New concerns surround the government’s increased use of legislative powers to bypass the parliament and create laws that cannot be amended or overturned. The federal government has embedded special powers in new Covid-19 laws to make unilateral changes to non-pandemic-related legislation, using what are known as ‘Henry VIII clauses’ – named for the unchecked power they involve.
Royal commission into police needed
Has Victoria Police lost control over the behaviour of its members? Has it tolerated excessive force, non-compliance with ethical standards and failure of duty of care for so long that its members now regularly cross the line of legal behaviour in the performance of their duties? Do police use excessive force and breach other standards with impunity, knowing that the complaints and behaviour oversight systems simply do not work – that they will get away with it?
Increasingly the answers appear to be yes, yes and yes. There is a very strong case for a completely independent body to investigate complaints and enforce compliance with police standards. Moreover, there is a strong case for rewriting those standards. There is a strong case for a royal commission into police brutality. Last week we saw footage of a mentally ill pensioner pinned to the ground and abused, insulted, kicked and capsicum sprayed. We saw footage of a migrant man pinned to the ground and repeatedly punched and stomped and bludgeoned by a gleeful officer.
We saw other footage of a cuffed Indigenous detainee whose head was slammed into a metal cell door. According to reports, police claimed the prisoner had tried to headbutt an officer. The video shows no headbutt. It shows the prisoner trying to wriggle free before being hurled across the room. Limp on the floor, he is prodded by another officer. The video ends with police wiping his blood from the floor.
If the perpetrators were not police, they might have been charged with assault. They should be. The last incident gives one indication of how the Indigenous incarceration rate has reached such ridiculous, surreal and appalling levels. The contribution of police behaviour to the destruction of life chances for Aboriginal men and women is clear and palpable.
I am more than familiar with this targeting and brutality, this failure to apply the law and procedures fairly to Indigenous people, and the terrible consequences of the choice police make to behave illegally rather than as professional officers. I worked for the Royal Commission into Aboriginal Deaths in Custody for two years in 1989 and 1990. I read the case files and I have never forgotten the details of those deaths. The circumstances were much the same as we are witnessing in Victoria now.
Last week’s footage is just the beginning. In the media coverage of what is plainly illegal police behaviour, other cases were ignored.
It makes me think of the off-duty policewoman Yvonne Berry, who was stripped naked in a cell and stomped and sprayed repeatedly by police who did not recognise her as a fellow officer. That was in Ballarat in 2016. She was dragged under a scalding-hot shower, perhaps with the intention of exacerbating the effects of the capsicum spray. In October that year, she said: “It could happen to anyone — and I’ve since found out that it did, and it does.”
It makes me think of Victoria’s anti-corruption commissioner Robert Redlich, giving evidence in February about cultural issues in Victoria Police. “We are dealing with an organisation in which nothing much has changed in that respect over 40 years,” he said. “Loyalty to one’s colleagues, protecting the reputation of the organisation, gets precedence in some cases over doing the right thing.”
These words make me angry. Nothing was done in the cases I’ve mentioned until the CCTV footage became public. Even then, there was no justice for Yvonne Berry. Contrary to the views of the Police Association, Police Minister Lisa Neville or The Age’s crime writer, John Silvester, the Victoria Police culture that has emboldened officers to behave like thugs does not discriminate: anyone who becomes a target, for any reason, whether through contempt for Indigenous people and people of colour, through conventional racism and misogyny, intolerance of others with different ethnic and religious background, even through whimsical motivations, à la Robert De Niro in Taxi Driver, is at risk of abuse. They are forced into the hands of police with apparently unfettered power. Really, that is why we need a royal commission.
There are two main problems. First, there are too many incidents involving use of excessive violence by police, especially against vulnerable people. It’s not possible to say that these are “a few bad apples” or, as the minister did, justify this violence as a necessary corollary to policing. Second, the system for dealing with complaints and police breaches of standards and ethics is completely internal. This doesn’t work. Police investigate police, and this system is fundamentally flawed.
The resignation of senior police officer Brett Guerin was demanded when the foul, racist, sexist, sexually graphic content of his social media accounts on Facebook and YouTube became public, abuse that targeted not just people of colour, especially Africans, but also his own colleagues, including former commissioner Christine Nixon. He was both the head of Victoria Police’s ethical standards body and assistant police commissioner.
The Independent Broad-based Anti-corruption Commission (IBAC) inquiry was investigating Guerin at the time of his resignation. The commission, Victoria’s first anti-corruption body with responsibility for identifying and preventing serious corrupt conduct across the whole public sector, is supposed to strengthen the integrity of the Victorian public sector and to enhance community confidence in accountability. This one scalp is nowhere near enough to address the root of the problem in Victoria Police. We should not be satisfied with piecemeal investigating that disguises systemic problems; we should be demanding a thorough inquiry into the entire force, using all the powers of a royal commission.
