own previous decisions; however, these should inform decisions on current applications. Nor are individual DLCs bound by the decision of another DLC. However, as a matter of best practice, DLCs should stay informed about relevant decisions from other DLCs around the country.

When to refer to case law

You should consider relevant case law when preparing your position on the application, your report to the DLC, and submissions and evidence for any hearing.

You may also need to refer to case law where it:

• relates to the grounds for your or any agency opposition or public objection
• has been referred to in an application, an agency report, submissions or a public objection.

If you are citing case law, be wary of paraphrasing in case you inadvertently change the meaning. It is usually better to quote the words of the case directly.

Use case law sparingly.  Use commonly known precedent decisions.  Use recent case law where possible.

Case law can change quickly and you should ensure you are referring to up-to-date decisions (which have not been appealed or are not under appeal).

Use relevant case law

Keep any use of case law relevant to the issue. If you oppose an application because of an applicant’s character, make sure that any case law you quote is relevant to this point. 

If you are referring to case law, read the whole case rather than other people's summaries of those cases. Some cases have general statements of law which apply to all cases.  However, others only apply in certain circumstances. (This is known as ‘distinguished' on the facts:  legal terminology meaning that a court can decide that the reasoning of the precedent case does not apply due to materially different facts between the two cases.)

If you are seeking to distinguish a precedent case (particularly one which is binding ie, a High Court decision), you will need to set out why it does not apply in this instance. For example, you need say to the court, “The [agency] submits that the finding in [case] does not apply in this instance. This is because [cite reasons].”   

Check whether the quoted decision was appealed.  Has the decision had other negative comment even if it was not appealed? What was the status of the decision – was it an interim or final decision? What was the result?

You can’t ignore relevant case law

You cannot ignore case law that doesn't support your position, but you will have to consider whether the facts make it materially different from what your view is. You can refer the committee to case law that supports your view, and also advise them of any contrary case law. For example, “I refer you to Smith v Jones, in which it was decided that all hotels be painted red. There are 25 other judgments in support and one in opposition, which states that all hotels should be painted blue.”

As a statutory agent, you need to know how to identify and manage conflicts of interest in the alcohol licensing process.  This section provides you with information to do this.

A conflict of interest is a situation in which someone cannot make a fair decision because they will be affected by the result.

You may have a conflict of interest if your responsibilities as a regulatory officer could be affected by some other interest or you have.

You need to be sure that you have no conflict of interest which would make it inappropriate for you to take part in the process.

Even where no actual bias exists, you should be careful to avoid the perception of bias.

If you think you have a real or perceived conflict of interest, you must identify and disclose it to the appropriate staff member in your organisation.

If a member of the DLC has to stand down due to a conflict of interest, the secretary can select another member from the list of members maintained by the council.

According to the Cambridge English Dictionary a conflict of interest is “a situation in which someone cannot make a fair decision because they will be affected by the result”.

The Office of the Auditor-General defines it the following way: “Put most simply, a conflict of interest can arise where two different interests overlap.”

In the public sector, there is a conflict of interest where a member’s or official’s duties or responsibilities to a public entity could be affected by some other interest or duty that the member or official may have.

The other interest or duty might exist because of:

• the member’s or official’s own financial/business interests or those of his or her family
• a relationship or other role that the member or official has
• something the member or official has said or done.

Every member or official of a public entity has professional and personal interests and roles. Occasionally, some of those interests or roles overlap. This is almost inevitable in a small country like New Zealand, where communities and organisations are often close-knit and people have many different connections.

Conflicts of interest sometimes cannot be avoided, and can arise without anyone being at fault. They are a fact of life. But they need to be managed carefully.

Even where no conflict of interest exists, you must be careful to avoid any perception of a conflict of interest. You need to be impartial and be seen to be impartial.

A conflict of interest can arise when:

• you or somebody closely connected to you (including a company) could benefit financially or otherwise from a DLC decision, either directly or indirectly
• your statutory duty competes with a duty or loyalty you have to another organisation or person.

Examples of real or perceived conflicts of interest could include:

• being related to an applicant or any other parties
• having a financial interest in a premises or its competitor
• being on close personal terms with an applicant or any other parties
• belonging to a group that is a party to a hearing
• being or knowing the property owner of the site of the premises.

You need to be sure that you have no conflict of interest which would make it inappropriate for you to take part in the process. Even where no actual bias exists, you should be careful to avoid the perception of bias. This includes any situation where it could be perceived that your personal interest or loyalties could affect your decision making. 

If you think you have a real or perceived conflict of interest, you must identify and disclose it to the appropriate staff member in your organisation. You will always have the fullest knowledge of your own affairs, so will usually be in the best position to realise whether your participation in the process has a connection with another interest of yours that could result in actual or perceived bias.

It is critical to declare an actual or perceived conflict of interest and then to determine whether to continue participating. You should follow these steps to make that decision:

• Identify – determine what your potential conflict of interest is.
• Disclose – ensure that you let the appropriate staff know what the conflict is (actual or apparent) and decide what to do.
• Assess – make a decision. Would a reasonably informed observer feel it was appropriate for me to be involved in this application?
• Manage – if you feel that participating is unreasonable, ensure that this is recorded in a file note and communicated to staff.

Your organisation may also have policies or procedures about conflicts of interest that you should be aware of and follow.

If a member has to stand down due to a conflict of interest, the secretary can select another member from the list of members maintained by the council. If the chair has to stand down, the deputy chair will take the chair’s role. Every DLC should have a deputy chair or additional commissioners who can take on the role of chair if the chair needs to stand down.  

If all the members have a conflict of interest, the secretary (on instruction from the chair) can either refer the application to ARLA to be heard (with leave of ARLA) or go back to the council to appoint new members to hear the application.

If a conflict of interest comes to light at the start of a hearing, the most likely outcome would be to adjourn the hearing. A new date would be set when a new member had been appointed to the DLC. This process would be described and form part of the minutes attached to the hearing.

In this first step

Snapshot of this section

A pre-application meeting of the agencies and the applicant can help clarify issues before the application is lodged.

You need to make an initial assessment of the application based on the assessment criteria in the SSAA. 

Inspectors must inquire into and report on all applications for alcohol licences and manager’s certificates. There is no timeframe set in the SSAA for an inspector’s report.

Police must inquire into applications for alcohol licences and manager’s certificates and provide a report within 15 days if they have matters in opposition.

The Medical Officer of Health or their delegate must inquire into applications for alcohol licences and provide a report to the committee within 15 days if they have matters in opposition.

You can play an important role in supporting community members to participate in the licensing and hearing process.

of the licensing process, you inquire into the application and begin assessing it against the Sale and Supply of Alcohol Act 2012.  You may also start working with the other regulatory agencies, gathering information and building your case.  The work you do here will form a building block for the later stages of the process.  This section provides guidance and tools for this step.

The statutory agencies have different roles in inquiring into, and reporting on, applications under the Act.

The role of inspectors

Inspectors:

• must inquire into a licence application and file a report with the DLC (section 103(2)). There is no statutory time requirement on this report.
• must inquire into an application for a manager’s certificate and file a report on the application with the DLC (section 220). There is no statutory time requirement on this report.

The role of Police

Police:

• must inquire into a licence application, and if they have any matters in opposition to it, they must file a report with the DLC within 15 working days of receiving the application (section 103(3)).
• must inquire into an application for a manager’s certificate, and if they have any matters in opposition to it, they must file a report with the DLC within 15 working days after receiving the application (section 220). 

The role of the Medical Officer of Health or their delegate:

The Medical Officer of Health or their delegate:

• must inquire into a licence application, and if they have any matters in opposition to it, they must file a report with the DLC within 15 working days of receiving the application (section 103(3)).

Criteria for assessing applications

The Act sets out criteria for assessing different types of applications:

• new licences - sections 105 and 106 
• renewals - sections 105 and 131
• special licences - section 142
• manager’s certificates - sections 222 and 227.

The toolbox sets out the sections of the Act that are relevant to this step.

Councils should have comprehensive, accurate information on their websites to support applicants with their applications. Some applicants may contact the council to discuss their application. Many will lodge their application without input from the council, the inspector, the Police or the Medical Officer of Health.

