Alcohol licensing and hearings: A guide for DLCs

Anyone wanting to sell at retail or supply alcohol in New Zealand must apply to their local council (territorial authority) for a licence. District licensing committees (DLCs) consider and decide all applications for licences and manager’s certificates. 

DLCs are established under the Sale and Supply of Alcohol Act 2012 (the Act) and are administered by local councils. Each territorial authority must have at least one DLC; larger centres will have more. While the DLC is administered by the council, and may include councillors, it is an independent and impartial quasi-judicial body. DLCs have the powers of commissions of inquiry under the Commissions of Inquiry Act 1908. A DLC considers the application, agency reports, evidence and submissions presented to it against the criteria in the Act and any relevant case law. It then objectively determines facts and draws conclusions from them to make its decision. 

Within their local areas, DLCs decide applications for:

• new and renewal applications for on-, off- and club licences
• special licences
• new and renewal applications for manager’s certificates
• opposed acting or temporary appointments of managers
• variation of licence conditions
• temporary authorities and temporary licences
• orders to vary, revoke, suspend or cancel a special licence.

A DLC is made up of a chair and two members.

The chair

The chair can be either an elected member of the council or a commissioner appointed by the chief executive, on the recommendation of the council.

Elected members as chairs

There is no requirement in the Act for an elected member who is appointed as the chair of a DLC to have experience relevant to alcohol licensing matters. However, it would be desirable for the chair to have relevant skills or experience in leading a hearing and knowledge of alcohol harm and how it impacts local communities.

Commissioners as chairs

If a commissioner is appointed as chair they should have specialist skills and expertise in conducting hearings or a background relevant to the role.

A commissioner must be someone who: ‘is of good standing in the community and has the necessary knowledge, skill, and experience relating to matters that are likely to come before the committee’ (s 193(2)).

A territorial authority may consider good standing in the community to include those who are respected in the community.

A commissioner must not be appointed if:

• there are grounds for exclusion, including involvement, or appearance of involvement, with the alcohol industry to the extent that there would be a bias or appearance of bias (s 193(3)(a)), or
• the person is a police officer, a Medical Officer of Health, an alcohol licensing inspector, or an employee of the territorial authority (s 193(3)(b)).

A commissioner has all the functions, powers and duties of the chairperson (s 193(1)).

Members

Members of a DLC are eligible people approved by the council and selected from a list of potential DLC members with experience relevant to alcohol licensing matters. These can be community members or elected members of council.

List members must not be appointed if:

• there are grounds for exclusion including involvement, or appearance of involvement, with the alcohol industry to the extent that there would be a bias or appearance of bias (s 192(5)(a)), or
• the person is a police officer, a Medical Officer of Health, an alcohol licensing inspector, or an employee of the territorial authority (s 192(5)(b)).

The list

Councils must establish, maintain and publish a list of potential DLC members with experience relevant to alcohol licensing matters. The list ensures that DLC membership is flexible and can accommodate changes in the availability of members.

Councils can establish a combined list with one or more territorial authorities. A combined list will ensure a greater pool of skills and expertise for the territorial authority to select from when appointing DLC list members.

Tenure

DLC members and the chair are appointed for up to five years (as decided by the council). They can be reappointed for one or more periods of up to five years. A DLC member can resign at any time and can be removed for inability to perform functions, neglect, bankruptcy or misconduct. 

Chairs who were appointed to the DLC as an elected member of council cannot remain on the DLC if they are no longer an elected member of the council.  However, the council could choose to reappoint them as a commissioner if the individual has the necessary credentials and experience.

Each council decides a process for determining which list members will sit on each DLC for each of its hearings. Councils must have a clear and transparent process for allocating members. Allocation should not be determined by the personal preferences of the secretary, the chair or any other person. The chair should not be involved in selecting members for a particular hearing.

Generally, the secretary will allocate members for a hearing from the list according to an agreed process.

Factors that can be taken into account when determining the members of a hearing include:

• the availability of the members
• fair allocation of members – many councils use a rotation system, which ensures that all members have an opportunity to participate in a hearing
• members’ knowledge or experience related to a particular application – for example, a member may live in the suburb where the premises would be situated or have particular experience in the issues likely to arise from the application
• whether the member has sat on previous hearings relating to the application.

Some councils in larger cities have several DLCs and a pool of chairs that can rotate. Councils in smaller provincial and rural areas may have only one chair/commissioner, who takes part in every hearing. The chair participates in every hearing, unless they have a conflict of interest. If a chair has a conflict of interest, the deputy chair will take the role of the chair for that application and hearing. 

A DLC is a committee of council, is administered by the council, and may include councillors. However, it is an independent and impartial body and operates differently from other council committees. It should not be subject to influence from the council (or from any other third party).

DLCs have the powers of commissions of inquiry under the Commissions of Inquiry Act 1908. This means, for example, that a DLC can issue summonses requiring the attendance of witnesses before it or the production of documents. It also has the power to rehear any matter that it has determined  (s 201(4)).

As a commission of inquiry, a DLC has a quasi-judicial role. DLCs have powers and procedures similar to those of a court of law or a judge and are obliged to objectively make findings of facts and draw conclusions from them.

A council cannot override a decision of a DLC. A decision of a DLC can be appealed to the Alcohol Regulatory and Licensing Authority (ARLA). Decisions of ARLA can be appealed to the High Court, and then, if leave is granted, to the Court of Appeal.

A DLC is one of two specialist bodies that make decisions on alcohol licensing:

1. District licensing committees, which are administered by local councils, consider and determine all applications for alcohol licences within their local areas.
2. The Alcohol Regulatory and Licensing Authority (ARLA) deals with most enforcement actions and decides appeals against DLC decisions.

The courts also consider appeals against decisions made by ARLA.

A DLC may request to refer a decision to ARLA where:

• the DLC considers the application is beyond its ability to determine, for example, due to its complexity (ss 104(3) and 130(3))
• the application is of national interest or may set a legal precedent
• an enforcement application relating to the same applicant, premises or manager is already before ARLA. If the DLC is being asked to consider a renewal, it may be more appropriate for ARLA to deal with both the enforcement matter and the renewal hearing at the same time
• the application involves a council controlled business or premises which may give rise to claims of bias or conflicts of interest. 

ARLA may decline to hear the matter and refer it back to the DLC. If ARLA chooses to hear the matter, it may seek information from the DLC to assist in the hearing.

A DLC is an independent and impartial body. You are responsible for ensuring natural justice is afforded to all the parties to the hearing. This means that you must treat all parties fairly and act without bias. You must approach all applications and decisions without a pre-determined view of the outcome. You must give all parties a fair hearing and, as part of that, a reasonable opportunity to be heard (for further information see the sections on Natural justice and Conflicts of interest).

Your role is to consider and determine licence applications by using an evaluative process. This includes listening to evidence and arguments for and against applications and making decisions on them. You must make your decisions by considering the reports and evidence presented to you against the criteria in the Act and any relevant case law. All decisions need to be consistent with the purpose of the Act and help achieve the object of the Act.

Decisions are made by a majority of DLC members (two of the three); decisions do not have to be unanimous.

A DLC cannot delegate its decision-making role. This means it cannot pass its role on to others such as council staff. Staff must not assist or influence the DLC in coming to its decision, or write decisions on behalf of the DLC.

Your decisions are subject to appeal at ARLA and through the courts. You are responsible for the decisions you make. 

Elected members of a DLC hold a quasi-judicial role and must make fair and legally correct decisions. They must not be influenced by concerns that a decision may be unpopular, cause potential economic hardship, or affect an elected member’s re-election or other prospects or interests.

The alcohol licensing process is set out in full the Sale and Supply of Alcohol Act 2012 (the Act). The roles of DLC chairs and members are also specified in the Act.

This guide sets out the six steps in the licensing process as they apply to DLCs. Chairs are involved in Step 2 and all DLC members are involved in Steps 3-5. The steps are:

Step 1: The application is submitted and reported on by the agencies

Step 2: The DLC chair considers the application

Step 3: Hearing preparation

Step 4: The hearing

Step 5: The DLC makes a decision

Step 6: Appeals to ARLA regarding a DLC decision

Each of these steps is set out in more detail in Part 2 of this guide.

While this guide focuses on the role of DLC chairs, commissioners and members in the licensing process, others are involved at different stages. For example, after the application has been submitted (Step 1), the agencies – the Police, the Medical Officer of Health, and the licensing inspector – inquire into the application. The Police and the Medical Officer of Health may submit a report, while the inspector must submit a report, which would be forwarded to the chair for consideration (Step 2). In addition the applicant, agencies and public objectors are – or may be – involved in any hearing and appeals. 

The DLC chair considers all applications on behalf of the committee

When the application and all required information have been received, the DLC secretary will send the complete file to the chair. The file will include the application and attachments (if any), all reports from the statutory agencies, and any public objections.

Some applications can be considered and determined by a quorum of one – the DLC chair alone – without a hearing or the involvement of the other DLC members. This is called a decision ‘on the papers’ and is considered to be a decision of the DLC. Where there are no objections and no matters of opposition raised by agencies, the chair can decide ‘on the papers’ an application for a:

• licence or renewal of a licence
• manager’s certificate or renewal of a manager’s certificate
• temporary authorities

If the application is opposed by a reporting agency, has public objections, is incomplete or the chair has any concerns, the chair can issue a minute seeking more information and/or set the application down for a hearing.

When a licence is granted ‘on the papers’ it must be granted exactly as applied for or with the mandatory conditions. If the chair wishes to include any conditions beyond those or to vary the conditions, a hearing is required to hear from the potentially affected parties.

At this stage, the chair will deal with any preliminary matters relating to a hearing and dates for disclosure of information.

The full DLC considers applications when there will be a hearing

DLC members get involved in the application process if the chair decides that a hearing is required.

Where a public objection has been filed, the DLC must hold a hearing unless the:

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

A public hearing is not automatically required where there is agency opposition if there is no public objection to an application for a licence or manager’s certificate. The chair can determine whether a hearing is required. In the interests of natural justice it would be good practice to have a hearing to hear from the agency (or agencies). 

If the DLC is thinking of declining an application, or if it wants to impose (or vary) conditions outside of those the applicant has applied for, it should set the matter down for a hearing. A hearing allows the parties a chance to have their say. After deliberations, the DLC may decline the application or grant it with conditions. At the end of the hearing the chair should advise the parties of the next steps. The chair could give the parties a timeframe for the written decision. This timeframe should be realistic. Alternatively, the DLC may issue an oral decision at the time of a hearing. It would then follow up with a written decision outlining in full the reasons for the oral decision. 

DLCs should follow best practice

DLCs are quasi-judicial decision-making bodies whose decisions are subject to appeal in the courts. This means that DLCs should follow best practice and uphold the principles of natural justice.  They should deal fairly and consistently with all applications and give all parties a fair and reasonable opportunity to present their cases. This is particularly important when local members may know most of the applicants personally. DLCs should be able to make all parties to the hearing (including community objectors) feel comfortable and welcome while maintaining the appropriate process. 

Some DLCs are busier than others

DLCs in large metropolitan areas regularly deal with high numbers of applications. While the majority are still dealt with ‘on the papers’, these DLCs may have more than 20 hearings a year. Depending on the number of members on the list and the practices of the council, these members are likely to get significant hearings experience. 

Many smaller towns or rural areas have only a few applications per year and even fewer hearings. This means that some rural DLC members had little experience being part of a hearing. 

Where neighbouring councils have shared lists of DLC members, DLCs can cover multiple council areas. This means that members may have a greater chance of being involved in a hearing. 

Find out how other DLCs work

You could find out more about how other DLCs work by:

• attending a hearing in another district
• holding a regional meeting with neighbouring DLCs to share your experiences and practices
• asking other DLC chairs or commissioners to speak to your DLC
• joining the national DLC Network.

You could also attend a hearing of ARLA or a commission of inquiry. 

Local Government New Zealand’s Competency Guidance for DLC members provides guidance on the competencies needed by members of district licensing committees.

