Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Federalising insecurity: policing in the states or a police state?



Download PDFDownload PDF

DRAFT ‐ NOT TO BE CITED WITHOUT PERMISSION OF THE AUTHORS 16/02/2006

1

Federalising Insecurity ‐

Policing in the States or a Police State? 1

Ann and Roger Scott

A paper for the conference sponsored by the Canberra universities on the Howard Decade, Canberra, 3 March 2006.

While Hegel (in the Philosophy of Right) distinguishes between the State, considered as an overarching unifying agency, and civil society, he is careful to locate police within the latter as an important part (along with guilds and corporations) of its own system of regulation… The focus of police is on the production of good order in a civic or territorial community. (Dean and Hindess, 1998, p3)

Centralists tend to undervalue the importance of the link between federalism, limited government and a certain conception of the free or just society. They do not allow sufficiently for the import of federalism within the conception of liberal or constitutional democracy held especially by those on the liberal Right.

Those on the Right, at least those who are within the liberal democratic tradition, tend to favour limited or dispersed powers of government rather than centralisation, and a form of consensual rather than a majoritarian

form of democracy . (Hughes, p310)

The authors are grateful for the data collection support provided by Georgina Malcolm, participant in the University of Queensland Faculty of Social Sciences summer internship program.

1 “People are prepared to sacrifice some civil liberties in the name of security, but imposing draconian laws on a group of people (journalists) who are not held in very high esteem in the wider community, smacks of a police state.”- A somewhat self-regarding comment made by The Courier-Mail Defence Reporter, Ian McPhedran. (The Courier-Mail , Brisbane, 16.2.02)

DRAFT ‐ NOT TO BE CITED WITHOUT PERMISSION OF THE AUTHORS 16/02/2006

2

Introduction ‐ Howard and federalism

This is a case study of the relationship between the Howard Government and state police forces. It illuminates the elements which shape a particular set of policy decisions.

The literature on policy analysis is replete with definitions of public policy and schema for analysis. The elements which are usually identified are institutions, resources, values and opportunities.

This case looks to expand on each of these elements and the interaction between them. The institutional concerns focus on the structural arrangements of contemporary federalism; the resource concerns focus on the implications for decision-makers of the vertical fiscal imbalance and the power this confers on policy actors in central government; the ideological concerns relate to the

attitudes of key individuals and specifically those of Prime Minister Howard and to the wider ideological debates about the appropriate level of regulatory intervention; and the exploitation of opportunities is seen to relate to the role of emotions in responding to and also manipulating political attitudes in the wider society.

The Howard decade has seen an expansion of Commonwealth power over policy areas which are constitutionally the responsibility of the States. Education, particularly higher education, is one example of a policy area where a pre-existing

trend has accelerated. Education is also an example where the ideological preferences of the Howard Government have forced policy changes in institutions which exist under State laws. The charging of fees and the growth of private providers at both school and tertiary level has been justified as being in the interests of broadening market choice for “consumers”. State governments and State bureaucrats have often been reluctant participants in this change, usually acceding in response to financial pressures despite their ideological and often rational preferences for alternative resource allocation strategies.

In this, there is an echo of the debate in development studies about the conditionality relationship between rich states and poor ones. Some of these conditions ‐ structural adjustment programs ‐ have proven in retrospect to have done little good for the recipients while reinforcing and expanding the existing relationship of the rich states over the poor. So too, in Commonwealth-State relations in Australia, the developmental objectives driven from the centre have often failed in the short-term while representing a permanent shift in policy responsibilities away from States rendered relatively poor by a structural vertical fiscal imbalance.

Historically State governments of either political persuasion have resisted this centralising trend and defended the policy autonomy of the States and their capacity for making autonomous policy choices. They and their senior advisors

have often accused Commonwealth public servants of promoting an aggressively expansionist agenda whenever the opportunity arises, under either party, to maximise the political returns to be derived from financial dominance. This

DRAFT ‐ NOT TO BE CITED WITHOUT PERMISSION OF THE AUTHORS 16/02/2006

3

hostility between State and Commonwealth leaders, plus the senior bureaucrats who help them shape policy, is almost a given in Commonwealth-State relations.

Former Queensland Treasurer, David Hamill, in his recently-completed doctoral thesis suggests that a changed political paradigm has now emerged.

The eight State and Territory Governments not only face an increasingly strident Commonwealth Government bent on redrawing the lines of governmental responsibility with the Australian federation, but one which has both the willingness and capacity to achieve its goals.

By exploiting windows of opportunity for extending its legislative, administrative and fiscal reach that have been opened by the interaction of favourable constitutional interpretations by the High Court, its fiscal domination of the States and the enhanced political and legislative capacity afforded by a Senate majority, the Howard Government has the potential to effect institutional change on a scale which the Australian federation has not seen since the Commonwealth assumed fiscal dominance in the 1940s. (Hamill, 2006, p 277).

The windows of opportunity which opened in police policy have facilitated a typical expansion in Commonwealth encroachment into a traditional area of State responsibility. What is different is that, to a large extent, this has occurred consensually and with the apparent enthusiasm of State Premiers. This paper seeks to explain this difference in terms of the rising political salience of concern over personal insecurity within the electorate ‐ specifically concerns about violent crime and terrorism.