The inspector might offer the applicant a pre-application meeting if an application is complex or it will help clarify or resolve issues before the application is formally lodged. Depending on the nature of the application, it may be worth having the Police and the Medical Officer of Health or their delegate attend the meeting.

The council receives all licence applications. The secretary of the district licensing committee will check that the application is complete, formally acknowledge receipt of the application and then forward it to the inspector, the Police and the Medical Officer of Health together with each document filed with it.

You will need to make an initial assessment of all applications you receive, based on the assessment criteria set out in the Act: 

• new licences - sections 105 and 106 
• renewals - sections 105 and 131
• special licences - section 142
• manager’s certificates - sections 222 and 227.

Depending on the specifics of the licence application, you may then meet with the other agencies and identify any information missing from the application. 

The Inspector may then:

1. contact the applicant to request additional information
2. seek a meeting with the applicant to gather additional information or discuss any issues with the application.

There are three types of applications which statutory agencies are required to inquire into – alcohol licences, manager’s certificates and temporary authorities. The statutory agencies have different roles in inquiring into, and reporting on, applications:

1. An application for a new or renewed alcohol licence involves the licensing inspector, the Police and the Medical Officer of Health or their delegate.
2. An application for a new or renewed manager’s certificate involves the inspector and the Police only.
3. An application for a temporary authority involves the licensing inspector and the Police only.

Licensing inspectors

Your role when inquiring into applications for new, renewals and special licences

You must inquire into a licence application and file a report with the DLC (section 103(2)). There is no statutory time requirement on you to report.

If you have raised matters in opposition or concerns, or you are addressing matters in opposition raised by the Police or the Medical Officer of Health or their delegate, your report needs to state the reasons for any matters in opposition. For example, “I oppose this licence application because the hours are outside the national default hours and the applicant has failed five Controlled Purchase Operations in the last two years.” You will need to provide the DLC with the evidence to back up your reasoning at the hearing.

Your report should address the criteria set out in sections 105 and 106 of the Act (see Section 2.2 - Report writing for more information).

The report must be sufficient for the applicant to understand the issues to which they must respond to at a subsequent hearing (and/or in negotiation with the inspector).

Even if you don’t oppose an application, you should consider adding relevant information that you know about the premises, or the area, that may assist the DLC.

Your role when inquiring into applications for manager’s certificates

You must inquire into an application for a manager’s certificate and file a report on the application with the DLC.  Your report should address the criteria set out in section 222 of the Act.

Your role when inquiring into applications for temporary authorities

ARLA has considered the role of the inspector and Police in the granting of temporary authorities (ARLA Practice Direction #1).  ARLA determined that:

temporary authority granted in terms of section 136 of the Act confers upon the holder the same duties, obligations and liabilities as the holder of a licence. The consequences of an unsuitable person operating premises pursuant to a temporary authority could obviously be as equally undesirable as such a person holding a licence.

ARLA stated its view that the secretary of the DLC should refer any application for a temporary authority to the Police and the inspector for comment and/or report.  ARLA has directed that each DLC should develop its own procedures and timelines for reporting on temporary authorities. (see ARLA Practice Direction #1).

You must ensure that the applicant has the correct title, estate or interest in the property for the licence they are seeking (s136). 

If you have any significant concerns about the suitability of the applicant then you should oppose the application.

Police

Your role when inquiring into applications for new, renewals and special licenses

You must inquire into the licence application, and if you have any matters in opposition to it, you must file a report with the DLC within 15 working days of receiving the application (section 103(3)). If you do not report to the DLC within 15 working days, it may assume that the Police does not oppose the application (section 103(4)).

You have three options when responding to a licence application:

1. The Police has no matters in opposition.
2. The Police has matters in opposition to this application (outline these) and wishes to be heard on those matters.
3. The Police has concerns to raise with the DLC but does not request a hearing.

If you choose not to file a s103 report, you could draft a memo to the committee stating that you have no matters in opposition. Although this is not required by the Act, it would help the DLC process unopposed applications.

If you choose to file a s103 report, your report must state the matters you have in opposition, and your reasons for opposing.  For example, “Police oppose this application because the hours are outside the national default hours and the applicant has failed five Controlled Purchase Operations in the last two years”.  You will need to provide the DLC with the evidence to back up your reasoning at the hearing.

Your report should address the criteria set out in sections 105 and 106 of the Act (see Section 2.2 - Report writing for more information).

The report must be sufficient for the applicant to understand the issues to which they must respond to at a subsequent hearing (and/or in negotiation with the inspector).

Even if you don’t oppose an application, you should consider adding relevant information that you know about the premises, or the area, that may assist the DLC.

Your role when inquiring into applications for manager’s certificates

As Police you must inquire into an application for a manager’s certificate, and if you have any matters in opposition, file a report on the application within 15 working days after receiving the application. Your report should address the criteria set out in section 222 of the Act.

The DLC may assume that, if no report is received within 20 working days after the application is referred to you, you have no matters in opposition to the application.

Your role when inquiring into applications for temporary authorities

ARLA has considered the role of the inspector and Police in the granting of temporary authorities (ARLA Practice Direction #1).  ARLA determined that:

temporary authority granted in terms of section 136 of the Act confers upon the holder the same duties, obligations and liabilities as the holder of a licence. The consequences of an unsuitable person operating premises pursuant to a temporary authority could obviously be as equally undesirable as such a person holding a licence.

ARLA stated its view that the secretary of the DLC should refer any application for a temporary authority to the Police and the inspector for comment and/or report.  ARLA has directed that each DLC should develop its own procedures and timelines for reporting on temporary authorities (see ARLA Practice Direction #1).

If you have any significant concerns about the suitability of the applicant then you should oppose the application.

Medical Officer of Health or their delegate

Your role when inquiring into applications for new, renewals and special licenses

You must inquire into on-, off- and club licences (new and renewals).  

You may inquire into special licences. If you have any matters in opposition to it, you must file a report within 15 working days of receiving the application (section 103(3)). If you do not report to the DLC within 15 working days, it may assume that you do not oppose the application (section 103(4)).

You have three options when responding to a licence application:

1. The Medical Officer of Health has no matters in opposition.
2. The Medical Officer of Health has matters in opposition to this application (outline these matters and the reasons for them) and wishes to be heard on those matters.
3. The Medical Officer of Health has concerns to raise with the DLC but does not request a hearing.

If you choose not to file a s103 report, you could draft a memo to the DLC stating that you have no matters in opposition. Although this is not required by the Act, it would help the DLC process unopposed applications.

If you choose to file a s103 report, your report must state the matters that you have in opposition and your reasons for opposing. For example, “The Medical Officer of Health opposes this licence application because of the level of non-compliance at this premises over the last five years.” You will need to provide the DLC with the evidence to back up your reasoning at the hearing.

Your report should address the criteria set out in sections 105 and 106. (see Section 2.2 - Report writing for more information)

The report must be sufficient for the applicant to understand the issues to which they must respond to at a subsequent hearing (and/or in negotiation with the inspector).

Even if you don’t oppose an application, you should consider adding relevant information that you know about the premises, or the area, that may assist the DLC.

Once the applicant has provided all the necessary information, they must publicly notify their application (generally for 10 days, though not in all cases). Notice must be placed in a newspaper nominated by the secretary of the DLC or on an internet site nominated by the secretary, or both. A copy of the notice must also be placed on the premises to which it relates.

The detailed requirements for public notification are outlined in Part 7 of the Sale and Supply of Alcohol Regulations. 

One of the key drivers of the Sale and Supply of Alcohol Act 2012 was to improve community input into alcohol licensing decisions. Part of this is helping to ensure that the community is supported to participate in the hearing process.

What you can do to support community involvement

You can play an important role in supporting community members to participate in the licensing and hearing process.

This can start long before a hearing, and you should take an active interest in any potential community objection as it may have important considerations for your report on the application.

As statutory agencies, you need to maintain your independence and ensure you fulfil your statutory obligations. You cannot actively promote positions to the community or draft their submissions. 

However, you can:

• provide publicly available information to the community about the application, the licensing process, and where to go for information
• provide publicly available information to community members who have objected so that appearing before the committee is less daunting
• seek information relevant to the application from other staff in your organisation (for example, the inspector might seek relevant information from council housing staff if the application is for a site adjacent to a council housing block).

