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.
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.