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Tim Anderson
There has been an unprecedented and enormous rise in police powers since the Royal Commission into the NSW Police Service (1994-97). This was not in response to any violent disorder or crime wave, but rather in response to a police crisis of legitimacy. However, greater police powers have not led to greater general law enforcement, but to a growth in differential or discriminatory policing. Entirely distinct policing strategies are now applied in different neighbourhoods, with the backing of new laws.
The Police Service and Police Association grasped the opportunity part way through the Police Royal Commission[1] and 'cooperated' with the reform process in exchange for enhanced capacity. The new Commissioner was given a virtual 'blank cheque' in the reform process. The new police powers have included:
| • | The abolition of civilian oversight - which was represented by the old Police Board. The Police Board was abolished by the Labor Government during the Police Royal Commission, in anticipation of the new police management regime. |
| • | New powers to detain and move on (mainly Aboriginal) children in country towns, under the Children (Protection and Parental Responsibility) Act [2] - an unusual power which applies only in 'operational' country areas.[3] |
| • | General police immunities when acting in a 'controlled operation' - the NSW Law Enforcement (Controlled Operations) Act[4] was partly in response to the High Court decision in Ridgeway[5] , but it does much more than authorise drug stings. Senior executive officers of the NSW Police Service can authorise 'controlled operations' in the course of which law enforcement officers gain a general immunity from any criminal charge or civil claim. Only the retrospective authorisation of murder is specifically banned. In addition, the Drug Misuse and Traficking Amendment (Controlled Operations and Integrity Testing Programs) Act[6] authorised controlled operations under the Drug Misuse and Traficking Act[7] . |
| • | New 'detention after arrest' powers, which formalise but also legitimise and extend the existing practice of holding suspects for questioning after they have been arrested. While some weak post-arrest rights (e.g. the right to a phone call) were formalised in regulations, they are subject to police needs and are likely to be further weakened if, for example, the Government accepts Police Commissioner Ryan's call for the abolition of the right to silence. |
| • | New restrictions on bail, under s.9 of the Bail Act[8] , have added to the state's swollen remand prison population. A wide range of exceptions to the traditional presumption for bail (a presumption clear in the original Bail Act, and clear in the major human rights treaty, the International Covenant on Civil and Political Rights[9] ) were added between 1986 and 1998. These initially included armed robbery, failure to appear on bail, and murder and related attempts and conspiracies. In November 1998, this list was extended to include manslaughter, wounding with intent, kidnapping and several sexual assault offences. The right to bail and the associated presumption of innocence barely survive. |
| • | Extra 'move on' powers, new identification powers and arbitrary knife search powers were added under the Police and Public Safety Act[10] , which amended the Summary Ofences Act[11] . In a letter to the Police Minister dated March 1998, the Police Association demanded such powers. They got them.[12] |
| • | New lethal weaponry, such as Glock pistols and OC spray. |
| • | New mass DNA testing powers were trialled in a police publicity stunt in a country town and are now being legally imposed on prisoners. These powers will undoubtedly spread to the wider community. |
Other police powers in the pipeline include: easier police access to search premises, removing the presumption of innocence at trial and during police investigations, and removal of the right to silence - in other words, courts will be asked to draw inferences of guilt from a suspect's silence.
Massive public exposure of corruption at the Royal Commission had created a crisis for the police. More than 300 had admitted or been implicated in 'process corruption' (fabricating evidence and lying to the courts), apart from those filmed taking bribes on the famous 'crotch cam'. Several dozen police were removed from the force and a handful were prosecuted. However, immediately the process began of rebuilding the public image of and confidence in the police - despite the absence of any corporate admission of wrongdoing. There was no 'sorry' for the wrongs of the past, just a bland statement that things had changed and there was now an 'honest cop' as Commissioner.
There are three broad explanations for the rise in police powers:
| 1. | The ongoing and intensely ugly political-media 'law and order' spiral - involving repeated claims of crime waves and a more violent society, and consequent punitive responses and increased penalties.[13] These are populist moves drawing on economic insecurity and most often aimed at scapegoat groups (youth, Aboriginal and immigrant communities, sex workers, drug addicts). The US 'war against drugs' is an example of such populist scapegoating. |
| 2. | The powerful administrative need to restore public confidence in the police post-Royal Commission was pursued in a particularly banal way, by appointing a 'clean' outsider, giving him dictatorial powers over his own workforce (the police) and then allowing him almost any powers over the population he demanded - effectively an accumulation of 'world's worst practice', based on US and UK precedents in policing. |
| 3. | Along with the growing privatisation of public space came increased demands from property owners for the greater regulation, control and surveillance of public and quasi-public space. The subsequent regulation is then directly in support of both these demands and a wider raft of complementary regulation. Direct regulation includes the new police and security guard targeting of young people in shopping malls and train stations, and a proliferation of closed circuit TV surveillance. Complementary regulation includes police-council collaboration on the resurrection of 'loitering' powers, political demands for new truancy powers and the legislative denial of civil rights around Sydney Olympic Games venues. |
Despite the enormous rise in police powers, the community is not being generally policed at a greater rate. Rather, there has been great selectivity in the application of a wider range of police strategies - a phenomenon I call 'differential policing'.
