41 ‘Law and order’ policy

‘Law and order’ policy refers to the decisions and actions of governments relating to issues of crime and justice.^[1] Policy in this area has traditionally been referred to as criminal justice policy but is more commonly being referred to as ‘law and order’ policy – reflecting the increasing punitive nature of debates, laws and policies in the criminal justice domain. In the interests of simplicity, reference will be made to law and order policy throughout this chapter.

In Australia, states and territories are responsible for law and order policy. Consequently, the laws and procedures used in each state and territory to define criminal conduct and determine how crimes are investigated, arrests made, evidence gathered, charges brought, defences raised, trials conducted, sentences rendered and punishment carried out will be slightly or significantly different. Laws determining what types of conduct should be the subject of the criminal justice system are shaped by the social, political and moral concerns of the day.

The criminal justice system is (mainly) composed of three key government institutions: the police, courts and prisons.

• Police: the primary role of police is to enforce the criminal law, maintain public order and ensure community safety by investigating criminal activity and apprehending suspected offenders. Policing agencies are made up of numerous branches and sections, often with particular cultures, ways of operating and priorities. For example, most state policing agencies will have (among many others) separate investigation, traffic, water, air, counterterrorism, intelligence, education, community engagement, policy and management units.
• Courts: the court or judicial process is concerned with determining whether an individual is guilty or not guilty of the offence(s) they have been charged with. If there is a finding of guilt, the magistrate or judge decides on a sentence to impose upon the offender that adequately reflects the seriousness of the crime committed and the circumstances surrounding the offence. Criminal courts operate at different levels, with higher courts presiding over trials for more serious crimes that attract more severe penalties. Courts manage significant numbers of cases annually and are the gatekeepers that decide who is sentenced to prison.
• Prisons: imprisonment is a form of punishment that is reserved for those who have (generally) engaged in very serious offending and when no other form of punishment is appropriate. Prisons are places of confinement, where the offender is deprived of their freedom and autonomy. Prison services have to manage the prisoners and alleged offenders (in the case of remand) sent to them by police and the courts. Prisons operate according to security levels, with more serious or protected inmates being housed in more secure facilities.

This brief overview of the criminal justice system highlights the role of key (but not all) institutions and points to the different functions of each institution. It also shows that different parts of the criminal justice system can be heavily impacted by other agencies. For example, if police assume a pro-arrest policy, which brings more alleged offenders into the system, it is likely that the courts and prisons will need to deal with a greater number of cases and entries into custody.

Law and order policy has become increasingly punitive over time. This has been referred to as ‘hyper-criminalisation’^[2] and has provided greater opportunities for police to interact with and sanction people, a greater likelihood that someone entering the criminal justice system will receive harsher penalties and a greater likelihood that people will remain in or return to the criminal justice system.

Political cycles and news media play critical roles in law and order policy making. Political parties often seek to appear ‘tough on crime’ through various announcements, most frequently prior to an election. Promising more police, and the introduction of sophisticated technologies to detect and help arrest offenders and of tougher criminal sanctions are often the stock-in-trade of major political parties at election times.

News media facilitates the communication and reinforcement of political law and order messages, while also exacerbating public fear by disseminating endless stories featuring horrific and extraordinary incidences of crime. Crime stories are designed to capture the public’s interest and intensify public discussion on the issue in question, often by eliciting feelings of fear and insecurity or creating moral panic within society.^[3]

Hogg and Brown^[4] thematically summarised the ‘common sense’ assumptions about crime that underpin the beliefs held by a significant proportion of the Australian population. These ‘common sense’ assumptions still ring true in modern society. Their essence is epitomised by the following commonly held views:

• crime rates are at an all-time high – we currently live in a society characterised by unprecedented levels of crime
• more police officers with more police powers and tougher penalties on offenders are needed to combat the crime problem.

Popular misconceptions of the current ‘crime epidemic’ and need for harsh crime control and punishment have been largely disseminated in the public domain by news media, politicians and other influential figures.^[5] A fearful public demands or requires governments to take law and order policy seriously – or so we are told.

What’s at stake?

