Upholding whose right? Discretionary police powers to punish,collective ‘pre-victimisation’ and the dilution of individual rights

Abstract

This article uses the example of Victoria’s alcohol-related banning notice provisions to explore the changing conception of balance within criminal justice processes. Despite the formalisation of individual rights within measures such as Victoria’s Charter of Human Rights and Responsibilities Act 2006, the discretionary power of the police to issue on-the-spot punishments in response to actual or potential criminal behaviour has increased steadily. A key driver, evident across the parliamentary debates of the banning legislation, is a presumed need to protect the broader community of potential victims. As a result, the individual rights of those accused (but not necessarily convicted) of undesirable behaviours are increasingly subordinated to the pre-emptive protection of the law-abiding majority. This shift embodies a largely unsubstantiated notion of collective pre-victimisation. Significantly, despite the expectations of Victoria’s Charter, measures such as banning notices have been enacted with insufficient evidence of the underlying collective risk, of their likely effectiveness and without meaningful ongoing scrutiny. The motto of Victoria Police – Uphold the Right – appears to belie a growing uncertainty over whose rights should be upheld and how.

Keywords

Balance banning notices discretionary police powers individual rights pre-victimisation

Introduction

Over the last three decades, human rights declarations and conventions have formalised the rights and due process protections of those accused of criminal behaviour.¹ Much of the accompanying discourse has reflected and augmented evolving conceptions of victimisation, individual and collective rights, and their balance within criminal justice processes.² During the 1990s and early 2000s, theoretical and research literature typically aligned the notion of balance³ with a desire to improve (or ‘re-balance’) the needs and rights of victims of crime,⁴ when compared with alleged and convicted offenders. More recently, ‘re-balancing’ is evident in a re-drawing of the conceptual parameters which define a ‘victim’. Heightened by the post-9/11 terror threat, government and policing responses to national security concerns have challenged civil liberties and freedoms.⁵ The attendant rhetoric increasingly frames individual rights as subordinate to an expectation of public protection – which specifically encompasses the broader community of potential future victims. This was exemplified in Australia in December 2015 by a federal Liberal MP who, in proclaiming the threat to Australia’s way of life from global terrorism, declared:

Australian lives are at risk and our way of life is under threat … To date, Australia has been at pains to err in favour of the individual. It is now time to err consciously in favour of the vast majority of peace-loving Australians. (House of Representatives, 2015, p. 14369 [Nikolic, Liberal Party]).

The shift in the way in which rights are regarded and protected is not limited to matters of national and global concern. It is also evident across lower level criminal justice contexts. Perceived risks to public safety, resulting from factors such as anti-social behaviour, excess alcohol consumption and drug use have led to range of legislative and operational policing responses, which challenge individual rights.⁶ This article highlights one example: the discretionary police power to issue banning notices for alcohol-related violence and disorder in Victoria’s night-time economy (NTE). The rationale for the banning provisions and the manner of their imposition typify the changing way in which rights are prioritised. ‘Uphold the Right’ is regarded by Victoria Police (2014) to be ‘a fitting motto for any police service’. However, the legislative and operational policing response to issues of disorder and alcohol-related violence in Victoria underline a growing uncertainty over whose rights should be upheld and how.

The first part of this article introduces Victoria’s banning notice provisions. Their underpinning rationale is explored through a brief examination of the passage of the legislation through the Victorian Parliament. The effect of banning notices upon key rights and the compliance requirements of Victoria’s 2006 Charter of Human Rights and Responsibilities Act (‘Charter Act’/‘Charter’) are noted. The example of banning, including a number of issues with respect to the operational oversight and ongoing scrutiny of their use, is then discussed in the context of re-balancing, political expediency and expanding conceptions of victimisation.⁷ The article concludes by considering how responses to notions of dangerousness and undesirable behaviours are shifting the discourse of balance and rights.

