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Too much to drink? Banning rights for club licensees

This article originally appeared in Club Insight magazine, Issue Five - October November 2018

What if one of your regulars is "well known" for all the wrong reasons – consistently intoxicated, disorderly and a general nuisance – so much so that you no longer want them around?

Responsible service of alcohol is an essential responsibility of every licensed venue, and the Liquor Act 1992 (the Liquor Act) gives clubs the power to deal with these situations. However, you might be surprised to learn that your powers to ban someone from your club on an ongoing basis may not be as straightforward as you think.

Exclusion on a "night by night" basis

The Liquor Act states that an authorised person, being the licensee, or an employee or agent of the licensee, is entitled to remove a person from a licensed premises in the following circumstances:

  • the person is unduly intoxicated;
  • the person is acting disorderly;
  • the person is creating a disturbance;
  • the person is a minor, other than an exempt minor;
  • the person has entered the premises despite being refused entry pursuant to the refusal of entry provisions of the Liquor Act; or
  • the person refuses to state particulars or to produce evidence of their age when required to do so under the Liquor Act.

 Similar to these rights is the additional right for an authorised person to refuse entry to a person if:

  • the person is unduly intoxicated;
  • the person is acting disorderly;
  • the person is a minor, other than an exempt minor;
  • the authorised person suspects on reasonable grounds that the person is a minor and the person fails to produce contrary evidence; or
  • in circumstances where there are restrictions on the licence (i.e. lockout), where the entry of the person would contravene those restrictions.

Therefore, if the person the club wishes to exclude is intoxicated, disorderly or creating a disturbance, the club would on every such occasion be entitled to either refuse entry or remove the person from the premises.

The disadvantage of this approach is that it does not allow the club to completely exclude the person, and requires the club to take a "night by night" approach and effectively wait for a disturbance or for the person to become intoxicated or disorderly before having the right to remove the person or refuse entry.

Permanent or semi-permanent exclusion of a non-member

The Liquor Act recognises that there are several other ways in which a person might be lawfully be excluded from a place. In addition to rights under other areas of law (e.g. trespass under property law or criminal law), the Liquor Act also suggests that licensed venues may use other 'policy based' methods of exclusion. An example cited in the Liquor Act is that if a venue has a dress policy, persons may be excluded or refused entry if they don’t obey the dress policy. Using this approach, a venue could introduce a behaviour policy that allows the venue to exclude "repeat offenders" on a permanent or semi-permanent basis. Of course the venue would need to ensure that such policies do not breach any relevant laws, such as discrimination laws.

In addition, to be effective for clubs we consider that exclusion under any such policy must not be inconsistent with the visitor's rights under the constitution or by-laws.

Permanent exclusion of a member

This can be a minefield. Essentially, there is no clear right under the Liquor Act to ban a person from a club on a permanent basis. In addition, authority suggests that the member's rights under the club’s constitution will take priority over many other possible rights the club may have to exclude the member. 

The key factor is the club constitution and by-laws. Many constitutions have not been reviewed to take this issue into account – and therefore may be inadequate if the club finds itself in a situation where it needs to suspend or ban a member. 

Rules that appear in many constitutions, and which often cause problems for clubs, include the following:

  • No clear right for a club to ban a member;
  • No right to cancel membership for inappropriate behaviour;
  • Not having a proper disciplinary process or the club not following the prescribed process;
  • An absolute right for a member to enter a club while membership is current;
  • A member has rights to appeal the cancellation of membership or exclusion; and
  • A member has rights to use the club during any appeal period.

Obtaining a professional review of your club’s constitution is a relatively quick and inexpensive process, and can prevent issues from arising in the long term. 

If you would like to discuss any concerns your club has on this or any other issue, please give us a call.

This article was written by Scott Vanderwolf, Solicitor, and Curt Schatz, Managing Partner

"The content of this publication is for reference purposes only. It is current at the date of publication. This content does not constitute legal advice and should not be relied upon as such. Legal advice about your specific circumstances should always be obtained before taking any action based on this publication."