Mr Julian Murphy1
1University Of Melbourne, Melbourne, Australia
It is now widely accepted that police have considerable discretion in applying the law to the facts of any particular civilian interaction. There have long been arguments about whether to prefer policing models that expand or constrain individual officer discretion. What is not contestable, however, is that officers should be assisted in exercising their discretion by guidelines designed to express the standards expected of police officers over and above the minimum requirements of generally applicable laws. Such guidelines currently exist in Australia on as varied topics as the use of force during arrest to mobile phone use while on duty. Yet, inexplicably, Australia permits police guidelines to be written, promulgated, and applied behind closed doors without public comment, feedback, reporting or discussion. This paper draws on scholarship and empirical studies in the areas of privacy and policing to argue that police guidelines should be shaped by the communities affected by them. Support for this argument is derived from the United States’ experience, where dissatisfied minority communities have begun to have their voice heard in the formulation of police guidelines, especially in the sensitive fields of stop-and-frisk, body-worn camera recording and data collection. Ultimately, this paper suggests that Australia is long overdue for what U.S. academics have described as a new age of “democratic policing”.
Julian R Murphy is a PhD student at the University of Melbourne, School of Law. Prior to coming to the Melbourne Law School, Julian obtained a LLM from Columbia University, New York. Julian’s writing on policing has appeared in the Indigenous Law Bulletin, the Columbia Journal of Race & Law, the Washington & Lee Law Review Online and in popular news media, including the Sydney Morning Herald and Overland. In addition to his academic work, Julian is a criminal defence lawyer at the North Australian Aboriginal Justice Agency, where he is the Criminal Appeals Manager.