corporate crime, criminal justice system, fear of crime, hyper-criminalisation, law and order policy, penal welfarism, policy transfer, ‘punitive turn’, ‘tough on crime’
‘Law and order’ policy refers to the decisions and actions of governments relating to issues of crime and justice. 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.
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’1 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.2
Hogg and Brown3 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:
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.4 A fearful public demands or requires governments to take law and order policy seriously – or so we are told.
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.
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:
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.
The criminal justice system operates at great economic expense. The Australian Productivity Commission5 calculated expenditure on the criminal justice system in 2016–17 as follows:
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.6 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.7
In Western Australia (WA), more than 1,000 people each year are imprisoned for unpaid fines, with an average imprisonment period of four days.8 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.9 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.
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.
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.
|
|
Incidents in 2000 |
Incidents in 2017 |
% change |
|---|---|---|---|
|
Homicide and related offences |
989 |
414 |
↓ 58% |
|
Sexual assault |
15,630 |
24,957 |
↑ 60% |
|
Kidnapping and abduction |
688 |
482 |
↓ 30% |
|
Robbery |
23,314 |
9,599 |
↓ 59% |
|
Unlawful entry with intent |
436,865 |
176,153 |
↓ 60% |
|
Motor vehicle theft |
139,094 |
51,869 |
↓ 63% |
|
Other theft |
674,813 |
510,083 |
↓ 24% |
Table 1 Incidents of crime in Australia in 2000 and 2017. Source: ABS 2018a; ABS 2001.
Every major category of crime included in Table 1, except sexual assault, has shown a substantial decline between 2000 and 2017. Given the significant population growth in Australia during this period, these declines are even greater when considered as rates. These trends are generally not well known and are often lost in heated debates about the incessant need for more law and order policy.
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.10
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.
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’.11 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.12 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:
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.14 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.15 In 1976, before law and order policy began to take hold in Australia, there were just 77.8 prisoners per 100,000 population.16 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 2008.17
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.18 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.19
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:
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.20 By comparison, Aboriginal and Torres Strait Islander people constitute just 3.3 per cent of Australia’s overall population.21 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.22 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.
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.23 The ethos of penal welfarism is evident in policies such as:
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:
Many of the examples found in this chapter also reflect the shift towards neoliberal tendencies and developments.
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.
‘[A] harsh criminal justice system – in particular, more prisons and people behind bars – has apparently become a hallmark for good government.’24 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.
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.25 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 New South Wales had any contact with police in the 12 months prior to the publication of the newspaper article.26
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.
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 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:
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 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.
In July 2012, Thomas Kelly was killed in a ‘one-punch’ attack in NSW. The incident drew extensive media coverage and sparked intense public outcry on the danger of alcohol-fuelled violence. On 8 November 2013, the perpetrator, Kieran Loveridge, was sentenced to a total of seven years and two months imprisonment. This punishment was deemed to be grossly inadequate by many, and it further fuelled public outrage about the problem of alcohol-fuelled violence and the supposed inability of the judiciary to respond in a way that reflected community sentiment.27
Shortly after the sentence, Kelly’s family and their supporters called for tougher sentences for violent offenders and lobbied the government to introduce mandatory sentencing laws. On 19 November 2013, a public rally was held in Sydney’s Martin Place. By 30 January 2014, a new homicide offence had been created – the offence of ‘assault causing death’. The aggravated version of the offence, ‘assault causing death when intoxicated’, carries a mandatory sentence of eight years imprisonment. All of this was achieved in great haste; the Bill was passed in parliament on the same day it was introduced and with minimal expert consultation.28
Members of the general public can influence law and order policy by expressing their views through a variety of mediums, including:
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 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.
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.
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.
