Odds and Ends Trust of Police Among the Community

[1985] Reform 31 whether persons who hold offices of profit give orders to Police Constables?’, October under the Crown, or have contracts with the 1984). In an article in the Guardian, the Government, can be Members of Parliament. Shadow Minister for Health, Michael Meacher Following the report of a Select Committee in MP, said in relation to the coal strike: ‘What we 1982, the Acts Amendment and Repeal (Dis have actually seen is police directed all over the qualification for Parliament) Bill has now been country without the agreement of, and indeed introduced to implement the report. against the will of, elected police authorities. In effect, a national police force has emerged, Two other Bills implement earlier reports on using para-military tactics’ (19 October 1984). Trusts and the Administration of Estates. The Administration Amendment Bill completes the In the United Kingdom there are a great num implementation of the Commission’s report on ber of police forces, each under the charge of Distribution on Intestacy (Project No 34 the Chief Constable. Chief Constables can be Part I), most of the recommendations in which appointed and dismissed by local police were implemented in 1976. The Acts Amend authorities subject to the Home Secretary’s ap ment (Insolvent Estates) Bill implements the proval. The police authority can also call for re commission’s report on the Administration of ports, question the Chief Constable and disci Deceased Insolvent Estates (Project No 34 pline him for ordinary disciplinary offences. Part III). The order of application of assets in But can it influence operational decisions or, in the case of solvent estates is to be dealt with in a these matters is he independent? Clayton and future report. The Fatal Accidents Amendment Tomlinson argue that the so-called doctrine of Bill, the Juries Amendment Bill and the Re operational independence is a furphy, albiet a straint of Debtors Bill implement, respectively, widely accepted one. They say that the doctrine the Commission’s reports on Fatal Accidents has no direct legal support and is historically (Project No 66), Exemption from Jury Service anomalous and out of line with long-standing (Project No 72), and the Absconding Debtors constitutional convention. They point to con Act (Project No 73). The Bail Amendment Bill, trol of the police until the 19th Century ‘by the which amends the Bail Act 1982 (which had not local gentry in their guise as Justice of the been proclaimed) brings the provisions in the Peace’ (Guardian 22 October 1984). They note earlier Bill into line with the Commission’s re that the Greater Manchester Chief Constable port on Bail (Project No 64). All these Bills has now asked for High Court clarification of have passed both Houses and now await assent. his relationship with his police authority. Al though in Australia the organization of police Other Commission reports shortly to be imple forces is rather different, the issue of operation mented include the report on Section 2 of the al independence is no less critical. For develop Gaming Act 1845 (Project No 58), dealing with ments in Australia, see above p 8. the enforceability of gambling debts, and those on Strata Titles (Project No 56) and Associa ■ stop and search. A Draft Code of Practice re tions Incorporation Act (Project No 21). The cently issued by the UK Office indicates con Occupiers’ Liability Bill, on which the Commis cern about the use of ‘stop and search’ powers sion was informally consulted, will also soon be by the police. It makes the point that over-use introduced into Parliament. of such powers is likely to be counter productive, especially in that it leads to a mis odds and ends trust of police among the community. The ■ the police. The constitutional position of the document spells out the notion of ‘reasonable police is an issue which has come to the fore suspicion’ as a criterion for stopping and front in the current miners’ strike in the United searching a suspect. In particular, it indicates Kingdom. It is explored in an article by that reasonable suspicion should not be based Richard Clayton and Hugh Tomlinson in the on the fact that a person belongs to a group New Law Journal (‘Can Police Committees amongst which arrests for certain types of of [1985] Reform 32 fences are common. Appearance or race cannot tive. In the words of one of the Guardian’s legal be a ground for stopping and searching a per correspondents, Malcolm Dean, about the son. The degree of suspicion must be as high as European Commission on Human Rights: ‘No that required to arrest a person without war institution has done more to extend civil liber rant. In ALRC 2, Criminal Investigation, the ties in the UK in the last two decades than the Australian Law Reform Commission recom European Commission backed up by the Euro mended that police have the power to stop, pean Court of Human Rights just across the