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Related issue outlines:
2006/14: Is Victoria doing sufficient to prevent knife attacks?
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2010/03: Should Victoria Police have been granted additional powers to stop and search people and to move them on? 2010/03: Should the legal drinking age in Australia be raised?

Should Victoria Police have been granted additional powers to stop and search people and to move them on?

What they said...
'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'
Michael Pearce, SC, president of Liberty Victoria

'People have a right to privacy, but they also have a right not to be stabbed ... if random searches can bring about the prevention of stabbing, then it is totally correct for police to be able to do this'
Bob Cameron, Victorian Police Minister

The issue at a glance
On December 16, 2009, the Victorian Parliament passed the Summary Offences and Control of Weapons Acts Amendment Bill 2009.
The amended legislation gives increased powers to the police to combat 'anti-social behaviour and violence'.
Among the new powers given police are the power to stop and search anybody, without a search warrant, in a designated 'weapons search area'. The new laws also give police the power to randomly search children and conduct strip searches.
The new laws have been criticised by human rights, political, legal and welfare organisations as unnecessary and as potentially targeting vulnerable groups in society, such as the homeless, the mentally ill and young and Indigenous people.
The Victorian Government and police spokespersons have argued that the laws are a necessary response to protect Victorians from a growing 'knife culture' in the state and from the threat of assault in the street.

Background
Under the Summary Offences and Control of Weapons Acts Amendment Act police can search anybody in a 'designated area' even if officers do not have any reasonable suspicion of wrongdoing by that person. These search powers can be applied to anyone, including children and the disabled.
Any area where there has been an incident of violence involving a weapon in the past year can be deemed a designated area; as can any place where police suspect there may be trouble; or any major event precinct.
There are no limits on the size of a designated area, although it can only be designated for a maximum of 12 hours.
A new offence of disorderly conduct has been created.
Police are able to fine people for the offences of drunk and disorderly, disorderly conduct and for being drunk.
Officers can demand somebody 'move on' if they believe they may be going to commit a breach of the peace

Control of weapons legislation in Victoria
Victorian laws control and regulate the ownership and use of various types of weapons apart from firearms. The Control of Weapons Act 1990 (Vic) identifies three broad categories of non-firearm weapon namely:
'prohibited weapons' - which means any of the 46 weapons listed in Schedule2 of the Control of Weapons Regulations 2000 (Vic) and includes flick knives, daggers, knuckle knives, knuckle dusters, throwing blades, whips with metal lashes, studded or weighted gloves and stun guns;
'controlled weapons' - which means a knife, other than a knife that is a prohibited weapon, plus the seven weapons listed in Schedule 2 of the Control of Weapons Regulations 2000 (Vic) (i.e. crossbows, cattle prods, bayonets, batons or cudgels, swords, imitation firearms and spearguns); and
'dangerous articles' - which means an article which has been adapted or modified so as to be capable of being used as a weapon; or any other article which is carried with the intention of being used as a weapon (e.g. a cricket stump or bat carried in a crowded area)..

Stop and search laws in Great Britain
Section 44 of the Terrorism Act 2000 allows the police to stop and search anyone in a specific area.
Any constable in uniform is authorised to stop a vehicle in an area or at a place specified in the authorisation and to search the vehicle, the drivers and passengers and anything in or on the vehicle or carried by the driver or a passenger. Any constable in uniform is authorised to stop a pedestrian in an area or at a place specified in the authorisation and to search the pedestrian and anything carried by him.
The police can give a suspect a pat down, remove all clothes, search bags, empty the suspect's pockets, if anything is found or suspected to be found a cavity search can be executed.
The suspect does not have to give their name and address. The suspect does not have to explain why they are there. Suspects are not allowed to flee the search. There is no permission to collect the suspect's DNA data during the search. The suspect does not have to comply with any attempt to photograph or record them.
Section 44 has been used by the police to stop and search many people other than terrorism suspects. This has included journalists, a man photographing a police car and Walter Wolfgang, a heckler at the Labour Party Conference. Vernon Coaker, the Minister of State has since stated that, 'counter-terrorism measures should only be used for counter-terrorism purposes'.

