Imposing fees for police services in Australia

ABSTRACT

This article presents the first comprehensive overview and analysis of the Australian law and practice of imposing fees for unrequested police services. It acts on Lippert and Walby’s recent call for scholarly analysis of user-pays policing ‘to break free of standard disciplinary confines’. One aim of this paper therefore is to start filling this gap in the literature by giving more prominence to substantive legal analyses of user-pays policing. The purpose of this article is both practical and analytical. The practical purpose of this article is to contribute to the literature by providing a detailed examination of the legal framework for imposing fees for unrequested police services in Australia. The analytical purpose of this article is two-fold: to isolate imposing fees for police services as a distinct category of user-pays policing and to critically evaluate the practice of imposing fees for police services in one Australian jurisdiction as a case study.

KEYWORDS:

• Police fees
• user pays
• responsibilisation
• freedom of expression

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 Transcript of interview, 1 November 2019, https://minister.homeaffairs.gov.au/peterdutton/Pages/PD-and-RM.aspx.

2 Transcript of interview, 1 November 2019, https://minister.homeaffairs.gov.au/peterdutton/Pages/PD-and-RM.aspx.

3 ‘Milo Yiannopoulos and tour organisers yet to pay $50k bill for extra police at show’, The Age, 16 July 2018, https://www.theage.com.au/national/victoria/milo-yiannopoulos-and-tour-organisers-yet-to-pay-50k-bill-for-extra-police-at-show-20180716-p4zrua.html.

4 ‘Victoria's riot police gearing up for modern challenges’, The Age, 23 March 2018, https://www.theage.com.au/politics/victoria/victoria-s-riot-police-gearing-up-for-modern-challenges-20180322-p4z5r8.html.

5 ‘Drive with Tom Elliot’, Radio 3AW, 6 December 2017, https://www.3aw.com.au/milo-yiannopoulos-his-promoters-will-be-sent-a-bill-from-victoria-police-for-protests/.

6 ‘Cops drop Milo security bill’, The Australian, 2 August 2019, https://www.theaustralian.com.au/nation/victoria-police-drop-security-costs-bid-in-wake-of-milo-yiannopoulos-lauren-southern-events/news-story/d54473f07beea66a5d6a85b07db60606.

7 In a related context, this was also the goal of Grabosky and Ayling (2007).

8 E.g. Gans (2000).

9 Lippert and Walby (2019), p 148.

10 Lippert and Walby (2019), p 4.

11 Ayling and Shearing (2008); Grabsoky (2007); Grabosky (2004).

12 There is a voluminous literature on this topic generally and on this topic in respect of policing. See, e.g. Diphoorn (2020), Lippert and Walby (2019); Button (2019), Johnston (2017), Bonnet, Maillard and Roché (2015).

13 See generally Ayling, Grabosky and Shearing (2008). For a typology of privatised policing that excludes the phenomenon that is the focus of this article, see White (2018).

14 Grabsoky (2007), p 6.

15 Grabsoky (2007), p 8.

16 Grabsoky (2007), p 9.

17 Julie Ayling (2008b).

18 Ayling, Grabosky and Shearing (2008), ch 5.

19 Reiss (1988); Stoughton (2017); Lippert and Walby (2013).

20 Lippert, Walby and Zaia (2019).

21 Wilson (2009), p 19. For a recent analysis of Canadian public opinion about this kind of user pays policing, see Luscombe, Walby and Lippert (2017).

22 Wilson (2009), p 19.

23 Johnston (1992).

24 Ayling (2008a).

25 Ayling and Shearing (2008).

26 Palmer and Whelan (2007).

27 More common is the imposition of a ‘levy’ following a criminal conviction in court to contribute to the cost of the criminal trial. See, e.g. Criminal Procedure Act 1986 (NSW) s 211A (‘court costs levy’); Penalties and Sentences Act 1992 (Qld) s 179C (‘offender levy’); Criminal Procedure Act 1921 (SA) s 189A (SA) (‘costs payable by defendant’); Judicial College of Victoria, Victorian Criminal Proceedings Manual (online: www.judicialcollege.vic.edu.au/eManuals/VCPM/index.htm) [19.4.1] (‘In Victoria, costs are frequently awarded against unsuccessful accuseds. These costs often include court fees and witness fees.’). Recent American analyses of fees in the criminal justice system have also excluded consideration of the kind of police fees considered by this article. See, e.g. Kleiman (2020); Demleitner (2016-2017).

