None of this was controversial. The ex-judge was Tom Bathurst, most recently chief justice of New South Wales. His confidant was the state’s attorney-general, Michael Daley. And the high-profile figure was Kathleen Folbigg. Twenty years after being convicted of suffocating her four children, she was released from a Grafton prison.

Asked when Bathurst’s actual report would come out, Daley replied, “Without giving away any confidences, I think it would be appropriate to say that it will be weeks and not months.” The report was published last week, more than five months after Folbigg’s release.

Bathurst is the latest in a very lengthy string of judges who’ve ruled on Folbigg’s murder convictions. Six appeal judges, rejecting her first two appeals, all expressly said they agreed with the jury’s verdict. Three High Court judges (who had all once sat on the same appeals court) refused a further appeal, adding that the prosecution evidence was strong.

Just four years ago, in a different official inquiry, a former judge (previously head of a different New South Wales court) not only declared Folbigg guilty as charged but said that the further evidence he had heard “makes her guilt of these offences even more certain.” Two years ago, yet another appeal panel found ample basis for their former colleague’s ruling.

That’s twelve judges and one former one who’ve ruled Folbigg’s conviction safe, with no dissenters or doubters. Until now.

As he foreshadowed to Daley, Bathurst has told the state governor (a former head of the appeals court who had already pardoned Folbigg) that “there is reasonable doubt as to Ms Folbigg’s guilt” of each of her alleged crimes.

What created the doubt, according to Bathurst’s report, was new evidence that emerged just as the previous inquiry reported. Rather than supporting the finding that Kathleen Folbigg smothered her children, it showed that her two daughters shared a gene that could kill them. Other new evidence firmed up the likelihood that one of her son’s multiple afflictions also had natural causes. Bathurst accepted most, but not all, of this expert evidence.

Also presented was fresh psychological evidence about how to read diaries written by people under stress. Folbigg had written, for instance, of her husband’s “morbid fear” of their fourth child dying, “Well I know there’s nothing wrong with her. Nothing out of ordinary any way. Because it was me not them,” adding “I’ve learnt once it’s getting to me to walk away… With Sarah [her third child] all I wanted was her to shut up. And one day she did.” Bathurst said that these, and similar entries, were “evidence of self-blame” and concluded that the diaries contained no “reliable admissions of guilt.”

But it’s not only evidence that changes with time. As academic Emma Cunliffe details in her masterwork on Folbigg’s case, shared assumptions about multiple infant deaths have shifted with the decades. Once, those deaths were attributed to sleep apnoea, but then New York police investigated a family whose experience had been presented as key evidence of that theory and came away with the mother’s confession to five infant murders. Unsurprisingly, maternal suffocation became the preferred go-to, until the doctor who coined the term “Munchausen syndrome by proxy” was disgraced for giving bad statistical evidence in homicide trials. Folbigg’s misfortune was to be tried just before genes’ and trauma’s stars rose as explanation for such family tragedies.

Another change is simply that Folbigg’s trial is now much less recent. As anger, shock and memories recede and anticipated confirmations — confessions, revelations, similar cases — fail to materialise, space opens up for murderers to be unmade in the public’s mind. (Folbigg has long had champions including, startlingly, Alan Jones.)

Given the myriad possible explanations for the late turnabout in Folbigg’s case, I’m content to put aside the less palatable ones — medical fashion, malleable opinion, multiple wrong judges or jurors, or error on the part of Bathurst himself — and pin it all on the fresh evidence.

But there’s a further uncomfortable fact that Bathurst, Daley and others never mention, and that I’m not content to let slide: Kathleen Folbigg was unfairly tried in 2003, something New South Wales’s judges have known perfectly well for at least seventeen years.

Kathleen Folbigg’s two-month trial nearly collapsed in its second week. The trouble started when a new lawyer named Annabel dropped by to watch the proceedings and immediately recognised one of the jurors. She phoned a friend to confirm that her boyfriend was on the panel and then asked, “Did you know that was the case I was working on?” Annabel had done her student training at legal aid and had helped to prepare Folbigg’s defence.

It belatedly dawned on her that her phone call may have worsened the situation. Still worse, her friend had been part of her uni study group and may have been there when she described her work on the case. Worst of all, she might have told the group her personal view: that Folbigg was guilty as charged but shouldn’t be jailed. She promptly told the trial lawyers everything.

Folbigg’s prosecutor was dismissive — jurors often hear others’ takes in high-profile cases — but the defence fretted that Annabel’s opinions may be given particular weight. The judge, loathe to act on mere possibilities, opted to put the juror on the stand. He testified that he knew Annabel and about her phone call to his girlfriend, but, asked whether he had heard any of the lawyer’s opinions about the case, replied, “None whatsoever.” He was returned to the jury room with instructions to discuss the case with no one, including his girlfriend.

Justice Graham Barr made many decisions in 2003 that have aged well. Crucially, he barred all of the medical experts from opining on the likelihood of four natural infant deaths in a single family, restricting them to discussing each child individually. Bathurst ruled that Barr’s take matched the state-of-the-art medical thinking two decades later, and disclaimed the stance of then prosecutor Mark Tedeschi, who likened the defence case to a person being “hit by lightning four times.”

Tedeschi repeatedly tried to inform the jury of another startling fact about Kathleen Folbigg: that her father had killed her mother. The prosecutor initially said that it “provided an explanation for why the accused may have smothered her children.” Later, he claimed that it explained how Folbigg’s self-description in her diary as “my father’s daughter” amounted to a confession to the murders. Finally, he argued that the jury needed to know the history to understand her discussions about it with her husband and, later, the police.

Barr knocked back each of these attempts in turn, explaining that “the risk of misuse of the evidence is so great that I doubt whether any direction can obviate it.” This year, Folbigg’s ex-husband Craig complained that her troubled childhood was scarcely mentioned in Bathurst’s inquiry. He urged that it should be put in the report to the governor as evidence of his former wife’s possible inherited traits, mental illness and consciousness of guilt. Bathurst’s report dismissed this “rank speculation,” instead listing Craig’s unreliable trial testimony as a further reason to doubt the jury’s verdict.

It is a tribute to Barr that the courts have identified only one mistake he made: giving Folbigg too harsh a sentence. On the morning of 17 February 2005, the first three judges to review her case upheld her conviction but lowered her sentence from Barr’s forty years to thirty, leaving her eligible for parole in 2028. “Any person who was properly informed, sensible and thoughtful” would see how her “tragic background” — which effectively left her an orphan — “explains to some extent, although it does not excuse to any extent, how the crimes came to be committed.”

Barr’s excellent judging was something of a misfortune for Folbigg. A fair trial means a fair verdict. Or so it seemed that morning. That afternoon, Annabel emailed legal aid with some bad news about Folbigg’s jury.

Two brief court judgements are the only public insight into the flurry of behind-the-scenes events kicked off by Annabel’s email from early 2005 to late 2007. Even the judgements that emerged are unusual, because courts typically cannot rule on evidence that emerges after (here, hours after) a convicted offender loses her first appeal. Bizarrely, a missing staple on her court file allowed an exception in Folbigg’s case.

Thanks to the missing staple, we know that Annabel’s email recounted how a juror she “knew” had told her that “one of the jurors had researched Kathy’s history etc on the internet” during the trial. A year-long court-ordered investigation followed. Thanks to the rules protecting jurors and their deliberations, the only public outcomes of that investigation are terse summaries of “two instances of potential irregularity in the conduct of the jury trial.”

One involved the fact that some of the infants’ bodies were warm when paramedics arrived. The jurors were curious about how long bodies stay warm, and one asked a nurse friend. Such inquiries are forbidden, but the court ruled that, luckily, what the jury was told — that bodies stay warm for quite a while — helped the defence.

The other irregularity was far more serious. A juror googled “Kathleen Folbigg,” read “several related sites” and told others what they said: that Folbigg’s father killed her mother when Folbigg was an infant. This discussion happened early in the trial, while Tedeschi tried and Barr refused to let the jurors know this very fact, blissfully unaware that their debate was moot.

The jury verdict would also be moot unless the court was “satisfied” that what the jury discovered had not affected their verdict. And here’s where the story took another turn.

Chief judge Peter McClellan explained the appeals judges’ take in a single paragraph:

Even though the appellant was the child of a person who killed another I do not believe there was any likelihood that a juror would reason that it was more likely that the appellant would kill her own children. The killing of a spouse may tragically occur in circumstances of the breakdown of a relationship or be occasioned by temporary loss of control accompanied by a violent and fatal act. The circumstances and motive for the killing are likely to be quite different from those which will exist if a mother has killed her own children. There could be no suggestion that the killing of the appellant’s mother by her father indicated any tendency in the appellant to kill her own children. In my judgment the knowledge obtained by the juror did not lead to a miscarriage of justice.

Judges Carolyn Simpson and soon-to-be-High-Court-justice Virginia Bell agreed without comment. The panel, satisfied that the juror’s research hadn’t affected the jury’s verdict, dismissed Folbigg’s second appeal and caused her to spend sixteen more years in prison.

There is no nice way to say this: what the court says here is wrong. It’s possible that the sheriff’s investigation turned up a quite different reason to be satisfied that the jury’s verdict was unaffected by the learning about Folbigg’s childhood, but the reason the court gave — that the jury would have simply shrugged and ignored it — is ridiculous.

Don’t just take my word for it. Take the word of prosecutor Mark Tedeschi, who argued that the jury could use the information to apply “the attachment theory, which is that children who have gone through the sort of early life that this accused went through may have difficulty themselves bonding with their own children.” Or trial judge Graham Barr, who acknowledged that the family history had “substantial” value in interpreting Folbigg’s diary, but that that still did not outweigh “the danger of unfair prejudice.”

Or why not appeal judge Peter McClellan? A decade after ruling on Folbigg, he headed the royal commission into institutional child abuse. There, he wrote eloquently about how “adverse childhood experiences can negatively influence a person’s emotional, social and cognitive development.” But he also bemoaned the “misconception… that victims of child sexual abuse go on to sexually offend against children themselves,” a conception sadly voiced by some victims when they privately confessed their own crimes to the commission.

My point, of course, isn’t that Folbigg’s history casts light on her guilt or innocence. Rather, it’s the possibility that one or more jurors may have seen such a link themselves, much as her ex-husband and others did. Or, as Barr feared, that one or more of them might have somehow irrationally judged her for her father’s crimes. I struggle to imagine why the appeal judges couldn’t imagine these possibilities.

Indeed, I have a further, more speculative worry, based on what Folbigg wrote in her diary between the death of her third child and the conception of her fourth:

I’m ready to continue my family time now. Obviously, I’m my father’s daughter. But I think losing my temper stage and being frustrated with everything has passed.

Craig Folbigg, the police and Tedeschi all thought the middle sentence was a confession to a homicidal temper. Barr ordered that it be whited out in the jury’s copy of the diary, and belatedly told Tedeschi not to mention the word “But” either.

But I fear that the jury could well have puzzled out what was behind the white-out, for two reasons. First, Craig Folbigg himself blurted the hidden sentence from the diary to the jury in the trial’s first week, the same period when one juror turned to Google. And, second, they were highlighted in pretrial articles about the case, ones that also reveal the history that juror found via Google. This makes it possible that Folbigg’s jurors in 2003 may have mimicked the very moment in 1999 when Craig Folbigg says that he started to think his wife was a murderer.

Fortunately, there’s no need to dwell on whether Folbigg’s seventh, eighth and ninth judges were wrong, any more than whether the other ten were wrong. Nor is there any need to engage in some undoubtedly uncomfortable speculation about why. Instead, as of this week, we can let all of that slide.

Just as evidence, and our takes on it or particular cases shift with time, so do courts’ takes on what is, and isn’t, a fair trial.

Juror research was once a matter of jokes, shrugs and warnings, but now it’s a crime in most parts of Australia. And, just this week, Australia’s High Court ruled that the past approach of the NSW courts to juror misconduct, including the test applied to dismiss Folbigg’s appeal, was wrong. Rather, when jurors knowingly disobey a judge’s direction, other than a trivial one, it will always be a miscarriage of justice.

The case before the High Court, like Folbigg’s, involved the discovery, after a trial, that one juror had searched the internet early in the case and had told the others what he found. The majority’s new test in such cases is to ask whether a layperson might reasonably apprehend that any juror might, as a consequence, not have decided the accused’s guilt on the evidence, according to law. If so, the majority declared, the trial would be “incurably flawed.”

The majority went on to rule that the new test wasn’t met in the case before it, but only because the juror had searched for information about how crimes are sentenced rather than about the accused or the case or the rules of proof. That was still wrong, they said, but it simply wasn’t clear either way whether the juror (and the other jurors, who didn’t report him during the trial) realised it was wrong.

Last year, I said much the same about the juror who brought an academic article about false rape accusations into a jury room, perhaps in the belief that such general research was allowed. Cases like these sharply contrast with what Folbigg’s juror did, specifically googling her name, reading websites about her case, and telling other jurors what was there. There is no way that could pass muster after this week.

Again, you don’t have to take my word for it. The other two judges in the High Court case, James Edelman and Simon Steward, who would have sent the case before them to a lower court for a rethink, decided to illustrate why the previous New South Wales approach was so dangerous. The example they chose was Folbigg’s appeal, during which, they said, the appeal panel “applied the wrong test,” “placed itself in the position of the jury” and “effectively reversed the usual onus.”

This step — effectively becoming the fifteenth and sixteenth judges to weigh in on Folbigg’s convictions — is extraordinary. It is also, surely, no coincidence that it comes after Bathurst’s report, which should be prompting many Australian judges to wonder what went wrong in that particular prosecution.

This week, three more NSW judges — the seventeenth through nineteenth, by my count — will be asked to weigh in on Folbigg’s conviction. Although Folbigg is out of jail (and cannot go back), she remains a convicted child murderer, unless and until a court holds otherwise.

Bathurst referred Folbigg’s case back to his former court so they could explore the same issue he’d decided: whether or not there is reasonable doubt about her conviction. But there is no need for the new court to, yet again, weigh up all of the evidence for or against.

The new judges can, and should, simply quash her jury’s verdicts because her trial was unfair, as their predecessors should have done sixteen years ago. •

The post Judging Kathleen Folbigg appeared first on Inside Story.

That someone was Chris, Bronwyn’s son, who spent several evenings in October 2011 waiting near Ray’s flat, a large spanner in hand. He also recruited his best friend Zak, who waited beside him each evening with a steel pipe. Zak in turn recruited Spider, friend of no one, who hefted a baseball bat while he spent Bronwyn’s money in his head.

How was justice meted out to these five in the Northern Territory a bit over a decade ago? Bronwyn got an eight-year prison sentence with a four-year minimum. Chris, Zak and Spider each got life, with minimums of eighteen years for Chris and twenty each for the others.

As for Ray, he got a quick but brutal death, courtesy of Chris’s wrench, and was dumped in a roadside clearing, one of the few spots in the outback a body is likely to be found. That was one reason the rest of them were swiftly caught. The other was that Spider forgot to delete the group’s texts from his phone before the police brought him in for a chat.

Did you pick Zak and Spider as equal worst of the survivors? The judge who sentenced them, Dean Mildren, sure didn’t. If he could, he’d have given Spider credit for pleading guilty and testifying against the others, and Zak still more for pulling out of the plan early. But, as journalist Dan Box incredulously reports, the pair’s judge lacked the power to do justice.

Box produced an impassioned documentary about the judgement, The Queen & Zak Grieve, in 2017, successfully pressing for the Territory government to show Zak some mercy. Now he’s written a far less certain book about the case. What’s changed in six years? Mainly, Dan Box.

Box opens his third book with a confession: he made his documentary because he “wanted to win another Walkley.” He’d won a couple the previous year for his reporting on three murders in Bowraville, including the first such award for a podcast. But he never won a third and soon left the Australian and its podcasting scene to Hedley Thomas.

The Englishman doesn’t reveal exactly where he went, but he mentions enduring occasional snow and regular depression. He also decided to speak with Zak for the first time. He wrote letters to Grieve “to reassure myself that I’d been right, and he really wasn’t a killer.” The pair’s correspondence is the heart of this book, the recently released The Man Who Wasn’t There.

I don’t think Zak is the title character. He was barely a man in 2011. The nineteen-year-old spent his time in Katherine on his Xbox and watching anime, and he’s been in stasis ever since. And he was very much there for most of the plot against Ray.

His co-conspirators split on whether Zak was still there during Ray’s final minutes or had pulled out hours before. Zak’s judge had to give him the benefit of the doubt on that point, but Box didn’t have to. Since the documentary, he’s read phone texts casting doubt on Zak’s claim that he cut ties when he realised that what he’d agreed to wasn’t a beating but a killing.

“You have to ask, Why lie?” writes Box of Spider, who testified that Zak was the first person Ray saw in the last horrible moments of his life. By contrast, Chris — “a kind and decent person, for a killer” — had every reason to “protect his friend.”

At some point in their correspondence, Zak became Box’s friend too. Box writes that this may be why his “doubts about Zak’s involvement in the murder itself have receded.” When it’s someone “you care about… it’s not enough to say this is not your fight [and] you don’t have to pick a side.”

In 1991, Helen Garner famously picked a side early on and, like Box, spent a book (The First Stone in her case) mulling over her instincts. Then, in 2004’s Joe Cinque’s Consolation, she befriended a bereft parent and, like Box and Zak’s mother Glenice, came to share her rage at the machinations of justice.

Some couldn’t stand how Garner inserted herself into the narrative, but I prefer my true crime writers to be there. You can see the difference in Box’s two works on Grieve. His documentary, made before he said more than a handful of words to his subject, ended with a dogged pursuit of a possible fourth co-conspirator who was never charged at all.

Box’s book reveals that Chris himself had named a fourth participant. But this time the journalist opts not to go there. Naming names, writes Box, “risks causing hurt, not just to his family, but to Zak’s also.” And to Zak. “Knowing whether Zak was right or wrong no longer matters to me.”

It never mattered to the courts. In 2014’s This House of Grief, Garner looks a man in the eye who drove his three kids into a dam and sees a failed suicide rather than a vengeful homicide. Either way, Robert Farquharson was still a murderer and so is Zak Grieve, whether he was there at the end or not.

Zak was guilty of conspiracy as soon as he joined Chris’s plan, and was guilty of murder the moment it succeeded. Conspirators can pull out of planned crimes under Australian law, but withdrawal is a tricky, unpleasant and fallible method of avoiding unwanted convictions. Zak had to not only exit before Ray was struck but also do whatever he could to save Ray’s life. His jury ruled that he failed one or both of these tests.

It’s a fair rule, but Territory law made it very tough in Zak’s case. A decades-old statute requires that murderers serve at least twenty years in prison. There’s one exception for good people who kill bad ones, hence Chris’s eighteen-year minimum. But Zak (and Spider) weren’t eligible, in part because Zak sometimes sold cannabis but mainly because neither of them knew much about Ray.

Thanks to Box’s documentary and a petition by his lawyers, Zak ultimately got a lower sentence, courtesy of the Northern Territory government’s power to grant mercy. This combination of legislative toughness and executive whim produced the same outcome that justice would have: a twelve-year minimum sentence, which expired last week.

Rank these punishments. Life in prison. Losing your life. Losing your child to prison. Losing your child.

Garner’s This House of Grief is named after a line in a 1930s Hungarian novel that laments how a troubled crime journalist’s “finest years had slipped by in this treasury of pain, this house of power and grief.” The author, Desző Kosztolányi, was describing a bustling Budapest police station, while Garner was thinking of Victoria’s Supreme Court.

Zak’s house for much of his twenties was the Darwin Correctional Centre. Known as Holtze, it’s a freshly built failure housing a thousand residents with no respite from heat or boredom. The in-cell screens, replacing the correspondence courses Zak once devoured, have never worked. The library he worked in was shut. His sole escape is handwriting a sprawling sci-fi novel he sends outside in five-page instalments that are checked for security threats.

Zak shared a wing with other lifers, including Chris, Spider and backpacker murderer Bradley Murdoch. One eighty-year-old got parole after his minimum twenty years but asked to stay in Holtze to avoid burdening his family. He hung himself on a ceiling fan when he learnt that the Territory government had banned lifers from work release. Authorities replaced the fans with desk ones.

Here’s how some other punishments have been meted out in recent years:

Spider never got his own documentary or the credit Mildren recommended for ratting on Zak and Chris. Friendless as ever, he’s the only one of the conspiracy still left in prison.

Halfway through his eighteen years, Chris died in his cell, bleeding from his anus. It wasn’t what you might guess. Many Holtze residents passed their days using Kronic, a potent synthetic cannabis they often concealed in their bodies.

Murdoch, who has never revealed where he hid Peter Falconio’s body, even when he was offered a transfer to Western Australia, hated the drug. He told Chris’s coroner that Holtze was to blame: “That’s why other people smoke Kronic. It takes them to another place.” Authorities gave the lifers board games.

Zak saw another culprit. When he and Chris took Kronic, they took turns to ensure that the other didn’t suffocate when they became “stuck.” But Zak was sent to another wing three days earlier for making a sexist joke. He wasn’t there for his best friend. Again.

Box might name another. Zak’s mother Glenice, attending the inquest to see her son testify, “found Chris’s mother Bronwyn sitting watching from the public gallery.” Bronwyn, who was convicted of manslaughter, has always said she had no idea Chris would murder Ray himself. She told Glenice “she would soon be leaving Darwin, to go somewhere small and isolated.”

Did you pick these punishments as the worst ones? Box wouldn’t. His daughter Poppy “counts off the days she’s spent in hospital along one wall,” he writes, “using coloured pens to draw four vertical lines with a fifth running diagonally through them, like some kindergarten prisoner.” Halfway through his correspondence with Zak, Box felt a lump in his nine-year-old’s tummy. The doctors gave her a fifty-fifty chance.

Zak was released last week. He’d already told Box it wasn’t an end: “I’m on a life sentence. On parole.” So are Box and his daughter. She had two years of chemo but the tumour is still there. “We leave hospital knowing we will be back there, every three months, over and over, always in fear, always not knowing.”

Why would Box include this in his book? Well, how couldn’t he? He’d learnt what mattered, and it wasn’t justice. “While I wouldn’t recommend having your child diagnosed with cancer as a cure for depression,” he writes, “it seems to have worked for me, at least.” Being there is a complete nightmare, of course. But not being there is worse. •

The Man Who Wasn’t There
By Dan Box | Ultimo Press | $36.99 | 320 pages

The post This house of Grieve appeared first on Inside Story.

I’ve always found this class fascinating for the intergenerational transfer of ideas it affords, and as a means of tracking changes in students’ approaches to sex and gender. When I began teaching it more than ten years ago, everybody thought that MacKinnon “denied women agency” and nobody identified as a radical feminist, or a feminist at all for that matter, except for the clever girl in Birkenstocks, cargo pants and a women’s collective T-shirt down the front.

By around 2017, after Beyoncé declared herself a feminist and #MeToo swept across the globe, all my students became feminists. Men wrote essays on sexual assault that began with an asterisk next to their name linking to an admission that, yes, they were cis, white, straight, bourgeois men but they had attempted to amplify the voices of the marginalised to compensate for their privileges. MacKinnon was still on the out because this cohort thought women could be empowered by sex work, pornography or kink, and because nobody liked being a victim.

But this year, like last year, I have noticed a distinct change. My students appear to have returned to 1970s radical feminism. It’s not the postmodernist celebration of agency that speaks to this generation but the anger and the structural critiques of patriarchy found in Catharine MacKinnon, Susan Brownmiller and Andrea Dworkin.

Chanel Contos is part of this apparent radical feminist revival, and she has written a book that is erudite, powerful and urgent. I confess I was surprised to enjoy Consent Laid Bare as much as I did: the type is overly large (a friend called it idiot font), it’s aimed at teenagers, and twenty-five-year-old Chanel looks more like a student than a feminist critic.

I was expecting the kind of book we’ve become accustomed to from mainstream feminism: homespun wisdom gleaned from a few popular Netflix series, a few zingers and a rousing call to arms. Instead, Contos’s book is well researched and superbly argued, drawing on radical and postcolonial feminism to widen our understanding of what constitutes sexual violence and to contribute new solutions to a global problem with epidemic proportions.

Contos also extends radical feminism in clever ways. Where MacKinnon and Dworkin in the 1980s called on the state to prohibit pornography (and soon found queer erotica banned) and where #MeToo activists often have a carceral logic to their campaigns (the ideal end point is a lawsuit, then prison), Contos’s solutions are pedagogical and therapeutic. Thinking only in terms of law, she argues, ignores the fact that many survivors don’t want their attackers to go to prison; many simply want validation and an apology.

Where radical feminists critiqued the contractual origins of consent, Contos expands its meaning into the realm of emotion. The etymology of consent, she reminds us, is con, a bringing together, and sentio, to perceive with the senses. Sexual violence occurs when a man’s sense of entitlement overrides his empathy. To this extent, legal consent is a bare minimum. What we need is sex as a form of empathic communication: don’t treat someone how you want to be treated, treat someone how they want to be treated.

Contos’s journey as a consent activist began with her shock as a high school student when a sex-ed speaker came to her school and described a series of commonplace sexual scenarios but labelled them as sexual assault. It wasn’t just that Contos and most of her female friends could identify with these scenarios; their male friends were often the ones responsible.

In 2021, troubled by the pervasiveness of the problem, Contos decided to obtain solid empirical data by asking people online to share their stories of sexual assault during their school years. Seven thousand people sent in testimonies describing behaviour that would fit legal definitions of rape, also mentioning the good jobs their attackers held in order to show both a lack of accountability and the fact that “normal and functioning” people were typical rapists, not strangers in the park.

Contos then built a website called Teach Us Consent that included a web petition signed by nearly 50,000 Australians demanding mandatory consent education in schools. A year later, state education ministers met and agreed to her demands.

These nationwide changes to our education system have happened around the same time as shifts in consent’s legal definition towards active and ongoing consent. The question is no longer whether the person said no, but whether they said yes. Intoxication now completely vitiates consent.

Consent Laid Bare is divided into ten chapters, each of which is aimed at expanding our narratives of sexual assault, whether they concern what a rapist looks like; what causes rape (specifically how rape culture normalises sexual violence); how women respond to rape; how digital technologies and pornography have created new forms of violence; and how we need to go beyond legal solutions when trying to hold men accountable, and to end sexual violence.

Contos’s arguments about the causes of sexual violence will be familiar to anyone versed in radical feminist literature. Because rape is construed as an expression of masculine power and domination — an act that keeps all women in a state of fear and hypervigilance — education about consent is necessary but not sufficient. The problem is wider and deeper.

Girls are raised to accommodate the desires of others, to evacuate the self, to feel shame around their own sexuality and to feel like they don’t have a right to demand pleasure. Boys, on the other hand, are taught to not take no for an answer, particularly if they’re the entitled private school boys that Contos grew up with. They’ve absorbed the view that their sexuality is biologically irrepressible, hydraulic and ungovernable, and that they can offend without consequence. Where girls receive social rewards for their passivity and self-abnegation, boys are rewarded for acts of physical intimidation or ability, wealth and sexual conquests.

This socialisation is part of what Contos, and the radical feminists before her, term “rape culture.” This is a world where sexual assault is normalised by gendered expectations of men and women, where girls are told that wearing a short skirt is distracting for the boys in the class (who simply won’t be able to contain their sexual urges) or where a victim of sexual assault is immediately disbelieved and socially shamed, while the boy walks off scot-free. This wider context helps us to understand not simply why some men feel entitled to rape, but also why women often put up with sex that is uncomfortable, unwelcome or coercive.

Any person over the age of twenty will likely read sections of Contos’s book in a state of fascinated horror: the chapters on sex and the online world and pornography make for particularly grim reading. I was quite unaware that strangulation had become a normal part of sex, which boys assumed girls enjoyed so much that consent was unnecessary. Given that 84 per cent of men aged between fifteen and twenty-nine watch porn at least once a week, there’s no prizes for guessing where these new sexual scripts might be coming from. I was also shocked to find that a girl might now be sitting on a bus or train and a man could send an unsolicited dick pic by airdrop on to her phone.

In Contos’s experience, girls begin being asked to send nudes to boys around the age of twelve (yes, twelve!) while a 2022 Australian study found that 86 per cent of students aged fourteen to eighteen had received sexual messages or images, and 71 per cent had sent them. By the time Contos, as a consent educator, speaks to high school students aged fourteen and older, she says that many say that they’re “over” the sexting stage. In a digital extension of the centuries-old tradition of slut-shaming, a girl whose nudes get “leaked” faces embarrassment and shame, while the boy doing the leaking usually rises up the social hierarchy, congratulated by his male friends on a new conquest.

In this context, it is entirely understandable that generation Z might be rejecting what Contos calls “modern feminism” and returning to the clear, unambiguous critiques of sexual violence offered by radical feminists. Why are all the things  popular feminists celebrate women “choosing” to do — from watching porn, to shaving legs, to wearing high heels, to engaging in sex work — exactly what patriarchy and capitalism want them to do?

“Modern feminism has framed sex work as sexually liberating and put pornography and sex work in the category of strictly Do Not Debate,” Contos argues. Far from being a “righteous reversal of the gender hierarchy,” sex work is not only the most dangerous job in the world, but it also goes hand in hand with capitalism. Unlike radical feminists before her, however, Contos doesn’t argue for state regulation, simply for a more open debate and for an end to the popular, uncritical equation of sex with empowerment.

I suspect that the predominance of psychological discourse among gen-Zers — their tendency to describe their identities through languages of trauma, fragility or pathology — also makes them less concerned about the elements of radical feminism that see women as victims. This is a generation who accept their vulnerability and woundedness, and for whom the most important question is not how they have agency but how to end sexual violence and gender oppression.

In short, this is a book that you should thrust into the hands of the teenage boys and girls in your life. But you should also read it yourself first, both as a fascinating document that signals what might be a historic shift in discourse away from poststructuralism towards radical feminism, and also because Chanel Contos, with her well-researched, well-reasoned and well-written arguments, is smart and inspirational. •

Consent Laid Bare: Sex, Entitlement & the Distortion of Desire
By Chanel Contos | Macmillan Australia | $36.99 | 368 pages

The post Active and ongoing appeared first on Inside Story.

Here in Australia, despite hopes of rehabilitation, around 50 per cent of ex-prisoners serve another term in jail. As criminologists joke, this kind of statistic would have led to radical change in any other policy area. Yet until recently abolition movements have been sidelined as a utopian hangover from the 1960s.

In the past few years, however, campaigns in the United States and Australia have highlighted police brutality against minority populations. Coalescing in the Black Lives Matter movement, they have brought into the public arena calls for the abolition of police and, by extension, prisons.

In his latest book, The Idea of Prison Abolition, American philosopher Tommie Shelby considers the arguments in favour of abolishing prisons by analysing the work of well-known abolitionist and activist Angela Davis. The idea of prison abolition has a long tradition, probably since prisons themselves came into use. This is more recent than you might think: imprisonment as a penalty for wrongdoing has only been used since the late 1700s, which may well be the best argument for taking the idea of abolition seriously.

There is nothing inevitable or natural about imprisonment as a response to offending. It produces many undesirable outcomes, not the least of which is huge disruption to families. Family support is one of the most powerful elements in preventing reoffending, but when I interviewed prisoners in eight NSW prisons about their sentences, it didn’t seem to be a priority for the system. As one prisoner, Dave, told me, “[My kids] want to come and see me but I don’t want to bring them here, to this place.” “This place is horrible,” said Chris, whose family lived hundreds of kilometres away. “My missus — just because she’s associated with an inmate she doesn’t get treated well.”

Shelby’s book approaches abolition as a legitimate social movement and a coherent set of theoretical principles. In some ways the title is a misnomer: it could equally have been called “Arguments Against the Idea of Prison Abolition.” Short of accepting Davis’s ultimate conclusion, though, Shelby agrees with many aspects of her analysis. Mass incarceration as currently practised in the United States is difficult to justify from any perspective — moral, philosophical or practical. Rather than abolition, Shelby argues for imprisonment to be used sparingly, contingent on the achievement of social justice goals. Throughout the book he engages with the need to tackle inequality as a precondition for prison reform.

Bombarded as we are with representations of the US criminal justice system, our obsession with crime sometimes blinds us to the differences between the two countries. If we elide the distinction between the American and Australian systems, we miss the point of Shelby’s work, and Davis’s too. Both reflect deeply on the intersections between slavery and criminal justice in the United States.

More importantly, the impact of Australia’s history of colonisation needs a very different analysis, starting with the symbiotic relationship between the colonisation of Aboriginal and/or Torres Strait Islander people and the continuing over-policing and over-incarceration of those communities. The effect may be the same — over-incarceration and racially distorted policing and criminal justice practices — but the aetiology and therefore the solutions could well be different. With that proviso, Shelby’s work provides some good thinking tools for us to interrogate our own system.

Shelby’s basic position is that, if incarceration provides a way for society to prevent or reduce crime — particularly crime that causes “great and irreparable harm” — then abolition is not justified, no matter what other arguments, moral or practical, can be marshalled. Put another way, if imprisonment can reduce the harm that crime causes to society then, no matter the harm to the offender, it can be morally justified.

Acknowledging the considerable disagreement as to whether prisons reduce crime, he points out that there is little evidence that “alternatives” fare any better. If, as he puts it, “background conditions are just” then, for him, incarceration has legitimate uses.

While she has written widely on many aspects of the criminal justice system, Angela Davis’s abolitionist views are distilled in her 2003 book Are Prisons Obsolete?. To an extent, Shelby reduces that book’s complex matrix of thought to a single theme: that imprisonment is, to put it somewhat crudely, a tool of capitalist domination. This oversimplifies a more nuanced argument, but for Shelby her revolutionary Marxist standpoint lessens the power of her calls for abolition.

Is Davis taking an abolitionist position because prisons lack a moral basis, he wonders, or simply as a part of a radical project of abolishing institutions that shore up the capitalist society?

Tommie Shelby writes as a professor of African and African-American studies expert in a broad range of issues, including the ghetto, hip-hop culture and now prisons. As a philosopher with a political focus he is mainly concerned with justifying imprisonment from a moral point of view — indeed, he accepts that jail’s harmful effects mean the onus lies on those arguing for its retention to provide arguments supporting it.

While he critiques Davis’s functional approach, which sees imprisonment’s function as supportive of capitalism, he approaches the subject in a similarly functionalist way. Even if a practice is morally or philosophically justified, he asks, does it work? Does it do what we want it to do in the real world? Then he turns the point around, using the functional argument to justify the philosophical one — if it works then it is philosophically and morally justified.

In attempting to examine imprisonment through the prism of the aims of the criminal justice system, Shelby takes on a Sisyphean task. Sentencing can feel like a downward spiral of impossibly conflicting ideas that cancel each other out. The somewhat exasperated pronouncement of the High Court of Australia that our sentencing aims are like “signposts pointing in opposite directions” sums it up well. Philosophy can’t reconcile the fact that, in practice, it is very difficult to rehabilitate someone while you are also causing them pain by punishing them.

But that is not the level at which Shelby engages abolitionist arguments. He takes the aims he thinks can and should be fulfilled in a society where the types of inequalities present in the United States have been defeated and leaves the others alone. To establish the preconditions of social justice, he implies, would allow a more integrated approach to often-conflicting aims.

With high rates of recidivism a feature in most countries, whether in high-imprisoning societies like the United States or relatively low ones like Australia, it is difficult to find evidence of specific deterrence: imprisoning an individual does not seem to make them less likely to offend in the future. General deterrence — the idea that the mere existence of the criminal justice system prevents crime — is more defensible.

That latter fact supports one of Shelby’s most persuasive propositions, that imprisonment serves a valuable symbolic function as a “linchpin” of the criminal justice system serving to “anchor” other penalties, with the threat of prison producing compliance in people undertaking less restrictive penalties like probation. The existence of the prison provides the “enforcement tool” for these other penalties, which, as he rightly points out, are perfectly compatible with imprisonment and therefore not really alternatives. Our system ostensibly functions this way already.

But Shelby does rather gloss over concerns about “alternatives” as a way back into the prison — the idea that even more benevolent forms of punishment like community service or probation can, if administered poorly, impede rehabilitation by setting up a “back door” to imprisonment. Social workers know all about how people can be set up to fail. They also know that rehabilitation is more complex than it may seem, which makes Shelby’s suggestions about how prisons could be made less “criminogenic” seem somewhat naive and curiously remote from how prisons actually work. In this and other areas his self-admitted focus on theory (or vision) rather than praxis is evident.

Shelby is careful to state that he doesn’t believe that retribution is a morally justifiable rationale for imprisonment, although he implies that some degree of harsh treatment is necessary to avoid vigilante-style revenge on the part of victims.

As for rehabilitation, the view that prison may be a time of reflection and a chance to change antisocial habits hints at the aims of the early prison builders in the United States, the term “penitentiary” meaning just that, a place for penitence. As one schooled in praxis, I find it difficult to reconcile this rosy view with the scarcity of good prison rehabilitation anywhere in the world except perhaps the Nordic countries.

Ironically, given that abolitionist thought is often characterised as utopian, Shelby’s imagined prison system is itself quite utopian, although he sees the need for coercive rehabilitation. Drawing a distinction between prison work as slavery and as fair exchange for bed and board is similarly difficult in practice. But Shelby is in the business of the possible and these things are, theoretically, possible.

Shelby carefully examines Davis’s early personal experiences with the criminal justice system during her involvement with the Black Panther movement. He is happy to treat urban ghettos as sites of oppression alongside prison, which involves accepting that Black prisoners in the United States are “political prisoners” jailed for their opposition to injustice. This does not mean that prison has no utility, rather that it should not be used as a site for political oppression.

Like Davis, Shelby sees the necessity of dealing with the unequal social conditions that underlie the overrepresentation of people of colour in the US prison system. He examines in some detail how these matters could be tackled, with prison remaining as a penalty of last resort. He engages with issues of victimisation, pointing out that it is necessary to respond to both the future risk the perpetrator may pose to others and the need to avoid actions of revenge on the part of victims if the punishment is not considered adequate. Incapacitation may certainly be justified on the first condition, but it seems possible to deter vigilante behaviour without necessarily using imprisonment.

Shelby’s admiration for and agreement with Davis on many levels is evident, but his characterisation of her vision sets up the familiar binary of reformist versus abolitionist. If we believe reform efforts are always counter-revolutionary because they integrate potentially positive moves into the ultimate project of exploitation, then it is a choice between the two. But perhaps it is possible to challenge this binary while still taking an abolitionist perspective.

In fact, much current “abolitionist” writing is not inconsistent with this approach — and in many ways this is what Shelby has done in his sensitive and approving examination of the many questions on which he and Davis agree. If abolition is seen as a way of thinking about punishment rather than an “all or nothing” goal, then reform needn’t be inconsistent. As prominent writer and activist Brea Baker says, “Abolition is an ongoing process of assessing and replacing any system that doesn’t serve all of us.” If abolition is a process, then what happens along the way may be just as important as the final outcome. •

The Idea of Prison Abolition
By Tommie Shelby | Princeton University Press | $49.99 | 224 pages

The post On the morality of imprisonment appeared first on Inside Story.

With its focus on domestic politics, Netflix’s new hit series Wave Makers is a reminder that Taiwan is something more than a flashpoint. It’s a lively democracy dealing with a familiar range of modern problems. The series is a mini West Wing, Taiwan-style, with a #MeToo story at its heart — and, in a remarkable case of art informing life, it has made #MeToo an actual domestic political issue. At a moment of high tensions in the Taiwan Strait, this is the issue making news.

Wave Makers is one of several Taiwanese productions from the Netflix stable available in Australia. Internationally, Taiwanese television drama is less popular than Korean, but this series is rating well. Strong performances from a star-studded cast do credit to a script written by two women (Chien Li-ying and Yen Shih-chi) who have real-life experience of party politics.

The series follows media staffers of an out-of-office political party as they deal with political graft, the status of migrants, marriage equality, the death penalty and other politically sensitive issues through ten months of an election campaign. But the political becomes personal when a #MeToo story emerges, slowly becomes the dominant thread, and changes the course of the election.

Reviewers have remarked on the absence from the series of any mention of cross-strait relations, the elephant in the room of East Asian politics. In fact, this elephant is not easily bypassed. Banned in the People’s Republic of China, “harmonised” (censored, that is) on Douban, the main Chinese website for entertainment and culture, the series has inevitably ended up in the cross-strait space.

As an exercise in soft power, Wave Makers functions like Taiwan’s planned porcupine defence, covering “a large number of small things” instead of one big one. Chat on the mainland microblog site Weibo shows that viewers in China, breaching the great firewall to watch the series, are fascinated by the multifaceted portrayal of a thriving Chinese-speaking democracy.

In Taiwan itself, the series has gone to air at a sensitive time in the political cycle. Campaigning is under way for the presidential election on 13 January next year, and so far it’s a men’s race. The redoubtable President Tsai Ing-wen is coming to the end of her second term of office and (unlike her counterpart in China) is stepping down in accordance with the constitution. Her successor may be vice-president Lai Ching-te, whose election would extend the tenure of the Democratic Progressive Party, or DPP, into a third term. With Hou Yu-ih, the candidate for the old establishment KMT party, performing poorly in the polls, Lai’s main competitor looks like being a former mayor of Taipei, Ko Wen-je, who founded the Taiwan People’s Party in 2019.

As if they didn’t have enough to worry about (opinion polls, economic contraction, Chinese fighter jets, Russian frigates), these men are now likely to be reviewing their personal histories.

The #MeToo story in Wave Makers is firmly located in the political world. As early as episode two, rookie staffer Chang Ya-ching is having to deal with the office sleaze. An internal hearing leads nowhere: sexual harassment within the party is too delicate an issue to handle in the course of an election campaign.

As it happens, Ya-ching is also suffering at the hands of her former lover, who is running for election as vice-president on the other party ticket. Handsome, sophisticated and predatory, the aspirational VP has in his possession intimate photos of Ya-ching that he is refusing either to return or to destroy. A sensitive performance by twenty-five-year-old Gingle Wang shows a younger, happier Ya-ching in flashback, falling in love and embarking on a disastrous relationship that blights her job prospects and destroys her peace of mind.

The series reaches its climax with her revelation of the abuse on public television, the inevitable impact on her former lover’s family, and the eventual reverberations for the presidential campaign. Australians who watched Rachelle Miller’s exposé on Four Corners of her treatment at the hands of MP Alan Tudge will be struck by the parallel.

In Taiwan, the series was triggering. Among those who watched it was a former staffer for the DPP. “The first thing that happened,” she later related, was that she had “a good, big cry.” The next was that she went on Facebook to report on her own experience of sexual harassment at work.

Soon afterwards, a second female party worker came forward with an allegation of harassment by a fellow staffer. DPP youth affairs department head Tsai Mu-lin was criticised in both cases; according to the second complainant, he had not only failed to take her accusation seriously but had forced her to apologise.

The DPP moved swiftly to repair its reputation, holding a press conference on the afternoon of 2 June, issuing apologies and forcing resignations, including Tsai Mu-lin’s. But the damage had been done. One website began keeping a running tally of complaints after the style of Covid statistics. In the space of two weeks more than thirty women from various spheres had come forward with complaints. In China, where the DPP is synonymous with abandonment of One China policy, the official media greeted the party’s discomfit with schadenfreude.

What initially looked like a DPP problem quickly turned out to be a general one. A sexual harassment case was already running against a KMT legislator, and incidents involving other party members quickly came to light. Outside the political arena, the entertainment industry has been hit the hardest, with allegations of sexual abuse on the part of actors and television personalities continuing to surface at the time of writing.

Among the accused are Wave Makers star Huang Chien-wei, whose performance as the amiable head of the party’s media department and muddle-headed husband of a long-suffering wife won him hearts all over Taiwan. Prominent political dissidents of the 1989 generation have also been named, including by Wave Makers scriptwriter Chien Li-ying, who alleges that dissident poet Bei Ling groped her during a meeting about a play production.

For political parties, allegations concerning their own party members are hugely embarrassing. On 6 June, President Tsai herself went on Facebook with a strong statement on the duty of society to protect victims. The DPP is currently moving to improve legislation on sexual harassment. In both politics and the entertainment industry, resignations and apologies, and in some cases strong denials, have become frequent.

The impact on the election is hard to predict. On 30 June, at the end of a month’s wall-to-wall coverage of #MeToo, China intensified military exercises in the Taiwan Strait. The following day, Singaporean journalist Woon Wei Jong spoke with seven young Taiwanese about their voting intentions. The conversations were dominated by the cross-strait relationship and the different parties’ stance in relation to the mainland. Is #MeToo at all relevant in this context?

According to mainland emigrant Shangguan Luan, the answer is yes, although the effects are more likely to be seen in an impact on voting patterns than in #MeToo’s becoming an openly debated election issue. Among younger voters, she writes, a sensitivity to gender issues overlaps with the “naturally independent” sensibility characteristic of people born since the 1980s. This generation has grown up in an era when democracy has fostered a sense of self-determination while time has attenuated ancestral links with the mainland. The effect of #MeToo should be to hasten the drift away from the older, more conservative, and essentially more Chinese, attitudes that form the bedrock of the One China policy.

Among mainland viewers, as the same commentator remarks, responses to Wave Makers have varied from sneers about Taiwanese democracy to frank envy. The series’ themes necessarily highlight Taiwan’s political differences from the People’s Republic: the participation of women in political life at the highest levels, a multiparty system, political accountability, freedom of association, freedom of expression, and same-sex marriage (legalised in Taiwan in 2019). The #MeToo movement itself, now surging in Taiwan, has been met in China with arrests of activists instead of perpetrators. A pallid civil rights code introduced in 2022 passes responsibility for infractions ever further down the line of management.

These differences have yielded Taiwan a human rights dividend that is complicating international relations, especially vis-à-vis China. A highly self-conscious Taiwanese series like Wave Makers can hardly avoid being entangled in the resulting complex of issues. The opening scene of the series, a rally on election night, amounts to a call for recognition. The wave makers are warming up the party faithful: “You have voted for hope for Taiwan’s future!” “Let’s change Taiwan’s future together!” The crowd cheers. The name of the candidate flashes up on the screen: “Lin Yueh-chen!” The crowd roars: “Frozen garlic!”

“Frozen garlic” is a pun on the Mandarin word for “elect.” Cheeky and assertive, it captures something about Taiwan at this moment in history. If it joins the lexicon of terms banned by the Chinese government, no one will be surprised. •

The post The Netflix series changing Taiwanese politics appeared first on Inside Story.

Here is how chief judge Robert Beech-Jones finished: “I doubt that the imposition of sentence on the offender for the second and hopefully last time will bring closure in respect of the terrible events surrounding his death and their aftermath. However, it is be hoped that it at least represents progress towards that end.”

How could a man’s punishment for “terrible events,” albeit thirty-five years late, not bring closure? Why is even “progress towards that end” a mere “hope”? And, given that the offender had pled guilty, why is this only “hopefully” the last time he would be sentenced?

The judge’s doubt may be a case of déjà vu. This sequence of events — a guilty plea and a sentence — has happened before in this case. Indeed, Beech-Jones is the fifth judge to make a finding about Johnson’s death. Every finding has been different, and none of the previous four stood the test of time.

Will the fifth? I’m not sure what I hope will happen.

“The procedural history of this case is a story in its own right,” the chief judge observed. It began on 10 December 1988 when a thirteen-year-old spear fisher spied a body lying on rocks under Blue Fish Point on the ocean side of Sydney’s North Head. Scott Johnson was naked, but the police soon found his clothes, neatly folded, near the clifftop. When an autopsy confirmed that the American had fallen from height a day or two earlier, the police and a coroner quickly concluded that he intentionally jumped. Last week, though, Beech-Jones said this “appears to be an absurd suggestion.”

The first finding about Johnson’s death was based at least partly on absurdity. His coroner cited the fact that he was “an extremely brilliant mathematician who was reserved and introverted” as a risk factor. But Johnson’s long-term partner also assumed that he had jumped. Four years earlier, Johnson had phoned to tell him that fear of exposure to AIDS had driven him to San Francisco’s Golden Gate Bridge. “But when he got there, he found that his muscles froze over.”

The suicide finding lasted twenty-three years, a period in which a different coroner found that three men who died or disappeared on Sydney cliffs in the late 1980s may have been the victims of gangs targeting gay beats. In 2012, a second inquest into Johnson’s death heard that Blue Fish Point was also a beat. The second coroner found that the cause of Johnson’s fall couldn’t be determined and recommended a fresh police investigation.

This open finding lasted just over five years, until a third inquest reviewed the police’s discoveries. The third coroner was told of the “Narrabeen skinheads” who targeted various gay beats in Sydney’s north in the mid 1980s. One informant testified that a pair from the gang had boasted that they once “bashed an American faggot” in Manly who then “ran away.” A “community source” explained that other gang members sometimes targeted beats at North Head in the late 1980s. But the third coroner dismissed these new clues as too slight and unreliable to cast any light on Johnson’s death.

That coroner nevertheless thought other evidence revealed what happened on 8 December 1988. A “psychological autopsy” of Johnson (who had recently made major progress on his doctorate, which was awarded posthumously) made the initial suicide theory “very unlikely.” Evidence from Johnson’s brother Steve of the pair’s many hikes made an accidental fall equally unlikely. And the American’s seemingly missing wallet suggested the malign involvement of a stranger. This became the first judge to find that a crime had occurred: “I readily conclude that homicide is more likely than either of the other scenarios.”

But he also sorrowfully rejected Steve Johnson’s request for a fresh investigation independent of the police. The initial poor policing and passage of time left little hope, he said, of finding the culprits. (He thought it “likely” that the student, who was “strong and young and fit,” had been attacked by two or more people.) Nevertheless, citing harrowing accounts from past beat users of recurrent violence at Blue Fish Point, he found that “Scott died as a result of a gay hate attack.” That finding lasted less than five years.

“I did have a dream about, ’bout him… a couple of nights ago, I don’t know, it was just a weird dream in the bush, something to do with the bush… I was with him up the, up at North Head.”

“Was the gay the kid who died?” someone asked.

“Yeah,” said Scott White. It was 19 March 2020 and White was talking to “two witnesses.”

Scott Johnson and Scott White shared more than a first name. They were both the middle of five siblings. They each grew up in grim circumstances with a single parent. Both were gay. Each had thoughts of suicide. But that’s where the similarities ended. White had little to live for and no chance at all of getting a doctorate or a soul mate. He was drinking by the age of thirteen, homeless by fifteen, and in and out of fights, boys’ homes and prisons into his twenties. He was eighteen when Johnson died, married at twenty-three, and thirty-eight when his wife left with their six kids. He then cared for his alcoholic mother until she died in 2018. In March 2020 he was living alone and friendless.

Who were the “two witnesses” White was revealed to have spoken with just as Sydney locked down? Nearly every court that described their chats studiously avoided saying, but one let it slip: they were “undercover police operatives.”

“See back in them days gay wasn’t like it is now,” one cop said.

“Like we used to go poofter bashing,” White replied, before adding, “Yeah, my brother did.” His brother was why he never came out.

“Ah well you need never tell him, mate,” the cop soothed.

The cops drove White to Blue Fish Point and must have been disappointed when he walked a lengthy bush trail towards Manly and identified the Upper Shelley Headland lookout as the spot where the man with “a bit of an American accent” and a “good build” had undressed in his “dream.” Becoming emotional, he said the pair had walked there from a local hotel and talked for hours. Pressed for details, White couldn’t recall if they were “intimate.” But then he remembered something: “I think we had a fight. That’s all I can remember… he fell. I took off.” White was arrested two months after he uttered those words.

All this seemingly followed a single police interview a year earlier, in which White denied attacking any gay men, let alone Johnson, and two home visits from the operatives the previous week. Just before those visits, the police obtained a warrant to make covert recordings and asked Steve Johnson to generate interest by pledging to personally double the police’s reward. But no one has revealed what the cops did to prompt a fifty-year-old loner to confide “his biggest secret” — that he’d known he was gay since he was fifteen — much less detail that week’s “dream.”

Some overseas courts frown on the use of stings to prompt admissions from vulnerable people. In 1993, an English trial judge threw out admissions that an undercover officer had extracted after answering a suspect’s “lonely hearts” ad and insisting on a murder confession as a condition for a relationship. The public pilloried the judge, but he was later vindicated when an unrelated man was convicted of the killing.

In Canada, the police have long cracked cold cases by posing as criminal gangs who insist on true confessions from their “recruits.” But the nation’s Supreme Court drew the line at undercover cops offering illusory friendships to mentally challenged, socially isolated men in exchange for unverifiable confessions. In 2014, it acquitted a man whose new “best friend” had taken him to the lake where his children drowned so he could demonstrate how he pushed them off a wharf.

Not so in Australia. When Australian police adopted their Canadian counterparts’ methods they were swiftly endorsed by the High Court and by parliaments, who exempted undercover stings from the rules that require police seeking admissions to use methods conducive to their reliability. In 2007, chief justice Murray Gleeson and his fellow judge Dyson Heydon upheld the use of a teen’s admissions to police who assured him they were speaking off the record, infamously observing that “every day police officers take advantage of the ignorance or stupidity of persons whom they eventually prosecute.”

White told his arresting officers he had been “full of shit” and just wanted to “get these guys” — the undercover cops — “off me back.” He spent the pandemic in prison being assessed by a succession of psychiatrists, who declared him fit to be tried but differed on their diagnoses. They all agreed that his childhood and heavy alcohol use had left him with cognitive defects. Ahead of a trial planned for the second anniversary of his arrest, the court set aside a week to resolve whether his jury could be told of his “dream.” That finding never came.

“How are you Scott?” his lawyer asked. “Terrible,” White told her. He’d been up since 4am, hadn’t eaten, and had lost his glasses. It was 9.40am on the first day of the pre-trial hearing in January 2022, and his lawyers warned him that his sexuality would be publicly aired. White said he was fine with his brother dialling in, but he wanted to know “what is all this about something I said to Helen [his ex-wife]?” His lawyers’ explanation left him more confused, but they also told him that the week’s hearings were just for legal arguments. When they reminded him that he would be asked to make a plea that day, White confirmed that he would say “not guilty.”

Just after 11am, a court officer read out the charge that, in 1988 in Manly, White “did murder…” “Guilty,” White interrupted. The officer continued: “… Scott Johnson.” “Guilty,” White repeated. How did he plead? “Guilty,” he said a third time, while his barrister shot to her feet. White added a fourth while the judge asked what his barrister wanted. She wanted to talk to her client.

Twenty minutes later, she told the judge that White no longer maintained his guilty plea. The judge could have simply re-arraigned White then and there. Instead, noting that his plea had been “loud” and “clear,” and that he obviously didn’t misspeak, she declared him guilty of murder. That finding, the fourth about Johnson’s death, was to last for just over a year.

Two days later, the judge rejected White’s formal request to withdraw his plea. White’s lawyers, who had planned to spend the week arguing that their client’s “dream” was the product of suggestion by undercover agents he was trying to please, were now openly accused by White’s prosecutor of “persuading” him to reverse his guilty plea. The judge duly dismissed the 9.40am conversation as White hiding his real intentions from his lawyers, and read the notes of the hasty post-plea conferral as his lawyers “cajoling” him into telling them “I didn’t do it, but I’m saying I did it.”

As for his reasons recorded in those notes — he told his lawyers he was scared of his ex-wife, he was safer in prison, he’d “take” ten years imprisonment, he wanted “it to be put to rest, for Scott, for the brother” — those were all consistent with his remorse for murdering Johnson as a teen. Moreover, the lawyers’ notes revealed that a change of plea had come up on four earlier occasions. The result was that White’s murder plea stood and so did the “dream” of the killing he had relayed two years earlier.

The only additional evidence the prosecution offered at his sentencing in May last year was from his ex-wife. Helen White revealed that she was the one who sparked the whole investigation by writing anonymously to the police after she saw a documentary on Johnson’s death. She recalled her then husband admitting that he used to “bash poofters” and said that, years ago, she had twice showed him Johnson’s picture from the newspaper, prompting him to say “that girly looking poofter” and “the only good poofter is a dead poofter.” Asked “So you threw him off the cliff?” he replied that it wasn’t his fault if “the dumb cunt ran off the cliff.”

The judge rebuffed White’s lawyers’ argument that no one could find the newspaper articles his ex-wife mentioned, as well as their suggestion that she had implicated her husband vindictively or for the $1 million reward. But, faced with the entirely different “dream” White had described to the undercover operatives, the judge baulked at confirming the third coroner’s finding that Johnson was the victim of a “gay hate attack.”

“There is no logical or rational reason,” she said, “to accept what the offender said about striking Dr Johnson, but reject what he said about going with him to North Head, without any apparent rancour, possibly for a sexual encounter to take place.” All that was certain, she said, was that White knew that hitting Johnson near a clifftop would probably kill him. That finding would last less than a year.

The murder finding unravelled bit by bit. Three appeal judges held that the judge should have been more open to White’s withdrawing a plea just twenty minutes after it was made. Indeed, they observed, White simply couldn’t have known the difference between murder and manslaughter. He hadn’t been advised by his lawyers on that, and even his prosecutor was yet to explain why White’s crime was the former. The judges sent the plea to be sorted out by chief judge Robert Beech-Jones.

White’s prosecutor tried to keep White to his murder plea, and even lodged a High Court challenge to the appeal decision. But he also agreed to discuss a compromise with White’s lawyers. Three months later, he simultaneously dropped his High Court challenge, his opposition to withdrawing the murder plea, and the murder charge itself. In return, White pled guilty to Johnson’s manslaughter.

It was all over bar White’s (second) sentencing, which proceeded on different evidence from the first. The parties’ “agreed facts” now covered only events in 1988 and from 2019, skipping White’s ex-wife altogether. But they included a new development: while he was still a convicted murderer, White was recorded on a prison phone call to a “relative” admitting “to hitting Dr Johnson at the cliff in terms consistent with what has already been recounted.” Like so much else in this case, no details are provided about what exactly was said in this call.

The chief judge rejected the only additional details White’s previous “dream” had revealed about his encounter with Johnson — “I hit him. He hit me. He stumbled back. I went to grab him and he… just stumbled back” — but also put to rest his predecessor’s finding that White knew his punch would likely cause a fatal fall. This time, no one argued that Johnson died of a gay hate attack.

And so, Beech-Jones set out the fifth, and current, official account of Scott Johnson’s death: “The end result is that not much is known about the killing of Dr Johnson beyond a punch near a cliff, a vulnerable victim, a fall over the cliff, a death, an absence of taking even the simplest step to render help after the fall and decades of pain and grief that followed.”

Is this closure for Scott Johnson and his loved ones? Five years ago, and nearly thirty years too late, a coroner put an official name to why Scott Johnson died (“a gay hate attack”) but couldn’t name his killer. Last week, a chief judge put an official name to the killer (“Scott”) but couldn’t say why he killed. “I think our family has got some peace and I would even say closure,” Steve Johnson said on the court’s doorstep. “We’re one of the lucky families.” No one can or should second-guess him. (A special commission will report on the police’s handling of hate crimes, including Johnson’s case, in coming months.)

Is this closure for Scott White too? He has now “specifically confirmed to the Court that he accepted legal responsibility for the death of Dr Johnson but not for murdering him,” and been sentenced accordingly. Beech-Jones found that the eighteen-year-old White “was clearly a damaged, albeit physically powerful, young man. However, he was not broken as he is now.” How much more should the courts break him at age fifty-two? Beech-Jones settled on a minimum of three more years in prison, and neither he nor White should be second-guessed either.

But should the rest of us accept closure in this case? Doing so is certainly in vogue. Even the Scots, who famously allow their criminal juries the option of a third, “not proven,” verdict, are contemplating a switch to the binary of guilty or not, lest they be too tempted (perhaps like Johnson’s second coroner) to throw up their hands in difficult cases and let villains go scot-free. But closure is seemingly what motivated the initial police and coroner (who were too quick to conclude that Johnson jumped), the third coroner (who was too sure he was chased), and the prosecutor and first judge (who were too determined to find that he was pushed).

Beech-Jones, the most careful of the case’s five judges, had the luxury of being bound by a manslaughter plea, and found nothing more than that. But the rest of us aren’t required to accept White at his word and should hesitate to do so. He has said that he is many other things — a “poofter basher,” a dreamer, “full of shit,” a murderer — and he may be all of those, or none. What everyone agrees is that he says whatever pleases whomever he’s near, be that his brother, his wife, complete strangers or his own lawyers. And nothing White has said about Johnson’s case went beyond what everyone around him knew or assumed had happened.

The case gives me déjà vu. White’s dream reminds me of Andrew Mallard, whose supposed murder confession to the Western Australian police consisted of what he said was “my version, my conjecture” of what the murderer would have done, described in the third person. It turned out that he was just parroting what the police had told him, including their own (wrong) assumptions about how the crime happened. A fingerprint identified the true killer, but only after Mallard spent twelve years in jail.

White’s guilty plea reminds me of George Heron, whose confession to killing a seven-year-old after days of oppressive questioning was thrown out of court decades ago, to the anger of the girl’s mother, the police and the British public. Heron was sued, hounded, outed and even stabbed, but that wasn’t the worst of it. “There were times I wondered if I had killed Nikki. So many people said I had that I started to doubt myself.” Her real killer was convicted last month.

Like Johnson’s third coroner, I’m pessimistic now — given poor policing, official tunnel vision and the passage of time — that we’ll ever learn more about Scott Johnson’s death. But the real, repeated lesson of these events is that this sort of case is never truly closed. Maybe there’s more evidence implicating White in the events of December 1988 than just his inconstant, vague, derivative say-so, and for some reason we just haven’t been told. I truly hope there is. But, if not, then I’m not willing to merely hope that this is fifth time lucky. •

The post Scott’s justice appeared first on Inside Story.

Under spider socialism, some arachnids are more equal than others. Dominant spiders control large parts of the web but the subordinate spiders do most of the work: building and cleaning, organising and subduing the prey. Crucially, though, no one spider has full knowledge or control of the whole structure. Each works with some degree of independence in its own small section or subsection. There is no middle, beginning or end, no single locus of power and responsibility.

I know what you’re thinking: this sounds just like foreign capital investment in frontier markets under twenty-first-century financial capitalism. And you’d be right. Every few years, when some Cayman Islands middle manager discovers his or her conscience and shares a new tranche of incriminating files with the Guardian and the New York Times, we are reminded that out there, somewhere, the world’s super-rich and their vast network of highly remunerated accountants, lawyers, investment managers and “fixers” have built an elaborate parallel financial system that hides and protects their wealth.

The key to this system is its opacity. The wealthiest people on the planet benefit from the work of their most far-flung subordinates, but most of the time it is nearly impossible to establish precisely where and how they are connected. Capital doesn’t flow directly from Country A to Country B, but circuitously, through an invisible network of tax havens and offshore financial centres, an economic black hole that allows multinationals and the super-rich to exist in a permanent elsewhere.

When stories about tax havens and the offshore economy appear in the press — if they appear at all — they often tend towards the sensational: the laundering of an astronomical sum of money here, the implication of a highly recognisable name there. In 2015, for example, it emerged that a businessman named Jho Low had used a system of offshore shell companies to siphon more than US$4.5 billion out of the Malaysian government’s sovereign wealth fund, 1MDB. In 2017, Shakira, Bono and the Queen were among those named in the Paradise Papers, a huge leak of offshore data from a law firm operating in ten different jurisdictions.

In Spiderweb Capitalism: How Global Elites Exploit Frontier Markets, University of Chicago sociologist Kimberly Kay Hoang argues that the real story is not to be found in these headline cases but rather in the many thousands of low-key, everyday transactions that take place outside the purview of journalists, state officials and the public. Jho Low was unrepresentative: he was too big, too flashy, too public. If you really want to understand the system, she writes, you have to look at the people who operate without anyone noticing, the “stealth spiders.”

In 2016 and 2017, Hoang set herself the task of understanding precisely how this offshore economy functioned, especially in risky underdeveloped markets like Vietnam and Myanmar. For nearly eighteen months she “embedded” herself in the Southeast Asian corner of the spiderweb, first as an assistant in a Vietnamese asset management firm then as a kind of intrepid journalist-professor, pursuing and interviewing more than 300 fund managers, state officials, “C-suite executives,” consultants, lawyers, accountants and financiers, from the Cayman Islands to Hong Kong, and San Francisco to Myanmar.

In style and presentation, Spiderweb Capitalism is sometimes stultifyingly academic, but the material is pure Michael Lewis. Take, for example, Will, a forty-two-year-old Vietnamese-German investor and former Lehman Brothers banker who spoke to Hoang at length about his business operations in Southeast Asia. After losing his job in the 2008 meltdown, he says, he cashed out his savings and moved to Singapore to look for new investment opportunities. Despite earning up to US$1 million a year in his former career, he testified to a feeling of precarity. He wanted to become, in his own words, “an owner of capital rather than a worker for capital.”

Making direct equity investments in large companies required considerable staff support, however, so Will joined a “family office” (Wall Street shorthand for a private wealth management company that looks after the pooled wealth of one or more ultra-high-net-worth individuals). His company manages over US$100 million in assets and generally takes on individual investments in the five to ten million dollar range: serious money, but not serious enough to attract significant attention from the press or the top levels of government.

Will admitted to Hoang that he has lost count of how many offshore structures he controls. The main fund in this carefully constructed maze is domiciled in Guernsey, in the British Channel Islands, which has no income, state, corporation or capital gains taxes. That company has a number of tax-exempt subsidiaries in the Cayman Islands and Singapore, from which it manages its “onshore operations” in Vietnam, Cambodia and Myanmar. Each investment is registered as its own separate company or “special purpose vehicle” (a paper company that allows the parent business to insulate its various investments from each other). Will’s company only moves funds onshore for operations. With a bit of creative accounting, they are able to book all their profits in low-tax Singapore.

Creating such structures is remarkably easy. In Hong Kong, Hoang accompanied a wealth manager to the dingy offices of a company specialising in the establishment of offshore subsidiaries, a kind of H&R Block for tax havens. In a bland, windowless room, crammed floor-to-ceiling with stacks of paper, they were presented with a menu of wealth-concealment options.

The “privacy package,” they were told, included a company secretary service, an office address, a certificate of incorporation, the appointment of directors, share certificates and a company seal. They were regaled with the relative benefits of registering their company in Samoa versus the Seychelles. They were even provided with a list of preapproved company names, such as “Lucky Star 7” and “Happymoon4.” And the price was just US$900.

These structures are useful for tax evasion, but the reasons for using them, Hoang explains, are usually more complex. For foreign investors, they are often the only viable way to manage the culture of bribery in Southeast Asian business relations. Few show many qualms about this practice. Among her interviewees, there is a basic consensus that payments to government officials are part of the cost of doing business in this corner of the world.

The most common form of bribery in Vietnamese business culture, for example, is what is known as “speed money,” an unofficial payment to a minor government official that serves as a necessary supplement to their meagre salary. These payments can be as little as $25 and up to several thousand dollars. If a person refuses to pay speed money, paperwork will simply sit on government desks until they change their mind. Those who do attempt to stay clean must accept long delays and, by extension, much lower rates of return on their investments.

Larger, more overt forms of bribery and corruption are common, too, though Hoang’s interviewees are understandably coy about discussing them in any great detail. Even so, Will, the former Lehmann Brothers banker, admitted to owning an entire company — heavily insulated from the rest of his businesses — whose exclusive function it is to distribute bribes. For large projects, this can involve paying college tuition fees for the child of a significant government official or making a gift of high-end luxury products like Rolex watches and Hermès handbags, which function as stores of value that can be traded for cash.

Given the complexity and ambiguity of this informal economy, local knowledge is at a premium. In most cases, it is close to impossible for a foreign investor to operate in Vietnam without a local co-investor. The entire enterprise thus comes down to the cultivation of relationships: between foreign investors and their local partners, and between local partners and government officials. If one of these relationships breaks down, an investment can fall apart. They must be carefully managed, or — in Hoang’s words — “lubricated.”

Some of the most eye-opening passages of Spiderweb Capitalism involve the explanation of exactly how this lubrication takes place. In this highly masculine environment, it can typically involve drinking games and dance shows. On some occasions, though, it extends to “orgy parties,” organised encounters between investors, government officials and sex workers designed to establish a relationship of “mutual hostage.” “We have to literally get into bed with each other,” said one investor. “If one goes down, we both go down.”

The investors Hoang interviews for Spiderweb Capitalism are remarkably open about their business practices, many of which are at best ethically dubious. Some speak with pride of the elaborate offshore structures they have built, or the cleverness with which they have managed their relationships with state officials. Others speak of their activities in terms of sacrifice or duty, something difficult, sometimes unsavoury but ultimately necessary. One man even confessed — with full knowledge that Hoang was an American university professor working on a book — that a lot of what went on with sex workers at Vietnamese “orgy parties” was non-consensual.

This openness likely derives from the fact that — in a legal sense — they are all pretty much in the clear. If you are smart and you know the right lawyers and accountants, you don’t need to break the law: you “finesse” it. The key to doing business in this part of the world, Hoang writes, is this ability to work comfortably in the space between the legal and the corrupt, in the areas where the rules can be massaged in your favour. She calls it “playing in the grey,” the kind of cowboy mentality that has always prevailed in places where the law is ambiguous and inconsistently enforced.

Are those further up the capital chain implicated in these dilemmas? It is a complicated question, and one that the spiderweb is deliberately built to obfuscate. The legal firewalls that separate ethically questionable business dealings in Southeast Asia from their financial beneficiaries in other parts of the world are there by design. The big spiders, safe in their airconditioned boardrooms and private airport lounges, have plausible deniability on moral questions and impunity on legal ones.

What makes the system work are the small spiders, the white-collar strivers who do the bidding of the ultrarich. They build and maintain these elaborate capital networks, and they do so willingly, taking on pretty much all of the risk in the hope that one day they too might find themselves sipping pina coladas in a safer part of the web. As with the South American spiders, it isn’t clear who is the exploiter and who is the exploited, where the web starts and finishes.

Spiderweb Capitalism doesn’t give a systematic account of the offshore system. It is a study not so much of the spiderweb itself but of the individuals who work to create and maintain it. In the spirit of C. Wright Mills’s 1956 classic, The Power Elite, it attempts to “give global capital a face.” Markets don’t simply exist, writes Hoang. They are made. Each new section of the web is always built by humans. The novelty of this book is that she has gone out and talked to them. •

Spiderweb Capitalism: How Global Elites Exploit Frontier Markets
By Kimberly Kay Hoang | Princeton University Press | $49.99 | 288 pages

The post Playing in the grey appeared first on Inside Story.

Juror No. 10: Well, do you believe his story?

No. 8: I don’t know whether I believe it or not. Maybe I don’t.

No. 7: So what’d you vote not guilty for?

No. 8: There were eleven votes for guilty. It’s not so easy for me to raise my hand and send a boy off to die without talking about it first.

So begins the dramatic core of Twelve Angry Men, a 1950s teledrama, and later a movie and a play, that tracks a New York jury debating a murder charge. Writer Reginald Rose specified a jury of twelve men — even though women were seated on New York juries by then — perhaps to ensure that the twelve-handed discussion remained believably angry. But not too angry, which is why he specified an all-white cast to debate the fate of the “boy” he coded as an unspecified minority.

When many of us recently watched the real deliberations of eight women and four men about an alleged rape in the national parliament building, we did it in the usual way: from outside a locked door. Only twelve people were allowed to know what was said or done in that Canberra jury room, and it remains a crime for any of them to reveal anything to anyone who is likely to tell the public.

Highly trusted confidants aside, the rest of us have very little to go on. Attendees at Rose’s fictitious courtroom in New York City heard the jurors ask to inspect two exhibits — the knife used in the killing and a floorplan of the apartment where it occurred — before the jury announced its verdict. But the real jury in Canberra neither asked about evidence nor delivered a verdict.

They said just two things in public. The first was on the morning of their third full day of deliberations, a Monday, when they asked their trial judge, ACT chief justice Lucy McCallum, about “time expectations.” Gone are the days when jurors were detained in the jury room and put up at city hotels until they reached agreement. Modern jurors simply commute to and from their homes like other court officers. That’s why McCallum answered, “There is no rush, no time limit. The only expectation is you remain true to your oath.”

Their second communication came the following afternoon. According to the chief justice’s summary, their note said that they were “unable to reach a unanimous verdict.” Like juries in New York but unlike most other Australian ones, Canberra juries don’t have the option of a majority vote. So McCallum, following a practice laid down by the High Court in 1993, told the jurors to persist a while longer but scrupulously avoided suggesting a consensus would be the best outcome.

She also embellished the national court’s script by sending them home to visit a gym or walk a dog. The jury dutifully spent the entire next day talking, before opting — fatefully — to sleep on things for at least one more night. “No one could suggest you’re not working extremely hard,” soothed their judge.

And that’s all we know. Nevertheless, I’ll venture a few educated guesses about what went on behind closed doors.

My first guess is that the Canberra jurors probably weren’t angry during those five or so days of deliberation. I say that because angry jurors often use communications with the judge to vent or try to resolve their differences. My optimistic reading of the Canberra jury’s relative silence is that their disagreement about the verdict was reasonably friendly.

My second guess is that emotions within the jury room would still have been very high. Except in the dullest or easiest of cases, jurors almost always describe their deliberations as intense experiences, sometimes shattering or even life-changing. There’s every reason to think that’s true of this particular case, which has prompted hard discussions everywhere. There’s no reason to think that #MeToo stops at the jury room door.

My final speculation is that all twelve jurors were probably gobsmacked when their deliberations were abruptly ended.

•••

Guard: Is there anything wrong, gentlemen? I heard some noise.

Foreman: No. There’s nothing wrong. [He points to the large diagram of the apartment.] You can take that back. We’re finished with it.

[The guard nods and takes the diagram. He looks curiously at some of the jurors and exits. The jurors still are silent. Some of them slowly begin to sit down. No. 3 still stands at the window. He turns around now. The jurors look at him.]

Three jurors switch their votes during Twelve Angry Men’s second act, which ends with No. 8 goading his main antagonist into attacking him. No. 3’s cry of “I’ll kill him!” — the very words the prosecution says prove the accused’s wish to murder his father — prompts two more jurors to switch sides, evening the vote. It also prompts the (imaginary) outside world’s only intrusion into the jury’s deliberations.

The sanctity of the jury room is no empty principle. It is enforced not just by physical restrictions on who can enter the room but also, for centuries, by rigid legal limits on what information can leave it. In 1785, England’s most celebrated chief judge, Lord Mansfield, famously refused to act on evidence that an evenly divided jury had reached its verdict by tossing a coin, declaring that doing so “would endanger every verdict.”

Two hundred and thirty years later, Australia’s High Court ordered a partial end to trial judges showing the prosecutor and defendant the complete text of notes sent from the jury room, ruling that they should omit any information about what votes had been cast. The nation’s top court ruled that keeping such details secret “enables jurors to approach their task through frank and open discussion knowing that what is said in the jury room remains in that room.”

The Canberra case illustrates the high stakes. Imagine if, after their fifth day of deliberations, word got out of how the numbers were falling. Such news would have instantly poisoned the ongoing trial — casting a shadow over every subsequent decision by the lawyers or judge — and could have derailed any future one. Likewise, if the content of the jury’s conversations had leaked, both current and future deliberations would be tainted.

Unsurprisingly, the ACT Supreme Court is scrupulous about jurors’ privacy. The chief justice opted to paraphrase the jury’s second note rather than read it out. Court officers responsible for jurors swear an oath that they will “not speak to any juror… concerning the issues before the court.” They also give jurors boxes for storing their documents. And, as McCallum revealed on what should have been the jury’s sixth day of deliberations, “routine tidying” is carried out by “three sheriff’s officers,” a number surely chosen to reduce individual officers’ temptation to snoop.

And yet, in perhaps the most closely watched trial in Canberra’s history, and at perhaps the most closely watched moment of the proceedings, all of these protections failed. At least three things went wrong on the Wednesday evening. First, an officer “accidentally bumped one juror’s document folder onto the floor.” Second, that same officer, while putting the box back on the chair it came from, looked, again seemingly accidentally, through the folder’s “clear front.” And third, presumably instinctively, the officer read some words visible inside.

Had any of these things been done deliberately, the officer would surely have lost their job and potentially their liberty. But McCallum assured the public that the officer acted “inadvertently.” She went further: “The conduct of the sheriff’s officers involved in this trial has been exemplary. They have worked in difficult circumstances. The court is fortunate indeed to be so well served.”

But the officer’s personal blamelessness does not absolve McCallum’s court. Why did any of the jurors’ folders have a “clear front”? How did “tidying” involve any contact with a juror’s folder, much less risk bumping it to the floor? Why weren’t officers instructed to leave fallen items where they lay? Indeed, why were any non-jurors “routinely” entering the jury room at all, rather than (say) leaving whatever tidying was needed to the twelve adults within?

Such questions could scarcely have escaped the jury’s attention on the final day of the trial, and will surely occur to future Canberra jurors too. My guess is that all of these questions are now being given urgent attention by McCallum, who only became the head of the ACT judiciary at the start of this year.

But her court was “fortunate” this time. The officer who read the words visible in the juror’s folder saw no tallies, no intimate reveals, no checklists, indeed nothing written by any of the jurors. And the officer not only resisted the temptation to read further or open the box, but instead quickly fessed up to what happened. (McCallum recorded her “gratitude for the courage, integrity and good sense displayed” not only by the officer but also by their two colleagues.)

Best of all, the series of accidents proved serendipitous. The officer happened to uncover the only category of jury room leak that modern courts are allowed to act on.

•••

[Juror no. 8 swiftly flicks open the blade of a switch knife and jams it into the table next to the first one. They are exactly alike. There are several gasps and everyone stares at the knife. There is a long silence.]

No. 3: (slowly amazed) What are you trying to do?

No. 10: (loudly) Yeah, what is this? Who do you think you are?

No. 5: Look at it! It’s the same knife!

Foreman: Quiet! Let’s be quiet.

[They quiet down.]

No. 4: Where did you get it?

No. 8: I got it last night in a little junk shop around the corner from the boy’s house. It cost two dollars.

Twelve Angry Men’s most memorable scene features two out of five instances of juror misconduct identified by Berkeley law professor Charles Weisselberg in an article he published on the movie’s fiftieth anniversary, titled “Good Film, Bad Jury.”

The fictitious jury’s first bad step is when No. 8 brings something into the jury room that isn’t part of the trial evidence. The Canberra sheriff’s officer’s glimpse revealed that a juror seemingly did the same, bringing “an academic paper” into a trial that otherwise consisted only of testimony, CCTV footage and clothing.

Safety concerns about knives aside, I’m not convinced these are bad acts on their own. Jurors are no longer excluded from their own homes while deliberating and are not required to enter the jury room naked. There’s no reason why they can’t inspect their own belongings at night and bring relevant items in to show to others. Given that Rose’s fictitious prosecutor claims that the murder weapon — identical to one the accused was seen purchasing that day — is unique, why couldn’t a juror check that claim against a knife he owns, and show the jurors if the comparison is revealing?

Rather, the problem is that the knife No. 8 jams into the table isn’t his own, or at least wasn’t until he sought it out and bought it the previous night. That was the second instance of misconduct on Weisselberg’s list. The ACT’s Jury Handbook tells jurors: “Do not make searches on line or visit any place relevant to the case.” No. 8 does the latter. And everyone assumes that a Canberra juror obtained that academic paper by doing the former, perhaps when they were meant to be walking a dog or lifting weights.

And that made Chief Justice McCallum angry. She pointed out that she gave “at least seventeen, and possibly more” warnings to jurors against conducting their own investigations. Most of those were end-of-day reminders in these terms: “Please don’t go googling Brittany Higgins or Bruce Lehrmann or any of the other people you have heard mentioned. Please don’t seek out publicity in relation to this case. For the reasons I explained before, it would be very unfair to the accused if you sought information outside what you are going to hear in evidence in these proceedings.”

But, as far as anyone knows, no juror did anything in this list. The academic paper in the juror’s folder would surely have been written years before the events that were the subject of the trial. It did not mention anyone in the trial, or any place in it, or anything written about it, and contained nothing that the jurors heard in evidence.

Rather, the juror was suspected of conducting some general research about the outside world, akin to a New York juror scanning the shelves of his neighbourhood “junk shop” for switchblade knives. In her opening remarks, the chief justice explained that that wasn’t allowed either.

“You should only be learning about this trial in this room in my presence,” she said. “So, if you find yourself getting curious and undertaking internet research or talking to people about their areas of expertise, think to yourself, ‘Well, Chief Justice McCallum isn’t here so I probably shouldn’t be doing this.’ That is not a bad way of testing what you should hear in this trial. You should only hear the evidence in this trial in my presence when it comes before you in this courtroom.”

McCallum concluded this explanation by saying, “I hope that makes sense.” But Twelve Angry Men demonstrates why it doesn’t.

•••

No. 8: Look at this. [No. 8 closes the knife, flicks it open, and changes the position of the knife so that he can stab over-handed.] Doesn’t it seem like an awkward way to handle a knife?

No. 3: What are you asking me for?

[No. 8 closes the blade and flicks it open, holds it ready to slash underhanded.]

No. 5: Wait a minute! What’s the matter with me? Give me that.

[He reaches out for the knife.]

No. 8: Have you ever seen a knife fight?

No. 5: Yes, I have.

No. 8: In the movies?

No. 5: In my backyard, on my stoop, in the vacant lot across the street, too many of them. Switch knives came with the neighbourhood where I lived. Funny I didn’t think of it before. I guess you try to forget those things. [Flicking the knife open.] Anyone who’s ever used a switch knife would never have stabbed downward. You don’t handle a switch knife that way. You use it underhanded.

Rose’s angry men never solve the murder mystery at the heart of the case, or even come close to doing so. No alternative suspect or motive or means or opportunity ever emerges. Rather, the teleplay charts how each of the twelve learns a little more about the courtroom trial they just watched by talking it over with others.

No. 5 teaches his fellow jurors how to fight with a switch knife (and also about assuming who grew up in a slum). No. 8 schools them about the US constitution’s fifth amendment. No. 3 monologues an unwitting lesson in being a terrible father, No. 7 in being a terrible fact-finder, No. 10, a terrible racist. Several speak of life next to a noisy train line.

After No. 8 uses some back-of-the-envelope maths and the apartment map to demonstrate that a witness downstairs couldn’t have heard or saw what he testified he did, No. 9 speculates that the lonely, elderly witness might have lied to make himself feel important. Asked where he got “that fantastic story,” he explains, “I speak from experience,” prompting a “long pause.” The script’s many silences are central to the drama.

Rose’s point isn’t subtle. Each of these lessons causes at least one juror to switch his vote. But McCallum wasn’t subtle either. None of this learning was to happen in her jury room: “You mustn’t try to undertake your own inquiries or try to re-enact any aspect of the offence or consider any external evidence about the consumption of alcohol or about any matter that might arise during the trial. You must rest exclusively on the evidence you hear in this courtroom.”

Professor Weisselberg would side with her. He rounded out the twelve angry men’s “buffet of misconduct” with No. 5’s “expert testimony about the use of switchblade knives” and No. 8’s calculations about trains and apartments.

But are the chief justice and the professor right? If the juror’s folder had simply contained the juror’s own notes about another juror’s reflections on the “consumption of alcohol,” or detailed a re-enactment of walking through a ministerial suite, would that also have required the trial’s premature end? What if the notes revealed that — as is surely possible — one or more of the Canberra jurors had described their own experiences of rape?

The sanctity of the jury room mostly stops us from considering these questions, but sometimes courts must confront them. In 1999, an English court was asked to judge a movie-like scenario in a mundane case about whether some tyres were stolen or legitimately purchased. The jury wrote the judge a note revealing that one of their number happened to be a “tyre specialist” who knew how to read a tyre’s serial code to determine when it was made. “May we take this into consideration?” they asked.

The question flummoxed their trial judge, who failed to get back to them before they found the accused guilty. But the Court of Appeal overturned that verdict, ruling that the jury should have been told to ignore their fellow juror’s insights. Here’s the judges’ valiant attempt to explain why:

It was not improper for a juror who was not a lawyer and who had specialist knowledge of circumstances forming the background of a particular case to draw upon that specialised knowledge in interpreting the evidence. However that knowledge was not to be used as evidence but as a means of considering, weighing-up and assessing the evidence before the court.

Surely they were tempted to add, “I hope that makes sense.”

•••

No. 4: She did wear glasses. Funny. I never thought of it.

No. 8: Listen, she wasn’t wearing them in bed. That’s for sure. She testified that in the midst of her tossing and turning she rolled over and looked casually out the window. The murder was taking place as she looked out, and the lights went out a split second later. She couldn’t have had time to put on her glasses. Now maybe she honestly thought she saw the boy kill his father. I say that she saw only a blur.

No. 3: How do you know what she saw? Maybe she’s far-sighted.

[He looks around. No one answers.]

No. 3: (loudly) How does he know all these things?

[There is silence.]

No. 8: Does anyone think there still is not a reasonable doubt?

[He looks around the room, then squarely at No. 10. No. 10 looks down and shakes his head no.]

This exchange leaves Rose’s fictitious jury again split 11–1, this time in favour of “not guilty.” But Professor Weisselberg baulked at adding this discussion to the jury’s “buffet of misconduct,” explaining that “the jurors confront a lack of evidence on a key point, but they appropriately treat it as relevant to the existence of reasonable doubt.” Four professors at the same symposium condemned that discussion for a different reason: that the jury’s speculation about the witness’s eyesight was tendentious and didn’t account for her crystal-clear testimony.

When I first learned the topic of the academic article in the Canberra jury room — the prevalence of false allegations of rape — I felt the same way. Absolutely no one knows, or can know, how many or how few rape allegations are false. All we can ever know is that some allegations proceed to investigation, prosecution and, for a few, conviction, and most don’t. But there is no way to know whether most of those allegations are true or not. The rest is just guesswork, and such guesses mean little or nothing during a particular rape trial.

But then I read Chief Justice McCallum’s summary of the juror’s article: “It is a discussion of the unhelpfulness of attempting to quantify the prevalence of false complaints of sexual assault and a deeper, research-based analysis of the reasons for both false complaints and scepticism in the face of true complaints.”

In short, the unidentified article teaches everyone, including jurors, why the issue of prevalence goes nowhere.

After questioning the juror in private, McCallum revealed that they gave “an explanation that the document was not used or relied upon by any juror.” Given the incentives to dissemble and the difficulty of checking, the chief justice responded to such claims about goings-on in the jury room with appropriate scepticism. It sufficed that the academic paper was present in the jury room and “could be deployed to support either side of the central issue in this case.”

Is it true, though, as she declared, that it is “neither possible nor helpful to speculate as to the use to which this information might have been put in the jury room, if any”? I’m sceptical. Here are my guesses about what may have happened behind closed doors.

My first guess is that the prevalence of false rape allegations was indeed discussed in the jury room, probably quite often. I say that because the same issue was raised by almost every person I spoke with about the Canberra case, and most other rape trials as well. Indeed, on the middle weekend of the jury’s deliberations, journalist Louise Milligan complained to the capital’s lawyers that “there are still a significant minority of people who continue to, automatically, assume (against all evidence in international research and tendered to royal commissions) that there are multitudes of false accusers.”

My second guess is that one or more jurors would have nominated a particular fraction of rape allegations as false, according to academic studies. I say this because googling “number of false rape allegations” immediately yields a claim that “a range of studies show approximately 5 per cent of rape allegations are proven false.” This claim is sourced to a “fact sheet” from Victoria Police and the Australian government’s Institute of Family Studies, created as a resource for police and legal practitioners about fifteen “rape myths.” The 5 per cent figure is cited to dispel the “myth” that “the rate of false allegations is high.”

My final speculation: that the juror who brought in the academic article may have done so to help teach their fellow jurors why such figures aren’t reliable enough to be used in a jury room.

•••

[No. 3 looks around at all of them for a long time. They sit silently, waiting for him to speak, and all of them despise him for his stubbornness. Then, suddenly, his face contorts as if he is about to cry, and he slams his fist down on the table.]

No. 3: (thundering) All right!

[No. 3 turns his back on them. There is silence for a moment and then the foreman goes to the door and knocks on it. It opens. The guard looks in and sees them all standing. The guard holds the door for them as they begin slowly to file out. No. 8 waits at the door as the others file past him. Finally he and No. 3 are the only ones left. No. 3 turns around and sees that they are alone. Slowly he moves toward the door. Then he stops at the table. He pulls the switch knife out of the table and walks over with it. He holds it in the approved knife fighter fashion and looks long and hard at No. 8, pointing the knife at his belly. No. 8 stares back. Then No. 3 turns the knife around. No. 8 takes it by the handle. No. 3 exits. No. 8 closes the knife, puts it away and taking a last look around the room, exits, closing the door. The camera moves in close on the littered table in the empty room, and we clearly see a slip of crumpled paper on which are scribbled the words “Not guilty.”]

That’s how Rose’s teleplay ends. The movie opts for a different ending, which you can watch on YouTube. Crucially, in that version, No. 8’s knife is left lying on the jury room table. In real life, it would have been swiftly discovered by a bailiff and would launch an inquiry into juror misconduct. If it was found quickly enough, it might have condemned the accused to a retrial and, perhaps, worse.

An observant journalist afforded a Canberra juror a final word, reporting that they “swore under their breath and put a hand to their head as it was announced they could not continue.” We can all guess that word. But who was their anger directed towards? The sheriff’s officer? The chief justice? Another juror? Themselves? On that question, the jury’s out. •

The post Twelve vexed Canberrans appeared first on Inside Story.

I’ve been back in Alice Springs since October 2018 to make repairs to my unit and live cheaply while I finish writing a book, Into the Loneliness, about two women who roamed outback Australia last century. I first moved here in 2003, and even after I shifted to Melbourne in 2010 I was never entirely absent, returning to Central Australia every few months to work on a research project.

January is typically when Alice people flee to the coast to avoid the heat, but this year it’s even hotter and more humid than I remember it during the noughts. In summers past, say long-term residents, the temperature usually fell to 15°C at night, but high maximums these days are accompanied by high minimums. One morning when I was making breakfast the temperature was already 39°C.

“Heat wave” — the term that’s used on the news — is surely a euphemism for what we’re experiencing. A 2015 CSIRO report says Alice Springs averaged seventeen days above 40°C each year during 1981–2010 and forecast the figure rising to thirty-one days by 2030. When fifty-five days exceeded 40°C between July 2018 and June 2019 I began to wonder when the desert capital will become uninhabitable.

By the year’s end, the town is awash. On Christmas Eve 2019 I wake to see brown water churning between the normally barren Todd River’s banks across the road from my townhouse.

During the year I’ve struck up an acquaintance in the library with a Luritja woman from Papunya, chatting with her whenever she brings in her grandkids to use the computers. When I admire how the rain overnight brought out the fresh bush scents, she disagrees. She didn’t like it at all; it was too hard to find anywhere dry to sleep. She’d been sleeping rough, of course, maybe in the saltbushes hemming the Todd or in the riverbed.

That’s where some of the library’s local Arrernte regulars sleep, along with the Warlpiri, Anangu, Alyawarr and Warramungu who come into Mparntwe from their communities, sometimes hundreds of kilometres away, for cultural purposes, or to shop for supplies, use services or catch up with family and friends. Some stay with relatives in one of Alice Springs’s seventeen town camps or sleep overnight in or around the riverbed, then eat and shower at the Salvos before coming to the library.

Local Indigenous leaders fear that climate change will drive many from their traditional homelands to towns like Alice, escaping from flooded communities and overcrowded houses unsuited to extreme temperatures. “We are already suffering through hotter, drier and longer summers in our overcrowded hotbox houses,” says Central Land Council chair Sammy Wilson.

After the deluge, the usually bare slopes of the West MacDonnell ranges, flanking the town, are festooned in green. It would be tempting to see this as a La Niña bonus if not for the fact that much of the greenery is buffel grass (Cenchrus ciliaris), an insidious invasive species introduced by pastoralists to feed cattle. Buffel overwhelms native grasses, driving out bilbies and other small creatures and impeding local people’s collection of bush foods. Because of its intense flammability, traditional fire management practices no longer work. As Arrernte Anmatyerr poet Patricia Perrurle Ansell Dodds writes, “It’s too dry now. / The summer is too hot. / That buffel grass is everywhere.”

Back in January a boy had appeared in my peripheral vision as I drove out of the library car park one steamy evening. When he rolled across my bull bar in a loose, graceful motion I slammed on the brakes, fearful of hurting him, then bit back my irritation, waiting for him to move. How old was he? Eight; ten at the most. He was playing chicken, trying to provoke me, and when I failed to respond, he staggered away melodramatically.

I eased out of the car park, a little shaken and annoyed, although I’d soon be home sipping a G&T on my balcony with its view of the MacDonnells. I regained my equilibrium, distanced myself from what this scene ws a reminder of — the youth crime wave said to be plaguing the town.

When I first lived in Alice during the noughts, youth crime was expected to rise over the summer holidays. Since then, reports suggest it has reached epidemic proportions all year round. Aboriginal kids as young as eight are said to be roaming the streets in packs at night and “running amok.” Most of my friends have a story about a window being smashed, a house broken into, or a car being taken for a joyride, sometimes repeatedly.

This time round, the youth crime wave has become the main topic in what writer Robyn Davidson wryly calls The Conversation — the constant discussion about First Nations people among progressives in Alice Springs. Davidson, famous for walking with camels from Alice Springs to the Indian Ocean, has been dipping in and out of the town since 1977 while many of the “white do-gooders” (as they are called by their detractors in town) associated with the land rights movement and Aboriginal-controlled organisations in the 1970s and 80s have retired or moved to the coast. Over the past decade, in their stead, my gen-X contemporaries have shifted into the senior ranks of the local chatterati while millennials have refreshed many creative and political spaces in town with their artistic and digital agility. An Indigenous middle class has also emerged, often holding key managerial roles in Aboriginal-controlled organisations.

