Testing the thesis . . . Obsession with crime and punishment (continued)
To foster understanding about, and protection of, human rights and to address human rights concerns, the Human Rights and Equal Opportunity Commission was established in 1986 as an independent statutory organisation reporting to the federal parliament through the Attorney-General. An Australian Crime Commission was established in January 2003 as an independent statutory body to work nationally with federal, state and territory agencies, principally to counter serious and organised crime.
Combating transnational crime and terrorism is also a high priority for Australia, and extradition and mutual assistance are key tools in that fight. International cooperation ensures that criminals cannot evade justice simply by crossing borders. Australia has formal extradition arrangements with more than 120 countries. Such arrangements are part of an extensive range of treaties, which are the formal instruments of international law.
All this conjures up the picture of a law abiding country. Not so.
Increasingly, during the past thirty years at least, the U.N. Human Rights Committee has found on several occasions that Australia has breached the fundamental human rights of people living in Australia, and the Committee has heard for some forty years complaints against Australia. In at least seventeen of those cases the Committee found that Australia violated the International Covenant on Civil and Political Rights.
While some Australians find it embarrassing or outrageous that a foreign tribunal can sit in judgment of Australia, Australia alone among the so called ‘western democracies’ does not have a Bill of Rights so courts cannot hear complaints about human rights violations.
Some laws have been enacted to protect human rights and the rudimentary Constitution of Australia has been found by the High Court – quite laboriously – to contain certain implied rights. Australia has been criticised – quite bitterly, but in vain – for its past and present treatment of the Indigenous People.
It is not a sufficient explanation that the majority of Australians enjoy some economic prosperity and they and the governments may be blind to the failure of the laws to protect human rights. Every day there are too many examples of people being denied their lawful human rights and, as a result, living disadvantaged lives in unnecessary hardship.
No government in Australia is exempt from the charge of exploiting the community’s fears about crime and almost all levels of government have attempted to exploit such fear of crime for political advantage.
There is plenty of evidence that the large network of Australian civilian and military ‘intelligence’ and security agencies, both domestic and overseas, do not exist to safeguard ordinary people. Their function is to terrorise and intimidate the public, especially political opponents of the ruling establishment. From the gaoling of militants during the first world war to the Petrov affair of the early 1950s and the Hilton Hotel bombing in 1978, those agencies have a long history of dirty tricks and frame-ups directed against left-wing activists, trade unionists and people branded as ‘Marxists’.
From time immemorial confessions have been extracted from prisoners under interrogation. The High Court felt compelled in two cases, Williams v. The Queen (1986) 160 CLR 171 and McKinney v. The Queen (1991) 171 CLR 468, to limit police questioning and require judges to warn juries of the dangers of convicting on the basis of a confession alone. State and federal laws were then passed specifically to authorise police interrogations, subject to video-taping. But studies have since shown that video-taping is no guarantee against the planting of evidence and concoction of false confessions.
Through other means the Australian Federal Police and other federal agencies have been known to abuse human rights: phone-tapping, bugging, computer hacking, tracking and optical devices to monitor and gather information. In October 1997 The (Melbourne) Age newspaper revealed that the Victorian Police Special Branch of the ‘Liberal’ Government of Jeff Kennett had illegally monitored and maintained files on political activists and organisations, and infiltrated political and community groups. The previous Cain Labor Government claimed to have disbanded the Special Branch in 1983, but simply replaced it with the Operation Intelligence Unit. Since renamed the Security Intelligence Group, it continued to carry out political surveillance, including of Islamic associations, radical parties, refugee action groups and animal liberation organisations.
Over the past twenty years at least, a veritable fever of penal ‘reform’ gripped the State governments, usually in the heat of election ‘auctions’ designed to demonstrate that the purveyors of the policies were definitely not ‘soft’ on crime. ‘Labor’ governments were particularly sensitive to being tagged with that label and moved dramatically away from more progressive policies which had previously characterised their approach to criminal justice.
Under attack from the Opposition or radio shock-jocks, ministers may feel there is no option but ‘to talk tough’, reassuring themselves that unless they make compromises to ‘penal populism’, they will lose power and, with it, the chance to make beneficial changes to the system.
The beginning of this era of ‘penal populism’ in Australia appears to have been the 1988 New South Wales election which was marked by a ‘bidding war’ on the introduction of tough new penalties. The result was the so-called ‘truth in sentencing’ legislation which dramatically inflated the prison population. From this point, and with the media pouring high octane fuel on politically malleable fears, a cycle of increasingly punitive policing and punishment took hold. By the 1990s the promise of tougher sanctions to protect people from crime had become an obligatory element in every suite of policies presented to the voters at state elections. ‘Law-and-order’ has risen inexorably from being judged a relatively low-order problem to one of the top three or four needing political attention.
In the lead up to the 1998 election, Prime Minister Howard raised the ‘law-and-order’ issue – which is usually the province of the states – calling for harsher punishments and even accusing judges of being ‘soft’ on crime. New South Wales’ then Premier Bob Carr adopted a punitive rhetoric previously associated with conservative figures, saying, amongst other things, that “hoodlum patrols would reclaim the streets for our citizens and make them safe again.” Drug traffickers, he later promised, would “die in gaol.”
Western Australia was the first State to introduce a form of the now notorious mandatory sentencing initially popularised in the United States. And soon the others followed, in a mechanistic growing disdain for rehabilitation and intolerance.
Sloganeering as a substitute for thought, and logic, and human solidarity, and ‘a programme’, became the norm. Entire classes of Australians were abused and humiliated – called “dole bludgers” – those forced to rely on unemployment compensation, “welfare cheaters”. The governments – all of them, including the Rudd and Gillard Governments – seemed intent on pushing a punitive agenda rather than adopting one with the goal of providing improved opportunities for those in receipt of financial assistance. The accent is on punishing rather than encouraging; frightening rather than encouraging. The slogan ‘work for the dole’ is still supposed to turn passive recipients of unemployment benefits into active job seekers – or else. The recipients of benefits are amongst the most disadvantaged in every sense – including in access to the media. Indeed, they are more likely to be humiliated than assisted. When everything else fails they could be referred to as ‘job snobs’, who do not want to work. At mid-April 2011 the ‘Labor’ Prime Minister told the jobless to “pull their weight.” Sounds familiar? One would have to wait until 2012 for Joe Hockey to deliver ‘The end of the age of entitlement’ – in London, of course. Is this not the same Hockey, Abbott’s Treasurer, who, accusing the Greens of hypocrisy over the proposed change to fuel excise, declared: “The poorest people either don’t have cars or actually don’t drive very far in many case.”? (‘Interview at ABC Local Radio, Brisbane | The Hon Joe Hockey’). Joe Hockey would become Turnbull’s gift as Ambassador of Australia to Washington.
Such way of speaking, of course, appeals to the ‘contented classes’ who would never doubt that their highly paid, occasionally, extravagantly paid, emoluments are by definition well deserved, as against the low paid jobs of the working poor, who are a fraud of the first order on the community.
Tomorrow: Testing the thesis . . . Obsession with crime and punishment (continued)
* In memory of my friends, Professor Bertram Gross and Justice Lionel Murphy.
Dr. Venturino Giorgio Venturini devoted some sixty years to study, practice, teach, write and administer law at different places in four continents. In 1975 he left a law chair in Chicago to join the Trade Practices Commission in Canberra. He may be reached at George.Venturini@bigpond.com.au.