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- [00:19]
A
Five year old girl is murdered in the Northern Territory. Six police notifications, no intervention. And again a violent offender walks free. Meanwhile in Melbourne, a man secretly films over 100 women using public toilets, gets caught, pleads guilty yet again, walks free without any convictions. And in Melbourne, gangs firebomb nightclubs in broad daylight over an ongoing tobacco war that has been created entirely by poor government policy. So what exactly is happening to law and order in Australia? And is anyone willing to talk about it honestly? Well, I've got someone who is. Today I'm joined by Andrew Bushnell. He's a researcher and writer with a PhD in Political Political philosophy from the University of Melbourne. He's a research fellow at the Institute of Public affairs. And Andrew has spent years investigating Australia's criminal justice system and has become one of the country's sharpest and most honest voices on crime, sentencing and the failures of the institutions that are supposed to protect us. He's written a number of pieces for Quillette, which you can read@quillet.com if you do enjoy today's important conversation, please like the video and share it with someone and also subscribe to our YouTub channel. It genuinely helps us reach more people who want genuine, honest conversations about important topics. Without much further ado, let's get into this conversation with Andrew Bushnell. I wanted to start off by talking about your most recent piece published in Quillet, which is about the tragic murder of a five year old Aboriginal girl who's been called Kumanjayi. She was allegedly killed by a violent, a repeat offender. Police had filed six protection notifications in the, in the two months before her death. In your opinion, could her murder have been prevented?
- [02:12]
B
I think that's a really challenging counterfactual, but you'd have to say that there was at very least the opportunity to intervene. When you have that many child protection notices now, there's a process to substantiate those and we don't have all of the information about how the process was undertaken. And my understanding is that the relevant minister in the Northern Territory has ordered an inquiry into that. But you'd have to say that when there is a long record of what looks like at the very least, child neglect and then obviously manifesting into something even more serious, child abuse and the eventual, and the murder of, well, the alleged murder, the killing of Kumanjayi little baby, you'd have to say that there was at least the opportunity to intervene more forcefully and you know, you can understand why there's going to be an inquiry into why Those child protection notices didn't result in intervention to prevent her exposure to dangerous circumstances, which have ultimately had the most tragic outcome.
- [03:27]
A
In your experience, how common are these types of crimes in this area of the Northern Territory? Could you clarify where she lived? And actually, it might be helpful to give our readers, many of whom live in the States or internationally, bit of a better understanding around of the case.
- [03:47]
B
Yeah. Well, I'd just say that the intent of the piece was to provide some overview, synoptic context for the crime. And I think, like all Australians, I read the story as it developed and was aghast at this, this terrible crime. And the intent of the piece was to try and provide some context for it that we can see from the available data, rather than. Well, the approach I took was that I was as upset and angry as anyone, but my emotions were really, by the by, no one needed to hear about my emotions. What I felt I could provide in the piece was a bit of an overview for everyone who was reading the story and wondering how this could take place and what you find when you look at the available data. And I've had done a little bit of work on this previously when I was at the Institute of Public Affairs, I wrote a paper about the criminal justice system and its interaction with Indigenous Australians. So I sort of had a bit of background knowledge and I sort of knew where to look. And basically, when you. When you look, when you take that view, you step back and you think, well, what are the circumstances here? You know, it raises some. Some serious issues around. First, the setting of the crime, which are these called town camps, which were set up decades ago to provide housing for Indigenous people in and around the major population centres of the Northern Territory, including Alice Springs, where this crime took place. And there, in the piece there, I detail some of the data around how many people live there and what's known about the interaction of people there with, say, with, say, alcohol abuse. And some of the information about child protection data in the Northern Territory. So how many Indigenous children are subject to child protection notices and how they're placed. And so I think that the two most important data points that I raised in the piece that I think people need to know about when they see a crime like this is first, as you flagged, the alleged offender in this case has a long history of violent crime. And when you look at the data, and it's publicly available data at the Australian Bureau of Statistics, there seems to be a real problem with violent repeat offenders being in and out of prison in the Northern Territory, particularly Among the indigenous prisoners, a large majority are in prison for violent offences. They've been in prison before. So that's about 80% have committed who are in prison, have been sentenced or charged with a violent crime. Basically similar number have been in prison before. And then when you look at the expected time to serve, that is about 2/3 have an expected time to serve of less than two years. So you're seeing a pattern of violent crimes, relatively short sentences in a cycle of crime and then that it results in, you know, victims like Kumanjayi, Little
- [07:09]
A
Baby and some, some other context for our listeners. This. These are some stats coming out of your article. So for people who aren't familiar with Australia, Australia is a very, very large country. I believe France fits inside us like six times or something like that. It's a huge country. And this state of Waltz, not a state. The territory of the Northern Territory is known for being a state or a territory that has a very, very high or a higher indigenous population than other states. So about 31% of the population is indigenous. But a few Years ago about 89% of police prosecutions in the Northern Territory were with, were against indigenous offenders. It's a huge question, Andrew, but why do you think there is such, such a rate of offending amongst the indigenous community?
