Who has the power to bar patrons from licensed premises

Traditionally the power to bar patrons from licensed premises has been left to the licensee of the premises. Under the Liquor Licensing Act 1997 these powers have been extended to police.  There are effectively two types of ‘barring orders’ – one that can be issued by the Commissioner of Police and another that can be issued by a police officer on the authority of a senior officer. Although the consequence of either order is the same, the basis on which they are issued differs significantly.

Commissioner of Police barring orders

The Commissioner of Police has the power to issue an order barring a person from licensed premises for either an indefinite period of time or a specific time (a ‘barring order’). Similar powers apply under the Casino Act 1997. The ban might be for a specific venue or for licensed premises in a specified area. All that is required is a reasonable ground.

Generally such orders will be issued on the basis of ‘criminal intelligence’ and, if this is the case, then the details of this intelligence will not be disclosed on the order. All that needs be stated on the order is that it would be contrary to the public interest if the person were not barred.

For the purposes of the Act ‘criminal intelligence’ is any information relating to actual or suspected criminal activity (whether in South Australia or elsewhere), the disclosure of which could reasonably be expected to prejudice criminal investigations, enable the discovery of the existence or identity of a confidential source of information or endanger a person’s life or physical safety.

The intention behind this type of barring order is to ensure that the Commissioner of Police has such powers as are necessary to curb outlaw motorcycle gangs and organised crime groups from intimidating licensees and using their premises to commit criminal acts.

Police officer barring orders

Barring orders can also be issued by police officers. These orders act similarly to the Commissioner of Police barring orders but are generally for a shorter period of time and are usually issued as the result of concerns about a person’s welfare or because of disorderly behaviour.

A police officer may bar a person from entering or remaining on licensed premises if they are satisfied that:

·         the welfare of the person or a person living with them is seriously at risk as a result of the consumption of alcohol, OR

·         if a person commits an offence or behaves in an offensive or disorderly manner in licensed premises or an area adjacent to licensed premises, OR

·         any other reasonable ground

Where the ground for issuing the order is that of welfare of the person or a person living with them the order can be for an indefinite or specified period of time.

Where the ground for issuing the order is the commission of an offence, disorderly or offensive behaviour or any other reasonable ground, the order will remain in force:

·         if the person has not previously been barred, for a period not exceeding 3 months

·         if the person has been barred on one previous occasion, for a period not exceeding 6 months

·         if the person has been barred on at least two prior occasions, for an indefinite period or a period specified in the order

Power to remove barred person

An authorised person may require a barred person to leave licensed premises and can prevent them from entering or remove them using reasonable force if necessary. An ‘authorised person’ includes the licensee of the premises, a person responsible for the licensed premises, a police officer or an approved crowd controller.

Offences

It is an offence to enter or remain on licensed premises if barred.

Maximum penalty: $1250 (licensed premises)

Maximum penalty: $2500 (casino)

Police have the power to require that a person state their name and personal details if requested. It is an offence to refuse to provide this information or to provide false information.

Maximum penalty: $1250

The licensee will be guilty of an offence if he/she allows a barred person to enter or remain in unlicensed premises or the casino.

Maximum penalty: $1250 (licensed premises)

Maximum penalty: $10 000 (casino)

Appealing against a barring order

Where a barring order has been issued against a person they can apply to the licensing authority for a review of the order. Depending on the section of the legislation under which the order was issued the relevant licensing authority will be either the Licensing Court or the Liquor and Gambling Commissioner. This right of review exists only for persons who have been banned for a period exceeding one month.

Many people have concerns about the possible misuse of personal information. They worry that stored personal information could be hacked, stolen or inappropriately accessed or misused, causing harm through financial, credit card or identity fraud.

Licensees should ensure that they only collect the information that is necessary to implement the multi-venue barring policy, this helps to lower the risk of privacy complaints being lodged.

It is a matter for each licensee to determine their privacy obligations and each licensee must ensure they comply with State and Federal privacy laws.

We strongly recommend that an accord or licensee seeks independent legal advice before implementing a barring system.

NSW Privacy and Personal Information Protection Act 1998 (PPIPA): individual licensees are not bound by PPIPA and may collect, use and disclose personal information without breaching its terms. The NSW Police Force is also exempt from compliance with the PPIPA, except in relation to its administrative and educative functions.

This means that a licensee who is a member of a local liquor accord that bars a person from the venue may share the name of the person and a photograph with other licensees who are part of that liquor accord, without breaching the PPIPA (note that however, Commonwealth law may apply).

PPIPA does apply to public sector agencies such as the Secretary of the NSW Department of Customer Service and local councils, who are eligible to be part of an accord. It is recommended licensees exclude these agencies from personal information about barred persons.

Commonwealth Privacy Act 1988: Whilst NSW privacy laws are not generally applicable, some licensees may have obligations under the Commonwealth Privacy Act 1988. Under the Privacy Act, licensees with a turnover of more than $3 million are required to comply with the Australian Privacy Principles (APP) that restrict the collection and disclosure of personal information (Schedule 1 to the Act).

Particularly relevant, under APP 6, an organisation is prohibited from using or disclosing personal information about an individual for a purpose other than the primary purpose of collection. Where a multi-venue barring policy is in place, venues may be able to use and disclose an individual’s details provided that the information was primarily collected in order to implement this policy.

To remove any doubt, and to comply with other aspects of the APPs, patrons should be informed of this at the time of collection.

It is up to each individual licensee to assess whether they are required to comply with the APPs and, if so, to determine what steps need to be taken in this regard.

There is also nothing to prevent accord members agreeing that measures be taken to protect the privacy of the barred person, even if those measures are not legally required.

Tips for complying with the Privacy Act

• Tell people when you collect personal information what you expect to do with it.
• Use personal information only for the reason you collected it, or in ways people would think reasonable, unless:
  • you have their consent
  • have given them an opportunity to opt-out
  • the use is authorised by another law.
• Share personal information only for the reason you collected it, or in ways people would think reasonable, unless you have consent or the disclosure is authorised by another law.
• If people ask, give them a chance to see any information you hold about them and keep personal information secure, accurate, and up-to-date.
• Take reasonable steps to secure the information.
• Destroy or de-identify the information when it is no longer required.

As a patron of licensed venues in NSW you have the right to enjoy safe and responsible drinking environments.

The Liquor Act 2007 supports responsible drinking and provides powers for licensees and police to remove and ban problematic patrons from the venue.

Your rights as a patron:

• Access to free water – all licensed venues where alcohol is consumed on the premises in NSW are required to provide free water to patrons
• Availability to purchase food in hotels, clubs, entertainment venues, restaurants and other venues where alcohol is consumed on the premises
• A smoke-free environment in indoor areas, and certain outdoor areas, of licensed venues
• Responsible service of alcohol by staff in licensed venues.

Member access to club information

By law, a club is required to make available to its members information that relates to the management and financial administration of the club including:

1. A register of disclosures made by the directors and employees of the club
2. Details of any overseas travel made by directors and employees of the club
3. Details of loans given by the club to employees
4. Details of certain contracts of employment to top executives of the club
5. Details of payments made by the club for consultant services
6. Details of legal settlements made by the club with a director or an employee of the club
7. Details of legal fees paid by the club for a director or an employee of the club
8. The club's annual gaming machine profit
9. The amount applied by the club to community development and support
10. Quarterly profit and loss, trading accounts and balance sheets
11. Details of mandatory training completed, or exemptions claimed, by a director, club secretary or manager of the club

Clubs must display a notice on the club premises and website advising you, as a member, how you can access this information and make it readily available on request. They may also provide information to you in a newsletter or by email.