{"id":14831,"date":"2024-09-21T10:45:51","date_gmt":"2024-09-21T00:45:51","guid":{"rendered":"https:\/\/rationalemagazine.com\/?p=14831"},"modified":"2024-09-21T10:45:51","modified_gmt":"2024-09-21T00:45:51","slug":"law-and-order-in-australia-has-a-blind-spot-human-rights","status":"publish","type":"post","link":"https:\/\/rationalemagazine.com\/index.php\/2024\/09\/21\/law-and-order-in-australia-has-a-blind-spot-human-rights\/","title":{"rendered":"Law and order in Australia has a blind spot: human rights"},"content":{"rendered":"

When media reports emerged earlier this year about a new youth\u00a0\u201ccrime wave\u201d<\/u><\/a>\u00a0of robbery, break and enter, and car theft in the northwestern NSW town of Moree, it wasn\u2019t hard to predict what would happen next \u2013 and what the government would do about it.<\/p>\n

A new criminal law (or two) would be created, conveying a \u201ctough on crime\u201d message. Voices of opposition would warn about the adverse implications for human rights. These warnings would be ignored, deflected or minimised.<\/p>\n

A new bill would then be hurried through parliament with bipartisan support (with the opposition pausing only to take a shot at the government for not going far enough), and the 8 million residents of NSW would wake up the next day to an expanded criminal law statute book.<\/p>\n

The \u201ccrisis\u201d may have been local, but, in the parliament\u2019s wisdom, the \u201csolution\u201d would apply statewide \u2013 from Broken Hill to Bankstown and from Alstonville to Albury. And that is exactly what happened.<\/p>\n

Laws rushed through parliament<\/b><\/h2>\n

The NSW government introduced the\u00a0Bail and Crimes Amendment Bill<\/u><\/a>\u00a0on March 12 this year. On March 19, the Legislative Review Committee (a parliamentary body that scrutinises all bills for potential human rights infringements) raised some concerns about the proposed new law, and lawyers groups and human rights organisations\u00a0pleaded<\/u><\/a>\u00a0with the government to reconsider.<\/p>\n

Undeterred, the lower house passed the bill the same day, and the upper house followed suit three days later. The whole exercise \u2013 involving significant change to two of the state\u2019s most important criminal justice system statutes \u2013 \u00a0took just 10 days.<\/p>\n

The Bail Act 2013 (NSW) now provides a restrictive new bail access regime,\u00a0section 22C<\/u><\/a>, that applies specifically to children accused of car theft or serious break and enter offences.<\/p>\n

The Crimes Act 1900 (NSW) now contains a new \u201cperformance crime\u201d provision,\u00a0section 154K<\/u><\/a>, that adds two years to the maximum penalty for car theft and break and enter offences, where the person convicted is found to have\u00a0\u201cposted and boasted\u201d<\/u><\/a>\u00a0about the crime on social media.<\/p>\n

The reason this was all so predictable is that it has happened so many times before.<\/p>\n

For decades, scholars of criminal law and criminology have documented and critiqued the pernicious effects of \u201claw and order\u201d political culture and the role it plays in the proliferation of punitive criminal laws.<\/p>\n

In their 1998 book\u00a0Rethinking Law and Order<\/i>, Russell Hogg and David Brown wrote:<\/p>\n

It is a core assumption of law and order common sense that crime must be combatted by enhancing the powers and resources of the criminal justice. Yet as soon as we step outside the parameters of common sense and consult some of the sources of knowledge it habitually ignores, we discover the folly of this assumption.<\/em><\/p><\/blockquote>\n

One of those \u201csources of knowledge\u201d that governments often ignore in seeking to address crime is human rights norms.<\/p>\n

Is Australia really a \u2018good guy\u2019?<\/b><\/h2>\n

And herein lies one of the paradoxes of Australian political culture.<\/p>\n

Leaders love to\u00a0extoll Australia\u2019s virtues<\/u><\/a>\u00a0as a rights-respecting \u201cgood citizen\u201d of the world. After all, it was our own H.V. \u2018Doc\u2019 Evatt who played a central role in the\u00a0founding of the United Nations<\/u><\/a>\u00a0and the\u00a0adoption of the Universal Declaration of Human Rights<\/u><\/a>.<\/p>\n

Consequently, it is part of Australia\u2019s national identity that we are one of the \u201cgood guys\u201d when it comes to protecting and respecting human rights.<\/p>\n

But when fear and anxiety about crime bubble up to the surface, nuanced responses tend to be drowned out. The imperative of \u201ccommunity protection\u201d pushes human rights to the margins.<\/p>\n

This is especially the case when the rights at stake are the liberty and due process rights of a person accused of a crime.<\/p>\n

There is a racial dimension to this pattern, too. Over-policing, over-criminalisation and over-incarceration of Aboriginal and Torres Strait Islander peoples are seemingly intractable features of the Australian criminal legal system.<\/p>\n

All levels of government have committed to achieving reductions under the\u00a0Closing the Gap<\/u><\/a>\u00a0initiative. And yet, changes like the\u00a0Bail and Crimes Amendment Act 2024 (NSW)<\/u><\/a>\u00a0will make things worse, not better.<\/p>\n

