A Force Unto Itself

Australia has taken huge steps towards becoming a police state. We abandon the principles of a liberal democracy at our peril. By Nick Cater.

How much liberty must we surrender to stop the spread of COVID-19? In a passionate radio interview this week, Jonathan Sumption, a former member of the British High Court, warned that a collective hysteria was driving the UK towards something like a police state.

Lord Sumption’s intervention was prompted by heavyhanded policing by the Derbyshire Constabulary who used drones to locate and photograph couples hiking in the Peak District, hardly a cauldron for coronavirus, one suspects.

“The tradition of policing in this country is that policemen are citizens in uniform,” Lord Sumption told the BBC. “They are not members of a disciplined hierarchy operating just at the government's command. Yet in some parts of the country the police have been trying to stop people from doing things like travelling to take exercise in the open country which are not contrary to the regulations, simply because ministers have said that they would prefer us not to… 

“This is what a police state is like. It's a state in which the government can issue orders or express preferences with no legal authority and the police will enforce ministers' wishes.”

Lord Sumption has a rare ability to defend liberal principles on the BBC. Last year I had cause to praise his Reith Lecture series which warned of the expansion of the law into almost every part of our civil society.

In Australia too concern has been expressed about the use of the police to move on people guilty of offences like sitting on park benches or sunbaking on Bondi Beach.

Clearly I am not alone in feeling uncomfortable about this departure from normal practice and the principle that the police are authorised to keep order by the consent of the people, not the power of the state.

It was similar to the anxiety widely felt in Hong Kong during last year’s mass protests when some police jumped the fence that separates a civil society where power is bestowed from the bottom up, to one in which if flows from the top.

Hong Kong, like Australia, inherits the British traditions of the rule of law and everything that follows from the principle of the Magna Carta. Nobody is above the law, least of all those who enforce it.

The appreciation of this principle is acutely felt in this enclave of a nation where a totalitarian government wields arbitrary power. 

As a resident of Hong Kong in the early 1990s, I trusted the police who patrolled the CBD in short-sleeved shirts armed with little more than a notebook and pencil. That may not be universally so today.

The principle that no one is above the law in Hong Kong is enshrined by the Independent Commission Against Corruption, the first of its kind, and far superior to the cheap copies it spawned.

I declare an interest here. ICAC was established by former Hong Kong chief secretary Sir Jack Cater, a nephew of my grandfather Charlie Cater, a London copper who patrolled the docks during the blitz.

COVID-19: Read the MRC’s coverage of the debate in Australia and around the world

My grandfather claimed not to have arrested anyone in his entire career. He said he didn’t like the paperwork, which I suspect is a family trait. He preferred to keep order by gentle persuasion, more of a kelpie than a rottweiler.

Like every member of the Metropolitan Police Force since 1828, my grandfather was given a copy of the General Rules including the nine principles of policing introduced by Robert Peel as Conservative Home Secretary.

The General Rules were part of the liberal reforms that Australia inherited and became woven into our civil fabric.

Did the enforcement of shutdown rules in some state last week, rules passed not by Parliament but by regulation, breach the nine principles? You be the judge:

1. To prevent crime and disorder, as an alternative to their repression by military force and severity of legal punishment.

2. To recognise always that the power of the police to fulfil their functions and duties is dependent on public approval of their existence, actions and behaviour, and on their ability to secure and maintain public respect.

3. To recognise always that to secure and maintain the respect and approval of the public means also the securing of the willing co-operation of the public in the task of securing observance of laws.

4. To recognise always that the extent to which the co-operation of the public can be secured diminishes proportionately the necessity of the use of physical force and compulsion for achieving police objectives.

5. To seek and preserve public favour, not by pandering to public opinion, but by constantly demonstrating absolutely impartial service to law, in complete independence of policy, and without regard to the justice or injustice of the substance of individual laws, by ready offering of individual service and friendship to all members of the public without regard to their wealth or social standing, by ready exercise of courtesy and friendly good humour, and by ready offering of individual sacrifice in protecting and preserving life.

6. To use physical force only when the exercise of persuasion, advice and warning is found to be insufficient to obtain public co-operation to an extent necessary to secure observance of law or to restore order, and to use only the minimum degree of physical force which is necessary on any particular occasion for achieving a police objective.

7. To maintain at all times a relationship with the public that gives reality to the historic tradition that the police are the public and that the public are the police, the police being only members of the public who are paid to give full-time attention to duties which are incumbent on every citizen in the interests of community welfare and existence.

8. To recognise always the need for strict adherence to police-executive functions, and to refrain from even seeming to usurp the powers of the judiciary, of avenging individuals or the State, and of authoritatively judging guilt and punishing the guilty.

9. To recognise always that the test of police efficiency is the absence of crime and disorder, and not the visible evidence of police action in dealing with them.

I am not convinced that social distancing, important as it is, needs to be enforced by the heavy hand of the law. Certainly the state has no right to determine in what home or with whom one can sleep, as Premier Daniel Andrews tried to do this week.

Polling last weekend by Roy Morgan found that seven out of 10 Australians were voluntarily self-isolating, whether or not they had been told to do so. Even allowing for some confusion about what isolation actually requires, it is clear that most Australians, most of the time, can be trusted to do the right thing.

The final word goes to Bob Menzies, who as a student at the University wrote a prize-winning essay on the rule of law in World War I.

“Some infringements of the ‘Liberty of the subject’ are inevitable in any war,” he wrote. “Such infringements have been considerable during the past two years; the power of the Executive, has been much increased, and the full authority of the common law Courts greatly hindered. 

“All ‘these things may be justified by the gravity of the national emergency; by virtue of this alone do we acquiesce in such an extensive abrogation of the Rule of Law. 

“Should the almost arbitrary power of the Executive prove to be anything else but temporary, a. very great disaster would have befallen the English Constitution.”