Federalism and police pre-Howard

Someone well versed in federal theory might have expected that there would be respect at both levels of government for the traditional balance by which control over coercive forces has been divided, with national armies counter-balanced by State or (in places like the USA) local police forces and State militia.

This shared responsibility was seen as an essential component of liberalism, restraining Leviathan in the interests of individual freedom, the same sentiment which motivated the American constitutional guarantees about the right to bear

arms. British colonial policymakers worked on the same assumption, so that the enthusiasm for decolonisation via federalism which marked the post-war period always created separate police forces for the constituent components. (This was of course no protection against national leaders ‐ often military leaders ‐ overthrowing the entire constitution).

Two generations earlier, when Australia was federating, policing was seen as predominantly a function of the States, and for a long time there was relatively little Commonwealth Government intervention in State policing matters. The main Commonwealth concern was with ensuring their own restricted responsibilities

DRAFT ‐ NOT TO BE CITED WITHOUT PERMISSION OF THE AUTHORS 16/02/2006

4

were not hampered by the State forces and that suitable co-ordination existed between State police, the Australian Federal Police2, and the defence forces.

The low profile the Commonwealth took in policing issues as recently as the early 1990s is exemplified by the fact that the Council of Australian Governments (COAG), established in 1992 and chaired by the Prime Minister, did not have law and order issues on its agenda.

By contrast, when in 1994, in the lead-up to the centenary of federation, State and Territory governments established their own Leaders’ Forum (which excluded the Commonwealth) they immediately identified law and order as one of their initial priorities. However, their Communique contained none of the punitive “law and order” rhetoric now familiar in the political debate, referring instead to the linkages between crime and unemployment and the need to address the causes of crime.(Communique, 29.7.94)

For most of the history of Australian federalism police responsibility has been firmly located with the States, providing the most basic mechanism for offering personal security to citizens. More recently, crime and policing have become prominent as an election issue at the State level. 3 Governments and oppositions have entered into unsophisticated bidding wars on police force numbers or offered increasing penalties and “truth in sentencing” for the full range of violent crimes and for drug abuse linked both to violent and property crimes. Fear of crime, fuelled by alarmist media reporting as well as the political rhetoric, is often more imaginary than rational. 4 But this alarmism seems to work often enough for law and order to have become a regular feature of State electoral manifestos.

It was predictable that the well-heeled Commonwealth Government would read the same political auguries as State politicians and seek to claim some of the credit for dealing with this perceived pressing social issue and reap the electoral benefit. This was not a strategy invented in the Howard decade, but external

events and their exploitation for domestic political advantage created a changed environment with Howard’s accession to power in 1996.

This increasing Commonwealth interest in law and order has some striking parallels with much earlier, but similar, developments in the United States. Under the US Constitution most crime control responsibility was allocated to local and State law enforcement agencies. In the 1920s, both efforts to increase the authority of the FBI and support for the prohibition of alcohol served to increase the US Federal Government’s crime control responsibilities. Beckett has documented this sequence of events:

2

The AFP website states that it “has two main areas of responsibility: (1) Nationally, the AFP investigates and prevents crime against the Commonwealth and protects Commonwealth interests in Australia and overseas; (2) Locally, the AFP provides community policing services to the people of the Australian Capital Territory.” 3

See, for example, the article by Imre Salusinszky, “Plodding debate nothing short of criminal” in the Weekend Australian , 4-5 February 2006. See also Sarre R (2002) article on policy policy. 4 Indeed, it is well documented that the most fearful, the elderly, are the least victimised, while those seen as the greatest threat, such as young males, are the most victimised.

DRAFT ‐ NOT TO BE CITED WITHOUT PERMISSION OF THE AUTHORS 16/02/2006

5

The FBI campaign and Prohibition were components of the nation’s first war on crime which took place in the context of a crackdown on immigration and political dissent. While there may or may not have been an actual increase in crime during this period, the crime issue became a favourite among politicians. In 1925, President Calvin Coolidge announced the appointment of the first National Crime Commission. This commission accomplished little, but did symbolize the federal government’s increased involvement in anticrime efforts. The politicization of crime also had more concrete consequences: between 1917 and 1928

judges delivered significantly longer prison sentences and used the death penalty more frequently. In 1928, Herbert Hoover successfully campaigned on a law and order platform; later that year, the majority of those polled in a national survey felt that crime and disrespect for the law

were the nation’s most important problems.(Beckett, 1997, p29)

As will be seen, a number of events in Australia over the past decade have echoes from this US past. The main difference is that the drug on which “war” is being waged is no longer alcohol, although immigrants, violence and dissent remain major concerns (as they did for Herbert Hoover).

Violent crime and gun control

The first event which abruptly drew the Commonwealth Government into the politics of law and order was the Port Arthur massacre on April 28 1996. This precipitated Prime Minister Howard’s intervention to strengthen and co-ordinate laws governing the possession and use of certain types of firearms and the provision of Commonwealth funds to support schemes to buy back and destroy existing military style self-loading rifles, pump-action shotguns and similar weapons. The issue of gun control was already on the agenda of the Australasian Police Ministers’ Council (APMC), but progress towards consensus was slow.

