Refugee policy, and police as lawmakers

First Thought

I haven’t made it all the way through Julian Burnside’s book Watching Brief yet, but in light of the recent boat tragedy at Christmas Island, I think that there must be changes to Australia’s policy on refugees arriving by boat. His book deals largely with the failings of the Howard government. A change in leadership doesn’t remove the problem, it just provides a new opportunity of dealing with it.

An interesting collection of laws

There lurks in the depths of our laws in Victoria a lovely piece of legislation called the Summary Offences Act 1966. It contains those classic types of laws which are reported in places like the ‘odd spot’ section of the local paper. Here are a few laws (which I urge you not to break) for your edification.

Section 4(d)

Any person who… in a public place:

(i) flies a kite; or

(ii) plays at a game

to the annoyance of any person… shall be guilty of an offence.

(perhaps we could report the entire Collingwood football team)

Section 8(c)

Anyone who drives a dog or goat harnessed or attached to a vehicle in or through a public place… shall be guilty of an offence.

Section 46

A person other than the owner shall not shoot kill wound or in any other way injure destroy ensnare catch or take a homing pigeon.

These provisions are perhaps a little outdated and not often used. The effect of the laws becomes interesting when we realise that parts of the same Act are still used frequently. Section 14 creates the offence of being drunk and disorderly in a public place, for example, and Section 49E prohibits the escape from lawful custody. Both these offences are relevant today.

Police discretion is inherently powerful in the criminal process. Unrepealed laws which repose unused in the depths of our legislation can be invoked to charge a person with an offence which society in general may not be aware of, and to which arguably, recent Parliaments have not turned their mind. Notice how the assessment of what is objectionable behaviour effectively moves from the legislature to the executive. Nobody is ever charged with playing a game to the annoyance of another person, but what if the enforcement agency for some reason wants to charge them with something? It might then be convenient to dust off an old law and bring the charge.

This can be good in some circumstances: a client of mine some time ago was charged with a serious offence, the client acknowledged the facts and wished to plead guilty, but the magistrate was of the view that the offence itself was not made out. The police then proceeded along exactly the lines I described above. A search was made through the Summary Offences Act for a convenient provision, and one was located. The charge was then brought, pleaded to, and sentence was passed. The reason for this story is simply to show how much power in the criminal process actually resides in areas other than Parliament- with lawyers, the police, magistrates and others.

I’m not drawing conclusions here, but raising questions. Just two brief examples from today of how this issue is important. The Israeli group Breaking the Silence released a new book on the Israeli Defence Force’s actions in Gaza; one of the claims is that the IDF failed to enforce laws against Israeli settlers (This is not an evaluation of those claims, but an illustration to make a point). Observe how the discretionary power which resides away from the legislature can be abused. When a law enforcement agency decides which laws to enforce, they become lawmakers. And again, the US government appears to be on a hunt for laws which might have been breached by Julian Assange. When a government decides which individuals to pursue and prosecute, that government is deciding what the people as a whole ought to decide.

Questions or comments? Please post them and I’ll give my thoughts. Contributing to the community’s understanding of law is part of what this blog is all about.

For the vision splendid-

The Outback Lawyer.

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3 Responses to Refugee policy, and police as lawmakers

  1. Jess says:

    Can this not work in favour of the defendant also? To dig up, dust off and use old laws to defend themselves from unfair litigation?

  2. Maybe. There is a fantastic courtroom scene in Good Will Hunting in which the main character’s criminal history is recounted. The judge refers to an occasion where Will apparently got out of a charge of grand theft automobile (Aust = theft of motor vehicle) by citing the ‘free property rights of horse and carriage’. So yes, it could be possible!

  3. Pingback: Ask a lawyer… but which one? | The Outback Lawyer

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