Victoria’s banning notice provisions

The Liquor Control Reform Amendment Act 2007 (‘LCRA Act 2007’) was the first Victorian legislation to permit the police-imposed prohibition of individuals from defined public areas, initially for 24 hours. The LCRA Act 2007 empowered the then Director of Liquor Licensing to declare a ‘designated area’ if ‘alcohol-related violence or disorder has occurred in a public place that is in the immediate vicinity of licensed premises within the area’ (s147(1a)), and if it was believed that the imposition of banning notices may be effective in preventing further ‘alcohol related violence or disorder in the area’ (s147(1b)). Victoria's first two designated areas were declared in December 2007. Entertainment precincts across Metropolitan Melbourne and all major regional Victorian centres now have designated areas (VCGLR, 2015).

The LCRA Act 2007 afforded Victoria Police on-the-spot discretionary powers to ban individuals from the designated area for up to 24 hours (s148B(1,2)). This was increased to a maximum of 72 hours under the Justice Legislation Amendment (Victims of Crime Assistance & Other Matters) Act 2010 (‘JLA Act 2010’). A banning notice may be imposed if a police officer reasonably believes it to be effective in preventing the recipient from committing a specified offence (LCRA Act 2007, s148B(3)). A ban may also be issued in anticipation of disorderly or anti-social behaviours. There is no requirement for the officer to offer proof, to demonstrate intent to commit an offence or to record any witness information. The banning notice sanction is imposed immediately, there is no recourse to legal representation, and no capacity to appeal its imposition. If a recipient does not provide their details to the requesting officer (s148D), a financial penalty may be imposed. Police officers may use ‘reasonable force’ to ensure the banned person leaves the designated area (s148H).

Unlike other on-the-spot infringement penalties in Victoria, such as speeding fines, there is no opportunity to seek an independent review of a police decision to issue a banning notice. The only option for a recipient to appeal its effect upon their freedom of movement or its perceived validity is by written notice to a police officer above the rank of sergeant, who may ‘vary or revoke a banning notice’ (LCRA Act 2007, s148E). Although provisions do exist for more complex administrative reviews of legislative, executive and other agency decisions, no appeal against the imposition of an individual banning notice is permitted beyond the agency of Victoria Police. Breach proceedings may be initiated if a recipient contravenes their banning notice by entering the designated public area (LCRA Act 2007, s148F). Banning notice breaches are strict liability offences and operate under reverse onus principles, with penalties initially financial. In the event of persistent non-compliance or non-payment of the fine, summary court proceedings may be initiated, with the potential for criminal consequences, including imprisonment.

Parliamentary presumptions and justifications

Compliance with Victoria’s Charter Act requires analysis of the effect of all proposed legislation upon each of the 27 Charter Act rights. Section 7(2) of the Charter Act does permit limitations upon the human rights it upholds. However, sufficient justification must be evident and documented in a Statement of Compatibility (Charter Act 2006, s28) (‘the Statement’). The Statement is tabled in both Victorian Houses of Parliament (Legislative Assembly and Legislative Council) at the first reading of a Bill. If a Charter right is limited in any way by the proposed legislation, this limitation must be ‘demonstrably justified’ (Charter Act 2006, s7(2)). The formal Charter Act Guidelines assert that ‘assumptions will not be enough’ (Department of Justice, 2008, p. 42). It is expected that research material and empirical evidence will be presented to support any proposed limitation, and must reflect ‘societal concerns that are pressing and substantial … more than just a common good must be strived for’ (Department of Justice, 2008, p. 43). The Charter compliance processes and Hansard record of parliamentary debates have been examined in detail for both the LCRA Act 2007 and the JLA Act 2010. This section outlines the key assumptions and justifications used in support of the Bills.

