‘A little bit of a toothless tiger … ’ Police banning powers in Western Australia: key informant perspectives and implications for the administration of justice

ABSTRACT

Individuals who engage in violence and other problematic behaviours, in Australia and other international jurisdictions, can be banned by police from entering certain locations. Bans are expected to deter recipients from further inappropriate behaviours, reduce crime, and increase community safety. This paper examines the operation of two banning mechanisms in Western Australia from the perspective of those charged with their imposition and enforcement. Interviews were conducted with 54 key informants, including police officers, licensees, and venue staff. Interviewees supported police bans as an appropriate way to address disorderly behaviours, and there was consensus regarding key policy objectives and desired outcomes. However, specific policy refinements were identified – including more effective data sharing to improve identification of recipients, more flexible breach provisions, and the introduction of temporary bans – to increase the enforceability and effectiveness of the provisions. Police banning powers in other jurisdictions may benefit from consideration of these findings.

KEYWORDS:

• Police banning powers
• alcohol-related violence
• enforcement
• banning policy
• effectiveness

Introduction

Patron banning is used across Australian and international jurisdictions in response to alcohol-related problematic behaviours, particularly in and around licensed premises, such as bars, pubs, and clubs (Farmer & Clifford, 2023, Farmer, Clifford & Miller, 2021, Farmer, Curtis & Miller, 2018, Søgaard, 2018, Taylor et al. 2018). Powers to prohibit and exclude are presumed to increase community safety and reduce crime by removing troublesome individuals and preventing re-entry to licensed venues and other nightlife locations (Farmer, Curtis & Miller, 2018, Miller et al. 2016). In Australia, since the mid-2000s, the scope of banning provisions has continued to expand both legislatively and operationally (Farmer, Curtis & Miller, 2018, Farmer & Clifford, 2023). Three broad types of patron banning are currently in operation: venue specific bans, typically issued by licensees (which can be extended across multiple venues under the provisions of local Liquor Accords); police-imposed bans, which generally cover one or more licensed venues and/or public areas, typically within urban entertainment districts; and court-imposed exclusion orders, implemented as part of a more formal judicial outcome, usually with an offender specific prohibitive scope. Police and court-imposed banning powers include legislated imposition, enforcement, and breach mechanisms.

This paper examines key stakeholder perspectives regarding the operation and perceived effectiveness of two banning provisions that are currently operational in the state of Western Australia (WA): police-imposed barring notices and police-initiated prohibition orders. The paper draws from the first police-initiated study in Australia which set out to evaluate the effects/effectiveness of patron banning provisions. The stakeholder interview phase of the project primarily explored the perceptions and experiences of those charged with implementing and enforcing the provisions. An earlier study (Miller et al. 2016) undertook key informant interviews in two regional Australian cities, located in Victoria and New South Wales (NSW), and examined perspectives regarding the operation of patron banning there, as well as its effectiveness in reducing alcohol-related harm. The earlier study covered licensee and police-imposed bans, both of which could be imposed on-the-spot. The current paper builds upon this earlier work, and extends the focus to provisions in WA – where the two banning options can be imposed for longer periods (up to 12 months or five years, compared with 72 hours in Victoria and 24 hours in NSW [at the time of the study]); where the process of imposition differs significantly (following centralised review of evidence in WA, compared with on-the-spot imposition in Victoria and NSW); and where banned patron data is centrally controlled (WA) rather than managed by venue managers/licensees (Victoria and NSW). The scope of the stakeholder interviews for the current study was broad, covered all aspects of patron banning, and interviewees were recruited from across WA. This paper sets out key findings in relation to the operation and perceived effectiveness of the provisions. A separate paper examines issues related to the enforcement of the provisions (Farmer & Miller, 2023).

Research context

The use of exclusion, from public or private domains, is evident across a range of international contexts and is generally a response to lower-level anti-social and/or disorderly behaviours. Such mechanisms are typically presumed to provide an immediate consequence for a specific issue and to influence the future undesirable behaviours of recipients and the community more broadly (Ashworth & Zedner, 2008; Farmer et al., 2024). A body of research has drawn attention to potential criminogenic consequences of lower-level prohibitions and penalties. In Britain, anti-social behaviour orders (ASBOs) were introduced under the Crime and Disorder Act 1998. A civil order with criminal breach provisions, an ASBO could be given to any person aged 10 or older found to have behaved in an anti-social manner (Crawford, 2009a, 2009b). ASBOs were intended to deter future anti-social behaviour by imposing certain prohibitions, such as exclusions from specific locations or non-association requirements (Burney, 2002, 2009). There is limited evidence that ASBOs positively affected behaviours. For example, Motz et al. (2020) found receipt of an ASBO to be a predictor of future misbehaviour. Since the Anti-Social Behaviour Act 2003 (ss.30–36), police in England and Wales have been able to disperse and exclude groups of two or more people from designated areas where there is believed to be significant and persistent anti-social behaviour. The use and effects of dispersal orders have been subject to considerable analysis, most notably by Crawford (2008; 2009a; 2009b) and Crawford and Lister (2007). Dispersal orders can offer short term relief from anti-social behaviour, and work best when their use is evidenced and proportionate. However, over-use or inconsistent application can undermine the trust of targeted groups, particularly young people. The focus on their presence in locations which have been identified as dispersal zones, rather than their behaviour while in those locations, can build resentment and lead to a ‘so-what’ response – where there is little incentive for targeted groups to behave in a socially responsible manner (Crawford & Lister, 2007).

In the United States (US) city of Seattle, Beckett and Herbert (2010) found that police officer powers to issue on-the-spot exclusion orders from public spaces, lasting for up to a year, had few demonstrable beneficial effects upon the behaviour of recipients. In a study of responses to police zonal banning powers in Denmark, Søgaard (2018) found that social pressures and peer expectations contribute to banning orders exacerbating rather than reducing risky behaviours. The use of exclusion from public areas in response to anti-social behaviours has also been examined in other countries, such as Germany (Belina, 2007), Canada (Sylvestre et al. 2015), and Hungary (Podoletz, 2016), but there is no clear evidence of their broader beneficial effect/s upon behaviour.

