Police state: The politics of law and order

During the 2018 Victorian state election, the Coalition parties ran a very aggressive law and order campaign as they tried to unseat the Andrews Labor government. Liberal leader Matthew Guy claimed that Victoria was suffering a “crime tsunami”. He pledged to introduce tougher bail conditions, more restrictions on parole, longer sentences and more cops. Federal Liberal leaders backed up their state colleagues. Prime minister Malcolm Turnbull and Home Affairs minister Peter Dutton said that “African gangs” were making Victorians afraid to go out at night. Minister for Citizenship and Multicultural Affairs Alan Tudge told Sky News that people “are genuinely frightened” by carjacking, home invasions, break and enters.

Even more violent were the claims by the media. The Herald Sun ran a string of alarmist headlines: “Gang havoc: youths fight, terrorise train passengers”; “Teen mayhem: Police hunt African and Islander youths after riot”; “Guns for hire: Organised crime gangs lending high powered rifles to youths”; “Carjack gang busted: 14 African, Middle Eastern and Asian youths arrested”.^[1] Channel 7 joined the pack, saying: “Barely a week goes by when they’re not in the news. African gangs running riot, terrorising, wreaking havoc”.

The ALP chose not to join the conservatives in a law and order race to the bottom and focused its campaign on infrastructure, education and hospitals. It was rewarded with a big swing and a swag of additional seats as the electorate rejected the hard right wing agenda pushed by the Coalition and the Herald Sun. Nonetheless, in its first term in government, the Andrews government had itself introduced many regressive changes to the criminal justice system. It had made sweeping changes to bail laws, widened mandatory sentencing, increased sentences and introduced brand new offences, including extending anti-association laws to teenagers. In the name of community safety, the Andrews government promised to employ thousands more cops and outlaid hundreds of millions of dollars to build new jails and expand existing ones.^[2] Corrections minister Gayle Tierney boasted that: “Our record investment in thousands of extra police, and tougher bail and sentencing laws means more people are in prison – and we make no apologies for that”.^[3]

None of the rhetoric about crime waves bore any resemblance to reality. The criminal incident rate in Victoria dropped 8 percent in the year to June 2018 and the number of break and enters was the same as in 2010 despite the population growing by 13 percent. The victimisation rate for physical assault is significantly lower than a decade ago. And the supposed “gang havoc” by youths allegedly being wreaked on Melbourne streets frequently involved minor incidents involving African, Asian or Pacific Islander youth that would have gone, and do go, unreported if they involved white youth. Even senior police tried to temper the alarming media rhetoric about “African gangs”.^[4]

The ramping up of law and order in Victoria is only part of a broader national picture. Over the past three decades, successive state and federal governments, Liberal and Labor, have shifted towards harsh criminal justice regimes. Common features include toughening bail conditions, lengthening sentences, reducing judicial discretion by imposing minimum sentences for a range of crimes, tightening access to parole, abolition of remission, and increased use of preventive orders commencing at the expiration of sentences, condemning prisoners to life in jail. Greater post-custodial restrictions have been imposed on ex-prisoners who do enter the community, including being entered on databases that results in them having great difficulty finding work and accommodation.^[5]

The result has been a rapid increase in imprisonment. Since 1975, the number of prisoners has increased five-fold,^[6] and the imprisonment rate stands at an historic high (Figure 1). Although the rate varies markedly from state to state, being twice as high in NSW as in Victoria and higher again in the Northern Territory and WA, the same trend is obvious across every state and territory.

Figure 1: Imprisonment rates, Australia, 1950-2017

Source: Institute for Criminal Policy Research, World Prison Brief, www.prisonstudies.org.

In addition to the nearly 43,000 prisoners in jail in the middle of 2018, there were another 69,397 offenders serving community-based corrections orders, a rise of 28 percent since mid-2013.^[7]

Australia’s imprisonment rate exceeds that of many other comparable developed countries (Figure 2). Australia is also one of only two countries in the 15 listed in Figure 2 (the other being New Zealand), where the imprisonment rate has risen year after year since 2000; in every other case the rate has been stable (Canada) or in decline (the remaining dozen).^[8]

Figure 2: Imprisonment rates in selected OECD countries

Source: Institute for Criminal Policy Research, World Prison Brief, www.prisonstudies.org.

An important component of the punitive turn has been the ratcheting up of police numbers (Figures 3 and 4).

Figure 3: Police numbers in Queensland, 1970 to 2017

Source: Queensland Past and Present: 100 Years of Statistics, 1896–1996, Queensland Government Office of Economic and Social Research; Productivity Commission, Report on Government Services 2008 and 2018.

Figure 4: Police staffing, Australia, 2001-02 to 2016-17

Source: Productivity Commission, Report on Government Services, various issues.

The purpose of this article is to explain why crime and law and order have become central to Australian politics. I argue that rising state punitiveness, in the guise of protecting the public from rampant crime, can be understood best as one component of a broader ruling class offensive against the working class as it seeks to tighten control over workers and the oppressed and to revive its legitimacy in the face of declining popular confidence in important establishment institutions.

Brief anatomy of who is in prison today

Prisons in Australia, like most countries, entrap disproportionately the poor and the oppressed. One half of those entering prison are unemployed, two-thirds have no education beyond Year 10 and one in four were homeless or in insecure accommodation in the four weeks before entering jail. They are in poor health: 30 percent of new prisoners suffer long term health conditions or disability. Two-thirds reported use of illicit drugs in the year prior to entering jail.^[9]

Indigenous people are massively more likely to be incarcerated, making up 2 percent of the adult population, but 28 percent of the adult prison population.^[10] In WA at any one time more than four in 100 Indigenous adults are in jail, and in NT, three in 100.^[11] Nine percent of Indigenous people (and 15 percent of Indigenous males) aged over 15 have been to prison at some point in their lives, while just 5 percent of Indigenous people hold a university degree.^[12] For Indigenous youth, those aged 10-17, the situation is still worse. They are 18 times more likely to be in detention than non-Indigenous youth and represent one half of those in the juvenile justice system.^[13] Revelations by the ABC’s 4 Corners in 2016 exposed the conditions prevailing for Indigenous youth in detention in the Northern Territory, including teenagers being tear-gassed and tortured, held in isolation, stripped, hooded and strapped into chairs for hours.