Table 2 provides an overview of the core models of law and order policy making, drawn from Hobbs and Hamerton.29 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.
|
Model |
Example |
|---|---|
|
Elite model (policy as elite preference): this model suggests that policy making is a role reserved predominantly for political elites (e.g. ministers and their advisers). This small group of elite individuals have the power and ability to create, implement and enforce public policy that regulates the behaviour of the rest of society. |
A minister observes graffiti on the journey to parliament and decides that measures must be taken to get tough on such offences. Relevant department agency staff are summoned and told to develop measures to tackle the scourge of graffiti. A graffiti hotline to encourage reporting and tougher penalties are swiftly introduced and implemented. |
|
Pluralist model (policy as diverse perspectives): this process is based upon the idea that society is comprised of a diverse range of actors and stakeholders, all of whom have an interest in contributing to and influencing the public policy-making process and its ultimate outcomes.
|
Numerous reviews, inquiries and research reports highlight the importance of tackling alcohol and other drug use to prevent offending. A working party is established with representatives from key criminal justice agencies and victim and penal reform groups to develop policy responses. A specialist drug court is proposed as one possible solution, which the government backs through the provision of funding for a trial. |
|
Incrementalism model (policy as variations of the past): many aspects of criminal justice policy making reflect the traditions and histories of the system, with minor reforms being introduced over time. Policy making in this context is a process whereby existing policies are incrementally modified and revised. Policies are continually improved upon in response to the problems that have arisen from their implementation. |
The juvenile justice system has largely operated the same way for many years – children appearing in closed children’s courts are sentenced to serve time in juvenile justice detention facilities and are then released into the community with case management support. A new approach to assessing and addressing risk factors for offending is introduced into the system to augment existing practices. |
|
Institutional model (policy as institutional output): this model emphasises the organisational norms, culture, structures and procedures (both formal and informal) that develop within institutions and the ways in which they impact public policy. |
Corruption within the police force has prompted a widespread review. In developing a blueprint for a new approach to policing, careful consideration is given to existing institutional cultures and how reform of the organisation will be achieved in this context. |
|
Rational decision model (policy as maximum social gain): this model of policy making utilises a problem-solving approach that is characterised by rationality, impartiality, fairness and analysis. |
Detailed analysis of the mental health of prisoners reveals mental illness is steadily rising within this population. It is recognised that preventing early onset of mental health problems among this cohort will produce significant cost savings over time. A policy response that includes a spectrum of interventions in place in community, court and custodial settings is endorsed. |
Table 2 Overview of models for the law and order policy-making process. Source: adapted from Hobbs and Hamerton 2014.
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.30 This practice is known as policy transfer. Policy transfer occurs in multiple forms. Policies from another jurisdiction may be:
Below are some examples of Australian law and order policies that have been imported and adopted from other jurisdictions:
In addition to importing policies from foreign jurisdictions, Australian policies have also been exported. Restorative justice31 is an example of a policy that first emerged in Australia and New Zealand that has since gained traction in the USA and UK.
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.
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.32 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.
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.33 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.
|
International Covenant on Civil and Political Rights (ICCPR) (adopted by the UN in 1966, ratified by Australia in 1980) | |
|---|---|
|
Articles that protect against punitive policies |
Incompatible Australian policies |
|
Physical integrity Article 7: prohibits torture and cruel, inhuman or degrading punishment Liberty and security Article 9: prohibits arbitrary arrest and detention; deprivation of liberty must be according to law; restricts the use of pre-trial detention (remand) Article 10: individuals deprived of liberty must be treated with dignity and humanity; prisons must be focused on rehabilitation, as opposed to retribution; prisoners on remand must be separated from convicted prisoners; children must be separated from adults in prison Procedural fairness Article 14: trials should be completed in a timely manner; the presumption of innocence Individual liberty Article 12: right to freedom of movement – can only be restricted to protect national security, public order, health or the rights/freedoms of others Article 17: right to privacy Articles 21 and 22: right to freedom of association |
Counterterrorism laws Indefinite post-sentence detention for people convicted of terrorism Control orders to restrict an individual’s movements and communications – no requirement for individual to be charged or to have previously been involved in an act of terrorism Punishment and prison conditions Mandatory sentencing Presumption against bail Lack of culturally appropriate diversionary options for Indigenous offenders Prison overcrowding raises concerns about privacy, dignity and hygiene Solitary confinement for extensive periods of time Excessive routine strip searches Preventative detention of serious sex and violent offenders Children Curfews for children (e.g. Northbridge, WA, does not allow children under 12 and without supervision to go outside after dark, Miriam Vale, Qld, does not allow children under 15 and without supervision to go outside after 8pm). |
Table 3 Compatibility of Australian law and order policy with the International Covenant on Civil and Political Rights (ICCPR).
