A new law introduced to Victorian Parliament by the Brumby Government will give Police the power to search people randomly, including by strip searching children and people with disability, in violation of fundamental human rights and freedoms. A similar law has recently passed the lower house of the State Parliament in Western Australia. The Summary Offences and Control of Weapons Acts Amendment Bill 2009 (Vic) will give police the power to randomly search people who are in a ‘designated area’. If passed, the Bill will enable police to conduct searches of any person in such an area, including children, even in the absence of any reasonable suspicion of wrongdoing. The Bill also allows police to conduct strip searches in certain circumstances. The power to conduct strip searches extends to the invasive strip searching of children.
This is the first time since the passage of the Charter of Human Rights and Responsibilities Act 2006 (Vic) that a law has been introduced into parliament with a statement that the law is incompatible with human rights.
There are at least two reasons why we should be extremely concerned about giving these broad new powers to police. First, in giving police the power to randomly search any person in a ‘designated area’, even in the absence of any reasonable suspicion of wrongdoing by that person, the Bill means that people will be searched for no reason other than being in the wrong place at the wrong time.
Putting aside for a moment the unfairness to the person who is searched for no reason, how could it ever be good police practice, or an efficient use of limited police resources, for police to stop and search people who are not suspected of doing anything wrong?
Secondly, and even more alarmingly, these laws would apply to children.
In tabling an unprecedented statement of incompatability, the Police Minister, Bob Cameron, has effectively admitted that the new police search powers unreasonably and disproportionately infringe peoples’ right to privacy and the right of children to protection in their best interests. While this demonstrates the value of the Charter in promoting parliamentary transparency and accountability, it is very concerning that the Government has determined that it will go ahead and pass the laws anyway.
Why do police need powers to conduct these intrusive and random searches of people?
In parliament, the Police Minister sought to justify the search powers in the interests of community safety, including the safety of children. But when it comes to the crunch, the Government’s own analysis concludes that these laws are not in the best interests of children and that the laws fail to protect the rights of children. Moreover, in conceding that the laws are incompatible with its ownCharter of Human Rights and Responsibilities Act, the government has effectively conceded that this law’s limitations on human rights are neither ‘reasonable’ nor ‘demonstrably justifiable’.
Whilst human rights, such as the right to privacy, can be limited in some circumstances, the government should only limit rights to achieve some other significant benefit for the community, such as the protection of public order and safety. Moreover, where the rights being infringed are the fundamental rights of children, the need must be pressing and compelling indeed.
It is therefore extremely concerning that the government has not demonstrated or adduced evidence of the need for these new police search powers.
Perhaps the Government does have good reasons for passing these laws and infringing rights, but if so we have a right to be told those reasons and shown the evidence. Instead, we are given a vague reference to community concerns about crime and are left to draw our own conclusions about the crass political capital to be gained by a Government being seen to be ‘tough on crime’.
It is difficult to see how infringing children’s rights and interfering with peoples’ privacy is the best way to go about ‘protecting’ the community. Rather, it is precisely this sort of law from which we need protection. Emily Howie is a Senior Lawyer with the Human Rights Law Resource Centre.