Men are 11 times more likely than women to be imprisoned, but the number of women in prison is climbing faster, more than doubling from 1,385 in 2000 to 3,333 in 2017.^[14] Tougher drug laws are a big factor driving this development since women are disproportionately jailed for low-level trafficking of drugs. Women also suffer from their inability to afford safe accommodation or drug treatment programs they need for otherwise willing magistrates to grant them bail.

Poverty and racism are fundamental drivers of imprisonment. Insufficient funds to pay for decent legal representation and pressure on duty solicitors to process large numbers of cases and, in some cases, their dismissive attitude towards their clients, means many defendants don’t stand a chance in court, even before the racist attitudes of magistrates are taken into account. Unpaid fines incurred, for example, for swearing at a cop or “disorderly conduct”, charges brought against Indigenous people far more than non-Indigenous, regularly result in imprisonment. Lack of fluency in English can condemn Indigenous people to jail through failure to understand the court process. Inability to make it to court due to funerals or health problems has the same effect. Problems accessing driving lessons and examination centres means that many young Indigenous people drive unlicensed, resulting in jail sentences when caught. Indigenous children are frequently given custodial sentences by children’s courts because no alternative accommodation is available. Consorting laws, which prohibit individuals from making contact with others convicted of an indictable offence, are used overwhelmingly against Indigenous people in some areas of regional NSW and against homeless people in Sydney. In 101 ways, the criminal justice system finds ways to incarcerate black people in Australia.

Even when freed, ex-prisoners start life outside jail with a huge handicap. Lack of jobs, housing and community support services, along with underlying problems of substance abuse and mental health issues, mean that recidivism rates are very high: 38 percent of prisoners are back in prison two years after their release.

Every major inquiry, from the 1987 Royal Commission into Aboriginal Deaths in Custody to the 2017 National Law Reform Commission (NLRC) report, has recommended measures to reduce the Indigenous imprisonment rate. The NLRC report, for example, recommended ending jail terms for unpaid fines, breaching bail, drivers’ licence offences and offences for which the sentence is less than 12 months, all of which disproportionately affect Indigenous people. Nonetheless, in the burgeoning penal state that is Australia, the tendency is in the opposite direction. Higher rates of custodial sentences and longer sentences, increased rates of remand and longer periods of remand are all contributing to rising incarceration of Indigenous people.^[15]

Explaining the rise of the carceral state

The punitive turn in the late 1980s and 1990s reversed a period of relatively progressive criminal justice reform. During the 1970s and 1980s, state governments prioritised restorative justice, reform of drug laws, loosening parole and welfare-aligned rehabilitation of offenders in an effort to reduce imprisonment rates.^[16] In NSW, the Wran Labor government, elected in 1976, decriminalised public drunkenness, begging, vagrancy and most prostitution offences, raised the legal threshold for common public order offences such as offensive language and behaviour, abolished imprisonment for fine default and reformed bail laws. A new bail act in 1978 included a right to bail for minor offences and a presumption of bail for other offences. In South Australia in the 1970s, the Dunstan government began to pursue modest criminal justice reforms, as did the Cain government in Victoria in the following decade. In Western Australia, the Liberal government appointed a Commission of Inquiry in 1979 to investigate how imprisonment rates, always considerably higher than elsewhere, could be lowered. In the NT, the 1970s through to the early 1990s was a period of criminal justice reform, including decriminalisation of public drunkenness and a fine default diversionary program. The introduction of home detention and the appointment of Aboriginal Community Corrections officers in the NT also helped reduce Indigenous incarceration. The result of these reforms was that imprisonment rates fell across several states by anything from one third to nearly one half during the 1970s and 1980s.

Progressive criminal justice reform, however, gave way during the 1980s to restrictive policies, involving retributive rhetoric and greater penality. Prison, far from fading to the sidelines, as criminal justice reformers had hoped in the 1970s, came more and more to the fore as sentencing regimes grew more punitive. Numbers of prisoners ballooned and their treatment became harsher. Police numbers and powers grew rapidly and the rhetoric of “tough on crime” came to dominate political discourse. How can this penal turn be explained?

How not to explain the rise of the carceral state

Let us dispense first with three wrong arguments. The first is that increasing penality is simply a response to rising crime. While crime rates did rise during the late 1980s and 1990s, since the turn of the century they have fallen across nearly every category (Table 1). Australia is now experiencing the longest and largest decline in crime rates on record. While recorded cases of sexual assault have risen, much of this can be attributed to increased willingness to report sexual assault and increased preparedness by police to record sexual assault offences.^[17]

While falling crime rates are an international phenomenon, the decline is faster in Australia than most other comparable countries: the homicide rate, for example, fell by 41 percent in Australia between 2006 and 2016, compared to a decline of 28 percent across the OECD as a whole. At 1.0 per 100,000, Australia’s homicide rate is one fifth that of the US, half that of Canada and just over half that of France.^[18]

*Homicide & related offences incorporates murder, attempted murder and manslaughter.

Source: ABS, Recorded Crimes – Victims, Australia, various issues, cat. No. 4510.0.

