Publication of information about excluded offenders

1. Purpose

The purpose of this policy is to clarify the decision-making process for the Director of Liquor Licensing (DLL) surrounding the publication of personal particulars and other details of excluded persons under Part 5AA of the Liquor Control Act 1988 (LC Act).

In the absence of a requirement for patrons of licensed premises to show identification, publication of excluded persons’ details is a practical and relatively simple way of allowing people responsible for licensed premises within Protected Entertainment Precincts (PEPs) to avoid committing the offence of allowing them to enter or remain on those premises.

The LC Act makes it clear that publishing excluded persons’ details, on a secure webpage or otherwise, is discretionary rather than mandatory. This policy is intended to assist in exercising that discretion. 

2. Defined terms

In this policy:

Excluded offender has the same meaning it has in section 152NZJ of the LC Act. That is, an excluded offender is a person who has been convicted of a specified offence, where the conviction has not been quashed or set aside and in respect of which no pardon has been granted, and at least one of the elements of the offence occurred in a location that was, at the time of the occurrence, a public place, and was, at the conviction date for the offence, in a protected entertainment precinct. An excluded offender may not enter or remain in a PEP for two years from the conviction date (for a juvenile) or five years (in any other case).

Excluded person means a person subject to an exclusion order or who is an excluded offender.

Exclusion orders may be short-term or extended. A short-term exclusion order is made by a police officer under section 152ND of the LC Act and prohibits a person from entering or remaining in a PEP for no longer than six months. An extended exclusion order is made by the DLL under section 152NM of the LC Act on application of the Commissioner of Police and prohibits a person from entering or remaining in a PEP for no longer than two years (for a juvenile) or five years (in any other case).

PEP means an area prescribed as a protected entertainment precinct in regulations made under section 175(1E) of the LC Act.

Personal particulars of an excluded person are the name and date of birth of the person, a photograph of the person, and the address of the person.

Public place has the same meaning as it has in section 152NC of the LC Act. It includes licensed premises; a place (including a vehicle) to which the public or any section of the public has or is permitted to have access; a privately owned space (including a vehicle) to which the public has access with the express or implied approval of the owner, occupier, or person with control or management of the place; a school, university or place of education other than a part of it to which neither students nor the public ordinarily has access; and a vehicle that is in any of those places.

Secure webpage means a page on a website that is accessible only by licensees, occupiers and managers of licensed premises, authorised officers under the LC Act and persons appointed under section 14(1)(b) of the LC Act. 

Specified offence has the same meaning as it has in section 152NZJ of the LC Act. That is, a specified offence is an offence against The Criminal Code section 279, 280, 281, 293, 294,297, 301, 305A, 325 or 326 or an offence of attempting, inciting another person or conspiring to commit one of those offences. Specified offences are listed in Appendix 1 to this document.

3. Legislative framework enabling publication

Part 5AA of the LC Act allows regulations to be made identifying PEPs and for excluded persons to be excluded from all PEPs, unless an exception applies.

It is an offence for a responsible person for licensed premises within a PEP to permit an excluded person to enter or remain on the premises (section 152NZL).

If an extended exclusion order is in effect for any person, or during the exclusion period for an excluded offender, the DLL may publish any of the person’s personal particulars on a secure webpage (sections 152NZC(3)(a) and 152NZT(2)(a)).

If an extended exclusion order is in effect for an adult, or during the exclusion period for an adult excluded offender, the DLL may publish any of the person’s name, a photograph of the person, and the town or suburb where the subject person lives in any manner the DLL considers appropriate (sections 152NZC(3)(b) and 152NZT(2)(b)).

In carrying out functions under Part 5AA, a person must have regard to the primary object of the Part set out in section 152NB(1), that is: 

… to minimise, in relation to areas with a concentration of licensed premises — 

1. harm, or the potential for harm, to people, or any group of people, in the areas; and 
2. adverse effects on the safety or welfare of people, or any group of people, in the areas; and 
3. adverse effects on the atmosphere, ambience, character or pleasantness of the areas; and 
4. public disturbances and public disorder in the areas.

4. Policy

4.1 Publication on secure webpage

It is the DLL’s policy that all personal particulars of an excluded person will be published on a secure webpage to allow people responsible for licensed premises within PEPs to comply with the requirement to not allow excluded persons to enter or remain on those premises.  

The DLL is aware that sometimes excluded persons will be vulnerable for reasons that may or may not be related to the reasons for their exclusion. The DLL considers restrictions on access to the webpage and the existence of an offence of disclosing information obtained from the webpage, sufficient to protect the interests of vulnerable people who are also excluded persons. 

The DLL will consider special circumstances and may approve limited publication if warranted, however this is subject to consideration of:

• the primary object of Part 5AA; and 
• how people responsible for licensed premises can be made aware of the identity of excluded persons so they do not commit an offence.

4.2 Other publication

It is the DLL’s policy that no particulars of an excluded person will be published in any way other than on a secure webpage unless:

1. The details to be published and the means of publication are approved in each case by the DLL; and
2. A decision to publish the details would be authorised by section 152NZC(3)(b) (for adults subject to exclusion orders) or 152NZT(2)(b) (for adult excluded offenders).

In determining whether to approve alternative publication, the DLL will consider the circumstances of each case subject to consideration of:

• the primary object of Part 5AA; and 
• how people responsible for licensed premises can be made aware of the identity of excluded persons so they do not commit an offence.

Appendix 1: Specified offences

A person who commits a specified offence in a public place within a PEP is an excluded offender.

The following offences under The Criminal Code are specified offences under Part 5AA of the LC Act. 

1. Section 279 – Murder
2. Section 280 – Manslaughter
3. Section 281 – Unlawful assault causing death
4. Section 293 – Stupefying in order to commit indictable offence etc
5. Section 294 – Act intended to cause grievous bodily harm or prevent arrest
6. Section 297 – Grievous bodily harm
7. Section 301 – Wounding and similar acts
8. Section 305A – Intoxication by deception
9. Section 325 – Sexual penetration without consent
10. Section 326 – Aggravated sexual penetration without consent
11. An offence of attempting, inciting another person or conspiring to commit an offence listed in items 1-10 above