Who can you work with to support community involvement?

While you must remain neutral in your statutory role, others in your organisations can assist members of the community to understand the process and what is expected of objectors during a hearing.  This includes:

• council community safety teams
• council staff that work with young people
• council housing staff
• community boards
• local health promoters
• community police
• neighbourhood policing teams.

Talk to some of these people about how to inform and support the communities most affected by the licence application. 

Providing information on community objections

The High Court made comments on the importance of the agencies reporting on community concerns in Otara-Papatoetoe Local Board v Joban Enterprises Ltd [2012] NZHC 1406; NZAR 717. This is usually cited as the ‘Joban’ case. This case refers to the Sale of Liquor Act 1989, but the judgment still applies to the Sale and Supply of Alcohol Act 2012 and to all the agencies who now report to the DLC.

The judgment indicates that the inspector, the Police and the Medical Officer of Health need to look into community concerns and provide information on them to the DLC or ARLA. For example, if the community has concerns about late night drinking in a neighbourhood carpark, and the associated noise, litter and disturbance, then the agencies should investigate these concerns and provide relevant information to the DLC or ARLA.

The Police and the Medical Officer of Health need to lodge their s103 reports with the DLC within 15 days of receiving the application. Their responses to community concerns may need to be through a supplementary report to the DLC. Public objections need to be with the DLC within 15 days of the public notice of the application. This means the Police and the Medical Officer of Health do not have the opportunity to view community objections before lodging their report.

Step 1 - Inquiring into the application

Sale and Supply of Alcohol Act 2012 references

99        Applications to be made to licensing committee               

100     Form of application        

101     Notification requirements          

102     Objections to applications           

103     Police, Medical Officer of Health, and inspector must inquire
           into applications   

104     Who decides application for licence

105      Criteria for issue of licences

106      Considering effects of issue or renewal of licence on amenity and good order      of locality

127     Application for renewal of licence

128     Objections to renewal

129     Police, Medical Officer of Health, and inspector must inquire into applications

131      Criteria for renewal

136      Temporary authorities: on-licences and off-licences

137     Filing of applications (special licences)

139      Notification requirements (special licences)

140      Objections to applications (special licences)

141      Inquiry into applications by Police, inspector and Medical Officer of Health (special licence)

142      Criteria for issue of special licences

220      Reports (manager’s certificates)

222      Criteria for manager’s certificates

Your report to the District Licensing Committee (DLC) is an important part of the application process. Your report will provide crucial information for the committee to consider in its decision making. This section provides guidance and tools for drafting your report.

Your report should outline your position on the application and the legal grounds for this.  It could outline the evidence you intend to bring to support your position.

Your report must contain enough detail for the applicant to understand the issues they need to respond to at a hearing.

At a hearing you may be confined to the matters raised in your report.

Once the DLC has the application, all reports from the statutory agencies, and any public objections, it will hold a hearing or make a decision ‘on the papers’.

The legal requirements for Step 2 are the same as for Step 1.

The statutory agencies have different roles in inquiring into, and reporting on, applications under the Act.

The role of inspectors

Inspectors:

• must inquire into a licence application and file a report with the DLC (section 103(2)). There is no statutory time requirement on this report.
• must inquire into an application for a manager’s certificate and file a report on the application with the DLC (section 220). There is no statutory time requirement on this report.

The role of Police

Police:

• must inquire into a licence application, and if they have any matters in opposition to it, they must file a report with the DLC within 15 working days of receiving the application (section 103(3)).
• must inquire into an application for a manager’s certificate, and if they have any matters in opposition to it, they must file a report with the DLC within 15 working days after receiving the application (section 220). 

The role of the Medical Officer of Health or their delegate:

The Medical Officer of Health or their delegate:

• must inquire into a licence application, and if they have any matters in opposition to it, they must file a report with the DLC within 15 working days of receiving the application (section 103(3)).

Criteria for assessing applications

The Act sets out criteria for assessing different types of applications:

• new licences - sections 105 and 106 
• renewals - sections 105 and 131
• special licences - section 142
• manager’s certificates - sections 222 and 227.

The toolbox sets out the sections of the Act that are relevant to this step.

This section provides guidance for drafting reports to the District Licensing Committee (DLC).

Preparing your report: guidance for inspectors

Inspectors must inquire into, and report to, the DLC on all applications.

Your report should contain:

• detailed information on the application
• an outline of your position on the application and the legal grounds for this
• the evidence you intend to bring to support your position. 

When do you need to report?
The Act does not set a timeframe for your report to the DLC.  Public objections must be received within 15 working days after the first publication of the public notice. The Police and Medical Officer of Health must report within 15 working days after the application is sent to them. Once you have all this information, you can finish your report.

Your report is important
Your report to the DLC is an important part of the application process.  It provides crucial information for the DLC to consider in its decision making. DLC members cannot use their own knowledge in deciding an application (except that gathered during a site visit). They can only make decisions based on the evidence and submissions they receive. 

How detailed should your report be?
Provide as much detail in your report as you can. There are several reasons for this.

If the DLC decides to deal with the application ‘on the papers’ (without a hearing), your report must put forward the whole case you wish to make.

The DLC may call a hearing if you, or another agency, oppose the application or a member of the public objects (unless they do not want a hearing). In this case your report needs to contain enough information for the applicant to understand the issues they must address at a hearing.  Secondly, you may be confined to the matters raised in your report: you may not be able to introduce new points. Finally, providing a comprehensive report you will reduce the work you need to do for the hearing.  

What should your report cover?
Your report should include:

Information about the application:

• application type
• applicant and premises details
• principal purpose and description of premises
• days and hours sought
• description of site location, surrounding area and any planning issues
• details of Duty Managers

An assessment under the Sale and Supply of Alcohol Act 2012

• assessment of application against the criteria under the Act
• relevant law – linking the issue to specific sections of the Act
• analysis – establishing the issue’s relevance or link to the section(s) of the Act.  Draw on research and evidence that supports the case and use precedents that support the links and the desired outcome

Monitoring and reporting information

• general reporting – including observations of the premises, prior levels of compliance, discussions with the licensee, manager or other relevant persons, and other information sources such as Controlled Purchase Operations etc
• recent monitoring – if the application is for a Temporary Authority or a Renewal then you will continue monitoring the premises up until the hearing date.  Include this recent monitoring information in your report (any issues that arise from monitoring that occurred after you lodged your report can be covered in a supplementary report)

Information from other parties

• details of public notification and any public objections received
• any matters raised in reports from the Police or the Medical Officer of Health

Your comments and recommendations

• possible options for conditions if the licence is issued
• your comments
• conclusion – this should follow logically from the analysis.  Remember, the conclusion is yours the DLC is not bound by it.If the case is strong, that will follow anyway
• recommendation –the committee will evaluate any recommendations in the context of all the information and arguments that have been presented to it.

Templates for your report
Many organisations have templates that guide you through your report writing. Check if your organisation has a reporting template that you should use. 

Engagement with the applicant
Once aware of your concerns, an applicant might decide to amend its application. Ideally, an applicant will have engaged with the reporting agencies before filing an application. Where prior engagement has not occurred, it can occur after application. In these cases, where your report raises matters in opposition, this can provide a basis for future engagement. To that end, you might wish to add comment along the following lines:

The applicant’s application was filed without prior engagement with the inspector. However, the inspector remains open to engagement with the applicant in relation to any of the matters raised in opposition in this report.

An applicant’s prospects of successfully arguing breach of natural justice will be significantly reduced if it has not taken up an invitation to engage with the reporting agencies on matters raised in opposition.

Preparing your report: guidance for Police and Medical Officers of Health

You must report to the committee within 15 working days of receiving a copy of the application if you have matters in opposition.

Your report is important
Your report to the DLC is an important part of the application process.  It provides crucial information for the DLC to consider in its decision making. DLC members cannot use their own knowledge in deciding an application (except that gathered during a site visit). They can only make decisions based on the evidence and submissions they receive.  

How detailed should your report be?
Given the 15-day timeframe you may not always be able to provide a comprehensive and detailed report to the DLC. If you are pressed for time, you should at least put forward your key concerns (matters in opposition). Drafting a short report to the DLC outlining your matters in opposition is preferable to attempting a detailed report, missing the deadline, and failing to register your concerns with the committee.