Changing public policy, in particular tightening bail conditions, lies at the centre of growing imprisonment. Sixty percent of the increase in the imprisonment rate since 2000 is due to the explosion in the numbers detained who are pre-trial or on remand,^[19] now one third of the total, up from one sixth in 2000. Among youth detainees, three in five are on remand or awaiting sentencing.^[20]

If increasing penality has no relationship to the crime rate, nor is it the case that it simply reflects community concern about crime. First, politicians do not simply respond to community concerns in this way. They rarely speedily enact legislation in response to other issues that are of great concern to the public, for example shortfalls in public health and education, or on issues where there is demonstrable support such as marriage equality. Much more obvious is their contempt for such concerns and their enthusiasm for policies that appeal only to small minorities of the wealthy and well-connected. There is no reason not to apply a similar understanding when it comes to changes to the criminal justice system.

There is certainly evidence to suggest that the public believes that they are at risk from crime. Just one half of Australians say that they feel safe walking alone in their neighbourhoods at night, and only one quarter using public transport at night.^[21] Many also believe that sentencing is too soft and not in line with community sentiment. In a phone poll in 2011 with more than 6,000 respondents, more than half expressed little confidence that punishments fit the crime. Two-thirds believed that sentences should be stiffer and that courts are too soft on offenders and 60 percent supported the suggestion that the most effective response to criminality is to have more severe sentences.^[22]

These beliefs do not, however, emerge out of thin air. They are the product of systematic disinformation campaigns led by the media working closely with police associations and governments. These forces regularly exaggerate the extent of crime and the threat to lives and property of the working and middle classes, while significantly downplaying or burying crime by big business, the police and politicians, in order to cultivate a fearful climate to legitimise increased state repression. The media also contribute significantly to the widespread belief that the courts are “a soft touch” for criminals. Since the vast majority of the population have no contact with the courts in any given year, most people are extremely ill-informed about crime and the operation of the criminal justice system, and therefore reliant on the media as their main source of information.^[23]

The result of media disinformation is that the perception of crime and the risk of falling victim to crime are out of kilter with the reality. People may be afraid to walk the streets at night but are not afraid to drive their cars, despite the fact that deaths on the road each year outnumber victims of murder, attempted murder and manslaughter combined by three to one. Homicide where the assailant is unknown to the attacker is rarer again, with just 63 cases from mid-2012 to mid-2014, as compared to 2,451 road fatalities in that period.^[24]

An important element of the disinformation campaign is political manipulation of surveys that purport to demonstrate community demand for the law and order agenda.^[25] For example, in 2013, the Campbell Newman LNP government in Queensland argued for severe measures against youth offenders on the basis of the results of a Justice Department survey. But the survey results were never released and the survey respondents were quite unrepresentative of the population: they were older (half were aged 40-65) and three-quarters had been a victim, or had a family member who was a victim of crime, all factors likely to skew the results towards harsh attitudes to law and order.^[26]

Despite the collusion of the media, politicians and police in creating the impression that the courts are soft on crime, such impressions are thinly based. Attitudes to crime and punishment are highly contradictory. Many of the same respondents to the survey by Mackenzie et al demanding stiffer jail sentences also supported alternatives to imprisonment for the mentally ill, the young and the drug addicted. Nearly two-thirds believed that community corrections orders were the right way to deal with non-violent offenders rather than prison.^[27] Mackenzie et al conclude that gauging public opinion towards sentencing by means of opinion polls is highly problematic.

One further indication that rising public concern about the impact of crime is not driving increasing judicial punitiveness is that there is no relationship between the two from state to state. Roberts et al find in the aforementioned phone survey of 6,000 respondents that “the wide difference in sentencing practice and political activity on sentencing [between the eight states and territories] is not linked to any major differences in public attitudes between jurisdictions”.^[28] They argue, instead, that increasingly punitive laws are the result of political choice by governments, not democracy in action. Far from tailing the public, politicians do their best to drum up support for policies they are intent on introducing, assisted by willing media and supportive police associations. That they do not always succeed is evident in the 2018 Victorian state election where the majority of the electorate rejected a highly retributive approach to criminal justice.

Another argument that is common, particularly among prison reform activists in the United States, is that rising incarceration rates are driven by the profitable opportunities presented by mass imprisonment. Big companies in the US draw substantial funds from governments to operate America’s private prisons, which house 130,000 prisoners. America’s jails, public and private, are also major capitalist enterprises, with a significant number of prisoners performing work on very low wages.

Leaving aside the applicability of the argument to the US, the notion that profit is driving rising incarceration rates does not fit the Australian situation. Although private prisons account for a bigger proportion of the total prison population than anywhere else in the world – 28 percent in Victoria and close to 20 percent nationally – the absolute number of prisoners incarcerated in Australian private jails (7,400) and the revenues drawn by the three operators, GEO, G4S and Serco, from running ten private prisons, are unlikely to be sufficient to skew the entire criminal justice system.^[29] Further, these revenues are simply transfers from state governments, meaning that the capitalist class as a whole does not gain from privatisation of prisons.

As for the labour performed by the 75 percent of prisoners who work in commercial and service industries while in jail, any surplus extracted from them is significantly outweighed by the cost of maintaining them: operating revenues from Australia’s prisons amounted to $153 million in 2016-17 against operating and capital expenditure of $4.3 billion.^[30] For the capitalist class as a whole, therefore, imprisonment is a drain on surplus value, although, as I argue later, it does provide important benefits in other forms. Indeed, the very cost of imprisoning people in large numbers is encouraging governments in Europe and the US to reduce prison populations.^[31]

That the law and order agenda has little to do with actually combating crime is clear not only from the fact that it is being more intensively prosecuted when crime rates are falling but also because large swathes of crime are simply ignored. While workers, political activists, Indigenous people and the poor are treated to the mailed fist of the police state, the ruling class are free to commit crimes with impunity. Even putting aside the systemic crimes of worker exploitation, theft of Indigenous land, pollution of the environment and waging war on civilians, which are treated as legitimate pursuits by the capitalist state, the capitalists and politicians are rarely prosecuted or suffer any serious consequences even when they openly commit crimes that are recognised as such.

The Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry, for example, revealed the widespread scale of misconduct in the industry, with banks helping themselves to billions of dollars of customers’ money. But the regulatory body, the Australian Securities Investigation Commission (ASIC), failed to mount a single prosecution. Commissioner Kenneth Hayne astutely noted:

Too often, [the banks] have been treated in ways that would allow them to think that they, not ASIC, not the Parliament, not the courts, will decide when and how the law will be obeyed or the consequences of breach remedied.^[32]

Compare the impunity of the banks with the punishments that would be levied on a bank teller who helped themselves to money from the safe. Instant dismissal would follow and a term of imprisonment almost guaranteed, even if the amounts were trifling compared to the millions of dollars stolen by banks.

ASIC is merely a plaything of the banks. Its current head, James Shipton, and his predecessor Greg Medcraft, were both former investment bankers. Kelly O’Dwyer, minister for financial services between 2013 and 2018, charged with overseeing the industry, is married to an executive director at Swiss bank UBS and is herself a former banker. The Royal Commission itself was only convened by the Coalition government, which had long resisted the pressure to do so, when the banks told O’Dwyer to establish one in the hope that by doing so they could dictate the terms of reference.

O’Dwyer’s successor in her financial services portfolio, Stuart Robert, was no sooner in his position than the media revealed that he had charged the taxpayer more than $38,000 in home internet fees. Robert repaid the money and that was considered the end of the matter. No Centrelink recipient would get off so lightly for defrauding the government.

Strict laws regulate the ability of bikies to associate with each other, in the name of attacking organised crime, but in 2017, the Victorian corruption busting authority was unable to investigate the Liberal opposition leader Matthew Guy for his connections to a businessman with suspected Mafia links for lack of powers to do so.

In the construction industry the bosses get away, literally, with murder. In 2017, Grocon, with annual revenues of hundreds of millions of dollars, was fined just $250,000 when a wall at one of its sites collapsed in Melbourne in 2013, crushing three passers-by. At the same time, the CFMEU has been fined millions of dollars for conducting normal union business. The federal government regularly accuses unions, particularly the CFMEU, of corruption but strenuously resisted the introduction of a federal anti-corruption body that might shed light on corruption in high places.

The politicians say increased policing and harsher laws are necessary to keep people safe. But the diversion of public money to prisons and police takes funding away from homes, schools, transport and healthcare, creating more alienation and distress and making crime more likely. State governments have appointed thousands of armed officers to patrol railway stations in the name of public safety but have sacked thousands of railway staff who could otherwise keep public transport safe.

The ruling class are not interested in combatting crime in general, but in developing an apparatus of domination and control.

Explaining the punitive turn

If rising crime, more retributive public opinion or profit-seeking by a section of capitalists are not responsible for the increasingly repressive state in Australia, what is? I argue that the punitive turn since the 1980s is one component of a broader ruling class offensive against the working class. This offensive, commonly described as neoliberalism, involves several interrelated factors that bear on state repression and coercion. The first flows from the reorientation and rationalisation of the welfare state, which creates the need for expanded powers of coercion, surveillance and control in order to deal with the social fall-out that has accompanied cuts to the social wage. The second is an ideological offensive to intimidate and distract the working class and poor and to justify the increasingly repressive state. The third element is the need by the ruling parties to compensate for their own declining legitimacy resulting from the redistribution of income and wealth from the working class to the capitalists. Layered on top of these factors has been the working through of Australia’s involvement in the so-called War on Terror, which has motivated a sustained encroachment on civil liberties in the name of national security.

(i) Managing the poor during the neoliberal offensive

Far from ushering in a small state, neoliberalism has generated an enormous expansion in the punitive reach of the state as a necessary corollary of the decimation of its welfare programs and immiseration of the working class. French-American writer Loic Wacquant, the writer most responsible for popularising the link between neoliberalism and incarceration, argues that:

The rolling out of a diligent police, stringent courts, and enlarged prisons does not constitute a violation of, or a deviation from, neoliberalism; on the contrary: it is its indispensable vehicle insofar as the state relies on penalization as a technique for the management of the festering urban poverty and social marginality it generates by deregulating the economy and reducing welfare protection.^[33]

Wacquant asserts that the sharp turn towards increased penality started in the US in the 1970s in response to economic crisis and the delegitimation of governments imposing neoliberal austerity. Law and order could discipline the population as a whole, dispose of the unproductive elements of the working class and poor to the prisons and restore the authority of the political elites. Similarly, Jordan Camp argues that this turn constituted a form of domestic counterinsurgency in which “moral panics around race, crime, disorder, security, and law and order became the primary legitimating discourse for the expanded use of policing, prisons, and urban securitization in the state’s management of social and economic crises”.^[34] The War on Drugs was nothing more than a war on the poor, racial minorities and immigrants, the primary victims of neoliberalism in America.

The result of the penal turn in the US was the tripling of incarceration rates between 1980 and 2000.^[35] The same factors were responsible as in Australia: tougher sentencing policies and reduced opportunities for parole. Certainly from the early 1990s, rising crime was not the issue. Between 1993 and 2014, a time when the US population grew by 60 million, robbery offences fell from 1.8 million to 500,000, aggravated assault dropped from 3.6 million to 1.1 million and recorded cases of theft decreased from 27 million to 12 million.^[36]

Once firmly established in the US, the much more coercive penal regime was, Wacquant argues, exported to Europe and Latin America by its champions, such as former New York City police chief William Bratton and mayor Rudi Giuliani, accompanied by a string of think tank representatives and compliant academics.^[37] The result was rising incarceration rates in many countries that followed the US lead.

