Category Archives: Australia

Draconian New Police Powers

Draconian New Police Powers

13 November 2009

The PILCH Homeless Persons’ Legal Clinic (HPLC) has slammed the introduction of legislation that will give police the power to conduct random strip searches in the street and may be used to prevent people from spending time with friends and family in public spaces.

Yesterday, Victorian Minister Peter Batchelor introduced legislation to the parliament that:

  • provides police with random search powers (including strip searches) in designated areas;
  • gives police the power to direct people to move-on from a certain area;
  • includes a new offence of disorderly conduct; and
  • increases penalties for the new offence of disorderly conduct and for existing offences of ‘drunk and disorderly’ and ‘drunk’.

‘The government’s laws are a serious breach of Victorians’ human rights, and the evidence shows that similar laws just don’t work to prevent crime,’ said James Farrell, Manager/Principal Lawyer of the HPLC.

There is no empirical evidence to show that ‘move-on’ legislation does actually result in reductions in crime rates in Australia or internationally. However, evidence suggests that zero tolerance policing methods such as ‘move-on’ powers tend to either divert people to other geographical locations with a lesser police presence, or divert them into the commission of more serious criminal activity.

‘Rather than pretending to be tough on crime by introducing ineffective measures, government should base policies on sound evidence that will improve community safety and outcomes for individuals,’ said Mr Farrell.

Similar laws have been introduced in NSW and Queensland. Police use of these powers in these states has been largely ineffectual in preventing and targeting crime. A 1999 NSW Ombudsman’s report found that the laws were largely misunderstood by police, who consistently went beyond the scope of the laws.

Mr Farrell also warned that the experience elsewhere shows that the powers have been applied in a discriminatory way to some of our most vulnerable community members, including people who are homeless, young people and people suffering from mental illness and indigenous people. ‘Homeless people occupy public spaces out of necessity and will be disproportionately impacted by move-on powers due to their lack of secure housing,’ Mr Farrell said.

Mr Farrell also criticized the government’s failure to release a statement of compatibility of the new legislation– a requirement under the Victoria’s Charter of Human Rights. This statement would advise parliament of potential human rights breaches in the legislation. ‘Victoria is the first Australian state to introduce legislative protections for human rights, and this legislation clearly breaches those rights,’ said Mr Farrell. ‘We have a right to movement, to freedom of association, to freedom of expression. These rights will be severely curtailed by this legislation, and the measures can’t be justified. Experience shows that they just won’t work.’

‘The Brumby Government wants to be seen to be tough on crime, but these new measures are weak on protecting our community. The government should adopt smart justice approaches that recognise genuine community safety is really about education, health, housing and human rights.’



James Farrell
Manager/Principal Lawyer, HPLC
(03) 8636 4408 

Anger over broadened police powers to search people

Anger over broadened police powers to search people

Jessica Craven 

A GEELONG lawyer has slammed new laws that allow police to search people in designated public areas as an “outrageous breach of human rights”.

The laws, which came into effect on Wednesday, give police sweeping powers to search people at random, including strip searches.

James Farrell, who works for pro-bono legal organisation PILCH, said evidence showed such laws did nothing to prevent crime.

“Rather than pretending to be tough on crime by introducing ineffective measures, government should base policies on sound evidence that will improve community safety and outcomes for individuals,” he said.

Under the legislation:

POLICE can search anybody in a “designated area” even if officers do not have any reasonable suspicion of wrongdoing and can proceed to a strip search if the circumstances warrant it.

ANY area where there has been an incident of violence involving a weapon in the past year can be deemed a designated area; as can any place where police suspect there may be trouble; or any major event precinct.

A NEW offence of disorderly conduct has been created, with $234 on-the-spot fines.

Mr Farrell said the legislation included provisions to strip search minors in “mystery” designated areas.

“There was a bit of a misconception around that these places were going to be advertised and seven days notice given, but there is provision in the legislation that they do not have to be advertised,” he said. “So you can be walking down the street in front of your house and be asked to undergo a search.”

Police and Emergency Services Minister Bob Cameron said laws enabling searches for weapons had been strengthened to help protect police.

“All these new laws provide the police with pre-emptive tools designed to diffuse situations and deter unacceptable behaviour so Victorians can safely enjoy public places in peace,” he said.

“These critical new reforms will boost Victoria Police’s ability to deal with drunkenness, disorder in public places and violence.”

Mr Farrell said the legislation included hefty new fines for the “vague” new offence of disorderly conduct and for existing offences of drunk and disorderly and drunk.

“We can now be slogged $234 for walking home from the pub,” he said.