There is a lot at stake in the context of law and order policy making. Those who come into contact with the criminal justice system can lose their liberty (through imprisonment), their ability to move freely (through place restrictions and conditions attached to various sanctions) and their ability to work in particular industries (e.g. an individual may not be allowed to work for a fire service if they have been convicted of arson), not to mention the impact on victims of crime. Some of the additional human and financial costs are considered here.

Human costs

Law and order policy has significant ramifications for those entangled in the criminal justice system. Below are some examples of the ways in which law and order policy can impact lives:

• expanded police powers and ‘zero tolerance policing’ result in greater numbers of people being searched, fined and charged, often for minor offences
• the use of electronic monitoring and urinalysis in the supervision of community-based offenders means that people are being tracked and surveilled in increasingly intense ways
• the rise of ‘supermax’ prisons means that some prisoners are being confined for long periods with little or no contact with other prisoners or the outside world
• sex offender registers mean that those convicted of particular sex offences will have their movements monitored for lengthy periods following their release from prison.

Taken together, the rise and intensification of these practices means that more people are entering the criminal justice system, staying in it for longer and returning more frequently, instigating a vicious cycle of offending.

Financial costs

The criminal justice system operates at great economic expense. The Australian Productivity Commission^[6] calculated expenditure on the criminal justice system in 2016–17 as follows:

• $10.9 billion on policing (not including federal police)
• $1.4 billion on courts
• $4.1 billion on corrective services (prisons and community corrections)
• $769.5 million on youth justice services (detention-based supervision, community-based supervision, group conferencing).

To put some of the above figures in context, it costs approximately $391 per day to keep an adult in prison, whereas community-based supervision only costs approximately $18 per day.^[7] The costs of detaining juveniles are exponentially higher than adults; the cost of detaining one young person averages $1,482 per day and the cost of community-based supervision averages $140 per day.^[8]

In Western Australia (WA), more than 1,000 people each year are imprisoned for unpaid fines, with an average imprisonment period of four days.^[9] In addition to the cost of $345–$770 per day to detain them in prison, such short imprisonment periods have negligible, if not negative, impacts on rehabilitation or deterring future fine defaults.^[10] Expenditure that does not serve an outcome is bad economics – and imprisonment for unpaid fines appears to fall under this category.

Given these significant costs, it is important that law and order policy uses public funds in the most efficient and effective manner. Every dollar spent on inefficient law and order policy represents one less dollar spent on education, public infrastructure, welfare and so on.

The context and characteristics of ‘law and order’ policy

There are a number of characteristics of law and order policy that require attention. First, it is important to reflect on some recent significant trends in crime. The first is (generally) falling crime rates. The second, perhaps counterintuitively, is the rise in criminalisation and punishment, especially through imprisonment.

Crime trends

It is important to give some consideration to crime trends. It might be expected that crime trends drive law and order policy making, but, as will be shown, this is not necessarily the case.

Many major crime categories in Australia, as in many other Western societies, have been experiencing consistent declines since the turn of the 21st century. Incidents of some crime types in some Australian jurisdictions are at historic lows, meaning that there has never been a safer period of time to reside in these parts of Australia. Table 1 compares the number of reported incidents of particular crimes (by category) that occurred in Australia in 2000 and 2017.

The increase in reported incidents of sexual assault does not necessarily signify a proportionate increase in the prevalence of sexual assault or a greater likelihood of becoming a victim of such crimes. The reporting rate of sexual assault has historically been extremely low. Greater awareness and education surrounding sexual assault among the general public in recent years raises the probability that its statistical increases may (at least partially) be attributed to an increased willingness to report incidents and better police recording practices.^[11]

Furthermore, official crime statistics do not represent an objective truth; one must be mindful of taking them as an accurate reflection of reality. Numerous factors will affect crime statistics, including the quality of data collated, counting rules, police practices both in reporting and in the activities they target, and whether the statistics are intended to be used to frame political or other agendas.

An increasingly punitive society

Despite the significant declines in many crime types, there has been rapid growth in criminalisation and punishment. This has been referred to as the ‘punitive turn’.^[12] It has occurred through the proliferation of new laws, which has been described as ‘hyper-criminalisation’, and the increasing use of punishment.

