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TAMAR HOPKINS[*]
Victoria’s Charter of Human Rights and Responsibilities Act 2006 (‘the Charter’) came into operation in 2007. The Charter has implications for policing in Victoria. The purpose of this article is to identify some of those implications and current policing practices that will need to change in order to comply with the Charter.
Over the past 18 months young people from Somalia, Sudan and Afghanistan contacted the Flemington & Kensington Community Legal Centre (‘the Legal Centre’) and described their interactions with police. Solicitors and volunteers at the centre spent many hours listening to their experiences of police from the Flemington area and beyond. Many of the stories contain human rights breaches.
In the period 2006 to mid 2007 the Legal Centre submitted over 18 complaints to the Office of Police Integrity on behalf of its clients. The human rights breaches fall into two categories. The first comprises reports from young people about unlawful police behaviour. These are reports of non-resisted assaults such as punching a person in the stomach while they are handcuffed, threats of lethal violence and racist comments by police. Police managers would claim not to justify this behaviour. However, whether they take any effective measures to prevent the recurrence of these behaviours is questioned, in light of the conduct reported. The second category comprises policing practices that some police managers might well regard as acceptable but which nevertheless constitute human rights breaches.
This article discusses the breaches in this second category. I will use the Charter as a guide to expose police practices that are either unlawful (where the police action constitutes an offence) or have no legal basis (where police have no right to take the action and the action breaches a human right). The article also raises some questions about community policing strategies and their human rights implications.
Police are the primary means by which the state limits our civil and political human rights. Most actions police take against a person will affect a person’s freedom (see summary in Table 1).
In some of the cases listed in Table 1, the interference with our human rights may have sound policy, legislative or legal justification. The restrictions imposed may be necessary and appropriate in a free and democratic society. On the other hand, some limitations or methods of limitation may be such serious infringements of human rights as to be unjustified. Getting this balance right is partially the task of parliament in creating legislation and the courts in creating and interpreting the common law.
The Charter itself contains a balance. For example
s 21(3) states: ‘A person must not be deprived of his or her liberty except on grounds, and in accordance with procedures, established by law’. Getting the balance right is also an essential task for police. It is the police who act to enforce the law and who choose which methods to adopt in enforcing the law.
Because police work can interfere with human rights, it is mandatory that any interference is justified. In order to justifiably limit human rights, police actions and methods must be:
• explicitly authorised by law;
• carefully scrutinised to ensure they continue to be absolutely necessary and justified in free and democratic society;
• thoroughly monitored, documented and supervised;
• the responsibility of organisational managers as well as individuals;[1] and
• subject to review by a fully independent complaint and investigation body and the courts.[2]
From 1 January 2008, when Division 4 of Part 3 of the Charter comes into operation, Victoria Police will be obliged to act in a way that is compatible with human rights. The effect of this obligation will be to impose a new duty on police. Currently, police duties are to preserve the peace, prevent offences and discharge all legally imposed duties.[3] The new duty will be to protect and promote human rights.
Lord Brown in the 2006 UK case of Laporte gives an example of the impact of human rights on police duties in stating that police must take all possible steps to advance rather than thwart a person’s human rights.[4]
As policing can involve limiting human rights, the police role in also protecting those rights will create some practical dilemmas. By exposing these incompatibilities the Charter necessitates change to some policing practices.
I would like to examine two practices currently viewed as justified by some police and discuss their lawfulness under existing law and the Charter rights they limit:
• the police use of search and seizure powers on young people; and
• police questioning of young people on the streets.
There is no common law power for police to search a person who is not under arrest.[5] Thus, the authority for all pre-arrest searches must draw from legislation. Victorian legislation permits police to perform a basic search of a person reasonably believed to be carrying weapons,[6] drugs of dependence,[7] and volatile substances.[8]There are additional powers available under the state’s anti-terrorism legislation.[9]
So what happens when police want to search a young person on the street and take their mobile phone to investigate whether it is stolen?[10] Police have no legal authority to do this. If police have a reasonable belief that the young person has committed a theft, they can lawfully arrest the person and then legitimately search them. Searches and seizures without legislative authority, warrant,[11] or before arrest are arbitrary and unlawful.[12]
One young Sudanese Australian I spoke to told me he was in a public mall with his girlfriend when police searched him. The search was humiliating and as the only black person in the mall he felt feel targeted.[13]
Another young Somali Australian said that being stopped and searched was so normal he had come to see it as a routine part of his week. One of the reasons he attended the legal centre was for help to move away from the housing estate he was living in to reduce the constant and unjustified police attention.[14]
These experiences are by no means isolated. Furthermore, their consistent pattern indicates they are experiences of racial profiling and unlawful discrimination.[15]
Profiling is the inverse of law enforcement. In law enforcement, a crime is discovered and the police then look for a suspect who might possibly have committed it. Profiling means that a suspect is discovered and the police then look for a crime for the person to have possibly committed.[16]
Racial profiling has a very serious impact on people’s lives. It is humiliating; people are acutely aware that the police attention on them is based on their skin colour.[17] It interferes with a person’s freedom to walk down the street[18] and spend time with their friends.[19] It stops a person feeling safe or an equal member of society. It increases a person’s risk of psychological and physical harm.[20]
The effect is described well in words of a young person attending the Legal Centre in May 2007:
I remember when I was younger my brother getting hit by the police. He went to the Footscray hospital. Since I’m a teenager they do the same … to me. Every younger generation that’s growing up they are going to go after us. They hate us … they don’t want to see the young black fellas having a life, they are always going to put a criminal record on you or take you to the station, or whatever to try to get you locked up, to never get no good job.