Sale and Supply of Alcohol Act 2012 references for 1.1 DLC roles and responsibilities

99 - Applications to be made to licensing committee

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

203 - Proceedings of licensing authority and licensing committees

Territorial authorities (city and district councils) have a range of powers and responsibilities under the Sale and Supply of Alcohol Act 2012 (the Act). They have many important functions relating to DLCs. Councils:

• appoint DLCs
• maintain a list of eligible DLC members
• may appoint commissioners
• appoint the chair of the DLC
• provide administrative support to the DLC
• provide training and technical support.

Councils appoint DLCs

Every territorial authority must have one or more district licensing committees (DLCs) to make decisions on all licences and manager’s certificates.

A DLC must be made up of a chairperson and two committee members.

The two committee members are selected from a list of DLC members chosen and maintained by councils.

A council can appoint a deputy chair to act in place of the chair if the chair is ill or overseas, or for other sufficient reasons.

Councils maintain a list of DLC members

Councils must set up and maintain a list of potential DLC members. People on the list must have experience relevant to alcohol licensing but must not be:

• involved in the alcohol industry to an extent that there may be bias or perceived bias
• a police officer, a Medical Officer of Health, an alcohol licensing inspector, or an employee of the territorial authority.

Councils may also appoint commissioners

Commissioners must have “good standing in the community” and “the necessary knowledge, skill, and experience relating to matters that are likely to come before the committee”. Just as with members, commissioners must not be:

• involved in the alcohol industry to an extent that there may be bias or perceived bias
• a police officer, a Medical Officer of Health, an alcohol licensing inspector, or an employee of the territorial authority.

Councils might appoint commissioners to reduce the likelihood of conflicts of interests arising or to enhance the DLC’s skills and experience in licensing matters.

Councils appoint the chair of the DLC

A chair can be either an elected member of council or a commissioner.

An elected member who is appointed as the chair of a DLC is not required to have experience in alcohol licensing. However, it is desirable that they have transferrable skills relevant to alcohol licensing. As examples, they could have relevant chairing experience in council committees or resource management hearings.

Commissioners appointed as chairs should have specialist skills and expertise in conducting hearings and in alcohol licensing.

Councils provide resources and administrative support to the DLC

Councils are responsible for resourcing and supporting DLCs so that they can fulfil their obligations under the Act effectively. The level and nature of support may vary across councils depending upon their size and capability. 

Depending on the council, either the secretary of the DLC or the administrative staff will:

• administer the application process – this includes receiving the application and building the file until it is ready for the DLC to consider
• prepare for a hearing – this includes ensuring documents are provided to parties, the room is set up as directed by the DLC, the room is large enough and has sufficient seating, video conferencing equipment is available if there are people attending remotely, and recording equipment is available and working
• liaise with the applicant, the inspector, Police, the Medical Officer of Health, objectors and council staff in relation to matters like hearing dates, the provision of further information, and the exchange of submissions and evidence.

The secretary can be directed by the committee by way of a Directions Minute to undertake a particular inquiry that may assist the DLC to deal effectively with any matter before it.

Regardless of the size of the council, certain principles of transparency must be adhered to. The DLC’s key relationship with the council should be through the secretary of the DLC. The DLC should not have a close relationship with the inspector or any other council staff. Any DLC contact with staff (including inspectors), should be made through the secretary to ensure the transparency of the process and avoid any suggestion of pre-determination.

While the secretary has an important role in liaising with, and supporting, the DLC, the secretary should not:

• write DLC decisions
• sit with the DLC at hearings
• be present at, offer advice to, influence or control the DLC’s deliberations or decision making at any stage.

Council should provide a means for independent legal advice for the DLC as there may be times that both the inspectors and the DLC wish to seek advice and the in-house legal team may end up being conflicted.

Councils can provide training and technical support

DLC members need ongoing training and support. The type and level of support required will depend on the size and capability of the council. Support may come from council staff such as the DLC secretary or members of the council’s legal team. Councils can also hire external people to provide specific technical guidance eg, on hearing procedures, the assessment of evidence and submissions, and writing decisions.

In some regions, councils coordinate shared training for DLCs from across the region. Councils also hold regular training and invite DLCs from other areas to attend. This is a great way for DLCs to upskill and network.

Training support can also come from national bodies such as Ko Tātou Local Government New Zealand and Health Promotion, Te Whatu Ora | Health New Zealand. It is worth finding out about resources and training opportunities that these agencies provide.

You could find out more about how other DLCs work by:

• attending a hearing in another district
• holding a regional meeting with neighbouring DLCs to share your experiences and practices
• asking other DLC chairs or commissioners to speak to your district licensing committee
• joining the national DLC network.

Local councils have a range of powers and responsibilities under the Act. 

The functions of council chief executives

Under the Act, each territorial authority’s chief executive:

• is the secretary of the DLC - they may delegate this role, and usually do
• may appoint an alcohol licensing commissioner to a DLC, if requested to do so by the territorial authority
• is responsible for appointing licensing inspector(s) and ensuring they can exercise their role independently
• may appoint a chief licensing inspector if there is more than one licensing inspector.

The functions of licensing inspectors

Licensing inspectors have a range of duties, functions and powers under the Act. They must act independently when exercising these. Inspectors are not employees of the DLC and cannot be directed by the DLC on the contents or conclusions of their reports. They must also act independently from their territorial authority.  

As part of their role, the inspector:

• must monitor licensees’ compliance with the Act
• must report to the DLC on all applications for a licence, temporary authorities (ARLA Practice Direction One) and all manager’s certificates.
• can issue infringement notices for specified infringement offences
• can access information held by ARLA on current and past licensees and managers when preparing a report on an application. This information helps to determine whether an applicant is a suitable person to hold, or continue to hold, a licence or a manager’s certificate. 

The functions of the DLC secretary

The secretary has several important functions in the licensing process, including:

• facilitating and managing the application process
• liaising with the chair of the DLC when public objections or agency oppositions are received
• arranging venues and video conferencing capability if required
• facilitating the proper hearing notifications and disclosure processes as directed by the chair
• ensuring that objections and matters in opposition are placed before the inspector to comment on in his/her report
• ensuring that all parties receive the appropriate documentation
  issuing licences (following a decision of the DLC)
• liaising, or facilitating liaison, with objectors to help ensure a fair hearing takes place
• undertaking a particular inquiry that may assist the DLC to deal effectively with any matter before it, if directed by the committee by way of a Directions Minute.

Councils can develop local alcohol policies

The Act allows local councils to develop local alcohol policies (LAPs). A LAP is a set of rules made by a local authority in consultation with its community about the sale and supply of alcohol in its geographical area.

Local alcohol policies can cover the following:

• Limiting the location of licensed premises in broad areas or in relation to particular premises or facilities such as near schools, community centres, playgrounds or churches.
• Controlling the density (or total number) of licensed premises by stating whether new licences can be issued in an area.
• Imposing conditions on particular types of licences as well as the conditions already provided for in the Act such as a ‘one-way door’ policy that would allow patrons to leave premises but not enter or re-enter after a certain time.
• Restricting or extending the maximum trading hours set in the new Act, which are:
  • 8am to 4am for on-licences (such as pubs, restaurants, or a club licence)
  • 7am to 11pm for off-licences (such as bottle stores and supermarkets).

LAPs are optional; local councils don't have to have one. Two or more local councils can develop a joint LAP. Once a LAP is in place, licensing bodies must have regard to it when they make decisions about alcohol licensing applications.

Councils can facilitate community involvement in alcohol licensing and hearings

The Act deliberately intended to facilitate community participation in licensing decisions. 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
• object to licence applications on more grounds than under the previous Act
• introduce legally enforceable local alcohol policies.

The Act only requires councils to ensure that licence applications have been correctly notified to the public by applicants. However, councils can do more to facilitate community involvement in the licensing process and so help promote the Act’s purpose and broader philosophy. Councils could consider best practices including:

• making information about the licensing process easy to access, for example, by providing web links to information available on alcohol.org.nz such as the guide to objecting to an alcohol licence
• making licence applications easy to access on council websites
• having the council’s community advisory team provide information to public objectors about how hearings work and the importance of ensuring decision makers hear directly from community members
• having the community advisory team provide feedback or requests from the community about the process to the secretary of the DLC. For example, there could be requests for the hearing to be held outside of working hours so community members can attend or for a particular person to be able to give evidence at a time convenient to them.

Public objectors have a strengthened role under the Act and it is consistent with the Act’s philosophy to take all reasonable steps to facilitate fair and transparent community involvement. No staff should ever discourage (directly or indirectly) a community member from participating when they have the right to do so.

However, in facilitating community input into the licensing process, councils must be careful not to show, or be seen to show, bias towards the community.

Information on the licensing process is available at alcohol.org.nz including guides to applying for a licence and objecting to a licence.

Sale and Supply of Alcohol Act 2012 references for 1.2 Council roles and responsibilities

75-97 - Local alcohol policies

186 - Territorial authorities to appoint district licensing committees

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

193 - Appointment of commissioners

194 - Resignation or removal

196 - Secretary of licensing committees

197 - Licensing inspectors

198 - Delegation of functions, duties, or powers of chief executives 

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 and replaced the Sale of Liquor Act 1989. 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.

In 2008 the Law Commission was tasked with a first-principles review of the legislative framework for the sale and supply of alcohol in New Zealand. In 2009 the Commission released Alcohol in Our Lives: An Issues Paper on the Reform of New Zealand’s Liquor Laws. The report put forward options for change and sought public feedback. In April 2010 the Commission released its final report, Alcohol in Our Lives: Curbing the Harm, which contained 153 recommendations to Government. These reports can be found here. 

The Government’s response to the recommendations was implemented through the Local Government (Alcohol Reform) Amendment Act 2012, the Sale and Supply of Alcohol Act 2012 and the Summary Offences (Alcohol Reform) Amendment Act 2012.

The Act:

• 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). Changes to the alcohol licensing process in 2023 mean that anyone can object to licence applications, with narrow exceptions for trade competitors and their surrogates. 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. Local alcohol policies are developed under the Act. As a DLC, you must have regard to any relevant LAP in all your decisions about alcohol licences. If you consider that the issue or renewal of a licence, or the consequences of the issue of a licence, would be inconsistent with a LAP you can refuse the licence. You can also issue a licence subject to conditions if you consider that the issue of a licence, or the consequences of the issue of a licence, without those conditions would be inconsistent with a LAP. Look at the Local Alcohol Policies section for more information.

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.

The Sale and Supply of Alcohol Act 2012 is the key piece of legislation governing your role as a DLC. The Act sets out the:

• powers and functions of DLCs
• selection process for chairs, commissioners and members
• licensing process, including how and when you are involved
• criteria that decision makers must consider when assessing applications
• processes that you must follow when assessing applications and conducting hearings.

DLCs have to consider a range of criteria when deciding licence applications. You should also be aware of, and consider, relevant case law and ARLA practice notes and guides. These can provide information on how the criteria should be applied. 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).

When deciding whether to issue an on-, off- or club licence, a DLC 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.

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

• the matters set out above in (s 105) apart from those relating to amenity and good order
• whether amenity and good order would be likely to be increased, by more than a minor extent, by the effects of a refusal to renew the licence
• how the applicant has sold (or supplied), displayed, advertised or promoted alcohol.

When deciding whether to renew licences where a relevant local alcohol policy exists, a DLC may (s 133):

• decline to renew a licence if it considers that renewing the licence would be inconsistent with any policy set out in the relevant local alcohol policy relating to a matter specified in section 77(1)(a) to (d)
• impose conditions on any licence it renews if it considers that the renewal of the licence, or the consequences of the renewal of the licence, without those conditions would be inconsistent with the relevant local alcohol policy.

When deciding whether to issue a special licence, a DLC 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.

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 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 you 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 you 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.

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

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.

View templates for conditions for different types of licences

• New Zealand legislation and regulations are available online at legislation.govt.nz including the Sale and Supply of Alcohol Act 2012
• 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 (see nzlii.org)
• ARLA practice notes and guides
• Consider subscribing to an online case law guide to the Sale and Supply of Alcohol Act 2012, such as Westlaw, which provides updates on case law
• The Law Commission’s reports into the legislative framework for the sale and supply of alcohol in New Zealand
• View templates for conditions for different types of licences.