Throughout the last decade, a significant number of hastily crafted laws have passed through various state and territory parliaments, resulting in the expansion of law enforcement powers, the creation of new offences, the amendment of the rules of criminal procedure and increased maximum penalties for offences.^[13] These laws are often responses to the ‘problem of the day’ and are designed to alleviate public concern, rather than resolve the underlying causes of crime.

Below are some examples of punitive law and order policies that have been introduced in recent years:

• revival and expansion of consorting offences^[14] in New South Wales (NSW)
• creation of ‘one-punch’ homicide in NSW, Queensland and Victoria
• creation of an organising an ‘out-of-control’ party offence in WA and Queensland.

It has been argued that the effect of these (and other) laws and powers is to further criminalise marginalised groups in society, such as the poor and ethnic minorities.^[15] Furthermore, there has been increasing co-ordination of criminal laws between jurisdictions – one announces a new policy to get tough on crime, and others will follow or attempt to introduce policies that are even tougher on crime. This is a form of ‘policy transfer’, which will be discussed later.

In concert with the growth in these and other criminal laws and sanctions has been the growing use of punishment, especially imprisonment. The daily average imprisonment rate in Australia in 2018 was 222 prisoners per 100,000 population.^[16] In 1976, before law and order policy began to take hold in Australia, there were just 77.8 prisoners per 100,000 population.^[17] On average, there were 42,878 people in prisons in Australia during the April–June quarter of 2018 – up from 30,835 in 2013 and 26,640 in 2008.^[18]

This growth has been driven, at least in part, by the rising remand population (i.e. those held in custody while awaiting resolution of their court matters) and the imposition of longer prison sentences by courts. To provide some context, in the June 2018 quarter, 13,182 people were held in prison awaiting finalisation of their matters in court. This is more than double the 6,482 prisoners on remand a decade earlier.^[19] Of particular concern, around half of all people on remand are released without having to serve further time in prison because they are either found not guilty, given a community order or deemed to have served their time while on remand.^[20]

The increased remand population is at least partially explained by changes to bail laws. Historically, there was a uniform presumption in favour of bail for those who had been charged with an offence but not yet convicted – thus, unless there were good reasons to refuse bail, it would be granted. Over time, bail laws have undergone numerous waves of reform, gradually removing the presumption in favour of bail for more and more offence categories. It varies between jurisdictions, but at present there is a presumption against bail for a number of offence categories, including:

• terrorism
• violence
• sex
• domestic violence
• drug
• bushfire
• blackmail
• organised crime
• driving.

Moreover, legislative amendments to parole and sentencing laws – for example, mandatory non-parole periods and mandatory sentencing – have curtailed the discretion of parole boards and courts, contributing to longer periods of imprisonment. Most Australian jurisdictions have passed ‘no body, no parole’ laws that do not permit parole to be granted to offenders convicted of murder or manslaughter if they have not revealed the location of the victim’s body. The controversial ‘truth in sentencing’ laws introduced in NSW in 1989 require sentenced offenders to serve a minimum of three-quarters of their sentence before they are eligible for parole. Since the enactment of this legislation, prison numbers and average sentence lengths have risen dramatically.

It is also important to note that the imprisonment rate for the Indigenous population is 15 times higher than for the non-Indigenous population. In the June 2018 quarter, 28 per cent or 11,963 of Australia’s inmates were Aboriginal and Torres Strait Islander people.^[21] By comparison, Aboriginal and Torres Strait Islander people constitute just 3.3 per cent of Australia’s overall population.^[22] This has been further exacerbated by many of the previously mentioned crime trends, and it continues to be a stain on Australian criminal justice systems and policies.

Unsurprisingly, the combination of all the above conditions has led to significant prison overcrowding; in 2016–17, on average, secure prisons in Australia held 21 per cent more prisoners than their maximum design capacity.^[23] Prison overcrowding compromises inmates’ ability to access adequate programs, services and facilities as well as their right to privacy – all of which may impede their rehabilitation progress and increase their risk of reoffending. Furthermore, overcrowding increases the likelihood that disagreements will escalate into violent situations, presenting a danger for both staff and inmates.

