Contrary to human rights or protecting the public order?
Introduction
The power to conduct warrantless searches was no doubt given to the police in order to protect the Victorian public, but there have been continued suggestions that the police are acting in a way that is contrary to basic human rights when exercising these powers. Have we given police too much power? Or are the powers themselves too arbitrary and ambiguous, leaving them open to being abused or misconstrued?
Private property searches
Police officers have the power to enter and search an individual’s private property, such as their home. A warrant is usually required to carry out such searches. However, there are a limited number of situations when a warrant is not required including when the police officer is given consent to enter or the police officer has a reasonable belief that someone will or has committed a serious offence and the police officer needs to go into the property to arrest that person.
Obvious potential implications arise in relation to police searches in the absence of a warrant. For example, as stated above, a police officer must have a reasonable belief that someone has or will commit a serious offence. While the words ‘reasonable belief’ are intended to protect the rights of the person in the premises, the existence of a subjective element in the police officers decision nevertheless allows scope for the abuse of this power. Further, in other instances, some may be intimidated by the prospect of a police officer standing at their door requesting to enter the premises. Individuals may not be aware of their right to refuse access in the absence of a warrant and the police officer may procure their consent through coercion.
Even more concerning are the new legislative changes set to increase police search powers in relation to terrorism and gun crimes. Currently, section 146 of the Firearms Act 1996 (Vic) provides that police may only apply for a search warrant if they have a reasonable belief that an offence against the Firearms Act will be committed. Under the expected new laws, which the State Government is reportedly planning to introduce into Parliament shortly, the Chief Commissioner, at his discretion, will be able to impose an order on a person (known as a Firearm Prohibition Order) that means they, as well as their cars and property, can be searched at any time without a warrant. In a bid to appear ‘tough on crime’ and improve community confidence, Victoria Police Spokeswoman Hannah Rowlands stated that “The proposed legislation for Firearm Prohibition Orders would enable police to have a greater capacity to detect and disrupt criminals who seek to bring harm into the community, such as Outlaw Motorcycle Gang members, Crime Gangs and radicalised individuals.” While terrorism and firearm offences are a grave threat to society, it is inappropriate to further increase police search powers to this extent. The intrusive nature of such broad powers cannot be understated. These changes will increase the scope for abuse and breaches of civil liberties. They fail to strike the correct balance between community protection and human rights.
Designated Area Searches
Under the Control of Weapons Act 1990 police have the ability to search a person without a warrant if the person is in a public place and the police have reasonable grounds to suspect that the person is carrying a weapon. Police are required to provide a report after this search to increase accountability and transparency in police powers.
The law was altered in 2009, giving police very broad power to search anyone (including children) within certain designated areas without needing any suspicion or belief that a weapon is held. These designated area searches can either be planned (advertisement required) or unplanned.
Police have been given the ability to abuse their power under ‘designated area’ search laws. Whilst it is important that police have the authority to search suspected weapon possessors in order to maintain the safety of Victoria, allowing an officer to search a member of the public without holding any suspicion against that individual does not seem like a sound solution.
These random searches are a grave intrusion on the fundamental human right to dignity and privacy. Police have considerable discretion in exercising their power, particularly now that there are no reporting requirements for pat down searches, only strip searches. Previously, there was already some evidence that police were engaging in discriminatory searches, and these amendments give even more scope for this behaviour. A study in Victoria in a ‘designated area’ at Footscray found that 70 of 180 ‘random’ searches were on young men. Another study found that police disproportionately stop and search African youth, leading to suggestions of racial profiling.
Community safety is of utmost importance, but are these ‘random’ searches really the best answer? They undeniably intrude upon basic human rights, and even enable officers to strip-search children and the disabled. The Hon RG Cameron MP, the Minister for Police and Emergency Services, highlighted that the amendments were incompatible with the Victorian Charter of Human Rights and Responsibilities. It is important that police have power to do searches, but if they have no reasonable suspicion against someone holding a weapon, then fundamental human rights are expressly contradicted by interfering with their body.
If ‘designated area’ searching is to occur, there needs to be comprehensive record keeping for every search- including pat down searches- to ensure that all demographics are treated equally and to ensure that police accountability and transparency is maintained. Furthermore, rather than give police absolute discretion on who to search based on their own inklings, more data needs to be accumulated first; searches should be decided based on artificial intelligence which only encroaches on the freedom and privacy of those who fit the intelligence criteria. Alternatively, those selected for searches should be randomly generated by machines rather than by police officers based on their own hunches, which may be discriminatory in nature. Ultimately, it is important to protect our community, but these amendments seem ill-considered as they give considerable scope for discrimination to occur and blatantly violate basic human rights.
