The steady proliferation of Australia’s discretionary police-imposed patron banning powers: An unsubstantiated cycle of assertion and presumption

Introduction

On 1 September 2016, new provisions came into effect to enable Tasmania Police to issue on-the-spot orders to ban individuals from the Hobart waterfront and/or other entertainment precincts for up to six months (Liquor Licensing Amendment Act 2015, s. 81). These measures brought Tasmania into line with the majority of Australian jurisdictions, by providing police officers with discretionary powers to remove and exclude people from public areas, typically those in which licensed venues are located. Patron banning schemes are one of a range of responses to violence and disorder in the night-time economy (NTE). Over the past decade, alcohol-related offending in and around licensed premises has been an area of notable legislative, licensing and operational policing development in jurisdictions across Australia (see, for example, Babor et al., 2010; Chikritzhs et al., 2007; Eckersley and Reeder, 2008; Fleming, 2008; Graham and Homel, 2008; McIlwain and Homel, 2009; Manton et al., 2014; Miller et al., 2012; Smith et al., 2011; Trifonoff et al., 2011). Tighter licensing regulations have combined with growing powers for licensees and police officers to tackle problems associated with alcohol consumption. New offences and infringement penalties have been introduced along with a range of move-on provisions and patron banning schemes. ¹ A growing need to manage risk and ensure public protection is used to justify many of the legislative and operational responses. This has led to a proliferation of measures, such as patron banning, which adopt a more regulatory approach, emphasize the need to prioritize public safety and embody the principles of pre-crime and preventive justice. ²

The term patron banning encompasses a range of exclusionary measures which can be imposed by licensed venues, police officers, the courts and other regulatory bodies. The collective purpose of patron banning mechanisms is to manage and minimize harms arising from alcohol-related violence and disorderly behaviour. Recipients of bans are required to leave the venue or public area immediately and are generally denied access to licensed venues and/or wider designated areas for a fixed period of time.

All Australian States and Territories, with the exception of the Australian Capital Territory (ACT), ³ have passed some form of patron banning legislation. There are three broad categories: specific venue bans; police-imposed public area bans; and court-imposed exclusion orders. An overview of each category is provided later in this article. The names and the operationalization of each type of ban varies across jurisdictions, but a generally similar hierarchy exists with respect to their imposition and scope, and the possible consequences for their breach.

To date there has been only limited research focused upon patron banning in Australia. Much of the existing research has targeted specific jurisdictions and/or measures, ⁴ has examined other discretionary police powers ⁵ or has been set within broader reflections upon liquor regulation and/or management of alcohol-related disorder in the NTE. ⁶ No specific research has considered all of the patron banning approaches within Australia, examined their underlying rationale or provided a meaningful analysis of the effectiveness of banning as a way of controlling alcohol-related disorder. ⁷ This is the first of a series of articles which seek to address these research gaps. It examines discretionary police-imposed banning mechanisms, which are potentially the most punitive and wide-reaching of patron banning powers. ⁸ The article first places patron banning within a range of responses to alcohol-related disorder in the NTE. An overview of key types of patron banning is followed by a detailed examination of police-imposed banning powers and their steady proliferation across Australian jurisdictions. Consideration is then given to the assumptions and expectations that are typically used to justify the implementation of police banning provisions. Key issues inherent in their discretionary implementation and concerns regarding the absence of meaningful oversight are highlighted. Given the underlying rationale for banning, the article concludes by underlining the apparent disconnect between the range of banning options, their presumed effect and the reality of their ongoing scrutiny.

Responses to Alcohol-Related Disorder in the NTE

Victoria was the first Australian jurisdiction to legislate the use of alcohol-related banning orders. Following the 1986 Nieuwenhuysen Report, a series of liquor licence reforms, taxation changes and deregulation facilitated a proliferation of licensed venues, the growth of urban entertainment precincts across the State ⁹ and an escalation of alcohol-related problems (Livingston, 2008). Victoria’s Alcohol Action Plan: 2008–2013 (Department of Justice, 2008) incorporated a suite of initiatives, including a lockout trial, ¹⁰ tougher licensing rules, a significant increase in the level of nightlife policing (Miller et al., 2012), and the introduction of police-imposed banning notices.

