Explainer: Police powers and COVID-19
Police have two roles to play in response to the public health emergency that is COVID-19:
1. Exercising increased powers related to the public health response
2. Reducing the flow of people into the criminal legal system and prisons as part of the public health response
1. Increased police powers
New laws and the declaration of a state of emergency have imposed severe restrictions on our civil liberties and brought in unprecedented policing powers.
In an attempt to prevent the spread of COVID-19, Governments have expanded the role of police to not only uphold pre-existing laws but to also enforce new public health directions. In Victoria, an example of this is Operation Sentinel, a select group of 500 police who have been tasked with policing breaches of mass-gathering restrictions and self-isolation orders.
While international human rights law recognises that certain human rights may be suspended in a time of public emergency, this should not be a free pass for heavy-handed policing.
In a time of great upheaval, it is vital that laws increasing police powers also include safeguards that will ensure they are clearly expressed and narrowly confined to deal with the immediate public health crisis. Any such powers should also be time bound and regularly reviewed, so that when this public health crisis ends, so do the powers.
Why are increased police powers concerning?
While politicians say that police are committed to taking a "sensible approach", history has shown that too often marginalised groups are disproportionately punished through an expansion of policing powers. In particular, people living with a disability, women escaping family violence and those experiencing homelessness may be hardest hit. In addition, increased powers - and police discretion - open the way for racialised and discriminatory policing, too often experienced by Aboriginal and Torres Strait Islander people.
Extra powers should come with extra oversight
With extra police powers, should also come extra oversight. A responsible government would ensure that these powers are regularly reviewed and monitored including through an independent oversight body, like the Independent Broad-based Anti-corruption Commission (IBAC) in Victoria but with extended powers.
2. Stemming the flow of people into the criminal legal system
As gatekeepers to the criminal legal system, police have a role to play in reducing the flow of persons into the criminal legal system and ending up in custody. This is especially important, given that courts across the country are closing and new jury trials have been suspended until further notice. Prisons are already at capacity or overflowing.
Adjustments to policing practices would not only reduce the number of people being placed at risk in overcrowded prison cells, it would also have the dual effect of protecting police officers engaged on the frontline and reducing the risk of police stations being forced to shut down because staff have been infected by COVID-19.
Why are cells unsafe?
Police cells and prisons are unsafe spaces at the best of times, but are particularly unsafe during a public health emergency like COVID-19 because people are in close proximity to others at all times. This makes police cells, and prisons, the perfect breeding grounds for COVID-19. The consequences of an outbreak in police custody will be devastating for the people locked up and police members alike.
What emergency measures can police take?
Police can temporarily adjust their policing practices by refraining from the arrest and charge of people for low level offences. In addition, where offending does not include harm to a person, police could issue a warning or caution, and police could defer the execution of warrants for arrest for at least a 6 month period. Police could also support bail being granted on reasonable conditions, so that people accused of crimes - but yet to be found guilty of anything - may wait for their next court date in the community.
Emergency measures are not unprecedented
Taking steps like these are not unprecedented. Jurisdictions in the United States have already taken steps to reduce the number of people coming into contact with the criminal legal system. For example, in Philadelphia, police officers have been told to stop arresting people for non-violent offences. Also, in Fort Worth, Texas, police officers now have to get permission to arrest people for low-level offending.
A responsible government would take immediate action like this to reduce the numbers of people coming into contact with the criminal legal system to keep everyone safe.
This explainer is not legal advice
The contents of this publication do not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as legal advice. You should seek legal advice or other professional advice in relation to any particular matters you or your organisation may have.