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:
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.
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.34 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,35 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.36 It has been projected that 18,000 Australians will have died from asbestos-induced cancer (mesothelioma) by 2020.37
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).38
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.39 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.40 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.41
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?
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.
Aboriginal Legal Service of Western Australia (2016). Addressing fine default by vulnerable and disadvantaged persons: briefing paper. Perth: Aboriginal Legal Service of Western Australia.
Australian Bureau of Statistics (ABS) (2018a). Recorded crime – victims, Australia, 2017. Cat. No. 4510.0. Canberra: ABS.
—— (2018b). Corrective services, Australia, June quarter 2018. Cat. No. 4512.0. Canberra: ABS.
—— (2018c). Estimates of Aboriginal and Torres Strait Islander Australians, June 2016. Cat. No. 3238.0.55.001. Canberra: ABS.
—— (2001). Recorded crime, Australia, 2000. Cat. No. 4510.0. Canberra: ABS.
Cunneen, Chris (2016). How ‘tough on crime’ politics flouts death-in-custody recommendations. The Conversation, 14 April. https://theconversation.com/how-tough-on-crime-politics-flouts-death-in-custody-recommendations-57491
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Hogg, Russell (2013). Populism, law and order and the crimes of the 1%. International Journal for Crime and Justice 2(1): 113–31. DOI: 10.5204/ijcjsd.v2i1.96
—— (2008). Resisting a ‘law and order’ society. In Thalia Anthony and Chris Cunneen, eds. The critical criminology companion, 278–89. Sydney: Hawkins Press.
Hogg, Russell, and David Brown (1998). Rethinking law and order. Annadale, NSW: Pluto Press.
Lee, Murray (2007). Inventing fear of crime: criminology and the politics of anxiety. Uffculme, UK: Willan Publishing. DOI: 10.4324/9781843926320
Levi, Michael (2006). The media construction of financial white-collar crimes. The British Journal of Criminology 46(6): 1037–57. DOI: 10.1093/bjc/azl079
Loughnan, Arlie (2009). The legislation we had to have? The Crimes (Criminal Organisations Control) Act 2009 (NSW). Current Issues in Criminal Justice 20(3): 457–65. DOI: 10.1080/10345329.2009.12035823
McNamara, Luke, and Julia Quilter (2016). The ‘bikie effect’ and other forms of demonisation: the origins and effects of hyper-criminalisation. Law in Context 34(2): 5–35.
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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.
1 McNamara and Quilter 2016.
2 Lee 2007.
3 Hogg and Brown 1998.
4 Hogg and Brown 1998.
5 Productivity Commission 2018.
6 Morgan 2018.
7 Productivity Commission 2018.
8 Aboriginal Legal Service of Western Australia 2016.
9 Aboriginal Legal Service of Western Australia 2016.
10 Weatherburn 2004.
11 Garland 2001.
12 Loughnan 2009.
13 Consorting laws prohibit the act of habitual association with convicted offenders. NSW consorting laws have been in operation since 2012; they were introduced in response to outlaw motorcycle clubs and other organised criminal networks.
14 McNamara and Quilter 2016.
15 ABS 2018b.
16 Mukherjee 1981, 98.
17 ABS 2018b.
18 ABS 2018b.
19 New South Wales Law Reform Commission 2012.
20 ABS 2018b.
21 ABS 2018c.
22 Productivity Commission 2018.
23 Garland 2001.
24 Cunneen 2016.
25 Roberts and Indermaur 2009.
26 Weatherburn 2011.
27 Quilter 2014.
28 Quilter 2014.
29 Hobbs and Hamerton 2014.
30 Ogg 2015.
31 Restorative justice is an approach that aims to heal (or minimise) the harm caused by the offender upon the victim. Examples of restorative justice include family group conferencing, youth justice conferencing and circle sentencing.
32 Parliamentary Education Office 2018.
33 Hogg 2008.
34 Felson 2002.
35 Geis 1996.
36 Prince, Davidson and Dudley 2004.
37 Prince, Davidson and Dudley 2004.
38 Sibson 2018.
39 Hogg 2013.
40 Levi 2006.
41 Geis 1996.