On 10 May 1996, a fortnight after the massacre, the Commonwealth Attorney-General convened a special meeting of the APMC in Canberra. The meeting passed eleven resolutions in relation to firearms control. 5 Almost all of these related to changes in the practice of police at State level. The gun ‘buyback’ scheme, proclaimed to be fully funded by the Commonwealth 6, was administered by the State police services.

5 The controls included bans on specific types of firearms; nationwide registration of all firearms; the need to provide a genuine reason for owning, possessing or using a firearm; basic licence requirements; training as a prerequisite for licencing, grounds for licence refusal or cancellation and seizure of firearms; permits to acquire; uniform standards for the security and storage of firearms; the recording of firearms sales; control of mail order firearms sales and compensation issues . 6

Although the Commonwealth gave the undertaking to fund the buyback, the level of funding was subsequently an issue of extended debate between the Commonwealth and the States, as was the case with some of the later funding agreements in relation to such things as the Crimtrac database.

DRAFT ‐ NOT TO BE CITED WITHOUT PERMISSION OF THE AUTHORS 16/02/2006

6

It was indicative of the growing prominence of central agencies that implementation processes were then endorsed on 14 June by the Council of Australian Governments. This was the first law and order issue to reach the agenda of COAG. The response to Port Arthur was the first in a series of policies made with comparatively little reference to the specialist agencies at either State or national level. Queensland Premier Beattie, in a paper published in 2001 about issues of governance in Australia’s federal system, noted that the agenda-setting processes of COAG were flawed by the domination of the Commonwealth

“whereby agenda items are seemingly selected by their likelihood of delivering a positive outcome with the public or the Commonwealth’s interest in pursuing an issue that requires the co-operation of the States and territories”. (Beattie, 2001, p17)

As Hamill points out:

By working through the Ministerial Council and COAG, the Prime Minister used the institutional framework of Australian federalism to extend Commonwealth policy objectives into an area of State jurisdiction. He also exploited the strong anti-firearm sentiment then evident within the Australian public as well as his institutional position to over-ride the objections of some within his own party and especially within that of his coalition partners….

In the great tradition of Australian federal-state financial relations, the Prime Minister stiffened the resolve of the States to act in concert by providing them with conditional grants from money raised through a one-off increase in the Medicare levy to fund a national buy-back scheme. (Hamill, 2006, pp 293-4)

The unusual level of consensus was generated by the sensitivity of both sides of politics to the potential harm that could be inflicted if there was any measure of disagreement between them. One of the enduring images of Howard’s first

months as Prime Minister was the photograph of him wearing a flak jacket as he faced a hostile pro-gun rally. The firearms lobby was well organised around an oddly-matched core of conspiracy theorists, farmers and organised sportsmen. The spectre of Pauline Hansen’s One Nation party meant that a structure for expressing dissent was already in place and a Shooters Party was powerful enough to win electoral success in the NSW Upper House. 7 8

The buyback scheme was extended to handguns six years later following the shooting at Monash University on 21 October 2002, in which two people were killed and five injured. This extension of the buyback was driven by the Commonwealth against some reluctance from State premiers of New South

Wales and Victoria in the face of imminent elections. The Rev Tim Costello,

7 At the 1995 election Shooters received 95,943 (2.84%) when the quota was 153,000; Tingle was elected on the 93 rd count with most of the difference supplied by the Australians Against Further Immigration. (Professor Colin Hughes provided this information, noting the link between the two interest groups: “If you can’t keep ‘em out, at least you should have a gun”

DRAFT ‐ NOT TO BE CITED WITHOUT PERMISSION OF THE AUTHORS 16/02/2006

7

arguing for further gun control, commented that the NSW and VIC governments lacked the courage to engage with well-organised gun lobbies: “You can’t leave anything like this to the State governments; it might need Federal action, it might need Howard.”9 Premiers were ultimately persuaded, and the December 2002 meeting of COAG agreed to tighten the control of handguns used for sports shooting and historical collections.

Combatting national and international organised crime

The second development, less specific in timing, and continuing a pre-existing trend, was the expansion of organised crime across State and international boundaries. This increased the Commonwealth influence, exerted by successive Commonwealth governments through the creation of new institutional arrangements. The establishment in the 1990s of the national DNA database Crimtrac reflected, in part, advances in DNA and computer technology. However, it was also connected to the new gun controls and had deeper roots in terms of “the war on drugs”, fraud and international organised crime.

Howard had an uneven record here, starting initially with apparently good intentions focussed on the public interest and the political advantage to be gained being seen to be “tough on crime”. For example, in 1997 the Commonwealth took a leadership role in brokering via COAG a partnership encompassing health

and police agencies and the non-governmental sector which led to the appointment of a National Illicit Drugs Taskforce:

What he called the first “instalment” of the National Illicit Drug Strategy was announced by the Prime Minister on 2 November 1997. The Commonwealth allocated $87m to this “tough on drugs” strategy. Of this, $43.8m was earmarked for intercepting narcotics entering Australia which included creating 54 extra Australian Federal Police positions to create “strike-force teams” 10 , the remainder was allocated for education programs for children and for rehabilitation and research programs.

