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'Covert' Discrimination In Pubs, Clubs, Restaurants

Cafes, restaurants, pubs and clubs are allowed to deny entry to anyone, as long as they do not breach anti-discrimination laws. But with different state and territory laws there are some 'grey areas'.

According to the Australian Human Rights Commission, a business may have breached anti-discrimination law if they refuse service to a customer based on attributes including their age, sexual orientation, gender identity, marital status, race and disability.

Anti-discrimination law academic Professor Simon Rice from the University of Sydney says recent high profile cases -- where cafes or pubs have denied entry to certain people -- have raised questions about the clarity of the laws.

"When we look at anti-discrimination laws and why people are being refused service and entry we have to first examine what the basis is of the conduct that is being refused, for example using your mobile phone or being Aboriginal," he said.

Here's a quick rundown of cases that have made headlines:

Aussie Flags

Last week, a Sydney pub barred patrons from wearing the Australian flag on Australia Day.

"Today there is a dress code and that involves no Australian flag attire and accessories," the venue announced.

IMAGE: supplied

Banning 'Blacks'

According to the ABC, a Northern Territory pub is accused of banning 'blacks' and allegedly tried to block an Aboriginal man from collecting pokies winnings.

The secret audio recording obtained by the ABC revealed how the Darwin pub -- owner accused of banning Aboriginal patrons also allegedly tried to block an Indigenous man from collecting his winnings.

Mobile Phones

A NSW Central Coast restaurant has taken mobile phones off the menu, in a bid to encourage diners to talk to each other.

READ MORE: Cafe Offers Discount To Customers Who Give Up Their Phones While Dining

Neck Tattoos

In 2017, a Sydney make-up artist claimed she was refused entry at a popular waterside venue owned because of her neck and hand tattoos.

Sydney makeup artist Gordana Poljak believes her neck and hand tattoos were the reason behind her being refused entry to a popular pub in Sydney's eastern suburbs.

Hi-Vis Clothes, UGG Boots And Rats Tails

A Perth hotel copped flak for its dress code guidelines which bans workwear, high-visibility clothing or Ugg boots. 'No effort - no entry,' the sign on the door read at the time.

Also banned were 'steel-capped boots', 'dirty stained or otherwise poorly maintained clothing', 'singlets or tank tops', 'thongs or sandals', 'tracksuits', and 'fleeced hoodies'.

IMAGE: supplied

Disability Mix-Up

Last year a Sydney pub admitted it "screwed up" after security staff refused entry to a young woman with cerebral palsy, believing she was drunk. The inner-Sydney establishment apologised "unreservedly" on its Facebook page after they learnt of the woman's disability.

What Is Discrimination And What Is Fair Game?

Rice says the quick test is to look at the 'attribute' that is being denied.

"Mobile phone use as an attribute is not an unlawful basis to discriminate, the law doesn't protect it in its list of attributes."

"But let's say for example we can prove that people under the age of 25 are more likely to be on the phone in a restaurant than those in their 60s then you may be able to argue that indirectly targets a protected attribute which is age.

That's a grey area of the law, he said.

However,  if a restaurant says that everyone is welcome but only provides a dozen stairs to get in, Simon says then that more clearly discriminates against older people or those with a disability.

"Also saying someone can't come in because they are Aboriginal is a much more clear cut case of discrimination."

It's covert discrimination that is much harder to prove, says Simon.

For example, if a pub bans certain haircuts or UGG boots and singlets, it may indirectly target certain people.

"Its why we have laws about indirect discrimination. They may not come out and say we don't want 'bogans' here but by banning neck tattoos, UGG boots and rats tails it could be seen to be targeting certain people"

In the ACT and Victoria there are laws that stop discrimination of physical attributes. It provides some, although limited, protections for physical discrimination.

But Rice warns it can be quite difficult to prove.

"You'd need expert evidence, a social science researcher who can speak to and prove, for example, that undercut haircuts are most prevalent among young Middle Eastern men.

And therefore banning these haircuts could be seen to be targeting people of a certain ethnicity," he said.

The Business Perspective

Pauline Wright President of the NSW Council for Civil Liberties says protecting people against discrimination, and ensuring Australians their have civil liberties upheld, is "a fine line to tread".

"If you don't want mobile phones and you want a peaceful place where people can talk that's fair game. That's a business decision," she told 10 daily.

At the same time, she argues, people have the freedom to dress and be styled as they choose.

"People should be able to wear what they want when they go out and the best thing to do is vote with your feet and take your business somewhere else," she said.

Wright says a dress code is something -- as a society -- Australians have come to accept, so she does not see it as a civil right breach.

She said Australia has a good balance between providing freedom and also laws that protect against discrimination.

What To Do If You Feel Discriminated Against

Rice says more than 95 percent of cases are resolved at conciliation stage and don't have to go before the courts and test the law.

If you feel you have been discriminated against by a business, you can make a complaint to your state discrimination board.

Contact the author alattouf@networkten.com.au