Liquor licences are issued to a specific entity (individual person, company, or partnership) known as the licensee which authorises that entity to sell liquor at a specified place known as the licensed premises. Only the licensee may conduct business
under the liquor licence. The liquor licence is not considered an asset in the normal sense, but it is a personal right vested in the licensee.
A protection order authorises a person to sell and supply liquor at specific licensed premises as if that person were the licensee. It is used in situations where the licensee no longer has a right to conduct business under the licence in their own right
and the applicant for the protection order intends to carry on trading under the business in the interim until the licence is transferred.
A protection order will not be granted if the applicant does not wish to trade under the licence in the interim. A protection order is only necessary where the applicant intends on carrying on business under the licence to prevent substantive interruption
in trading due to the licensee ceasing to occupy or carry on business.
A protection order is not a means to circumvent the transfer of the liquor licence process and is granted for a short period only to allow the continuation of trade under the licence whilst a transfer application is being considered by the licensing authority.
Should a transfer application not be approved prior to the expiry of the protection order, a further protection order may be considered if warranted.
Authorisation to carry on a business without a protection order
The Act provides flexibility to allow persons other than the licensee to carry on business under the licence on a temporary basis in certain situations without the need to apply for a protection order. This is called an interim authorisation.
A relevant entity may take over the business and trade under the licence without the Director’s approval, however, must, within 7 days of exercising that right, give written notice to the Director of that fact. This written notice must set out when
the right was exercised and upon what basis (see table below). In some of these cases approval must be sought to exercise the interim authorisation.
Where the freehold owner/lessor of a licensed premises terminates the lease of the licensee, the licensing authority should be advised in writing stating the circumstances of the termination and the eviction date.
Who may be granted a protection order
An application for the grant of a protection order can be made under certain circumstances.
Circumstances where an application for a protection order may be lodged
The entities marked with an * asterisk require prior approval from the licensing authority before trading can commence.
Circumstances and applicable entities
| Circumstance | Applicable entity |
|---|
| Licensee vacates licensed premises or ceases to carry on business. | - Owner, lessor or mortgagee of licensed premises*; or
- Nominee of above*.
|
| Licence operation is suspended. | - A person who can show that they will thereby suffer loss*; or
- Nominee of above*.
|
| Person with interim authorisation who wants to carry on business longer than 28 days. | - A person with interim authorisation; or
- Nominee of above*.
|
| Any event or circumstance which may lead to the grant of interim authorisation where a transfer of licence is proposed to be lodged. | - The proposed transferee*;or
- Nominee of above*
|
| A hotel or liquor store serving the community in a rural area has ceased to carry on business. | - Relevant local shire/council*; or
- Nominee of above*.
|
Circumstances and applicable entities not required for the first 28 days of carrying on a business
| Circumstance | Applicable entity |
|---|
| Death of an individual licensee. | - Executor of licensee’s estate;
- Other person who has grant of administration of licensee’s estate;
- Relative or legatee of licensee*; or
- Nominee of above*.
|
| Individual licensee becomes permanently disabled through accident, physical or mental illness, or infirmity. | - Person authorised or appointed by law to administer the licensee’s affairs;
- Relative of licensee*; or
- Nominee of above*.
|
| Licensee is insolvent under administration, within the meaning of Corporations Law. | - The person who has lawful control of the licensed premises; or
- Nominee of above*.
|
| Company licensee becomes an externally-administered body corporate, within the meaning of Corporations Act. | - The person who has lawful control of the licensed premises; or
- Nominee of above*.
|