[Home] [Help] [Databases] [WorldLII] [Feedback]
	Alternative Law Journal

The police we need

Have new corporate police philosophies and practices rendered policing less, rather than more, responsive to the community at large?

Andrew Goldsmith

Andrew Goldsmith is Foundation Professor of Legal Studies at Flinders University.
I would like to thank Sally Burgess, law student, Flinders University for her research assistance in preparing this paper.

‘Policing by consent’ has been the hallmark of police legitimacy in liberal–democratic societies such as Australia for the best part of 200 years. The ‘consent’ in question is that of the ‘governed’, that is, the citizens of the nation–state. However, modern-day Australia is a very different place from 19th century English society, where this idea was developed. It is far enough removed from the Australia of the 1950s, in which there was far less social and cultural diversity than there is today. What does such a notion imply now for policing in our increasingly divided and heterogeneous society? What also does it mean in the light of recent changes to government, as concepts of privatisation and corporate management have come to exercise considerable influence over the delivery of public services, including policing? In such a time of rapid social change and flux, it becomes even more important to ask whether the police are, as the ‘consent’ idea implies, the servants of all, or whether, as ‘customers’ rather than ‘citizens’, the new corporate police philosophies and practices have rendered policing less, rather than more, responsive to the community at large.

It will not be possible to answer these questions fully here. In this analysis of some present practices and likely trends, I look at:

While not enabling an exhaustive review of current policing policies and practices or future trends, these topics do allow a reasonably broad and topical grasp of matters capturing media and public attention in this millennial epoch. In evaluating these areas, I shall argue, it is important to note the differential distribution of police services and any justifications for any such patterns, the impact of such services on different sectors of society, and the efficacy of accountability mechanisms in holding police responsible for their actions. Because policing tends not to impact evenly across society, and considerable power and discretion are involved in the execution of police duties, it is important to take note of emerging trends, and to draw attention to shortcomings of distribution, access, and responsiveness.

Law and order politics

Police are directly or indirectly implicated in most law and order campaigns within Australian politics. Reform proposals in relation to such issues as child abuse, drug consumption, organised crime, firearms, and women’s safety usually logically entail a new, and generally more interventionist role for the police in some or other sphere of personal or public life. Changing social definitions of public problems ensure a stream of sometimes conflicting public expectations for police involvement or action in particular issues. In the 1970s and early 1980s, for example, heightened consciousness of women’s vulnerability to violence in the home led to new domestic violence legislation which defined new tasks and responsibilities for police in this area.

Police powers

At the close of the 1990s, it is possible to identify a number of relatively recent law and order issues with either direct or indirect implications for police practice. Behind many of these changes are the concerns to tackle public fears of different kinds explicitly, and to reclaim public space for ordinary law-abiding citizens. New anti-stalking legislation responds to concerns not adequately covered by domestic violence laws, and requires new police strategies. National changes to firearms control legislation from 1996 will mean for many police the management and enforcement of stricter licensing regulations. Still in the weapons area, a host of legislative amendments in the past few years have focused on the problem of the carrying of offensive weapons in public places, in particular knives. In New South Wales, the Crimes Legislation (Police and Public Safety) Act 1998, extends the range of offences in relation to custody of knives in public places or schools, and empowers police to conduct electronic or frisk searches of people, their bags or other personal effects where they reasonably suspect the person has unlawful custody of a knife, firearm or prohibited weapon. Similar legislative provisions have emerged in other States.

The capacity of the police to undertake law enforcement continues to exercise the legislators’ attention, with the granting of concessions to police to undertake undercover operations in relation to serious criminal behaviour, and in New South Wales, the granting of power to police to detain a person after arrest for the purposes of investigation. Police powers to give reasonable directions to people in public places, and to request a person’s name and address, in certain circumstances, have formally strengthened the hands of police in a variety of order maintenance as well as law enforcement situations. Rising levels of fear about the state of our public environment continue to drive extended police powers in the area of graffiti, while crimes threatening to strike at the heart of our personal security and sense of identity, such as ‘home invasions’, garner more publicity and sterner legislative responses.

