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Purpose

This factsheet summarises the exemptions which are set out in the Liquor Control Regulations 1989 (the LC Regs).¹

A primary object of the Liquor Control Act 1988 (the LC Act) is to minimise harm caused by alcohol. The LC Act does this by regulating the sale, supply and consumption of alcohol. Selling alcohol is defined very broadly and includes:

• selling, offering for sale, or bartering
• sending or delivering for sale
• auctioning
• supplying (for free or for money), where the person supplying the alcohol is likely to gain customers, or a monetary or commercial advantage.²

The LC Act regulates the premises where alcohol is sold, and the services and facilities which can be provided with alcohol. However, there are some circumstances where the provisions of the LC Act do not apply.³

The exemptions provided for in the LC Regs are for relatively controlled circumstances where it is expected that only small amounts of alcohol will be consumed, usually in a social setting where relatively few people are in attendance. The following exemptions only apply when all the conditions set out in the LC Regs are met:

• Live entertainment venues
• Small functions
• Complimentary supply by business
• Tourism operators
• Farmers’ markets
• Bed and breakfast
• Organisers of functions on licensed premises
• Charter vehicles
• Warehouse
• Transport services
• Delivery of gifts
• Lottery prize
• Food essence
• Health care services and retirement villages
• Liquor competitions.

Live entertainment venues

Alcohol cannot be sold or supplied at a live entertainment venue without a liquor licence, however the consumption of BYO alcohol will be allowed if all the requirements of the ‘live entertainment venue’ exemption are met.⁴ The main purpose of the event must be the provision of live entertainment at the premises, with any consumption of alcohol only ancillary to this purpose.

The live entertainment must be musical, theatrical, comical, or dance, provided by one or more persons who are present at the venue.⁵ It must be continuous, though reasonable breaks are allowed, such as intervals or breaks between acts. Any person consuming alcohol must be at least 18 years old.

Live entertainment does not include:

• sporting contests
• recorded music, with or without presentation by a DJ, (unless this is only incidental to the live entertainment)
• broadcasts or transmissions, whether live or with a delay.

The person in charge of the premises must notify the Director of Liquor Licensing (DLL) that the exemption is going to be relied on to allow the consumption of alcohol on the premises. The Notice of intention to allow consumption of liquor at a live entertainment venue form is available to download. The completed form must be received at least 14 days before the person intends to rely on the exemption.

The person in charge of the premises, and any person providing services on the premises, must not have had a liquor licence suspended, been disqualified from holding a liquor licence, been the subject of a prohibition order or found not to be a fit and proper person.⁶

The following criteria must always apply at the premises, for the exemption to apply:

• no more than 200 patrons are present at any one time
• the person in charge is not a juvenile
• juveniles are not allowed unless under the supervision of a responsible adult (unless they are providing services on the premises)
• drinking water is always available when alcohol is consumed
• drunk people are not allowed to consume alcohol
• indecently dressed persons, indecent behaviour or restricted material⁷ are not allowed.

It is an offence for any person to sell or supply alcohol to, or allow the consumption of alcohol by a:

• juvenile — subject to a penalty of $10,000⁸
• drunk person — subject to a penalty of $10,000 for the owner of the premises, and for anyone else, a penalty of $2000.

Small functions

Alcohol can be sold or supplied to attendees of a small function, without the organiser holding a liquor licence, if all the following criteria are met.⁹

A function is a gathering, occasion or event where alcohol will be sold or supplied, and can include a sporting contest, show, exhibition, fair, or reception.¹⁰ Alcohol can only be consumed at the function, and not packaged for consumption elsewhere. This sense of function denotes a special event or occasion and does not apply to ‘business as usual’ activities such the ongoing sale of alcohol at a licensed premises. The exemption only applies if the service of alcohol is not the primary purpose of the function, so anyone proposing to supply alcohol as a business model cannot rely on the small functions exemption and must apply for a liquor licence.