To live in Alice Springs, regardless of whether you were born here or why you came here, is to be caught up in The Conversation. The reasons relate to Mparntwe’s role as what the late Arrernte artist W. Rubuntja called a “little Central Australian Rome — too much Tywerrenge [or Law].” It is a cultural, social and economic focal point for First Nations people from the cross-border region of the Northern Territory, South Australia and Western Australia.

Because colonisation occurred later here than in the southeast, First Nations people consequently make up a greater proportion of Alice Springs’s population of 25,000 (a shade over one in five, according to the 2021 census) than of densely populated coastal cities. With the fallout from the encounter between First Nations people and settlers more evident in daily life, The Conversation in Alice Springs is more direct and less notional than the talk on the east coast.

Within eighteen months of my return to Alice Springs in 2018, my van’s passenger window has been broken repeatedly — once in my carport and three times in the library car park. Around the complex where I live, shattered car windows often glint in the grass like dew-encrusted cobwebs. Friends advise me to leave the van unlocked with a window half down so people can break in without shattering the glass. The windows remain intact but I sometimes find signs — an open door or glove box, a cigarette butt — that someone has rummaged around overnight.

A local glazier says he replaced thirty car windows each day during the recent midyear school holidays. Most shop windows in Todd Mall, the main business drag, are shuttered to protect them overnight, dampening what was once a colourful tourist precinct. Windows in the town council chambers and the library were often smashed while I worked there; once the aquatic centre fell victim to a midnight vandalism spree, with eighteen windows shattered and computers thrown into the pool.

The town is “under siege,” one headline declares. On community social media forums people cite the continued break-ins, loss of property and vehicle damage as reasons why they’re leaving town, posting photos and footage from home security cameras of break-ins. The issue of race frequently surfaces:

Sorry but the way I see it now is that anybody with white skin is simply not welcome.

Time to leave.

Where are the parents? comes the cry, along with exhortations to get tough on crime and employ more police to ensure no kids are on the streets after a certain time.

A friend who works with children in care in Alice Springs tells me about how, when she encouraged a boy to reflect on the consequences of theft, he replied, “Whitefellas have lots of stuff. They can always get more stuff.” One possible interpretation is that the rise in crime is an up-yours to the coloniser — to those who’ve taken so much and have so much — by young people exiled to the shadow zones of intergenerational trauma and poverty.

Whatever its causes, statistics lend weight to the perceptions of rising crime and rising rates of recidivism among young people. In 2019–20, NT Police proceeded more than once against 54 per cent of offenders aged ten to fourteen and 37 per cent of offenders aged fifteen to nineteen (with the older cohort making up 82 per cent of all offenders), indicating high rates of reoffending. Young people detained by NT police are overwhelmingly Indigenous.

That youth crime should have burgeoned in Alice Springs over the past decade seems no coincidence. During the noughts, the main Conversation topics within local social justice organisations were violence against women and substance misuse. Central Australia was experiencing record rates of alcohol consumption and associated harms, including assaults, mainly against Aboriginal people. These declined over the next decade following the introduction of alcohol harm-reduction measures, including the NT government’s Banned Drinkers Register, a Labor policy implemented in 2011–12 and then resumed in 2017, when Labor resumed office.

Many young people were consequently born to parents who drank alcohol to harmful levels and mothers who experienced family violence. According to an NT government report, “at least one child is subjected to domestic and family violence every day of the year in the Northern Territory.” Other children live with the effects of having witnessed family violence; still others leave unsafe and overcrowded living situations and gain a sense of identity in street gangs.

Central Australian Youth Link Up Service report seeing a rise in children with fetal alcohol spectrum disorder and other neurological conditions. While the current incidence of the disorder is unknown, a 2003 study calculated its prevalence in the Territory’s Aboriginal children to be between 1.87 and 4.7 per 1000 live births, compared with an estimated national rate of 0.02 per 1000 non-Indigenous children. Parents and educators find these young people, afflicted by limited attention spans, hyperactive behaviour and other learning difficulties, difficult to engage in educational, social, recreational and other activities.

Their parents are often young: in 2019, a fifth of Aboriginal mothers who gave birth in the Alice Springs region weren’t yet twenty. Often they haven’t completed school and face limited job opportunities, especially in remote areas. Around half remote-living Indigenous people don’t receive income from either wages or a Centrelink allowance, so they fall back on families for support, lifting poverty among the broader group. Census data indicates that between 2006 and 2016 Indigenous poverty rates increased to 50 per cent in very remote areas while falling to 22 per cent among Indigenous people in the major cities.

Food, fuel and other essentials were already more expensive in regional centres — and higher still in remote communities — but have hiked further in Alice Springs and its satellite communities since late 2021. Petty crime can be driven by something as basic as hunger.

The rise in crime and poverty also coincided with the implementation of the Howard government’s NT National Emergency Response and Labor’s Stronger Families policy. The BasicsCard, an income management tool introduced in town camps and prescribed communities in 2007, was extended to all welfare recipients in the Territory in June 2010. Fifty per cent of recipients’ Centrelink payments and 70 per cent of child protection payments could be spent only on food, clothing and rent. Financial penalties applied if, for example, children failed to attend school.

The BasicsCard was accompanied by the Community Development Program, a work-for-the-dole program that required remote participants to work for longer hours than their non-remote counterparts. Unlike its predecessor, the long-running Community Development Employment Projects scheme, the CDP was designed without any input from local communities.

Because allowances under these schemes were suspended if participants were unable to meet requirements, poverty rose. An ANU analysis found increased rates of infant mortality, child abuse and neglect, and a rise in low birth weights and child deaths from injury — a sad irony, given that the first round of reforms came in response to the Little Children Are Sacred report.

The rate of family violence in the Territory remains staggeringly high, and in 2021 recorded the greatest annual increase (12 per cent) in family and domestic violence-related assault victims across the country. NT police data indicate that nine out of ten victims were Aboriginal, and eight were Aboriginal women. “It is not an exaggeration to say that intimate partner violence committed upon Aboriginal women in the NT is pervasive,” NT coroner Greg Cavanagh said in 2016. “Almost three quarters” of NT Aboriginal women have been victims of intimate partner violence.

The Tangentyere Women’s Family Safety Group in Alice Springs has developed resources and initiatives to assist women and men in tackling family violence, but the lack of women’s refuges and other services, especially in very remote areas, and long waiting times for already overburdened clinics exacerbate the risks for those seeking to escape violence.

Although the fallout from this crisis is devastating, even the most distressing incidents scarcely rate a mention in national media. Which is why campaigners from the Tangentyere group held a vigil one Sunday in July this year to mourn the deaths of a mother and child, allegedly shot by the woman’s forty-one-year-old partner in a murder-suicide out of town. About one hundred of us gathered on the lawn outside Alice Springs Court and laid flowers on the grass and wrote messages of support to the family. Friends and relatives spoke about the impact of the loss of this thirty-year-old Aboriginal woman and her fourteen-week-old baby.

While the campaigners hoped the vigil would raise national awareness of the high incidence of family-violence-related deaths among First Nations women, the deaths received little attention outside Alice Springs. Indeed, more coverage was given to the shooting of three whitefellas in a property dispute in north Queensland the following month. And the small turnout for the vigil seems telling, too, in a town that focuses so much outrage on property crimes.

Strange things happened in Central Australia during the pandemic. After the first lockdown was announced on 23 March 2020, the streets of Alice Springs became abnormally quiet. Heeding the strong messages carried by remote Indigenous and national media about Covid-19’s risks, people stayed inside their houses or returned to their communities.

Behind closed doors in the library, we continued to provide borrowing and printing services, and moved storytelling and other educational programs online. But we wondered what had happened to our regulars. What were the tjilpis (Pitjantjatjara for older men) who watched westerns in the library doing every day, and the cheeky kids who enjoyed using computer apps to make videos and create emojis?

That was the town’s longest lockdown. By mid May we were dining al fresco in cafes; by early June we were allowed to go camping again (the ban had been a great privation for locals). On the last day of May, about one hundred people gathered at the Olive Pink Botanic Gardens for the launch of local author Dani Powell’s book, Return to Dust — the first sign for me of a return to a fragile normality.

For almost two years, as we resumed life in our own Truman Show in the middle of the desert, the virus seemed hypothetical. We went through the motions of sanitising and physical distancing (mask wearing never became widespread, except where mandated). Because of the Territory’s relative isolation, sparse population and, most of all, strict border controls, the virus’s spread was curtailed until quarantine restrictions were lifted for vaccinated travellers just before Christmas 2021. For me, the pandemic’s most difficult aspect was not being able to visit family in Sydney because of the prohibitive cost of fourteen days’ quarantine when I returned.

Alice Springs didn’t experience its first Covid-related death — an Aboriginal woman from Mutitjulu, who was the third fatality in the Territory — until 31 January this year. By the time five-day Covid isolation ended nationally, the Territory had recorded seventy-three Covid-related deaths and a fatality rate of 0.07 per cent. While any loss of life is tragic, these figures are remarkably low given that the region’s indices of disadvantage are among the worst in the country.

The effectiveness of the Territory’s Covid response stems from advocacy early in the pandemic by the Combined Aboriginal Organisations and peak Aboriginal health bodies, and especially by Donna Ah Chee, the chief executive of the Central Australian Aboriginal Congress, who initially lobbied for strict border controls.

The pandemic’s first year was also an unwitting social experiment. Property crime rates plummeted from April to August 2020, which some local commentators attributed to the existence of a curfew of sorts. A more compelling hypothesis is that crime fell after the coronavirus supplement lifted the JobSeeker and Youth Allowance by $550 fortnightly in March 2020, temporarily raising welfare recipients’ income above the poverty line.

“For the first time some households have been able to afford basic needs like accommodation, food, winter clothes, whitegoods or repairs to motor vehicles,” reported the Northern Territory Council of Social Service in October 2020. As the supplement was phased out from late September through to December that year, property break-ins resumed their previous high levels.

When people ponder the distance, the climate and the crime they often ask me and my friends how we can live here.

Despite the town’s extremes, it’s possible to experience many things here that have been lost in other urban areas. You can usually commute to work in ten minutes from any direction. You can escape to the bush for a walk or a swim in a waterhole, or to camp overnight, often without much preparation. You can immerse yourself quickly in the dramatic landscape — giant orange rocks cast by ancestral beings, wild dogs (Akngwelye) and caterpillars (Yeperenye, Ntyarlke and Utnerrngatye) churning across the land — and its moodiness, all bold primary colours in bright sun one day, brooding pastels in overcast weather the next. You can enjoy a sense of social ease, bumping into anyone at any time, and you can slot quickly into the town’s social, cultural and sporting lives.

To me, Alice Springs’s greatest strength has always been its community-driven activities, of which it boasts an extraordinary number. The town wheels through a calendar of iconic and idiosyncratic creative and sports events, including Parrtjima, the country’s only Aboriginal light festival, the Anaconda mountain-bike race, the Finke Desert Race, the Beanie Festival, Word Storm (the NT Writers Festival, every second year in Alice), the Bush Bands Bash, the Desert Mob exhibition, Desert Song and the Desert Festival.

In early October, composer Anne Boyd’s Olive Pink Opera was performed with the support of the Central Australian Aboriginal Women’s Choir in the botanic gardens, on the site where the eponymous anthropologist camped in a tent during the 1950s.

While Alice Springs is best known for its visual arts — Albert Namatjira’s landscapes, the central and western desert art movements, the annual Papunya Tula Art Exhibition — it is also an incubator for experimental work by Indigenous and non-Indigenous artists. A recent exhibition, Footy Show, at Watch This Space, showcased First Nations artists exploring their relationship to football. Indigemoji, Australia’s first set of Indigenous emojis, was produced by young people guided by senior Arrernte cultural advisers, and Awemele Itelaretyeke is an app with two audio walking tours made by traditional owners to help users learn about Mparntwe’s history, culture and language.

Some of Centralia’s most hard-hitting creative achievements over the past decade have been in film and television: Warwick Thornton’s prize-winning Sweet Country (2017), which premiered at this year’s Sydney Film Festival, is a Western based on the local story of Willaberta Jack, and Penelope McDonald’s Audrey Napanangka (2021) explores the life and work of the Warlpiri artist. Dylan River (Thornton and McDonald’s son) directed Finke: There and Back (2019) for Brindle Films, which follows several Finke Desert Race participants, including local filmmaker Isaac Elliott, who competes on a modified motorbike after an accident left him confined to a wheelchair.

Alice-based production company Brindle Films, founded in 2011 by Rachel Clements and Trisha Morton-Thomas, produced the ABC TV comedy series 8MMM Aboriginal Radio (2015), and The Song Keepers (2018), the NITV/SBS documentary about the Central Australian Aboriginal Women’s Choir on tour. Isaac Elliott also worked with Brindle Films on the Netflix TV series MaveriX (2022), about dirt bike riders in the red centre.

Locally made documentary In My Blood It Runs (2019), which screened on ABC iView and Netflix, introduced viewers to the challenges encountered by ten-year-old Arrernte/Garawa boy Dujuan Hoosan in navigating cultural life and Western educational systems in Alice Springs. SBS crime series True Colours (2022), created by Erica Glynn (Thornton’s sister), portrays First Nations people’s social and cultural realities in Central Australia in a way rarely seen on TV. With white characters appearing as marginal figures, it features strong performances by untrained locals including singer Warren H. Williams, Arrernte elders Sabella Kngwarraye Ross Turner and Rosalie Kumalie Riley, and lead actor Rarriwuy Hick.

Books and publishing also have a high profile in Alice Springs. Although Dymocks closed its local store in 2013, local bookseller Red Kangaroo Books, run by the Capper–Druce family in Todd Mall since 2007, battled on, featuring on one list of “21 of the Best Bookshops in Australia to Visit in 2021.” As “the only bricks-and-mortar independent bookshop still standing in Australia between Port Augusta, Darwin, Broome, and Broken Hill,” the shop attributes its success to its “fiercely local” focus, stocking (often hard-to-come-by) books on Central Australian subjects and by Centralian authors.

Community-publishing outfits have long flourished in Alice Springs, especially those dedicated to producing books by First Nations people. The Institute for Aboriginal Development Press, which has published First Nations dictionaries and resources since 1969, has recently been joined by Running Water Community Press, which has produced anthologies of local women’s poetry including Campfire Satellites: An Inland Anthology (2019) and Arelhekenhe Angkentye: Women’s Talk: Poems of Lyapirtneme from Arrernte Women in Central Australia (2020). The first book in its new truth-telling series is local stolen generations survivor Frank Byrne’s Living in Hope (2022), an earlier version of which won the Small Press Network’s Most Underrated Book Award in 2018.

Other notable First Nations publications include Central Land Council’s collective memoir, Every Hill Got a Story (2015), and ninety-year-old Kanakiya Myra Ah Chee’s memoir, Nomad Girl (2021).

Among the most inspiring local ventures are the First Nations children’s books published by intergenerational Arrernte learning initiative Ampe-kenhe Ahelhe Children’s Ground. Led by local Arrernte elders, Ampe-kenhe Ahelhe began providing education to First Nations children on Country and in people’s communities, combining Arrernte and Western educational priorities. Since 2019, its Arrernte educators have produced nine educational resources featuring seven local languages, the latest of which include Tyerrtye Atyinhe (My Body), Althateme (McGrath’s Dam) and Intelhiletyeke, a First Nations colouring book.

“We’ve been following government nearly all our lives — this is a new beginning,” says Ampe-kenhe Ahelhe director M.K. Turner. “We are following a new path, our own path as First Nations people for the future of our children. At Children’s Ground, the community is taking the lead. We are very proud of that. We are the government of ourselves.”

When the Yiddish poet Melekh Ravitsh arrived by train in Alice Springs in 1933 he experienced “an uncontrollable joy and fear.” “One feels,” he wrote, “that one is in the middle of the hot, wild heart of the most remote of all continents — Australia.”

I can relate to the intensity of Ravitsh’s response. Unsettling feelings take hold of you on being confronted by Mparntwe Alice Springs, destabilising your perception of Australia. The town continues to draw people like me — rootless wanderers above the ground, as a Māori elder once described the Pākehā — back to the Centre. With its sharp light throwing so much into relief, there is rawness about living in the place.

Here you live on the precipice of the prosperity so many Australians take for granted, where the marginalisation, the poverty, the trauma and the damage to Country that resulted from dispossession of First Nations people are all too apparent. At the same time, it is a privilege to see this other, remote Australia, to live and work alongside First Nations people, to catch a glimpse of what Country means to them, even if the depth and complexity of this relationship is hard to grasp.

“The town grew up dancing,” the late W. Rubuntja wrote. “And still the dancing is there under the town… We still have the culture, still sing the song… It’s the same story we have from the old people, from the beginning here in the Centre.”

May the dance never end. •

Funding for this article from the Copyright Agency’s Cultural Fund is gratefully acknowledged.

The post Hot, wild heart appeared first on Inside Story.

Five years on, it’s officially a problem. At a business dinner in July, a manager and client of the ecommerce giant Alibaba pushed a female employee to get drunk and then sexually harassed and raped her. The distressed young woman reported the incident to her superiors and Alibaba’s human resources division. When they took no action, she posted an eleven-page account on the company’s intranet.

Word got out and Chinese social media blew up. The hashtag “firmly refuse vile business drinking culture” attracted 220 million views and tens of thousands of comments. Alibaba CEO Daniel Zhang went public to condemn the “ugly culture of forced drinking” and fired the alleged rapist. Two other managers who had failed to act on the woman’s complaint resigned. Even the Communist Party’s powerful anti-corruption body, the Central Commission for Discipline Inspection weighed in, condemning the culture of compulsory drinking at business and other dinners as “odious.”

Out came other shocking stories of sexual assault and more. There was the boss who slapped a new employee for not returning a toast by a higher-up, and the professor who forced a postgrad student to drink so much he passed out — and then refused to teach him because he wasn’t a good enough drinker. Criticisms of the contemporary drinking culture — endless forced toasts, typically with strong spirits called baijiu, and a bullying power dynamic — had been growing for years. In 2021, they reached critical mass.

Some commentators have pushed back. Drinking, they claim, is part of traditional Chinese culture. The ancient Book of Odes, compiled almost three millennia ago, contains at least twenty references to alcohol. Wine played a role in formal rites and rituals. One of the most famous works of calligraphy, “Preface to the Orchid Pavilion Poems,” celebrates an afternoon playing a game involving drinking and poetry.

One of the pithiest and most-quoted tributes to drink came from the brush of Cao Cao (155–220), a military man and a poet. Part of a longer poem, it honours the semi-mythical inventor of fermented drink, Du Kang: “How to dispel one’s sorrows? Only Du Kang.”

Li Bai (701–762), considered one of China’s two greatest poets, was a renowned inebriate. Among his many tributes to the joys of intoxication, he penned the following lines, which may well resonate with the generation of young burnt-out workers who talk longingly of “lying flat” (dropping out and doing nothing), here translated by Amy Lowell and Florence Ayscough: “Why should one spend one’s life in toil?/Thinking this, I have been drunk all day./I fell down and lay prone by the pillars in front of the house.”

Yet the drinking culture of old was not quite what it seems. For one thing, when Li Bai, in another poem, hails “a cup, a cup, and yet another cup,” he is talking about a very small cup, filled with wine fermented from fruit such as grapes, or grains such as rice or sorghum, with an alcoholic content well under 20 per cent.

Distilled spirits, baijiu, only came to be produced in significant quantities sometime in the Ming dynasty (1368–1644). Up to 70 per cent pure alcohol, baijiu was cheap and potent, predominantly a drink of the poor. It did not appear at the banquets of the rich or powerful, nor did it fill the poets’ tiny cups.

Everything changed in 1935, when an army marched with sore feet into a small village in southwestern Guizhou province. The Communists’ Red Army was in the middle of the legendary Long March, a tortuous, two-year, 9000-kilometre retreat, during which it fought off bandits, warlords and attacks by government troops while traversing some of China’s most rugged terrain, from malarial swamps to snowy mountains.

In the Guizhou town of Zunyi, the Communists made Mao Zedong their leader. In the village of Maotai, they made the fierce local baijiu their drink. It didn’t just numb pain and stave off cold. It could sterilise wounds as well, and, as Red Army generals discovered to their delight, it was perfect for soaking their blistered, aching feet.

After the Communists took power in 1949, the state nationalised and combined the handful of baijiu distilleries in Maotai, and named the product after the village (spelling it Moutai in English). In 1951, premier Zhou Enlai created a standard for state banquets. The food would be of the refined and not-too-spicy southeastern Huaiyang cuisine. The drink would be the fiery Moutai. The proletarian sauce that had played such a welcome role in one of the party’s foundational legends became the national drink of the People’s Republic of China.

Baijiu manufacture boomed. In 1949, China produced 108,000 tonnes of baijiu; by 1975, annual production had reached more than 1.7 million. The Soviet Union, where no deals were done without lashings of vodka, also contributed to the reshaping of China’s drinking culture, especially among officials. Online commentators looking for the source of China’s toxic drinking culture point the finger at one man in particular: Dmitry Ustinov, the Soviet central committee member responsible for the Soviet Union’s military-industrial complex from 1965 to 1976 and defence minister from 1976 to 1984.

Some of Ustinov’s Soviet colleagues claimed he put an end to messy drinking culture within the Soviet defence establishment. By contrast, Chinese accounts, which credit Ustinov with an almost inhuman ability to hold his liquor, relate how he notoriously insisted that negotiations, over arms deals for example, begin with marathon bouts of drinking. He would get his guests so thoroughly pixelated that they would sign off on deals they’d wholly regret in the morning. In one infamous example, when India was trying to talk down the price of Soviet arms, six Indian negotiators ended up in hospital with alcohol poisoning; the ones who remained upright blearily agreed to double the original price.

In the early 1990s, in a case of what you might call “reverse Ustinov,” the Chinese historian of Sino-Soviet relations and the cold war, Shen Zhihua, fed up with the obstructively slow pace of Russian archivists, plied them with baijiu. The files fell open.

It was in the 1990s that the Chinese Communist Party expanded its economic reforms and businesses boomed. Entrepreneurs readily adopted official, Sovietised banquet culture, with its baked-in hierarchies and negotiations over endless toasts of baijiu. To refuse a drink was to cause one’s superior or host to lose face, or so they said. And a sip wouldn’t do — the expression ganbei was a command to drain the glass in one go. A straight line led from here to the scandal at Alibaba.

Forcing people to drink as a sign of subservience was not unknown in ancient times. Cao Cao is said to have laid on a banquet for a general who surrendered to him at which he toasted each guest in turn, a strongman with an axe by his side. Refusal was not an option.

These days, China leads the world in total alcohol consumption. The legal drinking age is eighteen, although enforcement is, to say the least, patchy. But China’s younger generation, and especially those among its better-educated, well-travelled middle class, are increasingly rebelling against “bottoms up” culture. A recent survey revealed that people under forty tend to consider baijiu both bad-tasting and old-fashioned; many prefer beer and wine and even low-alcohol drinks, and bars over banquets.

In another online survey, 84 per cent of the almost 700,000 respondents expressed “extreme disgust and zero tolerance” for coercive drinking at business and other banquets. Baijiu production peaked in 2016 at 13.6 million tonnes; by 2020 it dropped to less than 7.5 million.

At one point in my misspent youth, as a young magazine reporter attending a banquet with officials from the All-China Journalists Association in Beijing, I acceded to a drinking contest. Twenty glasses of Moutai later, I declared victory. The following morning, I woke up with drums in my head, the imprint of a toilet seat on my cheek, and colour literally drained from my vision for several terrifying, sepia-tinted hours. An end to coercive and competitive drinking? I say cheers to that. •

The publication of this article was supported by a grant from the Judith Neilson Institute for Journalism and Ideas.

The post Last call for China’s drinking culture? appeared first on Inside Story.

Two years ago, Rolfe was a serving constable based in Darwin. When he was named as the man who shot Kumanjayi Walker in Yuendumu in November 2019, no one had yet heard of Minneapolis police officer Chauvin or the man he killed, George Floyd. That changed six months later when harrowing smartphone footage of Chauvin’s knee on Floyd’s neck became 2020’s second-biggest news story. The reignited Black Lives Matter movement, linking America’s history of enslavement to contemporary cross-racial policing, readily translated to Australia’s history of invasion and Indigenous deaths in custody.

The resemblance between the Chauvin and Rolfe cases is more than skin-deep. Walker and Floyd each died after being arrested; both suffered their injuries on the ground with a police officer on top of them. Chauvin and Rolfe each argued that their use of force was reasonable; both were nevertheless charged with murder four days after the killings.

Each of the police officers was also charged during community unrest, although the American upheaval was far broader. That is why it was Floyd’s death, not Walker’s, that prompted street protests across Australia’s cities about the lack of progress since 1991’s royal commission into Aboriginal deaths in custody. A longstanding grievance — the lack of prosecutions of officials in relation to any of the hundreds of such deaths over the next three decades — had by then been partly remedied by Rolfe’s charge and an unrelated Western Australian prosecution in early 2020.

But Australian justice is quieter than America’s. Across 2020, every aspect of Chauvin’s life, from his marriage to his disciplinary record to his side hustles, was exhaustively pored over by the US media, as was every decision by his lawyers, prosecutors and judge. Rolfe’s case, by contrast, lacked not just an emblematic video but also any public airing of the evidence, thanks partly to Australian concerns about prejudicing juries.

What we do know suggests that Rolfe’s trial will be very different from Chauvin’s. Despite America’s greater penchant for armed confrontations, it was the encounter between Rolfe and Walker that involved weapons. Walker’s tool, a pair of scissors, was prosaic, but he was the first to draw blood, reportedly stabbing Rolfe in the shoulder. Rolfe responded not with his knee but with his gun. The gun and scissors explain why Rolfe’s prosecutors, unlike Chauvin’s, claim that he killed intentionally and why Rolfe’s lawyers, unlike Chauvin’s, claim that he killed defensively.

Australian justice is also slower than America’s. Even though Floyd died six months after Walker, Chauvin was convicted of his murder up to twelve months before Rolfe’s trial is now likely to begin. The delays were initially because of Australia’s different pre-trial processes and the Territory’s smaller justice system, combined with the pandemic’s barriers to travel. But then a new problem arose, in the form of yet-to-be-resolved questions about whether and how the Territory’s criminal law applies to police officers.

“Is Zach Rolfe… Di Fingleton?” That question was voiced soon after Rolfe was charged, but it still lacks a definitive answer.

Two decades ago, Fingleton was Queensland’s first female chief magistrate. Then she fell into a fight that was as trivial as Rolfe and Walker’s was tragic. Irritated by the activism of the Magistrates’ Association, a union of sorts for the judicial officers in her court, she wrote an angry letter saying that she had lost confidence in the body’s vice-president and telling him to show cause why he should keep his position as a coordinating magistrate.

Fatefully, her list of grievances included an affidavit the vice-president had given to a panel of judges reviewing an internal workplace dispute, in which he accused Fingleton and her predecessor of mismanaging transfers of magistrates around Queensland. A cascade of overreactions followed: the vice-president referred Fingleton to the state’s corruption commission, the state’s prosecutors charged her with a newly enacted offence of “retaliation” against a witness, and a jury rejected her defence that the letter was reasonable. Queensland’s Court of Appeal upheld that verdict and ruled that six months in protective custody would suffice to punish her.

The link to Rolfe’s case is a legal issue only belatedly recognised when Fingleton made a last-ditch appeal to the High Court of Australia. The national court was the first to notice that, three years before Fingleton wrote her letter, Queensland’s parliament had granted all of the state’s magistrates immunity from criminal prosecution for everything they did at work. Queensland’s chief prosecutor gamely argued that the immunity should not be read literally, but the High Court unanimously disagreed. With her prison stay long completed and her career ruined, Fingleton was belatedly exonerated.

In contrast to judges like Fingleton, police officers like Rolfe are usually given a much more limited protection against being sued for money for things they do at work. But Rolfe’s lawyers were quick to recognise that this had changed in Rolfe’s case just eight months before Walker was shot. A new law enacted by the NT Legislative Assembly stated that the Territory’s cops are not “criminally liable” for anything they do “in good faith” as part of their functions or powers.

Rolfe’s accusers seem to have taken a while to reckon with this obstacle. They knew that they could argue that Rolfe hadn’t acted defensively — that his first shot was a proportionate response to Walker’s scissors but his second and third, the fatal ones, were not. They also had a response to Rolfe’s claim that he acted “reasonably” — a defence the Territory’s criminal code provides officers who injure people as part of their duties — in the form of an expert report criticising several aspects of Walker’s arrest.

Although Chauvin’s prosecutors readily won on similar arguments in Minnesota, Rolfe’s prosecutors knew they faced a tougher challenge. Floyd was killed as he lay on the ground during an arrest for petty counterfeiting, but Walker was arrested for allegedly attacking police with an axe, and was shot while wielding scissors. In contrast to Floyd’s nine minutes under Chauvin’s knee, just three seconds passed between Rolfe’s lawful first and contentious last shots, leaving little scope to argue that the latter were fired in bad faith.

Rolfe’s prosecutor, Philip Strickland, needed to argue that the Territory’s immunity provision didn’t apply at all to Rolfe’s second and third shots. He relied on court rulings that immunities from criminal prosecution should be read not literally but narrowly, and in a way that sits well with other laws. His eventual stance was that Rolfe’s second and third shots weren’t immune because they came after his failed attempt to arrest Walker and were already covered by other (less generous) defences in the Territory’s criminal law.

The upshot is that the question of Rolfe’s guilt or innocence, like Fingleton’s, turns at least as much on how judges read a complex statute as on how jurors decide on the facts. The good news in Rolfe’s case is that the problem was recognised before — rather than long after — his trial. The bad news is that the attempt to resolve it came too close to his trial to do it justice.

“Is Zach Rolfe… John Elliott?” That question was voiced just days before Rolfe’s jury was to be chosen, but will not be answered for months.

Two generations ago, Elliott embarked on a series of corporate acquisitions that made him a major figure in Australia, including as national president of the Liberal Party and president of the Carlton Football Club. But his mid-eighties “white knight” actions against a hostile takeover of BHP prompted an investigation by the National Crime Authority and, eventually, mid-nineties fraud charges.

High-profile white-collar prosecutions are always difficult, particularly when they rest on evidence turned up by a novel body like the NCA. And so it proved in Elliott’s case. Trial judge Frank Vincent spent months resolving multiple procedural and statutory disputes before he ultimately concluded that the NCA had overstepped its bounds and most of the evidence it gathered could not be used against Elliott.

Elliott’s prosecutors immediately raced to the High Court, arguing that Vincent’s ruling was wrong and an injustice was imminent, but the national court said that it wouldn’t hear a challenge ahead of Elliott’s jury trial. Australian law, the judges explained, leaves legal questions in the hands of whichever judge is in charge of the trial and only allows those rulings to be reviewed after the trial is done and dusted. Any other system, they explained, would slow down the trial system too much, to everyone’s detriment.

Twenty-five years later, the task of resolving the question of Rolfe’s partial immunity from prosecution was in the hands of a very experienced trial judge, Dean Mildren. Following standard practice, he planned to resolve legal questions about Rolfe’s prosecution in a closed session just before the trial was due to start. But possibly realising how crucial the immunity question was, he took advantage of a pandemic-induced delay in the trial to send the dispute to a bench of all five Territory judges.

A week before Rolfe’s delayed hearing was scheduled to start, the five judges ruled: Rolfe’s jury must be told to acquit him of all charges if he fired his final two shots “in good faith.” The disappointed Strickland immediately asked for the trial to be further delayed to allow him to seek a review in the High Court, but Mildren refused, citing the High Court’s stance in Elliott’s case.

Mildren and Strickland would have been all too aware of how the Elliott case ultimately played out in the 1990s. After the High Court refused to intervene before Elliott’s trial, his prosecution collapsed without a jury being sworn in. The wounded prosecutors then sought a belated review of Vincent’s rulings on the NCA and won on every point, in both Victoria’s appeal court and the High Court. But Elliott could no longer be tried for fraud because he had been acquitted, albeit (now) with an asterisk.

Strickland faced a very narrow path to successfully prosecuting Constable Rolfe for Walker’s death. He would have to convince the High Court to abandon its earlier stance on pre-trial reviews. He also needed to convince the justices that five Territory judges’ unanimous view of Rolfe’s immunity was both important and doubtful enough to be worth the national court’s time. Then he would have to convince the same court to rule that Rolfe’s second and third shots were not covered by the “good faith” immunity. And, after all that, he needed to convince Rolfe’s jury that the police officer shot Walker both excessively and unreasonably.

But first he faced a more immediate problem: it was Thursday, and Rolfe’s jury would be selected the following Monday.

So, “Is Zach Rolfe… Derek Chauvin?” This question still hasn’t been — and won’t ever be — voiced in court, but Justice Jacqueline Gleeson came close last month.

Two working days before Rolfe’s murder trial was due to kick off, Mildren and Strickland discussed some contingencies that would arise if the High Court decided to get involved. Everyone accepted that the national court probably couldn’t settle whether Rolfe’s second and third shots were subject to immunity in time for the trial to go ahead as planned. But Mildren figured there was time for the national court to at least to decide whether or not it would take on the case.

Such decisions only require two justices and can be made after thirty or so minutes of argument, or even without a hearing. While the High Court usually takes months to schedule a hearing, it can act much faster if a case is urgent enough. During 1998’s waterfront dispute, it responded to a hasty application on a Thursday by Patrick Stevedores to pause a pro-union ruling made by the Federal Court by ordering a hearing before all seven judges the following Monday. So, Mildren pencilled in Tuesday for a possible late start to Rolfe’s trial if the High Court speedily decided it wouldn’t get involved.

It wasn’t to be. When Strickland and Rolfe’s counsel zoomed in the next morning, the duty judge, Justice Gleeson, told them that the High Court would take three weeks to decide whether it would even take on Rolfe’s case. After both lawyers politely said that they would clear their diaries for a thirty-minute hearing in the middle of the next month, Gleeson asked them whether Rolfe’s murder trial should go on as scheduled anyway.

The High Court’s newest judge took up her role in March this year after the retirement of Virginia Bell, a former defence lawyer and experienced criminal appeal judge. Gleeson’s appointment from the NSW registry of the Federal Court preserved the geographical and gender balance of the court, but left the national court without any criminal law specialists for the first time in its twelve-decade history. Her apparent notion that a murder trial could run for weeks before the High Court decides whether to get involved may be an example of that gap in the national court’s expertise.

The lawyers before Gleeson seemed baffled by her approach. Rolfe’s lawyer, the national bar’s most starred figure, Bret Walker, allowed that lawyers running a murder trial might be “distracted” by an imminent High Court intervention. Strickland was less polite: a mid-trial hearing would be “inutile” — pointless — because the trial itself would already have been following the Territory ruling. He mused that maybe the court could act a bit quicker, but Gleeson ignored the hint, pronounced herself disturbed by Strickland’s stance and told him to put it in writing. He did. Either the trial or the High Court hearing could happen as scheduled, but not both.

That left Gleeson with a choice to make and she spent the weekend mulling it over. The following Monday, she ruled that, despite many changes to the legal landscape since the 1990s, the law on pre-trial High Court rulings set out in Elliott’s case hadn’t changed. But the facts had:

The injustice of a possible acquittal of a police officer for murder of a young man in the context of the attempted execution of an arrest warrant, on the basis of an incorrect ruling on a question of law, is of a different order of magnitude from an acquittal on a charge of white-collar crime, however egregious.

In short, John Elliott wasn’t Derek Chauvin. Or, at least, Rolfe’s trial must wait until the High Court dispels at least one, and maybe all, of the elephants in Mildren’s courtroom.

So, who is Zach Rolfe? This morning, three weeks after Rolfe’s trial was supposed to start, the High Court finally decided that Zach Rolfe is… George Pell! That is, it decided, as it did in the last high-profile criminal case to reach the national court, that the very decision on whether or not to take on the case at all is one that needs the attention of all seven of its judges.

Today’s decision means  that the national court will rule on the law, in particular whether or not Rolfe is John Elliott or Di Fingleton or neither, before a jury decides — if it ever does — whether Rolfe is Derek Chauvin. Rolfe, and everyone else, must likely wait until next year to learn each of these answers, including whether or not the last one will come with an asterisk. •

The post The elephants in the courtroom appeared first on Inside Story.

It has picked at sores that have been festering for almost forty years: sores created by the endemic corruption in New South Wales in the 1980s, the unresolved allegations in the so-called “Age tapes” and the record of Neville Wran’s Labor government. As for the present and the future, Exposed represents a small tragedy within the larger tragedy of the 1979 fire in the ghost train at Sydney’s Luna Park, in which six people died.

In my view, Exposed includes some of the best Australian television journalism of recent times. Yet it is being pilloried for faults in the final twenty minutes of its third episode, where the program details, and in places can be understood to be endorsing, an unsubstantiated allegation of corruption against Neville Wran.

The suggestion is that Wran interfered to help crime boss Abe Saffron gain control of the Luna Park site in the wake of arson. Spoiler alert here: I almost entirely agree with the report of the independent editorial review of the program ordered by the ABC board in response to complaints, which was conducted by peerless investigative journalist Chris Masters, a veteran of reporting on NSW corruption, and respected academic Rodney Tiffen.

Masters and Tiffen describe the program as an “outstanding achievement” that used deep, original and rigorous research to make a convincing case that the fire was probably arson, that the original investigation was perverted by corrupt police, and that Saffron may have been involved.

But when it comes to the allegation that Wran was friendly with Saffron and may have intervened on his behalf, Masters and Tiffen believe parts of the program are “misleading” and its references to political corruption “vague, anonymous, and unhelpful.” One of their terms of reference was to ask whether the program “demonstrated open-mindedness to alternative interpretations of events and issues,” and on this they clearly found it wanting.

Let’s talk about the old sores first. Prominent in public life today — and among the program’s most trenchant critics — are people who built their early careers during the decade, 1976–86, in which Neville Wran was premier of New South Wales. They are deeply invested in how history judges those times.

Journalists, too, put their careers on the line back then. Watergate was still a recent memory, and it was much easier to see journalism as an honourable, even heroic profession.

I was a junior journalist in the Age newsroom when Bob Bottom, a journalistic refugee from Sydney, arrived in 1984 in a cloud of glamour, righteousness and zealotry. He carried with him what became known as the Age tapes, which were alleged to contain evidence of corrupt activity by High Court judge Lionel Murphy. That the Age published this material — drawn from illegal phone intercepts by NSW police — was controversial at the time and remains so.

I remember the drunken post-mortems and the anguish when the parliamentary inquiry into allegations of misbehaviour by Murphy — which also involved allegations about Wran — was closed down because of Murphy’s terminal cancer. The records of the investigation were sealed for thirty years, and released in 2017.

It is hard, now, to convey the atmosphere of those times. A raft of royal commissions and corruption inquiries in six states in the 1980s and early 90s, many prompted by excellent journalism (much by Chris Masters) exposed corruption within state governments and aired allegations of federal significance. But among some of the journalists, the zeal was sometimes excessive, and the shades of grey too often depicted as black and white.

A fuller explanation of the times, and what can and can’t be said about the Wran government and corruption, is in an essay by Rodney Tiffen published by Inside Story earlier this week, given extra punch because of its author’s work on the ABC review.

Tiffen gives little comfort to Wran’s boosters and defenders, who have been among the program’s chief critics. While confirming that there is “no persuasive evidence” that Wran was corrupt in the sense of personal financial gain, he also lays out how corruption grew on Wran’s watch, and how he used government patronage for political advantage. In particular, Wran did favours for media barons — Rupert Murdoch chief among them. Tiffen sees Wran as a transitional figure between the rampant and established corruption of his predecessor, Robert Askin, and the reforms of the 1990s, including the creation of the Independent Commission Against Corruption.

The issues here — the slippery connections between the unscrupulous use of power for political advantage, the importance of ICAC, the enmeshment of media with government and power, and journalists’ roles on both sides of the corruption fight — could hardly be more relevant to our own times.

So much for the currents and the shadows. What of the program itself?

One of the chief critics of the ABC and Exposed has been Troy Bramston, a senior writer with the Australian. Bramston, in my view, makes some fair points but over-eggs his pudding. He has said the Luna Park fire was probably caused by accident rather than arson. How he can feel so secure in that conclusion after viewing episode two of Exposed is beyond me. Here, Bramston betrays biases and blind spots of his own.

Bramston and others have also suggested that the media — and the ABC in particular — should not report unsubstantiated allegations, including the allegations against Wran. I think that’s ridiculous. As the ABC editorial policies say, and surely all journalists would assert, publishing allegations “in the public interest is a core function of the media in a free society.” But of course it should be done after careful judgement, with context, clarity and balance.

The claim that the ABC should not have broadcast the allegation against Wran is particularly weird because it was already public. It can be found in the records of the parliamentary inquiry released in 2017, where it features as “Allegation 28.” It rested on police officers’ memories of what was contained in since-destroyed transcripts of the Age tapes. Exposed found one of those officers, Paul Egge, and interviewed him, and he stood by his recollection.

When the documents, including Allegation 28, were released in 2017, virtually all media outlets, including the Australian, reported them, despite the fact that they were untested allegations. Quite right too. This was of historical significance. It would have been wrong for Exposed not to deal with this material.

On Tuesday this week, the chief reporter on Exposed, Caro Meldrum-Hanna, tweeted screen shots of some of this coverage. “This morning,” she wrote, “I’m looking forward to an avalanche of complaints about all the previous coverage by all other media outlets who reported the exact same allegation & Paul Egge’s evidence (but without contemporary interviews with him or other relevant police and judicial witnesses).”

She has a point, but there is a difference between contemporaneous reportage of a document release and the way Exposed wove those same allegations into its narrative. The core problem with those last twenty minutes of Exposed, in my view, is not the material that was run but rather that more needed to be added. The allegation needed clearer signposting and contextualisation.

The suggested narrative has holes in it. It isn’t clear how Abe Saffron benefited from the Luna Park lease — if he did. There is no firm evidence that Wran intervened in the tender process, and some evidence that goes the other way. The allegation that Wran was “pally” with Saffron rests on the word of just one witness without corroboration. These things could and should have been clearly stated, perhaps in the conversations between the reporters that are used throughout Exposed as a narrative device.

A key graphic, screened twice in those final twenty minutes, depicts the substance of Allegation 28 as a hard red line linking Saffron and Wran. But even if the transcript Egge remembers still existed and the ABC had a copy, it would still amount to hearsay evidence — what others were saying about Wran — rather than direct evidence.

All these things should have been more clearly declared in the program. Other points of view could have been included — perhaps from some of the former ministers and staffers who have been among Exposed’s critics. Other material in the Age tapes that suggests Wran wasn’t corrupt could have been mentioned.

The ABC claims the program was not adopting the allegation against Wran, merely reporting it. And it is true that the crucial passage is littered with the word “allegation.” But other material pulls against this, including highly suggestive yet evidence-free comments from interview subjects, such as “there must have been something in it for Wran.”

As Tiffen and Masters conclude, “The series offers a penetrating and precise account of police corruption, judicial shortcomings and probes behind the façade of commercial interests. In contrast, its references to political corruption remain vague, anonymous, and unhelpful… The cumulative effect… left the reviewers with a strong impression the program concluded Wran was complicit… The program makers have not succeeded in framing a conclusion that plainly stated their position.”

The tragedy is that all these things could have been fixed with relatively small changes. Had that been done, Exposed would probably still have been attacked, but it would have been entirely defensible.

And so we come to another shadow on the present. I don’t blame the program makers for the muddiness and the overreach. Anyone who has worked for years on an investigation like this grows too close to the material, and then defensive of it. That is why the ABC has its rigorous processes of upward referral, and program review and sign-off.

In this case, in the case of those last twenty minutes, those processes failed. Hindsight is a wonderful thing, of course. But I nevertheless find it hard to believe that these issues were invisible to the executives who would have reviewed the content.

Add to this failure an unimpressive appearance before Senate estimates by ABC managing director David Anderson and editorial director Craig McMurtrie, in which McMurtrie suggested that the allegation against Wran didn’t need to be backed up more thoroughly because it was not the focus of the series.

And add to that the way the ABC dealt with the Masters and Tiffen report. First, the corporate communications team released ABC management’s response selectively: to the Nine newspapers and the Guardian, as I understand it, but not to the Australian, which had done most reporting on the affair. And then it only released the Masters–Tiffen report itself, quietly, about twenty hours later.

This was a classic spin manoeuvre by the ABC: getting your own version out there first to try to frame the coverage. We expect it of politicians but not of a publicly funded media organisation.

Having said all that, I suspect the legacy of Exposed will not be the controversy about its final minutes. The coroner has indicated a new inquest may be held as the result of evidence in the program. Exposed certainly makes a compelling case that one is needed. If that happens, this is what Exposed will be chiefly remembered for.

Other sores will continue to fester, though. The lesson here is that failing to combat allegations of corruption — both in the specific, criminal sense and in the broader political sense — is a flaw with generational longevity. •

The publication of this article was supported by a grant from the Judith Neilson Institute for Journalism and Ideas.

The post The premier, the crime boss and the ABC appeared first on Inside Story.

Wran towered over his contemporaries in intelligence and acumen, but his policy achievements, while not negligible, failed to match his electoral triumphs. “I didn’t set out to achieve much, actually,” he said when asked to nominate his main achievements. “My principal objective was to keep beating the Liberals, and I’ve had amazing success at doing that. That’s been my main triumph.”

The biggest cloud hanging over Wran’s legacy was his handling of a series of corruption allegations. As biographers Mike Steketee and Milton Cockburn conclude, “while Wran’s cynicism did him no harm in the early years of his premiership, it almost brought him undone over the corruption issue. Here the cynicism was deep-rooted and absolute: corruption was not an issue because it did not affect people’s lives, as did bread and butter issues.”

The leading historian of NSW politics, David Clune, agrees. “When confronted with evidence of widespread corruption, Wran made the serious error of trying to obfuscate and cover up,” he writes. “Rather than admitting that there was a real problem that needed to be urgently addressed, he over-confidently assumed his political and parliamentary skills would enable him to defuse the issue.”

Even future Labor premier Bob Carr took Wran’s handling of corruption as a negative exemplar: “I had seen Neville Wran’s premiership tainted and compromised on probity by three distinct errors. One, the elevation of a corrupt cop as assistant commissioner. Two, the extension of the term of a corrupt chief stipendiary magistrate, Murray Farquhar. Three, being too slow to shake out police corruption… Almost every week I was to watch him struggle to ward off allegations that his administration was tainted by a laxness towards corruption.”

Allegations of corruption in the Wran era have flared up intermittently in the decades since his retirement. Most recently, early this year, the ABC series Exposed: The Ghost Train Fire aired claims about Wran’s role in organised crime figure Abe Saffron’s successful bid to lease Luna Park after the 1979 fire that killed seven people. At around the same time, former chief magistrate Clarrie Briese published Corruption in High Places, a memoir drawing on his long and distinguished career in the NSW judiciary, and Wran is one of his main targets.

“Laxness towards corruption” is one thing, but the sheer number of controversies and allegations involving Wran has persuaded some people that he was corrupt. What does the evidence say?

The brand of corruption most commonly associated with politicians is the kickback — the bribe given in return for a favourable decision. Huge stakes often hang on how governments respond to development proposals or land rezoning applications, for instance, and a sympathetic politician on the inside can make a huge material difference.

Despite some gossip, neither during nor since Wran’s years as premier has any evidence emerged that he received bribes or sought other forms of personal enrichment. That’s not to say he was unaware of the patronage potential of government decisions — for political advantage, though, rather than personal gain. In particular, Wran treated media proprietors the way the Morrison government treats swinging electorates: as targets of inducements intended to attract support in return.

The most important example is his decision to grant the Lotto franchise to a consortium whose members included companies run by Rupert Murdoch and Kerry Packer. It was a highly controversial choice, and defied NSW Labor Party policy. Defenders of Wran have argued that the marketing skills of the Packer and Murdoch companies, by guaranteeing that Lotto was highly successful, ensured that more revenue flowed to the state than would otherwise have been the case. But it’s also true that the franchise gave those companies a reliable, government-guaranteed source of income.

Wran’s wish to maintain good relations with the major media companies led him to offer Fairfax the chance to participate in Lotto as well, but its board felt that entering into an enterprise with the government it professed to hold to account would not be proper. Packer and Murdoch didn’t feel so encumbered.

Wran also helped Packer in other ways. When the mogul was trying to establish World Series Cricket, Wran’s government overruled the Sydney Cricket Ground Trust to give him access to the ground, and helped finance the construction of the light towers that enabled play to take place in front of prime-time TV audiences. Without calling for competitive tenders, the government also extended his leases at the Smiggin Holes and Perisher Valley ski resorts until 2025.

These decisions have no hint of personal financial gain, but they do suggest that Wran was happy to use the government’s prerogatives to advance Labor’s interests, and that he wouldn’t be inhibited by procedural niceties.

Wran inherited a corrupt police force. During the eleven-year premiership of his predecessor, Robert Askin, writes organised crime expert Alfred McCoy, New South Wales “endured a period of political and police corruption unparalleled in its modern history.” Although figures on illicit activity can never be authoritative, McCoy estimated that the annual turnover from organised crime in Sydney totalled $2.2 billion in 1975, with income from various sources of gambling comprising the major share, and narcotics $59 million.

When Wran was elected in May 1976, the corrupt Fred Hanson was police commissioner and a member of the panel that would nominate Merv Wood as his successor. A majority of ministers preferred Brian Doyle, who had a reputation of fighting corruption, but Wran wanted Wood, and in the end his ministers complied.

Over the following few years, Wood proved himself less than enthusiastic in pursuing organised crime. In November 1977, when Wran responded to public clamour by ordering the shutting down of Sydney’s long-tolerated illegal casinos, Wood’s public response was that such an action would be “inhumane” because 300 employees would lose their jobs just before Christmas.

In parliament in April 1979, Liberal John Dowd asked Wran why a 1977 report on the organised crime figure George Freeman had not been acted on. Wran claimed he hadn’t seen any such report, and promised that if it existed, which he doubted, he would release it to the news media. To Wran’s intense embarrassment, Dowd then produced a copy of the report. Wood was not only failing to fight police corruption, but he had deeply embarrassed the government by not alerting Wran to its existence. Wran subsequently released part but not all of the report.

Soon after, Wran announced that an anonymous informant had compiled a dossier seeking to prove that an association existed between Wood and a major illegal casino operator. Wood resigned a week later, ostensibly on the grounds of avoiding embarrassment to the police service. Months later Wran announced that the investigation had found the allegations of corruption to be politically motivated, although he never released the report.

Wran’s support for Wood’s appointment as commissioner could simply be bad luck — a case of taking the easier course of following the committee’s recommendation — and didn’t necessarily indicate he was indifferent to police corruption. The government was riding high electorally at the time, and although Wood’s misdeeds intensified attention on corruption, they did little or no damage electorally.

What did eventually transform the politics of organised crime in New South Wales was the murder of Donald Mackay on 15 July 1977. Mackay, a pillar of the Griffith community, had been nominated as the Liberal candidate in the next state election. Griffith was at the centre of a large marijuana-growing industry directed by organised crime figure Robert Trimbole, and Mackay’s anti-drugs campaigning was seen as an increasing nuisance.

Three weeks after what was officially labelled Mackay’s “disappearance,” a royal commission into drug trafficking was set up under Justice Philip Woodward. A year later, Woodward revealed how farcically incompetent the police investigation had been. Abundant material evidence made clear that Mackay had not disappeared but had been the victim of a violent attack.

In his final report, Woodward concluded that Mackay had been killed by a mafia-style organisation that was growing marijuana in Griffith. Several of its key figures had mixed socially with local police; indeed, former police chief Hanson used to go duck shooting with Trimbole. On the night the report was released Trimbole threw a large party at his home and boasted that “the commission can’t touch me or charge me in any way.” The NSW police investigation into Mackay’s murder made no progress.

Some years later, though, a Victorian police investigation into other crimes revealed that Mackay had been killed by a hitman, hired on instructions from Trimbole, because of the problems he had been causing the criminals.

Mackay’s murder had occurred just over a year into the Wran government but re-emerged in its last year, 1986, after the hitman’s conviction in Victoria. After a group of Griffith citizens critical of the NSW police’s inept investigation pressed for an inquiry, a delegation from the town, including three of Mackay’s children, had a three-hour meeting with Wran. Afterwards, the leader of the group described the encounter as a calculated process of intimidation, including personal abuse by the premier.

Wran did announce a new inquiry. But he also said, “It’s about time people in this country stopped yap, yap, yap and went along and put up, and that applies to the people of Griffith.”

The inquiry, headed by Justice John Nagle, reported in December 1986. As well as directing scathing remarks at the police, Nagle also brought into clear public focus a letter written by a former minister in the Whitlam government, Riverina resident Al Grassby. In 1980, Grassby had tried to persuade some Labor MPs to read into Hansard a document he had written alleging that Mackay’s widow and son and their solicitor had conspired to murder Mackay. The letter was the basis of a front-page article in the Sydney Sun-Herald in August 1980.

Political insiders had long known of Grassby’s links to Griffith criminals. Astonishingly, Wran appointed him to a community relations position in February 1986. Gary Sturgess, an anti-corruption campaigner and chief of staff to opposition leader Nick Greiner, told the Sun-Herald he was “sickened” that “Wran would take on a man with such obvious links to the mafia.” During a strong attack in parliament Greiner argued for Grassby’s activities to be included within the scope of the Nagle inquiry, but the government made no response.

If Wran could plead bad luck in appointing the corrupt Merv Wood, his problems with another police officer, Bill Allen, were all of his own making. Apparently impressed by the way Allen cleaned up a tow-truck scandal, he twice promoted Allen over more senior officers and against opposition within the force. Thanks to this patronage, Allen became deputy commissioner in August 1981.

Allen’s brazen behaviour in the job suggested he felt untouchable. On numerous occasions he met with Abe Saffron at police headquarters. He and his family accepted free trips and hospitality in Macau and Las Vegas from illegal gambling interests. He tried to bribe a junior police officer with five payments amounting to $2500 in cash.

Allen’s career came to an abrupt end in 1982 after the release of a damning Police Tribunal report. Then, according to Steketee and Cockburn, the government made “what amounted to a deal with Allen.” In return for not contesting the charges, he was demoted to sergeant first class but allowed to retire and retain his pension. This, of course, meant that his conduct was never publicly explored.

The government had just secured a huge victory in the 1981 election, and was in a position of political strength. But the scandal produced the first instance of the extravagant, partisan invective that became more common in later years. When National Party Leader Leon Punch said that Allen was Wran’s bagman, Wran replied in spades: “Last week I called you a piece of slime. Now I call you a cur, a coward.” This unedifying spectacle covered the fact that no effort was being made to probe Allen’s actions and relationships.

Wran later complained that the Allen affair “was built up into a big issue,” and that Liberal prime minister Malcolm Fraser “went on a destruct and destroy course” against him, thus thwarting his hopes of moving into federal politics. This is baseless special pleading: a blatantly corrupt deputy commissioner would always have been a big issue, and it was commonplace for federal ministers to brief journalists about state developments.

When Clarrie Briese was appointed chief stipendiary magistrate in March 1979, his predecessor invited him to dinner. Briese later concluded that all four of his fellow diners — retiring chief magistrate Murray Farquhar, police commissioner Merv Wood, lawyer to organised crime Morgan Ryan, and High Court judge and former federal attorney-general Lionel Murphy — were corrupt.

Evidence of the corruption of Wood, Ryan and Farquhar manifested itself immediately. Farquhar’s last case involved drug charges against two men, Roy Cessna and Timothy Milner, represented by Ryan. Wood intervened by radically reducing the estimated value of the drugs seized by police, which allowed Farquhar to deal with the matter summarily — and more lightly — rather than referring it to a criminal trial. Before hearing the case Farquhar thoughtfully shifted to a courtroom with no sound-recording equipment — a move, writes Briese, that left the police prosecutor indignant and helpless.

Of all Farquhar’s suspect cases, this is the only one in which the corrupt motive seems to have been purely financial. Otherwise, his motive seems to have been primarily political or personal.

Farquhar’s judicial dexterity would first have impressed Wran while Labor was still in opposition. News Limited wanted to build a printery on land it owned in Botany, but the local council was planning to convert the area to residential use. Labor offered to intercede on behalf of News — rather zealously, it seems, for in 1975 charges were laid against the local state MP, Laurie Brereton, and Labor official Geoff Cahill for attempting to influence four Labor councillors. Brereton allegedly offered them money if they voted the right way and disendorsement if they didn’t.

Farquhar found the evidence against Cahill too weak and dismissed his charge. But while he found a prima facie case of bribery against Brereton, he deftly decided that the Local Government Act took precedence over the common law crime of bribery, and that under that act a charge had to be laid within six months, meaning it was now too late to proceed. Moves were made to revive the prosecution, but after Labor won the 1976 election the new attorney-general, Frank Walker, ruled on a technicality that the case could not proceed.

Brereton escaped a trial. It is a leap to then declare, as Wran’s former press secretary Brian Dale did, that the allegations were “tested and rejected in court.”

The magistrate’s next unorthodox intervention came after Wran had become premier. In a unique and vexatious private prosecution, Sydney solicitor Danny Sankey issued a summons against Gough Whitlam and his ministers Jim Cairns, Rex Connor and Lionel Murphy for conspiring to deceive the governor-general over the loans affair, which had created enormous controversy in the lead-up to Sir John Kerr’s dismissal of Whitlam. The case opened in the Queanbeyan Court on the Monday before the 1975 federal election and continued — despite having little or no legal merit — until early 1979.

In 1977 the case was being heard by magistrate Darcy Leo. A Labor MP had attacked Sankey and Leo in parliament, and Leo had sued the Sydney Morning Herald for defamation for its report. Farquhar visited him in Queanbeyan and convinced him to withdraw from the case. Farquhar took over, but Sankey appealed against the change and Leo was reinstated. So Farquhar’s intervention didn’t materially change things, though there was speculation that his aim was to help the Labor defendants.

Wran’s devotion to Farquhar was tested in March 1978, when the National Times reported that George Freeman had been ordered out of Randwick racecourse as a disreputable character, having entered as a guest of Farquhar. Farquhar argued that he had bought the ticket at the request of a doctor, Nick Paltos, and didn’t know it was for Freeman. (Paltos was later convicted and imprisoned for drug offences.)

Justice minister Ron Mulock didn’t want Farquhar to return to the bench until he had given a satisfactory account of his relationship with Freeman. Farquhar initially declined on the grounds that he was suing the newspaper for defamation. Wran thought this was a valid reason; Mulock did not. Wran called Mulock to his office, where he was confronted by half a dozen senior ministers. Mulock stood his ground. As he left, Wran said, “Well, you’re on your own now and it won’t be forgotten.” Eventually Farquhar resumed his duties.

A year earlier Farquhar had made another decision that was to become a much bigger media focus than any other corruption issue during Wran’s premiership.

On 30 April 1983, the ABC’s Four Corners reported that a charge of embezzlement against rugby league chief executive Kevin Humphreys had been dismissed because Farquhar, professing to be acting on Wran’s instructions, had pressured a magistrate to drop the case.

Wran immediately sued the ABC for defamation and used the prospective court case as a reason for not answering any questions. A week later the magistrate who dismissed Humphreys’s case, Kevin Jones, made a statement that Farquhar had told him that “the premier has contacted me. He wants Kevin Humphreys discharged.”

This confirmed the central premise of the program: that Farquhar had told other magistrates that the premier was on the phone and he wanted Humphreys discharged. Clearly the most important sources for the program were the magistrates who heard Farquhar say this. Attorney-general Paul Landa demanded Wran step down and call a royal commission, which Wran did. Landa, and perhaps some other ministers, appear to have thought that Wran was probably guilty.

After two months of public hearings attracting saturation media coverage, chief justice Sir Laurence Street concluded that Wran was not involved, and he resumed the office of premier. One telling piece of evidence in Wran’s favour was that his diary showed that at the time Farquhar said he was on the phone the premier was in a meeting with Treasury officials and his economic advisers.

Street also ruled that Farquhar had tried to pervert the course of justice and should stand trial. Farquhar was subsequently convicted and served time in prison. Humphreys had to stand trial again, was convicted, and had to pay a fine.

The exoneration of Wran has often led his supporters to be dismissive of the whole Four Corners report. Former Wran staffer Graham Freudenberg, for instance, asserted in his memoirs that “the Four Corners ‘re-enactment’ was based on a fabrication… The ABC swallowed it hook, line and sinker.” The reporter, Chris Masters, maintains that “in all important respects the program was correct.” It accurately reported that there had been a perversion of justice, and that Farquhar had invoked Wran’s name.

On the day of his acquittal Wran held a media conference targeting the ABC and its “blot on the history of so-called investigative reporting.” On four or five occasions journalists asked Wran questions relating to Farquhar and the fact that the chief magistrate had invoked the premier’s name. Each time Wran redirected the question to the sins of the ABC.

Wran had sat through testimony by several magistrates that Farquhar had used his name. He also heard testimony about the close relationship between George Freeman and Farquhar, which showed the magistrate had a very profitable betting relationship with the crime figure. (This also showed that Farquhar had lied to Wran and Mulock about his relationship with Freeman a few years earlier.)

Yet Wran refused to utter a word of criticism of Farquhar, and neither he nor Street showed any curiosity about Farquhar’s motives for his corrupt behaviour. Nor did Wran show any interest in what Farquhar’s behaviour revealed about the administration of justice in New South Wales. As Masters commented, all who knew the case — including much of the NSW magistracy — believed the premier was involved. That belief “was a cancer that had been eating away at the NSW judiciary for six years.”

Many observers have said that the royal commission brought an enduring change in Wran’s attitudes, permanently reducing his enthusiasm for the role of premier. It also signalled an enduring rise in the prominence of corruption issues in NSW politics.

While Wran was still standing down, federal sources informed his deputy, Jack Ferguson, and police chief, Cec Abbott, of evidence that the state’s prisons minister, Rex Jackson, was accepting bribes connected with an early-release scheme he had introduced. Half-hearted internal investigations followed.

After Nick Greiner aired the allegations of bribery, Ferguson announced an inquiry. Then, in October 1983, federal opposition leader Andrew Peacock made much more specific allegations. Finally, the Fairfax weekly, the National Times, obtained incriminating information from Federal Police phone taps and on the morning of 26 October put detailed questions to the premier’s and the prison minister’s offices. That afternoon Wran, back as premier, demanded Jackson’s resignation.

The government’s stonewalling had certainly not disposed of the Jackson issue, and the fact that it was constantly on the back foot possibly increased the damage. Jackson eventually became the first prisons minister in Australian history to go to prison. Wran knew nothing about his minister’s corruption, but the resulting scandal further heightened the tension around corruption issues.

Allegations of corruption were becoming more frequent. When the National Times reported that secret police tapes revealed the identity of a Mr Fix-it for organised criminals, the Wran government’s initial reaction was to “feign disinterest,” which — according to Steketee and Cockburn — had become its favourite strategy.

At the same time, two other new allegations of corruption were made: investigative journalist Bob Bottom said that a NSW magistrate had conspired with a criminal figure to have a charge dismissed; and deputy federal National Party leader Ian Sinclair said that figures connected with the NSW government had said charges against him could be dropped if he paid $50,000.

Sensing that both claims were false, Wran moved immediately. He set up a commission of inquiry under Justice Ronald Cross to examine these two charges as well as the Jackson bribes. Cross disposed of Bottom and Sinclair quickly and absolutely. “The Spanish Inquisition would not have convicted the devil himself” on the kind of evidence Sinclair had given, he declared.

During the Cross commission, Bottom handed over a thick file on NSW police phone taps. The reaction was swift, Steketee and Cockburn write: “Three days later, the government announced through the Sunday newspapers new laws making it an offence to knowingly be in possession of a transcript or other records… of a private conversation illegally heard or recorded by a listening device.” Facing a penalty of up to five years’ jail, Bottom took the tapes to Melbourne, which is why this essentially New South Wales story was first published in the Age.

The last big corruption scandal of the Wran era came to be known as the Age tapes. It began dramatically on 2 February 1984 with a front-page story titled “Network of Influence,” based on tapes and transcripts gathered illegally by NSW police officers. No doubt sensitive to the possibilities of a defamation suit, the Age didn’t mention any names, focusing on audio recordings of Mr Fix-it and his dealings with a judge. Later, under parliamentary privilege, the crime figure was revealed to be Morgan Ryan and the judge Lionel Murphy.

Even before the names emerged, Wran was condemning the publication using two main lines of attack. The first was to say the tapes were phoney. The second — not necessarily consistent with the first — was to declare that those responsible for the taping should be jailed given that it was “the most illicit, illegal and despicable affair in Australian history.” Wran focused entirely on the illegality of the taping and, beyond calling them fakes, showed no interest in the tapes’ contents.

On the basis of Wran’s statements, the officers in the Crime Intelligence Unit who had made the recordings decided to deny all involvement. Much of the equipment was destroyed, as were many tapes and transcripts. Eventually a royal commission under Justice Donald Stewart offered the police officers immunity from prosecution, and later decided the tapes were genuine but the officers’ summaries were not sufficiently reliable to be used in criminal proceedings. Wran’s interventions had caused not only a long delay but also the destruction of much potentially valuable evidence.

The phone tapping was not the rogue operation that Wran’s comments suggested. Its origins went back to 1967, when police commissioner Norm Allan was looking for more effective ways to attack organised crime. NSW police were impressed by the FBI’s techniques for targeting and tracking such suspects, and a series of police commissioners handed the system down to their successors.

Justice Stewart concluded that some convictions would never have occurred if the unlawful interceptions had not helped in the gathering of evidence. Journalist Evan Whitton offered two cases: the first, the arrest in January 1978 of Wood’s old sculling partner, Murray Stewart Riley, and his conviction, with nine others, for attempting to import drugs; the second, the arrests in Bangkok of Warren Fellows, Paul Hayward and William Sinclair on heroin charges in October 1978 based on information gained by a phone tap on notorious crime figure “Neddy” Smith. As Justice Athol Moffitt, who led the first royal commission into organised crime in 1973, wrote later, “It seems clear the illegality of the tapes was not complained of for some years until politically damaging contents were published in the Age.”

With the fallout from the Age tapes threatening to run for months, and with the respite offered by Justice Cross’s findings on the false allegations, Wran seized the political initiative and called an early election for March. Labor won, but with a much reduced majority. Afterwards Wran made the double-edged boast that if he had had the material Greiner had, he would have won easily, and that the opposition dropped the ball by taking its eye off corruption issues.

Justice Murphy’s figuring in the phone taps began a series of political and judicial processes to explore his behaviour. A Senate committee was convened in late March 1984 and reported in August, split along party lines. A four-person second committee was formed in September and split three ways, with the chair, Labor’s Michael Tate, and Australian Democrat senator Don Chipp concluding that on the balance of probabilities Murphy was guilty of misbehaviour sufficiently serious to warrant removal from the bench.

On the basis of testimony given to the Senate committees by Briese and by Justice Paul Flannery, the federal director of public prosecutions, Ian Temby, decided to lay charges against Murphy. The first trial began in June 1985, and in July the jury found Murphy guilty of one charge but not the other. In a second trial in April 1986, Murphy was found not guilty, but controversially chose to make an unsworn statement — a procedure introduced to protect the illiterate — that allowed him to avoid cross-examination. Murphy wanted to return to his position on the High Court, but several of his fellow judges resisted. A parliamentary inquiry into allegations of misbehaviour was closed down when Murphy was diagnosed with cancer, and his death in October brought a huge outpouring of sympathy.

With the election behind him, and with his friend Murphy squarely in legal and political sights, Wran’s rhetoric became increasingly reckless. After Briese testified at the second Senate committee, Wran said, “His evidence raises grave questions about him, his conduct and his future. Obviously a very large question must now be hanging over him and his position as chief magistrate.” After Murphy was found not guilty at the second trial, Wran said of Briese, “He hasn’t enjoyed my confidence for a while but all the less because of this verdict.” He also suggested Briese was having secret dealings with the Liberal Party.

Wran’s statements moved several figures to come to Briese’s defence. Federal Labor attorney-general Lionel Bowen said Briese had his confidence, and Sir Laurence Street and five other Supreme Court judges wrote to Wran saying there was not the slightest justification for any action against Briese. Temby decided Wran should be charged with contempt of court.

Despite his outraged rhetoric, it should be remembered that Wran does not figure directly in the police tapes and transcripts at all. Ryan is heard talking to Farquhar, to Murphy and to Saffron. Wran figures only as a shadowy presence whom others talk about. Indeed at one point, Ryan tells a friend that Wran is straight.

The only claim against Wran himself in this controversy was made by Senior Sergeant Paul Egge, who said he had seen a transcript of Wran saying he would help Abe Saffron get the Luna Park lease. There is no trace of this transcript anywhere, and Egge said it was destroyed by his supervisor because it was “too hot.” This is the only such reference I have seen to a transcript being destroyed because it was “too hot.”

In sum, the Age tapes provided no evidence of Wran engaging in any corrupt behaviour. But his violent rhetorical responses were central to how the public controversy developed, and undermined any hope of a rational and informed debate.

Corruption became a running sore in the last years of Wran’s premiership. The simplest explanation for why this happened is that Wran himself was corrupt. Some closely involved people decided this was the case: Briese says that he, investigative reporter Bob Bottom, and state Labor minister Barrie Unsworth all “came to suspect that Wran himself was part of the problem of corruption in NSW, and for that reason was not interested in a conclusion.”

But Briese produces no evidence. He relates how, when he became chief magistrate, Farquhar asked whether he would handle sensitive cases for the premier, and said that such requests would come through Morgan Ryan, but Briese later writes that no such cases ever came.

When we are trying to decide whether a political leader or a government is corrupt, we are faced by two opposite but equally important obstacles. One is the secrecy surrounding corrupt behaviour. The other is that false accusations and groundless rumours aren’t unusual, especially about successful politicians.

Despite gossip to the contrary, no persuasive evidence exists to support the view that Wran was corrupt in the sense of seeking personal financial gain. Nor is there persuasive evidence that Wran directly or indirectly sought to advance any criminal interests, or had any direct or indirect relationships with such criminals.

What is offered as evidence of Wran’s corruption can sometimes be laughable. Herald Sun journalist and co-author of Underbelly, Andrew Rule, recounts that a businessman who knew Wran saw Saffron waiting in a brasserie presumably to have lunch with someone, then saw Wran walk in, look around and walk out again.

The greatest question mark hanging over Wran’s behaviour was his loyalty to Murray Farquhar. Wran never offered a word of criticism, even though staying silent flew in the face of clear evidence, defied colleagues and risked a political price. Perhaps this was because they had had corrupt transactions. If so, there were very few of them (although that would not excuse them) and they would amount to a very tiny tip of a much larger iceberg of controversy.

Wran’s ten-year premiership was a period of transition. Before it came the entrenched, unchallengeable corruption of the Askin era. A decade after Wran’s departure, important reforms had been enacted, creating a politically independent director of public prosecutions, an Independent Commission Against Corruption, the very thorough Wood royal commission into police corruption, and reforms to the police force.

Characteristically, Wran vociferously criticised the establishment of ICAC and predicted an incrimination free-for-all. “Each one will feed the crocodile in the hope that if he feeds the crocodile enough, the crocodile will eat him last,” he said. “Under cover of fighting the evils of crime and corruption, we may discover we have forfeited the basic freedoms which distinguish the democratic system from a totalitarian state.” This is not only an inaccurate prediction of how ICAC developed, it also neatly overlooks that such bodies also protect citizens’ rights against the abuse of executive power.

Wran’s recalcitrance on corruption issues is best explained by his political strategies and inclinations. He played party politics harder than most. Justice Donald Stewart, in many ways an admirer, also thought “Wran was a good hater.” Wran played his politics so hard that he refused even to speak to Nick Greiner, except once at a public function in 1985 when he roundly abused him.

Wran’s political strategy was to control the public agenda. Corruption allegations were a threat to this aim, and so his first inclination was to contain their damage. But this meant that he consistently gave a higher priority to political expedience than to public accountability, and his responses more often hindered than helped any efforts to increase transparency and secure meaningful reforms.

Wran’s strategy was not simply an attempt at political pragmatism that failed. It resulted from a moral compass indifferent to the larger issues that corruption posed for the health of a democracy. •

The post Was Neville Wran corrupt? appeared first on Inside Story.

At the company’s AGM, directors faced a barrage of questioning from gambling reformers. One asked how much Crown and Packer knew about the experiences of those harmed by gambling, and particularly gambling on poker machines. Packer professed to be sympathetic: Crown endeavoured to be a good corporate citizen, he said, “but we are not perfect.”

He wasn’t wrong.

Shonica Guy’s case against Crown didn’t succeed, but the allegations of machine tampering (which Packer labelled “a lie”) led to a fine of $300,000 by the Victorian Commission for Gambling and Liquor Regulation. At that stage, this was the largest fine ever imposed by the Victorian regulator. The China accusations and Crown’s allegedly poor treatment of staff would continue to haunt the company for years, all the way to the Victorian royal commission, led by Ray Finkelstein QC.

Yet Packer remained upbeat. His confidence in the success of the Barangaroo development on Sydney Harbour was growing daily, he said. Crown’s well-cultivated political connections and network of influence appeared impregnable.

Then, in mid 2019, long-circulating rumours about Crown’s operating practices coalesced into a series of sensational media reports in the Nine newspapers and TV network that alleged extensive money laundering, poor treatment of Crown’s staff in China, and criminal infiltration of the casinos in Melbourne and Perth.

Crown denied these reports, going to the extent of taking out a full-page advertisement in major newspapers signed by the board. Nonetheless, it was clear that the company had a case to answer. In Sydney, the resulting Bergin inquiry lifted the lid on money laundering and criminal infiltration; as a result, Crown’s Sydney casino has yet to open.

The bad press continued this week when Adrian Finanzio SC, senior counsel assisting the Victorian royal commission into the casino and casino operator, made his final submission. In his view, it was open to the commission to conclude that Crown was not suitable to operate the casino and that it was not in the public interest for it to do so. In effect, he was saying that Crown should lose its licence on multiple grounds.

Unlike the Bergin inquiry, which concentrated on Crown’s money laundering record, Victoria’s royal commission expanded its gaze to include issues such as Crown’s application of its Responsible Gambling Code of Conduct, its breaching of the Casino Control Act by allowing patrons to convert credit card purchases into gambling chips, the underpayment of gambling tax, Crown’s combative relationship with the regulator and other authorities, and the doubtful feasibility of the reform program that Crown has initiated.

As to money laundering, Finanzio argued that “the preponderance of evidence is that Crown has significant, current vulnerabilities to financial crime and only a basic or preliminary state of preparedness to counter money laundering and financial crime.”

It was also clear that Crown failed to produce documents for the Bergin inquiry until months after they should have been provided. Finanzio applied the analogy of an “accused in a criminal trial standing behind the onus of proof and taking every point to avoid conviction” — except that Crown has an obligation to meet a test of character, honesty and integrity. In fact, Crown had demonstrated the opposite, even quite recently, and some employees who had clearly failed to meet those standards remained in the organisation.

Finanzio also pointed out that the Bergin inquiry had been confined somewhat narrowly to certain aspects of Crown’s activities when it outlined potential reforms. The Victorian commission had found a much deeper set of problems “of culture and risk… through more levels of the organisation than the Bergin inquiry could ever have anticipated.” Indeed, everywhere the commission had looked “it has unearthed behaviour that is deeply troubling and obviously ingrained.”

Bergin associated Crown’s culture and governance problems with the influence of James Packer and his company CPH. Because of this, Packer, who retains a significant slice of the Crown shares, is prohibited from exercising his influence via CPH until at least 2024. Finanzio went further, submitting that no shareholder in Crown Melbourne should exceed a 5 per cent interest without permission from the regulator. The Packer influence, if it remains, looks to be further diluted.

Now that its initial hearings are over, the royal commission has two basic questions to deal with. Is Crown a suitable entity to operate the casino — and if not, could it become one? And is it in the public interest for Crown to continue to operate the casino as its licensee?

There is a strong case that Crown is not a suitable operator. Bergin found that the path to reform would be difficult and uncertain. To say this has been reinforced by the Victorian evidence and submissions from counsel is to put the situation mildly. Finanzio also saw many impediments to Crown’s rendering itself suitable, not least the continued tenure of Helen Coonan, current executive chair, and Xavier Walsh, chief executive of Crown Melbourne.

And the public interest in taking away Crown’s licence? Adrian Finanzio argued strongly that many matters need to be considered. Employment and state revenue are significant, but so too is the loss of confidence among many stakeholders, not least the people of Victoria. What action Crown could take to restore that confidence is difficult to imagine.

It’s hard to see how anything other than a loss of licence could convince anyone that gambling regulation is taken seriously in Victoria, or Australia more generally. Crown’s longstanding disregard for its responsibilities, and its recurring misconduct and breaches of regulation and legislation are breathtaking, and at the most serious end of the spectrum of misconduct.

As Finanzio put it, “It is open on all of the evidence for those regulating Crown Melbourne’s affairs to doubt whether they could ever trust Crown Melbourne again. The Casino Control Act demands that a licensee is suitable, rather than one in transition to or on a journey to suitability. The Casino Control Act contemplates that the casino licence is reposed in a person who is capable of maintaining the trust and confidence of the community and the credibility, integrity and stability of those operations. Crown is neither of those things.”

Crown (and other parties with leave to appear) will have its chance to argue its case when the commission reconvenes on 3 August. With premier Dan Andrews pledging to accept the commission’s recommendations, the stakes are high — not just for the company’s value and credibility, but also for the future of Australian gambling regulation. Politically, it would be difficult for the government to do anything but accept Finkelstein’s advice.

Whatever else occurs, the seemingly impregnable edifice of Crown, constructed from influence, compliant political and regulatory institutions, and a disregard for public perceptions, has been breached. There is a good chance it may end up as a monument to failed ambition, hubris, greed and arrogance. We shall see. •

The post Can Crown go down? appeared first on Inside Story.

In reality, though, most domestic abuse involves coercive control: a pattern of physical, sexual, financial and psychological abuse that one person (usually a man) uses to control and dominate another person (usually a woman, and usually an intimate partner).

This week a multi-party parliamentary committee recommended that New South Wales become the first jurisdiction in mainland Australia to criminalise coercive control. (Tasmania introduced related offences sixteen years ago.) After nearly a year of research and consultation, a committee of Liberal, Labor, Greens and One Nation MPs unanimously recommended that coercively controlling a current or former intimate partner should become a crime.

The committee didn’t specify the precise wording or scope of the new offence. But because these laws exist in Britain and elsewhere — as the committee highlights in its report — we can expect two key elements to feature.

First, like stalking laws, a coercive control offence will focus on a pattern of abuse, not on isolated incidents. This means the justice system will be forced to see abuse the way victims experience it, as an ever-present threat. This focus on repeat behaviour will present challenges to investigating police. But it will also deal with a key shortcoming in the main response to family violence: intervention orders. These orders sometimes result in women being mistakenly identified as the primary aggressor, because they limit police’s consideration to the immediate event (disregarding the possibility that her actions, if any, may have been taken in self-defence). By looking at the whole of the relationship, rather than just the most recent incident of violence, the new offence provides a better lens for assessing who is the real abuser.

Second, the new offence will outlaw psychological, emotional and financial abuse. Isolation from family and friends, degrading and humiliating conduct, and deprivation of necessary financial resources will be prohibited. This is behaviour that has traditionally fallen outside the scope of the criminal law. The offence won’t, though, apply to reasonable behaviour, and it will only apply if the offender intended the behaviour to cause harm to the victim or if a reasonable person would have known that harm was likely. Concerns that the new offence will prevent parents from disciplining their children, or spouses from taking the family car without the consent of their partner are wrong and inflammatory.

Other elements of the new offence are less settled. For instance, while overseas jurisdictions limit their coercive control offences to familial relationships, or some more narrowly to intimate partners, the committee left open the possibility of including broader relationships.

It is also important to realise that as groundbreaking as this proposed reform is, in some ways it isn’t new. Most states and territories already indirectly criminalise coercion, psychological abuse, control, emotional abuse and financial abuse when it occurs as a breach of an intervention order. What is novel is that the new offence wouldn’t require victims to first go to court and obtain an intervention order before the abuse became criminal. Instead, they could directly seek the assistance of police, who would now be better able to respond.

So, how might this new law work in practice? The case of Natalie Curtis, who lived with her husband just east of London, is illustrative. By the end of their six-year relationship, he was calling her up to forty times a day, threatening to kill her, throwing her belongings out of the house and smashing their furniture. He blamed Natalie for his behaviour.

As is often the case, the relationship didn’t start out that way. He initially seemed attentive and caring, but over time that attentiveness became surveillance, and care became control. Natalie describes it as “a drip effect, each event gets a bit worse and a bit worse… And then someone has control over you.” She developed severe anxiety and panic attacks, and eventually went to the police. Her husband was charged with controlling or coercive behaviour and ultimately sentenced to two years’ jail.

Of course, some of his behaviour, such as threats and property damage, was already criminal. But the justice system, viewing them in isolation, often doesn’t take these offences seriously enough. In fact, two years before Natalie left him for good, her husband received a suspended prison sentence for threatening to kill her. A few weeks later, after he promised to reform and begged her to take him back, they moved back in together. It got worse after that.

To be clear, criminalising coercive control is not a panacea for the shadow pandemic of family violence that costs our country lives, untold misery and billions of dollars every year. And there are still important tasks ahead. The NSW committee recommended establishing a taskforce to oversee careful drafting of the new offence, to consult about its final form, and to monitor its implementation. That taskforce will need to deal with concerns about the ability of our justice systems to deal with domestic violence and “invisible” harms. The new law must also be drafted and implemented carefully to meet the needs of Indigenous Australians.

The committee made it clear that a new offence was contingent on broader, systemic reforms occurring concurrently: widespread community education campaigns; extensive training for everyone whose work will be affected by the new law; and additional resources for domestic violence services and criminal justice agencies to help them absorb the extra workloads created by the new offence.

With nearly all states and territories now considering whether to criminalise these forms of family violence, New South Wales leads the way. A new law that directly outlaws these forms of abuse will give effect to what victims, frontline workers and researchers have known for decades: that coercion and control, rather than physical violence, are the core of domestic and family violence. •

The post Shadow pandemic appeared first on Inside Story.

Titley would have needed to prove a lack of consent and doing that required physical evidence of a struggle. Not just minor signs, either: the contemporary textbook Medical Jurisprudence, Forensic Medicine and Toxicology advised that “slight traces of a struggle… on the thighs and breasts” should be treated as evidence of the woman having failed to use “all her strength in her defence.” Indeed, it noted, members of a “certain class of woman” were known to “make a point of a show of resistance before yielding.”

The question of consent would also have thrown the burden of proof and the attention of the court onto Titley herself. Being orphaned and poor (she was a house cleaner in the inner-Melbourne suburb of Emerald Hill), and having previously had a boyfriend, she might well have been accused of being unchaste or belonging to that “certain class of woman.” Being seen as promiscuous meant being considered “common property,” and to this extent, outside the reach of rape laws. After all, rape was a crime of trespass against another man’s property, either her husband or father. A similar logic underpins a still-common belief that sex workers or women who enjoy sex with multiple partners can’t be raped: a woman who belongs to no man belongs to every man.

But this is not just another miserable story of women’s oppression in the Victorian era. Frances Titley fought for her rights in the civil courts and won in a way that we might not have anticipated. By proving that Moltine had promised to marry her if she became pregnant, she was able to sue him for breach of promise aggravated by “seduction” (or coerced sex).

This charge shifted the focus on to Moltine’s actions and words. He bore the burden of proving that he had neither promised marriage nor “seduced” her. And, like the vast majority of defendants sued in this way, he lost. If he had been living in the United States, where seduction in the late nineteenth century was a criminal offence, he would have gone to jail. In Australia, he was subject to the unusually large damages of £200 (double the average for the century). As the Australian reported at the time, “lovers of justice would be pleased.”

Titley v Moltine came to mind when the NSW government announced earlier this month that it would adopt changes to the criminal law’s sexual consent provisions recommended by the state Law Reform Commission. Among other things, the law will incorporate an affirmative model of consent and codify a person’s right to withdraw consent at any point.

The announcement sparked the usual tired debate about the balance between the rights of the victim and the presumption of innocence, but nobody has questioned whether consent itself should be reconsidered. While I wouldn’t recommend going back to legal actions based on “seduction,” Titley v Moltine is a reminder that consent is not the only way the law could distinguish sex from rape.

Consent’s problems are evident in the way it increasingly comes with qualifiers — affirmative consent, enthusiastic consent, communicative consent — all of which are attempts to carve out sexual agency for women from a concept that consigns them to passivity. With its origins in contract law, consent is a cumbersome, clod-footed category when applied to the delicate shadowlands of sex, power and desire.

My jurisprudence students are always surprised when I tell them that feminists have been the most trenchant critics of this use of consent. Prompted by the women’s movement of the 1970s, legal theorists like Catharine MacKinnon declared the focus on consent to be a major cause of the injustices experienced by rape survivors in the courts.

Although consent promises to focus the court’s attention on women’s sexual will, MacKinnon argues, it actually enshrines the worst gender stereotypes. By accepting that “man proposes, woman disposes,” it preserves a power imbalance in which men have sexual will and women merely permit, or don’t permit, sex — a very low bar for sexual agency.

The problem goes back to consent’s origins in contract law. Whereas the temporal boundaries of sex are nebulous, contracts govern the delivery of goods within a specified period. This gives rise to the popular idea that men are “owed” sex if consent has been granted. If a man can show that a “free and voluntary agreement” was reached at the beginning of an encounter, then he can easily claim good faith on his part.

What goods was the law imagining would be delivered when it sought to regulate sex through contract law? The woman’s body, of course — in accordance with the common law tradition of treating women as the property of their fathers and then their husbands. By the late nineteenth century, though, a series of legislative reforms had begun to shift ownership of a woman’s body (or at least a white woman’s body) from her husband or father to herself. They were now considered to have “property in their own persons” that allowed them to contract out their own bodies or their labour (unlike slaves, who were the property of others). With the exception of marital rape, which was not prohibited until the late twentieth century, the “trespass” of rape was no longer on the property of an “owning man” but on the woman. This was certainly an improvement, but the law of consent still bore no relation to the act of sex or the harm of rape.

In imagining a woman rationally consenting to the use of her body by another, the law imposed a mind/body split on an act that by its very nature dissolves such distinctions. Far from being a rational exchange between two parties, the language of sex is often an inarticulate language of gestures and sighs — of non-verbal, non-rational, corporeal communication. And this is why rape is so damaging. It is an assault on a woman’s sexual will and body at the same time. In Linda Alcoff’s words: “It is not that ‘my body’ has been taken; I have been taken.”

Contract law’s notion of a “free and voluntary agreement” also suggests that both parties reach an agreement as equals, which obscures how a woman’s consent and decision-making may be constrained by economic dependence, coercion or other subterranean forms of inequality. More fundamentally, it also ignores how women are socialised into sexual passivity and how male dominance is eroticised in almost all forms of popular media. How meaningful are the terms “free and voluntary” in a society where sexual imaginations are still overwhelmingly shaped by male power and fantasy?

The NSW amendments go some way towards recognising these complexities by specifying that consent needs to be active and ongoing, and that consenting to one act does not mean consenting to all acts. But the underlying problem remains.

We’re left with a paradox: consent is both the main problem with the law of sexual assault and the only conceivable solution. Yet no number of qualifiers will fix the fundamental mismatch between the language of contract law and the language of sex. Returning to nineteenth-century notions of seduction may be no answer, but knowing that other means have been used to prosecute sexual violence gives us more room to be imaginative in finding legal solutions. •

The post A certain class of consent appeared first on Inside Story.

In 1984 the high-profile businessman and Liberal Party identity John Elliott, president of the Carlton Football Club, led an initiative to form a breakaway league. The VFL responded by changing its governance structure and redoubling its efforts to corporatise the sport. Pressure mounted to close grounds and merge clubs, or to move some clubs interstate to tap into new “‘markets.” Fitzroy — a team based in an old but now gentrifying inner suburb — was still enjoying fair success on the field in the mid 1980s but only narrowly averted an attempt to move it to Brisbane in 1986 (a move that would eventually be forced in 1996).

Efforts to merge or move clubs provoked lively grassroots resistance on the part of supporters for whom the Saturday afternoon ritual was a link not only with a loved place — the home ground — but also with a way of life pursued by their parents and grandparents. The defiant and successful movement in late 1989 to save the struggling western suburban Footscray from a merger with Fitzroy drew on loyalties to class, club and community, a sense that others looked down on the western suburbs, a feeling that malign forces were trying to destroy something precious and loved.

For those who fought to save Footscray, one of the problems was the VFL’s obsession with creating a national league, one that would extend the code — or “product” — to Sydney and Brisbane as well as encompass the major football-playing states of South Australia and Western Australia. By 1991 what was now called the Australian Football League included clubs from all five mainland states.

For a time it seemed that rich men would become not merely the presidents but also the owners of teams. The major experiment of this kind involved the Sydney Swans, a club that emerged from the northward relocation of the declining South Melbourne team in 1981. The effort to place the Swans on a secure financial base and promote the game to a Sydney audience flushed out “medical entrepreneur” Dr Geoffrey Edelsten, then unfamiliar to most members of the public but better known to the Australian Taxation Office.

Since graduating in medicine from Melbourne University, Edelsten had enjoyed a colourful if rather chequered career as a medico, businessman and playboy. He had produced pop records, owned a nightclub, established his own flying doctor service, run health studios, set up a high-tech pathology laboratory in the United States, and offered a Family Health Plan in Sydney — which looked to police rather like a medical insurance business minus the necessary licence. He had even sponsored the Bluebirds, a troupe of dancing girls whose presence at Carlton home games was intended to add an American-style razzamatazz and sexiness.

By the mid 1980s — now grey-haired but still with an eye for female talent — he had married a professional model, Leanne, more than twenty years his junior. Edelsten was now best known for operating a chain of Sydney surgeries that, in their decor and design, had more in common with brothels than most people’s image of a humble general practitioner’s rooms. But then Edelsten was no humble general practitioner, even if all his patients needed to do to enjoy the luxurious facilities provided by “the Hugh Hefner of medicine” was to flash their green and gold Medicare card.

“His surgeries are decked out in gold, with salmon pink velvet couches, enormous chandeliers and mink-covered examination tables,” reported one journalist. “Gold-clad hostesses and a small robot offer refreshments and educational advice to patients, who are told that if they wait more than ten minutes to be attended to they are entitled to a free Instant Lottery ticket.” The surgeries also came with white baby grand pianos; a pianist was sometimes paid to entertain patients while they waited.

The glitz of the surgeries was matched by the Edelstens’ private life. There was the $6 million home in Dural and luxury cars with numberplates that said “Macho,” “Spunky” and “Groovy.” And there were Edelsten’s gifts to Leanne, which supposedly included a pink helicopter — that it was pink Edelsten always denied, but many people swear that they saw it — and, the Daily Telegraph reported, “a $100,000 pink Italian sports car lined with white mink.”

In late July 1985 the VFL agreed to award the licence for the Swans to Edelsten in preference to the bid of another businessman, Basil Sellers (a man “of much more conservative bearing,” according to the Canberra Times). The league needed to get the Swans noticed in a tough market, and Edelsten appeared to be just the kind of showman capable of helping it out. Indeed, the syndicate to which he belonged played up the glamour as a means of distinguishing itself from the other bidders. It promoted the Edelstens as embodying Sydney’s colour, playfulness and hedonism in contrast with the sober restraint of Melbourne. Edelsten exuded flamboyance, wealth and success, and Leanne — present when her husband learned that his Swans bid had been successful and wearing, according to one report, “a sequined white jumper, red leather pants and wet-look white thigh-length boots” — was central to his image.

Media reports said the price was $6.3 million, a figure that casual observers assumed had been carved out of a much greater fortune, but it soon became clear that the deal was a rather more tangled one. Edelsten eventually handed over about $3 million, mainly other people’s money. It looked increasingly as if he was really a frontman for other interests, but there was no denying his ability to attract notice. He was helped by a spectacular, long-maned, blond full-forward named Warwick Capper, who wore striking white boots and shorts even tighter and more revealing than the usual skimpy kind. He, too, briefly became an image of Sydney spunkiness and flamboyance.

Edelsten’s association with the Swans gave his surgeries publicity that allowed him to evade the prohibition on doctors advertising their services, but it was the doctor’s business interests outside football that caused him problems soon after the award of the licence. A Labor senator, George Georges, alleged under parliamentary privilege that Edelsten was the “Dr X” named in a parliamentary committee report as being investigated for medical fraud. Edelsten took out a full-page advertisement in the Sydney Morning Herald declaring his innocence. An exposé of Edelsten’s business methods in the satirical magazine Matilda, which imputed various forms of lurid criminality, added further damage and provoked a lawsuit.

Worse followed: Edelsten soon stood accused of having hired the notorious hit man Christopher Dale Flannery to assault a patient who had given him trouble. He had already stood aside as Swans chairman but still had a long way to fall. He subsequently became bankrupt, divorced, and was struck off the medical register and sent to prison. And as the 1980s passed into mythology, his and Leanne’s lifestyle was seen to epitomise the era’s excesses. •

This article draws on The Eighties: The Decade That Transformed Australia (Black Inc., 2015).

The post Dr X meets his end appeared first on Inside Story.

The project resonates with Moree’s history. Mention Moree to many, and one phrase crops up: the Freedom Ride. In 1965, inspired partly by civil rights campaigns in America, a busload of students from the University of Sydney spent a fortnight driving through northern New South Wales. The Student Action for Aborigines group included Charles Perkins, later a leading Aboriginal bureaucrat, and Jim Spigelman, later a chief justice of New South Wales.

The group set out to “publicise the appalling conditions under which our Aborigines live,” wrote journalist Fred Wells in the Canberra Times. The paper described those conditions as “shanty towns, where most blacks lived without sanitation, electricity and often water.”