The Statements of Compatibility for both banning Bills indicate a partial and/or flawed impact assessment. No evidence was presented in the 2007 or 2010 Statement to justify either the need to introduce banning notices or the way in which the provisions were acknowledged to limit the Charter rights to freedom of movement (Charter Act 2006, s12), privacy and reputation (s13), liberty and security (s21) or the presumption of innocence (s25(1)). No consideration was given in either Statement to the effect of the banning provisions upon the right to a fair hearing (s24) or the right to review a sentence (s25(4)). The parliamentary debates for both banning Bills built upon and accepted the incomplete and unsubstantiated presumptions in their Statements. In 2007, Labor member Thomson reflected the general sentiment:

… the levels of abuse around the inappropriate use of alcohol are increasing in and around some licensed venues, and we need to act on it. (Legislative Assembly, 2007b, p. 4072)

In 2010, Labor member Mikakos articulated the same underlying concerns:

I support any measures that aim to reduce alcohol-fuelled violence and crime … it is important that these sorts of behaviours in public are not tolerated and that the police are armed with appropriate means to respond to them. (Legislative Council, 2010, p. 1816)

Across the parliamentary debates in 2007 and 2010, a depiction of ‘this plague’ (Legislative Assembly, 2007a, p. 3998 [O’Brien, Liberals]) of alcohol-related disorder pre-dominated. However, no meaningful or accurate data was put forward to quantify the presumptions made across the parliamentary debates, and no direct relationship was made between the problems in the NTE that were articulated and banning notices as a solution. The discourse reflected an underpinning rhetoric of fear, with banning presented as an essential and appropriate response. Individual tragedies were used to embed a sense of moral panic by personalising the risk of alcohol-related disorder. Labor member Green typified this approach.

Other members have referred to the awful case of young James Macready-Bryan, who has been left with terrible brain damage following a brutal assault outside one of Melbourne’s nightspots last year. I have also heard about the recent experience of … Scott Dinnage, who was king-hit outside a licensed premises in another part of Melbourne. (Legislative Assembly, 2007a, p. 4007)

In 2007, a proposed amendment to permit judicial appeal of a ban was regarded by the incumbent Labor government as tantamount to encouraging drunken disorder. One Assembly member accused proponents of the amendment of giving tacit support to:

… people who are drunk charging around the suburbs [and] … trying to wreak havoc by allowing drunks and people who are drug affected to rampage through our communities, venues, shopping centres, neighbourhoods and streets … (Legislative Assembly, 2007c, p. 4405 [Batchelor, Labor])

A drive to ensure community protection in the face of a clear and present danger was repeated by both of the main political parties (the Labor government and Liberal/Nationals opposition) in 2007 and 2010. Liberal member O’Brien explicitly applied the language of fear in his depiction of the issues facing the NTE.

In a number of trouble spots throughout Victoria drunken hoons pose genuine threats to the property and physical safety of those who live nearby … the abuse of alcohol … [creates] a climate of fear for innocent people wishing to enjoy themselves responsibly. (Legislative Assembly, 2007a, p. 3998)

Advocates of the banning notice legislation emphasised the need to ensure community safety. Implied and assumed within this rhetoric was that banning works. Liberal member Napthine agreed with the presumed effectiveness of the banning notice provisions.

These powers will ensure that we have an effective and workable response to the issues of alcohol and antisocial behaviour. (Legislative Assembly, 2007b, p. 4070)

Labor member Foley stated the purpose of the provisions was ‘to make our streets safer’ (Legislative Assembly, 2007b, p. 4077). In 2010, the then Attorney-General Hulls directly linked the presumed problems in the NTE, community protection and banning notices:

The amendment is intended to increase the deterrent effect of banning notices, reduce the incidence of alcohol-related violence and disorder and, consequently, enhance public safety. (Legislative Assembly, 2010, p. 1132)

The stated need for public protection embodied the presumed moral axiom of the primacy of the rights of the wider law-abiding community who deserve protection from an undesirable minority. Descriptors such as ‘hoons’, ‘morons’ and ‘troublemakers’ were used across the parliamentary debates to highlight the undesirable, in a way that was relatable to the majority of Victorians. Labor Minister Robinson demonstrated a clear them/us divide when he asked Liberal members supporting a right of appeal against a banning notice if they ‘are going to continue to back thugs and criminals against decent, law-abiding Victorians’ (Legislative Assembly, 2007c, p. 4403). Robinson asserted a need to ensure ‘protections for those honest, law-abiding, decent Victorians against hooligans and the anti-social behaviour in nightclub precincts’ (p. 4406).