The following year, the Prime Minister established the Australian National Council on Drugs (ANCD) 11 . Fitzgerald (2005) describes the impact this had:

Support in 1997 by the States and Territories through the Ministerial Council on Drug Strategy for a trial of prescribed heroin prompted the Prime Minister to attempt to directly control drug policy by changing the

drug-policymaking processes. It has been suggested that the ANCD was introduced to short-circuit the power of the States and Territories to structure national drug strategy, signalling a shift from consensus decision

9 Quoted by Tozer, K, www.abc.net.au/pm/stories/s706904.htm. 10 The proposed locations for these teams was announced in 1998, in Western Australia, Victoria and Queensland. This prompted a complaint by the Premier of New South Wales that the fact that Sydney was a significant entry point for heroin had been ignored. 11

The ANCD is a permanent body advising the Commonwealth Government on illicit drugs and legal substances subject to misuse such as alcohol and tobacco.

DRAFT ‐ NOT TO BE CITED WITHOUT PERMISSION OF THE AUTHORS 16/02/2006

8

making through a policy community approach to centralised executive decision making through the Prime Minister’s office.

Interviews with key policy makers during 1999-2000 and findings from recent evaluations point to a climate of distrust, overbureaucratisation, slow decision making, and overt paranoia about the presence of new

players in the drug policy arena, resulting not from inadequacies in governance but as a resistant response from policy makers to the introduction of the ANCD. This shift in the model of decision making may lead to an obsolete National Drug Strategy and undermine a unified approach to national drug policy. (author’s Abstract)

The drugs issue was again on the COAG agenda in April 1999, when Heads of Government “agreed to a major shift in the practice of law enforcement through which States and Territories would provide the law enforcement basis for diverting drug users into treatment programmes”. 12

The National Illicit Drugs Taskforce produced a national framework paper launched in November 1999 as a basis for Commonwealth-supported projects in each State and Territory. This was characterised by Howard’s Departmental Secretary as an “historic agreement”, “a major achievement” and “an example of how the current inter-governmental processes … can provide a rapid response to a matter of national significance”.(Moore-Wilton, 2000, p15).

Howard was then diverted by what he saw to be unreasonable intervention of a Commonwealth institution, created by his predecessor, into the lives of private citizens ‐ or more specifically one private citizen who happened to be John Elliott, former President of the Liberal Party.

On 8 April 2002, the Australian Financial Review carried an article by Geoffrey Barker on its leader page, under the title “The Odd Case of the NCA”. This reported on the campaign to abolish the National Crime Authority which was seen as “a troubling case study of John Howard’s approach to policy-making”. (Barker, 2002)

Barker noted that Howard’s 2001 election policy launch had announced an intention to work with State and territory leaders to reform the NCA, presumably to strengthen and improve its performance. Legislation was passed which increased its coercive powers. But what he threatened to deliver a few months later was a reduction in its role to intelligence collection and its absorption into the Australian Federal Police (AFP). This was an outcome likely to be unacceptable to the States, as they had accepted the need for improving the NCA’s performance and for a more streamlined structure but believed that the Commonwealth’s proposal required unnecessary disruption.

12

Council of Australian Governments, Communique , 9.4.99. Reflecting, perhaps, the difference in tone, noted earlier, between the Leaders’ Forum members and the Commonwealth, there was a difference of opinion over the wording of the Communique. The words “some would describe this as a zero tolerance approach, others would use a different description” reflected a disagreement between the Prime Minister, who favoured the emotive “zero tolerance” label, and Premiers Carr and Kennett. ( The Sydney Morning Herald , 10.4.99.)

DRAFT ‐ NOT TO BE CITED WITHOUT PERMISSION OF THE AUTHORS 16/02/2006

9

A report of two Commonwealth insiders ‐ Mick Palmer, former AFP Commissioner and Tony Blunn, former Secretary of the Attorney-General’s Department ‐ was initially not given to the State leaders. Barker speculated that “perhaps, as a rush job, it was either unconvincing or reflected Palmer’s AFP-based hostility to the NCA”. He was also deeply concerned about the Prime Minister’s motivations as a desire for vengeance for the NCA’s treatment of Elliott or anger at the NCA’s chairman Gary Crooke taking a permissive view about the ACT undertaking supervised heroin trials.

Barker also suggested that “why Canberra assumed this all-or-nothing centralist stance remains puzzling ‐ particularly given the Government’s strong federalist inclinations”. The leader writer on the same page was less convinced that there

was a genuine commitment by Howard to the anti-centralist rhetoric of his own party:

Despite Mr Howard’s image as a conservative states’ rights man, as Prime Minister he has shown a practical tendency towards centralism when it comes to running the machinery of federal-states relations and has assembled COAG only sparingly.

Past meetings have been called at the behest of the Federal Government to deal with the politically sensitive issue of the moment, such as gun and drug control or petrol prices, rather than as a part of a continuing reform agenda.