Just seventeen years earlier, Australia had helped to draft the Universal Declaration of Human Rights. But the racial segregation the freedom riders found in far-flung towns was shocking. In Walgett, about 200 kilometres west of Moree, the RSL club banned Aboriginal patrons except on Anzac Day, including those who had fought two decades earlier in the second world war. Cinemas in Walgett, Bowraville and elsewhere treated Aboriginal people the way America’s Deep South treated black Americans, forcing them to enter by separate doors and to sit in separate seats from whites. When a sixteen-year-old Aboriginal girl tried to challenge the ban in Bowraville, the theatre’s owner reportedly declared that it had always been policy to segregate, “and he would continue to enforce it.”

In 1955, a decade before the Freedom Ride hit Moree, the local council had passed an ordinance banning Aboriginal children from the town’s swimming pool. Amid a stand-off with police and hundreds of angry white townsfolk, Charles Perkins took in a small group of Aboriginal kids, and joined them in the pool. The freedom riders faced anger on the road, too. After they left Walgett for Moree late one night, a truck overtook their bus and tried to force it off the road. Bill Packenham, their driver, later quit the tour because it had “become too dangerous.” Another driver flew in to replace him.

Nothing like the Freedom Ride had been attempted in Australia before. It became something of a turning point in exposing the scope of inequalities and racism in Australia. In an editorial, the Canberra Times called for change: “The people of Moree and Walgett are especially angry because they know in their hearts that what the students say is true. There is colour prejudice in these towns, and in practice a round and ready kind of apartheid is the rule.”

Some Kamilaroi people credit the Freedom Ride with helping to trigger the constitutional referendum two years later, in 1967, in which Australians voted overwhelmingly to transfer power over Aboriginal affairs from the states to the Commonwealth.

To many, though, old attitudes and hurdles remain. The growing support among Aboriginal people and many legal experts for an approach like justice reinvestment could help solve problems that governments have largely ignored since the days of the Freedom Ride.

My own drive from Walgett to Moree last month was more peaceful than back then. Three years earlier, in 2018, I had visited Bourke, about 440 kilometres west of Moree along the same outback highway. Bourke had embarked on what has become Australia’s most successful bid by its Aboriginal people to use a justice reinvestment approach.

The town once had the highest conviction rate for Aboriginal children and teenagers in New South Wales. The state government’s response was to build more prisons.

Alistair Ferguson, a prominent Aboriginal figure in the town, was inspired by a different idea from the Open Society Institute, a New York think tank: devote the money instead towards resolving underlying causes of crime, and try to keep people out of prisons. His community formed a partnership with Just Reinvest NSW, a Sydney-based body advocating this “justice reinvestment” approach as public policy.

Its logic has defied governments, but it has helped Bourke’s “Maranguka” exercise become something of a showcase. In late 2018, five years after it started, the accounting firm KPMG reported substantial falls in juvenile offences and domestic violence, and a sharp rise in year 12 student retention rates. The project, it estimated, had saved Bourke’s criminal justice system about $3 million a year.

About twenty other Aboriginal communities, keen to do similar work, had already approached Just Reinvest NSW. A small grant from the state’s justice department helped produce a Justice Reinvestment Toolkit to give communities a better idea of what it was about. But limited funds have confined work so far to just two communities, Mount Druitt, a sprawling suburb in western Sydney, and Moree.

Mount Druitt and its surrounds (rather than Redfern, as many think) is home to Sydney’s largest Aboriginal population, about 9000 people, making it a strong candidate to test how justice reinvestment could work in a big urban area. Julie Williams, an Aboriginal woman who grew up in Mount Druitt, joined Just Reinvest NSW last year. Poor relations with police and high fine rates for young black people are the biggest problems, she says. Working with Baabayn Aboriginal Corporation, a group of western Sydney Elders, she and grassroots colleagues in the Western Sydney Watch Committee have started meeting with police in a bid to “reset the relationship.”

Work in Moree is further advanced. Located on the Mehi River, the town is a big business centre for the Gwydir River valley. Drawn by the region’s rich black soil plains, white settlers started arriving in the 1830s and, for the most part, have never looked back. It’s been a different story for the Kamilaroi people, said to be the second-biggest Aboriginal nation in eastern Australia after the Wiradjuri.

Fifty-six years after the Freedom Ride, inequalities remain deplorable. According to the 2016 census, fewer than half of Moree’s Kamilaroi people aged between fifteen and nineteen were in schools, compared with over two-thirds of non-Kamilaroi teenagers; less than a fifth of Moree’s Kamilaroi adults had completed year 12, compared with over twice that proportion for non-Kamilaroi people; just a quarter of Kamilaroi households were buying or owned a home, compared with almost two-thirds of other residents; and fewer than half of Moree’s Kamilaroi households had internet connection, compared with almost three-quarters of non-Kamilaroi people.

After the 1965 Freedom Ride, Charles Perkins told the press its “most important” aspect had been the “surprising degree of active support from the local Aboriginal people themselves.” Communities had anticipated their arrival with “strong interest”: Aboriginal people near Nambucca Heads, on the NSW north coast, had stood lookout on a hill for two days, watching for the students to come.

These attitudes were harbingers of what justice reinvestment is trying to achieve now: Aboriginal people determining their own approaches to solving problems, free from the directives of governments in faraway capital cities.

For Just Reinvest NSW, Moree seemed a logical place to help the local community start pursuing such an approach in 2019. After the Freedom Ride, Kamilaroi people had helped to form bodies like the Aboriginal Legal Service. Yet problems like high crime rates and school suspensions among young people seemed intractable. In late 2019 the NSW ombudsman reported that over a third of Aboriginal students at one Moree primary school and over half of Aboriginal students at a secondary school received short suspensions in 2017, the second-highest rates in each case among fifteen state “Connected Communities Schools.”

Experts talk of a “school to prison pipeline,” suggesting that children having trouble at school are more likely to end up in the criminal justice system. The Australian Institute of Criminology calls it a “potential association between school experiences, including suspension, and later antisocial and violent behaviour resulting in incarceration.”

Similar problems plagued Bourke before justice reinvestment began to work. Moree faces the challenge of assembling a leadership group to pull together “a lot of moving parts,” as Alistair Ferguson also found in Bourke. And Moree’s overall population is about five times bigger than Bourke’s, making for a more complex task. So the Kamilaroi people are working out what they call a “Moree way” for justice reinvestment.

I arrived in time to hear how this is evolving. Among the several community leaders who had gathered for a meeting at the Dhiiyaan Aboriginal Centre in Moree’s main street were two local Kamilaroi women who now work for Just Reinvest NSW in Moree, Judy Duncan and Mekayla Cochrane. Duncan, “Moree born and bred,”  has worked in the area for almost forty years, “through education and government,” as she puts it, and has “done time in the criminal justice system.” Cochrane, her younger colleague, joined Just Reinvest NSW late last year. “As a way to provide a platform for Aboriginal people, it’s a no-brainer,” says Cochrane. Joining them at this meeting were Jenny Lovric and Nicole Mekler of Just Reinvest NSW in Sydney.

“We’re trying to work out what the ‘Moree way’ is,” says Just Reinvest NSW’s Judy Duncan. Jessica Hromas/The Guardian

The local participants have set up working groups to enable Aboriginal and non-Aboriginal figures, police, school officials and others to talk to each other more productively and come up with locally designed approaches to problems. Like their counterparts in Bourke, they’ve also started building data to help track the problems.

“School suspensions and other education issues are big underlying problems in Moree,” Judy Duncan tells me. “We’re trying to work out what the ‘Moree way’ is. It’ll be Moree looking out for Moree, not government looking out for Moree. A community leadership group is starting to emerge on this. I love my community. It’s time we got things right. If the Aboriginal community can get it right, the rest of the community will, too.”

Just Reinvest NSW and the Aboriginal Legal Service have initiated a project with the Moree police aimed at cutting the number of young people who wind up in prison simply for breaching bail; a similar project is planned in Mount Druitt. Too often, young people are arrested for breaching bail conditions that are too onerous or that they can’t meet. The police have agreed to take a fresh approach by notifying the Aboriginal Legal Service of bail conditions earlier than before, allowing it to request amendments in certain cases.

“So far, it’s working,” says Helen McWilliam, officer-in-charge of Moree police, who presides over a staff of about fifty. “The last thing we want to see is more kids in the juvenile justice system.” Roger Best, crime manager of the New England police district, which embraces Moree, says twelve-year-olds were among the most prolific juvenile offenders, and that reoffending had been common. “But you can’t arrest your way out of these problems,” he adds. “Instead, justice reinvestment is about spending the money to address causes, so you can avoid spending money elsewhere later.”

Opening dialogues with the town’s big players is showing positive signs here. But some people at the Dhiiyaan centre tell me of other things that seem stuck in the past. More than sixty state and federal government services are located in Moree, but Kamilaroi people complain of trouble accessing them. Many feel that racist attitudes persist in everyday town life.

The Moree pool, the town’s flashpoint during the Freedom Ride, remains contentious. Owned by the shire council and run by a separate board, it was added to the list of National Heritage Places in 2013. The citation notes that the baths were a “stark example of official segregation” in 1965.

Many Kamilaroi people believe the exclusion goes on, in the form of a $9 entry price per person, making it unaffordable to poorer families, especially women looking after grandchildren over hot summer months. A Guardian Australia survey of public swimming pool fees in 129 local government areas last year found the Moree pool to be one of the two most expensive in the state.

“In the sixties you were excluded if you were black,” Judy Duncan says. “Now you’re excluded unless you’re rich.” Some reckon the two forms of exclusion are connected. Lyall Munro tells me, “The attitude lingers from the local government by-law in the 1950s that allowed segregation in this town. Nothing has changed for equality and liberty in Moree. It’s as though the Freedom Ride never happened.”

There’s growing support among legal experts for justice reinvestment as a way of keeping people out of prison and saving the criminal justice system money. The Australian Human Rights Commission, the Australian Law Reform Commission and the Senate legal and constitutional affairs committee have all called on governments to promote the idea and to back it with funds. For the most part, governments have declined to do so.

Almost a decade after it started, Bourke’s Maranguka exercise recently received a federal grant awarded to community projects in far-flung places, although Bourke’s appears to have been the only grant for justice reinvestment. The funds were modest: $35 million shared among ten communities over five years.

The work in Moree and Mount Druitt relies almost entirely on the goodwill of private philanthropists. The backers comprise a diverse mix of family foundations, legal firms and finance firms. The Vincent Fairfax Family Foundation and the Bill and Patricia Ritchie Foundation are supporting work in both places. The Paul Ramsay Foundation is supporting Just Reinvest NSW and site-based work. The Charitable Foundation, a private fund chaired by Steve Killelea, is involved with Moree. Herbert Smith Freehills, a law firm, is funding the Bail Project in Moree and Mount Druitt. Other law firms help with pro bono work. IAG, an insurance company, is funding some work in Mount Druitt. The Dusseldorp Forum, another family foundation, and one of the first funders at Bourke, is still involved there.

Most philanthropists prefer to keep the amounts they’re giving confidential. At least two others have given in-kind support: Dell Computers, with help from the law firm King & Wood Mallesons, gave one hundred laptops to Moree so students could keep schoolwork going remotely when schools closed amid the pandemic.

After learning of the Bourke project three years ago, VivCourt Trading, a Sydney finance firm, met Sarah Hopkins, co-chair of Just Reinvest NSW, to learn more. “We were inspired,” says Rob Keldoulis, VivCourt’s founder. The firm now supports a community-led OzTag team for Aboriginal men in Mt Druitt and youth advocacy in relation to policing and the criminal justice system. It has also helped Just Reinvest NSW save on rent by extending the lease on premises in Potts Point, Sydney, that VivCourt was vacating. “They can create roots and it gives them certainty,” Keldoulis says. “If we can help scale justice reinvestment up this way, hopefully governments can get behind it.”

The Justice Reform Initiative, an advocacy group launched last year, is calling for similar reforms to the criminal justice system, but on a broader scale. Chaired by Robert Tickner, a former federal Aboriginal affairs minister, it argues that governments have long used imprisonment as a “default response to disadvantage.” In early May, the group launched their campaign in Tasmania where the state governor, Kate Warner, hosted a reception.

Tickner is impressed by work in Bourke, Moree and Mount Druitt: “The Aboriginal people have been forced to do the heavy lifting for criminal justice reform.” But, he says, the next crucial step is missing: government support.

To gauge local government support I visited the mayor of Moree Plains Shire Council, Katrina Humphries, at Fishabout, her seafood shop in East Moree. Humphries has a strong political pedigree: thirteen years as mayor, she is the daughter of the late Wal Murray, a former NSW National Party leader and deputy premier.

Fishabout seems to be Humphries’s unofficial office, making for more relaxed chats with visitors than a slightly intimidating council chamber. As I arrive, she’s finishing a meeting at a dining table with Craig Jenkins, director of the NSW government’s regional office for New England and the state’s northwest. Jenkins happens to be a Kamilaroi man who grew up in Moree, and is back in town to discuss two big projects.

“We want Australia to know how important it is for Aboriginal people to have a say about their own lives”: the Moree Local Aboriginal Land Council’s Lloyd Munro.

Moree will be the hub for one of six Special Activation Precincts the NSW government is planning across the state to encourage investment in regions. Some of these precincts, including Moree’s, also lie along the route of the proposed Inland Rail from Melbourne to Brisbane, one of Australia’s biggest infrastructure projects. Humphries expects the first freight train on this line to roll into Moree in 2024–25. The master plan for Moree’s precinct, launched in May, claims it will create jobs by supporting local industries in what it says is already the most productive grain region in Australia.

What are the prospects of its creating jobs for Kamilaroi people? “Enormous,” Humphries replies. Her council includes no Aboriginal members, but she says it aims for 20 per cent of its employees to be Aboriginal. I ask about disquiet that Moree pool’s high entry fee still makes many Kamilaroi people feel excluded. She explains that the shire’s three pools, including Moree’s, have combined “community service obligation” costs of about $700,000 a year. The $9 fee, she adds, is “not as expensive as a packet of cigarettes.”

Humphries doesn’t shy away from identifying Moree’s broader problems: petty crime; drugs, which she notes are not confined to the Aboriginal community; too few case workers for vulnerable young people; and too high rates of Aboriginal incarceration. Her response is straightforward. “I’m a capitalist,” she says. “I believe people need to work, earn their own money and be proud of that.”

It doesn’t sound like the sort of collegial approach that drives justice reinvestment, but Humphries supports that exercise nonetheless. She’s “very interested” by what’s happening in Bourke and says, “The way forward is that our Aboriginal community has to be run by Aboriginal people. We can’t keep doing things in a cycle that’s doomed.”

Craig Jenkins was unavailable for an interview, but people involved in Moree’s justice reinvestment project who met him in town say he seems “passionate” about the Aboriginal community’s benefiting from the Special Activation Precinct.

So far the signs look promising, according to Lloyd Munro, Lyall’s brother, who is vice-chairman of the Moree Local Aboriginal Land Council. The Munro family have played distinguished roles for at least two generations, fighting for Aboriginal rights in Moree and around Australia. Lloyd’s father, Lyall Munro Senior, received a state funeral in Moree last year to honour his work. As children, two of Lloyd’s brothers responded to the Freedom Ride. Lyall Munro Junior recalls joining a bus to town from the mission where they lived, “and the townspeople pelted us with stuff.”

Encouraged by Charles Perkins, Dan Munro was among the first Aboriginal children to get into the Moree pool. Noeline Briggs-Smith, a local Aboriginal researcher, has recorded Dan Munro’s account: “We were just nine-year-old kids and we were crying, we were upset, we didn’t know where we were going. But even when we got into the pool we were uncomfortable because we knew, as people, we weren’t supposed to be there. We were shamed, but the students took the shame away from us and let us know we were part of this world.”

Lloyd Munro wants justice reinvestment to be a further step in making Kamilaroi people “part of this world.” Through the Aboriginal lands council, he’s having regular talks with Inland Rail and Special Activation Precinct officials to make sure the Kamilaroi people are part of the story. About seven Kamilaroi people already work at a new village for Inland Rail workers built on Carmine Munro Avenue, a street named after his mother; it’s a small proportion of the 300-odd workers the village is designed to accommodate.

He agrees education is still a “key problem” for Kamilaroi teenagers. For this reason, he’s excited about a youth forum that Moree’s justice reinvestment participants are planning in November, followed by an education summit soon afterwards. “I don’t think Moree has ever had events like this. It will be a very significant chance to address underlying issues.”

Committees, boards and NGOs have long run young Aboriginal people’s lives, he says. Now “it’s time to get youth involved. They can come to these big gatherings. We want Australia to know how important it is for Aboriginal people to have a say about their own lives.” •

The publication of this article was supported by grant from the Judith Neilson Institute for Journalism and Ideas and the Copyright Agency’s Cultural Fund.

The post Finding the Moree way appeared first on Inside Story.

The jury forewoman responded “not guilty” to each of the eight charges levelled against three defendants: the Mildura-based disability-aid retailer Country Care, its owner and manager Robert Hogan and a former employee, Cameron Harrison. Not a single conviction was secured in a case regarded by most observers as a critical test of the Australian Competition and Consumer Commission’s management of criminal-cartel laws introduced in 2009.

Seen in isolation, the defeat may not seem particularly significant. It may have been important for the ACCC to secure the first-ever jail term for pricing collusion, but the fact that the prosecution took place at all does create a degree of deterrence. Those planning to shake hands over a price-fixing deal in a smoky backroom are now more likely to be aware that, on paper at least, they face jail terms of up to ten years — a penalty that can’t simply be relegated to a footnote in a company’s annual report.

As competition regulators around the world know very well, court setbacks are par for the course. The ACCC prides itself on its success rate, and the fact that this prosecution reached the Federal Court wasn’t such a bad effort for the first criminal-cartel trial since 1910’s Coal Vend case. And the ACCC is adamant the acquittals won’t set back its campaign against the cartels.

Seen in the context of other criminal-cartel prosecutions launched recently, though, the Country Care trial highlights the challenges ahead for both the ACCC and the Commonwealth Director of Public Prosecutions, or CDPP. For the judge, Robert Bromwich, the weakest link in the investigation was a witness who’d been given immunity by the ACCC — in fact, Bromwich’s comments to the jury about the credibility of that witness may well have sounded the death knell for the prosecution case. The result might also cast a shadow over a far more significant trial set to unfold in Sydney next year, targeting ANZ, Deutsche Bank and Citigroup over a 2015 share-underwriting agreement.

Immunity deals are a key part of competition enforcement. Without them, regulators may never uncover cartels that are, by definition, secret. A person or a company involved in an anti-competitive arrangement can approach the ACCC, alert it to the cartel’s existence and apply for immunity from prosecution. The ACCC can offer a guarantee of immunity in return for full cooperation — but the arrangement needs to be embraced by federal prosecutors as they take the matter to court.

Although the Country Care case involved two “immunised” witnesses, the first six of the eight charges related to the testimony of one of them, a Sydney disability-aid retailer by the name of Andrew Cuddihy. Rightly or wrongly, Cuddihy was viewed as valuable to the prosecution’s case because he offered detailed testimony of the allegedly criminal acts that took place in 2014 and 2015 as well as a secret recording of a conversation with Robert Hogan. If there was a smoking gun in this prosecution, the recording was it.

Then the defence lawyers did what they’re paid to do — they took a blowtorch to everything Cuddihy had said and done. They pointed to inconsistencies in his account, built a strong case questioning his motives and dug deep into his communications with the ACCC. Even the secret recording was impugned as an attempt to entrap Hogan, with jurors urged to refer to the recording rather than the transcript (Hogan’s repetition of “yeah” and “yep” wasn’t an acceptance of what Cuddihy was putting forward, they said, but an acknowledgement that he understood the points being made.)

When it came time for the judge to offer his final directions to the jury, he urged extreme caution when dealing with that testimony. His warning was both general — that the evidence of all immunity witnesses needed to be taken with a grain of salt — and remarkably specific about Cuddihy and his motives. For his part, the ACCC’s other immunity witness had been unable to produce clear evidence that Country Care had attempted to set up a price-fixing agreement or had successfully established a cartel — a deficiency that made the jury’s job a lot easier. As it turned out, the jury didn’t need that lock to reach its unanimous verdict.

Immunity witnesses can create serious challenges for any prosecutor taking on a case of this kind before a jury. In Britain, where criminal-cartel offences have been on the books since 2002, the Competition and Markets Authority has struggled to secure convictions in contested cases, with juries particularly reluctant to return guilty verdicts. The role of immunity witnesses has played a part in their deliberations — with some juries failing to grasp why one company or individual was being offered a free pass despite having behaved like the person on trial. If the jury is expected to believe that those on the receiving end of the charges are criminals, then why should it believe the testimony of someone equally criminal who has cut an immunity deal?

Another lesson from Britain and the United States is that juries and competition law can be a tricky mix. There’s no doubt that every member of the Country Care jury would have understood what the alleged price-fixing arrangement was about: two or more companies agreeing on prices to be submitted as part of government tenders. But the case was complicated considerably by what we now know was a perfectly legal working arrangement between Country Care and a network of disability-aid suppliers across regional and metropolitan Australia. The Country Care Group — the loose association of retailers — was essentially a supply and subcontracting relationship, in which the Mildura-based company took responsibility for responding to government tenders and then relied on the network of small businesses to provide, install and maintain the equipment.

Much discussion was devoted to whether this arrangement amounted to a joint venture, which is covered by an exemption in competition law. But it also gave defence lawyers the chance to argue that the ongoing communications between Country Care and the Country Care Group were based on subcontracting arrangements rather than price-fixing. The jury was also told that this type of arrangement had become necessary because the Department of Veterans’ Affairs had made national coverage a prerequisite for a successful bid for government contracts. Defence lawyers said that the Country Care Group was established to allow small businesses in regional areas, with strong links to communities that relied on them for help with disability aids, to get a small slice of government contracts.

The narrative thread — Hogan, a former boilermaker from Mildura determined to improve the quality of equipment for the elderly and infirm, urging small businesses across Australia to join forces in bidding against big players for government tenders — was compelling. The incredibly complex and uncertain question of whether Country Care subcontractors were also competitors made the simple narrative all the more attractive.

More importantly, though, by the end of the trial it was clear that the jury was under considerable strain. The Federal Court had empanelled fourteen jurors — two more than the required twelve — on the assumption that the volatile Covid-19 situation in Melbourne could see some of them drop out. The court bent over backwards to ensure that the jury stayed comfortable and was able to follow what was going on. But by the end of the twelve weeks, three of them, including the original forewoman, had dropped out for either personal or health reasons. Justice Bromwich was concerned, but decided to push ahead with eleven jurors. They just made it to the finish line.

The jurors appeared drained by the experience — and it’s not hard to see why. The prosecutors’ summing up of the case lasted three and a half days, with one dry competition law argument after another delivered with little panache. Had this been directed at a judge, it wouldn’t have mattered. But a jury? I cover this stuff for a living, yet my eyes often found their way to kitten videos streamed onto my phone via the court’s complimentary wi-fi.

Conservative estimates suggest that next year’s ANZ trial will last nine months. And whatever challenges were faced by the Melbourne jury in the Country Care case will be multiplied manyfold, with jury members required to get their head around the complex underwriting arrangements of an ANZ share issue. As for the immunity witness in that case, JPMorgan, it’s hard to see how a jury would view one of the world’s most powerful and lucrative banks — and its posse of well-tailored executives — as particularly sympathetic witnesses.

The case will be an outrageously time-consuming and expensive affair for both the ACCC and the CDPP, and the returns are looking, at best, uncertain. It could also make or break Australia’s criminal-cartel enforcement regime. •

The publication of this article was supported by a grant from the Judith Neilson Institute for Journalism and Ideas.

The post Immunity in the dock appeared first on Inside Story.

All went well. Too well. While the canniest speculators usually do only slightly better than chance when it comes to currency predictions over the short term, Kamay’s account won sixteen of its twenty-one bets on how the dollar would shift. A year after the friends’ deal was struck — and thanks to Pepperstone’s letting them lever small bets into much larger gains (or losses) — they were just a little short of their shared goal of a $200,000 profit, a 20,000 per cent return on their $1000 investment.

That’s the moment where Australia’s latest true crime podcast, The Sure Thing, kicks off. On the morning of 9 May 2014, the pair woke to police dogs barking outside their homes in Melbourne and Canberra. Another year down the track, their shared scheme had landed each of them with a two-year prison sentence for insider trading. And that was only the start of each man’s problems with the criminal justice system.

The secret to the pair’s success was Kamay’s partner in crime, twenty-four-year-old Christopher Hill, who had landed a job analysing labour figures for the Australian Bureau of Statistics. At 11.30am on many Thursdays, the Bureau announces new economic data, such as jobs figures and building approvals. Almost immediately, those announcements prompt Australia’s currency speculators to buy or sell in unison, depending on the difference between the expected data and what was announced.

The former is something any competent foreign exchange worker, such as Kamay, can work out. The latter is something only a Bureau worker could know before the figures are released. Hill, of course, was leaking the figures to Kamay. As a federal government employee, he earned four convictions for abuse of public office, adding fifteen months to his sentence for insider trading.

This banal scheme is anything but a sure thing for a true crime podcast. The pair’s motivations, as detailed by a psychologist interviewed on The Sure Thing, are hardly the stuff of psychodrama. Kamay had suffered early career disappointments and faced the Pavlovian pressures of the NAB trading floor. Hill had recently broken up with his girlfriend and found Canberra dull.

Their crimes were also mundane in their implementation. Hill snuck his data out of the Bureau on a scrap of paper. Kamay furtively traded on his smartphone in a toilet cubicle at his bank. Nor were they criminal masterminds. They both bought burner phones in others’ names (earning them convictions, but no extra jail time, for identity theft). But they sometimes forgot to use them. Anyway, each had spoken to others about their plans at one point or another. Kamay sometimes traded as “The Wolf of Wall Street.”

Worst of all for the podcasters, the crime lacked a compelling victim. When Kamay and Hill pointed out at their sentencing that their trading was barely a drop in the ocean of a currency market in which some $160 billion is exchanged every day, the judge responded, “While it may not be possible to point to any particular loss made by an identifiable victim, insider trading is not a victimless crime. Apart from harm to the market and public confidence, in this case there were counter-parties to each of your trades; they themselves had to enter into other transactions to try to cover their own positions.”

The “market” and nameless traders are obviously no match for the victims of homicide, assault or fraud that are the usual subject of true crime podcasts. Which is presumably why podcast host Angus Grigg and producer Lap Phan plumped for a different, more sympathetic victim: Kamay’s partner in crime, Chris Hill.

Christopher Hill’s alleged victimhood is mostly a factor of his partner in crime’s advanced villainy. On his arrest, Hill learnt that Lukas Kamay had broken their agreement from the get-go. The same day he opened an account for their joint bets at Pepperstone, he opened a second one where he made larger bets without Hill’s knowledge.

Not only did Kamay cut his partner out of the profits from his second account, but his actions also exposed Hill to a much greater risk of detection. To ensure that no one noticed their run of wins, the pair had agreed to limit the amount, consistency and frequency of their shared bets. But Kamay ditched these protections in his second account, running up nearly $1 million from twelve bets over five months and losing just a single bet.

Kamay’s actions supplied The Sure Thing not only with a villain but also with its hero. Pepperstone’s head of sales, Joel Murphy, started keeping a close eye on a new client who had suddenly become the firm’s top trader in a single quarter. Two months later, after Kamay correctly called Australia’s worst jobless figures in a decade, making half a million in minutes, Murphy turned private investigator.

Murphy’s detective tools were simple: social media (to learn that one of Kamay’s friends worked in Canberra), Google (to learn that the friend had worked at some point at the Australian Bureau of Statistics) and his phone (to pose as a student researcher and suss out Hill’s current role).

Less than a week after Kamay’s first big win, Pepperstone reported its top trader to the corporate regulator, ASIC. The next day, so did another broker, AxiCorp, where Kamay had recently opened a third account, making $600,000 off just three trades, mostly from the same February figures.

The podcast’s middle episodes follow the eleven weeks of the resulting official investigation. Operation Leith was a joint effort by the federal police and the corporate regulator — snooping on bank accounts, tapping phones and planting bugs — using up to eighty officers and the full array of federal police powers.

Operation Leith’s officers were even the first to learn that Kamay was planning to buy one of the renovated, furnished apartments from the seventh season of The Block, and The Sure Thing includes an interview with Alisa and Lysandra Fraser, the creeped-out ex-cops who grimly honoured a promise to be Kamay’s VIP guests when he celebrated his purchase of their South Melbourne flat.

The series also features interviews with three of Operation Leith’s officers: a cop (who corralled the agencies into a joint investigation), a member of the federal assets confiscation squad (who followed, and eventually seized, Kamay and Hill’s profits) and an ASIC officer (whose star turn was finding a burner phone that was tossed out of the window during the arrests).

But The Sure Thing doesn’t cover an investigative detail reported by the Daily Telegraph the following year: Pepperstone boss Owen Kerr’s “first instinct was to close down [Kamay’s] account but once he reported it to the Australian Federal Police they urged him to keep the account open.” That is, the national police and corporate regulator decided to let Kamay continue his trades.

It’s easy to see why. The pair’s use of paper and burner phones was enough to stop the snoops learning what information was being leaked. Worse still, there was nothing to see in the pair’s bank accounts: Kamay wasn’t transferring a share of wins to Hill electronically. (It turned out that Kamay was paying just a fraction of their joint winnings, in cash instalments.)

So Kamay’s wins continued. His largest — $2.5 million in a single bet, covering the likely price of the Frasers’ apartment — occurred on day twenty of the investigation, when labour force figures rebounded from their February low.

Eventually, the police placed cameras in the pair’s workplaces and, when building approvals and retail trade figures were announced on consecutive days in early April, at last discovered Hill’s scrap of paper and Kamay’s toilet break. In fact, Kamay lost both his bets that week. That may be because he was starting to fret that the police were onto him. Kerr told the Tele: “He was worried the money was not moving quickly enough — unaware that the delay was because the team at Pepperstone Financial were contacting the AFP for permission to let the trades go ahead.”

The trading companies were right to be nervous. After all, they were knowingly participating in — and still presumably providing leverage for — Kamay and Hill’s suspected insider trading. The Australian Bureau of Statistics likewise continued to give their possibly rogue employee access to sensitive market data. And ASIC and AFP officials stood by as Kamay bid on The Block using likely illicit funds and put down a quarter of a million deposit (later earning him a conviction for money laundering).

Sacking Hill, locking Kamay’s account or stopping the auction bid would have alerted the pair before Operation Leith could prove their crimes. But were there other options? Could Pepperstone and AxiCorp have simply pretended to make Kamay’s trades, with the federal police crediting his account accordingly (while poised to stop any big withdrawals)? Police investigating other hard-to-prove crimes often do something similar, for example letting detected drug importations continue using something harmless, such as baking soda.

Instead, Kamay continued his trades for seventy-eight days after he was reported to the regulator. These included his second huge win on day fifty-five of the investigation, relying on Hill’s access to the Bureau’s construction data to earn $2 million.

When the story of Kamay and Hill’s crimes eventually broke, the ubiquitous hook was that theirs was Australia’s “biggest insider trading case.” But none of those reports, including The Sure Thing, pointed out that the lion’s share of Kamay’s trades — 80 per cent of his $7.5 million haul — occurred under the gaze of Australia’s corporate and police watchdogs.

This is no entrapment story. The investigators’ decisions don’t detract from Kamay’s villainy. Indeed, the oblivious insider trader opened a fourth account — his most lucrative — on the same day Operation Leith began, using it to make eight trades totalling $6 million. Those trades were rightly regarded by his sentencing judge as his most heinous, because by then he was “trading with absolute confidence in the value of the inside information.” That is, as an earlier judge put it, insider trading is at its worst when winning is “a sure thing.” Kamay received five years’ imprisonment, two-thirds of his total prison sentence, for those eight trades alone.

But the fact that investigators let those sure bets happen complicates the official line that the battle against insider trading is fought to protect the crime’s actual and metaphorical victims. Police investigating other crimes typically prioritise preventing harm to others over catching criminals, and if they don’t the courts take a very dim view. In 2008, the NSW Crime Commission allowed six kilograms of imported cocaine to be sold to Sydneysiders while investigators built a case against a Mr Big. The High Court ruled that the commission itself broke the law by allowing that cocaine to endanger end users’ health.

But the evident concern of Operation Leith’s investigators was to ensure that Kamay and Hill were eventually punished, publicly and harshly. If they had stopped Hill’s leaks or Kamay’s trades early, the pair may never have been tried, let alone convicted. If they had asked Pepperstone and AxiCorp to fake the trades, the blaze of headlines would have been about the less stunning crime of “attempted” insider trading.

That may be small comfort to the innocent investors on the other side of Kamay’s $7 million of winning trades during the course of Operation Leith. In March 2016, the Australian Shareholders’ Association complained that the way white-collar criminal law is enforced “is not always appropriate as the monies go into a confiscated assets account rather than to directly compensate victims.” Of course, some other lucky investors netted the windfall of Kamay’s $1 million in deliberate losses during this same period.

Kamay, of course, couldn’t keep his winnings. Instead, the money became part of Australia’s Confiscated Assets Fund, which swelled from $88 million in 2014 to $96 million in 2015. The largest beneficiary of that fund, which is used to support law enforcement initiatives, is the Australian Federal Police. In May 2016, federal justice minister Michael Keenan approved a grant of $14 million from the fund to expand the AFP’s Fraud and Anti-Corruption centre, a collaboration of a dozen federal agencies including ASIC, the very body that investigated Kamay and Hill.

For how long would Operation Leith’s investigators have let Kamay rack up wins on Hill’s inside information before they finally pulled the plug? We don’t know, because Hill himself blew the pair’s cover on Anzac Day weekend when he forgot his burner phone on a visit to Melbourne. Investigators listened to the pair arrange a meeting on Hill’s regular phone, followed them as they bought new burners at a suburban shopping centre and listened in via a bug in Kamay’s BMW Roadster as Hill was handed his next bag of cash.

Even though they now had all the evidence they needed, the police waited for two more weeks until the next labour force figures were released. This time, Kamay made his worst bet, deliberately losing (and unwittingly depriving the police’s confiscation fund of) nearly $800,000. The next morning, the pair’s homes were raided.

Coincidentally, The Sure Thing’s hero lost his job that same day, made redundant after Pepperstone reviewed its operations. Joel Murphy later sued the firm for unfair dismissal and unpaid bonuses in the Federal Court, with his lawyer noting the lack of whistleblower protections for employees who inform ASIC about client activity. The workplace dispute seemingly ended after a judge ordered the firm and Murphy into mediation.

The Sure Thing chose not to detail these sour notes. Instead, Angus Grigg and Lap Phan opted for a human-scale tale of greed, betrayal, discovery and redemption. The backstory, Grigg explains, started when Clinton Free, a management academic who studies white-collar criminals, introduced him to Hill in 2019. The trio navigated pandemic restrictions until Hill could tell his side of the story.

If the producers were hoping that Hill would publicly vent at his partner in crime, they were disappointed. Throughout the podcast, Hill repeatedly rejects Grigg’s suggestion that Kamay “betrayed” him. Hill doesn’t explain why, but any attempt to deflect or apportion responsibility would have been a bad look. All of Kamay’s trades, whether pursuant to the pair’s joint deal or to his much larger personal shenanigans, were the result of Hill’s leaks. Had Hill simply stopped the flow in early 2014 — when, he told the podcast, he started to get cold feet — neither of them would have been caught.

Grigg and Phan found some interpersonal drama during the 2015 sentencing hearing, when each of the friends said that the insider trading scheme was the other’s idea. Justice Elizabeth Hollingworth accepted Hill’s account, unconvincingly citing Kamay’s deeper knowledge of the currency market. Her ruling may just reflect Kamay’s minimal credibility given his double-dealing. Six years later, the podcast proved her right, locating someone who had heard Kamay float the same idea years earlier.

Hill, once again, denies Grigg’s suggestion that Kamay’s testimony was a fresh betrayal. He was, in any case, fortunate that Kamay sorted his shared deals with Hill and his personal side-deals into separate accounts. That allowed the police and courts to readily distinguish the pair’s villainy. Only Hill had abused his workplace’s trust, but Kamay’s sentence was nearly twice his partner’s.

The sole bright spot for Kamay in his sentencing came as a result of the government’s hardline attitude to confiscating the proceeds of his crimes. Prosecutors insisted that Kamay’s “pecuniary penalty” should equal his total wins, leaving him to wear the $1 million he deliberately lost. He was forced to sell all of his assets, including ones acquired before he started his insider trading, to settle his debt with the police, a disproportionate penalty that Justice Hollingworth took account of in fixing his prison term.

And yet, as Professor Free emphasises at the end of the podcast’s initial run, the pair’s financial and personal punishments would last much longer than any prison sentence. ASIC permanently banned Kamay from providing financial services. Hill explained that, thanks to the awkward gap in his resume after (and lack of reference from) his stint at the Australian Bureau of Statistics, he was unable to find any white-collar work after his release in 2017.

Free asks whether this additional punishment is just, arguing that white-collar criminals, like others, are surely capable of redemption. But I think this is the wrong question. Employers’ refusal to hire known insider traders isn’t a matter of justice, but rather commercial risk management. The better question to ask is whether, given the combined effect of assets confiscation and commercial anathema, the much-ballyhooed tough application of the criminal law is necessary.

The Sure Thing tackles this issue obliquely in its closing episodes, with the obligatory bleak prison saga (where Kamay takes turns as the hero and then the target of other criminals) eventually giving way to the pair’s staggered stints at a minimum-security facility near Beechworth, where inmates spend their time working in the local community. The podcast interviews the president of a local football club, who uses the prisoners, including Kamay, to make up the numbers in his team. The obvious question is what purpose is served by keeping such non-dangerous prisoners (white-collar or not) in Victoria’s swelling prisons.

In her sentencing remarks, Justice Hollingworth intoned the official view that “deterrence” — especially of others — “has a central role to play in white-collar offending” and that “it is self-evident that the longer the sentence, the harder the bite.” That oft-repeated mantra is shared by virtually no criminologists, who instead think that most offending is done by people who don’t expect to get caught at all. Notably, the doubling of insider trading maximum sentences in 2010 seemingly did nothing to deter Hill and Kamay.

I love what The Sure Thing has done with the podcast medium. While true crime podcasts have covered white-collar crime before, I’m not aware of any that has focused so humanely on a white-collar criminal. Indeed, few focus humanely on any criminals.

But this focus on individual offenders and investigators comes at the cost of dealing with the many official decisions that surrounded Kamay’s and Hill’s crimes. These include decisions made during the investigation (such as letting their crimes continue for nearly three months) and decisions made afterward (about punishing them and dealing with their illicit profits), as well as other official decisions made before their crimes were committed.

The most surprising of all omissions, to me, is any examination of the choices made by the Australian Bureau of Statistics. One choice was to declare itself a victim of Kamay’s and (especially) Hill’s crimes. At the sentencing hearing, federal prosecutor Robert Bromwich offered just one victim impact statement, but it wasn’t from the market, a losing currency trader or even the three people (a housemate, a job applicant and a bank customer) whose identities Hill and Kamay stole.

As Justice Hollingworth told Kamay and Hill in court, drawing on the Bureau’s victim impact statement, “Confidentiality of the information provided to, and held by, the ABS is critical to its proper functioning. Conduct such as yours can be very damaging to an agency like the ABS, particularly to its public reputation. Your actions have caused the ABS to spend considerable time and money reviewing the integrity of its computer systems, and undertaking further staff training. The ABS also arranged counselling for those members of staff who were having trouble dealing with the nature and seriousness of your betrayal of trust.”

She didn’t mention the statement again. Perhaps she wasn’t impressed.

I sure wasn’t. The Bureau has no more cause to bemoan Hill’s “betrayal of trust” than Hill has about Kamay’s. After all, it was the Bureau that decided to give Hill advance access to sensitive market information, not just after it learnt of his possible misuse of it, but also before that, when it knew little about him. Worse, even though his main job was to analyse labour force figures, and sometimes building data, Hill was nevertheless given inadequately supervised access to two other sets of market-sensitive data.

Indeed, a review published two months after the arrests found that, despite a supposedly strict “need to know” policy, Bureau employees’ access to the market-sensitive data had been expanding for years, a product of slackening standards and the exigencies of managing a large, spread-out, multitasking and often shifting workforce. Some 340 Bureau staff had electronic access to at least some market-sensitive figures. And open-plan offices meant that still more Bureau employees could readily see data left visible on a desk or screen. On one view, Hill’s crimes (and Kamay’s disregard of the pair’s precautions) did the public a significant favour by revealing the potential gap between the Bureau’s promise of confidentiality and the reality.

I’m not sure the public’s concerns would be assuaged by the auditor’s recommendations. Belinda Gibson, who had recently stood down as ASIC’s deputy director responsible for insider trading, said that the Bureau’s “need to know” lists should be reviewed (and, indeed, viewed) and that employees’ access to sensitive data should be watched, both retrospectively and in future. But she also repeatedly said that trusted employees (like Hill) can always find a way to misuse any data they can access.

Her solution: amplifying the Bureau’s self-described “strong culture.” She recommended that the organisation add modules about not divulging market-sensitive data to its existing internal messaging, contracts and training, something it seemingly had not done previously. And she also said that Bureau employees should declare their financial situation yearly and refrain from short-term trading. None of these measures would have made the slightest difference to Hill. Neither, of course, did the criminal law, which the Bureau cited as its principal means of preventing employee misconduct.

It seems to me that some other, more onerous options could plausibly prevent crimes like Hill’s and Kamay’s in future. One approach could be to separate the key data between different groups in a way that makes it less usable by any one individual. Another, taking a leaf from Hollywood, is to issue workers with multiple sets of data for analysis, some fictitious, with almost no employees knowing whether the data they are working on is the correct set. The risk of misuse would still exist, but it would be more confined, in terms of people and time, and, crucially, much less of a sure thing. Measures like this are expensive, of course, but the alternatives are grim.

In its closing moments, The Sure Thing nods to the futility at the heart of its story, when podcast hero Joel Murphy returns in a new role. “I probably felt a tinge of guilt,” he says, after learning of Kamay’s betrayal of Hill and Hill’s current employment troubles. The podcast’s denouement, a redemption of sorts for him and Hill, is when Murphy offers Hill a job in the trading company he now manages.

The kicker is Hill’s new role: risk management, which includes analysing whether clients are engaging in insider trading. Hill knows what to look for all too well: a series of big wins on improbable bets by someone with a traceable connection to the right public servant. The problem is that Hill knew all of that in 2013, which is why he and Kamay agreed to take precautions. Are there other public servants, in the Bureau or other roles that have access to market-sensitive information, who know the same, and are successfully managing the risk of detection? I reckon it’s a sure thing. •

The post The insiders appeared first on Inside Story.

People forget, for example, that fourteen years ago Four Corners journalist Chris Masters, one of Australia’s most distinguished investigative journalists, made a program and then published a massively controversial book about radio shock jock Alan Jones. He analysed Jones’s political influence and revealed that he was gay — which was no secret but also not widely known. He published disturbing allegations about Jones’s relationship with the boys and young men under his care when he was a teacher and rugby coach.

Masters was predictably accused of both homophobia and left-wing bias. It was said that he would not have tackled a similar figure on the left of politics. He was also accused of unduly invading Jones’s personal life. “The subject here is power and abuse of power,” he responded. “It is what I have been taught to confront.” Those words could equally be used today by the women of the press gallery who are reporting on sexism and sexual abuse in the halls of power. They too have been accused of behaving like advocates rather than journalists.

Those words are especially relevant to the work of Masters’s successor, Louise Milligan, whose “Inside the Canberra Bubble” report screened on Four Corners last November. That program revealed details of cabinet minister Alan Tudge’s personal life, and specifically his affair with a staffer at a time when he was proclaiming the sanctity of traditional marriage.

Masters went on to say that his reporting was grounded in fact. It was a fact that Jones had been asked to leave the King’s School, with a “compelling reason” being his closeness to some of the students. “The story is mostly of emotional manipulation,” Masters said at the time. “It may not be the expected story. It is the story I found.”

Masters’s reporting is a useful point of reference for the controversies of the past few months, not only because it crossed the public–private divide but also because of decisions made by the ABC. Having aired the program on Alan Jones, the public broadcaster controversially reneged on its agreement to publish Masters’s book.

Although critics suggested that the politically stacked board had inappropriately intervened, documents released under freedom of information legislation showed that senior executives were the key decision-makers. They decided that the ABC’s book publishing arm was a commercial venture, not core business, and the likely defamation action against Masters’s book would be too expensive. The book was published by Allen & Unwin and became a bestseller. Jones didn’t sue.

At the time, social media barely existed. Today, the ABC will have to defend the social media activity of Louise Milligan, as well as its “core” broadcasts and publications, in the defamation case brought by former attorney-general Christian Porter, the subject of a more recent Milligan report. From this we might conclude that the broadcaster has acquired some courage, or that it has become reckless, or is not in control of the social media presence of its reporters. The defamation action will be expensive, and consequential. Porter denies all the allegations against him.

Apart from Milligan and the women of the Canberra press gallery, the “campaigning and advocacy” accusation has been made recently against the ABC’s health reporter, Norman Swan. He annoyed the Morrison government in the earliest days of the pandemic by advocating for lockdowns and “go early, go hard” public health responses. The fact that the government often moved in line with his recommendations didn’t stop it from accusing him of overstepping the line of objective reporting.

Then there is the constant rumble of News Corp, with its own campaigns against issues and individuals — including its critics — usually in opinion columns but also discernible in news reports.

So how are we to assess these examples? It is easier to do from the perspective of history.

The case of Donald Woods, the journalist immortalised in the film Cry Freedom, is a prime example of how time can help clarify the relationship between journalism and advocacy. When Woods was writing about race relations in South Africa in the 1970s, he was seen as an advocate — in his case for the end of apartheid. The country’s government regarded him as so dangerous that it ultimately forced him into exile. But we now see him as a hero, because it is clear that his cause was just. It wasn’t so obvious at the time: indeed, he supported apartheid until his friendship with activist Steve Biko opened his eyes.

So let’s use the quest for justice as our measure. Are journalists speaking on behalf of those who lack power? Are they exposing facts that powerful people don’t want seen?

When they’re reporting on the victims and perpetrators of sexual abuse, good journalists are hardly likely to side with the perpetrators. Yet it is only recently that they have sufficiently interrogated the role of religious institutions in perpetrating abuse. Eyes had to be opened. That took time, and pressure from advocates outside journalism.

Awful complications arise when the reporting includes unproven claims against individuals — such as the allegations against Cardinal George Pell, and now against Christian Porter.

In defending Porter, prime minister Scott Morrison has made frequent references to the presumption of innocence, which is indeed a vital safeguard against autocracy, vendetta, error and mob rule. But the rule of law is not the only thing that matters. It is essential to a just society, but not sufficient.

For centuries the legal system has failed to achieve justice for women and children. Most sexual crimes don’t enter the legal process; even when they do, justice is hard to achieve. Good journalism can reveal that the laws themselves, or their administration, need to change. This is where it can make a difference, and it is the field in which journalists such as Milligan are working.

Publishing unproven allegations is desperately uncomfortable, legally fraught and hugely consequential — but it is a legitimate part of journalism. It should not be done lightly, and only when there is evidence (even if that evidence is short of proof) and public interest involved.

The differences between advocacy and journalism can be hard to discern in the heat of a controversy. The distinction is about facts and about justice — which implies a disruption of power.

Norman Swan is not a specialist in infectious diseases or vaccines, but he constantly talks to people who are, helped by relationships of trust built up during decades of responsible reporting. For the most part, what he advocates is the logical conclusion from the facts. This is good journalism.

Australian political reporting, meanwhile, is in the middle of a paradigm shift. The ABC’s 7.30 anchor, Leigh Sales, has summed it up, saying that she is reconsidering her “unspoken rule” that politicians’ private lives are out of bounds. “Have I been educated in, and almost brainwashed, into a system that has protected powerful men at the expense of women?” she asks.

The distinction between advocacy and journalism comes up in almost every first-year journalism class. Students tend to come in three different kinds. There are those who want to be sports, travel or fashion journalists, more because they like sports, travel or fashion than because of any sense of mission. There are those who are in the wrong place and in the process of working that out. And there are those who want to change the world. Often they become the best students.

I don’t think I have ever encountered a student who says at the outset, “I want to objectively report in formulaic prose and never disclose my own opinion or personality, nor act against injustice.”

In a well-run journalism class, students will learn that journalism does change the world, and for the better. Usually it does so incrementally, and chiefly by publishing facts, including facts previously overlooked or hidden. Journalists will seek out and publish all the relevant facts, including those they wish they hadn’t unearthed. Advocates will seek out and privilege convenient facts, closing their eyes to others.

Not every piece of journalism in recent months should get a clean bill of health. I get worried when I see journalists — often on social media — pushing for a particular legal outcome, or assuming that published allegations must necessarily be true, or ought to be true, even when they haven’t gathered sufficient evidence to inform a proper story.

The justice system has its role, and journalism has a different, broader role. Each should respect the other. The arc of justice is easier to perceive in retrospect than in the mess of the day-to-day, but in the meantime journalists and their audiences should keep in mind that the simple act of publishing facts can be radical and world-changing.

Without facts there can be no effective advocacy. Reporting must come first. •

The publication of this article was supported by a grant from the Judith Neilson Institute for Journalism and Ideas.

The post The arc of justice appeared first on Inside Story.

Tasteless perhaps, but was it true? The article by David Hickie, later to become editor-in-chief of the Sun-Herald and the Sydney Morning Herald, contended that “organised crime became institutionalised on a large scale in New South Wales” during Askin’s near-decade as premier from 1965. “Sydney became, and has remained, the crime capital of Australia. Askin was central to this.” The Liberal leader’s links with major crime figures allowed Sydney’s illegal baccarat clubs to transform into fully-fledged casinos and his “links with corrupt police allowed these casinos and SP betting to flourish.”

Then came the most sensational claim: “According to a reliable source very high in the old Galea empire” — the network of illegal casinos run by Sydney gambling figure Perce Galea — “Askin and [police commissioner] Hanson were paid approximately $100,000 each in bribes a year from the end of the Sydney gang wars in 1967–68 until Askin’s retirement. The source is impeccable. This information has not been available for the National Times to use until Askin’s death.”

In his history of the Fairfax empire Herald journalist Gavin Souter describes Hickie’s story as “one of the most controversial exposés ever published in the National Times,” the crusading Fairfax weekly published from 1971 to 1986. Despite the considerable angst the article caused in the Fairfax hierarchy, the newspaper followed up a fortnight later with another story by Hickie, co-authored by investigative journalist Marian Wilkinson. This article alleged that a group of Sydney bookmakers paid Askin $55,000 as “a going away gift” shortly before his retirement, in return for his help in blocking a proposal to double their turnover tax to 2 per cent. The tax didn’t rise under Askin but was doubled by his successor, Tom Lewis.

Born in working-class inner Sydney, Askin was the son of a sailor turned tram driver. He worked as a bank clerk, rising to manager of the travel department, then served in New Guinea during the second world war, while also acting as his battalion’s SP bookie. It was in the army that he met Murray Robson, on leave as a NSW state MP, who subsequently recruited him into the Liberal Party. Askin was a keen punter and racegoer for most of his life.

Following the National Times stories, the evidence about Askin’s corruption was spelt out in much more detail in Hickie’s 536-page book, The Prince and the Premier, published in 1985. (Galea was known as “the prince.”) Not that this put an end to the controversy. In 1993, another Fairfax publication, the Sun-Herald, commissioned its own inquiry into claims that Askin was corrupt. It was conducted by former NSW coroner Kevin Waller, who introduced his findings by declaring that, as a lawyer, he could not escape the constraints of his profession: “I am not prepared to condemn the ex-premier or anyone else without reliable evidence of guilt.” He admitted to suspicions but concluded that he could not be “comfortably satisfied” that Askin was corrupt until informants close to the action came forward, sources were named and the paper trail explored.

The Sun-Herald published a less equivocal opinion on the same day as Waller’s findings. Denis Lenihan, former chief executive of the National Crime Authority, concluded that the material before him provided reasonable grounds for believing that Askin was corrupt. If he were a magistrate, he would have committed him to stand trial.

The best part of another four decades on, the debate has been revived with the publication of Sir Robert Askin, a new book in a series of biographical monographs on prime ministers and premiers published by Connor Court. The author is Paul Loughnan, who wrote a PhD thesis on the Askin government and describes himself as an independent researcher and “a tragic swinging voter.” According to the series overview at the start of the book, Loughnan “demolishes once and for all the myths concerning [Askin’s] alleged corruption. They are just not true.”

The last word on Askin? Not quite.

Loughnan’s view is that the “Askin corruption myth was founded on hearsay, innuendo and uncorroborated evidence.” He lauds Askin’s “extraordinary record as the longest-serving and most politically successful NSW Liberal premier,” a man who won four elections in a state traditionally dominated by Labor, and who deserves much more respect than he has received, including within his own party.

Loughnan acknowledges that organised crime increased during the latter period of the Askin government, as manifested in the number of illegal casinos. But he asserts this would have happened under any government during those years “as a result of the global phenomenon of the institutionalisation of organised crime and its subsequent escalation.”

He argues that the evidence of Perce Galea — Hickie and the National Times’s primary source — should have been discarded. “Unfortunately their Deep Throat was a major crime figure who had laundered large amounts of drug money and had been dead for four years.” He builds his case by quoting a long list of people who have criticised Hickie, including Waller, Askin’s ministerial colleagues and staff, and investigative journalist Bob Bottom, all of whom said they had seen no or insufficient evidence of Askin’s corruption.

Loughnan derides Hickie as an inexperienced young journalist at the time. He speculates that Hickie was duped by Galea, who may have been seeking to punish Askin for refusing to legalise casinos.

Loughnan came to his conclusions even after conducting a lengthy interview with Hickie, who said all his principal sources could be discussed openly given the passage of time. When I contacted Hickie recently, he made the same offer to me, and a very different story from Loughnan’s emerged from that conversation. Loughnan has tried to make a molehill out of the mountain of information assembled by Hickie.

Hickie confirmed that a key but unnamed figure in his book, referred to as one of Sydney’s leading heart specialists, was his father, John Hickie, who formed a fifteen-year friendship with Perce Galea after treating him for a heart attack. Loughnan mentions John Hickie but curiously omits the fact that he was David Hickie’s father.

Why did a professor of medicine form such a close relationship with an illegal casino operator? Galea “had the rare knack of endearing himself to everyone he met,” David Hickie writes in The Prince and the Premier. He was a pillar of the Catholic Church as well as a flamboyant racetrack punter, and enjoyed entrée to the most privileged circles. Hickie’s book includes a photograph of Galea with then prime minister Robert Menzies and Cardinal Norman Gilroy, head of the Catholic Church in Sydney.

So was it his father who told Hickie about the bribes? No, he told me, but Hickie himself got to know Galea and his wife Beryl through the hospitality that they periodically extended to the Hickie family. Galea was the main source, Hickie confirmed, but by the time of the National Times story he had died, and editor David Marr and chief editorial executive Max Suich wanted corroboration from a living person. Hickie obtained that confirmation from Beryl Galea, who was the “impeccable source” referred to in the original article. He also subsequently received further corroboration from another illegal casino operator, George Walker, and from a senior person in the Galea organisation whom he declined to name because he may still be alive. As for the timing of the story on the eve of the funeral, Hickie said the concern was that others in the media would start publishing stories now that they were free of the constraints of defamation law.

Hickie sent me a six-page document he put together years ago, headed “Askin Corruption: Some Sources & References,” in which he lists scores of names. He gave a very similar version to Loughnan, he said, “by email on Wednesday 1 July 2009 at 10.24am.”

As well as that corroboration of the Galea allegation, Hickie names twelve bookmakers and three others in the racing industry as confirming the $55,000 payment to Askin. He provides the name of a former bank manager who told him about $20,000 deposited directly into Askin’s personal Rural Bank account as payment for a knighthood for a company chief executive. He provides five further sources and references for payments of up to $60,000 for knighthoods.

Hickie also drew on public sources, including Alan Saffron, son of the notorious Abe Saffron, also known as Mr Sin, who ran a prostitution and gambling empire. In his 2008 book Gentle Satan, Alan writes that Askin was on his father’s payroll, that his father had “an excellent business relationship and longstanding friendship” with the premier and with police commissioner Norm Allan, and that he paid the two men $5000 to $10,000 a week during the late 1960s.

True, many of these sources fall into the category of colourful racing (and other) identities, not to mention outright criminals. But then there is John Mason, a Methodist minister who became NSW Liberal leader. In a taped conversation with National Times editor David Marr in 1981, Mason told the story of an election donation a company in his electorate wanted to make to Askin. “It makes things easier if they give it in cash,” was Askin’s response when Mason raised it with him. Mason later attended the meeting at which the company executive handed wads of notes worth $20,000 to Askin. The Liberal Party subsequently introduced a rule that all fundraising had to be conducted through party headquarters so as, in Mason’s words, “to stop it being creamed off.”

Publisher and journalist Maxwell Newton told a radio interviewer that he handed a brown paper bag containing $15,000 in cash to Askin in his office in 1970 on behalf of Philippine businessman Felipe Ysmael. “I’ve never seen $15,000 disappear so quickly in my life,” said Newton. “He took the money and whipped it into the top drawer of his desk.” A police investigation concluded that Newton’s claim was “utterly without foundation.” But that was par for the course for police inquiries at the time and may have meant little more than that Askin had denied it.

Despite his views on the timing of the original article, Labor premier Neville Wran seems to have had no doubts about his Liberal predecessor. Asked in 1986 whether he thought Askin was a crook, he replied with a crisp “Yes.”

Shortly after the National Times stories in 1981, writes Souter in Heralds and Angels, David Marr and other Fairfax editors dined at the Lodge with Malcolm Fraser. “The prime minister criticised the National Times for running the Askin stories but changed his attitude when the others present supported Marr with their own testimony about the growth of organised crime in New South Wales.”

In his chapter on Askin for the two-volume study The Premiers of New South Wales, party historian Ian Hancock writes, “Very simply, Hickie’s sources, named or otherwise identified in confidential correspondence with the author, are too well-placed to be dismissed.”

Then there’s the money trail. According to figures provided to Hickie by the NSW parliamentary library, Askin earned an average annual salary of $6637 a year in his fifteen years as an MP and an average $27,518 in his almost ten years as premier, for a grand total (before taxes) of $374,730. When he died six years later, he left an estate of $1,957,995, while his wife Mollie’s estate in 1984 was $3,724,879. As political scientist Murray Goot writes in his 2007 article on Askin for the Australian Dictionary of Biography, “Although the Department of Taxation made no finding of criminality, it determined that a substantial part of Askin’s estate was generated through undisclosed income from sources other than shares or punting and taxed it accordingly.” A substantial part of Mollie Askin’s estate was similarly taxed, adds Goot.

None of this convinces Loughnan, whose main focus is on the unreliability of Perce Galea — whom he dismisses as a crook — as Hickie’s primary source for the casino payments allegation.

Corruption was not confined to the Askin years. When I went to Macquarie Street in 1981 as state political correspondent for the Sydney Morning Herald, stories about political and police corruption, past and present, were legion. Both parties had bagmen who collected bribes weekly, and a succession of police commissioners had been on the take. Until the National Times took the plunge, the assumption was that very little could be reported: it was difficult to establish proof, and the defamation laws were (and still are) a high barrier.

But some moments of high farce did enter the public arena. Police had enormous difficulty raiding illegal casinos, despite reporters repeatedly gaining ready access. When Wran, as premier, ordered police to close the casinos in 1977, commissioner Merv Wood remonstrated that this would be terribly unfair. The loss of 300 jobs so close to Christmas would bring unnecessary hardship, he said, and be “inhumane.” When Wood was questioned in 1979 about organised crime by the ABC’s Caroline Jones, he asked, “Can you tell me where it is, Miss Jones?”

John Mason challenged the Wran government in 1979 to hold a public inquiry into illegal casinos, which continued to operate despite Wran’s instructions. Soon after, he told parliament, Liberal MP Tim Walker offered him $5000 a week to stop raising the issue.

Loughnan believes all of this should be disregarded. It may be that much of the evidence collected by Hickie and others would neither have met the standard of criminal proof required in court nor survived defamation cases. But that is a reflection on a legal system that allowed so many people to act so corruptly for so long with complete impunity. •

The post Was Bob Askin corrupt? appeared first on Inside Story.

Kate’s friends, and maybe Porter’s too, testify about what they saw that night and before and after, and perhaps what they were told by Kate or Porter in later days, weeks or even years. There may be further evidence, as yet unknown to the public, that greatly supports the prosecution or defence case. Or maybe not, which means it is largely one word against another. Either way, the question of Porter’s guilt is decided by a jury of twelve, applying the criminal standard of proof, beyond reasonable doubt.

This trial-that-can’t-happen casts a long shadow over the recent debate about how to respond to news that, before her death, Kate told multiple people that Porter raped her when they were both teens. But there are several reasons to doubt that a criminal trial would have settled that debate.

One reason is small but startling: the media couldn’t have reported any part of the prosecution. That isn’t because a judge would temporarily limit any publicity of the evidence and verdict to avoid prejudice, as famously happened with George Pell’s trials in late 2018. Rather, it’s because the law in New South Wales permanently bars the media from naming anyone, including adults, in connection with criminal prosecutions about events that happened when they were children.

Because Porter was seventeen years old at the time of the alleged rapes, the media could only describe him as “a man in his fifties who cannot be named for legal reasons.” For the media to identify his name or even occupation in connection with the charges, either he would have to consent or a judge would have to opt to strip him of his anonymity after a conviction. Of course — as with Pell’s trials in late 2018 and early 2019, and with the allegations against Porter in recent weeks — nothing the court or parliament could say would stop the truth from circulating on social media.

The Pell example points to the second, deeper reason why a criminal trial wouldn’t settle this debate. A guilty verdict would remove Porter’s liberty, just as Pell’s removed his, but it wouldn’t end the discussion about his guilt, both within the legal system and without. The Pell debate and his appeals continued apace over the entire period that Kate was revealing memories of abuse to her friends. She typed a lengthy document summarising those memories a month after Pell lost his first appeal over a furious dissent.

By the time Kate walked into Kings Cross police station, Pell’s fate was in the hands of the High Court of Australia. Its unanimous decision to free him in April last year (turning on unique features of the prosecution’s case against Pell) was said by Kate’s friends to have weighed on her. Pell’s acquittal no more settled the question of his guilt or innocence than his guilty verdict did. Neither would the debate over Porter’s fitness for office stop if he emerged from his prosecution with his presumption of innocence and parliamentary seat intact.

Alas, there is a third reason, the saddest and most telling, why rape charges against Porter would probably never have resolved whether or not Kate’s accusation was true: the prosecution would have put unbearable pressure on her. Every one of the friends, counsellors, journalists and police she spoke with have described Kate’s anguish about whether to pursue Porter’s prosecution. Many have disclosed the burdens of her lifelong experience of mental illness and the division between her friends and family about the reliability of her memories. She would have been told that, had a prosecution proceeded, there was a real possibility that Porter’s team could obtain and read her personal diaries and counselling records.

Devastatingly, we all now know of her twin acts on 23 and 24 June last year. On the Tuesday, she emailed NSW police to say that she would participate no further, citing health and personal reasons. On the Wednesday, she died in circumstances that are presently before a South Australian coroner. These events are and will likely remain unfathomable, but they cast a shadow of their own over both Porter and the criminal justice system.

It is surely one of these factors that NSW police commissioner Mick Fuller had in mind when he told a Sydney radio program last week, “The matter itself, even with the alleged victim, probably would’ve struggled to get before a court. These are challenging matters, particularly when they’re historic.” There is nothing uncommon about this, especially for sexual crimes. The criminal justice system often fails to settle the truth of disputed allegations. Indeed, doing so isn’t even its main purpose, which is to decide if enough evidence and public interest exists to warrant a court’s deciding whether or not to give the accused an official label (such as “convicted” or “acquitted”) and to impose a criminal sanction. The situation currently facing Porter — the system having stopped considering those options at the initial stage — is by far the most common criminal justice outcome for rape allegations.

What is uncommon in this case is that the complainant’s allegation against Porter has nevertheless been aired publicly, widely and in some detail by the media. What is even less common is that the accused rapist is not only a well-known public figure but a senior member of the national government. And what is perhaps unique in this case is that the revelation of the allegations coincided with a call from Kate’s supporters to find another official way to settle the ensuing debate.

Picture an inquiry that may well happen. An assigned decision-maker reviews all the available evidence gathered to accuse a public figure of serious misconduct. That figure offers the decision-maker his blanket denial of the accusations, and points out that his lawyer can’t cross-examine their source. After mulling over the conflicting accounts, the decision-maker issues her finding about whether the evidence satisfies the civil standard of proof: the balance of probabilities.

When Kate’s typed statement was forwarded to several MPs last month, an anonymous covering letter pointed out that an inquiry of this kind had happened in the first half of last year. (Indeed, in an odd coincidence, both the inquiry and its findings were revealed the day before Kate informed police that she would no longer be part of the investigation of Porter.) On Monday 22 June 2020, chief justice Susan Kiefel announced that an “independent investigation” she had commissioned had found that six of the High Court’s associates had been harassed by former justice Dyson Heydon, adding that she and her fellow judges were “ashamed that this could have happened at the High Court of Australia.” Journalists and Kate’s supporters say that a similar inquiry should be held into the allegations against Porter, arguing that the model was backed not only by the national court but also by the Australian public, who accepted the inquiry’s judgement on the judge.

I think that those commentators have seriously misunderstood that landmark event. The chief justice didn’t endorse, much less devise, the procedure she commissioned to investigate alleged harassment inside the national courthouse; instead, she did what every employer is legally obliged to do in the face of such allegations, lest they fail in their legal duties to their employees (and risk being sued for doing so). No matter how heartfelt, the same is true of her court’s public admission of judicial shame.

More importantly, Vivienne Thom’s inquiry — one that Heydon refused to participate in, claiming it was unfair in various ways — isn’t what convinced the public of his guilt. Rather, they were persuaded by the simple fact that Heydon faced six similar allegations of harassment, a classic result of the #MeToo movement. Had there been only one allegation against him, it is far from clear that Thom’s findings would have settled the issue of whether Heydon was a menace.

Indeed, it is unlikely that she would have made any finding at all. To see why, consider how, in 1938, a much earlier High Court dealt with a dispute about what happened after a late-night dance when a man accompanied a woman to her dormitory. In that case, a Victorian judge received secondhand evidence that one of them had later said the two had sex, but also heard the other’s furious in-court denials of any such thing. The judge declared that, while he “might well consider that the probabilities were in favour of” Clarice Briginshaw’s having committed adultery that night, he was “certainly not satisfied beyond reasonable doubt.”

That case proceeded to the High Court, which unanimously found that the judge had applied the wrong standard of proof, because this wasn’t a criminal case but rather a civil one (a divorce petition by Clarice’s estranged husband). Nevertheless, although Justice Owen Dixon said that the couple’s reported statements and circumstances “filled me with much misgiving,” neither he nor any of the other justices were willing to declare, merely because of the “probabilities,” that sex had occurred.

Much has changed since Frederick Briginshaw’s divorce petition in terms of attitudes and suppositions about sex, but the High Court’s judgement in Briginshaw v Briginshaw remains the uncontested authority on how Australia’s civil courts, workplace inquiries and professional discipline hearings must handle disputes about serious misconduct. Those tribunals cannot approach such claims the way they would resolve disputes about a customer’s fall in a supermarket, or how someone caught a dust disease, or what a contract said, simply by working out which of two options was the most likely.

To find a serious wrong, said Justice George Rich, “the satisfaction of a just and prudent mind cannot be produced by slender and exiguous proofs or circumstances pointing with a wavering finger to an affirmative conclusion.” “[T]he importance and gravity of the question make it impossible,” added Justice Dixon, “to be reasonably satisfied of the truth of the allegation without the exercise of caution and unless the proofs survive a careful scrutiny and appear precise and not loose and inexact.”

The judges didn’t say what would suffice, noting the myriad ways serious wrongs can be proved. But they did say what wouldn’t be enough on its own: two contrasting, plausible accounts of what happened where the decision-maker could not see or hear the accuser’s response to questioning about the accusation.

The upshot is that the most ballyhooed option to resolve the allegations against Porter would most likely produce no findings either way about what happened in 1988, at least if all the decision-maker had to go on were Kate’s various statements about the rape, in writing or to others. (Ominously for the ABC, the same is true for Porter’s just-announced suit, where, depending on the complexities of defamation law, the broadcaster may have to prove Porter was a rapist or face a significant cost.) Unsurprisingly, some commentators have since canvassed very different ways to respond to Kate’s accusation.

Justin Gleeson, the federal solicitor-general until 2016, initially proposed that his successor be asked: “Is the material sufficiently credible to justify an executive inquiry?” He added, improbably, that this “circuit-breaker” question could be answered in forty-eight hours. Just forty-eight hours later, Gleeson himself dropped that idea without explanation, presumably partly because assessing a rape accuser’s credibility is a strange task to give to a government lawyer (whose main roles are to advise and advocate for the government on constitutional and administrative law). The greater problem is that lowering the standard of proof cuts both ways. Any inquiry would surely find that both Kate’s and Porter’s accounts of events in 1988 were entirely credible ones, settling nothing at all.

Gleeson and others have since argued that an inquiry, rather than considering what happened in 1988, should solely examine what should happen now, given Porter’s simultaneous status as accused rapist and senior member of the government. Criminal law barrister Greg Barns proposes that an inquiry “headed by a retired Federal or High Court judge, conducted in private, with findings released in public, should examine the question of whether the nature of the allegations made against Mr Porter is such that, despite the presumption of innocence… the real possibility of an erosion of trust and confidence” means he should not remain in his current position. I suspect that — like most people proposing bespoke solutions to the Porter dilemma — Barns already knows which way this circuit would break. No former judge would ever declare that any single, untested allegation, no matter how serious, renders someone unsuitable for any public office, no matter how senior.

That is why, from the outset, the recent debate has partly centred on claims that unproven criminal allegations can have real consequences for some people’s employment: for example, in professional sports, in the legal profession, and in unsupervised work with others’ children. But these comparisons demonstrate the opposite of what their proponents intend, because throughout Australia a person is only stopped from working in each of these contexts if allegations are current or quite recent (typically indicating a serious risk to others) or a criminal charge has been filed (indicating the serious concerns of police and prosecutors). No precedent exists in Australia for an accusation of even the most serious juvenile conduct being enough, on its own, to trigger any sort of official action, decades later, by anyone. Anyone, that is, apart from the police.

Now, picture an investigation that never happened. After receiving Kate’s written complaint, police officers who are highly experienced with allegations of historical sexual crimes work through her statement, identifying potential angles for further inquiry. Then they systematically contact potential witnesses, notably the many people who were present at the intervarsity debating tournament in Sydney. They look for those who may have seen key events she recalls, including Porter and her together entering the Women’s College, her room and a shared bathroom, as well as other events in the days and months before and after that may cast light on the accuracy of her memories.

At the same time, the officers speak to the pair’s acquaintances over the decades to determine if either has said anything about those events and to collect other relevant details. They also gather whatever relevant written documents still exist, including records of the tournament and college, and other writing by or about Porter and Kate, the latter likely including highly sensitive diaries and medical records. Eventually, the police speak to Porter himself, giving him the opportunity to give his account and respond to Kate’s, but also uncovering new lines of inquiry his account suggests, wittingly or otherwise.

Or not. No one should fault the NSW police for doing little or none of this in the period between Kate’s visit to Kings Cross police station on 27 February 2020 and her death four months later. The police would have been all too aware of the risk Kate took in initiating an investigation and the dangers such inquiries posed to her health. Although it is not their sole concern, modern police rightly treat a complainant’s wellbeing as the paramount consideration, at least where the allegations raise no present risk of future offending by the accused.

The police also faced understandable difficulties during the pandemic that coincided with the investigation’s commencement, compounded by Kate’s own health problems (which she explained would complicate any communication she had with them). They had every reason to move slowly to maximise Kate’s agency and health, and little reason to hurry, so long as the accusations remained unknown to Porter.

Multiple politicians and journalists took exactly that approach when Kate told them of her memories, focusing on her wellbeing and decision-making rather than contacting the authorities or inquiring further themselves. Alas, such an approach is less likely in future, at least for accusations against federal politicians, thanks to an unfortunate recent intervention by the Australian Federal Police commissioner, Reece Kershaw. After he received a copy of Kate’s complaint in February this year, Kershaw wrote to all federal MPs emphasising their duty to report allegations or complaints they receive of sexual assault or other criminal conduct, including ones made by victims themselves, “without delay” and “irrespective of jurisdiction.” Although Kershaw advises that MPs should take “account of the rights and privacy of the victim,” it also states that “alternative actions by individuals” may amount to obstructing or perverting justice. This places any future politician who is contacted in confidence by a future Kate in an agonising (and, in my view, wholly inappropriate) quandary.

Tragically, that quandary became moot in Kate’s case nine months ago. The death of Porter’s accuser meant that the NSW police were no longer able to protect her welfare or agency, including by refraining from investigative steps that could have endangered her health. At the same time, it meant they could no longer contemplate a prosecution that rested largely or exclusively on her testimony, the usual and most likely way to obtain a conviction for such an allegation.

Contrary to some journalists’ assumptions, though, an accuser’s death doesn’t bar a future prosecution, which could still be founded on other, rarer, sorts of evidence, such as admissions from the accused, a pattern of similar behaviour or a strong circumstantial case from surrounding events and evidence that imply a rape occurred. (The Pell case itself is a unique example, as he was convicted in relation to two alleged victims, one of whom died years before the trial without speaking to the police, based on the eyewitness testimony of the other alleged victim.) Modern evidence law facilitates such prosecutions by relaxing the hearsay rule in the case of deceased witnesses, so long as a court is satisfied that the witness’s out-of-court statements (said or written in the presence of others) were highly likely to be reliable.

In short, Kate’s death made a comprehensive police investigation, previously a vital way to test her allegations before any charges were laid, the sole remaining path to deciding whether charges could be laid in relation to her accusations. And yet, the NSW police have made it clear that they have not investigated the case since her death. In response to questions from journalists (and, indirectly, the accused himself) as to why they never spoke to Porter about the allegations, they explained: “From a legal and investigative standpoint, due diligence is required, particularly in historical sexual assault allegations, to ensure that the matter is comprehensively investigated and all available evidence is obtained, reviewed, and corroborated where possible. Investigative strategies need to be considered as part of this best practice model. Providing a version to a suspect prior to obtaining a formal statement would have an impact on any future investigative strategies.”

This staged approach is a sensible one. One strategy police sometimes use to investigate historical allegations is to have the complainant phone the accused to attempt to elicit admissions of what happened, which is then recorded for later use. (Such a “pretext call” is unlikely to have been useful or appropriate to investigate Porter.)

The police then explained that Porter was never approached in Kate’s case, because she had never made a formal statement to them. “It is current standard practice in sexual assault investigative training,” they said, “that upon all of the available information being obtained (in statement form) that the formal allegation can and should be provided to the person of interest as per the procedural fairness principles for investigators, to be able to determine prima facie and whether charging of the person is appropriate.”

Again, this practice made perfect sense when Kate first approached police, particularly as it seemed she had not yet decided to go further. But the police have never cogently explained why this “current standard practice” should continue to apply even after such a statement is no longer possible, indeed to the point of barring the police from carrying out what they describe as the “best practice model” of a comprehensive investigation.

While much discussed, the lack of a “sworn” statement — what Commissioner Fuller has called an “admissible statement in court with a jurat” — from Kate is a red herring. The only relevant sworn oath Kate could have made was in a court. The statement she typed last September — which police say they only received after her death — doesn’t become more or less significant or admissible because it wasn’t sworn by her. Indeed, nothing she wrote in recent years could plausibly be admissible in a criminal prosecution of Porter.

Rather, the significance of Kate’s statement is in the investigative leads it provides. The anonymous person who forwarded that statement to federal MPs understood this, and included a covering letter pointing out other investigative avenues that could be pursued in addition to the statement. Strangely, the AFP’s Commissioner Kershaw opted not to pass that letter on to NSW police. The NSW police commissioner has since acknowledged that a media report by Kate’s ex-boyfriend, indicating that he recalled relevant conversations with both Kate and Porter, was something his officers could potentially follow up.

Ideally, the police would have obtained Kate’s written statement, if possible, in the aftermath of her death and conducted a full investigation then. Any concerns they had during that period — about the family’s welfare, the coronial inquiry to come and the unlikelihood of any prosecution ensuing — would have been rendered largely moot on 26 February 2021, the first anniversary of Kate’s initial call to the police, when Louise Milligan revealed Kate’s accusations to the public and to Porter.

While a police investigation carried out in the public eye would inevitably be very different from (and perhaps inferior to) a regular investigation, it would be far superior to the media investigation we have all recently been witnessing. It would also, in my view, be much more effective and apt than the ad hoc executive inquiry Kate’s supporters have called for, one whose powers and processes would always be contentious. If the police nevertheless fail to investigate, the best of the remaining alternatives would be the main process that governments use to fully investigate serious matters that the police can’t or won’t: a royal commission.

Christian Porter will most likely forever remain an accused rapist, no more or less, thanks to Kate’s tragic death and Milligan’s revelation of her accusation. Proceedings are currently on foot examining both of these things, but neither will necessarily examine what happened in 1988, much less do so effectively or appropriately. Rather, the best way to dispel the shadows cast by the trial-that-can’t-happen based on Kate’s testimony and the inquiry-that-probably-won’t-happen into Kate’s statement is an investigation-that-should-have-happened into all of the other evidence that could cast light, either way, on Kate’s accusation. •

The publication of this article was supported by a grant from the Judith Neilson Institute for Journalism and Ideas.

The post Christian Porter’s shadow appeared first on Inside Story.

As things turned out, I didn’t make it to that one either. Though I’m spry enough, age has beset me with a host of devilish susceptibilities, one of them being severe hay fever, which had laid me rather low. It heartened me no end, however, to learn that my savvy fifteen-year-old granddaughter was there, marching in my stead.

Now for a plug — but a highly relevant one. Just over a week ago, for International Women’s Day, the documentary Brazen Hussies was released on ABC iView, as well as in venues around the country. Having a small part in it, I’ve watched it several times. It’s a startling, illuminating film, and it’s been great to watch all my brave sisters speak about that time and see their younger selves in action.

It’s relevant because there I am among them, one minute a bride, the next a mother, and then, totally transformed, sitting on the floor in jeans listening to speakers at a women’s liberation conference. It’s hard to believe it was half a century ago. The times were, in a word, incendiary: the huge Vietnam moratorium marches; the campaigns against censorship and in favour of decriminalising homosexuality; the fight against racism; and then, at the tail end and mixed up in all of it, there was us.

At one of my first women’s lib meetings a woman whose name I didn’t know, but who became a close friend, argued that the women’s movement was even more important than the protest against Australia’s involvement in Vietnam. At the time, as the mother of four children under six with scarcely a minute to spare, I felt I had to choose, and she convinced me. From that moment I was not merely an angry woman — if more than justifiably so — but a committed feminist.

Fifty years later, there I was at home watching the day unfold on my laptop. First were the female MPs, beginning with Anne Aly, honouring the hundredth anniversary of Edith Cowan’s taking her seat in the House, our first female parliamentarian. Aly made history herself by being the first woman of Muslim descent to do so. It’s an emblematic reflection on where we are today that the electorate of Cowan, which Aly represents, is one of two WA seats considered for abolition in the proposed redistribution of electorates. The other is the seat of Pearce, which is Christian Porter’s.

Several moments stood out for me. The first was protest organiser Janine Hendry’s stroll through Parliament House, where she buttonholed the hapless deputy prime minister Michael McCormack, who distinguished himself by agreeing to look at the sex discrimination commissioner’s report on sexual harassment that had been sitting around from the year before, and claiming that he’d meet the protesters outside if he found the time. Equally memorable was her encounter with the ever-ebullient senator Jane Hume, who took her to task for having rejected the invitation for a delegation of women to meet with the prime minister and the minister for women in Scott Morrison’s office. Why refuse such an exciting opportunity? Because, as Hendry so cogently put it, she had read the room: the women outside wanted the prime minister to hear what they had to say, out in the open. And, reaching for the impossible perhaps, they wanted him to listen.

Then came one of the day’s most inspiring moments. The original plan was for The Project’s Lisa Wilkinson to read out a speech Brittany Higgins had prepared for the event. But Higgins had decided she wanted to give the speech herself. And what a speech it was, and what a delivery. The words that have stayed with me — “these people were my idols” — cut to the very heart of the Coalition’s problems. As with so many of us, her employers had lost her trust.

From Higgins the coverage moved to Grace Tame speaking in Hobart — again, brilliant, eloquent and fiery. The irony is that these young women are dignified in ways that the men and women in power are not. And if yet more proof of this were needed, we had the prime minister in question time reciting the paltry sums of money we women have managed to squeeze out of him, then topping it off with a gratuitous lesson in civics.

As for Marise Payne, our minister for women, who tried on 7.30, and again in question time, to defend the indefensible, I can only contrast these chilling, prefect-like performances with those of an earlier minister for women. The late Susan Ryan would have immediately gone out on the lawn to be with the women — arguing with them if she needed to, but at least she’d be listening.

It’s been almost half a century since I first went to work in parliament’s far less imposing, much more crowded, but arguably more congenial old building. And the revelations over the past weeks have set me wondering, as it has others, whether it was better or worse there for women back in the day.

The women’s movement took off while William McMahon’s Liberal government was still in office, and was instrumental in voting it out. With the Whitlam government came many significant changes, but there was still much to do, so many demands to meet. We focused mainly on getting childcare up and running, but equal pay, legalised abortion, equal education opportunity and anti-discrimination measures were also sought. We began funding health centres and refuges. The canvas was so wide because our status as women had been so very limited before. A couple of women sat in the Senate, but none in the House of Representatives.

What happened in the years since then? After Whitlam came a backlash; and even after Hawke was elected and Labor was in office again, Ryan had to fight long and hard for sex discrimination legislation. These were the “post-feminist” years, when the feminism that remained was all about middle-class career advancement, and so many of the services that had made even that attainable were privatised and priced out of reach.

For all that, so many women aspire to lives that we had scarcely dreamt of. Progress is undeniable, yet significant barriers remain — and they help explain the fury unleashed. And that fury is more focused on the horrific violence women can be subjected to, physical and sexual, in the domestic sphere and in the workplace, and even at the very centre of our democracy.

After cogitating on whether things are better or worse, I’ve also come up with disturbing remembrances of my own. Yes, I was groped by a cabinet minister once and never said anything about it — largely because I could scarcely believe it was happening, but also because I sensed there wasn’t much point. Who was going to believe me? I was also stalked by a highly respected man who worked in the building, and I did say something about that and wasn’t believed. Years later the man in question apologised. Fortunately I wasn’t raped, because in a dangerous moment a decent guy accepted without question my final rebuff of his advances. Thank you, I say to the wonderful young women who have made this the serious issue it always should have been.

I can’t see how a government that has lied so much so often, that has lost the trust of so many, can survive. When report after report about life-threatening shortfalls in funding for programs and services has been ignored, and Zali Steggall’s bill to make sexual harassment illegal has been summarily dismissed by the prime minister on the very day women all over the country were telling their stories and taking to the streets. When rampant patronage has been encouraged, and money spent unwisely and corruptly, and the threat of climate change has been minimised. When lives have been ruined by programs like Robodebt, and people like Bernard Collaery are targeted by punitive lawsuits and cover-ups.

I could be wrong. I often am. But for what it’s worth, here’s my advice to our parliamentary masters: it’s never a good idea to infuriate the people — maybe half the population or more — who happen to be paying your salaries. •

The post Then and now appeared first on Inside Story.

One witness was Ian Cunliffe, a former federal government lawyer who’d served on Justice Robert Hope’s late-1970s royal commission into the intelligence services. He had seen an Indonesian signals intercept concerning the Balibo deaths that he felt had been covered up.

Asked by his lawyer if he knew of other instances of intelligence being withheld from the government, Cunliffe instanced “a criminal trial in Sydney involving six defendants.” Canberra officials had agreed to keep material from the prime minister, he said, and had been willing to make intelligence material disappear if it was subpoenaed by defence lawyers.

During the court’s morning tea break, I asked Cunliffe which case he was referring to. “The Croatian Six,” he replied cryptically.

I had only the faintest recollection of the details of a case that had gripped Sydney nearly three decades earlier. As a young federal press gallery reporter I’d seen Labor’s Lionel Murphy and the Liberals’ Ivor Greenwood, two QCs from different sides of the street socially, do battle over Croatians living in Australia.

Murphy and many others on the left felt that the zealously anti-communist Australian Security Intelligence Organisation had ignored the threat of right-wing extremists, including former supporters of Croatia’s far-right wartime Ustase regime. Their fears seemed to be confirmed when a small group of Croatian Australians launched an armed incursion into Yugoslavia in 1972, crushed by Belgrade. Bombs went off outside Yugoslav travel agencies in Australia and military-style training camps were found in the bush.

Murphy and his supporters saw the contemporary Yugoslavia of Josip Broz Tito as a model of an open, non-aligned type of communism that reformists elsewhere could emulate. His feud with ASIO culminated in his controversial raid on the agency’s headquarters in 1973, accompanied by a posse of federal police. The idea that Australia’s Croatian community harboured fugitive war criminals was kept alive through the 1980s by author and broadcaster Mark Aarons; more recently, two thrillers drawing on the events of the early 1970s, written by ABC journalist Tony Jones, have helped sustain the violent reputation attached to Croatians.

Croatians and migrants from the other “captive nations” of Eastern Europe, on the other hand, had no illusions about communist regimes. They were more likely to support the Coalition, lend their services to branch-stacking efforts and help ASIO watch for Reds.

Cunliffe’s crisp response to my question set me off on a years-long tangent from my usual journalistic focus on Asia. It led me to research Balkan enmities, their diaspora echoes in Australia, and how some politicians and security agencies had favoured particular sides. It took me into the discredited NSW police culture of the 1970s and the inner workings of a high-profile Supreme Court trial.

Even then, it was an old case. In February 1979 a Yugoslav named Vico Virkez had walked into the police station in Lithgow, 150 kilometres west of Sydney, and said he was part of a Croatian conspiracy to plant bombs around Sydney that night. He was told to go home and act normally.

Later, police arrived from Sydney, arrested him and his tenant Maks Bebic, and discovered crude gelignite bombs in Virkez’s old Valiant car. With names supplied by Virkez, police also raided three homes around Sydney, in each of which they found two half-sticks of gelignite in the possession of a total of five other Croatian Australians, Joe and Ilija Kokotovic, Anton Zvirotic, Vjekoslav “Vic” Brajkovic and Mile Nekic. Taken to the old Central Investigation Branch at the back of Central Court, the five confessed to the bomb plot, as had Bebic in Lithgow.

That was the police version, anyway, and along with Virkez’s account it was enough for a jury to convict the six men of conspiracy in a terror-bombing plan, and for Justice Victor Maxwell to sentence each of them to fifteen years’ jail in early 1981. Those decisions were upheld on appeal the following year. All served their time with maximum remissions for good behaviour and were out of prison by the end of the 1980s. Their jailing didn’t improve the Croatian community’s already blackened image.

As I read the files, it quickly became clear that I was not the first person to have been tipped off by Cunliffe. Virkez, the informer, had been allowed to travel back to Yugoslavia soon after giving his evidence, and reporter Chris Masters had tracked him down to a village in the Serb-populated north of Bosnia in 1991. There, on camera, Virkez admitted he was actually a Serb, real name Vitomir Misimovic. He revealed that his evidence of the bomb plot had been false, that he had been coached in what to say in court by NSW police, and that the Croatian Six were, as far he knew, innocent.

After the interview featured on the ABC’s Four Corners, two defence lawyers from the original trial, David Buchanan and Ian McClintock, applied to the NSW attorney-general for the convictions to be reviewed. Three years after the broadcast, attorney-general John Hannaford decided against a review on the advice of two senior state government lawyers, Keith Mason and Rod Howie — advice still not public because of claimed legal privilege.

So, some thirteen years later, I set out on a much fainter trail. I discovered that Joe Kokotovic had split up with his wife Lydia while in jail, had a new family and was looking after his brother Ilija. Maks Bebic, married with two children, had started again in Geelong as a house painter. Vic Brajkovic had separated from his wife and daughter. Anton Zvirotic was somewhere in Melbourne. Mile Nekic had gone back to Croatia, but his time in Long Bay Jail had opened up his talent as an artist and his paintings had attracted considerable fame. All of them still insisted on their innocence.

The NSW Supreme Court’s registry pulled out the transcripts of the original trial, all 5000 pages in twenty boxes, and I spent weeks reading through them in between my other work for the Sydney Morning Herald.

It became clear that Justice Maxwell believed strongly in the integrity of the NSW police. All six defendants claimed to have been coerced during interrogation. The five taken to the Sydney CIB had listed bashings, kicks, partial strangulation and other physical violence, all of it denied by detective after detective.

Yet the defence found doctors and a nurse from Long Bay’s clinic who testified in a voir-dire hearing, with the jury absent, that Vic Brajkovic had arrived in jail with bruises to his face, loss of hearing in one ear consistent with having been kicked in the head, and burn marks around the neck consistent with strangulation. The defence also showed that the mugshot taken when Brajkovic was charged had been overexposed to hide the injuries.

Maxwell ruled that these revelations brought into question the voluntary nature of the written confession Brajkovic was said to have given — which he hadn’t signed but which was attested as genuine by a station inspector — and it could not therefore be brought as evidence. But he was making no reflection on police conduct, he added. And he refused to reveal to the jury during the trial that the confession, attested by police, had been ruled unreliable.

The judge also refused leave for the defence to summon police who had arrested a seventh Croatian that night in February 1979. A raiding party had brought in student Josip Stipic, and the magistrate at his committal hearing was told that they had found detonators in the drawer of his desk. After each officer had given this evidence, defence lawyer Jim McCrudden showed photographs of Stipic’s room: there was no desk, therefore no drawer, only a table. The magistrate discharged Stipic.

In his summing up, Maxwell told the jury it was a matter of whether to believe thirty-nine police officers or the six defendants, and a question of who had the motive to lie. The fact that he had suppressed two examples of police giving false evidence didn’t seem to bother him. It was, he said, “black and white.”

What also jumped out of the transcripts was the mystery of the informer Virkez. He had been tried separately by Maxwell, allowed to plead guilty on a lesser charge and held in custody until giving his evidence. Released, he was deported to Yugoslavia, where he received no penalty.

The voir-dire hearings included efforts by the defence lawyers to subpoena information about Virkez from ASIO and other federal agencies. Maxwell upheld Canberra’s objections on national security grounds without ASIO’s having to admit it had any such material. Crown prosecutor David Shillington could then argue, as he did, that there was “not a skerrick of evidence” that Virkez was some kind of Yugoslav agent or provocateur.

By the time I read the transcripts, the police involved in the case had all retired or in some cases been cashiered. The former CIB squads had been disbanded as hotbeds of corruption in 1979. Roger Rogerson, who led the raid on the Kokotovic house, had been dismissed in 1986. James Wood’s royal commission into the force had cut a swathe through the remaining ranks, and the Special Branch — which kept an eye on political and diplomatic troublemakers — had also been dissolved.

The former Special Branch officers who had joined the raids all refused to talk, as did several others. The NSW police said the Special Branch’s records were exempt from freedom of information requests. All they produced from other records was a collection of press clippings and charge sheets.

Rogerson was the only one willing to talk, so I went to see him at his home in the southwestern Sydney suburb of Padstow. Behind its neatly clipped lawn and security door, he was waiting for me, his famous charm on display: the steady blue-eyed gaze, the ready smile. His stoop from a back injury was showing, though it was much less pronounced than his crab-like walk a decade later when he was convicted of murdering a young drug dealer.

Seated in his den, he struggled to remember anything at all about the case. I reminded him about his interview with the ABC’s Neil Mercer in 1991, in which he’d admitted that the state’s CIB squads regularly fitted up known criminals. “The planting of a gun or explosives…” he told Mercer. “You know, a couple of sticks of jelly, found in their car or in their possession… It was all done in the interests of, ah, truth, justice and ah, and ah, keeping things on an even keel, and keeping the crims under control.”

“I never did it myself,” he hastened to tell me. “But there are many old stories, you might say urban myths, of famous policemen.” As for planting the gelignite on the Croatian Six, “you’d want to have guys with you whom you trusted implicitly,” and in this case there were just too many people from different squads. Even if he came out and said the Croatians were bashed and fitted up, everyone would put it down to “a jealous old bloke” getting back at the police force that dismissed him without a pension.

I put all this into a long piece for the Herald in 2012, arguing for a fresh look at the convictions on the basis of the Wood royal commission’s findings, new material emerging from scholars like John Schindler of the US Naval War College about the murderous war waged on the Croatian diaspora by Yugoslavia’s security service, the UDBa, and Virkez’s withdrawal of evidence.

David Buchanan, joined by a younger lawyer, Sebastian De Brennan, put a fresh application for a judicial review to NSW chief justice Tom Bathurst, appointed after the Coalition had taken government in New South Wales the previous year. Bathurst asked an acting justice, Graham Barr, to assess whether a review was warranted.

Barr reported that he’d found nothing in what he read to cause him any unease about the convictions. The police evidence was enough to convict, he said, whatever the doubts about the Virkez evidence, and Rogerson, after all, had explained the problems about planting evidence. The police of 1979 could not be held retrospectively to present-day standards that require the taping of interviews and ban unsigned “verbals” of the kind attributed to the Croatians.