At the same time that intolerant policing and draconian police powers have been applied, there has been a significant development in tolerant policing, yet the two approaches are applied to distinct sub-communities.
Intolerant policing can be seen in mandatory and minimum sentencing laws, intensive drug policing, and the new and discriminatory targeting of 'repeat offenders'. The US fad of 'zero tolerance' policing - in practice the blitz policing of disadvantaged neighbourhoods - has also gained some support in NSW. Despite some US claims to the contrary, 'zero tolerance' policing has done little to reduce crime[14] yet has instead escalated complaints about police brutality[15] and led to a breakdown in community police relations. In late 1997 Police Commissioner Peter Ryan announced that zero tolerance policing would not be general NSW police policy, but would be practised in some areas, such as Cabramatta[16] . The targets were Indo-Chinese drug users. In a similar way the new arbitrary knife searching powers have been practised only in certain areas, such as South Sydney, Cabramatta and Canterbury-Bankstown.
Intolerant policing was seen in the February 1990 Redfern Raid, where 135 armed police, led by the TRG, smashed their way into eight homes in the Aboriginal Housing Estate at Redfern at 4 in the morning. They used iron bars and sledgehammers to get into the houses. One 67-yearold woman said of the raid: 'The first thing that I knew was that my bedroom door was open and six or so men were standing in my room.
I got that much of a shock because I didn't recognise them as police on account of the fact that I had been fast asleep. These police were carrying batons and guns and they had helmet things on their heads and bullet proof vests too.'
Eight arrests were made; one for minor drug offence, two for unpaid fines, two for breaches of bail, one for being drunk on a train station and three for goods in custody. The search warrants made out for this massive raid related to such things as 6- and 7-year-old breaches of bail, and a 6-year-old charge of being drunk on the railways. None of these great villains named in the warrants were actually arrested during the raid.[17]
Commander Alf Peate said the raid had been conducted in response to concerns from the community about the growing incidence of crime and heroin abuse in the area. However, a large community meeting in Redfern roundly condemned the raid. Peate was reported as saying: 'Our normal surveillance activities can't operate in a place like the black community. You stand out like you know what. Where do you survey the activity of people when they are all the one breed? So you have then got to look at alternative methods and that was what today was all about'[18] .
This statement and the 'one breed' comment helped the Human Rights and Equal Opportunity Commission's consultant decide that the raid was fundamentally racist, and an act of racist violence. As he pointed out, such raids on communities do not occur elsewhere in Sydney[19] .
That pattern of intense and racist policing, in smaller doses, is an everyday occurrence in police-youth relations. When interviewing young people 18 months ago I found plenty of examples of intolerant policing. A young Koori in Ballina said, 'Every time we get hammered we are out of sight - in the back streets, up the park, down the riverbank. When we are up on the main street they [police] don't want to have anything to do with us.' A young Pacific Islander in Canterbury said, 'They just come up to us and say, empty out your pockets, take off your shoes - they don't pick on Aussie kids. If you're there by yourself and you're black and there's lot of white kids around, the cops will come straight up to you.'[20]
On the other hand, the police treatment of offending police is often handled in a quite different way - with reconciliation of many complaints, reprimands, proceedings by summons, and so on. In theory, much of this also applies to the policing of young people. One object of the 1995 Police Youth Policy, for example, is to extend diversionary and pre-court intervention strategies in order to move young people away from court procedures, and to enhance the caution and warning schemes available to police - including through the Young Ofenders Act[21] . This Act was largely consistent with the Convention on the Rights of the Child[22] .
But the application of diversionary and tolerant policing has also been selective. It has been applied to privileged groups. One good example was the SCECGS school muck-up in October 1997. In this case, signs warning of one way streets and dangerous junctions were stripped from their posts by 80 SCECGS Redlands students from Cremorne. However, local police discounted charging the Year 12 offenders, saying they were satisfied cautions were sufficient punishment. Local Area Commander Terry Jacobsen commented: 'To their credit, these students have not hidden behind any privilege, legal or financial. They have come forward and admitted their errors. They have assisted police in the inquiry, which has saved hundreds of investigation hours. ... Both the students involved and SCECGS Redlands have been busy re-establishing their credibility by appropriate restoration, compensation and contrition. It is NSW Police Service policy to give young offenders who admit their fault a chance to prove they can learn from mistakes, without invoking the full sanction of the law. Year 12 students of SCECGS Redlands should move forward, do well in your exams, and contribute to society to the best of your ability in the manner of your predecessors.'