This has meant only that the COAG meetings run the risk of being bogged down by politics rather than long-term policy making. But this is no way to run a modern federation”.(Barker, The Australian Financial Review , 8.4.02)

Bob Bottom also criticised the plans for a shift to a national crime agency with more Commonwealth control:

Current manoeuvring is a blatant attempt to exploit public support for the war against terrorism to sabotage an icon of modern federalism and hijack its royal commission powers for a revamped NCA confined to Commonwealth control. More shamefully, it amounts to a betrayal of the aspirations of many Australians who risked much in earlier, more dangerous times, to force the establishment of a federal-state body such as the NCA to combat drugs and organised crime. 13

Palmer’s successor as AFP Commissioner, Mick Keelty, is on record in several places advocating or commending the AFP’s central role in relation to national security policy, “the challenge of promoting greater interoperability between policing agencies around the region” and “the formation of national-level partnerships to help strengthen the national response to terrorism and other forms of transnational crime”. 14 The same theme was promoted by the Secretary

13

Bottom, B, ‘A blatant effort to sabotage the NCA’, The Canberra Times , 27.2.02. 14 See for example, address to National Press Club, 7 July 2004.

DRAFT ‐ NOT TO BE CITED WITHOUT PERMISSION OF THE AUTHORS 16/02/2006

10

to the Commonwealth Department of the Prime Minister and Cabinet 15 and by several independent commentators.16

Under a headline of “Push for national graft body” the Weekend Australian of December 10-11, 2005, reported on the call by the Commonwealth Ombudsman for a national anti-corruption agency to investigate criminal activity across all States, “an institution mysteriously lacking at the national level”. The Victorian police force was singled out as one of the nation’s most corrupt institutions, and recommendations were made for Victoria to replicate the range of anti-corruption agencies found in other States such as NSW. Former investigator of organised crime Frank Costigan was quoted as enthusiastically supporting the call for the Commonwealth Government to establish a national anti-corruption watchdog.

On the same page, there was a report on the achievements of the Australian Crime Commission, identified as “the nation’s most powerful law enforcement agency” ‐ smashing 20 criminal syndicates, seizing $66m worth of drugs, laying 1,665 charges and issuing tax assessments worth $12m. Justice Minister Chris Elliston complimented the organisation which had “worked hard to deliver leading-edge intelligence that has reduced the impact and incidence of serious and organised crime in Australia”. Alistair Milroy, the Commission’s CEO, had the good grace to point out that the ACC had used its coercive powers (which Howard had earlier threatened to curtail) in association with other law enforcement bodies, presumably including the maligned Victorian as well as other State police forces.

Anti-terrorism legislation

The third event, opening another window of opportunity for the Commonwealth Government, was the effect that September 11 had on the timing, location and organisation of the 16 th biennial Commonwealth Heads of Government Meeting (CHOGM) which Australia was due to host in Brisbane in October 2001.17 The only other CHOGM meeting held in Australia had been in Sydney in 1978, when a bomb exploded outside the Hilton Hotel where the meeting was taking place, killing a police officer and two garbage collectors.18 There was also, therefore, concern that there should be no security breaches in Brisbane.

15

Platypus Magazine , March 200, p82. 16 Bergin and Bateman’s report on the terrorist threat to Australian maritime security. Australian Strategic Policy Institute , 2005, and the Introduction in Chappell and Wilson 2005. 17

After the planned October meeting was deferred, as a result of post-September 11 security fears, the meeting was eventually held at a more easily secured coastal resort at Coolum, Queensland, in early March 2002. 18

Although the bombing has been described as a terrorist act, and was initially attributed to the Ananda Marga sect, the supposed perpetrators were pardoned and released some six years after being convicted. It was, however, Australia’s only previous experience of what appeared to be a terrorist bomb attack.

DRAFT ‐ NOT TO BE CITED WITHOUT PERMISSION OF THE AUTHORS 16/02/2006

11

This became a massive internal security exercise involving Commonwealth and State agencies, and in the longer term far closer involvement of the Commonwealth, and indeed State central agencies, in security matters.

Reinforcing the concern about the implications of political violence and terrorism was the invasion of Iraq ‐ not so much a window of opportunity as a gaping hole or, in James Walter’s phrase, ”an accidental accelerant”.(Walter, 2004, p20).

Even though the unconvincing official view is that Australia’s involvement in the war in Iraq has not had domestic security implications, what cannot be questioned is the expanding incidence of off-shore terrorism specifically directed at Australian targets and the identification by Commonwealth intelligence agencies of credible internal threats. This ultimately led to Commonwealth legislation unapologetically labelled as “draconian” but ultimately supported by the required complementary legislation at State level.

A number of observers, such as Michael Head, had already suggested that this outcome is not unproblematic:

In 2000, the Coalition and the Labor parties joined hands to pass military fallout legislation that enables the armed forces to be mobilised against civilian unrest (‘domestic violence’), with or without the agreement of a State government. This overturned the traditional principle of relying on police for domestic law enforcement.(Head, 2002, p1)

Head argued that the counter-terrorism laws constituted a threat to political freedom, civil liberties and constitutional rights. The Labor Party had supported the legislation in principle and committed at COAG to formally refer their powers over terrorism to the Commonwealth parliament:

Their decision has the potential to give the Commonwealth substantially unfettered law-making, and police enforcement, power over politically-related crime for the first time since Federation in 1901.(Head, 2002, p10)

Peter Charlton (2002 ‐ in a book edited by David Solomon) has linked the stance taken by Howard on asylum seekers, and those on the Tampa in particular, to the problem of potential terrorists infiltrating Australia’s borders. The Courier-Mail , where David Solomon was then a contributing editor, used the headline “Canberra’s Police Power Play” to suggest that the Commonwealth Government was using events as “an opportunity to try to extend the powers of its security and police services and assert authority over states and territories.” (The Courier-Mail, 4 April 2002).

