Spatial Exclusion, Due Process, and the Civilianization of Punishment in Australia’s Night-time Economy: A Mapping Review of Patron Banning Policy, Practice, and Oversight

• Author: Clare Farmer,Robyn Clifford
• DOI: http://doi.org/10.1177/1057567720939150
• Published date: 01 March 2023
• Date: 01 March 2023
• Subject Matter: Original Articles

Original Article

Spatial Exclusion, Due Process,

and the Civilianization of

Punishment in Australia’s

Night-time Economy: A Mapping

Review of Patron Banning Policy,

Practice, and Oversight

Clare Farmer

1

and Robyn Clifford

1

Abstract

Jurisdictions across Australia have implemented a range of policies to tackle problems associated with

alcohol consumption in and around licensed premises. One key measure, patron banning, has pro-

liferated in various forms. Banning applies spatial restrictions and locational prohibitions upon reci-

pients. It is typically predicated upon a presumed deterrent effect for both recipients and the wider

community to reduce alcohol-related disorderly behaviors and to improve public safety. This article

documents a mapping review of patron banning mechanisms across Australian jurisdictions, using an

analysis of legislation, operational practices, policy documentation and reviews, published data, and

research literature. The mapping review then frames an analysis of banning policy. Key conceptual and

operational issues are discussed with respect to deterrence and community protection; displacement,

diffusion, and isolation of effects; enforcement; due process and legitimacy; and the steady civiliani-

zation of punishment. Given the wide range and reach of banning mechanisms, there is an urgent need

for specific empirical examination of the use and effect of spatial exclusion and prohibition across

Australia’s nighttime economy to inform policy development and refinement, to strengthen the

assurance of due process, and to optimize the potential beneficial effects of patron banning.

Keywords

patron banning, deterrence, exclusion, community protection, civilianization, displacement

Alcohol-related violence and disorder in licensed premises and across entertainment districts has

prompted jurisdictions across Australia to develop a range of policies and operational responses

(Donnelly et al., 2017; Graham & Homel, 2008; McNamara & Quilter, 2015; Menendez et al.,

2015, 2017; Miller et al., 2012; National Centre for Education and Training on Addiction [NCETA],

2011); Room, 2012; Smith et al., 2011; Taylor et al., 2018). Spatial exclusion is one response, and its

1

Deakin University, Geelong, Australia

Corresponding Author:

Clare Farmer, Deakin University, Pigdons Road, Waurn Ponds, Geelong 3216, Australia.

Email: clare.farmer@deakin.edu.au

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use has expanded steadily (Farmer et al., 2018). Powers to prohibit and exclude are presumed to

increase community safety and act as a deterrent to reduce undesirable behaviors. Australia is not

alone in its use of such provisions. Persak (2017) documents the control of public space and the spatial

regulation of disorder in European jurisdictions, such as Belgium, Spain, and Hungary. Beckett and

Herbert (2010) examined discretionary powers to exclude in Seattle, WA, where police officers are

able to issue on-the-spot exclusion orders from public spaces, which can last for up to a year. In

England and Wales, the Criminal Justice and Police Act 2001, the Anti-Social Behaviour Act 2003,

and the Violent Crime Reduction Act 2006 introduced dispersal orders and a range of police exclu-

sionary powers, which can be issued on- the-spot in response to disorderly behav iors (Crawford,

2009). In 2014, section 59 of the Anti-Social Behaviour, Crime and Policing Act created Public Spaces

Protection Orders (PSPOs), enabling local authorities to apply prohibitions and other requirements

within specific public areas for an almost unlimited range of behaviors (Heap & Dickinson, 2018).

Exclusion from public areas is also used in response to antisocial behaviors in other countries, such as

Germany (Belina, 2007), Canada (Sylvestre et al., 2015), and Denmark (Sogaard, 2018).

Since 2007, across Australian jurisdictions, a key feature of responses to issues of alcohol-related

disorder in entertainment districts has been the introduction of one or more methods of patron banning.

In 2011, Trifonoff et al. provided a jurisdictional breakdown of liquor licensing legislation in Aus-

tralia, the remit of which included an overview of banning powers then in operation. Palmer and

Warren (2014) examined police zonal banning in Australia and set out core concerns regarding its use

and the potential wider effects for recipients. More recently, Farmer et al. (2018) analyzed the

proliferation of police banning powers in Australia and identified issues with respect to the underlying

presumptions of need and effect. Over the last decade, the use of patron banning prov isions has

continued to expand both legislatively and operationally. Concern has been expressed about a lack

of scrutiny of the use of banning as a mechanism to address alcohol-related disorderly behaviors and

the particular consequences for due process and the individual rights of recipients (Curtis et al., 2018;

Farmer, 2017a, 2017b, 2018, 2019a, 2019b; Miller, Curtis, Chikritzhs, et al., 2016; Miller, Curtis,

Palmer, et al., 2016; Palmer & Warren, 2014; Taylor et al., 2018). However, despite minimal oversight

and limited evidence-based analysis of their effects, all Australian jurisdictions have now introduced

one or more forms of patron banning.

Australia’s federal system empowers jurisdictions to implement their own criminal justice and

operational policing measures. Each state and territory typically functions autonomously, and the

implementation of patron banning has been piecemeal. In what has become a complex set of legis-

lation, policy, and practice, this article provides a clear baseline from which to build furtherdiscussion

and specific research. The four key patron banning provisions in operation across Australia are

introduced briefly. This is followed by a mapping review of specific policy and practice, documenting

the application, operationalization, and scrutiny of patron banning in each Australian jurisdiction. The

mapping review then frames an analysis of banning as a policy response and the articulation of a

number of key issues and research gaps. Attention is drawn to core conceptual and operational

concerns regarding deterrence and community protection; displacement, diffusion, and isolation of

effects; enforcement; due process and legitimacy; and the steady civilianization of punishment. This

article concludes with an acknowledgment of the potential benefits of patron banning but emphasizes

the need to ensure effective monitoring and analysis of the provisions. Specific research recommen-

dations and potential policy implications are set out.

Patron Banning in Australia

Four key types of patron banning are used across Australia: venue specific bans, liquor accord

bans, police-imposed public area bans, and court-imposed exclusion orders. The common features of

each type of ban are outlined below.

24 International Criminal Justice Review 33(1)