Jack Waterford: Pearls and Irritations

Here’s a sad prediction for 2025. By the end of next year, more states and territories will have dropped the age of criminal responsibility to 10, and adopted punitive laws based on slogans such as Queensland’s “you do the crime, you do the time” for juvenile as well as adult offenders. The greatest proportion will be Indigenous, of course.

Needless to say the legislation will be very popular, so much so that some state Labor parties will find it difficult to resist pressure to be seen as tough on crime amid an imagined crisis of increasing juvenile crime. My bet is that West Australia, with state premiers that usually lead the nation for illiberalism, will be first cab off the rank. And NSW Labor often finds it difficult to resist law and order populism.

But the measures are aimed at pleasing the Australian middle class, not at the well-being or improvement of the lives (or the behaviour) of local Indigenous populations. The general public has been made hysterical about what they have come to think is an upsurge of crime and social problems. The problem is presented as getting “tough” on persistent and dangerous offenders, likely, because of its very “toughness” to change behaviour. Politicians who don’t embrace it are dubbed “soft on crime” and moral cowards who shrink from the “obvious” solution.

The problem is that it won’t work. In fact, it will aggravate Indigenous community problems and those of the wider problem, while reducing the amount of room within which community activists — police, social workers, the education system, and the health system — can operate. “Toughness” was what brought the convicts to Australia, and didn’t work then, even with efforts to pacify and control the Indigenous inhabitants.

The Illiberal Liberals

Peter Dutton will be an enthusiastic supporter (as he was during this year’s Queensland state election.) It’s all of one with a coercive approach to almost all social problems, and a withering disdain for those who do not recognise the importance of punishment in dealing with crime. He has attacked judges for being lily-livered. And he regards lawyers focused on human rights and due process as often putting the rights of offenders ahead of victims, and being infected by “wokeness”. But he will emphasise that he has no intention of legislating the principle at federal level, given that most crime of the sort that involve coercion and physical punishment of juveniles is a matter for the states. Besides, he may think, the Commonwealth may be able to disclaim international condemnation of our ratified human rights laws by pretending that the obligations we entered into at international law can apply only to the Commonwealth, not the states who control most criminal matters.

It should be quite clear that such measures are popular because many citizens are frustrated and angry about the rates of juvenile crime. This has been particularly so in regional cities such as an Alice Springs or Townsville, where there is a highly visible Indigenous presence.

Juveniles involved in house break-ins, vandalism, violence, and vehicle theft, have been regarded by some of the local citizenry as having had virtual immunity from prosecution and punishment. They have responded with open contempt for police and the law. That many of the offenders live in absolute poverty in town fringe camps is acknowledged, but should not, it is said, provide them with immunity from what is plainly bad behaviour. Many are bored and are not safe where they are living, because of fights and social dysfunction, and the risk of physical and sexual predators. Many are living in fringe camps, and others are temporarily domiciled there when families have made trips to Alice Springs. This may partly explain why so many children are roaming the streets unsupervised during the night. But that does not excuse parents and relatives from taking responsibility for their children’s behaviour, or their ordinary duty to feed their children, keep them safe from harm, and prevent their being a nuisance or danger to others.

There’s another context which the champions of the new laws point out. Domestic violence, which was once virtually ignored by police, is now recognised as perhaps the major crime in Aboriginal communities. Some of the allegedly lawless children are in situations where their exposure to violence, often at the hands of close relatives, is a part of the spectrum of domestic violence, including the sense of powerlessness and anger actuating the offenders. As always the main victims of violent crime and anti-social behaviour are Indigenous people themselves, not the hapless local residents living generally in reasonable comfort and security. This extra attention from police is now driving some of the numbers of incidents involving the juveniles, even as real as opposed to manipulated statistics show that the overall level of crime is falling. Those simply asserting that there is a major upsurge of crime are asserting what they would like to be, not what the objective data shows. But if police act as though it is an emergency, backing up the statements of opportunistic politicians, they deploy more resources, find more incidents, and provide themselves with platforms by which they can portray themselves as the thin blue line holding back the criminal hordes.

The problems have been coming to a boil over many years. It was aggravated in the Northern Territory by the Howard (and Rudd) intervention, which broke down many Indigenous institutions and authority structures, and seemed to encourage people to leave their more peaceful settlements away from Alice Springs in a generally hopeless search for work in the big smoke. This mass movement also aggravated the crowding, tensions and social and physical dysfunction of fringe camps.

The ever-present and ever coercive ‘something must be done” impulse

Racism has a part to play in the sense of crisis. But the problems are real enough. Alice Springs and Townsville, for example, have sizeable Aboriginal middle classes who do not identify with, or readily forgive, gangs of youths wandering about the town, stealing from (inter alia) their dwellings and causing fights and trouble. They are as loud as white residents in wanting something to be done. There is also a substantial population of public servants and employees of Aboriginal-controlled organisations angry about the street crime.

One of the primary reasons why increasingly punitive solutions do not work is that they misunderstand the major causes of crime among the discontented underclass. Such people do not contemplate crime as a calculus between the benefit hoped for and the assessed risk of being caught . This might be the approach of a lawyer considering defrauding a client, a policeman contemplating perjury, or a public servant planning to use the law to wrongly hurt a poor client of the system in the hope of getting brownie points from their superior. Under class is nearly always impulsive, and does not usually involve considering what the probable consequences might be. Grandstanding politicians — Dutton is a prime example — often announce bigger penalties for some crime as though this will “deter” almost illiterate people who do not plan much of what they are doing and behave rashly and on an impulse. They simply haven’t given much thought to the likely consequences. Indeed many do not necessarily expect that being caught and punished is a just and logiccal outcome of some sort of moral infraction.

