Application process and agency reports
Once an applicant files an alcohol licence application, the relevant council must forward a copy to the NZ Police, the Medical Officer of Health (who represents the local District Health Board) (MOH), and Licensing Inspector (a local council employee) to inquire into each application.
Under the Sale and Supply of Alcohol Act 2012, the Police and MOH have a 15 working day period in which to file a report on the application with the local District Licensing Committee (DLC). Ordinarily, this is a straightforward process, and the 15 working day period gives applicants some certainty around reporting timeframes.
Effect of COVID-19 on timeframes
Enter COVID-19. As part of its response to the pandemic, the Government issued an Epidemic Notice and implemented a number of Immediate Modification Orders under the Epidemic Preparedness Act 2006. These orders have temporarily suspended or changed parts of various laws to prioritise COVID-19 response work, and their expiry dates are tied to the Epidemic Notice. As at the date of writing, the Epidemic Notice remains in force and will likely be renewed before its next expiry date.
The Epidemic Preparedness (Sale and Supply of Alcohol Act 2012—Licence Application Inquiries) Immediate Modification Order 2020 (IMO) has modified the reporting timeframes under the Act so that the Police and MOH have until an unknown future date to report on each application (30 working days after the expiry of the Epidemic Notice).
We have seen firsthand that the agencies have been using this expanded timeframe to undertake forensic examinations of certain applications, often leading to public hearings due to agency opposition. For some applications, such as those for new premises, the applicants are unable to trade during these long periods of delay which can cause them significant hardship.
This has resulted in applications for alcohol licences taking far longer than the Act originally contemplated, and more applications going to hearings before various DLCs. Many applicants seek legal representation for DLC hearings to present the most robust case possible, which leads to increased costs.
Applicants who engage alcohol licensing lawyers at the beginning of the application process give themselves the best chance of avoiding a DLC hearing for their application.
Other Immediate Modification Orders introduced by Government
The IMO is not the only Immediate Modification Order the Government has made. Other pieces of legislation affected include the Employment Relations Act 2000
In a recent High Court judgment, Idea Services Ltd v Attorney-General [2022] NZHC 308, the Court found that while the Government had the power to make Immediate Modification Orders, this power was not unlimited. The Court found in that case that the Immediate Modification Order should have been kept under review (rather than being a ‘set and forget’ option), and revoked once it was no longer necessary. As a result, the Government has now revoked that order.
In our view, this decision would apply equally to the alcohol licensing IMO. However, any challenge to the IMO would likely need to be pursued through the High Court, as the Government is unlikely to review it otherwise.
Conclusion
As things stand, applicants for new or renewed alcohol licences are facing long delays due to the IMO’s modifications to the reporting timeframes, and increased scrutiny from the reporting agencies as a result of their newfound time.
If you need help applying for a new alcohol licence, or renewing an existing licence, don’t hesitate to contact our alcohol licensing team, who are experienced in working with the licensing agencies, and navigating these processes.
Simon Middlemiss and Levi Harris are part of our Commercial Disputes & Employment team at Norris Ward McKinnon.
