Liquor licence options
The categories of licences available in each State and Territory, and the particular constraints and limitations on each, reflect a long history of competing tensions in liquor licensing law, including:
- the traditionally privileged position of the hotel publican (the broadest trading rights, but also, in years past, obligations to provide food and lodgings)
- the attempts over the years to reform the regime to increase commercial flexibility (some new licence categories and some new rights being added to existing categories)
- “harm reduction” considerations (which have in many cases directly or indirectly constrained or limited the availability of licences or the trading rights attached to them).
As such, cellar door operators must work within particular licensing constraints that can, at times seem, seem anachronistic or inflexible.
The discussion of licence categories that follows is focussed on the requirement for a licence that allows sales to members of the public attending the licensed premises in person. In each jurisdiction, there will be other options available where the licensee is, for example, focussed on a “wholesale” business (sales only to other licensed entities), or is using a “mail and internet orders only” model (with no premises open to the public).
What wine can you sell? Common restraints on producer’s-type licences
An important constraint on the categories of liquor licence most often used by cellar door operators, is a restriction on the liquor that can be sold under the licence. You need to be careful to make sure that your wine (and each and every vintage and variety that you sell) can legally be sold under the particular liquor licence that you hold. This can be a more complicated issue than it seems at first glance.
To state the obvious, if you have produced or obtained wine for sale, and then later find that it does not “fit” with your licence, you may have a significant problem. If certain wine does not fall within the scope of the liquor which your licence authorises you to sell, offering that wine for sale at your cellar door premises will be illegal.
Sales of any such “ineligible” wine can expose you to penalties and disciplinary action under the licensing legislation. There is also often a risk of related issues with any Wine Equalisation Tax rebates and subsidies which may have been claimed and received for those sales.
The licensing regimes vary in this regard from State to State. There are some significant differences between the States in the amount of flexibility afforded to the licensee, and the manner in which the right of sale is limited by reference to the characteristics of the wine.
There have also been, fortunately, reforms in a number of States over recent years – while a number of the licensing regimes are still relatively restrictive, the options for wineries in a number of States have significantly improved when compared to the position of five or ten years ago. A number also offer “carve outs” or special exceptions – it pays to continue to check from time to time the specific provisions applying to the licences in your jurisdiction.
Please also note that there may be, depending on the jurisdiction and the licence category, broader rights for “on premise” sales (for example, selling a full range of liquor as part of a restaurant or dining operation at the cellar door premises) – the restrictions discussed below in relation to what wine can be sold pursuant to typical “producer’s”-type licences, will usually apply at least to the “take away” or “off premise” sales made under the licence.