Part three: Mission creep
A boy receives an unannounced visit from police on his tenth birthday, because his name is on a secret watch list at the station.
A 15-year-old at a music festival is asked to expose his “gooch” to prove he isn’t hiding drugs.
A group of Aboriginal kids at the shops are warned not to be seen together in public, on threat of being charged.
The idea of preventative policing, like preventative medicine, has a ring of common sense about it. But we know from medicine that the remedy can prove worse than the affliction, a malady felt deeply in the growing number of cases where preventative laws are unjustly applied.
University of Western Australia legal academic Dr Tamara Tulich has followed the growth of preventative law in Australia from its genesis in monitoring serious sex and violent offenders, through burgeoning anti-terrorism laws, to its spread into less pressing areas of public safety.
Tulich describes it as a “tsunami of prevention”.
The threat violent criminals and sex offenders pose to the community is used to make the case for preventative laws. Where concern is being voiced is when the same approach is being applied not to carefully identified groups but to 10-year-olds, young people at music events and members of the community going about their daily lives.
Nick Kaldas, a former deputy commissioner for NSW Police, calls it “mission creep”.
But how as a society have we moved from registering sex offenders to keeping watch lists of “troublesome” young people?
Tulich says it is about framing – about how people think. “While we have all of these distinct preventive measures in existence, no one’s really thinking about the limits on the preventive state in the same way that we think about the limits on the criminal justice system or the punitive state,” she says. “We don’t have the same kind of real conceptual framework around the government using its powers to prevent harm rather than to punish.”
In New South Wales, anti-consorting laws are illustrative of preventative law introduced to target one group of people but being applied by police more broadly and to questionable effect.
“The anti-consorting laws in NSW were originally designed as a preventive measure,” Tulich says. “They don’t technically meet the definition of a preventative measure, but they were directed against bikies.”
The laws were modernised in 2012 after a series of drive-by shootings in Sydney. They make it a criminal offence for someone to continue associating with two or more people who have serious criminal records, after the police have issued a warning not to. If the person who receives the warning ignores it, they can be arrested.
The laws were seen as a preventative tool to target outlaw motorcycle gangs. By ordering members not to “consort” with each other, police hoped to limit opportunities for gang members to organise crimes in the first place.
Politicians recognised the measure could criminalise people going about their everyday business, so they asked the NSW Ombudsman to review how the laws were being used after their first three years.
Acting Ombudsman John McMillan reported that Gangs Squad officers used the consorting law “to prevent criminal offending and to disrupt the ability of gang members to associate”. He found success of the Gang Squad’s use of the laws lay in the “cultural characteristics” of outlaw motorcycle gangs “and in the multi-layered approach adopted by the Gangs Squad to policing”.
However, McMillan also found that “of all people subject to consorting provisions, 40 per cent were Aboriginal”.
NSW Liberal Dr Peter Phelps commented from the floor of state parliament, “I’m not sure there is a great deal of Aboriginal influence within bikie gangs in NSW.”
It emerged that general duties officers were using anti-consorting laws to address nuisance offending and “complaints from local businesses about ‘undesirable’ people disrupting retail or hospitality enterprises”.
Their use of the new powers was influenced by NSW Police’s stated policy that, despite parliament’s intention that the laws be used to disrupt organised crime, police would not limit their application.
McMillian recommended parliament tighten the law to limit its application to organised crime. Legislators listened and introduced amendments to the laws, tightening the definitions. The aim was to reduce its application to Aboriginal people and to exclude its use on people under the age of 16.
Karly Warner, the chief executive of Aboriginal Legal Service NSW/ACT, says legislative change alone will not fix the problem of the targeting of Indigenous people with anti-consorting laws.
She describes overreach in the use of preventative laws as, “deeply harmful to Aboriginal kids, families and communities, who are too often the targets of discrimination”.
Tamara Tulich makes a similar, broader point: “This shows what can happen when we introduce preventive measures. The police will use whatever powers they have … [The laws are] introduced for a particular purpose and in relation to a particularly dangerous group. But then on the ground they’re actually applied to our most vulnerable and marginalised, because it just becomes part of the ordinary armoury of preventative power that the police have.”
Another piece of preventative armoury is the use of suspect target management plans, described by critics as secret police watch lists. The NSW Police call them, “a framework that targets recidivist criminal offenders to … disrupt their capability to commit crime”.
Karly Warner says the lists target children in some cases. “Kids as young as nine are on a NSW Police watch list across the state, with one of our clients having police come to his door on the date of his tenth birthday.”
The purpose and use of suspect target management plans in NSW is currently being investigated by the state’s Law Enforcement Conduct Commission.
In a statement to The Saturday Paper and The Monthly, a NSW Police spokesman said: “Unfortunately, some young people do find themselves on the wrong side of the law, and recidivist offenders may be subject to a Suspect Target Management Plan. An important part of its purpose is to help divert individuals away from criminal behaviour.”
A report co-authored by University of New South Wales legal academic Dr Vicki Sentas, “Policing Young People in NSW”, says that in 2015 the state’s ministers for police and the prevention of domestic violence and sexual assault announced these management plans would be used to address “recidivist domestic violence offenders”.
The report goes on to say that police data from 2014–15 reveals half the people on the plans were younger than 25. The most common age for young people to be placed on the list was 16 – not a common age to have a record for domestic violence. The fact that children of 10 and 11 have been placed on management plans since then is further evidence that their intended use has shifted.
The reason for police expanding the use of management plans from violent recidivists to young people may become clear when the Law Enforcement Conduct Commission releases an interim report in the next few months. What is already clear to Aboriginal justice advocates is that young people on suspect target management plans say they are creating harm when their declared purpose is to prevent it.
Vicki Sentas’s report into suspect target management plans says a disproportionate number of Aboriginal and Torres Strait Islander people are targeted by the program. While some of these young people have prior records for violent offences, others have committed only minor, non-violent crimes. Another group have no criminal record but “extensive contact with the police”, the report says.
Researchers found there was no substantial difference in the way management plans targeted these three distinct groups, regardless of their different levels of past offending. Young people reported constant stop and searches, move-on orders and visits to their family home by police.
The authors of the report give an example of a 15-year-old boy with a history of theft but no violent offending, who was placed on a management plan. Most of his contact with police happened while the boy was with friends in public places.
Police cars were regularly parked outside his home and police would knock on the door to ask his family where he was, the boy told his lawyer. His mother blamed the stigma created by constant police attention and visits to their home for their lease not being renewed.
Police are unapologetic about their level of contact with kids on suspect target management plans.
“While deliberately engaged by police, STMP nominees are treated with respect and tolerance,” a spokesman said, “but they are reminded that the community will not tolerate criminal behaviour.”
It is important to remember that suspect target management plans are a police policy aimed at preventing future crime. They are not an extension of parole or bail laws, where police have a duty to control a person’s activities.
It is easy to see how the emotional pressure and social shame of constant police attention on a young person can exacerbate existing problems rather than preventing new ones.
The sticking point, as with the use of anti-consorting laws, is that the cohort of offenders who these plans were designed to target does not match the people actually being affected.
Tamara Tulich says that knowing “when to intervene safely to stop the harm from happening but also ensure that the individual has the rights and protections that they deserve” is the challenge ahead.
A belief that prevention always trumps punishment falls down if we assume that prevention is harm-free.
This is the part three of a four-part investigation published by The Saturday Paper and The Monthly. Read the final part next Saturday, January 18.