Monday, 14 August 2017

Terrorism and Victoria Police

Title:

Terrorism and Victoria Police

Paper:

The purpose of this paper is to explore how the crime of terrorism has affected Victoria Police. Despite popular belief, Australia is not immune from acts of terrorism with the first recorded incident being the attempted assassination of the Duke of Edinburgh by an Irish nationalist in 1868 (Baker, 2006, p 63).  However the 1978 bombing of the Sydney Hilton during the Commonwealth Heads of Government meeting is seen by many and the birth of terrorism in modern Australia. This would see the establishment of the current national security structure with the establishment of the Australian Federal Police (AFP) and a legislative basis for the Australian Security and Intelligence Organisation (ASIO) (Hocking, 1986, p 21). Moreover, the Australian Government has recognised that the national security environment radically changed from 1999 with the culmination of the East Timor deployments, the terrorist attacks of 11 September 2001 (9/11) and subsequent wars (PM&C, 2013, p 9). The paper will begin with a short exploration of the motivations of terrorism and an outline of Victoria Police. The two poles of hard and soft responses to terrorism will be outlined with reference to Homeland Security Policing (HSP) and Community Oriented Policing (COP) respectively. The paper with then shift to the context of counter-terrorism arrangements in Victoria and the challenges faced by Victoria Police.

            It is important first to look at what terrorism is, however, according to Palmer and Whelan (2006, p 451) attempting to find a definition can be problematic and it is more appropriate to look at the motives of terrorists. Terrorists according to Cary (2009, p 13) are “. . . determent to impose their will upon others. Unlike nation states . . . terrorists resort to violence as the first and final solution.” There is significant academic literature that describes the motivations of terrorism. In a survey of academic writings, Alex Schmid and Albert Jongman found the following key elements:

  1. use of violence;
  2. symbolic choices of victim;
  3. performance by an organisation;
  4. advanced planning;
  5. operational seriality;
  6. an absence of moral restraint
  7. political motivation; and
  8. the use of fear and anxiety. (Weimann, 2006, p 21)

Susan Pinto and Grant Wardlaw (1989, p 4) argued that terrorism has two broad goals: (i) to induce widespread fear in the population; and (ii) provoke the government to overreact and thereby undermine their legitimacy. Clive Williams (2004, p 7) defines terrorism as “. . . politically . . . motivated violence, directed generally against non-combatants, intended to shock and terrify, to achieve strategic outcomes.” Strategic outcomes are usually to polarise the population, undermine the government, or cause government forces to react violently (p 9). Whilst Louise Richardson (2006, p 105) summed up the motives as to achieve revenge, renown and reaction. John Gearson (2002, p 8) argues that the essence of terrorism is the utilisation of fear, illustrating this point with a quote from the Chinese military strategist Sun Tzu: “To fight and conquer in all your battles is not the supreme excellence; supreme excellence consists in breaking the enemy’s resistance without fighting.” The ability to cause fear is an important element of terrorism as fear and panic will undermine public resolve or cause an overreaction that undermines legitimacy. As Eliza Manningham-Butler (2003 p 3) the head of British intelligence agency MI5 argues, “[n]ormal life is what the terrorist seeks to destroy and creating fear is part of their agenda.”

            Victoria Police was formed in 1853 when the then colonial government of  Victoria transferred control of policing from local magistrates and the new central body (McCulloch, 1999, p 4). As a consequence, unlike their counterparts in the United States (U.S.) and the United Kingdom (U.K.), Victoria would have one strong policing agency with uncontested jurisdiction over the state (Palmer and Whelan, 2006, p 82). The exception to this being the Transit Patrol Department of Victorian Railways from 1878 to 1992  (Taylor, “Highlights of Transit Policing History”), the Special Constabulary Force established to maintain order during the 1923 Victoria Police strike (Brown and Haldane,1998, p 136), and AFP patrols of Melbourne Airport and diplomatic missions (NCTC, 2012, pp 12-13). Although Victoria Police was based upon the Metropolitan Police it adopted a two pillar approach: a Peelian model in the city and a colonial model in the country (McCulloch, 1999, p 4). This was significant as the colonial model is more militaristic and confronting to the population which led to a public backlash, unrest and a lack of legitimacy: the two most notable cases being the 1854 Eureka Stockade and Republic of North East Victoria associated with the Kelly Gang in the late 1870s (Mawby, 2003, pp 23-24 and Baker, 2006, pp 53-9). It was observed by Chief Commissioner Standish that:

The Gang were secure of the good will of a great proportion of the inhabitants of these regions … Indeed, the outlaws are considered heroes by a large proportion of the population of the North Eastern district who … look upon the police as their natural enemies. (McCulloch, 1999, p 7)

 

The result of a Royal Commission into the Kelly affair would see the Peelian policing style adopted in rural areas. These recommendations were echoed by Chief Commissioner Nixon over 100 years later: “… we should avoid the use of terms such as ‘the war on terror’ to characterise and frame our response to the terrorist threat and instead we should focus on winning the hearts and minds of alienated communities…”(Cornelius, 2008, p 30).