Sale and Supply of Alcohol Act 2012 references for 1.3 The Sale and Supply of Alcohol Act 2012

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 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 more clearly, 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). 

Sale and Supply of Alcohol Act 2012 references for 1.4 Natural Justice

154-158     Appeals to licensing authority

159-167     Appeals to High Court

168            Further appeal to Court of Appeal

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.

All public decision-making bodies, including district licensing committees (DLCs), must be independent and impartial and follow fair processes. As a member of a DLC, you need to be sure that you do not have any real or perceived bias which could impact on your ability to make an independent and impartial decision. You must be impartial and must make a decision based on a balanced and considered assessment of the information and evidence before you without favouring one party over another. 

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. Elected members of council have extensive involvement in their communities and a great deal of local knowledge. This knowledge can help inform the decision-making processes of the DLC; however, this closeness to the community can also give rise to a conflict of interest or a perception of bias. 

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.

A process for doing this is outlined in Section 1.5.5 -The steps in determining bias or conflict of interest.

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 duty to the DLC competes with a duty or loyalty you have to another organisation or person.
Examples of real or perceived conflicts of interest for DLC members 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
• having a pre-stated position either supporting or opposing a live matter in the proceedings, even if this is the sale and supply of alcohol generally  
• having made public comments (including online) either supporting or opposing the specific premises or parties to the application 
• 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 decision. 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 secretary of the DLC as soon as possible. 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 DLC 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.

Identify conflicts of interest

The key question you must address is: could your duties or responsibilities to the DLC be affected by some other interest or duty that you have? It is important to focus on the overlap between the two interests – that is, whether your other interest has something to do with the particular matter that is being considered or carried out by the DLC.

It is better to err on the side of openness when deciding whether something should be disclosed. Many situations are not clear-cut. If you are uncertain about whether or not something constitutes a conflict of interest, it is safer and more transparent to disclose the interest. The matter is then out in the open and others can help you assess whether the situation constitutes a conflict of interest. Disclosure promotes transparency and is always better than the member trying to manage the situation by themselves.

Disclose conflicts of interest

You need to disclose any potential conflict of interest to the chair of the DLC before the hearing starts or as soon as is reasonably practicable once you become aware of it. If the chair has any potential conflict of interest, they should disclose this to the secretary.

Assess conflicts of interest

Several factors may need to be weighed in assessing the seriousness of the real or perceived conflict of interest. They include the:

• type or size of your other interest
• nature or significance of the particular decision under consideration
• extent to which your other interest could specifically affect, or be affected by, the DLC’s decision or activity
• nature or extent of your current or intended involvement in the DLC’s decision or activity.

Consider whether a reasonably informed observer would feel it was appropriate for you to be involved in this application.

Manage conflicts of interest

It is better to err on the side of caution when managing conflicts of interest. If there is a perception of a conflict, remaining on the DLC could open the way for an appeal in the future; it is better to stand down.

The ‘conflicted’ person must disclose the issue to either the chair or the secretary with a stance of either “I feel I am conflicted and will stand down” or “I do not feel this issue is a conflict and I consider I can remain on the committee”.

If, after a thorough analysis, the chair believes there is a conflict, he or she should instruct the secretary to appoint another member. If it is in the ‘grey’ area, the member can make the disclosure at the start of the hearing and invite the applicant to agree or otherwise that a conflict exists.

It is wise to keep a written record of any decision. This might include details of the facts, who undertook the assessment and how, and what action was taken as a result. The chair should do this. For example, the chair would write in the decision that “John Brown, member, declared that he owned the café seeking the licence today approximately 10 years ago. His involvement in the hearing was not challenged by any of the parties”.

If the chair (when a member has a conflict of interest) or the secretary (when the chair has a conflict of interest) judges that a situation does not amount to a conflict of interest, or is too indirect or insignificant, they may record the disclosure and assessment, but take no further action.

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.

For more information on managing conflicts of interest see the Office of the Auditor-General’s guide – Managing conflicts of interest: Guidance for public entities.

Sale and Supply of Alcohol Act 2012 references for 1.5 Conflicts of interest

By way of broad summary, case law, otherwise known as the ‘common law’, is the written application of the statute that has been established through decisions made by judges in previous cases in particular factual scenarios. It is built up from judgements given by higher courts when they interpret and apply statutes in the cases brought before them. Sometimes called ‘precedents’, 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. Or, the common law might change as society’s expectations change or as allied 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 – 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.

Case law may be introduced in reports by agencies or in submissions by any of the parties. In making your decisions you will also have to consider relevant case law. You need to be familiar with the case law, understand how it is relevant to your role, and know how to apply it.

When you make a decision on matters that come before your district licensing committee (DLC), you must consider each case against the criteria set out in (ss 105 and 106) of the Act for new licences and (s 131) for renewals. Case law precedents will provide guidance about how to consider each of the criteria in the particular circumstances of your case where these are similar to the case at hand.

The application of case law supports consistency (and hence certainty) in decision making. By correctly applying case law, your decisions will be consistent with the decisions of higher decision-making bodies, and less likely to be overturned on appeal.

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 judgements 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, you should stay informed about relevant decisions from DLCs around the country.  

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.

In every case, it is important to keep any reference to case law relevant to the issue. If an opposition has been lodged because of an applicant's character, only refer to case law on character as a basis of opposition.   

When considering the impact of case law on your decision you should ask:

• Is the issue for determination factually and legally similar to one that has already been made? The more similar the decision, the more you have to follow the case law.
• Is the case law relevant to this case? What are the implications for this case?

If you are referring to case law, ensure you have read the whole case rather than referring to other people’s summaries of those cases. While there are cases that have general statements of law, there may be other cases that are relevant only on their own particular facts. These are known as being ‘distinguishable’; that is, the reasoning of the case will not apply due to materially different facts between the cases.

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. 

It is important that parties to a hearing keep any use of case law relevant to the issue. If an opposition has been lodged because of an applicant’s character, they need to make sure that any case law quoted is relevant to this point. 

Parties cannot ignore case law that doesn’t support their position. Rather, they can refer the committee to case law that supports their view, and also advise the committee of any contrary case law. They can say, for example, “I refer you to Smith v Jones, in which it was decided that all hotels be painted red. There are 25 other judgements in support and one in opposition, which states that all hotels should be painted blue.”

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

Where a party refers to a case, you should read the entire decision as you might have only been referred to the part that is helpful to the party. Also, ensure you check whether the quoted decision was appealed, has had other negative comment even if not appealed, and its status – was it an interim or final decision? What was the result?

The New Zealand Legal Information Institute has databases for Liquor Licensing Authority decisions up until 21 December 2012 and for 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

The applicant, the licensing inspector, the Police and the Medical Officer of Health are involved in this step.

The DLC is only involved in Step 1 only if they are required to consider either the late filing of a special licence application or a waiver. 

The district licensing committee (DLC) is only involved in Step 1 if it is required to consider either the late filing of a special licence application or a waiver. 

Special licence applications must be submitted at least 20 working days before the day the event begins. Under (s 137) of the Sale and Supply of Alcohol Act 2012 (the Act), a DLC may consider an application for a licence filed less than 20 working days in advance if it is satisfied that the need for a special licence could not reasonably have been foreseen earlier. If the DLC decides to consider a late application then it must, after consulting the Police and the Medical Officer of Health, set a period of less than 15 working days from the time the application was received within which reports from the Police and Medical Officer of Health must be received. In practice, the secretary will consult with Police and the Medical Officer of Health on behalf of the chair and report to the chair with the responses received.

Under (s 208) the DLC or the chair may provide waivers on timelines or actions as prescribed in the Act. Where someone has neglected or omitted to do something in the precise manner or timeframe required in the Act, the committee or the chair, if satisfied that it was not wilful, may waive the neglect or omission on terms they think equitable. For example, an objection may have been received a day after the closing date. The committee or chair may grant a waiver to allow the objection to be considered if they determine that its lateness was not wilful

Pre-application considerations

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 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 application is received

The council receives all licence applications. The secretary of the district licensing committee will check that the application is complete, 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.

The agencies make an initial assessment of the application

The three agencies must inquire into applications based on the assessment criteria set out in the Sale and Supply of Alcohol Act 2012. Depending on the specifics of the licence application, the agencies may meet to identify any information missing from the application. 

The inspector may then:

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

The agencies inquire into the application

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

• An application for a new or renewed alcohol licence involves the licensing inspector, the Police and the Medical Officer of Health or their delegate. The inspector must always file a report (whether or not they object). The Police and the Medical Officer of Health must file a report if they have any matters in opposition, but are not otherwise obliged to file. If no report is received from the Police or the Medical Officer of Health within 15 working days of the application being sent to them, the DLC may assume that these agencies do not oppose the application (s 103(4)).
• An application for a new or renewed manager’s certificate involves the licensing inspector and the Police only.
• An application for a temporary authority involves the licensing inspector and the Police only (see ARLA Practice Direction #1).

The public is notified of the application

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. 

Community involvement

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 the agencies can do to support community involvement

Councils, Regional Public Health Services and the Police can play an important role in supporting community members to participate in the licensing and hearing process.

While the individual Police officer, inspector and Medical Officer of Health (or their representative) must remain neutral, others in their organisations can assist members of the community to understand the process and what is expected of objectors during a hearing.

While the statutory agencies can support the community to participate in the licensing process, they must maintain their independence and ensure they fulfil their statutory obligations. They cannot actively promote positions to the community or draft their submissions. However, they 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
• attend a community meeting to provide information about the application and the licensing process. 

More information and resources to support community participation can be found on alcohol.org.nz.

The agencies must report community objections to the DLC

The High Court made specific 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 judgement is applicable to the Sale and Supply of Alcohol Act 2012 and to all the agencies who now report to the DLC. 

The judgement 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, 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 reports with the DLC within 25 working days of receiving the application. Public objections need to be with the DLC within 15 working days of the public notice of the application. This means the Police and Medical Officer of Health do not have the opportunity to view community objections before lodging their report. Their responses to community concerns may need to be through a supplementary report to the DLC. Visit the Toolbox for an example of a minute on reporting timelines.

• Download the examples PDF, which includes:
  • Example of a report structure for Police
  • Example of a report structure for Medical Officer of Health
  • Example of a report structure for inspectors
  • Example of a minute on reporting timelines
• Information on the licensing process is available on this website, including guides to applying for a licence and objecting to a licence

Sale and Supply of Alcohol Act 2012 references for 2.1 Step 1 – The application is submitted 

The chair of the DLC is involved in this step.

The other members of the DLC are not involved in this step.

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).

The chair may form a quorum of one where there is no agency opposition or public objection, to make decisions on applications for a (s 191):

• licence or renewal of a licence (s 134)
• manager’s certificate or renewal of a manager’s certificate
• temporary authorities (s 134)

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:

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

What the decision must cover

The decision of the DLC (or ARLA) 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 only ie, opposed or unopposed).

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.

The process for considering applications

Chairs receive all applications (and accompanying reports and information) from the secretary of the DLC. Chairs then assess applications and determine whether: they can be granted; more information is needed; or a hearing is required.

The Sale and Supply of Alcohol Act 2012 (the Act) allows chairs to make decisions ‘on the papers’ to grant applications in some instances. This means that the chair can make the decision without involving the other members of the DLC or a hearing being held. The chair can make decisions ‘on the papers’ where there are no public objections and the approved licence is within the parameters of any relevant local alcohol policy.  

If you are a chair, you need to consider:

1. all the material you receive
2. any conflicts of interest
3. the application against the object and criteria in the Act
4. whether the application is consistent, or not, with any LAP that may be in force
5. agency reports and any materials filed by or on behalf of objectors
6. any relevant case law
7. whether additional discretionary conditions are required
8. whether:
   • the application can be approved by you alone ‘on the papers’, or
   • more information is needed, and/or
   • a hearing is required.

These steps are outlined in more detail below.

1. Read all the material you receive
You should receive a complete file for every application. This will include:

• the application (as filled in by the applicant)
• any information on resource or building consent requirements (from council staff) – these are known as 100(f) certificates
• the inspector’s report
• reports from the Police and the Medical Officer of Health (or their delegate) if they have chosen to report
• copies of any public objections
• a date-stamped floor plan of the intended licensed area clearly identifying the designated areas, if any
• copies of the public notification notices
• the property owner’s approval for an alcohol licence to be operated on their property
• substantive food menus
• names and certificate numbers of certificated managers
• fire evacuation scheme status or exemption.

