In March 1978, one Joseph Malia of Leppington, New South Wales, was jailed for refusing to allow Egg Board inspectors through the gate of his property. He was not an egg producer. The inspectors wanted to pass through his property to raid a neighboring poultry farm.
Joseph Malia had committed no crime. Other than refusing the inspectors entry to his farm, he had broken no law. He had merely said "Enough" to the growing power of the bureaucratic state. For this, he was jailed.
In recent years civil libertarians have begun to protest the growing power of the police. Their concerns are justified. Australia—the country with which I am familiar in the particular—has never had more police with more powers than at present. The combined strength of Australia's police forces is now greater than that of the Australian army (a fact that gives new meaning to Pogo's line, "We have seen the enemy, and he is us").
But disturbing as these trends are, there is every reason to believe that this will not be the source of Australia's impending police state. Instead, it will be staffed by bureaucrats. Where there is caution about granting additional powers to the police, there is enthusiasm, even among civil libertarians, for granting these same powers to government inspectors.
Within every public service in Australia there exists a group of "quasi policemen" with powers of arrest, entry, search, seizure, and detention. They include customs officials, tax inspectors, Trade Practice Commission officers, social security agents, Egg Board inspectors, flora and fauna rangers, RSPCA inspectors, fisheries patrol officers, and aboriginal relics inspectors. They are not organized into forces as such. The majority of them do not wear uniforms. Very few carry guns. In place of guns, these bureaucratic policemen carry identity cards that say (in effect) that they can obtain guns if they need them. The card is usually enough.
So far, no detailed study has been made of these quasi policemen, or "quops." Brief research undertaken in Queensland indicates that under Queensland Acts of Parliament alone there are over 3,200 individual bureaucrats with police powers. This is only several hundred short of the police force itself. There are presently about 120 different types of inspectors with powers of entry onto private property, appointed under 100 different Queensland statutes. In addition to those who already possess these powers, there are tens of thousands of other officials who can quickly be granted them by ministers or senior public servants. There are also 37 federal statutes empowering probably another 40 different types of inspector within the state.
Most government inspectors have the power to enter private property. Although some statutes require the official to obtain a warrant, most do not. In Queensland, local government inspectors and officers under the Collections Act, the Land Tax Act, and the Poultry Industry Act (to cite a few) need no warrant to enter private dwellings, day or night. Eight Queensland statutes specifically empower inspectors to use "such force as is reasonably necessary" to carry out their duties.
Refusal to provide correct name and address to one of Queensland's aboriginal relics inspectors can result in immediate arrest. Seven other types of inspector have powers of arrest, as well. Add to this the power to stop and search vehicles (11 types of inspector have this power) and powers of search (90) and seizure (46), and we have a growing army of bureaucrats suitable for the role of Big Brother.
In north Queensland, flora and fauna rangers carry automatic shotguns and armalite rifles. Premier Johannes Bjelke-Petersen openly admitted that these weapons are for use against poachers and smugglers, not crocodiles.
THE TAXMAN COMETH
One of the more unpopular quops is the tax inspector. A visit by the tax man is a reminder that government is not an oversized charity and prompts the thought that maybe taxation is theft, after all. With the Australian federal government's obsession with catching the last tax evader (is the government of any of the world's bureaucratized states not likewise obsessed?), it is probable that the tax inspector will become an increasingly sinister figure over the next few years. The Australian government recently hired on 400 special tax investigators to conduct compulsory audits of Australian businesses. From now on, businessmen can expect a thorough investigation about once every five years—not because there is reason to believe that they have or are about to do anything illegal, but simply because they might. It is this kind of widescale perversion of the rightly hallowed legal principle "innocent until proven guilty" that should worry civil libertarians everywhere.
There is some legal controversy as to whether tax investigators in Australia have a right of entry and search, although that has not deterred them from acting as if they do. During training, tax inspectors are informed of the uncertainty of the law but are instructed to act as if they have a right of entry anyway. A former tax investigator told me that in these circumstances most individuals simply give in. The one case he was aware of in which a taxpayer refused entry was resolved by a phone call from a senior official in the Tax Department.