Other Australian jurisdictions have developed their own responses to address similar issues of alcohol-related disorder. In February 2014, New South Wales (NSW) passed a swathe of restrictions (under the Liquor Amendment Act 2014) which included a 1.30 a.m. lockout for licensed venues in two Sydney entertainment precincts, a 3.00 a.m. cessation for the service of alcohol and a freeze on new liquor licences. ¹¹ In South Australia, mechanisms include a Late-Night Trading Code of Practice, alcohol-related targets within South Australia’s 2012 Strategic Plan and key initiatives such as Operation Street Safe and the West End Safety Trial (Attorney-General, 2012). Tasmania’s Alcohol Action Framework 2010–2015 introduced an inter-agency plan to address alcohol-related harms, to change drinking culture and behaviour and to refine the regulation and supply of alcohol (Inter-Agency Working Group on Drugs, 2013). A 2014 review of Western Australia’s Liquor Control Act 1988 presented 141 recommendations for changes and improvements to existing legislative provisions, licensing arrangements and responsibilities, police powers and enforcement activities (WA Independent Review Committee, 2014; Waldron, 2014). Most jurisdictions have applied a multi-faceted approach to tackling issues of alcohol-related disorder. This reflects general research evidence that effective control requires a combination of strategies to address individual behaviours, licensing and environmental factors. ¹²

In addition to ongoing research by bodies such as the NSW Bureau of Crime Statistics and Research (BOCSAR) and the Australian Institute of Criminology (AIC), in recent years most Australian jurisdictions have sanctioned more formal reviews of their liquor regulation and operational enforcement mechanisms. Examples include the 2016 Callinan Review in NSW, 2016 Anderson Review in South Australia, the Review of Tasmania’s Liquor Licensing Act 1990 (Department of Treasury & Finance, Tasmania, 2016), the Independent Review of Alcohol Laws in the Northern Territory (Minter Ellison, 2015), an independent review into the 2010 Liquor Licensing changes in the ACT (Acil Allen, 2014) and the Review of the Liquor Control Act 1988 in Western Australia (WA) (WA Independent Review Committee, 2014). In Queensland, the perceived success of the 2014 provisions in NSW was acknowledged during the July 2016 implementation of restrictions upon alcohol service hours, which formed a key part of new liquor regulations (D’Ath, 2016).

The array of schemes addressing alcohol-related disorder in the NTE are subject to ongoing discussion in each jurisdiction. However, one notable consequence of implementing a range of responses is the difficulty of discerning the specific or particular effect of any individual measure. In the context of the multi-faceted provisions which have been implemented to tackle issues of alcohol-related disorder, it is acknowledged that the particular effects of individual reforms are difficult to isolate (Menendez et al., 2015; Miller et al., 2014, 2016).

This potential analytical deficiency is heightened when the perceived success of an overall strategy is used to justify extensions to the scope or remit of an individual mechanism, without a quantifiable or empirical basis of evidence for its particular beneficial effect. A common feature across the recent reviews of responses to alcohol-related disorder is the absence of specific analysis of the use and effectiveness of patron banning. A significant body of literature has examined exclusion and the policing of space across a variety of criminal justice contexts (e.g. Beckett and Herbert, 2010; Ewald, 2011; Garland, 2001; MacDonald, 1997). However, the merits of exclusion as a way to manage behaviour are debatable. Beckett and Herbert (2008, 2010) investigated police powers to issue expansive on-the-spot exclusion orders in Seattle, USA. There is no requirement to provide evidence of wrongdoing, and restrictions apply to extensive geographical areas. Beckett and Herbert found that such exclusionary measures progressively increased the likelihood of infringement and punishment, but with little community benefit. Uncertainty regarding the value of exclusion per se is exacerbated by a dearth of data detailing the specific individual or collective effect of banning patrons from the NTE. Despite a lack of evidence to support their effectiveness, there has been a steady expansion across Australian jurisdictions of discretionary powers enabling the imposition of patron bans, which may apply to large public areas for extended periods of time.

Overview of Patron Banning Provisions

Issues of alcohol-related disorder and anti-social behaviour across Australia’s NTE have led to the introduction and steady extension of a range of mechanisms to exclude problematic individuals from specific venues and/or wider public areas. This section outlines the primary types of patron banning and provides a more detailed analysis of police-imposed banning powers.