At the function, alcohol can be served:

• to people over 18 years old
• no earlier than 6am and no later than 10pm
• for a maximum of 2 continuous hours if there are no more than 100 attendees, or for 4 continuous hours if there are no more than 75 attendees.¹¹

It is not permitted to serve alcohol to drunk people or allow drunk people to consume alcohol at the function. It is an offence for any person to sell or supply alcohol to, or allow the consumption of alcohol by a:

• juvenile — subject to a penalty of $10,000¹²
• drunk person — subject to a penalty of $10,000 for the owner of the premises, and for anyone else, a penalty of $2000.

Complimentary supply by business

A business can provide free alcohol to a customer without a liquor licence if the following criteria are met.¹³ The alcohol is to be provided:

• by the business owner, or their employee, contractor or agent
• on the business premises, ancillary to the business (for example, the business does not usually sell alcohol and the alcohol is provided to promote the business)
• for consumption on the premises, no more than 2 standard drinks¹⁴
• for consumption off the premises, no more than 1 litre in a sealed container
• to a person who is not drunk and a drunk person is not allowed to consume the alcohol on the business premises.

Examples of businesses making use of this exemption would include a hair salon offering a complimentary glass of wine or champagne to a client, or a real estate agent offering a complimentary bottle of champagne to a home buyer.

Tourism operators

A tourism business does not need a liquor licence to supply alcohol to a customer, if all the following criteria are met:¹⁵

• the business is certified under the Australian Tourism Accreditation Program
• the person supplying the alcohol:
  • is the person carrying on the tourism business, or their employee, contractor or agent
  • has successfully completed a course approved by the Director of Liquor Licensing (the DLL) in the responsible sale, supply and service of alcohol
  • provides free alcohol, which is only provided ancillary to the main purpose of providing a tourism service to the customer
  • only supplies alcohol to people who are at least 18 years old.

The alcohol must not be supplied:

• at a licensed premises
• on a public road¹⁶
• in a restricted area¹⁷
• without the consent of the occupier, or person in authority of the place where it is consumed
• to a drunk person, and a drunk person is not allowed to consume alcohol at the place or premises.

Farmers’ markets

A liquor licence is not required to sell or supply alcohol from a stall at a farmers’ market if all the exemption criteria are met.¹⁸ A farmers’ market is a market or fair where primary producers ¹⁹ display and sell direct to the public. The stall must be provided by one or more alcohol producers, or an alcohol producers’ association, and sell the alcohol produced by these parties.

If it is being consumed at the farmers’ market the alcohol can only be provided as a free sample.²⁰ If it is being consumed away from the farmers’ market it must be:

• in sealed containers of no more than 9 litres to any one person in a day
• by way of an order for alcohol to be supplied at a future date.

Alcohol must not be supplied to a person under the age of 18, or to a drunk person, and drunk people must not consume the alcohol near the stall.

It is an offence for any person to sell or supply alcohol, or allow the consumption of alcohol by a:

• juvenile — subject to a penalty of $10,000²¹
• drunk person — subject to a penalty of $10,000 for the owner of the premises, and for anyone else, a penalty of $2000.

Bed and breakfast

A liquor licence is not necessary for alcohol to be provided at a bed and breakfast, if the exemption criteria are met.²²

A bed and breakfast operator can supply free alcohol to an adult staying at their facility. It must be consumed on the premises and not be more than 1.5 litres of alcohol, for the duration of that person’s stay. No more than 8 persons can stay at the facility at any one time.

The bed and breakfast operator must purchase the alcohol from someone who holds a licence authorising them to sell packaged liquor, or who has a club or wholesaler’s licence.

If they meet the relevant criteria, a bed and breakfast operator could consider relying on the tourism operator’s exemption, instead.