If you have time and want to draft a detailed and thorough report, then do so.  There are several good reasons to do this.

If the DLC decides to deal with the application ‘on the papers’ (without a hearing), your report must put forward the whole case you wish to make.

If the DLC calls a hearing, your report needs to contain enough information for the applicant to understand the issues they must address at a hearing.  You may also be confined to the matters raised in your report: you may not be able to introduce new points. Finally, providing a comprehensive report you will reduce the work you need to do for the hearing. 

What should your report cover?
At a minimum your report should:

• indicate your general position on the application (eg, no matters in opposition, or matters in opposition)
• identify the specific provisions in the Act that you are relying on (eg s105(1)(h))
• explain how those considerations are relevant in this case. In explaining this, it is recommended that you reflect the language of the particular provisions you are relying upon as closely as possible. This will help ensure that you focus on permitted grounds of opposition (eg: This application is for the licensing of premises that would be located in an alcohol ban area. Granting it would present a clear risk that alcohol sold from the proposed premises would be consumed in breach of that ban. This would compromise good order within the locality. The Medical Officer of Health considers that this is likely and that the effects of this would be more than minor.).

If you have time, the report could also include:

• an outline of the evidence you intend to provide to support your position
• a conclusion – this should follow logically from the analysis. Remember, the conclusion is yours, the DLC is not bound by it. If the case is strong that will follow anyway
• general reporting – this includes observations of the premises and discussions with the licensee, manager or other relevant persons and other information sources such as Controlled Purchase Operations etc.
• recommendation – the DLC will evaluate any recommendation in the context of all the information and arguments that have been presented to it. 

Your position can be fleshed out in more detail in briefs of evidence and other material prepared for the hearing, should the matter proceed to hearing.

Templates for your report
Many organisations have templates that guide you through your report writing. Check if your organisation has a reporting template that you should use. 

Engagement with the applicant
Once aware of your concerns, an applicant might decide to amend its application. Ideally, an applicant will have engaged with the reporting agencies before filing an application. Where prior engagement has not occurred, it can occur after application. In these cases, where your report raises matters in opposition, this can provide a basis for future engagement. To that end, you might wish to add comment along the following lines:

The applicant’s application was filed without prior engagement with the Medical Officer of Health. However, the Medical Officer of Health remains open to engagement with the applicant in relation to any of the matters raised in opposition in this report.

An applicant’s prospects of successfully arguing breach of natural justice will be significantly reduced if it has not taken up an invitation to engage with the reporting agencies on matters raised in opposition.

When the application, all reports from the statutory agencies, and any public objections have been lodged, the secretary of the DLC will send these materials to the DLC for it to consider and issue a decision.

One of two things will happen:

1. The DLC makes a decision ‘on the papers’
The DLC can make a decision without a hearing (‘on the papers’). The chair of the DLC will make the decision. The only exception to this is for an application is for a temporary authority which has to be considered by a full DLC.

2. The DLC holds a hearing
A hearing can happen for several reasons:

• The Act says that a hearing must be held if there are any public objections (unless the objections are vexatious or the objectors do not require a hearing).
• A hearing may be held if there is any opposition from a reporting agency to a licence application.
• If the DLC is thinking of declining an application, or if it wants to impose conditions outside of those the applicant has applied for, it may arrange a hearing to give parties a chance to have their say.

You will have at least ten days’ notice of a hearing. 

If you oppose the application you will need to prepare for, and attend, the hearing.

Even if you do not oppose, and the public hearing results from opposition from other reporting agencies, or from public objection, you should attend because the DLC may find it helpful for you to answer questions.

Where there is a hearing, a decision will be made following the hearing.  The DLC may decide to decline the application, or approve it with conditions.

Step 2 – Report writing

Sale and Supply of Alcohol Act 2012 references

The SSAA references for Step 2 are the same as for Step 1.

99        Applications to be made to licensing committee               

100     Form of application        

101     Notification requirements          

102     Objections to applications           

103     Police, Medical Officer of Health, and inspector must inquire
           into applications   

104     Who decides application for licence

105      Criteria for issue of licences

106      Considering effects of issue or renewal of licence on amenity and good order of locality

127     Application for renewal of licence

128     Objections to renewal

129     Police, Medical Officer of Health, and inspector must inquire into applications

131      Criteria for renewal

136      Temporary authorities: on-licences and off-licences

137     Filing of applications (special licences)

139      Notification requirements (special licences)

140      Objections to applications (special licences)

141      Inquiry into applications by Police, inspector and Medical Officer of Health (special licence)

142      Criteria for issue of special licences

220      Reports (manager’s certificates)

222      Criteria for manager’s certificates

Good preparation will save you time, contribute to good hearing outcomes, and help to achieve the objective of the Sale and Supply of Alcohol Act 2012. 

It's good practice to work with the other statutory agencies when preparing for hearings. You will generally have at least ten days' notice of a hearing.

The DLC will already have received your report.  You may need to draft other documents for the hearing:

• a brief of evidence to establish your credentials and provide your evidence to support your view on the application 
• an opening submission to introduce your position on the application and the evidence you will provide to support it
• a closing submission to summarise your case and provide case law to support your evidence.

Use case law where it is relevant to the application and the grounds for your opposition.

Prior to the hearing prepare for cross-examining witnesses and being cross-examined as a witness.

Any evidence prepared for the hearing must be disclosed to all parties prior to the hearing so that they have an opportunity to prepare a response to it.  

While DLCs follow the same basic processes, each operates slightly differently.   

There is standard etiquette that you should follow when taking part in a hearing.

Who can make decisions on applications?

A district licensing committee (DLC) may decide any application for a licence (s 104), renewal (s 130) or manager’s certificate (s 221). With the leave of the chair of ARLA, the DLC may refer an application to ARLA for a decision. The DLC must give ARLA the complete file for any application to be decided by ARLA (ss 104, 130 and 221).

When hearings are required

Where an objection has been filed, the DLC must hold a hearing unless (s 202):

• the application is withdrawn, or
• the DLC believes the objection is vexatious or based on grounds outside the scope of the Act, or
• the objector does not require a public hearing.

The full DLC takes part in the hearing.

A public hearing is not technically required where there is only agency opposition but no public objection to an application for a licence or manager’s certificate. However, an agency can appeal any subsequent decision if they feel that their right to be heard was not given.

Notification of hearings

The DLC must give at least 10 working days’ notice of the hearing to the applicant, each objector, the Police, the inspector and the Medical Officer of Health.

Selection of the DLC for the hearing

Each DLC is made up of a chairperson (who can be either a councillor or a commissioner) and two members appointed from a list of members approved by the council (s 189). 

The committee members must have experience relevant to alcohol licensing matters and can include elected members of the council (s 192(2)). A commissioner is someone who is not a councillor but has the required knowledge, skill and experience relating to alcohol licensing, and is appointed under the Act (s 193(1), (2) and (3)).

For each hearing, there is a process to check that none of the committee members has any conflict of interest (s 192(5)).

Each council decides a process for determining which list members will sit on each DLC for each of its hearings (s 192).

Objectors

A person may object to the granting of a new licence or licence renewal if they have a ‘greater interest’ in the application than the public generally (s 102(1)). The DLC determines who is a valid objector based on the information that the objector provides. 

It is good practice to work with the other statutory agencies when preparing for hearings. You will generally have at least ten days' notice of a hearing.

Each agency has independent obligations

Inspectors, the Police and the Medical Officer of Health all have independent statutory obligations in relation to licences and hearings. Each agency must assess an application and come to its own view on whether, if granted, it would meet the objectives of the Act.

But you can work together

While each agency has its own views on the application, you can work together to share information and discuss your assessment of an application. This ensures you understand one another's positions and are familiar with the arguments and evidence each agency will present.

You can also work together to identify who will do what at hearings, consider how your evidence and submissions relate, limit the duplication of information and questioning, and reduce the length of hearings.

Consider working with other agencies to prepare for the hearing by:

• sharing your reports
• sharing your briefs of evidence
• discussing your thoughts on submissions. Although you won't have heard all the evidence until the hearing, you can begin to prepare your submission prior to the hearing. This is the point where you start to consider relevant case law
• discussing your approach to the hearing:
  • what evidence will each agency give?  Is there any duplication?  How does the evidence relate to the arguments put forward by the other agencies?
  • will one agency lead cross-examination?
  • will you make joint submissions at the hearing?
  • what order will you present in?
• discussing the documentation disclosed by the applicant and other parties
• sharing any relevant information arising from any ongoing monitoring.

