Osman Faruqi
Policing as part of the national psyche

There are two striking aspects of Australia’s response to coronavirus: the first is that it’s being increasingly led as a police issue, and the second is that this is happening while the rest of the world works to reform and curtail police powers. As other democracies talk about abolition, we’re sending armed officers into housing blocks and calling it public health.

In the two months since George Floyd’s killing by police, 31 of America’s largest cities have implemented policies restricting chokeholds. Cities such as Los Angeles and New York have cut their police budgets for the first time in modern history. Minneapolis has voted to defund its police force.

New Zealand recently announced it was abandoning a trial of arming officers. In Canada, the mayor of Toronto has tabled a proposal to “de-task” the city’s police force by creating “alternative models of community safety response”.

In Australia, rather than sparking any kind of real debate about the limits of policing, the conversation has focused on a conspiracy theory that Black Lives Matter rallies spread coronavirus.

Despite being dismissed by medical experts, this theory has dominated headlines in the country’s most popular newspapers and has even been endorsed by the New South Wales police commissioner.

Police have also prevented further rallies from going ahead, claiming they will be a vector for proliferation of the virus. The fact that the police may have their own interests in shutting down a campaign squarely focused on police violence has barely featured in the public discussion.

Meanwhile, a proposal to raise the age of criminal responsibility and stop the imprisonment of those aged under 14, 60 per cent of whom are Aboriginal and Torres Strait Islander children, was recently rejected by the country’s attorneys-general.

In Victoria, far from de-arming, defunding or de-tasking police, the Andrews government has expanded its punitive approach to public health, increasing fines for those who breach public health orders and giving police the power to enter homes without a warrant. Protective services officers – armed officials with just three months of training, who normally patrol train stations – have been given the same powers as police to stop, question and fine individuals.

In comparable jurisdictions, people have been able to respond to the virus while debating and implementing police reform. Australia has done the opposite. The pandemic has been used as justification for an unprecedented increase in police powers.

This phenomenon reflects a bigger trend in Australia: the success of what criminologists dub penal populism. Coined in the mid-1990s, the term refers to the way in which politics can harness and exacerbate community concern about crime to push through laws such as mandatory sentencing and give police more resources and more powers. This form of politics creates a problem and then pretends to solve it, usually with brute force. It is popular with the police and with tabloids, and it works.

Penal populism in Australia is generally considered to have its genesis in the 1988 state election in NSW. Taking inspiration from conservative politicians in the United States, the then Liberal opposition leader, Nick Greiner, sought to portray then Labor premier Barrie Unsworth as “soft on crime”. Greiner promised what he called “truth in sentencing” legislation: big increases in sentences for murder, sexual assault and gun crime.

It worked, and Greiner became the state’s next premier.

The new Labor opposition leader, Bob Carr, decided that the party couldn’t allow itself to be outflanked by the conservatives on the issue of criminal justice. At the next election, he adopted the same tough-on-crime rhetoric as Greiner, declaring “hard-drug pushers would die in jail”.

Carr didn’t win, but he came close. And so the law and order auction was born.

Four years later, the bidding was ferocious. The Coalition government proposed a US-style three-strikes policy. Carr promised mandatory sentencing. Labor ran advertisements accusing the government of being on the side of drug dealers.

Carr went on to become NSW’s second-longest-serving premier, and his approach to crime became a defining point of his tenure. Police budgets ballooned, officers were given more weaponry and new powers.

One of Carr’s enduring legacies is the highly controversial use of sniffer dogs in NSW. The state was the first in Australia to introduce sniffer dog units in the early 2000s, with the goal of aiding police to crack down on drug suppliers.

A NSW ombudsman’s report in 2006 found they had failed miserably.

“The use of drug detection dogs has proven to be an ineffective tool for detecting drug dealers,” the ombudsman put bluntly.  “Overwhelmingly, the use of drug detection dogs has led to public searches of individuals in which no drugs were found, or to the detection of (mostly young) adults in possession of very small amounts of cannabis for personal use.

“These findings have led us to question whether the Drug Dogs Act will ever provide a fair, efficacious and cost effective tool to target drug supply. Given this, we have recommended that the starting point, when considering this report, is to review whether the Drug Dogs Act should be retained at all.”

Of course, the use of drug dogs was not only retained but was significantly boosted. When the experts say one thing, our politicians do the other. Drug dogs are now a regular sight at train stations and large events across the state, despite their lack of efficacy. Official figures show that in most cases where a sniffer dog indicated the presence of drugs on someone, no drugs were actually found.