28 Grabosky (2007), p 11.

29 Grabosky and Ayling (2007), p 20. See also Ayling and Shearing (2008), p 39.

30 Stoughton (2017).

31 Stoughton (2017), pp 1865–1880.

32 The Police Service Administration (Police Services Charges) Order 1992 (Qld) (repealed) previously prescribed the following types of police services for the purposes of s 10.16(1) of the Act: traffic control, crowd control, escort duties, and security services. However, the Police Service Legislation Amendment Regulation (No 1) 2004 (Qld) repealed that Order and did not include any replacement provision prescribing any police services for the purposes of s 10.16(1) of the Act. The current regulation is the Police Service Administration Regulation 2016 (Qld) and it too does not prescribe any police services for the purposes of s 10.16(1) of the Act.

33 Letter from Queensland Police Service, 9 November 2018 (on file with authors).

34 Letter from Queensland Minister for Police, 22 August 2018 (on file with authors). There does not appear to be any legislation authorising the imposition of these fees. Because these types of fees are beyond the scope of this article the issue of their lawfulness is not explored.

35 Email from Office of the Tasmanian Minister for Police, Fire and Emergency Management, 29 August 2018 (on file with authors).

36 Letter from Northern Territory Police, Fire and Emergency Services, 11 September 2018 (on file with authors).

37 Stoughton (2017), p 1870.

38 Australian Capital Territory (Self-Government Act) 1988 (Cth) s 23(1)(c).

39 Australian Capital Territory (Self-Government Act) 1988 (Cth) s 69E.

40 Police Act 1990 (NSW) s 208; Police Act 1892 (WA) s 39D.

41 Stoughton (2017), pp 1865–1866.

42 Stoughton (2017), p 1866.

43 Stoughton (2017), p 1867.

44 See Schedules 1, 2 and 3.

45 Victoria Police, Victoria Police Manual: Procedures and Guidelines (2014) [8.1].

46 Other researchers of user pays policing have used freedom of information requests as a research method: see, e.g. Lippert, Walby and Zaia (2019); Lippert, Walby and Taylor (2016); Lippert and Walby (2014).

47 Letter from Victoria Police, 14 September 2018 (on file with authors).

48 Letter from Victoria Police, 14 September 2018 (on file with authors).

49 Victorian Department of Justice, Regulatory Impact Statement, Victoria Police (Fees and Charges) Regulation 2013 (Vic).

50 Victorian Department of Justice, Regulatory Impact Statement, Victoria Police (Fees and Charges) Regulation 2013 (Vic), 8.

51 Stoughton (2017).

52 Stoughton (2017), p 1881.

53 Victorian Department of Justice, Regulatory Impact Statement, Victoria Police (Fees and Charges) Regulation 2013 (Vic) p 2.

54 Demleitner (2016-2017), pp 1063–1064.

55 Stoughton (2017), p 1881.

56 Victorian Department of Justice, Regulatory Impact Statement, Victoria Police (Fees and Charges) Regulation 2013 (Vic) 26.

57 Victorian Department of Justice, Regulatory Impact Statement, Victoria Police (Fees and Charges) Regulation 2013 (Vic) 24.

58 Victorian Department of Justice, Regulatory Impact Statement, Victoria Police (Fees and Charges) Regulation 2013 (Vic) 8.

59 Fleming and Grabosky (2009), pp 286–287.

60 Victorian Department of Justice, Regulatory Impact Statement, Victoria Police (Fees and Charges) Regulation 2013 (Vic) 27.

61 Victorian Department of Justice, Regulatory Impact Statement, Victoria Police (Fees and Charges) Regulation 2013 (Vic) 24.

62 Juhila, Raitakari and Lofstrand (2016); O’Malley (2008).

63 Victorian Department of Justice, Regulatory Impact Statement, Victoria Police (Fees and Charges) Regulation 2013 (Vic) 7.

