Flat White

WA Police’s abuse of Covid app data destroys the rule of law

18 June 2021

3:00 PM

18 June 2021

3:00 PM

John Locke, seen by many as the father of our Western Liberal culture, once said “the end of law is not to abolish or restrain, but to preserve and enlarge freedom.”  

It is this principle that allows us freedom to drive on the roads safely, knowing that those that drive in an unsafe manner will be penalised by laws. It is this principle that allows us to transact business and earn and spend money, in the knowledge that our resources are protected from unscrupulous individuals by laws. 

Lawmaking is of course the province of our elected parliamentarians. 

The premier – the ultimate executive authority at a state level – appoints a police minister, the police minister appoints a police commissioner, and the “commish” runs the police. This includes policies, procedures, enforcement activities and so on. The police are the right arm of the law – the muscle on the bones that enforces the laws that have been enacted. 

Civilisation. At least that’s the theory. 

One problem with this process is in some ways inevitable. A law is enacted to uphold a certain principle (the spirit of the law) and the ink on the paper are the policies and parameters that achieve this end (the letter of the law). Unfortunately, from time to time, the letter of the law does not consider all the circumstances and permutations in which the law may operate, and it fails in the noble task of upholding the spirit of the law. 

That is, at times gaps in the law enable someone to breach the spirit of the law without breaching the letter of the law. This is generally the domain of dodgy businessmen, lawyers or accountants – people who find gaps (loopholes) in, for example, taxation law, so that multibillion-dollar companies can avoid paying the taxes that the law was designed to extract. Kerry Packer quite famously employed the bloke that wrote the Australian taxation law to achieve this end. 

But it’s not just taxation law – it’s companies that make products that fall apart the day after the warranty expires. Or pharmaceutical companies that make a mockery of patent law with the process of “evergreening.” Or the “mistake of fact” loophole that allowed rapists to walk free in Queensland. 

We kind of expect those things, although we don’t like them. But one thing that no one expected was to find out that the Police themselves have been exploiting a loophole in the law to achieve their ends, by accessing information from the SafeWA App to ostensibly curtail criminal activity. In justifying this behaviour, the Commissioner trotted out the tired old “the ends justifies the means” meme. The circumstances, he said, were “exceptional.” It was “for the community.” Of course the same arguments are used by black ops operatives to justify the torture of prisoners. 

But it’s actually worse than that. The Commissioner knows that the Premier doesn’t want him to do this. Why? Because he told him. And what was his response? Essentially, he flipped him the metaphorical bird and said he’d do it anyway. The highest authority in the state – the Premier – asks him to stop doing something and he flat out refuses.  

What does this demonstrate other than the Commissioner’s utter disdain for authority? For the first time in Australia (and probably the world) a law has to be passed to stop the police, not criminals, from doing something.   

Think about that for a moment. A parliament has to enact laws to stop those whose job it is to enforce the law from doing something clearly against the spirit of the law. 

What are the implications of this? There are two.

Firstly, it exposes the Police Commissioner as a hypocrite. On two occasions in the past few months the state was placed into lockdown at a moment’s notice, with restrictions on where we could go and when, and of course those awful facemasks. These lockdowns were not an act of parliament. That is, they were simply an edict issued by the Premier. In terms of compliance, therefore, there was no specific law that could be enforced. The only thing the Police had to deal with non-compliance was “failing to obey a police directive.” 

So the Commissioner expects the populace to obey a Police directive, but he doesn’t feel any compulsion to obey a directive from the highest authority in the state. 

Secondly, it shows that the police have no regard for the spirit of the law. We always suspected this, but now we know. Speed limits, for example, are in place to stop accidents. It should come as no surprise then when the police disregard speed enforcement in danger areas, and rather focus on areas such as freeway on ramps where they are likely to find drivers breaching the letter, but not the spirit, of the law.

If the Commissioner ever wonders why people no longer have the respect for the Police that they used to have, all he needs to do is look in the mirror to find out why. 

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