Police-imposed area bans

Police-imposed public area bans (variously referred to as banning orders, banning notices or barring orders) apply to larger geographical areas, which may comprise multiple licensed venues, declared designated areas ¹⁵ and/or specified entertainment precincts. Police-imposed bans constitute formal exclusion, with legislated implementation, enforcement and breach provisions. They are typically imposed on-the-spot, following an incident of alcohol-related anti-social or violent behaviour, or a perceived intended disorderly act, and require the recipient to leave the specified area immediately and not return for a fixed period of time. Breaches of bans are typically established as reverse onus offences, carrying a presumption of guilt, and for which financial penalties may be imposed (for example, in Victoria under the Liquor Control Reform Act 2007).

Police-imposed banning provisions have expanded steadily to encompass every Australian jurisdiction, except the ACT. The names and precise operationalization of each type of ban varies, but a broadly similar process exists with respect to their imposition and scope, and the possible consequences for their breach. Table 1 provides a timeline and summary of the provisions which apply in each Australian jurisdiction. ¹⁶

OPEN IN VIEWER

Table 1.

Summary of police-imposed banning provisions in each Australian jurisdiction.

Jurisdiction	Act & date	Scope	Maximum duration	Review option
Victoria	Liquor Control Reform Amendment Act 2007 Justice Legislation Amendment (Victims of Crime Assistance & Other Matters) Act 2010	Designated areas Designated areas	24 hours 72 hours	Police only
South Australia	Statute Amendment (Power to Bar) Act 2008	Specified areas	6 months/indefinite (for >=3 bans)	Liquor & Gambling Commissioner (if ban +1 month)
Western Australia	Liquor Control Amendment Act 2010	Specified areas	12 months	Liquor Commission (if ban +1 month)
Northern Territory	Liquor Legislation Amendment Act 2010	Designated areas	48 hours	Police only
New South Wales	Liquor Amendment (Kings Cross Plan of Management) Act 2013 Liquor Amendment Act 2014	Kings Cross Prescribed precincts	48 hours 48 hours	Police only
Queensland	Safe Night Out Legislation Amendment Act 2014	Safe night precincts	10 days	Queensland Civil & Administrative Tribunal (QCAT)
Tasmania	Liquor Licensing Amendment Act 2015	Specified areas, or as determined by police officer	6 months	Police only

Police-imposed banning orders permit the discretionary punishment of individuals by excluding them from often extensive public areas for extended periods of time. There is no recourse to the usual due process procedures ¹⁷ and, in most jurisdictions, no option of an independent or judicial review of the decision to ban. Banning notice recipients in Queensland are afforded the opportunity to seek a review of the decision to issue a ban via the Queensland Civil and Administrative Tribunal (QCAT) (Safe Night Out Legislation Amendment Act 2014, s. 602P). In both South and Western Australia, recipients of bans longer than one month may appeal via the relevant Liquor Commissioner (Statute Amendment (Power to Bar) Act 2008 (SA), s. 128; Liquor Control Amendment Act 2010 (WA), s. 115AD). In all other jurisdictions, the only appeal option is to a more senior police officer or to the Police Commissioner – with no review permitted beyond the auspices of the police (Liquor Control Reform Amendment Act 2007 (VIC), s. 148E; Liquor Legislation Amendment Act 2010 (NT), s. 120M, R; Liquor Amendment (Kings Cross Plan of Management) Act 2013 (NSW), s. 116AD; Liquor Amendment Act 2014 (NSW), s. 116F; Liquor Licensing Amendment Act 2015 (TAS), s. 81A).

The geographical scope of bans generally covers defined designated areas, which are typically determined by the relevant Minister (such as in the Northern Territory and NSW), or by regulatory bodies (such as the Victorian Commission for Gambling and Liquor Regulation). In Tasmania, in addition to approved specified areas, the legislation enables the police officer imposing the ban to determine its precise geographical parameters (Liquor Licensing Amendment Act 2015 (TAS), s. 5). There is currently no restriction on the size of the area within which a Tasmanian police officer may decide that the ban will apply. The permissible length of police-imposed bans varies across jurisdictions, and some require approval from more senior police officers. The shortest bans are imposed in NSW and the Northern Territory, where a maximum of 48 hours applies. In 2010, Victoria extended its 24-hour banning notices to 72 hours. Longer bans in Tasmania (between 72 hours and six months) and Western Australia (up to 12 months) must be approved by an officer at or above the rank of Inspector. Police officers in South Australia may impose indefinite bans for recipients receiving their third or more period of exclusion. However, for bans longer than six months it is a requirement that the details and reasons are provided to the Commissioner of Police within seven days of the imposition of the ban (Statute Amendment (Power to Bar) Act 2008 (SA), s. 125(6)).

