TATTOOS AND PUBS - SOME PRELIMINARY THOUGHTS

A Christchurch man was refused entry to a bar because of his facial tattoos. He was not wearing gang patches, nor was he intoxicated. Can bars refuse anyone on the basis of tattoos? What about tā moko, the permanent body and face marking by Māori?

Technically, the refusal of entry to a bar amount to a revocation of the implied licence for a member of the public to enter the premise. At that point, the person refused entry, should they remain, commits a trespass. Pubs and bars are private businesses and they at first blush appear to have the right to determine who can enter their premises or not. However, it may not be as simple as that.

The sale of alcohol to the public is an activity that is tightly regulated. You cannot serve alcohol to the public without meeting strict regulatory criteria. You must be licenced to supply and serve alcohol.

Arguably the Human Rights Act 1993 applies:

133  Licences and registration
(1)   Where any person is licensed or registered under any enactment to carry on any occupation or activity or where any premises or vehicle are registered or licensed for any purpose under any enactment, and where the person or other authority authorised to renew, revoke, cancel, or review any such licence or registration is satisfied—

(a) that in the carrying on of the occupation or activity; or

(b) that in the use of the premises or vehicle,—

there has been a breach of any of the provisions of Part 2, the person or authority, in addition to any other powers which that person or authority has, but subject to subsection (2), may refuse to renew or may revoke or cancel any such licence or registration, as the case may require, or may impose any other penalty authorised by the enactment, whether by way of censure, fine, or otherwise.

(2)  Any procedural requirements of the enactment, including any whereby a complaint is a prerequisite to the exercise by the person or authority of its powers under the enactment, shall be observed.

(3)  In any case in which any of the powers conferred by subsection (1) are exercised,—

(a) the person or authority shall in giving its decision state that the decision is being made pursuant to subsection (1); and

(b) any person who would have been entitled to appeal against that decision if it had been made on other grounds shall be entitled to appeal against the decision made pursuant to subsection (1).

(4)  In this section the term enactment means any provision of any Act, regulations, or bylaws.

This being so, a bar or pub clearly conduct a business that requires a licence pursuant to the Sale of Liquor Act 1989. Part 2 of the HRA states:

21A Application of this Part limited if section 3 of New Zealand Bill of Rights Act 1990 applies
(1) The only provisions of this Part that apply to an act or omission of a person or body described in subsection (2) are—

(a) sections 21 to 35 (which relate to discrimination in employment matters), 61 to 64 (which relate to racial disharmony, and social and racial harassment) and 66 (which relates to victimisation); and

(b) sections 65 and 67 to 74, but only to the extent that those sections relate to conduct that is unlawful under any of the provisions referred to in paragraph (a).

(2) The persons and bodies referred to in subsection (1) are the ones referred to in section 3 of the New Zealand Bill       of Rights Act 1990, namely—

(a) the legislative, executive, and judicial branches of the Government of New Zealand; and
 (b) every person or body in the performance of any public function, power, or duty conferred or imposed on that person or body by or pursuant to law.

Pubs and bars are private businesses but it can be argued they conduct a public function, and have  duties, imposed on them pursuant to law (the sale and supply of alcohol to the public). This interpretation is consistent with a purposive and rights affirming reading of the Bill of Rights Act, as expressed in the Acts long title:

An Act - (a) to affirm, protect, and promote human rights and fundamental freedoms in New Zealand

This being said the bar or pub a person may well fall foul of the HRA and the New Zealand Bill of Rights Act 1990 if it can be shown that the decision to bar them was discriminatory on grounds of sex, race, disability, religion, freedom of expression or sexual orientation.

So in the case of a Christchurch man excluded from a bar because of his facial tattoos, it is arguable that the bar must conduct its business, that is in serving the public alcohol, in a manner consistent with the Bill of Rights Act 1990.

It is axiomatic that persons subject to BORA are bound by the BORA and must exercise their discretionary powers consistently with the BORA. This is explicitly required by s6 BORA.

Section 5 of the BORA provides that the rights and freedoms contained in the Act may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

In determining whether a limitation on a right is “demonstrably justified”, the Court of Appeal in its Moonen decision set out its own test to determine whether or not a limitation is “demonstrably justified” (Moonen v Film and Literature Board of Review (1999) 5 HRNZ 224, 234 Para [18]):

1) Identify objective which the Legislature was endeavouring to achieve by the provision in question;

2) Assess the importance and significance of that objective;

3) The way in which the objective is statutorily achieved must be in   reasonable proportion to the importance of the objective;

4) The means used must also have a rational relationship with the objective;

5) In achieving the objective there must be as little interference as possible with the right or freedom affected;

6) The limitation involved must be justifiable in light of the objective.

In Moonen the Court stated, “where an enactment can be given a meaning that is consistent with the rights and freedoms contained in the Bill of Rights, that meaning shall be preferred to any other. Thus if there are two tenable meanings, the one which is most in harmony with the Bill of Rights must be adopted” (Moonen v Film and Literature Board of Review (1999) 5 HRNZ 224, 233 Para [16]).

When considering the meaning of the words “promotes or supports” in Section 3 of the Films, Videos, and Publications Classification Act 1993 the Court emphasised that a Bill of Rights consistent approach was required and that those words had to be given such available meaning which impinges as little as possible on freedom of expression. 

The Moonen test underwent a slight refinement in Hansen v The Queen [2007] NZSC 7; [2007] 3 NZLR 1; (2007). The majority of the Court approved the methodology of Richardson J in Noort. McGrath J gave the most thorough outline of the approach to be taken, which was broadly consistent with that of Blanchard, Tipping and Anderson JJ (at [192]). The Court recognised that an obvious first step was to ascertain whether there was a prima facie conflict between an enactment and a Part II right (at [92]).

If an inconsistency does arise, the Court will apply s 5 to determine whether the limitation upon the Part II right is demonstrably justified. 

Further, where someone is barred from a pub they may have a legal ground of challenge where the decision to bar them was discriminatory on grounds of sex, race, disability, religion, freedom of expression or sexual orientation and therefore would fall foul of laws which prohibit discrimination on those grounds in the provision of goods and services.

Obviously there are occasions where these rights can be limited. But such limitations must be demonstrably justified. So it may not be clear-cut. Human rights are engaged. Pubs and bars are private businesses but they have public duties imposed by law. Watch this space