New concerns surround the government’s increased use of legislative powers to bypass the parliament and create laws that cannot be amended or overturned. The federal government has embedded special powers in new Covid-19 laws to make unilateral changes to non-pandemic-related legislation, using what are known as ‘Henry VIII clauses’ – named for the unchecked power they involve.
Laa Chol and racist fear
We have seen it all before. Moral panic too often stimulates governments to adopt extreme and racially based responses to social problems.
Victoria’s 19th-century gold rush led to an explosion in the state’s Chinese population. Forty thousand people migrated to Australia to strike it rich. They arrived, most of them men, in numbers not seen again until the abolition of the White Australia policy in 1973.
With the arrival of these new migrants came many things, including the opiates some habitually smoked. As this new drug found its way into the homes and pipes of non-Chinese around Victoria, there was an outpouring of concern about the effects Chinese migrants might be having on the colony.
By 1868, the Victorian parliament had commissioned the Report of the Condition of the Chinese Population in Victoria, in which the word “evil” appeared 43 times in 30 pages. The prescription was clear – “exceptional legislation must be provided for this exceptional people, to save them from ruining themselves and society around them”.
Newspapers, such as Melbourne’s Truth, ran headlines including, “Concupiscent Chows Seduce Little White Girls” and “Dreadful Dangers of the Mongolian’s Debasing Drug”.
Thirty years later, Queensland’s parliament extended the fear of opium beyond Chinese migrants. By 1897, the Aboriginal Protection and Restriction of the Sale of Opium Act was passed, banning the sale of opiates. Cloaking itself in the familiar language of “better protection and care” these news laws also established a framework for government control over the lives of Aboriginal and Torres Strait Islanders that continues today.
More than a century later, the federal government passed the Northern Territory National Emergency Response Act 2007, also referred to as “the intervention”, stimulated by the “Little Children Are Sacred” report and allegations of child sexual abuse – though, it should be noted, only two of 97 recommendations laid out by the report were accepted or implemented. Under these new laws, no successful criminal prosecutions have been brought for child sexual abuse, but the “special measures” for many Indigenous communities in the territory continue.
Last weekend, teenager Laa Chol, a young African–Australian woman, was killed at a party held in an apartment in Melbourne. Two men have been charged over her death – a 17-year-old, who appeared in the Children’s Court this week on a murder charge; and a 16-year-old, whom homicide detectives arrested as an accessory to murder on Wednesday. Despite police involved in the investigation not commenting on the nationality of either man, this has not deterred the media from declaring that Victorians are in the midst of a race-based crime wave.
Some political leaders, including Prime Minister Malcolm Turnbull, have added fuel to the law and order debate, saying you would “have to be walking around with your hands over your ears” not to hear the “real concerns” about Sudanese gangs in Melbourne. “There is a major law and order problem in Victoria and more people are going to be hurt until the rule of law is enforced by the Victorian government,” Home Affairs Minister Peter Dutton told The Age. “We don’t have these problems with Sudanese gangs in New South Wales or Queensland.”
Victoria Police has a different and more informed view. As Commander Stuart Bateson has pointed out, “It’s not related to ethnicity. We’ve seen murders occur in similar circumstances ever since I’ve been in the police force … To suggest Melbourne is gripped with fear, I just don’t see that.”
Yet again, a tragic death has been politicised. Political advantage has been sought by manipulating public fear to justify the adoption of disproportionate laws that threaten our fundamental rights and freedoms.
This week the Victorian Labor government announced an extension of its “anti-association” laws to include children as young as 14, along with provisions to require 16-year-old parolees to wear ankle bracelets. Such laws are modelled on those adopted by Queensland – passed with bipartisan support in 2013 – to restrict the activities of “bikies” by banning the association of persons with outlawed “criminal” gangs. Tasmania’s Liberal government is currently considering adopting anti-bikie legislation, introducing changes to its Police Offences Act earlier this year that would ban the wearing of club colours in public.
Anti-association laws, similar to those proposed by Victoria, were adopted by the NSW government in 2012. During a review of these laws in 2016, the NSW ombudsman found that 7 per cent of “consorting warnings” were directed at children. Indigenous Australians were subject to 40 per cent of such warnings, more than half of them directed at Aboriginal women. Two thirds of the 83 children aged between 13 and 17 years old who received consorting warnings were Aboriginal. In 2011, Aboriginal and Torres Strait Islanders comprised 2.9 per cent of the total NSW population.
People experiencing homelessness are especially vulnerable to anti-association laws. The NSW ombudsman also reported that the first person to be sentenced under the anti-association laws was a homeless man suffering chronic and terminal pancreatic cancer. He was issued a consorting warning for speaking to three people on a park bench on the Manly foreshore, a place where many who are homeless congregate.
These laws, bear in mind, were created to deal with “organised crime”.
Summing up his findings, acting ombudsman John McMillan, AO, made a strong statement on NSW’s anti-association laws – noting police already have alternative powers to disrupt organised crime. “It would be in the public interest for the Act to be repealed,” he wrote. “I have made this the only recommendation in my report.” To this day, despite the ombudsman’s recommendation, the Crimes (Criminal Organisations Control) Act 2012 remains on the books.
Over the past two decades Australian parliaments have passed scores of laws that infringe our democratic freedoms of speech, association and movement, the right to a fair trial and the prohibition on arbitrary detention. Disproportionate laws have granted executive and ministerial discretions that are often not subject to judicial or merits review.
Many such laws may appear to be innocuous or socially justified but, on closer examination, impose unnecessary restrictions on our liberties. Among many examples is the federal government’s new online health records system – My Health Record – that can be accessed by police without a court order. Personal health records will be used by government agencies for the “protection of public revenue”. We have every reason to be troubled by such invasions of our privacy. In February last year, for example, the Department of Human Services released a woman’s Centrelink history after she criticised the agency in a Fairfax Media newspaper.
The harsh reality is that the victims of such invasive laws are frequently the most vulnerable people in our community.
When our freedoms are disregarded, there can be tragic human consequences; Reza Barati, killed on Manus Island while being held indefinitely without charge or trial; Dylan Voller, abused in a Northern Territory youth detention centre; Ms Dhu, dying from septicaemia and neglect in police custody in Western Australia, after having been arrested for parking fines of $3600.
Back in Victoria, the risk posed by any new anti-association laws is that police may be tempted to use them to prosecute and remove people who are homeless and forced to live their lives in the public eye. Punitive and isolating laws are not a solution to homelessness.
Those without safe housing need vital social, health and legal support.
Unlike all other states of the Commonwealth, Victoria has the advantage of its Charter of Human Rights and Responsibilities, enacted in 2006, guaranteeing the right of all persons to freedom of association and peaceful assembly. It remains to be seen whether the Andrews government’s proposed anti-association laws will survive a legal challenge. If not, perhaps Victoria will choose to respond to social challenges with greater compassion for the most vulnerable in our community. Above all, let us adopt laws and policies on the basis of the facts, responding to criminal acts – as Commander Bateson has done – with a calm assessment of the evidence and respect for our individual liberties.
This article was first published in the print edition of The Saturday Paper on Jul 28, 2018 as "Laa Chol and racist fear".
A free press is one you pay for. In the short term, the economic fallout from coronavirus has taken about a third of our revenue. We will survive this crisis, but we need the support of readers. Now is the time to subscribe.