Assumptions, Presumptions and Expectations

The various discretionary police banning provisions all build upon a similar rationale. Their collective purpose is to manage and minimize harms arising from alcohol-related violence and anti-social behaviour. The parliamentary debates of the relevant legislation typically justify their need by asserting that banning is necessary, that banning ‘works’ and is an effective deterrent to engagement in alcohol-related disorder, for both individual recipients and the wider community.

The Victorian Attorney-General, Rob Hulls championed this message when police-imposed banning notices were first introduced and then extended. The need to protect the public and the presumed deterrent effect were emphasized by Hulls in his support of the 2010 Bill to extend banning notices to 72 hours: ‘[t]he 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 (VIC), 2010: 1132). In Victoria, the Hansard record of the parliamentary debates for both the 2007 and 2010 Bills reveal repeated claims of the effectiveness of banning notices in tackling issues of disorder in the NTE (e.g. Legislative Assembly (VIC), 2007a, 2007b, 2010). However, no benchmarking was undertaken prior to the introduction of banning, and there has been no subsequent research into the specific consequences or deterrent effect in Victoria. ¹⁸ In 2010, a Greens Party member in the Legislative Council (Pennicuik) directly requested empirical evidence be presented to Parliament to support the effectiveness of banning as a mechanism to address disorder in the NTE. The questions were repeatedly ignored by Government speakers, no meaningful discussion was forthcoming and no evidence was presented (Legislative Council (VIC), 2010). Yet the 2010 Bill was passed and the length of banning notices increased to 72 hours.

The second reading of New South Wales’ (NSW) Liquor Amendment Bill 2014, mirrored much of Victoria’s parliamentary rhetoric. The measures included the extension of the remit of police-imposed banning orders. The NSW Premier Baird presented the Bill as: ‘a broad range of tough measures to tackle alcohol- and drug-related crime and antisocial behaviour […] I am confident that these reforms will make a significant difference in tackling drug- and alcohol-fuelled violence on our streets’ (Legislative Assembly (NSW), 2014: 26621–26625). The only reference in the NSW debates to banning was in relation to the extension of the provisions from Kings Cross to a new Sydney Central Business District (CBD) Entertainment Precinct. As in Victoria, the NSW provisions enjoyed general bi-partisan support, with only the Greens Party expressing concern. The second reading of the Liquor Amendment Bill 2014 noted that banning targets ‘troublemakers’ and presumed that exclusion from entertainment precincts is effective. Despite similar provisions being in place in Victoria for seven years, no data were presented to validate this assumption. ¹⁹

The explanatory notes which accompanied the introduction of Queensland’s Safe Night Out Legislation Amendment Bill 2014 asserted that ‘the ability for police to respond to unacceptable conduct by issuing a banning notice will provide an immediate sanction and deterrent to a person’ (p. 8). Queensland’s banning provisions were justified with reference to an underlying ‘need’ to protect the broader community. Banning notices were presented as essential and presumed to be effective. Unlike most other jurisdictions, Queensland does provide some balance for recipients of banning notices, with a range of appeal options which includes escalation to QCAT. In Tasmania, the parliamentary debates of the Liquor Licensing Amendment Act 2015 were typified by statements such as:

We want to make sure that it is safe for young people, old people, tourists and any one of us when we go out on a Saturday night. It is really important for our reputation. This is why we have taken steps such as the barring orders. (House of Assembly (TAS), 2015: 3.38 [Courtney])

A government desire to ensure community safety is sensible and rational. However, a common feature across the debates which introduced banning provisions is the lack of evidence presented to support the underlying assumptions that banning directly improves the safety of other patrons. It is acknowledged that governments do introduce new provisions without clear empirical evidence of their effect, and that not all policies can be fully tested before they are implemented. This could reasonably apply to the passage of the first banning legislation in Victoria. However, where such measures are introduced, where strong claims are made about the need and the effect, and where, as in Victoria, the asserted need and effect were used to justify the circumvention of key human rights requirements (see Farmer, 2017b), the actual effect of the measures should be subject to ongoing monitoring and scrutiny. This has not happened in Victoria.