- [08:10]
B
Yeah, so I think it is important to be clear that the vast majority of Aboriginal people live in the major cities of Australia. The Northern Territory only has a population of about 250,000 people, but about a third of them are indigenous. But it is the place where indigenous people are most likely to live in very remote areas or in places like these town camps on the outskirts of cities. And so it's a specific subset of the broader Australian indigenous population. And I think, you know, so the question why is there such a high rate of offending? Well, there's a number of factors and I think it's important to call them factors rather than causes. I mean, ultimately the cause of crime is a person committing in crime, making that decision to do that.
- [09:01]
A
Very good point.
- [09:02]
B
But there are factors that are known to be associated with criminal offending and they tend to be more present in indigenous communities in the Northern Territory. So lower educational attainment, lower levels of employment, living in rural and remote areas, alcohol and drug abuse, all of these factors, and you can get the data for this from the Australian Institute of Health and Welfare, but all of these, these factors that we know are associated with crime are actually really present in this community. So it's not a direct one to one causal piece but it is a relevant context. And so the question, the deeper question, you know, that some people would steer the debate to, is why do these factors. Why are these factors so present in these communities? And we know that there is a sort of establishment view that these. These factors are present because of the lingering effects or ongoing effects of colonization,
- [10:01]
A
intergenerational trauma, systemic racism.
- [10:05]
B
So we know that there's. There's one story. The other. The other story is that in a way, possibly we have. We have failed to integrate indigenous people into modern, you know, the modern ways of living with the kind of romantic view of staying your own country, staying in these places, and repeating or encouraging a kind of separatism of cultures rather than saying, retain what you can of your culture and what's good, but be integrated with the broader standards of our society. And the most obvious example and what makes this case interesting from this broader point of view is because it's a terrible crime. And one of the points that I wanted to make in the piece is that the criminal law of all institutions in our society should be broadly unifying. When you think about. To get really abstract about it, if you think about what's good for humans, well, the good is very multifarious. There are many ways to live good lives, and we understand that. But harms or even evils are not so multifarious. No, they're actually. Yeah, well, they're actually. They're actually obvious to most people. Right. You don't want to be. You don't want to be killed or abused or. And so the criminal law exists to protect us against these really obvious downsides of human life, and the standards that are encoded in them are really just common sense. And so there's no debate here about cultural diversity or things like that when it comes to murdering little children. And so I think.
- [11:46]
A
Is it common sense, though, in the sense. Isn't there a cultural relativist sort of lens to see this through in that, for example, you know, in some cultures it is appropriate, and maybe in. In our culture as well, if you go back a few hundred years, it was appropriate to, you know, put to death, you know, someone for adultery or for, I don't know, another crime that, that today we. We would see as. As unfair and wrong, but in some cultures, that's still a totally acceptable. Or to. To, you know, have sex or have relations with someone who's underage.