Organisers of functions on licensed premises

The organiser of a function at a licensed premises does not need a liquor licence if all the exemption criteria are met.²³

The organiser must enter into a profit sharing arrangement with the holder of a liquor licence, which is approved by the Director of Liquor Licensing (the DLL).²⁴ The DLL will not approve a profit sharing arrangement unless the relevant liquor licence permits the sale and supply of liquor to the public for consumption on the premises. The licences for liquor stores, wholesalers and clubs do not allow the general public to consume alcohol on the premises, so these venues cannot use this exemption.

The profit sharing arrangement is to set out that at the function the licensee will provide the venue, food and alcohol, at a fixed price to the organiser and the organiser is to arrange the advertising and ticket sales.

The ticket price includes admission and the provision of alcohol, food and entertainment during the function. All advertising for the function is to include a reference to the terms of the licence under which the supply of alcohol is authorised. Alcohol can only be provided to people who are at least 18 years old.

Charter vehicles

A liquor licence is not needed to provide alcohol to adult passengers in a charter vehicle if the conditions of this exemption are met.²⁵ When the passengers are consuming alcohol the vehicle must be subject to an on-demand charter vehicle authorisation under the Transport (Road Passenger Services) Act 2018, and be equipped to carry no more than 14 adult passengers, excluding the driver. The hire must be for at least one continuous hour and arranged before the trip started.

Any juveniles must be accompanied by, and under the supervision of, a responsible adult. The driver of the vehicle must not allow a drunk person to consume liquor in the vehicle.

This exemption does not apply if the vehicle is being hired to take school students to or from school functions, such as a school ball.

It is an offence for any person to sell or supply alcohol, or allow the consumption of alcohol by a:

• juvenile — subject to a penalty of $10,000²⁶
• drunk person — subject to a penalty of $10,000 for the owner of the vehicle, and for anyone else, a penalty of $2000.

Warehouse

A liquor licence is not necessary when a person who is the proprietor of licensed warehouse²⁷ sells liquor in bond to a person who proposes to personally take it outside of Australia.

Transport services

The sale and supply of alcohol is exempt when it occurs:

• on an interstate rail passenger service to or from Perth²⁸
• on an aircraft during a flight²⁹
• on a commercial vessel on an inter-state or overseas voyage³⁰
• to the master of a ship as ship’s stores, for consumption once the ship is outside WA’s territorial seas³¹
• on an intra-state cruise ship, to adult fare-paying passengers who are not drunk.³²

Delivery of gifts

An exemption applies to the sale or supply of alcohol, which is delivered with flowers, food or other products, if the gift is delivered between 7am and 7pm and packaged as a gift. The business of the supplier must be genuinely marketed as a service for the sale and delivery of gifts. The person receiving the gift must be an adult, and not the vendor, supplier or purchaser of the gift.

The alcohol supplied must:

• not exceed 2 litres
• have been purchased by the supplier from the holder of a hotel or liquor store licence
• not be worth more than half the purchase price of the gift (including the container).

This exemption does not apply in a restricted area, or to liquor restricted premises.

Lottery prize

The sale or supply of alcohol as a prize in a lottery conducted in accordance with the Gaming and Wagering Commission Act 1987 is exempt from the LC Act.

Food essence

Alcohol based food essence is defined as liquor for the purposes of the LC Act³³ but a person may sell it if they have the written authorisation of the DLL.³⁴

Alcohol based food essence is defined as a liquid flavouring that exceeds 1.15% ethanol in a container holding:

• 100 millilitres if it is natural vanilla essence; or
• 50 millilitres if it is any other flavour.

Health care services and retirement villages

In a health care setting or retirement village, certain people may sell or supply alcohol to patients or residents without the LC Act applying,³⁵ as set out in the following table:

Liquor competitions

A liquor competition³⁹ is a competition where:

• alcohol of a particular type is assessed by a judge in a systematic manner against criteria such as colour, appearance, aroma and taste
• the judge has expertise in relation to the type of alcohol in the competition
• after judgment the alcohol is allocated a score
• alcohol entered into the competition receives prizes or acknowledgments
• the purpose of the competition includes highlighting those producers whose alcohol is of the best quality, and to provide a forum to educate alcohol producers
• the alcohol is sold or supplied by way of sample
• the sale or supply, and consumption, of the alcohol is incidental to the competition.