64 Ayling and Shearing (2008), p 39.

65 Walley and Jennison-Phillips (2020); Wally and Adams (2019).

66 Kleiman (2020), p 521.

67 Kleiman (2020), p 522.

68 Kleiman (2020), p 555.

69 Kleiman (2020), p 525.

70 Kleiman (2020), pp 552–554.

71 ‘'It's OK to be white': Far right YouTuber Lauren Southern lands in Australia’, Sydney Morning Herald, 14 July 2018, https://www.smh.com.au/national/it-s-ok-to-be-white-far-right-youtuber-lauren-southern-lands-in-australia-20180714-p4zrgq.html.

72 ‘Cops drop Milo security bill’, The Australian, 2 August 2019, https://www.theaustralian.com.au/nation/victoria-police-drop-security-costs-bid-in-wake-of-milo-yiannopoulos-lauren-southern-events/news-story/d54473f07beea66a5d6a85b07db60606.

73 See Freedom of Information Act 1982 (Vic) s 32 (exemption for documents covered by legal professional privilege or client legal privilege).

74 The same is true of other kinds of events, such as religious or cultural events, but for reasons of space this paper will limit consider to political events.

75 See, e.g. Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; Visy Paper Pty Limited v Australian Competition and Consumer Commission (2003) 216 CLR 1; Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389.

76 See Pearce and Geddes (2011), ch 4; Abercrombie v Salter Architects [2018] VSCA 74, [139]; Return to Work Corporation v Preedy (2018) 131 SASR 8, [54]; Magennis v R; Vaziri v R [2018] NSWCCA 174, [516]-[520].

77 Canwan Coals Pty Ltd v Federal Commissioner of Taxation (1974) 1 NSWLR 728.

78 Victorian Department of Justice, Regulatory Impact Statement, Victoria Police (Fees and Charges) Regulation 2013 (Vic), 8.

79 Victorian Department of Justice, Regulatory Impact Statement, Victoria Police (Fees and Charges) Regulation 2013 (Vic) 7.

80 Victorian Department of Justice, Regulatory Impact Statement, Victoria Police (Fees and Charges) Regulation 2013 (Vic) 8.

81 Tedds (2019).

82 Letter from Polson Legal to Victoria Police, 23 August 2018, available online: https://d3n8a8pro7vhmx.cloudfront.net/afsc/pages/13/attachments/original/1535336404/InspectorTrimbleVictoriaPolice23Aug2018.pdf?1535336404.

83 McDonald v Legal Services Commissioner (No 2) [2017] VSC 89, [25] original emphasis.

84 Magee v Delaney (2012) 39 VR 50, [62].

85 Victorian Charter of Rights and Responsibilities Act 2006 (Vic) ss 7(2), 15; McDonald [2017] VSC 89, [31]; see also Evans and Evans (2008), p 166.

86 McDonald [2017] VSC 89, [43].

87 See the analysis in Part 5 above.

88 Noone v Operation Smile (Aust) Inc (2012) 38 VR 569, 613–14; McDonald [2017] VSC 89, [44].

89 Muldoon v Melbourne City Council (2013) 217 FCR 450, [450]; McCloy v New South Wales (2015) 257 CLR 178; Brown v Tasmania (2017) 349 ALR 398.

90 McCloy (2015) 257 CLR 178, [2].

91 Lippert and Walby (2019), p 4.

Additional information

Notes on contributors

Carlo Dellora

Carlo Dellora, a Solicitor and PhD candidate at Monash University's Faculty of Law, writes on the unstated moral assumptions which ground both law and politics. Among his recent publications are ‘Free speech consequentialism - an Australian account' The Monash University Law Review (forthcoming) and ‘Testing the waters: the limits of consequentialist logic in Australia's asylum seeker debate' The Australian Journal of Political Science 54(1) 2019.

Luke Beck

Luke Beck, an Associate Professor at Monash University's Faculty of Law, is a constitutional scholar with interests across the field of public law. His recent books are Australian Constitutional Law: Concepts and Cases (Cambridge University Press, 2020) and Religious Freedom and the Australian Constitution: Origins and Future (Routledge, 2018).