Moving away from penal welfarism

Law and order policy has not always been excessively punitive. The majority of the 20th century was characterised by welfare-focused public policy. From a crime reduction perspective, it was believed that the provision of social welfare services would not only reduce poverty but also reduce the crimes that stemmed from social and economic disadvantage. The objectives of welfare-style policies were twofold: first, welfare support would address the underlying structural causes of crime (such as poverty, social inequality, community disharmony), and second, the state had a duty to rehabilitate offenders through the provision of welfare support, care and assistance. The term ‘penal welfarism’ has been used to describe the integration of welfare and rehabilitation principles in punishment practices.^[24] The ethos of penal welfarism is evident in policies such as:

• early release from prison
• parole supervision
• juvenile courts and their child welfare philosophy
• individualisation of treatment based upon expert assessment
• research on treatment effectiveness
• post-release support for prisoners
• education in prison.

This penal welfare approach to crime and punishment faced a predicament during the ‘law and order crisis’ of the late 20th century. The 1970s and 1980s saw a significant surge in violent and property crime rates. The efficacy of rehabilitation focused penal welfare policies came under question. Moreover, governments had to devise solutions that would allow them to maintain social control and state legitimacy in an environment that was perceived to be experiencing a crime epidemic. Under such conditions, the welfare state was gradually eroded by neoliberal rationalities (the reassertion of market principles and minimal state intervention), which resulted in a hybrid political economy that subscribed predominantly to neoliberal principles but retained elements of penal welfarism.

Neoliberalism shifted how people thought about the nexus between crime and the state. Less emphasis was placed on the perception of crime as a by-product of the social and economic deficits of the individual; rather, crime is now considered to be the result of individual autonomy and free choice. Individuals are held to account for their actions and penal sanctions are seen as the appropriate response to crime. Neoliberalism and the rise of the penal state place the onus of responsibility on the individual, and access to welfare assistance is conditional on one’s compliance with societal rules.

The modern hybrid penal welfare policies have shifted focus towards:

• efficient management of the criminal justice system and its agencies through the use of key performance indicators, the competitive tendering process and privatisation of services
• effective risk management of ‘dangerous groups’ of people – which has been termed ‘new penology’ or ‘actuarial justice’ – instead of focusing on individual needs
• harm minimisation and crime control, instead of preventing the occurrence of all criminal activity
• fear reduction and improving the public perception of crime
• retribution in punishment, instead of offender rehabilitation.

Many of the examples found in this chapter also reflect the shift towards neoliberal tendencies and developments.

Actors and politics of ‘law and order’ policy

Law and order policy making is a complex process that operates in a highly politicised public arena and involves a multitude of interrelated actors – each with differing degrees of interest, power and influence over the policy-making process and its ultimate outcomes.

Political actors

‘[A] harsh criminal justice system – in particular, more prisons and people behind bars – has apparently become a hallmark for good government.’^[25] Ministers for criminal justice-related portfolios and their advisers play a critical role in determining law and order policy. Politicians have strategically utilised the public’s fear and misconception of crime to elicit popular political support and to legitimise punitive policies. During state and territory election campaigns in Australia, politicians compete to outdo one another with policies that are ‘tough on crime’. The frequent use of punitive measures seems to be more focused on allaying public anxiety about crime and certain groups of offenders, rather than on tackling the underlying causes of offending behaviour.

‘Tough on crime’ policies have great political and community appeal; they supposedly provide an easy and quick solution to the perceived crime problem. Building more prisons to incapacitate ‘dangerous’ offenders is seen as an immediate and tangible solution; in comparison, rehabilitation programs are perceived as expensive, and their outcomes will not be realised until many years later.

News media

The news media consistently plays a prominent role in defining and heightening public anxiety about ‘lax’ laws and ‘soft’ government responses to the perceived crime problem. Television and print media are important sources of crime information for more than 80 per cent of Australians.^[26] But unfortunately, their coverage of crime is too often an inaccurate reflection of reality. Rare incidents of violent and serious crime are extensively publicised, with great dramatic flair and sensationalistic reporting.