This information could be provided to you in hard copy or electronically depending on the processes at your council.

2. Identify any real or perceived conflict of interest
Once you have all the material, you can identify whether you have any real or perceived conflict of interest with the application. A conflict of interest can arise when:

• you could benefit financially or otherwise from a DLC decision, either directly or indirectly through someone or something (such as a company) you are connected to
• your duty to the DLC competes with a duty or loyalty you have to another organisation or person.

Examples of real or perceived conflicts of interest for DLC members could include:

• being related to an applicant or any other parties
• being on close personal terms with an applicant or any other parties
• belonging to a group that is a party to a hearing
• having a pre-stated position either supporting or opposing the sale and supply of alcohol generally
• having made public comments (including online) either supporting or opposing the specific premises or parties to the application 
• being or knowing the property owner of the site of the premises
• having a relevant financial interest in the applicant, the premises, or any allied or competing business.

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

You must declare any actual or perceived conflict of interest to the secretary of the DLC.

For more detailed information see the section on Conflicts of interest.

If you have no conflict of interest, or you have identified and addressed any conflicts of interest, you can begin to consider the application. 

The application should be considered against the criteria set out in the Act, alongside reports from the agencies (the inspector, Police and Medical Officer of Health) and any public objections. Case law will provide guidance about how to consider each of the criteria in the particular context of your case. You will also need to check the application against any local alcohol policies that are in force.

3. Consider the application against the object and criteria in the Act
When you make a decision on matters that come before your DLC (either as a quorum of one making the decision ‘on the papers’ or as a quorum of three at a public hearing) you should consider each case against the object and criteria in the Act. 

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 object of the Act relates to sale, supply and consumption, 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. 

The criteria are set out in the following sections:

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

You can find more detail about the criteria set out in the Act in Part 1 of this guide.

4. Consider whether the application is consistent, or not, with any LAP that may be in force
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. Local alcohol policies are developed under the Act. As a DLC, you must have regard to any relevant LAP in force in all your decisions about alcohol licences. If you consider that the issue of a licence, or the consequences of the issue of a licence, would be inconsistent with a LAP, you can refuse the licence. You can also issue a licence subject to conditions if you consider that without those conditions the issue of a licence or the consequences of the issue of a licence would be inconsistent with a LAP. If the chairperson believes that additional conditions or a reduction in hours were necessary to comply with the LAP, they would need to put that view to the parties and/or call a hearing to hear evidence on it. 

5. Consider agency reports
The inspector must report on all applications, whether or not they oppose. The inspector’s report will usually be the most detailed of the three agency reports.

The Police and the Medical Officer of Health must provide a report within 15 working days of receiving a copy of the application if they have matters in opposition. If no report is received on behalf of these two agencies, the DLC may proceed on the assumption that they have no matters in opposition.

Agency reports should outline the agency’s position on the application and state any matters that they have in opposition. The agency’s position must be based on the relevant criteria set out in the Act: if the agency intends to oppose the application, they should detail the legal grounds for the position. Reports do not have to be comprehensive at this stage but must be sufficient for the applicant to understand the issues they must respond to at a hearing (and/or in negotiation with the inspector). Failure to comply with these requirements will most likely be a breach of natural justice. At any subsequent hearing, the reporting agencies will be confined to the matters raised in their reports filed in terms of (s 103(3)(b)) of the Act. If there are objections to the application and the agencies have information that may assist the DLC in coming to a decision, the agencies should produce the information.

6. Consider any relevant case law
Case law may be introduced in submissions. In making your decisions you will also have to consider relevant case law. You need to be familiar with the case law, understand how it is relevant to your role, and know how to apply it. When you make a decision on matters that come before you, you should consider each case against the criteria set out in the Act. Case law precedents will provide guidance about how to consider each of the criteria in the particular circumstances of your case.

You can get more information about case law and its application in Part 1 of this guide.

7. Consider whether additional discretionary conditions are required
The Act sets out both mandatory and discretionary conditions for the different types of licences. The DLC may issue any licence subject to any reasonable conditions not inconsistent with the Act. Conditions must be reasonable, relevant and necessary. If they are to be restrictive they must be either put to the parties and ‘imposed’ by consent or based on evidence brought by the affected parties at a hearing.

Restrictive conditions restrict the licensee’s ‘right’ to do something eg, shorter hours, as opposed to ‘permissive’ conditions, which allow them to do something eg, a 30-minute drink-up time included in the licensed hours. Both can be discretionary. You need to ask yourself, “Does this restrict the licensee’s ability to do something?” If the answer is ‘yes’ then they have the right to be heard on the matter before you decide to impose the condition or not. If you decide to impose any ‘restrictive’ conditions, then you should invite submissions on this from the affected parties. Natural justice requires the parties to have the opportunity to provide comments, submissions or evidence to the committee; if not, they may have grounds for appeal.  

8. Determine the next steps
There are three options available to you when considering an application. You need to determine whether:

• the application can be approved by you alone ‘on the papers’, or
• more information is needed, and/or
• a hearing is required

When can you make a decision ’on the papers’?

The chair can form a quorum of one and decide the following applications ‘on the papers’ where there are no objections and no matters of opposition raised by agencies:

• An application for a licence or renewal of a licence
• An application for a manager’s certificate or renewal of a manager’s certificate
• Temporary authorities

When can’t you make a decision ‘on the papers’?

The chair cannot decline an application alone and without having heard from the applicant. This goes against natural justice. An applicant is entitled to a hearing if there is a possibility that the application will not be approved. 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 should set down a hearing. All decisions on applications that are opposed by members of the public must also be heard by the full DLC.  

The two mandatory conditions relating to days and hours and the availability of free water can be included when a licence is granted ‘on the papers’. Permissive conditions relating to the requirements under (ss 50-54) can be added. Restrictive conditions cannot be added when a licence is granted ‘on the papers’. If the chair wishes to add any other conditions outside those the applicant has applied for, a hearing is required.

Restrictive conditions restrict the licensee’s ‘right’ to do something eg, shorter hours, as opposed to ‘permissive’ conditions, which allow them to do something eg, a 30-minute drink-up time included in the licensed hours. Both can be discretionary. You need to ask yourself, “Does this restrict the licensee’s ability to do something?” If the answer is ‘yes’ then they have the right to be heard on the matter before you decide to impose the condition or not. If you decide to impose any ‘restrictive’ conditions, you should invite submissions on this from the affected parties. Natural justice requires the parties to have the opportunity to provide comments, submissions or evidence to the committee; if not, they may have grounds for appeal.  

When assessing an application ‘on the papers’, the chair should be looking for ‘red flags’. These might include: no certificated managers attached to the application; or the hours sought are outside those set in any LAP in force. When you have finished your preliminary review you should assess the ‘red flags’. You need to decide whether your concerns can be remedied by a minute back to the parties or you should refer the application to a full hearing.

If you decide that a hearing is required, you need to write a minute setting the matter down for hearing. The committee secretary will set the date, time and location of any hearing and select members for the hearing from the council’s list of members. Your minute will set out the dates for disclosure of documents and evidence intending to be relied upon by the parties as well as the dates for any submissions required.

When more information is required

If you need more information you can:

• contact the secretary – for matters where the information already exists or may be held at the council but you have not been provided with it eg, you have not been sent a copy of the lease for the premises. Do not contact the applicant personally. All communication should proceed through the secretary
• issue a minute – where the applicant may need to do extra work to provide the information, for example, where:
  • a new manager has not provided any evidence of previous experience, or where agencies have not opposed but raised an issue that means you need more information from the applicant
  • the agencies have not opposed but raised an issue that could be addressed before the hearing. You could issue a minute asking the applicant to provide more information or amend their application (which might avoid a hearing) or proceed to a hearing.

When a hearing is required

Where an objection has been filed, the DLC must hold a public 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.

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. 

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 should set down a hearing. A hearing gives the parties a chance to have their say. After deliberations, the DLC may decline the application or grant it with conditions. At the end of the hearing the chair should advise the parties of the next steps. The chair could give the parties a timeframe for the written decision. Any timeframe should be realistic. Alternatively, the DLC may issue an oral decision at the time of a hearing. It would then follow up with a written decision outlining in full the reasons for the oral decision. 

The use of minutes

A minute is the way that the chair (and the DLC) communicates with the parties before a hearing. A minute is an occasional tool, not one to be used daily. The secretary should not write minutes; this is the role of the chair.

The chair might use a minute to:

• seek further information or feedback from the parties
• indicate a stance on the application (such as the Police view on hours) and seek feedback from the applicant on that. In doing this, the chair must not indicate any pre-determination
• set timeframes for the disclosure of documents.

By using minutes to get further information you may be able to avoid a hearing. For example, agencies may have points in opposition that, if addressed, would remove their opposition. The chair may issue a minute seeking feedback from the applicant on these points. If they can be resolved, a hearing may not be required.

Any information received by the chair as a result of the minute should be provided to all the parties.

Visit the toolbox for examples of minutes issued by DLC chairs.

Writing your decision ‘on the papers’

The decision of a DLC must be in writing and meet the criteria of (s 211) of the Act. Where the chair is making a decision ‘on the papers’, the chair writes the decision alone.

What you need to do for a decision ‘on the papers’
You must have an open mind about the application. You cannot have a pre-determined view before considering the application. Once you have considered all the information provided to you, you must form a view on the application and then write your decision. You must write your decision yourself; you cannot delegate this to anyone else, including the secretary or a staff member.

You can use templates for decisions, but you must change these to suit your decision. Do not let a template drive your decision making. A template is only a tool to help ensure everything is addressed and to help encourage consistency. Your decision, based on the evidence presented to you, is what matters.

What your decision ‘on the papers’ must cover
The decision must be given in writing and must meet the criteria of (s 211). This means it 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 only) eg, “None of the three reporting agencies oppose the application.”

It is also good practice to include a summary of the application eg, “This is an application for an on-licence for a 40-seat daytime café in central Auckland.”

Imposing conditions
The Act includes both mandatory and discretionary conditions for different types of licences. You can find more detail about conditions in Part 1 of this guide.

View templates for conditions for different types of licences

Who must receive a copy of the ‘on the papers’ decision?
The DLC must give a copy of the decision to the applicant, Police, inspector and Medical Officer of Health. In practical terms, the secretary of the DLC will forward copies of the decision to these parties. You only need to provide a copy to the secretary.

The committee ‘speaks’ through its decisions. The parties can learn from the decision why the committee did, or did not, impose a certain condition. 

Every territorial authority must take all reasonably practicable steps to ensure that copies of all the decisions of its licensing committees are publicly available. Councils often publish decisions of the DLC on their website to give effect to this requirement. If they are not available on the council website, people can ask the council to send them a copy.

When does the decision ‘on the papers’ take effect?
A decision takes effect either:

• on the date stated in the decision, or
• if no date is stated, on the date the decision is given, or
• when there have been objections or oppositions, 10 working days after the notice of decision (thus allowing for appeals). 

Even if the DLC has directed that a licence should be issued, the premises are not licensed until the licence has been issued.

• Download the PDF of examples, which includes:
  • Example of a minute on reporting timelines
  • Example of a minute setting down a hearing due to agency opposition
  • Example of a minute setting down a hearing due to new case law
  • Example of a minute seeking further information
  • Example of a minute setting down a rehearing
  • Example of a minute setting down a hearing due to outstanding issues
  • Example of a minute setting down a hearing
  • Guide to writing a decision
  • Example of a decision ‘on the papers’
  • Example of a decision following a hearing
• You can find more detail about conditions in Part 1 of the guide
• View templates for conditions for different types of licences 

Sale and Supply of Alcohol Act 2012 references for 2.2 Step 2 – The DLC chair considers the application 

The full DLC (chairs and members) and the parties to the hearing (the applicant and the agencies) are involved in this step. Members of the public who have lodged an objection are not a party to the hearing until the hearing commences and they are in attendance and have asked to speak.