Writing in The Age this month, barrister and spokesman for the Australian Lawyers Alliance Greg Barns pointed to the disregard of the law by the police and the police minister. “In a civilised society the rule of law applies,” he wrote. “The ends do not justify the means when it comes to law enforcement and police do not have a right to use excessive force. And irrespective of what a person’s criminal record may be they are entitled to the protection of the law and to expect that police act in compliance with the law.”
Barns wrote this because – incredibly – it is not the view of Police Minister Neville. Or, at least, it is not possible to conclude anything else from the extraordinary press conference at which she said: “You don’t tar the whole police force by a few incidences.” Obviously keen to be seen as “tough on crime”, Neville conflated new Victorian policy initiatives – harsher sentences for ramming police cars and issuing semi-automatic guns to police – with her defence of Victoria Police behaviour as part and parcel of their duties. She defended the police behaviour by saying, “It’s not always pretty when you arrest someone.” Yes, Minister: it’s not pretty, but what we’ve seen is also illegal.
Neville seems blithely and utterly unaware of the criminality of the behaviour and the pattern of such behaviour that has been reported inside the police for years. She also seems unaware of the further evidentiary strength of these latest instances for arguing for significantly more independent oversight and powers in relation to police compliance with ethical standards.
The Victorian government – and particularly Minister Neville – have caved in to Peter Dutton’s race baiting over “African gangs” and the tabloid and shock-jock pressure on Victoria Police to “do something”. Dutton incited a summer-long frenzy when he asserted without any evidence that Melburnians were “scared to go to out to restaurants” for fear of “African gang violence”. While crime rates are declining in Victoria, Dutton made claims about lack of deterrence of crime in Victoria. In a radio interview he said Victorians were “bemused” when they looked at “the jokes of sentences being handed down” due to “political correctness that’s taken hold”.
In an extraordinary attack on the Victorian judiciary, he demanded that Daniel Andrews’ government pass stricter bail laws and stop appointing “civil libertarians” as magistrates.
This is racist bullshit from an old Queensland cop. It is also dangerous. I’d welcome him on the stand at a royal commission.
Among the African–Australian population in Melbourne, police report about 100 youths who are repeat offenders. Gang culture experts in Victoria Police initially said these offenders were not gang members because “networked criminal offenders” were not technically gangs as they lack any organised structure. Deputy Commissioner Andrew Crisp said police also consider it better not to elevate their status.
Despite this warning, the tabloid media ranted about “gangs” on a daily basis. Eventually, the police commissioner returned from holidays and conceded that there were “African gangs”.
Stinging from the confected outrage over “African gangs”, Minister Neville has doomed Victorians to a vicious police culture. That’s the politics of it: tough on crime, even if the toughness is unlawful brutality in the force.
This is contempt for the rule of law, and it emanates from ministers at both the federal and state level. My suggestion for a royal commission has received no response. There are stalwarts campaigning for police breaches to be dealt with by an independent body, but their pleas are falling on deaf ears. The option for police to avoid the anti-corruption commission and send these matters to their own investigators is a loophole that must be closed. The political will to rein in the police and deal with their abusive, out-of-control culture does not exist while the Andrews government faces an imminent election threat and Dutton stares down a very small margin in his own Queensland electorate deep in the heart of Pauline Hanson country. His fate will be decided at the federal election. Meanwhile, he’s campaigning on fears thousands of kilometres away.
A royal commission would have the task of spelling out the law and the standards to which police are expected to conform and provide some justice to the many victims of police brutality. IBAC and the internal police system have failed in these duties. Police training is having little impact. Politicians, too, must be called to account to uphold law and order, and perhaps only a royal commission can do that.
The observations of those involved in the Police Accountability Project are worth paying attention to at this stage in what will be a much longer debate about police and policing: “The core issues are systemic, structural and embedded within Victorian legislation. As we know from similar jurisdictions around the world, external ‘oversight’ is simply not enough and more audits of this nature will not change the fundamentals of the problem, which is police having to investigate their own colleagues …
“This is a systemic issue and not one of ‘processes’. It remains up to the Parliament of Victoria to address this institutional conflict of interest. It’s the missing piece in Victoria’s integrity framework.”
The parliament is not doing this work, though. And the federal government is only making it worse. The only real answer is a royal commission into the whole damn mess – the ugly intersection of power, brutality, race and executive excess.
This article was first published in the print edition of The Saturday Paper on Apr 14, 2018 as "Tough on crime-fighters".
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