Law, Order and the Australian Way

In Democracy Inc, Sheldon Wolin, professor emeritus of politics atPrincetonUniversity, constructs a political theory of theUnited States as an inverted totalitarianism.  The theory describes a populace that is relatively uninterested in political participation; a politics dominated by concerns of patriotism brought on by the influence of an amorphous terrorist threat; power distributed amongst an elite that revolves between employment with big business, the military and government and acts, in each role, and sees no contradiction between the various roles; electoral campaigns that are directed exclusively at the undecideds; corporate and military sectors that utilise the benefits of science for their own purposes but cooperate with fundamentalist religion to lower the esteem of science in the public imagination; the absence of any concern to promote and implement policies that reduce social inequality and might provide power or hope to the poor; and the dismantling of environmental safeguards built up by past struggles.  Although very different to past totalitarian regimes of the right or left, the system outlined by Wolin minimises any meaningful involvement by those elements of the populace that are not part of the ruling elite in politics or the possession of power. Whether or not Australian politics would be amenable to a similar analysis,Australiais strongly influenced by developments in theUnited States.  In particular, the war on terrorism was fulsomely adopted by Australian politicians and political parties as a unifying theme and a source of political rhetoric.  In one respect at least,Australia, at all levels of government, deserves and reflects the description that Wolin reserved for the Bush administration of the last decade:

No previous administration in American history had demanded such extraordinary powers in order to muster the resources of the nation in pursuit of an enterprise as vaguely defined as ‘the war against terrorism’ or demanded such an enormous outlay of public funds for a mission whose end seemed far distant and difficult to recognise if and when it might be achieved.

The fashions of politics operate similarly to other memes.  Developed in one area, ideas spread without obvious effort on the part of their purveyors.  In this way, travelling in the wake of the anti-terrorist hysteria, the depiction ofAustraliaas ungovernable unless governments provide rapidly accelerating police powers continues even as the events of September 2001 recede into the past.

Greg Barns, republican activist and member of the Victorian and Tasmanian Bars, writes insightfully on a range of issues of interest to human rights activists.  In a Crikey article of 21 January 2010, he brought together a number of the expansive ‘law and order’ actions by various State governments.  Barns pointed out that Victorian Premier, John Brumby, was whipping up more hysteria (my interpolation) about heavy drinking by young people at the same time as he was accusing retired General, Peter Cosgrove, of being a liar (again, my interpolation) for daring to suggest that racism might be a problem in Australia and the likely cause of at least some attacks on Indian students.

Barns also pointed out that Brumby’s government had, a month earlier, legislated to add to the police arsenal random stop and search powers (exercisable without any requirement of reasonable suspicion of any wrongful behaviour).  He pointed out that similar powers in theUKhad led to police targeting particular ethnic communities giving rise to racial tension.  (I revisited the story just after leaving a national office holder of a respected international NGO who had regaled me over lunch with stories of police repeatedly stopping the car that he was driving (and which he owned) to accuse him of stealing it.  My lunch time companion just happens to be of a Palestinian heritage.)

Barns’ story went on to mention that the Government of Western Australia is allowing WA police to enforce a total legal ban on drinking in public and planning to legislate prohibited behaviour orders that can ban people from going to particular places.  These laws also have aUKprovenance and have been used in that country to target mentally ill people and the homeless.

The legislative actions described in Greg Barns’ article comprise just part of the domestic law and order wave that is sweepingAustraliapost a decade of legislating draconian anti-terror laws.

After Anna Bligh’s surprise win in the 2009 election, Cameron Dick was appointed Attorney-General ofQueensland.  Cameron had just been elected to his first term of Parliament.  Cameron is well respected among his colleagues at the Bar, and also among those with whom he had contact while working as a ministerial adviser, as a thoughtful and conscientious person with progressive values.

One of Cameron’s first tasks as the new Attorney-General was to shepherd through Parliament the Criminal Organisation Bill, theQueensland version of the ‘anti-bikie legislation’ which has been spreading from State Parliament to State Parliament.  Seeming to take its cue from much of the content of the anti-terrorist legislation enacted over recent years, this legislation offends most of the principles that comprise the rule of law, the central characteristic of our legal system on which we pride ourselves.  It enshrines guilt by association by providing for the proscribing of organisations.  It tramples on equality before the law by allowing for members of proscribed organisations to be subject to control orders and ‘public safety orders’ by which the subjects of the orders commit criminal offences by doing what is a legal act for every other member of the community.  And these powers are not to be exercised in open court by direct evidence about which the person accused may meet and challenge his or her accusers.  Rather, the Courts may receive criminal intelligence, an arcane and unreliable substance, which is to be kept secret from the person who is the subject of the applications under the Act and their legal advisers.  A Criminal Organisation Public Interest Monitor (‘the COPIM’) will be there to assist the court but, of course, the COPIM, who is supposed to represent the public interest, will not be able to receive informed instructions from the person or organisation accused.

Most human rights lawyers who have had experience with ‘criminal intelligence’ have concluded, at the end of the day, that most claims made about it by its proponents turn out to be unjustified and that much of it turns out to be unreliable.  Much of it turns out to be gossip sourced from persons with an axe to grind.  It will be that criminal intelligence on the basis of which people will be banned, on pain of committing a criminal offence, from talking to friends or attending the fireworks displays on New Year’s Eve.

What does all this mean for my hypothetical career as the Attorney-General ofQueensland?  It means that it will be short.  With desperate parties fighting one another for the undecided voter by running a new line of law and order auctions, any Attorney-General is likely to be under huge pressure to introduce more and more draconian legislation infringing, even further, upon civil rights principles that were once held sacred, even by politicians.

I can envisage my excited trip to my first Cabinet meeting with a bundle of proposals to make our legal and justice systems more friendly, more accessible and more successful in keeping disadvantaged groups out of prison and rehabilitating those who find themselves incarcerated.

Equally clearly, I can envisage my doleful walk to the Premier’s office, immediately afterwards, to give her my beautifully crafted resignation letter.

‘Ah well’, I will say to myself as I trudge away from that one on one, ‘we are here for a good time not a long time.’*

Stephen Keim SC is a Queensland barrister.  In 2009, he received the prestigious Australian Human Rights Medal for his outstanding and long-term involvement in ‘many cases aimed at furthering the human rights of individuals and groups such as prisoners, refugees, people with disabilities and people experiencing discrimination – work he often undertook on a pro-bono basis’. 

* Apologies to Canadian rock band, Trooper.  Their web site is