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).

You can get more information about how members are selected for hearings in Part 1 of this guide.

Objectors

Anyone can object to alcohol licence applications. However, there are exceptions for trade competitors and their surrogates.

Trade competitors cannot object if their objection is about trade. A trade competitor is a person holding an alcohol licence, regardless of whether they actually sell alcohol or where they sell it.

Surrogate trade competitors also cannot object. A surrogate is a person receiving, or likely to receive, direct or indirect help from a trade competitor to object to an application.

This applies to all application types – new licences, renewal licences, special licences, and variations of conditions.

The committee members will decide if anyone who has made an objection is a trade competitor or surrogate as part of the preparatory processes for the applications they hear.

The committee members will have to inform the objector of their decision about whether they can object.

Objections still need to be based on the criteria included in the following sections of the Act:

• sections 102 and 105 for applications for new licences
• section 120 for applications for variation of conditions
• sections 128 and 131 for applications for renewal, and
• sections 140 and 142 for applications for special licences.

When to hold a hearing

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 should set down a hearing. A hearing gives the parties a chance to have their say. After deliberations, the DLC may decline the application or grant it with conditions. At the end of the hearing the chair should advise the parties of the next steps. The chair could give the parties a timeframe for the written decision. A timeframe should be realistic. Alternatively, the DLC may issue an oral decision at the time of a hearing. It would then follow up with a written decision outlining in full the reasons for the oral decision.

Preparing for the hearing: what you need to do

1. Read all the material you receive.
2. Identify any conflicts of interest and deal with them.
3. Consider the application against the object and criteria in the Act.
4. Consider whether the application is consistent, or not, with any LAP that may be in force.
5. Consider agency reports.
6. Consider any relevant case law.

1. Read all the material you receive
You should receive a complete file for every application. This will include:

• the application (as completed by the applicant)
• any information on resource or building consent requirements (from council staff) – these are known as 100(f) certificates
• the inspector’s report
• reports from the Police and the Medical Officer of Health if they have chosen to report/have matters in opposition
• copies of any public objections
• a date-stamped floor plan of the intended licensed area with the designated areas, if any, colour coded
• copies of the public notification notices
• any other information the inspector or parties deem relevant
• evidence from the parties.

This information could be provided to you in hard copy or electronically, depending on the processes at your council.

While reading the material, you should write a list of questions that you want to ask at the hearing.

If you do not have all of the required information, you should ask the secretary to obtain it.

2. Identify any real or perceived conflict of interest
Once you have all the material, you can identify whether you have any real or perceived conflict of interest with the application. A conflict of interest can arise when:

• you could benefit financially or otherwise from a DLC decision, either directly or indirectly through someone you are connected to
• your duty to the DLC competes with a duty or loyalty you have to another organisation or person.

Examples of real or perceived conflicts of interest for DLC members could include:

• being related to an applicant or any other parties
• being on close personal terms with an applicant or any other parties
  having a financial interest in the premises, in any allied businesses, or in any competitor
• belonging to a group that is a party to a hearing
• having a pre-stated position either supporting or opposing the sale and supply of alcohol generally
• having made public comments (including online) either supporting or opposing the specific premises or parties to the application 
• being or knowing the property owner of the site of the premises.

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

Declare any conflict of interest you may have to the secretary of the DLC. For more detailed information see the section on Conflicts of interest.

If you have no conflict of interest, or you have identified and addressed any conflicts of interest, you can begin to consider the application. The application should be considered against the criteria set out in the Act, alongside reports from the agencies (the inspector, Police and Medical Officer of Health) and any public objections. Your knowledge of case law precedents will provide guidance about how to consider each of the criteria in the particular context of your case. You will also need to check the application against any local alcohol policies that are in force.

3. Consider the application against the object and criteria in the Act
When you make a decision on matters that come before your DLC, you should consider each case against the object and criteria set out the Act. 

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 object of the Act relates to sale, supply and consumption, 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 (see the High Court decision in Medical Officer of Health (Wellington Region) v Lion Liquor Retail Limited [2018] NZHC 1123 [18 May 2018]). This is particularly relevant for off-licence applications. 

The criteria are set out in the following sections:

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

You can get more detail about the criteria set out in the Act in Part 1 of this guide.

4. Consider whether the application is consistent, or not, with any LAP that may be in force
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. Local alcohol policies are developed under the Act. As a DLC, you must have regard to any relevant LAP in all your decisions about alcohol licences. If you consider that the issue of a licence, or the consequences of the issue of a licence, would be inconsistent with a LAP, you can refuse the licence. You can also issue a licence subject to conditions if you consider that the issue of a licence, or the consequences of the issue of a licence, without those conditions would be inconsistent with a LAP. 

5. Consider agency reports
The inspector must report on all applications. The inspector’s report will usually be the most detailed of the three agency reports.

The Police and the Medical Officer of Health must provide a report within 15 working days of receiving a copy of the application if they have matters in opposition. If no report is received from the Police or Medical Officer of Health within that timeframe, the DLC may assume that the agencies do not oppose the application.

Agency reports should outline the agency’s position on the application and state the matters that they have in opposition. The agency’s position must be based on the relevant criteria set out in the Act: if the agency intends to oppose the application, they should detail the legal grounds for the position. Reports do not have to be comprehensive at this stage but must be sufficient for the applicant to understand the issues they must respond to at a hearing (and/or in negotiation with the inspector). 

Failure to comply with these requirements will most likely be a breach of natural justice.

At any subsequent hearing, the reporting agencies will be confined to the matters raised in their reports filed in terms of (s 103(3)(b)) of the Act.

If there are objections to the application and the agencies have information that may assist the DLC in coming to a decision, the agencies should produce the information.

6. Consider any relevant case law
Case law may be introduced in reports by agencies but is more likely to be introduced in submissions at the start and end of the hearing. In making your decisions you will also have to consider relevant case law. You need to be familiar with the case law, understand how it is relevant to your role, and know how to apply it.

When you make a decision on matters that come before you, you should consider each case against the criteria set out in the Act. Case law precedents will provide guidance on how to consider each of the criteria in the particular context of your case.

You can get more information about case law and its application in Part 1 of this guide.

You can determine your own hearings procedure

A DLC must establish appropriate procedures, subject to the provisions of the Act and the regulations made under it (s 203), and the Commissions of Inquiry Act 1908. Your procedure must follow the principles of natural justice and, in particular, must ensure that every eligible person is given an opportunity to be heard. You have an inquisitorial role. This means that you 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. Your powers under the Commissions of Inquiry Act 1908 allow you to require documents to be produced and to summon witnesses, for example. DLCs are quasi-judicial decision-making bodies whose decisions are subject to appeal to ARLA or, next, to the courts. This means that DLCs should follow best practice and uphold the principles of natural justice. They should deal with all applications consistently and fairly, and give all parties a fair opportunity to present their case. This is particularly important when local members may know the majority of the applicants personally. DLCs should be able to make all parties to the hearing (including community objectors) feel comfortable and welcome while maintaining the appropriate process.  

As a DLC you can adapt your hearings according to what would be most appropriate for the particular application and community, and avoid any unnecessary formality. This includes making provisions for:

• the location and timing of the hearing
• the layout of the venue of the hearing
• the timetable for the hearing
• the language and terminology to be used at the hearing

For example, in a rural area, you could hold the hearing in the local hall rather than in the council offices, which might be some distance away. Hearings could also be held on marae, in suburban areas, or if appropriate in the relevant licensed premises (for example, if a remote rural community has nowhere else to hold the hearing and access to justice could be denied to the community if they were required to travel to attend). Council support staff should comply with any reasonable request from the DLC about where and when hearings are to be held. The council should not overrule the DLC on these issues.

Think about the people who will be coming to the hearing and how you might make them feel comfortable. This is particularly important for members of the community appearing as objectors who may not be familiar with judicial processes. For example, if you are working in a predominantly Māori community, it would be helpful for you to be familiar with basic te reo (language), pronunciation, and tikanga (customs) as hearing procedures must allow for these to be a part of the process. You can talk to your council about getting support for this.  

If there are barriers to objectors attending the hearing, you could consider being more accommodating. For example, it is often hard for community members to attend hearings during work hours. If this is the case, you could consider meeting outside normal working hours. Objectors can also request to attend hearings remotely, in which case video conferencing equipment needs to be provided if practical. If community members are taking time off work to present an objection, you can request that the staff provide objectors with a specific timeslot to present their evidence. Or, on the day of the hearing the chair could ask parties whether they are happy with the objector presenting first. You are free to adjust your processes as long as you maintain fairness, good process and natural justice.

In general, hearings follow this format:

1. Opening and introduction by the parties who wish to be heard.
2. The applicant presents their case/speaks to the application and calls any witnesses.
3. Reporting agencies present/summarise their reports and call any witnesses.
4. Objectors present their case and call any witnesses.
5. Closing submissions are made by all parties who wish to be heard.
6. The hearing concludes with either an oral decision being given (later followed up in writing) or a written decision being delivered at a later time (a ‘reserved decision’).

The roles of the DLC before, during and after hearings

The roles of the DLC before the hearing
Before the hearings the committee members should have:

• read the application, submissions and evidence from all parties, including agencies and objectors
• checked for and dealt with any conflicts of interest
• conducted a site visit where appropriate
• prepared a list of questions or issues to flag
• identified any administrative or procedural matters that need to be dealt with at the beginning of the hearing.

If the DLC requires more information, the chair can issue a minute to the parties outlining the request. By using minutes to get further information, you may be able to avoid a hearing and ensure a formal, recorded procedure is followed. For example, agencies may have points in opposition that, if addressed, would remove their opposition. The chair may issue a minute seeking feedback from the applicant on these points. If they can be resolved, a hearing may not be required. Any information received by the chair as a result of the minute should be provided to all the parties. Visit the toolbox for examples of minutes issued by DLC chairs.

The DLC may choose to hold a pre-hearing conference. This is an informal meeting to deal with administrative matters or resolve issues before the hearing. For example, you might hold a conference to discuss the status of objectors and whether they are a trade competitor or surrogate as part of the preparatory processes for the applications you hear. If you do hold a pre-hearing conference you must be very careful to avoid any pre-determination or sense that any of the parties have been forced into a particular position. It can be clearer and more transparent to seek additional information by way of a minute than holding a pre-hearing conference.

Room set-up

Each DLC can determine how it sets up the room for a hearing. Here are some suggestions for best practice:

• The room must be big enough and have sufficient seating.
• The DLC should be sitting separately from the parties and generally at the front of the hearing room.
• Consider where you seat the parties – for example, don’t sit the counsel for the applicant next to public objectors.
• The parties should not be sitting around a table together.
• If possible, provide microphones to assist the parties to hear clearly.

What will council staff do before the hearing?
The secretary should have:

• developed an agenda in consultation with the chair (visit the toolbox for an example of a hearing agenda)
• circulated a ‘Notice of Hearing’ informing the parties of the hearing date, time, place and any disclosure timeframes. The secretary must give a minimum of 10 working days’ notice of the hearing. Often 10 working days is too tight; consider 15 or 20 working days to allow the parties more time to prepare. Disclosure timeframes must be realistic and fair to all parties. Generally, the applicant would be required to file any further materials first and then the agencies and objectors would be given an opportunity to file any materials in response. Or, if timeframes apply to all parties or are simply an opportunity to file any further materials such as opening submissions, they should be as generous as possible. Generally require submissions to be filed five clear working days before the hearing. This gives the DLC and other parties time to consider the materials before the hearing
• identified how an electronic audio record of the hearing will be made and transcribed
• tested the recording and video conference equipment to ensure it is working
• identified whether any of the parties to the hearing require an interpreter and have advised you if interpreters are required
• ensured no other communication aids are required (e.g. hearing aid loops).

The secretary is responsible for communicating with the parties. The secretary will arrange translators if these have been requested by the parties.