“The new offence of disorderly conduct is not defined and relies upon the subjective and arbitrary judgment of individual police officers.”

Increased police powers in Australia

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PILCH is a leading Victorian (Australia), not-for-profit organisation which is committed to furthering the public interest, improving access to justice and protecting human rights. PILCH does this by facilitating the provision of pro bono legal services and undertaking law reform, policy work and legal education.

On 12 November 2009, the Victorian government introduced new legislation which drastically increases police powers to deal with public space ‘offenders’. 

The Summary Offences and Control of Weapons Acts Amendment Bill will:

  • provide police with random search powers (including strip searches) in designated areas;
  • give police the power to direct people to move-on from a certain area;
  • create a new offence of ‘disorderly conduct’; and
  • give police power to impose fines and issue arrests for drunk or disorderly conduct.

These powers do not contain sufficient protections to ensure that the powers are exercised appropriately. Such broad police power have been introduced in other Australian states, and a 1999 NSW Ombudsman’s report found such laws to be largely misunderstood by police, who would often acted beyond the scope of the laws.

Additionally, there is a complete lack of empirical evidence, both domestically and internationally, demonstrating any correlation between the granting of these draconian police powers and reducing crime rates. In fact, available evidence suggests that such ‘zero tolerance’ policing methods tend to divert people to places without police presence or divert them into the commission of more serious crimes.

The HPLC warns that such policy will also prove to be discriminatory in effect. In particular, people experiencing homelessness will be targeted by this legislation since, without secure housing, many are forced to carry out basic daily living activities in public spaces. However, young community members, those suffering mental illness and indigenous people will also be disproportionately affected by this legislation.

The legislation threatens to contravene the human rights laid out in the Victorian Charter of Human Rights and Responsibilities (Charter) and international law, including freedom of movement, association and expression. Whilst the Charter permits human rights violations where it is proportionate and justified, the Government has conceded that the discretionary nature of the police powers granted and the severity of proposed penalties cannot be justified.

The HPLC proposes an alternative plan of action in order to responsibly respond to criminal activity within the community that focuses on education, health and housing approaches.

Iraq War Critic Deported from Australia to US

 Iraq War Critic Deported to US
Bob Burton
 CANBERRA, Sep 15, 2005 (IPS) – The Australian government deported, Thursday, Scott Parkin, a soft-spoken peace and environmental activist, of the Texas-based Houston Global Awareness Collective, for participation in non-violence and civil disobedience workshops in this country. 

 In a debate in the Australian Senate, Greens Senator Bob Brown, described the adverse security assessment by the Australian Security Intelligence Organisation (ASIO) and the subsequent decision to deport Parkin, while refusing to provide any reasons either to him or his lawyers, as ”outrageous”.

 ”What has the government to hide here? It is the government that is hiding and being covert and being dangerous. Not Mr Parkin, it is the Howard government that is the dangerous entity here,” he said.

 Parkin, who completed a master’s degree in history on the Vietnam War, is an outspoken critic of the U.S.-led war in Iraq. On Saturday, Parkin was arrested en route to a workshop in Melbourne where he was to speak on non-violent activism against the Iraq war.

 Late August, he spoke at a street theatre protest outside the Sydney office of ‘KBR’ , a subsidiary of the contracting company, Halliburton, which has been awarded substantial deals by the U.S. government in Iraq. ”Halliburton and its subsidiary KBR are essentially the poster children of war-profiteering,” he said.

 In a statement, written in prison on Wednesday, Parkin said that ”the only information that I have received is that I have been assessed as ‘a direct or indirect risk to Australian national security’.”

 In the Senate on Wednesday, Minister for Justice Senator Chris Ellison stated that while ASIO did not oppose Parkin’s entry into the country six weeks ago, its ”understanding of his intentions has changed while he has been in Australia.”

 Ellison went on to tell the Senate that ASIO ”is responsible, of course, for protecting the community from security threats and all forms of politically-motivated violence, including violent protest activity.”

 In his written statement issued from prison, Parkin rejected the inference that he has supported or encouraged violent protest. ”I am strongly opposed to any violence and do not believe that violence delivers any political gain, and in fact, detracts from positive political engagement,” he said.

 An Australian friend of Parkin’s, Iain Murray, dismisses the Australian government’s claims. ”Scott is diametrically opposed to violent protest,” he told IPS. ”He is passionate about history, he is passionate about social change

Australia’s road towards police state

Australian Senate hearings reveal public opposition to "terrorism" laws

By Mike Head
27 April 2002

Hearings before a Senate committee have demonstrated considerable opposition among ordinary people, as well as a broad range of organisations, to the package of “counter-terrorism? legislation that the Howard government will attempt to push through parliament next month.