Life can be difficult for a taxpayer who does not cooperate. It is not surprising then that the Australian Taxpayers Association advises submission: when the taxman calls, open the books and offer him a cup of tea.
The powers of the taxman were the subject of a recent case in the court of appeals in Britain (R. v. Commissioners of Internal Revenue, ex parte Rossminister Ltd.). Using a statutory provision similar to one relied on in Australia, 70 Revenue officials carried out a dawn raid on several offices and private houses. Twelve van loads of documents, business and personal, were taken away. In the Court of Appeals, Lord Denning found that the warrants did not indicate what offenses were suspected. They were thus "general warrants"—a practice that English law has for hundreds of years considered an unacceptable threat to individual liberty. On appeal to the House of Lords, Denning's decision was overturned and the search powers confirmed. But while refusing to restrain Parliament, the House of Lords was critical of the legislature granting such wide powers of search. Lord Scarman said it constituted a "breathtaking inroad on the individual's right of privacy and the right of property." Any changes, however, had to be made by Parliament; the courts would not enforce the unwritten English bill of rights.
In contrast to the cautious attitude of the courts, Australian legislatures have been liberal in their granting of powers to government inspectors. Indeed, so wide are the powers possessed by some of them that it almost seems impossible that they could be exceeded. Where abuse occurs on a systematic basis, the attitude of the legislatures seems to be that the abuse should be legitimized: if officials regularly assume a certain power, then it must be necessary for efficient operation, no?
The Narcotics Bureau provides an example of this. Several years ago in his book Narc! Bernard Delaney revealed that for some time narcotics agents had been tapping phones without lawful authority. No prosecutions have been or will be made. Instead, the federal government promptly passed an amendment to the Customs Act granting this power to customs officers (which group included narcotics agents at the time).
It is probable that abuses of powers are as common among inspectors as they are among police, although reliable figures are difficult to obtain. Part of the reason for this is that most of us are so used to being walked on by the government that another pair of feet doesn't make much difference. But there are also those who are afraid to speak out. Unlike the police, government inspectors have fairly narrow jurisdictions. Their responsibilities are usually restricted to a particular industry or to specific functions. They are often geographically limited, as well. This means that the inspector who visited last month will often be the one who is expected again next month. As a result, many of those who have had their homes and property invaded are not prepared to be quoted.
A few examples, though, have come to light in recent years.
• In September 1977 customs officers raided an aviary at Gosford in New South Wales. They suspected birds in the aviary, which belonged to Mr. Rudolf Muhuick, of being infected with Newcastle disease. On that mere suspicion, $97,000 worth of birds were destroyed as pest exterminators pumped cyanide gas into the cages, shot birds from the trees, and killed the family's pet budgerigar and three pet emus. Customs subsequently tested the birds and found no traces of disease in the aviary.
• In another case, same locale, same year, Egg Board inspectors raided a poultry farm armed with "cattle prodders." According to the Egg Board, these weapons were for protection against guard dogs, but this case illustrates the attitude of government inspectors. They believe they have a right to go anywhere and are prepared to use whatever force is necessary to do so. And in the case at hand the farmer was not a criminal criminal but had breached some accounting or marketing procedure.
• In the early 1970s the Long family operated a dairy farm out of Grafton in New South Wales. They sold their milk directly to regular customers of long standing. It was milk of exceptionally high quality, and when the Grafton Dairy Company put in a pasteurization plant, the Longs did not want to pool their milk with a product that they considered inferior. Offers to put in their own pasteurization plant were refused, so the Longs continued to sell unpasteurized milk to their old customers. The Dairy Industry Authority sent officers who kept a 24-hour watch on the farm, seeking evidence of illegal sales. After several unsuccessful legal actions, the Longs were finally prosecuted and fined. They refused to pay the fines and went to jail. Upon release, they continued to sell milk to their old customers, and the DIA continued to watch them. The crisis was solved when Mr. Long died, partly as a result of the stress of this episode. Mrs. Hazel Long now keeps goats.
