17th January 2021
This is a rather dry subject that usually excites Legal Academics and practitioners. However, this doctrine is one of the major cornerstones to effective and efficient democracy, encompassing and facilitating all the good things we cherish, so we all should take notice.
The doctrine of the Separation of Powers
Divides the institutions of government into three branches: legislative, executive and judicial: the legislature makes the laws; the executive puts the laws into operation; the judiciary interprets the laws.
Democracy tends to deteriorate, and governments tend to move to an undesirable bent when parts of this separation break down.
We have witnessed the breakdown of this separation over recent years in Victoria, particularly with the Police’s executive role.
The role of Police exercising their function in the separation process is that they must exercise that role without fear or favour, malice or ill will, because it is that approach that is the only mechanism that will act as a deterrent to those who would otherwise unlawfully exploit their positions in any of the three sectors of power.
In recent years, we have witnessed blatant examples of laws being broken by people in the various sectors but prosecutions and, on occasions, investigations not undertaken or not completed by Police.
The problem with this, is that the deterrent effect of having a Police Force is wholly undermined when individuals or a class of people are in effect exempt, or more dangerously believe they are exempt, or believe they are offered protection from the law, that the rest of the community must obey.
The best test of this presumption is whether the average citizen did what a member of the three arms of power did, would they be dealt with differently? If the answer is yes, the separation is failing all of us.
Some of the glaring examples have been evident in recent inquiries commissioned by the government where witnesses from different sectors of the powers allegedly lied or were not exposed to vigorous examination to determine the truth. The defence presented with embarrassing regularity of “I can’t remember”, by many was not vigorously and publicly tested which raises the question of, why not?
It is just incomprehensible that so many of these people holding down very well remunerated executive positions, that we the public pay for, could all have such bad memories.
Which, ‘begs the question‘, why if their memories are so poor are they in these positions as their function and abilities must be adversely impacted by such an affliction?
There is, however,‘ light at the end of the tunnel.’
The CAA is confident that the new Chief Commissioner has the right ethical values to ensure that the Separation of Powers will be honoured by Victoria Police. These values of the Chief Commissioner and every other member of the Victoria Police Force are values they are bound to by their oath they have sworn to uphold.
The Police Oath sworn by every Police member is:
OATH OR AFFIRMATION FOR POLICE OFFICERS
I [ insert name ] [ swear by Almighty God/do solemnly and sincerely affirm ] that I will well and truly serve our Sovereign Lady the Queen as a police officer in Victoria in any capacity in which I may be appointed, promoted, or reduced to, without favour or affection, malice or ill-will for the period of [ insert period ] from this date, and until I am legally discharged, that I will see and cause Her Majesty’s peace to be kept and preserved, and that I will prevent to the best of my power all offences, and that while I continue to be a police officer I will to the best of my skill and knowledge discharge all the duties legally imposed on me faithfully and according to law.
It is very instructive to note that the allegiance sworn by Police members, is not to the government of the day, and not to the other arms of the three powers but the Queen. Demonstrating that our forebears in their wisdom saw the need for a separate independent Police Force, and that is what we must have.
The policing philosophy that Patton has embraced relates equally in the function of applying the separation of powers as it does to everyday policing of the rest of us.
There is an old saying that, “You never see a bank robbed if there is a Policeman at the door”, perhaps not politically correct in this new enlightened era. Still, the principle here is that Crime Prevention hinges on the chance of a perpetrator to be caught and equally that no crook ever commits a crime, ‘no matter how dumb’ that believes they will get caught.
This basic of all crime prevention strategies ‘the visible Police presence’, applies equally, even though metaphorically, to all those involved in the three arms of government.
An independent Police Force will influence substantially, accountability to the law in every niche of the government ensuring that anybody that breaks the law is not above the law and can be held to account for their actions.
We are confident that the Chief Commissioner has an excellent understanding of these principles.