The unprecedented legislation has received virtually no coverage in the media and the Senate Legal and Constitutional Committee set a time limit of less than two weeks for comment on five major Bills. Nevertheless, the committee has received a near-record number of submissions expressing grave concerns about the undermining of political freedoms, basic democratic rights and civil liberties.

The government has seized upon the terrorist attacks in the United States last September 11 and the Bush administration’s ongoing “war on terrorism? to bring forward the most far-reaching measures against free speech and political rights since World War II. The legislation imposes lengthy jail terms, including life imprisonment, for a wide range of terrorism, treason and espionage offences?all defined in vague and sweeping terms?and reverses the presumption of innocence for some of these new crimes.

The legislation will outlaw many traditional means of political protest. For example, mass pickets, blockades, sit-ins or other acts of civil disobedience – which may involve minor infringements of the law?can be defined as terrorism and become punishable by life imprisonment because they involve “a political, religious or ideological cause”. A person who merely possesses a document or thing that has been used to prepare or commit an alleged terrorist act?perhaps a leaflet advertising a rally?can be jailed for life.

The Bills will empower the attorney general, without any parliamentary or judicial scrutiny, to ban political parties and other organisations that he considers “have endangered or are likely to endanger the security or integrity” of Australia or any other country. A person who in any way “assists? a proscribed body faces 25 years jail. Anyone who “assists? an organisation that has become involved in hostilities with the Australian armed forces can be charged with treason and sentenced to life imprisonment.

Another Bill, which initially has been shunted off to a separate committee, will enable the Australian Intelligence Security Organisation (ASIO) to detain people in police custody without charge, hold them incommunicado, deny access to legal advice, strip-search detainees and interrogate them in detention for at least six days, and possibly longer.

As many of the submissions have suggested, the laws have nothing to do with protecting the Australian people against terrorism. In the first place, the government has admitted repeatedly that it has no evidence of specific terrorist threats. But even if a threat existed, any conceivable terrorist activitx’such as a bombing, hijacking, kidnapping or assassination – is already a serious crime under existing law.

Senate hearings provide only a rarified, highly formal and somewhat intimidating forum for people to protest against the government’s plans. Moreover, the committee process is designed to allow the major parties, the Liberal-National Coalition and Labor, to fine-tune their proposals in the hope of heading off broader unrest. Nevertheless, submissions have poured in. The committee’s chairperson has so far publicly acknowledged the receipt of more than 350 submissions but an official said the total ran into the hundreds, with 20 arriving per day, well after the official April 5 deadline.

Sweeping powers

Among the organisations objecting to the laws, either in full or part, were Amnesty International, the NSW and Victorian Councils of Civil Liberties, the Uniting Church, the Islamic Council, the Ethnic Communities Council, the Australian Council of Trade Unions (ACTU), the Law Council of Australia (the legal profession’s peak body), community legal centres, environmental groups, political parties and legal and other academics.

The Law Council warned that the attorney general could ban widely-supported groups, such as Amnesty International, Community Aid Abroad, the National Council of Churches and the Human Rights Council of Australia. It described the definition of terrorism as “unacceptably broad, imprecise and unwieldy”. The lawyers? body condemned the introduction of “absolute liability? into determining guilt. Under the legislation, “it is no defence that the accused acted honestly and reasonably”. Scholars, researchers and journalists could be jailed for innocently possessing documents relating to terrorism.

The Ethnic Communities Council of Victoria said there were “tremendous concerns” within immigrant communities that people could be jailed for “assisting” terrorists or an “enemy” by donating to help support widows, orphans and other victims of overseas conflicts. People who were called in for interrogation or charged with offences could lose all their family assets trying to defend themselves. The Islamic Council pointed to media vilification of Arab and Muslim people and expressed concern that the legislation could lead to the type of persecution and racial profiling already witnessed in the United States.

A Uniting Church branch voiced concern that “someone who simply expresses public support for a proscribed organisation would face imprisonment for their opinions… this provision has the potential to violate Australi obligations as a State Party of the International Covenant on Civil and Political Rights with regard to the right to freedom of expression and association”.

Liberty Victoria denounced the legislation for “proscribing thought”. Its representative, Julian Burnside QC, warned that pickets and public demonstrations against the use of attack dogs and thugs during the 1998 waterfront dispute could have been classed as terrorism, and that trade unions such as the Construction Forestry Mining and Energy Union (CFMEU) could be proscribed for involvement in the 1996 storming of federal parliament. A legal academic stated that people who blocked the entrances to Melbourne’s Richmond Secondary College and defied police during the early 1990s campaign to halt the school’s closure could have suffered similar consequences.