This was backed up by the as-usual blunt and uncompromising language of the Queensland Police Union: President Gary Wilkinson railed against Commonwealth plans as “nothing more than a power grab”, ridiculed the notion of changing reporting lines from State to Federal police mid-crisis and doubted that the national agencies had the appropriate understanding of practical policing at community level.

DRAFT ‐ NOT TO BE CITED WITHOUT PERMISSION OF THE AUTHORS 16/02/2006

12

By the beginning of 2006, Wilkinson’s views had been accepted by the Police Federation of Australia (PFA). The 2005 Wheeler Review of airport security noted that policing at major airports was often inadequate and dysfunctional, and security systems are typically uncoordinated. The roots of this were identified as bureaucratic turf-protection and unresolved Commonwealth/State conflicts over resources. Wheeler’s recommendations included the appointment of senior controllers answerable to the Commonwealth, as well as changes in organisational culture “in order to replace the silos and insularity which continue to provide unnecessary weaknesses that could be exploited by criminals and terrorists”.(Wheeler, 2005, p.xv)

A joint submission by the PFA to State and Commonwealth leaders warned that strengthening security at national airports could come at the expense of community safety because hundreds of State police had been forced off the beat. There were not enough Federal police to staff eleven airports and the shortfall would have to be made up with experienced State police officers, leaving police ranks seriously depleted. PFA spokesman Mark Burgess suggested that the plan had not been thought through properly and raised significant legal, industrial and training issues: “This issue has the potential to compromise community safety in

every jurisdiction”.

This emotive claim reflected the increasing tension between highly localised policing and the new global crime ‐ be it internet-based or international terrorism. Local policing has long been the focus of pork barrelling, with State politicians competing in their promises to provide more police on the street, or (in the case of Queensland at least) a police beat shopfront on every street corner and a police liaison officer in every ethnically diverse community in their electorates. Geographically inflexible policing is not necessarily the most effective response to globalised crime, and Commonwealth demands that the local bobby be transferred from the street to the airports does not sit well with established allocation patterns developed in response to demands fostered by the State election cycle. This issue was still unresolved at the time of writing, see Brisbane Courier-Mail , “Airport security plan grinds to a halt in manpower fight”, 7.2.06.

The proposal put to the State premiers back in 2002 had been the replacement of the NCA which operated under joint Commonwealth/State control with a Commission answerable only to Canberra. The premiers took the view that current co-operative mechanisms were adequate, a view supported by the

editorial which argued that:

Mr Beattie is right to resist the idea of allowing Canberra to tell the Queensland Police Commissioner how to deploy his personnel and resources and to insist that short of a real national terrorism problem, responsibility for dealing with local incidents should remain with the Queensland Commissioner. (Weekend Australian , December 31, 2004 ‐ January 1, 2005)

The next move was, predictably, that the Commonwealth authorities used evidence supplied by their covert intelligence agencies to establish that there was indeed “a real national terrorism problem”. By 2003, further changes were

DRAFT ‐ NOT TO BE CITED WITHOUT PERMISSION OF THE AUTHORS 16/02/2006

13

proposed to strengthen the Commonwealth legislation and the premiers were castigated by the prime minister as “not being serious about putting in place an effective legislative framework for tackling terrorism” 19 The matter in dispute at the time was a proposal to allow the Attorney-General generic power to proscribe terrorist organisations. This was regarded by Labor senators and State premiers as a cynical political exercise. Senator Faulkner indicated that “we will not accept a regime of secret proscriptions of decisions in closed rooms of such significant and potentially destructive power in the hands of one person alone.” 20

The issue of secrecy underpinning the expansion of Commonwealth powers was latterly taken up John Warhurst, separating the process from the content of an anti-terrorism package which opinion polls suggested enjoyed wide public support. Warhurst identified several cumulative weaknesses ‐ the agencies concerned all had a closed culture of secrecy; the climate of fear could be

exploited to generate a sufficient sense of urgency to allow the usual rules to be bent; and the combination of federal structures with strong executive action reinforced the tendency to secretive and unaccountable decision-making.

Warhurst concluded that the collusive engagement of all nine heads of the Commonwealth, State and Territory governments in a secret enterprise tended to weaken traditional notions of parliamentary and community accountability:

A herd mentality develops. There is no doubt that the position of federal Labor, in particular, is weakened by the cosy relationship of their ALP state colleagues with the Commonwealth Government. But the same is true for state Liberals and National opposition parties that want to break with the herd 21

The consensus politics of insecurity

The textbook defence of federalism, eloquently described by Ward and Stewart (2006), is that

Dividing authority in this way (with a federal constitution) is argued to prevent the accumulation of excessive power in the hands of one government and thus protect the liberty of the citizens. In a federal system ‐ or federation ‐ there are multiple governments and power is therefore

dispersed. (p 56)…

Often this view of federalism is championed by those who fear that, with its ‘winner take all’ bias, majoritarian democracy can trample upon the rights of minorities unless restrained by the checks and balances of the kind the federal division of powers expressly provides for. (p 62)

19

Walters and Morris, The Australian , 11.9.03. 20 Walters and Morris, supra cit. 21

.Warhurst J, The Canberra Times , 28.10.05.