At the same time, statistically driven police performance reviews (called Operational Command Reviews, and imported from the US 'Compstat' systems) have intensified the discriminatory use of new police powers in certain areas and amongst certain target groups. The recent Ombudsman's report on new summary offences powers demonstrates this. The new knife searching powers were used overwhelmingly against young people and almost exclusively in certain targeted areas.
Seventeen-year-olds were six times more likely to be searched than 27-year-olds and 23 times more likely than 37-year-olds. Forty-two percent of those searched for knives were 17 years or younger, and 80 percent were 25 or younger.
However, only 14 percent of the searches of 17-year-olds searches were 'productive' (in the sense of finding some dangerous implement - however note that a person may have a reason for holding scissors or a pocket knife), while 47 percent of the searches of 37-year-olds were 'productive'.[23] In other words, the random or arbitrary searching of young people has intensified, whereas the searching of older people tends to have a more reasonable basis.
Males were 13 times more likely to be searched than females, and Aboriginal people were more than three times over-represented in knife searches. In local areas, huge disparities have opened up. For example, there were 17 searches per 1,000 residents in Fairfield and 14 in Campsie, compared to 0.4 in Rose Bay and 0.5 in Byron/Tweed. This is a 30-times greater level of policing, yet the 'productivity' of these knife searches was 10 to 20 times less. In the highly policed areas, ‘productivity’ is very low (9 percent and 6 percent respectively) while that of the lowly policed areas is very high (85 percent and 95 percent respectively).[24] Areas like Fairfield and Campsie look like becoming the new 'black' areas of zero tolerance policing.
In a study of policing in Canterbury-Bankstown, former NSW police sergeant Michael Kennedy has linked the 1998 Operational Command Review system (OCR) to a renewed intensification of aggressive policing of working class and disadvantaged communities.[25] Under this system, local commanders are required to regularly produce statistics of high levels of intervention and arrest. The recent Ombudsman's report supports Kennedy's view. OCR was said to have a 'significant influence' on the use and overuse of knife searching powers. In fact, several local commanders complained that 'the push on numbers' had encouraged possible misuse of the legislation.[26]
This is a long way from restorative justice in Cremorne. Differential policing can sustain such great contrasts in policing in the one city. This differential policing, in the absence of clearly defined civil rights, is fragmenting the already feeble notion of Australian citizenship.
[1] Royal Commission into the New South Wales Police Service, Wood, JRT Final Report Volume 2: Reform, Royal Commission into the New South Wales Police Service, Sydney 1997
[2] 1997 (NSW)
[3] Anderson, Tim, Campbell, Steve, and Turner, Sheree, ‘Youth Street Rights: a policy and legislation review’ (1999) UTS Community Law and Legal Research Centre and Youth Justice Coalition, Sydney
[4] 1997 (NSW)
[5] John Anthony Ridgeway v. The Queen [1995] HCA 66; (1995) 129 ALR 41
[6] 1998 (NSW)
[7] 1985 (NSW)
[8] 1978 (NSW)
[9] General Assembly resolution 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/ 6316 (1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976.
[10] 1998 (NSW)
[11] 1998 (NSW)
[12] n. 3
[13] Hogg, Russell and Brown, David, Rethinking Law and Order, Pluto Press, Sydney 1998.
[14] Dixon, David, ‘Broken Windows, Zero Tolerance and the New York Miracle’ (1988) 10(1) Current Issues in Criminal Justice, 96-106
[15] Harden, Blaine, ‘New York mayor's anti-crime strategy tested by alleged police-beating case’, Washington Post 1997; Herbert, Bob, ‘Oblivious at the Top’, In America, March 21, 1999.
[16] O'Brien, Peter and Campbell, Steve, ‘Youth and Public Space: legislation and policy overview’, unpublished report, University of Technology Sydney Community Law and Research Centre 1997.
[17] Cuneen, Chris, 'Aboriginal Police Relations in Redfern: with special reference to the police raid of 8 February 1990’, Human Rights and Equal Opportunities Commission, Sydney, May 1990.
[18] Sydney Morning Herald, February 9, 1990, quoted in Cuneen, Chris, ‘Aboriginal Police Relations in Redfern: with special reference to the police raid of 8 February 1990’, Human Rights and Equal Opportunities Commission, Sydney, May at 22, 1990
[19] n. 17 at 22
[20] n. 3
[21] 1997 (NSW)
[22] n. 3
[23] NSW Ombudsman, ‘Policing Public Safety: report under s.6 of the Crimes Legislation Amendment (Police and Public Safety) Act 1998’, Sydney, November 1999, at 127-28
[24] n. 23 at 132-33
[25] Kennedy, Michael, ‘What is Zero Tolerance Policing? Where did the ideas come from? How did they come to Canterbury-Bankstown?’, unpublished paper, 2000
[26] n. 23 at 123
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