A ban can remove an individual from a specific place, provide an immediate response to a behavioural issue within a given location, and may prevent a recurrence if the ban is enforced in a proactive and effective manner. However, no Australian jurisdiction actively monitors the use of their banning provisions, and little is known about their operation or effect/s. This has prompted some concern about the specific consequences for due process and the individual rights of recipients, the effectiveness of enforcement, as well as the general lack of scrutiny of banning, particularly as a mechanism to address alcohol-related disorderly behaviours (Curtis et al. 2018, 2022, Farmer, 2018, 2021a, 2021b, Farmer, Clifford & Miller, 2021, Miller et al. 2016, Palmer & Warren, 2014, Taylor et al., 2018). Victoria and the Northern Territory publish annual data in relation to police-imposed bans, but there is no formal or active oversight (Farmer & Clifford, 2023). Despite the limited evidence-based analysis of their effects, all Australian jurisdictions have now introduced one or more forms of police banning (Farmer, Curtis & Miller, 2018).

In Victoria, concerns have been raised about the discretionary and summary way in which police banning notices can be imposed (including pre-emptively in anticipation of anti-social behaviour), the general lack of oversight, and the absence of a meaningful method of appeal (Farmer, 2018, 2019). Farmer (2021a, 2021b) spoke with recipients of licensee bans in Victoria and highlighted similar concerns with respect to their discretionary imposition, lack of oversight, and the potential for their misuse. Curtis et al. (2022) examined the offending records of a small sample of banning notice recipients from one location in Victoria, and found no demonstrable reduction in the quantum or severity of offending behaviours following receipt of a ban. Police banning notices were included in the scope of the QUANTEM project which examined Queensland’s 2017 Tackling Alcohol Fuelled Violence (TAFV) policy (Miller et al., 2019). Using data collated through the QUANTEM project, Taylor et al. (2021) examined the effectiveness of police-issued ten-day bans applied across Queensland’s three largest night-time entertainment precincts (Brisbane CBD, Fortitude Valley, and Surfers Paradise CBD). The authors found no significant relationship between the utilisation of bans and the number of serious assaults, common assaults, or good order offences over the following weekend. There was no evidence to indicate that police bans were effective in reducing alcohol-related harm in the short-term.

Police officers are primarily responsible for the enforcement of banning provisions and are reliant on licensees and venue staff to identify banned patrons and, where appropriate, alert police to potential breaches of bans (Mazerolle & Ransley, 2002). This typically requires venue staff and security personnel to have access to photographs and other personal details in order to identify banned patrons. Alternatively, point of entry identification scanners (ID scanners) can detect patrons who have been banned by matching the scanned patron ID documents (such as a driver’s licence or passport) against a database of banned patrons – either specific to the venue or, where available, networked across multiple venues (Miller et al., 2019). For venues operating without ID scanners, the identification of banned patrons is more unreliable and largely depends upon key personnel knowing and recognising people who have been banned. Visible and/or proactive enforcement measures, such as closed-circuit television (CCTV) and ID scanners, facilitate more proactive and immediate monitoring of individuals attempting to enter or otherwise be present within a licensed venue (de Andrade et al. 2021, Miller et al., 2016, Palmer, Warren & Miller, 2011). These mechanisms have the potential to influence behaviours, by providing a visible indicator that patrons are being monitored, and can enhance the effectiveness of patron bans. In Queensland, the 2017 TAFV provisions introduced mandatory networked ID scanners to certain venues following the recommendations from the interim report to the Queensland Government (Ferris et al., 2017). Queensland was the first Australian jurisdiction to enforce patron bans by linking the banned patron registry with ID scanner technology (de Andrade et al., 2021, Miller et al., 2019).

Patron banning in WA

In WA, barring notices and prohibition orders are available for use in response to alcohol-related violence and disorderly behaviours – the latter are not just confined to actions in/around licensed venues.

Police-imposed barring notices

In 2010, section 115AA of WA’s Liquor Control Act 1988 empowered the Commissioner of Police, or a police officer of or above the rank of Inspector, to approve the exclusion of an individual from a specified licensed venue, or a class of licensed venues, if there is reasonable belief that the recipient has ‘(a) been violent or disorderly; or (b) engaged in indecent behaviour; or (c) contravened a provision of any written law’ (Liquor Control Act 1988, s.115AA). A 2018 amendment expanded the permissible imposition of barring notices to cover the vicinity of licensed premises (Liquor Control Act 1988, s115AA(2)) to include persons misbehaving in queues, on footpaths, and in car parks close to licensed premises. There is no specific distance which denotes the ‘vicinity’ of a licensed venue.

Unlike most other Australian jurisdictions (Farmer, Curtis & Miller, 2018, Farmer & Clifford, 2023), barring notices in WA are not issued on-the-spot. Incidents are reported to the centralised Liquor Enforcement Unit (LEU), and a determination is made on the balance of probabilities following consideration of evidence, such as CCTV and witness statements. Barring notices can be imposed for any period up to 12 months, with breach penalties of up to AUD$10,000 (Liquor Control Act 1988, s.115AA). Licensees have access to a secure Department of Racing, Gaming and Liquor (RGL) website, which provides the details of patrons who are currently subject to a barring notice (although no photograph is provided).

Prohibition orders

Prohibition orders are initiated by WA Police and imposed under the auspices of the RGL. Following the passage of the Liquor and Gaming Legislation Amendment Act 2006, prohibition orders were introduced as a response to more serious anti-social, disorderly, and violent behaviours. The Commissioner of Police may seek approval from the Director of Liquor Licensing to prohibit an individual from ‘… entering specified licensed premises, licensed premises of a specified class or any licensed premises’ (Liquor Control Act 1988, s.152B). The scope of incidents which may meet the criteria for an application is wider than for a barring notice. Prohibition orders are increasingly being considered in family violence situations where the consumption of alcohol contributes to serious and persistent offending (defined by legislative change to Criminal Code 2020). An order can be issued on the balance of probabilities and imposed for up to five years for an adult and two years for a juvenile (Liquor Control Act 1988, s.152F). An alleged breach or failure to comply can result in a fine of up to AUD$10,000 (s.152 L). The RGL publishes prohibition order recipient details on a publicly available web page (WA Government, 2022).