In some reports received by the Legal Centre police direct young people to lift their shirts, drop their pants and empty their pockets. Police explain they have the right to search where the young person consents to the search. In these cases the young person is ‘assisting the police in the execution of their duties’.[21]
None of the young people I spoke to thought they provided police with their phones by consent or consented to the search. Their reports reveal they were arbitrarily and unlawfully searched and deprived of their property.
The police direction to lift a shirt and empty pockets is not experienced as a request by young people. In the reports I have heard, it is experienced as a demand and indeed a threat. Implicit in the request is the message, ‘if you don’t do as I ask, I will use force to search you and make life very difficult for you’.[22]
The South Australian Supreme Court in the 1992 case of Gibson v Ellis[23] held that a police search was effectively a deprivation of liberty, a detention for its duration. It is also a limitation on the freedom of movement, peaceful assembly and privacy.
Wherever police justify a search on the grounds that the person consented, it should be assumed that the consent was coerced and that the search was therefore an unjustifiable curtailment of human rights.
West Australian authors Harry Blagg and Meredith Wilkie argue that for children to be able to exercise their rights, special measures take account of their comparative vulnerability, ignorance, dependence and right to special protection and care. These rights are introduced in Victoria through s 8(4) of the Charter.
Blagg and Wilkie note:
… in any contact with a police officer, the child depends on the conduct of the officer for the enjoyment of their rights and relies on the officer to fully respect those rights and is at the mercy of any officer who chooses to infringe or violate those rights. We therefore place the full burden for respecting the child’s rights and for protection of the children from rights violations on the officer dealing with the child.[24]
This burden is consistent with the position under the Charter that it is the police duty to protect and promote rights.
It is not just young people who are vulnerable to police abusing their rights in search and seizure contexts. The vast majority of Australians would not understand that the police right to search is carefully constrained by law. The Victoria Police Manual, in recognition of this serious gap in legal knowledge and imbalance in power between police and ordinary citizens, requires police to obtain written consent of the person before a consensual search is conducted.
Not one of the young people who told me about being searched was asked to sign a consent form. I asked a police officer in June 2007 about these forms. Apparently the forms exist at the local police station, but he agreed that ‘no one uses them’.
Given the power imbalance, even the signing of a consent form is not sufficient to ensure that a person has genuinely and freely given their consent. Young people may feel they have no option but to sign.
It was the experience of young people reporting to the Legal Centre that police conducted searches for non-legitimate purposes. They felt that searches were being carried out for the purpose of getting them to leave the basketball court or the place they were sitting in. The Legal Centre was given reports of police saying ‘get back to Africa’ while searching young people.[25]
It was reported to the Legal Centre by a Somalian woman who asked police for the reason they were searching her sister, that police responded by saying, ‘we brought you to this country, now look what you are doing’.[26] Police must explain the reason for conducting a search.[27] The response this woman received provides an indication that this search was an expression of a racist or nationalist desire to assert control.[28]
Young people in the Flemington region reported to our Legal Centre in early 2006 that police stopped them in public places and questioned them up to five times a day, asking for their name, address and what they were doing. A similar experience of intensive policing was reported by youth at a 2006 National Sudanese Youth Conference.[29]
Police have said that it is part of their duty to know what people in their community are up to and that questioning specific groups is routine.[30]
From our Legal Centres experience, and police admission, young people and people from ethnic minorities are targeted by these practices.[31] A recent United States report notes that: ‘In the post September 11, 2001 environment, one’s immigration status is increasingly a trigger for law enforcement scrutiny’.[32] These practices are discriminatory and breach s 8 of the Charter:
(2) Every person has the right to enjoy his or her human rights without discrimination.
