Traditionally the power to bar or remove patrons from licensed premises has been left to the licensee of the premises. This was an extension of the common law right of publicans to refuse service.
These powers have been extended to police under the Liquor Licensing Act 1997 (SA).
Under the Act there is both a right to remove or refuse entry and a power to bar a person from licensed premises.
Power to remove or refuse entry
Under section 124 of the Liquor Licensing Act 1997 (SA) a licensee, police officer or approved crowd controller may use reasonable force if necessary to remove a person or prevent entry of a person onto licensed premises if they are intoxicated or behaving in a disorderly or offensive manner.
Offence: A person removed from licensed premises under section 124 who re-enters the premises within 24 hours is guilty of an offence and may be arrested without a warrant.
Maximum penalty: a fine of up to $2 500 [s 132].
Power to bar
There are effectively three types of barring orders and although the consequence of the orders is the same, the basis on which they are issued differ significantly:
- licensee barring orders [s 125]
- Commissioner of Police barring orders [s 125A]
- Police officer barring orders [s 125B]
Licensee barring orders
A licensee (or person responsible for the licensed premises) may serve an order on a person barring them for a specified period.
The grounds on which an order can be made are:
- if the licensee thinks that the welfare of the person or of a person living with them or of a person's family member is seriously at risk as a result of alcohol consumption; or
- if the person commits an offence or behaves in an offensive or disorderly manner on the licensed premises or in an area adjacent to the licensed premises; or
- any other reasonable ground.
For the purposes of issuing such an order a police officer may provide a licensee with information about the person.
An order issued on the basis of concern for the welfare of a person or of their dependant(s) can be for an indefinite or a specified period.
In other cases the following limitations apply:
- if the person has not previously been barred – for a period not exceeding 3 months (although a longer period may be approved by the Liquor and Gambling Commissioner);
- if the person has been barred on one previous occasion – for a period not exceeding 6 months (although a longer period may be approved by the Liquor and Gambling Commissioner);
- if the person has been barred on at least 2 previous occasions – for an indefinite period or any specified period.
A person who enters or remains on a licensed premises from which they have been barred is guilty of an offence with a maximum penalty of a fine of up to $5 000 or an expiation fee of $315 [Liquor Licensing Act 1997 (SA) s 125(2)].
A licensee, a responsible person, or an employee of a licensed premises who allows a person to enter or remain on a licensed premises from which they have been barred is also guilty of an offence, with a maximum penalty of a fine of up to $5 000 or an expiation fee of $315 [see s 125(4)].
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) [s 125A].
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 andorganised 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 under section 125B. 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 or of a family member of the person 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.
A person who enters or remains on a licensed premises in contravention of a Police Barring Order or Commissioner of Police barring order is guilty of an offence with a maximum penalty of a fine of up to $5 000 or an expiation fee of $315 [Liquor Licensing Act 1997 (SA) s 125C(1)].
Power to require personal details
Police have the power to require that a person state their name and personal details if requested.
Offence: It is an offence to refuse to provide this information or to provide false information [s 125E].
Maximum penalty: $1250
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.
Casino Barring Orders
Similar barring orders exist under the Casino Act 1997 (SA).
A general power to bar patrons from gaming areas exists under sections 44 (Licensee’s power to bar), 45 (Liquor and Gambling Commissioner’s power to bar) and 45A (the Commissioner of Police’s power to bar).
Barring orders made by a licensee or the Liquor and Gambling Commissioner may be made on any reasonable ground other than on the ground that the person is placing his/her welfare or the welfare of their dependants at risk through gambling. Orders on the basis of welfare must be made through Part 4 of the Gambling Administration Act 1995 (SA).
Orders made by the Commissioner of Police are generally made on the basis of criminal intelligence.
The following time limits apply to an order that is issued:
- by a licensee – up to 3 months;
- by the Liquor and Gambling Commissioner – for a specified or an unlimited period;
- by the Commissioner of Police – for a specified or an unlimited period.
Offence: It is an offence for a barred person to enter or remain in gaming areas contrary to an order and the maximum penalty is $2 500 (ss 44, 45 and 45A].
Where a person is intoxicated or behaving in an abusive, offensive or disorderly manner an agent or employee of the licensee, or a police officer, may exercise reasonable force to prevent them from entering the casino (or to remove them) [s 46].
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.