Published by Geoff Harrison | 8 June 2024
There are a number of different Banning Orders that can be made under the Liquor Act 2007 ('the Act'). Under s78 of the Act, the Authority ('the Liquor and Gaming Authority') may, by order in writing given to a person, prohibit the person from entering or remaining on the licensed premises specified in the order. Whereas, a temporary banning notice under s116F of the Act, a police officer may, by an order in writing, prohibit the person from entering or remaining on any licensed premises in the prescribed precinct and in any other adjacent precinct specified in the order for the period (not exceeding 48 hours) specified in the order. A long terrm baning notice under s116G of the Act prohibits a person from entering or remaining on any high risk venue for such period (not exceeding 12 months) as is specified in the order.
A long-term banning order made under s116G can be subject to administrative review as per s116H of the Act, whereas banning orders made under s78 of the Act are not subject to administrative review. The distinction was noted by Britton, Principle Member in EJH v Independent Liquor and Gaming Authority at [8]:
As stated above, the Tribunal has administrative review jurisdiction in respect of “long term banning” orders made under s 116G. Such orders and banning order made under s 78 are not one and the same thing. Contained in Division 4 (Prescribed Precincts) of Part 6 (Miscellaneous Offences and Regulatory Controls), s 116G gives the Authority the power to make a “long-term banning order” prohibiting a person from entering or remaining on any “high risk venue” for a period not exceeding 12 months. In contrast, s 78 which is contained in Division 2 (Exclusion of Persons from Licensed Premises) of Part 5 (Regulation and Control of Licensed Premises), gives the Authority power to make an order prohibiting a person from entering or remaining in the licensed premises specified in that order: 78(1).
Under s78 of the Act, the Authority may make an order only if the Authority is satisfied that the person, the subject of the proposed order, has repeatedly been intoxicated, violent, quarrelsome or disorderly on or in the immediate vicinity of licensed premises.
For a temporary order under s116F of the Act, a police officer may give a temporary banning order after a person:
(a) refuses or fails to comply with a direction under section 198 of the Law Enforcement (Powers and Responsibilities) Act 2002 to leave licensed premises in the prescribed precinct or a public place in the vicinity of such licensed premises, or
(b) fails to leave licensed premises in the prescribed precinct after being required to do so under section 77(4) because the person is intoxicated, violent, quarrelsome or disorderly, or
(c) contravenes section 77(6) or (8) in relation to licensed premises in the prescribed precinct.
For a long-term banning order, the Authority may make an order under s116G only if the Authority is satisfied that the person the subject of the proposed order:
(a) has been charged with, or found guilty of, a serious indictable offence involving violence that was committed by the person in a public place or on relevant premises while the person or any victim of the offence was affected by alcohol, or
(a1) has been charged with, or found guilty of, a serious indictable offence involving violence that was committed by the person on or in the vicinity of licensed premises and the person was, at the time of the offence--
(i) the licensee or manager of the premises, or
(ii) working or performing services of any kind on the premises in the course of any employment (whether paid or unpaid) or in a volunteer capacity, being work or services related to the business carried on under the licence, or
(b) has been given 3 temporary banning orders during a period of 12 consecutive months.
Cases:
Von Furstenrecht v Independent Liquor and Gaming Authority [2019] NSWCATAD 78
Sideris v Independent Liquor and Gaming Authority [2018] NSWCATAD 165
Commissioner of Police, NSW Police Force v Monastirski [2017] NSWCATAP 225
Monastirski v Independent Liquor & Gaming Authority [2017] NSWCATAD 115
EJH v Independent Liquor and Gaming Authority [2021] NSWCATAD 7
Other Sources:
Extracted Legislation:
LIQUOR ACT 2007 - SECT 78 Banning orders
Banning orders
(1) The Authority may, by order in writing given to a person, prohibit the person from entering or remaining on the licensed premises specified in the order.
(2) An application for an order under this section may be made by--
(a) the Secretary, or
(b) the Commissioner of Police, or
(c) a licensee who is a party to a local liquor accord, or
(d) any other person (or class of persons) prescribed by the regulations.
(3) The application must be in the form approved by the Authority.
