By Julian R Murphy
On 8 September, the High Court will hear argument in Roy v O’Neill. The case is about whether police can approach a person’s front door to investigate them for a criminal offence. That question, in turn, entails consideration of whether such police are trespassers or whether they can claim the benefit of the common law implied licence normally extended to door-to-door salespeople and Jehovah’s Witnesses.
I have outlined some of the case’s comparative and constitutional dimensions in a ‘Before the High Court’ article in the Sydney Law Review. Here, I want to discuss the case’s potential implications for police practices, particularly during the pandemic. Before discussing those potential implications, it is helpful to provide an overview of the facts and proceedings in Roy.
‘An Orwellian intrusion’?
Aileen Roy and her partner resided in a public housing unit in Katherine in the Northern Territory. The unit complex had a perimeter fence but no locked gate. On 6 April 2018, three police officers attended the unit and knocked on the door. They were there to check whether Ms Roy was complying with a domestic violence order that prohibited her from being with her partner if she was intoxicated. The police had not received any complaint about Ms Roy’s behaviour that day, nor had they any other reasonable grounds to suspect that Ms Roy was committing an offence. Rather, police were attending the residence as part of a ‘proactive policing‘ operation to check compliance with domestic violence orders.
Having knocked on the door, the police could see through the flyscreen into the residence, where Ms Roy and her partner were together, apparently in the lounge room. The police called upon Ms Roy to come to the front door. When she did so, she was required to provide a breath test. Ms Roy returned a positive result for alcohol, was arrested and ultimately charged with the offence of breaching a domestic violence order.
At first instance, Ms Roy successfully defended the charge on the basis that the police were trespassers when they knocked on her door (and thus that the evidence against her was unlawfully obtained and should not be admitted in the proceedings). The Prosecution appealed, arguing that the police were not trespassers because they were on the property pursuant to the same implied licence that is normally extended to all persons to approach an unobstructed front door for the purposes of communicating with an occupier. The Northern Territory Supreme Court rejected that argument, holding:
absent a clear and express statutory power to do so, neither the police nor anyone else has an implied invitation to enter private property, or the threshold of a person’s home, for the mere purpose of investigating whether a breach of the law has occurred or for the purpose of gathering evidence of criminal activity by the occupier … To hold otherwise would be an Orwellian intrusion into the fundamental rights of privacy that the common law has been at great pains to protect … That is the province of the elected legislators who are responsible to the people for their decisions.
The Prosecution again appealed and this time they were successful, with the Territory’s Court of Appeal ruling that the police attendance was for the purposes of ‘lawful communication’, which was a ‘legitimate purpose’ that brought police within the implied licence. The High Court of Australia subsequently granted special leave to appeal, indicating a willingness to interrogate the idea that the common law of implied licences treats police the same as other members of the public.
The decision in Roy is likely to have widespread implications for policing in Australia. In recent years, many Australian police forces have started practicing the sort of proactive policing at issue in Roy.
In essence, proactive policing involves actively monitoring the behaviour of persons in the community who police consider to be at risk of future offending. What makes proactive policing different to traditional policing is that it involves police selecting people for monitoring based on slight, stale or background information that would not normally justify .
Critics of proactive policing argue that any practice that requires either highly generalised or highly subjective criteria for selecting ‘targets’ is liable to be infected by systemic racism and implicit bias. So, for example, choosing a target for surveillance on the apparently objective basis of frequent past police involvements risks simply perpetuating the social and historical forces that result in the over-policing of particular, often Indigenous, communities. That algorithms, rather than police officers, might select targets is cold comfort given recent experiences of biased algorithmic decision-making.
Another criticism of proactive policing is more basic: it points to the apparent injustice of subjecting a person to intrusive police surveillance in circumstances where there is no reliable, objective information to suggest that the person has done anything wrong. Roy is a case in point. Three police officers attended at Ms Roy’s front door and peered into her lounge room, all without a reasonable suspicion that she had committed an offence. The fact that, on the day in question, Ms Roy had done something wrong is beside the point. Rarely does the law allow ends to justify means, especially when to do so would have collateral consequences for many people who are not engaging in wrongdoing.
Notwithstanding these criticisms, however, proactive policing continues to be widely used in Australia and doorknocking is a big part of it. In New South Wales, police sometimes knock on hundreds of doors a day to ‘check’ if people are complying with apprehended violence orders or bail conditions. At other times NSW proactive policing can be narrowly targeted, such as in the case of a Newcastle man who police visited five times in one night to check that he was complying with his bail curfew.
In some jurisdictions, such as Queensland, police doorknocking is authorised by statute and thus will be largely unaffected by the High Court’s common law decision in Roy. However, police in most other Australian jurisdictions appear to rely on the common law implied licence as the basis for investigatory doorknocks, particularly bail checks and domestic violence order checks.