DRAFT ‐ NOT TO BE CITED WITHOUT PERMISSION OF THE AUTHORS 16/02/2006

14

Back in the 1950s, influenced in particular by the previous German experience, Franz Neumann was less sanguine about the virtues of federalism:

Those who assert that the federal state through the diffusion of constitutional power actually diffuses political power often overlook the fact that the real cause for the existence of liberty is the pluralist structure of society and the multi-party (or two-party) system. Federalism is not identical with social pluralism.(Neumann, 1955, p 220)

Riker (1964) asserted, against other authors who identified a wide range of conditions for the maintenance of true federalism, that whether or not a federal system survived depended entirely on the nature of the party system that emerged:

It does not, that is, depend on the division of governmental powers, on the extent of governmental activities, or on the survival of provincial loyalties and a belief in states’ rights: these factors influence the nature and working of the federal system, but it is the structure of the parties which determines how long the system is maintained.(Riker, 1964, pp 15-16)

Riker and others were preoccupied with the health of new federations widely distributed by the British during their decolonising phrase but the same issue might need to raised in contemporary Australia. Is the federal compact entirely at

the mercy of the party system so that apparently key responsibilities at State level ‐ such as policing - may be effectively centralised if that is the will of the party in power nationally and those in power at State level are afraid to object?

In all of the Commonwealth initiatives relating to policing described above, there was a high degree of consensus and acceptance by State leaders and their bureaucrats that this Commonwealth expansion was justified ‐ or at least could

not be resisted. [The last hurrah of resistance ‐ to an unlimited definition of sedition - came as much from Liberal as Labor members and as much from Commonwealth as from State level]

Clearly, resistance by State leaders might be fraught with political dangers in the current circumstances. As James Walter pointed out in his 2004 APSA conference paper, the broader security agenda played well in the last federal election and is credited with swinging the election in Howard’s favour. Howard “prospered from the ‘securitisation’ agenda provoked, first, as illegal immigration was construed as an attack on national sovereignty, then immensely amplified by the September 11 attacks, ‘the war on terror’ and the Iraq invasion”. (Walter, 2004, p 19).

In general, State Labor leaders clearly believe that the lesson of 9/11, Bali and Port Arthur is that the voting community is well disposed to centralisation or any other initiative which relieves their feeling of insecurity and offers control over potentially violent dissidents.

DRAFT ‐ NOT TO BE CITED WITHOUT PERMISSION OF THE AUTHORS 16/02/2006

15

Concerns about boat people and ineffective border protection ‐ dating back to Tampa ‐ has become caught up in the wider stereotyping of terrorists as aliens in urgent need of a strong police response.

Concerns about erosion of State powers (or civil liberties 22 ) are reduced to “niceties” which may engage the chattering classes but would not stand up to the scrutiny of voters. Neither side of politics, at either level, wants to be seen to be soft on crime and terrorism. And hardness means central control, not indulgence of the sort of differences which characterise true federalism.

It could be argued that none of this matters much, that policing has become so complex, expensive and inter-connected territorially that it makes sense to let the Commonwealth Government take over policy responsibility, just as it has become predominant in so many other areas through fiscal conditionality. Perhaps this is the unacknowledged consensus.

Or has Howard, in Walter’s phrase “gone too far”? Even Plato had concerns about the problem of expecting voluntary restraint from unconstrained policymakers:

If anyone gives too great a power to anything, too large a sail to a vessel, too much food to the body, too much authority to the mind, and does not observe the mean, everything is overthrown, and the wantonness of excess runs in the one case to disorders, and in the other to injustice, which is the child of excess.

22

This paper has not addressed the human rights or civil liberties implications of the Anti-Terrorism legislation. These are discussed by Charlesworth H, Byrnes A and McKinnon G on www.chief.minister.act.gov.au/docs/Stanthorpe advice 20051018 . pdf, and Jupp J on www.democratic.audit.au.edu/Papers-2005/Jupp%AntiTerror on the threat to long-standing legal protections.

DRAFT ‐ NOT TO BE CITED WITHOUT PERMISSION OF THE AUTHORS 16/02/2006

16

Post-script Cronulla

This paper was being written at a time when national and international attention was being directed at racially-motivated mob and gang violence in Sydney’s southern beach-side suburbs.

Leaders of both political alignments and at both levels of government tended to fall over each other in their eagerness to establish that police have or will be given the necessary resources and legal powers to maintain order. There was also similar consensus at leadership level that these events were untypical of general attitudes towards and among ethnic minorities in Australia. As the Prime Minister advised his constituents: “Let’s not wallow in self-pity, self-flagellation and self-criticism…just criminal behaviour, that’s what this is”. The Prime Minister’s rejection of the idea that there is underlying racism in this country was, as is so often the case, well attuned to community attitudes, at least to judge from the opinion polls and the interpretation placed on them by journalists 23 :

The only dissidence tended to be voiced by fringe commentators criticising a long-established tradition of Anglo-Celtic exclusivism, concerned about the impact of inflammatory radio journalism hostile to multiculturalism.24 Michael Pascoe writing in “Crikey.com” noted that: “Just as federal government and opposition happily jumped into bed together for Laura Norder, so both sides of NSW politics are rooting for 15 year jail terms for riot and disorder and the removal of bail for such offences”. On the same site, Mike Carlton detailed the significant contribution of radio journalist Alan Jones to the Anglo-Saxon cause and pointed out the capacity of the new sedition laws to deal with this incitement to racial violence (or earlier but never-utilised laws about racial vilification).