The zero-tolerance debate

Two recent key debates within law and order politics are zero-tolerance policing and drug law enforcement. I deal separately with the latter in the next section. ‘Zero-tolerance’ in relation to policing has emerged in Australia in the past couple of years, in response to the proselytising efforts of one or two American academics, a former New York police chief (William Bratton), and the enthusiastic reception for the idea by some Australian politicians and senior police officers. A precise definition is difficult, but the strategy is a street-level one, which focuses on common offences of disorder with a view to improving the ‘quality of life’ of ordinary citizens and in the expectation of reducing the incidence of serious crime.[1] Philosophically, it derives its essence (though not the descriptor) from the ‘Broken Windows’ thesis of James Q. Wilson and George Kelling in their 1982 article of that name in the Atlantic Monthly, a United States magazine. Many aspects of the thesis remain contentious, including crucially, whether it could rightfully take credit for a significant crime reduction in New York City; even more debatable is the applicability of the idea’s assumptions to, and its utility for, Australia. Australian homicide and other serious crime rates, generally speaking, have been no match for the likes of New York City, nor does Australia yet have the kinds of inner-city problems faced in many United States cities.

Yet the rhetoric has had considerable appeal, and especially for some politicians wanting to have an edge on law and order questions. The symbolism of the forces of law and order reasserting themselves, ‘taking charge’ of streets hitherto given over to various forms of incivility and criminality is an attractive one to the increasing ranks of middle-class and elderly people bunkered down in Australian cities and towns behind their high walls and gates in their alarm-fitted houses with deadlocked doors and windows. In this ‘society of strangers’ in which we now live, we look more and more for impersonal guarantees of our safety and reassurance for our galloping distrust of others around us.

The real danger is that the privileged ‘two-thirds’ of society will define what ‘quality of life’ means (and hence what actions police will take), while the disadvantaged ‘one third’ will bear the brunt of what will inevitably be pretty repressive policing.[2] Whose ‘quality of life’ is being enforced by moves in the direction of ‘zero-tolerance’ needs to be asked, as references to simplistic notions of ‘community’ cannot for long paper over fundamental differences of wealth and opportunity that divide us as citizens and as users of shared public space. Fear of strangers, of even our neighbours, threatens to divide us further as a society, making us less sympathetic to the needs of many on our doorstep, while ironically, using the Internet as our guide, we (the two-thirds, that is) draw ourselves more into virtual communities defined by our individual tastes and interests. Policing should not compound social divisions of this kind, but must work to find ways of being sensitive to the needs of different social groupings. Governments, corporations, and the rest of us must also assume our responsibility for these issues, and not simply let it become an issue for law and order fads such as ‘zero-tolerance’.

Senior police involvement in law and order politics

A general point about law and order politics now is the greater acceptance of police participation in debates of these kinds. The civil service model of senior police behaviour, whereby police commissioners and their deputies adopted a self-consciously independent and apolitical style, has been eclipsed in the past two decades by a more managerial-style police command, in which senior officers are trained, as well as appear more inclined, to participate in public debates on various policing issues. While the media-friendliness of the police, especially among the upper echelons, has become more obvious in recent years, it remains moot whether this change of communicative style has led to greater dialogue and understanding between police and public on many issues. Senior police now, at least, find it more difficult to ignore the claims by women, gays, indigenous people and other minority groups on matters central to policing, as their public pronouncements are starting to show.[3]

Policing drugs

Ironically, the last year or so has witnessed major statements by a number of Australian police commissioners in one way or another calling into question the current dominant policy approach to illicit drug use — reliance on the criminal law (albeit within the context of a national ‘harm-minimisation’ policy). Their immediate independence from party politics appears to have freed them in their public pronouncements from the limits imposed by the consensus-seeking preoccupations of many politicians of different colours on drug matters. The continued focus of many law enforcement resources on minor level drug users and dealers, the vast majority of cases in relation to cannabis, and the transparent failure of law enforcement tactics to impede the flow of illicit drugs into Australia or to inflict serious damage on domestic street-level drug markets, has called into question the effectiveness of current policies. What is visible at the close of the century is the forging of some new partnerships on the drug question, as police and health workers appear to find new points of agreement and common interest. Also evident are some fresh divisions within the political ranks, as some State leaders come to question the wisdom of ‘get tough’ approaches to drug enforcement espoused at the federal level, while other forms of harm minimisation go under-funded and needle-using addicts continue to use public toilets and alley ways for shooting galleries. By fostering self-examination among police and community debate on a pressing public problem, Australia’s police commissioners have displayed considerable courage, leadership and foresight.

