Australia’s discretionary police-imposed banning powers: oversight, scrutiny and accountability

ABSTRACT

Summary powers to exclude individuals from public areas form a key part of the policing of space and the control of undesirable behaviors. The rationale for police-imposed banning is framed around a presumed need to manage the risk of disorder, and assumes a combination of operational, deterrent and community safety effects.

In Australia, the reach of banning has expanded steadily but oversight is limited. Some jurisdictions mandate the publication of annual reports relating to the imposition of police bans, while others preclude any information sharing. This paper analyses the data that is available to assess what it reveals about the use and effects of banning, and examines the extent to which jurisdictions monitor their banning provisions.

Overall, the findings do not support a reasonable expectation of scrutiny and accountability of summary police powers to ban. Limited patterns of use can be discerned, but the effects of banning cannot be isolated. Despite the enthusiasm with which police banning powers have been implemented, there is little evidence of proactive monitoring of their use or effects. This study highlights a clear need for police banning across Australia to be subject to meaningful oversight and rigorous scrutiny.

KEYWORDS:

• Police-imposed banning
• Exclusion
• Police discretion
• Policing of Space
• Deterrence

Current studies: www.industryinsight.info, http://lastdrinks.info/, http://quantem.info/

Disclosure statement

No potential conflict of interest was reported by the authors.

Notes

1. Statute Amendment (Power to Bar) Act 2008 (s125B).

2. Liquor Licensing Amendment Act 2015 (s94) .

3. Liquor Control Reform Amendment Act 2010 (s22).

4. 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), the Review of the Liquor Control Act 1988 in Western Australia (WA) (WA Independent Review Committee, 2014), and Queensland’s ‘Tackling Alcohol-Fuelled Violence’ policy review (Miller et al., 2019, 2017).

5. This was increased to a maximum of 72 hours under the Justice Legislation Amendment (Victims of Crime Assistance & Other Matters) Act 2010.

6. The Annual Reports for the financial years 2015–16, 2016–17 are published online. The Annual Reports for the years 2010–15 were obtained from the NT Department of the Legislative Assembly.

7. These totals are derived from the offence data by designated area. The totals may differ from those in Table 4, as banning notices issued for more than one offence are recorded separately in this data.

8. This figure excludes 2014–15, as infringement notice data was not reported.

9. The alleged behavior must have occurred within a licensed venue, or its vicinity (Liquor Control Amendment Act 2018, s115AA(2)).

10. The Commissioner of Police is also empowered to 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). Prohibition Orders can be issued for anti-social behavior in or around licensed premises, or following conviction for a relevant offence (WA Government, 2018), and may be imposed for up to five years for an adult and two years for a juvenile (s.152F). The details of Prohibition Orders are published online, but this data has not been included within the analysis for this paper.

Additional information

Notes on contributors

Clare Farmer

Dr Clare Farmer is a Lecturer in Criminology at the School of Humanities & Social Sciences, Deakin University. Her research interests and publication record include: the use of exclusion and spatial prohibition as a response to actual/perceived problematic behaviours; the effect of discretionary police powers to punish on due process and individual rights; police militarisation; and sentencing policy and practice.

Robyn Clifford

Dr Robyn Clifford teaches across the Criminology and Sociology program at Deakin University. Her research interests focus on patron behaviours in the night-time economy.

Peter Miller

Peter Miller is a Professor of Violence Prevention and Addiction Studies at the School of Psychology, Deakin University. His research interests include: Alcohol and Drug-related violence; predictors of violence (including family and domestic violence), and Corporate Political Activity of alcohol and dangerous consumptions industries. Peter has recently completed four of the largest studies ever conducted into alcohol policy, licensed venues, violence, comparing 12 Australian cities over 10 years and talking to more than 25,000 patrons. He has published over 200 journal articles, books and peer-reviewed reports and was also presented the Excellence in Research Award at the 2013 Australian National Drug and Alcohol Awards. He is currently running major studies assessing the impact of restricted trading hours in Queensland and testing the impact of last drinks data collected in Emergency Departments to identify and intervene with problem venues across Australia.

Current studies: www.industryinsight.info, http://lastdrinks.info/, http://quantem.info/