Pat-Down Searches
The Control of Weapons Act 1990 (Vic) and the Drugs, Poisons and Controlled Substances Act 1981 (Vic), grant police the ability to search, without a warrant, individuals they suspect of carrying, or being in possession of, amongst other things, prohibited weapons and/or substances.
Police must conduct the least invasive kind of search that is reasonably necessary in the circumstances. Where a metal detector is unavailable or impracticable for the type of search, this will often involve a ‘pat-down’ search. A pat-down search requires that an individual empty their pockets and/or undergo an external pat-down, which involves a police officer using their hands to feel over the outside of an individual’s clothing.
While such searches are done with the greater community’s safety in mind, they come at the cost of detrimentally infringing upon an individual’s basic human rights, including the right to privacy and decency, with little more than a ‘suspicion’ usually giving rise to the search.
As discussed above, the injustice comes from the lack of transparency and accountability that such searches entail, and their propensity to disproportionately single out already marginalised groups within society, including young males and those of African appearance.
Programs aimed at addressing this lack of transparency and accountability such as the StopWatch receipting pilot program that operated in Moonee Valley and Dandenong in 2015, have since ceased and are no longer operating. Despite the positive reception of the program, Victoria Police discarded the program, instead opting for a ‘voluntary business-style receipt’ that can be provided upon request of the individual searched or at the officer’s discretion.
Strip searches
Police officers can conduct strip searches if the officer reasonably suspects that the person has a weapon concealed on their person and the officer believes on reasonable grounds that it is necessary to conduct a strip search of the person for the purposes of the search and that the seriousness and urgency of the circumstances require the strip search to be carried out.
These warrantless searches can require a person (including children) to take off all of their clothes in the presence of a police officer. When dealing with a power that has the potential to be grossly encroach upon a person’s privacy, it is imperative to make sure these searches are conducted firstly with good reason, and secondly, that there is adequate reporting and avenues for redress for those who feel like they have been wronged. The powers in and of themselves might already be encroaching upon basic human rights, but further ethical and legal problems are raised if these power are exercised without proper checks and balances.
The problems lie in the ambiguities and in the lack of transparency. The unclear nature of what ‘reasonable suspicion’ entails has led to suggestions that these powers are being used arbitrarily. One resident at Windana recounted a story about how he was made to strip down to his underwear in the middle of the sidewalk on a busy road in Richmond. He was underage at the time, had no guardian present, and no semblance of privacy.
In a 2012 report conducted by the Office of Police Integrity in relation to search powers, it was noted that ‘there is some anecdotal information to suggest individuals subject to stop and search are reluctant to complain about police or do not feel listened to when they do.’ This is consistent with the general feeling of the residents at Windana – there was an air of hopelessness, an attitude of ‘what can we do?’, a giving up of their rights simply because ‘that’s the way it works’. The overarching sentiment was that there was no avenue for recourse that would result in any meaningful conclusion, and as such, none was sought.
Any resentment that these children hold makes them less willing to co-operate with the police the next time they are stopped, further damaging the relationship between the police and the community. As a result, the police and the public they are engaged to protect fall into this vicious cycle. What has lead to this breakdown of trust, and what can be done about it?
Reporting
The lowering of the standard from ‘reasonable belief’ to ‘reasonable suspicion’ was to be balanced out by requiring police to maintain records of warrantless searches and the Chief Commissioner to make an annual report in relation to these numbers.
A lack of accuracy in reporting these searches is evident in the most recent Victoria Police Annual Reports, where there appears to be a reporting error.
The 2015-16 report states that there were 363 warrantless searches conducted in 2014-15, whereas the 2014-15 report states that there were 710 searches during that period. With simple errors such as these being appearing in official Victoria Police reports, how is the public supposed to trust that these powers are being exercised with the requisite caution and care?
It is not only incorrect reporting, but also that ‘the Victoria Police Annual Report… [does] not provide the level of detail required to meet reporting requirements of the Act’. Holding the police to account for this inadequate reporting in conjunction with imposing further requirements for more comprehensive record keeping and reporting of searches (such as the StopWatch program) is a logical first step in ensuring that all demographics are treated equally and that police accountability and transparency is maintained. Ultimately, it is important to protect our community, but the breadth of these amendments give considerable scope for discrimination to occur and for basic human rights to be violated.