In November 2016, though, another opening emerged. Military historians John Blaxland and Rhys Crawley published the third volume of the Official History of ASIO, covering 1975–89, the final years of the cold war. In a book vetted by the organisation and based on free access to its archives, they wrote that Virkez had been working as an informant to a suspected UDBa officer in the Yugoslavian consulate-general in Sydney, that ASIO regarded many of the alleged Croatian bombings as “false-flag” operations by the UDBa, and that ASIO had failed to note the seriousness of Yugoslav intelligence activity here. The result, they concluded, was the “wrongful conviction” of the Croatian Six.

I returned to the case, filing applications to see the ASIO records on which Blaxland and Crawley had based their conclusion. In mid 2017, I travelled to the former Yugoslavia in an effort to find records of the disbanded UDBa and former personnel who might talk. It brought the tortured Balkan history very much alive to me, and I met many young historians delving into the UDBa story. They agreed that getting Virkez to set up the Croatian Six was entirely characteristic of UDBa operations.

A senior former UDBa official in Belgrade agreed. But before switching their services to the new independent Croatia, the local UDBa had cleansed the Zagreb archives of incriminating material. The former federal UDBa archive was locked up in Belgrade by the present-day Serbian intelligence service, who did not respond to a request for access. Vico Virkez had died in 2014.

Then, in January 2018, a message arrived from the National Archives that certain files had been opened, though with redactions. I went to Canberra and found myself reading through two files on Virkez. They showed that he had been working with a UDBa handler in the Sydney consulate for six months before the arrests, speaking by telephone and meeting in Sydney, in all cases monitored by ASIO.

After the arrests, ASIO quickly concluded Virkez was the man working with the UDBa officer and circulated this information around state police forces through an intelligence channel. The reaction at NSW police headquarters was dismay. Assistant commissioner Roy Whitelaw contacted ASIO to say that if the men’s defence team became aware of this information, “it could blow a hole right through the police case.”

ASIO was initially inclined to let the NSW police reveal the information about Virkez as long as the source and wire-tapping involved were not revealed. It appears that Whitelaw opted not to pass it on, certainly not as far as crown prosecutor Shillington. With the court case set, ASIO then opted to throw a blanket around the evidence, persuading federal attorney-general Peter Durack to strenuously oppose the defence subpoenas during the trial and appeal.

Under its chief at the time, Harvey Barnett, ASIO tried to tone down its assessment of Virkez from “agent” to mere “informant.” Barnett wrote in the file that this reduced the likelihood of ASIO’s being accused of having been party to a miscarriage of justice. The Hawke government’s attorneys-general, Gareth Evans and Lionel Bowen, then signed off on moves to prevent Ian Cunliffe, by then secretary of the Australian Law Reform Commission, from raising his misgivings regarding the suppression of evidence about Virkez.

As Whitelaw correctly saw, this blew a big hole in the case against the Croatian Six — not just the information itself but the act of hiding it. As the counsel for the NSW Crown, Reg Blanch QC, admitted in 1986, during the brief and forlorn attempt by the Croatian Six to appeal to the High Court, it was “almost automatic” that a miscarriage of justice would be created by failure to convey relevant evidence to the defence.

This cover-up was detailed in my book on the affair, Reasonable Doubt: Spies, Police and the Croatian Six, which was published in 2019. Soon after, concerned lawyers — De Brennan and solicitor Helen Cook, with opinion from David Buchanan SC — began working pro bono on a new application to the NSW chief justice, who is still Tom Bathurst QC.

The application includes more recent evidence revealed by ABC Radio National producer Joey Watson in his two-part documentary on the Croatian Six, broadcast early last month on The History Listen. Watson rang all the surviving police he could trace. Some couldn’t remember anything; others told him to “fuck off”; but one talked, not for attribution, and said his raiding party had found no gelignite. (None was photo-graphed at the scene, fingerprinted or shown to the court.)

The application was served in the Supreme Court on 15 February 2021, with copies to NSW attorney-general Mark Speakman SC and NSW solicitor-general Michael Sexton SC. Their decision is expected later this month. Whether a case often compared to the Guildford Four and Birmingham Six convictions in Britain will receive an open review rests in their hands. •

• December 2022 update: In August 2022, after a series of delays, the NSW Supreme Court ordered a judicial inquiry into the convictions.

The publication of this article was supported by a grant from the Judith Neilson Institute for Journalism and Ideas.

The post Held captive by cold war politics appeared first on Inside Story.

Between 2009 and 2017, the annual prevalence of assault fell by a third and attempted assault fell by almost a quarter.

Professional fearmongers like Alan Jones may refuse to acknowledge it, but this drop in crime is crystal clear in the data. It is evident in all states and territories, it can be seen across almost two decades of reporting, and it appears in multiple independent datasets, including successive national crime victim surveys conducted by the Australian Bureau of Statistics.

And before you ask: no, people aren’t less likely to report crime. The public’s willingness to report crime has barely changed; in many cases it has increased.

It’s not all good news: reported sexual assaults have increased by 10 per cent since 2017, and internet fraud — perhaps not surprisingly — has doubled since 2007. And there’s been a small uptick in reported crime since the book’s data were compiled. But the statistics leave us with an obvious question: what caused crime to fall?

This is the question Don Weatherburn and Sara Rahman explore in their new book, The Vanishing Criminal, released this week by Melbourne University Publishing. They pick apart decades of research on the causes of crime — from lead in petrol to a relatively youthful population — to see which of these theories best explains the fall in crime in Australia.

Their findings, based on rigorous econometrics and extensive data analysis, make the way many journalists and politicians talk about crime, and the best ways to reduce it, look a bit silly.

Weatherburn and Rahman start by ruling out the theories that make little sense in the Australian context. There’s no credible evidence internationally, for example, that the death penalty or the right to carry guns reduces crime in the first place. But they certainly haven’t reduced crime in Australia since we have neither.

Other theories — that crime has fallen because of increased immigration or the strengthening of families, community groups or other social institutions — can be dismissed based on the sheer size of the fall in crime. Changes in immigration have been too small and too gradual to explain the big changes in Australian crime rates, and the fall in crime was too fast and too sudden to be explained by changes in social institutions that take decades to evolve.

American studies have found that the removal of lead from petrol eventually reduced crime by preventing the delinquent behaviour that comes from exposure to lead as a child. But the timing doesn’t work in Australia: lead was removed from petrol well before crime began to fall.

The same is true for abortion. American studies famously found that legalising abortion reduced crime around twenty years later (the idea being that unwanted children are more likely to commit crime). But given abortion was legalised in Australia almost thirty years before rates of theft and robbery started to fall — and almost forty years before assaults started to fall — Weatherburn and Rahman question whether it has played much of a role.

Improvements in psychiatric medications, shown in American studies to reduce rates of assault, face the same problem. Not only is there little evidence that these drugs reduce income-generating crime like burglary, but they began being prescribed in Australia well before assault rates started falling in 2008.

So, what has caused the drop in crime?

It turns out that the teenager in your family is about eight times more likely to commit a crime than grandma. Weatherburn and Rahman find that Australia’s ageing population explains about 22 per cent of the fall in theft and assault, 21 per cent of the fall in homicide and 18 per cent of the fall in robbery. Fewer young people means less crime.

Improvements in security and technology have helped. The fourfold increase in the number of cars with immobilisers in New South Wales from 2001 to 2017 explains much of why motor vehicle thefts fell 97 per cent (along with new technologies like “microdots”). The effect of improved security and technology on overall crime is less clear, particularly since strengthened security in one area can shift criminal activity towards less secure targets.

Alcohol played a big role in assaults. The decline in alcohol consumption among young people — the cohort most prone to assaults — appears to be the primary, if not only, reason for the decline in assault. And while the use of hard drugs like crystal meth has been shown to increase violent behaviour, the increased usage of these drugs has (so far) coincided with a fall in crime rather than an increase in it.

Improvements in the economy have also been shown to reduce crime. In surveying the literature, American economist Steven Levitt reckons that a one percentage point fall in the unemployment rate sees a one percentage point fall in crime: too small an effect to be driving the fall in crime we’ve seen in Australia, but nevertheless an important part of the story.

What about politicians’ favourite: being “tough on crime”? The available evidence suggests that prison has little, if any, specific deterrent effect for potential reoffenders. The relationship between crime and rates of imprisonment is weak. The threat of mandatory minimum prison terms for assault also has no general deterrent effect on the assault numbers. And while an increase in the number of police has been shown to reduce crime, the size of this effect is disputed and depends heavily on the tactics and strategies those police use and the prevalence of police corruption.

What does this mean for policymakers and those in the media?

First, they need to get their facts straight. Political rhetoric and media reporting should have at least some grounding in reality. The fact that the rhetoric and reporting has increased significantly over the very years crime has plummeted suggests that some of our journalists and politicians are, at best, deeply ignorant of what they are talking about or, at worst, deliberately whipping up fear in the community.

Second, when we talk about reducing crime, we should be talking less about jail, police and laws and more about reducing alcohol consumption, reducing drug use, advancing and improving access to safety technology, creating jobs and generating economic growth. The future will hold new challenges when it comes to crime. If we are to solve them, we need to start prioritising reality over rhetoric, and information over ideology. •

The post Where have all the criminals gone? appeared first on Inside Story.

We know — or think we know — what happened next because everything that happened during these engagements was carefully recorded at the time, pored through by analysts back in Tarin Khot and Kabul, and then noted down in an extensive series of after-action reports. Military historian Rhys Crawley is ploughing through these at the moment, conscientiously compiling the official history of Australia’s engagement. That’s what we know — the facts repeated and the successes trumpeted by Defence’s public relations department at Russell Hill in Canberra.

The truth, of course, is a different thing altogether.

As a journalist I’ve spent time embedded with the Special Forces Task Group and also “outside the wire.” The narratives that I heard during this period were dramatically different from each other; it all depended on whom you spoke to. The sad reality was that reporters couldn’t risk travelling independently in the Australian area of operations — it was just too dangerous. So there was no verifiable evidence of what was really happening, especially in those remote areas where the Taliban were operating.

We knew the policy was to strike hard at the Taliban, interdicting the supply lines stretching from the wilds of the Pakistan border to Kabul itself. Special Forces were used repeatedly to eliminate enemy commanders and small insurgent forces and dominate the terrain. In this way, the Special Forces evolved from its original role, as a strategic force providing vital intelligence and engaging only in absolutely critical actions, into a “kinetic” unit, used constantly to “take out” people who were supposedly enemy commanders. No longer a strategic reserve, it became the tactical force of choice.

These aggressive patrols, together with body counts never openly discussed, offered the illusion of progress and even the possibility of victory. No one wanted, or felt the necessity, to look too deeply into the brief period after those instants of chaos in which the battle was fought. Nobody worried too deeply about what happened when the area was being secured: after all, these were critical missions. The SAS was cutting off the head of the growing insurgency, killing enemy commanders and leaving peasant farmers alone.

What’s important to realise is that these are the moments that Justice Paul Brereton investigated during his probing of alleged war crimes. Not what happened during the action, when soldiers were making split-second decisions under fire, but what occurred afterwards. This is what is so shocking about his revelations.

These are not instances that can be shrugged off with the casual comment, “Oh well, that’s what happens in war.” Brereton investigated killings — murders — committed after the fighting had finished.

If you wonder, even for a moment, about the care and precision with which he completed his task, then read his report (or at least those parts of it that are not expunged, which include the entire six volumes of part two, almost certainly many hundreds of pages). Then, if you still doubt the possibility that Australian diggers killed potentially innocent Afghan civilians, watch the videos and read the published accounts in the media.

With no preconceived agenda, no axe to grind, and an extensive experience of the military (Brereton trained as an infantry officer in Sydney University Regiment and has served, part-time, for most of his life), the lawyer went about his task carefully and meticulously. He interviewed people, interviewed them again, then travelled to Afghanistan. He immersed himself in gathering evidence and exploring the totality of what passed in the moments following the battle. This is where our focus will be drawn over the next few years: to questions of detail.

Civilian juries will be deciding not just if events occurred the way they are described in the report on the balance of probability, but if they happened this way beyond reasonable doubt. What is on trial is rapidly emerging as much more than the guilt or innocence of individual soldiers. Legal teams and, perhaps more worryingly, public relations and other consultants have already been briefed and are entering the arena to debate the prosecution before any charges have been laid.

These will not simply be trials about the soldiers’ actions. The ramifications will be far more significant. The decision to intervene, coupled with the subsequent decisions of governments of both persuasions, is on trial because it will be impossible to separate them from broader policy issues and questions. When they are delivered, the verdicts will not only deal with what happened in Afghanistan: they will be a judgement on the Anzac myth of the exceptional digger and, because of this, the very value of using military force in places like Afghanistan.

In the meantime, many soldiers will suffer in ways big and small as a result of the actions of the few. On the morning that General Angus Campbell released the report he also announced that the meritorious unit citation — a small federation star on a golden background — will be stripped from members who had served with Special Forces. Because this special badge was awarded to the entire unit, it makes eminent sense to withdraw it. But that’s not the way it appears to many of the soldiers, who will now have a gap where it was once pinned on their uniform.

There’s no point, now, in attempting to tease out what actually happened on the fifty-seven occasions where Brereton finds a war crime was committed. The courts will do that. The 1000-plus pages of the unredacted report focus on twenty-three instances where he believes that twenty-five Australian soldiers (mostly, but not all, members of the Special Forces) made conscious decisions, completely removed from the heat and confusion of battle, to illegally kill thirty-nine Afghan civilians (and severely mistreat two others).

Brereton has outlined a clear path forward, but it’s littered with jeopardy on either side. How can evidence initially given under compulsion be used? Why are some junior soldiers apparently being given indemnities from prosecution in return for evidence that may convict more senior soldiers? Can such evidence really bear the burden of proof — “beyond reasonable doubt” — that such cases require?

Each crime has been individually and carefully detailed, ready for the prosecutions brief to be compiled. It’s this precision that furnishes the inquiry with incredible strength. But it also leaves a vacuum at its centre, because these aren’t the only issues that need to be fixed.

The investigation has exposed a great deal more that needs to be tackled. First, there are the problems within the structure of the army itself, particularly evident in the separate martial culture that has been allowed to develop within the Special Forces. The units have become isolated from the mainstream and have acquired a hallowed, almost untouchable reputation. As its one-time members have been promoted up the chain of command, it’s acquired the gloss that has made even a brief period of service appear a prerequisite for higher positions.

It’s vital to keep in mind that instead of ending the insurgency, the violent tactics adopted by the units appear to have exacerbated the violence and created new enemies. All those raids were, in the end, utter failures. Instead of strategically successful strikes at critical, irreplaceable Taliban assets, it’s now clear that the Special Forces mainly achieved short-term or tactical successes. And when they began killing civilians, they began working actively against the entire mission.

In some parts of the military a clear rectification plan has been outlined and already begun. In others, however, no way forward seems to have been charted. The reluctance to tackle the full dimensions of the problem is understandable, but will do nothing to solve it.

The second issue is the effectiveness of the Special Forces. This is, after all, the entire reason the investigation began. Sociologist Samantha Crompvoets was called in because the (then) Special Forces commander was aware of this problem and needed her technical assistance to take it further. If her report helped prompt the subsequent investigation, it was only because the ground had already been tilled and prepared for exactly that outcome.

The commanders were well aware that something had gone wrong, particularly in the SAS. It wasn’t the unit it had been before successive commitments in the Middle East. In particular, senior non-commissioned officers were effectively running the regiment. It was focusing on “kinetic” action, almost to the exclusion of its other tasks. This situation needed to change, and quickly.

Against that background, another way of looking at the Brereton inquiry is through a management prism. Last Thursday the inquiry provided a reason for removing ten further members of the SAS. It has proved an extremely effective way of bringing the unit back under control by shaking out the bad apples. The SAS today is a very different beast from the one that deployed, time and time again, into Oruzgan.

Finally, these accusations have opened deep fissures, not just in the military but across the country. The Anzac myth, with its image of the larrikin digger, looms large; but now we’ve found it has a very dark shadow. Many Australians will be challenged by this revelation and feel it represents a direct assault on their own identity. It’s amazing how many individuals, including those who have never joined up to serve, hold such definitive views about Anzac. Some people I’ve spoken with, most of whom have no idea what the soldiers have been accused of, have attempted to dismiss the charges as simply applying to “what happens in war.”

Others, of course — people already suspicious of the warrior ethos that holds such a dominant place in our society — have already swung instinctively the other way. For them nothing good was done in Afghanistan and prejudice against the military has merely grown.

What was once an icon, a binding figure that could be used by politicians to hold the country together (as well as a political prop) no longer possesses unquestioned authority. People are looking at the army and, if not actually finding it wanting, certainly keen to examine it.

The biggest questions are strategic. How could it be that this country sent soldiers to patch up Afghanistan only to have a significant number go rogue, turn themselves into gods, and arrogate to themselves the right to decide who would live and who would die? What was the point of all that money, all those lives lost?

No matter the care with which you read the narrative, you won’t find the answer to either of these critical questions in Brereton’s pages. Instead of closing the cover on a dark chapter of our history, it ensures that these issues will continue reverberating for a long time to come.

No matter how the individual war crimes allegations are resolved, Brereton’s report challenges something far more significant — our way of understanding what it means to be Australian. Society works through stories. We knit together narratives and use these to tell ourselves about who we are, to justify our behaviour and to explain why we’re acting the way we do. That’s why stories are critical. They are the frames of reference inside which we make meaning for our lives.

The Anzac myth has become one of the country’s most powerful ideologies. It’s been used, quite deliberately, to shape modern Australia. Both sides of politics have borrowed these stories to help elevate the shallow mechanics of government into something transcendental. In the nineties, prime minister Paul Keating bent down on the Kokoda Track to kiss the ground defended by young men during the second world war; in 2015, the narrative switched to Gallipoli when prime minister Tony Abbott insisted that the diggers had played a critical role in “the founding of modern Australia.”

The revered Anzac has become much, much more than an unquestionable truth. The image of the selfless digger has come to play a special role in the way we perceive our society and its actions. Brereton’s investigation means the country will need to find a new way of understanding itself without looking for a martial glue to hold things together. Politicians will need to find a new way of justifying their actions without wrapping themselves in the flag and slouch hat.

One of the great foundational myths of the country has suddenly come unstuck. Perhaps there really is nothing so unique about the Anzacs after all. And how can we trust all those other things we’ve been told? •

The post After the battle appeared first on Inside Story.

The scandal was manna from heaven for Australia’s top-end-of-town corporates, who frequently use the business media to voice their disapproval of all things ASIC. In the space of a few days, the regulator was criticised for being dysfunctionally managed, having a poor organisational culture, adopting an excessively theoretical approach, being inclined to regulatory overreach, failing to contribute positively to the Australian economy and having a poor enforcement record — the latter evidenced by what the Australian Financial Review’s Karen Maley describes as a “humiliating” string of recent losses.

John Farrar, an emeritus professor of corporations law, describes the Corporations Act 2001, the principal statute administered by ASIC, as “unlovely and unloved.” If the Corporations Act is unloved, ASIC is its whipping boy.

But what is it about ASIC that draws such heated criticism? And what motivations lie behind headlines calling on the treasurer to “take the axe” to the regulator? Passions don’t run nearly as high when other regulators — AUSTRAC or the ACCC, for instance — are in the frame. AUSTRAC, Australia’s money laundering and counterterrorism finance regulator, is considered Australia’s most feared regulator, thanks largely to its success in two cases against the Commonwealth Bank of Australia and Westpac Banking Group Ltd. The ACCC, Australia’s competition watchdog, is known as the “can-do” regulator, trusted and supported by business and government to get the job done, despite a mixed enforcement record. It has lost three major cases — against telecommunications company TPG (on appeal), Kimberly-Clark and Employsure — in 2020 alone.

Chief among the differences is the size of these regulators’ respective remits. AUSTRAC and ACCC have discrete regulatory responsibilities: financial crime in the case of AUSTRAC, anti-competitive behaviour and consumer law in the case of the ACCC. By comparison, ASIC has a smorgasbord of responsibilities, covering all aspects of corporate life including the responsibilities of directors, officers, auditors, liquidators and external administrators; share transactions including mergers and takeovers; the regulation of financial services, credit, and superannuation and managed funds; and overseeing parts of the banking executive accountability regime. ASIC’s vast regulated community takes in approximately 2.8 million companies, and data sources suggest that it also regulates more than 2.1 million directors, 3000 registered auditors, 6000 financial service licence holders, 500 superannuation funds and 11,000 managed funds.

ASIC’s objectives are equally ambitious. It must strive to facilitate and improve the performance of the financial system and the entities within it; reduce business costs; improve the efficiency of the economy; promote the confident and informed participation of investors and consumers in the financial system; receive, process and store company information and ensure it is available as soon as practicable for access by the public; and generally give effect to the laws it administers.

It is to the question of whether ASIC is achieving these objectives that the chorus of criticisms is addressed. In encouraging Treasury to “take the axe” to ASIC, the regulator’s opponents conveniently forget that the current government inquiry into ASIC concerns irregularities in its internal governance procedures, not the performance of its regulatory objectives. The Australian Law Reform Commission’s forthcoming three-year review of the legislative framework for corporations and financial services regulation is a more appropriate place for a serious consideration of the business community’s criticisms.

Much is made of the fact that ASIC lost two enforcement cases in 2020: one against Westpac under the responsible lending laws, known as the “wagyu and shiraz” case; and one against a former chair and a non-executive director of Tennis Australia, Stephen Healey and Harold Mitchell. These cases are the basis for the charge, by Karen Maley among others, that ASIC has suffered “humiliating” losses. Leaving aside the merits of the two actions, the accusation is both unfair and unreasonable. Two losses don’t an enforcement disaster make; ASIC’s enforcement successes merit equal mention. So far this year, it has logged wins against the NAB, Westpac, AMP, the Commonwealth Bank, MFS, OTC and Emmanuel and Julie Cassimatis, directors of Storm Financial. ASIC’s critics want only to discuss its failures.

The wagyu and shiraz case concerned the obligation of banks (in this case Westpac) to properly assess the ability of loan applicants to repay loans, after taking account of their actual living expenses. ASIC alleged that Westpac failed to carry out a proper assessment, relying instead on an automated process known as the Household Expenditure Measure, or HEM. At trial, Justice Perram found against ASIC, determining that Westpac hadn’t breached lending laws by relying on the HEM. Customers’ current living expenses weren’t an important indicator of whether they could afford the loan, he said, because those expenses could be cut if necessary to meet repayments. “I may eat wagyu beef every day washed down with the finest shiraz,” he said, “but, if I really want my new home, I can make do on much more modest fare.” ASIC lost the appeal against this judgement before the Full Federal Court, and after significant pressure from the federal government announced it would not seek special leave to appeal to the High Court.

The business media argues that ASIC tarnished its reputation by persisting with the case and failing to realise that the responsible lending laws were choking off credit to households and small business during a pandemic-induced recession. The Financial Review’s Jennifer Hewett contended that ASIC’s failure to read the government’s change of mood on this issue led to Treasury’s punishing ASIC for overreach by taking those laws from ASIC and handing them to the banking regulator, APRA.

That view fails to take account of ASIC’s role and objectives. Nowhere in its enabling statute is ASIC required to take account of Treasury’s “mood.” Its statutory role is to give effect to the laws it administers — which is exactly what it was doing in acting against Westpac, and then appealing the judgement, in order to clarify and make consistent the laws’ longer-term application.

No one would suggest that ASIC should only bring cases that it has a 100 per cent prospect of winning, though, as a model litigant with limited enforcement resources, it must of course act in the public interest and ensure that the cases it brings have reasonable prospects of success.

The critics are on firmer ground in relation to the Tennis Australia case, in which Justice Beach found that ASIC had committed confirmatory bias in the pleadings and evidence presented to the court. This criticism calls into question ASIC’s tendency to take a scattergun approach to enforcement, as evidenced by its court pleadings in the case. ASIC alleged forty-four grounds of director misconduct against Harold Mitchell and four against Stephen Healy; Justice Beach dismissed all the claims against Healy and found Mitchell committed three of the alleged breaches.

The mind-numbing length and particularity of ASIC’s court pleadings against Mitchell raises questions ASIC is no doubt already asking itself. Was bringing such a detailed case wise, or should it have gone ahead only with claims it could defend with a high degree of confidence?

Again, though, vital facts got lost in the media commentary. ASIC succeeded against Mitchell on grounds including the passing of confidential information to a party with whom Tennis Australia was negotiating an extension of broadcast rights. At no point has the business media paused to reflect on the significance of that finding and the impact that it should have on Mitchell’s career as an ASX director — a career that continues without criticism or demur from the voices that slammed ASIC for bringing the action against him.

Underlying the criticisms of ASIC’s enforcement record is a deeper concern in corporate Australia about ASIC’s mode of doing business in the wake of the 2018 banking royal commission. In his final report, commissioner Kenneth Hayne criticised ASIC’s well-established practice of using regulatory settlements known as enforceable undertakings rather than taking matters to court. These settlements led to cosy backroom deals between the regulated and the regulator, he said, encouraging the view that non-compliance with legal obligations was a cost of doing business that could be resolved without an admission of liability. On Hayne’s recommendation, ASIC adopted the “Why not litigate?” approach that is causing business and its media sympathisers so much heartache. It will still accept regulatory settlements but in far rarer circumstances than previously.

With this new approach, the cooperative mode of regulation favoured by corporate Australia changed overnight — not just in enforcement but across all interactions between ASIC and its regulated community. ASIC has the statutory right to exempt, vary or modify the strict application of the law in many circumstances, so long as it can show that its grounds for flexibility are appropriate. Dealings based on cooperation and consensus suddenly became much harder in the post-Hayne era of increased court action by ASIC. At the back of the regulated party’s mind was the bubbling suspicion that what is said or done during a negotiation with ASIC could end up being used in enforcement proceedings.

Corporate Australia would like to see ASIC abandon its singular focus on court-based enforcement. But that would be far from simple. Following on from the banking royal commission, the federal government allocated an additional $400 million to ASIC to enable it to bring the very type of enforcement cases it has recently pursued. The government also passed laws that significantly increased the civil penalties and criminal sanctions attaching to contraventions of the Corporations Act. ASIC took the government at its word, appointing Daniel Crennan QC as head of enforcement and launching a raft of investigations and court cases from the findings of the royal commission.

Almost two years later, the headlines focus on ASIC’s failings and failures, not on its wins or its valiant efforts to resurrect its reputation in the wake of the royal commission. How well the regulator discharges its statutory functions or exercises its powers has simply no part in the current review of ASIC’s governance and accountability. Any shift back would also be premature. Commissioner Hayne recommended that ASIC and APRA should be the subject of quadrennial capability reviews, and ASIC is not even halfway through the first four-year pre-review period. It should be given a chance to do its work without a constant mood of crisis, especially when that crisis seems to be entirely generated by questionable self-interest. •

The post Follow the money appeared first on Inside Story.

In the chair was Justice Elizabeth Evatt, who would become the first chief judge of the Family Court of Australia in 1975. She was joined on the commission by Anne Deveson, a trailblazing journalist with a passion for social justice, and Felix Arnot, the progressive Anglican archbishop of Brisbane. Their terms of reference were extremely broad: they had to examine the “family, social, educational, legal and sexual aspects of male and female relationships,” with a focus on sex education programs, medical training in sexuality, family planning, pressures on women in relation to children and family, and the legal and medical status of abortion.

The commission invited Australians to tell them “what do you think?” about sex, abortion, family life, family planning, parenthood, childcare, women’s rights and homosexuality.” People responded to this call in many ways. They gave evidence in person. They phoned in. They participated in research. They wrote official submissions that were available to be read while the commission was sitting. All of this material informed their final recommendations — more than 500 of them, published in five hefty volumes, that caused a sensation when they were finally released in 1977.

The submissions were as diverse as the people who wrote them. Whether they were typed on letterhead, or handwritten on floral stationery or in block letters on plain paper, they expressed a range of emotions: love, anger, loneliness, bewilderment, determination. People wrote with ideas for how to make human relationships better. They wrote to plead for political and social change or, sometimes, to prevent it.

When submissions arrived at the commission’s offices in Sydney, they were numbered and sorted into folders. The submissions on abortion offer a snapshot of the community’s polarised views. The push to liberalise abortion laws at the very beginning of the 1970s had inspired the formation of groups who challenged reform, such as Right to Life Australia. On the day parliament debated the abortion bill, women’s groups constructed a “women’s embassy” on the lawns of Parliament House, an appropriation of Indigenous protest strategies that dramatised women’s exclusion from the debate taking place inside the parliament. But they were outnumbered by their Right to Life opponents, who reportedly sent thousands of letters and telegrams to MPs urging them to reject any reform.

So it is unsurprising that many Australians wrote to the royal commission to oppose any liberalisation of abortion law on the grounds that it was a moral affront that would undermine the traditional family. These letter writers saw abortion as a “degrading” practice that lowered the “moral standard” of the family, and of society more broadly.

In contrast to this language of family, nation, and moral standards were other submissions, like this one from “Mary,” which was later included in Anne Deveson’s book about the royal commission, Australians At Risk:

Here is a personal testimony of what I had to go through to get an abortion in 1965. I was over forty three years old, but had a very young family; a girl under nine and a boy four. My loving partner was an alcoholic who made my life painful and unbearable, without hope or future.

Falling pregnant again, Mary had searched without success for a doctor who would terminate the pregnancy, her mental health deteriorating rapidly. When she finally obtained the abortion, she found that the doctor had also given her a hysterectomy without her consent. “I was given no explanation for this and no psychological follow up,” she wrote. “I hope no other woman has to live through a similar experience… [M]y nightmare of four months has given me the impetus to fight for abortion law appeal.”

In writing to the commission, Mary placed a deeply private memory on the public record to make a claim for abortion law reform. Other men and women wrote with similar intentions. Women who had experienced violent relationships narrated their experiences with uncaring police. Gay men and women wrote of the shame they felt concealing their sexuality. Mothers wrote about the difficulty of balancing family and work.

While the commission took testimony from doctors, social workers and other recognised experts, many of the people they heard from were ordinary citizens whose authority to speak derived from their private experiences. Many of these people were not only heard through their submissions, they also contributed to the commission’s public hearings, which attracted consistent media attention.

The commission enacted a kind of public intimacy similar to that which animated many of the social movements of the decade. It was a new way to talk about private life and about a new political strategy. It is best summed up by the women’s liberation slogan, “The personal is political,” an insight that emerged from “consciousness-raising,” the group discussions of personal life used to build political communities.

Women’s liberation and gay liberation were animated by this idea. The idea that the personal was political made Australians rethink the boundary between public and private. It changed our political and social life. All too often, though, this change has been obscured when we tell the national story of the 1970s.

We have long viewed the 1970s as a decade of political upheaval, centred on the drama of the dismissal of the Whitlam government on 11 November 1975. More recently, a second narrative of the 1970s has also taken hold. This story, told by Paul Kelly, George Megalogenis and other journalists, foregrounds the economic upheaval of the period — the stagflation, the end of the long postwar boom, the oil shocks — to frame the 1980s and 1990s as an era of crusading deregulatory reform.

Forged in the wake of the ground-breaking reforms of the Hawke–Keating governments a decade later, in the 1980s, this narrative reflects the centrality of economics in our framing of contemporary political life. Those reforms needed a genealogy, and portraying the 1970s as a decade of economic failure provided one.

I’m not suggesting that this story of the 1970s is inaccurate, or that the pain that the economic downturn caused was imaginary. But we construct historical narratives to serve our purposes in the present. This one was crafted to persuade us of the necessity — and success — of that later wave of economic reform. Today, as we tally the costs of deregulatory economic reform, we might write this history differently.

The economic narrative also obscures the extent to which the seventies was an extraordinary era of social reform and social contest. The decade saw the emergence (or reawakening) of many social justice movements. Many of our fundamental ideas about marriage and sex were challenged. Movements such as women’s and gay liberation reshaped our social norms and our political culture, even if their impact was partial and uneven. It was a turning point in the history of modern Australia, and fundamentally changed how we view private experiences and recognise the distinctive needs of women, children and people with different sexual orientations.

While none of these revolutions is complete, the struggles they animated reshaped Australia. But because we have tended to investigate these changes separately, rather than cumulatively, their collective impact has been more difficult to gauge. This relative neglect of the social transformations of the 1970s is even more striking when we think about the many ways that public discussion of issues previously considered private have shaped contemporary political and social debate.

Think of the recent explosion of stories using the hashtag #MeToo. The long campaign for marriage equality. The Royal Commission into Institutional Responses to Child Sexual Abuse. Domestic violence. Today, the politics of private experience takes up a lot of space in public life. Public discussion of these issues is characterised by an emphasis on personal testimony —individuals speaking publicly about private experiences.

Think of Chrissie and Anthony Foster, advocates for survivors of institutional child sexual abuse, or Rosie Batty, the 2015 Australian of the Year, who found a public voice as a woman who had endured domestic violence. The marriage equality campaign used ordinary people’s love stories to encourage Australians to vote “yes.” And #MeToo resonated so strongly because it gave women who had experienced sexual assault a platform for sharing personal stories.

It was in the 1970s that our ideas of what was “public” and what was “private” began to change. Women’s liberation and the gay and lesbian rights movement criticised the idea that things that happened in private were beyond the realm of politics.

“The personal is political,” the title of an essay by American feminist Carole Hanisch, was one of the most famous formulations of the Women’s Liberation Movement. It destabilised a foundational concept of modern political culture: the notion that there were two separate spheres of life, public and private. In this formulation, the public was the space of politics, government and paid work; the private was the place for intimacy and domesticity. The division between the two was strongly gendered, reinforced by ideology and government policy.

Citizenship is key to understanding these changing ideas of public and private. For much of the twentieth century, Australian citizenship was defined in exclusionary ways by ideas not only about race but also about gender. Historically, Australians’ rights to welfare, for example, were determined by gender as well as race. The foundational Harvester judgement of 1907 insisted that male wages should be determined by the needs of a male breadwinner with a wife and dependent children. This system — a form of social welfare – ensnared women as dependents of their husbands, as Marilyn Lake and other historians have demonstrated. In response, white women argued for special rights and protections (such as maternity allowances) on the grounds of their valuable national service as mothers, which further reinforced the gendered division between public and private spheres.

The assumption of male power within the family also left women and children vulnerable to abuse: domestic violence and rape in marriage, for example, were often viewed as “private” matters rather than crimes — indeed, rape within marriage was not criminalised nationally until 1991. And “privacy” was not an equal right: in some cases, it perpetuated oppression.

Across the 1970s, our ideas of what was “public” and what was “private” began to change. Second-wave feminism criticised the idea that what happened in private was beyond the realm of politics. As the split came into question, so too did the ideas of citizenship that had developed from it. Feminists no longer argued that motherhood was the basis of women’s contribution to the nation; gays and lesbians argued that keeping their sexuality “private” was oppressive and harmful.

Challenging and contesting the boundary between public and private life was central to the liberation movements of the 1970s. The changes they wrought in Australian social, cultural and political life are the subject of my book. It asks: how did the personal become political, and how did this change reshape the boundary between public and private life? How did this reshaping of what we thought of as public, and what we thought of as private, transform Australia in the late twentieth century?

These movements brought the personal to bear on the political in new ways. The shift rewrote our expectations of government and generated new ways to “do” politics and to become political. Women, in particular, emerged as a distinctive constituency with their own political demands: for women’s refuges, childcare centres, equal pay, and a host of other reforms. These new demands of government didn’t just change women’s lives — they changed our politics, the role of the state, and how we thought about citizenship.

They also created new kinds of political allegiance that didn’t always map neatly onto a male-dominated politics of left and right, Liberal and Labor. While Gough Whitlam appointed a women’s adviser to his staff, for example, many Labor MPs remained vehemently opposed to abortion. Later in the decade, prime minister Malcolm Fraser faced feminist opposition within his own party as he struggled to limit government spending on women’s services. The new politics of private experience carved new allegiances across long-standing political divides, and it continues to do so in often unpredictable ways.

These changes have not always been progressive. We can easily mistake decriminalisation of homosexuality or the Sex Discrimination Act as moves towards “equal rights” when in fact they didn’t guarantee these rights. The rights movements have been overwhelmingly white, though they have had vocal Indigenous critics (and sometimes participants).

The emergence of neoliberal economic prescriptions in the late 1970s also stymied and distorted many of the women’s movement’s key reforms. Childcare, demanded by mothers as a right to respite from the work of motherhood as much as a workplace entitlement, was soon tied to the goal of increasing women’s workplace participation and alleviating the “burden” women placed on the welfare system.

By the end of the 1970s, the ground had shifted beneath the feet of the liberation movements, and the logics of competition and deregulation had changed the framework of possibility for revolutionary gender and sexual politics.

To be interested in the 1970s, then, as the American scholar Victoria Hesford noted, “is to be interested in the alternatives offered to what has become our neoliberal present.” The seventies can provide us with a roadmap to understand the present day, but the era also gives us a glimpse of a different way of thinking about the nation, a way of imagining national belonging outside the framework of efficiency and productivity.

There are many ways to tell this story, but here I will focus on three case studies to show how these movements and campaigns reshaped Australian politics and conceptions of citizenship: early campaigns for homosexual law reform, feminist struggles to fund women’s refuges, and the emergence, in the late 1970s, of organised anti-feminist women’s groups. All reveal how the shifting line between private and public — between the personal and the political — reshaped both Australian politics and experiences of private life in the 1970s. Together, they show how the meanings — and the political uses of the private — changed over the period, with unpredictable consequences.

In the 1950s, according to the historian Graham Willett, homosexuality was “carefully excluded” from public life in Australia. Yet by the late 1960s, it had become an issue that many activists, civil libertarians and politicians believed needed to be “dealt with” through legislative reform. Why did this change take place? And how did homosexual people themselves emerge as part of these campaigns for decriminalization and equal rights?

Several factors were at play in the change, but perhaps most important was the gradual emergence in the 1960s of a liberal-minded middle class in Australia, members of which worked for reform in a number of areas, including civil liberties. On the question of homosexuality, they were guided by the Wolfenden report into sexual offences and prostitution, released in Britain in 1957. Wolfenden took as its guiding assumption the liberal view that homosexuality was determined by biology or childhood rather than “choice.” “It is not the function of the law to interfere in the private lives of citizens…” it declared. “[T]here must remain a realm of private morality and immorality which is not the law’s business.’

The report received surprisingly strong media and even religious support, but even with this backing, the British parliament was very slow to enact its recommendations, only passing the Sexual Offences Act in 1967. But that legislation came at an ideal time for Australians seeking similar reform here. The local call to decriminalize homosexual acts “between consenting adults in private” was, as Willett noted, lifted straight from the language of the Wolfenden report, and the earliest organisation to campaign for this change was not made up of gay men and women but of Canberra-based civil libertarians.

The Homosexual Law Reform Association of the ACT, formed in 1969, was one of the earliest organisations to campaign for homosexual law reform in Australia. Yet, as founder Thomas Mautner, a lecturer in philosophy at the ANU, stated, “we are not a society for homosexuals, and to my knowledge, no member of our committee is a practising homosexual.” The group argued for homosexual law reform on a platform of the right to privacy and protection of civil liberties: for homosexuality as a practice to be legal but publicly invisible.

When the pioneering gay rights organization CAMP — the Campaign Against Moral Persecution — was founded in 1970, only two of the founders were willing to be publicly identified in a newspaper profile in the Australian. Yet CAMP was different from the ACT reform group, because its members were themselves gays and lesbians. CAMP sought a new public visibility for homosexual people: in their first newsletter, Camp Ink, the group stated that: “the overall aim of CAMP INC is to bring about a situation where homosexuals can enjoy good jobs and security in those jobs, equal treatment under the law, and the right to serve our country without fear of exposure and contempt.”

By the early 1970s, gay activists were “coming out” rather than staying “private,” a brave move when male homosexual acts were still against the law. Being gay, then, was no longer simply a matter of what you did in private, but part of one’s intimate identity that could not be confined to the private sphere. The personal became political. Within just a few years, gay men and women were making submissions to government inquiries, including the Royal Commission on Human Relationships, and were seeking visibility, not privacy, to alleviate their oppression.

Women were also demanding new rights and protections from the Australian government. In 1973, Gough Whitlam was the first national leader in the world to appoint a dedicated women’s affairs advisor, the talented Elizabeth Reid. Reid worked within the government while activists worked outside it: both were equally important to the feminist reforms achieved during the Whitlam era.

The scale and scope of women’s activism in this period was immense, but I want to focus here on the development of women’s refuges, because they emerged from feminist theorising of the relationship between the private and the public, the personal and political.

While domestic and family violence has a very long history, it was reframed by the women’s movement in the early 1970s. The movement offered a new, structural analysis of domestic violence and a new response: the women’s refuge. Australia’s first women’s refuge was established in March 1974, when a group of Sydney women’s liberationists took possession of two houses in inner-city Glebe, establishing a refuge they named Elsie.

Feminist refuges like Elsie represented a new response to domestic violence: church-run women’s shelters had existed for decades but they focused on bringing families back together after violent incidents and offered no structural analysis of the problem of men’s violence against women and children. Women’s refuges were crucial to making the “private” problem of family violence visible in public: they drew attention to violence, but also to the lack of effective responses and protections for victims. Refuges sought to remove the protection of the private sphere — and its attendant shame — that allowed these crimes to continue, unprosecuted. Within a year of Elsie’s creation eleven women’s refuges had been established around Australia.

But even as women’s refuges quickly proved an indispensable response to the endemic problem of domestic violence, they remained a feminist innovation that sat uneasily within existing patterns of government service provision. Were they a health, housing, welfare or childcare service? Refuges served all these functions and more, but the integrated, overlapping nature of the work they performed made it difficult for them to secure government funding from a single agency or department. Even after refuges had some success in obtaining federal government funding, Australia’s system of federalism, where funding for health and other services is collected by the Commonwealth but administered by the states, produced significant funding inequalities across the country. Progressive state governments, like that of New South Wales, allocated considerable resources to women’s refuges, while others, like Queensland’s, did not.

Complicating the picture even further was the federal government’s shifting position on funding. Women’s refuges constantly had to pursue and defend state funding for their service in the face of threatened (and actual) funding cuts, and the Commonwealth ceased all dedicated federal funding for refuges in 1981–82. It would be more than a decade after the first refuge was founded before governments took any policy action on domestic violence beyond limited funding to refuges. Activists succeeded in politicising male violence against women in the 1970s, but securing stable government support for refuges would be an ongoing, and difficult struggle.

The struggle over refuge funding was a microcosm of the larger problem for the women’s movement. The mid 1970s was a moment of reckoning, with feminists facing a Liberal government that they feared would be less sympathetic to their demands for state support for women’s services. What they didn’t yet understand was that the mid 1970s was also the beginning of a seismic shift in western politics. The stagflation and recession of those years undermined the longstanding Keynesian consensus of the postwar period.

New economic prescriptions emerged, insisting that free markets, not state intervention, were the keys to greater efficiency, prosperity and freedom. By the early 1980s, a noisy faction of economic “dries” had emerged within the Liberal Party, emboldened by the economic downturn — and the lack of effective policy responses to it — that had overwhelmed Malcolm Fraser’s final term in office.

The feminist public servant Sara Dowse called this shift the “monetarist ascendancy.” Diverse groups including libertarians, devotees of the free market and moral conservatives all believed that policies and services designed to promote social equality were not only to blame for the poor economic conditions but also ran counter to conventional Liberal ideals of self-reliance and individual rights.

Shrinking the state would have particular implications for women, who had only just secured government funding for childcare, refuges and health centres. Reductions in these services would mean that women would once more be expected to shoulder the burden of family care and domestic labour. This dovetailed with conservative calls for women to renew their embrace of home and family. It was in this charged ideological space that anti-feminist women’s groups emerged and found a brief moment of political influence in Australia.

Two groups gained particular prominence: The Women’s Action Alliance, formed in 1975, and Women Who Want to Be Women, formed in 1979. While they were small, they exerted a measure of political influence: for example, Margaret Slattery, a member of the Women’s Action Alliance was appointed to Malcolm Fraser’s National Women’s Advisory Council in 1980, and members of these organisations were active in women’s groups in the Liberal Party. If we are to understand the impact of the women’s movement from the 1970s onwards, especially how it ruptured and remade the foundational categories of “public” and “private” and reshaped women’s citizenship identities, we must also consider the ways that this opened up possibilities for new kinds of anti-feminist activism for women.

Both Women’s Action Alliance and Women Who Want to Be Women were staunch and persistent in their advocacy for women they believed were neglected by feminism: stay-at-home wives and mothers. They sought to connect their activism to older traditions of maternalist politics while simultaneously presenting themselves as political outsiders, who had been displaced by upstart feminist activists. Depicting themselves in struggle against feminist “insiders” within government gave them greater credibility in their quest to gain influence over women’s policy in the late 1970s.

In their 1976 newsletter, Women’s Action Alliance argued that feminists lacked “expertise in the field of the woman at home” and had no “understanding or interest in the position of the full-time homemaker.” Women Who Want to Be Women constructed a constituency (in its newsletters) of “the silent majority of women, even those who haven’t heard of us, who want to be and are happy to be women.” The group objected vehemently to feminists in government roles and targeted their positions for abolition, and it made use of new channels designed to facilitate women’s access to government, like the National Women’s Advisory Council, to call for the abolition of these new forms of access.

Rather than embrace the women’s movement’s structural analysis of women’s oppression, anti-feminists asserted a liberal individualism in which state intervention was to be abhorred. Babette Francis, spokeswoman for Women Who Want to Be Women, told the Australian in 1980 that “promotion of theories of women’s oppression and disadvantage serve merely to destroy hope and initiative. Feminists, apparently, won’t feel their utopia has arrived until they have herded all women into one gigantic women’s refuge or rape crisis centre.”

At the same time, though, anti-feminist women campaigned for their own forms of state support using a politics of personal experience, just as feminists did. Anti-feminists called for new tax supports for single-income families and for financial assistance for women who chose to stay at home with their children. In effect, they used strategies developed by feminists to work against feminism’s goals. Their activism raises an important question: if the personal was political, then whose “personal” would be prioritised in Australian politics moving into the 1980s?

As we look back on the seventies today, it is clear that the feminist and sexual revolutions reorganised our public and private lives, with far-reaching and often unpredictable consequences. The faultlines in Australian politics have blurred and shifted; politics today is organised as much by gender and sexuality as it is by older ideas of left and right. Marriage equality, for example, was passed by the Australian parliament in December 2017 only after a postal survey demonstrated that there was majority public support for such a change. Just as abortion had fractured the 1973 federal parliament along cross-party faultlines, so too was support for marriage equality found across the political spectrum.

The Australian public’s enthusiastic endorsement of same-sex marriage in 2017 would have been unthinkable in the 1970s. The Royal Commission on Human Relationships, in a set of otherwise sympathetic recommendations on homosexuality, did not “feel able to” recognise homosexual marriages in 1977. Whether you think the passage of marriage equality legislation was radical or retrograde in 2017, that it happened at all was due to the persistence of activists, not politicians, and to a receptive public culture that offered LGBT people visibility and platforms to tell stories about their lives.

This is one of the important legacies of seventies movements: the creation of spaces for a range of perspectives in public life. Creating this space has helped to create social change. The Royal Commission on Human Relationships was one of the boldest enactments of the Whitlam government principle of “open government” and it gained its authenticity and authority from “ordinary” people’s stories of their experiences. Two more recent government inquiries — the Human Rights Commission’s Bringing Them Home report in 1997 and the Royal Commission into Institutional Responses to Child Sexual Abuse in 2017 — also demonstrated the powerful impact of telling personal stories in public.

These inquiries had limitations in producing change: Indigenous children are still removed from their parents at higher rates than the rest of the population, and the royal commission did not investigate the family and home, the place where most sexual abuse occurs. But they both helped shift public debate. In the words of Katie Wright and Shurlee Swain, the Royal Commission made child abuse “speakable and nameable” as a social problem.

Asserting that “the personal is political” was not enough to make change in the 1970s; it was a belief enacted through activism, and political reform. This reform was dependent on a strong activist presence beyond the parliament and bureaucracy. Elizabeth Reid could argue for change in government policy because there was a strong women’s movement supporting her; anti-feminist women, despite all their energy, failed to effect lasting change because they did not mobilise a large group of women behind them.

Women’s and gay and lesbian activists of the 1970s didn’t quite manage to remake the world, but perhaps it is unfair of us today to judge them for that, when we still have so much change to make. As Carol Hanisch reminded her readers in 1970, “there are no personal solutions at this time. There is only collective action for a collective solution.” Perhaps we need to reanimate this principle today, as we grapple with both the legacies and the unfinished business of the 1970s. •

This is the edited text of this year’s Ernest Scott lecture, presented on 19 September. The lecture can be viewed here.

The post When the personal became political appeared first on Inside Story.

My expectations were prompted by the description on the cover, presumably put there by the publisher’s marketing department, which promises “an unflinching exploration of the fault lines in our justice system” revealing “the devastating cost of getting it wrong.”

These words suggest that The Truth Hurts is yet another indictment of how criminal justice is carried out in this country. Instead, this is the work of a practitioner reviewing rather than castigating the performance of some aspects of the legal system, more particularly the practice of criminal law. The more I read, the more the book showed me how even an enlightened and inspired system of justice (inquisitorial, adversarial or otherwise) will always struggle to deliver Solomon-esque outcomes to victims, perpetrators and innocents alike, given the panoply of human wretchedness that presents before the courts every day.

Andrew Boe recognises this. He uses the analogy of a bushfire. We can have the best firefighting tools in the world, and the most dedicated firefighters, he says, but from time to time we will experience devastating bushfires that no amount of preparedness could prevent, and it then falls to us to deal with the aftermath.

Rather than being an indictment of the criminal law as it stands, the book is a reminder of the limitations of any system that endeavours to find the causal truth of an event and set things right thereafter. While reforms to the justice system over the past thirty years — including restorative justice conferencing, diversionary pathways, therapeutic practices and Aboriginal courts, to name but a few — do their best to ameliorate the pain, it can never be completely eliminated. If anything, one of the book’s key targets is those lawyers whose poor practices and sloppy attention to detail led to outcomes detrimental to their clients.

That doesn’t mean I don’t have some reservations about how Boe frames his account. Yes, the justice system can be “uneven” (Boe’s word) at times, but this doesn’t mean that it is “stuck in its outdated and flawed premises.” Readers need to appreciate that some of the anomalies he highlights did indeed exist when he began his legal practice but have since been reformed. For example, defence counsel no longer have the same latitude in cross-examining victims of sexual assaults, a point the author concedes. Again and again Boe points to the deprived backgrounds of those who come before the courts and points to the failed social policies that allowed them to slip between the cracks. We need to accept that there’s often not a lot that the law can do, ex post facto, about that.

In setting the scene for the story of his professional life, Boe describes in a most endearing way how his father and mother decided to flee with their five sons to Australia from Burma in 1969 to escape its military regime. He then writes affectionately of a teacher who trusted him and challenged him to better himself through education. That challenge ultimately placed him in a law school in Brisbane and, on graduation, embroiled him in the life of a criminal defence lawyer.

Thereafter the book takes the reader through a long but very readable succession of case narratives. Boe’s list of clients included the convicted serial killer Ivan Milat and the conservative politician Pauline Hanson (whom he later helped exonerate). Here we see how accused persons and their counsel must negotiate a maze of legal twists and turns, with Boe capitalising very effectively on his insider perspective. His explanation of the duty that lawyers owe the court as well as their clients is clear and important. All law students would appreciate his elucidation of the cab-rank rule, the importance of the doctrine of precedent, the process of charge bargaining, and how jury selection works.

Moreover, Boe outlines the relationship between the barristers in their respective chambers, between defence and prosecution counsel, and between clients and their legal representatives. Of particular interest to me were his observations about the rules governing barrister duties, hostile witnesses, and the presumption of innocence, and his thoughts on lawyers coping with negative media coverage.

The book also tackles some of the harder issues that regularly test policymakers’ resolve: deaths in custody, infanticide, domestic violence and sexual impropriety (and the #MeToo movement). He calls out the ongoing national disgrace that is the over-representation of Aboriginal and Torres Strait Islanders in Australia’s correctional systems.

Boe makes the significant point that equality before the law doesn’t mean that all people must get the same treatment, for if “you treat situations with vastly different realities in the same way, then you will necessarily cause significant injustice to some.” This same view — that striving for equality of opportunity for unequals can only aggravate inequality — has been expressed in judicial writings for decades, most notably in the High Court judgement in Gerhardy v Brown (1985). The adage was worth repeating here.

Importantly, Boe also places firmly in the reader’s mind one of the most crucial axioms to be found in the lawyer’s notebook: that “liking a client or agreeing with their political views [is] hardly a prerequisite for providing effective, even passionate, representation for them in the criminal courts.” All people, he reminds readers, deserve good representation. It is not for their counsel to judge them: that is solely the role of the courts.

There are a number of errors in the book that ought to be corrected in the event of a reprint. It is not true that judges’ tenure is dependent on their choosing to retire. A statutory maximum age for judges exists in every jurisdiction (and was recently increased in New South Wales). Some of the more problematic political manoeuvrings and practices Boe refers to (such as the appointment of magistrates with no legal qualifications in Queensland) were unique to particular periods. The bird depicted in the SA police coat of arms is not the wedge-tailed eagle but the white-backed magpie, or piping shrike, and South Australia should be added to his list of those jurisdictions that have a fused legal profession. The rules concerning a jury’s majority verdict (if such verdicts are permitted) vary from jurisdiction to jurisdiction. Finally, the rule that makes a distinction between printed and oral evidence should be referred to as the parol evidence rule.

But it would be churlish to make too much of small faults in what is, in totality, an excellent volume. The cases that Andrew Boe has handled can make for uncomfortable reading but they offer important lessons. People sometimes do appalling things, and the impact not only on communities but on their lawyers can be palpable. In one instance, Boe writes, “Nearly everyone connected with this case must have stumbled back to their lives diminished by what they had read, heard and seen.” It was a heartfelt recollection.

The Truth Hurts promises to call out unfairness and bias in the practice of the criminal law, but for me the book simply reinforces the fact that legal processes are faced with difficult tasks and often contradictory aims, and continually struggle to find resolutions satisfactory to all. Only those who have the passion to find enduring outcomes will succeed.

And, on this reading, when it comes to passion in finding the best outcomes for people who fall afoul of the law, there would be few more passionate than Andrew Boe. I enjoyed his reflections immensely. •

The post Scales of justice appeared first on Inside Story.

As the slow-moving wave of protests and statue-toppling sparked by the Black Lives Matter movement makes its way to Italy, it’s hardly surprising that this monument to a man who talked openly about the crimes he committed as a twenty-six-year-old army officer serving in Ethiopia is sparking bitter divisions. The tougher question is why Italians allowed it to be erected in the first place.

If Montanelli still polarises Italy almost twenty years after his death, it’s because postwar Italian history remains so divisive. A few months before I moved there as a nine-year-old with my family in the dark winter of 1978, prime minister Aldo Moro had been executed by his communist kidnappers, and Italian democracy was hanging by a thread. The iron curtain was still dividing Europe and the internal pressure from far-left and far-right paramilitary groups was constant and oppressive. Those “Years of Lead” were dominated by bombings, kidnappings and assassinations; democratic institutions, yet to heal after twenty years of fascist dictatorship and the effects of a de facto civil war, were teetering.

My Italian father, an old-school centre-right liberal, brought Montanelli into our lives before we could even speak the language. In the early seventies, the famed journalist had left Corriere della Sera, the Milan-based daily that had been his spiritual home since 1938, interrupted by six months spent in fascist jails under a death sentence that was never carried out. The Corriere’s drift to the left in the 1970s had convinced him to establish his own newspaper, Il Giornale Nuovo (later simply Il Giornale — literally, “The Newspaper”). It was this daily, and the columns that Montanelli wrote for it, that my father would quote from when talking about politics. Il Giornale was always around; it’s what we read over breakfast.

I’m not sure if my father knew much about Montanelli’s time in Africa — my guess is that he didn’t. What I do know is that our home became a shrine to Montanelli’s writing, with the history books co-written by the journalist, the ambitious “Storia d’Italia,” arriving in weekly instalments as part of the subscription deals that were popular at the time.

In a country where language is often used to conceal or obfuscate, Montanelli’s prose was clear and concise, with an often-humorous turn of phrase. He was a great communicator — arguably, the best of his generation. And the liberal, secular values he expounded seemed refreshingly radical in a society where political discourse was dominated by the communists, the corrupt and corrupting Christian Democrats, and a loony right that no respectable Italian would touch with a barge pole.

Montanelli had paid a price for his convictions. In 1977 he had been shot by the Red Brigades, a group of communist terrorists, as he left a Milan hotel. Under the punishment, referred to as gambizzazione, bullets are fired into a person’s legs with the intention of maiming them. Bizarrely, the newspaper where he had spent most of his career, Corriere della Sera, reported the shooting but refused to identify Montanelli as the victim. He recovered and returned to work.

He remained editor and columnist of Il Giornale right up until the man who had become its publisher, Silvio Berlusconi, decided to enter politics in 1994 —something Montanelli identified as an unacceptable conflict of interest. He left the newspaper he had founded and established La Voce, which only lasted a year. By then, my family had long returned to Australia, but in 1995 I was back in Italy visiting relatives and bought the last-ever edition of La Voce, which is now at the bottom of a box in my Melbourne garage. Il Giornale continued, fulfilling its destiny as the lapdog of Berlusconi, as Montanelli had predicted.

The Montanelli statue is made of bronze and can be found in a park close to Milan’s Porta Venezia — in fact, the park itself is now named after the Tuscan-born journalist. The statue was cast from a famous photo, taken in 1940, showing Montanelli sitting on a stack of books against a wall with a portable typewriter on his lap, hitting the keys. The photo marked the journalist’s return from Finland, where he had been covering the early days of the war. Although he’s wearing a hat, the statue leaves his bald head uncovered.

Even before the statue was erected, the photo had come to represent the fearlessness of Italian journalism — a notion foreign observers find hard to reconcile with the demonstrably servile approach to power among the country’s journalists. The significance of that photo meant that the statue came to embody something more than Montanelli’s liberalism and independence of thought — it became a monument to journalism. It was erected in 2006 in a spot not far from where the Red Brigades had attempted to put him in a wheelchair for the rest of his life.

Montanelli’s marriage — or so he defined it — to an Ethiopian girl when he was a twenty-six-year-old officer was well known when the statue was commissioned. There’s a 1969 television interview on YouTube in which he talks openly about how he had “bought” the girl after paying the father 500 lire — a sum that also got him a horse and a rifle. He’s asked for more information by the interviewer who, far from being horrified, mentions how the girl was rumoured to have been the most beautiful in what was then the Italian colony of Abyssinia.

Later, though, Montanelli is taken to task by a member of the studio audience. The journalist appears baffled by the question. “There was no violence because girls in Abyssinia get married at the age of twelve,” he says. The audience member doesn’t let him off the hook. “If you did it in Europe, you would be raping a child.” He concedes that would be the case.

Writing in 2000, a year before his death, Montanelli provided more insight into what he insisted had been a legitimate marriage — though there was never any possibility of the girl returning with him to Italy when his tour of duty had ended. The details are almost too disturbing to recount — making their recounting all the more important. She had been infibulated as a baby, making it almost impossible for Montanelli to complete the rape; it was only with “the brutal intervention of her mother,” as he later wrote, that he was able to proceed.

The fact that Montanelli was able to write about what he had done without fearing social ostracism — let alone prosecution — says something about the racism that underpins Italian society. How would this type of violence be broadly socially acceptable without the premise that the girl, whom Montanelli called Destà, was racially inferior? Montanelli simply told the country that Africans were different and that this is the age at which they married, and the country broadly accepted the explanation.

There’s plenty still to be written about the cultural manifestations of Italian racism and how the country’s ill-fated colonial experiences may have played a part in it. My humble observation is that because Italy abruptly lost its African colonies in 1943, with the collapse of the fascist regime, the country never had to deal with colonial independence movements and immigration from former colonies.

In fact, the country I moved to in 1978 was as monocultural as they get— the only non-European faces we saw were the Moroccans who walked along the beaches selling carpets to tourists. There hadn’t been a black Italian leader since Florence had been led in the 1530s by Alessandro de’ Medici, the illegitimate son of an African slave. No one I knew had met a black person, and any knowledge people had of Italian colonialism came from the fading memories of parents and grandparents who had served in the Italian colonies of Ethiopia, Libya and Somalia — memories echoed and further distorted by popular culture.

Even today, the words of the fascist wartime song “Faccetta Nera” would be familiar to most Italians. “Little black-faced girl/beautiful Abyssinian/wait and hope that the time is nearing/when we will be close to you/we will give you another law and another king.” Subsequent verses get even more granular: “Little black-faced girl/little Abyssinian/we will take you to Rome, freed… We will march with you/we will parade before the Duce and the king.” The notion of African conquest and the beauty of young black girls is a legacy of fascism that even an anti-fascist like Montanelli wasn’t immune to — he often remarked on Destà’s looks and had a photo of her in his study.

Add to that the clunky, cringe-making racism of Italy’s postwar cultural boom. At my Catholic summer scout camp we would often sing the 1960s hit “I Watussi,” apparently inspired by the height of the Tutsi tribes of Rwanda and Burundi. “We are the Tutsi/The very tall negroes/with each three steps/we move six metres/the shortest of us/is two metres tall.” This song and the dance that accompanies it is still used as the final encore in dance halls today.

This is all objectionable, of course, but it’s what you get when you haven’t had to grapple with multiculturalism and haven’t had to ponder whether people of African descent are entitled to a place in your society. Unlike France, say, Italy hasn’t needed to consider the possibility of an African Italian claiming his or her right to a respectful relationship with fellow citizens; Italian society hasn’t had to accommodate diversity at any level.

Montanelli’s abuse of a young girl was indeed rooted in racism; but the decision to allow a statue to be erected at the centre of a modern and increasingly multicultural city like Milan has, I suspect, more to do with the lazy racist culture that even the most progressive of Italians allow to slosh around. I can vouch for the fact that not a single member of my scout group was racist — in fact, you’d struggle to find Italians more committed to social justice. Yet around the campfire we’d sing the Tutsi song because — well, why not? It was just a song, right?

The controversy of the Montanelli statue immediately led to the same political divisions I had witnessed when we would fight it out in meetings during my high school days. The centre right and what remains of the liberals — including former classmates of mine — immediately circled the wagons, saying that Montanelli was neither a racist nor a child abuser; the post-communists argued the opposite, saying that the statue had to go. When I mentioned the issue to my ninety-year-old father, now in a Melbourne nursing home, he immediately knew what to think: the communists weren’t even going to let Montanelli rest in his grave.

That’s not to say my father’s take is entirely wrong. I’m in no doubt that there are communists who are still pursuing Montanelli for his strong liberal advocacy at the height of the cold war. What’s more, my father’s belief that the left would do well to examine the legacies of its own scoundrels is also fair. But that’s not the point. Montanelli was the centre right’s scoundrel; he was the liberals’ paedophile. Say what you want about the politicisation of the debate over his statue, that fact is immutable.

For any thinking Italian liberal, the conclusion has to be that the Montanelli statue must come down. It should be removed not by vandals or a howling mob, but by municipal workers instructed to do so by city authorities. This should be done to pave the way for an inclusive society in which black Italians can be participants rather than bystanders. But even more importantly, it should come down because if the liberals side with the predator rather than his twelve-year-old victim, then they’re worthy of the brutal ideologies Montanelli spent his life fighting. •

The post Italy’s Black Lives Matter moment appeared first on Inside Story.

She walked into the room and he gave her a big hug, telling her how well she looked. After some discussion about how she had been coping he asked her to come and sit on his knee. She was very shocked. After a period of silence, he repeated the request in a “very authoritarian, quite demanding” tone. Ultimately she complied and sat on his knee. He put his hand on her leg, rubbing it up and down the inside of her leg and touching her crotch. She “just froze.” She was afraid of him and of what he might do to her. She told him that she “did not want to do this.” He did not respond. The incident lasted for “probably five minutes.” After this she got up and walked towards the door. He told her that he would need to see her again.

Dyson Heydon will likely recall this scene from his time on the High Court of Australia, and so might some of his associates. The sixty-three-year-old woman’s account of her first one-on-one consultation for post-natal depression thirty-three years earlier opened her psychiatrist’s 2009 trial in Perth. The following year, the national court granted Alan Stubley a last chance appeal against his conviction for multiple sexual offences against two of his patients. When he sat on the retired doctor’s case, Heydon was nearing the end of his decade on Australia’s top court.

Shortly after he was appointed to the High Court in 2003, according to the Sydney Morning Herald this week, Heydon “slid his hand” between the thighs of a “current judge” at a law dinner. She told him to “get your fucking hands off me.” Not long after he left the court in 2013, he attended a professional dinner where — according to the then president of the ACT law society — “his hands became very busy under the table, on my lap, feeling up the side of my leg.” He later asked her to discuss law in an empty room, where he hugged her and tried to kiss her. When she told him she was “definitely not interested,” he said “it would be such a wonderful encounter.”

These and other claims about a former High Court judge raise many questions. One is about his role in cases like Stubley’s. If the allegations against Heydon are true, then a serial predator of young women was asked to rule on an appeal by an alleged, if more extreme, serial predator of young women. We cannot know what thoughts crossed his mind as he read the testimony of Stubley’s patients. But we can read how he judged the psychiatrist. The answer is: harshly. Indeed, prosecutorially.

“To many people,” Heydon wrote in his judgement, the claim that a psychiatrist was preying on his patients “would seem so serious and inherently unlikely as to be startling, outlandish, and far-fetched to the point of being bizarre.” But “perhaps not all,” he allowed, citing those “afflicted with the cynicism characteristic of hard-bitten and experienced criminal lawyers.” Six years after he wrote those words, that same affliction became a global pandemic of sorts, fuelled by revelations of serial abuse by Harvey Weinstein, Bill Cosby and other celebrities, and thousands of other #metoo stories.

Heydon himself is now the subject of several such stories. The Sydney Morning Herald quotes a “leading female member of the NSW Bar” whose first thought when #metoo broke was, “Boy, Dyson Heydon should be really worried.” She goes on to describe Heydon inviting her to his chambers after she appeared before him at the High Court and, on a later occasion, kissing her while blocking her from leaving his room.

But in the less cynical times of Stubley’s appeal, Heydon was somewhat ahead of the public on whether to believe an allegation of professional predation. He bemoaned that such an allegation’s seeming bizarreness meant that a prosecution based on it alone “may easily falter, no matter how truthful,” even when — as Stubley’s patient testified — the allegation was of years of persistent indecent assaults and rapes perpetrated in a psychiatrist’s office, her sobbing throughout. That’s why, he said, such claims of predation shouldn’t be heard on their own.

Quoting Western Australia’s evidence law statute, he declared that “fair-minded people would think that that the public interest” would favour hearing “similar testimony about the tendency of the accused.” For example, he explained, Stubley’s trial featured charges arising from how he treated two of his patients, who each testified to repeated sex with the psychiatrist as part of their “treatment.” The second patient told the jury that Stubley had rubbed her breasts when she spoke with him about her stress at the breakdown of her marriage, and at a later consultation told her “I feel rejected” in a “very, very menacing tone.” “This is the most important relationship you will ever have,” he told her after they had sex on the floor of his office. A joint trial featuring both complainants, Heydon observed, “would be a prosecution supported by evidence of much greater probative value.”

The question the High Court had to decide in 2011 was whether the criminal justice system should go further to bolster prosecutions of alleged predators. Heydon, one of the world’s leading evidence scholars, ruled that it should. He endorsed Justice Narelle Johnson’s decision to allow several other patients of Stubley to testify at his trial in order to establish a pattern of predation. Each described sex on the floor of his office during emotional tumult: one had reached out to Stubley for an emotional but not sexual connection, another felt “embarrassed on his behalf” as he undressed in front of her, a third had unwanted sex out of fear that she would lose her job as his receptionist. Heydon ruled that “a prosecution supported by the evidence of three other women giving similar testimony about the tendency of the accused to engage in acts of sexual intimacy with patients during consultations” would be “of so high a degree of probative value” that “the public interest would have priority over the risk of an unfair trial.”

It is startling that Heydon used his judicial pulpit a decade ago to write something of a road map to his current predicament. Like Stubley, Weinstein and Cosby in some respects, he now faces allegations of predation that are greatly strengthened by many similar allegations. What initially started as two former associates contacting the chief justice of Australia in March last year became public this week after an inquiry she commissioned concluded that “six former Court staff members who were Judges’ Associates were harassed by the former Justice.”

Given this week’s revelations, Heydon’s ruling on Stubley’s appeal is a bit like Weinstein greenlighting a movie about a predatory producer or Cosby doing a very special episode on methaqualones. One possible explanation may, of course, be that Heydon is innocent of the allegations made against him. But there are other possibilities: he may have been somehow oblivious to his own conduct or supremely confident in his invulnerability, or maybe just intellectually devoted to his stance on evidence law. Each of these explanations, in different ways, suggests that Heydon may be his own worst enemy.

Regardless, he was alone on the High Court in 2011. The other four judges who heard Stubley’s case — Bill Gummow (who wrote a classic legal text that Heydon would later contribute to), Susan Crennan, Susan Kiefel and Virginia Bell — all allowed the psychiatrist’s appeal.

Rejecting a different rape appeal five years earlier, Dyson Heydon penned a brief judgement agreeing with the majority, but adding his rejection of the accused’s criticisms of his then trial counsel. “She was dealt very bad cards,” he wrote. “She played them very well. Her methods were the reverse of incompetent.”

Mark Trowell, Alan Stubley’s barrister, was also dealt very bad cards. He told his client’s jurors: “No matter how big a rat he was in having sex with his patients, you can’t just convict him because he was unethical and immoral.” Stubley later testified that sex was considered to be part of psychotherapy in the 1970s. Indeed, his second patient announced that she had researched the field before seeing him and told him that she wasn’t seeking “bed therapy.” Stubley seemingly ignored her request.

Trowell also proved to be the reverse of incompetent. His strategy, while failing at the trial, succeeded in the High Court. Had Stubley denied having sex with his patients — Gummow, Crennan, Kiefel and Bell held — then his jury could have heard the stories of other patients who said they had sex with him. But his admission that he had sex with all of them — consensually, he said — meant that their stories added nothing to the prosecution case. “Proof of the appellant’s tendency to engage in grave professional misconduct by manipulating his younger, vulnerable, female patients into having sexual contact with him,” the four judges wrote, “could not rationally affect the likelihood that JG or CL” — the two patients — “did not consent to sexual contact on any occasion charged in the indictment.”

These judges’ words, in sharp contrast to Heydon’s own, could be music to the ears of any barrister asked to defend the former judge if he is prosecuted for crimes against some of the people whose accounts have emerged this week. If Heydon admits doing the particular acts he is accused of — say, touching a woman’s thighs or hugging or kissing her — but says that the woman consented to those acts, then the majority’s ruling on Stubley’s appeal would bar the prosecution from using others’ accounts of his misconduct, no matter how similar or non-consensual or well-established, to convict him. In short, the majority’s judgement takes the “too” out of #metoo.

I am long on the record as saying that the High Court’s approach to such cases is seriously wrong. Six years previously, the national court had unanimously allowed the appeal of a different alleged predator, a teenager convicted of the rapes or attempted rapes of six different teenagers, by ruling that he should have been tried separately for each. Why? Because he had testified that each of the six consented to sex with him, only to later accuse him of rape. (Remarkably, the sixth instance occurred while he was on bail on charges of raping the other five.) The national court ruled that, as a result, their testimony could not establish any pattern about the accused, but only cast light on their own, separate, decisions not to consent to sex with him.

After that case, I — and others — put much the same legal argument that Heydon put six years later: that six claims of predatory behaviour are much more powerful than one, given the particular unlikelihood of one person facing a series of false claims of rape after consensual sex. Indeed, as Queensland’s director of public prosecutions had argued before the national court, the six complainants’ accounts of the teenager’s actions showed a distinct, escalating pattern of deception before and violence during the alleged rapes, culminating in threatening the last two teenagers with a baseball bat and a chain.

Tragically, two months after the High Court’s judgement was published, the teenager committed two rapes that the judge who sentenced him regarded as “very similar” to the last of the earlier allegations. To no one’s surprise — other than the High Court’s, I suppose — he pleaded guilty to those two rapes, and was convicted of the earlier attempted rape committed while on bail on charges of the five earlier ones.

Heydon was one of the five judges in that earlier case. Because the court issued just one joint judgement from all five judges, and because it hides who actually writes such judgements, we don’t know whether it was authored by Heydon himself, or by one of Murray Gleeson, Bill Gummow, Ken Hayne or Michael Kirby. Regardless, they all signed on to the following remarkable explanation of why the common features of the six complainants’ accounts leant nothing to the prosecution’s case because they were “entirely unremarkable”:

That a male teenager might seek sexual activity with girls about his own age with most of whom he was acquainted, and seek it consensually in the first instance, is not particularly probative. Nor is the appellant’s desire for oral sex, his approaches to the complainants on social occasions and after some of them had ingested alcohol or other drugs, his engineering of opportunities for them to be alone with him, and the different degrees of violence he employed in some instances. His recklessness in persisting with this conduct near other people who might be attracted by vocal protests is also unremarkable and not uncommon.

But Heydon, seemingly alone, had second thoughts. During Stubley’s appeal hearing, he commented that the earlier judgement “is one of the most criticised decisions of the High Court of all time” and “is not a sort of granite mountain that is sharp and immovable.”

Around the time of Stubley’s appeal, Heydon also changed how he wrote judgements. He started dissenting as often as not and, more dramatically, stopped writing with his fellow judges altogether. In a 2013 interview, he explained that he had belatedly recognised that his colleagues on the bench wrote poorly and that the High Court’s difficult case load merited his individual attention. The previous year, he had given a much-discussed lecture at Oxford criticising the push for joint judgements in senior courts, labelling the pressure towards judicial collegiality — something Chief Justice Susan Kiefel later made her hallmark — “the enemy within.” His post-retirement return to Oxford as a visiting fellow was cut short, the Sydney Morning Herald reports, amid more allegations of predatory conduct, this time with law students.

Alan Stubley’s receptionist, the youngest of his patients to testify at his trial, described how, on her twenty-first birthday, the man she called Dr Stubley — who by then was also her psychiatrist, treating her for anxiety and depression — suddenly approached her and kissed her on the lips, telling her she could now do whatever she wanted. The High Court majority’s summary of her testimony continues:

In a consultation which took place after her twenty-first birthday, Stubley hugged her and undressed her, saying that he knew that she would be beautiful. He had sexual intercourse with her on the floor of the consulting room. She had not wanted to have sexual intercourse with him. During intercourse she had a “frozen grin” on her face. After intercourse he washed himself in the basin. She did not resist because she did not want to jeopardise her employment. She also believed that his conduct was part of his treatment of her as a patient. About a week after this episode she confronted him and told him that there was not to be any further sexual contact between them. Stubley agreed. No further sexual contact took place between the two.

Such terse summaries of the evidence are typical of the High Court and often contrast starkly with the details provided in the judgements of other courts that rule on the same cases. For example, the Western Australian Court of Appeal set out what the now fifty-three-year-old told the jury was behind her then “frozen grin”:

I had a boyfriend, a new relationship, and I had told him about it because it was a patient of his and also I just thought this couldn’t be happening because I didn’t know how to tell him that I felt revolting and he was my boss and I didn’t think I would get another job and he was like a guru or a figure I was greatly intimidated by and basically all of these things were swirling through my mind, just “How do I get out of this? How do I get out of this?”

The High Court’s reasons omit not only such human details, but also the broader narrative. A judgement from Western Australia’s Supreme Court reveals that, when she commenced working as Stubley’s receptionist, aged nineteen, she watched female patients emerge from his office on multiple occasions “looking untidy with crumpled clothes and their hair messed up.” She testified that, when she quit her job six months after confronting her psychiatrist, “she had been dramatically affected by the sexual intercourse to the point she requested admittance to the mental health ward at Sir Charles Gairdner Hospital.”

But few people read court judgements. After Stubley’s trial — where, Stubley’s partner told the media, “the gallery was full of patients supporting him” — Justice Narelle Johnson said that she was “staggered” that Stubley’s supporters had written to her saying that there had been “a scandalous miscarriage of justice,” observing that the letters’ authors had seemingly “not heard the evidence.” The partner of one of the two complainants later said that she was left “distraught” by the High Court’s ruling. Lacking legal training, these lay observers would have had difficulty reading the national court’s terse analysis of evidence law. But that would have posed no barrier to a different group, known as judge’s associates, who have a particular interest in the High Court’s handing of professional predators.

Following its initial finding that Dyson Heydon had sexually harassed six judges’ associates, the High Court is now reportedly contacting over one hundred other people who held such roles during Heydon’s tenure on the national court. Visitors to the court’s public hearings can see those associates seated behind each judge, sometimes rising in unison to supply law reports whenever a barrister mentions a precedent. Behind the scenes, they engage in variety of roles including legal research and proofreading the judges’ reasons. The positions — typically two per judge, and lasting for a year or two — are highly prized by future lawyers for the insight they offer into courtroom life and, in many cases, the close interaction with particular judges, which can lead to mentorship or friendship down the track. A new graduate’s selection by a high-profile judge signals a prediction — often self-fulfilling — of a stellar legal career.

We are likely to hear far more about life as an associate in coming days, weeks and months. Chief Justice Susan Kiefel’s statement setting out the current justices’ shame “that this could have happened at the High Court of Australia,” also reveals a number of new workplace safety measures, including clarifying that associates’ obligations of confidentiality “relate only to the work of the court.” Every day of this past week has yielded fresh behind-the-scene revelations, such as the claims that Heydon tried to kiss one of his associates in 2005 and that that information speedily moved through the court to its then chief, Murray Gleeson.

The then associates of Ken Hayne and Virginia Bell would have spent part of the second quarter of 2010 researching Stubley’s trial and initial appeal as a prelude to the two judges granting the ex-psychiatrist “special leave” to appeal his conviction at a brief hearing in the middle of that year. Many of that year’s associates would have travelled with the court’s seven justices to Perth that October to hear a set of Western Australian cases including Stubley’s appeal. Five associates would have been present when — after a two-hour hearing — Bill Gummow announced on the spot that “[a]t least a majority of the Court” had allowed the appeal. And some of those would have spent part of the next six months researching and proofreading the majority’s joint reasons for making that order, as well as Heydon’s lone reasons for dissenting.

They would have read the majority’s declaration that the then law in 1970s Western Australia “recognised that consent to intercourse may be hesitant, reluctant, grudging or tearful but that if the complainant consciously permitted it… the act was not rape.” That none of the three additional patients, including the receptionist, “gave evidence that the appellant had engaged in threatening or intimidating conduct inducing her consent to sexual activity.” That the prosecution’s submission to the contrary “conflates proof of psychological dominance with proof of absence of consent.”

They would have read the majority’s observation about the second patient — who testified that Stubley had once told her that “you seem to be very angry. Sometimes when people are very angry, they need to be put in hospital for a couple of weeks,” and who complained about his conduct to a medical board in 1981, the same year she ceased treatment with him — that “the prosecution did not seek to lead evidence of [her] reasons for not making a prompt complaint.” They would have read the four judges’ conclusion that “the differing accounts of the sexual abuse experienced by” the other three patients “were not capable of bearing rationally on the assessment of” the two rape complainants’ reasons “for continuing to undergo treatment and for not complaining.”

They would have read the joint words of Bill Gummow, Susan Crennan, Susan Kiefel and Virginia Bell that “manipulating a person into sexual intercourse by exploiting that person’s known psychological vulnerability would not, without more, vitiate their consent” and that “the cynical exploitation of [Stubley’s] position of power was not inconsistent with him holding an honest belief that the victims of his attentions were consenting to the conduct.” And they would have read the justices’ conclusion that “absent any feature of the evidence tending to demonstrate [Stubley’s] awareness that his manipulation of his patients had not succeeded in procuring their assent to his predatory advances, proof of the imbalance of power did not rationally bear on the issues raised by” the defence of honest belief.

And, at the same time, Heydon’s then associates would have been proofreading his excoriation of the majority’s reasoning.

In 2007, the High Court dismissed an appeal by a teenager who had been tricked by the two police officers into making what they promised was an off-the-record confession to a home invasion. Murray Gleeson and Dyson Heydon observed that “every day police officers take advantage of the ignorance or stupidity of persons whom they eventually prosecute.” Gleeson, who was chief justice for the first five years of Heydon’s tenure, was allegedly told via another judge and his associate, of Heydon’s harassment of his own associate in 2005. He has largely refused to comment on the High Court’s inquiry into sexual harassment, aside from a cryptic text telling a journalist that “the accounts relayed to you are false.”

Heydon, who declined to be interviewed during the High Court’s inquiry, has stated, via his lawyers, that “any allegation of predatory behaviour or breaches of the law is categorically denied by our client.” He added that, in the case of the associates’ complaints, “if any conduct of his has caused offence, that result was inadvertent and unintended, and he apologises for any offence caused.” As for the other allegations now being detailed in the media, “our client denies emphatically any allegation of sexual harassment or any offence.” The latter is presumably a reference to a crime, rather than an emotion.

What are we to make of such a generalised denial? Ask Heydon. He spent much of his 2011 dissent dissecting Alan Stubley’s combined ethical mea culpa and criminal denial, as delivered by Mark Trowell to the jurors:

Dr Stubley will admit that he was sexually intimate with four of these women… but he says that his sexual intimacy on each occasion was consensual; that is, with the consent of each one of those females, that there was no force or coercion or intimidation or manipulation of any one of those females, and maybe he accepts that he may be morally and ethically wrong for what he did; he’s not guilty of the criminal allegations that have been brought against him and will explain the circumstances in which the sexual intimacy took place.

“A common forensic tactic,” Heydon wrote, “seeks to prevent damning evidence being called, or to water down the evidence which is called, by narrowing the issues in the case.”

Rejecting the majority’s view that Trowell has admitted the various “acts of intimacy” Stubley had been accused of, Heydon pointed out how Trowell “declined to pin his concessions about acts of sexual intimacy to the periods or occasions identified by the complainants.” Indeed, Stubley went on to cast doubt on a number of the specific acts the complainants described, saying that allegations such as sex with a heavily pregnant woman “was not the sort of thing I tend to do” and “not specifically” recalling many specific sexual acts he was charged with. The broad problem, wrote Heydon, is that “it is very difficult to fillet out the details of the relevant events which go only to sexual intercourse from those which are relevant to consent as well.”

There is similarly no way to tell whether Heydon, through his lawyers, is denying that the acts alleged against him happened at all, or is suggesting that they were consensual. In Stubley’s trial, Trowell blamed the passage of time for his client’s refusal to be pinned to specifics:

Can I say this: after thirty to thirty-five years he’s not able to tick a box like a questionnaire to relate to each particular act. I mean, who could? Who could after thirty to thirty-five years? Who could accurately describe in detail things that happened so long ago? Apparently, the complainants can. Let’s see about that.

Heydon thought that “unfortunately phrased”: “perhaps the reason the ‘females’ could accurately describe what happened long ago, while the accused could not, was that the events complained of were unique in their experience, but merely quotidian and banal in his.”

If Trowell winced at that back then, so might Heydon’s lawyers today. But in 2011, Heydon was unsympathetic to the plight of an alleged predator:

It may be thought harsh in the case of offences which allegedly took place as long ago as the offences charged in this case that the desire of an accused to make an admission should be thwarted because he is unable to be specific in consequence of the lapse of time. In some ways it is harsh; in other ways not. The lapse of time brought advantages and disadvantages to the accused. One of the advantages was that it would be easier for the jury to have a reasonable doubt about the evidence of the complainants. One of the disadvantages was that it made it harder for him to make an admission…

He quoted the greatest of modern evidence scholars, Henry Wigmore, who complained that “a colourless admission by the opponent may sometimes have the effect of depriving the party of the legitimate moral force of his evidence; furthermore, a judicial admission may be cleverly made with grudging limitations or evasions or insinuations (especially in criminal cases).” Better, Heydon said, “to let the jury hear the whole unbowdlerised story.”

The High Court’s judgement in Stubley’s case revealed two possible futures to any women at the time contemplating going public with their stories of alleged professional predation. In one future, each woman’s account would be read only for its deviation from their alleged assailant’s mea culpa, and potentially on its own. In the other, decision-makers would see the “whole unbowdlerised story” of the alleged perpetrator’s pattern of behaviour. Those thinking of exposing Heydon’s own alleged harassment and crimes would have found more encouragement in his dissenting words than those of the four justices in the majority, including the current chief justice. The lesson of #metoo is how we can find our enemies in surprising places. Likewise our allies.

Assuming we find them at all. After allowing Stubley’s appeal, the High Court nevertheless ordered his retrial, observing that the psychiatrist faced allegations of “serious offences” and the two complainants’ evidence “was in each case capable of establishing the prosecution case.” Justice Johnson had previously sentenced him to ten years in prison, telling him: “It is unfortunate that no one paid attention to the complaints of these women. You would not have been able to continue your work until retirement.” He had served two years of that sentence when the majority’s judgement freed him.

Two months after their words were published, the eighty-three-year-old suffered a blood clot and underwent surgery. The onset of mild dementia prompted a consultant psychiatrist to find that Stubley would be unable to follow his retrial or the prosecution case, or to defend himself. Western Australia’s Supreme Court ruled that the former psychiatrist was unfit to stand trial and ordered his release into a nursing home, finding that he posed no further danger to the community. As far as I can tell, Alan Stubley died last year, aged ninety. It was not a good end for the retired psychiatrist, but likely better than the one chosen by Dyson Heydon. •

The post The enemy within appeared first on Inside Story.

Many of the thousands of Australians who started demonstrating in early June carried placards bearing the acronym of the American campaign: BLM, for Black Lives Matter. They could have added another abbreviation, CNS, for “custody notification service,” a straightforward scheme that has been shown to bring down the number of deaths in police custody in the few places where it’s been tried.

The battle to have custody notification services introduced across the country stretches back almost thirty years to the 1991 report of the royal commission into Aboriginal deaths in custody. At their heart is a simple requirement: that Aboriginal people are given twenty-four-hour telephone access to legal advice once they’ve been taken into police custody. It doesn’t seem much to expect of police themselves, and it’s been shown to be effective, but until New South Wales introduced a CNS in 2000, federal, state and territory governments had ignored the option, and most still do.

The need grows ever more pressing. Even as demonstrators thronged across Australia on 6 June, with more rallies planned, the Guardian Australia revised from 432 to 434 its count of Aboriginal deaths in police and corrective services custody over the twenty-nine years since the royal commission’s report; three days later, it revised the figure again to 437. Started two years ago, the Guardian’s “Deaths Inside” project, partnered by the University of Technology Sydney, is the only up-to-date database. The Australian Institute of Criminology provides its own count, but less regularly; it stands at almost 400 deaths.

The unacceptably high arrest and incarceration rates that lie behind these numbers have not fallen since the royal commission’s report. So bad are they that the Australian Law Reform Commission conducted its own inquiry three years ago. With 3 per cent of Australia’s population, Aboriginal people comprise 27 per cent of adult prison inmates; among Aboriginal women the rate is even higher, at 34 per cent. The commission found that overall Aboriginal incarceration rates had risen 41 per cent in the decade to 2016, and the gap between Aboriginal and non-Aboriginal imprisonment had grown wider.

Consultants PwC Australia calculated that Indigenous incarceration could cost the Australian economy almost $10 billion in 2020, and twice that figure by 2040 if nothing is done.

With numbers like these, it was little wonder that the law reform commission repeated the royal commission’s call for custody notification services when it presented its report to federal attorney-general Christian Porter in late 2017. There should be a “statutory requirement for police to contact an Aboriginal and Torres Strait Islander legal service,” it said, “as soon as possible after an [Indigenous] person is detained in custody for any reason — including for protective reasons.”

This call, too, has mostly gone unheeded. Tom Calma, a senior Aboriginal figure and a member of the inquiry’s advisory committee, tells Inside Story that a CNS gives Aboriginal detainees a “friend” on the outside whom they can speak to and trust: “It’s so sad governments haven’t adopted it broadly.”

New South Wales introduced the first custody notification service in 2000. It obliges police to put Aboriginal people in touch with the state’s Aboriginal legal service once they’re taken into custody. Nadine Miles, principal legal officer of the Aboriginal Legal Service (NSW/ACT), describes what happens next: “We provide legal advice and conduct a welfare check, asking how they’re feeling, if there’s any medication they need — matters like that. We inform family members and encourage them to attend if instructed. If further conversations are needed, we call back. For police, all this reinforces the obligations under their duty of care.”

The approach has succeeded — with one fatal exception, which pointed to a simple flaw in the NSW scheme. Rebecca Maher died in a police cell in Maitland in July 2016 after being detained by police because she appeared intoxicated in the street. She was not charged with any crime. Police did not seek medical help, and nor did they put Maher in touch with the custody notification service. At the time, the law didn’t require them to take that extra step.

In her finding on Maher’s death, the acting state coroner, Teresa O’Sullivan, suggested Maher might have lived if the CNS had come into play. She criticised the fact that police were obliged to notify the service only if someone was in custody for an offence, not if he or she were detained while drunk. O’Sullivan recommended that NSW legislation be amended to cover this circumstance; it was changed in 2019.

Some lawyers agree with O’Sullivan’s call for a wider definition of police custody for the CNS; they argue it should cover a process of police arresting someone or taking any steps that bring someone under police control.

Outside New South Wales, the rollout of custody notification services has been patchy. The former federal Indigenous affairs minister, Nigel Scullion, once called for a “consistent national approach,” yet it wasn’t until last year that Western Australia and Victoria legislated for their introduction. The failure to achieve national consistency boils down to one main factor: funding for legal services.

Scullion provided three-year funding for the NSW service to 2019. It was extended to 2020, and Ken Wyatt, his successor, has recently extended it again, but only for another three years. Scullion also dangled the prospect of federal funding for similar programs in all states and territories. But he insisted not only that the rest of the states and territories pass legislation to make CNS a mandatory process (as the royal commission had demanded), but also that the states pick up funding after three years. Some states have still not passed such legislation, although they claim to offer legal help for Aboriginal people in custody. And most states have been slow to offer money.

The fact that all states still don’t provide what Scullion called a “critical service” for Aboriginal people in custody seems staggering. Nadine Miles calls for a change in political will. With the states responsible for running their own criminal justice systems, she understands Canberra’s push for them to underwrite the Aboriginal legal services for CNS. “That said, the constant argy-bargy means the Aboriginal people lose out,” she says. “Funding for CNS is a constant conversation.”

Nerita Waight, of the National Aboriginal and Torres Strait Islander Legal Services, says Victoria’s CNS has had about 1200 calls a month from incarcerated people since it started eight months ago. “And that’s a good month,” she adds. “It can rise dramatically.” Instead of arguing over funding, she says, governments should develop “urgent partnerships” with Aboriginal legal services: “Deaths in custody should be a paramount issue for the Commonwealth.”

On their own, custody notification services won’t stop high rates of Aboriginal imprisonment. But they can form part of a broader “justice reinvestment” approach that both the royal commission and the law reform commission recommended. This involves putting less public money into building yet more prisons and more into social programs designed to keep people out of them. It also allows Aboriginal leaders to be at the forefront of such reforms. Bourke, in outback New South Wales, has taken Australia’s most innovative approach so far, and is bringing incarceration rates down.

Governments will also have to be more upfront about recognising Australia’s historical legacy as a source of Aboriginal inequality. Nearly three decades ago the royal commission identified Aboriginal inequality as “a direct consequence of their experience of colonialism and, indeed, of the recent past.” It’s striking how Australia’s leaders by and large still shy away from debate about this central fact.

Just last week prime minister Scott Morrison responded to the outcry over George Floyd’s death in police custody in America by calling it “upsetting,” before adding: “And I just think to myself how wonderful a country is Australia.” Morrison’s complacency contrasts with the greater willingness of Canadian prime minister Justin Trudeau to confront a problem that festers in both countries.

On 11 June, Trudeau said that “systemic racism is an issue right across the country, in all our institutions.” He added, “It is recognising that the systems we have built over the past generations have not always treated people… of indigenous backgrounds fairly through the very construction of the systems that exist.” When Scott Morrison was questioned that same day about statues linked to slavery being pulled down in other countries amid the Black Lives Matter campaign, he dismissed the notion that Aboriginal people in Australia had ever undergone slavery: “This is not a licence for people to just go nuts on this stuff.”

As he spoke, plans for more Black Lives Matters protests were going ahead. A court had banned marches in New South Wales, citing coronavirus concerns, and Morrison had warned that those who attended could be charged. But Aboriginal leaders still see the marches having a positive impact on dealing with deaths in custody. “That’s not to say there isn’t systemic racism that stops some people from taking the issues seriously,” says Nadine Miles. “But I think we have in Australia a population who are interested in hearing more and understanding the issues.” For his part, Tom Calma sees “glimmers of hope” that the national cabinet could come to grips with these issues. •

Funding for this article from the Copyright Agency’s Cultural Fund is gratefully acknowledged.

The post A friend on the outside appeared first on Inside Story.

How the national court would finish the case was another matter. It could have ended with a whimper, with Pell’s name appearing in an online list of special leave applications with the word “dismissed” next to it. Or it could have ended with a bang, with Australia’s top judges deciding the case for themselves. At 10am last Tuesday, the latter happened, when seven justices swept away earlier decisions by twelve jurors and three judges.

When news of Pell’s guilty verdict broke fourteen months ago, many observers studiously ignored the High Court’s looming role. His critics relished calling Australia’s top Catholic a “convicted paedophile.” Victoria’s premier chastised a former prime minister for visiting him in prison. But Pell’s accuser always knew better: “Everything is overshadowed by the forthcoming appeal.”

