Do police have rights?

Victorian police will soon be told to register any ‘inappropriate relationships’ they have with criminals, a move designed to stop them from being targeted or seduced by organised crime syndicates. Needless to say, the police’s union is unimpressed:

[T]he Police Association says it fears the register will be an intelligence-gathering tool for the Ethical Standards Department. The union has written to Deputy Commissioner Kieran Walshe to protest, saying that the move would probably be shunned by police. “Among the concerns was the probable lack of member acceptance on what will be a major intrusion,” the letter said. It hinted at possible legal action, saying the association believed the policy violated Victoria’s human rights laws. 

Human rights laws? Good to see that the human rights culture has taken grip where it’s most needed.

So, what human rights are at issue?  Having to register your personal relationship infringes your privacy, of course, but as the police must know, the Charter only protects Victorians from ‘arbitrary’ or ‘unlawful’ interferences with privacy. So, the police’s best bet is Charter s. 16(2):

Every person has the right to freedom of association with others, including the right to form and join trade unions.

The police’s argument faces at least two hurdles. First, does a law that merely requires them to register their relationship with others infringe their freedom to associate? Second, is there a law that makes it reasonable for the senior police to impose this particular constraint on police. One contender for such a law is the provision allowing the Chief Commissioner to issue ‘instructions for the effective and efficient conduct of the force’s operations’.

But here’s a better one in the Summary Offences Act 1966:

 49F. Consorting

(1) A person must not, without reasonable excuse, habitually consort with a person who has been found guilty of, or who is reasonably suspected of having committed, an organised crime offence. Penalty: 2 years imprisonment.

(2) The defendant bears the burden of proving reasonable excuse for habitual consorting to which a charge of an offence against sub-section (1) relates.

(3) In this section- “organised crime offence” means an indictable offence against the law of Victoria, irrespective of when the offence was or is suspected to have been committed, that is punishable by level 5 imprisonment (10 years maximum) or more and that- (a) involves 2 or more offenders; and (b) involves substantial planning and organisation; and (c) forms part of systemic and continuing criminal activity; and (d) has a purpose of obtaining profit, gain, power or influence.  

Surely it’s reasonable for the Chief Commissioner to keep track of whether or not Victorian police are breaking the law or not?

The crime of consorting is one of Australia’s own contributions to the criminal law, a product of our convict past. In the 1970s, the Victorian predecessor to s49F was used against a man who was consorting with ‘reputed thieves’, who happened to be friends and relatives living in his suburb (Fitzroy.) The High Court upheld the conviction and the twelve month sentence that was imposed on him, despite a furious dissent by Murphy who, like the Police Association, cited human rights. Indeed, the Police Association says its is especially concerned that police officers may now find it difficult to hang out with their less salubrious relatives. The Victorian law was re-enacted, albeit in a narrow form, in 2005 as s49F.

Perhaps the Police Association should seek a declaration of inconsistent interpretation in relation to s49F as a breach of freedom of association and the right to a family? Or is the Association’s argument going to rest on the privilege against self-incrimination?

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