Right: Nitin Garg, a young Indian man who was attacked and stabbed fatally on his way to work in a Melbourne fast-food outlet. The outcry in India over his murder led to much diplomatic communication between Australia and New Delhi.
.Arguments against the new search powers
1. The new search powers breach the Victorian Human Rights Charter
There are a number of provisions within the Victorian Charter of Human Rights and Responsibilities which the new search laws breach. Firstly the Charter outlines Victorians' right to privacy. The Charter also protects Victorians from arbitrary arrest and detention. Civil libertarians have argued that to detain Victorians for the purpose of a body search without immediate a prior due cause is an arbitrary exercise of power and an invasion of the individual's privacy.
It has also been claimed that the police power to demand somebody 'move on' if it is believed they they may be going to commit a breach of the peace is counter to the freedom of assembly rights within the Victorian Human Rights Charter.
Melbourne barrister Michael Pearce, SC, president of Liberty Victoria, has said the new Act is undemocratic. Mr Pearce has stated, 'It will clearly involve significant intrusions on ordinary civil liberties and human rights, such as the right to walk the streets and mind your own business.'
The Victorian Equal Opportunity and Human Rights Commission has stated, 'Freedom of movement, freedom of expression, the right to privacy, liberty and security, equal treatment before the law, freedom from discrimination, and the protection of families and children' are under threat from the amended legislation.
Even defenders of the new legislation have acknowledged it is in breach of Victoria's Human Rights Charter; though they have argued that some rights may need to be traded in order to protect public safety.
Chris Berg, a research fellow with the Institute of Public Affairs and editor of the IPA Review, has stated, 'Victoria's knife control bill shows that governments only respect human rights charters when they want to.'
2. The new powers are an over-reaction
It has been claimed that crime statistics do not justify the claim that assaults involving crimes are increasing. Rather, they assert, the criminal use of knives has declined. Therefore, critics of the new legislation argue there is no reason to introduce these new laws. They are seen as an over-reaction to a perceived threat rather than a reasonable response to an actual danger.
In a letter published in The Age on January 9, 2010, Newport resident and Homeless Persons' Legal Clinic manager, James Farrell, stated, 'Victoria Police 2008-09 crime statistics show that knives used/threatened/displayed during assaults are decreasing, as are assaults with other edged weapons. This is part of a significant downward trend over many years. There is no rise in knife-related crime, despite increased reportage of knife-related incidents.'
3. The new powers are likely to be abused
It has been claimed that the manner in which such powers have been used in other countries suggests they are either employed too vigorously or are used to target particular groups such as young males, ethnic minorities and the homeless.
Newport resident and Homeless Persons' Legal Clinic manager, James Farrell, has claimed that overseas experience had shown such laws do not work and that they were used 'disproportionately against marginalised groups' such as the homeless and those with mental illnesses.
Greg Barns in an opinion piece published in Crikey on November 30, 2009, stated, 'The problem with such a law is that it will be abused. Homeless people, people with mental illness and young people will find themselves being forcibly searched by inexperienced officers or those police who have a grudge against individuals. And one can easily imagine how police will, on a Saturday night, line up a group of young people and search them simply because they are congregated in a public place.'
Greg Barns went on to explain that similar laws had been misused in Britain and as a result London police have had these powers severely limited. Barns wrote, 'The UK police have a similar power under that country's anti-terror laws. But in May this year the assistant commissioner of police for Scotland Yard, John Yates, told Lord Carlisle, the independent reviewer of anti-terror laws, that consultations police had with communities "confirmed suggestions that the power is seen as controversial and has the potential to have a negative impact, particularly on minority communities". Lord Carlisle had previously said that the stop-and-search power is used inappropriately by police. London police can now only use stop-and-search procedures without having any reasonable cause around iconic buildings such as Westminster.'
4. The police had sufficient powers to protect the community against crimes involving knives
It has been claimed that Victoria Police already had sufficient powers to deal with the crimes of assault, including assault with a knife.
Ben Courtice, a Socialist Alliance candidate in the upcoming Victorian state election, has stated, 'There are already laws to deal with criminal behaviour, and allowing police to treat everyone like criminals is unlikely to stop the few individuals who are actually going to commit a violent crime.'
The same point has been made by Western Metropolitan state Greens MP Colleen Hartland who said she believed police already had sufficient powers to search people suspected of carrying an illegal weapon. Ms Hartland indicated that what the new powers did was enable police to search people without reasonable suspicion of their carrying a weapon.
The Greens in Victorian have been particularly critical of the new legislation. Sue Pennicuik MLC is one of the elected Greens in the Upper House of Victorian State Parliament, representing the Southern Metropolitan Region. Ms Pennicuik stated in the Victorian Parliament, while the new laws were being debated, 'From our point of view, the powers that already exist under the Summary Offences Act and the Control of Weapons Act are sufficient to deal with the issues that the Premier and the Minister for Police and Emergency Services have given as the reasons for the bill we have before us.'
5. The new search laws and attendant publicity may encourage Victorians to carry knives
It has been claimed that the new laws may have the unintended consequence of encouraging more Victorians to carry knives.
Julian Bondy, an associate professor at RMIT specialising in justice and policing, has claimed that random police searches can have a negative effect by reinforcing the idea that the streets are unsafe. He advocates a more integrated approach to tackling knife violence, involving schools and healthcare providers.
Professor Bondy argues that more assaults and more reporting of violence on the streets make people feel more vulnerable. Some then carry weapons because they believe they need to defend themselves, which in turn increases the possibility of violence. Police knife search and their wide-spread reporting can, the Professor claims, have the same effect.
6. The new laws are politically motivated
It has been claimed that the new powers are not a response to a genuine law and order issue. Rather, some critics assert, these laws are an attempt by the Victorian Government to win favour with the electorate by being seen to take action against a problem which is a cause of popular concern.
Newport resident and Homeless Persons' Legal Clinic manager, James Farrell, has stated, 'there is an increase in the political imperative to be seen to be tough on crime, and an increase in the Government's preparedness to breach Victorians' human rights in a populist move that is unlikely to add to community safety.'
Greg Barns in an opinion piece published in Crikey on November 30, 2009, also stated his belief that the new search laws are politically motivated. Barns wrote, 'Do Victoria's police minister Bob Cameron and that state's police commissioner Simon Overland like policy to be evidence-based or are they more interested in political point-scoring and window-dressing? If you judge their decision to introduce into law this week new powers that will allow police officers the power to stop and search anyone they find without having to justify their actions, then its definitely the latter that exercises their minds.'