There are multiple examples of the media abusing official crime statistics by habitually distorting, misrepresenting and exaggerating the extent of crime. For instance, in 2008, a misleading newspaper article titled ‘Kid crime rampage’ was published. The title leads readers to believe that kids are engaging in vast amounts of illegal activity. However, crime statistics reveal that the number of young people coming to the attention of police has been declining over time, and less than 1 per cent of the population aged 8–9 in NSW had any contact with police in the 12 months prior to the publication of the newspaper article.^[27]

Public perception of crime has far reaching consequences for the criminal justice system and the wider community. Public confidence in the criminal justice system is undermined by mistaken views about crime, which, in turn, negatively impacts the efficient operation of the criminal justice system. Furthermore, public perception of the legitimacy of the criminal justice system is an influential factor in policy decisions and judicial sentencing.

Criminal justice professionals

This group includes an extensive range of professionals who work in the criminal justice system, such as judges, police, lawyers, prison staff and social workers. Criminal justice professionals implement and enforce law and order policy in carrying out their daily responsibilities. A significant amount of their work involves discretionary decision making; formal organisational policies, informal norms and personal values are likely to influence the way in which discretion is exercised. Ultimately, professional discretion determines the way in which criminal justice policies are implemented and the impacts they have on others.

Penal reform groups

Penal reform groups are cause-specific organisations that often advocate for human rights and better treatment of offenders. Many of these groups seek to correct the injustices faced by offenders by bringing them to the attention of the public – creating media campaigns, lobbying politicians and making formal submissions on policy issues. Some of the issues that are of concern for penal reform groups include:

• poor living conditions and degrading treatment experienced in prisons
• lack of post-release support for offenders
• high incarceration rates of Aboriginal and Torres Strait Islander people.

Victim interest groups

Some victim interest groups are primarily focused on providing practical and emotional support to victims of crime, while others campaign to enact policy change. Victims of crime have a powerful voice when it comes to influencing law and order policy. A victim’s anecdotal experiences can have considerable public appeal – stories of injustice have the capability to arouse sympathy and evoke intense feelings of anger and moral indignation among the general public. Furthermore, victim groups often have insider access to politicians and the policy consultation process, and may be invited to make policy submissions.

Single-issue campaign groups

Single-issue campaign groups are similar to penal reform groups and victim interest groups, except that campaign groups generally arise out of widely publicised perceived injustices and seek to influence law and order policy pertaining to a single issue of concern.

General public

Members of the general public can influence law and order policy by expressing their views through a variety of mediums, including:

• voting at state elections
• participating in opinion polls
• signing petitions
• publishing comments on social media
• providing feedback or comments on talkback radio
• contacting the local member of parliament.

Given that politicians are in the business of staying in or attaining office, it is in their interests to align their policies with widely held public sentiments. Moreover, politicians do not merely react to public sentiment; public sentiment is heavily influenced by political agendas and media coverage on crime.

Criminal justice experts

Criminal justice experts are often involved in the policy-making process in some capacity. They may include: academics, commercial research companies and think tanks. Criminal justice experts will often advocate for policy changes in response to system deficiencies that have come to their attention as a result of their professional work. Experts may be consulted in the process of drafting policy documents or be asked to advise ministers on issues within their field of expertise. They may also make submissions to parliamentary inquiries. At times, governments will utilise expert opinion to legitimise their policy decisions.

Private-sector firms

Governments contract out some of their responsibilities to the private sector. For example, although the punishment of offenders is a state responsibility, the government has contracted private-sector firms to operate prisons in Australia. Private-sector firms who provide criminal justice services have a vested interest in any policy developments that may impact how they operate in this area.

How ‘law and order’ policy is made

Various approaches, theories and models have been developed to explain and analyse the law and order policy-making process. The different actors and the extent of their respective contributions and influence on law and order policy are contingent on the policy-making model adopted. A small number of models, and ‘policy transfer’ in law and order, will be considered here.

Models of law and order policy making

Table 2 provides an overview of the core models of law and order policy making, drawn from Hobbs and Hamerton.^[30] The law and order policy-making process does not strictly follow any of these models; rather, it combines different elements from each model. For less contentious law and order issues, policy makers generally employ more elements of the rational decision model, which focuses on evidence-based policy making. Issues that elicit greater political contestation or are hasty responses to extraordinary criminal incidents tend to result in the adoption of the elite model of policy making.