Internet information
The full text of the Summary Offences and Control of Weapons Acts Amendment Act 2009 can be found at http://austlii.law.uts.edu.au/au/legis/vic/num_act//soacowaaa200992o2009565/s12.html

An explanation of the Victorian Charter of Human Rights and Responsibilities can be found on the Internet site of the Victorian Equal Opportunity and Human Rights Commission. This site also has a link to the full text of the Charter.
This information can be found at http://www.humanrightscommission.vic.gov.au/human%20rights/the%20victorian%20charter%20of%20human%20rights%20and%20responsibilities/

On November 30, 2009, the online commentary and current affairs site, Crikey, published a comment by Greg Barnes titled, 'New law gives police the right to frisk anyone, anywhere;. The piece is opposed to the new laws and considers the problems associated with similar laws introduced in Great Britain. The full text of the comment can be found at http://www.crikey.com.au/2009/11/30/new-law-gives-police-the-right-to-frisk-anyone-anywhere/

Dr Helen Szoke, the Victorian Equal Opportunity and Human Rights Commissioner, issued a media release through the Victorian Equal Opportunity and Human Rights Commission detailing the Commission's concerns regarding the Summary Offences and Control of Weapons Amendment Act. One of these was that the Act, while acknowledged to be in breach of Victoria's Human Rights Charter, was made law without adequate community consultation. The full text of this media release can be found at http://www.humanrightscommission.vic.gov.au/News%20and%20Events/media%20releases/20091229.asp

A summary of different responses to these amendments was published in the Australian on January 11, 2010. These different points of view can be found at http://www.theaustralian.com.au/news/opinion/if-you-want-to-stop-knife-crimes-search-old-ladies/story-e6frg6zo-1225817864043

On January 11, 2010, the Maribyrnong Leader published a report on the first stop and search operation conducted in Victoria under the amended legislation. The operation was conducted at Footscray railway station on January 7, 2010. The report includes comments from those both opposed and in favour of the new laws. The full text of the report can be found at http://maribyrnong-leader.whereilive.com.au/news/story/knives-in-footscray-station-haul/

On January 24, 2010, Green Left Weekly published an opinion piece by Margarita Windisch, titled, 'New police powers threaten human rights'. The comment is opposed to the amendments. The full text of the opinion piece can be found at http://www.greenleft.org.au/2010/823/42349

On February 5, 2010, Bob Cameron, as Victorian Police Minister, issued a media release announcing the new walk through metal detectors which Victoria Police will be using to implement their new stop and search powers. The police minister writes strongly in support of the new police powers.
The full text of this media release can be found at http://www.premier.vic.gov.au/newsroom/9325.html

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.'

Arguments in favour of the new search powers
1. Crimes involving knives are of concern to Victoria Police
Victoria Police have stated their concern that additional powers are needed to allow them to reduce the threat of injury and death through crimes involving knives.
Victoria Police chief Simon Overland has stated, 'The new powers will help police confront increasing drunken and loutish behaviour.
Fist fights are bad enough, but if people start fighting with knives, the consequences for the victim are likely to be very, very serious, if not fatal.'
The Explanatory Memorandum accompanying the Bill outlined Victoria Police's concerns regarding the use of concealed weapons by those with a specific intention to commit a further crime. It states, 'In recent years there have been a number of incidents involving attacks on patrons in nightclubs and surrounding entertainment precincts. Police intelligence information has also highlighted as an area of concern the possession of weapons in and around nightclub areas by gang members and by persons involved in the illicit drug trade.'