The enforcement of barring notices and prohibition orders currently relies on venue staff, and to a lesser degree police officers, identifying patrons who have been banned. Venues are required to familiarise themselves with the banned patron lists that are shared online by RGL. The centralised imposition of both bans means that there is a temporal and spatial disconnect between the occurrence of the problematic behaviour and the imposition of the ban. In all other Australian jurisdictions patron bans are imposed on-the-spot, which can help venues to know who has been banned (Farmer & Clifford, 2023). Some licensed venues in WA use ID scanners to monitor patrons entering their premises and this can assist with patron ban enforcement.¹ However, ID scanners are not currently widely used in WA.

Research method

The wider study from which this paper is drawn was initiated by WA Police, in collaboration with Deakin University, to examine the effect/s and effectiveness of barring notices and prohibition orders. According to data provided by WA Police, between January 2011–30 June 2020, 4,023 police barring notices were served, and between late 2013–30 June 2020, 345 prohibition orders were granted. This paper sets out key findings from the interview component of the study. Deakin University ethical approval was obtained in November 2020 (reference: HAE-20-163). Approval was also received from the WA Police Research Governance Unit as part of the overall project initiation.

Key informant interviews

Interviews have provided a particularly informative element of previously successful projects in this area (e.g., Miller et al. 2012, 2019, 2022, Miller et al. 2016), and WA Police sought to follow a similar phenomenological process. The stakeholder interviews explored the perceptions and experiences of those charged with implementing and enforcing the provisions: primarily licensees and venue employees. WA Police provided unrestricted access to their liquor enforcement staff, and the WA RGL also participated. Additional key informants from ID scanner companies and Registered Training Organisations (RTOs) were added in response to issues raised during the interviews. The target sample size requested by WA Police was 50, and the final number of interviews undertaken was 54 – this allowed for saturation with respect to the themes examined and the perspectives offered.

Venue owners/managers/licensees

The contact details of on-premise (bars, pubs etc.) liquor retailers across WA were sourced from online listings, with care taken to include venues of different types and across a wide range of locations, including remote and regional areas of the state. There were no specific inclusion/exclusion criteria and the overall sampling approach was one of convenience, in common with comparable studies (Miller et al., 2019, 2022). In total, 145 venues were contacted initially by email, with a telephone follow-up for those who responded: 88 generated no response, 6 declined and 51 expressed interest.² The coordinators of four WA Liquor Accords (Perth, Fremantle, Mandurah and Scarborough) also forwarded project details to their member lists. Venue participants comprised the majority of the sample (n = 35, 65%; pseudonym ‘Venue’)³ and were drawn from across WA: 28 of the venues (80%) were located in the Greater Perth area (including Fremantle and Scarborough), where the main entertainment districts in the state are located. The remaining seven venues (20%) were located elsewhere in WA (including the geographically more remote and less populous Kimberley and Gascoyne regions). The final locational aspect of the sample was determined by responses received. In terms of venue size, the permitted maximum capacity was recorded: eight (23%) had a capacity of under 150 people; seven (20%) between 150–499; 13 (37%) between 500–999; and seven (20%) over 1000.

WA Police

WA Police facilitated contact with current and recent members of the LEU, all of whom were invited to participate. The LEU is a specialised unit, and the sample did not include general duties officers. WA Police comprised 17% of the sample (n = 9; pseudonym ‘LEU’), and included officers from all ranks within the unit – further delineation risks inadvertently identifying individual participants. Two participants had recently left the LEU; their inclusion enabled the project to benefit from their experience and expertise.

Other key informants

This included representatives from ID scanner companies; peak bodies (advocacy groups or trade associations) covering on-premise and packaged liquor sales; the RGL; and RTOs approved to deliver RGL Approved Manager training (mandatory accreditation for licensees)⁴ in WA. All were contacted directly using publicly available information and invited to participate. For reporting purposes, all other key informants were aggregated into the ‘KIP’ pseudonym category, which comprised 19% of the sample (n = 10): three of whom were from ID scanner companies; two from the RGL; three from RTOs, and two from peak bodies.

Between April and June 2021, online or telephone interviews were conducted with 54 key informants (one participant provided a detailed written response). Interviews were recorded, transcribed and returned to the participants for review, after which each transcript was de-identified and a pseudonym assigned. From the venue category, not all of those who expressed interest were interviewed. The effects of the COVID-19 lockdowns and ongoing restrictions, as well as the more usual demands of running a venue, were the most common reasons provided when interviews were declined.

The interviews were semi-structured and questions were presented across four domains: (i) Awareness/experiences of and attitudes to police barring notices and prohibition orders; (ii) Banning related data and information flow; (iii) Knowledge and understanding (including participant knowledge and perceived community awareness); and (iv) Current issues (including specific challenges and barriers to implementation/enforcement; perceptions of impact; recommendations for improvement). The specific domain focus varied between participant cohort, depending on the way/s in which their role intersected with the barring notice and prohibition order provisions. Any emergent themes or issues brought up by the interview questions were also explored. This paper draws specifically from the findings discerned from each of the domains in relation to the operation and perceived effectiveness of the provisions.

