Freedom going once, going twice, gone in a trice

THE law and order auction that is going on across the country is getting out of hand. Everyone wants to be able to walk the streets safely: that goes almost without saying. But how far can societies reach for this goal before the laws designed to curtail anti-social activities start to impinge on the rights of free citizens who have done nothing wrong?

The most startling example of a piece of legislation that impinges on the rights of free citizens was passed by the West Australian Legislative Assembly this week. Next Tuesday, debate starts in the government-controlled Legislative Council. If the bill is passed into law, as is expected, police will have the powers to stop and search citizens at will, with no requirement of "reasonable suspicion" of wrongdoing. Civil libertarians have described it as the stuff of a police state, and they are not far wrong. Needing reasonable suspicion before frisking someone has been a bedrock of policing for centuries. WA Police Minister Rob Johnson doesn't seem to understand the significance of removing this provision. It is what stands between law enforcement officers serving the public and arbitrary policing.

The new WA legislation -- the Criminal Investigation Amendment Bill 2009 -- is poorly drafted and doesn't contain protections of citizens' rights under the law that have become a bedrock of modern Western liberal democracies.

Even the most basic understanding of political philosophy teaches the importance of the preservation of liberty. Liberals in particular are supposed to jealously guard against the dangers of an encroaching state.

Johnson, the architect of these draconian laws, should go back and read 18th and 19th-century philosophers Thomas Paine and John Stuart Mill.

The difficulty with giving WA police unlimited stop and search powers is that it not only encourages civil disobedience because the law is draconian, but also removes an important check on officers that helps to guide their behaviour. While a majority of police are no doubt well intentioned, those that are not so pure now have the power to let their worst instincts prevail.

As the 19th-century writer Thomas Aldrich noted: "The possession of unlimited power will make a despot of almost any man." Arguments about the importance of civil liberties are open to the criticism that they are unrealistic in a modern society that requires powers for law enforcement officers trying to curb violence. And because tough law and order policies have mass appeal, modern politicians, driven by opinion polls instead of good public policy development, are engaged in a race to the bottom to prove who is the toughest on crime.

But ill-considered laws eroding citizens' rights can be seriously counterproductive. As a result we begin to lose sight of liberty's meaning in other policy areas. In the post-communist age, Western citizens have become too relaxed about erosions of their rights. We need to remember threats to democratic rights and freedoms come from within as frequently as they come from external forces.

The Cold War was an almost 50-year battle over the most appropriate form of government to live under. Having won that war without needing to erode citizen rights (it was the defence of those rights the war was all about), the Western world is now in an age of terrorism, and to combat this more elusive enemy, citizens have complacently allowed governments to curtail freedoms on the promise of winning the fight.

The WA policing powers being debated next week have nothing to do with terrorism, of course. But if we weren't in the age of terrorism, I very much doubt the public would stomach the bill about to be passed into law in the west, allowing police to randomly stop and search anyone going about their business. The most disturbing aspect of the new legislation is that WA already has mandatory jail for assaulting police. So if anyone resists a frisk after the new law takes effect, they could go to jail.

The WA Law Society has strongly criticised the new legislation. Its president, Dudley Stow, says: "When you are Aboriginal or Torres Strait Islander or from Afghanistan, they will stop you. If you are attractive and wear a minikirt, they won't."

I wouldn't be so sure that the application of this new law would pose a danger only to racial or ethnic minorities (not that if that's all it did then such laws would be acceptable). Young women, just as much as any other citizen, should be alarmed by the new provisions. They allow for a woman wearing a miniskirt, as Stow describes, to be stopped for no reason, frisked, and have her handbag inspected. It would be disempowering.

Once WA takes the bold step of legislating for such powers you can bet other states will soon follow suit -- Victoria has already indicated it is considering similar powers -- meaning that soon enough right across the country we are going to be left with no-go zones for citizens who would rather not be put in a situation where the police have more than just protective duties.

Modern societies have become adept at slowly but surely eroding the civil rights of citizens in the name of protecting them. The evidence overseas suggests doing so doesn't even create the positive outcomes promised that might otherwise go hand in hand with the downsides.

In Britain, similar laws to those being debated in WA were passed to deal with terrorism. But Britain's terror law watchdog, Lord Carlile QC, found them to be "poor and unnecessary". In 2008, British police used the powers on 170,000 occasions without one conviction resulting, but with many complaints registered. That's what happens when people are stopped without reasonable suspicion: citizens lose confidence in the state and the state doesn't improve its policing because it isn't targeted.

The law and order auction from state to state is getting out of hand. WA is the worst offender.