IN SHEEP'S CLOTHING
With such examples and with such a sudden growth in power, it is hard to understand why civil libertarians have not been more outspoken about the bureaucratic police. To some degree, their blindness appears to be due to their focus on Nazi Germany, Fascist Italy, and Stalinist Russia as the examples of a police state. Orwell's 1984 with its "gorilla faced guards in black uniforms, armed with jointed truncheons" has been their archetype of totalitarianism.
But while civil libertarians have fastened their eyes upon uniforms and visible displays of power, the more subtle plainclothed government inspector has opened the door and walked in. The home that used to be a castle has become the tramping ground of numerous public officials.
One finds, among those most vocal in their condemnation of Queensland's "police state" under the hand of Premier Bjelke-Petersen, individuals who have pressed for greater powers for the quasi police. In 1978, while the Australian Labour Party was attacking the Queensland premier over the issue of street marches, a new category of "authorized officer" with powers of entry was turned off the parliamentary production line. The only comment from the leader of the opposition, Tom Burns, was that the powers granted were not wide enough.
In sharp contrast to Orwell's vision of the coming police state is that of Wilfred Greatorex, creator of the BBC series 1990. Greatorex's scenario is of a totalitarian bureaucracy:
It was all infinitely shabbier than they had prophesied. No armed police, no torture chambers, no magnificent worldwide control of power. 1984 had come and gone without the emergence of Big Brother. And yet the prophets had been right.…An army of Little Brothers had materialised.
Because of an old and deeply grounded public suspicion of police, British and Australian legislatures have exercised great caution in granting them additional powers. Although this attitude is, sadly, disappearing, even more unfortunately the same skepticism has never been addressed to government inspectors. And there is a reason for this differential treatment.
The role of policeman is fundamentally a creation of the people. While governments have involved the police in some policy issues over the years, the police constable remains to this day essentially a defender of rights.
Constables arose in the villages and towns of old England and were originally elected, unpaid keepers of the peace. When Robert Peel organized the police forces in England in 1829, the legislature granted no additional powers to the "new police," for the English were afraid of the possible development of a police state such as existed in France. The first Police Act merely organized the constables into a "force," and the situation remains basically unchanged in the Australian State Police Acts today.
Policemen today still rely largely on the common law for their powers, just as they did 150 years ago. In common law, the constable has essentially the same powers of arrest, entry, search, and seizure as the private citizen does. With such a tradition of caution, legislatures have been by and large reluctant to grant new powers to the police.
Not so with the government inspector! The inspector is a totally political creature. The act of Parliament that brings him into existence defines his functions, grants his powers, and limits his liability. Far from being a protector, the quasi policeman exists to enforce the policy of a particular government: narcotics agents enforce moral policy, Egg Board inspectors enforce economic policy, and so on and on. While political rhetoric may portray these officials as defenders of the public morality or of economic stability, from the individual's point of view they are invaders.
"ONLY DOING MY JOB"
One of the most disturbing aspects of the trend toward a totalitarian bureaucracy is the apparent eagerness with which Australians have applied themselves to the job of bureaucratic policeman. For instance the Royal Society for the Prevention of Cruelty to Animals (RSPCA), a private organization, has inspectors in most states with powers of entry, search, and arrest. The Victorian branch, lacking these powers, recently applied to the state government to be granted them.
The reverse side of this coin is the apparent ability of "the army of Little Brothers" to see their occupation as just another job. When Dr. Judianne Densen-Gerber, an American psychiatrist and advisor to President Carter, visited Australia in 1977, she was detained for three days by Australian health authorities because of official bungling. "Bureaucracy has the endless nazi cop-out—that I am only doing my job," she said upon her release. "It is a whole system that refuses to allow any assumption of responsibility."