(4) The Authority may make such an order under this section only if the Authority is satisfied that the person the subject of the proposed order has repeatedly been intoxicated, violent, quarrelsome or disorderly on or in the immediate vicinity of licensed premises.
(5) The regulations may prescribe other circumstances in which the Authority is authorised to make an order under this section.
(6) An order under this section must specify a period (not exceeding 6 months) during which the order is in force.
(7) In deciding whether to make an order under this section, the Authority is not to take into consideration the person's race or ethnic or national origins.
(8) A person who is the subject of an order under this section must not enter or attempt to enter, or remain on, the licensed premises to which the order relates.
Maximum penalty--50 penalty units.
LIQUOR ACT 2007 - SECT 116B
Interpretation
(1) In this Division--
"high risk venue" --see subsection (2).
"licensee ban" means the exercise by a licensee of premises in a prescribed precinct of a right referred to in section 77(13) to refuse to admit, or turn out, any person from the premises.
"long-term banning order" means an order under section 116G.
"temporary banning order" means an order under section 116F.
(2) A
"high risk venue" is a venue situated in a prescribed precinct comprising--
(a) licensed premises--
(i) on which liquor may be sold for consumption on the premises, and
(ii) that are authorised to trade after midnight at least once a week on a regular basis, and
(iii) that have a patron capacity (as determined by the Secretary) of more than 120 patrons, or
(b) licensed premises specified by, or of a class specified by, the regulations, or
(c) licensed premises that are designated by the Secretary under subsection (4).
(3) The regulations may create exceptions to subsection (2)(a).
(4) The Secretary may, with the concurrence of the Commissioner of Police, designate any specified licensed premises (or licensed premises of a specified class) in a prescribed precinct as a high risk venue if the Secretary is satisfied that there is a significant degree of alcohol-related violence or other anti-social behaviour associated with the premises.
(4A) However, the Secretary, when designating premises as a high risk venue, must not take into account the presence of a dance floor or area ordinarily used by patrons for dancing.
(5) The designation of licensed premises as a high risk venue is to be made by order in writing given to the licensee. Any such order takes effect on the date specified in the order (being a date that is not earlier than 6 weeks from the date the order is given).
Note : A decision of the Secretary to designate licensed premises as a high risk venue is reviewable by the Independent Liquor and Gaming Authority under the Gaming and Liquor Administration Act 2007 --see section 36A of that Act.
LIQUOR ACT 2007 - SECT 116C
Prescribed precincts
(1) The regulations may declare an area described in the regulations to be a
"prescribed precinct" for the purposes of this Act.
(3) A reference in this Act to premises situated in a prescribed precinct includes a reference to premises--
(a) that front or back onto, or abut, any street or part of a street within the prescribed precinct, or
(b) that can be entered from any such street or part, or
(c) that the regulations declare to be situated in the prescribed precinct.
(4) Except in the case of the Kings Cross precinct, an area may be declared to be a prescribed precinct by reference to a map signed by the Minister and deposited in Liquor and Gaming NSW, Department of Enterprise, Investment and Trade.
(5) Any such maps are to be kept and made available for public access in accordance with arrangements approved by the Minister.
LIQUOR ACT 2007 - SECT 116F
Temporary banning orders--licensed premises in prescribed precinct and adjacent precincts
(1) A police officer may, in the circumstances described in subsection (2), by order in writing given to a person who is in a prescribed precinct (a
"temporary banning order" ) prohibit the person from entering or remaining on any licensed premises in the prescribed precinct and in any other adjacent precinct specified in the order, for the period (not exceeding 48 hours) specified in the order.
(2) A temporary banning order may be made as soon as practicable after the person--
(a) refuses or fails to comply with a direction under section 198 of the Law Enforcement (Powers and Responsibilities) Act 2002 to leave licensed premises in the prescribed precinct or a public place in the vicinity of such licensed premises, or
(b) fails to leave licensed premises in the prescribed precinct after being required to do so under section 77(4) because the person is intoxicated, violent, quarrelsome or disorderly, or
(c) contravenes section 77(6) or (8) in relation to licensed premises in the prescribed precinct.