Jurisdictions adopting banning provisions more recently could, and arguably should, seek evidence to justify claims made about the effectiveness of banning. The Callinan Review (2016: 30, emphasis in original) noted that in NSW ‘the number one priority [of the 2014 provisions] was the improvement of the safety and amenity of the Sydney CBD entertainment precinct’. As part of a suite of responses, the extension of banning order powers to include the Sydney CBD was presumed to contribute to the improvement of safety. However, no specific evidence was presented to validate the way or extent to which banning orders demonstrably improve public safety. Echoing parliamentary rhetoric in other jurisdictions, the banning measures were promoted and justified in NSW using largely unsubstantiated assumption and presumption.

It is, of course, entirely possible that banning can improve behaviour in the NTE. However, such an assertion should be supported by appropriate evidence and ongoing monitoring – particularly where the presumed effects are used to justify provisions which can have a significant impact upon recipients. In Victoria, section 7(2) of the Charter of Human Rights and Responsibilities 2006 expressly requires evidence to ensure that any proposed limitation of human rights is ‘demonstrably justified’. The introduction of banning notices was acknowledged to limit, among others, the right to move freely. However, despite providing no evidence to justify the limitation of this right, the legislation was passed. Research has noted the limited capacity of governments to ensure balanced and effective policy analysis based upon reasoning which is discernible and testable (Evans and Evans, 2011; Feldman, 2002; Gans, 2009; Rares, 2013). Waiton (2008) expresses concern about the nonchalant drift of policies through parliament, and Crawford (2013) contends that reactive policy development is driven by a desire for governments to be seen to do something in response to high profile issues. As typified by the passage of the various banning provisions, need and effect are often presumed and insufficiently challenged.

Scrutiny and Oversight of Police-Imposed Banning Measures

Assertions of need and effect are ubiquitous in relation to parliamentary support of patron banning provisions. Notable concerns about the operation and consequences of discretionary police-imposed banning powers have been voiced, but generally dismissed, in each jurisdiction in which they have been introduced. In Victoria, for example, proponents of the 2007 Bill to introduce banning notices asserted its need and presumed effectiveness. Specific concern was raised by opposition speakers about the absence of any appeal mechanism and of possible consequences for vulnerable groups, such as Indigenous and homeless Victorians. The risk that the banning measures would not address the underlying issues relating to anti-social behaviour in the NTE was also noted (Legislative Assembly (VIC), 2007a, 2007b). A number of amendments were passed by the Legislative Council (Victoria’s upper house), three of which concerned the right to appeal the receipt of a banning notice. They were all rejected by the Legislative Assembly (Victoria’s lower house). A key reason was a stated determination to pass the legislation on what was the final sitting day of 2007. Despite the consequential curtailment of debate, Attorney-General Hulls was unambiguous in his expectations: ‘we will ensure that the legislation gets through in time to implement its recommendations prior to the new year’ (Legislative Assembly (VIC), 2007b: 4404).

Time pressures were also evident in South Australia, which limited debate of concerns regarding the introduction of police powers to bar people from licensed premises. One House of Assembly member noted, during the second reading debate of the Statutes Amendment (Power to Bar) Bill 2008, that: ‘it is very unfortunate this bill is being rushed through this place in less than an hour’ (House of Assembly (SA), 2008: 1079 [Evans]). Concern was expressed by the same speaker that the time pressures prevented a full reading by Assembly members of the detail of the Bill, and cut short meaningful debate of the implications of certain aspects of the provisions.

In NSW, the Greens Party highlighted the lack of evidence supporting the need for police banning powers, and repeatedly articulated concern regarding the potential for punitive and oppressive implementation of the provisions (Legislative Council (NSW), 2014). In Queensland, concern about the potential broader effect upon individual rights of discretionary police powers to punish was noted. However, the effect of the measures upon justice and individual rights was countered and out-weighed by assertions of the need for and effectiveness of the sanction. The explanatory notes for the Safe Night Out Legislation Amendment Bill 2014 stated:

Arguably this breaches the rights and liberties of individuals […] The on the spot issue of a banning notice might be seen as inconsistent with principles of natural justice. However, the need to protect the safety of the public by providing an immediate response was considered to outweigh the need for extensive formal natural justice processes. The ability for police to respond to unacceptable conduct by issuing a banning notice will provide an immediate sanction and deterrent to a person. (pp. 7–8)