Despite parliamentary claims of the effectiveness of banning notices in tackling issues of disorder in the NTE, no benchmarking was undertaken prior to their introduction. Significantly, there has been no research into the specific consequences, deterrent effect or success of banning notices since. The Scrutiny of Acts and Regulations Committee, in their role as an independent cross-party reviewer of legislation (Charter Act 2006, s30), raised a number of concerns regarding the functioning and likely effect of both the 2007 and 2010 banning Bills. None were addressed meaningfully or objectively by the relevant Ministers. Even a direct parliamentary request for evidence to justify the extension of banning notices to 72 hours, by Green Party member Pennicuik in 2010, was ignored repeatedly by the incumbent Labor government (Legislative Council, 2010, pp. 1814–1818).

The Charter Act ‘provides equal protection to all people in Victoria’ (Department of Justice, 2008, p. 4). However, in 2007 and 2010, meaningful consideration of the effect of banning notices upon the individual rights of recipients, and an objective assessment of the need, suitability and appropriateness of the legislative response were notable parliamentary failings. With the exception of the right of appeal, there was no recognition of the potential effect of banning upon individual rights. More debate was evident in 2007 than in 2010. However, that the same claims about the problems in the NTE were made in 2010 as in 2007 questions the effectiveness of provisions that continued to be regarded as essential, but this paradox was not resolved in the parliamentary debates. Despite procedural shortcomings, the political drive to introduce and extend banning notices prevailed. The constructions of them and us embedded within the parliamentary discourse built upon a rhetoric of fear, and legitimised banning as a valid response to the problems presented. Victoria’s banning provisions typify the notion of governing in response to crime and dangerousness (Garland, 2008; Hier, 2008). The individual rights of prospective banning recipients were subordinated to the presumed greater good of community protection.

Balance/re-balancing

Within the emerging interplay of human rights charters and the criminal justice system, legislative developments and operational policing initiatives, such as Victoria’s banning provisions, demonstrate a move to ‘re-balance’ the criminal process from the perceived primacy of defendants’ rights towards the needs of victims and communities more generally. Rather than ensuring parity of rights for all parties involved in the criminal process, balance is used increasingly by legislators to justify the removal of individual due process protections, in the interests of political expediency and the perception of proactive governance. The next part of this article addresses the risk to individual rights if the mechanisms for their assurance can be overlooked or ignored. A drive for governments to ‘do something’ about high profile issues, an expanding conception of victimisation and notions of them/us are first explored. The consequences of re-balancing are then considered, with specific reference to Victoria’s banning provisions.

Political expediency or empirically driven necessity?

In Victoria, government policy limiting individual rights should be supported by empirical evidence of both the need and effectiveness. The expectation of evidence-based policy development was made clear in a Victorian Government Drugs and Crime Prevention Committee (DCPC, 2006) report, and formalised within the Charter Act. A key reason for evidence and the substantiation of need and effect is to prevent the conflation of the ‘means’ and the ‘ends’ of legislative and operational provisions. For example, a response to a threat which prioritises the security of the majority over the rights of the minority, who are perceived as a risk, does not necessarily make the majority safer (Waldron, 2003). Waldron’s (2003) assertion that ‘we must also be sure that the diminution of liberty will in fact have the desired consequence’ (emphasis in original, p. 208) was made in response to the events of 9/11, but there are clear parallels with alcohol-related disorder in the NTE. While operating at a different scale of risk, the need to enhance police discretionary powers (the ‘means’) is justified by the ‘end’ of increased community safety. What happens if the means do not lead to the desired ends or whether the expected ends have any relation to the means deployed, are typically missing from the rhetoric used to justify the need. This echoes concerns (by Ashworth, 2004a, 2004b; Crawford, 2009, and others) that community protection is used to justify measures which dilute individual due process expectations, without empirical analysis of their effectiveness. Victoria’s banning notices sit within a growing body of police-imposed summary and prohibitive interventions.⁸

