Keeping an eye on police powers



On 18 March, a human biosecurity emergency was declared in Australia, which has a duration of at least three months. This gives health Minister Greg Hunt unprecedented powers along with the states, after declaring ‘states of emergency’, which has been extended in Victoria until at least 11 May.

Australian Federal police officer patrolling (Getty Images/Paul Kane)

The enforcement of such laws lies with the police of each state, ranging from warnings to infringement notices to possible jail time when people, including children as young as ten, are outside their home without a ‘reasonable excuse’ or as part of a gathering. In Western Australia, the police have begun using drones to surveil public gatherings.

Most people would agree that certain measures are necessary to both protect those who face the greatest health risks and so that our health systems don’t get overwhelmed. However, these astronomical limitations on civil liberties raise concerns.

Victoria Police have said they will continue to enforce ‘deliberate, obvious and blatant’ breaches of restrictions. There were 552 infringements passed over the Easter long weekend, including under ‘Operation Sentinel’, 500 police responsible for policing mass gatherings and breaches of isolation orders.

Cases so far include a 17-year-old learner driver booked for non-essential travel while out driving with her Mum. While the fine was subsequently withdrawn, Victoria Police defended their actions, noting that the publicity around the fine had raised public awareness and provided clarity around these circumstances.

This begs the question: should the fine in itself serve as an educational tool or could police utilise their community reach to educate people and clarify doubts around these new laws through conversations rather than moving to fines? After all, the messaging from the federal government has been confusing and these laws are still a recent and drastic phenomenon. Notably, going out as a learner driver to buy groceries would have been considered lawful under one of the four exemptions in Victoria.

As the police have the power to ‘apply discretion’, these laws are likely to disproportionately disadvantage already vulnerable groups, particularly culturally diverse people, homeless people, people from lower socio-economic backgrounds and First Nations people. As Samantha Lee of Redfern Legal Service in Sydney stated, ‘The impact of fines often propels already marginalised people straight into the criminal justice system, simply because they are unable to pay.’ With not enough publicly released data, a group of human rights and advocacy organisations have created a website where people can report interactions with the police.


'The question remains as to whether they will just "switch off" once this crisis ends. As I was reminded recently, the post-September 11 anti-terrorism laws did not, nor were civil liberty limitations adjusted as time went by.'


Operation Shielding involves the re-deployment of at least 160 Protective Services Officers (PSOs) across Melbourne along with 80 police officers, divided into teams of twelve. They are patrolling from early afternoon until morning and PSOs now have the power to issue fines. Of the eleven locations listed for deployment, there is one in the City of Stonnington, which had the largest cluster of cases as at 4 April, with others including Dandenong, Sunshine, Box Hill, Doncaster and Frankston, none of which fall in the eleven local government areas identified with the highest number of cases. It is likely that such a presence will result in hardship in communities who are already subject to over-policing.

With such unfettered powers, Human Rights Law Centre has called for monitoring and review of such powers through an external body such as the Independent Broad-based Anti-corruption Commission (IBAC) with extended powers as well as the need for clear communication about such civil liberty limitations. Liberty Victoria senior vice-president Sam Norton put it simply: ‘These powers should be used very, very cautiously only in circumstances where there is a genuine risk of transmission of COVID-19.’

The question remains as to whether they will just ‘switch off’ once this crisis ends. As I was reminded recently, the post-September 11 anti-terrorism laws did not, nor were civil liberty limitations adjusted as time went by. With the constant evolution of this response, it is important that we keep our eyes and ears open, as laws swiftly come into effect with both immediate and potentially longer-term consequences which need to be weighed up with civil liberties.

The focus of enforcement of these new powers needs to fit their intended purpose: to limit as much as possible the spread of COVID-19. This is an opportunity for the police force to build trust, rather than erode it. In order for that to happen, clear public messaging is vital as well as offering clarification through conversations if necessary. Compassion would go a long way too, in acknowledging that this is a stressful and uncertain time for many people.

Public trust going forward also requires the recording and disclosure of data pertaining to how these laws are being used including who is booked, where, the nature of their offence and the enforced punishment. This is a function that in the case of Victoria, the Crime Statistics Agency could perform.

Although there has been prevailing distrust in the government for the past decade in Australia, people are nevertheless looking in that direction for leadership in this time. Yet we cannot allow fear to be a facilitator for excessive power, with those already facing disadvantage likely to bear the weight of it.



Bree Alexander's words have appeared with Enchanting Verses, Westerly Magazine and Australian Multilingual Writing Project. Under pseudonym Lika Posamari, she was shortlisted for the Overland Fair Australia Prize 2018 (NTEU category) and published a poetry chapbook The Eye as it Inhales Onions.

Main image: Australian Federal police officer patrolling (Getty Images/Paul Kane)

Topic tags: Bree Alexander, COVID-19, policing, Australia



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Existing comments

Viruses are no respecters of civil liberties and human rights which. while of great value, are not as valuable as human life itself. The problem with human life in our society, however, is that it has the enormous capacity to devalue itself in the name of human rights and civil liberties This sometimes fatal tendency has to be curbed in the interests of the common good.
john frawley | 18 April 2020

In 2015, the Border Police’s Operation Fortitude in Melbourne had a short shelf-life because of legitimate concern by a sturdy civic-minded public over possible racial profiling. However, no profiling of any kind is required reasonably to assume that anyone out in the urbanised open is a potential virus terrorist. All one has to be is a producer of airborne droplets and the little terrorists will take care of the rest themselves. As to whether some degree of intrusive regime will continue after the viruses have become socially inactive, perhaps the intrusion will need for a while to recede into a watchful background, in perhaps the same way that a quiet watching brief is still needed because the 9/11 virus seems to recur periodically under different strains called Ariana Grande, Charlie Hebdo, Westminster Bridge, and so on.
roy chen yee | 20 April 2020

All laws limiting civil liberties for 'justifiable' purposes should be subject to sunset clauses, continual review, and independent oversight. If the purposes are truly justifiable, these safeguards should not be a problem. Regrettably, governments tend to push through these autocratic laws at a time of fear in the community where demand for safeguards is easily dismissed.
Peter Johnstone | 20 April 2020

As a former scientist .. what concerns me, is this. The basic theory of how epidemics spread, is straightforward. Yet have not seen one attempt by government, to educate the public on this, and how it applies to the current crisis. It is this unwillingness, to increase public understanding, i find troubling. Plenty of web sites, telling us about the new laws and what penalties we'll cop for breaching them. No websites I have seen, explaining the theory behind them. People need not just to know what the law is. But also they need to understand the background, why this extra law is needed, and the reasoning why the law was designed the way it was. Seems there's reluctance to do that.
mike brisco | 21 April 2020

I agree that there is a need for sunset clauses in these types of legislation .The need for such laws is for the Common Good of our society and I suspect will become more necessary as the occurrence of these Viruses increases in the future. Mike, There is a lot of information available on the Government and other reputable web sites about the virus and method of transmission.Numerous programs on the ABC and SBS networks in recent months have dealt with the Pandemic .
Gavin O'Brien | 21 April 2020


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