You can stop someone from entering your business, or refuse to serve someone, as long as you don’t breach any anti-discrimination laws.
What it means to discriminate
According to the Australian Human Rights Commission, you could be found to have breached anti-discrimination law if you refuse service to a customer based on certain attributes, such as their:
When discriminating is allowed
In some circumstances, discriminating against a customer may be allowed under anti-discrimination law. For example:
- When you’re acting in a way that is intended to reduce a disadvantage experienced by people with an attribute that is covered under the law. For example, providing specialised counselling services only for young people or specialised health services for women.
- When factual evidence supports that the discrimination is reasonable in the circumstances. For example, where an insurance company can show that a refusal to provide a policy to a person is based on statistics or actuarial data which is reasonable for the company to rely on.
In some cases, these types of circumstances are already allowed under discrimination laws, and you don’t need to do anything. In other cases, you’ll need to apply for an exemption under either state or territory or Commonwealth laws.
To check whether you need to apply, get advice from the relevant government agency (see below for more) or a legal professional.
When refusing a customer may be breaking the law
Consider these situations:
- A caravan park refuses to allow a booking for a group of 18 year olds because they’re concerned about them being ‘rowdy’.
- A hotel refuses to accept a room booking for a same-sex couple because gay relationships make them feel uncomfortable.
- A coffee shop manager refuses to serve someone because they’ve had other customers of the same racial background cause trouble in the past.
- A furniture store refuses entry to someone who uses a guide or assistance dog because they are worried the guide dog will cause damage to their products.
You’re correct if you think these businesses could be breaching anti-discrimination law. This is because the business is refusing service based on an attribute covered by anti-discrimination law: age, sexual orientation, race, and disability.
For example, you cannot discriminate, refuse entry or service to someone legally accompanied by a working guide, hearing or assistance dog, even if you generally don't allow customers to bring animals into the premises.
Working guide dogs are assistance animals, and by law, are allowed access to any public areas accessed by customers. This includes indoor & outdoor dining areas, pubs, clubs, supermarkets, cafes, restaurants, taxis and public transport, to name a few.
When refusing a customer is allowed
You can refuse a customer as long as you’re not discriminating. Here are some common reasons businesses may refuse customers and examples of when it’s allowed:
- Dress code Example: A customer comes to your restaurant with thongs on. You refuse them entry because you have a house rule that bans thongs. This is OK if you apply the rule equally to everyone. You can’t only apply the rules to a certain group of people (such as only men and not women), or apply rules that certain groups can’t meet. Note : In some states, the rules are different. For example, under SA laws about dress codes, you must apply the rule equally to everyone. But under WA laws about dress codes, it’s OK to only apply dress codes to one sex if it reflects current community standards for men and women, such as banning sleeveless tops for men only at an upmarket wine bar.
- Disruptive behaviour Example: When a group of teenagers approaches your cafe, you refuse entry because the same group has caused trouble before and the police had to be called. This is OK, since you’re refusing them because of your experience of their past behaviour, not because of their age
- Legal requirements Example: You refuse to serve alcoholic drinks to customers under 18 years of age. This is OK because according to the law you’re not allowed to serve alcohol to under-age customers.
- Safety reasons Example: You refuse entry to an amusement park ride because an 11 year old doesn’t have an adult accompanying them. It’s OK to refuse based on age if there are reasonable safety concerns.
Who to contact
Both the Federal government and the state and territory governments have laws covering discrimination. While they generally cover the same things, the laws apply in slightly different ways, so you’ll need to check both:
- Commonwealth discrimination laws Take a look at the Australian Human Rights Commission’s Good practice good business factsheets. If you have questions, contact the Commission.
- The discrimination laws of the state or territory in which your business operates
Find out more from the government agency in your state or territory:
- ACT - Human Rights Commission
- NSW - Anti-Discrimination Board
- NT - Anti-Discrimination Commission
- QLD - Anti-Discrimination Commission
- SA - Equal Opportunity Commission
- TAS - Office of the Anti-Discrimination Commissioner
- VIC – Equal Opportunity & Human Rights Commission
- WA – Equal Opportunity Commission