How does Australia fit into this development? There is general agreement that neoliberalism plays an important part in pushing up incarceration in the US and several other countries, but there is disagreement in the literature about how widespread this tendency has been.^[38] While Wacquant suggests a uniform trend towards higher and higher rates of incarceration, with the US presenting a model for others, other writers argue that the sheer diversity of penal outcomes in terms of national imprisonment rates (Figure 2, above) and other indicators of penality belies any monolithic narrative of ever-escalating state coercion.^[39] Far from serving as the point of convergence for every other country, these authors suggest, the United States stands out for its exceptionalism.

Those who point to the continuing diversity in outcomes offer two broad explanations why penality continues to vary so markedly from country to country. First, that neoliberalism has been taken up in different forms and different intensities around the world. Those governments most engaged in the neoliberal program, such as the US, Britain and South Africa, have also tended to pursue the most repressive penal policies. Those where the more extreme aspects of neoliberalism are mediated by the legacy of more entrenched social welfare regimes, for example, Scandinavia, Germany and Austria, tend to have much less severe penal outcomes.^[40]

Other explanations for diverse levels of penality look to the impact of varying political systems. Some writers suggest that increased penality is particularly likely where government is decided in winner takes all (“majoritarian”) electoral contests, in which rival parties engage in highly partisan battles featuring a law and order race to the bottom. They can be compared to countries where proportional representation is used and coalition governments and consensus politics predominate, moderating tendencies to strict policies.^[41] Others point to the impact of non-partisan criminal justice experts within the bureaucratic structures who tend to ameliorate state punitiveness. Where the bureaucracy is highly politicised, by contrast, there are likely to be fewer restraints on “tough on crime” contests.^[42] Nonetheless, the evidence is fairly weak on this score; political economy is fundamental to explaining the variation in penal regimes across the West.^[43]

The Australian experience bears this out. There has been no significant change in political systems, and yet a dramatic shift in penal policy has occurred accompanying the neoliberal offensive. With the end of the post-war boom in the 1970s, the ruling class in Australia went on the attack against workers, seeking to shore up its profits by cutting wages and public services. The turn to a more coercive penal regime in the 1980s must be understood as part of this general process – to weaken and divide the working class, to deflect blame for social distress caused by the politicians and capitalists, to shore up the state apparatus to deal with any opposition, and to use prison as a means to warehouse the poor.

The criminal justice system in Australia is not as coercive as in the US. Weakened though the labour movement and welfare state have become, Australia still retains a stronger welfare state and trade unions than the US, which helps to explain why the country has not simply replicated every element of the US criminal justice model and the same sky-high rates of imprisonment.^[44] Nonetheless, neoliberalism in Australia has very directly helped to push up the incarceration rate. Cracking down on welfare recipients, undermining the minimum wage, reducing workers’ rights – hallmarks of the neoliberal agenda – all serve to force down conditions for those at the bottom of the working class. They make it harder for the poor, particularly Indigenous people, brought before court to post bail, with the result that they are held on remand.

Further, ever more intense policing and tighter surveillance of working class life serves to criminalise activities – minor drug offences, social security fraud, minor fights – that might once have escaped attention of the authorities or not resulted in jail sentences. Rising incarceration and the decline of rehabilitation as a goal of imprisonment both point to the use of prisons as a form of “waste management”, disposing of superfluous marginal populations, in other words those not able to be disciplined or those incapable of being used as productive wage labour.

When police officers are called out to deal with incidents involving people with mental health issues, it’s a case of shoot first, ask questions later: of the 35 people shot dead by NSW police since 1998, 19 had a mental illness.^[45]

Those on welfare are increasingly monitored and regulated in order to improve their job readiness, that is, their willingness to work at low-grade jobs for low pay. And as with most things, Indigenous people feel the sting of the whip most, with multiple penalties imposed on those engaged in work for the dole schemes (Community Development Program).^[46]

(ii) Intimidating and dividing the working class and the oppressed

The penal offensive involves intimidating those at the bottom of the social hierarchy and dividing the working class. By demarcating between supposed criminals and the decent majority, the law and order agenda plays a very important ideological role in stabilising the status quo. Scapegoating Indigenous people, African and Middle Eastern migrants, and asylum seekers (since their very arrival and application for asylum are deemed to be non-lawful) sows divisions in the working class. When politicians blame African gangs for the social ills of the cities, they hope that people will direct their anger towards Sudanese youth rather than the governments and the big companies overseeing high levels of unemployment and decaying social services.

Neoliberalism has only exacerbated racial oppression in Australia. The fate of the recommendations of the Royal Commission into Aboriginal Deaths in Custody report is telling. The 1991 report strongly recommended Indigenous self-determination as a means to reform the criminal justice system and address fundamental social and economic factors that result in the ATSI population being more likely to end up in court. Its authors hoped that imprisonment, and thus deaths in custody, could be addressed by a major shift in government policy. However, the Royal Commission’s calls for reform have been openly flouted.^[47] The 2007 Northern Territory Emergency Response was perhaps the most obvious example of state policy designed to target, demonise and lock up those at the bottom of the neoliberal pile. It constructed Indigenous men as sexual and physical abusers of women and children, and spuriously linked such abuse to traditional Aboriginal culture. This required a criminal justice response: police and army were sent onto Aboriginal land to take over management of local communities on 99-year leases.

Other measures aimed at the Indigenous population include the Howard government’s 2006 changes to bail and sentencing laws which were presented as a response to family violence in Aboriginal communities, but which restricted courts taking customary law into consideration. The police killing of Indigenous Palm Island man Mulrunji Doomadgee in 2004 and the subsequent violent attack by police on the homes of Palm Islanders, speak volumes about the ongoing police abuse of Aboriginal people.