What is a brief of evidence?

The evidence you give to the committee as a witness is your 'evidence in chief'. This evidence must also be presented in written form - this is your 'brief of evidence'.

Your brief of evidence has three main purposes.  It establishes your credentials.  It provides detailed explanations of the reasons for your position. Finally, it outlines your evidence to support your view on the application.

Generally, you will be required to read your evidence in chief, though this is at the discretion of the chair of the committee.

How does your brief of evidence differ from your report?

You will already have lodged your report on the application with the DLC. You will have set out your views on the application and the basis of any opposition under the Act. You may also have alluded to evidence to support your views.

Use your report as the basis for your brief of evidence. The brief of evidence is your opportunity to present that evidence to the committee. It must be factual and set out the specific details of your evidence – who, what, when and where.

If your report was extremely detailed, you may not need to draft a brief of evidence as well. You will need a brief of evidence if you want to provide the committee with more detail than is included in your report.

What should your brief of evidence include?

It should include:

• the application details and sections of the Act under which the application has been lodged – refer to the Notification of Hearings to get the correct names, spellings and hearing/licence references
• your full name
• your role and how long you have been in that (or a similar) role
• reference to your report lodged with the committee and your view on the application (ie, if you oppose the application in its entirety or only aspects of the application)
• any discussions held with the applicant since your report was lodged with the committee and any changes to your position as a result
• the basis of your opposition under the Act (with reference to specific sections)
• your reasons for opposing the application under these sections
• reference to specific evidence that you will produce to the committee.

What should your brief of evidence not include?

It shouldn’t include:

• case law – you can present case law, but not as part of your brief of evidence. This would be more appropriate as part of your closing submission
• your opinion on what should happen with the application – the brief of evidence should contain only factual information. Your opinion on the application and how it should be dealt with should be included in your closing submission.

Can it introduce new information?

DLCs have the flexibility to consider any information they deem relevant but they must provide for natural justice. You cannot introduce any new objections in your brief of evidence that were not included in any previously disclosed report. You may be able to introduce new information gathered after you wrote your report, provided it relates to your objections.

What is the format?

The format for evidence is subject to some conventions (for more information see Part 1.2 Gathering and using information and evidence). However, the DLC may accept any evidence that is clearly set out, shows the identity and role of the witness (including who they represent), and what case it relates to (see section 207 of the Act).

You must provide copies for each of the main participants at the hearing - a minimum of eight copies.

What is a submission?

A submission sums up your position.  It can include arguments based on the facts which will be (or have been) presented in evidence. You can prepare submissions before the hearing.

Opening submissions

There is no legislative requirement to develop an opening submission. But it is helpful to do so, at least as part of your preparation.

DLC members appreciate a summary of why a public hearing has been called and what everyone's position is.  An opening submission can introduce your position on the application and the evidence you will provide.  It can also outline:

• the type of licence and type of premises
• the company
• grounds for the application/suspension etc
• the witnesses.

A short, succinct opening will usually signal to the DLC that they are going to hear relevant and clear evidence. For example, the following paragraph relating to enforcement signals to the committee that the submissions have been carefully thought out:

“The Police work collaboratively with the licensing inspector and Medical Officer of Health in this area. We receive information about licensed premises from a variety of sources. We apply that information in a graduated response. The premises before the committee today have reached a stage where they are now monitored regularly.”

Closing submissions

The purpose of the closing submission is to summarise your position on why the licence or certificate should not be issued. This can include responding to any arguments made during the hearing; however, no new evidence can be introduced at this stage.

This is the time to introduce case law if it would be helpful to the committee. You need to say how it relates to your case and the evidence you have brought. You must have copies of the case law available for the committee members to refer to.

Use case law where it is relevant to the application and the grounds for your opposition.  Use it sparingly.  Use commonly known precedent decisions.  Use recent case law where possible.

What is case law?

Case law is the law created by judges when deciding individual disputes or cases. It includes the common law (areas of law that rest mainly or entirely on court decisions) and also decisions interpreting and applying statutes (Acts). Section 1.5 contains more background on case law.

Use relevant case law

Keep any use of case law relevant to the issue. If you oppose an application because of an applicant’s character, make sure that any case law you quote is relevant to this point. 

If you are referring to case law, read the whole case rather than other people's summaries of those cases. Some cases have general statements of law which apply to all cases.  However, others only apply in certain circumstances. (This is known as ‘distinguished' on the facts:  legal terminology meaning that a court can decide that the reasoning of the precedent case does not apply due to materially different facts between the two cases.)

If you are seeking to distinguish a precedent case (particularly one which is binding ie, a High Court decision), you will need to set out why it does not apply in this instance. For example, you need say to the court, “The [agency] submits that the finding in [case] does not apply in this instance. This is because [cite reasons].”   

Check whether the quoted decision was appealed.  Has the decision had other negative comment even if it was not appealed? What was the status of the decision – was it an interim or final decision? What was the result?

You can’t ignore relevant case law

You cannot ignore case law that doesn't support your position, but you will have to consider whether the facts make it materially different from what your view is. You can refer the committee to case law that supports your view, and also advise them of any contrary case law. For example, “I refer you to Smith v Jones, in which it was decided that all hotels be painted red. There are 25 other judgments in support and one in opposition, which states that all hotels should be painted blue.”

Presenting your case law

If you are citing case law, be wary of paraphrasing in case you inadvertently change the meaning. It is usually better to quote the words of the case directly.

Ensure that you have your case law properly bound or neatly available and indexed for committee members. Provide copies for each of the people hearing the case, as they do not want to be looking over each other's shoulders at submissions, case law, exhibits etc.

Accessing case law

The New Zealand Legal Information Institute has case law online, including in its databases for Liquor Licensing Authority decisions up until 21 December 2012 and Alcohol Regulatory and Licensing Authority decisions from 2013.

Consider subscribing to an online case law guide to the Sale and Supply of Alcohol Act 2012, such as Westlaw which provides daily updates on case law.

Before the hearing you can prepare for cross-examining witnesses and being cross-examined as a witness yourself.

Use your previous work

The work you did on identifying the grounds for your position will be particularly helpful in preparing for cross-examination. In your preparation you considered the following questions:

1. What are the grounds for your opposition under the Act?
2. What does the application lack?
3. Why are you opposing this application?
4. What evidence do you have?
5. What are the contrary facts and arguments?
6. How will you counter the applicant's arguments?

You can use the answers to these questions to help you develop your questions for cross-examination, and your responses for when you are cross-examined.

Look at your evidence

You will also need to look at the evidence (both yours and that of other parties) and identify any weaknesses or limitations that may be exploited during the hearing. If there are gaps in your evidence, is there a witness that could fill these gaps?  For example, you might know that an applicant has previously failed a Controlled Purchase Operation, but you might not know the circumstances. You could ask the applicant or the Police to explain what happened.

Disclosure of evidence and information is a key principle of natural justice.

Natural justice requires that people must be allowed an opportunity to present their case where their interests and rights may be affected by a decision maker. The decision maker must give people the opportunity to prepare and present evidence, and to respond to arguments presented by the opposing side. 

The need for disclosure

Any evidence prepared for the hearing must be disclosed to all parties before the hearing so the parties have an opportunity to prepare a response to it.

If this doesn’t happen, parties may seek an adjournment. Rather than leave the door open for an appeal, the DLC could adjourn the matter. Or, because they may be reluctant to adjourn, they may discount the evidence.

The decision of Challenge Enterprises ‘The Mix' NZARLA PH 1107/2013 at paragraph [22] onwards gives ARLA’s guidelines on disclosure by the agencies.  It sets out the underlying principle of ‘natural justice' and how it underpins the hearing process.

Timeframes for disclosure

Timeframes for disclosure are not set in legislation. They are more a matter of convention. It is helpful if the timeframes can be set locally by agreement (as part of a wider hearings policy or protocol) or as directed by the relevant DLC. The DLC will always have discretion to waive any such requirements or alter procedure as it thinks fit.