Sniffer dogs are a perfect case study of the kind of populist and punitive model that has come to define Australian policing: highly visible and evidence free.

Overall the only real consequence of the law and order auctions in NSW has been a skyrocketing prison population, largely due to tougher sentencing laws and more restrictions on bail. The actual crime rate is stable.

The total disconnect between these highly punitive laws and the reality on the ground led the then NSW Liberal attorney-general, Greg Smith, to declare in 2012: “The whole hardline approach against crime has been a failure in many places.”

Smith’s more evidence-based approach to law and order was pilloried by shock jocks and the tabloid media. The Daily Telegraph referred to him as a “marshmallow man”, accusing him of being “soft on crime”.

The media has been a key player in the emergence of penal populism. In fact the whole model rests on a mutually constituted campaign between media, politicians and police. Politicians are able to find a willing audience for these kinds of policies because of a public perception of crime rates shaped by what they see on TV and read in the news. News outlets know that sensationalist coverage of crimes on the extreme end of the spectrum are more satisfying to their audience. And police know that providing journalists with compelling footage and stories of high-profile criminal busts feeds the narrative, creating a political atmosphere conducive to bigger police budgets and more power.

It’s a perfectly symbiotic relationship. Punitive policies ricochet between politicians, the media and police, becoming tougher and tougher as they go. Ideas that might actually reduce the crime rate and get people out of prison and into the community aren’t allowed in, because it’s not in the interests of any of these actors to implement them.

The current, highly punitive approach to the coronavirus outbreak in Victoria is another example of this. Despite having the strictest and most harshly enforced lockdown in Australia, the state is now a national pariah in terms of cases. During the first lockdown, Victoria fined twice as many people per capita for breaching public health orders as NSW. It fined three times more people than Britain. The actual impact on reducing the spread of the virus is unclear.

Residents in lower-income suburbs were much more likely to be fined than those in wealthier areas, suggesting enforcement of health orders was less about limiting viral transmission and more about repeating existing patterns of inequitable policing.

But despite that pattern, the same approach has been deployed this time around. Police have fined thousands of individuals, but only released details of a few egregious incidents: a gathering at an Airbnb to celebrate a birthday party; a carload of friends ordering an extraordinary amount of KFC; a man driving across the city for butter chicken.

The media laps this up, because it generates outrage. This outrage creates controversy and audience engagement. The press creates a perception that the public is dangerously flouting the laws by partying, when in reality most Victorians are obeying health orders and we actually don’t even know the details of most of those who are being fined. Journalists then kick off press conferences asking government ministers about whether fines should be increased, given how many people are breaking the rules. The government acquiesces and the cycle continues. This is the story of policing in modern Australia.

Interestingly, Victoria was relatively late to the law and order auction. In 2010 the then Liberal opposition leader, Ted Baillieu, ran hard with a tough-on-crime platform, and reshaped the next decade in terms of how Victorian politicians would view the issue. Premier Daniel Andrews has decided that rather than risk being attacked by conservatives on crime, he would instead outflank them. He has invested in prisons and police and introduced harsher sentencing laws. The result is the same as NSW: a stable or declining crime rate, but a ballooning prison population. A failure for the community, but a win for politicians, media and the police.

Australia isn’t the only country grappling with the consequences of penal populism, but our inability to have a real conversation about its legacy reflects something much deeper in our culture. As far-reaching as many of the current police powers are, particularly those introduced in the context of coronavirus, they aren’t entirely unprecedented.

Policing in this country was first introduced as a tool of colonial repression, to target and vanquish Aboriginal and Torres Strait Islander people. Militarised, armed and mounted police units existed in Australia before anywhere else in the world.

Before centrally funded and organised police forces were established in Britain or the US, Australian police were enforcing colonial rule and fighting in the Frontier Wars. As the colony expanded, police were used to implement policies of protectionism and assimilation, aimed at further subjugating Aboriginal and Torres Strait Islander people.

Essentially, police in Australia have played a long-term paramilitary and administrative role not seen in most other countries. The legacy of that approach dominates our current thinking on policing and justice. Like police reform elsewhere, until we are able to acknowledge the root cause of inequality and injustice in Australia, we will not be able to properly reckon with this issue. Truly, this is a nation of cops.

This article was first published in the print edition of The Saturday Paper on August 8, 2020 as "A nation of cops".

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