Transcripts were coded and analysed by a single researcher using template thematic analysis: an inductive reflexive design. We acknowledge Braun and Clarke’s (2006, 2022) conceptualisation of inductive/deductive approaches as a spectrum/continuum rather than dichotomy. Our reflexive thematic analysis is inductive (the dataset is the basis from which our themes were derived and our purpose is to give voice to those interviewed), but the overall themes are guided by the questions that were asked of the dataset. Within each of the four domains that were covered during the interviews, common themes were identified and explored (Braun & Clarke, 2006, 2022, Brooks & King, 2014, Kellehear, 1993, Pope & Mays, 1995). The analysis followed six key steps: (i) become familiar with the data; (ii) preliminary coding and thinking about themes; (iii) organise the themes into meaningful clusters; (iv) define an initial template for coding; (v) apply the initial template to further data and modify wherever needed; and (vi) finalise the template to apply it to the full data set (Brooks & King, 2014, Kellehear, 1993). The interviews were not designed to give definitive answers, but they constitute a rich body of qualitative data that provides important ‘on the ground’ perceptions and context. Opinions were diverse, but common themes were evident. Example quotations are included within the Results section to illustrate the findings of relevance, with narratives offering opposing viewpoints included where available.

Limitations

It is acknowledged that representatives of ID scanner companies are likely to promote their product. Their inclusion in the sample was a response to issues raised by other stakeholders and enabled the project to better understand the use of ID scanners in other jurisdictions.

It is also acknowledged that the findings reflect the views of those who were interviewed and cannot be generalised across the interview cohorts or more broadly. Particularly for the venue participants, those who chose to be interviewed may have done so as they hold strong views about patron banning. The perspectives offered largely reflect personal experience, which may not be representative. The interviews also revealed that many of the participants do not have a deep understanding of the actual operation or effect of the provisions.

Findings

The interviewees held a generally optimistic view of patron banning. Most of the participants pointed to potential benefits of the provisions and perceived a broad inherent value:

… I think they’re a great idea … They’re a great tool for reducing the alcohol-related harm and stopping people from reoffending. [LEU-03]

Yeah, I think police ones [are] more effective, because the customer would be more aware of what they did was wrong … [Venue-26]

[Barring Notices] probably gives you a bit more teeth. It’s probably something to put back on the customer as well. If you mention we can ban you from multiple venues rather than just ask you to leave, I think that sends a pretty big message. [Venue-34]

Despite the absence of in-principle opposition to patron banning, a series of limitations were identified in relation to the operation of both provisions. Issues were discussed with respect to information sharing and quality, stakeholder relationships, timeliness, scope and use of the bans, breach provisions, and knowledge limitations. The key concerns are set out below, supported with illustrative quotations. Where relevant, suggested solutions and operational refinements that were put forward by interviewees are noted.

Information sharing and quality

The operational requirements of barring notices and prohibition orders both put the onus on licensees and venue managers to manually recognize and track banned patrons. Venue managers are required to access the RGL managed lists of banned patrons, identify the data of relevance to their venue, and find a way to share the data to enable their staff to identify banned patrons, and, where appropriate, alert police to potential breaches of bans. Interviewees expressed clear and consistent disapproval of this manual information extraction/sharing approach and believed that it is not an effective way to obtain or share banned patron details. The process was highlighted by most participants as creating fundamental operational challenges which limit the capacity of venues to enforce patron bans. Some interviewees also admitted that they did not know how to access this data:

But they’re not going to go in [to the RGL website] and … check each person whether they’ve got a barring or prohibition order, there’s just too much of a volume. [LEU-03]

… they [licensees] can see 190 people on there and I don’t know how they would, without printing off their details and sticking their photo up, … actually be able to use that … [LEU-05]

… in regard to prohibition and the banning orders, that hasn’t been communicated. I guess we haven’t gone and looked for it … I guess they must be on the liquor licensing website, but I’ve never been told how to get to that page. [Venue-02]

… you’re never, ever going to have your entire staff remember all of these peoples’ photos to stop them getting into your venue … you know we’ve got thousands of people coming in and out every day. It’s a huge feat. [Venue-06]

… It’s incredibly difficult for a licensee to stay updated on who’s banned and who’s not. [Venue-08]

Concerns were also expressed about the quality of the information that is available via the RGL web pages. The general absence of photographs and lack of specific details, such as dates of birth, were felt by most interviewees to hinder the accurate identification of individuals who may be banned:

You don’t have a face, you don’t have a date of birth, etc. So, without that type of information, we can’t actually pinpoint who the person is. [Venue-01]

… there’s got to be something better in the information fed to myself … I reckon if you asked 90% of police … they wouldn’t know who was on the prohibition ban list as well. [Venue-09]

… you don’t even get a photograph … It’s just the name and address … So, it’s really something that’s impractical to use on the ground … I think the licensee knowing who the patron is, is the most effective method of identifying who not to serve. [Venue-15]

… for someone working in a major city, especially in the city, they’re [RGL website lists] pretty useless … [Venue-27]

My strong suspicion is that persons who are served these orders/notices can enter and leave licensed premises at will without being identified as being a person barred or prohibited from entering. Unless they commit an offence or bring themselves to the attention of authorities, they will go undetected. [LEU-01]

To address this issue, there was a clear and consistent preference for a more proactive and timely method of communicating information regarding banned patrons. The wider use of ID scanners was presented by a notable proportion of participants as a key mechanism to manage patron entry into venues, to support and enable more effective enforcement of barring notices and prohibition orders. Some participants noted that ID scanners may also enable venue managers and police to proactively follow up and address other behavioural issues that occur in venues – as the identity of all those entering is recorded. However, the interviewees did not express universal support for ID scanners. Concerns were noted regarding the cost, technological limitations, and the potential for reputational harm if the presence of an ID scanner causes patrons to perceive that the venue requires tighter access control and/or if patrons do not wish to have their ID scanned, for privacy or other reasons. This feedback and associated recommendations are addressed in detail in a separate paper (Farmer & Miller, 2023).