In her critique of Control Orders,⁹ Zedner (2007a, 2007b) expresses disquiet about government assertions of technical compliance with human rights requirements, where legislation is declared as compatible but never sufficiently challenged by parliament or the public. Her concerns are pertinent to the passage of Victoria’s banning legislation. Although the contexts differ, an overriding political belief in the need for collective security was used to justify the erosion of the individual rights of banning notice recipients, despite claims of human rights compliance. Any trade-off between rights and security must be closely examined to establish whether security is actually enhanced, or if the benefits are more symbolic and/or political (Michaelsen, 2006; Waldron, 2003). Neocleous (2007) argues that the state will inevitably use the ‘anti-politics of “security-trumps’” (p. 146) to legitimise increasing restrictions on liberty, against which it is difficult to argue without being accused of endangering national security or public safety. The same rationale is evident within Victoria’s parliamentary debates of the banning provisions, with proponents condemning any opposition to the detail of the legislation and aligning critics with the drunken troublemakers. Such thinking enables a move towards more authoritarian measures that permit individual rights to be eroded.

Human rights do not necessarily trump the interests of national security and/or community safety either. Rather than being in conflict individual rights and collective security can co-exist, with one not necessarily reducing the other. Bronitt (2008) cites evidence from the fields of procedural justice and police legitimacy¹⁰ to demonstrate that procedural fairness and proportionality can engender compliance (p. 71). However, under the auspices of the war on terror in the US, Australia and the UK, ‘human rights tend to be traded away as a threshold issue’ that extends ‘to ordinary crimes, which target suspect classes or groups rather than individuals’ (Bronitt, 2008, p. 82). A shift from preventative to precautionary models of justice has positioned the retention of human rights as a political choice rather than a legal necessity. Although balancing is not simple and human rights are not inviolable, as Victoria’s Charter Act asserts, legislative responses that limit individual rights should be empirically evidenced to ensure that the ends justify the means. This over-riding principle should be enabled by an expectation of the need for proportionality within a clear set of guidelines for legislative decision-makers (Golder & Williams, 2007; Michaelsen, 2006, and others).

The LCRA Act 2007 was one of the first pieces of legislation to be subject to Victoria’s Charter Act. However, the Charter protections are not absolute. Significantly, mechanisms exist to enable parliament to circumvent the proscribed human rights.¹¹ Debeljak (2011) and Lau (2012) draw attention to issues within the framing of the Charter, and its subsequent application, that undermine the intended protection of human rights within Victoria. Measures that limit individual rights, such as banning notices, can be legitimised with or without full Charter compliance. The result is a potential subversion of both the spirit and letter of the Charter via the subjective value judgement of politicians and police officers. This creates a potential structural weakness and challenges the synonymy of the rule of law and human rights. The application of individual rights within a legislative context has elicited a complex body of research.¹² Across Canada, the UK, New Zealand, USA and Australia, contributors have examined the role of parliaments in the scrutiny of legislation, and considered whether and how human rights mechanisms reaffirm the centrality of individual rights. The effectiveness of charters, such as Victoria’s, in securing and upholding human rights is determined largely by the way in which they are implemented and enforced.