The role of the chair during the hearing
The chair is responsible for running the hearing. This includes:

• creating and maintaining an environment with the appropriate level of formality
• making sure people are introduced
• ensuring appropriate tikanga Māori is incorporated into proceedings
• 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
• ensuring other committee members have the opportunity to ask any questions
• ensuring all parties have the opportunity to give evidence if they wish to 
• adopting an inquisitorial approach to questioning – this means that you are actively involved in investigating and assessing the facts of the case, rather than acting as a referee between the parties. Questions should be open-ended and not directed towards any particular outcome
• making written notes of relevant points and/or oral statements
• calling an adjournment during the hearing if required
• considering whether any part of the hearing needs to be held in private
• considering when to issue a written (reserved) decision and when to deliver an oral decision (followed by a written one)
• ensuring that all parties treat each other with respect and follow the correct procedures. This includes managing inappropriate questions (and stopping these if necessary) or the production of evidence where the appropriate witness is not present.

The roles of the DLC during the hearing
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.)

The roles of the DLC after the hearing
After the hearing, the committee is required to:

• deliberate in private, consider the evidence that has been presented, and decide whether you 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).

Guidelines for all members
As a DLC you must run a fair and open process and follow the principles of natural justice. This applies from the time you receive an application until your decision has been made and communicated to the applicant and the other parties. Here are some dos and don’ts that you should follow throughout the process:

DO

• Do communicate with staff and the secretary of the DLC about process issues.
• Do talk with other DLC members about process issues, such as site visits.
• If you are a chair, do write minutes as required.
• If you are a chair, do remind members to read material and draft questions.
• Ensure all communication is formal and properly filed.

DON'T

• Don’t communicate directly with the applicant, objectors, agencies or any other party – the secretary does this.
• Don’t talk to members about the case outside your deliberations except to ask about conflict of interest (deliberations mean the process of considering, discussing and deciding on a case in your role as the DLC).
• Don’t talk about the case with others outside of the DLC.
  If you are a chair, don’t send minutes directly to the parties – the secretary does this.

Disclosure and timelines for providing information

The need for disclosure
Any evidence prepared for the hearing should be disclosed before the hearing so the parties have an opportunity to prepare a response. While there is no legal requirement for this, it makes good sense and supports a ‘no surprises’ approach to hearings. If this opportunity is denied, parties may seek an adjournment. Make sure that you have removed any private details from the evidence before releasing it.

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 also sets out the underlying principle of natural justice and how this underpins the hearing process.

For complex cases or when there is a lot of evidence, disclosure can be done in stages.

Disclosure rules for public objectors
It is good practice to disclose relevant information to public objectors who have said that they wish to speak at the hearing. Make sure that you have removed any private details from the evidence before releasing it.

Only those at the hearing would be entitled to receive copies of documents handed up during the course of the hearing.

Timeframes for disclosure
Timeframes for disclosure are not set in legislation. It is helpful if the timeframes can be set locally for each DLC or council. This could be as part of a wider hearings policy or protocol, or as directed by the DLC. The DLC will always have discretion to waive any such requirements or alter procedure as it thinks fit as long as principles of natural justice are followed.

The following timeframes could be adopted as a matter of best 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 at least 10 working days before the scheduled hearing. This is a minimum; consider 15 or 20 working days to allow the parties more time to prepare.
• Closing submissions are generally made orally at the end of the hearing or the DLC might give the parties 5-10 working days, for example, to file and serve them. If exceptional circumstances exist, the committee may allow an extension of time to file. Material should be filed and served no later than five working days before any hearing. 

Visit the toolbox for an example of a minute on reporting timeline.

New information
Agency reports should adequately cover any matters intended to support their opposition to an application. Agency briefs of evidence should expand on the evidential basis of agency 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, it is possible that in preparing their reports the agencies may have overlooked grounds for opposition or arguments. It is also possible that grounds for opposition or arguments come to light or evolve only after their report has been filed. In such situations, committees do have discretion to allow them 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 committee is to evaluate applications having regard to the criteria contained in the Act and the evidence produced on the day. If the points the agency wishes to make are essential to that, then the committee should permit them to be made. But, in the interests of natural justice, the committee 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.

Site visits
Site visits can provide important information for DLCs when they are considering applications.

Why would you make a site visit?
All committee members involved in hearing an application and making a decision should consider whether to undertake a site visit. A site visit helps the DLC become familiar with any issues around the site, including:

• any issues raised by objectors
• matters raised in any agency report
• any matters in contention
• the physical layout
• single alcohol areas if applicable
• the proximity of the premises to sensitive sites such as schools and churches
• the general locality of the premises. 

It will also help the DLC to consider any recommended conditions from the reports submitted if the application is approved.

When should you carry out a site visit?
You can carry out a site visit at any time: before, during or even after a hearing. However, site visits are generally carried out before a hearing. 

The timing of the site visit will depend on the application and the matters that may be raised in relation to the site. For example, if there is concern about the effect on a nearby school, then a site visit at 3pm may be useful. If a report addresses concern about a renewal application for an on-licence in relation to amenity at 2am, then this may be the best time for a visit.

Arranging a site visit
Site visits need to be thought about carefully. When and how they happen, and who is involved, may differ depending on the circumstances of the application. The purpose of a site visit is for members to learn about the site, not to gather evidence or communicate with the applicant or parties.

Site visits can be undertaken by the committee as a group or by members individually. If the DLC goes as a group you must not discuss the case among yourselves. You must not communicate directly with the applicant. If you need to communicate with the applicant, this should happen through the secretary. If you have invited anyone other than the DLC members to attend a site visit (such as the applicant or the inspector) then you must invite all parties to attend.

Site visits can be pre-arranged or spontaneous. You might have a pre-arranged site visit to look at a single alcohol area. If a site visit is pre-arranged it should be arranged by the secretary. You might have a spontaneous visit to an on-licence on a Friday night so that you can observe staff and patrons. You do not have to identify yourself to the manager or staff of the premises and you should not communicate with the manager or staff. Remember that you are only there to look at the premises and learn about the site. If you do detect offences or bad practice during your site inspection, these cannot be introduced as evidence by the committee members into the hearing process.

You need to stay safe – don’t undertake a site visit if you feel you may be subject to any physical safety issues.

What should you look for during a site visit?
The reports from the agencies and public objections should identify issues that need to be addressed in the hearing. You should consider those matters in relation to the site and its surrounding environment, taking into account the relevant criteria under the Act.

For example, issues may be raised in relation to:

• the design and layout of any proposed premises
• whether granting the application would reduce the amenity and good order of the locality to more than a minor extent
• whether the amenity and good order of the locality are already so badly affected by existing licences that they would not be reduced further (or by only a minor extent).

Key things to look for during your site visit include:

• safety and security
• good lighting
• the location of, and access to, toilets
• the view of the entrance and exit from the bar
  any overcrowding
• the presence of the duty manager(s)
• the amenity and good order of the surrounding environment.

You might find it helpful to read Guidelines for Crime Prevention through Environmental Design (CPTED) for Licensed Premises to establish and maintain a safe and secure environment in all licensed premises.

You must maintain your independence during a site visit
You must not engage with any of the parties to the hearing during your visit (this includes the applicant, objectors, Police, inspector, or Medical Officer of Health). This is important because you must not be influenced by those parties during a visit. You must not appear to have a relationship with any of the parties where your impartiality would be compromised (or could be seen to be compromised).

Adjournment prior to a hearing

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 and 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.

Dealing with objections

The number of public objections to an application can vary from none to hundreds, or even thousands. If the objection is filed late, you will need to consider the situation and decide whether a preliminary hearing by way of a minute or teleconference is required.

Best practice guidance: communicating with objectors

The DLC only communicates with public objectors via a minute, or at a pre-hearing conference.

The secretary of the DLC is responsible for contacting the objectors and advising them of the hearing. This may differ depending on the type of objections received. For example, the application might receive 126 individual objections, 1 petition with 265 signatures and 130 pro forma letters. Each objector who has provided a name and address needs to be advised of the hearing; each of the 126 individual submitters will need to be informed of the hearing; and each of the pro forma submitters who provided a name and address will need to be informed. For a petition, the hearing information could be provided to the organiser of the petition (who should have their name and address on the petition).  

The ‘parties’ to a hearing

The parties to a hearing are the applicant, the Police, the licensing inspector, the Medical Officer of Health or their delegate, and any valid objectors.

Certain other persons may appear and be heard with the leave of the DLC’s chair, whether personally or by counsel. These are:

• a member of the fire service authorised to undertake fire safety inspections
• a person authorised by any territorial authority
• any other person who satisfies the DLC that he or she has an interest in the proceedings, apart from any interest in common with the public.

Ensuring fairness to all parties

A key role of the DLC is to ensure fairness to all parties. You may need to take into account differences in the parties’ experience and support when managing the hearing. For example, some parties may be represented by legal counsel, while others will not. Some parties may have had very little or no experience in speaking at a hearing or in front of commissioners. Part of your role is to make the hearing environment comfortable for those parties so that they can participate fully in the hearing. 

Some parties may find it difficult to attend the hearings at the times scheduled. This is sometimes the case for public objectors who have work or other commitments during weekdays when hearings are usually held. In your notice of hearing you could ask the parties to contact the secretary if there are any barriers that make it difficult for them to attend at the time, date and venue specified. If there are barriers, consider being more flexible. For example, you could consider meeting outside normal working hours – in afternoons until early evening (from 1pm to 7pm) or in the weekend. While hearings are usually held at council offices, you could hold the hearing near the premises so that it is easier for objectors living locally to attend. You must also consider the use of technology – such as phone or video conferencing, and establish whether there are any te reo Māori or tikanga Māori requirements – to facilitate community participation.

If you think you need more information on a particular point, you can request this. 

Agencies can facilitate community involvement in hearings

Changes to the Act were intended to facilitate community participation in licensing decisions. Agencies can take a role in facilitating community involvement, but they must be careful not to show, or be seen to show, bias towards the community. 

The Act only requires councils to ensure that applicants have correctly notified licence applications to the public. However, councils can do more to facilitate community involvement in the licensing process and could consider:

• making information about the licensing process easy to access, for example, by providing web links to information available on this website, such as the guide to objecting to an alcohol licence
• making licence applications easy to access on council websites
• having the council’s community advisory team provide information to public objectors about how hearings work and the importance of ensuring decision makers hear directly from community members.
• having the advisory team provide feedback or requests from the community about the process to the secretary of the DLC. For example, there could be requests for the hearing to be held outside of working hours so community members can attend.

Health promoters can also encourage community involvement in hearings by providing information to public objectors about how hearings work and the importance of ensuring decision makers hear directly from community members. They can assist objectors to write their submission and clarify the issues that need to be put before the committee.. Health promoters can also gather evidence from the community for the Medical Officer of Health to present regarding amenity and good order. The Medical Officer of Health can call health promoters as witnesses.

• Download the PDF of examples, which contains:
  • Example of an opening submission
  • Example of an opening submission
  • Example of a closing submission
  • Example Brief of Evidence to ARLA
  • Example witness list

Sale and Supply of Alcohol Act 2012 references for 2.3 Step 3 – Hearing preparation 

The full DLC and the parties to the hearing (the applicant, the agencies, and members of the public who have lodged an objection) are involved in this step. Any other persons granted leave to appear and be heard are also involved.

Council staff may be involved in an administrative or advisory role.

Powers of the DLC

District licensing committees (DLCs) have the powers of commissions of inquiry (s 201). Your powers under the Commissions of Inquiry Act 1908 allow you 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.

The nature of hearings

DLCs are quasi-judicial decision-making bodies whose decisions are subject to appeal in the courts. This means that DLCs should follow best practice and uphold the principles of natural justice. They should deal with applications consistently and fairly, and give all parties a fair opportunity to present their cases. This is particularly important when local members may know most of the applicants personally. DLCs should be able to make all parties to the hearing (including community objectors) feel comfortable and welcome while maintaining the appropriate process. 

As a DLC you can adapt your hearings according to what would be most appropriate for the particular application and community. For example, in a rural area, you could hold the hearing in the local hall rather than in the council offices, which might be some distance away. Hearings could also be held on marae or in suburban areas. Council support staff should comply with any reasonable request from the DLC about where and when hearings are to be run. The council should not overrule the DLC on these issues.

