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

Date01 March 2021
Published date01 March 2021
Subject MatterArticles
/tmp/tmp-17yFr5hmuHEdcV/input 911192CJPXXX10.1177/0887403420911192Criminal Justice Policy ReviewFarmer
Criminal Justice Policy Review
2021, Vol. 32(2) 107 –131
A Unique Power to
© The Author(s) 2020
Article reuse guidelines:
Punish: An Examination
DOI: 10.1177/0887403420911192
of the Operation, Scrutiny,
and Attendant Risks of
Licensee Barring Provisions
in Victoria, Australia
Clare Farmer1
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.
licensee barring order, exclusion, discretionary punishment, procedural justice,
1Deakin University, Geelong, Victoria, Australia
Corresponding Author:
Clare Farmer, Senior Lecturer in Criminology, Deakin University, Waurn Ponds Campus, Pigdons Road,
Geelong, Victoria 3216, Australia.
Email: clare.farmer@deakin.edu.au

Criminal Justice Policy Review 32(2)
Violence and antisocial behavior in and around licensed venues have prompted juris-
dictions across Australia to implement a range of policies and operational initiatives,
including tighter liquor and licensing regulation, the criminalisation of an increasing
range of behaviors, and greater restrictions around the granting of bail. The use of
temporal and spatial exclusion has also expanded steadily, with respect to the context,
permissible scope, and the range of agencies and individuals afforded the discretion-
ary power to exclude (Farmer, 2018, 2019; Farmer et al., 2018; Miller et al., 2016,
2019; Palmer & Warren, 2014).
Powers to prohibit and exclude are typically presumed to punish and deter, and
Australia is not alone in the use of such provisions. One early high-profile initiative in
England and Wales (with a remit broader than alcohol-related issues) was the antiso-
cial behavior order (ASBO), introduced in 1998 under the Crime and Disorder Act. As
well as being a post-conviction disposal, an ASBO could be applied for by police or
local authority bodies in response to perceived antisocial behavior, and imposed with-
out conviction (Crime and Disorder Act 1998 [UK] s1; Police Reform Act 2002 [UK]
s61). The terms of an ASBO would prohibit specific actions or behaviors, such as not
entering a defined geographical area, or not associating with named individuals.
ASBOs relied upon discretionary powers, and combined the lower burden of proof of
civil orders with the potential for criminal breach proceedings (Burney, 2002, 2006,
2009). Ashworth (2004) noted that limits embedded within the rule of law do not apply
to prohibitions like ASBOs, as they can constitute a future-focused protective measure
rather than a punishment for an actual offense.1
In the United States, Beckett and Herbert (2010) examined the expansion of discre-
tionary powers which enable police in Seattle to issue on-the-spot exclusion orders
from public spaces, which can last for up to a year. Beckett and Herbert found that the
provisions progressively increased the likelihood of both punishment and infringe-
ment, but without demonstrable beneficial effects upon community safety. 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 a range of police exclu-
sionary powers, such as the Dispersal Order and Penalty Notices for Disorder.
Crawford (2009) noted that the expanding remit of discretionary and preemptive
police powers applies primarily to lower level disorderly behaviors, about which there
is typically less concern regarding the potential effect upon the rights of recipients.
Since 2007, Australian jurisdictions have introduced provisions which empower police
officers to issue on-the-spot bans for a range of behaviors, covering sometimes expan-
sive public areas (Farmer, 2017a, 2017b, 2018; Farmer et al., 2018; Miller et al., 2016,
2019; Palmer & Warren, 2014).
The use of on-the-spot discretionary police powers to punish prioritizes a perceived
need to control behavior at the expense of due process and procedural justice. Police-
imposed summary justice presents a tangible challenge to the principle of the separa-
tion of powers, as police officers determine the culpability of the alleged offender and
administer the punishment on-the-spot. Hadfield et al. (2009) and Young (2010)

contend that early provisions facilitated a fundamental change in the role of police
officers, from law enforcers and investigators, to jury and judge. These changing pri-
orities potentially increases the number of people drawn into the justice system by
virtue of a formal penalty—but via a process that is determined and administered
outside of traditional legal mechanisms.
The reach of summary justice has continued to expand. A notable feature of more
recent responses to antisocial and violent behavior is the introduction of provisions to
ban, prohibit, or exclude but which are imposed by non-law enforcement and non-
judicial officers. In 2014, section 59 of the Anti-Social Behaviour, Crime and Policing
Act created Public Spaces Protection Orders (PSPOs) in England and Wales, enabling
local authorities to directly apply a wide array of prohibitions and behavioral require-
ments within specific public areas, which may be enforced by police or local authority
designated officers. Heap and Dickinson (2018) noted how PSPOs lower the threshold
for exclusion, and expressed concern about the unregulated and almost unlimited
power to prohibit.2 In Australia, venue or licensee barring orders are a police-enforce-
able discretionary punishment, imposed by a licensee or designated responsible per-
son. Licensed venues are private spaces and venue bans have previously operated
under long-standing common law principles. Across Australian jurisdictions, codifica-
tion has steadily formalized and expanded venue barring powers.3 The remit of formal
barring orders can now extend beyond the private domain of the licensed venue to
cover contiguous public spaces. Barring orders are enforceable via a range of infringe-
ment mechanisms, which may lead to a fine or court proceedings.
Victoria’s barring order provisions empower licensees, who are not law enforce-
ment or judicial officers, to issue an on-the-spot, police-enforceable punishment.4 If
recipients do not comply, police may issue an on-the-spot fine or charge them with an
offense (Victorian Commission for Gambling and Liquor Regulation [VCGLR],
2012). This unique power to punish has generated very little public commentary or
formal scrutiny. Despite notable issues regarding the propriety and associated risk of
empowering ordinary citizens to determine both the legality of a patron’s behavior and
to impose a legally enforceable punishment, barring provisions have been introduced
across Australian jurisdictions with virtually no comment or analysis.
Farmer (2019) highlighted a number of concerns with respect to the scrutiny of
licensee barring in Victoria, and documented limited data that are published each year
in South Australia, for barring orders longer than 1 month. A recent study in Queensland
examined a range of measures introduced to tackle issues relating to alcohol consump-
tion in entertainment districts; the remit included licensee barring (Miller et al., 2019).
The study drew attention to concerns about the lack of effective oversight and account-
ability for the use of barring. A number of recommendations were presented to ensure
more rigorous monitoring, including the introduction of an offense of vexatious bar-
ring. Miller et al. (2019) do not quantify the extent of potentially vexatious barring, but
their report recognizes the risk that barring powers are open to misuse by licensees,
and that there are currently no consequences should misuse occur. No other Australian
jurisdiction monitors the operation of licensee barring orders, analyses their effect, or
requires any meaningful oversight of the way in which licensees use their powers.

Criminal Justice Policy Review 32(2)
The study from which this article is drawn examined patron banning in Victoria.
This article compares the legislative framing and expected operation of Victoria’s bar-
ring order policy with the experiences reported by barring order recipients. After first
summarizing Victoria’s barring order provisions, the specific research method is
explained. Key findings are examined and discussed in two sections: the...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT