Searching randomly

Recently the Parliament of Victoria gave police powers to search randomly for knives.

Public policy in relation to the prevention of crime should be evidence-based. There is no evidence that the incidence of knife crime is increasing - in the two years before the legislation was introduced, the incidence of offences in which a knife was used or brandished declined by 2.9%. Moreover, there is no evidence that random searching has any useful impact on the incidence of violent crime.

Introducing the legislation, the government admitted as much when it stated that it was reacting to "public perceptions" but carefully made no claim that the legislation would have any impact on the reality. The government also admitted that the new laws were in breach of the Charter of Human Rights and Responsibilities - as if human rights were a simple convenience, rather than a foundation stone of sound administration.

The powers accorded to police under these provisions are sweeping. There is no exception in relation to searching children, and no requirement to have a friendly adult present if this is done. There are similarly no exceptions for disabled persons. This extends to strip searches. Do we really want our 12 year old children randomly strip searched by police when they catch the train to the city?

The powers to search are in practice unchallengable and unreviewable. The terms of the powers are so sweeping that courts have no real latitude to interfere. The power is therefore unaccountable. Unaccountable power will, as a matter of human experience, be abused. That is why it is the role of parliamentarians to ensure that the power they confer is always accountable.

Random public searches contribute to sense of panic and unease – they trample on self-respect, and build up resentments. They constitute a loss of freedom.

There should be strict limits on the power of police to search. Just as in other States, this should take place only when there is a reasonable suspicion justifying the search. Anything less is arbitrary, and is likely to be discriminatory (eg against young people or minority groups) and may well be undertaken for an improper purpose - such as singling out attractive women, as was found to have occurred at airports recently.

There have been numerous cases in which police have planted evidence against suspects in the past. This becomes an increased risk when an unreviewable opportunity for a random search is given to police.

Why have a democratic system if it is to be indistinguishable from a totalitarian state, where no-one is safe from police searches and the abuses they so often carry with them?

Random police searches trample on self-respect and dignity of citizens, who should be free to go about their business without interference - unless the authorities can show just cause to the contrary.

External Links

• Control of Weapons Act 1990 (as amended)
• Police Search Powers on a Knife Edge (Sunday Age)
• Sue Pennicuick's speech to Parliament
• A Canadian experience
• Chris Berg Opinion Piece

Spying on the People

Just what kind of disguises do the police use?

In October 2008 “the Age” reported that police, just as in the days of the old special branch, are infiltrating community groups and reporting on their activities. This includes groups with no record of violence and a commitment against violence.

One officer from the Security Intelligence Group infiltrated groups such as Animal Liberation Victoria, Stop the War Coalition, Unity for Peace and Socialist Alternative.

The policeman posed as a vegan, left-wing activist, and had close contact with representatives of church and student groups involved in anti-war demonstrations. So successful was his operation that the organising committee for the Palm Sunday peace march in Melbourne appointed him its minute-taker at meetings.

The Palm Sunday event, held each year, has been attended by tens of thousands of Victorians opposed to war. It is organised and endorsed by a variety of groups across the community, including churches, students, unions and doctors.

Police rushed to justify this practice, and the State government also endorsed police infiltration of community groups. Police Minister Bob Cameron said the internal police controls covering the secret activities of the Security Intelligence Group were sufficient. "There is appropriate oversight in place as Deputy Chief Commissioner [now Commissioner] Simon Overland outlined."

It is possible that police spying on community groups gains them some useful information for fighting crime, but this activity plainly undermines the rule of law.

One of the features of democracy is that it encourages community participation. It is only as we have a market place of ideas that we can enrich each other and learn and grow as a society.

Having someone in a community group whose real purpose is to inform on that group has several effects. First, it means that the group is not so focussed on its task as would otherwise be the case. It is inevitably a distraction, because someone is there with an ulterior purpose. Secondly, if and when people find out about the police surveillance, they are discouraged from ever being involved in community activity again. They are left with a legacy of distrust. Why should they exercise their democratic rights if the result is that they will be treated as criminals? The chill effect spreads far beyond the immediate group itself. Thirdly, and perhaps most importantly, experience has shown again and again that there is a motive for people who inform on such groups to try to radicalise them, and work as agents provocateurs, and even falsify their reports to make their dull spying job seem more significant than it is. Often it is these informers who suggest using violence, or take the lead in anti-social activity.

Of course, all this police activity is completely selective, and one way. You won’t find the police infiltrating boardrooms where decisions are taken against which many community groups campaign.

And this interference with democracy is being done without any independent oversight. No judge issues a warrant. No report has to be given to a parliamentary joint committee. There is no opportunity for the community group to go to court to challenge this invasion of their activities.

What's worse, due to a 2006 amendment - see s 31(3) - to the Freedom of Information Act, you can't find out about what the police have done. Recently I've been asked by a number of community members to get their police files, but have been met with the objection - based on this amendment - that the documents have been created by the Bureau of Criminal Intelligence or the Intelligence and Covert Support Department of the Victoria Police. This covers all documents created in the process of spying on the community.

This spying by the police interferes in legitimate political participation in a way that cannot be justified in a democratic community.

The rule of law doesn’t just mean having laws – even tyrants have laws. The rule of law is a check on the arbitrary exercise of power. A central feature of the rule of law is that it allows the courts to stand between the citizen and the government and determine disputes between them. Courts protect the citizen from arbitrary abuse of power. Where a community group does not even know it is being infiltrated, it cannot call on the courts to help.

We have a choice in governing our society – a choice between some having unbridled power – the rule of the despot, the rule of whim - and a society with clear laws which provide checks to the exercise of power - the rule of law. It is, at heart, the choice between tyranny and democracy.

Police spying on community groups is a key feature of totalitarian regimes. It is an unaccountable exercise of power which fundamentally undermines the rule of law, because it undermines the democracy on which the rule of law is founded.

Holding the Line

Tony Fitzgerald QC hands over his report into corruption in Queensland

I came into contact with Carl Williams a number of times. I was usually appearing for the police in relation to subpoenas and other technical issues involving his murder trials. I never quite got used to his boyish good looks and cheerful demeanour, which seemed surreal in the sobre atmosphere of the Supreme Court.

Recently, following the murder of Carl Williams in his "high security" prison, there have been calls for inquiries into police corruption. Court orders prevent me explaining why people have supposed there might be any connection, but it is sufficient to say these calls follow the murders of several informers who were to give evidence against allegedly corrupt police.

Carl Williams behind glass in court

Premier John Brumby has dismissed calls for a Royal Commission, saying that Carl Williams was a serial killer and a royal commission into his death would be a waste of taxpayers' money.

The Premier misses the point. A proper independent inquiry (it need not be a royal commission) is not about Carl Williams - it's about us. It's about our values. It's about whether murders (even of criminals) might be occurring in order to cover up corruption by some police - who have been given special powers to exercise on our behalf. Corruption of those in whom we entrust power is very dangerous, and can metastasize through the whole body politic. We must be vigilant about it - for our own sake.

The problem of police corruption is not new and it is not confined to Victoria. If we are to deal with it, we must be prepared to learn from the past and from interstate and even overseas experience.

The 1989 Fitzgerald Inquiry into corruption in Queensland was responsible for a complete change in the culture of police and politics in the State. Lest we have to undergo our own Royal Commission here, we must be prepared to learn the lessons of the Fitzgerald Inquiry. We have a long way to go.

Three weeks before the 2006 state election the Victorian government entered into a secret written deal with the Police Association (the union for police officers) in order to secure their electoral support. Both the premier, Mr Bracks, and then police minister, Tim Holding, signed the six-page document, the existence of which did not publicly emerge until after the election.

The agreement was extraordinary. It was made without the knowledge of the Commissioner of Police - Christine Nixon at the time - and it undermined her position for negotiating an enterprise bargaining agreement with members. It directly trespassed into operational areas, such as the provision of weapons, which were her responsibility. It also committed the government to reimbursing the Police Association for legal representation costs incurred in defending members being investigated by the Office of Police Integrity.

A Commissioner of Police is entitled to expect that she will be the voice of the police speaking to government. In this case, her capacity to do so was seriously undermined.

The Fitzgerald Report emphasized that curbing police corruption required avoiding any direct link between the government and the police union, so as to enable the Commissioner to carry out the duties of properly running the police organization.

The secret deal with the Police Association was precisely the kind of arrangement the Fitzgerald Report warned against. It strengthened the hand of the Police Association, and weakened the Police Commissioner, in a way that is detrimental to the police service and to all Victorians.

Another lesson from the Fitzgerald Report concerns Police Media Units. Tony Fitzgerald warned about the potential use of media by

police officers and other public officials who wish to put out propaganda to advance their own interests and harm their enemies. (report at p 141)

Media units, including the police media unit, have a legitimate function to perform, but it is a function that can all too easily be abused. Instead of informing the public, the media unit can be used to spin a line which is deceptive, or even use their position to trade influence.

Fitzgerald warned that government media units in general could be used:

to manipulate the information obtained by the media. Although most Government-generated publicity will unavoidably and necessarily be politically advantageous, there is no legitimate justification for taxpayers’ money to be spent on politically motivated propaganda. (report at p 142)

If media units do not result in citizens being better informed about government and departmental activities, Fitzgerald argued that “their existence is a misuse of public funds, and likely to help misconduct to flourish” (p 142). Fitzgerald urged the introduction of guidelines to govern their activities and the establishment of an all-party parliamentary committee to scrutinise the cost and operation of ministerial media staff and units.

Currently in Victoria there is inadequate oversight of such units, in relation to the police media unit or in relation to government media units generally.

The Victoria Police has a very large media unit. It is much larger than that of the Prime Minister of Australia. Inevitably, the media unit will have access to information of great sensitivity, and it will have significant power in the dissemination of information. Independent oversight of this Police Media Unit, with clear protocols as to the appropriate limits to its conduct, and publicly available information as to its work, are essential to curb potential abuse by that body.

We ought never be complacent about police corruption – or indeed corruption in general. Where power is entrusted to people, some will abuse that power. Vigilance and independent oversight are required to ensure that we keep a system which is as beneficial as it can be.

External Link

Fitzgerald Report