(3) A police officer must not give a person a temporary banning order unless the officer is satisfied that the conduct of the person which resulted in the person being required to leave (or being refused admission to) the licensed premises or other public place concerned is likely to continue and cause a public nuisance or risk to public safety in the prescribed precinct and in any other adjacent precinct specified in the order.
(4) A temporary banning order--
(a) does not have effect unless it is given by, or given with the approval of, a police officer of or above the rank of sergeant, and
(b) must specify the grounds on which it is given.
(5) A person who is the subject of a temporary banning order must not enter or attempt to enter or remain on any licensed premises in the prescribed precinct or any other adjacent precinct specified in the order during the period specified in the order.
Maximum penalty--50 penalty units.
(6) A reference in this section to licensed premises does not include a reference to a licensed restaurant that is not authorised to trade after midnight on any day of the week unless it is a high risk venue.
LIQUOR ACT 2007 - SECT 116G
Long-term banning orders--high risk venues
(1) The Authority may, by order in writing (a
"long-term banning order" ), prohibit a person from entering or remaining on any high risk venue for such period (not exceeding 12 months) as is specified in the order.
(2) A long-term banning order may only be made on application by the Commissioner of Police in the manner approved by the Authority.
(3) The Authority may make a long-term banning order only if the Authority is satisfied that the person the subject of the proposed order--
(a) has been charged with, or found guilty of, a serious indictable offence involving violence that was committed by the person in a public place or on relevant premises while the person or any victim of the offence was affected by alcohol, or
(a1) has been charged with, or found guilty of, a serious indictable offence involving violence that was committed by the person on or in the vicinity of licensed premises and the person was, at the time of the offence--
(i) the licensee or manager of the premises, or
(ii) working or performing services of any kind on the premises in the course of any employment (whether paid or unpaid) or in a volunteer capacity, being work or services related to the business carried on under the licence, or
(b) has been given 3 temporary banning orders during a period of 12 consecutive months.
(4) The Authority may not make a long-term banning order unless the person the subject of the proposed order has been given notice of the application for the order and has been given a reasonable opportunity to make submissions to the Authority in relation to the application.
(5) In deciding whether to make a long-term banning order on the ground that a person has been given 3 temporary banning orders, the Authority may take into consideration the circumstances that resulted in the person being given those orders.
(6) A long-term banning order takes effect on the date specified by the Authority in the order. Notice of the making of the order is to be given to the person who is the subject of the order, but failure to give notice does not affect the operation of the order if a reasonable attempt has been made to notify the person.
(7) As soon as practicable after the Authority makes a long-term banning order, the Authority is to provide such persons or bodies (if any) as are prescribed by the regulations with the following information--
(a) the name and address of the person who is the subject of the order,
(b) the period that the order is in force.
(7A) A long-term banning order made on the ground that a person has been charged with, or found guilty of, a serious indictable offence is revoked if the charge is withdrawn or dismissed or the finding is overturned on appeal.
(8) A person who is the subject of a long-term banning order must not enter or attempt to enter or remain on any high risk venue during the period specified in the order.
Maximum penalty--100 penalty units.
(9) In subsection (3)(a)--
"public place" includes a place--
(a) of public resort open to or used by the public as of right, or
(b) for the time being--
(i) used for a public purpose, or
(ii) open to access by the public,
whether on payment or otherwise, or
(c) open to access by the public by the express or implied permission of the owner of the place, whether the place is or is not always open to the public.
"relevant premises" means any of the following--
(a) licensed premises,
(b) premises declared under section 3 of the Restricted Premises Act 1943 to be premises to which Part 2 of that Act applies,
(c) premises on which the activities of a criminal group (within the meaning of Division 5 of Part 3A of the Crimes Act 1900 ) are carried out.
(10) A reference in subsection (3) to a serious indictable offence includes a reference to an offence under the law of another State or Territory that would, had it occurred in New South Wales, have been a serious indictable offence for the purposes of that subsection.
LIQUOR ACT 2007 - SECT 116H
Administrative review by Civil and Administrative Tribunal of long-term banning orders
(1) A person who is the subject of a long-term banning order may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the Authority's decision to make the order.
(2) Section 53 of the Administrative Decisions Review Act 1997 does not apply in relation to the Authority's decision to make a long-term banning order.
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