Other approaches that were suggested to improve the flow and effectiveness of information and data sharing included more proactive use of social media, by police and the venues themselves, and better communications between venues to share information about banned patrons. Ideas included the creation of formal or informal information sharing networks, and real-time alerts to notify venues of the presence of problematic patrons in a given area:

… we let ourselves know through social media. [Venue-31]

… there’s also been times when we’ve either removed or not allowed people into the venue, that we’ve actually contacted bars in our area, either by phone or by social media to say ‘hey guys, there’s a group of 15 people we wouldn’t let them in … Just keep your eye out’ … [Venue-10]

However, there was some confusion regarding the permissible use of the barring notice data that is reported by RGL on their secure website. Unlike the details of prohibition order recipients, which is publicly available, interviewees (across all cohorts) felt that it is not sufficiently clear whether, when and how barring notice data can be shared. Most of the concerns focused on whether and when this data could be uploaded to ID scanners, but the issues were equally applicable to the details that are permitted to be shared via social media or word of mouth. The confusion reflected an overall lack of understanding of data privacy expectations – specifically, how the requirements of section 115AC of the Liquor Control Act 1988 should be implemented. For many of the interview participants, the data sharing and data privacy issues profoundly limit the operation and effectiveness of barring notices:

… there’s a website, the RGL website, that we are meant to log in to. We are given nothing more than a name and we are meant to work out who these people are. We don’t know if we’re breaching the Privacy Act, by putting these people in our scanner …. [Venue-03]

… it’s a very grey area. If I had [someone] come to me and say that we’re going to do it. [upload barring data to an ID scanner], I would say to seek legal advice … purely because of the privacy surrounding it. [KIP-02]

Stakeholder relationships

A number of interviewees identified a need for more proactive engagement with WA Police and/or RGL. Insufficient or ineffective support was highlighted as a collective part of the challenges faced, along with a belief that venues were doing their best without the powers afforded to police, and a feeling that police view venues as enemies rather than partners with whom to address poor patron behaviours. Some perceived their interactions to be hampered by perceptions of a compliance rather than an educative focus on the part of LEU and RGL. This was highlighted as potentially causing a reluctance among licensees to seek assistance from police due to fear of repercussions for the licensee and/or venue:

We went through a stage where we were too scared to call the police. Because every time we put in an application for an extension of our trading terms, the police would come back and say ‘oh you’ve had this many assaults, and we have to come out this many times’ … [Venue-03]

… there’s a perception in the industry that if we call in for police assistance in matters, that that will create a black mark against our liquor license name. [Venue-07]

I actually find that liquor licensing and liquor enforcement, it’s almost like we’re enemies … Instead of working together… [Venue-10]

I guess the one frustration that I have about that is that each officer that you speak to will interpret something in a different way. [Venue-15]

… we call the police … the care factor is minimal… And then they’ll sometimes … leave without even letting us know what’s going on. [Venue-21]

There were some positive experiences shared, with respect to interactions with WA Police and the RGL, with clear appreciation for the support and assistance provided:

I just reckon RGL and the police do a great job here. [KIP-04]

… I always have been in touch with the Liquor Enforcement Unit, the guys are really helpful. [Venue-14]

Oh, I think that the police do a pretty damn good job … police don’t get involved if they don’t have to. They leave that up to the licensee … They’ll only step in on top of you if you’re doing the wrong thing as the licensee/manager. [Venue-29]

Timeliness

The time-consuming nature of the implementation processes were generally perceived to reduce the timeliness and, as a result, the effectiveness of both provisions. The current method of imposition requires WA Police and/or RGL to gather and consider all evidence and other relevant information before making their determination. This process can take a number of weeks. The resulting temporal and spatial disconnect between incidents and outcomes was concerning to some participants, who felt that this limited the effectiveness of the provisions. Processing time was also perceived to influence police operational decisions regarding whether to impose a barring notice at all or whether to choose another more immediate provision, such as a move-on order.⁵ Collectively, these issues undermine and/or limit the use and potential effects of barring notices and prohibition orders. Operational concerns relating to timeliness were particularly strong across the police officer interview cohort:

The Police Minister stated that it only takes three weeks to get one of these [prohibition order]. Well, RGL have a 28-day cooling off period alone with an application … In actual fact at that point, it was 105 days from when we gave them the application to when they granted it. [LEU-06]

… I think the service is very, very cumbersome… [LEU-03]

… our bosses came up with a triage system where basically depending on what you did, if it [barring notice] wasn’t worth at least six months, then it generally got pushed to the back and do it when you get a chance. [LEU-07]

… I was at an Accord meeting recently where the police advisor said it takes them approximately 11-man hours to complete the required paperwork for the prohibition order and the average turnaround time from RGL was 102 days … Not very effective in getting people off the street. [Venue-15]

Another suggested refinement is to establish a link between the imposition of a licensee ban or move-on order and a barring notice. One option could be to create a mechanism through which licensees could self-report individuals who they have banned from their venue, about whom they hold broader behavioural concerns, and for which evidence can be provided.

… there’s potentially an opportunity to enhance the legislation to greatly empower licensees with respect to barring people for periods of time … [LEU-09]

But my thought process is that the banning notice from a licensee would go toward a barring notice from police … And I have spoken to some people who are barred from some venues or banned from some venues, and they do treat it as a bit of a joke. [Venue-07]

The referral could then initiate an LEU review of all available evidence to determine whether a barring notice is appropriate.

Scope and use of provisions

A number of interviewees recommended reviewing the legislated use and scope of barring notice and prohibition order provisions. These procedural and scoping suggestions were mostly made by participants more directly involved in the operation of the provisions. One suggestion is to extend the permissible use of both provisions to cover the illegal resale of alcohol:

I would like to see prohibition and barring notices for people that purchase alcohol to resell illegally. I want to stop them from being able to purchase the alcohol to then sly grog on to Aboriginal communities at a 500% price increase. [KIP-02]

Prohibition orders are not directly linked to behaviours in/around licensed venues, whereas the imposition of a police barring notice must relate to behaviours ‘on licensed premises or in the vicinity of licensed premises’ (Liquor Control Act 1988, s.115AA). This was regarded as an operational limitation for barring notices that should be adjusted:

We have problematic people that go and buy packaged liquor from the local liquor store, they walk 300 meters down to the local park, drink it, start a fight, they’re all drunk. They’re people that should be receiving barring notices. [LEU-06]

