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.

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.

Police-referred restorative justice for juveniles in Australia

This preliminary paper provides an overview of the legislative and policy context of restorative justice measures for juveniles in each Australian state and territory, highlighting the diverse characteristics of current restorative practices. Further, it provides an indication of the numbers and characteristics of juveniles who are referred by police to restorative justice measures and the offence types for which they are most commonly referred. A number of key points about the application of restorative justice measures to juveniles in Australia’s jurisdictions are highlighted, including that juveniles were referred to conferences primarily for property crimes and that Indigenous juveniles comprised higher proportions of those sent to court than to conferencing. This paper argues that more detailed data on the offending histories, offence types and offence seriousness of juveniles referred by police to restorative justice processes would enable a more finely-grained analysis of restorative justice for juveniles in Australia.

Public satisfaction with police : using procedural justice to improve police legitimacy

Policing research and theory emphasises the importance of supportive relationships between police and the communities they serve in increasing police effectiveness in reducing crime and disorder. A key reason people support police is that they view police as legitimate. The existing research literature, primarily from the United States, indicates that the most important factor in public assessments of police legitimacy is procedural justice. The present study is the first in an Australian jurisdiction to examine the effect of procedural justice and police legitimacy on public satisfaction with police. Using responses to a large postal survey (n = 2611), findings show that people who believe police use procedural justice when they exercise their authority are more likely to view police as legitimate, and in turn are more satisfied with police services. This study differs to US-based research in the greater importance of people's evaluations of instrumental factors in judgments of police legitimacy. The findings are important as they confirm that people's assessments of fair and effective policing in Australia will be enhanced by policing strategies that emphasise the use of procedural justice in encounters with the public.

The End of the Transitional Period for Police and Criminal Justice Measures Adopted before the Lisbon Treaty: Who monitors trust in the European Criminal Justice area? CEPS Liberty and Security in Europe No. 74, December 2014

This study examines the legal and political implications of the forthcoming end of the transitional period for the measures in the fields of police and judicial cooperation in criminal matters, as set out in Protocol 36 to the EU Treaties. This Protocol limits some of the most far-reaching innovations introduced by the Treaty of Lisbon over EU cooperation on Justice and Home Affairs for a period of five years after the entry into force of the Treaty of Lisbon (until 1 December 2014), and provides the UK with special ‘opt out/opt-in’ possibilities. The study focuses on the meaning of the transitional period for the wider European Criminal Justice area. The most far-reaching change emerging from the end of this transition will be the expansion of the European Commission and Luxembourg Court of Justice scrutiny powers over Member States’ implementation of EU criminal justice law. The possibility offered by Protocol 36 for the UK to opt out and opt back in to pre-Lisbon Treaty instruments poses serious challenges to a common EU area of justice by further institutionalising ‘over-flexible’ participation in criminal justice instruments. The study argues that in light of Article 82 TFEU the rights of the defence are now inextricably linked to the coherency and effective operation of the principle of mutual recognition of criminal decisions, and calls the European Parliament to request the UK to opt in EU Directives on suspects procedural rights as condition for the UK to ‘opt back in’ measures like the European Arrest Warrant.

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.

L'utilisation du pouvoir discrétionnaire des policiers dans le cadre de la Loi sur le système de justice pénale pour les adolescents (LSJPA)

Le 1er avril 2003, l’entrée en vigueur de la Loi sur le système de justice pénale pour les adolescents (LSJPA) a fourni aux policiers canadiens de nouveaux outils pour procéder à des interventions non-judiciaires auprès d’adolescents contrevenants. Dorénavant, les policiers détiennent le pouvoir officiel d’imposer des mesures extrajudiciaires aux adolescents interpellés pour avoir commis des infractions plutôt que de procéder à leur arrestation formelle. La présente étude vise à déterminer quelles caractéristiques des adolescents et circonstances des infractions ont un impact significatif sur les décisions des policiers d’imposer ces mesures plutôt que de procéder à des arrestations. Les résultats sont basés sur trois échantillons de participations criminelles juvéniles enregistrées par un corps policier canadien entre 2003 et 2010: le premier composé d’infractions contre la personne (n= 3 482), le second, d’infractions contre la propriété (n= 8 230) et le troisième, d’autres crimes (n= 1 974). L’analyse de régression logistique multiniveaux a été utilisée pour déterminer les facteurs — tels que le sexe, l’âge et les contacts antérieurs avec la justice des adolescents ainsi que la localisation dans le temps et l’espace de l’infraction — ont un impact significatif sur le pouvoir discrétionnaire des policiers. Certains facteurs ont une influence universelle d’une catégorie de crime à l’autre, tandis que d’autres ont un impact spécifique selon le type d’infraction commise.

