More cops + more jails = more injustice
By Sue Boland
It has become predictable that state elections begin to resemble an auction, both major parties vying for the title of being the "toughest on crime". The New South Wales election campaign is shaping up to be another such auction.
Labor Premier Bob Carr has already informed NSW Police Commissioner Peter Ryan: "If police can identify another power they need to protect order and public safety, they will get it".
The newly elected opposition leader, Kerry Chikarovski, has nominated crime prevention and tougher law and order as her number one issues.
Chikarovski has announced that if the Coalition wins government in the March state election, it will introduce majority verdicts in all criminal trials, including murder trials. This would make NSW the first state to allow majority verdicts in murder trials.
Tim Anderson, secretary of the NSW Council for Civil Liberties, told the Sydney Morning Herald that majority verdicts would increase the risk of innocent people being convicted and jailed. Unanimous verdicts, he said, sustained the doctrine of "beyond reasonable doubt" and put more emphasis on jurors reaching consensus.
The Coalition's other law and order policies include tougher penalties for crimes involving guns and the recruitment of 2000 former police officers for an army-style reserve force to bolster police numbers.
However, the Coalition must have found it hard to think up law and order policies which are tougher than those proposed by the Carr government, but which are not so extreme that they could be mistaken for One Nation policies.
'Worse than conservatives'
Interviewed by 91×ÔÅÄÂÛ̳ Weekly, Tim Anderson condemned the Carr Labor government as "the worst human rights abuser, as far as state governments go, in recent decades in this state. It's been worse than previous conservative governments in terms of human rights abuse through criminal justice legislation."
In the 1995 NSW state election, Carr, then leader of the opposition, pledged to jail for life those guilty of "horrific" crimes. Since its election, the Labor government has increased police powers, implemented harsher sentences and decreased the rights of the accused, while failing to honour many other promises to improve people's living standards, such as cutting hospital waiting lists and creating jobs.
Since 1995, the Carr government has:
- introduced the Police and Public Safety Bill, which makes it illegal for anyone under the age of 16 to carry a knife, and gives the police extra powers to stop and search young people;
- given police additional powers to stop and search vehicles suspected of being used to commit indictable offences;
- maintained the Children (Parental Responsibility) Act, giving police the power to remove children under 16 from the streets after dark;
- introduced the Home Invasion Act, which grants homeowners the legal right "to reasonably defend themselves against a home invader";
- proposed that juvenile offenders tried before adult courts be named.
One Nation has also entered the law and order debate to avoid being left behind. Its platform for the NSW state election advocates youth curfews, deportation of migrants convicted of serious offences, reduction of prisoners' conditions and a mandatory death sentence for "horrific" crimes.
Widespread moves
The push for increased police powers and harsher sentences is not confined to NSW. There are similar moves afoot in other states:
- The Victorian government is proposing the introduction of majority verdicts in murder and treason trials.
- The Northern Territory has implemented mandatory sentencing so that a first offence carries a sentence of two weeks' jail, the second, two months, the third, one year, and the fourth, a two-year jail term.
- The Western Australian government introduced "three strikes and you're in" legislation in 1996. Anyone convicted of three burglary offences automatically receives a prison sentence of at least a year, with no consideration of any special circumstances.
- The South Australian government has introduced youth curfews in Port Augusta.
91×ÔÅÄÂÛ̳ Weekly asked Tim Anderson his views on the campaign by state governments to introduce harsher criminal justice regimes.
"Demands [for tougher law and order policies] have increased over the last decade with economic hard times, unemployment and economic insecurity. The demands are being driven by coalitions of property owners in country towns, and police and politicians who have latched onto it for their own short term purposes.
"It hasn't been an even process around the country. It's extremely uneven, the level to which imprisonment has increased or private jails have been argued for. The privatisation of jails has stalled completely in NSW and in Queensland, while it is being pushed ahead in Victoria by a government which is very enamoured of privatisation. At a time when imprisonment rates rose very steadily in NSW from the late 1980s, they're actually dropping in Tasmania and South Australia."
One of the limitations on the public debate about law and order issues, Anderson said, is that most people don't have much direct experience of the justice system. People's perceptions of the justice of the system are affected by their own experience, or lack of experience, with the system.
Anderson referred to the O.J. Simpson case in the US as an example. He said that if you were a white female, you would have thought it was a case about domestic violence. If you were an African-American, regardless of your gender, you would have regarded it as a case of police abuse of black men.
Fears
That lack of experience with the system can mean that people are very susceptible to aspects of the law and order agenda of the major parties.
Anderson said that the law and order push in the last decade had "been successful in coopting some progressive elements like victims' lobbies and domestic violence lobbies. Some of the [harsher law and order] changes have been a result of coalitions with progressive elements. And when I say progressive, it's really people who've got a limited agenda and aren't seeing a wider picture."
Fear of violent crime is another reason for some people, especially older people, to support harsher law and order policies.