Constitutional law professor George Williams wrote: “The Terrorism Bill is similar in design to the Communist Party Dissolution Act 1950. That Act granted the Governor General an unfettered and unreviewable power to declare an organisation to be unlawful or a person to be a communist.” The High Court held that Act to be unconstitutional and the Menzies government’s 1951 referendum to amend the constitution was defeated, striking an important blow for free speech.

The NSW Council for Civil Liberties said the proposed definition of membership of an association was so broad that an organisation could be outlawed because of a violent act by an individual who falsely claimed to represent the organisation. This measure will create enormous scope for frame-ups and provocations, particularly by police and intelligence agents, although the Council did not make that point.

“Reminiscent of Nazi Germany?

One of the first individual submissions came from a Sydney woman, who stated: “I am totally opposed to the ASIO Powers and Anti-Terrorism Legislation that the government has introduced to the Australian Parliament. I believe that this legislation poses a threat to civil liberties and violates international human rights conventions…

“The creation of new offences of terrorism which could encompass some union activities, civil disobedience and dissent provides the government with opportunities to misuse its powers. History shows that the Australian government has been adept in doing this in the past.

“The anti-terrorism legislation which allows ASIO to detain people incommunicado for up to 48 hours without charges without the right of silence and without access to a lawyer is quite draconian and reminiscent of Nazi Germany.”

A NSW man protested against the short time given to citizens to examine the legislation and the lack of any public meetings to discuss it. He objected to many features of the legislation, including ASIO?s detention power. “The right to legal representation and the right to silence are fundamental rights which should never be set aside for any purpose in a democratic society.”

Another submission denounced the power to proscribe organisations, comparing it to the 1950-51 bid to ban the Communist Party. “This rehash of the failed 1950s process must astonish those with some knowledge of Australian history. And this in the face of NO particular threat to the country! Banning organisations by executive decree and with no need for proof must rank as one of the most vile ambit claims of the present federal government…

“The subsidiary proposed offence of “assisting” a proscribed organisation is as appalling and objectionable as the original proposed offence. Why should a decent citizen NOT assist an organisation subject to such a vile, arbitrary and repressive law? The proposed law invites civil assistance to any such banned organisation as a matter of civil duty, to defend basic civil liberties. I certainly reserve my right to do so?but apparently the present government thinks this should incur a penalty of 25 years imprisonment.”

A Melbourne woman wrote: “It is my belief that the Bills being proposed are not really going to be used to defend Australia against terrorism, rather they will use the “war against terrorism? against voices of dissent within the Australian community. I believe that terrorism, murder and all acts of violence are evil, however, the creation of new terrorist offences and the banning of any group “likely to endanger the security or integrity of the Commonwealth or any other country? is liable to be applied to any number of community organisations that ensure social equality and environmental stability.”

Another submission commented: “Basic safeguards of freedom from arbitrary arrest should not be compromised in this way, or the state itself becomes a terrorist. To quote Benjamin Franklin in his Historical Review of Pennsylvania, 1759: “They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety”.”

The government has made it plain that it will proceed with the legislation regardless of these concerns. At the committee’s last hearing, in Canberra on April 19, top-ranking government, intelligence and law enforcement officials responded to the submissions by vehemently defending the legislation.

ASIO director-general Dennis Richardson insisted that the so-called war on terrorism required permanent changes to the legal structure. ?11 September was not a blip on the security landscape which will simply fade into history,” he declared. “It has changed the security environment, and those changes will be with is for some years. The US and its partners are engaged in a protracted war?or whatever word one want to use.”

Likewise, senior officers from the Attorney General’s Department rejected criticism of the breadth and uncertainty of the language used in the Bill, insisting that they and the government must have full discretion to decide whether to prosecute for terrorism or treason offences.

The government is confident that it can push the Bills through parliament with the support of the Labor Party. One notable feature of the Senate committee hearings was Labor Senator Jim McKiernan’s browbeating of witnesses and strident defence of key provisions in the legislation.

At one point, for example, McKiernan rounded on a Uniting Church representative for suggesting that if organisations were to be banned, it should require a parliamentary vote, rather than an executive decision by the attorney general. “If there was a need for some parliamentary action in the banning of an organisation that was clearly engaging in a terrorist-type activity, it would be a bit much to have to wait six months, four months or five months to do that, would it not”? he asked.

The Senate committee has been given until May 3 to report on the five Bills. Labor and Australian Democrat Senators may suggest minor amendments to placate opposition to the measures. Regardless of any token modifications, however, the essential purpose of the legislation will be to criminalise many forms of political dissent.