            In the wake of what Firth (2005, p 6) argues as the first attack on continental U.S. since 1912,  9/11 would see what Ortiz, Hedricks and Sugle (2007, p 92) describe as a “… reorganization in policing priorities and a shift to what has been termed homeland security policing.” HSP is described has having four goals by Jones and Supinski (2010, p 2): (i) preventing and disrupting terrorist attacks; (ii) protecting people, critical infrastructure and key resources; (iii) responding to and recovering from incidents; and (iv) strengthen the foundations of national security. The main focus of this approach is the pursuit of individuals engaged in terrorist activities (Innes and Thiel, 2012, p 564). Quickly following 9/11, a legislative framework was enacted in the U.S. by the federal government under the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act 2001 (U.S.)(Patriot Act).

The Patriot Act would see the introduction of a regime of covert surveillance along the lines of the colonial model of policing: a process which Jones and Supinski (2010, p 8)have described as clearly extraconstitutional. This is a trade-off of what Kenneth Hailey of the St. Louis Metropolitan Police Department describes as a “… shift from the ‘individual rights’ era to the ‘greater good’ era…”(Stephens, 2005, p 55). However, Haynes and Giblins (2014, p 46) argue that the focus of HSP may be a response to a fear of victimisation rather than a justifiable risk. If one reflects upon the motives of terrorism which involve causing fear and over reaction then the adoption of a HSP model may actually assist in achieving those aims. Chappell and Gibson (2009, p 329) support this proposition in that “… when police resort to the more traditional tactics involving covert operations and intelligence gathering, the terrorists’ mission to disrupt democratic principles has been accomplished.”

            On the other end of Innes and Thiel’s (2012, p 558) counter-terrorism continuum is COP. COP emerged in the U.S. during the 1970s and 80s in response to falling legitimacy of policing agencies (Pickering, McCulloch, and Wright-Neville, 2008, p 92). Punch, van der Vijver and Zoomer (2002, p 62) argue that this was a return to the principles of 1829 Robert Peel. COP evolved as a broad and highly flexible concept Pickering, McCulloh and Wright-Neville (2008, p 92, 97)argue, that utilised soft power initiatives; furthermore, traditionally COP and counter-terrorism have been polls apart. Nevertheless, it is the openness and encouragement to share information with police Roberts, Roberts and Liedka (2012, p 726) outline which makes COP an appealing approach to counter-terrorism. This potential of COP was identified as an important element to counter–terrorism by Robert Friedmann a member of the International Association of Chiefs of Police (IACP): “If someone in the community has information, you want them to provide that intelligence to you, but in order to do that you have to have developed good relationships in the community…” (Page, 2011, p 22).

This can be seen in the U.K. response following falling legitimacy when they undertook a HSP approach following 7/7: COP was embraced with the establishment of Muslim Contact Unit (MCU) within the traditionally ‘hard policing’ approach of Special Branch (Innes and Thiel, 2012, p 561). The MCU undertook overt ‘soft policing’ strategies to cultivate contacts with those who held radical-Islamic views but were not advocating violence: the usefulness of these contacts became clear in the deradicalisation of individuals who were at risk of gravitating towards extremist violence (O’Keefe, 2002, p 561). This was evident when the then U.K. Home Secretary David Blunkett (2004, p 1) announced an increase in police and Community Support Officers. Most striking in the U.S. was the response of the Dearborn Police Department in the wake of 9/11: they conducted community outreach rather than cooperate with Department of Justice (DoJ) initiatives to interview temporary visa holders from countries with a connection to al-Qaeda. This improved community cohesion and would see the department being recognised in a Human Rights Watch report as the only local agency in the U.S. to respond appropriately to the potential of hate crimes following 9/11 (Jones and Supinski, 2010, p 5 and Page, 2011, p 19).

            This paper will now move focus and examine these developments through the prism of Victoria Police; however, first it is important to understand the context in which Victoria Police operate. Australia is a federation in which the authority of the Commonwealth is expressed in the constitution and the remainder is vested in the states (Blackshield and Williams, 1998, p 218).  The Commonwealth has full legislative power over the territories which are a creature of its own legislation. Should there be an inconstancy between state and Commonwealth legislation then under s109 of the Constitution the latter would prevail (Omar, 1998, p 207). In Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 446 Issacs J. outlined what became known as the ‘cover the field test’ in which an inconsistency occurs when both state and Commonwealth legislation purport to cover the same field (Blackshield and Williams,1998, p 302).