Sometimes there will be barriers to objectors attending the hearing; for example, it is often hard for community members to attend hearings during work hours. In such cases, you should consider ways to accommodate participation, such as meeting outside normal working hours. Objectors also can request to attend hearings remotely, in which case video conferencing equipment needs to be provided if practical. If community members are taking time off work to present an objection, you can ask the staff to give objectors a specific timeslot to present their evidence. Or, on the day of the hearing the chair could ask parties whether they are happy with the objector presenting first. You are free to adapt your processes as long as you maintain fairness, good process and natural justice.

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

Depending on the nature of the case, a hearing can last anywhere from half an hour to several days.  

Who attends hearings?

Those likely to attend a hearing include:

• the DLC chair and members
• 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.

The day of the hearing has arrived: what do you need to do?

All the parties have completed their preparation and the day of the hearing has arrived. What do you need to do to ensure that the hearing runs smoothly?

Before the hearing

• Arrive at least 15 minutes early.
• Turn off your cell phone while you’re at the hearing, or put it in silent mode.
• Bring all the relevant documents you have been provided with along with any personal notes and questions you have.
• Ensure you are comfortable with the room set-up.

When you arrive

• You should only communicate with the other committee members and the secretary and support staff if required.
• Your venue should have a ‘break out’ room for the committee to meet in before the hearing. If so, go straight to this room when you arrive and wait there. 
• Once all the parties have arrived and the hearing is ready to start, you will be called in and attendees may be asked to stand.

What do others need to do?

Council staff will have set up the room, including the recording equipment. 

If the parties bring any documents on the day, they must give these to council staff supporting the hearing, who will then provide them to you.

During the hearing: what do you need to do?

The chair and members have specific roles to perform during a hearing.

The roles of the chair during the hearing

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

• running a fair and open process
• creating and maintaining an environment with the appropriate level of formality
• making sure people are introduced and tikanga is followed where appropriate
• identifying the applicant, reporting agencies, objectors, and any other persons granted leave to appear and be heard
• being clear about the process – who will present first, who will follow, etc – and communicating this to those present
• ensuring other committee members have had the opportunity to ask 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 written (reserved) decision and when to give an oral decision
• ensuring that all parties treat each other with respect and follow the correct procedures.

The roles of the DLC during the hearing

During the hearing, all committee members are responsible for:

• running a fair and open process
• asking questions for clarification, but ensuring these are not directed towards a particular answer or outcome
• taking comprehensive notes of evidence given orally
• 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).

The parties may seek the ‘leave of the committee’ – the committee’s permission – to vary proceedings. Leave might be sought to say a karakia, allow a witness to sit down or take a break while they give evidence, or let a submitter present first if they are unable to attend the whole hearing.

General etiquette

Here are some general guidelines for etiquette during hearings:

• The parties should use ‘Sir’ or ‘Madam’ when addressing the members of the committee.
• You should refer to your fellow committee members as ‘Mr’, ‘Mrs’, ‘Chair’, ‘Commissioner’, ‘my colleague’, ‘my fellow member’.
• You should refer to licensees by their surname – ‘Mr Smith’ – not by first names.
• Refer to agency representatives by their surname or title – ‘Mrs Henare’, ‘Constable Tuigamala’, ‘Dr Smith’.
• The committee should clarify to all parties how they want to be addressed, e.g. using 'The Chair', or using 'Sir' or 'Madam' when addressing the Chair.
• Ask parties how to pronounce their name if you are unsure.
• 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. Some councils may post materials from the hearing on the web.

The format of a hearing

Each DLC determines the procedure, so the order of speakers may vary from hearing to hearing. The chair should outline the order of the day at the start of each hearing. 

In general, hearings follow this format:

1. Opening and introductions from all parties
2. The applicant presents their case and calls any witnesses
3. Reporting agencies present their cases and call any witnesses
4. Objectors present their cases and call any witnesses
5. Other persons granted leave present their points and call any witnesses
6. Closing submissions
7. The hearing concludes

Any party can seek an adjournment during a hearing. The DLC must rule on whether to grant it or not. The committee itself might order an adjournment, for example, to take advice or direct that the parties meet in private to see if a matter can be resolved.

1. Opening and introductions from all parties
The chair is responsible for introducing the committee members and advising which licence application is being heard. The parties are asked to introduce themselves.

The chair gives a brief outline of the hearing procedure, including the order of the day.

The chair will then either declare that none of the DLC members has a conflict of interest (if this has been previously determined) or will ask if the members have any conflicts of interest. This declaration forms part of the record of the hearing. It is good practice for the secretary to record that consideration of conflicts of interest has been undertaken.

The chair may choose to draw people’s attention to the presence of the media. This is because sensitive information – such as bar takings – may be presented. The parties can request that the proceedings be held in private when this information is being presented, and members of the public are excluded (s 203). Or, the DLC might make an order prohibiting publication pursuant to (s 203(5)). The DLC may request that the parties briefly outline their position and evidence they intend to present. This is an opening address. It tells the DLC (and parties) what the case is about, what each party believes the evidence will show, and the result they are seeking (visit the toolbox for an example of an opening submission).

The chair or members of the DLC can ask questions at any time. The parties may only ask questions during specific times as outlined below.

2. The applicant presents their case and calls any witnesses

The applicant (either personally or through legal counsel) introduces their application and presents their case.  

They can call witnesses to give evidence in support of their application.  

All witnesses will be sworn in by the secretary (through oath or affirmation) before presenting any evidence, including reading aloud any brief of evidence.  

The evidence that witnesses give before the DLC is known as ‘evidence in chief’. This should also be presented in written form (the ‘brief of evidence’ or ‘formal written statement’); otherwise the committee will be required to make extensive notes. There should be copies for each of the parties at the hearing (including objectors). Generally, witnesses will be permitted to read their evidence in chief, though this is at the discretion of the chair. If the applicant does not have any evidence, the DLC may still want to hear from them or ask them questions. To do this the witness must be sworn in.

The applicant’s representative can ask additional questions of its witnesses (examination).

The committee may have questions for the applicant and their witnesses while they are giving evidence.  

3. Reporting agencies present their cases and call any witnesses

The agencies may have discussed among themselves the order in which they will present, but ultimately this is the committee’s decision.

In some cases agencies may only attend the hearing to assist the committee. In this situation, they would ‘stand by’ their report, which can be handed up when requested by the chair and taken as read. However, even where a document is taken as read, the DLC could request that the witness be sworn in and confirm that it is their document and remains true and correct.

Agency representatives can give evidence themselves and/or call witnesses. The agencies may also want to speak to their report. They may have parts they want to explain or elaborate on. Even if the agencies do not have any evidence, the DLC may want them to answer questions from the parties and the DLC. They too will need to be sworn in, like any other witness.

The committee members or chair may have questions for the agencies or their witnesses.  

4. Objectors present their cases and call any witnesses

Any public objectors who wish to speak can talk about their objections – in person or through representatives. At the hearing they cannot introduce new grounds for objecting, but can present evidence to support their objection.

If they want to present evidence they are sworn in.

Objectors can also call witnesses to support their viewpoint.

The committee members or chair may have questions for the objectors or their witnesses.  

5. Other persons granted leave present their points and call any witnesses

Certain other persons may appear and be heard with the leave of the DLC’s chair, whether personally or by counsel. These are:

• a member of the fire service authorised to undertake fire safety inspections
• a person authorised by any territorial authority
• any other person who satisfies the DLC that he or she has an interest in the proceedings, apart from any interest in common with the public.

If they want to present evidence they are sworn in.

They can also call witnesses to support their viewpoint.

The committee members or chair may have questions for them or their witnesses.  

6. Closing submissions
Each party usually has a chance to make closing remarks to sum up their case. The purpose of the closing submission is to summarise their position on why the licence or certificate should or 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 when the parties may introduce case law if it would be helpful to the DLC (case law can also be introduced in opening submissions). The parties need to say how the case law relates to the case and the evidence they have brought. They must have copies of the case law available for the committee members to refer to.

Closing submissions are usually made in reverse order to that 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.

If you are involved in a long, detailed hearing, the parties may need time to draft their closing submissions. They can ask for an adjournment or the chair can seek the parties’ views and adjourn the hearing accordingly.

7. The hearing concludes
At the conclusion of the hearing, the chair advises everyone that the public part of the hearing is finished and outlines the next steps.

The chair can (in consultation with the other DLC members) decide whether to:

1. deliver an oral decision on the day and close the hearing (with the written decision issued later), or
2. rule that the decision is reserved and to be communicated at a later date – the chair should provide parties with a realistic timeframe of when the decision will come out.

Evidence: what is it and how should it be used?

What is evidence?
Evidence is the information presented at the hearing to prove an alleged fact. It can include written or spoken testimony from witnesses, and other material such as documents, photographs, maps and audio-visual materials. 

Evidence should focus on facts and be directly relevant to the application. Evidence gathered over a period of time will be stronger than evidence gathered on just one occasion. National or international research can be useful if it can be clearly linked to the case at hand. However, you need to be wary of putting weight on what might be isolated research. You might require the party wanting to present the evidence to call an expert to speak to it.

What kind of information can the parties collect to support their case?
Information on alcohol-related harm can come from a wide variety of sources. It can be:

• ‘hard’ data: this is 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. This is called quantitative data. Quantitative data tends to be available in routine collections and can be standardised
• ‘soft’ data: this is interpretative and perceptual data that is usually more descriptive and is 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. This is 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.

Data must be interpreted and reported accurately
The parties must make a genuine effort to understand what data says (and does not say) and to report these findings clearly and accurately. This will enhance the level of confidence that can be placed in the data presented. 

All data used as evidence needs to be put into the context of the case and the parties need to be clear about how the data supports their case. 

Questions for DLCs to consider when provided with data relating to an application include:

• how complete is the dataset?
• what could be affecting the data?
• does the data relate to the specific site or circumstances of the application?
• has it been previously criticised?

Evidence should be of a high quality
Here are some things to think about when you are presented with evidence by the parties:

• Statements should be named and dated with the time, contact details, signatures, and any other details in full. Any subsequent changes must be initialled by the witness. They should also include a footer that confirms the statement’s accuracy.
• Briefs of evidence must match recorded notes.

Where agencies provide notes from compliance checks as part of their evidence:

• full notes made at the time of compliance checks (‘contemporaneous notes’) can be used in evidence. If notes have been made days or weeks afterwards, their accuracy can be challenged at the hearing
• contemporaneous notes, supplementary notes on non-compliance matters, renewal reporting outcomes, and any documents related to any graduated response enforcement can all be used as evidence. All notes and reports should be dated, clearly separated from other notes and presented chronologically
• you should be able to access a copy of any original report and notes where you have been provided with a supplementary report.

Where can evidence come from?

Evidence could be sourced from:

• floor plans, video, photos, audio records, Facebook pages
• local area detail such as noise and disorderly conduct complaints
• information the agencies have gathered while inquiring into the locality
• 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)
• Medical Officer of Health data (both qualitative and quantitative)
• other relevant information that supports your opposition 
• evidence from other sources such as local schools, Māori Wardens, community patrols, or local residents.

Evidence before the DLC should be factual and relevant
Evidence given before the district licensing committee should be:

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

If the relationship between the evidence and the matter before the committee is indirect, it is important that the relevance of the evidence is spelt out either in the opening statement or in the introduction of the witness. The case for the relevance of the evidence should not be part of the evidence itself.

The reports of the statutory agencies can be read into evidence.

The evidence must be linked to the application
Parties need to demonstrate how their evidence relates to the application before the DLC, or the grounds for their opposition under the Act, or the remedy they are seeking.  

The DLC process is inquisitorial. The DLC makes its decision based on an assessment of the evidence provided against the criteria and object of the Act. In weighing all the evidence, the DLC must look at the veracity of the evidence and the reliability of the witness producing it, and then apportion a weight to be given to the evidence.

While evidence should link to the application, it does not have to link specifically to the premises. The level of proof for a DLC is on the ‘balance of probability’ or ‘more likely than not’. A DLC can consider evidence of alcohol-related harm in the locality and/or at a particular day, time or circumstance. It can take into account indicators that a particular premises is more likely than not a contributor to the harm experienced in an area. Remember, however, that any evidence needs to be relevant to the issue at hand.