Justice Legislation Amendment (Protective Service Officers and Other Matters) Bill 2017
Beyond the police powers discussed above, the Justice Legislation Amendment (Protective Service Officers and Other Matters) Bill 2017 (“the Bill”), among other things, seeks to amend and substantially expand the powers of Protective Service Officers (“PSOs”) within Victoria.
If passed, the Bill would give an on-duty PSO the ability to, without a warrant, stop and search for weapons, any person and anything in the possession of or under the control of that person, if the person is within a “designated place” (see above). The PSO would also be able to detain the person for as long as ‘reasonably necessary’ to conduct the search.
Similarly, the Bill would grant PSOs identical powers to police in relation to stopping and searching individuals without a warrant where there are reasonable grounds for suspecting that that individual has in their possession a prohibited drug, with the proviso that such powers may only be exercised in relation to a person who is at, or within the vicinity of, a designated place. The fact that the designated place is ‘an area where a lot of violent crime happens’ may be used as a ‘fact to show they have reasonable grounds to search [an individual]’.
In addition to echoing the concerns already associated with existing police stop and search powers, the expansion of these powers to PSOs will only raise further cause for concern, particularly in relation to those most vulnerable within the community. For example, PSOs do not receive the same level or training as ordinary police officers, nor do they have the same level of exposure to senior and experienced members of the police force. Such an expansion of power, with no additional training to what PSOs already receive, can only be cutting across corners and basic human rights. This is particularly so given PSOs are stationed in designated places where in some circumstances no reasonable suspicion or grounds need be held by the PSO to search an individual. Without adequate training of, and insight into, subconscious bias, this may lead to racial profiling, or at least a perception of racial profiling, increasing tensions between PSOs and those groups singled out. Indeed, the primary function of a PSO, as explained by the Minister for Police, Lisa Neville MP, is to ‘improve feelings of safety and to prevent and detect crime’. However, those with a history of being singled out could not possibly feel safer with the PSOs wielding such power. Consequently, there is the propensity for unconscious bias on the part of PSOs, which may see individuals already marginalised not only have their rights compromised, but their faith in the system which is supposed to protect them, further diminished.
Similarly, despite the implementation of PSOs to improve feelings of safety and to prevent and detect crime, as Liberty Victoria pointed out in their submission regarding the Bill, the Victorian Auditor General’s office acknowledged that there is insufficient data to assess the impact, if any, that PSOs have had on crime rates. Consequently, such a substantial increase in powers where there is little evidence to suggest any significant changes as a result of their implementation is unnecessary, reckless and disproportionate given the nature of the powers and their propensity to impinge upon fundamental human rights.
There is also cause for concern in relation to the new offence of obstructing or hindering a PSO that would also be implemented. The offence places the burden of proof on the accused who must proffer a ‘reasonable excuse’ for their actions in hindering or obstructing a PSO. This is a reverse onus of proof, making it substantially easier to prosecute and far more difficult for the accused to defend. This is particularly concerning where individuals do not know the powers of PSOs to stop and search them. If there is a misunderstanding or lack of knowledge on the part of the individual as to the PSOs powers, the individual may try to stop, and therefore obstruct or hinder, the PSO from searching them, giving rise to the offence.
Ultimately, the expansion of PSO powers is unnecessary, disproportionate and likely harmful to basic and fundamental human rights, with the effect of making PSOs “de facto police officers” with little to no accountability or transparency for their actions.
Conclusion
If we are to take the 2015-16 report to be accurate, a total of 710 warrantless searches were conducted in the financial year of 2015-16, resulting in the finding of 300 weapons. So, there is no doubting that these types of searches do produce results. The problem is whether these results are justifiable in comparison to the encroachment of personal rights that they pose, and whether the police are being held accountable in the exercise of these powers.
In the current political and social climate, with the constant need for governments to be seen as ‘tough on crime’, it is unlikely these powers will be extinguished altogether. In fact, the trend is pointing towards giving the police and PSOs more power. This makes it all the more important that there is detailed recording and reporting of these searches in order to hold the police accountable for their actions. The power ultimately rests with legislators as the ones in a position to ensure these recording and reporting standards are raised and met.