Potential implications for the pandemic response
That the High Court is considering the scope of implied licences to police during the COVID-19 pandemic potentially raises the stakes. While police were already using proactive doorknocking in Australia before COVID-19, the practice has accelerated during the pandemic and now also incorporates the use of military personnel. As of May, Victoria police had conducted almost 50,000 ‘compliance checks‘, a significant portion of which would likely have been at personal residences.
The legal basis for the widespread government doorknocking during COVID-19 is not entirely clear. Where the doorknocking is simply for informational purposes, and to offer people the chance to be tested for their own health and safety, that would appear to fall squarely within the usual implied licence extended to most members of the public to attend at a residential front door. Police in such circumstances can fairly be analogised with the door-to-door salesperson, the market researcher or the pamphleteer.
Different considerations might arise, however, where police and military personnel are attending houses to ensure that people are complying with self-isolation requirements. While such people may not have the virus — for example they could be in isolation awaiting test results after having contact with a confirmed case — they could still be liable to significant fines for not remaining at home. This scenario shares a number of relevant features with that in Roy. In both cases, police are attending a person’s house to check whether they are complying with a legal obligation, the contravention of which would render the householder liable to criminal penalty.
Thankfully for everyone involved — particularly Ms Roy, who is unlikely to want her case to disrupt the pandemic response — it appears that police and military have special powers to doorknock during the pandemic such that they do not have to rely on the common law implied licence. For example, in Victoria the governing legislation is the Public Health and Wellbeing Act 2008 (Vic). Under that statute, the Chief Health Officer may authorise persons to exercise ‘public health risk powers‘ and may request the assistance of police for those purposes. The most relevant public health risk power — in s 190(1)(c) — allows an authorised person to ‘enter any premises … for the purpose of investigating, eliminating or reducing the risk to public health’. That power is subject to certain limits — in s 190(7) — including that the authorised person reasonably believes that there may be an immediate risk to public health. Given the risk that a single uncontrolled COVID-19 case can present for a whole state or nation’s population, it appears likely that the preconditions for this power would be met where authorised police and military are doorknocking persons confirmed or suspected to have the virus.
In addition to public health risk powers, while Victoria remains in a state of emergency authorised persons (and police who assist them) may also exercise ’emergency powers‘. The most relevant emergency power — in s 200(1)(b) — allows an authorised person to ‘restrict the movement of any person … within the emergency area’. On the theory that a statutory power impliedly authorises the doing of things reasonably necessary for its efficient exercise, s 200(1)(b) may allow authorised police or military to restrict a person to their home and to conduct such home visits as are necessary to ensure compliance with the restriction. Similarly, the emergency power in s 200(1)(d) to ‘give any other direction that the authorised officer considers is reasonably necessary to protect public health’ may carry with it the power to attend as far as a person’s front door to ensure that they are complying with a public health direction. That these powers might authorise attendance on residential property is explicitly anticipated in s 187 of the statute, which stipulates that entry onto residential premises should be limited to that which is necessary for the purposes of the statutory power.
Further powers are engaged by Victoria’s recent declaration of a state of disaster under the Emergency Management Act 1986 (Vic). The powers conferred by that statute are extremely broad and are exercised or directed by the Minister for Police and Emergency Services. Those powers include — in s 24(2)(c) — the ability to ‘make use of any person’s property’. During the state of disaster relating to the January 2020 Victorian bushfires, this power would presumably have authorised government personnel (including police) to attend on private property for the purpose of fighting the fires and coordinating evacuation. Similarly, it would appear that during the pandemic the power to ‘make use’ of property allows the Minister to authorise government personnel (including police) to attend at a person’s front door to ensure compliance with self-isolation requirements.
In conclusion, it appears unlikely that the High Court’s decision on the common law implied licence in Roy will affect the lawfulness of police and military doorknocking during the pandemic. As has been explained, such practices are authorised by a suite of extraordinary statutory powers. However, it is at least arguable that the very existence of these carefully calibrated statutory powers speaks against the common law too readily implying a wide licence to police to attend upon private property for investigatory purposes outside of emergency situations.
Julian R Murphy is a PhD candidate at Melbourne Law School
Note: the author was previously a solicitor at the North Australian Aboriginal Justice Agency, where he represented the appellant at earlier stages of the proceedings in Roy v O’Neill. The views expressed here are the author’s own and do not necessarily reflect those of his past employer.
AGLC4 Citation: Julian R Murphy, ‘Police Doorknocking at the High Court: Roy v O’Neill’ on Opinions on High (7 September 2020) <https://blogs.unimelb.edu.au/opinionsonhigh/2020/09/07/murphy-roy/>.