Principles, policies, and rules in legislation and police power

Law and Police Powers

Recent changes to the law in Queensland, and to the powers of police there, mean that citizens need to think twice next time they stroll home after a night at the pub, climb a tree in a local park or question why a police officer has asked him or her to do something. Citizens' right to free use of public spaces is not as clear and unmitigated as it once was.

The two enactments of most concern are the police move-on powers located in the Police Powers and Responsibilities Act 2000 and public nuisance law as set out in the Summary Offences Act 2005. These are separate arms of the law, but have the effect of greatly increasing the number of people who have come into contact with the criminal justice system.

These laws affect everyone. The recent expansion of the law in this state means that citizens might be causing "anxiety" to someone else in a "public place and in causing that "anxiety," a citizen just might have committed a grave offence.

According to s6 of the Summary Offences Act 2005 a person commits a public nuisance offence if they behave in a disorderly, offensive, threatening or violent way; and their behaviour interferes with the peaceful passage through, or enjoyment of, a public place by a member of the public. A public nuisance, in its most obvious form, is someone using offensive, obscene, indecent or abusive language or behaving in a threatening way.In 2000, the law was amended to cover all shopping centres in QLD and more recently has been extended to all public spaces throughout the state. Move-on powers were originally recommended by the Criminal Justice Commission in 1993.

If one's favourite T-Shirt makes anyone anxious, then the police have the power to move you on. Police officers, under the Police Powers and Responsibilities Act, 2000 become public officials. If a foreigner at the airport makes passengers "anxious" then he could be requested to move on. Anyone who looks or acts strangely is a potential public nuisance.

Bridget Burton, a solicitor at Caxton Legal Centre, has seen the impact of the public nuisance law. Caxton Legal Centre has seen a rise in the number of people seeking assistance with public nuisance offences. A high number of public nuisance offences are based on trivial factual scenarios. These offences are arising not because of complaints from other citizens, but because the person's conduct is being interpreted by police as 'likely to interfere' with other people's enjoyment of a public space.

Because the definition of public nuisance is incredibly broad and there is no defence of, for example, reasonableness or necessity, to a charge of public nuisance, many people choose to plead guilty even where their behaviour was reasonable or necessary in the circumstances.

Dr Tamara Walsh, law lecturer at the University of Queensland and a member of the Rights in Public Space Action Group (RIPS), supports defense of any kind of public behaviour. "Because many of those being affected by these laws are either too poor or too ill-informed to adequately defend themselves, there are an alarming number of guilty pleas being submitted.... You don't get duty lawyer representation if you plead not guilty so the situation as it stands for many people is that you can plead guilty with representation, or plead not guilty and not be represented."

Lars Falcongreen is a lawyer for the Aboriginal and Torres Strait Islander Legal Service. The public nuisance charges he sees range from the more obvious kinds, which the legislation was intended to cover, such as drunk and aggressive behaviour, people throwing their arms around and abusing the public and the police, to the mildest kind of matters like cheekiness towards the police. This means the laws are putting the power and control in the hands of the police, without actually being implemented at the request of other members of the public.

In Lars' view, "a major problem with the law is that charges of public nuisance can lead on to other more serious charges. Without police diplomacy, interactions with drunk, homeless or mentally ill people can easily escalate. When you consider the situation for Indigenous people, who maintain an uneasy relationship with police at the best of times, you can understand why these things flare up. Many Aboriginal people see the interference by police as racially motivated and when that is added to the mix, we sometimes see cases of serious assaults and consequent severe punishments."

Move-on powers are mitigated only by the requirement that the move-on direction must be reasonable and not interfere with the person's right of peaceful assembly. Policemen and women are also required to give reasons for the direction and to ensure there is no reasonable excuse for the behaviour. The laws serve the legitimate purpose of moving people who have been fighting in a public space in separate directions or removing a person near a primary school whose presence causes anxiety to reasonable parents. Current measures to this end, like the requirement that every move on direction be recorded in the Register of Enforcement Acts, have proven largely ineffectual.

Ross Musgrove, Media and Government Relations Officer for the Queensland Police Union, says, "If you have a problem, go to your local member and get the government to change the law."

Scott McDougall, Director of Caxton Legal Centre made clear the disproportionate impact of these laws on marginalised members of society. He mentions groups particularly at risk: the homeless or very poor, young people, those with cognitive impairment and Indigenous people. Young people made up 60 per cent of those charged with public nuisance offences in Brisbane and a majority could be classified as very poor or homeless.

Lars spoke of the need for reform of the 2000 laws "When we look at disorderly offences, I think we need to be mindful that they need to be of such a level that they deserve to come under the scrutiny of the criminal justice system. We need to ask, are these laws really worth it and are they really dealing out a necessary punishment?"

This brings up the question of how the laws are enforced by rule of law.

When a judge rules on these matters, he or she will now have a standard or rule to rely upon, but if he uses judgment, he will be bound to follow the principle that personal freedom is more important than public nuisance control. Hart, for example, says that when a judge's discretion is in play, we can no longer speak of his being bound by standards, but must speak rather of what standards he "characteristically uses." judge, when ruling on these matters, must use his or her discretion about these standards. Hart believes that when judges use discretion, the principles they cite must be treated on second approach as a principle.