(3) Every person is equal before the law and is entitled to the equal protection of the law without discrimination and has the right to equal and effective protection against discrimination.
The policy of police to question target groups based on their skin colour, age, or disability must cease.
On 11 February 2007 then Police Association head, Paul Mullet, was reported in The Age to suggest that Sudanese, ‘roaming’ in ‘gangs’ required a special police task force.[33]
Assistant Commissioner Paul Evan was quoted in The Age on 11 April 2007 as saying that the Sudanese are, ‘underrepresented in the crime statistics’, and are very community-minded people and that Australia is lucky to have them. It is impossible to justify the practice of racial profiling based on these statistics.
There was no indication in the article of the methods Paul Mullet’s taskforce might use. If the methods involve more policing of these young people, the taskforce will directly discriminate against Sudanese Australians and breach of s 8 of the Charter.
Young people use public spaces to meet, play, and engage in sporting activities. Young people without backyards, such as those who live in high rise estates, are especially likely to congregate in public spaces. Congregating makes young people particularly susceptible to police interrogation. The Charter recognises the lawful right of people to congregate, associate and their right to privacy. Police practices that interfere with these rights are unacceptable.
Community policing strategies are supported as a method of reducing ‘difficulties’[34] between police and newly arrived communities.[35] Gaining an understanding, respect and empathy for the community is crucial to deconstruct the isolated, siege mentality that police work traditionally generates.
It is worth looking closely at whether community policing strategies are being implemented in a way that is compatible with human rights. Are police capable of trusting, not suspecting, the community in light of their training in paramilitary techniques and current ‘war on crime’ and ‘war on terror’ campaigns?[36]
As observed by Stead and Reside,[37] community policing is the approach adopted by those at the top of the police command. There is minimal if any support from police on the street. The authors note that this lack of shared vision goes to the heart of the current dispute between the Chief Commissioner of Police and the Police Association and that community policing is entirely undermined by the authoritarian and repressive police culture promulgated by the Police Association.
Aside from the problem of whether police are capable of adopting community policing concepts, the question remains whether community policing methods are about trust or are a disguised form of discriminatory policing. Stopping young people on the street and asking for their names, addresses and where they are going may appear to be good community policing. Yet, as we have seen, it targets groups in society based on characteristics such as race, youth and association.
A refusal by a young person to provide a name and address in situations where the young person is not required to give it often leads to an escalation of conflict. Some police view a young person’s refusal to assist as a sign of a ‘bad’ attitude, insulting and an affront to their authority. The Legal Centre has had reports that young people have been pushed or even hit with an object on occasions where they had refused to comply with a request to provide information about themselves or a friend.
Police have defended their reactions by saying, ‘our members are not paid to be insulted on the streets’.[38] In Coleman v Power, High Court justices Gummow and Hayne state that, ‘[b]y their training and temperament, police officers must be expected to resist the sting of insults directed to them’.[39] Police officers are trained professionals in a position of power.
Young people experience this kind of questioning as harassment and it leads them to feeling unsafe in their communities. Indeed, young people in Flemington and surrounding areas reported fear of police harassment as a major concern last year.[40]
If police hold meetings with the community with the underlying purpose of gathering intelligence, asserting authority or creating a media or public relations stunt, the meeting will not build trust. If however, the purpose is for police to listen and learn, then reduced prejudice could be an outcome.
For example, in early 2007, police and other individuals in Flemington held a clean-up day. Police reported this experience a successful ‘engagement with the community’. It has been reported that a police officer commented afterwards that it was the first time he had spoken to an African youth in circumstances where he was not treating him as suspect and that it opened his eyes.
On the other hand, a young person who attended the same function reported afterwards being interrogated with questions like, ‘why haven’t you got a job?’ and ‘what’s going on with your family?’
In another example, police took a group of young people on an overseas trip in 2007, to build trust. A few months later, one of the young people experienced a racist attack from a woman brandishing a needle and saying ‘I’m going to inject you with AIDS, you black cunt’ (or words to that effect). The young person was too distrustful of police to report this experience, despite the trip. It is worth noting that police themselves have been reported to have used similar racist abuse to young African Australians. Reporting a racist crime to an organisation whose members have perpetrated the same things is intolerable.
These examples indicate that such encounters can be useful in breaking down police prejudice, and that young people themselves can provide cross-cultural training to police.[41] It is, however, the case that these encounters may have negligible or negative outcomes for young people. They may invade privacy or be further opportunity for police to gather prejudicial information for their files. Unless the police act to protect rather than abuse human rights, and the power imbalance between police and community is addressed, police cannot assume that community engagement is positive.