Something of the reverse happened last Tuesday, when the High Court revealed what most who attended its Canberra hearing last month already knew: Australia’s cardinal would again be the nation’s biggest story. As Pell was driven from his locked-down prison into a locked-down city, his supporters declared he had been found “innocent.” “Let us #PrayTogether today,” tweeted the Pope for Lent, before garbling a prayer “for all those persons who suffer due to an unjust sentence because of someone had it in for them.” The premier refused to “comment” on the decision, telling “every” victim, “I believe you.”

But Pell’s guilt or innocence on the charges against him has never changed and never will. He did not become less guilty last Tuesday. Nor did he become less innocent on that other Tuesday in 2018. He has been either guilty or innocent of the rape of two children for the past twenty-three years and will remain so forever. No court ruling — or punditry, or politics — can alter what actually happened in St Patrick’s Cathedral during six short — or agonisingly long — minutes after a Sunday mass in mid December 1996.

The proceedings against Pell have always been about how the courts — and the rest of us — respond to the claim made against him. For the courts, the sole issue is whether Pell’s prosecutors were able to prove beyond reasonable doubt what happened in 1996. In 2018, the jury unanimously decided that the prosecution had proved what happened, which is why Pell spent most of 2019 in Barwon Prison. Last Tuesday, the High Court unanimously decided that it hadn’t, which is why Pell will spend most of 2020 in Sydney.

The High Court’s key ruling — that there is a “significant possibility” that Pell is innocent of the charges against him — isn’t a conclusion that he is innocent; it is a conclusion that the prosecution failed to prove that he isn’t. That finding, when made by a jury or a final court of appeal, ends the prosecution and restores to him the presumption of innocence in future court cases about those allegations, such as civil proceedings or — importantly for commentators — defamation actions. But that’s all that it does.

Outside the courts, the High Court’s ruling is only important to the question of Pell’s true guilt or innocence to the extent that it persuades people one way or the other. People aren’t bound by the presumption of innocence, or the rules of evidence, or respect for the courts, or even by fairness, unless they want to be. Those who are so inclined can believe that the jury’s take on proof reflected the truth, or that the High Court’s did, or they can believe all complaints of sexual abuse, or all ones about Pell, or none of them. Or they can look at the evidence for themselves and reason about it however they want. At least they could, if most of it was publicly available.

The criminal justice system’s finding that Pell was guilty of child sexual abuse lasted 482¾ days, a fact that prompts many questions. Why didn’t the jury’s verdict stand? What does his acquittal mean for his accuser? And what of the earlier decisions in this case? The High Court’s reasons leave the most important question about his case unanswered.

To understand why George Pell is now free, start with the day before his jury was sent out to deliberate. On that Wednesday seventeen months ago, Ruth Shann, one of Pell’s two barristers, asked permission to play a nineteen-minute animation during the defence’s closing address. Derisively known as the “pac-man video,” it showed the floorplan of St Patrick’s Cathedral and used coloured dots to represent various church officials’ movements after mass. Accompanying each dot, Shann explained, were excerpts of the testimony of the case’s twenty-three “opportunity witnesses” — every person who was known to be at the church that day and testified at the trial — to support the claimed location of each official as time passed.

Like virtually all of the public, I haven’t seen that video. Nor did any of Pell’s jurors see it. Or any of the High Court’s justices. That’s because, after the prosecution objected, the County Court’s chief judge, Peter Kidd, barred Shann from showing it. Pell raised Kidd’s ruling at his initial appeal, but all three judges rejected his complaint, including justice Mark Weinberg, Pell’s lone judicial backer until last Tuesday, who excoriated the video as “tendentious in the extreme.”

But we know what the video claimed about events in 1996 from Weinberg’s description. He complained that it showed a scenario that no one thought actually happened: Pell and his master of ceremonies on the cathedral’s main steps, while the two boys alleged to be Pell’s victims were in the sacristy at the opposite end of the building alongside “a large number of concelebrant priests.” Showing the jurors this “visual representation,” the Court of Appeal ruled, risked “misleading, or at least confusing” them.

Pell didn’t bring up the video again at the High Court, but what the dots represented was at the heart of his last-chance appeal and the national court’s decision to acquit him. Most of the court’s reasons are a painstaking appraisal of the testimony of those twenty-three opportunity witnesses. Remarkably, the seven justices said that Weinberg’s colleagues in the Court of Appeal, Victoria’s two most senior judges, were themselves misled or confused about part of those witnesses’ evidence. The pair’s factual error may have added an unnecessary eight months to Pell’s time in prison.

The claimed error by chief justice Anne Ferguson and Court of Appeal president Chris Maxwell was about timing, which was crucial to the case against Pell. When police put the allegations to the cardinal at a hotel near Rome’s airport in late 2016, he described the assertion that his crimes occurred in a sacristy after Sunday mass as “good for me.” “The most rudimentary interview of staff and those who were choirboys,” he told the police, would reveal that his accuser’s account was “fundamentally improbable” because “the sacristy after mass is generally a hive of activity.” At the trial, the prosecution called the opportunity witnesses out of ethical duty. They testified as Pell promised: after mass, a dozen or more officials — the sacristan, his assistant, the priests and the altar servers — filed in and out of the sacristy to store sacred items and remove their vestments.

To prove Pell’s guilt, the prosecution had to show beyond reasonable doubt that there was a long enough gap when none of those officials (except Pell) was present while the alleged crimes occurred. The complainant estimated that the choirboys’ time in the sacristy — finding and drinking the altar wine, being discovered by the archbishop, his raping and abusing them, and their dressing and leaving in tears — lasted five to six minutes. The two Victorian judges ruled that the opportunity witnesses’ accounts left just enough time for these events, because the sacristan, Max Potter, had a practice of delaying the removal of sacred items to allow parishioners some private prayer time, a hiatus that witnesses estimated lasted five to six minutes.

But the chief justice and president’s solution didn’t work, the High Court said. The problem is that the private prayer hiatus and the alleged crimes started at different times. The hiatus commenced when mass ended, while Pell and the choirboys were processing out of the opposite end of the cathedral. On the complainant’s account, the boys must have taken over three minutes to reach the sacristy, at which point the hiatus would have been mostly over.

On top of that stark factual mistake, the High Court ruled that Ferguson and Maxwell made legal errors in dealing with a set of further problems raised by the opportunity evidence, including Pell’s practice of spending up to thirty minutes on the church steps speaking with exiting parishioners, the longstanding protocol that the master of ceremonies stayed with the archbishop until he left the cathedral grounds, and evidence that a dozen or so concelebrant priests change their outfits in the sacristy during the hiatus.

The High Court held that the chief justice and president’s answer to this evidence — that, given the passage of time, the opportunity witnesses could have been thinking of later-arising practices or have forgotten ad hoc exceptions to them at one of the two masses where the crimes must have occurred — was not only unconvincing (as those masses were especially memorable ones) but also legally forbidden. The prosecution either didn’t ask the witnesses about those particular scenarios or didn’t challenge their denials if they did. Also, Victorian law forbids judges from relying on the delay between alleged crimes and the trial — something that jurors are told leaves defendants at a disadvantage — to improve the prosecution’s case.

The Victorian judges’ errors didn’t mean that Pell had to be freed. That depended on what the Court of Appeal ought to have decided if those errors hadn’t been made. Victoria’s director of public prosecutions, Kerri Judd, clearly sensing disaster last month, said that the appeal should be sent back to Victoria, because the seven justices had only read parts of the 1600-page trial transcript. But the High Court thought that was “specious.” The seven justices had read everything both sides asked them to read, they said, so they could decide the appeal themselves. And then they did.

The justices’ particular words — that there was “a significant possibility that an innocent person was convicted” — were the same ones coined thirty-six years ago by Justice William Deane to explain why he would have freed Lindy Chamberlain at her High Court appeal. But the Pell and Chamberlain proceedings differ in more than just their outcomes. Every aspect of the Chamberlain case, from the aftermath of Azaria’s disappearance to the statements of all witnesses, the course of the trial and even the jury’s deliberations, was contemporaneously reported by dozens of journalists and onlookers. Its later twists and turns — the narrow loss in the High Court, the fresh inquiries and the Chamberlains’ belated acquittal — were received by a public deeply familiar with the evidence for and against them.

By contrast, the alleged crimes in St Patrick’s preceded news of the investigation by decades, and almost no one has seen the complainant’s account of them, or ever will. Pell’s trials and their outcomes were kept secret from the public as they happened, meaning only a handful saw all of the opportunity witnesses testify. Journalists could only report on each party’s case after the public learnt which side won. None of those who watched noticed — or at least reported on — the timing error made by Ferguson and Maxwell. It is not clear whether any journalists have access to the trial transcripts Pell and his prosecutor asked the High Court to review.

And that leaves readers of this particular High Court judgement at a disadvantage. The justices’ reasons are clear and convincingly written, but those who would like to check for themselves — to see whether Victoria’s top two judges really misread some key evidence before them, and whether there really is a significant possibility that Pell is innocent — need to find a way to read the transcripts themselves, or to hope that some journalists do so and reliably fact-check. Otherwise, we must decide whether to take the High Court’s painstaking analysis of that evidence — and its findings about it — at face value.

Pell’s accuser says he does. “I respect the decision of the High Court. I accept the outcome.” These are his first — and quite possibly among his last — public words following the court’s ruling. He added that he “understood their view that there was not enough evidence to satisfy the court beyond all reasonable doubt that the offending occurred” and that “the High Court is saying that the prosecution did not make out the case.”

The accuser’s acceptance of the High Court’s judgement puts a lie to the notion that the national court found Pell innocent or his accuser a liar. The justices’ finding of a significant possibility of Pell’s innocence must mean they thought that there was a significant possibility that his accuser was either lying or wrong for some other reason. But it doesn’t mean that they found, or even thought, that he was actually wrong, much less a liar. Indeed, when Justice Deane made the exact same pronouncement about Lindy Chamberlain’s innocence, he expressly said that he still thought that she was the more likely culprit in Azaria’s death than the dingo she accused.

The High Court’s judgement on Pell is much shorter and narrower than its judgement in the Chamberlain case. The seven justices’ reasons for acquitting Pell have none of the anger or agony of the two dissenting judgements on Lindy Chamberlain. Instead, they chastised all three of Pell’s Victorian judges for opining on the honesty of Pell’s accuser, adding that the Court of Appeals’s split on that issue shows how “subjective” such assessments are. In the case’s sole major pronouncement of law, they held that questions about demeanour or candour or memory are exclusively for jurors to thrash out as a group. Appeal judges should proceed on the obvious assumption — that the jurors found every crucial prosecution witness to be credible and reliable — and then look to the transcripts for reasonable doubt.

But what do those transcripts mean for Pell’s accuser? The seven justices said that they contain no independent support for his account. They disagreed with Ferguson and Maxwell’s finding that his accurate description of the interior and use of the priest’s sacristy from that period corroborated his claims of abuse rather than just his presence in the sacristy at some point. To the contrary, they found that the transcripts leave no room for his account to be correct, because there was no time for what he described to occur when and where he said it did. Does that mean that his account must be wrong? And therefore that he was lying or deluded? It could.

But there are at least two other possibilities. One is that Pell’s accuser was seriously mistaken about when and where the claimed abuse occurred. People can and do get significant things wrong when they recount distant events, even when describing horrible moments in their lives. Plenty of prosecutors have gone to jurors on the basis that their key witness was honest and correct in describing the wrongs done to them even though they got many surrounding details totally incorrect. While that makes such trials challenging for everyone, many convictions have been achieved that way and upheld on appeal.

The other possibility is that the opportunity witnesses were seriously mistaken about the practices, protocols and rituals that applied in St Patrick’s Cathedral in 1996. Although the High Court observed that rigidity is a key part of religious life, that doesn’t exclude the possibility that the details can be described erroneously, or worse. Nor does it rule out overconfidence about the predictability of the practices or understatements about exceptions — such as ones that could have allowed for a much longer hiatus, or afforded much more privacy to a high-ranking abuser, after Sunday mass. Again, plenty of prosecutors have gone to jurors on the basis that seemingly honest defence witnesses were totally wrong for whatever reason, and achieved safe convictions as a result.

Crucially, neither of these scenarios was put to the witnesses at Pell’s trial. And that means they couldn’t be put to his jurors. And that in turn means that they couldn’t be considered by the High Court. So, the seven justices’ finding of a significant risk that Pell was innocent turned on the evidence and argument at his trial. It is possible that different evidence and argument at his trial would have produced a different finding on appeal. But they may also have yielded a different jury verdict.

There are obvious reasons why Pell’s prosecutors would hesitate to argue that either his accuser or two dozen witnesses got key details about the crime or the crime scene wrong. The witnesses may have convincingly rejected such claims. And, even if they hadn’t, there’s still a clear chance that Pell’s jurors would have baulked at finding him guilty of child abuse based on such arguments. Although they hit a wall at the High Court, the Crown’s strategic decisions in 2018 go some way to explaining why a very difficult prosecution went as far as it did. It’s understandable that Pell’s accuser thanked the police and prosecutors.

But should we? The former choirboy isn’t Pell’s only accuser. The High Court’s ruling has potential implications for his official ones: the police, the prosecutors, the jurors and the appeal judges. If the national court is right that Pell’s guilt was never proved beyond reasonable doubt, then doesn’t that mean that some — indeed all — of these other decision-makers got the case wrong? And, indeed, as Pell asserts, caused him a “serious injustice” that was only remedied last Tuesday? Maybe.

Disagreement between official decision-makers is a regular occurrence in the justice system. It’s why we have so many decision-makers on questions of proof of serious crimes. The history of miscarriages of justice — not just in Australia but everywhere — explains why all criminal defendants are given multiple opportunities to argue that there isn’t sufficient proof of their guilt. That’s what Pell did before the police, before two juries and before two courts. He only succeeded before the High Court, but that was enough.

On the other hand, the timing issue could have been picked up by any of those earlier decision-makers. That question of whether they should have picked it up shouldn’t be left to Pell’s defenders and antagonists. The various champions and detractors of juries and High Courts who have sprung up in the past year and week deserve every scepticism. I’ve little doubt that nearly all of them would have been arguing the exact opposite with equal dudgeon had either the jury’s verdict or the High Court’s gone the other way.

The criminal justice system is usually too busy, stretched and adversarial to engage in comprehensive reviews of possible failures to detect a problem early enough. But soul-searching and independent reviews are normal in high-profile cases where an error is picked up in a spectacular way. Pell’s case should be no exception. Given the unfortunate secrecy surrounding the original trials, a comprehensive inquiry is perhaps the only way to overcome the understandable public perception that, at one point or another, justice was not done in this case.

In that vein, I think it is worth setting out why it is possible that none of the official parts of the criminal justice system failed — or at least seriously failed — on the timing issue raised by the High Court. (For those wondering about my priors on these systemic arguments, I have written a book championing juries and many pieces — including a doctoral thesis — criticising the High Court’s work on unsafe verdicts, including in sexual abuse cases. Like most criminal law academics, I fret a lot about the roles of many people in miscarriages of justice but see lots of problems in most other ways of doing criminal justice.)

While police make many crucial decisions when they investigate crimes — and those decisions merit close scrutiny — it is not usually their role to make judgements about proof. Their role is to gather evidence for prosecutors, which they must do despite having no power to make most people talk with them. A gap in time between alleged crimes and an investigation — which jurors are rightly told greatly disadvantages defendants — also obviously hampers police. In Pell’s case, where every likely witness is someone who worked for Pell in 1996 and some — notably the sacristan, Max Potter — are now infirm, those disadvantages could account for the police’s failure to recognise the timing problem.

Nevertheless, the police did make a decision about whether there was proof that Pell was guilty when they charged him in 2017, possibly after disagreement with lawyers from Victoria’s independent prosecutors’ office. That charging decision was ultimately shared with Victoria’s then director of public prosecutions, John Champion (now a Supreme Court judge), and his successor, Kerri Judd, who could have stopped the prosecution if they disagreed with the police’s call.

But the bar for decisions to commence a prosecution is lower than those later in the criminal justice system. Public prosecutors can bring charges whenever there are reasonable prospects of a conviction and proceeding is in the public interest. This test was plausibly satisfied in Pell’s case. As Judd rightly pointed out in the High Court, testimony about events lasting mere minutes recalled from decades ago ought to be taken with a grain of salt. She lost the argument on appeal because — the court said — the trial witnesses weren’t challenged on their timing claims, including the possibility of a much longer private prayer hiatus. But prosecutors wouldn’t have known that before the trial.

It is at the trial where it is harder to understand why a critical timing issue didn’t bring proceedings to a halt. It’s worth noting that trial judges — magistrate Belinda Wallington at Pell’s committal hearing and chief judge Kidd at the County Court trial — only test whether the evidence the prosecution supports (here the accuser’s account) could prove guilt. The question of whether other evidence (such as from the opportunity witnesses) created too much doubt is one for prosecutors, jurors and appeal judges, who notably all reach their decision in groups. (The risks that flow from giving too much decision-making power to individual judges is why we should look askance at suggestions that single judges should replace jurors in trials of serious charges.) No one argues that Pell’s magistrate or judge made any major errors on things in their remit, such as courtroom procedures, rulings on the evidence or directing the jury.

But why didn’t Pell’s prosecutors stop the trial because of the timing issue? And why didn’t his jurors — the hold-outs in his first trial and all twelve in his second — acquit because of it? If the High Court is right about the timing evidence, then those things should have happened in one or both of Pell’s trials in 2018. The best defence I can offer is speculative and uncomfortable: the prosecutors and jurors quite possibly didn’t notice the issue. There is some compelling evidence behind this guess: two senior judges seemingly didn’t notice it either and nor did any of the journalists who watched and described Pell’s trials.

Even my generous take may seem quite damning of Pell’s prosecutors and jurors (and others), but the true culprit could be the whole idea of resolving complex questions at a single “trial.” Trials — and, especially, questioning dozens of witnesses in sequence and then summarising their evidence orally days later — are poorly suited to identifying crucial issues out of a mass of arguments, including fine issues of timing.

That’s why Shann wanted to show Pell’s jurors her animation. She argued that illustrating the timing issues this way suits contemporary approaches to presenting information, which jurors would be familiar with from their own devices. Without it, she prophetically suggested, “it was possible that they might not understand the full force, cumulatively, of the defence argument in relation to opportunity.” Weinberg’s retort — that there is more risk of confusion from presenting such “material in this highly questionable form” — ought to be reconsidered now, as should trial prosecutor Mark Gibson’s decision to object to the video in this case.

But trials’ deficits in complex cases go well beyond their low-tech approach. Trials require a dozen or so people to work — and, to an extent, fight — in a single room, while a dozen others are required to sit for weeks and absorb silently, before being locked away and asked to reach a consensus with strangers on what might be the most important decision of their (and others’) lives. The key question of proof, and the details it turns on, must vie for attention with concerns about fairness, interest, distress, comfort, time, money and personalities. The trial’s strengths — the atmosphere, the rhetoric, the high stakes, the group work — are also its weaknesses.

All of this may sound like a call to do away with trials, but it isn’t. Rather, it’s a call for the system we have, the one where anyone who is found guilty can ask one or more appeal courts to robustly review that trial finding at leisure and from a distance. The High Court held that one reason the Court of Appeal may have gone wrong in this case is that its judges acted too much like jurors, watching much of the trial via video recordings and focusing on which of the witnesses was believable. That may explain why, as the seven justices put it, Victoria’s two most senior judges “failed to engage” with whether the opportunity witnesses’ testimony left a reasonable possibility that a credible accuser was nevertheless wrong. The same may also be said of Pell’s prosecutors and jurors.

But maybe not. The above is just a possible account of what happened, the kindest I can think of. There are less benign explanations, not to mention rival conspiracy theories. Those theories are one of many reasons why the High Court’s acquittal of Pell ought to prompt an independent review of all the decision-making in this case. Without that (and anyway), we will each have to somehow find our own response to what has happened.

“I would like to reassure child sexual abuse survivors that most people recognise the truth when they hear it,” Pell’s accuser said in his statement at the end of the day on which the High Court acquitted his alleged abuser. “They know the truth when they look it in the face. I am content with that.” Hours into the freedom the High Court granted him, Pell said, “I hold no ill will toward my accuser, I do not want my acquittal to add to the hurt and bitterness so many feel.” I have no idea if either of these statements is sincere, but it doesn’t matter much. They both put to shame the cynicism of public commentators for and against Pell, and provide a path forward for the less cynical.

But the future is not the most important thing in this case. The past is far more important. It may be that one of these two well-spoken men is genuinely deluded in his recollection of what happened all those years ago. If not, then one of them is a liar who put the other one through a living hell. If that’s the case, then both of them know which man that is. The rest of us can believe what we want, but we will never know, unless that man confesses. Most likely, both will carry this shared knowledge to their graves. And after that, if the beliefs they were raised with — and may, against all reason, still hold — prove to be truth, they will go their separate ways. •

The post Pell in purgatory appeared first on Inside Story.

The written submissions each side filed with the High Court in January are all about rituals, robes and rehearsals. It may seem odd that the same court that made national headlines a month ago when it ruled on the relationship between Aboriginal Australians and Australia will now spend two days considering what happened in a sacristy twenty-three years ago. But this is nothing new for the national court. Indeed, the very morning after the seven judges split on who is and isn’t an “alien” under Australia’s Constitution, five of them puzzled over what caused a mysterious explosion on Bribie Island in 2015.

Eamonn Coughlan’s last chance to clear his name of an arson conviction started badly. For Justice Patrick Keane, the ex-cop’s claim that his house inexplicably blew up as he was standing on the footpath trying to see a motorbike “just sounds odd.” Justice James Edelman also seemed to have his doubts — “His shoes were entirely melted, were they not?” — and before long two more judges were asking Coughlan’s counsel, “What are you trying to get out of this?” and “Where does this take us?” Yet just an hour later — after the same judges peppered the prosecution’s barrister with questions about pants, petrol and passers-by — all five acquitted Coughlan on the spot, overturning a Queensland jury and a unanimous Queensland court.

Cases like Coughlan’s expose the persistent myth that Australia’s top court doesn’t take or decide disputes about facts. Last November, five of the court’s judges explained why they had acquitted another Queensland man of a gruesome murder on Macleay Island, overturning the unanimous view of fifteen jurors and judges. Their thirty-five-page judgement barely mentioned the law, but was full of analysis of means, motive and opportunity — and claw hammers, bank codes and CCTV. Two months earlier, the national court decided who was driving a Toyota Tarago during a head-on collision on North Stradbroke Island, this time disagreeing with a Queensland judge and unanimous appeal court who found the driver was an unlicensed teen left paralysed by the crash. The law came up on just three of the thirty pages of the High Court’s reasons, which were mainly about airbags, seatbelts and blood.

If next week’s hearing follows suit by focusing on the events at St Patrick’s Cathedral, then that will likely please both Pell and his prosecutor. Walker’s goal is to convince the court that Pell simply had too little time to commit the crimes he’s accused of, given the (mostly) undisputed evidence of what he and other church staff were doing in the minutes when the abuse must have occurred. Judd would welcome such a fight, given that Victoria’s prosecutors have already won the same argument twice, at Pell’s second trial in late 2018 and at his appeal in the middle of last year. But neither side may get what it wants.

The arson, murder and car-crash cases have something in common beyond their Moreton Bay settings. Each of their appeal hearings came only after at least two High Court judges had decided that the factual disputes were worthy of the national court’s time. Pell, by contrast, lacks that comfort going into next week’s proceedings. This means that Wednesday’s hearing — and Pell’s hopes of exoneration — could be over in as little as an hour. Or it could mean that the court will make the proceedings about something else entirely.

Sixteen years ago, Bret Walker was representing Queensland’s chief magistrate when she was hoping for a last-chance exoneration after a jury convicted her of retaliating against a fellow magistrate in a workplace dispute. Walker’s plan was to convince the High Court that his client’s conduct was reasonable, but the judges had a better idea: why not argue that her judicial role made her immune from such a prosecution? Walker took the point and Di Fingleton was cleared.

Five weeks ago, the High Court wrote to Pell and his prosecutor with some questions. The court occasionally writes such letters to litigants, including in the recent case about deporting Aboriginal Australians. For some reason, letters like this are always kept secret from the public, leaving us to learn about them — if we ever do — when the parties formally respond. Pell’s response two weeks ago is how we learnt that his case may take a left turn.

To understand what may have changed, we need to go back eleven months to shortly after Pell was sentenced. In early April last year, Victoria’s Supreme Court wrote to the parties explaining that the three judges assigned to hear Pell’s appeal wanted to see some of what Pell’s jurors saw. In particular, they planned to visit St Patrick’s Cathedral themselves and to watch the adult choirboy’s prerecorded testimony together with footage of the in-court testimony of three other people who were at St Patrick’s back then.

Unbeknownst to the public, the prisoner and prosecutor privately clashed over this request. The Crown’s then counsel, Chris Boyce, told the three judges to do what they wished, but Pell’s team drew the line at their watching testimony from the trial. They pointed to a NSW case from a decade ago, where an appeal court declared that jurors and judges alike should never watch footage of witnesses during their deliberations lest they be overwhelmed by the visual medium. When the case went to the High Court, its judges — including future chief justice Susan Kiefel — were less strident. Usually, the trial transcript will suffice for criminal appeals, they said, but not if the videos may reveal things that written words can’t.

Last April, the Victorian judges sided with the prosecution, but also accepted Pell’s fallback position: if the judges watch any witnesses testify, then they should watch all whose accounts were at issue. The trio ended up viewing footage of eleven witnesses from the second trial, together with three other videos Pell’s jury saw: the complainant’s return to St Patrick’s in March 2016, the police interview with Pell in Rome later that year, and the complainant’s testimony at Pell’s first trial in mid 2018. After the hearing, the judges also tried on the archbishop’s robes, later splitting (as in most things) on whether their design rendered the complainant’s detailed account of the abuse plausible or not.

The Melbourne court’s decisions last April may loom large in Canberra this March. The High Court’s first question to the parties was whether courts hearing criminal appeals are required or even permitted to go beyond the trial transcript. In their responses, both parties repeated their views from last year. Walker said that the appeal judges shouldn’t have watched the videos because there was no reason to do so. It’s one thing watching videos of child witnesses, as some judges have, because such videos will likely show whether the child was uncomfortable, confused, hesitant, confident or communicating with actions. But the witnesses in Pell’s case were (thankfully) all mature adults. So what, responded Judd. Just because appeal judges don’t need to watch the videos doesn’t mean that they can’t. It’s up to them, she said, and their decision made perfect sense given the arguments Pell was making about the evidence.

Who will win this argument, if it’s pursued next week, is anyone’s guess, but what’s important right now are its practical consequences. The issue of whether to watch trial videos is a huge one for criminal appeal courts and the people who appear before them. This means that the question the High Court raised is not just about Pell’s case but potentially affects hundreds of others each year, and is clearly worthy of a national court’s time. For Pell, though, the issue is a mixed bag. The new question is one on which the High Court is quite likely to take his case, but the downside is that it shifts the focus from the jurors’ verdict to the process that preceded his unsuccessful first appeal. If the court in Canberra rules that the Melbourne judges shouldn’t have watched some or all of the videos, then the obvious remedy is to send Pell’s case back to Victoria to be heard before three new judges. In effect, Pell would be left back where he was in March last year, facing many more months in prison, especially if he loses a second time. Even the best outcome — a victory before the new bench — would be tarnished. It would mean that he was condemned by judges who did watch trial videos but exonerated by judges who didn’t.

That’s probably why Pell and prosecutor were in rare agreement when it came to the High Court’s second question: does watching the videos change how an appeal court should judge a jury’s verdict? No, both said, or at least not in this case.

The High Court’s letter forms part of a debate that has been unresolved since courts of criminal appeal were created over a century ago: how exactly do criminal appeal judges’ roles differ from those of jurors? A few years before Pell became archbishop of Melbourne, a majority of the High Court cobbled together its answer during a different child sexual abuse appeal. Four judges agreed that appeal judges, like jurors, must assess the trial evidence for themselves to see if it leaves them in doubt. But they also agreed that the judges must factor in the differences between themselves and jurors before deciding any appeal.

That compromise was broadly workable in 1994, when technology meant that there was always at least one crucial difference between jurors and appeal judges: jurors got to see the trial witnesses, appeal judges didn’t. But ease of video recording has caused that compromise to falter. While Pell was being tried (and his entire trial recorded), NSW’s appeal judges were arguing about whether watching the key videos from a trial affects the test for deciding appeals. They had little choice but to watch two videos in the case before them: one, where a child detailed particular sexual acts to police investigators, and a second, where the same child denied those same acts when he was cross-examined at the accused’s trial.

One judge said that the videos left him in doubt about the accused’s guilt, and also just as well placed as the jury to make that call. But the others (who were less troubled by what they saw) said that the jury’s guilty verdict should stand because the jury still had the advantage of experiencing the trial’s atmosphere and watching the accused’s face as events unfolded. The High Court’s second question to Pell and his prosecutor was effectively about which side of this dispute was right.

In their responses, Walker and Judd — unenthusiastically, it seems to me — worked through whether video has killed the barrister. Pell’s counsel said that trial videos narrow the usual gap between juror and judge, and suggested that as a further reason why appeal judges should refrain from watching if they can. Victoria’s DPP, for her part, thought it arguable that judges ought to watch whatever videos are available in order to better evaluate the evidence for themselves, unless — she archly hinted — the High Court rethinks the compromise it struck in 1994.

But both prisoner and prosecutor agreed on one thing: none of this mattered in Pell’s appeal. Each side approved of how Pell’s Victorian judges approached this part of their task. Whether watching the videos was right or wrong, they said, all three judges were careful not to overuse them, expressly avoiding placing too much significance on how the witnesses looked and sounded, at least compared with what they actually said. Walker and Judd also pointed out that each of the three acknowledged that Pell’s jurors had many advantages over his judges: the jurors were able to see the witnesses in sequence over weeks; with the notable exception of the complainant’s prerecorded testimony, they weren’t restricted to the “two-dimensional” view on the judges’ computers; and they had the benefit of talking with eleven others in the jury room, in contrast to the three Victorian judges’ apparently lonely contemplation of Pell’s guilt or innocence.

If neither party wants to argue the issues raised by the High Court, does that mean they won’t be discussed? No, that’s another myth about the national court, which has its own duty to inquire into the law being argued before it, and which has plenty of ways to convince litigants to shift their arguments. Just because the parties agree doesn’t mean that the court has to. The Canberra judges could decide that the videos really did skew the task of the Melbourne judges — for example, because of the majority’s choice to watch the choirboy’s video testimony “cold,” as the jury did, before reading the transcript of his words — and can send the case back to Victoria to be heard before three new judges. Alternatively, a bench of seven could decide for itself that the Australian test for unsafe verdicts ought to work very differently when videos are in play, and then tell the original three judges to take a second look.

Whether any of that actually happens is another matter. I can see why it might be tempting for the High Court to decide Pell’s appeal on a broad legal question rather than delve into the case’s complex facts. On the other hand, I can also see why the judges would hesitate to use this unique case as a chance to direct future appeal judges on how to do their jobs in more mundane ones. Whatever the national court’s inclinations, it has plenty of options on Wednesday: to tell the parties to focus on a particular issue, to give the parties a free hand, or to stop things suddenly with the words every suppliant dreads: “The Court is of the view that this is not a suitable vehicle for the grant of special leave.”

This plethora of options is one reason I’m not game (this time) to predict anything about next week’s hearing. Grant or refuse? Decide or refer? Facts or law? Process or substance? Safe or unsafe? We don’t even know yet whether Pell’s case will be heard before a bench of five (the usual number) or seven (for constitutional or other big cases, or if the court is thinking of overruling one of its own decisions). Even the Kiefel court’s most reliable feature — its extreme collegiality — isn’t what it used to be.

But the lack of predictability is what makes next week’s hearings especially interesting. While Pell’s first appeal was live-streamed, his second will be live-tweeted (from the High Court’s own “overflow” facilities, where phones are permitted). For those who can’t attend, transcripts will be published online each evening and video a few days later. But, as always, there’s nothing like being there.

Pell’s original trials were seen in full only by his jurors, the lawyers and judge Peter Kidd, with spectators and journos excluded from the most important parts and sworn to secrecy for the rest. I watched his first appeal in a cramped room and found it hard to take my eyes off Pell himself. Next week will be a very different experience, taking place in the nation’s most majestic, light-filled courtroom, but with Pell likely watching on video in his prison. Subject to travel advisories, I’ll be there to see his last stand in three dimensions. •

The post Pell’s last stand appeared first on Inside Story.

The “pursuit of justice” has presented the United States with intractable problems and budget blowouts for decades, and it’s true that this is a comprehensive and well-written analysis. Brendan O’Flaherty and Rajiv Sethi expose the malaise that bedevils the current American criminal justice system. But anyone hoping that this book is a silver bullet will be disappointed. The evidence is already out there in abundance and, as the authors point out, American policymakers have shown very little enthusiasm for the necessary change.

The sad reality is that the punitive edicts emerging continuously from the various state legislatures (and from a Supreme Court that turns away advocates for the abolition of the death penalty or a limit on the ready availability of firearms) ensure that current trends are not likely to reverse in the foreseeable future. Despite making a clarion call for reform, this book is unlikely to bring about “broad, deep and permanent” change for two reasons: the problems are entrenched in the system, and the authors offer very little in the way of alternatives. Its great value is to remind readers that we have the evidence to spark change if people are listening.

O’Flaherty and Sethi’s approach to their subject is, however, a little different from that of the usual “justice” writers (criminologists, psychologists, sociologists and political scientists). For a start, both of them are economists, and economics has the potential to make a fine contribution to debates about how limited funds are to be spent. Is it better, for example, to spend $90,000 per year keeping a prisoner behind bars or to invest the same amount in paying social workers to see that “at-risk” young people are teamed with mentors to prevent their sliding into crime?

Economists might be in a perfect position to make those sorts of judgements, but they are not always correct. In a famous recent instance, Steven D. Levitt and Stephen J. Dubner concluded that a great deal of violent crime in the United States had been prevented by the Supreme Court decision in Roe v Wade (1973), the case that opened the way for legalised abortion in that country. Their idea, outlined in their 2005 book, Freakonomics: A Rogue Economist Explores the Hidden Side of Everything, drew on the evidence of a considerable drop in violent crime around 1995 (a trend that continues to this day). Allowing women to terminate their pregnancies legally, they reasoned, had reduced the number of children who were either unwanted or could not be adequately cared for. This, in turn, led to fewer troubled young people on the streets who would later (in their late teens) turn to violent crime.

Levitt and Dubner’s dates do indeed stack up: the troubled children who would have been born in the years following Roe v Wade would all have been entering their late teens by the mid 1990s. Which is all well and good, except for the fact that violent crime also fell in dozens of comparable nations where neither abortion law nor policy had changed. (One could also note that any justice reform that encouraged abortions as a way of limiting future crime would not last a nanosecond in a policy forum.)

Although the book is marketed as focusing on stereotypes, that is not entirely true. The first of the book’s two parts does indeed show how so much of American criminal justice practice is framed by stereotypes. This is evident, the authors say, in how potential victims respond to threats, how witnesses remember things, how police officers use racial profiling, and how jurors, prosecutors and judges downplay or ignore the presumption of innocence. Moreover, the media play a crucial role by failing to dispel common myths about crime. For example, statistics tell us that most African-American victims die at the hands of other African Americans, while the killers of whites are typically white themselves. This evidence contradicts the popular belief that white people are at constant risk of being harmed by black people.

But the authors focus the bulk of their attention on the injustices of the US criminal justice system itself, including aggressive jury vetting, the over-representation of Latinos and people of colour in prison, the preponderance of gun crime, the underfunding of rehabilitation programs and practices, and the unhealthy politics of prosecutorial discretion. Here, their narrative is powerful and broad, drawing on solid statistical sources — though it is unfortunate that they don’t mention, let alone discuss, Todd Clear and Natasha Frost’s seminal work, The Punishment Imperative: The Rise and Failure of Mass Incarceration in America, in their discussion of the impossibly high rate of imprisonment.

The book’s treatment of lethal force by the police (pointing out that current practices neither save lives nor make police any safer) is exceptionally good, although its failure to mention the case of Justine Damond is odd indeed. Damond was the Australian woman shot dead by Minneapolis police officer Mohamed Noor in 2017 after she called 911 to report a possible rape in an alley behind her home. Noor was found guilty of third-degree murder and second-degree manslaughter and sentenced to more than twelve years in prison.

Decades of valuable criminological research show the path that needs to be taken by communities, by governments, and by private and not-for-profit organisations to create more secure communities and less fear of crime. We have a large and growing body of criminological literature, datasets and other statistical information that allow us to consider the best options for the delivery of a safe and secure country at a palatable price. These authors add to that literature.

This literature tells us that we can, with appropriately directed resources, turn broken lives around; we can divert young people from careers in crime; we can do our policing more legitimately and thus more effectively; we can train old and new police in “hot spot” and intelligence-led policing; we can assist young families to cope with the vicissitudes of life; and we can bring stability to dysfunctional families all in the name of crime control. But it can only be done if there is political will.

O’Flaherty and Sethi end with a chapter entitled “Hope.” It summarises anew the futility of relying on military-minded police and punitive sentences to solve the crime problem. But it makes no mention of restorative justice theory, or therapeutic models of justice delivery, or the policies of justice reinvestment. Passing reference to those ideas would have rounded out the discussion nicely.

Indeed, I would have preferred a stronger ending, one that built on the conclusion that it’s time to end many current US justice practices and policies — the death penalty, for example, which is still available in thirty-one states; and the election of judges and prosecutors, which persists in some jurisdictions despite the clear implications for political interference.

Shadows of Doubt is a good read for those seeking to locate the many holes in the arguments of the more conservative justice practitioners in the United States. These are the people who maintain that their country is meeting the standards espoused in the national pledge of allegiance: that if you are a victim, a suspect or a convicted person you will be treated “with liberty and justice.” The evidence clearly shows otherwise. •

The post In the frame appeared first on Inside Story.

Isaacs wrote those words when the nation’s top court confronted what was, until recently, the highest-profile criminal case in Victoria’s history. From the moment the “outraged” body of twelve-year-old Alma Tirtschke, the dux of Hawthorn West Primary School, was found in a city alley on the final day of 1921, Melbourne and its media were transfixed. They remained so when police arrested wine bar owner Colin Ross for her murder two weeks later, and through his six-day trial and his appeal before Victoria’s Supreme Court. Now it was the High Court’s turn in the spotlight.

What role should a national court play in the nation’s criminal cases? That question has been debated for much of the High Court’s history. When the Australian Constitution’s “founding fathers” devised the nation’s new “federal Supreme Court,” they were inspired by its United States counterpart but decided to give the Australian court an extra role. On its creation in 1903, the High Court had the power to choose — “grant special leave” — to hear appeals from every court in the country, a role it initially shared with the Privy Council in London. At the time, most criminal convictions couldn’t be appealed, but that changed just four years later when England, reeling from a spate of miscarriages of justice, created a court of criminal appeal and the rest of the Empire followed suit.

These developments left the top courts in Britain and Australia in a quandary, each of them loathe to provide a second level of appeal to every convicted criminal in the Empire or nation. In 1914, the Privy Council decided to intervene only in criminal cases that would create an “evil precedent in future.” The High Court promptly made the same decision (over Isaacs’s furious dissent), but abandoned that stance as unworkable just six months later. The judges then declared that their “Court has an unfettered discretion to grant or refuse special leave in every case.”

Seven years later, Colin Ross understandably opted to bring his last-chance appeal to the High Court in Darlinghurst rather than the Privy Council in Westminster. His barrister flew to Sydney armed with a fistful of reasons for the national court to grant special leave, including fresh evidence, procedural errors at the trial, and unchallenged evidence of an alibi at the time of the murder. But he found a national court acutely aware of how “special” his case was.

“Our practice as to allowing appeals in criminal cases is more liberal to the prisoner than that adopted by the Privy Council,” allowed the majority, “but we must never lose sight of the fact that, in regulating our practice, the interests of the community, as well as those of the prisoner, have to be considered.” The majority judges’ particular concern was that allowing criminal defendants a second appeal “might amount to practical obstruction of the ordered administration of law.” They didn’t say what they meant, but everyone knew.

Three weeks later, Ross promised his family that “the day will come when my innocence will be proved.” Hours later, he became the first High Court litigant to hang, dying in agony following a botched execution. Forty-four years later, the national court similarly refused special leave to the last such litigant, Ronald Ryan, who told his hangman, “God bless you, please make it quick.”

It is always startling to see how justice used to be done. Colin Ross’s journey through the criminal justice system — arrest, committal, trial, appeal, denial of special leave, and execution — took just three months from go to woe. By contrast, it has now been nearly thirty months since George Pell was charged and eleven since his conviction for child sexual offences. Pell received neither death nor life in prison, but rather a six-year sentence. A loss in the High Court will still leave him free on parole in around three years (but also officially branded a sex offender for life and beyond).

On the other hand, Ross’s application for special leave received a three-day hearing before five judges of the High Court, who issued a twenty-two-page judgement the following Monday, including a concurrence and a lengthy dissent. By contrast, had Pell lost last Wednesday, his case would have ended with neither a hearing before the national court nor an explanation from the mere two judges who would have considered his case. Even now, his application for special leave could still be dismissed without any explanation, albeit after a hearing before at least five judges.

These changes in the national court are relatively recent. For its first nine decades, the High Court routinely gave convicted suppliants the treatment they gave Ross, with five or more judges hearing full arguments on whether they should grant special leave. Procedurally at least, there was no difference between the famous — Ronald Ryan (in 1966), Lindy Chamberlain (in 1983) and Roger Rogerson (in 1992) among them, all of whom received five-judge hearings of their applications for leave — and the less famous.

But such hearings are now a relic. A few years after Australia’s parliaments ended petitions to the Privy Council, the High Court started listing all applications for leave before small panels of judges: three at first and then just two. The hearings were speedy affairs, with a dozen or so scheduled for a single day, twenty minutes given to each lawyer to make their case and no reasons for the judges’ decision. More recently, the High Court announced it wouldn’t even do that much for most cases, instead simply publishing bimonthly lists of applications with the words “granted” or (almost always) “dismissed” next to them.

When news emerged last Monday that George Pell’s case was to be included in that week’s list, it looked like his case could end not with a bang but with a whimper. (Word of his listing somehow leaked from the court thirty-six hours ahead of its usual release.) Most cases dealt with in this way lose, but that’s because most of them are hopeless. The former archbishop’s sex-offending convictions were being dealt with in the same way as some guy trying to pay his taxes with a “promissory note,” or umpteen immigration appeals.

I was making no predictions this time. The High Court’s special leave decisions operate as a black box, with listings, selections of judges and the ultimate decision never explained. The odds are always against a grant of leave, especially when the case isn’t given a public hearing. On the other hand, special leave has been granted “on the papers” in seven cases so far this year.

So, no one should have been surprised by either a grant of leave or a refusal last Wednesday. Instead, the big surprise was that the national court did neither.

“In this application,” said Michelle Gordon, the High Court’s fifty-second justice, speaking also on behalf of its fifty-third, “Justice Edelman and I order that the application for special leave to appeal be referred to a Full Court of this Court for argument as on an appeal.” The waiting media could tell that Pell’s case wasn’t over yet, but were understandably baffled. What just happened?

The answer is that the High Court — or perhaps just its two most junior judges — had opted to deal with George Pell’s case the way it used to deal with most criminal appeals until the early 1990s. Pell would make his pitch for the national court to take his case before at least five justices, rather than the usual two, just as Ross, Ryan, Chamberlain, Rogerson and a thousand or so other convicted criminals once had.

Did Pell get singular treatment? No and yes. No, because this is at least the thirtieth time the High Court has dealt with a special leave application in this way in the past decade, including more than a dozen criminal appeals. Yes, because it is the first time it has done so in five years, since around the time the national court stopped holding hearings for most applications.

What will happen now? Most likely, Pell’s case will proceed like any case for which leave has been granted. The parties will put in full written arguments. (The court’s website already has a timetable up: we’ll read the arguments from Pell’s lawyer, Bret Walker, early in January and then the responses from Victoria’s top prosecutor, Kerri Judd, early in February, suggesting a hearing in March or maybe April.) The judges will likely “reserve” their decision after a day’s arguments and Pell will learn his fate around June.

At least, that’s how around three-quarters of referrals to five-judge panels turn out. The court sometimes does things this way to prod a proceeding along at one party’s request. (There’s been no word that Pell or his prosecutor asked.) And sometimes the judges want their suppliant to refine the grounds of appeal. (The court keeps any such letters to the parties secret from the public.)

Less often, the national court just wants to retain the option of staying with the case as long as it wants but ending its involvement at will. “The trapdoor can open at any moment,” Justice Dyson Heydon once told two tax evaders in Pell’s position nine years ago. It stayed shut in their case, but has opened in half a dozen others this decade. Pell’s case may end similarly next March, with the judges suddenly returning from lunch or a short break and ending the hearing without explanation.

Or perhaps the High Court had a reason specific to Pell. There’s a precedent of sorts in a recent high-profile case. In 2015, Queensland prosecutors’ application for leave to argue that Gerard Baden-Clay’s conviction for murdering his wife Allison should be restored was likewise dealt with “on the papers,” meaning that the controversial case had just one live hearing in Australia’s top court. The five judges sat in Brisbane and needed to provide an overflow room with a live feed to accommodate all of the spectators. The circuses that accompanied Pell’s Victorian hearings make it easy to see why the national court would avoid holding two hearings in his case.

The difference in Baden-Clay’s case, though, was that the High Court opted to grant special leave on the papers, rather than defer the prosecutor’s application to the next hearing. Why didn’t the court do the same with Pell? We will never know, but I wonder if the court’s hesitation this time was about whether its current processes could withstand the public scrutiny that is applied to all things Pell. How can such a controversial case be judged (and, especially, ended) by just two judges out of a bench of seven, with no reasons given? That question — which I think ought to be asked about every criminal appeal that reaches the national court — would have been front and centre of any coverage of Pell’s application, but for the High Court’s surprise decision on Wednesday.

The High Court has been involved in many divisive cases before, but they are usually constitutional cases on which all seven judges sit. It has also been involved in many high-profile criminal cases, but, since the national court stopped giving convicted suppliants hearings before at least five judges, none so divisive as Pell’s. It is the only comparable national court that currently resolves applications for leave to appeal in criminal cases with just two judges. The US Supreme Court takes cases whenever any four of its nine judges want to. New Zealand’s top court assigns panels of three of its five judges to hear every application and provides brief but specific reasons for every refusal. The Supreme Courts of the United Kingdom and Canada likewise assign panels of three to each application, and also provide an automatic right of appeal where, respectively, a lower court certifies a case of worthy of further consideration or at least one judge dissented from the lower court’s ruling.

It’s obviously a delicate matter to hint that any court has given different treatment to a particular high-profile case. The High Court and any lawyer who appears before it would be very vocal in denying such a possibility. But I see such a suggestion as less about the public sensitivities surrounding Pell and more about the institutional sensitivities of any national court that is forced to make sharply contested decisions where emotions run high. Indeed, much the same could be (and has been) said of recent decisions by Britain’s top court and coming ones in the United States.

We cannot (and should not) expect a court’s judges to wholly ignore how, in a high-profile case, they — and their processes — will also be judged. In the case of the four judges who denied special leave to Colin Ross, the final judgement came fifty years after the last of them died. In 2007, Victoria’s Supreme Court — relying on fresh evidence — recommended Ross’s posthumous pardoning for the murder of Alma Tirtschke. •

The post Pell the suppliant appeared first on Inside Story.

The government’s Identity-matching Services Bill 2019 is currently being reviewed by parliament’s Joint Committee on Intelligence and Security. If passed in its present form, it will empower the home affairs department to create a national database of people’s names, photographs and other identifying information, and to develop a facial recognition system that can match images against the database. The department will also establish a “hub” so that governments across Australia, and in some cases private entities, can exchange “identity-matching services.”

So far, Australian governments haven’t been terribly open about their use of facial recognition. When Queensland’s police minister, Mark Ryan, was asked how the state’s police were using the technology, he merely said that “there is some capability that the police may or may not have, which I can’t get into for obvious security reasons.”

In this respect, the national legislation seems like a step forward. It places facial recognition technology on a statutory footing, unlike in other countries such as Britain. But its vague language makes it difficult to know exactly how the new system will work. To take one example, the government claims that the system will identify people only on a “one-to-many” basis: where a single individual’s image is compared against a large database to find a match. But nothing in the bill rules out more radical, “many-to-many” matching, where large groups of people are identified from CCTV footage in real time. The government assures us that this capability is not supported by its current systems and is prohibited by the intergovernmental agreement underpinning the bill. But these constraints are contingent and legally unenforceable.

The bill also gives home affairs minister Peter Dutton broad discretion to expand the system’s scope. He can define new categories of identifying information to be shared and matched over the system, and can even create wholly new “identity-matching services” for use by government and private entities under certain conditions. This uncertainty about the legislation’s scope is obviously dangerous. It also hampers democratic debate. It is difficult to determine whether the new system is justified without a clear understanding of how it will operate.

Facial recognition technology is vulnerable to “function creep” and abuse. The Queensland government set up a facial recognition system during the 2018 Commonwealth Games to identify “sixteen high-priority targets.” But when none of these targets had been identified by halfway through the Games, the government “opened up” the system to general policing. It is particularly important that other parts of government, such as parliament and independent integrity bodies like the ombudsman, are able to check the executive’s use of this technology. Ordinary people may never realise they have been identified by a facial recognition system, and will thus be unable to ensure that governments respect legal limits.

The bill lacks robust safeguards against these threats. It requires that the hub only be used to identify unknown individuals “in the course of identity or community protection activities,” but doesn’t require governments to get a warrant to this effect, or even to have any reasonable belief that the relevant person has committed an offence. It obliges the minister to report annually to parliament on the system’s operation, but not on crucial matters like security breaches or misuse. Finally, as the Law Council of Australia has noted, the Australian Information and Privacy Commissioner is made responsible for auditing the system but has been given no additional funding to do so.

The government’s embrace of facial recognition is troubling for several other reasons. First, the very point of facial recognition technology is to identify a specific person at a particular place and time. It necessarily interferes with people’s ability to control what others know about them.

Imagine if the government proposed to replace CCTV cameras with physical checkpoints, at which police officers demanded to fingerprint passers-by. Such a shocking incursion on privacy wouldn’t withstand a moment’s scrutiny. Yet facial recognition is even more potent in this regard than fingerprints and other traditional biometrics. Because it is almost impossible to avoid exposing your face to cameras when you move around in public, facial recognition can be used to identify almost anyone. And it can be done from afar, without a person’s knowledge or cooperation.

Second, if the government records and aggregates the results of facial recognition, it can quickly paint a very detailed picture of a person’s life. It might learn very little from identifying a person in a busy street on an isolated occasion, but it can learn much more if it spots a person in the same place every month, around the time when a local environmental group meets nearby.

Third, facial recognition technology makes mistakes. A system trialled in London matched forty-two people on the street to police watchlists, but only eight of the matches were correct — an error rate of 81 per cent. Facial recognition may thus cause government to interfere in a person’s affairs or deny him or her a benefit without justification.

That risk is magnified by the phenomenon of automation bias: the tendency for people to be overly reliant on and uncritical of automated systems. And it may also be unfairly distributed: facial recognition systems tend to be bad at identifying women and people of colour, thus exposing those groups to a higher risk of unjust intrusion.

Fourth, facial recognition technology relies on large databases of personal information that are vulnerable to security breaches or misuse. And, fifth, facial recognition may use personal information for a purpose other than that for which it was originally collected. Our new system is a case in point. It will rely principally on driver’s licence information collected from the states and territories, which people may never have suspected would be used in this way.

These ethical costs can be understood in several different ways. Imagine that a person realises the government has identified them attending a protest. They may have a subjective feeling of violation or disrespect — what legal scholar Daniel Solove calls a “dignitary harm.” But this identification also has a harmful structural effect: it renders the person vulnerable to interference in their affairs. Could the government possibly use this information to deny them benefits, for example? And the identification might have other undesirable effects, such as deterring the person from attending protests in future. That’s bad for the individual, because it intrudes on their autonomy, and bad for society at large, because it discourages the exercise of democratic freedoms of value to us all.

One thing is clear: the ethical costs of the new system will depend significantly on its precise operation, which at this point remains uncertain.

The final question about the new system concerns its ostensible benefits. The government assures us that it is “a critical component of efforts to protect Australians from identity crime and improve the delivery of government services.” But as researchers at the University of New South Wales have argued, it isn’t clear that the new system is necessary, or even particularly well adapted, to achieve those benefits. How will the new system prevent someone from using another’s bank card information to withdraw money, for example, or to buy something online, one of the most common forms of identity crime? To enable informed debate on these issues, the home affairs department should release the findings of its recent independent review of Australia’s framework for combating identity crime.

Ultimately, we must decide as a community whether the costs and benefits of the government’s proposal are reasonably balanced. We might conclude that the government should be able to use facial recognition in some ways but not in others. We might be happy for the government to match those suspected of serious crimes against a database of convicted offenders, but not to match large groups of people, in real time, against a dragnet of almost every adult in Australia. The government still has important questions to answer before we can make those difficult ethical judgements. •

The post Face to face with the future appeared first on Inside Story.

Under questioning by two male police officers, Marie’s childlike face registers mounting confusion. She’s vague, and her recounting of what detail she does remember is inconsistent. Given that no forensic evidence exists to support her story, the officers respond as they would to any unreliable witness, turning the interview into something more like a cross-examination.

Here we have television working close to documentary. The script draws on transcripts, reports and recollections to reconstruct key scenes like this. But crucial elements are added, allowing the viewer to see things that those involved in the original exchanges could not. For the police, Marie was an easy witness to misread, but Dever expresses emotional and psychological nuances that the camera, working in close-up, never misses.

Television viewers, as secondary witnesses, are left in no doubt about what is really going on here, or its human costs. Docudrama works with this illusion of greater insight to heighten the emotional landscape and load the moral perspective. Overplayed, it can easily cheapen the drama and distort the ethical issues. In this case the temptation must have been acute.

Marie’s story, reconstructed in a meticulous chronological account for ProPublica in 2015, is that of someone already exposed to the rougher side of life. Abandoned by her parents, she suffered various forms of abuse in childhood and then spent her teenage years being moved from one foster home to the next. At the time of the rape, just past her eighteenth birthday, she was enjoying her first real chance of independent life in community-run accommodation.

Her most recent foster-mother, Judith — played by Elizabeth Marvel as dour but good-hearted — attempts to provide some kind of support in the crisis. Given Marie’s perverse behaviour and inability to provide a clear account, though, Judith has her own doubts about what has actually happened, and decides to share them with the police. The upshot is that Marie is browbeaten into retracting and then charged with false reporting, with the prospect of a one-year jail sentence.

This is outrageous, of course — “unbelievable” in another sense — but the challenge in the dramatisation is to control the sense of outrage rather than to push it. Dever’s performance brings out the grit as well as the pathos in her character. Driven to the brink, she rides her bike onto a bridge at night, intending to throw herself into the river. She climbs the railing and hangs there for a moment, staring at the raging waters below, then climbs back. Next day, she shows up for duty as usual at the dreadful megastore where she’s employed.

As a shambolic but well-intentioned attorney (John Hartmann) works to get her off the legal charges on a plea bargain — a good behaviour bond, a formal admission of lying and the payment of $500 court costs — it is the procedural rather than the human aspects of Marie’s treatment that are shown to be brutal. Adverse publicity means she is moved from the shop floor to the storerooms at her workplace and, deemed to have breached the conditions of the housing community, she is evicted.

If that were the end of the story, it would hardly make for satisfying drama. But this is one of those cases that takes a turn irresistible to a television producer. Some 2000 kilometres away in the town of Golden, Colorado, another rape with the same characteristics occurs, and this time is met with a contrasting police response.

A female detective answers the call. The victim is a woman of twenty-six, a very different physical type to Marie, and remarkably self-possessed. She remembers every detail of the attack, including the fact that the intruder had a large birthmark on his calf. He took photos, she says, and gave orders in a way that suggested he was carrying out a practised routine. Again, searches reveal almost no forensic traces, but this time there is no question of putting pressure on the victim. Rather, the “clean” crime scene suggests they are looking for someone who knew enough about forensics to make sure there was nothing to find. He’d done this before, and would do it again.

In reality, all this didn’t happen until two years after Marie’s experiences, but the series intercuts the later train of events with the scenes of Marie’s ordeal, creating interconnecting strands of tension and some very effective suspense.

Detective Karen Duvall follows a lead to a Colorado case currently under investigation and contacts the detective in charge of that, another canny female investigator. She and Grace Rasmussen (the series uses pseudonyms) have everything it takes to make a successful television crime-fighting duo: they operate in contrasting styles, sparring and sniping but ultimately adhering to the protocols required to get the job done.

Rasmussen (Toni Collette) is brusque and charmless, but as a seasoned operator she has no problems sharing the investigation and knows the system well enough to get support from further up the line. Soon, an FBI team is assigned to help with the search. Human communications are Duvall’s forte, and Merritt Wever plays her as a restrained observer, always listening; when she speaks, the low tone of her voice cuts through surrounding stress, raising the level of concentration.

After the culprit is apprehended, a cache of evidence is found, including graphic photographic records of each of his attacks. Marie is identified as one of the victims, and from here events begin to turn in her favour.

It’s a great storyline, as any scriptwriting team would acknowledge. The main characters are sharply defined, each with her own strong narrative arc. But, though good stories are fascinating, moving and instructive, trauma itself is none of those things. The risk in dramatising this kind of subject matter is that it may delude us into thinking we do understand or, worse, that we have somehow accompanied the victims on a satisfying imaginative journey.

Credit is due to the production team on this series for steering clear of obvious forms of moral point-scoring and emotional gratification. The story is handled throughout with tact and the kind of finely tuned attention Duvall and Rasmussen show towards those whose lives are damaged by the crimes. •

The post Suspension of disbelief appeared first on Inside Story.

It was the end of a horror four-year stretch during which the Country Liberal Party government had introduced mandatory sentencing, “paperless” arrests, and “spit hoods” and restraint chairs in youth detention centres. Promising progressive, evidence-based reform, Labor won the election with a landslide. The Four Corners–inspired royal commission reported a little over a year later, in November 2017, and in March the following year chief minister Michael Gunner’s government set limits on when and how force could be used against teenagers in youth detention centres.

But the reform effort slowed — and occasionally reversed — during the year that followed. In March this year, the government retrospectively repealed its “use of force” restrictions, suggesting that it was increasingly influenced by the Don Dale staff and their unions. But it was the way the repeal bill was introduced and rushed through parliament that indicated Gunner and his colleagues were no longer listening to reformers.

In March 2017, to mark a new era of accountability and consultation, the government had set up the Legislative Amendment Advisory Committee, or LAAC. The LAAC brought together key government departments, non-government agencies and Aboriginal organisations to help develop the legislation needed to implement the royal commission’s recommendations. In August that year, following public consultation, the government delivered on another major election promise: a new system of “policy scrutiny” committees to mimic the work of upper house committees in other parliaments.

By the time they reached a parliamentary vote, though, the March 2019 amendments to the Youth Justice Act had bypassed both the LAAC and the scrutiny committee processes. Major players like the North Australian Aboriginal Justice Agency, or NAAJA, which had refrained from publicly criticising the government on the promise of access and influence, hadn’t been consulted at all about the bill.

The following month, the Criminal Lawyers Association of the NT withdrew from the LAAC altogether, and NAAJA and the NT Legal Aid Commission followed soon after. What happened next is the subject of wildly divergent accounts. The Legal Aid Commission and others say the government suspended the LAAC “indefinitely” after some of its members voiced their disapproval of how the March amendments had been pushed through. A spokesperson for Territory Families, the government department handling the changes, denies that’s the case, and says that the LAAC continues to meet monthly. If so, those meetings are likely to include only its government members: the departments of the attorney-general and justice, the chief minister, Territory Families and police.

Most of the LAAC’s former participants — including NAAJA, the Legal Aid Commission, the Criminal Lawyers Association, Aboriginal Peak Organisations (NT), the Aboriginal Medical Services Alliance NT, the Danila Dilba Health Service, the Human Rights Law Centre, Jesuit Social Services, the Law Society NT, and the NT Council of Social Service — have combined with others, including the Northern Land Council, to form a new youth justice coalition. Its role, according to Criminal Lawyers Association president Marty Aust, will be “collective advocacy and strategic engagement” together with broader community consultation.

Even before the LAAC’s apparent suspension, non-government organisations had been complaining about its ineffectiveness. “Police would attend [and] agree with proposed positions,” says one senior representative of a former LAAC member, “and then when submissions were prepared for cabinet they would adopt a completely different position.” Members still receive invitations to LAAC meetings, says another representative, “but it’s clear from the draft agenda[s] that these are more ‘information sharing’ forums rather than any meaningful discussion or capacity to influence or shape the legislation reform agenda.”

As well as the retrospective “use of force” changes in March, armed police have returned to Territory high schools during the past year, police have used tear gas against teenagers at the Don Dale Centre, and the Territory Families minister, Dale Wakefield, has announced that Don Dale’s replacement will be built practically next door to the existing adult prison at Holtze, outside Palmerston.

None of these developments is consistent with the royal commission’s recommendations. Three years into the Gunner government’s first term, the persistence of mandatory sentencing laws, “paperless” arrest powers, tear gas in youth detention centres, and “swift justice” changes to court procedures suggest that the Country Liberal Party’s hardline legacy is likely to prove much more enduring than the short-lived reforms of Michael Gunner’s Labor Party.

In opposition back in 2016, the Labor Party advanced what it called Six Asks to Make Justice Work for Territorians. In government, it claims, with some justification, that it has improved its youth diversion processes, reduced the number of children in detention, and delivered a “comprehensive plan to deal with alcohol.” (Whether that plan is any good is another question.) So that’s a tick for Asks #4 and #6.

The government has also created dedicated Youth Outreach and Engagement Officers to help young people engage with services in the community, and so argues that Ask #3, “rehabilitation and reintegration,” should also get a tick. (In my experience as a lawyer in Katherine, these officers are too few in number, too under-resourced and too unsure of their roles to be particularly effective.)

Ask #1 was an Aboriginal Justice Agreement, or AJA, a kind of contract or memorandum of understanding that would guide policy and practice in all matters of justice affecting Aboriginal people. All other states and territories have them; it speaks volumes about the Territory’s approach to race relations that it doesn’t, despite its relatively large Aboriginal population and despite the fact that non-Indigenous people are in a tiny minority in its prisons and youth detention centres. But the government does have an AJA advisory committee, chaired by NAAJA, and despite some grumblings about its effectiveness the government is entitled to mark Ask #1 as a work in progress.

The hope is that specialist and therapeutic courts (like the Koori Courts and the Drug Court in Victoria) will flow from the AJA once it’s formalised, though there haven’t been many noises about these since the election. Aboriginal sentencing courts exist in most other jurisdictions; in the Northern Territory, defendants are lucky if they get an interpreter who can translate details of a sentence that often involves complicated combinations of backdated prison time, a dozen or more conditions and a lengthy operational period, a breach of which will trigger a new combination of prison and conditional supervision. Ask #2? Don’t hold your breath.

And what about the big one, Ask #5, “Abolish mandatory sentencing”? Not a chance, it seems. Mandatory sentencing has had the predicted effect since it was introduced in 2013 — it has inflated the Aboriginal prison population without doing anything to curb violent crime. When the parliamentary Labor Party’s only lawyer, Jeff Collins, a former president of the Law Society, was sacked from caucus in December last year, he said it had a lot to do with the fact that he kept trying to talk about mandatory sentencing. Chief minister Gunner simply said that Collins and two colleagues “were dismissed for breaking the caucus values and standards signed up to at the beginning of our term.”

Perhaps the forum with the greatest chance of convincing Gunner to abolish mandatory sentencing is the AJA committee chaired by David Woodroffe, principal lawyer at NAAJA. Woodroffe’s criticisms of the Gunner government are rare, but he did renew a very public attack on mandatory sentencing at the National Indigenous Legal Conference in August.

In hindsight, the fact that Labor’s Asks were not articulated as “promises” seems clever, if disingenuous. “Paperless” arrests are still being made for minor infringement-notice offences, and defence lawyers are still being required to give away much more of their clients’ case in courts than they would like, thanks to the continuation of former attorney-general John Elferink’s “swift justice” amendments in 2015.

Good reform needs the stars to align. It needs champions inside caucus and cabinet, but they don’t exist — especially since Collins’s sacking. It’s not difficult to imagine that he could have played a similar role in the Gunner government to the one Rob Hulls played as attorney-general in the governments of Steve Bracks and John Brumby in Victoria; as things stand, Gunner’s attorney-general is a former PE teacher. Good reform also depends on a capacity to execute and implement reform, but the entire Territory executive is marked by its youth and inexperience. And good reform needs a strong, vocal civil sector prepared to intensify public pressure on the government, mould public conversations and call governments out for their failures and regressions.

If mandatory sentencing is to go, perhaps via the Aboriginal Justice Agreement, it won’t be until Labor is returned in 2020. Meanwhile, the party has learned that its internal stakeholders — the police force and its association; and youth justice officers, corrections staff and their unions — can be much more persuasive than the legal and Aboriginal organisations that have, until now, prioritised maintaining relations with the government.

For the government, the era of the royal commission is over. A Territory Families representative says “the bulk of legislative amendments following the royal commission have been produced and tabled in parliament.” In reality, there is plenty left to do, not the least of which is to raise the minimum age of criminal responsibility from the current ten. The rare window forced open by the commission has closed; a golden opportunity to make radical, evidence-based reforms in the interests of offenders, victims and all Territorians has been missed.

Buoyed by a public whipped into a frenzy by the tabloid media and Facebook echo chambers, the Country Liberal Party opposition and its high-profile Warlpiri candidate Jacinta Nampijinpa Price will campaign loudly over the next year for tougher penalties and longer sentences, especially for young offenders. Keenly aware of the electoral challenge, the Gunner government is unlikely to take much advice from the non-government organisations and their new youth justice coalition. These organisations are caught in a bind: they fear that criticising Labor publicly will make a Country Liberal Party victory — and the rollback of reforms inspired by a royal commission that the CLP’s John Elferink dismissed as a beat-up — all the more likely. •

The post Three years later, the Territory’s post–Don Dale reforms are faltering appeared first on Inside Story.

Last week’s announcement by Victoria’s chief justice, Anne Ferguson, that George Pell had lost his appeal against his conviction for child sexual abuse was accompanied by her observation that “it is fair to say that his case has divided the community.” She was probably referring to the very public divide between those who believe that Pell — like so many other priests before and since — is a child sex abuser and those who believe that the former archbishop is an innocent victim of lies and injustice. But there is a different, less discussed community division: between those who are sure either way about Pell and those who aren’t. It’s the latter schism that split Victoria’s Court of Appeal on Wednesday.

In his dissenting judgement, Justice Mark Weinberg writes that “there is, to my mind, a ‘significant possibility’ that [Pell] may not have committed these offences.” This is the eightieth time he has ruled on whether a jury’s verdict was unsafe — and the sixteenth verdict he has voted to overturn in a decade — but the first time even one judge has disagreed with his call. On Wednesday, the state’s two most senior judges did. After discussing the difference between judges and jurors, chief justice Ferguson and Court of Appeal president Chris Maxwell state, in parenthesis: “We do not ‘experience a doubt’ about the truth of A’s [Pell’s accuser’s] account or the Cardinal’s guilt.”

I have my doubts about Flynn’s sermon. Being in doubt is a good deal lonelier than being certain. People who are sure that Pell is either monster or martyr know exactly how to react to each development in his case. But those in doubt are left adrift. Is it right to be in doubt on such matters? Why, as Weinberg openly asks, don’t others share that uncertainty? Most of all, there’s the question Flynn posed, with its many possible answers, none satisfactory.

Aloysius: What happened in the rectory?

Flynn: Happened? Nothing happened. I had a talk with the boy.

Aloysius: What about?

Flynn: It was a private matter.

Aloysius: He’s twelve years old. What could be private?

Flynn: I’ll say it again, Sister. I object to your tone.

Aloysius: This is not about my tone or your tone, Father Flynn. It’s about arriving at the truth.

Flynn: Of what?

Aloysius: You know what I’m talking about. Don’t you? You’re controlling the expression on your face right now.

On learning his fate, “Pell slumped into his chair, looking frail. He appeared to grab onto the dock for support.” At least, that’s what Benjamin Ansell saw. Eliza Rugg saw his head bowed, “destroyed,” his “poker face gone.” But, according to David Marr, “Pell displayed once more his Olympian detachment. Don’t believe reports that he flinched. His lips pursed a little as he stared at the judges. That’s all.” These three were in the same room looking at the same man at the same time.

The 325 pages of the Court of Appeal’s two judgements are replete with moments like that. “Throughout his evidence,” the majority writes of the man who says Pell sexually abused him and another boy in 1996, “A came across as someone who was telling the truth. He did not seek to embellish his evidence or tailor it in a manner favourable to the prosecution.” Not so, according to Weinberg. “On occasion, he seemed almost to ‘clutch at straws’ in an attempt to minimise, or overcome, the obvious inconsistencies between what he had said on earlier occasions, and what the objective evidence clearly showed.” The judges watched the same video of Pell’s accuser, the very one both juries saw, but it divided them nearly every time.

Consider one of Weinberg’s “obvious inconsistencies.” When he first spoke to the police in 2015, the thirty-two-year-old complainant didn’t say where he and the other boy were when they “nicked off” from the choir ahead of their abuse (and the police seemingly never thought to ask, even during a walk-through of St Patrick’s). At Pell’s committal in 2018, the complainant told prosecutor Mark Gibson that his “first specific memory” was being in the sacristy after “poking around in the corridors.” But, at that same hearing, he gave Pell’s barrister, Robert Richter, a detailed account. He and the other boy left when the choir was in a “procession” outside the church, entered the building through a south side entrance and went through some double doors before stumbling across the sacristy, which he’d never seen before. “That is understandable and consistent with human experience,” write the chief justice and the president.

Likewise for what the majority labels “undisputed facts” that “the jury were entitled to view” as “independent confirmation of A’s account,” specifically the man’s largely accurate description of the priests’ sacristy (which Pell was using at the time because his personal sacristy was being renovated). Weinberg saw no independent confirmation of anything, just some conveniently selective memory:

Mr Richter: You were taken, were you not, on a tour of the Cathedral when you joined the choir?

Complainant: I would have, yes.

Mr Richter: And you were shown the sacristies?

Complainant: I have no recollection of that, no.

Mr Richter: Do you dispute it?

Complainant: Um, no

But Ferguson and Maxwell think that “the jury were entitled, in our view, to discount” this exchange.

The different takes extend to what the lawyers told the three judges this year as they prepared for the appeal. The majority states that “the defence’s primary submission was that we should not watch any of the evidence” in the videos of Pell’s second trial. But Weinberg writes that Pell’s lawyers “initially objected” only to the court’s “desire to view the recording of the complainant’s evidence, as well as the recordings of several other key witnesses,” insisting that the judges watch a dozen more witnesses.

The three did end up spending “days” watching footage nominated by both sides, while expressing mixed views about doing so. Majority and minority cite, respectively, a High Court ruling and empirical evidence warning against reading much into how witnesses look or act in a courtroom. But the three also fret that — with the notable exception of the complainant’s testimony — Pell’s jury got to see the same witnesses in three dimensions, “collectively” and in an “unbroken sequence.” The latter differences seem to especially concern Ferguson and Maxwell. Noting that the judges’ own viewings were “for the most part, done individually,” they opted to mimic the jury’s experience when it came to Pell’s accuser. Unlike Weinberg, they seemingly watched his testimony cold (with a later reading of transcript “reinforcing the impression we had gained from watching these recordings”) and twice, as Pell’s jurors did, before and while they deliberated.

The viewings didn’t unite them. The prosecution’s appeal barrister, Chris Boyce, urged the judges to watch the complainant’s reaction after Richter asked him why he never spoke with the other boy about their abuse. Wednesday’s judgements reveal his response: “We couldn’t fathom what had happened to us.” On the majority’s computer, these words had a “ring of truth” and showed a “complete absence of any indication of contrivance in the emotion which A conveyed.” On his, Weinberg saw only that Richter’s question “seemed to cause the complainant a good deal of distress,” but that — possibly due to restrictions on cross-examination, both social and legal — its cause “was never made precisely clear.”

Aloysius: There was alcohol on his breath. (He turns.) When he finished meeting with you. (He comes back and sits down. He rubs his eyes.)

Flynn: Alcohol.

James [another nun]: I did smell it on his breath.

Aloysius: Well?

Flynn: Can’t you let this alone?

Aloysius: No.

Flynn: I see there’s no way out of this.

None of this is new. “I have in purely subjective terms a feeling of anxiety and discomfort,” declared NSW appeal court judge Brian Sully in 1993, “about the verdicts of guilty that were returned against the present appellant.” But he nevertheless upheld the jury’s finding that the defendant had sexually abused his thirteen-year-old daughter, explaining: “I am not persuaded that a reasonable jury, instructed as carefully and as fully as was done in the present case, must have been left with a reasonable doubt as to the guilt of the accused.” The judge’s two colleagues on the Court of Appeal didn’t share his concerns. A year later, though, the High Court ruled that Sully should have gone with his gut: “a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced.”

The High Court’s decision to give Australian appeal judges a powerful role in reviewing jury verdicts followed its experience in a high-profile case a decade earlier. In 1984, the national court split three judges to two when it upheld the unanimous jury verdict that convicted Lindy and Michael Chamberlain for the murder of their daughter Azaria at Uluru. Just two years later, a chance discovery of Azaria’s missing matinee jacket — which the prosecution had doubted she was wearing — led to a speedy revisiting of all the evidence in the case and the belated quashing of the convictions. The reasons of the majority judges in the High Court — who together headed the nation’s judiciary for the entire 1980s and 90s — are painful to read today. By contrast, Lionel Murphy’s fiery dissent, literally on the eve of the corruption scandal that would close out his career and life, is feted for its foresight.

Justice Weinberg’s dissent in Pell’s appeal draws heavily on this history, but especially the lesser-known judgement of William Deane. Deane is probably Australia’s favourite governor-general, remembered especially for his compassion during national tragedies. Once a commercial law barrister, his dissent in the Chamberlain case was nothing like Murphy’s. He — alone among the dozen judges to judge the Chamberlains — openly admitted that he found their case “a difficult one.” Like most Australians at the time, he thought that the defence theory that a dingo killed Azaria was “far-fetched,” and was troubled by the Chamberlains’ own behaviour the night she vanished. But, he wrote, the prosecution case — with its ultra-tight timelines, multiple witnesses to be discounted and insistence on an inexplicable, heinous, public, spontaneous crime against a child — “strikes me as being, in its own less spectacular way, almost as unlikely as is the story of the dingo.” Almost! And yet, he would have freed Lindy Chamberlain years before the national consensus shifted in her favour. I nominated Deane’s anguished judgement for a recent book on Great Australian Dissents.

Weinberg’s finding that there is a “significant possibility” that Pell is innocent is a direct quote from Deane’s own conclusion about the Chamberlains. And his dissent follows Deane’s route to doubting a jury’s verdict. “I cannot conclude that the complainant invented these allegations, at least in respect of the first incident, and do not do so,” he writes, noting that, “sadly, as we have come to appreciate, there is nothing wholly improbable about allegations of that kind being true.” However, “the devil is in the detail” — specifically “a substantial body of evidence” on the improbability, not impossibility, of Pell being in the sacristy unaccompanied  — that  “left open at least a ‘reasonable possibility’ that the complainant’s allegations fell short of the standard of proof required.”

Weinberg devotes the last two pages of his reasons to setting out Deane’s position on the dangers of treating jury verdicts as “unchallengeable,” a stance, Deane wrote, that could “sap and undermine the institution of trial by jury” and risk making jurors “a potential instrument of entrenched injustice.” Deane’s warning was endorsed by New Zealand’s top court a decade ago, but Weinberg’s dissent is the first time it has been repeated by an Australian judge.

“I find myself in a position quite similar to that which confronted Deane,” Weinberg writes, and he can’t help pointing out that Deane’s dissent “was ultimately, though for other reasons, proved correct.” In 1984, no one would have predicted that the Chamberlains would be exonerated in a few short years. However, continuing developments in forensics and the slim chance that Azaria’s body might be discovered meant that everyone, including the High Court’s judges, knew that one day the case’s mysteries might be solved. There is no prospect of that happening in Pell’s case. The only things we can ever know about what happened at St Patrick’s in 1996 are inside a few people’s heads.

James: Take your time, Father. Would you like some more tea?

Flynn: You should have left it alone.

Aloysius: Not possible.

Flynn: Donald Muller served as altar boy last Tuesday morning. After Mass, Mr McGinn caught him in the sacristy drinking altar wine. When I found out, I sent for him. There were tears. He begged not to be removed from the altar boys. And I took pity on him. I told him if no one else found out, I would let him stay on.

(Sister James is overjoyed. Sister Aloysius is unmoved.)

History repeats, even in the High Court. In 1994, the seven judges of the national court not only ruled that appeal judges should generally give effect to their own doubts when judging jury verdicts, but also judged a jury verdict themselves. The court ruled that the jury’s finding of guilt in a child sexual abuse case was unsafe. The majority judges (including William Deane) explained that a teenager’s account of being raped by her father was rendered improbable by the squeaky bed on which she said the crime occurred and was contradicted by medical evidence (of her “intact hymen”), the television guide and her father’s denials. Tellingly, the decision was four votes to three. In my view, the decision has aged badly.

I’m not alone in thinking that. Ferguson and Maxwell’s judgement dismissing Pell’s appeal relies heavily on one of the dissenting judges in the 1994 case. Unlike Dr Ferguson and Rhodes scholar Maxwell, Michael McHugh left school at fifteen for a variety of blue-collar and later white-collar jobs, before working his way to a legal qualification. He was soon recognised as a formidable trial and appeal advocate. One of his last cases before becoming a judge was to represent the Chamberlains in their (unsuccessful) court appeals.

But McHugh’s sharp dissent from the High Court’s later ruling on child sexual abuse verdicts championed the jury system. “The collective experience of the jury is more likely to fit them for the task of evaluating the evidence,” he wrote, noting that judges assessing the conduct of a thirteen-year-old complainant must rely on views “derived from their own past contact with teenagers [that] may well be out of date.” (Pell’s accuser was born during Ferguson’s last year as a law student, Maxwell’s first as a barrister, and the first year of Weinberg’s stint as head of my law school.) In their own judgement, Ferguson and Maxwell write that Pell’s jurors “had the advantage not only of a far wider range of life experience than that of three judges but of being able to draw on each other’s experiences in the course of their deliberations.”

I spent much of my doctorate on proof in rape trials championing McHugh’s approach to deciding whether to believe a sexual abuse complainant. In 1994, McHugh had no access to videos of the complainant. Instead, he pored over the transcript, to conclude that “there was much in the detail of her account that made her central allegations ring true,” citing passages like this one:

Q: What did you understand at that point that he was talking about?

A: Then I understood that he meant had I had sex with Mark. So I said, “Dad, we didn’t go all the way” or something like that. And Dad just went, “Right.” Then he got on top of me and he started to push his penis into my vagina, and he kept saying, ‘Lift your hips up and it won’t hurt as much.’”

Ferguson and Maxwell likewise found multiple “rings of truth” in the evidence of Pell’s accuser, while also quoting McHugh at length on the insignificance of more peripheral details. On the often-shifting dates the complainant nominated for when the sexual abuse occurred — a point Weinberg dwelt on in his dissent — the majority judges simply observe that “This is the kind of detail about which honest witnesses make mistakes, as McHugh J said.”

I think the majority of the High Court in 1994 overcompensated in response to their court’s failure in the Chamberlain case a decade earlier. The case before them had several features that make it a much stronger prosecution case than many child sexual abuse trials, including Pell’s. Unlike many abuse victims, including the boys in Pell’s case, the teenager told multiple people about what her father was doing to her: first her best friend, then her sister, then a school counsellor. And, although her father denied all and even testified in his defence, he didn’t come across well. “I would suggest,” he told the police, “that our first priority would be to find out whether in fact K [his thirteen-year-old daughter] is still a virgin.” McHugh thought that those words revealed far too much knowledge about his daughter’s hymen. His words simply frighten me. (I dedicated my doctorate to the unnamed complainant.)

The reason I find Father Flynn’s question about uncertainty so difficult is that there are enormous dangers both in making too much of doubts and in making too little. Too much doubt is why the courts (among others) have allowed far more than one monster to prey on children. While Ferguson and Maxwell refuse to mention the elephant in the room in their judgement, Weinberg states that the royal commission’s findings on that topic “represented a shocking indictment of clerical abuse in this country.” But Weinberg also raises the case of Carl Beech, who was sentenced in late July this year — while the three judges deliberated on Pell — to eighteen years in an English prison for inventing claims that he and others were the victims of half a dozen monsters, many well-known figures.

Beech’s story was exposed because he made claims that could be tested decades later, specifically that the villains had repeatedly broken his bones. Were it not for that detail, it might not have been him who was imprisoned last month. Long before X-rays proved him a liar, the investigation’s head publicly declared Beech’s story “credible and true.” Those words frighten me too.

When I read the Court of Appeal’s judgements on Pell, I see signs of both the majority and the dissent overstepping their respective marks. Weinberg’s stated willingness to believe the complainant’s account of an archbishop raping two choirboys in the St Patrick’s sacristy (but for the “devils in the details”) did not extend to the same witness’s account of Pell striding into a group of choirboys and briefly grabbing his genitals. “I would have thought that any prosecutor,” writes the former director of public prosecutions, “would be wary of bringing a charge of this gravity against anyone, based upon the implausible notion that a sexual assault of this kind would take place in public.” But to the majority (and me), “a fleeting physical encounter of the kind described by A can be readily imagined” and “it seems to us to be quite possible that this brief encounter was not noticed” except by abuser and abused.

But the majority goes further than I would. “What does seem improbable to us,” they write, “is that A would have thought to invent a second incident if his true purpose was to advance false allegations against Cardinal Pell,” noting that more incidents mean more risks of the story unravelling. I find this claim not only dubious — because the same things that make the second incident harder to notice also make it harder to disprove — but dangerous. The majority reasons this way throughout their judgement, asserting that the problems of the complainant’s account — his errors, his uncertainties, some of its improbabilities — are not merely explicable but positively “supportive” of his credibility, on the basis that a liar would have told a more believable story. At the end of that path of reasoning waits Carl Beech.

James: Well. What a relief! He cleared it all up.

Aloysius: You believe him?

James: Of course.

Aloysius: Isn’t it more that it’s easier to believe him?

James: But we can corroborate his story with Mr McGinn!

Aloysius: Yes. These types of people are clever. They’re not so easily undone.

James: Well, I’m convinced.

Aloysius: You’re not. You just want things to be resolved so you can have your simplicity back.

Shanley’s screenplay won a Tony and a Pulitzer, and was also nominated for an Oscar when adapted for film in 2008. The three-hander’s A-list cast — Meryl Streep (playing Sister Aloysius, twenty years after she played Lindy Chamberlain on screen), Philip Seymour Hoffman and Amy Adams — improbably received four acting nominations, with Viola Davis nominated for a stunning ten-minute scene as Donald’s mother, which I won’t spoil here. I saw Doubt on stage in 2006. Later productions in Newcastle and Melbourne in 2015 and Sydney in 2017 overlapped with the royal commission. I’m not sure it’ll be staged here again.

Much has been made of Mark Weinberg’s criminal law experience. It’s true that he has an extensive career in criminal justice and has heard eighty unsafe verdict appeals compared with Anne Ferguson’s five. But Chris Maxwell, the Court of Appeal’s president, has heard eighty-five. I’ve previously noted that none of these judges overturns jury verdicts as often as their colleagues. Ferguson’s limited experience explains why she is yet to overturn a jury verdict, while Maxwell’s rate of one in eight is lower than Weinberg’s one in five. Pell’s case is the first unsafe verdict appeal in which Mark Weinberg was at odds with his colleagues (including Chris Maxwell, whom he’s sat with in such cases twenty times to date), but it’s the sixth time Maxwell has differed from either or both of the other judges on his panel. Each time, the Court of Appeal’s president voted to uphold the jury’s verdict.

And yet, Maxwell used to allow such appeals as often as his colleagues. He did so eleven times in his first fifty unsafe verdict cases, the same rate as Weinberg’s. But his last such ruling was in 2013. Pell’s appeal is his thirty-sixth consecutive rejection of an unsafe verdict argument (a six-year period where Weinberg allowed such appeals seven times as part of unanimous benches and Maxwell dismissed five as part of divided benches). It’s as if, at some point in the last six years, Maxwell simply stopped doubting.

At the end of Doubt, Father Flynn leaves the parish after a single conversation alone with Sister Aloysius, where each confesses to (unspecified) mortal sins. Shanley lets the audience, with Sisters Aloysius and James as their surrogates, decide whether Flynn is a monster. Fifteen years after its debut, the play perfectly catches the tenor of the times, with the exception of its very last spoken line.

Aloysius: In the pursuit of wrongdoing, one steps away from God. Of course, there’s a price.

James: I see. So, now he’s in another school.

Aloysius: Yes. Oh, Sister James!

James: What is it, Sister?

Aloysius: I have doubts! I have such doubts!

(Sister Aloysius is bent with emotion. Sister James comforts her. Light fades.) •

The post A judge’s doubts appeared first on Inside Story.

On the face of it, that weekend’s carnage might seem unlikely to dramatically change the gun-control debate in America. That didn’t happen when twenty-six people, including twenty children, were gunned down at Sandy Hook elementary school, or when seventeen students and staff were shot to death at a high school in Parkland in Florida. It didn’t happen when gunmen invaded religious sanctuaries and murdered Christians in Texas, Jews in Pennsylvania and Sikhs in Wisconsin. And it didn’t happen when shootings occurred on military bases and in a gay night club.

The president and Congress are away from Washington on August vacations, and it seems that anything that does happen won’t happen for at least several more weeks. The contrast to New Zealand’s response to the Christchurch massacre couldn’t be starker. Americans seem increasingly resigned to living in communities in which no trip to a shopping centre, a school, a place of worship or a festival is safe. Indeed, a poll last week found that 78 per cent of Americans expected another mass shooting within three months.

While pleas to “do something” are being heard in El Paso and Dayton, the once-active student voices of Parkland have become more muted and the parents of children who died at Sandy Hook struggle to keep the issue of gun control on the political agenda. The battle also comes at a cost: this year two survivors of the Parkland shooting and the father of a child killed at Sandy Hook elementary school died by suicide.

As was the case after the Parkland shooting, Trump has shown no leadership and provided no comfort and consolation, seemingly veering between wanting to do more and worrying that doing so could prompt a revolt from his political base. He has put forward a mishmash of ideas to reduce gun violence, many of them ill-defined and lacking either evidence or Republican support. Regardless of whatever he really thought or wanted to do, he was clearly constrained by White House aides and hamstrung by the NRA and Senate leader Mitch McConnell.

McConnell — whose obstruction on this issue, even of bills with bipartisan support, has been epic — said that he would not call the Senate back early to consider new gun legislation. In doing so, he rejected a plea from more than 200 mayors, including those from El Paso and Dayton. Nor would he bring any gun-control legislation to the floor without widespread Republican support, which is code for saying nothing will be done.

Yet there are a number of reasons why it is just possible that August 2019 will be a tipping point in this saga.

First, this is an issue that the Democrat presidential candidates have seized and will continue to push, keeping it front and centre in the debates. The biggest Democrat presidential field in history is also the most united ever in favour of gun control, and candidates are offering competing and aggressive gun safety plans.

Second, while the NRA is still a major force, its power is waning. It has failed to get its top priorities signed into law under Trump; is experiencing internecine power battles, allegations of financial misconduct and embarrassing headlines; and is being outspent by a growing and emboldened gun-control lobby.

Third, there is growing recognition of the role that extreme white nationalism has played in radicalising the perpetrators of gun massacres. The overt racism that drove the shooting in El Paso, and the influence of Trump’s demagoguery about Latino “invasion” in the shooter’s manifesto have frightened and galvanised many Americans, especially those in Hispanic communities who feel increasingly unsafe and unprotected. Many feel that radicalised white nationalism has placed them in its crosshairs, and that this means, for them, “the death of the American dream.” America’s sixty million or so Latinos, who are more likely to vote for Democrats, account for 18 per cent of the national population. That’s a powerful voting bloc.

Fourth, that and other demographic features are changing the electoral map. In Texas, a growing Hispanic population and an influx of younger people attracted by new industries could see the state turn from Republican red to politically purple. In the 2018 midterm elections a surge in Hispanic turnout in that state helped Democrats make significant gains. The likelihood of this happening again in 2020 is highlighted by the recent announcements by four members of the Texas congressional delegation that they will not contest their seats next year.

The 2018 midterms also highlighted the continuing collapse of support for the Republican party in the suburbs, especially among white women. An analysis shows that the majority of the forty-one seats flipped by Democrats in 2018 were predominantly suburban. Now, suburban areas of Atlanta, Philadelphia, Dallas and Houston in states Trump won in 2016 are seen as increasingly leaning Democrat. A growing economy is not overcoming residents’ dislike for Trump’s rhetoric and behaviour, their fears for everyday safety and their dismay that schoolchildren need to learn lockdown procedures.

Fifth, even in the absence of presidential and congressional action, many states are enacting their own gun-control laws. This year, states hit by gun violence have acted to require background checks on all gun sales (Nevada and New Mexico), to mandate the responsible storage of firearms and prohibit the sale and possession of bump stocks (Nevada), and to keep firearms out of the hands of individuals who pose an imminent threat to themselves or others (New York, Colorado, District of Columbia). Increasing numbers of state legislatures are rejecting bills that would allow teachers to be armed, guns on college campuses, and “stand your ground” responses that encourage the escalation of violence.

Finally, and sadly, while Trump and the Republicans may think that diversion, delay and denial will mean that the anger and attention and push for action will evaporate, the chances are that these sentiments will be fired up by yet another massacre. On average, four or more people have been killed in a mass shooting every forty-seven days since June 2015, when a young white supremacist killed nine people at a Bible study class in a historic African-American church in Charleston, South Carolina.

The pressure these factors have brought to bear on Trump and McConnell have seen some changes in their public pronouncements in the last few days, and it seems that they are now more inclined to take steps towards some substantive action. Whether this results in new laws and regulations remains to be seen.

Trump has faced major criticism for his language, his lack of empathy and his demeanour during visits to El Paso and Dayton, and in his Twitter attacks on politicians from these cities. Speeches from presidential candidates including former vice-president Joe Biden and senator Cory Booker served as reminders of what a president should offer his country at such times.

This past weekend, at a forum in Iowa, sixteen of the Democrats running in the presidential primary spoke out against the obstruction by Trump, McConnell and the NRA. They also voiced support for a common set of gun-control proposals, including a requirement for universal background checks and a ban on military-style semiautomatic rifles.

Trump is reportedly furious that his reputation has been damaged by charges of racism and that his language has been linked to the massacre at El Paso. McConnell is facing public outrage over his failure to act on gun control and accusations that his pandering to the NRA has cost people’s lives. It’s likely that polling is also influencing them. A majority of those surveyed in a recent poll, including 59 per cent of Republicans, said the Senate should pass the two gun-control measures to tighten background checks on gun purchasers approved in February by the House of Representatives.

Now Trump is claiming “tremendous support for really common sense, sensible, important background checks” and arguing that McConnell and senators who are “hard line on the second amendment” are “totally onboard.” And McConnell now says that Trump is “anxious to get an outcome and so am I.”

If Trump backed such legislation and McConnell was willing to bring it up in the Senate, it would signal a fundamental change in the gun-control debate. It would also signal that Republicans were, finally, listening to the voters.

Even before the shootings in El Paso and Dayton, Gallup reported the highest level of support for stricter gun laws in twenty-five years. Universal background checks are now supported by more than 90 per cent of Americans. Only 23 per cent of all voters oppose an assault weapons ban. Surveys from a variety of sources all show a rise in the number of Americans who say they believe controlling gun violence is more important than protecting gun rights.

In a recent GQR survey of likely 2020 voters, more than one in four people said their views on guns have changed within the past five years, and of these, 78 per cent — and 70 per cent of Republicans — have moved towards supporting stronger gun laws.

In February 2018, just after the massacre at Marjory Stoneman Douglas High School in Parkland, Florida, Trump met with members of Congress and chastised them for being “petrified” of the NRA and for doing nothing on gun control. “It’s time that a president stepped up, and we haven’t had them,” he said. “And I’m talking Democrat and Republican presidents — they have not stepped up.” Now, eighteen months and too many deaths later, it’s time the president took his own advice. •

The post Could this be a tipping point for gun control? appeared first on Inside Story.

It didn’t take long for those questions to be answered. Two years later, in March 1974, women from Sydney Women’s Liberation squatted in an abandoned house in Sydney’s Glebe, and Elsie, Australia’s first women’s refuge, was born. Our Canberra refuge, Beryl, was set up the next year in a house leased from the territory authority. As it turned out, the demand for these services was enormous, and other women’s shelters followed in other cities. By then, I was one of Australia’s early femocrats, heading the women’s affairs unit in the prime minister’s department, and one of my biggest challenges was finding funds for what had become a network of refuges around the country.

It’s a problem that has dogged women’s services ever since. No sooner is the funding secured than a change in government dries it up. Not surprisingly, funding is maintained and often increased under Labor, then whittled back by the Coalition. Labor governments have been more accepting, moreover, of the need for refuges specifically for women, while the Coalition will bunch them together with gender-neutral shelters run by churches or groups like the Salvation Army. For most of this past decade, despite government-initiated community awareness campaigns, funding for women’s refuges has been savagely cut, with countless women and children turned away from the few remaining ones. Yet all this is happening as the incidence of domestic violence and intimate partner homicides has surged.