Despite the proliferation of human rights charters and conventions, as Landman (2004) notes, ‘there is a continuing disparity between official proclamation and actual implementation of human rights protection’ (p. 907), which is embodied in the notion of ‘law in books, law in action’ (Halperin, 2011; Pound, 1910). Formal mechanisms may do little to ensure or assure human rights due, for example, to the ambiguity of language, subjective and discretionary interpretation, and permitted limitation of rights in certain contexts (Gearty, 2009; Pue, 2008, and others).¹³ In enacting new legislation an assertion of charter compliance, which was evident in the passage of Victoria’s banning provisions, may be offered as proof of appropriate legislative scrutiny but may in fact obscure meaningful analysis of the actual effect of the legislation. Of pertinence to banning notices is the contention that charters and conventions appear to carry little weight in relation to low-level disorder and police exercised controls (Valverde, 2009). Valverde refers to the different ‘scales’ at which such controls and rights operate, and the need for consideration of why localised discretionary police powers are rarely challenged by notions of human rights. In Victoria, the banning legislation demonstrates how a determination to respond to a perceived threat enabled the requirements of the Charter Act to be circumvented. Despite the provisions and requirements of Victoria’s Charter Act (which formalises the expectation that any limitation of rights will be openly justified and scrutinised), deficiencies in the Charter compliance and parliamentary processes enabled Victoria’s banning legislation to pass without any evidence being presented to support their need or effectiveness. The drive to uphold the right of the general community to be safe undermined both the effectiveness of the Charter and the protection of individual rights.

Expanding conceptions of victimisation

Embedded in the discourse of security and community protection, and the resulting changes to the criminal process, is an expanding conception of victimisation. Roach (1999) extended existing models of the criminal process to bring individual victims of crime to the fore. The move towards the pre-emptive control of perceived risk and harm encapsulates the prospective victimisation of the wider community. In this approach, legislative provisions and increasing police powers are justified under the rhetoric of public security and safety. A swathe of reforms under New Labour in the UK from the mid-1990s embodied the ‘tough on crime’ mantra.¹⁴ They were typified by fundamental changes to the criminal process via pre-emptive and prohibitive provisions, such as anti-social behaviour orders (ASBOs) and police-imposed dispersal orders. The objective was to:

… re-balance the criminal justice system in favour of the victims and the community so as to reduce crime and bring more offenders to justice. (Home Office (UK), 2003, p. 5)

Limiting the rights of individuals in the broader interests of the community, brings into question the place of the affected individuals within that community. This is of direct relevance to the consequences of police-imposed summary justice. The resulting shift in the balance of rights and protections reflects an embedded notion of ‘them and us’. Burnside’s (2006) observation that ‘majoritarian rule does not justify the mistreatment of unpopular minorities’ (p. 1), while referring to the aftermath of 9/11, can be applied to the trouble-making ‘unpopular minorities’ in Victoria’s NTE. Burnside (2006) reinforces his point by observing,

… it is easy to support the idea of human rights for ourselves, our family and friends, our neighbours and so on. It is less easy to stand up for the rights of the unpopular, the marginal, those we fear or hate. (pp. 2–3)

Both the political discourse and legislative responses such as banning notices embody what Van Dijk (1993) describes as ‘two complementary strategies, namely the positive representation of the own group, and the negative representation of the others’ (p. 263). Van Dijk (1993) notes in particular the ‘inferiorization, problematization and marginalization’ (p. 267) of the undesirable minority. The use of ‘fear systems and other emotion programs or … kin protection’ are highlighted by Hart et al. (2005, p. 191) as manipulative strategies in political discourse. Chilton (2004) observes an underlying ‘schema of self versus other’ (p. 117), where we all have rights but some deserve more rights than others. Rather than ensuring an equilibrium between the rights of offenders, victims and the community, discretionary police powers are shifting the balance within criminal justice processes. As a result, the rights of individuals, perceived by police officers as behaving or likely to behave in an undesirable manner, are steadily eroded.

Consequences of re-balancing

Any challenge to liberties and due process rights must be ‘proportionate to the risks faced’ (Zedner, 2007c, p. 266). Implicit in this perspective is the expectation that justice should be exercised appropriately and should look and feel suitable to the ends sought. This reflects the broader expectations of evidence-based policing (Bradford, Murphy & Jackson, 2014; MacCoun, 2005; Sherman, 1998), which seeks to measure and evaluate police policy, decision-making and practice. When summary police powers erode individual rights, based upon a promise of community protection or crime reduction, both the underlying need and the effectiveness of the police response should be measurable and provable.