At the competition, alcohol may be sold or supplied to a person who is at least 18 years of age and is not drunk, if they are one of the following:

• a judge
• a steward
• a producer who entered alcohol into the competition.

If all these criteria are met, the competition is exempt from the LC Act.

Additional guidance

Further information on licence requirements is available, or contact 61 8 6551 4888.

Disclaimer

The factsheet on this subject is general information and is not professional advice or a legal opinion. The information is provided on the understanding that any person reading it must take responsibility for assessing its relevance and accuracy.

Notes

1. LC Act s6(1)(o)
2. LC Act s3
3. LC Act s6
4. LC Regs r8A
5. LC Regs r8A(1)
6. LC Regs r8A(1), the person in charge of the premises must not have been subject to a ‘negative determination’, that is, a refusal of an application under the LX Act on the grounds of them not being a fit and proper person
7. Restricted materials include publications, films or computer games classified as RC under the Classification (Publications, Films and Computer Games) Act 1995
8. LC Regs r18 provides that premises subject to the live entertainment exemption are ‘regulated premises’, for the purpose of LC Act s122. LC Act s122 ensures that the definition of ‘regulated premises’ applies throughout the LC Act. This means that, despite the exemption, the LC Act s122 penalty for providing alcohol to juveniles applies, and also the LC Act s115 penalties for providing alcohol to drunk people.
9. LC Regs r8B
10. LC Act s3
11. When counting attendees, it is not necessary to count anyone providing services at the function
12. LC Regs r18(d) provides that premises subject to the small function exemption are ‘regulated premises’, for the purpose of LC Act s122. LC Act s122 ensures that the definition of ‘regulated premises’ applies throughout the LC Act. This means that, despite the exemption, the LC Act s122 penalty for providing alcohol to juveniles applies, as does the LC Act s115 penalties for providing alcohol to drunk people.
13. LC Regs r8C
14. LC Regs r3A — a standard drink has no more than 10 grams of ethanol at 20°C
15. LC Regs r8CA
16. Road Traffic (Administration) Act 2008 s4
17. LC Act s175(1a)
18. LC Regs r8D
19. A primary producer is defined as a person who carries on a business of agriculture, pastoral pursuits, horticulture, grazing, dairy farming, beekeeping, orcharding, viticulture, silviculture or other similar farming activities
20. LC Regs 5A
21. LC Regs 18(e) provides that premises subject to the farmers’ market exemption are ‘regulated premises’, for the purpose of LCA s122. LCA s122 ensures that the definition of ‘regulated premises’ applies throughout the LC Act. This means that, despite the exemption, the LCA s122 penalty for providing alcohol to juveniles applies, as does the LCA s115 penalties for providing alcohol to drunk people.
22. LC Regs r8(1)(j)
23. LC Regs r8E
24. LC Act s104
25. LC Regs r8F
26. LC Regs r18(f) provides that vehicle subject to the charter vehicle exemption is a ‘regulated premises’, for the purpose of LC Act s122. LC Act s122 ensures that the definition of ‘regulated premises’ applies throughout the LC Act. This means that, despite the exemption, the LC Act s122 penalty for providing alcohol to juveniles applies, as does the LC Act s115 penalties for providing alcohol to drunk people.
27. LC Regs r8(1)(a)
28. LC Regs r8(1)(b)
29. LC Regs r8(1)(i)
30. LC Regs r8(1)(ja)
31. LC Regs r8(1)(e)
32. LC Regs r8(3)
33. LC Regs r4A
34. LC Regs r8(1)(g)
35. LC Regs r8(1)(h)
36. Private Hospitals and Health Services Act 1927 s2(1)
37. Health Services Act 2016.
38. Private Hospitals and Health Services Act 1927 s2(1)
39. LC Regs r8G.