A good many settlement people , for example, find that their most common interaction with police involves arbitrary (and extortionate) traffic files for “offences” such as driving an unregistered car, That’s regarded as bad luck, not a just punishment for doing anything unequivocally wrong. Many young Aborigines pay more each year in traffic fines than their non-Indigenous peers, whether jn absolute terms are as a proportion of their incomes. Many see it as arbitrary harassment by police who have nothing better to do.

Nobody “learns” to change their ways from these interchanges. But they might learn resentment, a need for concealment or revenge against the system, and a feeling that the policeman is not your friend, but a stranger forever trying to punish you for some arbitrary infringement. A person’s attitude to police does not start anew each day. It is the sum total of all experiences, including deaths in custody, the dialogue about racism in the force. The Irish people knew all about it 150 years and made heroes of their outlaws.

The cost and futility of filling up the jails

Punitive and coercive policies massively increase the cost of maintaining a justice system. A system which wants longer jail sentences, a greater probability of going to jail for a particular offence, needs more physical jails and prison warders. It also needs a bigger parole system so as to pretend that there is some science going into sentence assessments. The system does not allow this to be done on the cheap, with overcrowded cells, imnadequate prisoner supervision, or a blind eye to prison brutality. However much a return to 18th century penology might be attractive, there will be parties alert for abuse of power, inadequate arrangements , privacy issues and prisoner rights. These will include judges who resent the loss of their discretions, and who are alert for breaches of the law. It also involves lawyers, various advocacy bodies and family and friends.

A Labor government in NSW about three decades ago began surrendering its duties to Sydney shock jocks, always ones for condign punishment. Over a decade they doubled the prison population, both by sending more people to jail, usually on higher sentences. They were “tough” and boasted about it, sure that any squeamishness from inside the system would be overwhelmed by popular approval of their punitive mindset. Whatever happened as a consequence had no obvious effect on crime rates. These did fall, but the numbers in jails did not. Nor did the length of sentences. What happened, really, was to cement a judicial policy of keeping the jails full.

The punitive approach is not reinforced by experience. Indeed, there is criminogical literature on the subject which makes it clear that it simply does not work, or change behaviour. It simply represents the permanent prejudices of the few and does not even perform a function of keeping dangerous people, including juveniles, off the street, since those who are detained end up being embittered and more difficult to “reform”.

Nor can it be said to be the research product of expert analysis by public policy professionals. Instead, it is usually driven by media campaigns and by public opinion – often influenced by a few notorious cases. It is not the result of analysis, but of dogmatic ideology. The youngest child convict sent to Australia by Britain was 13 years, a product of a system focused on correction by continuous work and punishment. These included floggings, solitary confinement, and being chained to work gangs. There were no concessions for age, mental condition or prison history. In general terms, the more brutal the punishment regime, the more likely that the sufferer was lost to any hope of rehabilitation. The ideologies and attitudes of those who supervised the system have not developed over time. Nor has their instinct for justice, proportion and human rights.

Actual experience shows there are special reasons for using great care with “do the time” ideologies. It is well established, for instance, that young offenders kept out of the criminal justice system, and given chance after chance are far more likely to “wake up to themselves” at some stage, ceasing to offend and becoming an ordinary member of society. But where the system loses its patience and puts a young man or woman into the prison system, or in forms of child detention, experience shows their future to have become suddenly ruptured. They will likely face many further detention over the rest of their lives, unable to redeem themselves. The coercers and the straiteners invariably insist that they can prevent this occurring by specialised prison regimes adapted to the prisoner’s needs. The history suggests otherwise.

A system primed for failure

These are matters that are relevant to the fates of any young Australians, Indigenous or not. But it is idle to pretend that the criminal justice and criminal incarceration system is bias-free so far as Indigenous youths are concerned. Most Indigenous kids come into the justice system greatly disadvantaged, in education, in health, in access to normal community services. Many have negligible education because of early hearing loss. Some suffer from foetal alcohol syndrome and aplastic amenia, both of which serious impair judgment. In the settlements, most people have traditional languages as their first language and have limited understanding of English or legal concepts.

They have suffered from the efforts of government agencies and welfare organisations to control every aspect of their lives. The policy is based on frequent and arbitrary withdrawal of welfare benefits. The chances are very high that multiple members of one’s family have already been incarcerated in the criminal justice system and are scarred, but not reformed from the experience.

The younger the person, the more likely that their capacity to know and understand the badness of their misbehaviour. A high proportion will have their fitness to plead under close judicial scrutiny.

That the regime has become, in some jurisdictions, the law of the land is a testament to our barbarism.

That the public believes in it is neither here nor there, any more than that legislators and community representatives cannot make law authorising discrimination, banishment or loss of human rights. It says something about us that we would want it, or that we could stand it. On the other hand, the cynic might conclude there is no Australian concept of the human dignity of an asylum seeker or refugee or a Palestinian who has not been cleared by the Israeli authorities. Indigenous kids aged 10 or more should count their blessings.