If you dress in patriotic clothing on Australia Day, can venues legally restrict your entry?

On Australia Day, thousands of Australians are expected to adorn themselves in patriotic colours.
Given prevailing concerns about the effect outward displays of national pride can have on others,
some private venues may opt to refuse entry — but is it legal?
(Photo by Chris Hopkins / Getty Images)

By Mark Giancaspro and Peta Spyrou

While the debate continues to rage over the suitability of the date, for the most part our nation continues to celebrate Australia Day on 26 January each year. Many establishments, such as pubs and shops, cash in our patriotism by offering special goods and services on the day — including green-and-gold clothing and “Australian” merchandise, or drink specials for those wearing national colours.

But in this age of heightened political and cultural sensitivity, some retailers have attempted to forego involvement in the Australia Day controversy altogether — sometimes with negative consequences.

For example, last year supermarket giant Woolworths announced that it would not be selling Australia Day merchandise in its stores, citing declining sales and better awareness of the bitter disagreement surrounding the date. But following intense public backlash, it reversed its decision this year.

In 2025, Australia Day falls on a Sunday, and thousands of Australians are expected to adorn themselves with Australia-themed merchandise to frequent pubs, shops and other venues. Given prevailing concerns about the consequences outward displays of national pride can have for others, some private venues may opt to refuse entry to those donning patriotic colours.

But is it legal to do so? Can those venues bar you from entry based on your decision to wear green-and-gold or drape yourself in the Australian flag? Or is this treatment discriminatory? 

Rights of entry

While you may not realise it, whenever you visit a shop or a pub, you are entering into a legal contract with them. Contracts do not have to be in writing. You can enter into a legally binding agreement simply by entering private property. It is common to see signage at the entrance to these kinds of establishments, telling you what the terms and conditions of entry are. By walking into the premises, you are agreeing to the terms on the signage. Those terms can say anything the venue likes, provided they are not otherwise unlawful.

As such, if one of the terms of entry stipulates a dress code, the venue has the right to refuse entry to any patron who violates that code. Some venues are specific in saying that certain items of clothing are not permitted — including thongs, tank tops, and even “fan gear”. If the term is broadly worded enough — such as reserving the venue’s right to refuse entry to any patron — then subject to other laws (which we discuss below) the venue will be legally permitted to say “no” to any patron wearing Australia Day colours.

That said, the terms on a sign are only binding under Australian contract law if three basic conditions are met:

That said, the terms on a sign are only binding under Australian contract law if three basic conditions are met:

the sign must be positioned at the entrance to the venue;

the sign containing the terms must clearly indicate that it is legal in nature;

• 
  and the terms in the sign must be reasonably brought to the patron’s attention.

You therefore want to pay careful attention to where the sign with the terms of entry is positioned. It must be at or before the point of contract formation — which is to say, when you enter the premises. So if the signage is contained deep within the venue, it likely will not be legally binding. Similarly, it must clearly indicate that it is a legal notice which affects your rights. Using gentle warnings and phrases — like “IMPORTANT, PLEASE READ” — will normally suffice. Finally, the sign has to bring the terms to your attention. It should be clear, have large enough font to be read with relative ease, use the right colours to make it stand out, and be positioned to catch your eye.

Importantly, you do not have to actually read the sign for the terms within it to bind you. If the sign meets the three criteria above and you decide to walk in, those terms are enforceable against you.

If a sign does all of this and the terms enable the venue to refuse you entry based on what you are wearing, then they can say no to anyone wearing Australia Day colours.

Is this discrimination?

Discrimination law in Australia applies in specific contexts, aiming to protect individuals from unfair treatment in areas of public life — including the provision of goods and services, such as shopping at a supermarket or going to the pub. While discrimination laws differ slightly across federal, state and territory jurisdictions due to variations in legislative wording, there are four common elements that need to be satisfied for a court to determine whether the conduct constitutes unlawful discrimination:

• 1.
  the person aggrieved needs to have a protected attribute or ground;
• 2.
  there needs to be an applicable duty bearer;
• 3.
  the conduct needs to be prohibited by the law (meaning no exemption applies);
• 4.
  and the allege discriminatory act is either ‘direct’ or ‘indirect’ in nature.

For example, if a supermarket (as in the second element) were to deny entry to someone wearing an Australian flag on top of their clothing, it is unlikely this would constitute unlawful discrimination unless it was found that the decision targets a protected attribute. 

Such protected attributes (and therefore the first element in the list above) may be “race” or “national or ethnic origin” under section 9 of the Racial Discrimination Act 1975 (RDA) or under equivalent state and territory laws. Sections 13 of the RDA prohibits denying or limiting access to goods or services due to a person’s race, national or ethnic origin, and this protection extends to their relatives or associates (this could be the third or fourth elements above).

First published at ABC News, January 16, 2025