Some participants also noted the renewed focus on family violence and the expansion of the permissible use of prohibition orders where alcohol is involved but where incidents may/may not have occurred in or near a licensed venue. This prompted some consideration of a similar change to barring notice imposition. Associated with this were suggestions for police officers to be empowered to impose temporary or interim barring notices that could take effect immediately, before being subject to review and finalisation by the LEU. Under current processes it can take several weeks for a ban to be imposed, and an interim provision would link the action/s of the patron with a more direct and immediate consequence, which could increase the potential impact of a ban on patron behaviour:

… something we potentially wanted to look at was where there’s been alleged domestic violence, but it’s not necessarily in the vicinity of a licensed premises, but it is alcohol related, for police to be able to issue a barring notice to an individual. [KIP-01]

We also want them to investigate the idea that if police go to an environment where there is physical violence, whether that be domestic or otherwise, and the person or the perpetrator is knowingly intoxicated, then we would like, much like a police order [temporary violence restraining order], for a temporary barring notice to be placed on those people, to get on the system … [KIP-02]

Breach provisions

Both provisions were perceived to ‘lack teeth’. This perception intersected with concerns regarding enforcement, the identification of breaches and their consequences (most notably the low level of fines imposed compared with the legislated levels permitted), and the inflexibility of the current requirement for barring notice breaches to be dealt with via a court summons rather than infringement provisions. Participants supported the need for more serious consequences, both for breaches of bans and more generally for unacceptable behaviours:

I think it’s a little bit of a toothless tiger because … all this work goes into them … But it’s not enforced unless police are watching, and they know that that person has a[n] … order. [LEU-04]

… the maximum penalty for breaching a barring notice was $10,000 … you certainly wouldn’t expect anyone to get $10,000 … [but] generally, if you breached a barring notice and went to court, its going rate seemed to be about a $300 fine … that’s not exactly a deterrent. [LEU-07]

… if that barring notice mechanism worked better, and was a more terrifying thing that happened to people if they really did the wrong thing, it might pull that back into line. [Venue-16]

Unfortunately, a barring notice cannot be prosecuted by way of an infringement. It has to be by a prosecution notice. It has to go to court. Which is interesting and that needs changing. [LEU-02]

Knowledge limitations

Almost all participants shared strong views regarding both provisions, but the demonstrable level and accuracy of the understanding of their operation was limited. Understanding was generally stronger for the participants who are formally involved in the processes, such as LEU officers. Specific understanding of barring notices was higher than for prohibition orders:

I don’t really know much to be honest. [Venue-02]

I’d be really surprised if you had someone who came on here, and legitimately said ‘yeah I know the differences between the two’. I had to look them up and thought ‘oh, there’s two?!’ [Venue-03]

I guess there’s probably a bit of confusion or not clear understanding between the difference of barring notice and a prohibition order. [Venue-18]

I can’t really imagine what the difference is between the barring notice and prohibition order. [Venue-27]

The majority of venue participants admitted to little recollection of the patron banning provisions from their Approved Manager training and, for some, their training pre-dated the introduction of one or both of the provisions:

It wasn’t part of my approved manager course when I did it … I don’t recall it. [Venue-33]

No, no training at all. [Venue-09]

Training. I don’t think so, I can’t remember. [Venue-14]

You can have a brief idea … [from] what you learn in the management courses and all that, but theory and practice are totally different. [Venue-21]

… legislation is constantly evolving in this area. Every year there seems to be a change … yet, if the managers aren’t compelled to change with the times and keep up to date … Why would you want to do training when you’re not compelled to do the training? [KIP-05]

For some venue participants, their knowledge of the provisions has been derived primarily from ‘on the ground’ experience. Some directly linked their lack of knowledge to a perceived insufficiency or absence of formal communication from WA Police and/or RGL:

… some insight from the authorities … whether they come into the venue or do some sort of training session … and say ‘look, this is what you’ve got in your arsenal’ … you can do a, b, and c to ensure that that patron does not enter your venue, and if they do, you can do, this, this, and this in order for them to leave. [Venue-12]

I don’t have access to information and communication between venues and the police … one example is I’ve got this lady who is barred. She has mental health issues and she’s been a menace … But when I phoned the police, they obviously know her name, but they won’t tell us her name. It’s just lack of communication and understanding. [Venue-26]

… whether it [information about the provisions] comes from an in-house training system or an external system … if you want to set that up for venues … I think that would be very handy. [Venue-31]

Most participants also supported the need for more effective education programs to alert the community to the provisions and to reinforce behavioural expectations in/around licensed venues. This included on-premise education by way of signage, and more generally across the community such as advertising and school-based programs:

So, it’s possibly a public education campaign for licensees and for the general public as well so there is a little bit more knowledge. [Venue-07]

… education towards the public of what they can and cannot do in a licensed premise. I think it’s important. [Venue-32]

I suppose it comes from Government initiatives and education in schools … The other part of that is like literally targeting the areas where it seems to be happening the most probably would be an effective strategy. [Venue-33]

These findings were replicated more broadly within a survey of WA community members undertaken as part of the wider study, which confirmed the limited level of knowledge and understanding of the provisions (Farmer et al. 2024):

Discussion

The interviews undertaken for this study reveal a high level of agreement between the cohorts and general consensus with respect to key objectives for barring notices and prohibition orders, as well as their desired outcomes. Both provisions enjoy support across those who were interviewed, despite concerns expressed by many in the venue participant group that WA Police and RGL do not necessarily work in the best interests of the venues. There is, therefore, clear potential for WA Police, RGL and the WA Government to further increase and enhance the perceived effectiveness of patron banning policy, by being seen to adopt a more collaborative, communication-focused, and educative approach to licensees and venue managers.

