Reigning in the Expansion of Police Powers and Control Orders

If by some dubious and unconstitutional measure I was suddenly appointed the Attorney General of all of the States and Territories in Australia I would, after immediately enacting Charters of Rights in each jurisdiction, turn my attention to the ongoing expansion of police powers nationwide and the use of civil orders to seek to control criminal activity. Police forces around Australia often do an amazing job protecting us and investigating crimes under very difficult circumstances.  However, all too often our legislators burden the police force with over-broad powers that leave far too much to individual police officer discretion.  This inevitably leads to instances where powers are misused at the expense mainly of young people and ethnic minority groups.  While responsibility for particular instances of misuse of power or heavy-handed tactics can be laid at the doorstep of individual officers, we must examine the laws that govern the exercise of these powers.

One clear example of this is the power of the police to stop and search people on the street.  Traditionally the police have the power to stop us and require us to submit to a search if they reasonably suspect that criminal conduct has or is likely to occur.  However, in the past year or so we have seen both Victoria and Western Australia follow the UK’s example and introduce powers for an area to be designated as one in which anyone who goes through it can be stopped and searched without the need for any reasonable suspicion.  The idea is that there are certain hot spots where knife crime is likely and so police should have the power to ‘randomly’ search anyone to check to see if they are carrying a knife.  Such a power goes against the traditional presumption that unless there is a reason to suspect you, you should be able to go about your daily life without interference from the police.  While for some of us such powers may not be personally much of an inconvenience, for others it can be a regular and discriminatory breach of their rights to privacy and liberty.

Why these Australian States thought it was a good idea to introduce such laws when similar laws have proved to be not only ineffective, but hugely discriminatory, is hard to understand.  These laws are modelled on laws in the UK that have been around since 1994, and so there’s been plenty of time to understand their impact.  And the results are startling.  Over the past few years if you are a black person in the UK you are 26 times more likely to be stopped and searched ‘randomly’ under these powers than if you are white.  Unsurprisingly this has led to feelings of alienation and mistrust of the police from many within ethnic minority groups.  If I were the Attorney-General in Victoria or WA I would take heed of the warnings emanating from the use of such powers elsewhere and immediately repeal these laws to ensure police discretion is tied to the traditional paradigm of suspicion before race relations and trust in the police are further undermined.

The past few years have also seen the worrying blurring of the criminal and civil law with the introduction of ‘control orders’. In 2005 the Federal Government, again following the UK’s misguided lead, introduced control orders against terrorist suspects allowing coercive orders to be made on the civil standard of proof.  Since then, South Australia, New South Wales, Western Australia, Queensland and the Northern Territory (with Victoria poised) have all introduced variations on such orders to apply to bikie gangs and others.  Under such powers (varying slightly between jurisdictions) a group can be outlawed simply if a court is ‘satisfied’ that the group is a criminal gang.  Once a gang is outlawed, any person who is a member of, or merely associated with, the group can be subjected to restrictions on their freedom of association, freedom of movement and right to a private and family life– all without ever having been convicted of any offence.  While in a welcome judgment the High Court recently ruled that the decision to outlaw a gang must be made by a court and not the Executive, the power to impose severe restrictions on a person outside of a criminal trial remains.  These orders undermine the presumption of innocence – the ‘golden thread’ that runs back through centuries of criminal process to the Magna Carta – and allow punishment without trial.  If I were Attorney General I would immediately repeal these laws and ensure criminality is dealt with by proving beyond reasonable doubt that a person has committed a criminal offence.

After I’d done all this I’d probably go on a holiday for a week or two before returning to properly regulate police use of Tasers; establish independent police complaints commissions with a focus on the excessive use of force by police; abolish mandatory sentencing; ensure police-like powers are taken away from civilian ‘authorised officers’; and repeal outdated and counter-productive offences such as begging and public drunkenness.  If I could do all that and still manage to be re-elected I’d be pretty pleased with my time in office.

Anita Coles is a volunteer with the Human Rights Law Resource Centre and was formerly a Policy Officer at Liberty (the National Council for Civil Liberties) in the UK.