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.

Encouraging public cooperation and support for police

This paper explores how to increase public cooperation and support for police. To date, only a few studies have attempted to explore the role that procedural justice plays in shaping the public's willingness to assist police in crime control. The present study explores this much neglected field of research using both crosssectional survey data and panel data. The study finds that views about police legitimacy do influence public cooperation with the police, and that those who view the police as more legitimate are more likely to assist police to control crime. The key antecedent of legitimacy is procedural justice; those who are more likely to believe police use procedural justice in their dealings with the public are more likely to perceive police as legitimate.

Police Legitimacy in Sub-Saharan Africa

Is fairness in process and outcome a generalizable driver of police legitimacy? In many industrialized nations, studies have demonstrated that police legitimacy is largely a function of whether citizens perceive treatment as normatively fair and respectful. Questions remain whether this model holds in less-industrialized contexts, where corruption and security challenges favor instrumental preferences for effective crime control and prevention. Support for and against the normative model of legitimacy has been found in less-industrialized countries, yet few have simultaneously compared these models across multiple industrializing countries. Using a multilevel framework and data from respondents in 27 countries in sub-Saharan Africa (n~43,000), I find evidence for the presence of both instrumental and normative influences in shaping the perceptions of police legitimacy. More importantly, the internal consistency of legitimacy (defined as obligation to obey, moral alignment, and perceived legality of the police) varies considerably from country to country, suggesting that relationships between legality, morality, and obligation operate differently across contexts. Results are robust to a number of different modeling assumptions and alternative explanations. Overall, the results indicate that both fairness and effectiveness matter, not in all places, and in some cases contrary to theoretical expectations.

The mythical properties of police body-worn cameras: A solution in the search of a problem

Over the past few years, Australian police agencies have begun to enthusiastically introduce body-worn cameras on police personnel. These devices are now either implemented or under trial across the country. There is also an emergent ‘surveillance consensus’ (Hempel and Töpfer 2009) concerning their use amongst Australian police. While more detailed empirical examination of information flows that shape this surveillance consensus is warranted, this contribution to the debate seeks to draw from policing scholarship to critically explore the intersections between the rationalizations for body-worn cameras and the broader policing scholarship. More directly, body-worn cameras cannot be understood in narrow instrumental terms, but must be located within the broader literature on governing police and the law and order politics that surrounds many contemporary police and criminal justice reforms (Cox 2015; Gregg and Wilson 2015). I begin with a summary of the introduction of body-worn cameras in Australia. The article then identifies five problems body-worn cameras purportedly address and provides a brief case summary indicating how current ‘privacy protections’ fail to establish real limits to the collection, use, and dissemination of images from body-worn cameras.

Optimising the length of Random Breath Tests : results from the Queensland Community Engagement Trial

Research suggests that the length and quality of police-citizen encounters affect policing outcomes. The Koper Curve, for example, shows that the optimal length for police presence in hot spots is between 14 and 15 minutes, with diminishing returns observed thereafter. Our study, using data from the Queensland Community Engagement Trial (QCET), examines the impact of encounter length on citizen perceptions of police performance. QCET involved a randomised field trial, where 60 random breath test (RBT) traffic stop operations were randomly allocated to an experimental condition involving a procedurally just encounter or a business-as-usual control condition. Our results show that the optimal length of time for procedurally just encounters during RBT traffic stops is just less than 2 minutes. We show, therefore, that it is important to encourage and facilitate positive police–citizen encounters during RBTat traffic stops, while ensuring that the length of these interactions does not pass a point of diminishing returns.

The missing link of crime analysis: A systematic approach to testing competing hypotheses

Crime analysts have traditionally received little guidance from academic researchers in key tasks in the analysis process, specifically the testing of multiple hypotheses and evaluating evidence in a scientific fashion. This article attempts to fill this gap by outlining a method (the Analysis of Competing Hypotheses) of systematically analysing multiple explanations for crime problems. The method is systematic, avoids many cognitive errors common in analysis, and is explicit. It is argued that the implementation of this approach makes analytic products audit-able, the reasoning underpinning them transparent, and provides intelligence managers a rational professional development tool for individual analysts.