search and detain persons reasonably suspected road in Strasbourg’ (Guardian, 24 October, of carrying anything stolen, or unlawfully ob 1984). Issues taken to the Commission or the tained, or where there are reasonable grounds Court in recent times have included: to suspect that there may be found an offensive weapon or something which is the fruit of a • the use of plastic and rubber bullets by serious crime (ie one punishable by more than the UK in Northern Ireland and the use six months imprisonment), the means by which of cruel and degrading punishment/ it was committed, or material evidence to prove torture by the British against detainees; its commission. The UK Code indicates the • the rights of disabled servicemen to sue need to more closely define ‘reasonable sus the British Government rather than take picion’. See above p 31. a pension; • prisoners’ rights of access to lawyers and ■ inter-departmental committees. Before re the courts ; tiring as Chairman of the Australian Law Re • judicial protection of mental patients; form Commission Justice Michael Kirby sug • criminal sanctions against homosexuals; gested to the Attorney-General that the Com and mission be represented on inter-departmental • corporal punishment in schools. committees considering the reports of the Com mission. Senator Gareth Evans, the then According to Malcolm Deans: ‘The British Attorney-General, agreed to the proposal that Government is fed up with being Europe’s in future, representatives of the Commission “worst offender”. Some 80 cases have been will be invited to attend inter-departmental declared admissible against the UK — twice as committees as part of the representation for the many as any other State.’ Mr Deans adds the Attorney-General’s Department. This will en qualification though that 4 of the 21 member sure that IDC’s are more fully briefed and States of the European Commission do not al should reduce delays in the implementation of low individuals to petition the Commission as the Commission’s proposals. See Justice the United Kingdom does. Kirby’s comments above p 2. Similar rights and guarantees to those in the European Convention on Human Rights are set ■ the impact of international law on domestic law. out in the International Covenant on Civil and Propinquity is everything in international affairs as in love Political Rights which has been ratified by affairs. Australia. However the availability of a con Arthur Calwell in Colin Bingham ed. ‘Wit and Wisdom’, venient forum to which individual petitions can p 74. be taken distinguishes the situation in the Uni ted Kingdom from Australia. Nevertheless, it Except for its impact on Australian constitu might be that Australian lawyers should be tional interpretaion, many black letter lawyers paying greater attention than they do to the regard international law as being as irrelevant provisions of international instruments to as it is esoteric. While the impact on Australian which Australia is a party. domestic law to date of international law has not been sufficient to shatter that illusion, devel ■ standing committee of attorneys-general. The opments in the United Kingdom are instruc case for uniform action on law reform has been [1985] Reform 33 >ften imade (eg [1983] Reform 102-3, 142-5 and Significant uniform legislation has been en ee abowe p 2). Reports of the Australian Law acted or proposed in two areas as a result of (eformi Commission have repeatedly stressed Standing Committee initiatives. Uniform legis he hop3e that they might be utilised as models lation facilitating the interstate transfer of pris or actiion by State Legislatures. Other forces oners for welfare or compassionate reasons, or re at vwork in this area, notably the Standing for the purpose of their giving evidence at trials, rommiittee of Attorneys-General. Meeting commenced in July 1984. Also, uniform legisla [uarterlly, the Standing Committee considers tion facilitating the registration of parole orders natters ; which may be suitable for uniform in other States, and subsequent control over egislatiive action by the States (being those mat parolees, commenced in May 1984. Agreement ers rescerved for the States) and discusses the has also been reached on legislation providing mplicaitions of Australia’s ratification of, or ac- for the issue and execution of search warrants ession to, various international agreements, in one State or Territory to assist criminal in opics discussed at the Standing Committee vestigations elsewhere. Such legislation has al neetingg at Darwin in August 1984 included: ready been enacted in the ACT. This legislation will undoubtedly prove useful in the fight • tthe uniform defamation law proposals: against organised and other crime, which cdiscussions with professional groups are knows no boundaries. ccontinuing and a final decision on this vvexing matter has been deferred; ■ survey up-date.

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