Further problems in community policing are created when police take over the lives of the young people they ‘engage with’. In Flemington, police have labelled many of the young people who live in the high rise estates with comments like: ‘he’s making progress’, ‘he’s not engaging’, ‘he’s high risk’, ‘he’s got potential’, ‘he’s disengaging’, ‘he’s the gang leader’.[42] The individuals who are labelled are the prime suspects if a crime is reported. The ‘non-engager’ or ‘gang leader’ is raided, sometimes assaulted, threatened, sworn at, taken to the police station and released often without charge.[43]
The profiled young people experience life as a heavily patrolled detention centre: their every move is closely watched and monitored. If the police do charge them, the monitoring can be stepped up through bail reporting requirements and conditions that give police active control over the young person’s movements, and the people they can associate with.[44]
Community policing can turn the police force into a punitive and controlling welfare agency. When young people are ‘good’, police will take them to sports events, give them footballs, take them on camps, ropes and high-challenge courses. The carrots, however, are rapidly replaced with handcuffs and overnight detention if the young person fails police expectation. ‘He’s got to learn somehow, a night in detention might make him see differently.[45]
Unlike other organisations that work with young people, police have access to what appears to be lawfully sanctioned punishment if a person is suspected of stepping out of line. Police who use their powers to discipline, punish and control young people breach fundamental principles such as the presumption of innocence and the separation of powers as well as human rights.[46] In these situations, police may see there is no need (or in fact basis on which) to charge a young person when they have already been able to hand out a punishment.[47] When police act as investigator, judge and executioner, justice is as they see fit. Charging increases the risk of court scrutiny and exposure of any lawless police behaviour.
This kind of policing renders a community powerless. It exists outside the scrutiny of the courts and erodes people’s lives, safety, freedom and dignity. Rights to privacy, freedom of association, of movement, peaceful assembly and protection of the family do not exist in such a closely monitored setting.
Victoria houses many newly arrived Australians in the closely monitored and yet judicially unscrutinised environment of the housing estates in inner Melbourne. While refugee Australians are in need of more community services,[48] and this need requires urgent government attention, police cannot fulfill this role. Police are law enforcement agencies. When community policing strategies become refugee over-policing strategies, our migrant communities start to resemble occupied territories and wire-less detention centres.
While it is essential that police act to reduce prejudice and racism within police culture and that meetings with youth, refugee and migrant communities can have a role in this, over-policing, profiling and monitoring have no place in this process. The unequal profiling of people based on their age, nationality or ethnic origin is a breach of the Victorian Charter. Moreover, the impact of this kind of ‘policing’ unjustifiably limits many other rights contained in the Charter such as freedom of association, movement, assembly and privacy as well as fundamental concepts of the presumption of innocence.
Victoria Police must now work human rights into their practice. Many current police practices need to change. We watch the developments with interest.
[*] TAMAR HOPKINS is Principal Solicitor at the Flemington & Kensington Community Legal Centre.
© 2007 Tamar Hopkins
email: Tamar_Hopkins@clc.net.au
The Flemington & Kensington Community Legal Centre with Victoria Legal Aid write ‘Police Powers: Your Rights in Victoria’ and regularly provide community legal education on police powers. The legal centre was awarded the 2006 Tim McCoy Award for its work in bringing to public attention young people’s experience of policing in the Flemington region.
Thank you to the young people and their families in the region for their courage and passion for justice. Thanks also to Charandev Singh, Genevieve Nihill, Simone Perkin, Tiffany Overall, Khadra Ahmed, Ahmed Dini and Andrew and Anthony Hopkins and many others for their direct and indirect assistance, ideas and inspiration.
[1] To give full effect to s 38 of the Charter, legislation that severs Victoria Police’s organisational liability for deliberate abuses of power should be reviewed. For an example of the current lack of organisational liability see State of Victoria v Horvath (No 2) [2003] VSCA 24.
[2] All of these mechanisms are necessary to ensure compliance with s 7 of the Charter, s 7 of the Public Administration Act 2004 and 102BA of the Police Regulations Act 1958.
[3] Police Regulation Act 1958 (Vic) Schedule 2.
[4] Lord Brown at para 129 in R (on the application of Laporte) v Chief Constable of Gloustershire [2006] UKHL 55.
[5] R v Davidson (1991) 54 SASR 580. Searches must also protect privacy. See, eg, the application of the Canadian Charter in R v Golden [2001] 33CR679, 2001.
