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WA Labor’s new strident approach on stop and search powers

By Rewi Lyall

In an earlier post I criticized the trend of successive Western Australian State governments and Local Government Authorities to ever harsher policing powers, from the expanding surveillance of citizens to the proposed police powers to stop and search any Western Australian who seeks to enter certain events or public spaces. That post was subsequently republished on Larvatus Prodeo, with an ensuing engaging discussion by visitors to that site.

One of the comments was a pointed observation that I had omitted any reference to the Labor Party. Indeed, I replied, it didn’t mention any specific parties.

The fact is that I haven’t always been impressed with the approach of the Labor Party on ‘law and order’ issues. The initial statement by Eric Ripper that Labor had sought to introduce similar measures, I’ll concede, was one I found less than inspiring.

However two recent excursions by Shadow Ministers into the field have given me fresh hope.

A story in the West Australian on the 28th of October covered comments by Shadow Minister for Police Margaret Quirk:

Shadow police minister Margaret Quirk called on the Government to address causes of crime rather than continually resorting to harsher penalties. The Government recently announced a range of measures to curb alcohol- related violence in Northbridge.

“I think the focus is very much going hard on the offenders, and while that is legitimate the overall focus should be on there being fewer victims,” Ms Quirk said. “You need a much more complex approach to law and order.”

She said cutting money from the office of crime prevention and a reduced focus on education campaigns hindered the battle against increasingly violent attacks.

“It’s no consolation for a victim to have the Attorney-General and the Minister for Police waving their finger at the offenders after the event,” she said.

This line of argument is, while cast within the continuing frame of a law and order debate, at least getting closer to some of the concerns raised in the discussion on Larvatus Prodeo about root causes. I hope to write some more about that at a later date.

It has been followed up by recent comments by Shadow Attorney General John Quigley regarding the proposed stop and search powers (with thanks to the Western Patriot – hard to get access to the Perth Voice over here):

Mr Quigley told The Perth Voice that the new powers are, “extreme laws giving unheralded powers to the commissioner of police, the likes of which you would only see in a fascist or totalitarian regime.”

Combined with mandatory terms of imprisonment for assaulting police officers, these new laws significantly erode the rights of individuals against the State.

Mr Quigley told The Perth Voice that the State Government could “get away with [it] by…inducing the people of Perth to believe they are living in the most dangerous city in the country, or the western world, and it is just not true.”

This is a distinct and welcome shift in approach from the previous statements by the Opposition Leader. Although the rhetoric might be a bit stronger than I’d use, it represents a strength of resolve on the issue that we should embrace.

Of pimps, prostitutes, dealers and freedom

By Rewi Lyall

In an earlier post I briefly discussed the issue of civil rights in Australia, particularly as to how we justify infringing rights in order to deal with specific segments of society. It’s a distinctly worrying trend, but when the decision of the Western Australian government to grant police the power to stop and search citizens without reasonable suspicion of wrongdoing is cast in terms of ‘cleaning-up the streets’ to the benefit of ‘decent families’, as opposed to violent thugs, it’s pretty hard to say ‘Hang on a minute’ without being accused of being with the terrorists.

But… hang on a minute.

The trend in Western Australia, and Australia generally, should be alarming its citizens. This isn’t just about physical intervention by police forces, but an active campaign of intimidation designed to inculcate a compliant population.

And it appears to be working.

As of 2004 Perth was home to the largest single closed-circuit television surveillance system in Australia. CCTV isn’t about catching crooks; its advocates argue that it is meant to act as a deterrent to crime. Much could be written about the value of deterrents in criminology, but let’s skip that for now. In this instance, deterrence can only mean one thing: intimidation. CCTV exists to intimidate citizens into obeying the law. As does the newly increased use of sniffer dogs in police patrols through the city.

But which laws?

It’s all very well to say that many of the current laws are beneficial, serve to reduce violence and theft and so on. There are some laws, though, that really only serve to modulate society. Laws about littering or spitting, skateboarding or busking. Intimidatory surveillance is intended to promote fear of prosecution for all unlawful activity regardless of the social merits of the laws that may be broken, laws the passage of which is frequently the result of political maneuvering that may diminish or devalue the interests of minority communities of interest. When we introduce systems of intimidation they serve to enforce a societal rigidity, which arguably makes people more compliant and willing to accept subsequent, more interventionist laws.

Like stop and search powers, for example. The Western Australian government has introduced legislation which would enable police officers to stop and search any citizen without the need to rely on a reasonable suspicion of wrongdoing. I guess it’s good that laws which increased the penalties for assaulting a public officer were passed before these new laws: readers can judge for themselves how likely it is that levels of violence against police will increase as a result of being physically searched for no apparent reason other than that an officer doesn’t like the cut of a person’s jib.

These powers are not, as some might suggest, the thin edge of the wedge. Western Australia’s legislators have hammered the thing in a good couple of centimetres already.

The problem remains, however, that the people that such laws are intended to be used against are actually bad people. I know there’s a whole bunch of romanticism in Australia associated with some criminal organizations, and I also know that drug laws in Australia are not sufficiently effectively enforced (if they ever could be) and so there are people (‘entrepreneurs’?) who are essentially just taking advantage of those circumstances. But let’s not forget that there’s a very high degree of human misery involved in the trade in which these groups so violently peddle.

