Criminal law as Police power: Serious crime, unsafe protest and risks to public safety

Abstract

This article considers the deepening of police power in the criminal law of New South Wales (NSW), Australia. 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.