Entertainment venues in Australia on the whole are often associated with the service of alcohol not only providing hospitality directly but also underwriting the venue and performance. The relationship between the the service of alcohol and the provision of musical entertainment should be understood from a regulatory aspect to ensure that the interests of the live music and entertainment industry are also taken into consideration in the preparation of policy and regulatory systems.
Objects of the Act
The objects of the Liquor Act must be considered in deciding any matter before the licensing authority. It is important that the Act includes an object that recognises the value and importance of live music. Then, the Interests of music become a relevant consideration in licensing matters such as applications, amenity or complaints processes, variations on trading hours and conditions or transfer of licenses. At this time only New South Wales, Western Australia, and South Australia have a specific reference to live music and entertainment in the objects of their Acts. This reference can be seen as desirable by the live music and entertainment industry as it can also deliver context in arbitration for complaints and can be very much a positive consideration in what is a heavily regulated area associated with risk.
Dedicated class of Liquor Licence
Certain States in Australia have a dedicated class of liquor licences designed specifically for entertainment venues. Other States have not required the addition of a specific licence as the existing categories are adequate. The evolution of these dedicated licenses has in some circumstances been to give more options in on-premises licenses where the service of alcohol is otherwise contingent on a primary purposes such as the provision of food.
In Queensland, the on-premises cabaret licence is there to allow venues such as a restaurant-type venue to serve alcohol without a meal (or after a certain time) provided there is live entertainment being provided. The new NSW entertainment venue on-premises liquor licence combines the previous Theatre/Cinema liquor licence and the previous up to $60,000 nightclub licence into a single category with a greatly reduced fee down to $500. This provides creative industries in NSW with their own category of liquor licence, alongside the Wine, Hotel, Club and Restaurant industries.
The Western Australian Nightclub licence and Queensland Cabaret licence can be seen as expensive when compared to the New South Wales and South Australian dedicated licenses/
Definition of “entertainment”
New South Wales, South Australia and Queensland include a category of entertainment or of entertainment premises in legislation, with specific definitions of the term “entertainment” or “entertainment premises”.
This may be seen as a positive aspect where licenses can be given consideration or cost concession to support opportunities and employment for the entertainment industry.
Order of occupancy consideration
Venues that host live entertainment are by nature vulnerable to noise complaints as well as the amenity issues that result from collective behaviour at performance times. The gentrification of traditional live music precincts has brought a loss of performance opportunities in local hotels. These are a result of noise complaints processes that did not take into account order of occupancy between the venue and the complainant, structural and material changes to either premises as well as any changes in the entertainment activity in the licensed premises undertaken over time.
Order of occupancy can also be referred to as “agent of change” (where the onus is on the party who has made the recent move, either by introducing music, or moving in next door) or “prior use” principles ( where the activity is indexed to the use of a premises such as a hotel for example, which whilst it may not host live entertainment all the time, has been a fixture in the local area, and there is a reasonable expectation that live entertainment is an activity you would normally associate with a consent for this type of land use.)
Whilst residents neighbouring venues certainly have the right to expect a reasonable amount of amenity, order of occupancy considerations in noise complaints processes can help protect against unreasonable expectations of what types of activity can be expected in inner city areas and where residential and hospitality industry venues are in close proximity to each other.
Consideration of structural changes
Queensland, South Australia, New South Wales and Western Australia are currently the only States which have a reference in the complaints process for liquor licensed premises where either party, as well as raising any change in activity over time, can also table the implications of any structural changes to either premises, whether the entertainment venue or neighbouring land uses.
Intensification of use protection
Complaints regulation and arbitration procedures that can assess any changes in entertainment activity over time offer protection to residents as well as consent authorities from any intensification of use arising in, for example, licensed cafes or restaurants, with small scale entertainment evolving into, say, high impact nightclubs.
As noted previously, Queensland , South Australia , New South Wales and Western Australia are currently the only States which have this type of context and flexibility in arbitration procedures for liquor licensed premises. This can be seen as a positive provision by both residents and licensees as it can give residents a forum in which to raise concerns if the entertainment is getting out of control, without killing the activity altogether.
Again, these provisions come under the general umbrella of “order of occupancy” considerations and are supported by a reference in the objects of the Act.
Noise level specification
Only Queensland has a prescribed level specified for noise levels to be measured from licensed premises under liquor legislation. This Liquor Act provision allows for a higher level of noise emissions from licensed premises in zoned entertainment precincts.
No live music in Victorian restaurants after 11pm
New provisions introduced in Victoria in December 2007 in the Liquor Control Reform Amendment Bill 2007 place conditions on live music in on-premises licensed venues that restrict these licences from hosting live or pre-recorded music after 11pm when standard trading hours finish. This is the only State in the country where such a demarcation point exists to restrict musical activity in such a manner.
Licence fees and annual renewals
Licence fees and renewals processes are of importance to live music and entertainment venues as high costs and difficult processes may mean that less commercial entertainment that is culturally valuable may be made unviable.
Application fees and renewals vary around the country, with some States encouraging entertainment venue Liquor licenses by having a comparatively reduced fee, and others charging more than for standard licenses. In the ACT the annual renewal fee may be even more than the fee on the issuing of the licence, whereas in the Northern Territory, a liquor licence is $200 on application and issued in perpetuity unless there is a breach of conditions and it is revoked. The Western Australian Nightclub Licence is over four times more expensive than the recently introduced New South Wales equivalent.
Standard trading hours
Standard trading hours are specified in most liquor acts. Late night venues may wish to vary their trading hours, with premises hosting live entertainment experiencing more difficulties due to noise and amenity considerations.
A mention in the objects of a Liquor Act of live music and entertainment is able to be applied in support of an application for a variation of trading hours for responsibly run entertainment venues.
Under 18’s allowed to perform in licensed premises
Different States have different approaches to under-18’s and their ability to work as performers, as well as attend performances in different classes of licensed premises. Some States have regulations that are vague in this regard, and may require clarification to give younger performers and audiences more certainty.
The recent introduction of section 123 (3)(b) of the NSW Liquor Act 2007 specifically prescribes that minors can now work as performers in licensed premises (whilst in the company of a parent or guardian), enabling the under 18’s to commence their apprenticeship alongside established professionals whilst also being able to earn an income.
The ability for under 18’s to perform in licensed premises under specified conditions will have additional benefits for parents who play music and wish to encourage their children to work alongside them and to broaden the experiences of minors and their peers as they are exposed to more diversity and opportunities for live music.