Much of the justification for the growth in discretionary pre-emptive police powers, such as Victoria’s banning notices, is couched in protective terminology, aimed at re-balancing the experiences of the broader community away from the disorderly and nuisance-making minority. However, a mismatch appears to exist between the balancing agenda and human rights, between the tough on crime mantra, and the actual effect of pre-emptive policy and practice. The dilution of rights is too often regarded by legislators as justifiable and necessary, and any broader consequences for individual rights not generally considered. There is a reliance upon weak arguments to legitimise legislative and operational reforms, which may offer none of the implied benefits to victims or the public at large. O’Malley (2010, 2011) contends that increasing police summary justice prioritises procedural streamlining rather than demonstrably controlling risk or improving public safety. Ashworth and Zedner’s (2015) detailed depiction of preventive justice highlights the growing tension between mechanisms intended to protect the community, and the upholding of justice for individuals. Zedner (2014) observes that it has taken over a decade for the right of individuals to be protected from the power of the state to re-emerge from the hysteria of the need for public security. She is unequivocal in her demand that any limit placed on due process or other procedural protections must be proportionate and fully substantiated.

A clear dichotomy is evident in relation to the artifice of the balancing exercise, which is exemplified by Victoria’s banning notice provisions. Governments use the need for security or public safety to justify measures that directly limit individual rights. However, the extent of the perceived risk to the community is not empirically tested. A combination of rhetoric-driven public fear, a consequential need to be seen ‘to do something’, and a pragmatic drive to streamline the judicial process allows effective scrutiny of legislative provisions to be side-stepped. This creates a clear risk when due process rights are subordinated to increasing police powers that are not subject to meaningful oversight, but which may not address the ‘need’ that has been asserted.

In Victoria, the imposition of police-imposed banning notices are not subject to purposeful scrutiny. There is no mechanism for recipients to request a review of a police decision to impose a ban, beyond the auspices of Victoria Police. While there are practical limitations which may restrict immediate appeal against an on-the-spot ban, this should not preclude later administrative or judicial appeals. For example, similar banning provisions in Queensland (under the Safe Night Out Legislation Amendment Act 2014) expressly permit subsequent review of individual bans through the Queensland Civil and Administrative Tribunal (QCAT). The principle of review was discussed during the parliamentary debates of the LCRA Act 2007, but a proposed amendment to the legislation was rejected (Legislative Council, 2007, p. 3891; Legislative Assembly, 2007d, pp. 4401–4412). Since the banning provisions were introduced in 2007, there has been no independent or judicial review of their necessity, compliance with Victoria’s Charter Act, or the validity of any of the 6523 banning notices imposed between 2007 and 2014 (Chief Commissioner, 2008, 2009, 2010, 2011, 2012, 2013, 2014).

When individuals cannot request independent appeal of discretionary police powers to punish the risk to balanced justice increases. Pue (2008) draws attention to the fact that ‘only the tiniest sliver of state action is ever subjected to judicial review’ (p. 48). He highlights the limited reach of judicial oversight and statutory interpretation, as only a minority of cases and legislative provisions are reviewed by the courts. An undeveloped corollary is that an absence of independent scrutiny places even greater responsibility upon those enacting changes to criminal processes, to ensure that a verifiable need exists and that the response is empirically evidenced, scrutinised and evaluated. In the context of Victoria’s banning notices, the significant potential consequences for individual rights highlights the need for mechanisms enabling judicial appeal. Triggers for the review of the banning provisions could include errors made by police officers in the imposition of a ban, its potentially disproportionate effect upon an individual, or more fundamental failures in the parliamentary scrutiny of the legislation, such as not identifying Charter-driven human rights issues.

Victoria’s banning provisions typify the way that political decision-making, in response to perceived risk rather than well conceived policy, can dilute and erode significant individual rights. Balance is increasingly represented within policy decisions as a need to protect the broader community and thereby secure their liberty. However, failure to adopt a test of proportionality risks the implementation of measures regardless of their empirically evidenced need or their effectiveness in securing the desired outcome. Paradoxically, while re-asserting the rights of victims, both individual and collective, the protections for alleged offenders have been significantly reduced. In this sense, an argument can be made that re-balancing is now extending the scope of victimisation to include the recipients of discretionary police-imposed summary justice, whereby pre-emptive and prohibitive provisions may be enacted on-the-spot in anticipation of a subjectively assessed potential behaviour, but which may not be subject to review. Banning notice recipients, for example, could potentially be regarded as victims of state sanctioned control measures.