As the New South Wales Wood Royal Commission findings showed us just two years ago, without a long-term amelioration of the illicit drug problem in Australia, we are faced with the prospect not just of continued drug use and related property crime and crimes of violence, but also of ongoing threats to the effectiveness and integrity of our police forces. While corrupt cops are not necessarily ‘bad’ cops in every respect, their attention to self-enrichment often inclines them towards some invidious exercises of discretion, and to the neglect of other (less profitable) police duties. However, what will continue to damage public respect for police is the revelation of such activities through the media. Police corruption damages public confidence in the police. While a number of Australian police bodies now have external review bodies to try and counter problems of police corruption (for example, NSW’s Police Integrity Commission), these bodies cannot neutralise all the potent corrupting effects on a police force of a drug regulatory policy strongly dependent on law enforcement and the widespread criminalisation of drug use. The connection between vice law enforcement (for example, illicit drugs) and police corruption is clearly established. Unless the external environment is changed, internal changes to police policies, training etc will be no match for the corrupting influences associated with illicit drugs.

Police law enforcement responses to persistent problems such as illicit drug trafficking now include the use of aggregated data to identify patterns of street dealer sales, thus enabling ‘crack-downs’ on particular ‘hot spots’. While such approaches suggest science-led responses by police to chronic problems and offer the promise of effective use of resources, it is by no means clear that these strategies are working. A recent study of street-level law enforcement in Sydney by Lisa Maher and David Dixon points to a range of undesirable, and presumably unanticipated, effects promoted by law enforcement strategies directed at disrupting street markets for drugs.[4] These include displacement of drug dealers into new areas, and the practice of unsafe methods of needle-use. While perhaps more focused and even ‘scientific’ in some senses than earlier law enforcement approaches to drug issues, these methods remain law enforcement approaches. What continues to be left out of the picture is the sensible deployment of police resources in relation to illicit drug issues, so that their activities focus on the major sources and purveyors of illicit drugs, rather than picking off minor players, often with serious addictions themselves. In relation to this second group, street-level law enforcement needs to take place in a way which actively minimises, rather than exacerbates, the harm done to drug users. As Adam Sutton and Steve James, among others, have pointed out, there continues to be a real need to embed attempts at harm minimisation into routine law enforcement practices.[5]

This may well require a cultural change in terms of police attitudes towards drug users, encouraged by force policies on the exercise of discretion in these cases. However, any such shift in police policies towards illicit drug users will have to be supported by adequate referral facilities in the public health domain. Policing efforts for the future cannot be expected to be serious about harm minimisation if the availability of addiction programs continues at present inadequate levels. In the absence of adequate public health facilities, law enforcement will likely remain the principal option. While it has the advantage of familiarity, and appeals to the ‘get tough on drugs’ constituency, it is a flawed option, proven by its historical record of failure. As stated earlier, what is heartening now in terms of the development of new policy in this area is that it appears senior police no longer wish themselves or their organisations to be judged by reference to this dismal record.

Changing organisational and policing styles

The corporate managerial shift

Australia’s police forces, once modelled on classic bureaucracies while exhibiting a number of overtly paramilitary characteristics, now commonly affect the style of the corporate service-provider organisation. From the professional police model of the first six or seven decades of the present century, we have witnessed a progression through problem-solving and community policing rhetoric to the market terminology now common enough in other areas of what previously were called public services. We are now seeing what Kappeler and Kraska have called a ‘corporatization of democratic ideals’, whereby police now provide a ‘product’ to their ‘customers’, ‘clients’ and ‘consumers’.[6] Australian police forces now have mission statements and vision statements, made available through their websites on the Internet, in addition to administrative guidelines, rule-books, disciplinary codes, legislation and the common law.