Hart does say that a master rule might designate as law rules established by custom, as well. If cases find fault with innocent acts, custom might allow the laws to become unacceptable, recognizing the principle that must stand behind the law is not in place.

Whenever the courts find a rule to be "unreasonable" because of contrary policies or because of principles and policies that are violated, the Courts might find that rule to be invalid, using words like "unreasonable," "negligent" or "unjust." This allows the rule to either apply or become invalid as a policy, because of principles and policies that already exist upon which the rule must rely.

Protecting individual liberty is at the core of keeping Queensland a successful society. It would be wrong to let that liberty slip in the face of a legislation that puts so much power and responsibility to judge and act into the hands of a police officer.

In other lands, the controversy over police powers has comes up. However, the public is usually quick to set matters straight and put only reasonable powers into the hands of the police..

A new bill seeks to criminalise the possession of a wider range of pornography in Britain. Film censorship expert Julian Petley argues that the plan will do little to address the issue of real sexual crimes..

The measure being proposed here is not only pointless and unnecessary (as the Police Superintendents' Association pointed out), it will criminalise the possession of a far wider range of images than the Home Office says it intends. and, worst of all, every time somebody orders a film which has not been certificated by the BBFC and which contains images of explicit sex and violence, they are going to wonder if the arrival of the film will be closely followed by the arrival of the police to arrest them.

Furthermore, as the responses examined above make abundantly clear, those who support this measure believe that it goes nothing like far enough. If it becomes law, it will serve only to embolden them to demand stricter censorship still. Don't say citizens weren't warned. Better still, don't let it happen. (para. 61)

In the United States, citizens take a dim view of unbridled police powers. They were condemnatory of Samuel a. Alito, a young U.S. President Ronald Reagan administration lawyer, and Supreme Court nominee, who took an expansive view of government law-enforcement powers in manycases where he was called upon to balance the prerogatives of police and prosecutors with the rights of individuals, according to 400 pages of documents released in November of 2005 by the U.S. Justice Department.

For instance, while working in the Office of Legal Counsel from 1985 to 1987, Alito wrote an opinion allowing the Internal Revenue Service to secretly record conversations with taxpayers who were under investigation.

In the United States, the term "police power" refers to the right of a government to exercise "reasonable control over persons and property" to protect the public's health and safety. Police powers are rooted in English common law, extending back at least four centuries. While police departments took their name from these powers, police departments, with their focus on crime, were not widely used until the nineteenth century. Police powers are closely related to the state's power to protect itself from outside forces. The authority derives from the notion of societal self-defense.

Confining dangerous mentally ill individuals in guarded institutions to protect the public is a police power, while confining individuals for their own protection is a parens patria power. Police power is in contrast with the parens patria power: the power to protect individuals for their own benefit. The state's authority to restrict individual liberty is much greater when it is done to protect the public. Thus, the state has considerable power to prevent the spread of tuberculosis, but not to force a person to take medication for hypertension.

Police powers allow for the destruction or restriction of property that poses a threat to the public, without paying compensation. It also includes the right to act without a court hearing or other due process protections, when necessary, to protect the public's health. An aggrieved person can contest such actions through habeas corpus proceedings and other post-restriction proceedings. Some states have limited their police powers by legislation and state constitutional provisions because it is the nature of such powers to outgrow the boundaries of principle, where there is no rule to apply.

For the good of public health some things are regulated by the police: licensing, public health issues under the law, quarantine and regulatory authority at borders and ports.

The United States has a deeply rooted constitution which lists specific rights and provides for judicial review of laws. The U.K. has a common law system, which is centrally located in Parliament. It has no Bill of Rights and no judicial review comparable to the U.S. Supreme Court. Instead, the House of Lords serves as the high court, and if they find a law to be "incompatible" with common law, they trust Parliament to change it.

In the U.S. The conventional wisdom about the scope of state police powers date from the early days of the Republic, when state regulation was limited by the common law principle of sic utere tuo ut alienum non-laedas (you should use what is yours so as not to harm what is others'), implying that legitimate regulation existed only to prevent concrete harm to specified interests. Around the 1900s the principle changed from the old sic utere to the new principle of salus populi est suprema lex (the good of the public is the supreme law), suggesting that states could make regulations so long as they claimed to be working to promote the public safety, welfare, or morality.

Like all such conventional wisdom, this approach is somewhat simplistic. But it captures a large grain of truth. The range of activity that courts, and legal scholars, view as within the scope of legitimate regulation is considerably larger than previous.

The struggle with how much power to afford the police challenges all nations. In South Korea, the Ministry of Justice plans to grant the Ministry of Information and Communication police power to combat computer crimes such as network hacking, a move that is expected to generate controversy over individual rights and the limits of the state's authority.

In 2000, the United Kingdom contemplated the Regulation of Investigatory Powers Bill which was to become law in October. The Bill gave police the power to demand keys to encrypted data and anyone failing to comply risked encarceration. Critics said this meant a person could be guilty until proven innocent.

This Bill caused much controversy in the UK. Among other matters, the Bill addressed the rights of authorities, such as police and intelligence services, to require a computer user to hand over decryption codes used by him or her. Failure to comply with such a demand could lead to the individual being jailed. This was the most contentious part of the Bill.

Just recently, another group of controversial "Big Brother" style crime-fighting techniques are going to be introduced by the Government under the cover of the 2012 London Olympics, a leaked memo has revealed.