Similar sentiment is evident in Tasmania. Despite vocal concerns, from bodies such as the Tasmanian Law Reform Institute (TLRI) that the discretionary police powers to ban are ‘punitive and controlling’ and ‘open to abuse and to discriminatory application’ ²⁰ parliamentary discourse repeated the well-used assertions that banning is essential and effective. While there was general cross-party support for the provisions, Labor and Greens Party members expressed concern regarding the terms of the orders. In particular, in common with Victoria, the absence of a right of independent or judicial appeal was raised:

the Opposition would like to see a body such as the Magistrates Court be able to review that decision [to issue a barring order], given that it can have a significant impact on people if they are banned from the vicinity of a number of licensed premises for a period of up to six months with no right of review. (House of Assembly (TAS), 2015: 2.49 [Bacon])

Concern was also noted in relation to vulnerable recipients and the likely ‘independence’ of the permitted review of barring orders by the Police Commissioner:

Say a person is banned for six months by an officer over the rank of sergeant and then a review is instituted at the request of the former patron of that facility, how seriously do you think the Commissioner of Police will go against the advice of his or her sergeant, and that this will be a legitimate review process? That is not how it works; so you have set up a faux review process that really is window-dressing to a provision in the bill which is wide open to abuse. (House of Assembly (TAS), 2015: 4.45 [O’Connor])

Across each of these examples, in addition to the general dismissal of concerns in relation to police banning powers, opponents (or those seeking tighter scrutiny of the provisions) were painted as somehow supporting the perpetrators of alcohol-related violence, of not caring about the community, or of not understanding the risks. For example, in Victoria Government speakers in 2007 insisted that proposed amendments to insert a right of appeal was tantamount to a green light to alcohol-related anti-social behaviour on the streets. Proponents of amendments were accused of: ‘trying to wreak havoc by allowing drunks and people who are drug affected to rampage through our communities, venues, shopping centres, neighbourhoods and streets, and we are not prepared to stand for that’ (Legislative Assembly (VIC), 2007b: 4405 [Batchelor, Labor]).

Police-imposed banning provisions encompass significant issues and concerns: with respect to their use, scrutiny and ongoing expansion. Discretionary police powers to issue on-the-spot punishments conflict with the individual due process rights of banning notice recipients (see Farmer, 2017b). In most jurisdictions, no offence need be committed, no evidence is required and bans can be imposed pre-emptively in anticipation of problematic or undesirable behaviour. The threshold for the imposition of a ban is largely subjective, and may be based upon the perception of an individual police officer. ²¹ Across the banning legislation terms such as troublesome, undesirable, disorderly and offensive are used in relation to the imposition of bans. Such terms lack an objective mapping of behaviour to criminality, yet the potential punishment can be wide-reaching, with clear breach penalties.

It is conceivable that an individual could receive a ban for a presumed intended future behaviour (which does not need to be proven). They could then breach their ban by being present in a public area (a behaviour that is not itself a criminal act). Criminal breach proceedings could then follow, even though no discernible crime has been committed: no harm has been caused, there is no victim, no damage, no loss and so on. This serves to legitimize the ‘criminalization of the merely being there’ (Belina, 2007: 327). Despite the possible consequences, while some jurisdictions require the approval of more senior officers before a ban can be imposed, most allow no appeal against the imposition of a ban beyond the auspices of the police themselves.

Banning mechanisms reflect the growth of pre-emptive discretionary police powers to punish, and the blurring of boundaries between civil and criminal methods of determining liability, that has been the subject of extensive critical analysis in the UK, USA and other jurisdictions (Ashworth, 2006; Ashworth and Zedner, 2011; Beckett and Herbert, 2010; Crawford, 2009; Von Hirsch and Simester, 2006). Key issues have been examined and highlighted in relation to such hybridized ‘two-step prohibitions (TSPs)’ (Von Hirsch and Simester, 2006: 174). Von Hirsch and Simester (2006) position TSPs, such as ASBOs, ²² as a form of criminalization that punishes yet carries a fundamental loss of procedural safeguards. Offering an analysis of direct relevance to banning order powers, Ashworth (2006) contends that the civil nature of ASBOs enabled their imposition to side-step fundamental due process protections that would be afforded in criminal proceedings. Fox and Freiberg’s (1989) concern about the coercive imposition of diversionary mechanisms under the guise of leniency is taken a step further under banning provisions, as a ban requires no consent from the recipient to be imposed.