            Australia has embraced globalisation and the linkages between countries that have been created (Firth, 2005, p 10).  The Australian Government has identified the opening to the world as part of globalisation brings both opportunities and risks (PM&C, 2013, p vi). One of those risks is terrorism in one part of the world can bring mayhem to another (Stephens, 2005, p 52). The first response of the Australian Government to 9/11 was to activate the Australia New Zealand United States defence alliance (ANZUS) – the first time the treaty had been activated – to consult and provide military assistance to the U.S. (Howard, 2013, p 452). A cooperative approach was taken with the states and territories in a leaders meeting held in April 2002 where the states agreed to vest power in the Commonwealth to enact laws regarding counter-terrorism (Duckworth, 2008, p 34). However, this was not entirely necessary as the Commonwealth could have implemented United Nations Security Council Resolution 1374 through the use of the controversial External Affairs Power to override the states. Pickering, McCulloch and Wright-Neville (2008, p 97) have characterised the response that followed as hallmarked by legislation. A regime of tough HSP style offences and powers were introduced in which ideology became part of the elements of a criminal offence and Australia went from having no specific counter-terrorism legislation (except in the Northern Territory) to a vast Commonwealth regime (McCulloch, 2008, p 23). This regime included not only direct offences of terrorism but also support of terrorism, withholding information, preventative detention and other powers mirroring that of the Patriot Act (McCulloch, 2003, p 284).

The Australian Government outlined its national security priorities as: “… protecting and strengthening our sovereignty; ensuring a safe and resilient population; securing our assets, infrastructure and institutions; and promoting a favourable international environment…”(AGD, 2013, p 5). Despite operating under a Commonwealth regime, responsibilities are shared between the Commonwealth and states and territories. As outlined in the National Counter-Terrorism Plan (NCTP) the Commonwealth is responsible for strategic elements of policy, legislation, intelligence coordination, and the national alert system (NCTC, 2012, pp 6-7). The states and territories “… have primary responsibility for the operational  response to a terrorist incident in their jurisdiction[.]” The Commonwealth, however, will take control once it declares – in consultation with the effected jurisdiction – a national terrorist situation. The only precedence of the operational of these arrangements is the 2014 Martin Place siege where New South Wales authorities maintained control with support from the Commonwealth (Edwards, 2014).

Along with their counterparts around Australia, Victoria Police established a para-military unit in the 1970s known as the Special Operations Group (SOG) along with embracing the principles of COP (Saunders, 1982, p 105 and McCulloch,  2008, p 26). In their survey of Victoria Police members, Pickering, McCulloch and Wright-Neville  (2008, p 100)outlined a perception that  “A significant majority of police considered that the changed security environment has had a profound impact on the daily work of Victoria Police members. …primarily in relation to limited resources and their understanding of the nature of the terrorist threat.” Chief Commissioner Nixon (2008, p 3) outlined the Victoria Police response to counter-terrorism must “… engage with the community, show respect, compassion, understanding of religious and cultural differences,  practice diplomacy, and utilise … legislation[.]”The organisation has adopted a counter-terrorism approach which is very much anchored to COP and sees opportunities in building relationships with the community and that those relationships are as important to counter-terrorism as increased legislation or advanced hardware (Duckworth, 2008, p 33). Promoting national security is very much in their eyes linked to neighbourhood security whilst pursuing the long term goal of reducing support for the terrorist cause (Crelinsten, 2008, p 25 and Pickering, McCulloch, and Wright-Neville, 2008, p 97). Victoria Police has split its resources between community engagement, protection of critical infrastructure and participating in the AFP-led Joint Counter-Terrorism Team in Melbourne. The approach by Victoria Police mirrors the all-hazard approach taken by the Victorian government where terrorism is treated as a subset of emergency management with the only differencing being that Victoria Police remains the primary response agency (EMV, 2014, p 1-6). Furthermore, the government and Victoria Police have partnered with Monash University to promote terrorism research (Duckworth, 2008, p38).

            It should become obvious that there would be some tension between the approach taken by Victoria Police and that of Commonwealth agencies. ASIO and AFP take a different approach to their functions in line with the HSP model (Pickering, McCulloch, and Wright-Neville, 2008, p 101). Jude McCulloch (2008, p 23) of Monash University identified the approach of these organisations may have an impact on community cohesion and community policing. This has been echoed by members of specialist units of Victoria Police who see the counter-productivity of such an approach to counter-terrorism (Pickering, McCulloch, and Wright-Neville, 2008, p 101). More-or-less the AFP and ASIO when conducting counter-terrorism activities in Victoria are operating on the ‘turf’ of Victoria Police who have much to lose in terms of community intergradation and support built up over may years of COP. Community leaders have expressed these fears that they are “… compelled to deal with unfamiliar agencies [ASIO and AFP] who have little respect for their culture and feeling and who seem to go about their business assuming that ‘all Muslims are guilty’...” (Pickering, McCulloch, and Wright-Neville, 2008, p 105). This risk has been identified by Victoria Police executive (Wright-Neville, 2008, p 6).

