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Radio interview on Jenny Seaton's CurtinFM afternoon program - The Law on Dress Codes

Jenny:

I’m sure most of us have been in this situation at some time or another during our lifetime, especially in summer. You’ve been down the beach or you’re at the park, you round the river, got a bit of zinc on your nose, you’ve got your pluggers on I suppose, and sands all in the wrong places, and you think, “I’ll just nick up and have a coffee and something to eat.” And then you are faced by the dress code sign. Oh my goodness. You’re not allowed to enter because of… And joining me right now, to make it clear whether this is legal or not, is Mr. Steven Brown, who is the director of Lynn & Brown Lawyers. Hello, Steven.

Steven Brown:

Hello, Jenny. Good afternoon listeners as well.

Jenny:

Come on, be honest. Have you been caught out?

Steven Brown:

Oh, definitely. I can remember being on a holiday in my youth on the Gold Coast and we went to go in somewhere, and got halfway through the entry and someone came running across the floor and pulled us out.

Jenny:

It does, you know you feel like you’re a second rate citizen, don’t you? If something like that happens.

Steven Brown:

You do, especially when there’s a bit of a crowd around the entry.

Jenny:

I hate to ask what you were wearing at the time, to be honest. Those ugly board shorts or something were they?

Steven Brown:

Was something garish like that.

Jenny:

Something garish or it doesn’t really matter. But it is interesting, I mean, I don’t know whether the pandemic has probably reinforced the sign of about requirements for entry, but there’s been a bit more of a focus on our legal rights. Are we talking about people that aren’t dressed correctly or are they sort of showcasing something that they believe in that could be offensive?

Steven Brown:

Yeah, I think there’s a real mixture of it going on. I think people like to express themselves, especially in their younger years with some of the haircuts that are on trend, like the mullet. We also see a lot of people nowadays tattooed and what we’ve seen is the Cottesloe Beach Hotel had some issue recently where they turned a few gentlemen away for having mullets.

Jenny:

Interesting.

Steven Brown:

Then apologized the day after and said, “No, we shouldn’t have done that.” And we saw this happen at El Grotto in 2020 as well, that they got some bad publicity on turning people away with mullets. We’ve also sent some restaurants in Sydney recently having policies of no tattoos allowed in their premises. And the question then comes, you know, is that discriminatory? Can you allow for some people to enter and some people not to enter your business?

Jenny:

It’s a very good point. The situation of the mullets. I mean, not all of us agree that they’re the most attractive haircut that we’ve seen around, but I thought they disappeared, but they’re back again, you’re right at the moment. And some people are just being a bit cheeky aren’t they, by doing that? And I’m just wondering whether the venue has a sort of an image of their venue, as being something that’s a bit more discreet, and they just don’t like that situation where people can look at them and laugh at them and think they shouldn’t be here, you know to create conversation? And tattoos, there’s a bit of a statement out there with tattoos, don’t you think?

Steven Brown:

Yeah, most definitely. You know we’ve seen then also, to add to the mix, the WA State Government recently have the outlaw bikie gangs not allowed to wear any tattoos or insignias on jackets or clothes or anything of that nature, which is quite legal for them to do quite specific. But the other ones, we’re also seeing some businesses now saying you can’t enter our business, even though we’re not mandate to, unless you’re double vaccinated.

Jenny:

Yeah, good point. This is why we’re having a chat with you today. And thanks for getting in touch with us about this. Because it isn’t that clear, we’ve seen quite a few and heard of quite a few incidents where people get very angry, don’t they, about this? Look, if you had a venue for example, let’s go back to a day on the beach and you’ve come up, you’ve got sand and zinc and whatever shouldn’t be there, and you want to have a coffee and they say, “Well, you can’t come in because you’ve got thongs on,” or you’re not looking that good. What about those locations? Should they not make more of an allowance for that sort of patronage?

Steven Brown:

Well, I think the establishment is weighing up two things there, aren’t they? They’re weighing up both the ambience of the place and what image do they want to set?

Jenny:

Yeah, that’s right.

Steven Brown:

But also the adverse publicity that we are seeing these type of venues get when they turn people away.

Jenny:

Yep.

Steven Brown:

So they’re having to balance both of that up. Will they turn off some of their customers, if they let anyone in, or the bad publicity by turning people away, will that turn a whole lot more people off, that would’ve been their customers.

Jenny:

Yeah.

Steven Brown:

And then on the back of all, that is this question of legality of it.

Jenny:

That is exactly what we want to find out from you. You know, mullets, thongs, singlets, tattoos, not allowed, are they able to do that? Is it legal?