Muslims, too, have been particular victims of the punitive agenda. Anti-terrorism legislation passed following the 9/11 attack has been used to position Muslims as the enemy within, resulting in police sweeps on homes and the arrests of dozens of suspects, in the full glare of invited media. In a big majority of cases, these mass arrests have not resulted in guilty verdicts; quite frequently the charges were simply dropped for want of evidence. In the small number of cases guilty verdicts do ensue, the resulting prison sentences have been manifestly excessive.

Asylum seekers and non-citizens have also been demonised and subjected to cruel treatment. Australia led the way in subjecting asylum seekers to the offshore detention and, if they are able to settle in Australia, denial of access to social security and housing assistance. Home Affairs has also been responsible for the rapid rise in the number of deportations of non-citizens convicted of crimes carrying sentences of more than 12 months on their release from prison. Since this process was started by then Immigration minister Peter Dutton in December 2014, 3,000 non-citizens, many longstanding Australian residents, have been deported.

(iii) Legitimating an increasingly repressive state apparatus

The punitive turn has been pursued with an eye to legitimising the accumulation of power by the most repressive arms of the state apparatus.^[48] The rationale is that the police and other security agencies are the thin blue line that stands between civilisation and chaos, and that any opposition to their repressive powers is akin to treason. In addition to general hysteria about the supposed lawlessness of urban centres, the War on Terror has been the main means by which this has been promoted extensively and effectively.

The boundary between police and military is becoming blurred. Specialist officers from emergency response teams are armed with military style assault rifles, and in Victoria there is talk of providing them to regular police too. At the same time, the military is increasingly involved in police training and internal security exercises. In November 2018, the federal government, with ALP support, passed revisions to the Defence Act giving much greater leeway for ministers to call out the army to deal with civilian unrest or terrorism in support of police. The revisions also expand the circumstances in which the army will be pre-authorised to respond to threats, essentially giving the military the initiative to act on its own accord. This significantly enhances the ability of the armed forces to intervene to secure order. If at the moment the focus is on terrorist incidents, the implications for use during civil unrest are clear.

The War on Terror has also been used to justify increased mass surveillance of the population. In 2017 the Turnbull government, with the backing of state premiers, introduced laws compelling telecommunications companies to retain metadata on customers, including information on who they call or text, where they make calls from and who they send emails to. Initially, 22 police and intelligence agencies, including the Australian Federal Police (AFP), ASIO and state police, were granted the right to request access to the metadata. Within 12 months, the number of government agencies applying for metadata had blown out and telecommunication companies were receiving around 1,000 daily requests for metadata.^[49] State premiers, Labor and Coalition, also agreed in 2017 to provide the Commonwealth government with drivers’ licence photos, enabling police to set up a comprehensive national face recognition system, a crucial element of mass surveillance. And in 2018, the government tabled a bill seeking the powers to break encryption on private messages on mobile phones, computers and cloud storage.

Australian Federal Police are now a much more visible presence in Australia’s airports. The federal government has tabled legislation to empower AFP officers to stop people, demand proof of identity and “move on” civilians within airports if they suspect them of having committed a crime, are likely to commit a crime or if they regard it as necessary to maintain order.

Measures that were initially cast as temporary and justified by the special circumstances of the supposed terrorist threat have become permanent and used in circumstances far removed from the original justification. The use of control orders initially used against alleged terrorists to now apply to bikie gangs is the best example of this process.^[50] Control orders have been accompanied by a growing tendency to “declare” criminal organisations, the use of secret evidence in judicial proceedings and expanded notions of preventive justice and crimes of association.

The repression of asylum seekers has been used to also justify the creation of a super ministry of Home Affairs, bringing together Immigration and Customs (already rolled together into Border Force), the AFP, ASIO and ASIS. Funding for the constituent elements of Home Affairs has run well ahead of funding of other departments for many years. Bringing the border war home in 2015, Border Force officers attempted to initiate identity checks on the streets of Melbourne and were only stopped by snap protests.

(iv) Weakening potential centres of opposition

The penal turn is also about reinforcing relations of domination over the entire working class. As the ruling class offensive of the past three to four decades has unfolded, the state has sought to penetrate, regulate and constrain many aspects of social life and especially resistance. This does not affect just Muslims, Africans, Indigenous people, people with disabilities and asylum seekers, but the broader population as well.

Trade unions have been squarely in the sights of successive federal and state governments, most obviously in the construction industry where the introduction of the Australian Building and Construction Commission (ABCC) in 2005 by the Howard government stripped construction workers of basic rights, such as the right to silence and the right to discuss with others the nature of charges brought against them. In 2008-09 two CFMEU members were charged with refusing to cooperate with the ABCC and threatened with up to six months in jail. The ABCC has also used its wide-ranging battery of legal powers in an attempt to cripple the activities of the construction unions, resulting in the imposition of a total of $15 million in fines on the CFMEU by 2018.

The 2014 Trade Union Royal Commission and the subsequent establishment of the Registered Organisations Commission have targeted the construction unions, in particular the CFMEU, whose Canberra and Brisbane offices were raided by cops in 2015 at the behest of Royal Commission chair Dyson Heydon.

In 2016, acting on Heydon’s suggestion, the federal director of public prosecutions laid blackmail charges against two leading Victorian CFMEU branch officials over an industrial dispute in 2012 at Grocon in Melbourne, charges that could have resulted in jail terms of up to 15 years and the establishment of a precedent for using criminal law in industrial disputes. Charges were eventually dropped in 2018.

Construction workers have been the victims of particular intimidation because of their record of industrial militancy and their success in squeezing the big companies and subcontractors. But a wider agenda is afoot: to intimidate workers in other industries and to stiffen the resolve of the employers to take aggressive action against the unions.