Policy transfer

The formulation of purely original and innovative public policy rarely occurs in the criminal justice space; rather, policy makers often draw inspiration from policies in other jurisdictions, both within and outside their country.^[31] This practice is known as policy transfer. Policy transfer occurs in multiple forms. Policies from another jurisdiction may be:

• directly copied and transferred to the target jurisdiction
• emulated by copying some elements and adapting them to suit local conditions
• used to inspire the final policy outcome
• combined to achieve the policy outcome.

Below are some examples of Australian law and order policies that have been imported and adopted from other jurisdictions:

• Prison privatisation: traditionally, all Australian prisons were operated by state and territory governments. But over time the private sector has been given responsibility for operating prisons. The privatisation of criminal justice services first originated from neoliberal ideals in the USA. The growing acceptance of neoliberal ideas saw a remarkable shift in the way the population thought about state ownership and control, suggesting that the operation of state institutions should be subject to market forces of competition and efficiency. Thus the concept of private prisons was born, resulting in the commodification of punishment.
• Risk instruments: a range of risk assessment tools that first emerged in the USA are used in the Australian justice system. These tools assess the level of risk a person poses to society. This then largely informs the way in which they are dealt with in the justice system – for example, whether bail or parole is granted.
• Political law and order slogans: law and order style rhetoric from the USA and UK has been often transferred into the Australian context. Examples include:
  • UK Prime Minister Tony Blair’s ‘tough on crime, tough on the causes of crime’ political slogan and rhetoric
  • US President Ronald Reagan’s ‘war on drugs’ political campaign.

In addition to importing policies from foreign jurisdictions, Australian policies have also been exported. Restorative justice^[32] is an example of a policy that first emerged in Australia and New Zealand that has since gained traction in the USA and UK.

Intergovernmental interactions

The process of law and order policy formulation and implementation in Australia is further complicated by the country’s constitutional and jurisdictional structure. State and territory governments have predominant control over law and order policy, but the Commonwealth government has gradually encroached upon these traditional state-based responsibilities. Additionally, international agreements and guidelines for best practice may be considered in the policy formulation and implementation process.

Commonwealth–state

The Constitution gives state and territory governments the power to enact, implement and enforce law and order policy within their borders. The Commonwealth is responsible for law and order policy that extends beyond state and territory borders or crosses those borders – for example, drug importation, customs fraud and illegal immigration. The significant overlap between Commonwealth and state responsibilities can be a source of tension.

State and territory governments are heavily reliant on Commonwealth funding – more than half of their funding is provided by the Commonwealth government.^[33] Often Commonwealth funding will be conditional, or tied to a certain project, policy area or outcome. This has the effect of enabling the Commonwealth to influence the way in which resources are allocated in the criminal justice system.

International–national

United Nations (UN) resolutions, declarations and treaties promote universal human rights and can be employed as tools to protect against punitive law and order policy.^[34] Australia, as a UN member state, has ratified a number of UN treaties and is accountable to the international community in its compliance with its treaty obligations. Table 3 summarises one of the major UN treaties that protects against excessively punitive policies.

In addition to the ICCPR, below are examples of other UN treaties and resolutions that have the potential to protect against punitive law and order policy:

• Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules) (2015) https://bit.ly/2pc54bg
• Convention on the Rights of the Child (1990) https://bit.ly/2pRZE52
• Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules) (1985) https://bit.ly/2Nem4Wn
• Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (1985) https://bit.ly/2WjtR9y

While Australia has ratified several UN treaties, for the most part the government does not recognise these treaties to be legally binding and often treaty obligations are not enforceable. However, even without legal status, these treaties have an effect – they can influence and guide law and order policy and provide an antidote to punitive policies.

Non-agenda issues: corporate crime

Much of the preceding commentary demonstrates a preoccupation with what might be categorised as ‘street crime’ – crimes that take place in public spaces, such as assault, theft and drug crimes. The nature of street crime can be contrasted with ‘corporate crime’ and ‘white-collar crime’ – abusing one’s profession to gain specific access to a crime target.^[35] Often, such crimes are motivated by financial gain and are non-violent in nature. Corporate crime covers a diverse range of activity – ranging from short-changing customers, employee theft, enticing bribes and violating client privacy to falsifying insurance claims, dumping toxic waste, tax evasion, money laundering and insider trading.

