As featured in the July edition of the QHA Magazine
When you purchase or establish a new licensed premises, as part of the relevant applications for liquor and gaming at your premises you are required to disclose to the Office of Liquor and Gaming Regulation (OLGR) sufficient information to allow the Commissioner to be satisfied that the applicant for the licence is a fit and proper person to hold a licence or permit.
Where an applicant for a licence is a corporation, the criteria for a fit and proper person will apply to each executive officer of the corporation. Accordingly, where there are changes to the corporation and its structure, the OLGR will need to be notified of those changes. There are specific provisions both in the Liquor Act 1992 (Liquor Act) and the Gaming Machine Act 1991 (Gaming Act) that deal with such circumstances.
change in corporate structure
Under the Liquor Act, where the beneficial ownership of the controlling interest in a corporate liquor licensee changes, this change must be notified to the OLGR within 14 days after the change is effected. Similarly, under the Gaming Act, where a corporate gaming licensee undergoes a change in corporate structure, directors, shareholders or has a relevant share transfer, the licensee must notify the OLGR of the change, but this must be done within 7 days after the change is effected.
By way of an example, the following situations would require notification to the OLGR:
- Change in Shareholding – if there is a transfer of shares resulting in a change in control of more than 50% of the issued shares, notification must be provided to the OLGR. This would include instances where a majority shareholder sells their shares to either an existing shareholder or a third party, causing a shift in ownership of the corporate licensee.
- Change in Executive Officer – where there is a change to the board of directors or the company secretary, such as appointment of a new officer or the resignation of an existing officer, written notice must be provided to the OLGR of this change. Where a new individual is appointed, they will also be required to complete a Form 5 Personal Details form for assessment by the OLGR of their suitability. This change should also be documented on the Australian Securities and Investments Commission company records, with evidence to be provided to the OLGR.
- Corporate Restructuring – where you are planning a corporate restructure, including a merger or a change in the beneficial owner under a trust structure, notice will need to be provided to the OLGR. Where a trust is involved, if there is a change in the beneficiaries or the trustee (including a trustee that holds shares in that capacity in the corporate licensee), it is prudent to provide notification to the OLGR of such changes.
There are penalties associated with a licensee failing to comply with its obligations regarding notification to the OLGR for the above changes. Under the Liquor Act and Gaming Act this is 100 penalty units, which is equal to $14,375.00.
When a change is considered to have been effected depends on the change. For example, where a company executive officer is resigning, the change would occur on the effective date of the resignation. For share transfers, the date that the shares have been transferred to the new (or existing) shareholder and this change is approved and updated on the company register may be considered the date the change has taken place.
Documentation of such changes can sometimes feel administrative and tedious. However, it is important for you to ensure that you are meeting all your obligations as a licensee which includes prompt notification to the OLGR of such changes to your corporate licensee. If you require any assistance with ensuring you have met your obligations, please contact me.