Conclusion

An insistence on the need for balance is evident across the scale of criminal law, from state level responses to the terror threat post-9/11, to UK New Labour’s ‘tough on crime’¹⁵ reforms in the 1990s, to Victoria’s localised attempts to control alcohol-related violence in urban entertainment precincts. The consequences of re-balancing range from widespread restrictions on liberty and civil rights driven in the interests of national security, to short-term pre-emptive prohibitions, such as banning notices, to tackle local issues of disorder. An inherent ambiguity exists as the direction in which the balance is tipped encompasses a complex range of inter-related drivers with multi-layered results. Not all legislative developments and operational police practices lead inevitably to the subversion of individual rights. However, the increasing reach and pre-emptive nature of criminalisation, reflected in changes to operational police powers which permit on-the-spot discretionary punishment, appear to be the antithesis of balance.

Legislative and administrative changes to the criminal process and the expansion of discretionary police powers have steadily reduced the rights of those accused of crime, and lowered the threshold for criminal behaviours. Measures enacted in response to a range of drivers are predicated upon a need to ensure the security and safety of the community, at a national and a local level. However, this has highlighted a number of fundamental issues. First, as the passage of Victoria’s banning provisions demonstrates, the ‘need’ to re-balance is increasingly substantiated via political expediency rather than empirically evidenced necessity. Second, despite the formalisation of individual rights, for example in Victoria’s Charter, the proposed ‘means’ of re-balancing are subject to limited scrutiny. Finally, the desired and actual ‘ends’ of measures to re-balance may not be the same.

Necessity, perceived or actual, is a key component that determines legislative responses and directly affects the way in which balance is skewed. Tonry (2003) contends that the reasons why legislation lacking any empirical basis can ever be enacted is due to the perceived need for governments to sound or act ‘tough’ (p. 22), which can lead to symbolic responses that are not necessarily appropriate or effective. Little opposition from political opponents, the media or the public is likely when being tough combines with having sufficient numbers to be able to push such legislation through the parliamentary process. The futility of the notions of balance and re-balancing is reinforced when driven by political expedience at the expense of effective scrutiny. This is typified by the passage of Victoria’s banning provisions, and the failure to fully examine their impact upon individual rights.

The risk to individual rights heightens if the mechanisms for their assurance can be overlooked or ignored by governments through the enactment of legislation and the acceptance of charter ‘waivers’ (Ashworth & Redmayne, 2010). Balance is increasingly framed in terms of liberty, security and community rights, and predicated upon a desire by governments to be seen to do something about specific issues. The rhetoric used to justify measures to ‘re-balance’ embodies notions of them and us, and presumes that the balancing responses are made in the best interests of ‘us’, the community. Significantly, the victimisation construct drives the ‘re-balancing’, with consequences for the due process rights of prospective defendants rarely addressed openly. The sense of inclusivity conveyed by the Victoria Police motto – Uphold the Right – appears to be increasingly implausible. The precise way in which victims are defined skews the way in which balance is effected. Legislative and operational policing developments, such as banning notices, position the general public as the primary, if prospective, victim. Crucially, there is an underpinning presumption that the broader law-abiding community exists in a state of ‘pre-victimisation’, which necessitates and justifies the expansion of discretionary, pre-emptive provisions, regardless of their effect upon individual rights. As a result, the prioritisation of the protection of the ‘majority’ against an undefined, vaguely framed but threatening ‘minority’, risks eroding long-standing individual rights, for a benefit that is unclear and largely unsubstantiated.

Footnotes

Declaration of conflicting interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) received no financial support for the research, authorship, and/or publication of this article.

Notes

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