Although older people often genuinely fear violent crime, Anderson said, "The risk of violent crime for old people is about the lowest risk of all people in the community. It's awful when you see an old person who's been bashed, but the risk of them being a victim of violent crime is far, far smaller than that of young people. Young people are most likely to be a victims of violent crime."
Anderson said that the incidence of violent crime, in the medium to long term, had not significantly shifted. However, the rates of reporting some types of violent crime, such as domestic violence and sexual assault, have risen.
Police figures are unreliable, said Anderson. Far better indicators are victim surveys. They are better indicators of the sorts of violent crimes in which the reporting rates are very variable — for example, common assault, which typically involves young males in public, domestic violence, which involves women in private, and sexual assault.
"The victim surveys demonstrate that violent crime rates haven't changed much. Certainly the murder rate has not changed much in the last hundred years", said Anderson.
While violent crime hadn't increased much, the media reporting of violent crime had increased. Anderson referred to a 1998 survey by University of Technology Law School students on media reporting of crime over the last 30 years.
From the 1960s onwards, they found, while the crime rates had not changed, the reporting of it in the daily newspapers increased 300%. Most of that increase was in the late 1970s and early 1980s.
Anderson said that the Carr government's steady increase of police powers over the last couple of years "is mainly aimed at young people, because the Carr government has a very bad attitude to young people. The power to search for knives is a serious breach of human rights because it introduces an arbitrary search power into the police arsenal. It's resulted in much higher arrest rates for young people, but it hasn't impacted on crime and community safety at all."
Frame-ups
On corruption and police frame-ups, Anderson says that people usually have a very simplistic view. He mentioned the example of journalists wanting to write about someone who's been framed, "but they're only interested in people who don't have a criminal record".
"The majority of people who are framed, loaded up with evidence and verballed for crimes are typically people who are institutionalised, who've been through the system and have criminal records.
"There are no firm figures [but] over the years my estimate would be that about 5% of people in the New South Wales prison system of approximately 7000 people are likely to have had evidence fabricated against them and then been convicted of some charge. So we're talking hundreds of people at any one time."
Anderson said that it wasn't as though the police normally do the right thing — properly getting evidence and properly putting it before the courts — then all of a sudden decide to fabricate evidence and frame someone. "They don't do it out of the blue. They are just using the techniques they are using every day against people who they find difficult to convict — people with criminal records."
Community safety
One of the justifications used by politicians to pursue law and order policies is the public desire for crime prevention and greater community safety.
"The problem is that crime prevention and community safety are not the same as law and order policies", Anderson told 91×ÔÅÄÂÛ̳ Weekly.
"For the mass of offences, the level of police powers, the numbers of police and the harshness of sentencing have had hardly any impact on community safety and crime prevention.
"On the other hand, there are a lot of good initiatives that do have an impact on crime prevention, such as domestic violence education campaigns, decent infrastructure like good lighting on train stations and more staff on train stations, having social workers in shopping malls instead of just security guards, disarming the community through gun control and anti-violence programs. Some of those things have been quite successful, but none of them are really to do with law and order policy."
The sorts of solutions advocated by Anderson are the opposite of what the Carr government has done with the Home Invasion Act.
The legislation was originally introduced by John Tingle, MLC for the far-right Shooters Party, to "legitimise people's use of guns to shoot intruders in their house", noted Anderson. "The existing common law position has always been that you're entitled to use reasonable force to defend yourself, particularly in your home."
Attaching criminal immunity to someone is dangerous, suggested Anderson. "There are a lot of reasons why people may intrude on your home without being there to murder you. People come to the wrong door and kids wander into people's backyards to get balls. They could get shot.
"Wanting to defend yourself, is not a legitimate reason to have a gun licence now ... people do not need guns to defend themselves in a society like Australia."
Anderson pointed out that another aspect of the Carr government's law and order package is the destruction of rights that are protected under international human rights conventions, such as the right to remain silent. This right is now under threat.
The Carr government's latest plan is to require that the defence disclose its case to the prosecution well in advance of the trial. At the same time, there are massive cuts to legal aid and the virtual abolition of committal proceedings at which the defence can examine prosecution evidence. This means that the requirement for the prosecution to disclose the details of its case has diminished while the defence will have to disclose its case in advance.
Anderson also pointed to other areas where people's rights have been removed, such as the police stop and search powers for knives under the new Summary Offences Act. Police now just pick up large groups of young people from the street in places like Cabramatta and Canterbury on the excuse of searching them. Ethnic and Aboriginal youths in particular are targeted.
Anderson said that until a study was released in early 1998, it was assumed that most racism was at the level of the police, but the survey showed it took place in the courts, leading to an over-representation of indigenous people, particularly young indigenous people, in jail. Vietnamese and Lebanese youth are also over-represented.
Another problem for young people is private security guards. In shopping malls, which are private property but include public facilities such as post offices, cinemas and banks, security guards use trespass laws to ban young people.
For young people, there's nowhere else safe to go — there are police harassing you on the street and security guards hassling you in the malls. Freedom of movement is increasingly restricted, but that does not mean increased community safety.