The manner of their imposition creates a clear risk that banning powers may be used in a punitive or oppressive manner. This risk is heightened by the absence of meaningful scrutiny and effective oversight of the provisions. In some jurisdictions, such as Victoria, South Australia and the Northern Territory, banning data are reported to Parliament and/or made publicly available. In South Australia, an Annual Report to Parliament details the number of barring orders imposed for a period of six months or longer. In Victoria, an Annual Report tabled in the Victorian Parliament should document banning notice numbers, locations and reasons, and include specific details by age and indigeneity. However, recent analysis has revealed that many of the Victorian data are incomplete and there is no evidence of their use to inform official understanding of how and why banning is used (Farmer, 2017a, 2016). In Queensland, a database of banning-related data is maintained, but it is not publicly available.

The 2016 Callinan Liquor Law Review in NSW focused upon the suite of provisions enacted in 2014 (particularly the 1.30 a.m. lockouts and 3.00 a.m. cessation of alcohol sales); police-imposed banning orders were included within the scope. In summarizing concerns about the provisions as a whole, the review noted the oppressive way in which some were administered, and made reference to the police ‘rigorously enforcing the provisions’ (Callinen, 2016: 6). However, no analysis is presented within the report to explore this concern. There is also no consideration of any issues of potential oppressiveness, punitiveness or discrimination to which the notion ‘rigorously enforcing’ may give rise.

The 2016 Anderson Report into Liquor Licensing in South Australia acknowledged: ‘the lack of formality and record keeping, particularly in relation to the service of such orders, makes it difficult for police to subsequently enforce such orders and brings into question the clarity and robustness of the barring provisions’ (Anderson, 2016: 224). Although the Anderson Report expressed concern in the context of the enforcement and upgrading of barring orders, the review also noted that ‘police are often unable to impose a subsequent six month barring on a repeat offender as they are unable to determine if the original barring order was imposed and served lawfully’ (2016: 224). This admission that insufficient records and data are recorded, raises the possibility of the excessively punitive or otherwise inappropriate imposition of barring orders.

In the context of the ongoing scrutiny of mechanisms employed to address behavioural issues in the NTE, there has been no meaningful assessment of the use, impact or effect of banning provisions. The Callinan Review and the Anderson Report both failed to provide any specific analysis of police-imposed banning provisions. Yet despite this knowledge vacuum, the extension and expansion of banning powers continues. Police-imposed banning provisions are proliferating within a self-supporting, but unsubstantiated cycle of assumed need, presumed effect and seemingly unquestioning approval. Each new legislative Act has been met with some opposition in relation to due process issues, or the risk of punitive or discriminatory use of banning powers. When combined with concern regarding individual rights, and the risk of oppressive application of banning powers, the potential for misuse of discretionary police powers to punish is heightened.

Conclusion

The development and implementation of patron banning provisions is predicated upon an assertion that banning is essential and an effective way to address issues of alcohol-related violence and disorder. The underlying assumption persists that banning serves as an immediate punishment and ongoing method of control by enabling an individual to be removed from a troublesome situation, and deterring them from future problematic behaviour. Yet prior to each legislative development there is little evidence that mechanisms are established to monitor their use or to ensure meaningful measurement of the effect of banning upon individual behaviours and/or collective levels of alcohol-related disorder. Banning may fit within theories of crime prevention by removing or reducing the available opportunities for undesirable behaviour (Felson and Clarke, 1998). However, notions of specific deterrence are complex and embedded with assumptions about, for example, logical decision making, rational behaviours and proactive weighing up of risk and consequences. In addition, parliamentary rhetoric suggests that banning offers a broader deterrent effect upon the community as a whole, who will be deterred from alcohol-related disorder as a result of the risk of being banned. Collective deterrence assumes, in particular, that specific knowledge of banning is embedded across the community. Research has not, to date, tested the assumptions regarding the individual or collective deterrence of banning. ²³

In their detailed examination of Australian liquor licensing legislation as at December 2010, Trifonoff et al. (2011: xvii) noted that ‘[b]anning/barring orders were considered to have merit in reducing problems associated with licensed premises and warrant further attention’. The patron banning provisions in operation at the time of the 2011 report were significantly less extensive than today. Despite the clear suggestion that their use warrants further attention, there has been no meaningful examination of such measures. Jurisdictions continue to base their justifications upon an assumed need and presumed effect. The steady proliferation and reach of patron banning is occurring without a clear understanding of whether such mechanisms reduce alcohol-related violence or have any demonstrable deterrent effect for recipients or the general community.