These statements derive their form from the private sector. Full of vague aspirations and modish self-concepts, these statements assert much in the abstract, but promise little that is concrete or recognisable by many police ‘clients’ — particularly those for whom police services are imposed rather than freely solicited. It is surely a mind-boggling exercise to try and fit this corporate rhetoric to the practical realities of much police work. When a police officer intervenes in a scuffle outside a nightclub between a bouncer and an evicted patron, who exactly is the ‘client’? Does the police ‘customer-service strategy’ apply to the bouncer (who called for police assistance), to the patron (who did not), or to both? What exactly does it mean in this context to pursue ‘customer satisfaction’? Whether or not these self-adopted organisational styles are of substantive significance in terms of positively structuring police–citizen and police– community relationships is an empirical question. Whether or not these corporate motifs and mottos imply more than lip-service to the customer ideal may conceivably be measured by reference to the ways in which the police deal with the community; firstly, positively, in the context of consultation and community policing, and secondly, negatively, in terms of how police handle criticism, and specifically complaints by members of the public against them.

Inadequate public participation

In contrast to most police forces in North America and the United Kingdom, Australian police forces have tended to operate at some distance from the communities they serve. Their centralised character, combined with the absence of formal consultation or governance mechanisms except at the Parliamentary level, stands in stark contrast to the municipal-level police forces in the United Kingdom, Canada, and the United States, where a combination of formal and informal devices have served to render the police more accessible, and hence accountable, to the public. While fidelity to law can often be undermined by too much community influence, correspondingly, too little responsiveness by police to community concerns can leave the community feeling alienated from the police, and hence present the police with a legitimacy problem. The trend to corporatisation of police management arguably has done nothing to reverse the historical pattern in Australia, despite the talk of ‘clients’ and ‘customer-service’. There is now considerable talk in State police forces about establishing consultative arrangements. While some efforts have been devoted to so-called community policing programs, critics have tended to dismiss these efforts as lacking substance, and especially in terms of how these policies impact positively on more marginal, and typically heavily policed groups such as young people and indigenous people. David Bayley once said in relation to community policing programs that it made little sense to hold a party and then for the host to do all the talking — in other words, real partnership requires genuine dialogue and commitment to understanding each other.[7]

Many of the current consultation programs effectively preclude marginal groups such as youth from participation — they do not even get invited to the party. The shift towards a police corporate identity does not obviously improve the prospects in this regard. The very conception of a citizen as ‘customer’ suggests a rather limited, indeed shallow, appreciation of individual identity and hence personal complexity. More than this, it obscures the ingredient of public trust that is integral to the police office, and which shopkeepers and tradespeople lack. This notion also implies that there are alternative suppliers of the services being offered. While many better off people and neighbourhoods now employ private security firms to supplement public police protection, this is not an option for everyone. As police arrest and custody statistics still show, many indigenous peoples continue to attract the unsought attention of Australian police ‘service-providers’. While some indigenous communities are arguably ‘over-serviced’ by the police, others have complained in recent years of ‘under-servicing’ by police, as rising levels of criminality in their midst go unacknowledged or under-acknowledged by police.[8] While the operation of market principles is fairly obvious in relation, say, to the supply of widgets, it is by no means clear how a ‘market’ for police services should (or could) operate in these circumstances.

Handling criticism and complaints

How well police deal with criticism of their services, and in particular, how effectively they handle public complaints, provides a crucial insight into their relationship with many sectors of the public. Until the mid-late 1980s, Australians had few alternatives but to complain to police internal investigation units. The record of these units in satisfying citizen concerns was pretty woeful. The emergence of oversight agencies (ombudsman offices, Criminal Justice Commission, police complaints authorities) has provided an alternative mechanism for people unhappy with police services. While these agencies have not met with universal acclaim, they continue to offer a useful alternative to police internal complaint channels. Extending their accessibility to indigenous people and members of other marginal groups remains a challenge, while there are moves across Australia at present to extend the practice of informal resolution of complaints as a cheaper, quicker, and more effective way of resolving complaints. On these grounds, one might predict an ongoing preference for informal methods of dealing with citizen grievances in the future. It will remain to be seen whether the police themselves can more openly and effectively accommodate grievances from members of the public, either as part of, or separate from, their ‘service-provider’ philosophies. While the majority (around 70%) of Australians appear reasonably satisfied with police services,[9] the police and we as a community should not ignore the concerns of those not currently part of that majority. Whether we adopt a rights-based (legal) or a consumer-dissatisfaction (market) analysis of these concerns, the adequacy and representativeness of present police practices arises as an ongoing question for the next century.