University student activists have been subjected to increasing harassment by security guards and university administrations, who regularly call police or threaten to call police on activists holding information stalls, leafleting on campus or carrying out peaceful protests. Administrations have taken disciplinary action against students exercising free speech for making campuses “unsafe spaces” or “intimidating” their political rivals. The intellectual climate on campus has also been reshaped in line with state priorities and funding: sociology departments and research units are increasingly geared towards criminology or security, politics departments and research units towards counter-terrorism or international relations.

Street demonstrations are increasingly treated as security threats by state and federal governments. Highly intimidating displays of weapons and armour are now par for the course at political demonstrations in Sydney and Melbourne. At the 2007 APEC protest in Sydney, for example, police displayed the force’s new water cannon, while specialist tactical response groups in each state have one or two armoured personnel carriers (BearCats) at their disposal. In 2011, 400 cops violently broke up the “Occupy” protest in central Melbourne, using horses, dogs and pepper spray. In the name of crowd control, Victorian riot police have recently been granted access to high-tech weaponry which includes semi-automatic rifles, flash and noise devices, capsicum gas canister bombs as well as body armour.

The right to protest is increasingly restricted and penalised. In 2014, central Brisbane was shut down and protests subjected to onerous restrictions to protect the G20 summit. The same occurred with the 2018 Commonwealth Games on the Gold Coast. In NSW, activists conducting non-violent direct action to hold up the operation or construction of power stations, coal mines, coal seam gas operations or new toll roads risk prison sentences of up to seven years under anti-protest laws introduced by the Baird government in 2016. In 2018 three environmental activists in NSW were the first to be prosecuted under these laws. The three were found not guilty, but the protest laws remain.

The law and order agenda is not just a question of squashing obvious centres of potential opposition but dealing with whole layers considered prone to lawlessness. Young workers are one obvious example. In NSW, drugs have been the pretext for more intensive stop and search exercises, often involving sniffer dogs, in areas where young people congregate. Among Muslims, Indigenous people and African migrants, it is disproportionately the young who are picked on by police and security guards and demonised by the media. Railway stations have become heavily monitored. The Baird government in NSW replaced transit officers on trains with cops in 2012. In Victoria, protective service officers, now numbering more than 1,100, patrol railway stations at night, with powers to arrest people, conduct searches, issue infringement notices and demand personal details.^[51]

More cops, more laws, more surveillance and ever tighter regulation of the working class are being used to intimidate the working class and render them more amenable to more intense exploitation by capital.

(v) Maintaining ruling class hegemony in an era of political delegitimation

The ruling class forms only a tiny minority of the population. They preserve their rule through their monopoly over the means of repression, the police, the army, the courts, the prisons – the core of the capitalist state – and through a series of state and civil society institutions that constitute the soft power of the ruling class. These latter include the mainstream political parties, the media, major religious bodies, educational and social welfare institutions and the trade union bureaucracy. These institutions and social layers play a useful role in ideologically blurring sharp class demarcations and winning the consent, or at least minimising the opposition, of the oppressed and exploited to the continuation of their oppression and exploitation. Their ability to do so is premised on what Marx called the “dull compulsion of economic relations”,^[52] the understanding by workers that the only alternative to working for a capitalist is starvation. Their task is facilitated, however, if the ruling class appears able to make concessions to the working class that improve workers’ living standards and political rights. Neoliberalism, by reversing these tendencies, undermines the ability of the ruling class to use these intermediary agencies as a social buffer.

Neoliberalism undermines these intermediary layers in several ways. First, it reduces the space for democratic input by the mass of the population. This is most obvious with the European Union whose most important unelected bodies, the European Commission and European Central Bank, have appropriated significant powers that were once the province of elected parliaments and central banks accountable to them. In Australia, the Reserve Bank is now completely unaccountable to the population. The “expert” and unelected Productivity Commission and the Parliamentary Budget Office, along with the Treasury and Reserve Bank, play a significant role in defining what are regarded as acceptable boundaries of economic policy. These decisions to “depoliticise” crucial arenas of political contestation were made by politicians. But in vacating these arenas they confirm in the minds of the public their own impotence. This tendency is exaggerated by the political convergence by the Coalition and Labor around the basic precepts of neoliberalism, chiefly involving the capitulation of the Labor left to the right. Although Labor may at times position itself as the champion of the working class, it is a far more trustworthy guardian of the interests of the capitalist class, with its fealty to international competitiveness, balanced budgets, free trade agreements and all the rest. Finally, neoliberalism, as the ideology associated with the last three decades of ruling class attacks on the working class, has further weakened the ability of the political parties to garner widespread enthusiasm from the mass of the electorate.

The resulting political alienation can be measured in several ways. Membership of Australia’s main political parties – Labor, Liberal and National – has been in decline relative to population for many decades. But the rot really set in in the 1980s as neoliberalism took hold. The memberships of the big parties are now dramatically smaller, in real terms, than they were in the 1950s. The activist bases have become even more thinned out, with most parties now entirely reliant on paid functionaries employed out of public funds or in the electorate or parliamentary offices of the politicians. In the case of the ALP, the party is now highly dependent on the trade unions to provide the armies of door-knockers and polling booth volunteers needed to get the vote out at elections.