This, in a nutshell, is the situation that investigative reporter Jess Hill has grappled with over four years to produce See What You Made Me Do. The work she’s put into it shows. In all my long acquaintance with the subject, I’ve never come across such a thorough examination of domestic violence — or domestic abuse, as Hill prefers to call it. In this, I don’t seem to be alone; less than a month after its release, the book was already being reprinted.

Yet while Hill and her book have had extensive coverage, her findings have tended to be cherry-picked by readers or reviewers. Rather than any incomprehension on their part, this results from the very breadth and depth of Hill’s analysis, and the difficulty of absorbing her many disturbing findings. As Helen Garner puts it on the cover, this is indeed a “shattering” book. The horror of the incidents Hill documents; the meticulous fairmindedness of her approach; the conclusions she draws — all demand attention. But the reading is necessarily hard-going. Chapter by chapter, right to the end, Hill demonstrates incontrovertibly that what Australia is now experiencing amounts to a genuine state of emergency.

Early in the book we are introduced to Rosie Batty, the 2014 Australian of the Year whose eleven-year-old son was murdered by his father in full view of other parents and children. Batty was brave enough to turn what could fairly be described as any mother’s worst nightmare into a campaign to raise awareness of the extent of family violence and the inherent risk of homicide it poses. She thus became the poster woman for domestic abuse, if at great personal cost. “In the eyes of mainstream Australia,” Hill writes, “Batty was everyone — not from the stigmatised poor or the privileged rich, but from the demilitarised zone of the white middle class.”

One thing that’s prevented appropriate responses from police and the judicial system is the “battered woman profile,” a pernicious but entrenched belief that victimhood has something to do with a victim’s personality. What else could explain a woman returning time and again to a partner who repeatedly abuses her? For answers Hill has researched as far afield as studies of brainwashing during the Korean war, and she concludes that a victim of domestic abuse can be so sapped of confidence and vitality that she’ll come to question her own reality. It can take colossal determination and energy, then, as well as help and resources, to escape.

The experience of those running crisis hotlines and women’s shelters is that on average a victim will go back as many as nine times before she can finally leave an abusive partner. She then risks his stalking, assaulting or even murdering her — risks that can multiply when children are caught in the crossfire. But while women who’ve experienced extreme abuse can exhibit a range of psychological symptoms, not to mention bodily injuries, Hill convincingly argues that there’s no such thing as a type.

After tracking survivors and their children who have escaped to “the underground,” a shadowy world of aliases and motel rooms akin to witness protection, Hill shines a light on the men who have driven them there. Perpetrators, too, come in all ethnicities and classes, but whatever their standing in the community, their methods are strikingly similar. “Speak to anyone who’s worked with survivors and perpetrators,” writes Hill, “and they’ll tell you the same thing: domestic abuse almost always follows the same script. It’s a truly confounding phenomenon: how is it that men from vastly different cultures know to use the same basic techniques of oppression?”

Here Hill identifies two different types of perpetrators, “coercive controllers” and “insecure reactors.” These are broad categories, and abusers in either can exhibit characteristics of the other. But, broadly speaking, coercive controllers tend to be practised manipulators whose techniques are often premeditated, and insecure reactors tend to be less conscious of their motives, though their responses can be more explosive and often more dangerous.

I’m aware that so far I’ve only mentioned men. Hill devotes a chapter to female abusers, but their numbers are comparatively few, their male partners often ashamed and mute, and the violence usually comes after the women themselves have copped years of abuse themselves. The fact remains that most perpetrators are men.

The literature on domestic abuse appears to fall into two camps, one holding that violence results from escalating “family conflict,” the other resting on a feminist analysis in which gender inequality is the cause. These two quite different perspectives have produced different sets of statistics. The family conflict school focuses on the number of police call-outs, overlooking the unequal power relationships in which violent incidents occur. Feminists point to the wider and less easily measured impact of patriarchy, and Hill agrees. From my own experience and on the strength of her explanations, so do I.

But what does this mean? What’s good about Hill’s approach is that it isn’t about blaming men. She goes much deeper than that. The fact that we live in a patriarchy doesn’t mean that all men are powerful. On the contrary, few men are. But patriarchal culture makes many believe that because they are men they’re entitled to be powerful, and if they aren’t, that makes them losers. Hill maintains it’s this unfulfilled sense of entitlement that fuels the rage men can feel against women.

Of course, I’m oversimplifying an insight that Hill gives many pages to. But the closer we look at how our society is structured and the values on which it’s based, the easier it is to see why domestic abuse has increased so alarmingly in recent years and why public-awareness campaigns have served to ramp up the violence by triggering a backlash.

Changing community attitudes is an excellent policy for the long term, but in the meantime other measures are necessary. What we desperately need are more refuges, more affordable housing, better schooling of police and the judiciary, more listening to women and children, more effective programs for reforming perpetrators, and a more humane, less adversarial family law regime. All this takes money, mostly government money, and there’s not much chance of that in the years of likely austerity ahead.

I’ve left out any mention of Hill’s heartbreaking chapter on abuse in Indigenous communities; in the space here I could never do the subject justice. But read the book. In the present climate it’s hard to make predictions, but it’s my bet that See What You Made Me Do will be the definitive text on domestic abuse for some time. •

The post Rewriting the script appeared first on Inside Story.

From 11 June, NT police are obliged to contact the North Australian Aboriginal Justice Agency, or NAAJA, whenever an Aboriginal or Torres Strait Islander person is arrested on suspicion of criminal activity. The new rule is in line with a memorandum of understanding between NAAJA and the police finalised at the end of May. But neither the memorandum nor the amendment will forbid police officers from interviewing people before contacting NAAJA. As a result, Aboriginal and Torres Strait Islander people arrested by police could continue to give recorded interviews before they get legal advice against doing so.

Mandatory notification of an Aboriginal legal service was a recommendation of the Royal Commission into Aboriginal Deaths in Custody when it reported nearly three decades ago, in 1991. Since then, legal services have also seen CNS services as ways to advise their clients about their legal rights, such as the right to silence in the face of police questioning. This broader view of the CNS system is not typically shared by police.

This tension between the two visions for a CNS — the narrow police vision and the broader one held by NAAJA — appears to have been behind repeated delays in its rollout following its announcement by the new chief minister, Michael Gunner, in 2016.

In October of that year, Gunner wrote to federal Indigenous affairs minister Nigel Scullion committing the Territory to a legislated CNS scheme. Scullion wrote back offering the Commonwealth’s terms: the prime minister’s department would fund a CNS for three years on condition that the NT government introduced the necessary legislation and committed to picking up the tab after the first three years. Deputy chief minister Nicole Manison, also police minister, confirmed her government’s acceptance of Scullion’s offer in December 2017.

In November last year Scullion announced $2.25 million in federal funding over three years for NAAJA to run a CNS throughout the Northern Territory. (Since it took over the Alice Springs operations of what had been the Central Australian Aboriginal Legal Aid Service in November 2017, NAAJA has been the Territory’s only Aboriginal-run legal service providing criminal defence services to Aboriginal people.)

NAAJA immediately set about recruiting staff. But it was hardly smooth sailing. Sources claim that the CNS design is flawed, and the funding agreement doesn’t provide quite enough money to run it.

NAAJA’s service won’t replicate the highly effective, nearly twenty-year-old NSW notification service, which takes Aboriginal Legal Service lawyers out of their normal court-based routines and rosters them onto phone shifts for a week at a time. Instead, it will employ entirely new staff who don’t have existing knowledge of particular police practices or of clients’ communities and likely bail options. And the new CNS team’s work will be entirely phone-based. “Like a justice call centre,” one source said.

Some of the CNS staff members at NAAJA are non-lawyers who can’t lawfully give legal advice. The federal funding appears not to be adequate to fill all CNS positions with lawyers and account for minimum after-hours loading requirements in the industry award. It is understood that when non-lawyers take custody calls from police, they will be providing clients with “legal information” based on a written manual, as distinct from advice.

Despite these concerns, the CNS seemed all set to begin operations by a March 2019 deadline. But the Gunner government’s promised legislation failed to materialise. Rumours began circulating that NT police were holding out on a CNS design agreement. The office of the police commissioner, Reece Kershaw, has not responded to interview requests for this article, but sources close to police have suggested this was the case.

In a 7 March statement obviously motivated partly by political concerns in the lead-up to the federal election, Scullion was heavily critical of what he called the “do-nothing Gunner government” and its failure to introduce CNS legislation. He said that NT police “strongly support the establishment of a CNS as a tool to also assist the police in their engagement and interactions with Indigenous Territorians.”

Kershaw, Manison and Priscilla Atkins, chief executive of NAAJA, have maintained a collective silence, and none of them commented for this article, despite requests. Behind the scenes, negotiations continued between NAAJA, Northern Territory Police and the Gunner and federal governments, resulting in the memorandum of understanding and the legislative amendment. It is understood that NAAJA was not involved in drafting the bill, and that it was written substantially by police.

A spokesperson for the prime minister’s department says that it has been working closely with the NT government to have the legislation passed, with the CNS to be governed by the NAAJA–police memorandum in the meantime. Until the amendment formally becomes law, police won’t legally be able to contact NAAJA without first getting consent from the person they’ve arrested. After it becomes law, police must contact NAAJA regardless of the arrested person’s wishes.

But in what appears a glaring omission, police may not be legally required to contact NAAJA whenever they place Aboriginal people in so-called “protective custody,” which happens often. Police can remove people from public places if they deem them too intoxicated to care for themselves. If police can’t safely leave them at home or a sobering-up shelter they can keep them in police cells overnight. Critics have long been concerned that “protective custody” is too often used to lock Aboriginal people up for no good reason, and they point to consistent research findings that show police often mistakenly assess Aboriginal people as intoxicated.

Quarantining protective custody and paperless arrests from the CNS could subvert its intent, which is to prevent Aboriginal deaths in custody. In May 2015, fifty-nine-year-old Warlpiri man Kumanjayi Langdon died in a cell inside the Darwin police watch house after police saw him drinking in Spillet Park and arrested him for the purpose of giving him a $74 fine once he’d become sober. And in January 2012, twenty-seven-year-old Kwementyaye Briscoe died in an Alice Springs police cell, where he’d been placed in protective custody. It is understood that the new CNS legislation would not have required police to contact NAAJA in either circumstance, though it is hoped these situations will be covered by the memorandum.

Across the country, more than 400 Aboriginal men, women and children have died in custody since the royal commission reported in 1991. Since New South Wales legislated its CNS in 2000, just one Aboriginal person has died while in police custody in that state. That single death, in 2016, happened after Maitland police failed to use the CNS to notify the Aboriginal Legal Service of the arrest of a thirty-six-year-old woman. Only the Australian Capital Territory has introduced similar legislation.

Police forces in other states have convinced governments to avoid legislating CNS systems in favour of provisions in police operational manuals. The Victoria Police Manual’s instruction 113-1, for instance, requires a police officer who arrests an Aboriginal person to call the Victorian Aboriginal Legal Service within an hour. Notification requirements in South Australia, Tasmania and Western Australia are similarly limited to police policy and operations documents, while Queensland’s CNS relies on a memorandum of understanding with that state’s Aboriginal and Torres Strait Islander Legal Service. The Northern Territory will be the third jurisdiction to legislate, with Western Australia set to follow.

Until Tuesday, NT police merely had to make “reasonable efforts” to put an arrested person in touch with a lawyer — but only if the arrested person requested legal advice. Extraordinarily, police were not required to inform people of their right to speak to a lawyer. Nor were they legally obliged to use interpreters, even if the person they arrested was from a remote Aboriginal community and spoke little or no English. Interpreters aren’t mandatory under the CNS, either, but it is understood the memorandum requires police to make genuine efforts to make one available on request by either the arrested person or NAAJA.

Sources say some inside NAAJA are disappointed that the right to seek legal advice before being interviewed — and therefore the right to silence — is not explicitly protected in the CNS legislation. A January 2018 decision of the Supreme Court, upheld in March this year, means it is rarely in people’s interests to participate in a recorded interview if they’re arrested in the Northern Territory.

While CNS services reduce the likelihood of deaths in police watch houses, they can’t prevent people from dying in prisons. (Despite New South Wales’s legislated CNS, at least ten Aboriginal people have died in that state’s prisons and remand centres in the past decade alone.) Advocates and researchers agree that the underlying reasons for the proportionally high numbers of Aboriginal deaths in custody remain the same as they were during the royal commission thirty years ago: the appalling health gap between Aboriginal and non-Aboriginal Australians, and the astonishing — and growing — rate at which Aboriginal people are being locked up. •

The post Custody battle appeared first on Inside Story.

Faced with four scorching hours on the bridge that ties Paraguay’s Ciudad del Este to Brazil’s Foz do Iguaçu, I yield. Several clumsy three-point turns later, my driver manages to get off the bridge and begins tailgating the motorcyclist through the clogged back alleys of Ciudad del Este. “Yes, it’s illegal, but it’s the only way to reach Foz do Iguaçu before dark,” he says as he hands the yellow-vested motorcyclist 80,000 guaraní (about A$17) in Paraguayan cash. “This is frontier existence,” my taxi driver growls as we leave Ciudad del Este behind.

With a population of just under 300,000, Ciudad del Este — the City of the East — is the largest of the three metropolises that form South America’s Triple Frontier. Brazil’s Foz do Iguaçu (Iguazu River Mouth) and Argentina’s Puerto Iguazu (Iguazu Port) make up the trio. It is here that the murky waters of the mighty Paraná and Iguaçu rivers meet; nearby are the Iguaçu Falls.

“There’s a funny story about this bridge,” says my taxi driver, a Paraguayan. “It has been said that for its construction the Brazilians put in the money and the Paraguayans the friendship.” Built in 1965, the 553-metre bridge’s clogged three lanes keep Ciudad del Este and Foz do Iguaçu tightly entangled. On normal days, between 30,000 and 40,000 people and around 20,000 vehicles cross over it.

Smuggling hub: South America’s Triple Frontier. Foreign Affairs

Ciudad del Este, Paraguay’s second city is the world’s third-largest free-trade zone after Miami and Hong Kong. Through a process of “commercial triangulation,” it has become one of the most important commercial centres in the world, importing products from third countries for sale in the bigger markets of Argentina and Brazil. An estimated 98 per cent of the products that arrive in the Triple Frontier — mainly from China — go to Brazil, Latin America’s largest economy.

Alfredo Stroessner, the murderous military dictator who ruled Paraguay between 1954 and 1989, founded the city in 1957. He fancied a trading garrison next to its giant neighbour, Brazil, and legend has it that he was happy for it to become a centre of smuggling and contraband. What is definitely true is that Ciudad del Este’s illegal trade is massive, amounting to between US$10 billion and US$15 billion a year, according to Guillermina Seri, a political scientist at Union College in New York.

A 2015 report from Brazil’s Institute of Economic and Social Development of Borders calculated that around 15,000 people are “directly involved in smuggling, specifically in the Foz do Iguaçu region.” That’s hardly surprising given that the International Labour Organization claims, “the only thing that grows [in Paraguay] is unemployment.”

As twenty-four-year-old Leandro tells me, he has “tried and tried” to get legal work. Cooling down with the ubiquitous tereré, an iced herbal tea slurped through a golden straw, he is about to make the final crossing of the day from his native Foz do Iguaçu to Ciudad del Este. He is a sacoleiro, an across the border “bag carrier,” and crosses the bridge “at least six times a day.”

Leandro buys all sorts of goods on the Paraguayan side — from clothing to electrical gadgets, much of it counterfeit — and resells them at a higher price in Foz do Iguaçu. Officially he is allowed to bring across a maximum of US$300 of goods each month. He has been doing this “for a while,” he tells me in Portuñol, a mix of Spanish and Portuguese, and he knows that “only 10 per cent of the luggage that crosses the bridge to Foz do Iguaçu is ever checked.”

Last April officials from Ciudad del Este seized counterfeit goods worth more than US$600,000 dollars. “It is just for the show,” says Leandro. “From time to time the police from there” — he points at Ciudad del Este — “bust some of the shops to show they are doing their job.”

Contraband and counterfeiting — of electronic equipment, computers, sports shoes, drinks, toys, watches, textiles, perfumes and cigarettes — have been normalised in Ciudad del Este. According to a 2017 report from the Office of the US Trade Representative, “The border crossing at Ciudad del Este and the city itself have long been known as a regional hub for the distribution of counterfeit and pirated products.” Organised crime groups are reported to be responsible for most of the trade.

An essential part of the criminal equation is the fact that Paraguay is the second-most corrupt country in South America after Venezuela, according to a 2016 Transparency International report, which notes: “international diagnostics show that corruption in Paraguay is widespread and involves multiple sectors of government and private enterprise.”

Under the cover of this venality, the Triple Frontier has become the blood-spattered arena of the two largest Brazilian drug cartels, the Primer Comando de la Capital (First Capital Command) and the Comando Vermelho (Red Command). “They are at war, fighting for the control of the area and they have brought terror to the Triple Frontier,” Geraldine Cuervo, a researcher at Colombia’s Nueva Granada Military University, tells me.  “These two criminal specialise in the contraband of arms, electronic products, trafficking of people – mainly women and children – and the smuggling of drugs and cigarettes,” she said.

Moisés knows all about cigarette smuggling. “I started at fifteen,” twenty-two-year-old Moisés tells me. He scratches out a living as a pasero — or smuggler of goods — mainly bringing cigarettes from Ciudad del Este to Foz do Iguaçu. Tobacco is cheaper on the Paraguayan side of the border than in Brazil and Argentina. “You sense when you will be caught,” Moisés tells me. “When you look to the Brazilian border and see the cops a bit jumpy the only thing you can do is to throw the boxes to the Paraná River and sprint back to Paraguay.” And the next day, he says, “you try again.”

The smuggling of cigarettes from Paraguay to Brazil is at an industrial scale — twenty to thirty billion cigarettes per year. “It used to be easier, we just crossed the bridge,” says Moisés. “But the Brazilians are getting tough.” Now he does his business via the Paraná River’s clandestine ports, along with most of the large-scale contraband.

The Brazilian police have identified fourteen illegal ports in Foz do Iguaçu. “The use of ports became increasingly common after the Brazilian government tightened the surveillance in Brazil’s border with Paraguay, mainly around the Friendship Bridge,” says Eric Gustavo Cardin, a sociologist at The Western Paraná State University.

Moisés also admits to having done “a little bit of marijuana passing.” Like cigarettes, marijuana is abundant in Ciudad del Este: Paraguay is the world’s fourth-largest producer of the narcotic, according to the Office of the United Nations on Drugs and Crime. It is estimated that 80 per cent of Paraguay’s production of hierba maldita — “reviled grass” as it is called around here — is destined for Brazil; the rest ends up in the other neighbouring countries.

What Moisés hasn’t done — “that is a bit too risky” — is work in another highly profitable business on the Triple Frontier: arms smuggling. At street stalls in Ciudad del Este you can buy whatever weapons you fancy — a Jericho revolver from Israel, perhaps, or an Italian Beretta — and ammunition from Mexico, Israel or South Africa.

“Paraguay illegally imports modern high-calibre automatic weapons as well as war weapons destined for the black market, or to resell them in Brazil and Argentina, where there is sustained demand,” according to a 2014 study by Costa Rica’s Arias Foundation for Peace and Human Progress. “In 2014 some 30,000 weapons of all kinds were introduced to Foz do Iguaçu, mostly destined for Brazilian criminal organisations such as the First Capital Command and the Red Command.”

After drugs and weapons, trafficking of humans is the third-most lucrative criminal business in the area. “The region is an international traffic route for human beings, which means that children and adolescents are vulnerable to recruitment for sexual exploitation,” says a report from the UNICEF’s regional office for Latin America and the Caribbean.

Many of the victims end up in brothels in Argentina, others in Chile, Bolivia, Mexico, Spain, South Korea, Japan and the United States, according to a 2014 report from the organisation End Child Prostitution and Trafficking, or ECPAT. “The Triple Frontier is an area where there is a considerable risk of sexual commerce affecting children and adolescents.”

The precariousness of employment and the structural weakness of the region’s educational system are regarded as factors behind the traffic. ECPAT’s report points the finger at “the lack of controls at border crossings, the absence of public policies, poverty, the complicity of neighbours, and police and political connivance.”

What you might not expect to find here, though, is a possible link to religiously charged violence. One of the largest groups among the Indian, Chinese, Korean and Arab traders who have settled and prospered here is the Lebanese community, most of whom fled their homeland’s civil war in the 1970s and 80s. Perhaps 35,000 of them — a blend of Maronite Christians and Muslims — are settled in Foz do Iguaçu and Ciudad del Este. Many come from the Beqaa Valley, a part of Lebanon where the Hezbollah militia enjoys strong support.

Divided only by the Friendship Bridge, the Muslim Lebanese community gathers around the three mosques. Ciudad del Este’s Al-Rashdeen mosque — with its impressive white, eighteen-metre-high dome — is on the Avenida Alejo García in the city’s east. I’m told that its construction was primarily funded by donations from both sides of the Paraná River.

“We want to demonstrate with our actions that we are good people,” Khaled Ghotme, president of the Arab Islamic Paraguayan Centre, tells me. “Paraguay is a hospitable country that received us; this temple is the fruit of our effort.” “We are good people” — I heard Muslims from Ciudad del Este say it over and over again. It was not just a statement; it was a request to stop mentioning them in the same breath as Hezbollah.

Allegations of a link between the Triple Frontier’s Muslim community and Hezbollah were first aired back in 1992. In that year the Israeli embassy in Buenos Aires, the Argentinean capital, suffered a suicide bombing attack in which thirty people, including the perpetrator, were killed. Two years later the Argentine Israelite Mutual Association centre in Buenos Aires was bombed, with eighty-five people killed and hundreds wounded.

After a lengthy investigation, Argentina’s Supreme Court of Justice determined that Hezbollah was behind the 1994 attack. “The investigation determined that the group had a presence in the Lebanese Shiite community located in the Triple Frontier zone, from where logistical assistance was provided to the attack,” says Mariano Cesar Bartolomé from the Joint War College of the Armed Forces of the Republic of Argentina. After 9/11, he says, there was “a re-evaluation of the Triple Frontier in general, and of Ciudad del Este in particular, as a node within the schemes of Islamist terrorism.”

Allegations about Hezbollah’s presence in the Triple Frontier come and go. Last year they returned with fury after the arrest in Foz do Iguaçu of Lebanese-born Ahmad Barakat, who had settled in Paraguay in 1985. According to a report from the Financial Information Unit of Argentina, the “Barakat Clan” had its operations centre in Ciudad del Este; the unit’s successful application to freeze assets described Barakat as a “terrorist financier.” The US State Department had described him as a “key terrorist financier in South America” in 2006.

The Lebanese, and other members of the Triple Frontier’s Muslim community, see the allegations of a wider connection with Hezbollah as unjustified and unproven. “We are part of the Brazilian culture. We are Brazilians who practise Islam. We don’t fund terrorists,” Mohamed Beha Rahal, president of the Sunni Muslim Charity Cultural Centre in Foz do Iguaçu, tells me.

Evidence that Hezbollah is operating more widely in the area still seems thin. Human rights lawyer Orlando Castillo is sceptical, viewing the allegations as “a narrative written from Washington.” The aim, he says, is “to construct the Triple Frontier into a terrorist hub that will allow the United States, at a certain moment, to establish a permanent military presence in the zone… The monster is created, the rumours are fed, and the control of the area is justified.”

“Now you’ve seen the place, you should watch the movie,” an old Paraguayan friend, Francisco, tells me when I get back to Asunción, Paraguay’s capital. He is referring to the Netflix film Triple Frontier, with Ben Affleck, Oscar Isaac and other Hollywood stars, released on 15 March. The plot: five members of a US special force military unit work out a scheme to steal US$75 million from one of the most powerful cartels in the world based, yes, in the Triple Frontier.

I haven’t seen it, and don’t plan to. But I have a minor spoiler: the movie was not shot in South America’s fabled Triple Frontier. It was shot in Hawaii, Colombia and California. Hence you won’t see in the movie what I saw there: a perpetually green and humid place where endless tales of human foibles, transgressions and kindnesses converge at the meeting of the Paraná and Iguaçu rivers and the coming together of Paraguay, Brazil and Argentina. •

The post Triple trouble appeared first on Inside Story.

The real challenge was to bring the realities of “thorough, dogged, unexciting police work” to the screen in a way that would keep audiences engaged. Producer Philippa Braithwaite, determined to step outside the clichés of conventional TV detective series and show “how a real crime was really solved,” engaged Sutton as an adviser at the scriptwriting stage. Her resolve paid off. When the six-part series went to air in Britain earlier this year, it broke ratings records with an audience of 9.5 million over the three consecutive nights on which it was shown. (The series is streaming in Australia on Seven.)

This partly reflects the notoriety of the case itself, of course, for Sutton was senior investigating officer on the hunt for serial killer Levi Bellfield, who was eventually convicted in 2008 for the murders of Amélie Delagrange and Marsha McDonnell, and in 2011 for the murder of Milly Dowler. Bellfield, in Sutton’s assessment, was a rare beast in the annals of violent crime, on a par with “Yorkshire Ripper” Peter Sutcliffe. The Yorkshire case has another kind of notoriety, too: in the annals of policing, it stands as a textbook example of an investigation gone wrong, and Manhunt highlights how Sutton was set upon learning from it.

In the dramatisation, Sutton carries around Michael Bilton’s weighty book about the Yorkshire case, and quotes from it in briefings. When his team baulks at checking 25,000 vehicles, he reminds them that the Ripper investigators were faced with tracking more than 50,000 vehicles. After they’d gone through 30,000 without producing a strong lead, a decision was made to stop and dedicate resources to other lines of enquiry. Sutcliffe’s vehicle was among the other 22,000. Had they pressed on, they’d have saved the lives of three further victims.

But when every line of enquiry spins out into scores, then hundreds, then thousands of individual checks, how can you tell which to pursue? For the Yorkshire detectives, working before the introduction of computers, it truly was a case of a needle in a haystack. By November 1980, with the death count rising and still no prime suspects, they had returned to the grinding slog of vehicle checking. Some 157,000 cars had been logged. They had taken 28,000 statements and conducted 27,000 house-to-house enquiries. The floor was groaning under the weight of filing cabinets. Sutcliffe had been brought in for questioning eight times and passed through the net without attracting any special notice.

This is not the stuff of which crime dramas are made. The fictional genre of the police procedural may take us into some of the operational routines of an inquiry, but the convention is that the individual intelligence of the central detective dominates the storyline. Interviewed about the series, Sutton is quick-witted, knowledgeable, sensitive and engaging, but his successes as an investigating officer — he has brought in convictions in some thirty murder cases — have to do with his faith in procedure itself, and the collective responsibility for adhering to it.

Clunes puts his own natural charm on hold and plays Sutton as a plain man who talks straight and works by the book. He is not in the business of outwitting people. He’s happy for a colleague to take the credit for a breakthrough and sees the rat cunning of the perpetrator as a fact of life rather than an incitement to competition. “I know my vehicles,” he says to an assistant detective who queries some technicality over a wheelbase, and you have a sense that in any other walk of life it’s the kind of knowledge that would turn someone into the pub bore. Here it’s literally a matter of life and death.

One of the unusual features of Levi Bellfield’s crimes is that he managed to avoid leaving DNA evidence. Police were left toiling through fingertip searches for cigarette butts in the grass, studying almost endless CCTV footage and spending cold hours on the motorway overpass watching for a particular white van. All this is portrayed with meticulous accuracy in the series, which is filmed in the original locations and seems barely a step away from a documentary reconstruction.

And that, surely, is the secret of its hold on viewers. It’s a matter of establishing a pace and a level of concentration that make minor interactions fascinating. Bellfield is identified and tracked at an early stage, so there’s no arc of suspense, though there are some moments of sustained tension — as when Sutton and DS Jo Brunt witness the suspect trying to lure schoolgirls into his car.

What Clunes captures especially well is Sutton’s warmth, which comes through most significantly in his concern for the parents of Amélie Delagrange. The impact on families of victims is a dimension that crime drama series rarely attend to. Nothing much is happening while you are sitting in a room with shocked and grieving people, but there’s a quietness about the approach in this series that enables the human reality to come through.

Australian audiences may have a less immediate emotional connection to these events than British viewers, but the focus on police procedure still hits home in relation to the Azaria Chamberlain case. As a recent guest on the ABC’s Brush with Fame, Lindy Chamberlain brought host Anh Do to tears with recollections of the darkest days following her wrongful conviction for Azaria’s murder. These are the costs of police work done badly.

Disturbing resonances of the Chamberlains’ ordeal came in March with the release of an eight-part Netflix documentary, The Disappearance of Madeleine McCann. The McCanns, too, went through the purgatorial experience of being the prime suspects following their daughter’s disappearance in Portugal. Again, it was a consequence of police overvaluing DNA evidence.

In the Chamberlain case, a forensic report claimed to have found traces of fetal haemoglobin in the Chamberlains’ car; in the McCann case, highly trained sniffer dogs detected traces of blood under the window in the room in the holiday resort of Praia da Luz from which Madeleine was abducted in May 2007. One of the problems with forensic evidence is the assumption that it is in itself definitive. In both these cases the forensics fed into ready-made frameworks of interpretation that had less to do with the facts than with the lures of crime fiction. The most intriguing culprit will always be someone within the circle of the existing dramatis personae; a wild animal or a random stranger will never capture the imagination with the same force.

Colin Sutton’s adherence to the disciplines of procedure has much to recommend it, and almost certainly saved lives. “Don’t get tunnel vision,” he advises his team, again citing the Ripper case, where a fixation on one line of evidence — audiotapes sent in to the police purporting to be from the killer — led to a massive waste of resources. Like the supposed traces of fetal blood in the Chamberlains’ car, they turned out to be a red herring. The wheels of conventional police procedure grind slowly, but, as Sutton proved, they can eventually find their way through the foggiest terrain.

The McCann documentary has been fiercely criticised for trawling through already widely known aspects of the story and offering nothing new. The McCanns themselves declined to cooperate. But much can be learned from its systematic retracing of the phases of the police investigation and the efforts of a skilled private detective to open the framework of enquiry in other directions. Like Manhunt, it underlines the value of showing what is actually involved in contemporary police work. •

The post By the book appeared first on Inside Story.

It was the start of a court case set to revolutionise the way we see the conspiratorial price-fixing and bid-rigging known as “cartel” activity. For the first time in a hundred years, Australians could be jailed for illegal business agreements with competitors, a prospect likely to send a chill down the collective spine of local boardrooms.

This isn’t the first prosecution under Australia’s 2009 criminal cartel laws. Two Japanese shipping companies have already been convicted, with one of them still waiting to find out the size of the penalty. But it’s the first time that an Australian company has faced a prosecution and the first time individuals have been charged with offences carrying a maximum jail sentence of ten years.

That makes this court action against Mildura-based Country Care, a privately owned rehabilitation-aid retailer, and two individuals particularly significant. Any flaw in the tactics used by the Commonwealth Director of Public Prosecutions, or CDPP, and any shortcomings in the evidence gathered for the prosecutors by the Australian Competition and Consumer Commission will immediately cast a shadow over a far more dramatic prosecution set to explode in a Sydney court next year. Everyone in the courtroom knows that the unrelated criminal cartel allegations against ANZ, Deutsche Bank, Citigroup and six of the banking giants’ top managers is dominating the horizon. This is just the dress rehearsal.

Of course, civil cartel lawsuits in Australia are nothing new: the Visy–Amcor case of 2007, which culminated in a $36 million fine against Visy, got plenty of media coverage at the time. But a criminal cartel, carrying jail sentences and the risk of much tougher fines, takes us into uncharted waters. The last time we saw something like this unfold in an Australian court was in 1910: Billy Hughes was attorney-general in the second Fisher government and the criminal cartel prosecution failed so spectacularly that it would take a hundred years for legislators to regroup.

So here we are, in a stuffy courtroom in March 2019, with Country Care and two individuals each facing up to twenty-eight charges for capital-C cartel practices such as price-fixing and bid-rigging at the expense of government departments. According to court documents, these illicit agreements targeted the federal Department of Veterans’ Affairs and HealthShare NSW, a government agency. This may be a showcase prosecution, but for those on the receiving end, the stakes are high.

So far, the hearings have only scratched the surface of the allegations; the prosecution will start in earnest in the Federal Court of Australia in October. But what we already know is that federal prosecutors regard a meeting held in May 2014 at the St Kilda Novotel in Melbourne as the starting point of the alleged cartel. According to the charges, it was at this meeting of retailers from across eastern Australia that Country Care managing director Robert Hogan outlined an arrangement to fix prices on items for the elderly or the injured including beds, mattresses, wheelchairs, walkers, specialised furniture and continence products.

This, the prosecution has argued, was part of a bid-rigging arrangement in which the Mildura-based company would secure government contracts and bring in other members of the alleged cartel as subcontractors. Hogan is one of the two men facing charges; a former employee by the name of Cameron Harrison is the other.

The CDPP’s evidence against Country Care and Hogan includes slides presented at the Novotel meeting, one of which said: “Low prices on members’ websites — never advertise contracted products on websites for less than the contracted prices.” It was this message, prosecutors have alleged, that Country Care had been sending members of what is known as the Country Care Group, forty-three retailers selling assistive technology across regional centres in eastern Australia.

Why was the advertising of lower prices on members’ websites an issue? By keeping their prices offline, says the CDPP, members of the Country Care Group had been attempting to prevent government officials from discovering that the bids they were receiving as part of tender processes weren’t based on the lowest prices. This is where the price-fixing and bid-rigging allegations meet.

The CDPP has provided the court with a copy of a subcontracting agreement prepared by Country Care almost a year after the Novotel meeting. According to the allegedly anti-competitive agreement, drafted by an unnamed law firm, “The member must ensure that efforts to promote the products under the [Rehabilitation Appliances Program of the Department of Veterans’ Affairs, or DVA] contract do not lessen the market value of those items by advertising the products at a price less than the price agreed to by the DVA. This includes all online marketing.”

The CDPP might not have the recording of Hogan’s comments at the Novotel meeting, but it has the slides, the subsequent contract and a long list of witnesses who were in the room when the allegedly anti-competitive agreement was articulated. Prosecutors also allege that evidence unearthed by the ACCC points to a range of anti-competitive arrangements entered into from 2014 and 2015 — allegations corroborated in court by two witnesses with knowledge of two separate alleged offences. These key witnesses have one thing in common: they have been granted immunity to testify.

This is the point where the Country Care case is of intense interest to the Sydney lawyers already claiming billable hours to prepare defences for the ANZ, Citigroup and Deutsche Bank. Everyone wants to know whether the immunity deals offered to the two men in the Country Care case — deals signed off by the ACCC and embraced by the CDPP — will tarnish the witnesses’ credibility. Will the deals underpinning at least three of the four criminal cartel prosecutions in the pipeline stand up in court, or will a judge direct the jury to take the evidence provided by the “immunised” witnesses with a grain of salt?

Immunity deals are the stock-in-trade of prosecutors in cartel cases around the world. The logic is astoundingly simple: the first member of the cartel to report the other to authorities can avoid charges altogether and emerge from a sticky legal situation unscathed.

But why would two parties set up a profitable cartel only for one party to rat on the other? Usually, it’s because things change. A chief executive might resign. New board members might baulk at existing arrangements. New legal advisers might identify a cartel where others hadn’t. Or an honest company manager with a limited understanding of Australia’s Competition and Consumer Act may stumble into a friendly agreement with a small-town rival without having thought it through and decide to back out of the deal. These things happen.

What the introduction of criminal cartel offences did in 2009 was turbocharge the incentive for companies involved in illegal agreements to come forward. A company board may ultimately be able to write off a hefty fine as the price of doing business — but a jail term, with well-paid managers spending years in a cell, will put the fear of God into the most hardened cartel member. In New Zealand, where criminal cartel offences were voted into law this month, the main selling point was that while the laws may be used sparingly, the mere fear of winding up on the wrong end of a jail term would ferret out deals signed in the most inaccessible of smoky backrooms.

With criminal charges placing a greater burden on prosecutors to present conclusive evidence before the court, immunity agreements can also grant investigators access to documents, recordings and multimedia material that they may otherwise have missed. In the ANZ prosecution, a fourth bank is mentioned in court documents: J.P. Morgan. Unlike ANZ, Deutsche Bank and Citigroup, though, J.P. Morgan and its executives aren’t facing charges, inevitably leading to speculation that it has accepted an immunity deal. If that’s true, it could explain why the ACCC appears to have a recording of a conference call involving all four banks that is set to become a central piece of evidence in the case.

The Country Care prosecution also hinges on evidence provided by two beneficiaries of an immunity deal struck with the ACCC — a deal referred to, once immunity is finally accepted by the CDPP, as a “letter of comfort.” One of the “immunised” witnesses, Sydney businessman Andrew Cuddihy, appears to have knowledge of one of the bid-rigging allegations, although what evidence he will present when called to testify in the Federal Court remains unclear. What we already know is that the defence has documented Cuddihy’s often difficult relationship with ACCC investigators and his insistence that his request for immunity be dealt with quickly. Lawyers for the defence want to know how the decision to grant immunity was made. What was the quid pro quo? Can a witness be credible when he or she is bending over backwards to secure an immunity deal?

Then there’s the difficult question of how an immunity arrangement entered into by the investigator — in this case, the ACCC — can be transferred to the CDPP. The relationship between the antitrust regulator and Australia’s federal prosecutors is underpinned by an understanding that grants the CDPP full autonomy in deciding what cases to prosecute, when to prosecute them and whether to accept the ACCC’s immunity recommendations. But defence lawyers argue that the CDPP’s acceptance of an immunity deal at the outset, rather than after weighing up the pros and cons of the agreement during the trial itself, amounts to a departure from the prosecutor’s usual approach. This response to the CDPP’s role in dealing with cartels — a role it didn’t have before the 2009 criminal cartel laws were introduced — is also untested in a court of law.

Rightly or wrongly, those on the receiving end of Australia’s first criminal cartel charges will attempt to break the procedural nexus between the investigation and the immunity deals. If they are successful, both the public prosecutor and the ACCC may have to return to the drawing board and consider reviewing their reliance on immunities.

Late last month, halfway around the world from Charlie Rozencwajg’s courtroom, the ACCC’s top enforcement official, Marcus Bezzi, was in a contemplative mood. In what was billed as a “fireside chat” at a conference of American lawyers in Washington, DC, Bezzi acknowledged that his investigators’ use of immunity deals to pursue criminal cartel prosecutions wasn’t a “desirable state of affairs.” He would prefer more prosecutions to be “ex officio,” he said, with charges brought to the CDPP without the need for witnesses holding a get-out-of-jail card. Bezzi would have known then that the first of the three criminal cartel prosecutions expected to be announced this year, involving Vietnamese-Australian money-transfer companies, also appears to be centred around an immunity deal.

But Bezzi didn’t shy away from the historical significance of the new laws, giving the assembled lawyers a quick lesson on Australian history. Our first criminal cartel law, the 1906 Australian Industries Preservation Act, was based on the US Sherman Act of 1890, he said. As everyone in the room would have known, the Sherman Act was a keystone law outlawing monopolistic business practices carried out by American trusts. It may have been because of the Australian legislation’s American heritage that it ultimately failed when put to the test in London.

Under the Australian act, companies or individuals who repeatedly entered into arrangements that placed a “restraint of trade or commerce to the detriment of the public” would face a penalty “not exceeding 500 pounds” or a jail sentence “for any term not exceeding one year.” The offences were clearly defined but those were different times, and consumer rights weren’t front and centre of political considerations. This was, after all, a federation built around a belief in tariffs. Indeed, the main thrust of the Australian Industries Preservation Act was protectionist, with provisions designed to protect local industries from the impact of American capitalists searching for investments around the world — the trusts referred to in the word “antitrust.”

Australia’s early criminal cartel laws were put to the test just once. The Coal Vend case centred on a cartel agreement among coal and shipping companies, which was particularly nefarious given that no energy substitute for coal existed at the time. When the case went to the High Court in 1911 the charges against the companies were upheld. The decision was then overturned by a full sitting of the High Court in 1912, prompting the government to appeal the case in the Privy Council in London — at the time, Australia’s highest court of appeal.

“The British lords just felt that it was completely wrong for price-fixing to be banned,” Bezzi told his Washington audience. The lords just didn’t get it, he said — they thought that “this concept that you should prevent businesspeople from getting together and setting prices was totally wrong. You ought not allow a prohibition of such a nature.” The now thoroughly depoliticised belief that collusion among companies is both legally and morally wrong and that consumers should be protected from predatory behaviour didn’t resonate back then. The fact that the case had been pursued by a Labor attorney-general — Billy Hughes was still on that side of politics — may have added to the lords’ suspicion.

But, Bezzi joked, Australian regulators have had the last laugh against shipping cartels, with the successful prosecutions of shipping companies Nippon Yusen Kaisha (in 2016) and Kawasaki Kisen Kaisha (in 2018) marking the return of Australia’s criminal cartel offences. “We’ve had our revenge,” he said. •

The post The revenge of Billy Hughes appeared first on Inside Story.

The prisoner is a man who preyed upon the young, the vulnerable, the impressionable, the child needing a friend or a father figure and the child seeking approval from an adult. And for what? For his own sexual gratification, without thought or concern for the feelings or the sexual development of his victims. How can a man, who showed a kind and friendly face to adults, but who sexually abused so many young boys in so many ways over such a long period of time, be considered to be a good man? I accept that to some people there is good in everyone, but I cannot see any good in the prisoner.

Two decades ago, NSW District Court judge John Nield addressed these words to one of Australia’s worst sex offenders, who had abused dozens of children in his congregation. The priest was already serving a six-year term — the same sentence George Pell is now serving — for twenty of those offences. Nield’s task was to increase that sentence after three new victims came forward and the priest himself confessed to dozens of other crimes. He gave the priest a further sixteen years.

But in 2001 the High Court ruled that the judge had mistakenly refused to take account of the eight witnesses who had described how good the priest was at his job. Fellow clerics spoke of the marriages the priest saved, the bereaved he comforted, the sick he tended and the charity he gave to all, in the same years that he raped children. The district’s vicar-general told Nield that so many had benefited from the priest’s ministry that it “would be tragic if the good he has done were lost sight of in the situation that he is in at present.” Parishioners whom the priest had comforted in their darkest hours told of visiting him in Long Bay prison, but Nield dismissed their evidence tersely: “Whatever he had done and achieved, he is not a good man.”

Should we sentence people for what they did or who they are? When Victoria’s County Court chief judge Peter Kidd sentenced George Pell last week, he was at pains to say that he was not sentencing him for all the bad deeds in his life. “You are to be punished only for the particular wrongdoing you have been convicted of on this indictment, of sexually abusing two boys in the 1990s, and only of that wrongdoing.” Not for Pell’s alleged abuse of other children, on which charges had been dropped. Nor his alleged failures to stop other priests’ abuse, on which charges have never been brought. And also not for Pell’s many bad but legal acts as one of Australia’s most reviled religious leaders: against his opponents in the Church, against the faithful who differed with his doctrinal views, against victims seeking compensation, against humility, even against art. Just for what he was found to have done to two boys in 1996.

But the law’s laser focus doesn’t hold for the other side of the personal ledger — not since the High Court weighed in over what Nield said to his prisoner. “Reading Judge Nield’s remarks on sentence,” observed Justice Michael Kirby, “reminded me of nothing so much as the judge’s remarks to Oscar Wilde.” He was referring to events a century earlier, when judge Alfred Wills told the playwright, whom a jury had just convicted of gross indecency, “It is no use for me to address you. People who can do these things must be dead to all sense of shame, and one cannot hope to produce any effect upon them.” Kirby joined a majority of the High Court in ruling that Nield’s words to his prisoner lacked “the detachment that his role required” and wrongly offered a “one-dimensional” take on the priest’s character. Holding that the priest “was entitled to some leniency for his otherwise good character,” they ordered a re-sentencing that shaved a year off the priest’s sentence.

We don’t know exactly by how much George Pell’s sentence was reduced because of the evidence of his ten character witnesses, including former prime minister John Howard, who described Pell as a “lively conversationalist” who “frequently displayed much courage and held to his values and beliefs, irrespective of the prevailing wisdom of the time.” The chief judge didn’t mention Howard, but noted how people who knew Pell “for many years in various professional and personal capacities” had written that he “dedicated his life to service, in particular to vulnerable members of the community.” Kidd observed that the prosecution left unchallenged claims that Pell was a “compassionate and generous person, especially to those experiencing difficulties in their lives,” and assertions about his commitment to “social justice” and youth education. Ruling that his offending was “isolated,” he told Pell: “I make substantial allowance for your good character and otherwise blameless life.”

Remarkably, almost everyone was able to hear all of Kidd’s words at the same time Pell did. The chief judge explained his decision to let the ABC broadcast his sentencing remarks as “simply a clear demonstration of transparent and open justice and an accessible communication of the work of the court to the community of a case of interest.” It’s surely no coincidence that he had recently seen for himself how dangerous it can be to leave the communication of Pell’s fate to courtroom journalists. Two weeks earlier, the reporting of Pell’s sentencing hearing — where lawyers and judge debated the ground rules for punishing him — was largely botched. Journalists’ live-tweeting of single sentences or phrases without any context led some to think that Pell’s counsel had admitted his client’s guilt and others to attack him outside the courtroom.

By contrast, last week’s rare instance of very modern open justice sits well with studies that suggest that frustration about sentences switches to satisfaction when members of the public hear the judge’s reasons directly, rather than from the media. In Pell’s case, the immediate benefits were exemplified by Waleed Aly’s celebrated take the next morning. “A judgement is not an act of advocacy,” Aly explained. “It is not an essay arguing a single point relentlessly until its inevitable conclusion, but the balancing of competing interests and principles.” Much the same could be said for Aly’s own essay, which puts the one-sided advocacy that has largely dominated media reporting of Pell’s case to shame.

The discussion of Pell’s sentence and Kidd’s reasons for it may bring another, much more fraught, public benefit. Freed of the usual tropes about whether or not the judge “got it right,” Australians are now well placed to debate whether or not the sentencing law Kidd applied is fit for purpose. Sarah Krasnostein, the author of a recent critical report on how Victorian judges sentence child sexual abuse, thinks not. “I cannot agree,” she writes in the Saturday Paper, “that ‘good character’ should be mitigating when that same good character facilitated the commission of the offence.”

She isn’t alone in questioning the High Court’s 2001 ruling. The two dissents in the case argued that “there must come a point where the ‘bad’ outweighs the ‘good’ in the sentencing process.” Seven years later, the NSW parliament barred sentencing judges from taking account of a child sex offender’s good character or lack of prior convictions if they were “of assistance to the offender in the commission of the offence.” On the recommendation of the Royal Commission into Institutional Responses to Child Sexual Abuse, Victoria adopted the same rule in 2018, in time to cover Pell’s trials.

But Pell’s prosecutor, Mark Gibson, told Kidd that the new rule didn’t apply to Pell. Neither Gibson nor Kidd explained why, but it is clear that the rule is a tricky one. How can we tell if a religious leader’s abuse was “assisted” by his lack of criminal charges? Does the rule apply if the offender’s “good character” reflects things like ministering to childless adults? Or if, as in Pell’s case, his character witnesses speak to his compassion or advocacy in the decades after the abuse?

The real questions go deeper. Why should we give criminals lower sentences just because they did good at some other point in their life? Should it matter if an offender was a good worker? Or a bad or indifferent one? Was loved or respected by many? Or a friendless loner? Pulled a child from a fire? Or tried and failed? Or didn’t try? If such things do matter — say to the offender’s prospects for rehabilitation or reoffending — then why should we ignore them if they also facilitated the offender’s crime?

Australian sentencing law is full of difficult questions like these that Australian judges often strive to avoid answering. Justice Michael Kirby is a notable exception.

Back in 2001, in discussing Nield’s sentence of the priest, he asked a lot of very difficult questions. Was Judge Nield right to emphasise that the priest before him had not only sexually abused children but, in doing so, breached his vow of celibacy, sinned against his religion’s teachings and failed to fulfil his ministry? Kirby, somewhat ahead of his time, asked about the culpability of the Church itself, which — as in so many other cases — learnt of the priest’s offending at an early stage but simply shuffled him from congregation to congregation. But Kirby’s startling point was that the Church’s failings may reduce the priest’s culpability: “If, in 1975, his case had been handled more effectively, one might say, then it may be that all these later victims might have been spared and he might have, in a sense, been spared.” He even asked, as some now do, whether the demands the Church makes of all of its priests are also a factor: “in a sense, people in this position are, in part, victims themselves; that they are denied any sexual life and they are in a situation where they are in a position of temptation and it is all coming from the one source.”

To say the least, Australia was not ready for such a discussion. The priest’s various prosecutors and lawyers — three of whom are now judges, including Roy Ellis, who recently cleared Bishop Wilson of his conviction for failing to report child abuse — all declined to pursue Kirby’s points in the High Court. After Kirby and Ian Callinan nevertheless canvassed them in their judgements, they were criticised by two other justices for needlessly entering dangerous waters. The following year, Kirby found himself the victim of false claims of sexual misconduct read into the parliamentary record by senator Bill Heffernan, bolstered by selective quotes from Kirby’s ruminations about how to sentence priests.

Despite questioning whether Kirby’s thoughts could fit with either traditional legal principles or current community standards, Justice Michael McHugh agreed that the hard issue of how to sentence priests is of “great importance.” “Sooner or later,” he wrote, “it will have to be addressed by this Court.”

As everyone learnt simultaneously at 11.08am last Wednesday, Peter Kidd sentenced George Pell to imprisonment until mid February 2025. While the four-year term Kidd gave Pell for “sexually penetrating” J, the surviving choirboy, was unsurprising, the chief judge was less harsh than I expected on the other four charges of “indecent acts,” which carried the same maximum sentence. Despite their involving equally damaging (albeit different) abuse, two different victims and two separate incidents, Pell’s other four crimes added just two more years to his sentence and less than that to his non-parole period.

As Kidd explained, though, Pell’s sentence was lowered because of what he would experience in prison, not only because of notoriety — which he shares with Carl Williams and, more recently, Tony Mokbel — but also because of prisoners’ hatred of child sex offenders. To manage this, Pell would be kept in isolation and, Kidd feared, could die there. Instead, the chief judge’s mercy almost guarantees that Pell will be out on parole in late 2022 when he is eighty.

Chances are, Pell will be out earlier. His appeal against conviction will be heard in early June, although, if the High Court gets involved, his final fate may not be determined before next year. Pell may also seek (and perhaps get) bail pending his appeal. And, if all else fails, he may appeal against Kidd’s sentence. While I don’t think Pell can plausibly challenge his six-year sentence as excessive, he has one good argument to make at a sentencing appeal.

In what is rightly the most celebrated part of his remarks, Kidd rejected Pell’s argument that he should be sentenced as if he simply abused two boys he didn’t know. While the chief judge conceded that Pell had never actually met the two choirboys and was neither their priest nor “master,” he held that it wasn’t sheer chance that placed the three of them together in the sacristy that day:

Adults working at institutions no longer stand as mere strangers in relation to children who attend those institutions. This is because the institutional setting affords these adults with an opportunity to interact with children within that setting, an opportunity they would not have as a mere stranger.

Working without clear precedents, Kidd held that this institutional setting heightened Pell’s crime because it breached the trust the boys’ parents placed in the Church. In any case, he told Pell, the boys themselves trusted the Church and “you breached that trust and abused your position to facilitate this offending.”

Kidd’s analysis of the reality of the relationship between choirboys and church officials in St Patrick’s Cathedral in 1996 is, I believe, impeccable. But it is also legally vulnerable, because Kidd (who prosecuted for decades before he became chief judge of Victoria’s busiest trial court) may have overstepped the line that separates prosecutor and judge. The problem is that Pell’s prosecutor, Mark Gibson, made some important — and controversial — choices when he charged Pell with “sexual penetration of a child under sixteen,” which in 1996 carried a maximum penalty of ten years in prison. Based on J’s account, Gibson could have brought much more serious charges against Pell.

As Kidd acknowledged in his sentencing remarks, Gibson could have charged Pell with raping J, an offence that (then and now) has a maximum penalty of twenty-five years in prison. Obviously, J didn’t (and indeed couldn’t) consent to Pell placing his penis in his mouth. But Gibson chose not to bring that charge. And that means, as Kidd acknowledged, he couldn’t punish Pell for rape. Instead, Kidd followed a landmark sentencing ruling from Australia’s High Court in 1981 that required Kidd to pretend that there was no rape, even though there clearly was. In an awkward footnote that wasn’t read out on TV, Kidd explained that he would pretend that Pell was somehow unaware that J didn’t consent.

But Kidd failed to address another option that Gibson didn’t take: charging Pell with sexual penetration of a child who is under his “care, supervision or authority,” an offence that in 1996 carried a maximum penalty of fifteen years’ imprisonment. Gibson’s choice meant that Kidd was required to ignore any evidence that the two choirboys were under Pell’s “authority.” And that is difficult to square with Kidd’s statements to Pell that “the full weight of your authority and position of power must have been very obvious to your victims, and to you”; that “the brazenness of your conduct is indicative of your sense of authority and power in relation to the victims”; and that “the authority you carried within the Cathedral setting in relation to the choir boys, carried with it a significant responsibility of trust, not to do anything to the detriment of the boys.”

I can only assume that Kidd was unaware of this limit on his sentencing discretion. If he had been aware, he surely would have been at pains to distinguish his remarks about abuse of trust and position from the question of whether J was under Pell’s “care, supervision or authority.” Instead, he made it clear that this issue was a key factor in Pell’s sentence:

Your obvious status as Archbishop cast a powerful shadow over this offending. Not only do I consider that you offended in breach of your relationship of trust, and in abuse of your power and authority, I would characterise these breaches and abuses as grave. You were the Archbishop of St Patrick’s Cathedral — no less — and you sexually abused two choir boys within that Cathedral. This connection and the depth of the breaches and abuses is self-evident.

In short, Kidd punished Pell, not only as a priest — the approach Kirby questioned decades earlier — but also as an archbishop.

I think these events ought to prompt more public debate. Why didn’t Victoria’s public prosecutor charge Pell with sexually abusing a child under his authority, or with rape, exposing him to the much higher penalties Victoria’s parliament specifies for such crimes? And, if a prosecutor failed to bring charges that fit Pell’s crimes, is it right, as the High Court ruled four decades ago, that his sentencing judge should be forced to pretend that the facts of the offence are something other than he believes them to be? As well, should an offender benefit at a sentencing appeal if both prosecutor and sentencing judge fail to fulfil their respective roles? Like most sentencing questions, these are very difficult ones to answer.

For reasons I’ve argued elsewhere, I don’t think any of these questions is likely to be resolved in Pell’s case. Rather, chances are he will be acquitted altogether by Victoria’s Court of Appeal sometime this year. It would be a pity, though, if that outcome prevents full debate about the many difficult questions Pell’s case raises, questions about how to sentence priests, lowly or high, that the High Court dodged in 2001 and is yet to return to. •

The post How to sentence a priest appeared first on Inside Story.

Born in County Sligo, Ireland, in about 1806, Henrys moved to England and fell in with a gang of criminals. At five feet six inches, she was tall for her time, and she was described as having pale, pock-pitted skin, black hair and hazel eyes, with a tattoo of a cross on her right arm. On the journey from England to Van Diemen’s Land, according to the ship’s surgeon’s journal, she contracted pleurisy, a debilitating lung illness similar to pneumonia. The surgeon also described her as being “very bad” and “incorrigible.”

Henrys arrived in Hobart on the Arab on 25 April 1836. Over the next fourteen years she was convicted of forty-nine offences, primarily involving disobedience, drunkenness, assault and misconduct, in the form of “profane, beastly and threatening language to the constables.” She was also convicted numerous times of absconding. In one instance, in 1841, she left her place of servitude (convicts were often assigned to free settlers as labourers or domestic help) and lived in the bush for a year, during which time she dressed as a man, went by the name of Jemmy the Rover, and worked as a timber splitter. She was caught and returned to the Cascades Female Factory, a workhouse for female convicts, and earned a further six months’ hard labour on top of her original sentence.

Of one court appearance, the Hobart Colonial Times reported on Tuesday 24 March 1846:

Yesterday, a powerful virago of a woman, named Catherine Henry [sic], holding a ticket-of-leave, was charged by Constable Sharpe with being drunk and absent from her authorised place of residence. The “fair penitent” was sentenced to two months’ imprisonment, with hard labour. To this, she demurred and alleged that those rogues of constables always sacrificed her, and for what she did not know, inasmuch as she was a most quiet and peaceable person. Hereupon Sharpe declared that “Miss Henry” was “flaring up” with a large lot of whalers, sailors, and other roisterers. “Miss Henry” was then conducted from the dock, and, as the door to the cage was opened for her reception, she suddenly, and with most Amazonian vigour, attacked the constables right and left, dealing such mighty blows as would have well become the immortal Boadicea herself. Of course, a rumpus took place, but “Miss Henry” could not be pacified; blows were given, and as to tongue, we could not, if we would, chronicle the language.

Returned to the dock, Henrys again protested at the “oppression” of the constables. “She was cautioned by his Worship,” concluded the paper, “and carried away as before, uttering loud exclamations and, indeed, most bitter imprecations against all in the office.”

Her initial ticket of leave was granted in 1845 but revoked five times over the next decade. In January 1848 she was convicted of assaulting a constable and was sentenced to nine months’ hard labour at the Cascades Female Factory. Within weeks she had escaped by sharpening the end of a spoon to pry out a cell bar and then climbing a stack of tubs, having fashioned a rope from her blanket to let her down on the other side. The Launceston Examiner reported that this “notorious female” had a reputation as a pugilist, and claimed that her “masculine” appearance was quite in keeping with her character.

Henrys married former convict Samuel Dobbs in 1849 but remained rebellious to the last. In November 1850 she and two other women were charged with robbing a man of £3 10s in a house of ill fame. When the victim declined to prosecute, the charges were dropped. But Henrys was found guilty of having afterwards smashed five panes of glass and part of a sash with a rock at the next-door neighbour’s house, and was sentenced to the Cascades Female Factory for one month.

On 19 December 1850, while Henrys was still incarcerated, Samuel Dobbs left Launceston for Melbourne. In March of the following year Henrys, too, embarked for Melbourne where, although it is hard to imagine, there is little evidence of further infraction. She died of cancer at Melbourne Hospital on 15 August 1855, as Catherine Henry, aged forty-nine. •

Further reading

Convict Lives: Women at Cascades Female Factory, by Lucy Frost, Female Convicts Research Centre, 2012

The post The “incorrigible” convict with a sharp tongue appeared first on Inside Story.

Born on 7 May 1834 in the Gloucester area of New South Wales to a convict named James Bugg and an Indigenous Worimi woman named Charlotte, Mary Ann’s early life had little to do with bushranging. Indeed, despite her Aboriginal ancestry (which was frowned on at the time), Mary Ann was brought up a lot more respectably than many rural, white, working-class children in this era. For one thing, she could read and write because her father had paid for her to attend school in Sydney. And unlike with many liaisons between Aboriginal women and white men that were brief, casual or coerced, Mary Ann’s father petitioned the church for seven years to allow him to marry her Indigenous mother, and the pair were eventually wed in September 1848. That same year, at the age of fourteen, Mary Ann was also married, to an ex-convict named Edmund Baker, and the pair welcomed their first child in 1849.

So far it seems to be a conventional tale of marriage, motherhood and family, but this would not last for long. In 1861 Mary Ann became pregnant to a man named Frederick Wordsworth Ward. It appears that Mary Ann left Baker in 1849, and after a further two partners and six children began a relationship with Frederick Ward that would last for at least six years. And yet it was not the number of Mary Ann’s partners, nor the number of her children (who were born both in and out of wedlock), that made her noteworthy. In the nineteenth century, before the introduction of state welfare, it was not uncommon for a woman to change partners, especially if her and her children’s livelihoods were at stake. Rather, the issue came when Ward became one of the most troublesome and long-lasting bushrangers in New South Wales, Captain Thunderbolt.

Although Mary Ann accompanied Ward in his bushranging escapades from about 1863, it was not until 1865 that she leapt, almost literally, into the popular imagination. That year, Mary Ann and two of her children were found by the police, alone, in Thunderbolt’s camp. Instead of going quietly with the authorities, a heavily pregnant Mary Ann taunted the police for their failure to capture Ward. According to the Maitland Mercury, she then “sprung like a tigress upon one of the police, ribboning his uniform, and taunting him with cowardice for seeking her apprehension instead of Thunderbolt’s.”

Her response was so severe, “with her passion she brought on, or feigned to bring on labour.” Against their better judgement, the police were obliged to leave Mary Ann at a nearby property while they continued to hunt for the male bushrangers. Miraculously, upon the police’s departure her contractions appear to have ceased, and when Thunderbolt came by the station Mary Ann and the children escaped.

As well as berating and assaulting the police, Mary Ann accompanied Ward around the colony, acting as his scout, informer, lover and confidante. She helped to provide food and shelter, disseminated false information, nursed Ward back to health after he was shot, bore him three children and, many colonists alleged, took part in the robberies herself. In 1866 she was arrested for vagrancy; in court, Senior Sergeant Kerrigan declared that he had “no doubt” that Mary Ann had accompanied Thunderbolt and “assisted him to plunder.” He also disclosed that when living in the bush, Mary Ann dressed in men’s pants.

Now, for us, swapping your petticoats for pants when you are on the run may appear to be an understandably practical choice. But it conflicted with the respectable public persona of a refined lady that Mary Ann tried to cultivate. Many bushrangers relied on local supporters to help them survive and to strengthen their popular appeal, and Mary Ann and Thunderbolt drew on well-known tropes of gallant and chivalrous highway robbers. The idea was that while Ward may have been a working-class criminal and did not have noble blood, he did have nobility of spirit. And just as Robin Hood had Maid Marian to illustrate his tender, gentlemanly side, Thunderbolt had Mary Ann. Mary Ann declared herself to be “the Captain’s Lady” and Ward’s lawful wife.

Although her actions seem to belie this interpretation (and there is no evidence that she and Ward ever married), this itself is important. The tension suggests that Mary Ann decided when her public persona had to be kept up, when it could slide, and when to define herself by her actions or her words. And her awareness of popular opinion continued for the rest of her life.

The Thunderbolt legend holds that Mary Ann died a tragic death from exposure in 1867, mourned by her heroic lover. But the truth is much more interesting. It appears that she chose to leave Ward that year, and that another Aboriginal woman, Louisa Mason, was the one to die in the wilds of New South Wales. In 1867, after Mary Ann became pregnant with her last child to Ward, the couple parted ways for good. Thunderbolt famously died at Uralla in 1870, but Mary Ann far outlived her famous partner. After giving birth to at least five more children, becoming a nurse, purchasing land and marrying her longest-term partner, John Burrows, she died at the age of seventy in Mudgee on 22 April 1905.

Mary Ann’s death certificate states that she was from the Bay of Islands in New Zealand, and while she was alive, she had begun to circulate the myth that she was Māori. Here we can see Mary Ann shaping her public persona yet again. At a time when Aboriginal people were increasingly being controlled by the government and children beginning to be taken from their families (in what we now call the stolen generations), concealing her Aboriginal heritage saved her family from being so dramatically affected.

While Mary Ann Bugg lived as a bushranger for four tumultuous years, perhaps her greatest achievement was to live a prosperous, quiet life afterwards, and to cultivate a narrative that protected the ones that she loved most. Mary Ann Bugg was an Aboriginal bushranger but she was also an extraordinary woman. She was clearly far more than “the Captain’s Lady.” •

Further reading

Captain Thunderbolt and His Lady: The True Story of Bushrangers Frederick Ward and Mary Ann Bugg, by Carol Baxter, Allen & Unwin, 2011

“‘Mrs Thunderbolt’: Setting the Record Straight on the Life and Times of Mary Ann Bugg,” by David Roberts and Carol Baxter, Journal of the Royal Australian Historical Society, 2013

The post How “the Captain’s Lady” created her own legend appeared first on Inside Story.

“The way I see it at the moment,” Kidd told Pell’s counsel Robert Richter, “is that some of this publicity was designed to put improper pressure upon me.” No kidding. While the Australian media didn’t dare say anything about Pell, they desperately wanted to say something about Kidd: that the chief judge’s suppression order was ill-conceived. And they were right.

In mid 2018, Kidd banned anyone anywhere from publishing “any report of the whole or any part of” any of Pell’s child sexual abuse trials. This publication ban included what Kidd called “electronic communications,” better known as the internet. His order listed some examples of things that no one was allowed to mention: how many complaints or charges Pell was facing; what they were about; the fact that he was to face more than one trial. But the order’s actual terms covered so much more.

The media couldn’t mention any of the evidence the prosecution or defence presented at Pell’s trials, the arguments made by either side’s lawyers, any incidents in the courtroom, any decisions made by Kidd, any appeals from those decisions, any questions from the jury, any actions by court staff. Every single thing that happened in one of the most important trials in Australian history had to be top secret. Most dramatically, the entire country couldn’t be told about — or talk about — what the Daily Telegraph rightly called “THE NATION’S BIGGEST STORY”: the jury’s guilty verdict. Not until this week.

Peter Kidd has been the head of Victoria’s County Court — the Jan Brady of the state’s court system, hearing the matters that are too big for the magistrates but too small for the Supremes, especially sexual-offence cases — since 2015. Before then he had spent twenty-five years prosecuting and… prosecuting: Tony Mokbel, police killers, schoolgirl killers, war criminals. Maybe he could prosecute again? He mused about doing a “summary-type procedure” to bring Australia’s journalists to justice, allowing that he was “a little uncomfortable” acting as the media’s prosecutor, judge and jailer. “Your Honour, my preference would be for you to leave this to me,” was the diplomatic response of Victoria’s director of public prosecutions, Kerri Judd.

That was not the first or last time the chief judge has battled the press. Before Pell’s retrial, he wrote to the Age complaining that a harrowing account of a very different long-delayed sexual-assault prosecution had mentioned decisions by two judges “without any examination of their reasoning.” After journalist Richard Baker defended his report (correctly, in my view) as “factual and not critical of the judges,” Kidd complained that the Age’s subsequent apology “should have been issued following my letter to the editor.” A fortnight ago, Kidd attacked the Herald Sun for complaining (unusually) that a recent sentence had been too harsh. Having pointed out some mild errors in the details, the chief judge then went further, declaring that reporting “that omits highly relevant information, draws inappropriate comparisons and provides false information, has no benefit to the community.”

These views aren’t surprising from a judge who prosecuted during the years when Victorian courts became world leaders in suppression orders. On his appointment as chief judge, he promised he would be “a fierce advocate for judges of this court.” He kept that promise, but also a second one: “I intend to conduct trials.” As chief judge, he can decide who runs any trial, including Pell’s. He chose himself as the right judge to preside over the most high-profile trial in Victorian history.

Judge Kidd’s order was not designed, as some conspiracy theorists would have it, to protect Pell from embarrassment. Nor was it to protect the person who accused him of child sexual abuse at St Patrick’s, though his name remains suppressed and no one apart from Kidd, Pell, the lawyers and the jurors heard his testimony. Rather, his goal was to keep Pell’s first trial secret from twelve or so people: the jury in his planned second trial on totally different child sexual abuse charges.

There’s nothing unusual about an order of this kind. People are generally tried for what they are charged with doing on one occasion, not for what they may have done at other times in their lives. Ordinarily, stopping the local paper or TV station from covering the verdict in one trial until all the trials are done and dusted is an effective and unexceptionable way of keeping the trials separate. But Pell’s case is anything but ordinary.

Usually — as Kidd is wont to complain — the media, and indeed the public, has little interest in what goes on in a criminal trial. The only real story is whether or not the alleged villain is going to jail and for how long. But when famous people or crimes are prosecuted, the opposite is true. When Lindy Chamberlain, O.J. Simpson and Oscar Pistorius were tried, everyone wanted to know every detail of the evidence and events, and the media filled that public demand with blanket coverage. These cases (and their aftermaths) were also occasions for wider and very important discussions about how well the courts do their jobs and about how we should understand and talk about criminal prosecutions, all drawing on the earlier detail.

High-profile cases put the justice system itself on trial, and rightly so. How do the courts treat powerful people? Or people who complain about them? How good — or fair — are our prosecutors? Our defence lawyers? Our chief judges? Pell’s case is one of the highest-profile opportunities to debate one of the law’s toughest questions: do courts respond fairly to claims of sexual abuse? And aren’t people interested not only in whether Pell is going to jail but also in whether Australia’s highest-ranking Catholic is also its highest-ranking paedophile? Was the complaint against him believable? Was the defence compelling? Was there doubt? Or not?

This week, we are finally reading attempts to debate these issues across the media. But everything we read is written in hindsight and without the benefit of earlier public discussion. Even the longest articles compress the many weeks of Pell’s trial and retrial into just a handful of pages or paragraphs. As readers, we are wholly dependent on whatever caught the attention of the dozen or so journalists (and their editors) who sat through both trials in silence. And all the details — from Pell’s shirty responses to the police’s questions to the minutiae of his priestly robes to the arguments of famed defence lawyer Robert Richter — will be swept away in a day or two by the next story to dominate the press. Open justice delayed isn’t open justice denied, but it is open justice diminished.

Moreover, Peter Kidd’s goal in making his order, while worthy, was impossible to achieve. There is far too much interest in Pell’s case for its secrets to remain remotely secret. Yes, Australian media could be expected to obey Kidd’s order (until they didn’t), but international media are another matter altogether. As for social media, plenty of people were willing to breach Kidd’s order, out of ignorance or otherwise. I found out about Pell’s conviction hours after it happened the way many did: because his name trended on Twitter.

All the chief judge could really achieve was to keep Pell’s verdict out of the mainstream local media. In the past, that might have been enough. But today the many breaches of Kidd’s order meant that the real story was always just a web search or an overheard conversation away. Yes, the order would have assisted in finding twelve jurors willing to say that they knew nothing about the first trial or verdict. Many of them might even have been telling the truth. And some of them might somehow have refrained from googling Pell or mentioning the trial to a spouse or neighbour until the verdict was in. But what are the odds that any of them, let alone all of them, would remain spoiler-free by the trial’s end? And yet, that goal was the sole point of Kidd’s order.

We now know that, even in an imaginary world where a County Court judge could truly silence the internet, the order would still have been totally pointless. This week, all remaining charges against Pell were dropped. (If it hadn’t been for Kidd’s order, that would have been the nation’s biggest story this week.) Kidd himself ruled last week that the prosecution could not try to prove charges that Pell molested kids at a Ballarat swimming pool by relying on a separate, uncharged alleged incident at a lake. Apparently, that ruling was enough for prosecutor Fran Dalziel to drop the case altogether.

Kidd’s ruling on the evidence could have been made weeks ago. Indeed, DPP Kerri Judd asked the chief judge to do so at the very hearing where he slammed the media. His response? “No, it’s just impossible. I’m not here for a period in January and nothing will change that,” noting that Pell’s retrial (after his first jury hung) had thrown out his schedule. No doubt the judge deserved a break, but his delay (and his seeming refusal to let another judge hear the next trial) meant that his suppression order continued for weeks longer than necessary. In theory, he could have made his ruling on the evidence before Pell’s first trial began, which would have allowed it to be fully reported.

The chief judge did have room in his schedule to explain what crimes he thought Australia’s journalists might have committed. The first was that he thinks the journalists’ vague coverage may have breached his suppression order. The media, he said, “seem to be operating on a misinformed basis that it’s okay to print everything and anything apart from” Pell’s name. Kidd’s view is that you can breach his order simply by stating, as the Age (among others) did, that “a very high-profile figure was convicted on Tuesday of a serious crime.” In addition, Kidd’s view is that there is a “serious question” that journalists were committing contempt of court, “namely bringing inappropriate and improper pressure upon me to vary or revoke my suppression order application.”

These claims are adventurous ones that (once again) push at the boundaries of Victorian contempt and suppression law. Kidd was also willing to opine that “a number of very important people in the media are facing, if found guilty, the prospect of imprisonment and indeed substantial imprisonment,” words he ordered should be distributed to the media immediately. When the local media read the transcript, which included Judd musing on the possibilities of extraditing journalists, bizarrely mirroring earlier discussions about Pell himself, they all pulled their stories. Meanwhile, baffled overseas papers one by one opted to report the truth.

Now that the suppression order is gone, the media is free to report that dozens of them have received “show cause” letters from Judd, the first step in the deliberately unsettling process often used to prosecute journalists. The journalists’ lawyer claims that the letters were even sent to people who were not at work when the stories ran. I don’t blame the DPP for going over the top. Judge Kidd’s comments put her in an invidious position.

If the past is any guide, the media will apologise and the prosecutions will end without jail sentences. But I have a slim hope of a different result. Last Monday, lawyers learnt of the death of one of Victoria’s leading criminal law judges (and scourges of many a criminal), Phil Cummins. This led me to re-read one of his most celebrated judgements from two decades ago. In a literary classic of the courtroom that it is very much worth reading, Cummins narrates how a solicitor engaged a bulldozer to destroy the boundary line between his property and another that was auctioned that day. When the vendors and police arrived at the solicitor’s home with an injunction from Supreme Court Justice Barry Beach, the solicitor declared, “Justice Beach has got his hand on his dick.” Informed by the vendor’s solicitor, the Supreme Court’s chief clerk initiated a hearing on contempt of court.

Fatefully, the judge who was assigned to hear the charge was Phil Cummins. While Cummins made his contempt of the solicitor very clear, his judgement in the case was a model of wisdom. He observed that the solicitor “interrupted but did not prevent oral service upon him of the Court process. He then complied with it.” Cummins famously opined, “It may be offensive, but it is not contempt of court, for a person to describe a judge as a wanker.”

Cummins is right. Everyone has to obey the law but absolutely no one has to like it. And no one should ever be punished for saying exactly that, using whatever words he or she considers best. •

The post Pell’s freeze is over appeared first on Inside Story.

The Royal Commission into Institutional Responses to Child Sexual Abuse, set up in the dying days of the Gillard government, is scheduled to hand its final report to the Turnbull government this Friday. As well as scrutinising 1.2 million documents, the commission has held fifty-seven public hearings over 444 days. It has heard from 1300 witnesses, many of them offering gut-wrenching accounts of what they have endured, and its impact.

In private sessions, the commissioners have listened to testimony from almost 8000 survivors of child sexual abuse. On Thursday the commission’s chair, Justice Peter McClellan, will present a selection of these accounts, Message to Australia, to the National Library of Australia, where it will be publicly available.

To casual observers, the royal commission’s work might have seemed like an inquiry into the Catholic Church. Equally if not more disturbing, though, is the evidence of the sheer range of institutions that have failed children. As well as by institutions run by various denominations and faiths, children have been failed by governments of all political persuasions, schools both private and public, non-government welfare agencies, the judiciary, sporting bodies, the scouting movement and the Australian Defence Force.

Amid the extensive media coverage of the royal commission’s work, much attention has been paid to the testimony of individual victims of abuse. Institutional figures have been subjected to searching, sometimes searing, cross-examination by Gail Furness SC, the counsel assisting the royal commission. The news media’s abiding interest in the personal and the immediate, though, means far less attention has been paid to the structural reasons why institutions have failed to protect children, and why institutions have then ignored, deflected, doubted or even covered up revelations.

On these questions, the commission has much to offer. On its website are not just transcripts and lists of exhibits about each of the fifty-seven case studies, but also fifty-two research reports. Ranging in length from forty to 300-plus pages, they examine the causes of abuse in institutions, how to better identify it, the best examples of institutional responses and treatments for survivors, and how governments should respond.

Drawing on this research, we want to try to answer the question posed right at the beginning of the article. Before that, two caveats. First, it is important to remember that the great majority of sexual abuse of children happens not in institutions but within the family home, or in the community at the hands of relatives or family friends.

Second, sexual abuse of children is by no means a modern phenomenon — inquiries into child prostitution and incest were held in Sydney in the mid nineteenth century, for instance — but child sexual abuse has, in the words of Harvard University psychiatry professor Judith Herman, a history of “episodic amnesia.”

In her path-finding book, Trauma and Recovery, Herman writes that attention to child abuse and other psychological traumas has oscillated between periods of intense activity and periods of inertia. Why? “The conflict between the will to deny horrible events and the will to proclaim them aloud is the central dialectic of psychological trauma.” The study of psychological trauma also brings people ineluctably into contact with human vulnerability and the human capacity for evil.

Sympathising with the victims of a natural disaster is easy, but when people are responsible for the trauma, by sexually abusing a child for instance, those who bear witness are caught between victim and perpetrator. To sympathise with the victim we must take on part of the burden of their pain, and do something about it. But the perpetrator makes the opposite demand, says Herman, and he (it is overwhelmingly men who sexually abuse children) usually occupies a position of power and authority. Speaking out demands not only will but courage.

With all this in mind, we focus here on a particularly useful research report written for the royal commission by Donald Palmer in collaboration with Valerie Feldman and Gemma McKibbin. A professor in the University of California’s business school, Palmer drew on the knowledge he accrued studying the dysfunctional culture of the business organisations that contributed to the global financial crisis.

The first thing their report makes clear is how little academic attention has been given to examining why institutions fail children. A search of the academic literature yielded 4400 articles about child sexual abuse but only forty-one — or 1 per cent — looking at the role of the cultures of institutions.

Mapping Palmer’s framework and the existing literature onto the commission’s case studies of seven institutional settings, the report found that children in institutions were sexually abused in one of two ways. They were attacked suddenly, with little prior interaction, as the commission heard was the case for inmates at the Parramatta Training School for Girls and the Institution for Girls in Hay. These attacks were easier for the perpetrators because the girls were imprisoned and subject to their absolute authority. The second type of abuse, seemingly more common in Australian institutions such as the Catholic Church, boarding schools and sporting clubs, unfolded over time, and inevitably involved grooming and secrecy. According to Gemma McKibbin, a research fellow at the University of Melbourne, “You can’t have child sexual abuse in institutions without secrecy or grooming or both.”

Unrelenting routine and hard labour: Parramatta Training School for Girls in the mid 1960s.

With most cases of child sexual abuse taking place in the home or perpetrated by people they know, though, a third approach involves a “slippery slope of boundary violations.” Researchers say this abuse is more “haphazard” than the deliberately planned attacks commonly seen in institutions. Each time a social or personal boundary between the adult and the child is transgressed, the abuser is encouraged to escalate his or her behaviour. This is not to suggest that such abusers are any less responsible for their actions. Rather, the gradual shifting of boundaries is a variety of the grooming process.

Regardless of the pathway taken, though, the research is unequivocal: perpetrators are culpable for their actions and the children are victimised in equal measure.

Within institutions, researchers found that the perpetrators are more likely to plan their abuse carefully. Integral to this planning are the special attention, privileges and gifts given to planned victims. Critically, this grooming extends to the perpetrator’s own colleagues and the child’s parents and caregivers, and is designed to shore up his or her reputation as someone to be trusted. As a consequence, victims are less likely to report the abuse and, if they do, they are less likely to be believed.

This leads to the broader question of why child sexual abuse isn’t detected by those working in institutions, for which the research identified a series of reasons.

First, institutions’ hierarchical structures mean that they compartmentalise duties, encouraging employees to focus on efficiency rather than the merits of the tasks they carry out. This, says the report, is a root cause of “organisational misconduct,” whose most infamous expression was in the defence that they were just following orders used by Nazi officers at the Nuremburg war crimes trials.

The Caringbah Outside School Hours Care program staff handbook shows how the laudable aim of creating positive relationships between staff and children can mask grooming behaviours, making it difficult for staff to identify and report abuse. “You are doing a good job,” the handbook said, “when… your children are always hanging on you, holding your hand, or asking for piggyback rides.”

Second, so insidious is grooming that the child, by accepting gifts such as drugs or alcohol, can be accused by the perpetrator and those representing the institution as being complicit.

Third, the more status and power the perpetrators and their allies have in an organisation, the harder it is for the victim and those who observe the abuse to be heard and believed. They may even be punished by both the abuser and the institution.

The effect of this power imbalance is starkly illustrated in the case of a thirteen-year-old girl who swam for the Scone Swimming Club and was coached by Stephen Roser. His position of authority obliged her to follow his instructions when he told her to “float stomach down in the water in front of him and to wrap her thighs around his hips and stroke with her arms without using her legs”. While she was in this position he sexually abused her.

Palmer’s research found at least five other hurdles to the detection of abuse.

The first is known as “motivated blindness,” the tendency we have to overlook or downplay events that might affect us badly. This could explain why so many of the royal commission’s case studies include differing accounts of the same event. For example, a mother of a Geelong Grammar boy said she told the principal that a teacher, Jonathan Harvey, had made “sexual advances” towards her son. But principal John Lewis testified that she had only “complained” that Jonathan Harvey tried to massage her son’s thigh after a rugby injury.

The second is a variation of the first; “cognitive dissonance” occurs when staff in an institution observe behaviours in workmates that are, on the face of it, disturbing but don’t square with their existing perceptions. In these instances, Palmer says, staff either dismiss the behaviour as accidental or a one-off, or they alter their own perceptions to see the behaviour as benign or insignificant.

The royal commission heard how a worker at the Caringbah Outside School Hours Care program didn’t report her suspicions about her superior, Jonathan Lord (who was convicted of having sexually abused twelve children), because she did not feel comfortable making a complaint against a supervisor, even though, “on reflection, John did sometimes have children on his lap,” as she later testified. “At the time I didn’t think it was suspicious in itself, but I did think that it wasn’t a good look, as it made it look to the other children that he had favourites.”

Third, people have a simple desire to get along in the social setting of the workplace. This desire to bond, or “in-group bias” as the researchers call it, is the key to the fourth factor stopping the reporting of child sexual abuse. It happens when members think they are better than, or even morally superior to, those outside of their group. This is particularly evident in the Catholic Church’s belief that canon law has higher standing than the laws of secular society. It also helps explain the church’s initial belief that accusations of child sexual abuse were motivated by anti-Catholic sentiment.

Fifth, the imbalance between the perpetrator’s power and status and that of the victim and those who witness the abuse means it is less likely that the institution will either stop the abuse or report the offender.

Beyond these complex social dynamics, other characteristics of what the research report terms “total institutions” work against children’s safety. By their very nature, total institutions — of which a prison is the most obvious model — involve staff exercising total control by enforcing impersonal rules and procedures. These institutions exist in order to transform human beings.

Few institutions that care for and provide services for children have all the characteristics of total institutions. But some, such as the Parramatta Training School for Girls, the Institution for Girls in Hay, and the youth training or receptions centres of Turana, Winlaton and Baltara, exhibited most of the characteristics.

Boarding schools, especially as they existed in the period examined by the royal commission, exhibit a surprising number of these characteristics. They include Geelong Grammar, perhaps the nation’s most prestigious boarding school, which is the subject of one of the case studies discussed in the research report. (One of us, a boarder there between 1966 and 1975, can recall that the toilet cubicles in the primary school boarding house had no doors and that boarding house masters were required to watch over the boys in the communal showers each morning.)

Other organisations that care for children, such as daycare centres, sporting clubs, scout groups, schools and churches, display some attributes of total institutions: they constitute “alternate moral universes” that can hold all-embracing assumptions about human nature; they attempt to extinguish their members’ previous identities; they promote secrecy; they have unique power structures; and they have unique informal group dynamics.

All of these factors are evident in the Catholic Church, an organisation premised on the belief that each human being is flawed but capable of redemption; critically, this includes priests who sexually abuse children. Church doctrine also has its own clearly defined “alternate moral universe,” in which its members are expected to follow specific rules. Fundamental to their faith is adherence to canon law above secular law.

Following these strict rules helps the Catholic Church extinguish the previous identity of its priests by assuming control of every aspect of their lives, from how they dress and where they live to the character of their intimate relationships, as prescribed by the vow of celibacy.

The upholding of canon law also explains — but does not excuse, as the royal commission has made abundantly clear in the release of five reports about the church in the past week — the church’s practice of dealing with offending priests itself rather than reporting their crimes to the police. Among many examples heard by the commission was an account of how John Gerard Nestor, a priest in the diocese of Wollongong, was moved to another parish after offending, and went on to sexually abuse more children. Parishioners were not told of the previous crimes.

But the church’s belief in its own moral universe was also indulged by the wider community, both here and overseas. As late as 2013, in twenty-two out of fifty US states, clergy were exempt from the mandatory sex abuse reporting requirements followed by teachers, social workers and healthcare professionals.

In Australia, the commission heard that the Catholic Church wasn’t alone in receiving preferential treatment. Those in charge at the Parramatta Training School for Girls and the Institution for Girls in Hay may also have been given at least de facto protection, with one survivor saying she was told by the police, “We can’t do anything… It’s a government institution and you have been made a ward of the state and they are supposed to be the ones [who look after you].”

These institutions also tried to extinguish evidence of the girls’ pre-institutional identities by shaving their heads, confiscating their belongings and banning them from speaking to guards unless spoken to. Staff, who saw themselves as transforming lives, told survivors that they would “make you or break you” and branded them “liars.” Apart from being unable to report abuse unless directly asked by a guard, this also meant the girls were highly unlikely to be believed.

Not surprisingly, the researchers found that secrecy also plays a part in child sexual abuse in organisations that don’t have the hallmarks of total institutions, such as schools, hospitals and local organisations including boys’ clubs, sporting clubs and scouts.

There is a paucity of research into these groups in Australia, but material cited in Palmer’s report showed that senior officials of Boy Scouts of America withheld from junior staff details of child sexual abuse by other staff members. Instead, they “quietly” referred abusers to counsellors to “straighten up” and then let them keep working, which, like the treatment of Catholic priests in Australia, allowed them to abuse again.

Total institutions, and institutions sharing some of their characteristics, can have very strong informal group dynamics that may influence the reporting of child sexual abuse. Managers and staff who work for organisations that don’t encourage any discussion of sex or of the problematic behaviour of co-workers may be reluctant to report their suspicions of abuse. Co-workers in these workplaces may see any criticism, however slight, as divisive.

A draft letter written by the principal of Geelong Grammar, John Lewis, intended for teacher Jonathan Harvey, demonstrates this reluctance to discuss child sexual abuse with any real frankness. It also shows the tension between trusting colleagues and looking after children in their care:

A real problem for your continuing work in the school… is that barriers of distrust have grown up between you and a good number of your senior colleagues. Without wishing to find members in that sort of situation several house masters for instance (not just from the current group) have found themselves in situations where they are torn between the trust which they would like to exhibit in a colleague and their responsibility. Their concern is over relationships with some pupils which they do not believe to be in the best interest of those pupils…

One staff member who worked with Jonathan Lord at the Caringbah Outside School Hours Care program said she would feel uncomfortable making a complaint “because although it is really good that we have lots of friendships with the team, things always seem to get back to people even if they are not meant to.”

The researchers found this impulse to trust superiors, peers or subordinates is stronger where there is a shared professional or religious affiliation. The Catholic Church has an elaborate organisational apparatus for dealing with complaints against priests, which includes the Congregation for the Clergy. This organisation is staffed by priests and known to favour fellow priests, as it did in the case of John Gerard Nestor, whose appeal was sustained, slowing his expulsion from the priesthood.

A final important contributing factor is the informal power dynamics operating among children themselves. The royal commission heard, for instance, that when a boy at Geelong Grammar was sexually abused at least some of his peers took part or did not step in to stop the abuse.

Informal power dynamics can also make it difficult for victims to report abuse. Survivors of abuse at the hands of fellow inmates in youth correctional institutions told the commission that they didn’t report the abuse because they feared retribution. It can also stop victims reporting the abuse for years, as appears to have happened with a survivor of abuse by swimming coach, Terry Buck. The victim testified he kept silent about the abuse because Buck, a fellow coach, enjoyed the status of “an Olympian and an Australian sporting icon.”

This article has only begun to sketch the complex set of interacting social, psychological and cultural elements that have allowed so many children in so many different institutions to be sexually abused. What is important to underscore is the fact that at the centre of every instance of child sexual abuse examined by the commission is a socially sanctioned imbalance of power between the child and those charged with the responsibility of looking after them.

The flood of testimony by adult survivors of abuse over the past four and a half years has revealed many things, not least an unintentionally and bitterly ironic illustration of the original problem of power imbalance. When adults testify to their abuse, they are usually believed; when children, especially those in the care of institutions, testify, they often aren’t. Yet that is when they most need to be heard because that is when they are most vulnerable. ●

By the same authors: Creating child-centred institutions

The post Why do institutions fail to protect children? appeared first on Inside Story.

The book has been promoted as an exposé of the evils of privatisation — a “blistering indictment of the private prison system and the forces that drive it” — but there is no reason to believe that the conditions described exist only in private facilities. It is not a pretty picture. Indeed, it is a shocking one.

For the purposes of writing the book, Bauer, a long-time freelance journalist, took a job in 2014 as a correctional services officer in a privately run prison, Winn Correctional Center, in Winnfield, Louisiana. His account of his day-to-day work and interactions with its private managers, the Corrections Corporation of America, and their clientele (inmates) makes for compelling reading.

He made a particular point of using his real name when he sought employment (to avoid any suggestion of journalistic subterfuge), in the process highlighting the inadequacies of the company’s screening of applicants for the very stressful and difficult job of managing hundreds of troubled lives. His training was cursory; his pay was $9 an hour.

As it turns out, Shane Bauer is also no stranger to life on the other side of the bars. Attentive readers may recall him as one of the three Westerners who strayed unwittingly into Iran while walking the Iraqi Kurdistan border in 2009. They were arrested and housed in Iran’s Elvin prison for more than two years.

When he resigned from Winn four months later, Bauer’s first task was to write a short article for Mother Jones magazine, a left-leaning periodical widely read across America. It won him a National Magazine Award. This book is the expanded, no-holds-barred version.

Winn was chosen for very good reasons. Not only does Louisiana have one of the highest incarceration rates in the world (1052 prisoners per 100,000 population, compared to Australia’s current figure of around 220), but Winn is the oldest privately operated medium-security prison in the United States.

The real strength of the book is found not so much in the narration of the interactions that occurred between Bauer and those under his control, but in the chapters (every second chapter, as it happens) that describe the development of corrections policy across the United States following the Civil War. When the war began in 1861, the penitentiaries in Louisiana were given the job of manufacturing all manner of military necessities, including carriages, wagons, tents and uniforms. They became the largest single textile producer in the state. (Slave-owners, too, were able to make massive profits from their use of free labour to manufacture the goods required for the war effort.)

When the war ended, and slavery was abolished, there was concern to ensure that the state could continue to find profits in the manufacturing sector. The Thirteenth Amendment to the US Constitution came to the rescue. Slavery had been abolished “except as punishment for a crime.” The penitentiary was resurrected and was turned into the largest factory in the state. The slaves that had been freed were targeted for petty criminality, and now filled the cells again. Bauer describes the appalling conditions of those in captivity over the next century, as their free labour built the massive road, rail, textile and coal industries that became the drivers of US industrial muscle and economic might.

The last part of American Prison tells of the author’s post-Winn experiences: the attempts by Corrections Corporation of America to discredit his work, and the shareholders’ meetings he endeavoured to disrupt. He ventures a look at the political and commercial climate in which privatisation in American corrections now operates. He notes that when Donald Trump was elected in November 2016, and (then) attorney-general Jeff Sessions reversed the Obama-era decision to move away from private prisons, the company’s stock rose 50 per cent.

What is the privatised prison position in Australia today? Nine private prisons are currently operating in this country (two in New South Wales, two in Victoria, two in Queensland, two in Western Australia, and one in South Australia). The first, the Arthur Gorrie Correctional Centre, was established in Brisbane in 1992 on the recommendation of the Commission of Review into Corrective Services in Queensland. Businessman Jim Kennedy, author of the review, believed that privately run prisons could provide services more effectively and cheaply than state-run facilities, and that private prisons would provide a competitive challenge to state prisons if performance measures were properly contracted and operationalised.

Approximately 6400 Australian prisoners are currently housed in privately managed facilities, or around 18 per cent of the current Australian prison population (a percentage that is actually higher than in the United States). The highest percentage is found in Victoria, where around 30 per cent of prisoners are held privately. Management of private facilities in Australia is carried out by three main companies, GEO, G4S and SERCO Australia. In Victoria, for example, the Fulham Correctional Centre is managed by GEO, and Port Phillip Prison by G4S. A third private facility, Deer Park (a women’s prison), was transferred back to the public sector in 2000 following governmental concern about its management. Queensland’s newest prison, the Southern Queensland Correctional Centre, which opened in 2012, is managed by SERCO Australia. The Australian experience of privatisation, while not entirely exemplary, is more positive than the one to be found today in the United States.

Those who challenge the notion of privatised prisons, as Shane Bauer does, argue that private incarceration violates the principles of democratic governance and accountability. The political and humanitarian risks grow, it is said, as the motive of cost reduction (essential for shareholder profits) becomes predominant. And it’s true that there are recurring allegations in Australia of cost cutting, resulting in understaffing, inadequate therapeutic programs, and inadequate security.

By the same token, some commentators note that the modern state has made public–private partnerships a very common (and successful) component of state-run commercial enterprises. Others argue that private prisons can stimulate improvement of the public prison system if the key performance indicators that have been placed in privatised management contracts are applied in the public system as well.

Thus, the picture painted by Shane Bauer of the current US private prison is not one that can be placed into an Australian setting easily. By the same token, it does remind us that vigilance regarding the practices of private operators should remain a key priority of policy-makers. No prison in this country or elsewhere is an easy place to work, or to be housed.

American Prison is a solid read. What is particularly powerful is the author’s verbatim reporting of the often appalling repartee between staff and inmates and among staff members themselves, captured by a hidden microphone. Bauer has made no attempt to censor the dialogue. With most prisoners (and some staff) happy to be named, the text is as authoritative as it is raw. The book is disturbing, but gripping. I couldn’t put it down. •

The post Undercover in an American prison appeared first on Inside Story.

