Abstract
This article considers the deepening of police power in New South Wales (NSW), Australia, criminal law. It analyses the combined effects of four recent criminal law regimes that not only give the NSW Police Force more powers, but also reflect the significant role of institutional police power and the pre-emptive logic of criminal law. We examine: the introduction of serious crime prevention orders; the introduction of public safety orders; investigative detention powers in relation to terrorist acts; and confiscation, forfeiture and search powers, and trespass offences that target protests. Drawing on the work of ‘police power’ theorists, we argue that these new regimes illustrate the centrality of police power to the criminal law rather than a deviation from a putative, ‘normal’ criminal law.
Highlights
This article considers recent extensions to police power in the criminal law of New South Wales (NSW), Australia
Taking the centrality of maintaining order to the construction of criminal law and the operation of law as an expression of the police power as our points of reference, we have argued that recent criminal law reform in NSW exemplifies four features of criminal law that are productive of its police power
These four features indicate policing social order in NSW does not operate in isolation from or alien to criminal law but as one essential part of its operative logic(s)
Summary
This article considers recent extensions to police power in the criminal law of New South Wales (NSW), Australia. Analysing the combined features and effects of these new regimes in NSW clarifies how criminal law and criminal process function through the power to police. We suggest that the blurring of categories of public order/organised crime and suspect/convicted offender that is evident across the new legislation is indicative of the criminal law’s power to police. In understanding these combined laws as police power, we analyse protest together with ‘serious crime’, and ‘ordinary suspects’ with terrorists. The article concludes by considering the conceptual utility of these features in understanding the police power function of the criminal law
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