Steven Brown:

So quite complex in Australia, the mix of discrimination law. So we’ve got multiple pieces of federal legislation that deal with discrimination, but basically what that comes down to, if you distill it to a simplest thing, is there are several things that you cannot discriminate against in Australia. That being age, disability, race, sex, intersex status, gender identity, and sexual orientation. They’re the things that have been legislated that you cannot distinguish people on the ground of. So if we then distill that into these sort of things, mullets, thongs, singlets, tattoos, are they one of those protected attributes?

Jenny:

I don’t think so.

Steven Brown:

Probably not, exactly. So what the law says is if you aren’t discriminating on one of those attributes, you can set certain standards and you’re perfectly within your rights to exclude people, so long as it doesn’t affect one of those attributes.

Jenny:

Ah, okay. So if you had somebody that had a sexual deviation or sexual choice or whatever, other than what they were male or female, but they had tattoos, they’re only allowed to be discriminated against because of the tattoos, obviously.

Steven Brown:

So long as the person behind them in line with tattoos on, is also excluded, they’re probably okay.

Jenny:

So, how does this stand?

Steven Brown:

They have some signs up and make it clear that’s what the basis is and what your standards are.

Jenny:

Yeah, that’s a very murky situation. Steven, how does it stand then, if somebody is very offended and they are within those areas of mullets, thongs, singlets, tattoos? I mean, you wouldn’t go into a restaurant in the city at night or restaurant at night, obviously, surely dressed like that. But if you’re in a sort of surrounding that is sort of similar, you know in keeping with that area, what can you do if you’re offended?

Steven Brown:

I’ll show my age here, Jenny. So I can remember being about early 20s when the casino in Perth opened up.

Jenny:

Yep.

Steven Brown:

I remember going out to a night at the casino was a big deal because everyone got dressed up.

Jenny:

They did.

Steven Brown:

If you walk into the gaming floor of the casino nowadays, it is a very different environment that you walk into. So, what the people tend to do, that are excluded, is they can speak to the media and they get some exposure, and it’s usually then seen as adverse publicity for the venue. And so venues, I think now are quite careful in what they do.

Jenny:

Yeah. You know, it’s interesting you mentioned the casino because I was thinking exactly the same thing when I knew we were going to speak about this today. But there was a very strict dress code, as were a lot of restaurants, and you know you go to a three or four star restaurant now and you often see men particularly with jeans and jacket coming in, and jeans were never accepted, were they?

Steven Brown:

No, that’s exactly right. And I think that’s a changing society standard.

Jenny:

Yeah, definitely.

Steven Brown:

You know, society is becoming less and less formal. For good or bad, it clearly is a direction that we’re going in.

Jenny:

Oh look there’s no doubt about it, life is like that, and I think everyone does enjoy that sort of feeling that you can be more yourself. But I do still think, and I don’t know whether it’s the old English tradition of respect for where you are going, that sometimes we just have to comply to that.

Steven Brown:

Yeah, that’s right. And sometimes it’s nice be a little bit dressed up and make it a special occasion, it’s not just putting your t-shirt and jeans on and going down the corner pub, but it’s something, you know we’re going out somewhere tonight that’s a little bit different, so let’s dress accordingly.

Jenny:

Actually I was talking to Peter Waltham about this before we came on air today and he was saying, even at a funeral, he has seen people turn up in their shorts and thongs. I mean that really, don’t you think, you can’t have a sign up to say you can’t enter because of respect for the person that’s passed away. But the thing is surely people must. I see them at coffee in singlets and thongs. And you know women make an effort, I just wish the blokes would a bit more, just quietly.

Steven Brown:

And it sort of depends on the location too, doesn’t it?

Jenny:

Yes, yeah.

Steven Brown:

There’s a cafe on Scarborough Beach, you probably should be quite alright to walk up.

Jenny:

Yes, exactly.

Steven Brown:

With your boardshorts and t-shirt on. But if you’re on St Georges Terrace, you probably want to wear something slightly different.

Jenny:

We can only hope so. I wonder how long the mullet’s going to be around with us as well. I hope you haven’t got one Steven.

Steven Brown:

No.

Jenny:

No.

Steven Brown:

Not at all. I think it would be problematic for me walking into court with one. I’m not an AFL supporter.

Jenny:

Good point. No, it’s a very interesting topic, indeed. And look, thank you very, very much for joining us and telling us about that today.

Steven Brown:

Thank you very much, Jenny.

Jenny:

Thank you. That’s Mr. Steven Brown. And he is of course with, director, I should say of Lynn & Brown Lawyers.

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