As Inside Story reported in September, Bourke’s Aboriginal community formed a partnership with Just Reinvest NSW, a Sydney-based body, to start the project. It had a pressing cause. About a third of Bourke’s 3000 people identify as Aboriginal, and for more than twenty years this community has had the state’s highest rates of juvenile crime and domestic violence. Old government law-and-order methods, costing billions of dollars, were simply not working.

The Bourke people called their alternative the Maranguka Justice Reinvestment Project (Maranguka means “caring for others” in Ngemba, a local language). Its underlying strategy, drawn from the Soros think tank, is that governments should stop building yet more prisons and divert the funds to community projects designed to help people stay out of them.

Five years after the Bourke project started, its dividends are proving impressive. After following its progress, the accounting firm KPMG produced a report in late November estimating a “gross impact” of $3.1 million in 2017. About two-thirds came from lower costs in the justice system, and the rest from broader savings in the Bourke region.

Even more striking were improvements in the main areas where justice reinvestment has focused in Bourke: domestic violence, juvenile crime and early childhood development. KPMG reported a 23 per cent drop in police-recorded domestic violence in 2017; a 31 per cent rise in Year 12 student retention rates; a 38 per cent fall in five main juvenile offence categories; a 14 per cent cut in bail breaches; and a 42 per cent reduction in days spent in custody.

KPMG estimates that the project’s $3.1 million economic impact was five times the $600,000 cost of running it in 2017, much of which came from state and federal government contributions. (Substantial extra philanthropic backing comes from the Dusseldorp Forum and the Vincent Fairfax Family Foundation.) If Bourke can sustain even half the economic results achieved in 2017, says KPMG, “an additional gross impact of $7 million over the next five years could be delivered.”

The changes stem from at least one key departure from the time when Bourke’s Aboriginal community was beholden to policies set by governments in faraway Sydney and Canberra. This has been the involvement of Bourke’s Indigenous community itself in guiding the justice reinvestment approach. Alistair Ferguson, a local Indigenous man, helped to create two bodies to get it going. One is the Bourke Tribal Council, which represents Bourke’s twenty-two language groups and makes decisions about strategy. The other is Maranguka, a community hub where local Indigenous officers meet daily with police to monitor any trouble cropping up with young people. The cooperation of Bourke’s police force, headed by Greg Moore (no relation to youth worker James Moore, pictured above), has been another part of the project’s success.

The KPMG report was launched at the state Parliament House in Sydney before a room of parliamentarians and other notables. They included Tom Calma, a former Aboriginal and Torres Strait Islander social justice commissioner, who was among the first to call for justice reinvestment trials in Australia. Sarah Hopkins, a Sydney-based lawyer who heads Just Reinvest NSW, told the room, “When we say justice reinvestment is Aboriginal-owned and led, we think of Tom Calma.”

Brad Hazzard, the NSW health minister, who has followed the Bourke project, said the number of Aboriginal people in prisons statewide “remains appalling.” Maranguka had shown “the solution has to be the empowerment of the people themselves.”

But the KPMG report also places the onus on governments to look at changing their approaches to locking people up. It will put pressure on them to take seriously the idea that prison money can be better spent on community-led early intervention to steer vulnerable young people away from crime. The Coalition government, for instance — to which Hazzard belongs — announced almost $4 billion in 2016–17 for what it boasted to be the “largest single prison expansion in the state’s history.”

The report offers four possible models for a “core unanswered question” about justice reinvestment: how to reinvest prison funds in Bourke and elsewhere. These include diverting savings from building fewer prisons towards preventing crime; rewarding communities for achievements that cut costs for governments; doing more to encourage communities to work on their own solutions; and encouraging seed funding from private donors to secure government grants related to crime prevention.

Alistair Ferguson missed the Sydney launch. He was busy in Bourke with Mick Gooda, another Indigenous leader and early justice reinvestment advocate. When I caught up with him in Sydney last Friday, he had just spoken to a seminar in Canberra, where the ACT government has embarked on justice reinvestment trials, and was preparing for “cross-leadership” meetings involving the Bourke project later in December in Sydney, Dubbo and Bourke.

Despite the KPMG report’s positive assessment, the Bourke project that Ferguson initiated has no plans to wind back. “It shows quite an achievement,” he says of the report. “It’s got to the point where stakeholders now have to consider where and how to reinvest.

“Who’ll take those decisions? It doesn’t mean I’ll be sitting in a dark room making nocturnal decisions about spending that money saved from the criminal system. We’ll be making those decisions as a community. It will be a case of sitting down with police, family and community services and the Bourke Shire Council, co-designing it with the Aboriginal community.”

Ferguson nominates education, jobs and vocational training among areas where prison money could be invested better. Then he spells out why governments can’t ignore the changes at Bourke: “First Nations people have provided a compelling case that this can’t be done without our involvement. What gets overlooked is how willing Aboriginal communities are to roll up our sleeves and address legacy issues.” •

The post Breakthrough at Bourke appeared first on Inside Story.

One of Mokbel’s team of barristers must have felt a little conflicted by these arguments. Ten days earlier, she had herself signed on as a police informant and was already giving her handlers information about Mokbel and his associates. “If this gets out,” she told them at the time, “say nice things at my eulogy, because I will be gone — and enjoy the royal commission.” She must have been heartened when the Supreme Court largely rejected Mokbel’s arguments. Over the next three years, she went on to meet her handlers daily, keeping them apprised of Mokbel’s planned tactics during the trial (while formally defending him) and his later plans to avoid extradition from Greece (when he thought she was providing him with free legal advice).

Lately, Ashton, who is now the chief commissioner, has had much less success making similar arguments. Since his 2015 promotion, he has spent his entire term trying to suppress a report by the state’s anti-corruption commission into the police’s use of the barrister, whom the media had dubbed Lawyer X. Last month, his final defeat was dispensed by Australia’s top court, clearing the way for Victoria’s top prosecutor to send the report to some twenty affected criminals, including Mokbel. True to Lawyer X’s prediction thirteen years earlier, this disclosure swiftly prompted a royal commission. Thankfully, there have been no eulogies for her to date, but the professional days of those who approved the barrister’s role as an informant, including Ashton himself, are clearly numbered.

The stakes are much higher than the careers of Victoria’s senior police or even the lives of the barrister and her two young children. For starters, it is certain that some of the state’s most significant criminal convictions, including Mokbel’s, will be re-examined and, most likely, overturned. Still more seriously, the royal commission will surely need to grapple with the question of how both the Bar and, especially, Victoria Police went so dramatically awry in this case (and perhaps others). The fact that both Ashton and former commissioner Simon Overland, who reportedly championed the informer’s role, both came to Victoria from the Australian Federal Police may draw the latter’s integrity into question. Both police forces are long overdue for the sort of root-and-branch inquiries into governance and culture that occurred in Queensland in the late 1980s and New South Wales in the mid 1990s.

If it were up to me, the recriminations wouldn’t stop there. I’m with Ashton, who told the media last week that he “hoped that the context in which these events occurred is not forgotten.” He had in mind Melbourne’s “gangland wars” early last decade, which he labelled a “desperate and dangerous time” where “a genuine sense of urgency was enveloping the criminal justice system, including police.” His reference to the wider “system” is key. While there is no reason to think that the courts or parliament knew of the police’s use of Lawyer X until this decade, they both played an ignoble part in allowing the Victorian public’s understandable “sense of urgency” in the mid 2000s to develop into something far more dangerous.

The High Court’s judgement on Lawyer X is a slim affair. Procedurally, it merely signalled the seven judges’ belief — reversing an earlier decision by two of them — that the fight between Victoria’s police and prosecutors was worth the court’s time. But the judgement makes up for brevity in vehemence. The justices dish out verbal blows to Lawyer X herself (questioning not only her “appalling” ethics but even her care for her children) and Victoria Police (“reprehensible,” “atrocious” and unfaithful!). Their sharpest line has a broader target: “the prosecution of each convicted person was corrupted in a manner which debased fundamental premises of the criminal justice system.” Corrupted! Debased! These carefully chosen words signal that the hard-fought drug trafficking convictions of Mokbel and his associates are already as good as gone.

The court’s anger had been clear a few weeks earlier, during another high-profile case, when five judges took the extraordinary step of permanently ending four prosecutions arising from Australia’s worst bribery scandal. Victorian courts had found that, in their eagerness to prove the allegation that executives of a Reserve Bank subsidiary had bribed foreign officials into adopting the bank’s plastic currency, Australia’s two top investigative agencies had hopelessly blurred their distinct roles. In particular, the Australian Crime Commission illegally lent its most powerful tool — its Star Chamber powers allowing anyone to be forced to confess all on pain of criminal punishment — to the Australian Federal Police and wrongly allowed prosecutors to reap the rewards. The High Court overruled Victoria’s Court of Appeal, which refused to stay the prosecution, declaring that investigators must not be allowed to think that they can violate both the law and suspects’ rights “confident in the knowledge that this court would wave through the results.”

Alas, the High Court’s approach differed in the past. In the “desperate and dangerous times” of the early 2000s, Victorian police detectives, frustrated with criminal suspects’ refusal to talk to them, devised a complex scam in which they pretended to be fellow criminals running a lucrative gang that required a full confession as the price for joining (much like the legal profession Lawyer X joined). When that alone didn’t prompt admissions of serious crimes, the police added new twists to the scenario: real officers would offer fake evidence of the suspect’s guilt, which the pretend criminals would then offer to make go away through their corrupt contacts in the force. Not one of the scheme’s targets expressed the slightest surprise that Victorian police officers would either fit them up or corruptly clear them.

Neither prosecutors nor courts stopped the police’s scheme. As the gangland war heated up, Victoria’s Supreme Court judges repeatedly allowed prosecutors to present admissions gathered from the sting, while holding their noses at some of the details. Later, halfway through Lawyer X’s double dealings, the High Court waved the confessions through, holding that “no corruption of the legal system took place” and that excluding the confessions would reward criminals for trusting gangsters and corrupt police. Their sole “cautionary note” was that such operations carry the risk of “seduction of the officers.” Just one Australian judge dissented. Justice Michael Kirby wrote:

The state is a great teacher in society. If it sets debased standards for itself, there is a risk that such standards will proliferate and result in a lowering of confidence in the state and its officials and of respect for the rule of law.

Again, the word “debased” was no accident, and neither was Kirby’s reference to the role of the state. In prohibition-era America, Justice Louis Brandeis, dissenting while the US Supreme Court waved through evidence federal agents had found using illegal wiretaps, famously called the government “the potent, the omnipresent teacher.” (Four decades later, the same court reversed its earlier ruling.)

What lessons have Australia’s top courts taught this past decade? Is it okay for police to trick a young suspect into confessing by deliberately leaving out the second half of the official caution (“anything you say may be given in evidence”)? Sure, said chief justice Murray Gleeson and justice Dyson Heydon, because “every day police officers take advantage of the ignorance or stupidity of persons whom they eventually prosecute.” Is it okay for police to supply a young suspect with a hand-picked “youth liaison officer” who was willing to pass on anything he said to his investigators? Sure, said justice Virginia Bell, because that’s no different to someone confessing all to his or her mother. Is it okay for Australian police to gather admissions from a man while he was being held and tortured in Pakistan? No, Victorian judges (eventually) ruled, but the Commonwealth director of public prosecutions could still prosecute him by using an ABC interview he gave shortly after an earlier judge allowed the prosecution to use his Pakistan admissions to convict him.

The courts’ rulings sometimes vary. Late in 2011, the High Court stopped the prosecution of the Solomon Islands attorney-general for alleged child sex offences because Australian officials connived in his illegal deportation. A few weeks earlier, Victoria’s Court of Appeal permitted the state’s trial judges to toss out evidence because of Victoria Police’s widespread practice of obtaining search warrants without actually swearing (that is, orally declaring) the truth of the affidavits they presented to magistrates. But when Tony Mokbel responded by seeking to withdraw his guilty pleas to drug offences because the evidence against him was founded on illegal warrants obtained by anti-drug and anti-gangland taskforce officers, Victoria’s parliament hurriedly stepped in. Within hours of a Supreme Court ruling on Mokbel’s application — which justice Simon Whelan said that he would have rejected anyway — parliament rushed through retrospective legislation validating over a decade’s worth of invalid search warrants.

Attorney-general Robert Clark said parliament wasn’t excusing the police’s failings, only remedying all their “grave” consequences. Victoria Police could scarcely have missed the lesson: the courts or, failing them, parliament could be counted on to make good any and all of their mistakes and misdeeds on the way to ending the gangland war. It was during this period that Victoria Police first acknowledged that its handling of Lawyer X may have been an error.

Although rumours of Lawyer X’s double dealings eventually spread throughout the police, legal, media and criminal communities, the wider public knew almost nothing about them until last week. Victorians should be well used to this situation. For half a decade or more, court orders barred local media from reporting on the gangland war or its legal aftermath, with the aim of ensuring that dozens of individual jury trials could be held with each jury supposedly oblivious of the rest. The nadir of this “don’t mention the war” phase was when the courts banished the first season of Underbelly from Victorian screens, rejecting even the airing of its first three episodes (which were confined to the 1990s), despite Mokbel being unnamed and even actor Robert Mammone’s face being pixelated.

More recently, it has been the war between police and prosecutors over Lawyer X that no one could mention. For the past two years, the courts insisted that the chief commissioner be called AB and the director of public prosecutions CD, while Lawyer X was EF. When the case reached the High Court, the registrar omitted it altogether from the court’s official monthly bulletin and took the (probably) unprecedented step of holding a full hearing before all seven judges in total secrecy, omitting even the alphabet soup from its court list. The court’s dramatic judgement was itself kept hidden for nearly a month, postponing the resulting controversy from three weeks before Victoria’s state election to one week after. Lawyer X’s name remains unspeakable until at least next year, and the more detailed lower-court judgements in the case keep appearing and disappearing from internet repositories without explanation.

Given its courts’ reputation for suppressing anything and everything, the fact that all of this has happened in Victoria is no surprise. No one questions the importance of the orders’ purpose — fair hearings for alleged criminals and protecting the lives of Lawyer X and her kids — but their effects are another matter. Only the courts seem to believe that their lengthy ban on discussing the gangland war somehow caused Victorian juries to forget the war’s events and the criminal records of its participants. Indeed, the ban on Underbelly guaranteed widespread interest in the show, which was estimated to have reached a quarter of the population in the form of unpixellated bootlegs of the DVDs. Likewise, thanks to what is said (and never denied) to be the leaking of Lawyer X’s identity to the media in 2014 — simultaneously the greatest scandal of the Lawyer X story and the main reason we know about it — her informing has been widely known to her clients for years.

The courts reveal the pointlessness of their own orders whenever they are asked to consider the consequences of their own failure to suppress any secrets. When he ruled on yet another attempt by Mokbel to avoid prosecution in 2009, justice Stephen Kaye decided that the showing of Underbelly came at no great cost to Mokbel because the series portrayed everyone — including his alleged murder victim, Lewis Moran, and the anonymous chief prosecution witness in his trial — in a negative light. Anyway, he opined, media coverage rarely stays focused on anything and much of the publicity Mokbel received was due to his flight from justice three years earlier. More recently, Victoria’s courts were likewise sceptical of the risks of publishing Lawyer X’s identity to criminals who everyone agreed already knew about it. The judges were rightly dubious about claims by Victoria Police that gangland criminals would be loath to execute an alleged double agent until officials confirmed her role. Indeed, why would Mokbel and others try to kill her at all, given that she is now their latest and best chance for freedom?

While suppression orders are often ineffective at achieving their stated goal of keeping dangerous secrets from jurors or criminals, they are effective at keeping them off newspapers’ front pages. And that means that police officers contemplating improper deeds can rest assured that any significant consequences — in the form of the detailed media investigations of their role that prompt governments to order official inquiries — will be many years, perhaps decades down the track. By that time, the police can claim, as Ashton did last week, that the problems revealed are from a past era about which the proper lessons have been learnt. Never mind that Ashton himself was at the centre of those past scandals and was promoted in 2015, without his role being known, to a position that allowed him to fight to keep it secret.

Very occasionally, the courts reflect on their own role in the debasing of society. Justice Kaye, while hearing evidence from Mokbel’s lawyers about the publicity in his case, was shocked to learn that the Supreme Court itself was displaying an article detailing the defendant’s background outside its ceremonial courtroom, as part of an exhibition titled “Ned Kelly to Underbelly.” Kaye reflected that “it is appropriate that I note that the lapse from the high standards, by which our society has traditionally protected the presumption of innocence, has become so endemic, that an instance of it occurred in the building in which this court seeks to uphold the fundamental rights of the citizen.” But like so many of his fellow Victorian judges, Kaye drew precisely the wrong lesson from these events. In performing their role as “the great teacher,” Victoria’s courts have never been consistent, much less effective. Rather than being potent and omnipresent, their lessons have been too little, too late and, all too often, mixed. If even judges fail to learn the right lessons, then more scandals will be inevitable. •

The post Don’t mention the law appeared first on Inside Story.

Having pulled up, he opened the door to get out. At that moment, someone walked around from the back of the car and shot him in the head through the open door. A second or two later, the assailant shot him again. Many detectives regarded this second shot — the “double tap” — as a clear sign of a professional hit (though some of the same detectives later insisted that it was the sign of an amateur). No one saw the murderer, or could provide any evidence of how he arrived, where he hid, or how he departed.

Thus began a six-year investigation of the death of the most senior police officer ever to be murdered in Australia — an investigation that the government promised would be unsparing of resources and determination. It would be six years before a suspect was put before an ACT Supreme Court jury. After a six-month trial rendered farcical by the defendant’s refusal to cooperate, persistent sacking of counsel and failure to participate or cross-examine, that man was convicted of the crime. The judge, and the prosecution counsel, plainly believed that the defendant’s shenanigans were a put-on, designed to cause the trial to abort, rather than evidence of mental illness. Still insisting on his innocence, he was sentenced to life imprisonment in late 1994.

It was not until 2014, after a sequence of virtually nonstop litigation up and down the judicial system, that the accused — a public servant named David Eastman, who was said to bear a grudge against Winchester over his refusal to intervene in an assault prosecution — was released after an independent inquiry found the trial to have significantly miscarried. In particular, the inquiry found, the defence had not been shown important evidence that tended to undercut significant prosecution evidence, and especially the findings of international forensic experts. A second trial, which ended last week, acquitted Eastman of the charge nearly three decades after the murder.

Much of the key scientific evidence at the first trial — not least the evidence linking gunshot residue found at the death scene with residue found in David Eastman’s car — was comprehensively discredited, as was the witness presenting it. That witness had massively overstated his qualifications, had displayed a marked tendency to play the advocate rather than the detached expert, had failed to follow scientific protocols, and simply could not have done some of the tests he had claimed. Nor had the jury been told that he had been dismissed from the Victoria Police Forensic Science Unit for misconduct.

I remember the night of the murder well. I already knew virtually all of those who were to become players in the case (apart from the civilian witnesses), including the lawyers. I was then deputy editor of the Canberra Times, but sitting in the chair because the editor, Crispin Hull, was on leave. I had presided over the paper’s daily news conference and then returned for dinner with my family. At about 9.15pm, Peter Mayoh, a journalist given to casual monitoring of the police radio, rang to alert me to an incredible hubbub on the air and the likelihood that something big had happened in Deakin, a prosperous suburb in Canberra’s inner south. A few minutes later, he rang again to say that a cop had been shot, and it looked as if it was Col Winchester.

I decided immediately to go back to work and, by whim, drove in via Deakin, where I saw police beginning to erect barricades. By 9.45pm I was at the paper, where we hurriedly decided to undo four pages, the first of which, under the new production schedule, would contain an obituary of the murdered man. Since I had known Winchester for more than twenty years — and indeed had interviewed him only a few weeks before while sitting in for Pru Goward on the local ABC Radio morning program — that was a task I took on myself. As I began ringing senior police I knew, in those days before mobile phones and texting systems, I discovered I was well ahead of the Australian Federal Police communications network: for a number of high-ranking AFP officers, the first news of the event came from me.

Winchester, born in Captains Flat in the NSW Southern Tablelands, had started out in the Australian Capital Territory Police, where he had become a detective and later the organiser of detective training. The ACT Police, and particularly its criminal investigation division, was a tightknit group without a lot of serious crime to investigate or prevent. By 1989, it had expanded with Canberra itself, which had grown from a large country town to a city of about 250,000. Ten years earlier, the federal government had amalgamated the ACT Police with the Commonwealth Police — the force that dealt with national crimes against Commonwealth laws, such as welfare and tax fraud, and guarded Commonwealth buildings — and the criminal investigation units of the Customs Service.

The creation of the new AFP had not been popular with the local police, many of whom thought Commonwealth Police were not real cops — primarily because they had not started off on the beat or enforced the ordinary law of the land, from murder to traffic control. They called the Commonwealth Police “plastics,” and for years the tribal division and mutual resentments of the two forces poisoned effective police operations as well as personal relations at all levels within the new force. Journalists who associated with one tribe or another received generous tips about the incompetence, mismanagement and blunders of the other. I myself benefited from a good many tips about the Greek social security conspiracy case in the early 1980s.

Tribal loyalties are one thing — and Winchester never lost those — but for a smart and ambitious officer the new force provided professional opportunities, not least because the AFP aspired (as it still does) to become an elite national crime-fighting force along the lines of America’s Federal Bureau of Investigation. Winchester was only one of a number of ACT officers who grasped the opportunity, and within a few years he was directing the AFP’s national crime operations, particularly those targeting drug offences. It was not without its challenges. The AFP had undoubted jurisdiction over illegal drug importations, but its role and powers in domestic drug matters — say the growing of large-scale cannabis crops in New South Wales or Victoria — were more ambiguous. So the force tended to mount combined operations with other forces, often with a very suspicious eye, given the evidence that many state police had been corrupted by the drug lords and were sometimes tipping off about impending raids, checking the credentials of people who were in fact undercover officers, or otherwise not doing their duty.

Winchester oversaw most of these operations, and in one case became directly involved himself after being approached by a Calabrian man of dubious reputation who offered him $20,000 for turning a blind eye to a planned cannabis crop near Bungendore, not far from Canberra. Winchester pretended interest, took the money, and recorded the conversations. But he was being the clever cop, not the bent one, and the money and the recordings went into a police safe. For a while, Winchester was the liaison point between his contact and ten relatively senior players in the ’Ndrangheta organised crime outfit, in an operation disclosed to, and to an extent shared with, the NSW Police.

But he soon passed on the monitoring of what was going on to other AFP officers (all former ACT officers now in national operations). Alas, the operation never quite lived up to its promise, partly because strangers (to the ’Ndrangheta at least) stripped some of the crops, and partly because Victoria Police carried out some premature arrests once product was sent to (and intercepted in) Victoria. Eventually, the AFP and NSW Police moved in and arrested the eleven principals, including the person who believed he had successfully bribed Winchester.

That man and the other ten accused, all of whom believed that the cops had been squared at the highest levels, were pretty angry. Their case was due to start in Queanbeyan Court about a month after Winchester was shot, but it never did proceed, if only because the intermediary, who appeared to have been playing both sides against the middle, welshed on his promise to give evidence, believing that Winchester had been executed for doublecrossing the venturers. As it happened, the prosecution had not been planning to put Winchester forward as a witness in that case, but Winchester had been subpoenaed by some adventurous defence counsel in the hope that they could suggest that his leading the men on amounted to some sort of illegal entrapment.

In due course Winchester, now at assistant commissioner level, was announced as the new head of the AFP’s ordinary policing in the ACT. It was the equivalent of being commissioner of the force from which he had come, and was perhaps the more exciting because the ACT, which had been governed by federal ministers, was soon to get self-government. It would be a part of Winchester’s functions to settle the terms on which the AFP would “subcontract” AFP functions to the new territory government, how it would be paid for, and how powers and responsibilities would be split.

It was like old times week: a good many former ACT Police, including many detectives, had never shifted out of ACT functions, though most new recruits were getting their initial training in ACT matters before being transferred out to national operations. Not many established AFP officers without an ACT Police background were transferring in: the ACT part of the force was becoming more inbred and, because it was losing its best and most ambitious officers, was to a considerable degree dumbing down. But many top managers were reluctant to intervene because they feared the impact on morale among ACT officers, who were regarded as poor cousins. This tension would have a major effect on the Winchester murder investigation, and inhibit intervention against its management even when it seemed clear that things were going awry.

Within an hour of the assassination, most of the old ACT detectives had arrived on the scene. All were deeply upset by the loss of their boss, a man who had long been their mate. No one was doing much detecting or taking charge, and scene-of-crime officers, trying to clear the area so as to preserve any evidence, were told rudely to piss off. Outside lighting was ordered, but from the water police rather than the scientific squad. Some of those present were drunk. A number opened the car door and leaned over the dead body; the Victorian scientific expert plonked his fingerprints on the roof beside the door. The two most senior officers at the scene, commander Lloyd Worthy and superintendent Ric Ninness, both Winchester protégés from the early 1970s, presided over the grief and the emotion and drama from beside the car door and near the body. Someone who was there told me that when, much later, he saw the wake scene in the American TV series The Wire, it all came back to mind.

Strictly, the murder was an offence against ACT, not Commonwealth, law and therefore sat within the jurisdiction of the ACT branch of the AFP. For comity, as much as anything else, they were left in charge, even if the senior commissioner decided that there would be two separate taskforces: one to investigate any evidence suggesting that the murder was the work of organised crime, and the other, under ACT detectives with ultimate authority over the national investigation, to look at local motives and suspects.

As it happened, detectives decided within an hour of the murder to look at the movements of a former detective who had left the ACT force in an orgy of recrimination against his old friends and colleagues, and violence against his wife. This man, now an alcoholic and sometime taxi driver, was soon located, and had an excellent alibi. He was subsequently to be a very good source on some of the dirty secrets of ACT policing.

In the immediate aftermath of the death, it was widely assumed to be a hit by an organised crime organisation, and probably the ’Ndrangheta. But other theories were being discussed, including the possibility that it could have been the work of a cop, whether of the AFP or elsewhere. On the day of the funeral, I saw most of the AFP’s ACT detectives peel off and stand in a circle outside the side door of St Christopher’s Cathedral. I walked down there myself, as did the former detective with a grudge against his mates. Most were lost in thought, but one grunted at me and asked what I thought. If I were investigating, I said, I wouldn’t neglect to consider the possibility that it was one of the people in the ring in front of me. A couple of the detectives nodded, and they knew I was not referring to the black sheep. (I no longer believe the rogue cop theory.)

Soon after, one of the most senior officers present was to become the subject of allegations on Four Corners. Though he was cleared, he was removed from the investigation. For me, the extraordinary thing about the program was not what was said about his personal behaviour — the nub of the report — but the disclosure that the detective had unwisely and unprofessionally removed Winchester’s keys from his suit in the immediate aftermath of the murder and travelled alone to police HQ to search Winchester’s office looking for possible clues.

That was to be only one of many irregularities in the case. Few arose from malice or from any intention to frame an innocent suspect; a good many arose from ignorance and arrogance, and some from a bullying mentality and a pronounced aversion to any form of accountability. And others arose from tunnel vision or confirmation bias: the tendency to seize on any evidence which tends to support one’s theory, while ignoring or discounting anything that didn’t.

It’s important to remember that investigating murders has never been the AFP’s long suit. As a general rule, it only gets a chance at these investigations in the ACT, because murder elsewhere falls within the province of state or territorial forces. The ACT division of the AFP has many unsolved murders on its books. The national division’s remit — whether against terrorism or drug importations, internet paedophilia or fraud on the taxpayer or the tax office — means it has little experience of common or garden crimes of violence, up to and including the taking of human life. That the ACT is generally a fairly sleepy jurisdiction, without a big underclass and with fairly low violence rates, might help explain why AFP investigations into murder so often come a cropper. It might also explain the quality of the detecting.

There would be at least five more people alive today if the AFP had been up to the task in the 1980s, the decade that culminated in Winchester’s death, the investigation of which was cocked up by some of his closest friends. In late December 1981, for example, a car ran off the Monaro Highway and into a tree, just inside the ACT. As the driver, only slightly burnt and injured, told it later, he had been blinded by the headlights of an oncoming car and had hit the tree at about seventy kilometres per hour. He was flung from the vehicle, but, worse, the car almost immediately caught on fire. He described the screaming of the two passengers, one his girlfriend, aged seventeen, and the other her sister, fourteen, who were incinerated to the point that initially their bodies could not be removed from the car.

There was a desultory attendance by a police doctor and detectives, but they readily accepted that it was an accident. It was the Christmas break, after all. Traffic police bought the story told by the “survivor” holus bolus, and prepared a report for the coroner. The ACT’s coroners have a habit of playing things passively, and the one who had a look at these reports had no obvious reason to go beyond the material gathered by police.

It was not until Allen Thompson, the man who had escaped with minor burns, shot dead the third of the Milosevic sisters, three years later, together with her husband and their two children, that the sharp eye of the cops, and a bit of a prod from the local media, recalled the two bodies in the car. An exhumation took place. X-rays revealed bullet holes in each of the skulls, as well as evidence of severe head injuries — so bad, in fact, that the pathologist could not be sure whether the girls had died of broken skulls, or rifle shots, or both. Some further follow-up discovered how cursory the initial investigation had been. Despite the movies, cars don’t much catch fire on impact, and this one hadn’t either. The girls had been burnt to char by the intense heat of a can of two-stroke oil and petrol, ignited after a low-speed collision with the three.

Allen Thompson is still serving six life sentences for murder, but it might have been only two had police, and doctors, done their job with the first murders. The incompetence and mismanagement of the affair was much noted — and even complained about by some detectives. But if there was any sort of internal AFP investigation into what went wrong, or punishment for the slackness and neglect of duty by those responsible, or search for lessons that might be avoided on future occasions, then the public was not let in on the secret.

A year or two after the deaths of the two girls, the naked body of a young woman was found in the table drain of a dirt road heading away from Canberra into the Brindabella Valley. For months, a determined police effort — extending to the preparation of anthropological likenesses of her head exhibited at the Canberra show — failed to identify her. To a number of people, she seemed to resemble a Canberra mother of three, Debra Bush, who had been reported missing some time before. But police were dismissive. First, pathologists’ examinations, in both Canberra and Sydney, had declared that the murder victim had never had children: Debra Bush was a mother of three. Second, Debra Bush was about eighteen centimetres taller than the unidentified body on the slab.

Finally, though, a witness was insistent enough that police checked. After it emerged that they had mismeasured her, more evidence revealed that the deceased was in fact Debra. A cop who was to be central to the second round of Thompson murder investigations, and later to the Winchester inquest, went to visit Ian Bush, Debra’s husband, who fairly quickly admitted having strangled her in a fit of rage after she had taunted him, he said, about an affair with another man. (There was no evidence of such an affair.) The detective tended to believe the man, who was convicted only of manslaughter and, partly because of the sympathy he seems to have inspired, was sentenced to only five years in jail. Ten months later, Ian Bush was free on licence.

While in jail, Bush had become friends with a woman he married shortly afterwards. Although a child was born, the relationship did not last long, and the woman went back to a relationship with a previous boyfriend. Then Ian Bush killed the boyfriend, and very nearly strangled his estranged wife to death.

I had begun my journalistic career in Canberra and — perhaps as a result of my editor’s sense of humour (he was well aware that I had frequently been arrested by ACT Police as a Vietnam-era protester) — I was assigned police rounds as my first job as a cadet. Later, I was a court reporter and saw many of the local officers in action in the courts. By the time of the Winchester case, I had known for many years most of the detectives who played key roles in the case. Most of my dealings with them were during the golden age in which journalists had fairly free access to police and to crime scenes, and were trusted, on their individual merits and senses of discretion, with insights into police thinking, or with information or material still being withheld from the public.

These days, police public relations apparatuses try to prevent contact between journalists and line officers, insisting that all information passes through their hands. Access and information is used for reward and punishment; and a major purpose of the system is to glorify and add to the political influence and public reputation of senior officers — or only the most senior officer, under some commissioners — and to market police generally as wonderful folk. This process creates distance between police and the community — a distance not helped by police access to new, impersonal tools of detection such as the bug, the phone tap, passive and active surveillance, and DNA testing.

Thirty years ago, scientific evidence was in its infancy, and catching criminals depended much more on finding witnesses and manually checking information, along with patience and shoe leather. And, of course, some intuition and luck.

The enormity of the Winchester murder and the resources made available to it suddenly saw a big jump in the amount of forensic evidence available. But most of the AFP detectives were hardly prepared for it. They had a scientific squad, of considerable competence if not size, but, as events were to show, little capacity to control a crime scene, to maintain continuity of possession of exhibits, or even to prevent cross-contamination of evidence. While it was the work of the Victorian “expert” that was eventually discredited, some of the assumptions of the AFP experts were also open to controversy.

Some neat work, for example, was able to show that two empty shells found trodden into the lawn (after the detectives’ orgy) had been fired by a particular gun. The gun, never located, had been test-fired at a quarry near Canberra, and shells found there matched those at the Winchester house. But no one made any effort to establish that this was the gun containing the bullets that killed Winchester. Indeed, many who have looked at the evidence suspect that another gun, probably a pistol, was used. It, too, has never been found.

The national inquiry soon gathered a good deal of intelligence showing unusual activity within the ’Ndrangheta before, during and immediately after the murder. There were reports of hitmen departing Italy, advice from Italian police and magistrates that it was almost certainly a ’Ndrangheta job, and an array of intercepts capturing a difficult-to-interpret Calabrian dialect referring to a traitor getting the bullet. Some of the evidence came from secret informants with extraordinary access to top crime figures, which was one of the reasons that the prosecution was able to secure a finding of Crown privilege over their reports.

During in-camera hearings over several days of the second Eastman trial, jurors were told some, but not all, of the national “case” and the sources of it. This was put by the defence in support of “an alternative hypothesis.” It was not, of course, Eastman’s job to prove that someone else in particular had done the murder. But showing evidence of an alternative possibility — something that had not happened at the first trial — undermined the argument that all of the evidence pointed in one direction only. If an alternative hypothesis was tenable, it could create a reasonable doubt.

Within a week of the murder, however, the lead local investigator had developed a strong hunch that Eastman was the murderer. The ACT investigation focused on this possibility, bugging his flat and instituting twenty-four-hour surveillance. Eastman was just one of a number of local “nutters” who had been marked as having clashed with Winchester, but he had attracted attention from the start when he was vague about his movements in an interview with detectives the day after the murder. It later emerged that a reason he might have been vague was that he had visited a prostitute that night. He had visited her perhaps an hour after the murder, but she thought his demeanour quite normal.

Eastman had come to police attention as a person with a fairly obvious mental disorder, given to becoming angry and threatening whenever those with whom he was dealing refused to go along with him. He was a brilliant man — on paper, far better educated and cleverer than any of the detectives — but, if he could be articulate and polite on a wide array of ordinary subjects, he was almost incapable of any sense of proportion or judgement where his own interests were concerned. He would become angry and emotional, would often make violent, abusive and extravagant threats (although he never carried them out, however much he might frighten the objects of his ire) and was astonishingly persistent. There were nights when he was ringing and abusing fifty different people, generally journalists and bureaucrats. His notoriety, and the fear and loathing this had excited, were to work against him. I remember writing at the conclusion of the trial in 1994 that the case against him had not been established, and that it was possible that a serious miscarriage of justice had occurred. “You could be right,” the secretary of a Commonwealth department rang me to say. “But surely you must agree with me that even if you were, it wouldn’t be the greatest miscarriage of justice that has ever occurred?”

In the years before he became a suspect, Eastman was thought by psychiatrists to have been both schizophrenic and paranoid. When he became a suspect, detectives consulted a Sydney psychiatrist, who, on the basis of statements by others and some observations from afar, thought Eastman dangerous to others but not, as such, mentally ill. He gave police tips on how to deal with him. We still do not know how much the police tactics followed that advice, and how much was of their own invention, but the detective squad then embarked on a program of making Eastman’s life miserable in every imaginable way. The theory was that if he was harassed enough he might snap, and do or say something pointing unequivocally to his guilt.

Thus, he was openly followed, usually very closely. Those following him made constant speculations about his sexuality, suggesting homosexuality with a focus on boys. He would frequently receive harassing phone calls from detectives, often when they were drunk. One of those shown to have been involved later became commissioner of another police force. Although Eastman said he was not prepared to submit to a police interview, he was often confronted and invited to come to the station. At the 2014 inquiry, Eastman’s lawyers told of drunken abuse by Ric Ninness. Other people who had befriended Eastman — in part because police harassment had been obvious — would receive police visits warning them that they were at physical risk from him.

Eastman complained, loudly and in every quarter he could. The Canberra Times frequently reported on instances of the harassment, often with photos. But judges and magistrates gave every indication of indifference, and tended to regard Eastman’s complaints as efforts to distract from the main issues at hand. As they refused to deal with his allegations, he would become more irate, and often abusive. His lawyers would counsel him to ignore the slight, and often failed to follow his formal instructions to raise it because, in their professional judgement, that would work against him. That, in turn, would create conflict between Eastman and his counsel, leading to sackings, the need to brief more obedient lawyers and, later, further conflict. These clashes, moreover, alienated jurors, judges and observers, and, I am convinced, helped cause his conviction first time around.

In jail, he was unpopular with guards and prisoners alike, and often in isolation for his own protection. The prisons commissioner in New South Wales proclaimed his detestation of Eastman, and his public relations officer frequently put out stories about Eastman ahvong refused to undertake “dirty jobs.” Later, ACT prison authorities were sometimes more kind, even if they constantly adhered to the view that Eastman was manipulative and that taking up his cause was a sign of falling under his influence. By the time Eastman was released, aged sixty-nine and after nearly twenty years of very-hard-served porridge, he was calm, in control of himself, and slow to hate his persecutors, even as he retained a very sharp feel for the facts and the arguments. The latest trial was entirely without any outbursts; he comported himself with complete dignity.

I had long agitated for a new trial. While I was doubtful that Eastman “did it,” I always allowed for the possibility that he might have. What disturbed me was that neither the inquest nor the first trial ever got to first base in proving his guilt beyond reasonable doubt. Police intuition of guilt is not a substitute for compelling evidence. Nor does it ever justify misconduct, including harassment.

An inquest had committed Eastman for trial, having earlier concluded that there was no prima facie case against him. The new evidence, and the committal, came after the Victorian scientific expert claimed — falsely, we now know — that he could link gunshot residue from the death scene to residue in Eastman’s car. That was, we now know, simply not true. The police case also involved a degree of perverse argument. A Queanbeyan gun dealer who had sold what police claimed was the murder weapon insisted that the buyer had not been Eastman. He was interviewed again and again, but did not change his evidence. Later police decided that this man did not like police or the idea of dobbing anyone in. Ergo, he was lying, and therefore it had been Eastman who had bought the gun. This theory had been arrived at before the gun dealer died, and before police “discovered” a witness who had previously sworn that he had not seen Eastman when he had visited the dealer. During a police fishing club trip, though, this man, a friend of Col Winchester’s brother, volunteered to a detective that he had seen Eastman but had been afraid to say so, for fear that Eastman might harm him or his children.

It is sometimes suggested in murder cases that detectives have some piece of evidence, unfortunately inadmissible in court, that makes guilt plain. It has been hinted by some people since Eastman’s ultimate acquittal that both prosecution and police “know” he is really guilty. But there is no such evidence, and the most that can be advanced are some extravagant Eastman statements that prove nothing. He was not on trial for being unpleasant or difficult to deal with, and if rhetorical threats to kill are evidence of having done so, or having the intention to do so, it is very surprising there are so few dead bodies around.

It is always easy enough to adopt the cause of a middle-class citizen without an enemy. The true test of a justice system is how it treats the unpopular, the mentally ill, the inarticulate, the Aboriginal, and the person who is prickly and angry, particularly in relation to the police, but perhaps also at the court itself. It is a sorry commentary, that police and justice processes entirely failed Eastman and put many of its ordinary shortcomings in clear relief.

But there’s another worry. The murder of Winchester was an outrage. The investigation was the most extensive and intensive and expensive in history. But the prosecution failed, mostly because of failures by investigators and prosecutors. If this is what happens in a show trial, where no expense has been spared, what is the citizen to think might happen in an ordinary trial?

There are several fears beyond that. Winchester’s murder took place in another time. Almost all of the police involved have long retired, and some are dead. The AFP has new targets, not least terrorism and, at least for public relations purposes, its crusade against internet grooming. Scientific aids to detection— surveillance, access to records, and the testing of materials, DNA and fingerprints — have become far more sophisticated. The creation of a mass surveillance national security state has given police new powers for the collection of evidence, and fewer protections for the citizen; given to save us from jihadists, the new tools have promptly been deployed by police in even minor criminal investigations.

But it is wrong to think that the deficiencies of the Winchester investigation could not happen now. Its DNA still runs through the AFP — amounting almost, to mix the metaphor, to the AFP original sin. If anyone wants an example, look at the incompetent and unprofessional investigation, from the top of the AFP down, when Muhamed Haneef was accused of terrorism. Until the public, the AFP, the prosecutors and the judicial system closely review what went wrong in matters like the Eastman case, we are doomed to umpteen repeats, and quite possibly a complete collapse of confidence in the supposed guardians of law and order.

But don’t hang about waiting for such an inquiry. The AFP is the only Australian police force to have avoided external inquiry over the past forty years. Its masters know how to play politics and how to avoid accountability. For nearly three decades, they have seen no need to look again at how they managed the Winchester investigation, and have no desire to do it now. It was for this reason that the second, failed, prosecution of Eastman involved no fresh evidence and no re-examination of materials based on the latest techniques rather than those of 1994. It failed, as it deserved to do, both because of its inadequacy and because of mismanagement, incompetence and misconduct.

The AFP doesn’t do retrospection. Looking back and reviewing things is often confronting, and may involve admitting errors or facing up to an injustice. The AFP has trouble enough having an open mind at any time, but once a matter is concluded, eyes are certainly shut. Its reluctance to look back invites questions about how it faces the future. •

The post Reasonable doubts appeared first on Inside Story.

The contrast between Thomas’s two Gold Walkeys goes well beyond their medium. Thomas’s first win was founded on his prescient argument that federal authorities’ case against Dr Haneef was shaky. Mundane behaviour on his part — giving his British second cousin his mobile phone when he moved to Australia; seeking to fly urgently to India following his wife’s difficult delivery of their child; taking a snapshot of a Gold Coast high-rise — was treated as damningly suspicious. The police and prosecutors, Thomas argued, were too quick to detain, too quick to charge and too open to political pressure. And journalists were too willing to accept the police’s (false) leaks and too slow to engage with the real heroes, Haneef’s lawyers, who risked professional criticism by leaking the police’s scattergun interrogations of Haneef to Thomas and winning their client crucial public support.

The 2007 Gold Walkley united the fractious media in praise, guaranteeing Thomas’s place in the Australian journalism pantheon. It also did much to bolster the Australian’s reputation as it geared up for Labor’s years in power. Most importantly, the articles permanently pricked the credibility bubble of Australia’s counterterrorism agencies.

Ten years later, Thomas’s hit podcast couldn’t be more different. In an early episode of The Teacher’s Pet, Thomas tells us of a man “who murdered his wife to be with his new lover” — pause — “according to NSW detectives and two coroners.” That man, former high school teacher Chris Dawson, has never been charged, let alone convicted, of anything. According to Thomas, the police (in the early years) and prosecutors (throughout) were too timid to bring him to justice.

Dawson insists that he had nothing to do with his wife Lyn’s disappearance in early January 1982, but Thomas believes that Dawson’s sexual misconduct with a teenager at his school — the eponymous “teacher’s pet,” the couple’s babysitter and later Dawson’s wife and ex-wife — says otherwise. Thomas’s view is widely shared by other journalists who have covered the case, as well as by a bevy of investigators, relatives and pundits and, now, by the millions of listeners to his podcast. While plausible, there is hardly any evidence to support it.

Instead, The Teacher’s Pet is largely an attack on Dawson himself. It details claims that he abused his first two wives both physically and emotionally; uncovers a handful of alleged lies and some possibly odd remarks about renovations at the former matrimonial home; and recounts increasingly lurid tales of sexual misconduct by Dawson, his twin brother (who is also said to have slept with the babysitter) and other teachers in Sydney’s Northern Beaches. Its centrepiece is a “long lost” handwritten statement (supplied mid-broadcast by an “unlikely source”) that Dawson wrote for police after he reported his wife missing in mid 1982. The statement made no mention of his relationship with the babysitter, and Thomas thinks that the only “really credible explanation” for why a schoolteacher would fail to tell police that he was “utterly infatuated” with one of his students is that he was covering up his wife’s murder.

As admissible evidence goes, the podcast’s case is even less compelling than what the federal police thought they had on Dr Haneef. As for wider lessons, all Thomas can offer is a poignant but unsurprising reflection on how few people took domestic violence or sexual misconduct seriously in the early 1980s.

The Teacher’s Pet falls squarely within the pattern of true crime podcasts in Australia. The new genre owes its massive popularity to a This American Life spin-off, Serial, which in 2014 pioneered and exemplified the merits of a deep dive into a single criminal case through the medium of podcasting. Like many overseas hits that came after it, Serial was an investigation of a case that had already been through the criminal justice system and had landed a man in jail for life. It explored the evidence in the case afresh and challenged both the official verdict and the process that led to it, while maintaining that the real truth about the case is largely unknowable.

To date, no Australian podcast has taken this approach. Rather, nearly all have probed unsolved cases and argued that the authorities have failed to investigate obvious suspects adequately, be they rich boyfriends, local thugs, molesting priests or dodgy teens. The best American podcasts involve years of fieldwork: the crew of the In The Dark podcast’s second season, for example, located, combed through and followed up thousands of dusty court records in Mississippi to demonstrate a local prosecutor’s racial bias, evidence that prompted a Supreme Court review. By contrast, many Australian podcasts draw heavily on the work of coroners, combined with lengthy interviews with grieving relatives, retired cops and lawyers, and the windfalls of “shaking the tree” to see what emerges after the podcast’s first couple of episodes.

The path to The Teacher’s Pet was laid a year earlier by Trace, the ABC’s first true crime podcast and the first Australian one to become a talking point. Its stunning first episode details how, one morning in mid 1980, Maria James cried out and then went silent during a phone call to her ex-husband. He raced to her suburban bookshop and discovered his wife’s bound and stabbed body, as the culprit fled the scene. The investigation’s former head tells reporter Rachael Brown of multiple persons of interest — an ex-lover with an alibi, a loner with blood-stained trousers, a crush who suicided days later, a garbo who fancied her, a family friend later imprisoned for paedophilia — but she devotes the bulk of her podcast to two local priests, who were later credibly accused of child abuse and have since died.

Brown’s theory, that one of them killed James to cover up their abuse of one of her children, had some support from the evidence in one of the child abuse cases (albeit from decades-late-emerging witness accounts whose credibility she never questions) but none from the other. In the third episode of the original four-episode run, Brown airs a bizarre theory that the priest was secretly a ritual serial killer whose many murders are wholly unknown to authorities. In short, her investigation went off the rails.

Brown’s motives only become apparent when she belatedly tells viewers of her bond with James’s two children, who believe their mother was killed by a priest, and of her goal of giving a voice to them and to victims of institutional child abuse more generally. “How do you remain independent as a storyteller, and not an activist?” asked fellow ABC reporter Will Ockenden in an interview on the ethics of podcasting. “It’s not my responsibility to solve this case,” she replied. “That’s others’ responsibility.”

Trace’s sole claim to actual investigative impact was that it prompted the police to review the file and realise that a DNA sample they thought was the offender’s was actually from another case altogether. But this was a serendipitous finding that Brown never anticipated. Indeed, she spends part of an episode mulling over how to obtain DNA from one of the dead priests, though she later added new episodes speculating that the mix-up was a police cover-up. Last year, Trace scored three Walkley nominations for investigative journalism, audio features and innovation, but only won the latter.

The ABC’s second true crime podcast, Blood on the Tracks, is also a medium for victims’ voices, in this instance the relatives of a teen whose body was found on a country railway track near an overturned stolen car. Reporter Allan Clarke devotes an episode to the relatives’ efforts to accuse an innocent man of killing the teen to hide a drug deal, and advocates their belief throughout that local police were indifferent to the death of an Indigenous boy. But everyone could have seen the final revelation a mile away: the teen was killed in a car crash that was clumsily covered up by other teens.

Some of Clarke’s journalism is pure Today Tonight: “Did you kill him?” he asks one subject, before adding, “We’ll tell you his answer later in the episode.” (The answer turns out to be, “No, I don’t even know him.”) A later episode records his pursuit of the victim’s former girlfriend down a small town street as she desperately tries to get away. (He later received a lawyer’s letter telling him to keep clear.) Blood on the Tracks also won a Walkley last week, for coverage of Indigenous affairs.

Thankfully, the ABC’s third true crime podcast, Barrenjoey Road, avoids these journalistic missteps. Ruby Jones and Neil Mercer fully investigate the case — another woman who disappeared from Sydney’s Northern Beaches in the early 1980s — without victim- or police-prompted tunnel vision, exploring multiple possible suspects with an open mind and exposing genuine links to proven police corruption. Also this year, a non-ABC podcast showed how to tell a personal crime tale in a way that is deeply sensitive to an Indigenous murder victim and to the nature of domestic violence. In my view, Nina Young’s My Father, the Murderer is easily Australia’s best true crime podcast.

And yet The Teacher’s Pet is the podcast the Walkley judges chose for their highest accolades, even though its production values are far lower than any of its predecessors and its fourteen episodes — the latter ones exceeding ninety minutes each — are repetitive and longwinded. Why? Impact. Of three sorts.

First, the judges explained, Thomas’s “investigation uncovered long-lost statements and new witnesses.” Aside from her husband’s handwritten statement, the new evidence about Lyn Dawson’s disappearance consists of decades-delayed revelations from family, neighbours, friends and acquaintances, each apologetic for not saying anything earlier about Chris Dawson’s allegedly odd behaviour or the bruises on his wife’s arms. The podcast also prompted a string of former students of Northern Beaches high schools to describe a culture of sexual misconduct by the teachers there.

While the latter revelations led the NSW police to form “Strike Force Southwood” to investigate, Thomas’s sensibility — exemplified by the podcast’s coquettish nickname for the student whose accounts of abuse by the Dawsons were repeatedly aired — is the opposite of contemporary concerns about sexual abuse of children. Moreover, nearly all of this new evidence has a common flaw: it was generated not by Thomas’s gumshoeing but by the podcast itself. If any high school teachers, or Dawson himself, are eventually prosecuted, they can compellingly argue that the new statements are distortions or fabrications prompted by Thomas’s own lurid claims of weird twins, grooming gangs and police cover-ups.

The podcast’s second impact, “prompting police to dig again for the body of Lyn Dawson” at the couple’s former matrimonial home, was clearly Thomas’s ultimate goal. Throughout the series, he painstakingly details the Dawsons’ wooded Bayview property and the landscaping that accompanied and followed Lyn Dawson’s disappearance. He notes Dawson’s supposedly bizarre behaviour of driving past his old home on return trips to Sydney and pointedly criticises earlier police digs for failing to explore some “soft soil” later concreted over, dismissing their claims that searching for human remains is a typically fruitless task.

Here, Thomas’s arguments tapped into the NSW law-and-order cycle. Radio presenter Ben Fordham came on board his campaign and predictably extracted an on-air apology from the state police commissioner for his predecessors’ failings. As the podcast closed, a team of officers spent five days digging up parts of the property. Had they found human remains, Thomas could rightly claim the credit. By the same token, he must take the credit for handing Dawson yet another powerful argument if his case ever comes to trial — why didn’t the police find any human remains at his former property?

Did the Walkley judges actually listen to all sixteen hours of Thomas’s podcast? I very much doubt it. Rather, it is surely the final impact of The Teacher’s Pet that best explains his second Gold Walkley. The podcast has “more than twenty-seven million downloads at latest count,” the judges gush, and “is the only Australian podcast to go to number 1 in the United States, the United Kingdom, Canada and New Zealand.”

In short, Thomas got his Gold Walkley for cracking the international podcast scene. Had he done so via solid journalism or an innovative approach or a startling discovery, that would be fair enough. But the secret to his podcast’s popularity is banal: the spectre of violence combined with lots of sex, even more innuendo and an unwavering certainty that a single theory about an unsolved disappearance is the absolute truth. In other words, Thomas used all the worst tropes of the true crime genre to tap into the overseas market. For this, the Walkley judges feted him as this year’s greatest journalist. With friends like these, the media doesn’t need its many enemies. •

The post The media’s pet appeared first on Inside Story.

Tragically, it appears that the first victim, Sisto Malaspina, was stabbed in the chest after attempting to render aid to Shire Ali, perhaps believing the flames were the result of an accident. He later died in hospital. Two other men were wounded before Victoria Police patrol officers arrived on the scene and attempted to subdue the attacker. Finally, one of the officers was forced to shoot him in the chest, incapacitating him with eventually fatal results.

Australia has experienced this kind of violence before. Both the Lindt Café siege (2014) and the Parramatta shooting (2015) highlighted the threat of the lone-actor terrorist, and subsequent attacks in Minto (2016), Brighton (2017) and Mill Park (2018) have demonstrated the difficulty of detecting and interdicting those who engage in low-tech attacks. Here and internationally, lone-actor terrorism has become increasingly common.

Recently, one of us (Ramon Spaaij) conducted a survey of all known lone-actor attacks, using a strict definition: the attacks had to have been conducted in person, and bombings were excluded. He found that there have been fifty-six incidents in Western countries since 2016, resulting in the deaths of 143 people and the wounding of 380. This compares with seventy-three incidents in the decade and a half from 2001 to 2015, which resulted in 170 fatalities and 275 woundings.

A report by Europol found that during 2017 most terrorist attacks in the European Union were committed by lone individuals, many of whom claimed an allegiance to Islamic State. Indeed, since its territorial losses in Iraq and Syria, and especially since the fall of Raqqa, the organisation has doubled down on its calls for lone individuals to “set their homes and forests on fire, or run over the largest number of unbelievers with your vehicle, or stab them repeatedly with a knife.”

Compounding the rising number of lone-actor attacks are increases in the average number of people killed in each attack. Lone-actor attacks in the United States were 3.45 times deadlier on average from 2011 to 2016 than in the period from 2001 to 2010. In contrast to Europe, more of those attacks emerged from the far right.

Indeed, in the last three weeks alone, a series of widely reported lone-actor attacks have occurred in the United States. On 22 October an individual mailed fifteen pipe bombs to Democratic Party officials; on 27 October an anti-Semite white supremacist attacked a Pittsburgh synagogue, killing eleven and wounding six; and on 2 November a man who aligned himself with the “incel” movement shot six people in a Tallahassee yoga studio.

These attacks have occurred in a particularly polarised atmosphere in the United States, and in the context of numerous non-political acts of mass violence. Separating the lone-actor terrorist from the mass killer is not always straightforward: in the aftermath of the 2017 Las Vegas shooting, for example, in which fifty-eight were killed and more than 400 wounded, government officials, academics and journalists debated whether to call the attack “terrorism.” This confusion reflects contending definitions of “lone-actor terrorism,” with no one definition being dominant. But it also reflects the complex nature of these individuals.

The motivations for lone-actor attacks are often on the blurry line between the personal and the political. As a team of American researchers found, both mass murderers and lone-actor terrorists are driven by an intermingling of personal, political and social factors. Importantly, personal issues (including mental health problems) often lead to a susceptibility to ideological influences, though the reverse is also true. This interplay demonstrates the peril of attempting to assign inflexible either/or narratives to an attacker’s path to violence.

Other studies have found that some lone-actor terrorists, perhaps ironically, express personal grievances vicariously through an identification with often violent and extreme group identities, such as white supremacy or radical Islamism. This doesn’t happen in the reverse case: mass murderers don’t go through this process of identification, usually acting from more idiosyncratic and personal motives.

The fact that personal grievance can lead to identification with an extremist ideology is an important point. As for many lone attackers in Europe, the Bourke Street attacker’s life seemed to be on a downward arc. He abused drugs, suffered from mental health issues and was living with his wife and child out of a small bungalow, a situation further marred by his erratic behaviour. Given these strains, combined with his long-held radical views, it is perhaps unsurprising that he acted as he did, though his family have stressed he was a man who was “crying for help,” not a terrorist. Again, we should view his actions not as either political or personal, but rather as a combination of the two.

In the attacker’s view, dying in a grand final act can serve as a way of transforming and redefining one’s life into something new and undeniable. Islamic State’s willingness to claim and laud these attacks also contributes to this transformation.

It is also clear that lone-actor terrorists do not turn to extremism, or plan, prepare and execute their attacks, within a social vacuum. Rather than living the hermetic existence of terrorists like Peter James Knight (who shot dead a security guard in an attack on a Melbourne abortion clinic in 2001), most lone actors exist in wider social networks, with varying degrees of contact with and influence from friends, family and co-workers. Online communities also play an important role in providing safe spaces for fringe and extremist individuals to socialise and develop an affinity with other sympathisers. The Gab social network has attracted significant attention in the wake of the Pittsburgh synagogue attack.

Some lone actors do fail to develop meaningful social connections. This is most dramatically seen in the case of self-identified “incel” attackers, though a significant minority of lone-actor terrorists of all ideologies are socially isolated. Sometimes, the loss of connection itself can serve as a trigger.

But social connections are often crucial in motivating and supporting an individual in undertaking an attack. Sometimes this involves an active rapport with fellow extremists. Safia S., a German-Moroccan teenager who stabbed a German police officer after her brother was arrested in Turkey while attempting to join Islamic State, shared her attack plan with another extremist who was later arrested for planning his own attack. Social connections can also be more passive, providing a vague sense of emotional support. Before a twenty-one-year-old white supremacist stabbed four non-white people at a Swedish school, he told an online friend that he hated himself, that he wanted to die and that he hoped the “cops aim straight; I really don’t want to survive the rampage.”

Family members often have some idea of the extent of an individual’s radicalisation. (Early reports that Shire Ali’s brother had been arrested for planning a terrorist attack appear to have been the result of misidentification.) Safia’s family recognised that she had become radicalised, without necessarily being aware of the degree. Similarly, the 2017 Finsbury Park attacker’s family noticed his descent into virulent Islamophobic belief and described him as a “ticking timebomb.”

Given these characteristics, it is unsurprising that lone actors typically do not place much emphasis on operational security. Rather than emulating Anders Behring Breivik’s meticulous commitment to a cover story before the 2011 Norway attacks, most of them  express their extreme viewpoints and their intention to right perceived injustices with violence.

This “leakage” is strongly linked to grievance-driven behaviours like terrorism. Given the centrality of the grievance to their worldview, it is understandable that lone-actor terrorists would express their views, whether to family members, friends or an online community. This behaviour presents an opportunity to interdict prospective lone-actor terrorists before they can carry out their attacks. Research into developing multifaceted interdiction strategies would be valuable, and could help to identify personal and ideological factors leading towards violent action. Multidisciplinary centres like Victoria Police’s Fixated Threat Assessment Centre also offer a way for security agencies to triage and assess at-risk individuals.

Lone-actor terrorism is increasingly simple, impulsive and low-tech in nature. While the 2011 Norway attacks demonstrated that a determined individual with time and money can produce a sophisticated bomb, many lone actors simply lack the knowledge, resources and patience.

Instead, attacks increasingly rely on simple household tools — in Shire Ali’s case, a car, gas bottles and a knife — and need almost no planning. Indeed, Shire Ali was able to carry out his attack while on a police watchlist.

But low-tech attacks are also limited in scale and effectiveness, particularly when combined with a rapid security response and measures to protect likely targets. Effective gun control and restricted availability of firearms also significantly reduce the ability of lone actors to inflict mass casualties.

One final aspect that has only begun to be considered in assessing this type of violence is the role of internal emotional states. It may seem strange and perverse to consider terrorists’ fear, but research has suggested that their quest to overcome and deal with these negative emotions may be an important aspect of the violence. This process is particularly true for lone-actor terrorists because, ultimately, they must act alone in the moment. •

The post The evolving threat of lone-actor terrorism appeared first on Inside Story.

In A Very English Scandal (BBC First), a three-part series dramatising the downfall of former British Liberal Party leader Jeremy Thorpe, the sardonic personality is the central enigma.

Nineteen sixty-seven, the year in which Thorpe was elected leader of the Liberal Party, was also the year in which the Sexual Offences Act passed through parliament, decriminalising homosexuality in England and Wales. Thorpe, who was not yet forty at this time, had started his career in the 1950s as a barrister at the Inner Temple in London, when prosecutions for homosexual offences frequently led to imprisonment. As a politician, he spoke unequivocally about the paramount importance of the rule of law; in his private life, he found himself on the wrong side of it from an early age, and his attempts to preserve his public image only led him into the deeper trouble that culminated in his 1979 trial for incitement and conspiracy to murder.

Hugh Grant is deservedly winning plaudits for his portrayal of Thorpe. It’s good casting, as director Stephen Frears has remarked; Grant brings an obvious physiognomic resemblance to the role, and has the comic timing to capture Thorpe’s wit. But what really matters is that this is an actor who knows the behavioural code and all its communicative nuances. The raised eyebrow gives a permanent, if subtle, asymmetrical cast to the whole face. A set jaw and penetrating stare suggest grim determination, but then the smile appears, sudden and brilliant, and the eyes sparkle in a charm offensive that can be lethal.

Asked in interviews about the challenge of portraying a figure whose looks and manner left such a lasting public impression, Grant talks about the lure of impersonation. He says he learned to do quite a good Thorpe by practising in the bathroom mirror, but realised it wouldn’t do — not when his co-star Ben Wishaw, cast as Thorpe’s nemesis Norman Scott, “would be doing real acting.” Grant’s brilliance is to capture how Thorpe moved from doing an impression of himself — debonair, charismatic, “winning” in every sense — to a form of real acting, in which that mask of a face has to wrestle with the expressive force of corrosive emotional experiences.

Episode one opens with Thorpe admitting, in characteristically oblique language, to a sexual preference for men. His confidant, fellow parliamentarian Peter Bessell (played by Alex Jennings, another past master of calculated English manners), is evidently someone who can be trusted with the disclosure. Bessell admits to a tendency in that direction himself and takes it lightly, but he is soon to be drawn in to a disaster zone, as collateral damage in Thorpe’s ruthless self-preservation.

“Greater love hath no man than this, that he lay down his friends for his life,” Thorpe famously remarked when Harold Macmillan spilled half his cabinet in a 1962 reshuffle that became known as Britain’s Night of the Long Knives. Although he preferred subtler weapons, Thorpe’s killer instinct led him to provide a more starkly literal illustration of his own quip.

In summary, the scandal has a banal simplicity. Thorpe falls for a beautiful youth, a stable boy he meets on a weekend at a country house. Some time later, the young man, Norman Scott, appears in London, jobless and with nowhere to go. He wants Thorpe to help get him a national insurance card so that he can apply for unemployment benefits and try to get work. Instead, Thorpe sets him up in a flat and they embark on an affair that continues until Scott becomes miserable, complaining of boredom and isolation. Thorpe wants out. With his sights set on becoming party leader, he realises he needs to get married in order to further his political career, and Scott is cast aside, still without his card.

While Thorpe proceeds to realise his ambitions, Scott continues to be feckless and impulsive. He has a brief career as a fashion model, but nothing lasts. So, blaming Thorpe for his desperate employment situation, he reports their affair to the police, providing a packet of letters on parliamentary stationery as evidence.

As Scott, Ben Wishaw evokes someone who is Thorpe’s antithesis in every way. Driven by his emotions and almost incapable of strategic thinking, he responds to the escalating situation by doing and saying whatever comes into his head. If Thorpe’s public manner is a carefully wrought prosthesis, Scott has a wardrobe of personalities worn to fit the occasion. Thorpe takes risks out of daredevil arrogance; Scott has the recklessness of someone with nothing to lose.

A forbidden sexuality has brought together two people who would never have been able to communicate on any other terms, and the stakes are raised as they try to deal with each other’s recalcitrance. Thorpe sees Scott’s persistent determination to out him as blackmail. In logical and strategic terms — and Thorpe is always logical and strategic — the only solution to blackmail is murder. The assassination attempt quite literally misfires; the bungling hitman kills a Great Dane that Scott is minding, leaving Scott distraught but unharmed. A trail of circumstantial evidence leads back to Thorpe.

Inevitably, it all lands up in court, with Peter Bessell as a key witness for the prosecution. Perhaps the verdict, too, is inevitable. Thorpe knows how to pick his lawyers. Adrian Scarborough, as George Carman QC, relishes the opportunities of playing the man who turned the case his way with a combination of legal acuity and courtroom bravado.

A trial scene always makes good television, and this is one of the best, an absolute gift to scriptwriter Russell T. Davies. Davies, who has a long track record writing for the BBC and Granada, moves easily between the registers of soap opera and serious drama, and there are elements of both here. Much of the dialogue is taken from the original transcript of the court proceedings, which is itself laced with tabloid sensationalism, but Davies intersperses the recorded exchanges with dialogues that take place on the periphery of the courtroom.

There is a tense and guarded conversation between Thorpe and his barrister, in which Carman seems to be fishing for a confession and instead gets a carefully worded statement in the conditional tense: “If, I suppose, one were to… then, perhaps, one might…” As Grant feeds out the tortuous syntax, clause by clause, the camera moves to extreme close-up, as if prompted by the viewer’s need to read that unreadable face. We see Scott rushing to the toilets after his ordeal in the witness box and crying like a child in the privacy of a cubicle, then pulling himself together as he descends the grand staircase, treating his supporters to a display of camp triumphalism: “I was rude, I was vile, I was queer, I was myself.”

The judge evidently agreed with him. Justice Cantley’s summing up, with its thumbnail character assassinations of Scott, Bessell and the hitman Andrew Newton, has gone down in history as one of the most biased ever delivered from the bench at the Old Bailey. Acquitted, and in the eyes of many triumphantly vindicated, Thorpe emerged to greet crowds of well-wishers in the street with the victory wave he was accustomed to giving after an election. And there the drama ends.

In reality, the storyline took some further turns. In a sketch performed only ten days later to a packed audience at Her Majesty’s Theatre, satirist Peter Cook delivered Cantley’s summing up with a few embellishments of his own and, as they say, brought the house down. Thorpe himself did not come out of it well. His public life was over, and he retired with his stoically loyal wife to deal with the encroaching challenges of Parkinson’s disease. A changing cultural climate enabled the real Norman Scott, who appears in the closing moments of the series, to live in untroubled privacy with the eleven dogs that are the love of his life.

Three episodes dealing with the aftermath would have helped to bring out important dimensions of the story that are barely hinted at in this Thorpe-centred view. The whole sorry, undigested story has continued to haunt English political culture. In Secret Lives, a 1996 documentary made for Channel 4 by Roy Ackerman and David May, Thorpe’s political colleagues speculate on the enigma. He was a Jekyll and Hyde figure, says the monstrous Cyril Smith, whose rampant career in a paedophile ring was yet to be revealed. MI5 had dropped the investigation into Smith’s abuse of boys at the Rochdale children’s home, though reports of it were surfacing again at the time of the Thorpe trial. George Carman, urged on by Thorpe, is said to have been instrumental in suppressing them.

David Steel, Thorpe’s successor as leader of the Liberal Party, describes the episode as a tragedy for a major public figure and a tragedy for the party. “Would this whole spider’s web ever have been woven,” he speculates, “if society hadn’t been so hypocritical about relatively trivial homosexual relationships?” If there had been no scandal, perhaps there would have been no tragedy? That, essentially, is the perspective offered in A Very English Scandal. It leaves us with a sense that Thorpe might, in other circumstances, have been a pretty decent bloke — a genuinely devoted husband and father, and a politician guided by responsible social objectives. The problem with such a view is that what Cyril Smith was up to was not “relatively trivial” and the Thorpe affair has a sinister dimension.

In both cases, the poison of secrecy bred a capacity to use people and discard them as if they had no place in any acknowledged reality. The Australian release of A Very English Scandal coincided with the award of the Emmy for outstanding limited series to The Assassination of Gianni Versace, another tale of intergenerational gay romance between a significant public figure and a young man whose fleeting beauty marks him out for attention. Here, too, the romance ends badly and is replaced by homicidal obsession, but this time it is the junior partner who turns sinister.

Gianni Versace was born in Calabria in 1946, fifteen years after Thorpe, and social attitudes to gay relationships had moved on a generation by the time he entered the world of celebrity as an international fashion designer. His stagey and sexually flamboyant collections attracted the interest of Madonna, Elton John and other show business figures who were themselves at the forefront of a cultural milieu that fostered performative and experimental approaches to sexual identity. (It was Versace who designed the celebrated black dress held together with giant gold safety pins that Elizabeth Hurley wore when she accompanied Hugh Grant to the premiere of Four Weddings and a Funeral.)

The Assassination of Gianni Versace, badged as season two of the American Crime Story series, is about crime and the relationship of violence to homophobia. The first episode opens with the final scene of the drama, a fatal convergence of life courses that might have remained poles apart. Versace, played by Venezuelan actor Édgar Ramírez, wakes to a new day in his Italianate mansion in Miami just as his killer Andrew Cunanan opens a backpack on the beach a few hundred metres away and checks a gun.

The camera lingers on the exquisiteness of the Versace palace: the fresco on the ceiling above the bed, mosaic floors, delicate patterns on cupboard doors, a sapphire bathing pool framed by Palladian columns and arches. Wearing a gown of rose-coloured silk that sets off his golden skin tones, Versace stands on a balcony looking out over the ocean. Ramírez looks astonishingly like Versace, who had the carriage and presence of an opera star.

Cunanan, sitting on the sand in a shapeless grey t-shirt, looks like a nobody. He rubs at an ugly lesion on his leg. He gets up and wades into the sea until the water is up around his shoulders, letting out a succession of hoarse screams. We cut to Versace, walking out to the local newsagency. People sitting at cafe tables outside the shop greet him warmly. Everyone liked Versace, who was known as “the unofficial mayor of South Beach”; Cunanan was labelled a “dirtbag street hustler,” a conman, a sociopath, a liar. As Versace pays for an armful of glossy magazines, Cunanan shoulders his backpack and leaves the beach. Versace heads back towards the villa, and Cunanan takes a sudden detour, rushing into a public toilet to vomit.

Why does the polarity between these two figures have to be quite so emphatically established? As in the Thorpe story, extreme differences of status are central to the dynamic, and reflect individual predilections that have their origins in a wider social pathology. The anxieties that haunt those who are excluded from “respectable” society can channel themselves into extraordinary creative determination, as in the case of Versace, or they can trigger a deep-seated homicidal rage.

This series is based on a book by Vanity Fair writer Maureen Orth, whose interests are in the forensic psychology of a notorious spree killer. Versace was Cunanan’s fifth victim during a three-month period that began in April 1997 when he responded to a brush-off from one of his friends by picking up a claw hammer and bashing him to death.

For those interested in criminal profiling, all the danger signals were evident long before that. The status anxieties began early, with an immigrant father who talked his way into the world of stockbrokers, was thrust out of it when he was found to be defrauding his clients, and then abandoned his family, leaving debts that rendered them almost destitute. The young Cunanan was a con man of a different stamp — exceptionally bright, and given to spinning autobiographical narratives that drew on a wide knowledge of the kinds of social milieu he sought to enter.

The gay pride movements through the 1970s let air and light into the gay subcultures whose suppression had made them hothouses for diverse forms of abuse. A generation later, though, they were still populated by people bearing long-term psychological injuries. Successful as he was, Versace was not undamaged. Flashback scenes show how he was humiliated by his Catholic schoolteacher in Calabria. Family bonds were crucial to him in adult life but his sister Donatella, his muse and deputy, has an intense dislike for his long-term partner, Antonio D’Amico, whom she blames for drawing Versace into scenes of depravity with a coterie of gigolos.

We see Cunanan making a play for Versace at a nightclub, luring him with stories (invented) of a mother from the same part of southern Italy, and impressing him with a knowledge of the opera for which Versace is designing the costumes. Both men are determined to make the transition into worlds of money and style, and both choose unorthodox means of realising their ambitions, but Versace, riding the celebrity track with irresistible panache, achieves a legitimacy that Cunanan, for all his own performative brilliance, will be denied.

A character who exhibits performative brilliance in life presents special challenges to an actor. There are too many frames of artifice. How do you cut through them to communicate what, if anything, is behind them? Ben Wishaw’s Norman Scott is someone who tries on personalities, but the artifice is shallow. In Cunanan we have someone who is a consummate poseur, an exhibitionist driven by strangely introverted energies. Darren Criss, a young actor known for some fairly unsophisticated song-and-dance routines on Glee, makes an astonishingly convincing job of realising his blend of vividness and vacancy. It’s a performance that won him the Emmy for best actor in a limited series, against competition from Benedict Cumberbatch, Jeff Daniels and Antonio Banderas.

The Assassination of Gianni Versace and A Very English Scandal are showcases for actors, and in both cases the duo at the centre present a fascinating relationship of contrasting performance styles. They are worth watching for this alone, but the risk with this kind of intensely personal focus is that the social and political setting is pushed into the background. With the #MeToo movement continuing to gather in intensity, heterosexual behaviour has now become the flashpoint for scandal. This is surely the time for drawing attention to the contextual factors that give rise to all kinds of pathologies in individual behaviour. •

The post Scandal as tragedy appeared first on Inside Story.

Bourke is pioneering Australia’s most innovative way of tackling a problem haunting many parts of the country: the shockingly high rate of incarceration among young Aboriginal and Torres Strait Islander people. Of Bourke’s 3000-strong population, about a third identify as Indigenous. Before the scheme started having an impact, the town had the state’s highest conviction rate for Aboriginal children and teenagers under seventeen, and about 90 per cent of young people released from custody were in trouble with the law again a year later.

“We’d been left to die slowly,” is how Alistair Ferguson, a local Indigenous man, describes his community’s fate under past government policies. “But Bourke and outback river towns are worth fighting for.” Fed up with billions of dollars of government money being poured into the “old law-and-order approach,” with little to show for it, Ferguson turned to an idea developed by the Open Society Institute, a New York think tank run by the American billionaire philanthropist George Soros. Known as “justice reinvestment,” the strategy is based on the argument that the money governments spend building yet more prisons should instead go to projects designed to help people stay out of them.

It is Ferguson’s initiative that eventually brings this group of expert backers to Bourke for a crucial “leadership group” meeting. Five years after introducing justice reinvestment to his town, he opens their gathering at Diggers on the Darling by declaring, “We are on the road to recovery.”

My own 800 kilometre journey from Sydney to Bourke — still one of Australia’s most isolated places — revealed much about the town’s vivid frontier history and its disastrous legacies for Indigenous people. From the 1880s, Bourke was a booming port handling wool bound for world markets via the Darling River. The press called it the “Chicago of the West.” In 1885, jealous at seeing its wool exported to Britain via Victoria and South Australia, the state government extended the rail line to Bourke so it could be shipped from Sydney instead.

The last 186 kilometres of this great piece of late-nineteenth-century infrastructure was closed down in 1990, and now lies crumbling beside the dead-straight road from Nyngan to Bourke. The remnants of Bourke’s wharf, where Darling River steamers once loaded multitudinous bales of wool (40,000 a year at its peak), have fared a bit better, and it’s there that Alistair Ferguson spoke to me between a stream of meetings with summit participants.

Ferguson, an energetic man with close-cropped greying hair, was born in Brewarrina, a nearby town on the Darling. He traces his own heritage to four states, and has family links with Barkindji, one of four tribal groups that were living in this region when white settlers began arriving in the mid 1860s. As the historian Bobbie Hardy writes in her book Lament for the Barkindji: The Vanished Tribes of the Darling River Region, some tribes “disappeared early under the impact of white settlement, and their conquerors were less than explicit as to the fate that overtook them.”

The Back O’ Bourke Exhibition Centre at North Bourke is a bit more explicit. In its small section on “The Traditional People,” it quotes an early settler: “The blacks on the Darling had been most barbarously murdered by our early predecessors, hunted like kangaroos or wild dogs wherever they were known to exist.”

Governments removed many Aboriginal people from traditional lands, and later brought others from outside the region to mission stations at Bourke. The thoughtless mixing of rival groups changed the makeup of the area, expanding the region’s four tribal groups to twenty-two in Bourke today. Ferguson and others see that dispossession and loss of identity as the main underlying cause of high crime rates.

Ferguson, who had planned to be a chef after he left high school in Bourke, became a public servant in the Bourke office of the state attorney-general’s department. From there he watched in despair the “constant revolving door of young people in handcuffs” at the local courthouse. Using Bourke’s twenty-first century lifeline to the world, the internet, he learned about trials of justice reinvestment in around twenty-four states in the United States, and in Britain. Tom Calma and Mick Gooda, both former Aboriginal and Torres Strait Islander social justice commissioners, had already called for similar trials in Australia.

“I became intrigued,” says Ferguson. “I wanted to know more.” In 2012 he approached Sarah Hopkins, a Sydney-based lawyer and chair of Just Reinvest NSW, a body advocating justice reinvestment as public policy. The following year, Just Reinvest and Ferguson formed a partnership to start a project in Bourke. “We didn’t go to Bourke,” Hopkins says. “They came to us.” She is keen to stress the Aboriginal community’s determination to find a new approach to solving its problems that didn’t leave it beholden to governments. “Self-determination is fundamental to justice reinvestment,” she says.

A “lot of moving parts” soon came together, says Ferguson. The Australian Human Rights Commission and the state Aboriginal affairs office offered early support; Gilbert and Tobin, a law firm, pitched in later. The first funding, in 2014, came not from governments but from two family philanthropic outfits: the Dusseldorp Forum and the Vincent Fairfax Family Foundation. Along with money from smaller family foundations, this allowed the project to kickstart with a backbone of staff in Bourke.

A September 2016 report prepared free of charge by accounting firm KPMG found that philanthropic funding for the project had amounted to $554,800 each year over the three years to 2018–19. It argued that the early progress and the goodwill the project had attracted made a strong enough case for governments to get behind it.

Teya Dusseldorp, the Dusseldorp Forum’s executive director, is a granddaughter of its founder, the late Dick Dusseldorp, who also founded the Lend Lease construction company. She visited Bourke at Ferguson’s invitation when he was trying to get something started. “We could see the real desire of the Bourke community to be drivers of change for their town,” she says. “I found that far more promising than people just advocating to governments. They wanted to confront the problems they identified of too many young people being incarcerated. There were enough people there who wanted to be part of designing the solutions themselves, rather than waiting for government to fix things.”

Goodwill was palpable when the fifty-odd people gathered at Diggers on the Darling on 30 July. There was something symbolic about the fact that the meeting was taking place across the road from the Darling River, where Henry Lawson set several short stories drawing on his time in Bourke in 1892. Lawson sharply observed the region’s swagmen, riverboat captains and other pioneer characters, but Indigenous people featured in his stories only fleetingly as part of the exotic frontier backdrop.

“Finding a balance from the first nations’ perspective isn’t an easy thing to do,” Ferguson told the meeting. But now, the descendants of Lawson’s largely invisible people were telling a story of trying to reverse a downward spiral that had started back then. By any standards, it has a promising ring of success.

A report to the meeting showed a sharp drop in juvenile crime last year. Break-and-enter offences fell by about half. At Bourke Primary School, 4 per cent of Aboriginal students were suspended, a dramatic reduction from about 20 per cent four years earlier, though the fall in suspensions at Bourke High School was not so impressive. The proportion of children going to school, and staying there, has risen.

One of the most encouraging shifts involved domestic violence committed by Aboriginal men. Unemployment, alcohol and dislocation have long made this a problem in Bourke: reoffending rates per capita are among the highest in Australia. And its reverberations spread to the streets, where children forced to flee violent homes embark on crimes of their own. The meeting heard that the proportion of adult men charged with domestic violence had almost halved since 2014.

This news preceded the opening of a new “Men’s Space,” further along the Darling, later that afternoon. The substantial block of land and modest brick house on the edge of Bourke was donated by the Sisters of Charity, a Catholic group. Ironically, it was once a prison site; but now, says Jonathon Knight, an Aboriginal man who works with a group called Men of Bourke, it will become a place where “men can come to seek help and feel comfortable.” His hope is that “we can be role models for our community.”

A group of Aboriginal children and young men had gathered for the event, and five nuns had travelled from Orange in New South Wales to join a Catholic priest in blessing the Men’s Space. (One of them recalled how the Indian missionary, Mother Teresa, had visited Bourke fifty years ago to bless the sisters’ land.) Led by several Aboriginal women, the men, black and white, walked in a semicircle through a smoking ceremony under a magnificent river red gum tree.

Brad Hazzard, the NSW health minister, was among them. “I still shake my head in wonder as to why so much state and federal resources are coming into regional towns and not achieving the outcomes we want,” Hazzard told the Bourke meeting. He offered as one explanation the politics in some Aboriginal communities: “They make Labor and Liberal look like a bunch of amateurs.” After recent leadership turmoil in Canberra, he may be right.

Yet that seemed to miss a key point. The Bourke community’s creation of the Men’s Space is one example of its bid to take pressure off a key cause of crime in its midst. “Do they have the right to make decisions for us?” asks Phil Sullivan, a Bourke elder, referring to governments. “We’re still not in the Constitution you know! I think the justice reinvestment approach, a tool to do what we want to do, is a perfect start.”

Like most governments in Australia, the Coalition to which Hazzard belongs beats a law-and-order drum relentlessly. In its 2016–17 budget, the NSW government announced almost $4 billion for what it called the “largest single prison expansion in the state’s history.” Yet Hazzard seems impressed with what he has seen in Bourke. “The men here say they asked for the Men’s Space,” he tells me after the smoking ceremony. “No central office dreamed it up. The ground-up mode means the community owns the process and the outcomes. My instinct tells me that is the most likely recipe for success.”

When he embarked on justice reinvestment in Bourke, Alistair Ferguson built crucial new links into the project. He involved local Aboriginal people by helping to create two bodies: a community hub called Maranguka (“caring for others” in Ngemba, a local tribal language), and the Bourke Tribal Council, representing the town’s twenty-two language groups, whose role is to make decisions about strategy.

“This concept, allowing the community to be the decision-makers, isn’t new,” Ferguson says. “It’s been here for thousands of years. It got lost after white settlement pushed traditional structures away.”

He also insisted on involving Bourke’s police force as key players. Too often around Australia, high imprisonment rates have followed combative relationships between police and Indigenous communities. Greg Moore, Bourke’s police chief, presides over a staff of about forty-five police; he is also commander of a larger force that serves other outback districts in the state’s northwest. He has keenly embraced justice reinvestment, which he sees as a way to “shift the focus from building prisons to addressing the causes that feed crime in the first place.”

“In the old days, you had the cops, health, education and the local council,” Moore says. “That was about it.” Of the new Aboriginal bodies, he says, “We set these structures up so the community could have greater involvement in decision-making and resolving community conflicts. The community has always said, ‘We want policy designed with us, not on us.’”

Greg Moore identifies domestic violence, mental health, alcohol, drugs, idleness and truancy among the main underlying causes of Bourke’s high Aboriginal youth conviction rate. They are the same as those revealed twenty-seven years ago in a royal commission the Hawke government set up to examine Australia’s then alarmingly high rate of Aboriginal deaths in custody and juvenile detention. That inquiry said the main way to stop rates climbing even higher was for governments to tackle these causes first. But since then incarceration rates have only doubled, according to Amnesty International.

While governments have ignored the royal commission’s recommendation, Ferguson says he has taken it as his template. The work starts every morning at the Maranguka hub office in Bourke. James Moore (no relation to Greg), the Birrang SOS (“Save Our Sons, Save Our Sisters”) youth coordinator, meets there with police to review any trouble in town overnight.

Moore is a local Aboriginal man who left school without finishing Year 10. He fell foul of the law himself and spent time in jail. He understands the problems of the people aged between eight and eighteen whom he now tries to help: “Like them, I felt disconnected and had little sense of belonging.” This understanding, and working with kids to encourage more positive outlooks, is probably the key to Bourke’s justice reinvestment project. It was missing from long-time government approaches in Sydney and Canberra: setting policy from a distance, and sending welfare to the town.

“Because of a lack of jobs, a lot of families depend on welfare,” James Moore explains. “Kids just dropped out of school. Many fourteen- to seventeen-year-olds were on police radar every day. Maranguka asked, what can we do to help them? My role is to change their mindset, to work towards getting jobs.” SOS was set up last year to encourage kids to go back to school.

Maranguka has also set up a youth council to discuss proposals from Moore and his colleagues, and contribute their own ideas. “It’s all about giving them a voice,” says Moore. “In the past, young people never had a say in anything.” The council consists of local young Aboriginal role models and “other more vulnerable ones.”

Moore also works with an Alternative Education Program, to equip young people with job skills. Bourke’s schools identified twelve kids who they thought could benefit. Moore says the twelve had about 300 “interactions” with police between them in the three months before the program; in the three months after it started, police interactions had fallen to fourteen. Meanwhile, school attendance rates among the twelve have risen.

Another initiative exposes young people to environments outside Bourke. James has taken some to Nowra, on the NSW south coast, for boot camps on leadership and life skills. “It’s all based on discipline, respect and responsibility,” he says. Closer to home, he takes young people out “on country” to connect them with traditional cultural practices. “Culture today is the answer for our vulnerable kids,” he says. “It should be part of day-to-day routine for Aboriginal people.”

Vivianne Prince, whose parents are Ngemba and Wangukmarra people, coordinates services at Maranguka. Each Thursday, school principals and other town officials join the meetings. “It means everyone is working together, breaking a silence,” says Prince. “If a pupil has been suspended from school, everyone knows. Evidence shows the children are benefiting from this approach. They’re getting the support they need.”

Leonie Brown, corporate services manager of Bourke Shire Council, tells me the council has supported justice reinvestment “since Alistair put it together.” With jobs scarce on the region’s great sheep stations nowadays, especially during the drought, the council is one of Bourke’s biggest employers. An abattoir, due to open in Bourke this year, could offer up to 200 jobs.

“A lot of government and non-government money comes into Bourke,” says Brown. “Incarcerating youth is a big cost. If we can stop that, and reinvest it, this is one way of working through those problems.” She praises Greg Moore as police chief for his “supportive” approach, helping to bring crime down: “You can see the difference.”

I sensed a difference myself since my last visit to Bourke, in 2010. On that occasion, I was reporting on another intractable issue: water. Crime then seemed out of control. Among the handsome old stone and wrought-iron buildings from Bourke’s grander days, shops were shuttered with steel grids. The town had a sense of siege.

Eight years later the shutters are still there, but the siege sense has waned. Perhaps wary, Bourke’s business figures largely had held back from engaging with justice reinvestment. Now, though, some are happy to commend it.

“It’s doing what it should be doing: getting kids off the street. It’s a marvellous thing,” says David Randall, manager of the Betta Home Living electrical goods shop in Oxley Street. “Eight years ago, you wouldn’t have contemplated that I might take my shutters down. Now I’m contemplating it. It’s very rare that we have problems with hardened kids any more. A lot has to do with attitudes of the police, who are getting involved before crime happens.”

Across the street Peter Crothers, the pharmacist at the Towers Drug Co (“An outback icon since 1878”), says Bourke had long suffered from a “feeling of powerlessness.” He adds, “All decisions were made on how money was spent without reference to the community. What’s happened since justice reinvestment started is that Aboriginal, non-Aboriginal, local government, community associations, business and professional people have all said, ‘Just give us the money and let us work out what needs to be done.’ We’ve started in this town trying to address a different way. Unlike any community I have worked in, we have started to say, ‘We’re special.’”

Support is growing for projects like the one in Bourke. Although none is as advanced as Bourke’s, other justice reinvestment trials are planned or getting started at Katherine, in the Northern Territory, Cherbourg, in Queensland, and in the Australian Capital Territory and South Australia.

The Australian Human Rights Commission calls it a “powerful crime prevention strategy.” The Senate legal and constitutional affairs committee five years ago recommended that the Commonwealth “adopt a leadership role” to support justice reinvestment and that it fund a trial with “at least one remote Indigenous community.” In a report last March, the Australian Law Reform Commission called on federal, state and territory governments to establish an independent justice reinvestment body to “promote the reinvestment of resources from the criminal justice system to community-led, place-based initiatives that address the drivers of crime and incarceration.”

So far, governments show little inclination to take this on. Beating the law-and-order drum seems calculated to win them more plaudits from tabloids and shock jocks than cutting spending on prisons. Yet the 2016 KPMG report on Bourke offered a cogent economic case for a different approach. It contrasted the justice reinvestment project’s estimated running cost of $554,800 a year with the estimated $4 million annual cost to the Bourke area’s criminal justice system of Aboriginal children and young people’s involvement in crime. KPMG is preparing another report on the Bourke project’s economic impact.

Its achievements so far have prompted the federal and NSW governments to commit $2.5 million up to 2022 towards cutting family violence, helping young people to find jobs and enabling the Maranguka team to collect more data. The project’s influential private backers are impressed. “We have a long-term commitment to this work, because that is what it will take,” says Teya Dusseldorp. “We’re talking about generational change. Maranguka is one of the most promising initiatives I’ve seen. They’ve been very effective in building a bridge between community and government to last.”

Alistair Ferguson reckons the “reinvestment” side of justice reinvestment is now in sight. Bourke’s crime reduction, he argues, could warrant redirecting a quarter of its $4 million spend on criminal justice into more work helping the town’s young people. “That will be the real turning point.” When? “It can’t come soon enough.” ●

Robert Milliken returned to Bourke later in 2018; his short followup report is here.

The post Revival on the Darling appeared first on Inside Story.

Greer’s fame began with the 1970 publication of The Female Eunuch, one of three influential English texts that rode high on the crest of feminism’s second wave. The other two were Kate Millett’s Sexual Politics and Shulamith Firestone’s The Dialectic of Sex, and all three owed a debt to Simone de Beauvoir’s monumental The Second Sex, which had burst on the scene two decades earlier and found its way into English soon after.

After Millett, Greer and Firestone came the deluge; the seventies and eighties saw so many feminist works appear that women’s bookshops popped up everywhere, and in mainstream bookshops whole shelves were reserved for women’s studies. All of this died down when the movement lost most of its radical edge and the media declared the beginning of the “post-feminist” era.

It was the media that made Greer, as much as Greer, for many, made feminism. To put it succinctly, The Female Eunuch alerted millions of women to men’s raw hatred of them. Until Greer spelled it out for us, many were inclined to believe that our grievances could be overcome by all the usual instruments in the armoury. We could march, we could petition, we could argue patiently and reasonably. But there it was in black and white: it wasn’t mere discrimination that was holding us back, but a culture built on centuries of misogyny. And this was not only an assertion to inflame the hearts of women; it set millions of men, particularly in academia and the media, stumbling on their back feet. It demanded rebuttal.

But people who weren’t around at the time may not appreciate just how exciting Greer was to the very men who had most to lose by her exposure. She shone in the public arena; not only was she witty, outrageous and learned, she was astonishingly beautiful. She certainly wasn’t alone in identifying the patriarchy and examining the extent of misogyny, but she operated as an individual, rarely if ever as part of what was already a galvanised and organised women’s movement.

And while The Female Eunuch unearthed the depth of the problem, her solution was rather fatuous, not to say suspect. For women who persisted in having children while entertaining ambitions for themselves, her advice was to hire Italian women for nannies. In other words, as a diagnostician and spokesperson for the cause she could be brilliant, but as a serious agent for change she had her limitations.

So, to her chosen subject: rape. In On Rape, Greer begins with the word’s origin in the capture of women in wartime and traces how it evolved into what it means now. At least she tries to, and in trying, she demonstrates all too clearly that there is no universally accepted legal definition. In some jurisdictions, it involves unwanted insertion of a penis into a vagina; in others, any object will do, as will other orifices. For her own argument’s sake, she limits it to non-consensual penile penetration of the vagina, but here again there’s trouble. What is consent? How is it determined? What are the values and assumptions that inform the police and juridical procedures that hold out the promise of justice for a victim but scarcely ever deliver?

As in her earlier works, no one better explores the many conundrums thrown up by what she has called the patriarchate. Take the issue of consent. Rape, as a crime, hinges on it. But how is the accused to know that his victim has not consented? The rituals of mating are said to include resistance. No means no. But how is the court to interpret a potential victim, intoxicated or not, entering a situation in which it is reasonable for the accused to assume there was consent? In a courtroom, the state has to prove, beyond doubt, that consent was not given.

Likewise with resistance. If the woman, fearing for her life, takes the safest of options by submitting, is this not a rape? Our courts, like our parliaments, are adversarial by nature and thus are demonstrably ill-equipped to provide redress for victims, who are not the plaintiffs in criminal prosecutions but merely constitute the evidence. And all this when there are usually only two witnesses, the rapist and his victim.

If rape is accompanied by violence, there is a better chance of conviction. But isn’t rape ipso facto violent? In Greer’s view, it isn’t. To support this contention she cites penetration while the victim is asleep, according to her a widespread occurrence that women still put up with. She finds this and other forms of non-consensual intercourse within partnerships most disturbing of all. “Heterosex may well be doomed,” she writes, by the lack of love characterising far too many heterosexual unions. Instead of “having sex,” she notes, we used to “make love.”

And yet, while Greer builds her case about the difficulties victims face, and why so few rapes are reported, and why so few of those ever get to court, and why fewer still end in a conviction, nowhere in this essay does she expressly call for reducing penalties as a way of ensuring more convictions, as she has in public discussions. Her contribution here is in exploring the issues, not in proposing policies, though some are clearly implied.

But times have changed, and for a younger generation in today’s resurgent feminism, Greer offers little that is new but a lot to find infuriating. They have their own form of outrage, and are fighting for genuine redress. What may seem to Greer as having reached a kind of wisdom, noting the persistence of patriarchal institutions and the ramping up of their virulence while lamenting most of all the lovelessness in heterosexual relationships, can seem in the light of the #MeToo movement a shocking cop-out.

What to do, then? So much has been tried and found wanting. We have sexual response units in police departments; some jurisdictions have abandoned the specific crime of rape, positioning it at the more serious end of a spectrum of sexual assaults; some victims have resorted to civil suits, where the evidentiary requirements aren’t as demanding as they are in criminal trials and the questioning of victims may not be as harrowing. Yet rapes are still committed and go largely unpunished.

