Reforming the law of criminal investigation*
| Date | 01 December 1984 |
| Author | Gareth Evans |
| Published date | 01 December 1984 |
| DOI | 10.1177/000486588401700402 |
| Subject Matter | Original Research |
AUST &NZ JOURNAL OF CRIMINOLOGY (December
1984)
17
(195-206)
REFORMING THE LAW OF CRIMINAL INVESTIGATION*
195
Senator the Hon Gareth Evans QCt
There has been along and distinguished line of Barry Memorial Lecturers -
lawyers and criminologists all -since this series began in
1972.
Iam delighted to
join their company, not least since Iam the first politician to be so honoured.
Iwould like to think that Sir John Barry would have approved of the choice, if
only for one reason. For apart from all his
well-known~
well-documented,
far-reaching and thoroughly admirable contributions to law, literature, criminology
and penology, Jack Barry
was
(no doubt to the distaste of most of his professional
peers) asolid Labor man.
At least up to the time of his elevation to the bench, when mere mortals must
assume the mantle of sainthood, he made no secret of his keen interest and
involvement in the political process. He had aparticularly close relationship with
the present Premier's father, and was generally recognized not merely
as
John Cain
Senior's legal adviser, but also
as
de facto shadow Attorney-General. Ifhe had ever
made it into Parliament and Government, Isuspect that
we
latter-day Labor
lawyers would not have had to wait until the advent of Senator Lionel Murphy to
have had before
us
the very model of amodern, reforming, questing and
questioning, Attorney-General.
Although Sir John Barry's principal interests lay in the direction ofthe courts and
corrections, rather than with the police investigative processes leading up to them,
Ihave no doubt he would have had alively intellectual interest in the topic Ihave
chosen for this Lecture, not to mention an acute appreciation of the minefield it
constitutes for practising politicians!
Certainly no area of the law has aroused more intense law reform interest over
alonger period than the law of criminal investigation. By this Imean, for present
purposes, the rules governing the exercise of powers by the police when
investigating the familiar mainstream offences against the person and property.
Some other police powers issues from time to time assume alittle more glamour (for
example, questions about the role of police in dealing with public protest, or the
question of specific additional powers to deal with certain kinds of organized
crime); but the old, time-honoured questions -about powers of arrest and
detention and custody; about questioning, confessions and the right to silence -
continue to generate debate year in and year out.
The protagonists are familiar. The police forces of Australia, conscious of their
day to day difficulties in enforcing the law and bringing offenders to justice, have
pressed for changes in the law aimed at relieving some oftheir more onerous duties,
and have vigorously opposed any proposed changes which they sense may possibly
make their task more difficult.
Civil liberties advocates, on the other hand, aware of the difficulties that face the
man in the street caught up in the process ofcriminal investigation, have expressed
adifferent viewpoint. Ordinary people, they say, are usually ignorant oftheir legal
rights and the limits of the powers of police officers; the law should, accordingly,
be clearly stated, readily accessible and written
in
a
way
which will provide the
fullest protection for individual rights while setting strict limits to the powers of
police.
•John Barry Memorial Lecture, delivered at University of Melbourne,
18
October
1984.
tAttorney-General of Australia.
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