Private security and technology

Two other factors that seem likely to impact significantly on the organisation of policing services for the foreseeable future are the privatisation of policing, and the growing integration of information and other technologies with police services. The last decade has witnessed a number of attempts to ‘out-source’ the security needs of courts and other government agencies previously aided in this regard by public police. Cost-consciousness seems likely to continue to drive economy measures of this kind, with a consequent dependence on new quasi-police bodies for the provision of security services. In some municipalities of Australia, active consideration has been given to enlisting private security services to provide additional patrols in public streets and spaces. Gated communities now exist in Australia, and make use of private security firms. Questions of competence and accountability will continue to arise as security becomes a commodity disarticulated more and more from the sight and responsibility of the central state.

Police have always adapted to the availability of new technologies. The motor car, and the portable radio, are two examples from earlier this century. The phenomenal pace of technological innovation now, however, means a welter of new, and constantly changing, possibilities. New methods for restraining resisting arrestees became evident to an international audience as the police beating of Rodney King was beamed into millions of homes across the globe. Surveillance cameras and other watching and listening devices have proliferated as they have become more miniaturised and hence readily concealable. The spread of networked computers has placed new information resources at the disposal of patrol officers, while police data bank capacities have facilitated their emergence as a primary source of information and intelligence for the private sector.[10]

As with most other forms of technology, much depends on how they are used, rather than the intrinsic qualities of the technology itself. The unravelling of police corruption in New South Wales undoubtedly was facilitated enormously by the availability and use of the miniature video camera recorder. The collecting and storing of information by police nonetheless poses enormous difficulties in terms of the transparency of what is collected and accountability for its means of collection, storage and use. While these technology issues are not those of the police alone, their strategic location and power makes abuses in this area a potentially enormous problem.

Global trends and challenges

The primacy of State police forces in Australian law enforcement matters has already been called into question in the past decade or so by the emergence of cross-border criminal activities on an unprecedented scale, and the use of technology and other sophisticated expertise to develop new forms of criminal activity in the white-collar area. To date, our responses have included the establishment of the National Crime Authority, and the delegation of some law enforcement responsibilities to agencies such as the Australian Securities and Investments Commission. While the precise organisational forms may alter over time, so that existing police forces may adapt in order to take charge of these new areas of law enforcement, the need for new capacities to counter novel criminal methods will continue. Without continuing adaptability by law enforcement agencies to overcome the limitations of the federal/State model of division of police responsibilities, the relevance of current police bodies to these new challenges will be in doubt.

We have seen in the past decade or so the growing significance of the Australian Federal Police (AFP) in dealing with criminal activities entering our country from outside. In response to new patterns of criminal enterprise, less geographically-based, more intelligence-led police work is beginning to play a more obvious role in law enforcement.[11] The AFP’s federal and overseas liaison responsibilities enable them to tackle issues in ways denied to more local law enforcement bodies. The importation and trafficking of illicit drugs has been an important focus of these law enforcement efforts to date, in conjunction with Customs, the NCA, State police, and police intelligence bodies. However, the illegal arms trade and people-smuggling promise to be new law enforcement challenges for Australia in the 21st century. The recent call for the establishment of a US-style Coast Guard service points to the difficulties traditional policing bodies face in performing their duties off-shore. Improving off-shore advance intelligence will remain important; the recent expansion of the AFP’s overseas liaison network in Asia is an example of the growing recognition that policing is no longer simply a domestic, geographically defined activity. Pressures to adopt common law enforcement priorities and strategies in such areas as illicit drugs and money-laundering promise to lead to greater exchange of information, training and resources, and even to the harmonisation of criminal laws across national, not just State, borders.[12]

Conclusion

Comprehensiveness has been impossible in a review and commentary of this kind. The focus on a limited number of themes has attempted instead to anticipate many of the major areas of development, contestation, and change likely in policing over the coming decade or so. Predicting further ahead would be foolhardy in the extreme. The issues that the police face jointly with the public at large (crime prevention, order maintenance, investigation of crime etc) remain in most instances matters of choice about the kind of society we want to live in in the future. The significance of choice, and therefore the importance of participation, remains as vital as ever, if not more so now.

