A Unique Power to Punish: An Examination of the Operation, Scrutiny, and Attendant Risks of Licensee Barring Provisions in Victoria, Australia

Abstract

Across Australia, patron banning measures address alcohol-related behavioral issues in entertainment districts. This article compares the legislative framing of Victoria’s licensee barring order policy with the experiences of recipients. The rationale and operational expectations for licensee barring are examined in relation to key themes which emerged during parliamentary debates of the legislation, and contrasted with the reported experiences of recipients. The findings point to a disconnect between the expected and actual operation of licensee barring, an absence of oversight, and a tangible risk of misuse. Barring orders extend to ordinary citizens a unique police-enforceable power to punish, yet licensees currently act without scrutiny or accountability. A review of barring policy is recommended to ensure a robust process for effective monitoring, meaningful consequences for the misuse of barring powers, and deeper consideration of the attendant risks to due process and procedural justice of the civilianisation of punishment.

A Civilianised Summary Power to Exclude: Perceptual Deterrence, Compliance and Legitimacy

“…To date, no study has established the effects of any of Australia's banning provisions on recipients, in terms of their perceptions, compliance, or subsequent behavioural decision-making. Palmer and Warren (2014) and Farmer (2017Farmer ( , 2019Farmer ( , 2020 identified and examined key conceptual concerns regarding the use of exclusion in public spaces, the arbitrary application of discretionary powers to punish, and the implications for individual rights. Curtis et al (2018) explored public understanding of patron banning in Victoria via an online questionnaire.…”

“…5 Barring orders are non-criminal sanctions, enforced via a range of infringement mechanisms which may result in a fine or court proceedings. Farmer (2019Farmer ( , 2020 documented conceptual and operational issues regarding the lack of specific training for licensees, and the principle of empowering ordinary citizens to punish without implementing a supporting structure of accountability. Despite their formal nature and the potential consequences of a breach, in most Australian jurisdictions there is limited facility for independent review of a licensee decision to ban, and their use is subject to little scrutiny (Farmer 2019(Farmer , 2020.…”

“…Farmer (2019Farmer ( , 2020 documented conceptual and operational issues regarding the lack of specific training for licensees, and the principle of empowering ordinary citizens to punish without implementing a supporting structure of accountability. Despite their formal nature and the potential consequences of a breach, in most Australian jurisdictions there is limited facility for independent review of a licensee decision to ban, and their use is subject to little scrutiny (Farmer 2019(Farmer , 2020. The propriety of permitting non-law enforcement officers to issue legally enforceable sanctions and attendant perceptions of the legitimacy of such quasi-criminal processes aligns with an extensive body of research examining policing legitimacy (Tyler and Jackson 2014;Tyler and Wakslak 2004;Wadds 2015).…”

“…High-profile responses, such as lock-out laws introduced in Sydney in 2014, and Queensland's 2017 implementation of compulsory ID scanners at key licensed venues, have generated extensive debate and analysis regarding their need and effect, and the broader context of expanding governance and control (Donnelly and Poynton 2019;McNamara and Quilter 2015;Menendez et al 2015Menendez et al , 2016Miller et al 2017Miller et al , 2019. A key element of the regulation of entertainment districts is the use of spatial exclusion and patron banning, which has expanded across all Australian jurisdictions with minimal scrutiny (Farmer 2019(Farmer , 2020Farmer et al 2018;Palmer and Warren 2014). Banning achieves a practical and political need to address alcoholrelated issues and finds little opposition from the liquor industry and other key stakeholders (Miller et al 2016).…”

“…Banning provisions differ across jurisdictions but a common presumption is that the experience, or risk, of exclusion from a venue and/or local area will deter troublesome patrons (Farmer et al, 2018). However, without formal oversight of its use or effects, patron banning has become a politically expedient example of 'being seen to do something' rather than a genuine mechanism to promote tangible and sustainable behaviour change (Farmer 2019(Farmer , 2020Farmer, Clifford and Miller 2020).…”