March through to May 2016 was a bumper time for the NSW Police Force, as the Baird government gifted it with four new criminal law regimes that enhanced its powers to pre-emptively deal with any perceived future social order threats.
This entailed the passing of a suite of anti-protest laws, the enactment of the serious crime prevention orders (SCPOs) regime and the public safety orders (PSOs) regime, as well as significantly broadening investigative detention powers in relation to terrorism.
In the 2018 paper Criminal Law as Police Power, UNSW law academics Dr Vicki Sentas and Dr Michael Grewcock suggest the blurring of public order with organised crime and suspect with convicted offender, which all these laws do, indicates that criminal law is the power to police.
As an example of how criminal laws function as policing powers, researchers cite the 2012 consorting laws that require police first issue a warning to a suspect prior to charging them. And within three years of enactment, 9,100 warnings had been issued compared with just 46 charges.
Pre-emptive crime regimes
As the authors note SCPOs and PSOs were spruiked to the public as a package to combat serious organised crime, but their reach is much broader.
SCPOs allow the police commissioner to apply for a court order restricting the activity of a suspect for up to five years, without evidence of any crime being committed, whereas PSOs allow senior police to ban a person from a public event for up to 72 hours if they believe they’re a risk to safety.
The provisions for investigative detention allow police to detain terror suspects as young as 14 as a preventative measure for up to four days – which can then be extended to 14 with the approval of a judge – and the detained individual can be questioned for up to 16 hours at a time.
The 2016 anti-protest bill was introduced to protect commercial interests, the authors note. It created a new aggravated trespass offence, with a tenfold increase in the fine that applies. And it also ensured that a person can be imprisoned for up to 7 years for hindering equipment at a mine.
A law unto themselves
The paper outlines that there are four aspects to the way these laws function which reveal how they enhance police powers in the field.
The first is the expansion of target populations. No longer is being convicted of a crime the prerequisite for punitive control, as a SCPO can be issued against an uncharged person or someone acquitted of a crime whom police are merely suspicious of.
These criminal laws also expand the pool of “harms to be intervened against”. This means vague terminology used in the legislation – such as “safety risks”, “serious risks” or “protect the public” – can be interpreted quite broadly by police and then promptly enforced.
So, in certain cases, public safety translates as protecting corporate interests, and therefore warrants police action.
The increased legislative authority these laws permit leads to a transference of power from the judiciary to the police. And finally, these laws extend police powers to allow for pre-emptive arrests, to permit the use of force to prevent risk, and carry new sanctions for breaching orders.
“Combined, these four features indicate policing social order in NSW does not operate in isolation from or alien to criminal law but as one essential part of its operative logic,” the doctors conclude.
“In combination, these four new regimes reflect the state’s concern with protecting its interests through a range of inter‐related strategies based on different modes of authority and power.”