The following timeframes could be adopted as a matter of good practice:

• All briefs of evidence and any other documentary material that the agencies seek to introduce into evidence must be disclosed to the applicant, the other reporting agencies, and the secretary of the committee 10 working days before the scheduled hearing.
• Final submissions may be disclosed 10 days prior to the hearing but they can also be presented on the day of the hearing. If they are more than a few paragraphs, submissions should be type written and handed up to all parties on the day of the hearing.
• If exceptional circumstances exist, the committee may allow an extension of time to file, but this should be no later than five working days before any hearing.

You can use a ‘DRAFT’ label on briefs of evidence that are prepared and disclosed well before the hearing.  This allows for minor changes without risking a claim that the licensee or their representative has been misled.

Staged disclosure

For complex cases or when there is a lot of evidence, disclosure can be done in stages.  Always include a covering letter listing the documents disclosed. Keep a copy of this letter on file for reference. This also avoids risk if there is some contention about what documents have been disclosed.

Introducing new information

New information is not normally introduced at the hearing.  The requirements of natural justice mean that the applicant should know all the grounds for opposition before the hearing. 

Your report should adequately cover any matters intended to support your opposition to an application.  Your brief of evidence should expand on the evidential basis of your opposition.  The brief should build upon arguments raised in the report. It should not introduce new grounds for opposition or new arguments under grounds that have not been previously identified.

However, you may be able to introduce new information in some limited circumstances.  It is possible that:

• you may have overlooked grounds for opposition or arguments when preparing your report, or
• grounds of opposition or arguments come to light or evolve only after your report has been filed.

In such situations, the DLC has discretion to allow you to advance those grounds or arguments via supplementary reports. These should be disclosed as soon as possible. The secretary should check with the parties to ensure that they have had enough time to consider the material.

The responsibility of the DLC is to evaluate applications having regard to the criteria contained in the Act and the evidence produced on the day. If the points you wish to make are essential to that, then the DLC should permit them to be made. But, in the interests of natural justice, the DLC may grant an adjournment of the hearing or postpone the commencement or continuation of the hearing so that the applicant has a proper opportunity to respond.

Any of the parties can seek an adjournment prior to a hearing if there are valid reasons, such as a lack of disclosure or unavailability of key witnesses. 

A request for an adjournment must be made in writing to the secretary. The DLC must issue a minute in response, either granting the adjournment or refusing to do so with reasons. The minute will usually be written by the chair and issued by the secretary.

Procedures

A DLC can regulate its own procedure, subject to the provisions of the Act and the regulations made under it (s 203(9)), and the Commissions of Inquiry Act 1908. The DLCs procedure must follow the principles of natural justice and, in particular, must ensure that every eligible person is given an opportunity to be heard.

DLCs have an inquisitorial role. This means that they are actively involved in investigating and assessing the facts of the case. This differs from an adversarial role, where the court acts as an impartial referee between the parties.

DLCs have powers under the Commissions of Inquiry Act 1908.  These powers allow them, for example, to require documents to be produced and to summon witnesses. 

While all committees follow the same basic processes, each operates slightly differently. Some are less formal, operating more like a meeting, while others are more formal and operate more like a court.

Roles

The DLC has roles before, during and after the hearings.

Before the hearing

Before the hearings the committee members should have:

• read the application, reports, submissions and evidence from all parties, including agencies and objectors
• conducted a site visit where appropriate
• prepared a list of questions or issues to flag
• checked for any conflicts of interest (among committee members)
• identified any administrative or procedural matters that need to be dealt with at the beginning of the hearing.
• developed an agenda (view an example hearing agenda)
• determined whether an audio recording of the hearing will be made (ARLA will require a transcript of hearings that are appealed and suggests DLCs make provision for audio recordings – see Practice Note 10 March 2017)

During a hearing

The chairperson of the committee is responsible for running the hearing. This includes:

• creating and maintaining an environment with the appropriate level of formality
• making sure people are introduced
• identifying the applicant, reporting agencies and objectors
• being clear about the process – who will present first, who will follow etc – and communicating this to those present
• following the format of examination in chief followed by cross-examination and re-examination
• ensuring other committee members have had the opportunity to ask any questions
• calling an adjournment during the hearing if required
• considering whether any part of the hearing needs to be held in private
• considering when to use a reserved decision option
• ensuring that all parties treat each other with respect and follow the correct procedures.

During the hearing, all committee members are responsible for:

• asking questions for clarification
• taking comprehensive notes of any evidence that is not provided in written form
• ensuring they have all the information they need to make a decision before closing the hearing (if the committee later finds that it needs more information, it must reconvene the hearing with all the parties.) 

After the hearing

After the hearing, the DLC is required to:

• deliberate in private, consider the evidence that has been presented, and decide whether they have sufficient information to make a decision
• provide a decision in writing that includes: the reasons for the decision; the reports received; and the views of those reports on the application
• give a copy of the decision to the applicant, any objectors, and the Police, inspector and Medical Officer of Health (in practice the secretary does this).

View an example script for DLC chair which outlines the procedure and processes for a hypothetical hearing. 

The standard etiquette you should follow when taking part in a DLC hearing is to:

• be professional and courteous at all times
• ensure you bring all the documentation you need
• follow the direction of the chairperson
• be direct and to the point; focus on the facts and not personalities or emotions
• remember that everything you say is part of the public record; all evidence and submissions given at a hearing can become public and are made available at the hearing.

Step 3 – Hearing preparation

Sale and Supply of Alcohol Act 2012 references

99          Applications to be made to licensing committee

105        Criteria for issue of licences

106        Considering effects of issue of renewal of licence on
              amenity and good order of locality

131        Criteria for renewal

136        Temporary authorities: on-licences and off-licences

140         Objections to applications

186         Territorial authorities to appoint district licensing
               committees

187         Functions of licensing committees

188         Powers of licensing committees

189         Composition of licensing committees

190         Meetings of licensing committees

191         Quorum

192         Territorial authority to establish and maintain list of
               licensing committee’s members

193         Appointment of commissioners

194         Resignation or removal

200         Application of Local Government Official Information and
               Meetings Act 1987

201         Licensing authority and licensing committees have
               powers of commissions of inquiry

202         Procedure 
               202(3) when a hearing is required

203         Proceedings of licensing authority and licensing
               committees

204         Right of certain persons to appear in proceedings

Now that your preparation is complete, it is time for the hearing. This section provides information on how hearings operate and how to present your case.

Hearings usually follow this format: opening and introduction; the applicant presents; reporting agencies present; objectors present; closing submissions; the hearing concludes.

You have a range of options for addressing any concerns about hearings, including: lodging an objection; requesting a meeting with the committee secretary; or lodging an appeal.

After the hearing has finished, the District Licensing Committee (DLC) will issue a written decision, giving the reasons for the decision and summarising the evidence and arguments at the hearing.

Powers of the DLC

District licensing committees (DLCs) have the powers of commissions of inquiry (s 201). Their powers under the Commissions of Inquiry Act 1908 allow them to require documents to be produced and to summon witnesses. 

Hearings are public

DLC hearings must be open to the public (s 203(1)). However, the DLC may hold parts of the hearing in private (with the public excluded) if it thinks this is in the best interests of those appearing and of the public (s 203(3)). The DLC can also make an order prohibiting publication of aspects of the matter, but this does not extend to prohibition on publishing the names and descriptions of the parties or the particulars of any premises affected (s 203(5)).

The right to appear

The Sale and Supply of Alcohol Act 2012 (the Act) sets out who has the right to appear in proceedings under (ss 204-206).

Evidence

The DLC may receive as evidence any information that it thinks may help it deal effectively with the matter in front of it, even if the information would not be admissible in a court of law (s 207). These wide powers emphasise the importance of a DLC following due process and the rules of natural justice.

Who can make decisions on applications?

A district licensing committee (DLC) may decide any application for a licence (s 104), renewal (s 130) or manager’s certificate (s 221). With the leave of the chair of ARLA, the DLC may refer an application to ARLA for a decision. The DLC must give ARLA the complete file for any application to be decided by ARLA (s 104, s 130, s 221).

