Upholding whose right? Discretionary police powers to punish, collective ‘pre-victimisation’ and the dilution of individual rights
| Published date | 01 December 2017 |
| Author | Clare Farmer |
| DOI | 10.1177/0004865816660351 |
| Date | 01 December 2017 |
| Subject Matter | Articles |
Australian & New Zealand
Journal of Criminology
2017, Vol. 50(4) 493–509
!The Author(s) 2016
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DOI: 10.1177/0004865816660351
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Article
Upholding whose right?
Discretionary police powers
to punish, collective
‘pre-victimisation’ and the
dilution of individual rights
Clare Farmer
Deakin University, Australia
Abstract
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 pre-
sumed 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 increas-
ingly 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.
Keywords
Balance, banning notices, discretionary police powers, individual rights, pre-victimisation
Date received: 20 January 2016; accepted: 6 June 2016
Introduction
Over the last three decades, human rights declarations and conventions have formalised
the rights and due process protections of those accused of criminal behaviour.
1
Much
of the accompanying discourse has reflected and augmented evolving conceptions
of victimisation, individual and collective rights, and their balance within criminal
Corresponding author:
Clare Farmer, Deakin University, Pigdons Road, Waurn Ponds, Geelong, Victoria, Australia.
Email: clare.farmer@deakin.edu.au
justice processes.
2
During the 1990s and early 2000s, theoretical and research literature
typically aligned the notion of balance
3
with a desire to improve (or ‘re-balance’) the
needs and rights of victims of crime,
4
when compared with alleged and convicted offen-
ders. More recently, ‘re-balancing’ is evident in a re-drawing of the conceptual param-
eters which define a ‘victim’. Heightened by the post-9/11 terror threat, government and
policing responses to national security concerns have challenged civil liberties and free-
doms.
5
The attendant rhetoric increasingly frames individual rights as subordinate to an
expectation of public protection – which specifically encompasses the broader commu-
nity of potential future victims. This was exemplified in Australia in December 2015 by a
federal Liberal MP who, in proclaiming the threat to Australia’s way of life from global
terrorism, declared:
Australian lives are at risk and our way of life is under threat ...To date, Australia has been
at pains to err in favour of the individual. It is now time to err consciously in favour of the
vast majority of peace-loving Australians. (House of Representatives, 2015, p. 14369
[Nikolic, Liberal Party]).
The shift in the way in which rights are regarded and protected is not limited to matters
of national and global concern. It is also evident across lower level criminal justice
contexts. Perceived risks to public safety, resulting from factors such as anti-social
behaviour, excess alcohol consumption and drug use have led to range of legislative
and operational policing responses, which challenge individual rights.
6
This article high-
lights one example: the discretionary police power to issue banning notices for alcohol-
related violence and disorder in Victoria’s night-time economy (NTE). The rationale for
the banning provisions and the manner of their imposition typify the changing way in
which rights are prioritised. ‘Uphold the Right’ is regarded by Victoria Police (2014) to
be ‘a fitting motto for any police service’. However, the legislative and operational
policing response to issues of disorder and alcohol-related violence in Victoria underline
a growing uncertainty over whose rights should be upheld and how.
The first part of this article introduces Victoria’s banning notice provisions. Their
underpinning rationale is explored through a brief examination of the passage of the
legislation through the Victorian Parliament. The effect of banning notices upon key
rights and the compliance requirements of Victoria’s 2006 Charter of Human Rights and
Responsibilities Act (‘Charter Act’/‘Charter’) are noted. The example of banning, includ-
ing a number of issues with respect to the operational oversight and ongoing scrutiny of
their use, is then discussed in the context of re-balancing, political expediency and
expanding conceptions of victimisation.
7
The article concludes by considering how
responses to notions of dangerousness and undesirable behaviours are shifting the dis-
course of balance and rights.
Victoria’s banning notice provisions
The Liquor Control Reform Amendment Act 2007 (‘LCRA Act 2007’) was the first
Victorian legislation to permit the police-imposed prohibition of individuals from
defined public areas, initially for 24 hours. The LCRA Act 2007 empowered the then
Director of Liquor Licensing to declare a ‘designated area’ if ‘alcohol-related violence or
494 Australian & New Zealand Journal of Criminology 50(4)
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