The commonalities across the perspectives reported are indicative of relevant shared experiences and perceptions. Interviewees consistently expressed concerns regarding the capacity to identify banned patrons, the consequential challenges of enforcement, deficient breach provisions, the unintended effects associated with delayed imposition of bans, a lack of training, and communication issues with respect to the provisions and the sharing of patron information. Concerns relating to the timeliness of the imposition of barring notices and prohibition orders reflect the centralised decision-making approach that is applied in WA. Such concerns were not raised during earlier research examining the use of patron banning in Victoria and NSW as, in common with all other Australian jurisdictions, both utilise on-the-spot bans that are issued at the discretion of individual police officers (Farmer & Clifford, 2023, Miller et al. 2016). Within the current study, potential policy refinements include the wider use of ID scanners (Farmer & Miller, 2023), more effective data sharing and notice/order service processes, the option to impose temporary on-the-spot barring notices and expanding their behavioural scope, and more focused, educative, and proactive training and communications from and with WA Police and RGL. The venue interview participants drew a clear comparison with licensee-imposed bans, which they perceived to be more effective due to their immediate imposition, the licensee’s control of the banned patron data, knowing what the patron looks like and, as a result, the ban being easier to enforce. The suggestion to create a proactive licensee-driven referral pathway for barring notices could leverage some of these benefits. A key limitation is likely to be resource based with respect to capacity of the LEU to investigate. However, such an approach may serve to improve relationships between licensees and the LEU, and help to develop a greater sense that each has similar objectives with respect to managing behavioural issues in/around licensed venues.

As part of the wider project, WA Police provided unit level records of 67,750 assault incidents occurring during high-alcohol hours − 8 pm to 6 am on Friday and Saturday nights – between 1 July 2007 and 30 June 2020. This enabled data from before and after the introduction of barring notices to be compared. While the specific effects of banning could not be isolated (and the potential effects of other factors could not be excluded), there was a clear association identified between the introduction of barring notices and, in particular, a reduction in alcohol-flagged violent offending. This appears to support the use and potentially beneficial effects of police banning in WA (Farmer, Miller & Taylor, 2023).

In a number of respects, the current centralised imposition approach positions WA’s banning provisions as exemplars of good practice when compared with other jurisdictions. The use of a specialised team and the opportunity to consider all relevant evidence promotes more consistent and appropriate application of the provisions, and removes the risk of capricious or personal influences on the part of the officer imposing the ban (Farmer & Clifford, 2023, Farmer, Clifford & Miller, 2021). Notwithstanding the positive findings from the analysis of assault data, the interviews highlight concern about the impact of this process on the effectiveness of the provisions, particularly given the lack of immediacy. There is a tension between the need to ensure quality decisions, and the value of making them quickly. One suggested solution included the option for police officers to impose a temporary on-the-spot barring notice that could then be subject to review and finalisation by the LEU under existing processes. This could improve the immediacy of the ban and increase the potential impact on patron behaviour. The provision of an automatic review would limit concerns relating to procedural justice and consistency of application that have been associated with discretionary on-the-spot police powers to ban (Farmer, 2019).

Despite the general support for barring notices and prohibition orders, their perceived effectiveness was tempered by concerns relating to enforcement. The most significant issue related to the flow of information about banned patrons and the difficulty of identification. Unlike other Australian jurisdictions, where bans are imposed on-the-spot (Farmer & Clifford, 2023, Farmer, Clifford & Miller, 2021, Miller et al. 2016), the bans in WA may be imposed weeks or even months after an incident takes place. The centralised decision-making approach mitigates due process concerns raised in other studies regarding the use of on-the-spot discretionary police powers to punish (Farmer, 2018, Farmer, Curtis & Miller, 2018) but it creates particular challenges for venues in WA. Critically, the process reduces the likelihood that venue staff will have any knowledge that an individual has been banned, as they will not witness a ban being imposed. Unless banned patrons are personally known to venue staff, for example due to a particular notoriety or in smaller towns/regional areas, enforcement of barring notices and prohibition orders will rely on staff memory and an ability to effectively use the data provided via the RGL website. There was also no consistent understanding of privacy requirements with respect to the permissible use of barring notice data, as this data is not currently made publicly available. Concerns regarding data privacy were raised by Miller et al. (2016), with respect to sharing banned patron data between venues. However, the issues set out in their earlier study were more limited and licensees had greater scope to use and share the banned patron data, particularly via ID scanners there were already operational.

The extent to which issues regarding the sharing of barred patron data influence the enforceability of barring notices and, therefore, the likelihood of a breach being recorded is difficult to measure. But it is reasonable to conclude that the combined challenges of data sharing, banned patron identification, and more cumbersome breach processes may affect the operation and enforcement of barring notices in WA. There is an opportunity to enhance the beneficial effects of the provisions by ensuring more robust and effective enforcement mechanisms and addressing the current issues within the breach processes and outcomes. One tangible change, identified by some of the police participants, is for WA Police to advocate for barring notice breach options to be extended to enable them to be dealt with via infringement mechanisms, similar to the current management of traffic infringements in WA, for which the initial fine could be set at an agreed level (WA Police Force, 2022).

The interviews identified a limitation with respect to knowledge and understanding of the provisions, which intersects with training related concerns. It is a requirement for venue managers and licensees in WA to undertake Approved Manager accreditation via one of five RGL approved RTOs. The study from which this paper is drawn did not set out to evaluate current Approved Manager training within WA, but the interviews revealed that venue participants with more recent Approved Manager training had more awareness of the provisions, although understanding of their operation was still limited. Interviewees from RTOs confirmed that both provisions are covered by the training, but the emphasis is limited, with participants typically directed to the relevant legislation and RGL provided information.

It is clear from the participant discussion of their own awareness and understanding of barring notices and prohibition orders that more could be done to ensure that licensees and key venue staff fully understand the provisions. Currently, WA does not require Approved Manager accreditation to be updated or periodically refreshed. By comparison, in NSW, Approved Manager competency must be re-confirmed every five years (Liquor and Gaming, 2022).

Communication more broadly was identified as another potential process refinement. Participants felt that understanding of the provisions and information sharing about banned patrons could both be improved by developing more positive and collaborative relationships between WA Police, RGL, and licensed venues. In addition, specific community-focused education, and on-premise signage were suggested as ways to build understanding of acceptable behaviours and potential consequences for those who transgress.

Conclusion

The banning of patrons, from private and public locations, is generally presumed to increase public safety, to change the behaviours of recipients, and to prevent crime. No Australian jurisdiction actively monitors the use or effect of their patron banning provisions (Farmer & Clifford, 2023). Queensland included some analysis of police banning orders within the QUANTEM study (Miller et al., 2019, Taylor et al., 2021) and limited studies have been conducted in Victoria and NSW (Farmer, 2021a, 2021b, Curtis et al., 2018, 2022, Miller et al. 2016). From an international perspective, there has been little analysis of the perceptions of patron banning from those responsible for their implementation. Søgaard (2018) examined the experiences of recipients of zonal bans in Denmark, and drew attention to their limited beneficial effects. The project from which this paper has been derived is one of the first in Australia to specifically examine the effectiveness of patron banning provisions. This paper provides new insight into banning policy and practice. It explores the operation and perceived effectiveness of two police banning provisions in WA, both of which differ notably from those in other jurisdictions, and draws primarily from the experiences of those who are charged with their implementation and enforcement.

The specific findings and the operational and policy recommendations relate to WA. However, key implications from the study are applicable across other Australian and international jurisdictions, where police bans, as well as other forms of exclusion, are used. A pre-requisite for any form of ban is to balance immediacy of imposition and impact with operational and procedural fairness – to ensure that the right people are banned for the right reasons. Once imposed, timely and accurate information sharing are essential to support and enable ban enforcement, alongside efficient and effective breach provisions, a clear rationale for the use of banning – which can be adapted in response to changing risks and associated needs – and appropriate mechanisms to ensure that stakeholders and the wider community understand the requirements and the consequences of a patron ban.

Author contributions

All authors contributed to the study conception, design, data collection, and analysis. The first draft of the manuscript was written by Associate Professor Clare Farmer and authors commented on previous versions of the manuscript. All authors read and approved the final manuscript.

Compliance with ethical standards

Deakin University ethical approval for this project was obtained in November 2020 (reference: HAE-20-163). Approval was also received from the WA Police Research Governance Unit as part of the overall project approval.

All interview participants were sent a Plain Language Statement and a Consent Form. Before the interview, each participant was required to confirm that they had read the Plain Language Statement, understood it, and consented to the interview.

Data statement

This paper draws from interview transcripts. The data cannot be made available due to the requirements of the Deakin University ethical approval.

Acknowledgments

The authors extend their thanks to all of the people who were interviewed as part of this study, as well as to the project team members who undertook the interviews: Dr Jess Saligari, Anna Darcey and Emma Gretgrix. We also acknowledge the support of WA Police and the WA Department of Racing, Gaming and Liquor.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Additional information

Funding

The project to which this paper relates was funded by WA Police, following a competitive tender process. WA Police Research Governance has approved the publication of this paper, but have had no involvement in its writing or the decision to submit for publication. The views expressed in this publication are not necessarily those of WA Police and any errors of omission or commission are the responsibility of the author/s.

Notes on contributors

Clare Farmer

Clare Farmer is an Associate Professor of Criminology at Deakin University. She has an applied research focus, with an emphasis on criminal justice policy and practice, including policy evaluations and recommendations. Her research interests include the challenge of balancing the competing needs of offenders, victims of crime, and the wider community within/across the criminal justice system; policy responses to anti-social behaviour/s; the use of exclusion/prohibition; police discretionary powers and the use of force; human rights; sentencing principles and processes; trauma-informed/responsive practice. Associate Professor Farmer is a former Magistrate in England, and a current member of the Adult Parole Board in Victoria, Australia.

Peter Miller

Peter Miller is the Professor of Violence Prevention and Addiction Studies at the School of Psychology, Deakin University and Director of the Centre for Drug use, Addictive and Anti-social behaviour Research (CEDAAR: http://www.deakin.edu.au/cedaar). Professor Miller has completed five of the largest studies ever conducted into alcohol policy, licensed venues, violence, comparing 12 Australian cities over 10years and talking to more than 25,000 patrons on the street, 1000 key informant interviews, analysed over 200 separate archival data sets and managed more than 2000 observations of licensed venues. He has published over 300 journal articles, books and peer-reviewed reports and been awarded over $10.5 million in research funding, with 79% of this funding from category 1 grants ($5.9 million ARC, NHMRC, CRC) and government tenders ($4.7m from: NT government, NSW government, QLD government, WA government, Vic government and National Law Enforcement Drug Research Foundation).

Sally Kennedy

Sally Kennedy is a casual Research Fellow at Deakin University. She has worked with Associate Professor Farmer and Professor Miller across a number of projects and has particular expertise in the analysis of qualitative data.

Notes

1. The most commonly implemented system is operated by ScanTek.

2. 24% of the venues which were ‘cold’ contacted agreed to participate in the study. By way of comparison, the QUANTEM study in Queensland reported that 8.2% of key informants who were ‘cold’ contacted completed an interview [20, p. 532]. However, it is acknowledged that 76% of the venues contacted for the current study did not take part.

3. All those who expressed interest (n = 51) were invited to be interviewed. The final sample size of 35 reflects changes to availability and/or logistical issues which prevented some of the prospective participants from taking part. For example, the data collection period coincided with a sudden COVID-19 lockdown in April 2021. This, along with more general pressures associated with running licensed venues, meant that some who had expressed interest were not able to take part within the timelines for the project.

4. It is a requirement for Venue Managers and Licensees in WA to undertake Approved Manager accreditation. There are currently five Registered Training Organisations (RTOs) in WA approved by the Department of Racing, Gaming & Liquor (RGL) to deliver the Approved Manager training and assessment.

5. Under section 27 of the Criminal Investigation Act 2006, a police officer may require a person to immediately leave a specified area and not return for up to 24 hours.