Some of the reforms have taken a different tack, with mediation and restoration programs where victims can confront their rapists. It is here, Greer suggests, that women may find true redress: “Amid the insoluble inconsistencies in the law of rape one thing is becoming clear. Women are claiming the right to denounce their assailant. In a criminal trial they don’t get the chance to demonstrate to the perpetrator how he has wronged them.”

Being listened to. Finally listened to. Greer quotes victims who speak of the profound healing they gained through directly confronting their assailants. It is in such settings that women can relieve themselves once and for all of the burden of rape’s humiliation. For that may well be at the bottom of it. Whether violent or not, rape, as Greer says, is an outrage, a source of confusion and long-lasting shame. And though she does not take the idea any further, it’s occurred to me that rape is not the only issue demanding this kind of restoration. We’ve needed it in cases of child abuse. We need it now for the women bullied in our parliaments; above all, for Indigenous people in their call for a Makarrata. Such truth-telling will never provide full justice itself, but it’s always a necessary start.

Being listened to. How many times have our law-makers heard the demand, but not bothered to listen? ●

The post On listening appeared first on Inside Story.

I can do this with reasonable confidence because we have enough information to show what generally works — and what should be the focus of policy-makers’ attention and funds — and what doesn’t. We know this because of research like the ground-breaking University of Maryland report, Preventing Crime: What Works, What Doesn’t, What’s Promising, and because of work by the Campbell Collaboration and the Washington State Institute for Public Policy, and because of initiatives like the Crime Reduction Toolkit and the EMMIE framework. Here’s my list.

Pre- and post-release programs and prisoner rehabilitation: Good programs and well-trained program staff are already operating in rehabilitative settings in Australian prisons, but they remain underfunded. Five million dollars should be spent injecting life back into Australian prison-based rehabilitative programs.

The research shows that post-release services are highly beneficial in lowering the likelihood that released prisoners will reoffend, especially where there has been exposure to therapeutic communities prior to release. A further $5 million should be spent on improving accommodation support and employment opportunities for ex-prisoners, with an emphasis on chronic offenders.

Research also tells us that prisoners experience high rates of mental illness and cognitive disability (acquired brain injury and foetal alcohol syndrome, for instance). Five million dollars should be spent implementing programs designed to help prisoners with these debilitating illnesses to rejoin society.

Diversionary and therapeutic models of justice delivery: Numerous studies have found high levels of victim satisfaction with family conferencing. The research has concluded that such diversionary programs work at least as well as court-based responses at no more cost, though some have found that reoffending rates are lower when conferences are used as a supplement to conventional justice rather than as a substitute. Five million dollars would be spent reinforcing existing diversionary programs in each Australian jurisdiction, including shoring up the delivery of family conferencing.

Allied to diversionary and restorative practices is a concept known as “therapeutic justice.” The research tells us that problem-solving courts — including drug courts, Indigenous courts, mental health courts and family violence courts — can have a therapeutic effect on those who appear before them, even if the evidence of lower recidivism rates in Indigenous courts remains scant. Considering that therapeutic and restorative programs very easily become casualties of governments keen to tout their “law and order” credentials, $5 million should be spent reinforcing existing problem-solving courts and helping reinstate courts of this kind (for example, the drug and alcohol court in Queensland, abolished by Campbell Newman’s Liberal National government, reinstated by Annastacia Palaszczuk) that have been closed down for purely political reasons.

Programs to improve policing: Legitimacy theory tells us that people are more likely to obey the law if they believe that police are strictly adhering to the rules. Its testing is now well under way in Australia, too, and the results are similar to those discussed above. Procedural justice can also make an important contribution to victims’ satisfaction with the criminal justice system. Police practices that draw on this research should be taught in police academies, and so $5 million should be set aside for curriculum development, training and implementation of legitimacy practices. This training should not be reserved only for recruits, but should also be provided at all levels of policing.

Crime-prevention partnerships between government and the private sector: Supporters of crime prevention have been devoting a great deal of attention to the international trend to policing partnerships with private security operatives and private personnel generally. Citizens moving around the community are far more likely to be directed, challenged or searched by a security officer than by police. Moreover, international research has found that privately funded security directly contributes to significant reductions in crime. One example is the fight against cyber-crime.

The United Nations supports improved regulation of the security industry to support more professional policing partnerships, and has made detailed recommendations in Making Them Work, its crime-prevention handbook.

Governments should invite and reward (by making $10 million available) funding applications that bring together and encourage public and private initiatives that have been shown to reduce crime. A proportion of this money should be set aside to encourage further work in the prevention of what is loosely termed “future crime” — phenomena for which we are largely unprepared, including mass migration as a result of climate change.

Indigenous community justice initiatives: Seven million dollars should be set aside for the education (primary, secondary and tertiary) and mentoring of Aboriginal young people, in partnership with Indigenous communities, to enhance their life skills, work skills and, in the process, prospects of employment. Children of Indigenous prisoners should be given particular support. Strategies that could be reinforced and mirrored have been outlined in the recent Productivity Commission report, Overcoming Indigenous Disadvantage.

Aboriginal courts made their first appearance in Australia two decades ago. People on bail on bail are more likely to attend hearings if they are held in these courts and less likely to be ordered to serve custodial remands. Their success, especially as a means of addressing the underlying problems associated with Indigenous offending, is undeniable.

Three million dollars should be devoted to facilitating Indigenous courts and Indigenous-run justice centres and night patrols, with an additional focus on treating those affected by drugs or alcohol, or suffering from mental illnesses.

Programs for victims of domestic violence: Services around Australia assist women who wish to leave violent relationships to put in place protection orders, arrange crisis accommodation, undertake counselling, and receive legal advice. Five million dollars should be allocated to assist them in their work. Another $5 million should be allocated to family violence units, with dedicated officers in every police station in Australia where an assessment has been made that such support is necessary.

Training in the fight against family violence should be given not only to new police recruits, but also across all ranks, and should be given in specific modules rather than in generic online training modules that police complete when they find the time. An injection of $5 million should be made to enable this to happen.

Programs that intervene at crucial transition points in young people’s lives: The Christchurch Health and Development Study, a thirty-five-year study of 1265 children born in the Christchurch region in the mid 1970s, reveals much about the importance for crime prevention of proper social and psychological development of children. Developmental criminology and life-course criminology studies have set out strategies for policy-makers that draw on this research, emphasising that the key is early intervention. Ten million dollars should be set aside to fund community-based strategies, informed by high-quality research, that enhance the social and mental health of Australian children, with a commitment to evaluating each step of the way.

Programs designed to prevent child neglect and abuse: A randomised trial conducted a decade ago in the United States monitored the progress of children born to mothers with low psychological resources living in highly disadvantaged settings. One group of children received specialist services by nurses; by the age of twelve, they were less likely to engage in substance abuse or suffer mental health problems, and their academic achievement was higher than that of other children in the study. A follow-up study concluded that the program was a promising means of reducing all-cause mortality among mothers and preventable-cause mortality of their first-born children.

Eighteen million dollars should be spent on programs and practices that have been shown to be effective in reducing the levels of child abuse and neglect in Australia.

Abuse, neglect and family violence are significantly associated with the alcohol and drug dependence of children’s caregivers, which suggests that there would be great value in implementing programs designed to limit the availability of cheap packaged wine and placing restrictions on the number of alcohol licences permitted in selected neighbourhoods. We also know that what reduces drug-related harm in the community is a focus on support, on keeping people alive, and on access to treatment, not fear campaigns and criminal justice responses. Two million dollars should be set aside for further pilot programs to test the policy implications of this research finding.

Public education: Two million dollars should go into public education programs designed to convince Australians that these evidence-based priorities will keep them safer than would simply injecting (or siphoning) the same amount of money into formal justice processes. Publicly funded advertising is crucial; people will only support these options — rather than “more of the same but harsher” — if the evidence is presented persuasively.

Evaluation: A final $3 million should be given to research teams to measure the costs and benefits of this expenditure, and to keep abreast of emerging research findings. Should another $100 million injection of funds be made in the following year? Should priorities be shifted, and, if so, into what programs and initiatives? This process should include training policy-makers to sift good research from poor research, and to implement programs in accordance with reliable findings.

Decades of valuable criminological research have shown how we can create more secure communities and reduce crime and the fear of crime. But it can only happen if we recognise our successes, acknowledge our limitations, clearly and succinctly communicate our findings, and continue to develop our evaluative capacity. Accompanied by sufficient political will, these budgetary allocations would drive down crime rates in Australia. ●

The post How I would spend $100 million to reduce crime appeared first on Inside Story.

It was brimming with faeces and had left the upstairs smelling like a factory farm. My yellow dish gloves were flimsy and it was impossible to move the plunger without excrement slopping from the bowl.

That’s visceral and disgusting enough, but it’s the last line of the paragraph — as you realise the reason for Bravo’s strange joy — that really punches you in the gut: “I confidently reassured myself, ‘No man would ask this of a woman with whom he wanted to have sex.’”

Turns out she was wrong.

Bravo was one of the first women to go on the record in the Washington Post about Rose’s actions, and her latest round of pungent recollections was prompted by a follow-up investigation that included allegations from a further twenty-seven women. Twenty-seven. Ostensibly her piece was a thankyou note to the two journalists who broke the story and then spent six months following it up to demonstrate an entrenched, systematic failure on the part of the networks who employed Rose. After all, given that the first allegation dates back to 1976, and the last was in 2017, some victims of abuse had not been born at the time of the original offence. Plenty of time for Rose’s employers to crack down.

And yet, as Bravo points out, they didn’t, until journalists Amy Brittain and Irin Carmon came calling:

After an illustrious-seeming, decades-long career moving among the most influential figures of our time, Rose was brought down by the tenacious reporting of two young women, Amy Brittain and Irin Carmon. Armed with little more than cold calls, they cultivated among those to whom they spoke a level of comfort and confidence that would have made Charlie Rose in his heyday envious. They exposed his open secret and everything the open secrecy had enabled.

Irin Carmon joined Jenna Wortham, a New York Times journalist who also co-hosts the Still Processing podcast, and NOW Australia founder Tracey Spicer, who is herself spearheading a number of #MeToo investigations, on a Sydney Writers’ Festival panel that I chaired earlier this month. At the end of the evening, in the midst of a rather heated Q&A during which a large man tried to co-opt every microphone in the hall in order to have his say (he was escorted, yelling, from Sydney Town Hall), a woman stood to say her thankyous.

“I came to Tracey with my story last year,” she said, “and she followed up with me and said, look, you’re not the only victim of this man, but we just can’t get the story up… As journalists you can only do what you can with the resources that you have [so] this comes back to the media organisations… I speak for myself and I speak for the other women who won’t see justice because of what’s acceptable and what’s not and that’s decided in an office.”

For the people in those offices who are weighing up whether to publish, part of the hesitancy comes from the stark difference between the legal landscape in which Carmon published her story and the one Spicer and her Fairfax and ABC collaborators face in Australia. The nature of defamation law in this country is stopping the #MeToo movement in its tracks.

Here, the media’s primary line of defence is truth — which means that the burden on publishers, once it has been established that a story is defamatory (which can be pretty easily argued in relation to most accusations), is to prove the truth of what they published. In the United States, defamation plaintiffs have to prove that what has been published about them is false. For the kind of allegations that #MeToo has brought forward, that burden of truth in Australia is diabolical.

That’s not to argue that journalists should be able to get away with publishing serious allegations without backing their stories with rigorous research. The standards at the Washington Post are by no means lax, as Carmon pointed out on the night. “The bar to get something to publication is really high,” she said. “The women who accused Harvey Weinstein — one of them had a recording and people still didn’t believe for years. So many people don’t have that kind of evidence, and it is potentially retraumatising for people to go through that.” And, of course, the most marginalised people are the least likely to have paperwork or diaries: “That is something that is very biased towards someone who is very comfortable with the system and not someone who’s been put outside of it.”

But combine these standard, and necessary, journalistic requirements with Australia’s defamation laws, the most prohibitive in the English-speaking world, and then try to get a story up. Publishers have to deal with the law as it exists, and the most fundamental difference comes down to the fact that the American people have an enshrined constitutional right to free speech and we haven’t.

“Because I’ve got such a large file now… I’ve got beyond a dozen accusations against many of the people who are alleged offenders,” said Spicer that night. “Even with that you have to almost act like you’re part of the police force. ‘Is there any clothing with DNA on it?’ ‘Are there any diaries, did you tell anyone at the time, a family member or a friend?’ That is the extent that journalists have to go to, particularly in a country like this, to build enough evidence for a case.”

Watching high-profile defendants like Craig McLachlan and Geoffrey Rush retaliate with legal action against their accusers has also had an effect. As investigative journalist Kate McClymont said at the same festival, “The current lawsuits involving the #MeToo movement have had a chilling effect on more women coming forward.” As a journalist, you have to be prepared to build a watertight criminal case. So, too, do the people coming forward in this country with their #MeToo stories. They are much more likely to have to defend themselves in court than their US counterparts are, and for many people that’s understandably too much to ask.

But according to Spicer, there’s another impediment to women telling their stories here in Australia. “I’ve been very sad to see some of the mainstream media organisations in this country… actively say to me we are pulling back from these stories for a couple of reasons: not only is it costly, not only is it difficult because of defamation, but it’s getting a little bit too close to our executives.”

That’s got nothing to do with defamation law, beyond execs using it as a cover, and everything to do with a continued, and systematic, abuse of power and privilege, the likes of which the Washington Post and the US media in general continue to expose because they have the relative freedom to do so. Without a change in our defamation laws, the victims of abuse in Australia may miss that shot at revealing the rot at the structural core of our institutions and changing it for good. ●

The post #MeToo gets closer to home appeared first on Inside Story.

The ICAC commissioner, Bruce Lander QC, has repeatedly asked for the right to conduct some of his hearings in public. He isn’t seeking to use that power in cases of corruption in the strict sense — where it involves suspected criminal offences — but he does want the discretion to convene public hearings when serious misconduct or maladministration is at issue.

The timing of the commissioner’s latest request was fortuitous. It came in his much-awaited report on the Oakden institutional care facility, which revealed shameful treatment of aged and mentally ill people under previous governments. Nationally, the royal commission into institutional child sexual abuse had recently completed its work  and the royal commission into the financial services sector had begun to expose deep-seated transgressions with wide consequences. With ICACs and royal commissions attracting broad and generally positive coverage, the commissioner’s request no doubt fell on sympathetic ears.

Neither anti-corruption commissions nor royal commissions have unblemished public records, of course, but they are generally considered to be highly effective instruments of accountability. When they are seen to be performing well, proposals to expand their powers are likely to gain extra traction. But an unqualified belief in their virtue is not necessarily a good starting point for adding to powers that can achieve laudable objectives yet also cause unnecessary harm, including to the innocent.

It’s important to remember that while ICACs and royal commissions share many features, there are important differences between the two — differences that are especially evident when the powers of South Australia’s ICAC are contrasted with those of the recent national royal commissions.

As inquisitorial processes, ICACs and royal commissions are subject to many of the same legal standards, and their key figures are often drawn from the same professional coterie of lawyers and former judges. Both are granted investigative powers that are denied to the police and other agencies. Because they investigate specific, pernicious subjects, they can force people to give evidence — including evidence against themselves — despite the traditional legal safeguards that limit this power in courts and other settings.

ICACs and royal commissions also generally use a combination of coercive and non-coercive powers to gather evidence and build investigative theories. Certain cases are then escalated to hearings in which testimony given under compulsion can be used to reach findings against individuals (subject to the limits of procedural fairness). Those findings might not have immediate legal effects, but they can be humiliating for their subjects and also have other serious consequences.

When South Australia’s ICAC investigates matters that fall outside the legal definition of corruption, it exercises powers annexed from the state’s Royal Commissions Act 1917. It can then make public findings of serious misconduct or maladministration, much in the manner of a royal commission, but with the crucial difference that the ICAC must exercise all of its powers in private, with only its final report released to the public. As a helpful point of comparison, this places the ICAC in a situation analogous to the state’s ombudsman.

By requesting the power to hold public hearings, Commissioner Lander is essentially suggesting that if South Australia’s ICAC is to behave like a royal commission, it should do so with the transparency traditionally associated with such inquiries. This would bring the ICAC into alignment with other legal proceedings that employ court-like methods of examining evidence and that likewise mirror courts by allowing public scrutiny. A concern for integrity lies at the root of this position. Decisions of great consequence to those affected — the prime example being a criminal conviction — must be reached with scrupulous impartiality and fairness, and the public is entitled to verify that fact.

Commissioner Lander doesn’t seek to downplay the potential consequences of scrutiny by the ICAC. The sanitised legal language often used to describe the dangers of investigative commissions — that they can cause “reputational harm” — woefully understates their effects. The stigma of having to answer allegations publicly and the humiliation of adverse findings can be devastating, ruining not just reputations but also careers, relationships and livelihoods. Commissioner Lander is right to suggest that any institution that wields such powers must act with unimpeachable integrity.

But whether integrity and publicity are synonymous is a complicated matter, especially when the consequences of commissions start accruing as soon as public allegations are made, not just when formal findings are released.

Here, the distinction between ICACs and royal commissions is important. ICACs are permanent investigative agencies whose officers, and ultimately the presiding commissioner, decide when to commence an investigation, when to escalate to formal hearings, and when to otherwise activate the institution’s coercive powers. Royal commissions are temporary agencies appointed by cabinet. Their appointment requires at least the tacit assent of parliament, since parliamentarians hold to account (or should hold to account) the cabinet members authorised to appoint a commission. While that process can be abused politically, the appointment of a royal commission normally signals an exceptional crisis of confidence in some field of public life. It may also signal that permanent mechanisms have been exhausted or are inadequate to the task.

Permanent agencies are limited by their mandates and jurisdictions; royal commissions are designed to transcend those limits, allowing them to draw links between issues that would otherwise be parcelled out among agencies. Royal commissions operate in public not just to ensure procedural integrity but also to deal very visibly with a crisis of public confidence, facilitate public participation, contribute to resolving systemic problems, and compensate for the limits of standing regulatory mechanisms. Anti-corruption commissions, on the other hand, are part of those regulatory mechanisms. They exist within a matrix of institutions — like the ombudsman, the police, and various specialised agencies — that work together to secure government accountability.

What does this perspective mean for the proposal that South Australia’s ICAC be given new public hearing powers? It raises the question of whether a permanent agency, driven by the judgements of independent officials in pursuit of relatively focused mandates, should be empowered to initiate public processes that have consequences similar to those of a royal commission.

Put another way, did the fact that the Oakden inquiry took place in private diminish the public’s right to be informed of its outcomes or to reach informed conclusions about the integrity of the process? No process can perfectly honour both the laudable qualities of transparency and the imperative of minimising unnecessary harm to individuals. Given the fact that the commission, those under its investigation, and the public at large will be affected in different ways by an investigation, the important question is where the balance should lie.

In an appendix to the Oakden report, Commissioner Lander reproduces a ruling denying the assertion by several witnesses that he lacked legal authority to criticise them in a public report. Avoiding such challenges would be one benefit, he suggests, of granting him discretion to conduct certain hearings in public. The public might thereby avoid having to judge criticism of the ICAC’s reports after the fact, without the benefit of having viewed the process. But might the public be willing to bear this burden given that the guilty and the innocent alike can have the misfortune of falling under an ICAC’s scrutiny?

Anyone reading the commissioner’s ruling might consider how the complex questions of statutory interpretation it considers — questions that involve cross-referencing three different pieces of legislation that govern one, discrete aspect of the commission’s power — might appear to a lay witness compelled by the ICAC to appear, especially someone unassisted by counsel. Whatever the legal merit of the ruling, it reveals an unacceptable lack of clarity in the legislative conception of the ICAC’s potentially harsh powers.

Accepting the commissioner’s request for a new power to hold public hearings will certainly bring clarity to the situation, but it will also allow the legislature to dodge having to define the limits of the watchdog’s powers. With that decision given to the watchdog itself, we must hope that future commissioners conduct themselves with the same concern for integrity that Commissioner Lander shows. ●

The post Does transparency have its limits? appeared first on Inside Story.

A few hundred metres away at McDonald’s, two large central tables are occupied by a group of teenagers whose recent origins lie in Africa. Only one of them is a girl, and the boys are jockeying for her attention. Their bantu knots make their heads seem knobbly. They touch each other’s heads and punch each other’s arms. The girl shows off her tight braids. The boys are in tracksuit pants and hoodies, and they are very tall and very dark.

They swarm outside, and take turns to ride a hoverboard around the carpark. Customers coming and going from the restaurant have to navigate around them. Snatches of conversation float by: it’s fuck this and fuck that. Someone messages them from Werribee station and suggests they catch the bus over there. Suddenly one of the boys starts chasing the girl around the table inside, everyone laughing. A bag of chips and a thickshake go skittering across the floor.

It’s here on the westernmost edge of Melbourne, according to last summer’s headlines, that Australia fractured. The Australian described it as a “summer of hate.” The reporting of this supposed crisis took in Tarneit and other suburbs across Melbourne, roping together terrifying home invasions in a number of suburbs, a party out of control in the southwestern suburb of Werribee, and violence thirty-three kilometres east on St Kilda beach. What each incident had in common were “African youths.”

Writing in the Herald Sun in December, Andrew Bolt used offences ranging from a central-city mugging to an attempted murder to argue that “integration” has clear limits “when the intake is of poorly educated people from a tribal and warlike culture.” It was Tarneit, according to the Herald Sun, that best symbolised the state’s “youth gang crisis.” Nine’s A Current Affair screened shocking CCTV footage of young black men beating up one of their number in a local street. Locals, said the two outlets, were living in fear of violent, rampaging African gangs.

At the dawn of the new year, home affairs minister Peter Dutton weighed in with a blast for the state’s Labor government, which faces an election later this year. He claimed that people in Melbourne were scared to dine out at night because they were followed home by gangs. Prison sentences were a joke, he said, and the police were acting on “politically correct” instructions from the state government. Gang violence was out of control and growing.

Premier Daniel Andrews and the Victoria Police denied there was a crisis but responded as if there were. Andrews said crime was under control but then went on television to condemn thuggery and promise firm action. The police rejected the idea of “gangs” but set up a taskforce of African community leaders.

People in the inner suburbs protested on social media at Dutton’s apparent racism and lampooned any suggestion that they were afraid to go out at night. They loved going to restaurants. They even went to African restaurants. But, for once, the inner suburbs — those safe Labor seats populated by the knowledge class — were completely irrelevant to this furore.

Police speak to young locals outside the Ecoville Community Park in Tarneit on 1 January this year. David White Photography/Newspix

It was a long silly season last summer: no catastrophic bushfires, no floods, and the Sydney-to-Hobart yacht race passed without mishap. Perhaps it wasn’t surprising that the media discerned another kind of newsworthy trouble and made the journey west to Tarneit.

Four months later, after the summer of hate had disappeared from the headlines, I went to Tarneit and spent many hours there at all times of the day and night. I was looking for trouble.

To get to Tarneit from the city you drive west on a highway that runs swift and wide between concrete sound barriers. Along the broad, walled-off river of traffic, trucks have left strips of shredded tyres like hard black lizard skins. Turn off after twenty-five kilometres and the first buildings you see are supersized warehouses and factories that dwarf the people who work in them.

Massive billboards rise out of abandoned farming land, offering three-bedroom house-and-land packages from $435,000 (or, as the local council’s website puts it, 27,800 smashed avocadoes). Earthmovers perch dinosaur-like over the skeletons of houses under construction, pine frames awaiting plasterboard, cladding and render. There’s a mosque, and a new grammar school. A plain brick house serves as an evangelical church; a pub-and-pokies palace offers a bland rendered wall to passing traffic.

This is the City of Wyndham, the fastest-growing local government area in Victoria, and one of the fastest-growing in the country. Thirteen babies are born each day in this sprawling municipality, and more than 13,000 extra people move here each year. In just five years, the population has grown by 37 per cent. It is Australia under construction, and Tarneit is its newest product.

From the new Tarneit Central shopping centre, opened just six months ago, the skyscrapers of the city are visible across the ancient lava plain. They are the distant point against which everything — housing prices, commuting times, job opportunities, visibility and power — is calibrated. Opposite the shopping centre, the Tarneit railway station looks like a spaceship landed in the paddocks. Here you can catch a fast regional train to the city for the same price as a suburban fare. On the opposite corner is the new Julia Gillard Library, and just down the way the promisingly named Prosperity Street travels past warehouses and piles of earth before ending at a farm gate.

The new suburb spreads out on the other three sides of the shopping centre. Each spanking new house has a little portico relieving its box-like features. The gardens are newly planted, and some of the neatest lawns, on closer inspection, are astroturf. There hasn’t been time to put down roots, not only because of migration but also because of stretched lives.

This is not a particularly poor suburb. On indices of social disadvantage it is in line with the rest of Melbourne, and it is ahead of Wyndham as a whole and several of its surrounding areas. The unemployment rate is slightly higher than Melbourne as a whole, but so too is the workforce participation — those in work or looking for work. Almost all families have two incomes and most people over the age of fifteen are employed full time, most commonly in healthcare, social assistance, transport, warehousing and retailing. These are the shift workers who service the city and look after the ageing. The cars start early in the morning and late at night as people travel to work, dropping their children at childcare centres at all hours.

If you’re on the street in the evening or the early morning you can be startled by garage doors opening suddenly, triggered by remote. A car appears and drives in, the door closes, the house lights up and the blinds are drawn. The street is empty again.

On Poplar Boulevard, a few hundred metres away from the shopping centre, a house has been vandalised or has met with some other misadventure. The portico has been stove in and the render is lying in sheets, the structure revealed. The walls are made of foam blocks held together by render and welded rods. One knock, and half the house is collapsing.

Half a century ago, the folk singer and activist Pete Seeger sang a song about the development of suburbia.

Little boxes on the hillside,
Little boxes made of ticky-tacky,
Little boxes on the hillside,
Little boxes, all the same…

But that was a song sung by a white middle-class man about the white middle class — a satire about conformity. This is different. Apart from the ticky-tacky of rampant property development, and behind it the cold, hard calculations of cost, price, profit and compromised building standards, it could hardly be more different.

More than half of the residents here were born overseas, and they come from 162 different countries. Combine that with the fact that it has the youngest population in Victoria — a median age of just thirty — and it means almost all the adults and most of the youth are new Australians. Fewer than half of the residents here speak English at home. The dominant ethnic group is not Africans or Sudanese, but Indians, who make up about 23 per cent of the population. After Australians and British migrants, Filipinos come next, at 4 per cent of the population, closely followed by Chinese. From there the ethnicities are more or less even in proportions — Italians, Irish, Maori, Maltese, Punjabi. Sudanese are the biggest African group and well down the list of population groups, at just under 2 per cent, or about 500 people at the last census.

In January, in the midst of the “summer of hate,” a scuffle at the Tarneit shopping centre appeared on the Daily Mail’s website as “the latest gang flare up” involving African teenagers. “EXCLUSIVE: Police SPAT ON and Abused as Officers Arrest African Teenagers Outside a Shopping Centre in Melbourne’s West in Broad Daylight — in Latest Gang Flare Up” read the headline. Pictures showed black youths being restrained by police.

Two days after the article was published, the Victoria Police executive director of media and corporate communications, Merita Tabain, wrote a confidential email to the editors of Melbourne’s main media outlets expressing concern that aggressive behaviour by journalists might “exacerbate the current tensions.” She used the incident at the Tarneit shopping centre as an example.

The incident, she said, had been provoked by the photographer’s decision to “move in to take close-up photos of a group of African teenagers socialising.” The teenagers, she went on, “had been doing nothing of public interest prior to the photographer’s decision to move in and take the photos and [the group] reacted to the photographer and what he was doing. This led to police being called in and a scuffle ensued in which police were spat on and arrests were made.” The photographer had apologised for provoking the incident, Tabain reported, but the published article makes no reference to this.

Today, on a warm weekend in April, the most noticeable people gathering outside Tarneit Central shopping centre are men in immaculate suits and gleaming shoes. They are real estate agents. On any weekend, they are among the most prominent people in Tarneit, erecting open-for-inspection signs in seconds and ferrying young families — women in headscarves, men in turbans, all kinds — around the quiet streets.

Inside, the centre is gleaming. The signs in the shops speak of lean meats and fresh vegetables. Anglo faces are in the minority. Many women wear headscarves. It seems as though every shopper has a toddler at foot or in a pusher, and as though every second woman is pregnant. If this is Australia under construction, then it is possible to feel proud. It is busy, diverse, moderately prosperous and harmonious.

If it differs from older shopping centres in established suburbs, it is in the degree of sociability. Dutton worried about people going to restaurants, but the truth is there aren’t many restaurants in Tarneit, other than the fast-food chains. There are cafes in this shopping centre, and they are almost empty. People come here, do their shopping, and leave.

Two cops stroll through in high-vis vests, with truncheons, pepper spray and all the other accoutrements of the modern police officer on the beat. They are looking at their mobile phones as they walk. If this place was not flat, bright and neat, they would surely trip over. They could hardly be more relaxed.

What do people here think about the media attention their suburb received over summer? Is this a safe place to live?

A couple living on the improbably named Camelot Drive, about a kilometre from the shopping centre, arrived from the Philippines five years ago. She works in aged care. He drives a truck. Their children are cared for by an enormous new childcare centre a suburb away. In the mornings they wake early to juggle shifts and responsibilities. Their evenings are spent inside, sleeping, watching television or Skyping with relatives in the Philippines.

Australians, they say, don’t know how lucky they are. Here there are no shootings in the street, no armed war on drugs, no homes lacking toilets or running water. The gangs? There were some teenagers who got out of control. It’s quiet now.

Mr and Mrs Fletcher are doing their shopping at Tarneit Gardens. They have lived in Wyndham all their lives, and they don’t like the way it is changing. Chief among their complaints is traffic congestion, the amount of time it takes to reach the highway from home. But they are also concerned by all the different groups, and the feeling that the newcomers don’t socialise. They are living adjacent to, rather than with, these new Australians. And the African youths — yes, they are frightening.

A short walk away, in Rippleside Terrace, estate agent Rajesh Kumar has a seven-year-old townhouse for sale, a “stunning” residence “enjoying a lakeside view” over what the maps call Sayers Drain, an agricultural drainage channel now made the centre of a big, grassy park. The townhouse is one of the oldest residential buildings in Tarneit and is part of a high-density, two-storey cluster. The sign says it’s “perfect for executives, busy families or investors.”

The sellers are a Chinese family with young children looking to move to something larger. Is there ever any trouble in the park over the road, I ask? Kumar tells me that the park is fine. Tarneit is fine. Then, unprompted, he mentions Ecoville Community Park. The trouble, he says, was over there. Perhaps I read about it in the papers. The African teenagers wrecked it. “But now there are police there all the time. I live in Tarneit. Tarneit is fine.”

All human stories take place in a landscape. All are partly about land — how we use it, usurp it, mould and are moulded by it.

The focus of media attention in Tarneit over summer was on one piece of land, Ecoville Community Park: the “heart of darkness,” as one media report described it, the “symbol of the state’s youth gang crisis” according to the Herald Sun. This very local story made it into the Australian’s national affairs section: “A gang of youths have vandalised the community centre and park at a new Victorian estate, terrorising families with nightly crime sprees… The youths, mostly of African appearance, have trashed the Ecoville Park in Tarneit…” And on it went, linking the vandalism in this park with the out-of-control party in St Kilda, and an assault of a police officer at another western-suburban shopping centre.

Responding to the incident, premier Daniel Andrews vowed that those responsible for the damage would feel “the full force of the law.” The Australian’s editorial writers weren’t reassured. “It should be abundantly clear by now that a zero tolerance approach that puts the public interest first is sorely needed to bring order back to Melbourne’s suburbs,” said the paper. “Yes, most of the offenders are young. But they are old enough to accost shopkeepers with knives and shotguns, and commit armed robberies and indecent assaults, cause serious injuries and endanger lives, and kick police officers in the face…”

The paper’s coverage was illustrated with pictures of the Ecoville community centre showing broken windows, bashed-in walls, torn-apart furniture and walls scrawled with graffiti. “Like many other incidents in Victoria,” the paper concluded, “the young Africans’ recent rampages are the work of a small percentage of immigrants from less civilised societies, where violence is routine. But their backgrounds are no reason for authorities to turn a blind eye to their criminality.”

The park has its own story, which began back when the Ecoville housing estate was first conceived by the Resimax Group. The company’s website still carries the advertisement for housing sales, in which the park’s “community pavilion” features prominently beneath an impossibly blue sky. Soaring white sails shelter a sparkling building:

The architecture of this community pavilion creates a strong statement about the progressive nature of the municipality it belongs to. The designers have embraced the ideals of eco-sustainability with a contemporary approach to outdoor establishments. The design is intended to create a landmark feature and to become a beacon for future property developments in Australia.

Today, driving past the little boxes to the community centre, the white sails soar over the houses, but they are grubby and scrawled with graffiti. The skatepark, the tennis court and the basketball court are strewn with rubbish. The grass is unmown. The community centre is boarded up. But young people are clearly still gathering in what the developers grandly described as an “amphitheatre” — a neglected sunken area in front of the community centre.

What went wrong? The story emerges from the minutes of the Wyndham City Council. Once the suburb was built and the houses sold, the park was abandoned by the developer. Officially it belonged to the owners’ corporation, to which all the recently arrived owners of the surrounding houses belonged. It was private space, which meant council had no power or responsibility for its upkeep. But the owners are owners only in law, not as a lived reality. They do not gather, they do not associate. The owners’ corporation is run by a group that specialises in such things, based far away in Port Melbourne. When council ordered clean-ups, the owners’ corporation complied. But now the owners’ corporation has asked council to take over the park. Council has refused.

The park was a modern-day folly, a developer’s marketing device. It has no part in council’s open-space plans. It is too small to be a “district park” and not modest enough to be cheap to maintain. It was in even worse condition back in summer, says Wyndham councillor Kim McAliney, who holds council’s portfolio for community safety. When the “African gangs” crisis hit the headlines in summer, she took it personally. She visited Ecoville Park and was “not happy.” An abandoned car body was sitting in the middle, rubbish was everywhere and the community centre was wrecked. It might still look dreadful, she acknowledges, but it is better than it was.

Some of those who hung around the park and caused the trashing were certainly Sudanese youth, she says, but the problem was longstanding. The vandalism had been happening for at least eighteen months. Of course young people gathered, says McAliney. There were toilets, water, electricity and free wi-fi. And, of course, the Sudanese stuck out. “They are tall. They are thin. Shopkeepers worry when they hang around in a way they wouldn’t worry if they were Italians, for example.”

After the attention given the park by the national media, police began to patrol it constantly. Council cleaned it and boarded it up. More importantly, council organised for the owners’ corporation to turn off the services and free wi-fi that had encouraged young people to gather. In the wake of council’s refusal to take over, a case to wind up the owners’ corporation and sell the park is before the Victorian Civil and Administrative Tribunal. It will probably be sold to another developer and used for more housing.

McAliney is concerned about law and order in Wyndham. She has been campaigning for a long time for a new police station at Point Cook — an initiative that was funded in the recent state budget. But the main safety issue in this suburb, she says, is not gangs but family violence. “And in that we are not alone.”

And the attutude of the police themselves? Until the day I interviewed him, Russell Barrett was commander of Victoria Police’s northwestern region, which includes the City of Wyndham. For months before the Herald Sun discovered Ecoville Park, he says, police had been talking to council and the owners’ corporation about “the way we are using that space, the way suburbs like this get constructed, and what the developers leave.” Police had brought the parties together to try to resolve the issues it was causing.

Then the Herald Sun discovered it. Barrett is reluctant to criticise the media. The offences they reported across Melbourne did occur, and some of them were serious. “Victoria Police has never shied away from the fact that serious crime was happening. I think that when they highlighted areas like Tarneit and Ecoville it placed pressure on the totality of the community, and made them feel, I suppose, a little bit more vulnerable and on edge. That then really challenges the strength and fabric of community.” He doesn’t say this, but part of the problem is surely that there is not much fabric there.

The police began to get a new kind of phone call from people in Tarneit. One night there was a call at eleven o’clock complaining that there was a group of “African” youths playing basketball in the school grounds at Tarneit — just a stone’s throw from Ecoville Park. The police attended. The young men were not doing anything wrong. The court was well lit, and it is understood that students can use it after hours. The police spoke to them, and that was that.

It is possible, thinking of this incident, to feel sympathy for everyone involved. Imagine the schoolyard at Tarneit on that hot summer night. Like the whole suburb, it is new. Take a wrong turn around here and you end up in farming land still in the process of being subdivided. At night, the sound of crickets is so loud that you need to raise your voice to be heard. You can see foxes on the streets. The suburb has yet to entirely obliterate its rural origins.

The young Sudanese men gather to play basketball. It is hard to imagine anything less antisocial for them to do in this suburb of deserted after-dark streets. But the neighbourhood is frightened. It has been told it is in crisis. And the crisis is just over there, it seems, just a street away…

A call is made. Then, out of the blue, the police are there. They talk to the young men but make no arrests. Perhaps they suggest that 11pm is not the best time to be playing basketball.

The neighbours have rung the police because they are scared. The police have responded because that is their job. The young people have done nothing wrong. Yet all it takes is a few incidents of this kind and the police will be accused of racial prejudice and racial profiling. But who is racially profiling? The police, or the neighbourhood?

Stories like this abound in Tarneit. I spoke to three brothers who caught the train at Tarneit station. They are tall young men — tall enough to have to duck as they enter the carriage. When they got on board, three families moved to another carriage. Or there are the two young men, sitting in a car in a driveway, not doing anything wrong, just talking. The police pulled up. Someone had rung saying that there was an African gang outside.

On the day I interview Barrett, he was promoted to assistant commissioner for police complaints. The post had fallen vacant after it was revealed that his predecessor, Brett Guerin, had been making social media posts, under a pseudonym, laced with sexually explicit comments. It was the end of a month in which the media had also carried reports of brutality by police — a disabled pensioner pepper sprayed, an African man beaten and kicked while lying handcuffed on the floor.

Barrett doesn’t want to talk about the challenges of his new post. When I ask him for his response to allegations that the police racially profile, he replies smoothly. The police focus on the offence, he says, not the race of the offender. “You know, in terms of policing, if offending is taking place in a geographical area, and the intelligence points to a cohort of young people, then we will talk to those young people. Not all of them will be committing offences.”

Barrett doesn’t believe there is a crisis among Africans. Many of them are already doing very well, he says, and in twenty years they will be an accepted part of the community, just like the Indochinese and the Greeks and Italians before them.

Meanwhile, they have shallow roots. Barrett thinks about how his own children found their first jobs, their first footholds in society. It was through family friendships and connections, something the Sudanese, so recently arrived, clearly lack. Not surprisingly, some young people become alienated and go astray.

Over the past few decades, Victoria has moved away from the idea of a police force and towards a police service — community policing. Police are community workers, bringing in social services to try to change the circumstances that lead to crime. But can that possibly work when at the same time police must do the gritty, frontline tasks of finding and arresting offenders? Barrett acknowledges a tension. The “interface,” he says, is “challenging.”

He tells his people to do their jobs — arrest the offenders and begin the processes of criminal justice. But after that, he says “They should be looking for the causal factors for this crime. What are the vulnerabilities within their family network? And start to link that person with other support agencies who actually provide the necessary services.” A large part of his job is interacting with state and federal government policy, to try to talk about what is needed in the way of such support.

But for police to be able to do this on-the-ground community work, he says, they must have the trust of the community they are dealing with. That is difficult when it is also their job to prosecute offenders. “Ultimately we can do a lot but if the young person isn’t willing then we’re not going to be effective.” And in that difficult relationship, incidents like the young men playing basketball and being spoken to by police don’t help.

Nyadol Nyuon is an example of what Barrett describes as a Sudanese young person doing incredibly well. She came to Australia as a teenager straight from a Kenyan refugee camp. She graduated from Victoria University and then Melbourne University, and now works for the law firm Arnold Bloch Leibler in the heart of the city’s legal district. She is a community leader. She has appeared on the ABC’s Q&A. She hears all the time about racial profiling by police. It is hard, she says, to be constantly called on to express gratitude to Australia — to be conspicuously thankful — while facing implicit racism.

Nyuon lives in the southeastern suburbs, far from Tarneit. But has she, with her professional qualifications and her confident manner, been subjected to racial profiling, here where she works in the centre of the city? It is hard to know. In the past year, she tells me, she has been stopped three times by police and charged with jaywalking. This could be because she is black. And it’s true, she was jaywalking. “I was in the wrong. I was doing the wrong thing. It’s hard to know.”

So are there African gangs, or is the whole thing a media invention? The coarse net of crime statistics is not, by itself, very helpful. The figures have been used by both those who want to create a sense of crisis and those who want to quieten the fears.

Those who say there is no problem point to the fact that overall crime fell in Victoria over the last year — the period in which some media outlets would have had us believe Victoria was in a crisis of violence and fear. Crime dropped by 6 per cent, the biggest drop in twelve years. The crimes that so many people fear — home invasions and burglaries — were also down, by 15 per cent to 46,311.

But this decline followed a long period of a slightly upward trend, meaning that the state is now back to roughly where it was in 2014. For crimes against the person — assaults and other violence — though, the picture is slightly different. Numbers had been relatively steady for years, but rose last year by 1.5 per cent, driven by an increase in sexual offences, and with domestic violence a key factor.

On one reading of the statistics, Sudanese-born people are over-represented — and this is how the numbers have been reported. Sudanese make up just 0.1 per cent of the state’s population, or about 6000 people, but the data shows that they are responsible for more than 1 per cent of all crime in Victoria and are particularly over-represented in several categories. In the year to September 2017, among alleged offenders aged between ten and eighteen, Sudanese-born Victorians were involved in 3 per cent of serious assaults, 2 per cent of non-aggravated burglaries, 5 per cent of motor vehicle thefts and 8.6 per cent of aggravated burglaries.

But statistics can lie. First, they record only country of birth, not ancestry. Those of Sudanese background who were born in Australia show up as Australian offenders. If Sudanese ethnicity is a problem, the statistics probably under-represent it. On the other hand, the statistics reflect arrests and charges, not convictions. Some of those caught in the mesh may not have been guilty of the offences with which they were charged.

Finally, and most significantly, there is the age of the Sudanese population. The deputy director of the Centre of Social and Population Research at Monash University, Rebecca Wickes, describes as a “brute fact” a concept criminologists call the age crime curve. It represents what every parent knows — that people are most likely to get into trouble with the police between the ages of fifteen and twenty-four. Combine this with another fact — that the Sudanese are the youngest ethnic community in Australia — and their apparent over-representation in the crime statistics becomes not so much a brute fact as a questionable one.

Surprisingly, nobody has done the detailed modelling that would tell whether Sudanese — or any other ethnic group — are offending at greater rates than other populations of similar age distribution. “It’s a complex thing to do,” says Wickes. “You’d have to age standardise and you’d have to do a whole bunch of funky statistical tricks.” But without this work, she says, it is simply not possible to say with confidence that Sudanese youth are more likely to break the law than other young people. The apparent over-representation in the statistics would certainly be reduced and might even disappear if age distribution was factored in.

Meanwhile, the total number of offences in which Sudanese youth are involved is numerically small. “There is nothing in the statistics to support the idea that we have a crisis of African gang activity such as what’s been reported in the media,” says Wickes. “There’s just simply no evidence base for that whatsoever.”

Police and criminologists agree that a small number of young men of African appearance are responsible for repeated violent offences. “It’s a drop in the offender bucket,” says Wickes. “It’s serious, though, and it has consequences. If anybody has ever been held up at night or invaded in their home [they know] it’s terrifying and dangerous. It’s particularly terrifying in a country like Australia, where serious violence is not the norm.”

Russell Barrett agrees that the serious problem is not vandalism at Ecoville but “a very small cohort of young people from African-Australian backgrounds who we are seeing continually, and they are committing really high-harm crime.”

How big is this cohort? Wickes says the data doesn’t allow an accurate figure to be discerned, but her experience and contacts in law enforcement lead her to the conclusion that it is a few dozen — perhaps around forty. Her impression is that the police are pursuing these groups hard. “They want to see them locked up and off the streets.” Barrett declines to confirm that figure of forty explicitly, but says, “I wouldn’t argue with it.”

It is this group, overwhelmingly, that is committing the serious home invasions and assaults. Added to this are parties that get out of control, the minor crimes like vandalism, and the fact that some of them involve young men of African appearance. “We see parties that get out of hand in policing all the time,” says Barrett. The use of Airbnb properties for parties has made the problem worse. This is a Melbourne-wide problem, but he has observed that such incidents usually make the media only if African youths are involved.

Are the serious offenders of African origin forming gangs? Wickes and Barrett say that it depends partly on definition. There is no hierarchy or organisation within the groups, as there usually is in “gangs.” They don’t wear distinctive colours or move as a unit. A lot of the crimes are opportunistic, sparked by an unlocked house, for example.

Barrett prefers the term “networked youth offending.” In other words, “young people who communicate with each other by social media and come together for a purpose, which might be entertainment or sporting events or crime. They’re all using the same methodology.”

When the groups commit crime, he finds that the young people involved had often not met each other before. “They’ve communicated somehow. They’ve come together through a loose social connection for a short period of time and they’ve gone out and committed a crime together and it could be a really serious high-harm crime. But they don’t actually know each other. They might not have met each other till half an hour beforehand, but they’ve had a connection through social media.”

Early last summer there was a spike in the number of assaults and home invasions committed by such groups. This was the nugget of truth in media reports of crisis. Barrett says there is no discernible reason for that spike, which has now subsided. Summer school holidays are often a period of trouble, with young people on the streets. But the recent Easter school holidays passed without any increase in crime. As for the rest of the media’s talk of crisis, it was mostly breathless reporting of routine incidents such as out-of-control parties and vandalism.

But what about the fear in a place like Tarneit, with its shallow roots and its lack of places in which the people might come together to form a common understanding of the nature of their suburb? Rebecca Wickes says that international research on perceptions of safety consistently finds that people’s fear of crime and perception of personal safety has little to do with the actual crime levels. The research has used every plausible measurement, including researchers driving slowly around a neighbourhood recording incidents. Overwhelmingly, the research shows that the most powerful driver of people’s perception of risk is the level of poverty and ethnic diversity in a neighbourhood. “So I think we have a very strong ‘worried well’ population in Victoria. I think this is absolutely a crisis of perception,” says Wickes.

And Tarneit in particular? The state’s Crime Statistics Agency provided me with crime and country-of-birth figures, both for the City of Wyndham as a whole and for Tarneit specifically. (For privacy reasons, given the small number of offences, the agency would not provide a detailed breakdown of offences by country of birth for an area as small as Tarneit, but it provided that data for Wyndham as a whole.)

In 2017, the period that includes the “summer of hate,” people of Sudanese birth committed ninety-two crimes against the person and sixty-nine property and deception offences in the City of Wyndham. In Tarneit, the Sudanese-born were responsible for 7.2 per cent of all offences, which sounds bad — but the total number of offences was just fifty-one over the year, and it was down on the previous year.

On the other hand, the long-term trend shows sharply increasing percentages of offences committed by the Sudanese-born. At first sight it is alarming — until you match it with the Australian Bureau of Statistics census data. In 2011 there were just eighty-four Sudanese-born people living in Tarneit, and 112 who described their ancestry as Sudanese. By the 2016 census, it was 345 born in Sudan and 621 with Sudanese ancestry. Match this with the crime statistics, and a rough analysis suggests that the apparent leap in Sudanese crime in Tarneit is exactly in line with the increase in the Sudanese population.

It was easy, watching the group at McDonald’s that weekend, to imagine how their boisterousness, their egging each other on and their domination of space could get out of hand. It was easy to imagine them gathering at Ecoville Park before the constant police patrols began and the wi-fi was cut off. It is easy to imagine Ecoville getting trashed.

But in the two hours I watched and stalked these teenagers, they might have been a nuisance, but they did nothing illegal. Apart from their colour, there was nothing to mark them out from any other group of teenagers with nothing to do on a Saturday afternoon. This was the closest thing to trouble I found in Tarneit during three weeks of visits.

I stayed in Tarneit until late that night. Peter Dutton had said that people in suburbs like this are scared to go to restaurants. There aren’t any restaurants in Tarneit other than fast-food outlets, but they were doing a good trade. The kebab shop at the shopping centre had a United Nations of ethnicities queuing up to be served.

As midnight approached, Ecoville Park was in darkness, but something was going on. Voices echoed from the “amphitheatre.” A laugh, a string of swearing, the sound of broken glass being kicked.

It was a warm night. It took a while, but finally two figures emerged into the street light — teenagers, a girl and a boy.

It was clear what they were here for. They were flirting and snogging and feeling each other up, out of sight of parents. Who knows what happened on this night, what memories and futures they created in this liminal space, this social hole in this brand-new suburb?

The boy was very tall. He was of African appearance. The girl was white. ●

Funding for this article from the Copyright Agency’s Cultural Fund is gratefully acknowledged.

The post Looking for trouble appeared first on Inside Story.

Two recent series from Britain break the conventions by subordinating the crime story to a larger social drama. Both are dominated by an all-encompassing sense of crisis. Both boast impressive talent at the helm. And both, unusually, are the work of a single writer rather than a scripting team, giving the authorial licence that can allow for stronger thematic qualities to emerge.

Collateral (BBC/Netflix) is the work of one of Britain’s most distinguished dramatic writers, David Hare (the films The Hours, The Reader and Plenty are among his credits) and director S.J. Clarkson, whose track record includes Life on Mars and Orange Is the New Black. Hard Sun (BBC/Hulu) is directed by Brian Kirk, who made a key contribution to the first season of Game of Thrones, and written by Neil Cross, creator of Luther.

Credentials like these give rise to high expectations, though the mixed response to the two series so far may indicate the unfamiliar challenges they present to viewers primed for a more generic approach.

From the start, Collateral pitches us into a world of strange angles and exaggerated sounds. The opening shot is taken from the inside of a pizza oven, with the camera looking out at the server opening the door. After an altercation about who’s to do the delivery job, we follow the box as it is whisked away on the back of a motorbike, taken up a staircase whose wrought-iron railings cast twisted shadows on the wall, and passed through the door of an apartment to a woman holding a screaming baby. She asks if it has “special topping,” hands him a few coins, and slams the door.

Shots inside and outside the flat are intercut, with corresponding shifts in the soundtrack’s focus. We hear footsteps on carpeted stairs as the delivery guy runs back down the stairs; the woman tosses the box and its contents into a corner as the baby continues to wail; another door slam signals an exit into the street below. Then there are three shots, and as the victim falls the coins of the tip jingle on the pavement.

Hare knows when to subordinate dialogue to the communicative artistry of the cinematographer (Balazs Bolygo) and sound editors (Oliver Brierley and Stephen Phillips). He also knows how to trust actors, understanding that the words they speak are as much a form of behaviour as a means of relaying information. The best television actors have ways of composing subtle languages of manner and expression, and the casting director for this series (Lucy Bevan) has assembled an A team, headed by Carey Mulligan as detective inspector Kip Glaspie.

Mulligan’s early career in the movies was an illustration of the old adage that your face is your fortune. With the delicately etched features of someone barely out of childhood, Mulligan was typecast as the romantic ingenue, a delicate weepy girl who specialises in the art of smiling through tears. As Gordon Gekko’s wronged daughter in the 2010 sequel to Wall Street, a role of insufferable sentimentality, she was in tears in almost every scene. In The Great Gatsby she was picture perfect as the deluded millionaire’s dream girl, Daisy Buchanan.

Here, against type, she gets to play an assured professional whose fleeting smile appears only as punctuation for a sardonic comment. There’s a scene in which a politician, played by John Simm, approaches her outside the station to discuss a highly sensitive aspect of the investigation. “I have to guess whether you’re someone I can trust,” he says. Without breaking eye contact, Mulligan leans against the bonnet of her car, arms folded, and invites him to “Guess away.” She does inscrutable to perfection.

Mulligan as a screen presence contrasts very effectively with Nicola Walker, who has a major role as a priest in a fraught relationship with the prime witness. Walker’s broad, open face and natural warmth make her a much-needed point of emotional connection for the viewer. And there is a very nice rapport between her and Simm, as both find themselves drawn into ugly forms of compromise.

Glaspie’s investigating partner Nathan Bilk (Nathaniel Martello-White) is always one step ahead of the witnesses, picking up immediately that there’s something fishy about the “special topping” on the pizza (it doesn’t mean anchovies) and that the allocation of the fatal delivery job was not, as the manager claims, random.

This is not a story in which time is wasted on false leads, though leads run in all directions, most of them weighted with personal crises. A traumatised army captain, played by Jeany Spark, is at the centre of the investigation; the two sisters of the murder victim are trying to avoid deportation to Syria; and the sole witness is a young woman who has overstayed on her student visa.

Immigration is an increasingly common theme in British television drama. At least in theory, the plight of those living under threat of deportation adds pathos and tension to a storyline. But it is a challenge to portray this plight in any compelling way when the viewer’s primary engagement is with a savvy police detective. Genre expectations remain strong: we want the detective to get on with the case rather than become emotionally involved with someone in an impossible predicament.

Hare seems to be trying to straddle the suspense lines of the crime thriller and the social themes associated with an English tradition of left-wing political drama. The blend is intelligently handled, though the drama is not always compelling and some of the political points are well worn.

Simm’s character is a Labour shadow minister who refuses to toe the line when his leader compromises the party’s stance on refugee protection. He’s the lone hero who stands on principle, a Jeremy Corbyn figure from the 1990s. With Corbyn as party leader, that narrative is outdated; the current splits in British Labour happen when MPs cross the floor to support the Tory government.

Where Collateral is tightly structured and delivered in four one-hour episodes with no plans for a second series, Hard Sun’s first six episodes are part of what Neil Cross calls “a five-year plan” for the story’s arc. What dominates that arc is the discovery of data detailing how a “hard sun” event will terminally scorch the Earth in five years’ time.

This idea, and the atmosphere Cross and Kirk seek to create in portraying a doomed London, has its origin in a track from David Bowie’s 1976 Ziggy Stardust album, Station to Station. In the song, Bowie wanders through the streets knowing that the planet has only five years left. Instead of descending into a Megadeth dirge, says Cross, Bowie’s vision gives an “absolute value” to everything he sees and everyone he passes.

It’s hard to find much of that kind of vision in Cross’s own storylines, which veer between outbursts of shocking brutality and prolonged sequences of low-key tension. Early in the first episode we see someone falling from the balcony of a high-rise apartment block and being impaled on the branch of a tree, a USB drive dangling from his bloodied hand. Whatever is on the drive has a devastating impact on those who look at it.

Agyness Deyn plays the hard-bitten detective inspector Elaine Renko, a lanky androgynous figure who evokes something of the Bowie persona, though Deyn, despite being a former celebrity model, leaves the glamour out of it. That shows some dramatic discipline. It’s an almost deadpan portrayal most of the time, and when emotional reactions do break through they are kept sternly within bounds.

Renko’s brief is to keep a watch on her partner detective chief inspector Charlie Hicks (Jim Sturgess), suspected of murky dealings that may have led to the death of a colleague. The mistrust between them breaks out into violence as they battle with the vast implications of the secret they discover when they locate the drive with the classified government data file codenamed “Hard Sun.”

The file has been hacked and retrieved from the murkiest depths of the dark web with the introductory announcement, “Reality is broken.” An MI5 operation fronted by the sombre and imperturbable Grace Morrigan (Nikki Amuka-Bird) is set to track down the file and suppress it, but Renko is determined to make it public. When she delivers it to a journalist, though, things take another twist: the BBC’s Hardtalk is coopted in a media campaign to treat it as a hoax.

It’s a brilliant set-up for a hard-edged story, but, frustratingly, this one goes off the rails, spinning out into a series of plotlines involving suicides, tortures, beatings and kidnappings. Over-pitching the action is an all-too-common mistake in television thrillers, and here the constant parade of brutalities distracts from the political and psychological tensions that are its most promising ingredients.

Whether Cross will get the opportunity to see out his five-year plan for the series remains to be seen. In Britain, ratings dropped by over 30 per cent over the first four episodes, and the bid to attract an Australian audience has been tentative, with Channel 7 allocating it a late-night slot. (The whole series is now available on demand through 7Plus.)

There is, at least, news that season two is in production. Some drama series improve as they go and this has the makings of a long-running enterprise if Cross can commit more fully to the magnitude of this theme and the production team can focus, in the spirit of Bowie’s evocation, on the poetics of a doomed London. ●

The post Life on Earth appeared first on Inside Story.

In Australia’s top court, it’s a different story. All four decisions made in the High Court of Australia last month were approved by every judge who sat (even if they sometimes disagreed on the reasons). This contrast between Australia and the United States is new. The nine justices of the US Supreme Court have long divided, often sharply, in around half of their cases. Canada’s top court is the same. And, just a decade ago (and two chief justices back), so was Australia’s.

In recent years, though, the High Court has become like Britain’s top court, whose judges agree roughly three-quarters of the time. Only in about fifteen cases a year in each court does a judge disagree with the rest. Close decisions, like the five–four decisions that are common in America, now only happen here about once a year.

Many people like our newly harmonious top court. Our current chief justice, Susan Kiefel, says that she thinks the High Court’s judges should think long and hard before disagreeing with the majority: “It could just be that one is wrong.” The court reaches its decisions quickly and without rancour. Australian lawyers and law students have fewer messy rulings to deal with. But some people — I, for one — dissent.

What’s not to like about judicial agreement? Nothing at all, if the judges are judging easy cases. But the top courts in Britain, the United States, Canada and Australia usually hear only the toughest, most controversial cases. If top judges constantly reach the same decision on hard cases, we’re entitled to start wondering why.

The US Supreme Court learnt that hard lesson eight decades ago. In the 1930s, four of the court’s nine judges agreed so regularly on (often novel) constitutional challenges to the New Deal legislation that the media dubbed them “the four horsemen.” This pointed label allowed an aggrieved Franklin Delano Roosevelt to tell Americans, shortly after his thumping second election victory, that “in our courts we want a government of laws and not of men.”

Detailing the four’s shared decisions (in majority and dissent), he declared “a quiet crisis” and announced his plan to appoint extra judges “who will act as Justices” and “save our national Constitution from hardening of the judicial arteries.”

No politician will ever accuse Australia’s High Court of being a “third house” of parliament (a term FDR coined long before Malcolm Turnbull used it in a different context). Our Constitution places very few restrictions on what our parliaments can do. Indeed, the High Court only makes a couple of politically important decisions a year and the bulk of its work is made up of regular court appeals. That is why Australia’s High Court has never developed political blocs like the liberal and conservative wings of the US Supreme Court.

But Australia’s High Court has had a long and proud history of internal debate about Australian law, often propelled by particular judges — known as Great Dissenters — who routinely criticise the majority’s approach. Past examples are Sir Isaac Isaacs (the first Great Dissenter), Sir Owen Dixon (often regarded as our greatest judge) and Lionel Murphy (whose radical views became the orthodoxy when Sir Anthony Mason was chief justice). More recently, Michael Kirby and Dyson Heydon have taken on the role of “appealing to the future” with particular vigour, dissenting in up to half of their cases.

But no more. Since Heydon’s departure five years ago, the High Court has no Great Dissenters — or even middling ones. The closest thing to a regular dissenter is former solicitor-general Stephen Gageler, who has disagreed in barely one out of eight cases.

And that’s how Chief Justice Kiefel likes it. In a speech late last year, she hearkened to a time in England when judicial dissent was regarded as “a serious thing” reserved for the most important cases, lest it detract from the court’s authority. She declared that it was “perfectly proper” for “senior judges” to persuade dissenting judges to tone down their language in the name of dignity and others’ feelings. Dissents, she said, aren’t courageous and may even be cowardly if majority judges opt not to “enter the fray.”

Kiefel advises law students to pay more attention to “more mundane majority judgements” and legal commentators to stop encouraging dissenters’ “self-indulgence.” (In passing, she mentions a recent book edited by UNSW’s Andrew Lynch on Great Australian Dissents, which includes a chapter by me feting the dissenters in Lindy Chamberlain’s failed High Court appeal).

She certainly practises what she preaches. Kiefel now dissents in fewer than one in forty cases, or just one a year. It’s been more than two years since her last dissent (over the meaning of a trust deed).

The “court packing scheme” FDR proposed in 1937 never eventuated. Just as the scheme was announced, the court’s two swing voters swung behind the New Deal legislation, isolating the four horsemen. Shortly after, the bloc’s oldest member, Willis Van Devanter, retired to a Maryland farm and a freshly legislated pension. The Washington Post bid the judge a cold farewell:

Justice Van Devanter might have been called “The Great Assenter,” in contradistinction to the term “The Great Dissenter,” often applied to the late Justice Oliver Wendell Holmes. His record up until the last or present term of the court shows that of the forty-one cases in which acts of Congress were held unconstitutional, Van Devanter assented forty-one times and dissented none.

His replacement, Hugo Black, had voted for every New Deal statute as a senator.

By the Washington Post’s standards, Australia’s current High Court has three Great Assenters, each of whom has dissented in fewer than one in forty cases in the past four years. In addition to Chief Justice Kiefel, there are Justices Patrick Keane and Virginia Bell. Since the start of 2014, Bell has been the court’s Greatest Assenter, with just two dissents out of 164 decisions.

What is different about these three judges? After all, the entire current bench are a very agreeable bunch. But these three stand out in how often they agree with each other. Most pairs of judges on the court agree between 80 per cent and 90 per cent of the time. But, in the past four years, both Keane and Bell have sided with the chief justice in 97 per cent of the cases where they sat with her (and about 95 per cent of the time they sat with each other). The three reach the same decision in nine out of ten cases where they are together on the bench.

On a seven-member court with no political blocs, three judges routinely agreeing is enough to allow them to determine nearly all of the court’s orders. As a past judge, Michael McHugh, candidly admitted of his time on the bench in the 2000s:

I regard [chief justice] Murray [Gleeson] and myself as irrelevant players while we were on that court together, for the reason that [Bill] Gummow and [Ken] Hayne always seemed to come together. And they usually had Mary [Gaudron]… So, as long as those three were there, it didn’t matter what they decided, they would either pick up [Ian] Callinan or pick up [Michael] Kirby.

But that court’s power trio was much less constant than the current one — Gummow and Hayne agreed with each other in 95 per cent of cases, but with Gaudron much less.

The upshot is that a trio of current Great Assenters — Susan Kiefel, Virginia Bell and Patrick Keane — have quietly become the three most powerful judges in contemporary Australia. Indeed, they are almost certainly the most constant (and arguably therefore the most powerful) bloc of judges Australia’s High Court has ever seen. And, in a uniquely Australian twist, their bloc isn’t political, either in cause or effect.

Unlike New Deal America’s four horsemen (elderly, white, conservative), these three Great Assenters have little or nothing in common: Kiefel and Keane are both Queenslanders (and formerly on the Federal Court) but Bell is from the NSW Supreme Court. Keane and Bell are both Labor appointees; Kiefel was appointed by Coalition governments, both to the bench and as chief justice. Kiefel and Bell share no relevant characteristics at all. Unlike the horsemen, their agreement isn’t limited to constitutional cases, but applies to everything the High Court decides: criminal appeals, contract disputes, administrative challenges, whatever.

Rather than shared policy goals, the trio simply seem to have remarkably similar minds on everything. Australia’s answer to America’s sombre four horsemen (who notoriously shared a car to court to plan their judgements) is a much sunnier troika (who, coincidentally — because this is determined by seniority — always sit beside each other on the bench).

Strangely, their shared dance is relatively recent. When Kiefel and Bell first joined the court, they spent some five years disagreeing with one another (and dissenting) at the same rate as the court’s other judges. But, not long after Keane joined the bench in 2013, the pair’s rate of disagreement and dissent fell to just one decision a year and has stayed there ever since. Whether the change is mere coincidence or even conscious is impossible to know.

Is a court in which three out of seven judges routinely agree a bad thing? The arrangement certainly brings benefits. The High Court has, for instance, been enmeshed recently in several national political controversies about the same-sex marriage survey and the validity of the 2016 federal election. It has settled these disputes speedily and unanimously, avoiding both political instability and controversy. The court’s harmony on these topics is almost certainly aided by, and may have been the result of, that core alliance of three judges. The same may be true for many of the three-quarters of regular cases on which the court routinely agrees, settling hard case after hard case quickly and with little rancour or lingering questions.

But speed and stability aren’t the only measures of a top court, which must deliver wise answers to hard questions. Chief Justice Kiefel’s most famous slogan is “collegiality is not compromise,” but saying that does not make it true. The court’s last Great Dissenter, Dyson Heydon, famously disagreed, publishing a thinly veiled critique of his own bench — and especially the pairing of Gummow and Hayne — as “The Enemy Within,” a threat to judicial independence. While Heydon feared that strong judicial personalities were dominating weak ones, I suspect a less extreme explanation in the current bench: that three judges — consciously or otherwise, and whether for personal reasons or institutional ones — desire consensus above all.

Whatever the benefits or threats posed by the troika of Kiefel, Bell and Keane, they are not long-term ones. In contrast to the US Supreme Court, Australian judges must retire at seventy. That means that the current trio will be broken up in three years and all but gone in four. With them may well go a number of legal doctrines they established only by a slim margin (such as the role of proportionality in constitutional law, whether state tribunals can hear interstate disputes, and how to assess the weight of disputed evidence).

But even the short-term situation has potentially significant drawbacks. One worry I have is that Australia will largely be deprived of the independent thoughts of seven of its finest judicial minds over the better part of a decade, lost to the banality of reflex consensus, sidelined diversity and discouraged dissent. But my main concern is for ordinary litigants with cases before the nation’s highest court during this period — ranging from accused drug traffickers to private hospitals to alleged killers to restaurateurs to land councils to child abuse defendants — who have reason to worry that their disputes (and in some instances, their futures) may have been decided by a court, not of laws, but of men and women. ●

The post The Great Assenters appeared first on Inside Story.

What is true is that prisoner numbers have grown significantly, and a big part of the reason is a jump in the number of people on remand, who now make up a third of Victoria’s prisoners. The vast majority are awaiting trial, with a much smaller number waiting to be sentenced. That might seem a surprisingly high figure, but it’s by no means the highest in the nation: South Australia tops the charts with an astonishing 41 per cent. In fact, Victoria is almost exactly in line with the national figure of 32 per cent.

That rate takes Australia, for the first time in its modern history, out of the 15 to 30 per cent range ­­— which includes Britain, the United States, Canada, Russia, Israel, Poland, New Zealand and Germany — and into the 30 to 50 per cent group with countries including Brazil, Thailand, Papua New Guinea, France and Mexico. As recently as 1997, the Australian figure was 14 per cent; the increase since then helps explain the growth in the overall national prison population.

Nationally, the rate of adult imprisonment per 100,000 population has grown from sixty-two to more than 200 since the late 1970s, with no sign of abating. With each adult in prison costing $286 per day, the annual national bill for remandees has reached nearly $1.4 billion. Yet, as Victorian research has shown, 40 per cent of remandees will either be found not guilty or will be sentenced to a period equal to or less than the time they have already served on remand.

Victoria’s corrections minister, Gayle Tierney, was unapologetic: “With more police on the beat, tougher sentencing and bail laws and an increasing population, prisoner numbers are expected to continue to rise and we are planning for that growth.” She is right on all counts, but only up to a point. Police numbers are indeed rising, but once again the trend isn’t unique to Victoria. In 1996 there were 221 serving police officers per 100,000 Australians; now, there are almost 300.

And, yes, sentences are getting longer in Victoria, which is one driver of any state’s overall prison population. But the key reason for the rise is the number of unsentenced prisoners, which increased across Australia by 87 per cent in the five years between September 2012 and September 2017. The number of sentenced prisoners (a figure more likely to be affected by sentencing trends) increased at a much slower rate: by just over a quarter.

The number of people on remand is affected not only by the rate of serious crime and the decisions of magistrates to hold those offenders in custody, but also by factors external to the courts, including changes to bail-related legislation, the increasing reluctance of risk-averse police (and bail justices) to grant preliminary bail, and the availability or otherwise of bail hostels and other services for those awaiting trial.

Although most states have tightened bail conditions in recent years, Victoria’s changes have been the most comprehensive and onerous. The legislation in question includes the Honorary Justices Act 2014, the Serious Sex Offenders (Detention and Supervision) and Other Acts Amendment Act 2015, the Crimes Amendment (Carjacking and Home Invasion) Act 2016, and Bail Amendment Acts in 2013 and 2016.

The system will soon be tighter again as a result of the carnage inflicted in January 2017 when Dimitrious Gargasoulas, who had been bailed not long before, drove his car through a pedestrianised section of Bourke Street, in Melbourne’s central business district. Within days, the Andrews government announced that a former justice of the Supreme Court, Paul Coghlan QC, would conduct a major review of Victoria’s bail laws.

In his first report, released in May 2017, Coghlan recommended that the general presumption in favour of bail should remain, but that greater emphasis should be placed on assessing risk and deterring offending while on bail. He also recommended expanding the list of “show cause” offences, and proposed that only a magistrate or judge should have the power to grant bail to an accused in the “exceptional circumstances” category. In his second report, he recommended specialised training for bail justices and suggested that the Bail Act be rewritten to improve its structure, readability and internal consistency. Notably, he recommended that a new Bail and Remand Court be established at the Magistrates Court of Victoria.

The Victorian government immediately introduced legislation detailing a new set of guiding principles to promote the safety of the community and people affected by crime. Once it comes into effect, the new Act will also reinforce the presumption of innocence and the right to liberty, as well as promoting fairness, transparency and consistency in bail decision-making, and aiding public understanding of bail practices and procedures. This style of law-making, which highlights principles, values and community education, marks a refreshing change in Australian parliamentary practice.

It’s to be hoped that the new Victorian legislation leads to a fall rather than a rise in remand numbers. The reason we should hope for this outcome is simple: there is no evidence that high imprisonment rates drive down crime or make us any safer.

Some defenders of the current trends might point to the fact that the decline in violent and property crime across Australia since 1995 has coincided with a growth in the national prison population. But the fall in offences is mainly a symptom of demographic change (the last of the baby boomers turned thirty-five, the age at which offending drops away markedly, in 1995) and improved security infrastructure (witness the vast array of security cameras, affordable alarms and readily accessible monitoring services). Significantly, crime has also fallen in jurisdictions where the imprisonment rate has declined. In Queensland, for example, the number of offences fell significantly between 2005 and 2012 alongside a steady fall in the imprisonment rate.

Another key issue in Australian corrections is the continuing disgrace of Indigenous over-representation. The national imprisonment rate among Indigenous people is about thirteen times higher than among non-Indigenous Australians. The disparity is worse still for Indigenous women and young people, who are about twenty-four times over-represented. Moreover, they are often serving short sentences for less serious offences, cycling through the prison system at a higher rate than is reflected in corrections data.

That problem is so great that it is often assumed that high imprisonment rates in Australian jurisdictions (and the differences between them) are mainly an “Aboriginal problem.” This is only partly true. It is a valid explanation for the Northern Territory, where Aboriginal people make up 27 per cent of the population. There, tragically, Aboriginal people constitute 86 per cent of the prison population, and taking them out of the calculation would make the imprisonment rate in the Northern Territory plummet from 829 to 181 per 100,000. Outside the Territory, Aboriginal people make up 3 per cent or less of the population. Discounting them from the Victorian imprisonment rate, then, would not change the picture at all.

So what should we be doing instead of committing more sentenced and unsentenced people to periods in jail? There seems little doubt that a safe community is one that is built on trust, equality of opportunity and strong social capital. Safety can be compromised quickly if resources are pushed in the wrong direction, as they have been in recent years.

As I describe in a recent article for Current Issues in Criminal Justice, a significant proportion of the money that we spend on corrections in this country should be redirected into pre- and post-release programs and prisoner rehabilitation. It’s by no means a small amount: net operating costs in Australian corrective services — not including capital costs, depreciation and community corrections — was $2.9 billion for the 2014–15 financial year. There’s solid evidence that good rehabilitation programs and well-trained staff have been effective in prisons around Australia, and yet they remain underfunded. Together with post-release services, these programs have undoubtedly reduced recidivism. Therapeutic pre-release services, too, have been shown to make it less likely that an inmate who leaves prison will return.

We also know that rates of mental illness and cognitive disability — acquired brain injury and foetal alcohol syndrome, for example — are high among prisoners. We should be putting more money into programs designed to ameliorate the effects of these illnesses on the ability of ex-prisoners to rejoin society successfully.

Overwhelmingly, the research tells us that we can’t sustain the current correctional trajectory, neither financially nor socially. With the right allocation of resources, we can turn broken lives around, divert young people from careers in crime, assist young families to cope with the vicissitudes of life, and bring stability to dysfunctional families, thus relieving current levels of crime and victimisation. But that can only happen if we continue to do the research, promote the successes, acknowledge our limitations, and extend our evaluative capacity.

Amid the reporting of Victoria’s figures this week, it was easy to forget that the state still has the lowest imprisonment rate in the country, something the Andrews government should be holding up as an achievement worth celebrating. Governments should never hold up a high imprisonment rate as a badge of honour. With sufficient political will we can drive down crime rates (and thus imprisonment rates) in Australia. We won’t eliminate crime, of course, but we can dramatically limit our heavy reliance on “correctional” services and the significant array of problems associated with them. ●

The post How to reverse Australia’s remand explosion appeared first on Inside Story.

The range of opinion reflected deeper ambivalence about Mollie Dean — a young woman resolved to get places, a young woman who when she got those places was not always welcome. Who was she? What was she? “She was an exceptional girl,” the cartoonist Percy Leason told reporters. “She had great vitality and charm and was particularly interesting. She was deeply immersed in literary questions and was writing a novel. I do not know what the novel was about. She was the sort of girl who would make light of such a work and not talk too much about it.” Leason’s confrère on the Bulletin, Mervyn Skipper, thought Mollie “the first liberated woman” he had ever met; Mervyn’s diarist wife, Lena, deemed Mollie a “sex aggravator,” “a rum girl with plenty of that schoolgirl way about her” hiding “in all her actions some monstrously selfish aim.” Roland complained that she had left “a path of havoc in her wake.”

All that most came to know of her directly was how that wake trailed away. For in November 1930, a month after her twenty-fifth birthday, Mollie Dean was slain in a laneway two minutes’ walk from her home — slain so sadistically that the press refrained from comprehensively listing her injuries. Intensified grief, idealised potential — these are the usual accompaniments of a tragically premature end. Not for Mollie. An investigation petered out that no one, least of all the family from whom she was estranged, wished to revive; an inquest ensued, with an undertone of scandal it was in none of her friends’ interests to prolong.

Act of madness? Truth’s report on the murder.

As for her life, a good deal of Mollie’s adulthood had been spent in the fugitive role of the “other woman,” whose tracks are ideally self-obscuring. Her correspondence, purportedly racy, conveniently disappeared; likewise the manuscript of her novel, never finished. At Montsalvat, the Eltham art colony where many of her former circle settled, her name would be uttered only in muted tones. In art history, she has condensed to a curio. Misty Moderns, an extensive 2008 touring exhibition by the National Gallery of Australia, touched off a reappraisal of the artists with whom Mollie circulated — the quasi-scientific, objectively minded disciples of “tonalism” such as Colahan, Leason, Justus Jorgensen, Clarice Beckett, Archie Colquhoun and, above all, their inspiration, the peppery controversialist Max Meldrum. Mollie was a line in the exhibition’s genre chronology: “November 1930: Murder of Colin Colahan’s girlfriend, Mollie Dean. Impact temporarily disrupts Colahan’s artistic trajectory.” No reflection was invited on the permanent disruption of Mollie’s “artistic trajectory.”

Mollie Dean’s shadow lengthened by other means. She who had aspired to fiction inspired it instead — affirming Edgar Allan Poe’s aperçu that “the death… of a beautiful woman is, unquestionably, the most poetical topic in the world.” Generations of Australians have been unknowingly familiarised with her story through the pages of George Johnston’s My Brother Jack.

Johnston never knew Mollie Dean; rather, more than twenty years after events, did he fall in with the gregarious Colahan, who became a friend and familiar in addition to painting Johnston’s wife, Charmian Clift. The murder had by now become part of Colahan’s extraordinary repertoire of stories; Johnston was transfixed. As his great novel took shape years later, he repurposed the relationship between artist Colahan and muse Mollie as the tale of star-crossed student painters Sam Burlington and Jessica Wray, who introduce Johnston’s callow alter ego, David Meredith, to Melbourne’s la vie de bohème.

It is an atmospheric telling. Jessica is first glimpsed hastily “fastening the buttons of her blouse,” fair hair suggestively loose. She reacts to Meredith’s unexpected arrival at Burlington’s bachelor pad by saucily withdrawing: “The blonde girl went away soon after I arrived. She and Sam talked together for a while in the passageway in low voices, with a lot of smothered giggling on her part, and I heard her say, ‘But it’s high time I went home anyway, after the way you’ve been carrying on, you devil.’” Who is leading whom is rendered more ambiguous by Jessica’s cavortings with other girls at an apartment party that further discomfits prim Meredith:

I remembered my alarmed revulsion at the shameless exposed way the girls sat on cushions on the floor, with their knees carelessly apart in their short skirts and the shadowy disturbing gleam of naked thighs above their rolled stockings. I was shocked by their casual acceptance of drinks and cigarettes, by the candour of their conversation, by their abandoned submission to kissing and petting.

The apartment is dominated by Sam’s “not quite finished but extremely frank” nude canvas of Jessica. Brother Jack, archetype of vernacular common sense, glowers at the painting disapprovingly when he arrives amid the bacchanal:

“Who did this thing?” he wanted to know.

“Sam,” I said.

“Cripes! It don’t leave much to the imagination, does it?”

“Oh, stop this stupid business Jack,” I said.

Though Jack warily embraces the festivities, his curiosity has been pricked. “You mean t’tell me,” he asks Sam, “she strips off an’ sits around starko and lets you paint her like that, without a stitch?” Sam’s slurred reply betrays a deeper unease with female sexuality: “Yesh, sir, thash my baby. Jesh. Look at her over there, eh. Jush look at her! Beau’ful girl. Talent too. No morals. Wassit matter? She’d sleep with you. Me. Anybody.”

When Meredith encounters Jessica and Sam next, their images are staring from the grey columns of the Morning Post, where tyro journalist Meredith is working. Jessica has been murdered in a park, and suspicion has fallen on Sam. The prurient turn of his hitherto “conservative, old-fashioned” employer tips Meredith into crisis. He must bear witness to his trade’s pandering to gossipmongers and breakfast-table moralists — including his own censorious father. He must reconcile Sam’s travails with his own self-preserving instincts — a challenge he squibs in Petrine fashion, thrice denying his friend. He must even answer for his own titillation, with which a detective cannily confronts him: “She was a very pretty girl, wasn’t she? Did you find yourself attracted to her?… Didn’t you ever wish it was you doing the canoodling and not Burlington?”

Ere long new evidence dispels the tension, and around the murder itself My Brother Jack ends up rather skirting, exploring it only in terms of the consequences for others. Like Colahan, Sam departs Australia; unlike Colahan, he abandons art; the experience turns Meredith into, by his own admission, “a master of dissimulation,” in ways that ramify through the whole trilogy. Yet, rereading the novel after many years, my own curiosity, like Jack’s, was engaged. Didn’t this book draw on Johnston’s experiences? If so, to whom did he owe Jess and Sam?

Nor was George Johnston alone in being beguiled by the life and death of Mollie Dean. In adapting My Brother Jack to the screen in the mid 1960s, Charmian Clift viewed her from a slightly different slant, struggling to reconcile life and art — in much the same way as Clift.

At least three writers who knew Mollie, I was to learn, drew on her in fictional works of differing descriptions. And she has undergone in the twenty-first century an improbable renaissance: becoming the subject of a play (Melita Rowston’s Solitude in Blue) and a song (The Dusty Millers’ “Molly Dean”), swelling the progress of an acclaimed literary novel (Kristel Thornell’s Night Street) and starring in her own whodunit (Katherine Kovacic’s The Portrait of Molly Dean).

Who was she? Perhaps whomever we wished her to be. But behind the myth lay a human soul needing to tell her own story, and helping in that task seemed worthwhile. ●

This is an edited extract from Gideon Haigh’s A Scandal in Bohemia, published this month by Hamish Hamilton.

The post Murder in bohemia appeared first on Inside Story.

In his new autobiography, a recently retired NSW judge explains how he came to be chosen. One day, Michael Finnane was attending “a morning tea celebration” for another judge when “Reg” — District Court chief justice Reginald Blanch — “asked me if I was prepared to be a judge.” The fifty-seven-year-old barrister “thought about it for a few days and then said yes.” A “formal offer” from state attorney-general Bob Debus followed “shortly afterwards.” Every Australian judge — from lowly magistrates to High Court justices — is selected this way, behind closed doors and without explanation.

Finnane is no fan of Dutton, criticising him in his book, The Pursuit of Justice, for attacking sitting judges. But Dutton, who routinely complains about Australia’s “lily-livered judges and magistrates,” is probably a fan of Finnane. His “public reflection” proposal is surely aimed at selecting more judges like him. In the admittedly small field of judges most Australians have ever heard of, he is far and away the most popular, courtesy of the unprecedented fifty-five-year term he imposed on teen rapist Bilal Skaf in 2002.

Finnane describes how the sentence led to rare judicial fame: a hagiography in the Daily Telegraph, an interview offer from Andrew Denton, Australia-wide talkback radio fandom and a stream of mail with messages like “Thank you Sir, you are our hero and we would like to nominate you as Australian of the Year.” (To date, the only judge to collect Australia’s top prize took the more typical route by chairing Brisbane’s 1982 Commonwealth Games.)

Finnane is no fan of how Americans choose judges — “it seems common to refer to American judges, even justices of the Supreme Court of the United States, as being Republicans or Democrats” — but he never tells his readers why Reg and Bob chose him to be a judge. Those looking for clues have a long read ahead of them, for the bulk of Finnane’s book is about his life before, after and away from the bench. He describes his Rose Bay childhood (“Life in the 1950s was very much different to what it is now”), mentions where he was when he learned that JFK had been shot (cloistered in a Melbourne seminary), and devotes chapters to his service as a military lawyer (“The Army and What It Meant to Me”) and his mission of social justice (“My Contact With Aboriginal People”).

Close readers may piece together a possible origin story for this unlikely judicial superhero. When he received his morning tea appointment, Finnane had been a member of the Australian Labor Party for thirty-three years. In his early years at least, he was a very active party member, serving on the left faction steering committee and on branch, state and federal electorate councils, and even running for the NSW party presidency in the 1970s. Although he left the party on becoming a judge — “it is important that a judge have no political ties” — he rejoined on his retirement, despite regretting its “abandonment of socialist principles.” Finnane stands as a one-man rebuttal of Dutton’s repeated assertion that Labor-appointed left-leaning judges are to blame for soft sentencing.

The ex-judge disclaims any political patronage, noting that his left faction was marginalised in New South Wales and that “my involvement in the 1990s was largely only as a branch member.” But his professional life had a political slant from the very beginning, when he joined the justice department during Jack Renshaw’s premiership. After a decade of private practice during the Askin years, he received his first public role during Neville Wran’s first term as premier, when the state attorney-general offered “a most unusual brief.” Finnane’s job was to inquire into the financial affairs of the late father of the federal primary affairs minister because the attorney-general “didn’t trust” the state’s corporate regulators.

Eventually but dramatically, Finnane accused Ian Sinclair of forging his father’s signature, forcing the son’s temporary resignation from Malcolm Fraser’s cabinet. While his inquiry was beset by leaks and condemned by the prime minister, and the prosecution against the future National Party leader soon failed, Finnane relished his public role and later “had the good fortune to be involved in many royal commissions and inquiries.” During the Wran government, he was appointed to inquiries into drugs in Griffith and local terrorism in Sydney, and he represented Barrie Unsworth’s government at the royal commission into Aboriginal deaths in custody. His final executive role was in the Wood royal commission into state police corruption, set up in the last years of John Fahey’s Liberal government and continuing well into Bob Carr’s first term.

Which brings us to Finnane’s best-known case. In the month before the Sydney Olympics, several young women were cajoled from the city’s shopping centres, schools and trains with promises of drugs or a ride, only to be taken to isolated parks or buildings and raped repeatedly by large groups of men. Eighteen-year-old Bilal Skaf (whose brother was known to one of the victims) was arrested after he was identified by two victims and DNA evidence. Finnane’s appointment to the District Court came that October and the next year he was assigned to preside over the trials of Skaf and his co-accused. “On my way to court for the first Skaf trial,” he writes, “a senior judge expressed to me the view that the only judge to do this sort of trial should be someone with a lot of experience.” At that time (shortly after 9/11 and amid the Tampa federal election campaign), Finnane “had been a judge for a little over a year.”

The new judge would spend most of the next ten months in a courtroom with a bulletproof dock in the Downing Centre, presiding over three consecutive high-profile trials. Each involved claims of gang rape, multiple charges and defendants, disputed identification and confession evidence, and concerted media scrutiny. The trials were also intensely political, and not just because of widespread claims that the rapes were racially motivated.

Two months before the first Skaf trial, Premier Carr met with NSW chief justice James Spigelman to condemn six-year sentences handed down by District Court judge Megan Latham to three teens who pleaded guilty to a different gang rape from the same period. “Nothing I do or say would ever trespass on the independence of the judiciary,” the premier assured the public, “but the fact that the chief justice undertook to meet me I think says something about community concerns.” Midway through Skaf’s second trial, the Court of Criminal Appeal pronounced Latham’s sentences “manifestly inadequate” and doubled them.

Following Skaf’s third trial and conviction, Finnane sentenced the twenty-year-old to the maximum punishment of twenty years for each rape. Allowing for other offences but also some overlap in the charges, Skaf’s total sentence came to fifty-five years, with no possibility of parole until he turned sixty. The judge issued an unusual public denial of having any conversation about the case with the premier. Six months later, Carr had his best (and last) election win.

But Skaf’s hefty sentence didn’t stick. Six weeks after Carr’s resignation from parliament, a panel of three Supreme Court judges ruled that Finnane was wrong to give Skaf the maximum sentence of twenty years because that is reserved for worse rapes, such as those of the elderly, or at knifepoint, or penetration with weapons. As well, the total sentence of fifty-five years seemed aimed at isolating the twenty-year-old from the community rather than punishing him for his crimes. The now twenty-two-year-old’s sentence was ultimately reduced to thirty-seven years and he will be eligible for parole when he is fifty.

Finnane recounts visiting Goulburn jail a decade later and encountering three of Skaf’s co-defendants, then near the end of their own sentences (like Skaf’s, reduced on appeal). The trio told him that “we are innocent; we will become bitter as a result of wasting the best part of our young lives in jail,” leaving the judge to marvel at their “great preoccupation for themselves and no concern about the plight of their victims.” But, as he acknowledges in his book, the evidence against these co-accused was much weaker than the evidence against Skaf. Indeed, they largely owed their convictions to the word of a rapist, Skaf himself, who placed them at the scene when testifying that his victims consented to sex with a group of strangers.

Finnane himself has no regrets about the Skaf trials or the sentences, writing that “my sentences imposed on members of this gang were warranted.” He adds that the appeal judges’ views must “prevail,” but the Court of Criminal Appeal later accused him of refusing to respect their views. In 2008, he was expressly chastised over his management of a trial of a man who brutally raped his ex-partner. According to the court, Finnane not only made wrong rulings about the evidence and distracting, irrelevant and incorrect remarks to the jury, but also gave the offender a sentence for his attack (some twenty-seven years) that exceeded the usual punishment for murder.

Pointing out that “it is impossible to believe that his Honour was not aware of” the appeal court’s rulings in the Skaf case, the unanimous court wrote that sentencing “should not be an idiosyncratic exercise. First instance judges are required to adhere to standards set down by this Court. His Honour would have been well advised to do so in this case.” Unlike Megan Latham, the other District Court judge to sentence the Sydney gang rapists, Finnane would never be promoted to a higher court.

Finnane’s title, The Pursuit of Justice, cleverly captures two related ideas — justice as both mission and vocation. But being a judge was never Finnane’s goal nor, it seems, his passion. He describes choosing a career in the law (albeit with a failed detour to the seminary) at age eleven after seeing The Winslow Boy. The scene that moved him came when a “dominant” barrister conducted a crucial cross-examination in front of a “rather old, worn, man who was the judge.” Admitting to “pondering for most of my working life, what it is that makes judicial life so attractive to lawyers,” he lists an odd grab bag of perks: the District Court’s broad remit, the salary and pension, the “large, usually well-appointed room for the judge,” ten weeks’ break each year and not having “to deal with fractious clients or solicitors.” “Most of all,” he adds, “when you become a judge you feel that you have got to the top of the legal profession.”

So it is no surprise that his book has very little to say about his fifteen years on the bench beyond the expected (and inexplicably early) chapter devoted to Skaf. Near the book’s end, he reveals that, shortly after his “sense of honour was reinforced by the swearing-in-ceremony,” he found that he “was quite cut off from the members of my previous floor.” The floor in question was his professional home away from home, the “Ninth Floor at Selbourne Chambers,” where he “stayed for twenty-one years, most of them happy, but eventually the happiness ceased and I left.” He explains that his subsequent isolation was due to the need for judges to “use considerable discretion about where they go to socialise” and the convention that he be addressed socially as “judge.” (“The conversation at times was quite forced.”)

Finnane’s book doesn’t discuss the last occasion he attracted public attention. In 2011, a lawyer for ex-priest Brian Spillane, then awaiting sentencing by Finnane for child sexual abuse, swore an affidavit about a conversation he’d had with the judge. At (yet another) morning tea, Finnane allegedly told the lawyer and others that “all these paedophiles… should be put on an island and starved to death” and that “they’re all guilty.” The Court of Appeal generously ruled that any “fair-minded observer” would have regarded any such remarks as merely “incautious” and “flippant.” But Finnane ultimately never got to sentence Spillane. A month before he was cleared of bias, he moved from the District Court to the Dust Disease Tribunal, where he served out his time until mandatory retirement.

Was Finnane a good judge? As he explains in his book, lawyers “do not tell you how you are going.” He does recount how “a senior barrister told me in court” that he had “a reputation for rarely being reversed on a question of law.” But he doesn’t mention a newspaper’s calculation that, in 2011 and 2012, his sentences “have been challenged thirty-one times in the Court of Criminal Appeal — more often than any other District Court judge — and the appeals have been upheld nineteen times.” The newspaper quotes an unnamed judge explaining that “once a judge has a reputation for being notoriously tough, it is much more likely that there will be an appeal,” while an unnamed barrister labels him as the type of judge who doesn’t “have a pattern and can be categorised as rogue.” In his book, Finnane candidly recounts that, after his retirement, several barristers confessed to fearing him and one told his wife that he “was cranky and difficult.” He apologises for this, adding that he “did not intend to be anything but relatively relaxed and easy to get on with.”

In bemoaning the plight of American judges, Finnane celebrates how Australian ones “cannot be removed from office merely because a radio commentator or a newspaper campaigns against them.” He probably has in mind California’s Aaron Persky, an elected judge who currently faces a popular recall after giving a six-month sentence to a nineteen-year-old who raped a semi-conscious woman behind a dumpster. This aberrantly low sentence (albeit recommended by the probation service) has few defenders, but the media has found no credible claims of a pattern of low or biased sentencing by Persky, and his defenders say that his removal will force all judges into tougher sentences.

Australian judges can’t be removed for their sentences, low or high, but that doesn’t mean they are completely free of external pressures, especially if they hope for promotion to a higher court while in office or interesting appointments once they retire. Nor are they immune from internal motivations, like gratitude to those who appointed them or the desire for attention or appreciation in office or after.

The publication of Finnane’s autobiography coincides with a tough period for Australia’s many magistrates, who decide the bulk of the nation’s sentences and lack most of the perks of higher judicial office. One week after Dutton suggested exposing prospective magistrates to public reflection, he told Ray Hadley that “people are angry about sentences where there’s a maximum eight-year penalty and people are given two months or no conviction recorded for kicking the head of a police officer, as we’ve seen in Victoria in the last couple of days.” He was referring to a teen parolee who kicked a police officer’s head at Melbourne’s Highpoint Shopping Centre. Egged on by the Police Association, the media and the police minister attacked Victoria’s summary judges for their decisions to grant him bail and probation.

A month later, undaunted, magistrate Stephen Myall reportedly deferred further charges against the teen until December to allow him to finish high school. A week later, Melbourne’s legal community mourned Myall’s sudden death, aged sixty, and sought a review of magistrates’ workplace safety in the face of high workloads and a “steady stream of confronting evidence of violence and sexual abuse.” At his funeral in Kyneton, his family and colleagues spoke of Myall’s love of being a magistrate, his lack of interest in money, his endless committee work and how “the political debate on law and order did his head in.” A solicitor friend said he “wondered why then attorney-general Rob Hulls thought a crazed, part-time lumberjack rev-head who dressed like a vagrant was an ideal person to make decisions about other people’s lives,” adding that Hulls had made “a wonderful decision.”

Finnane’s own story ends with a chapter recounting his retirement work for Sri Lanka and Tuvalu and his advocacy on fair trade coffee and climate change. “Life has enabled me to engage with many wonderful people and because of my knowledge of law, to help them,” he writes. Celebrating his healthy, friendly and large family, he concludes, “Life is good.” I certainly don’t begrudge the ex-judge his contentment in retirement, nor for that matter his successful career or his recognition of the seriousness of rape in his sentencing decisions. Yet I find his evident pride at receiving “a comment about the Skaf case and my part in it just about every week” disturbing, given the awful crimes that lie behind those words and the miserable politics that thrive on such horrors. ●

The post Judge of the people appeared first on Inside Story.