It can be argued that corporate crimes are the most harmful category of crimes – such crimes likely account for a greater number of deaths than those committed by ‘common’ murderers,^[36] and corporate decisions made in the interests of profit can have a series of harmful effects that are borne by the wider public. For example, James Hardie Industries manufactured asbestos building products throughout Australia from 1937 to 1986, despite becoming aware of the health complications caused by asbestos in the 1960s.^[37] It has been projected that 18,000 Australians will have died from asbestos-induced cancer (mesothelioma) by 2020.^[38]

A more recent example occurred on the Gold Coast in 2016, when Dreamworld’s ‘Thunder River Rapids’ ride malfunctioned and caused the deaths of four people. In the pursuit of profit, Dreamworld reduced its maintenance and repair expenditure. The theme park ride was overdue for maintenance by seven months and had malfunctioned on prior occasions (including on the day of the fatalities).^[39]

In the above cases, it can be argued that both corporations engaged in negligent behaviour (at the very least) and disregarded the sanctity of human life, yet no criminal charges were brought against their executives. Nor did these events instigate a ‘tough on corporate crime’ political campaign or punitive reform of corporate regulations. In fact, Australian regulatory bodies rarely employ the criminal law when policing corporate entities and their behaviour.^[40] Corporate breaches are often resolved with monetary settlements, and there is relatively little media attention paid to them. News media are largely uninterested in reporting corporate crime – often the facts are complex and hard to convey to a lay audience.^[41] Corporate crime does not evoke comparable degrees of moral outrage and intense emotions among the public to ‘traditional’ forms of crime. Consequently, law and order policy often targets the urban poor, working-class youth and non-white minorities, while placing the wealthy and powerful above the purview of the law.^[42]

The legal impunity surrounding corporate crime suggests that a death caused by corporate greed is more forgivable and less morally offensive than a death caused by a murderer driven by self-interest. But is there really any material difference?

Conclusions

In recent decades, law and order policy in Australia has become excessively punitive despite the consistent decline in crime. Numerous policies have been introduced in the name of community safety and social order, but, when applied in practice, they unnecessarily criminalise a broad range of behaviours and impose disproportionately harsh penalties upon those who engage in (some forms of) criminal behaviour.

The formulation of law and order policy is fraught with complexities, contestations and political power plays. It involves an array of actors with diverse and often conflicting perspectives, all seeking to influence the direction of law and order policy. Amidst these debates, politicians have been able to exploit the public’s (somewhat irrational) fear of crime, which has been predominantly driven by sensationalistic media coverage, to elicit popular support for ‘tough on crime’ policies.

Punitive law and order policy is costly – in both human and financial terms. Consequently, it is important to ask whether the benefits gained from ‘getting tough’ on the supposed crime problem can justify the damage it creates. Furthermore, it is important to recognise the disproportionate adverse effects of punitive policies on the most vulnerable groups in society. Law and order policy, as it currently stands, has the effect of excessively criminalising and punishing poverty and desperation. More needs to be done to ensure that there is equality before the law and punishments imposed are proportionate to offences committed.

References

About the authors

Dr Garner Clancey is an associate professor in criminology. Before joining the University of Sydney Law School in 2011, Garner worked as a crime prevention consultant (between 2002 and 2010) and in criminal justice (including Juvenile Justice NSW and the NSW Police Force) and alcohol and other drug agencies in NSW and England (between 1992 and 2002). Garner’s research interests include crime prevention, youth crime, juvenile justice and criminal justice policy making.

Brenda Lin is a research assistant and works with Dr Garner Clancey at the University of Sydney Law School. She has a strong interest in criminology, criminal justice policy, crime prevention, young offenders and juvenile justice, corrections and victimology. She completed her postgraduate degree in criminology and undergraduate degree in commerce at the University of Sydney.

Brendan Delahunty has a longstanding interest in how police and other government agencies work with local communities on issues affecting children and young people, Aboriginal communities and families impacted by family violence. His crime prevention work for the NSW Ombudsman included research into the links between crime, child neglect and disengagement from education. He also led a national project into the policing of illicit drug use in remote communities, and wrote about the risks to children in out-of-home care for the Royal Commission into Institutional Responses to Child Sexual Abuse.