Political loyalties remain firm in many respects – the simple geographic voting patterns in Sydney and Melbourne are testimony to that. But these loyalties are much less strong than in years past. Since the mid-1980s, the primary vote for the ALP and National party has been shrinking and, other than for brief periods during the Howard years, the same is true for the Liberal party. Political partisanship is in steep decline: the proportion of the electorate always voting for the same party has fallen from 72 percent in 1967 to 40 percent in 2016.^[53]

Even though a quarter century of rising wages (until 2012) helped to blunt the mass alienation from established political institutions so dramatically evident in the US and Europe, Australia has not been immune from this general tendency. Few politicians attract much affection from voters today. Only 1 percent of the electorate hold “a great deal” of confidence in political parties.^[54] Only one quarter of voters can detect a “good deal of difference” between the ALP and Coalition, reflecting the convergence in their policies.^[55]

The overall effect is growing dissatisfaction with the political system. Between 2007 and 2016, the share of the electorate expressing “dissatisfaction” with democracy rose from 14 percent to 40 percent. Three-quarters believe that “people in government look after themselves”, up from 57 percent in 2007. Those who believe “people in government can be trusted” fell from 43 percent in 2007 to 26 percent in 2016.^[56]

It is not just the politicians and political parties that are the subject of disenchantment. The credibility of the various mainstream Christian churches is sinking, the media are mistrusted and big business and the banks are losing credibility. From the perspective of the ruling class, the walls of some of their outer fortifications are showing signs of fatigue. This inclines the ruling class to lean more heavily on the forces of repression to secure their rule. Their ability to do so is helped by the fact that, in the context of declining collective identity forged through trade unions and the labour movement, declining faith in the political system has opened the space for growing sympathy for authoritarianism. This is particularly obvious among those in their 20s and 30s, those who have only experienced politics as it is now. For example, while 90 percent of voters think democracy is a good idea, and 57 percent believe it is “absolutely important” that the country is governed democratically, the younger age groups are less supportive on both of these precepts. One in three of the electorate support “a strong leader who does not have to bother with parliament and elections”, but among 30-34 year olds, more than half support this idea and 40 percent of those aged 35-39.^[57] Fifty-nine percent of the electorate support “having experts, not government, make decisions according to what they think is best for the country”, but three-quarters of those aged 25-34 support this proposition.^[58] This same overall trend also contributes to support for state victimisation of Muslims and asylum seekers. “Defending our borders” and “keeping the population safe” both play into the same tolerance, if not enthusiasm, for repressive measures meted out to society’s “others”.

This does not mean that voters have comprehensively swung to the right. On a left-right spectrum, the share of the electorate identifying with the left has grown over the past two decades.^[59] Three-quarters believe that big business has too much wealth and more than one half support income and wealth redistribution.^[60] But, in the absence of any organised force capable of pulling those shifting to the left together, this sentiment does not go anywhere. The decline of trade unionism, the collapse in strikes and the dissolving of the Labor left as a distinct ideological current are the most significant factors limiting the cohering of a left wing alternative to the neoliberal political mainstream. The Greens appeal to liberal progressives but do not seek to build a left wing working class alternative to the ALP.

These are the circumstances, then, that underpin a mass base for law and order politics. While support for political parties, politicians, business and the churches is sinking, trust in the most repressive arms of the state – the police and armed forces – is high and shows no signs of falling (Figure 5). Trust in these bodies in Australia is exceptionally high by international comparison, topping that found in most comparable countries.^[61]

Figure 5: Trust in Institutions, 1981-2018

Source: data drawn from Jill Sheppard, Ian McAllister, Toni Makkai, “World Values Survey, Australia, 2018”, doi:10.26193/DJLJV1.

Support for the police, further, is more or less universal, it does not appear to vary greatly by political identification or social class. The proportion of those expressing “no trust” in the police ranges from 0.4 percent of Liberal/National supporters to 1.2 percent for ONP, 2.6 percent for Greens and 2.9 percent for ALP.^[62] Trust in the police does rise in the higher income brackets compared to the lower and among those with supervisory responsibilities compared to those without, but the difference is not great. Other indicators of class location bear no relationship to trust in police.^[63] The cross-class nature of support for the police is extremely useful for politicians and government officials seeking to buttress their electoral support when they have little else to offer the mass of the population. As van der Velden and White argue:

Huge and growing disparities in wealth and income, and increasingly embittered social divisions, provide a context within which orchestrated panics over “crime” become important means to realise capitalist hegemony through cross-class appeals to unity against a common enemy.^[64]

The fact that law and order is bipartisan and enthusiastically supported by the media means that it can be exploited by both Labor and Coalition without fear of organised opposition. Even when people are suspicious of the government’s agenda, getting law and order onto newspaper front pages can still shift the political climate to the right.

Conclusion

Since the 1980s, successive governments, Labor and Coalition, have promoted an increasingly harsh law and order agenda. This has resulted in a sharp increase in imprisonment. Incarceration weighs particularly heavily on the poor and oppressed. The law and order agenda cannot be justified on the grounds of rising lawlessness: the crime rate is falling steadily. Nor has it emerged in response to community concern about crime and soft sentencing: the agenda has been driven from the top, by the very politicians who do their best to manufacture this concern as justification for their agenda.

The explanation for the lurch towards law and order politics lies in the changing political economy of the past four decades, specifically the neoliberal offensive against the working class, alongside Australia’s participation in US efforts to hold onto its position as the world’s only superpower, with all the attendant racist scapegoating of Muslims.

It is vital then, that left and progressive forces resist the law and order agenda and the continued ratcheting up of the penal state. This means steadfast opposition to laws targeting particular sections of the working class and poor, to police harassment of the oppressed, to raids on union offices, to every attempt to crack down on political expression whether on the streets or the campuses, and to ever stiffer sentencing policies that are sending more and more people to jail. Our task is not hopeless: the 2018 Victorian election results demonstrate popular resistance to rampant punitiveness.

Our ability to push back will be enhanced as part of a broader fight back against neoliberal attacks. The politicians, media and police have been able to promote the law and order agenda in the context of decline of popular social movements, the disappearance of unions from many workplaces and the collapse of strikes. This is the environment in which it has been difficult to promote an alternative narrative explaining the source of social distress and the measures needed to tackle it. It has also made more difficult our task of mobilising the forces to oppose ruling class attacks. Resisting the law and order agenda therefore has to be embedded in a broader project of rebuilding the left, the unions and progressive social movements. The left and the working class movement needs to be equipped to respond sharply to every aspect of the ruling class’s agenda of economic austerity, racism and militarism and not to concede to it on any point.

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