Considerations when making a decision on an application

In deciding whether to issue a licence or a manager’s certificate, the DLC must have regard to the criteria set out in the following sections of the Sale and Supply of Alcohol Act 2012 (the Act):

• New licences (ss 105 and 106) 
• Renewals (s 131)
• Special licences (s 142)
• Manager’s certificates (ss 222 and 227)

The purpose and object of the Act are also relevant.

What the decision must cover

The decision of the DLC on an application must be given in writing and must meet the criteria of (s 211) The decision must include:

• the reasons for the decision
• what reports on the application were received
• the attitude towards the application of every report (in general terms).

Who must receive a copy of the decision?

Under (s 211) the DLC must give a copy of the decision to:

• the applicant
• each objector who appeared at the hearing
• any other objector who requests a copy
• the Police, the inspector and the Medical Officer of Health.

Those likely to attend a hearing include:

• the committee chairperson, members and advisors
• the applicant, and their representatives, lawyers and witnesses
• objectors and any associated representatives, lawyers and witnesses
• the Medical Officer of Health or their delegate, or counsel
• representatives of the Police or their counsel
• the council’s licensing inspector or their counsel
• other council officers, to give reports or technical advice to the committee, if called as witnesses
• any person granted leave to appear and be heard or their counsel
• members of the public
• news media representatives.

Hearings usually follow this format: opening and introduction; the applicant presents; reporting agencies present; objectors present; closing submissions; the hearing concludes.

The order of speakers may vary from hearing to hearing, but the chairperson of the DLC will outline the order of the day at your hearing.

This part of the guide sets out in detail what happens at each stage of the hearing.

Opening and introduction

1. The chairperson introduces the committee members and advises which licence application is being heard.
2. You and the other parties are asked to introduce yourselves. The easiest way to do this is to state your name, your role, and whether you are 'in opposition', or there 'to assist' the DLC.
3. The chairperson gives a brief outline of the hearing procedure. The chairperson may also confirm that they and the committee members don't have any conflicts of interest and are able to consider the application impartially.
4. The parties may be requested to briefly outline their position and evidence they intend to present. This is an opening address and is like a roadmap. It tells the committee what the case is about, what each party believes the evidence will show, and the verdict they are asking for.

The applicant presents

1. The applicant (either personally or through a representative) introduces their application and presents their case.
2. They can call witnesses to give evidence in support of their application. The applicant's representative can ask questions of its witnesses (examination).
3. The committee may have questions for the applicant and their witnesses while they are giving evidence.
4. The reporting agencies (Police, Medical Officer of Health and licensing inspector) and any objectors may then ask questions (cross-examination).
5. The committee members then have the chance to ask any additional questions.
6. In some cases, after cross-examination the committee may allow the applicant's representative to ask clarifying questions of its witnesses (re-examination).

Reporting agencies present

1. In some cases, you may only attend the hearing to assist the committee. In this situation, you 'stand by' your report, which can be formally handed up when requested and taken as read.
2. If you are presenting evidence you will be sworn in (by oath or affirmation) before beforehand.  You do not have to be sworn in if you are only presenting submissions.
3. You can call witnesses to support your case. You may ask questions of your witnesses (examination).
4. The committee members or chairperson may have questions for you or your witnesses.
5. The applicant and the other reporting agencies can also ask you and your witnesses questions about your/their evidence (cross-examination).
6. The committee members or chair may have questions you or your witnesses as well.
7. In some cases, after cross-examination the committee may allow you to ask clarifying questions of your witnesses (re-examination).

Objectors present

1. Any public objectors who wish to speak can talk about their objections – in person or through representatives. They cannot introduce new grounds for objecting, but can present evidence to support their formal objection.
2. If they want to present evidence, they are sworn in.
3. Objectors can also call witnesses to support their cases.They may ask questions of their witnesses (examination).
4. The committee members or chairperson may have questions for the objectors or their witnesses.
5. The applicant and the reporting agencies can also ask objectors and their witnesses questions about their evidence (cross-examination).
6. The committee members or chair may have questions for the objectors or their witnesses as well.
7. In some cases, after cross-examination the committee may allow objectors to ask clarifying questions of their witnesses (re-examination).

Closing submissions

1. Each party usually has a chance to make closing remarks to sum up their case. Closing submissions are usually made in reverse order to the order in which the parties called their witnesses. The applicant usually has the last right of reply, although the committee has discretion to change the order of submissions.
2. If you are involved in a long, detailed hearing, you may wish to ask for an adjournment to draft your closing submissions.

The hearing concludes

1. The chairperson advises everyone that the public part of the hearing is finished and outlines the next steps.
2. All DLC decisions are issued in writing. Generally, the committee will issue a written ('reserved') decision to the applicant and other parties within 30 days of the hearing. Sometimes the committee confers in private for a short time and delivers an oral decision on the day, with the written decision issued later.

This section provides detailed guidance for presenting evidence in chief: if you are the witness, or if you have a witness presenting evidence for your case.

If you are presenting evidence in chief for your case

• When you are called to give evidence you must go to the witness box or seat (depending on the venue). You will then be required to swear on the Bible or make an affirmation ('verbal promise').
• Once you are settled, await direction from the committee before you begin reading your evidence.
• Remember to address the committee as “the committee”, the chair as “Sir” or “Madam” or “the chair”, and other committee members as “Sir” or “Madam”.
• Remember, the evidence is to the committee and your attention should be directed to the members of the committee.
• Be familiar with the evidence but don't attempt to memorise it.
• Stay calm and compose yourself. Don't rush it. Discipline yourself to speak slowly, clearly and loud enough to be heard, as your evidence is being recorded.
• If you are going to produce exhibits, ensure that you have sufficient copies assembled ready to hand to the registrar. Take your time. It is best to attach the exhibits to the brief and simply draw the committee's attention to them.
• Seek permission to refer to notes or documents.
• Avoid taking any large pile of papers with you that are not relevant to the evidence as this will make it difficult to sort out the relevant papers. If, when under cross-examination, you need to refer to a paper you do not have, explain this and ask for leave from the chairperson of the committee to retrieve the required papers. Have them set out logically on the desk so that you can find the required papers immediately.
• The person calling the witness may then ask some questions to add weight to the evidence or to bring out any additional detail.
• Once evidence in chief has been given, then all others who hold 'party' status will be given an opportunity to cross-examine you in relation to the evidence given and any other points that may assist the committee in its deliberations. You must also answer questions from the committee.

If you have a witness presenting evidence in chief for your case

• Spend some time before the hearing preparing your witness to give evidence: ensure that they are familiar with the contents of their brief of evidence; explain how the hearing will work and what is required of them; tell them how to address the various parties; who to direct their answers to etc. In an ARLA hearing expert witnesses must abide by the High Court Code of Conduct for witnesses.
• When they are called to give evidence, they must go to the witness box or seat (depending on the venue). They will then be required to swear on the Bible or make an affirmation ('verbal promise').
• You then stand and ask the witness to confirm their name.
• Thank them and ask them to read their brief of evidence which is their ‘evidence in chief’. Note that some DLCs may take the evidence 'as read' and allow the witness to go straight to cross-examination.
• Asking questions of your witness is called 'examination in chief'. The purpose of the examination in chief is to elicit the evidence from your witness in such a way that:
  • the witness tells the committee all they can properly say about the matters at issue in the case
  • the evidence is clear, unambiguous and only about matters relevant to the case.
• The answer your witness gives you to your questions is that witness's evidence in chief.
• It is good practice to only ask open questions of your own witness (ie, who, what, when, how, why). You should avoid asking leading questions (ones which suggest an answer).
• Once your witness has read their brief of evidence, you will usually have few, if any, questions for them as all evidence should be contained in the brief.
• You may wish to ask your witness questions if evidence has been given earlier in the hearing that they can directly comment on.
• For example: “You've heard the evidence of Mr Jones. What is your view on [relevant point]/can you comment on [relevant point]?” You should be careful to do this only where your witness can directly comment on that evidence and has the standing to do so. For example, if a manager has given evidence that there have been no instances of intoxication at premises, you may choose to question a Police Officer who has dealt with previous intoxication issues at the premises.
• You can ask your witness questions on evidence that has yet to be delivered (but has been disclosed in a written brief of evidence prior to the hearing). For example: “You will hear from the applicant that xyz, do you have any comments on that?”
• You can prompt your witness to seek a fuller answer to the question. For example: “What did you do next?” or “Sergeant Brown, can I take you back to the 4th of July last year when you conducted a compliance check at Victoria's Tavern. What did you see there?”
• The applicant, and the other parties, will then have an opportunity to cross-examine your witness. They must also answer questions from the committee.
• After cross-examination, the committee may allow you to ask clarifying questions of your witness (re-examination).