[6] Control of Weapons Act 1990 (Vic) s 10.
[7] Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 82.
[8] Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 60E, F.
[9] Terrorism (Community Protection) Act 2003 s 21P.
[10] The Legal Centre received reports that many young people had their mobile phones removed and later returned by Flemington police in 2006.
[11] Confiscation Act 1997 (Vic) s 79, 79A.
[12] There may exist a limited power to remove property under the common law’s breach of peace preventative jurisdiction.
[13] Reported Legal Centre in December 2006.
[14] Reported Legal Centre February 2007.
[15] Racial profiling breaches s 8 of the Charter.
[16] Martinot 2003, 168 as quoted in Carol Tator and Frances Henry, Racial Profiling in Canada (2006).
[17] Breaching s 8 of the Charter.
[18] Breaching s 12 of the Charter.
[19] Breaching s 16 of the Charter.
[20] See, eg, Tator and Henry, above n 16, 151–83.
[21] Victoria Police, Search Powers Power Point Presentation for the community, 2006.
[22] Studies in the US have also shown that the ‘voluntariness’ of the consent in these encounters is highly questionable. Police are very aware of the authority they command and how to appear forceful. See Jerome H Skolnick and James J Fife, Above the Law (1993) 101.
[23] Gibson v Ellis (1992) 59 SASR 420 as quoted in Harry Blagg and Meredith Wilkie, ‘Young People and Policing in Australia: the Relevance of the UN Convention on the Rights of the Child,’ [1997] Australian Journal of Human Rights 6.
[24] Harry Blagg and Meredith Wilkie, Young People and Police Powers, The Australian Youth Foundation (1995) 10.
[25] Reported in February 2006.
[26] Reported in April 2007.
[27] See, eg Control of Weapons Act 1990 (Vic), s 10, Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 60H.
[28] See Ghassan Hage, White Nation, Fantasies of White Supremacy in a Multicultural Society (2000) for a detailed analysis of these kinds of interactions.
[29] Reports made to the author during a community legal education session by the Legal Centre.
[30] Stated by a senior police officer in 2006 to the author.
[31] Also see Harry Blagg and Meredith Wilkie, ‘Young People and Policing in Australia: the Relevance of the UN Convention on the Rights of the Child’ (1997) Australian Journal of Human Rights 6.
[32] Jennifer Kim et al, ‘Americans on Hold, Profiling, Citizenship, and the “War on Terror”’ (Centre for Human Rights and Global Justice, NYU School of Law, 2007)10.
[33] Gary Tippet, ‘Some Kind of Beat-Up, The Sunday Age (Melbourne), 11 February 2007, 18.
[34] Police report the ‘problem’ is young refugees failing to ‘assimilate’ into Australia rather than the abuse of police powers. Charter rights to freedom of culture, expression and equality are infringed by assimilation.
[35] Victoria Police Association Journal, September 2006. This article is revealing it creating the impression that the ‘problem’ is solved by elders in the community telling young people to go home. This is not a solution compatible with human rights.
[36] Jude McCulloch, Blue Army (2001) 3.
[37] Victoria Stead and Shane Reside, ‘Protest Politics and Policing’ (2007) 88 Arena Magazine April–May, 15.
[38] Discussions with two senior police officers and the author in 2006.
[39] In Coleman v Power [2004] HCA 39 the High Court found that a charge of ‘Use insulting words’ against a police officer was unconstitutional as it operated to unjustifiably burden constitutional freedom of political expression.
[40] Moonee Valley City Council (Youth Services) Report, December 2006.
[41] Concerns around consent and coercion need to be examined closely in these situations. Perhaps young people could be paid to provide this training.
[42] For example, one person was arrested from his house and detained in the police station twice in early 2007 without charges being laid. Arbitrary detention and arrest is a breach of s 21 of the Charter.
[43] Interferes with rights in ss 13 and 8 of the Charter.
[44] Interferes with rights in ss 12 and 16 of the Charter.
[45] Statement made by a police officer in 2007 to the author. Detaining for punishment is a breach of s 25 which requires that an accused person be presumed innocent. The Charter provides for a right to fair hearing (s 24). It is only the courts which can punish a person. Punishment by police also breaches s 26 of the Charter by subjecting a person to two sets of punishment.
[46] Sections 21, 24, 25, 26 of the Charter.
[47] For example, where they have arrested and questioned a person, then released them without charge, eg in February 2007, two young people reported they were assaulted during arrest. At the time of writing, no charges have been laid against the young people.
[48] ‘Young Refugees in Australia: It’s a Long Road to Settlement’ (2007) XXX(1) Migration Action 5.
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