Aboriginal and Torres Strait Islander viewers are advised that this website contains the names and images of people who have passed
Aboriginal and Torres Strait Islander viewers are advised that this website contains the names and images of people who have passed
58
Right of appeal in liquor laws
That Governments give consideration to amending the liquor laws to provide a right of appeal to persons excluded from a hotel where that exclusion or its continuation is harsh or unreasonable.
Under Victoria’s Equal Opportunity Act, it is against the law to discriminate against someone because of their race. Providers of goods and services, including restaurants, must not discriminate on the basis of race and have a positive duty to take reasonable steps to eliminate discrimination as far as possible.
Aboriginal Justice Caucus Assessment
The intent of Recommendation 58 was to ensure that individuals excluded from licensed premises have a clear right of appeal, allowing them to challenge bans that are harsh, unreasonable or discriminatory.
For a person subject to a barring or banning order under the Liquor Control Reform Act 1998 (Vic), the legislation outlines formal avenues for getting such orders varied or removed. These could be considered to provide a ‘right of appeal’ as outlined in Recommendation 58. However, from case studies examined in this project, and anecdotal evidence, it seems that when entry is denied or an individual is asked to leave a licensed premise, this generally occurs through less formal processes that are not documented. To address discriminatory treatment in these circumstances requires making a complaint under the Equal Opportunity Act via the Victorian Equal Opportunity and Human Rights Commission or taking other civil action.
There is limited data on the extent to which barring, banning and exclusion orders are used, let alone whether they are used disproportionately against Aboriginal people. Similarly, there is limited evidence on the extent to which existing ‘right to appeal’ mechanisms are used under the Liquor Control Reform Act 1998 (Vic) or Equal Opportunity Act 2010 (Vic) other than where examples are highlighted by the Victorian Equal Opportunity and Human Rights Commission or legal services.
Recommendation 58 remains relevant, as fair access to complaint and appeal processes is critical in preventing discrimination and supporting human rights.
Priority for Further Work:
Moderate
Relevance and potential impact | |||||
|---|---|---|---|---|---|
Low (0-2) | Moderate (3-4) | High (5-6) | |||
Extent of action taken and evidence of outcomes | High (5-6) | ||||
Moderate (3-4) | |||||
Low (0-2) | |||||
Potential Actions for Further Work
Enhance information about barring orders and avenues for appeal
- Mandate the display of clear signage in licensed premises outlining the reasons a person may be barred and their right to appeal.
- Include information about the right to appeal directly on the barring order form at the time it is issued.
- Develop and distribute accessible information to Aboriginal communities to raise awareness about how to appeal a barring order.
- Provide adequate resources and support to Aboriginal legal services to assist barred individuals in navigating the appeal process.
- Ensure transparent public reporting on the use of barring orders and appeals, broken down by venue or local government area (LGA).
Background
The Royal Commission into Aboriginal Deaths in Custody recognised that the right to enter a public bar or hotel was a powerful symbol of equality for Aboriginal people. However, discriminatory actions taken by publicans to deny entry to or ban Aboriginal patrons often hindered positive relations between Aboriginal and Torres Strait Islander peoples and the wider community. To address this unfair treatment, the Commission recommended creating a statutory right of appeal to challenge harsh or unreasonable bans.
Actions Taken Since Last Review
Liquor Control Victoria
In 2023, Liquor Control Victoria assessed this recommendation as fully implemented. Licensees must not permit drunk, violent, or quarrelsome individuals to remain on licensed premises and have several options to manage such patrons. They may refuse entry or ask individuals to leave, provided it is not discriminatory. More formal approaches include participating in a liquor accord, where licensees can collectively ban individuals from multiple venues for up to 12 months. Such bans must be fair, proportionate, and transparent, with limited personal information shared among accord members for enforcement purposes.
Issue of a barring order
Licensees, venue managers, and police officers can issue a barring order using an authorised form, making it enforceable by Victoria Police. Once served, the individual must leave the venue and its 20-metre vicinity and cannot return until the order expires. Failure to comply may result in an infringement notice or formal charges. To issue a barring order, the person’s name must be known, with additional identifying details such as address or date of birth preferred.
Request to change or cancel a barring order
Barred individuals can request a change or cancellation of a barring order by contacting the issuer, who is best placed to assess the circumstances. Alternatively, they may apply to the Victorian Liquor Commission, which can amend or revoke the order on its own initiative or upon request from the barred person, the licensee, or police. The Commission exercises this power to ensure fairness and accuracy in the barring process.
Designated areas
Some entertainment precincts in Victoria have been classified as designated areas. Victoria Police have the power to ban a person from a designated area for up to 72 hours by issuing a banning notice. Victoria Police can either ban the person from all licensed premises in the designated area or from the designated area.
Impact
Outputs
The Liquor Control Reform Act 1998 (Vic) outlines several mechanisms by which people can be refused entry, barred or banned from licensed premises and/or designated entertainment precincts. The Act also outlines formal avenues for getting these orders changed or revoked.
Outcomes
For a person subject to a barring or banning order under the Liquor Control Reform Act 1998 (Vic), the legislation outlines formal avenues for getting such orders varied or removed. These could be considered to provide a ‘right of appeal’ as outlined in Recommendation 58. However, from case studies examined in this project, and anecdotal evidence, it seems that when entry is denied or an individual is asked to leave a licensed premise, this generally occurs through less formal processes that are not documented. To address discriminatory treatment in these circumstances requires making a discrimination complaint via the Victorian Equal Opportunity and Human Rights Commission or taking other civil action.
Community Views
Victorian Aboriginal Legal Service
Victorian Aboriginal Legal Services Annual Report 2021-2022
Case study
During Christmas 2021, a young client was refused entry at a bar in Melbourne. The client was with four non-Indigenous friends who had been enjoying drinks together. The client’s friends were allowed in, whilst our client was turned away by security for being drunk. The client does not drink alcohol. He was completely sober. He was certain that he had been racially profiled.
He said that he wanted VALS to assist because he did not want this to happen to another young Aboriginal man. VALS took witness statements with a view to making a discrimination complaint at the Victorian Equal Opportunity and Human Rights Commission (VEOHRC) and the Victorian Civil and Administrative Tribunal (VCAT) if necessary.
The civil lawyers wrote to the owners of the bar to demand an apology, cultural safety training by a First Nations controlled provider, and a sum of money in recognition of the humiliation suffered by our client. After a lengthy negotiation, the Civil and Human Rights Practice secured an agreement without having to go to VEOHRC or hearing at VCAT.
The client received a written apology and a payment of $3,500. The bar owners agreed to cultural safety training for all client facing staff. This included security staff who are contractors.
The bar owners and staff recently completed the training with VACCHO. The owner said that all Australians should do this training. The bar owner said he had learned a lot from working with us.
Victorian Equal Opportunity and Human Rights Commission
The incident portrayed in the story below is inspired by real complaints received by the Victorian Equal Opportunity and Human Rights Commission, but all names and other identifying details have been changed.
My friends and I were having a laugh as we got to the front door. The security guard glared at us and said there was no way we were coming in tonight as Aboriginal people had a fight here last week’
Kate is Aboriginal and went to the local hotel to have a meal and drinks on Saturday night with friends. They were denied entry to the hotel by security on the front door as ‘Aboriginal people had a fight here last week’.
Under Victoria’s Equal Opportunity Act, it is against the law to discriminate against someone because of their race. Providers of goods and services, including restaurants, must not discriminate on the basis of race and have a positive duty to take reasonable steps to eliminate discrimination as far as possible.