Police roles and functions will continue to adapt and change, as society changes and adapts. Public confidence in the police will depend not on some objective measures of efficiency or effectiveness but on the realistic nature of the goals and objectives set for the police by the public as well as by the police themselves. We cannot displace responsibility for all our social ills onto the police; social inequalities will not disappear simply because the police adopt a ‘quality of life’ enforcement program. However, constructive police responsiveness is a crucial ingredient. Police adaptation must respond to the range of different interests within society, not just some of them. We must avoid the allocation of police services according to the ‘two-thirds society’ model mentioned earlier. Policing will never be a ‘science’ standing above discussion and negotiation. As society increasingly fragments into new identities and sub-groups, meaningful channels of communication will more than ever need to be established and maintained. The current thrust to corporatise police services, in part through the re-invention of the citizen as customer or client, must not neglect issues of public trust or community differences if the police are to act efficiently, effectively, or legitimately.

References

[1] I have drawn on a paper by D. Dixon for the purposes of this part of the discussion: ‘Beyond Zero Tolerance’, given at the Australian Institute of Criminology’s conference ‘Mapping the Boundaries of Australia’s Criminal Justice System’, Canberra, 22-23 March 1999.
[2] While originally based on work by R. Dahrendorf, I have taken the ‘two-thirds/one thirds’ notion of society from the recent work by Hogg, R. and Brown, D., Rethinking Law and Order, Pluto Press, 1998, especially pp.132-4, 204-10.
[3] A recently reported speech by High Court Justice Michael Kirby has added impetus to senior police participation in public debates. See Lane, B., ‘Let police chiefs tell us how it is, Kirby urges’, Weekend Australian, 22-23 May 1999, p.13. Some recent examples of speeches of this kind by senior police officers are mentioned in this article.
[4] ‘Policing and Public Health: Law Enforcement and Harm Minimization in a Street-Level Drug Market’, British Journal of Criminology, forthcoming 1999.
[5] James, S. and Sutton, A., ‘Joining the War Against Drugs? Assessing Law Enforcement Approaches to Illicit Drug Control’ in D. Chappell and P. Wilson (eds), Australian Policing: Contemporary Issues, Butterworths, 1996, p.161. Also see Sutton and James’ recent conference paper, ‘Developments in Australian Drug Law Enforcement: Taking Stock’, unpublished paper, prepared for the Australasian Conference on Drug Strategy, Adelaide, 27-29 April 1999.
[6] Kappeler, V. and Kraska, P., ‘A Textual Critique of Community Policing: Police Adaption to Modernity’, (1998) 21 Policing: An International Journal of Police Strategies and Management 293 at 294-5.
[7] Bayley, D., ‘Community Policing in Australia’ in D. Chappell and P. Wilson (eds), above, ref.5, p.75.
[8] Lincoln, R. and Wilson, P., ‘Aboriginal Offending: Patterns and Causes’ in D. Chappell and P. Wilson (eds), The Australian Criminal Justice System: The Mid-1990s, Butterworths, 1994, p.61, especially 70-73.
[9] National Survey of Community Satisfaction with Police Services 1996, reported in Year Book Australia 1998, p.346.
[10] Ericson, R. and Haggerty, K., Policing the Risk Society, Clarendon Press, 1997.
[11] By ‘intelligence-led policing’ I am referring to law enforcement strategies based on the collection and assessment of data, often in large amounts, from a wide range of sources. This approach enables police to be more anticipatory in style, based on predictions of future events and their location, derived from the analysis and assessment undertaken. This is in contrast to the individual incident-driven reactive inquiry characteristic of traditional crime investigation. Intelligence-led policing can be used in domestic as much as transnational or international contexts. See further, Gibbons, S., ‘Intelligence-led Policing: ‘The Key to Survival’, (1999) (11) Jane’s International Police Review 30-31.
[12] See Nadelmann, E., ‘The Americanization of Global Law Enforcement: The Diffusion of American Tactics and Personnel’ in W.F. McDonald (ed), Crime and Law Enforcement in the Global Village, Anderson Publishing, Cincinnati OH, 1997.