Criminal Law as Police Power: Serious Crime, Unsafe Protest and Risks to Public Safety

Abstract

This article considers the deepening of police power in New South Wales (NSW), Australia, criminal law. It analyses the combined effects of four recent criminal law regimes that not only give the NSW Police Force more powers, but also reflect the significant role of institutional police power and the pre-emptive logic of criminal law. We examine: the introduction of serious crime prevention orders; the introduction of public safety orders; investigative detention powers in relation to terrorist acts; and confiscation, forfeiture and search powers, and trespass offences that target protests. Drawing on the work of ‘police power’ theorists, we argue that these new regimes illustrate the centrality of police power to the criminal law rather than a deviation from a putative, ‘normal’ criminal law.

Policing biosecurity: police enforcement of special measures in New South Wales and Victoria during the COVID-19 pandemic

“…And from 1 July 2020, community sporting events with a COVID Safety Plan -the event most analogous to protests-were permitted a maximum of 500 participants, whereas protests remained restricted to 20 people despite protest organisers volunteering similar safety plans. The legal focus of police power over protest as a distinct type of gathering thus builds on arguments that police operate as the 'primary definers' of legitimate protest (McNamara & Quilter, 2019;Sentas & Grewcock, 2018).…”

Bias Crime Policing: 'The Graveyard Shift'

“…It may also help overcome institutional indifference and individual cynicism towards bias crime policing. This may appeal to police services, such as the NSWPF, that prioritise public order and state security over community policing values (Chan 2007;Sentas and Grewcock 2018). However, the findings suggest that this approach to building internal legitimacy is misguided if it overlooks forms of bias crime that have little connection to public disorder or organised hate groups, such as the victimisation of sexual minorities, people with disabilities and homeless people (Asquith 2012).…”

“…Bias crime initiatives must compete with traditional crime control functions, shrinking budgets and resultdriven measures of productivity (Bartkowiak-Théron and Asquith 2017; Bradford and Quinton 2014;Chan 2007). They must also compete with the recent drift towards more aggressive 'command and control' styles of policing that some have characterised as 'homeland security' policing (Oliver 2006;Sentas and Grewcock 2018). In this environment, policing innovation of any kind becomes difficult (Sarre and Prenzler 2018).…”

“…While the organisation has enjoyed periods of enhanced confidence with the LGBTI community, this has been short-lived (Ellis 2018;Tomsen 2010). Current programs that aim to recalibrate service delivery to minority communities have been hampered by the organisation's return to a more authoritarian 'crime management' style of policing in the mid-2000s (Chan 2007: 329;Sentas and Grewcock 2018).…”

Incapacity, pathology, or expediency? Revisiting accounts of data and analysis weaknesses underpinning international efforts to combat organised crime

“…In numerous jurisdictions, new offences have been created, police surveillance powers have been broadened and their use expanded, detention periods have been extended, the right to silence has been eroded, the criteria for the inclusion of evidence in trials has been weakened, and the right to trial by jury has been reduced. In some jurisdictions, the possibility of indeterminate sentences being applied has increased, and in others there has been an expansion in the practice of seizing assets believed to be the proceeds of crime (see, e.g., Campbell, 2013;Sentas and Grewcock, 2018).…”