A DLC can also apply the precautionary principle, which implies a social responsibility to protect the public from exposure to harm, when investigation has found a plausible risk.

The burden of proof is on the applicant to demonstrate that the granting of the licence will meet the criteria and object of the Act. Objectors and agencies do not have to prove that it will not. 

International peer-reviewed evidence can be presented and may hold weight, but it needs to be well linked to the case at hand and credible. Parties referring to research must be able to say how the research as a whole relates to the application, and be able to vouch for the veracity of the research. For example, 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.

If the research has been quoted by the Liquor Licensing Authority or ARLA previously and the cases are similar, it may have more weight but, in general, research that is not specific will not have much probative evidential value (probative value means evidence which is sufficiently useful to prove something important in the hearing).

Managing exhibits

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

Where practical, copies of documentary evidence should be attached to the briefs of evidence by the parties. 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 they should be sufficiently identified for easy reference.

Exhibits handed up to the committee become part of the evidence and form part of the file. Documentary exhibits are always taken by the committee. For example, the committee would take and keep written statements or photographs. The committee would not accept a physical item if it is impractical to keep (such as a large sign). However, such exhibits may be photographed and a record attached to the file.

When exhibits are handed up to you by a party, you can take time to read the material or examine a physical exhibit before continuing. The chair can then let the party know that you are ready for them to continue with their questioning or witness brief. The hearings advisor should label the exhibit and provide a copy to all parties. The easiest way to label exhibits is by using the witness’s initials and then numbers e.g. AB1, AB2. A logical and complete index should be kept as the hearing progresses so that the parties can refer to documents in an orderly fashion, and the DLC can be assured it is referring to the correct document when it writes its decision.

Where the committee has considered evidence of a confidential nature, this will remain confidential. The decision will note that a particular piece of evidence, such as sales figures, has been removed from the record. This information is, however, likely to be pertinent to the agencies’ assessment of an application and should be made available to them. Another way to protect confidential material is through a non-publication order pursuant to (s 203(5)).

Download the PDF of examples, which contain:

• Example agenda for a DLC hearing
• Example of a script for a DLC chair 

Sale and Supply of Alcohol Act 2012 references for 2.4 Step 4 – The hearing 

The full DLC is involved in this step.

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.

The roles of the DLC after the hearing

After the hearing has finished, the committee meets privately and makes a decision on the application. The process of considering, discussing and deciding on a case is known as deliberation.

Deliberation and decision making must involve all members of the DLC, and it must only involve members of the DLC. It must not involve the secretary, other council staff or any of the parties to the hearing.

The committee as a whole must review all the evidence presented at the hearing. It must then decide, based on members’ own knowledge and skills, whether the application: meets the criteria and can be granted as sought, or subject to discretionary conditions; or should be refused. The DLC can obtain factual legal advice on points of law but must form its own opinion on whether the licence should be granted.

The decision must be a unanimous or majority decision – this means that at least two of the three members of the DLC must agree with the decision. One member can have a dissenting view. These differing views will be outlined in the decision. Usually any dissenting view comes last.

Sometimes the committee confers in private for a short time and delivers an oral decision on the day, with the written decision issued later. In other cases the decision is reserved and issued later in writing. 

Writing up your decision

What you need to do
All members of the DLC must have an open mind about the application. You cannot have a pre-determined view before considering the application. Once you have considered all the information provided to you, and the hearing is complete, the DLC must form a view on the application and write its decision.

The decision of a DLC must be in writing and meet the criteria of (s 211) of the Act. The DLC must write its own decision; it cannot delegate this to anyone else, including the secretary or a staff member. The chair usually writes the decision though it can be any member of the committee. A member might write a decision where they have particular expertise. In these cases the decision would record: “The decision was written by Mary Smith, Member, on behalf of the committee and signed off by the Chair”. The draft decision is sent to the DLC members for comment. Once the decision is agreed by the full committee, it is sent to the secretary in PDF format. The secretary will then forward it to the parties.

You can use templates for decisions, but you must be able to change these to suit your decision. Do not let a template drive your decision making. A template is only a tool. Your decision – based on the evidence presented to you – is what matters.

What conditions should be applied to the licence if you decide to grant it?
If you decide to grant a licence, you are required to consider both the mandatory conditions that must be applied and any discretionary conditions that may be appropriate. You can find more detail about conditions in Part 1 of this guide.

Any condition must be reasonable. The requirement of reasonableness invokes concepts of proportionality: there must be a sufficient connection between the condition the DLC wishes to impose and the risk it seeks to guard against. Therefore, a condition must be no more restrictive than is necessary to address the identified concern.

Restrictive conditions restrict the licensee’s ‘right’ to do something eg, shorter hours, as opposed to ‘permissive’ conditions, which allow them to do something e.g. a 30-minute drink-up time included in the licensed hours. Both are discretionary. You need to ask yourself, “Does this restrict the licensee’s ability to do something?” If the answer is ‘yes’ then they have the right to be heard on the matter before you decide whether to impose the condition. If you decide to impose any ‘restrictive’ conditions, you should invite submissions on this from the affected parties. Natural justice requires the parties to have the opportunity to provide comments, submissions or evidence to the committee; if not, they may have grounds for appeal.   

What your decision must cover
You must give your DLC’s decision on an application in writing and state in it:

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

Although not required by the Act, it is good practice for a decision to summarise the evidence and arguments presented at the hearing, as well as any relevant case law and the relevant sections of the Act. An unopposed decision might only be 1-3 pages. A decision from a hearing might be 15-25 pages, summarising the evidence, outlining the applicable provisions of the Act, and setting out why the committee has taken a particular view. If the matter is appealed, ARLA will want to see that the DLC has ‘turned its mind to’ all the relevant provisions, and in particular the purpose and object of the Act.

Who must receive a copy of the decision?
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.

Generally, the committee will issue a written (reserved) decision to the applicant and other parties within 30 days of the hearing. 

In practical terms, the DLC needs to provide a copy of the decision to the secretary. The secretary will forward copies of the decision to these parties. 

Every territorial authority must take all reasonably practicable steps to ensure that copies of all the decisions of its licensing committees are publicly available. Councils often publish decisions of the DLC on their website to give effect to this requirement. If they are not available on the council website, people can ask the council to send them a copy.

When the decision takes effect
A decision takes effect:

• on the date stated in the decision, or
• if no date is stated, on the date the decision is given, or
• when there have been objections or oppositions, 10 working days after the notice of decision (thus allowing for appeals). 

The appellant, the parties to the hearing, and the Alcohol Regulatory and Licensing Authority or the courts are involved in this step.

The DLC is not involved in this step except to provide any information requested by ARLA.

Who may appeal?

Any party involved in the hearing has 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 (s 154).

Procedures for appeal

An appeal must be lodged with ARLA within 10 working days after the district licensing committee (DLC) decision is supplied to the aggrieved party, although ARLA may extend this time period where there is reasonable cause for failure to meet the deadline (ss 155(1) and (2)).  

The notice of appeal must be in writing, be sent to the secretary of ARLA, and specify the grounds for appeal in sufficient detail to fully inform ARLA and the parties of the issues in the appeal (s 155(3)). 

The appellant must provide a notice of appeal to the secretary of the DLC and to the other parties to the DLC hearing (s 153(5)).  

As soon as possible after receiving the notice of appeal the DLC secretary must send the ARLA secretary any relevant information or exhibits relating to the case, as well as a copy of the decision (s 155(6)). This will comprise a copy of the complete DLC file. It will assist the Authority and the parties to the appeal, if it is:

• Paginated.
• Chronological – that is to say, it starts with the complete Agenda papers (application, supporting papers, agency reports, objections, pre-hearing matters), followed by opening submissions, statements of evidence, exhibits, closing submissions, and a transcription of the hearing.
• Documents produced to the DLC in colour should be transmitted to ARLA in colour.
• Where there is a full transcription of the hearing it is not necessary for Members’ personal notes taken during the hearing to be transmitted to ARLA, but where there are gaps in the transcription this is most important.
• As DLC deliberations are conducted in private it is not appropriate to send to ARLA the notes of the Members’ deliberations.

ARLA will also require a typed transcript of the hearing and the notes (if any) of the committee members.

Appeals to higher courts

If the application was first considered by a DLC, the first 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.

Your decisions can be appealed

Any party involved in the hearing has the right to appeal to ARLA if they are dissatisfied with the decision or any part of the decision.

In some situations, the decision will be suspended pending the outcome of the appeal. This means that the licence can’t be used until the appeal is resolved, unless it is for a renewal and the current licence continues until the outcome of the appeal.

An appeal must be lodged with ARLA within 10 working days after the DLC decision is supplied to the aggrieved party. The appellant must notify the other parties to the hearing that they have appealed. In practice, the secretary of the DLC would receive the notification and would then notify the DLC. It would be good practice for the secretary to check that the parties have been notified.

If the application was first considered by a DLC, the first 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.

ARLA will deal with an appeal ‘on the papers’ or call a hearing to hear from the parties. 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 (with some guidance on particular issues). 

Generally, the DLC is not represented at the appeal hearing. ARLA hears from the appellant and may have some questions of the objectors and agencies who gave evidence. ARLA will be looking to ensure that the appellant was dealt with fairly and that the conclusion reached by the DLC was available to it based on the evidence produced. 

The Alcohol Regulatory and Licensing Authority

What is ARLA?
ARLA is the overarching national body set up to ensure that the Sale and Supply of Alcohol Act 2012 (the Act) is fairly applied. Its functions are to:

• determine applications for new and renewed licences and manager’s certificates that have been referred to it by DLCs 
• determine appeals against:decisions of DLCs   
  • draft local alcohol policies 
  • give direction or statements to DLCs 
• advise people of the appropriate DLC to go to 
• refer matters to DLCs for inquiry and report 
• determine enforcement applications – variation, suspension or cancellation of licences and manager’s certificates 
• perform any other functions conferred on it by any Act.

Membership of ARLA
ARLA can consist of up to three District Court Judges (one of whom is the chairperson) and any number of other members. Members are normally appointed for a term of up to five years. At present, ARLA comprises a chairperson (who is a District Court Judge) and three members.

ARLA as a commission of inquiry
ARLA has the powers of a commission of inquiry under the Commissions of Inquiry Act 1908. A commission of inquiry is an inquisitorial system rather than an adversarial system. An inquisitorial system is a legal system where the court is actively involved in investigating the facts of the case. This is different from an adversarial system, where the role of the court is primarily that of an impartial referee between the parties. ARLA can summon witnesses, require documentation, and award costs (to a limited extent).

ARLA practice directions and statements
ARLA may issue practice directions or statements (which include notes, guidance or suggestions). They set out ARLA’s views on the general administration of the Act or policies to be followed in the administration of the Act.

ARLA will make it clear within each direction, statement or note whether its advice must be followed by DLCs and regulatory agencies or if it is more for information. We suggest that you read all the notes and guidelines that ARLA publishes. Even if they aren’t direction that must be followed, they may contain information useful to you and help achieve consistency.

Notes and guidelines from ARLA are set out on the Ministry of Justice website. They cover topics such as:

• the documents that DLCs should forward to ARLA
• the procedure for considering and determining temporary authorities
• provisional local alcohol policies
• requirements for DLCs to provide transcripts to ARLA.

How are ARLA hearings run?
ARLA hearings are similar to DLC hearings, but generally more formal, as they are run by a District Court Judge.

You can read more detailed guidance about ARLA hearings in the Toolbox. 

All parties or their legal representatives can appear and speak at the hearing. Parties to an application or appeal may be represented by an agent if ARLA gives approval beforehand.

During a hearing, the person applying for a licence or manager’s certificate will make their submissions and give their evidence first. Or, where the hearing is an appeal, the appellant will proceed first.

The Authority will give its decision orally and/or in writing after the hearing.

Can a decision of ARLA be appealed?
Any party in a proceeding may appeal ARLA’s decision to the High Court. Appeals must be made to the High Court within 10 working days after notice of the decision has been given to that party.

Visit the Ministry of Justice website for more information on ARLA and the appeals process.

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.

Sale and Supply of Alcohol Act 2012 references for 2.6 Step 6 – Appeals to ARLA regarding a DLC decision