In 2023, in regional NSW,\u00a053 percent of police actions<\/u><\/a>\u00a0for property crime involved an Aboriginal person. Even before these bail restrictions were introduced, Aboriginal children were\u00a0grossly over-represented<\/u><\/a>\u00a0in the remand population.<\/p>\n

Some \u201claw and order\u201d crises are manufactured; some are supported by evidence. There was evidence of\u00a0increased levels of crime<\/a>\u00a0in Moree and some other parts of NSW. However, the issue is not that governments should ignore genuine concerns about crime and safety \u2013 it\u2019s that the tendency to routinely turn to\u00a0<\/i>more criminal law as the \u201csolution\u201d is a problem.<\/p>\n

The challenge is to find a way out of the dichotomy of community protection versus human rights. It is too easy to treat the former as always trumping the latter.<\/p>\n

At the same time, the assumption that things would play out differently if NSW (or Australia) had a\u00a0Human Rights Act<\/u><\/a>\u00a0or bill of rights is not necessarily correct.<\/p>\n

Just last year, the Queensland parliament passed legislation\u00a0overriding<\/u><\/a>\u00a0the Human Rights Act 2019 (Qld) to clear the way for the detention of children in adult watch houses \u2014 a practice that\u00a0disproportionately affects Indigenous children<\/u><\/a>.<\/p>\n

In Victoria, the\u00a0Charter of Human Rights and Responsibilities Act 2006 (Vic)<\/u><\/a>\u00a0requires the government to prepare a statement of compatibility for each new bill, but the requirement is procedural, nor substantive, meaning that the proposed new law doesn\u2019t actually have to be human rights compatible.<\/p>\n

Little chance of overturning laws<\/b><\/h2>\n

It is enough if the government simply declares to parliament that the new law infringes human rights, and that they are pushing on with it regardless, as has happened on topics including\u00a0police search powers<\/u><\/a>\u00a0and\u00a0parole<\/u><\/a>.<\/p>\n

Opponents of over-criminalising laws sometimes turn to the courts for help, but most learn that the Australian judiciary\u2019s \u201ctoolkit\u201d for engaging in human rights scrutiny is\u00a0limited<\/u><\/a>. The chance of a law being overturned is not zero, but it is pretty slim.<\/p>\n

All of this suggests the need to find a way to take all\u00a0<\/i>human rights more seriously when policy and law reform responses to crime community safety concerns are being considered.<\/p>\n

Ironically, the Moree story provides a basis for some optimism in this respect.<\/p>\n

The NSW government did not only\u00a0<\/i>restrict bail and ramp up penalties. It also\u00a0announced<\/u><\/a> $13 million to improve justice and support services in Moree, and $13 million to develop crime prevention strategies, including \u201cjustice reinvestment\u201d, across regional NSW.<\/p>\n

These\u00a0<\/i>are the sorts of public policy responses that can simultaneously address community safety and\u00a0<\/i>respect human rights \u2014 including the individual rights of young people and adults, and the collective self-determination rights of Aboriginal communities.<\/p>\n

Governments should be encouraged to be brave about striking out in these directions, without relying on the crutch of new criminal laws that are attention-grabbing but end up doing more harm than good.<\/p>\n

Originally published under\u00a0<\/i>Creative Commons<\/i><\/a>\u00a0by\u00a0<\/i>360info<\/i><\/a>\u2122.<\/i><\/strong><\/p>\n

Photo by Luis Villasmil<\/a> on Unsplash.<\/a><\/strong><\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

When media reports emerged earlier this year about a new youth\u00a0\u201ccrime wave\u201d\u00a0of robbery, break and enter, and car theft in<\/p>\n","protected":false},"author":769,"featured_media":14837,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"footnotes":""},"categories":[18],"tags":[718,333],"coauthors":[719],"class_list":["post-14831","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-law-politics","tag-criminal-law","tag-human-rights"],"acf":[],"aioseo_notices":[],"_links":{"self":[{"href":"https:\/\/rationalemagazine.com\/index.php\/wp-json\/wp\/v2\/posts\/14831","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/rationalemagazine.com\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/rationalemagazine.com\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/rationalemagazine.com\/index.php\/wp-json\/wp\/v2\/users\/769"}],"replies":[{"embeddable":true,"href":"https:\/\/rationalemagazine.com\/index.php\/wp-json\/wp\/v2\/comments?post=14831"}],"version-history":[{"count":3,"href":"https:\/\/rationalemagazine.com\/index.php\/wp-json\/wp\/v2\/posts\/14831\/revisions"}],"predecessor-version":[{"id":14836,"href":"https:\/\/rationalemagazine.com\/index.php\/wp-json\/wp\/v2\/posts\/14831\/revisions\/14836"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/rationalemagazine.com\/index.php\/wp-json\/wp\/v2\/media\/14837"}],"wp:attachment":[{"href":"https:\/\/rationalemagazine.com\/index.php\/wp-json\/wp\/v2\/media?parent=14831"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/rationalemagazine.com\/index.php\/wp-json\/wp\/v2\/categories?post=14831"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/rationalemagazine.com\/index.php\/wp-json\/wp\/v2\/tags?post=14831"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/rationalemagazine.com\/index.php\/wp-json\/wp\/v2\/coauthors?post=14831"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}