This mentality, unfortunately, has statutory backing in provisions that exempt inspectors from responsibility for acts done in the exercise of their powers. In Queensland, for instance, RSPCA inspectors are not liable for things done in "good faith and without negligence" in the performance of their duties. The burden of proving negligence or an absence of good faith lies with the complainant—an almost impossible task.
Because of the particular policies being enforced, such provisions may seem worlds away from the Nazi police state, but in fact they codify the Nuremberg defense of superior orders and reinforce the feeling of inspectors that theirs is just an ordinary job. They can still sleep at night after sending the Joseph Malias to jail or after walking over some individual who was too overwhelmed to resist. To such people, Thoreau's words in the middle of the last century are apt (Thoreau, by the way, went to jail for refusing to pay taxes for a war with which he disagreed):
If the tax-gatherers, or any other public officer, asks me, as one has done, "But what shall I do?" My answer is, "If you really wish to do anything, resign your office!"
Perhaps more sinister than the attitudes of the government inspectors are the changes in our own thinking. No longer is it acceptable for a man to insist that his home is his castle. On the contrary, the new thinking maintains that anyone who will not let a government official walk over every inch of his home must have something to hide. Upright citizens will welcome increases in the powers of officials, we are told.
THEIR BELOVED DUTY
One hundred and fifty years ago the French aristocrat Alexis de Tocqueville warned of the development of just such a society. Given the difference between his time and our own, Tocqueville's words can only be described as prophetic:
I think…that the species of oppression by which democratic nations are menaced is unlike anything which ever before existed in the world.…I seek in vain for an expression which will accurately convey the whole of the idea I have formed of it, the old words despotism and tyranny are inappropriate: the thing itself is new, and since I cannot name, I must attempt to define it.
Above this race of men stands an immense and tutelary power, which takes upon itself alone to secure their gratifications, and to watch over their fate. That power is absolute, minute, regular, provident and mild. It would be like the authority of a parent, if, like that authority, its object was to prepare men for manhood; but it seeks on the contrary to keep them in perpetual childhood.…it provides for their security, foresees and supplies their necessities, facilitates their pleasures, manages their principal concerns.…
Thus it every day renders the exercise of the free agency of man less useful and less frequent.…It covers the surface of society with a network of small, complicated rules, minute and uniform, through which the most original minds and the most energetic characters cannot penetrate, to rise above the crowd. The will of man is not shattered, but softened, bent, and guided.…such a power does not destroy, but it prevents existence; it does not tyrannize; but it compresses, enervates, extinguishes, and stupefies a people, till each nation is reduced to be nothing but a flock of timid and industrious animals, of which government is the shepherd.
Of the role of the government inspector, Tocqueville made no mention, but just over 50 years later the English author Robert Louis Stevenson predicted his central role in the totalitarian bureaucracy. He warned in 1887:
…this golden age of which we are speaking will be the golden age of officials. In all our concerns it will be their beloved duty to meddle.…Our legislation grows authoritative, grows philanthropical, bristles with new duties and new penalties, and costs a spawn of inspectors, who now begin, notebook in hand, to darken the face of England.
Quasi police are the sordid side of government. They are an embarrassment. They are a reminder that laws that do not reflect the will of the vast majority of the people must be implemented with force. George Washington wrote: "Government is not reason, it is not eloquence—it is force!" The imprisonment of Joseph Malia and Hazel Long reminds us that this is so.
When you pick up one end of a stick you also pick up the other. If we continue to demand that government do more and more for us, then we must expect more quasi-police with greater powers. We cannot have one without the other.
The minutiae of modern statutory regulation and the spawn of inspectors it has cast gives new meaning to the phrase "total government." Never was government better prepared to efficiently administer total control. Never were we more psychologically prepared to accept it. The stage is set for totalitarian bureaucracy. For Joseph Malia and Hazel Long, and who knows how many others, it is already here.
Gary Sturgess is a journalist with the Australian Bulletin, as well as a barrister-at-law and an investment analyst. He is a member of the Queensland Council for Civil Liberties.