Is a 24 hour ban such a bad thing?

A key element in Australian policing in recent years is the growth of police-imposed discretionary summary justice. The rise and impact of on-the-spot fines, infringement notices, exclusion orders and move-on powers enable police-initiated resolutions and punishments to be imposed, often without legal or judicial intervention. These operational policing mechanisms reflect underlying pressures to reduce costs, ease the burden on the court system, and speed up the decision-making process, but when viewed from a human rights perspective the potential consequences are significant. Focusing on the legislative development of banning notices in Victoria, this article highlights the impact of such a police-imposed punishment upon individual due process procedural protections. Banning notices deny the recipient the right to conduct a defence, undermine the presumption of innocence, and conflate notions of pre-emption and punishment. The rhetoric upon which the banning notice legislation is predicated obviates meaningful scrutiny of the diminution of individual rights that are implicit in its enactment. A perceived ‘need’ to control disorder and ‘re-balance’ justice to prioritise community protection is used to legitimise any consequential impact upon the principles of criminal law, due process and human rights.

The disparity between human rights policy and parliamentary practice in Australia : a Victorian case study

Over the past decade alcohol-related violence in and around licensed premises has given rise to significant legislative, regulatory and operational policing developments. In Australia, the State of Victoria introduced police-imposed banning notices as part of a range of provisions and new powers targeting alcohol-related disorderly behaviour. Banning notices exemplify a broader shift towards discretionary, pre-emptive, regulatory, summary justice which circumvents the criminal law, dilutes individual rights, and reconfigures expectations of balance in the administration of justice. The legal principles upon which banning notices are based and the way in which they were enacted by the Victorian Parliament challenge both the purpose and specific requirements of Victoria’s Charter of Human Rights and Responsibilities Act 2006. Detailed analysis of the application of the Charter compliance processes to the banning notice provisions point to a notable disparity between the expectations of formal human rights policy and the reality of substantive practice. The broader effect of such a disconnect is potentially significant, but has been largely opaque to meaningful scrutiny.

Juvenile justice diversion in Victoria : a blank canvas?

Unlike many jurisdictions in Australia, Victoria has not adopted a legislative, court-based diversion scheme for addressing crime committed by children and young people. The state has also seen limited investment in diversionary programs and an over-reliance on discretionary police cautions. For young people in rural and regional areas, access to diversion programs and support services is especially limited. This article examines the limited diversionary options available in the current youth justice system, identifying strengths and opportunities. It concludes that legislated, court-based diversion schemes — assisted by community programs that provide appropriate intervention and support to those at risk of reoffending — are an essential means of addressing young people’s engagement in crime.

The paradox of parity in sentencing in Australia: the pursuit of equal justice that highlights the futility of consistency in sentencing

Parity in sentencing is the principle that offenders who are parties to a crime should, all things being equal, receive the same penalty. While it is a well-established principle, the reality is that its scope is greatly limited by the largely unfettered nature of the sentencing calculus. Things are rarely equal between offenders due to the large number of variables that current orthodoxy maintains are relevant to sentencing. This makes application of the parity principle unpredictable, resulting in the paradox that parity highlights the unfairness that it is meant to mitigate: inconsistency in sentencing. This article contends that parity will remain an aspiration, as opposed to a concrete principle, until the instinctive synthesis approach to sentencing yields to a more transparent and precise decision-making process. The article focuses on Australian jurisprudence, but the analysis applies to all jurisdictions where sentencing has a considerable discretionary component (including the UK and the USA--apart from the limited circumstances where mandatory sentences apply).

Victoria’s banning provisions: ‘balancing’ discretionary police powers and individual rights

This thesis examines the parliamentary passage, implementation and ongoing scrutiny of Victoria’s banning notice provisions. Underlying political assumptions and justifications are explored to reveal how banning notices exemplify a move towards police-imposed discretionary justice, which undermines individual rights and reconfigures the notion of balance in the criminal justice system.

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

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