2. Knives can easily be concealed on a person's body
It has been pointed out that knife crimes are difficult to control as knives can easily be concealed on a person's body. This has been used as justification of the new search powers given Victoria Police as it would not be easy to establish that someone was carrying a knife without an initial search. In such a case requiring that police have reasonable grounds for conducting a search before doing so is, it is claimed, counter-productive.
The success of the first stop and search operation conducted at the Footscray railway station has been claimed to justify the existence of the new legislation. 182 people were searched. Knuckledusters, a machete and knives were among 12 weapons police found in the possession of seven different people and were confiscated. Four penalty notices were issued for carrying alcohol on public transport, disorderly conduct, hindering or obstructing an operation and being drunk. One person was arrested for outstanding warrants and another was caught carrying drugs. Deputy Commissioner Kieran Walshe said the results were a clear indication that people who frequented this area were armed with weapons.
Results such as these have been used as justification of the claim that broad-based searching may be the only viable way of determining if members of the public are carrying knives.

3. It is difficult to limit access to knives
It is widely acknowledged that limiting access to knives and other sharp objects is very difficult. Unlike guns, knives are common household tools and so young people and others can readily access them within the home, without having had to specifically purchase them. This makes current control measures that focus on the age of the purchaser not very effective.
In 2009, the World Health Organisation produced a report titled, 'Violence Prevention, the Evidence - Guns, Knives and Pesticides: Reducing Access to Lethal Means'. The report stated, 'The research evidence on measures to reduce access to sharp objects is less well developed than for firearms, and most information stems from the United Kingdom where knife violence, particularly among youths, is a major social and political concern...
Knives and other sharp objects are common household and workplace tools and their widespread
availability and utility complicates control measures.'

4. The laws are necessary to prevent Victoria developing a knife culture
Defenders of the new laws have claimed that they are necessary to prevent Victoria developing the sort of knife culture in evidence in some other parts of the world.
The Victorian premier, John Brumby, stated, 'Knife attacks have got out of control in London, Los Angeles and other big cities around the world. Cabinet and Victoria Police are determined this will not happen here.
We need to nip this problem in the bud. We've got kids as young as 10 or 11 who have been picked up carrying knives that they intend to use on someone. So we've got to send a message.'
The concern that Victoria is developing a culture where it is the norm to carry a knife has been fuelled by recent figures indicating their increasing acceptance among children.
On September 14, 2009, the ABC ran a news report which stated, 'New figures show that 58 children aged between 10 and 14 were involved in armed robberies in the past year.
Overall there has been a 9 per cent increase in the number of robberies involving knives.
Deputy commissioner Ken Jones says police are determined to stop a knife culture from flourishing among young people.
"No parents want their youngsters, predominantly young lads, but some girls are doing it as well, to start carrying weapons...So it's anything and everything we can do to turn that back and challenge that culture before it takes a grip."'
On the same day the Victorian Police Minister stated, 'There were 58 armed robberies last year involving 10 to 14-year-olds. This is of great concern to us.
Knife culture can grow rapidly. That is why we will be introducing laws to have random searches for weapons in designated areas. An inspector, based on intelligence, will form the view that an area needs to have random searches for a period of time (could be for a day or two), and this will mean people in the area can be randomly searched for weapons. This could involve use of a metallic wand or a quick pat down.
Our message is that if you don't have a weapon, you have nothing to worry about. To anyone who does have weapons, particularly young people, please hand them in to police...'
Victoria Police hope the new laws will serve as a deterrent. They hope that the knowledge that anyone, regardless of age, could possibly be stopped by the police and searched for a weapon will discourage Victorians from carrying them.

5. The new powers are meant to be used proactively
Supporters of the new laws have noted that one of their advantages is that they enable police to remove knives from the community before these weapons have been used to commit an assault. It has been argued that this proactive approach is a valuable way of protecting people from serious physical assaults and perhaps death.
Deputy Commissioner Kieran Walshe has claimed. 'The new powers will enable us to detect these weapons before they are used in crimes, making the area much safer for train commuters and the broader community.'
On January 11, 2010, Bob Falconer, former Victoria Police deputy commissioner, had a letter published in The Age. Mr Falconer wrote, 'According to details recorded by the Victorian State Trauma Registry, the number of people seriously injured and killed in assaults in Victoria has almost tripled in five years. Many of those incidents involved baseball bats, knives and other weapons while most of the victims and perpetrators were young males. So searching young men in public places is sound pro-active policing and should be applauded.'