Carlton observed that “the sad thing is that no-one in authority will take Jones on. Certainly not his mates Howard and Ruddock, who dote upon him as their trusted media megaphone. And certainly not the NSW Government of Morris Iemma, which lives in daily terror of upsetting the great man.”

Among journalists in the mainstream media George Megalogenis was unusual in trying to keep the focus on the deeper issues:

Howard’s Australia is many times more prosperous than that of Menzies and a thousand times more interesting. Yet fear was a common currency of both eras. … But Menzies never broad-brushed communities; instead

he attacked a political creed, namely communism. By contrast, politicians today aren’t so subtle … they don’t see the link between Anglo mobs

23

See, for example, Dennis Atkins, “Beach riots stance gives Howard leg-up in polls”. The Courier-Mail, 24-25 December 2005. 24 Unusually Aboriginal Australians were not in the metaphorical firing line this time, but their perspective was voiced in a letter to the editor in The Telegraph of 18 December: “Last weekend’s criminal misbehaviour by AngloSaxon immigrants and /or their descendants pretending to be Australians should not be a surprise to anyone. Anglo-Saxons are particularly difficult to integrate, as most nations who have been inflicted with them have found. They make little effort to learn the language and steadfastly refuse to respect the laws and customs of the host country.”

DRAFT ‐ NOT TO BE CITED WITHOUT PERMISSION OF THE AUTHORS 16/02/2006

17

bashing men and women of ‘Middle Eastern appearance’ and the terror card they play against Australians of Muslim faith.25

The response of politicians to Cronulla underlines the general proposition in this paper that the policy priorities attributed to voters are firmly linked to their sense of personal security and community identity. Police activity designed to increase that sense of security ‐ promoted by whatever level of government ‐ will therefore become a high priority for politicians.

Events associated with Cronulla suggest that, by the end of the Howard decade, the high ground of policy-making on police has been vacated consensually by State leaders because of their fear of being punished for not dealing adequately with the fears in the wider community. In retrospect, this might be seen to be just one more Canberra collateral victory in the “war against terrorism”.

25

(The Weekend Australian ,17-18.12.05)

DRAFT ‐ NOT TO BE CITED WITHOUT PERMISSION OF THE AUTHORS 16/02/2006

18

References

Barker G (2002), “The Odd Case of the NCA”, Australian Financial Review, 8 April.

Beattie P (2001), Governance in Australia’s System of Federalism , Queensland Government.

Beckett K (1997), Making Crime Pay: Law and Order in Contemporary American Politics , Oxford University Press, New York.

Birch A H (1966), “Approaches to the Study of Federalism”, Political Studies , 14, 15-33.

Chappell D and Wilson P (2005), Issues in Australian Criminal Justice , Butterworths, Sydney.

Charlton P (2002) in Solomon D (ed), Howard’s Race , Harper Collins, Sydney.

Dean M and Hindess B (eds) (1998), “Introduction: Government, Liberalism and Society”, Governing Australia: Studies in Contemporary Rationalities of Government, Cambridge University Press.

Fitzgerald J L (2005), “The Australian National Council on Drugs (ANCD) and governance in the Australian drugs policy arena’, Contemporary Drug Problems, Vol 2, Issue 2, pp 259-293.

Galligan, B (1995), A Federal Republic , Cambridge University Press, Melbourne.

Hamill D (2006), doctoral thesis, University of Queensland, to be published shortly as The Impact of the New Tax System on Australian Federalism, Research Study 45, Australian Taxation Research Foundation, Sydney.

Head M (2002), “Counter-Terrorism Laws: A Threat To Political Freedom, Civil Liberties and Constitutional Rights”, Melbourne University Law Review , December.

Hughes O (1995), Australian Politics , Macmillan, 3 rd edn.

Mackenzie W J and Chapman B (1951), “Federalism and Regionalism”, Modern Law Review, 14.

Moore-Wilton M (2000), Secretary, Department of Prime Minister and Cabinet, “The State of Inter-Governmental Relations”, The Public Interest , IPAA Brisbane, January.

Neumann F (1955), “On the Theory of the Federal State”, in MacMahon A (ed) Federalism Mature and Emergent , Doubleday.

DRAFT ‐ NOT TO BE CITED WITHOUT PERMISSION OF THE AUTHORS 16/02/2006

19

Riker W H (1964), Federalism : origin, Operation, Significance , Little Brown, Boston (cited by Birch A H, 1966, p 21).

Sarre R (2002),’Criminal justice policy’, in Summers J, Woodward D and Parkin A (eds) Government, Politics, Power and Policy in Australia, Longman, 7 th edn.

Walter J (2004), “Why Howard goes too far : institutional change and the renaissance of groupthink.”, APSA Conference Paper, Adelaide.

Ward I and Stewart R (2006), Politics One, Palgrave, Macmillan, 3 rd edn.

Wheeler J (2005), An independent review of airport security and policing for the Government of Australia , Department of Transport and Regional Services.