It makes a bit of a mockery of concern for civil rights that the most ardent advocates for their preservation have such obvious and unabashed links with these interests. And if the only other voices raised against this progression towards ever increased surveillance and intervention are lawyers whose income largely comes from defending crooks, it’s going to continue to be pretty hard for the trend to be slowed, let alone halted or reversed.

Who from the not-tainted-by-association could or would take a stand on these issues? Until our parliamentarians hear it from the socially pure, it is virtually inevitable that future legislation will become increasingly harsh. If the current advocates, let’s be generous and call them ‘rights campaigners’, really want to make an impact, they need to start broadening the base of supporters of and advocates for their cause.

In Australia, they came first for the terrorists… or, why don’t Australians care about rights?

Somehow it doesn’t quite have the same ring, but the sentiment behind the famous poem by Pastor Martin Niemöller (with apologies go to the deceased Pastor) about effects of the rise of Nazism in Germany on their political opponents and societal enemies appears to be driving criticism of enhanced police powers in parts of Australia.

The suggestion is that the progression in infringement of rights starting with suspected terrorists, followed by allegedly corrupt public officials, allegedly corrupt trade unionists, and now sought to be applied to organized crime (principally outlaw motorcycle gangs) is an ever-thickening wedge of which all right-minded Australians should be afraid. Here’s a couple of example from Australian bloggers.

Dave Stanford is pretty measured in his call for ‘ordinary Australians [to] examine government policy proposal with a critical eye and with thought to the potential consequences of such policy responses.’

The blogger known to me only as ‘Oz’ reported, and appears to agree with:

‘A related criticism, raised by the Greens, the Law Society of NSW and the NSW Council of Civil Liberties is that there’s nothing in the legislation stopping any cultural, social or political organisation being proscribed as illegal and thus banning members from associating.’

He (see Comments below for gender-confirmation) goes on to cite Jack the Insider’s ‘frustration at “how quickly Australians meekly acquiesce to the loss of these freedoms”’, agreeing that ‘We are pretty meek.’ In comments on the relevant article on his blog, Jack the Insider says ‘I know the thin end of the wedge arguments can be a bit tedious but…’ Quite.

Meanwhile, perhaps the most strident ‘who’s next’ line of argument I’ve seen comes from Nathan Hondros of the Western Patriot, who on the 19th of June wrote:

‘Don’t believe the lie that this is just about “bikies”. It is not. These laws will affect every one of us in ways it impossible to predict. It will give powers to the State that belong to regimes like North Korea, Burma or Iran. This legislation would be impossible in any nation with codified protection of human rights, such as the United States, or even the Hellenic Republic.’

I agree that many of the provisions of the respective regimes are authoritarian, but what all of these critics fail to do is come up with any vaguely reasonable suggestion as to which Australians other than alleged criminals will be affected by the infringement of asserted common law rights, some of which really have only ever arguably existed in Australia to begin with. Are they afraid of religious or political persecution? These seem to be the most obvious potential abuses, yet these four commentators at least are not so specific.

Basing a pro-rights argument on the defence of the rights of those that are widely accepted to be engaged in pretty nefarious activities, in my view, diminishes the weight of the argument of rights advocates. We end up with the somewhat twisted outcome of alleged organized crime figures as some of the strongest advocates of the introduction of a Bill of Rights. Does that really advance the cause?

Don’t get me wrong: I like human rights, I wish we had them. We don’t, and if you want to know why I’ll try to explain it in future posts. I think they’re vitally important, in desperate need of promotion and defence and in all other respects worth fighting for.

I’m just not convinced that human rights have ever innately existed. Given what we know about the ways that human beings have treated one another over thousands of years, including on the basis of religious strictures from which these rights supposedly derive, I find it much more credible to suggest that the majority of humanity finally found a means by which to express their exhaustion at – to appropriate a phrase – man’s humanity to man. The elucidation of human rights in the 20th century, then, is not a declaration of rights inherent to humanity but a declaration of the intent of many people to demand them.

Maybe that’s a bit of a dark view, but it’s important to recognize the implications of it for how we argue for rights in Australia and the world more generally in the 21st century. If rights are inherent to humanity, as many argue, then aberrant conduct that infringes these rights can be described as inhuman. We can dismiss that conduct as deviating from standards that are universally accepted. The outrage, so the argument goes, is that a person or people would consciously choose to act contrary to these universally accepted norms.

That’s a fair bit easier to argue than the proposition I’m advancing, because it constructs human rights observance as the norm. My view is that part of the reason we see rights infringed so regularly is that we still haven’t won the argument that these rights are universal, we haven’t convinced a sufficiently large number of people that we should all abide by these still-new, historically speaking, rights. If this is indeed the more accurate analysis of rights in Australia, then what we should be arguing about is whether or not law-abiding citizens should enjoy rights that do not now exist, rather than whether or not alleged criminals should be protected from the infringement of rights that do now exist.

This analysis leads to a number of sets of questions that I’ll look at in later posts, such as:

If we don’t have rights as such, what types of protections do we nonetheless enjoy in practice? If we already have these protections, how strong are they and do we need them to be augmented by rights?

Where we do not have other forms of protections on matters which might be protected by rights, do we really need protection? What is the real danger or threat posed in regard to these matters?

Ultimately, can a scheme of rights really protect individuals from their infringement by the modern state?

Are rights considered differently from the perspectives of adherents to parliamentary sovereignty and popular sovereignty respectively? What are the implications of these differences on the debate over whether we should adopt a legislative or constitutional Bill of Rights?

More on these questions and others in future posts.