Victoria’s banning notice provisions: parliamentary, procedural and individual vulnerabilities

Purpose Alcohol-related disorder in Australia’s night-time economy has precipitated an expanding regulatory and legislative framework. A key feature is the growth of police-imposed discretionary justice, one example of which are Victoria’s banning provisions. Banning notices are imposed on-the-spot, may be issued pre-emptively, but permit no right of independent appeal. However, there has been little analysis of the enactment, implementation or use of police-imposed banning provisions. The paper aims to discuss these issues.

Design/methodology/approach This paper draws upon a detailed examination of the record of parliamentary debate of the banning notice legislation to document how the provisions, and their embedded procedural vulnerabilities, were legitimised. In addition, an analysis of Victoria Police data informs consideration of the ongoing scrutiny of the police power to ban.

FindingsThe absolute discretion afforded to police officers, and a lack of effective oversight, has created the potential for the disproportionate and discriminatory implementation of Victoria’s banning notice powers. The findings highlight procedural vulnerabilities within the provisions, and concern regarding the particular risk of banning notices for vulnerable recipients.

Research limitations/implications The nature of Victoria’s banning provisions created the circumstances for their inequitable imposition, but public scrutiny of their use and effect is limited. Omissions and deficiencies in the published data restricts meaningful analysis of how banning works in practice.

Originality/value The research underpinning this paper was the first detailed examination of the implementation and ongoing scrutiny of Victoria’s banning notice provisions. The findings presented in this paper highlight key procedural vulnerabilities resulting from the passage of the legislation and the absence of effective oversight.

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.

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.

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.

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.

Motor Accident Insurance Act 1994 - reasonable excuse for delay in giving notice under s37

The decisions in Perdis v The Nominal Defendant [2003] QCA 555, Miller v the Nominal Defendant [2003] QCA 558 and Piper v the Nominal Defendant [2003] QCA 557 were handed down contemporaneously by the Queensland Court of Appeal on December 15 2003. They consider important issues as to the construction of key provisions of the Motor Accident Insurance Act 1994 (Qld)

Arrêt du conseil d'Etat qui ordonne que les acquéreurs des nouveaux offices de secrétaires du roi créés par édit de décembre 1708, et autres, seront tenus d'obtenir des provisions et de se faire recevoir auxdits offices pour jouir des privilèges et exemptions y attribués

[Acte. 1711-01-20. Versailles]

Arrêt du conseil d'Etat qui nomme des commissaires pour procéder au jugement des oppositions formées au sceau des provisions des offices reçus en paiement des taxes des gens d'affaires ; à la liquidation des dettes privilégiées et à l'ordre des créanciers

[Acte. 1717-07-03. Paris]

Arrêt du conseil d'Etat qui règle les formalités pour la vente et l'expédition des provisions des offices de conseillers-secrétaires du roi et autres qui ont été ou seront reçus en paiement des taxes de ceux qui auront été compris dans les rôles arrêtés au conseil, en exécution de la déclaration du 18 sept. 1716

[Acte. 1717-08-18. Paris]

Arrêt du conseil d'Etat portant prorogation pendant l'année 1718 pour la modération des frais des provisions et de reception en faveur de ceux qui lèveront des offices taxés vacants aux revenus casuels

[Acte. 1718-02-01. Paris]

Identifying the barriers to implementing the Victorian Department of Education and Training guidelines regarding the provisions of nutrient dense food options in school canteens

Aims & rationale/Objectives : To identify barriers to the full implementation of new guidelines regarding school canteen menus launched by The Victorian Education Department in May 2004.
Methods : A self-administered questionnaire was sent to principals, business mangers and canteen managers of 13 secondary schools in South West Victoria covered by The Greater Green Triangle area (response rate 59%). The questions explored the canteen's role, operation, staffing and profits; existence and content of canteen policy; enablers and barriers to the sale of healthier foods; introduction and promotion of healthier foods; and perceived implications of banning less healthy foods.
Principal findings : The study identified several barriers to implementing healthy menus in school canteens, these being largely consistent with those found in other studies. The majority of schools reported they were making attempts to follow the guidelines for school food services, but were experiencing difficulty in proceeding to full implementation. The barriers identified through the study were student preference for less healthy options, concerns about profitability, lack of policy or its active communication and promotion at the school level and competition from other food outlets.
Discussion : There was evidence that healthy foods had not been actively promoted, suggesting that identification of student preferences as a barrier was based on perception rather than observation. The Victorian guidelines are effectively voluntary, with no accountability measures in place.
Implications : Research needs to be conducted to provide reliable and tested information about factors which impact on student choice. Schools would benefit from specialised assistance to formulate business plans for contemporary canteens selling healthy food and a clarification of government policy.
Presentation type : Poster