            Outside agencies are not the only challenge faced by Victoria Police in the counter-terrorism domain:  significant is information sharing. As identified by the Final Report on the National Commission on Terrorist Attacks upon the United States (NCTAUS, 2004, p 416) information sharing is an essential element of counter-terrorism: “The biggest impediment to all-source  analysis—to a greater likelihood of connecting the dots – is human or system resistance to sharing information.” Nothing could be further from the truth when examining Victoria Police information technology system. As outlined in then Chief Commissioner Ken Lay’s blue paper “Victoria Police’s information technology capability does not adequately support the imperative to share information with other government agencies...” (Victoria Police, 2014, p 21). The Law Enforcement Assistance Program (LEAP) records management system does not give operational members access to intelligence and sharing with other agencies is achieved by a manual work-a-round.(p 15)

            Another concerning issue is the lack of understanding or faith in the legislative framework which counter-terrorism investigators operate. As previously outlined by virtue of s109 of the Constitution a Commonwealth offence overrides a state offence on the same subject matter. However, Victoria Police members have expressed unease with regards to the Commonwealth regime stating that they prefer the Crimes Act 1958 (Vic) powers and offences which they are more accustomed. One respondent to Pickering, McCulloch and Wright-Neville’s (2008, p 98)survey stated:

… if there was a bombing at the American consulate, and two people were killed in the street and we had some offenders, we’d be charging them with murder. Cause we know that we are comfortable with the processes, technically, technically the correct offence is, assuming that we’re able to establish that it’s politically motivated, would be terrorism under 101 which would mean, it’s not that we can’t lay the charges, because we are Commonwealth police officers, for the purposes of the act. We could do it, but we wouldn’t be comfortable with the time limits, with the different things you’ve got to do, you collect evidence under a different set of rules.

 

The consequence could mean that the charge is deemed invalid due to the existence of a more specific Commonwealth offence and the alleged terrorist could go free as a subsequent prosecution under the Commonwealth offence would be blocked by the principle of double-jeopardy (Bronitt and Mc Sherry, 2005, p 81).

            One of the important elements of the counter-terrorism regime established in Victoria has been that although Victoria Police has been at the forefront it has not been the sole participant: a network of interdependent relationships has been developed. Palmer and Whelan (2006, p 457)define network policing as  “… a set of institutional, organizational, communal or individual agents or nodes … that are interconnected in order to authorize and/or provide security to the benefit of internal or external stakeholder.” This has been echoed by the Commonwealth which sees its “…ability to prevent, and disrupt terrorist attacks within Australia relies on continued and cooperative relationships between intelligence, security and law enforcement agencies and with international partners, businesses and communities…”(AGD, 2013, p 22). At the national level Victoria Police networks with its counterparts in other jurisdictions and Commonwealth agencies through the National Counter Terrorism Committee (NCTC, 2012, p 7).

            These networks are not entirely new and some have been in existence for many years as part of Victoria Police commitment to COP. However, in the wake of 9/11 such networks have been transformed. For instance, building upon already established community networks Victoria Police regularly engages on counter-terrorism with the Multi-faith Forum and peak ethnic and cultural representatives (Cornelius, 2008, p 32). As outlined in the NCTP Victoria Police assists organisers of major events to ensure security. For instance, the Lord Mayor of Melbourne Robert Doyle (personal communications, 13 January 2015) commented:  “We work closely with our emergency services to plan, coordinate and monitor safety in our city, particularly when we host major events, such as New Year’s Eve, which attracted more than 450,000 people to the CBD.” Furthermore, as part of their role in the protection of critical-infrastructure, Victoria Police created the Counter-Terrorism Coordination Unit (CTCU). The CTCU acts not only as regulator but as facilitator working with the private owners (Palmer and Whelan, 2006, p459). Furthermore, Palmer and Whelan (2006, p459) see potential in utilising the Police-Private Security Partnerships (POLSEC) for counter-terrorism. Although POLSEC is primary focused on exchanging information on low level crimes of interest to the private security companies – such as shoplifting and anti-social behaviour – the Victorian Security Institute has drawn parallels with similar schemes in the U.K..

            This paper has shown how Victoria Police has built upon COP as the main philosophy of its counter-terrorism strategy. Victoria Police has developed linkages with the community so as to take them along the counter-terrorism path and avoid the mistakes of the past. This is in contrast to the HSP approach taken by Commonwealth authorities. The building of networks – with other agencies, business and community – has been a major part of this strategy. Most importantly, Victoria Police has not fallen into the trap of achieving short term goals at the expense of its legitimacy and thereby allowing the terrorists to achieve their strategic goal of undermining the legitimacy of current governmental institutions.


 

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