This section provides guidance on cross-examination and re-examination.

The purpose of cross-examination

The purpose of cross-examination is to ask questions of the witnesses of the other parties in order to:

• elicit favourable evidence – from those who are able to confirm evidence or expand on helpful matters
• discredit the evidence – reliability, perception, memory (or lack thereof), contradictory facts
• discredit the witness – conduct, bias, prejudice, interest, motive, inconsistency.

 The order of cross-examination of a witness

An applicant or their witness will be cross-examined in the following order:

1. The agencies will each cross-examine the witness.
2. The committee may ask questions.
3. The committee may then invite the applicant to re-examine their witness.

An agency or their witness will be cross-examined in the following order:

1. The applicant (or their lawyer) will first cross-examine the witness.
2. The other agencies will then cross-examine the witness.
3. The committee may then ask questions.

Guidelines for carrying out cross-examination

While the following points are not prescribed in law, they are helpful guidelines for carrying out cross-examination during a hearing:

• Use closed questions – try to ask only questions that require a “yes” or “no” answer. If, however, you have asked a question and the witness doesn't say “yes” or “no”, you must permit the witness to answer in full.
• Ask leading questions – a leading question suggests the answer to the witness. This gives you the ability to 'control' the witness.
• Ask single questions – keep the questions short. You can build to a big point with a series of short questions, allowing the witness to answer each question.
• Use simple language – use plain, straightforward, language.
• Put facts, not conclusions – the decision makers will draw conclusions based on the facts you have elicited in cross-examination.
• Consider your manner – you should be courteous, pleasant and non-confrontational when cross-examining a witness. You are likely to be more successful if you are not aggressive or irritated.
• TV shows or role plays frequently use the phrase “I put it to you, Mr Jones…” during cross-examination. Please don't do this. Where you are putting matters to a witness in cross-examination, simply state the proposition you wish to put to them. For example: “You were convicted in 2010, isn't that correct?”  “That was for supplying Class A drugs, methamphetamine, to patrons in a tavern, wasn't it?”  Short, simple sentences are best.

Points to consider if you are being cross-examined

• Don't get flustered or frustrated; answer truthfully and calmly.  Don't try to second-guess the motivation of whoever is cross-examining you. Any significant misunderstanding can be clarified in re-examination.
• If you don't know the answer to a question – just say so. Don't try to guess.
• Be direct and detailed if possible. If you are estimating or approximating, say so.
• If you can answer a question with a “yes” or “no”, do so. Don't add waffle to your answers.
• If you don't understand a question, or you tuned out and missed a bit of the question, ask whoever is cross examining you to repeat or explain the question.
• Look towards the person who is asking the question. Don't make the mistake of nervously looking at colleagues as if seeking approval.
• Remember to address your answers to the members of the committee.
• The members of the committee will question you at the end of the cross-examination.

Re-examination

Whoever has called the witness then has the opportunity to re-examine their witness.

The purpose of re-examination is to clarify matters that have come up in cross-examination; it cannot be used to introduce any new matters.

Re-examination must be in the form of open questions – no leading questions are permitted.

As the DLC can regulate its own procedure, it may vary the accepted practice and allow further questions on a new topic if a serious question has been raised in cross-examination. This, however, is not the general rule, and all evidence should have been presented in the examination in chief.

Exhibits are any items of evidence used during a hearing. These can be photos, video, audio, statements, diagrams, weapons, or any relevant object or material.

Where practical, copies of documentary evidence should be attached to the briefs of evidence. If this is not practical, then they should be made readily available, eg in electronic form. Reference should be made to these exhibits in the briefs themselves and sufficiently identified for easy reference.

Documentary exhibits are always taken by the committee, whereas other physical exhibits may not be accepted by the committee if all parties agree.

When exhibits are handed up, wait for the committee members to either read the material or examine a physical exhibit before continuing on. They will usually look up or give you a small nod to continue with your questioning or witness brief.

Any of the parties to a hearing can ask for an adjournment during the hearing.  This can be for many reasons (eg a witness is unable to attend), and the time periods requested for adjournment can vary (eg a few hours to a few weeks).

The committee must rule on whether to grant the adjournment or not. Similarly, the committee might order an adjournment to take advice or direct that the parties meet in private to see if a matter can be resolved.

Correct process may not always be followed

Hearings should be run with formal procedures, although still not as rigidly as a hearing presided over by a District Court Judge. DLCs around the country still vary greatly in their membership and experience. Some committees may not conduct a hearing as a judicial body; rather they may run a hearing as if it were a public meeting. In some cases, this means that correct procedures are not being followed.

For example, members may ask questions while evidence is being given, so you may find members cross-examining your witness while the witness is still giving evidence in chief. The chair may allow other parties to do the same. In other cases, members of the committee may look to the regulatory agencies for some guidance on the procedure or format of the hearing. 

What should you do if correct process is not being followed?

Sometimes it may be appropriate to allow the proceedings to follow their course.

However, if you are a party to the proceedings and you are particularly concerned about what is occurring, you may decide to stand and lodge an objection.

Because the reasons for your objection might give rise to grounds for appeal (if your opposition is unsuccessful) it is important that your concerns are included in the record of the hearing. You should therefore identify both your concern and the request to have your concern expressly noted in the record. For example: “Madam, I have concerns about the questions being asked because xyz... I would like the committee record to note my objections and the reasons for them.”

If you wish to discuss your concerns with the chair of the committee you can ask the committee secretary to request a meeting with the chair.

The role of the secretary in ensuring correct process

The secretary takes an active role in managing the functioning of the licensing process and the committee. Check with your committee secretary if they have a Local Hearing Procedure Policy setting out hearings procedures and protocols. The secretary can also take a role in supporting the committee to comply with it.

The committee is an independent decision maker and while the secretary will provide guidance and support to the committee it must not impinge on the committee's independence. The secretary can provide advice and support to the committee outside of hearings, but not during hearings.

Outside of hearings, the secretary could advise committee members that they:

• should reserve their questions until the witness has finished their evidence
• should reserve questions for the leading agency until they are in the witness box
• should reserve questions for the respondent until the conclusion of the hearing
• must record their decision in writing stating all reasons for a position taken.

The role of the council

It is the responsibility of the relevant council – and ultimately the chief executive – to actively monitor and support the committee and provide any training and assistance needed. It is not the responsibility of the inspector to do this.

Formal processes to address your concerns

If you believe there has been an incorrect application of the law or a breach of natural justice, the formal mechanism is either appeal or judicial review.

At the conclusion of the hearing, the chairperson advises everyone that the public part of the hearing is finished and outlines the next steps.

After the hearing has finished, the committee meets privately and makes a decision on the application. This is in writing, giving the reasons for the decision and summarising the evidence and arguments at the hearing. You, along with the other parties, will be sent a copy of the decision. It may take several weeks for the decision to be issued.

Sometimes the DLC confers in private for a short time and delivers an oral decision on the day, with the written decision issued later.

Step 4 – The hearing

Sale and Supply of Alcohol Act 2012 references

104           Who decides application for licence        

105           Criteria for issue of licences        

106           Considering effects of issue or renewal of licence on amenity and good
                 order of locality               

107           Authority or committee may refuse licence even if application not
                 opposed       

108           Licence may be refused if contrary to local alcohol policy              

109           Conditions may be imposed if required by local alcohol policy

130-132    Renewals

136           Temporary authorities: on-licences and off-licences

137-150    Applications for special licences

201           Licensing authority and licensing committees have powers of
                 commissions of inquiry

202           Procedure          

203           Proceedings of licensing authority and licensing committees      

204           Right of certain persons to appear in proceedings            

205           Right of persons to appear in relation to appeal under section 81             

206           Right of persons to appear in relation to certain applications for variation,
                 suspension, and cancellation       

207           Evidence in proceedings before licensing authority or licensing committee

211           Decisions to be given in writing

216-228    Manager’s certificates