Those of us who were around in the 70s might remember the TV and radio advertisements for the non-alcoholic beverage called “Claytons” and the promotional line “The drink you have when you are not having a drink”. If you do, then you will appreciate the humour in my reference to a “Claytons extended trading authorisation” (Claytons ETA). A Claytons ETA is an approval from the Independent Liquor & Gaming Authority (ILGA) extending a venue’s trading hours with a condition imposed, requiring that there not be any sale of alcohol during those extended hours. One might well wonder what was the point of making the application in the first place?
A Claytons ETA is only relevant to a hotel licence. It is thought by some that a Claytons ETA overcomes a number of problems faced by a hotelier in relation to trading hour restrictions.
The Liquor Act contains obligations requiring the licensee to close the doors to the hotel after the time when the sale of alcohol is no longer permitted, except where the “bar area” (as defined) is permitted by the regulations to be used for services other than the sale/supply of alcohol (s.103(1)). In addition members of the public are not permitted to remain in the hotel, beyond 30 minutes after the end of the authorised trading hours (s.104(1)). There is a related offence for the hotelier, if the public are in breach of this provision (s.104(5)).
There is also an offence under cl.9 of the Gaming Machines Regulation 2010, for a hotelier to operate poker machines beyond the hours when alcohol may be lawfully sold/supplied, or when the continued provision of services, such as the operation of poker machines, is expressly permitted by the Liquor Act, or under the Liquor Regulation.
The standard trading period for hotels in NSW is 5:00am to 12:00 midnight, Monday to Saturday (but 5:00am becomes 10:00am if the 6‑hour closure period under s.11A has operation). On a Sunday the hours are 10:00am to 10:00pm. For a time, the former Licensing Court of NSW was readily granting applications to vary hotel trading hours. But that all came to an end when the current Act commenced. Since then, ILGA has repeatedly demonstrated a considerable reluctance to vary hotel trading hours, except for very modest increases, or recently, for a Claytons ETA.
The problem with a Claytons ETA is that it does not overcome the abovementioned problems for a number of reasons.
In respect of the main reason for making these applications (the continued operation of poker machines after the standard trading period), a breach of cl.9 of the Gaming Machines Regulation 2010 still arises, despite the granting of a Claytons ETA. There are two parts to the key words in cl.9(1)(b). The first part is for poker machines to be “operated at a time other than a time when liquor may be lawfully sold or supplied under the Liquor Act 2007 in the bar area in which the gaming machine is kept”. So if a Claytons ETA is granted with a condition imposed that there cannot be the sale/supply of alcohol after 12:00 midnight, then the sale/supply of alcohol after 12:00 midnight is not “lawful” (because it will be in breach of a licence condition). Therefore poker machines cannot be operated after 12:00 midnight, despite the granting of a Claytons ETA.
The second part of the clause refers to the “continued provision of services and facilities such as gaming activities” being “authorised by or under the Liquor Act”. There is nothing remotely relevant to this expression, except for two further provisions. One provision is in the Liquor Act and the other is in the Liquor Regulation. However, neither of them overcome the cl.9(1)(b) prohibition.
Firstly, there is s.15A of the Act. Section 15A does not assist in overcoming the cl.9(1)(b) prohibition. It is directed at a separate issue, which is having alcohol service available when poker machines are being operated. This section has three parts. Firstly, during the trading hours already covered by an ETA, the hotelier may choose to not have alcohol service available at the same time when the poker machines are being used (s.15A(1)). Secondly, the hotelier may choose to not have alcohol service during the hours covered by the standard trading period and still provide certain services, such as food and entertainment. However, those services do not extend to “gambling activities” (the operation of TAB, Keno and poker machines) (s.15A(5)). Thirdly, if the hotelier only wishes to provide gambling activities during the standard trading period, then a specific approval from ILGA must be granted (s.15A(2)). Accordingly, s.15A does not overcome the cl.9(1)(b) prohibition, nor the prohibitions contained in s.103 and s.104 of the Act.
The other provisions relevant are cl.53D and 53Z of the Liquor Regulation, however they are of limited application. Clauses 53D and 53Z do overcome the s.103(1), s.104(1) and cl.9(1)(b) prohibitions. These clauses were inserted in 2014 to redress the impact of the 3:00am cease service of alcohol restrictions, imposed for hotels in the Kings Cross Precinct and the Sydney CBD Entertainment Precinct. Many of these hotels already had liquor service hours of 24 hours a day, seven days a week. Many of these venues also were entertainment venues in their own right. So if they lost the right to sell/supply alcohol after 3:00am, then these venues would have to be closed and then turn out all patrons by 3:30am, unless there was a specific provision enabling the continued provision of services (other than alcohol) after the 3:00am time. This is the sole reason for cl.53D and cl.53Z of the Liquor Regulation and that is the extent of their limited operation. They do no more than preserve the gaming and entertainment operations of hoteliers in the Kings Cross and CBD Precincts.
What is missing from the legislation, to make a Claytons ETA “work” is a specific provision giving the Authority power to approve hotel venues to remain open to the public for the supply of services (other than alcohol), outside the standard trading period. In addition s.103 & s.104 of the Act need to be amended to reflect that approval, as well as cl.9(1)(b) of the Gaming Machines Regulation. Either that, or s.103 & s.104 of the Act are to be deleted entirely, as well as the cl.9(1)(b) prohibition, and the issue of hotels being kept open is left to the hours of operation in a council approved development consent.
So a Claytons ETA is a complete nonsense for the above reasons. There is no benefit in having that type of approval, as it does not overcome the s.103 & s.104 Liquor Act prohibitions, as well as the cl.9(1)(b) Gaming Machines prohibition.
Bruce Bulford
29 May 2017