6. The new laws are intended to be implemented with minimal intrusion
The intention of the new laws is not to disrupt the community but to protect it. Stop and search operations will generally be 'planned', that is, a week's advance notice will be given when such an operation is to be conducted in a particular area.
The intention of the law is educative and to act as a deterrent. Thus Victoria Police will generally notify the public prior to an stop and search operation occurring to allow people to get rid of any weapons they may be carrying.
The Victoria Police's Internet site states, 'Victoria Police may declare an area if the Chief Commissioner (or his delegate) is satisfied that:
There has been more than one act of violence or disorder with a weapon in the past 12 months and there is a likelihood that there will be violence or disorder with a weapon again; or
There has been violence or disorder with a weapon at a previous event or celebration, this event is happening again and there is a likelihood that there will be violence or disorder with a weapon at this event again.
Notice of this declaration is advertised in the Government Gazette and a daily newspaper at least seven days before the area is designated for searches to occur.'
Where an unplanned (and therefore unannounced) search occurs this will only happen when Victoria Police have reason to believe that an offence is likely to occur in that area.
The Victoria Police's Internet site states, 'Victoria Police may declare an area if the Chief Commissioner (or his delegate) is satisfied that it is likely that violence or disorder with a weapon will happen in the area when it is designated and it is necessary to declare the area to prevent or discourage violence or disorder with a weapon happening.'

Further implications
The fate of Victoria's amended weapons control laws will ultimately depend on the effect of these amendments.
The Victorian Government and Victoria Police hope that they will reduce crimes in which knives are used. There will be two clear measures as to whether they have done so. One will be the number of weapons the police actually confiscate from members of the public during such searches. The other, and more important measure, will be whether the number of crimes involving the use of knives actually declines. If such measures are positive and the Government is able to demonstrate that Victorians are generally safer as a result of these amendments, then voters may well be prepared to accept the infringement of their civil liberties that these stop and search laws represent.
However, it is likely to be a very different matter if these laws are acted upon and innocent citizens are inconvenienced for no discernible public benefit. What will further complicate this issue is if the laws are seen to be being implemented in a way that appears prejudiced. If a disproportionate number of people from particular racial minorities, from among the mentally ill, the homeless and young people are targeted for such searches, then civil liberties and other groups which speak for these individuals will lodge public and formal complaints.
There is also the question of police public relations. It is generally acknowledged that effective policing, especially among some key minority groups, involves establishing good relations between the police and the group concerned. These laws have the capacity to undermine such good relations. It is for this reason that similar laws have recently been wound back in London.

Newspaper items used in the compilation of this issue outline
H/SUN, January 11, page 24, comment by Wayne Kayler-Thomson, `Police must act on thugs'.
http://www.heraldsun.com.au/opinion/police-must-act-on-thugs/story-e6frfifo-1225817858379

AGE, January 11, page 11, comment by Dr Russell Gruen, `Violence in the streets injures us all'.
http://www.theage.com.au/opinion/society-and-culture/violence-in-the-streets-injures-us-all-20100110-m0l6.html

AGE, January 10, page 15, comment by Victorian Police Commissioner Simon Overland, `Death in your pocket'.
http://www.brisbanetimes.com.au/opinion/society-and-culture/death-in-your-pocket-20100109-lzry.html

AGE, January 10, page 14, editorial, `Alcohol, knives and the changing life of the city'.
http://www.theage.com.au/news/opinion/editorial/alcohol-knives-and-the-changing-life-of-the-city/2010/01/09/1262453696564.html

AGE, January 9, page 17, analysis (on carrying and use of knives in attacks) by Andrew Rule, `Under the knife'. (link is to Sydney Morning Herald version)
http://www.smh.com.au/national/knife-epidemic-concealed-20100108-lyvm.html

AGE, January 10, page 4, analysis (photos, crime / assault statistics) by John Elder, Jon Pierik, `The mean streets: where the locals fear to tread'.
http://www.theage.com.au/national/the-mean-streets-where-the-locals-fear-to-tread-20100109-m00l.html