- [12:26]
B
Yeah. I think when you, you know, laws and institutions can manifest in different ways, but when you sort of peel back the institutional, constructed layer, the basic human Nature underneath doesn't really change. And that's why you can insist within a unified polity like Australia, that the standards are uniform across that entire polity, regardless of cultural distinctions, when it comes to things that we consider basic. So I think, yes, you know, the laws and institutions manifest in different ways in different societies, in different times in history. But when you are part of a, when you're a part of a single, a single policy, we're all invested in each other's lives to maybe to a degree greater than we would like. But, you know, when we have governing institutions that, you know, tax us and move money around and regulate the way we interact with, with one another to the degree that we have. But when it comes to something as basic as the criminal law, there's really no excuse for treating some people within that polity different from others, regardless of history and these other factors. And I think that's, you know, that. And that point, that point may be stronger or weaker for other institutions, but I think when it comes to the criminal law, which deals with these very serious harms, harms that affect not only the victims, but go to society's conception of itself, then that sort of relativism really doesn't play any important role. I mean, I think it can be dismissed out of hand. I think there's another important point about this as well, which is that we have as a society somehow become afflicted with the idea that human dignity involves being treated differently from other people, treated as who you are based on some arbitrary set of predetermined factors. But classically speaking, human dignity comes from being treated the same as others, being held to the same standards and being given your just desserts when you do the. When you do right and wrong. And so I think there's this deeper problem that we have in society when we come to address issues that afflict the subset of the population, that we've kind of lost confidence in our ability to make judgments for everyone as a whole. And that really plays out here because when you see the other key stat that I mentioned in the piece was the falling rate of indigenous children in out of home care and the fall in the number of those being placed with indigenous kin or carers. And I'm happy to say that I kind of anticipated the debate that came up and that what's called the child placement principle is now being modified or will be modified if a bill that's in the Northern territory of Parliament passes. And I think, you know, that when it comes to this idea of what are our standards around child safety. Yes, it is. I would say, yes, it is important that wherever possible people stay with their family. I certainly don't support breaking up families. I also think it's important that ultimately solutions to these problems do come from within these communities themselves because that creates buy in. But at the same time, those of us on the outside, when we see, when we see this data, we see a crime like this. I don't think that we can shy away from imposing standards that we would expect, you know, that we would hold ourselves to. And I think, I think that's, those are two really important points to make is that one, you know, the criminal law in particular is rooted in common sense, our historical common sense as a polity. Maybe it's not God's will, but it's our historical common sense as a polity. And then the reason that we hold people within our polity to the same standards is precisely to secure their dignity under the law.
- [16:41]
A
So are you suggesting in a way that Australia has a sort of two tier system when it comes to dealing with offenders?
- [16:51]
B
Well, I think what you have seen is that. How would I put it? I think. Well, we know, for example, that sentencing principles do include various factors, some of which are, you know, cultural background and things like that. So there is scope, say in sentencing for what's called individualization. And that might result in the aggregate level and you know, sort of apparent differential treatment between groups. And that's, that's probably a bad thing. But I don't think you'd go so far as to say, well, we have two, we have two tier system of criminal law. I think what you would say is that there is a developing move across the country to separate indigenous affairs from the broader politics of this, of society, to place it in the hands of indigenous groups, elected indigenous bodies, and to basically put a wedge between the broader Australian society and indigenous Australia. And I think ultimately that's, ultimately that's a mistake for our country because we're all in it together, we all have to live together and we're invested in each other's outcomes. I just think it's, you know, that kind of separatism strikes really at the heart of a unitary idea of Australia. And so I'd say that that's the deeper issue. And then you can ask the question of why would anyone want to strike at the heart of a unitary idea of Australia? And you know, perhaps just speculating, but perhaps it serves a range of other ends that have nothing to do with the wellbeing of indigenous people. Much less the wellbeing of the rest of us. So that's, that's, that's, that's where I would say that the two tier. Sorry say, say more about what those other ends are. Yes, well, to. And without wanting to go like off the deep end, but I think there is a. One of the uses of Indigenous policy has been to undermine the sense of Australia's national possession, our possession of our country. That, to say that, to say that Australia is itself illegitimate and illegitimate unless certain radical changes are made to it. Those radical changes broadly go under the umbrella of modern Australia. That's what. If you notice that the government in Canberra now only talks about modern Australia as though historical Australia is illegitimate or at least has already been superseded. And so there's. And I wouldn't say that this is true of all indigenous people or even all indigenous representatives, that this is why they're interested in these issues. I don't think it's that level of bad faith, but I do think there is a measure of bad faith in some of the people who will use indigenous issues and indigenous cultural. You know, this, this, this deliberate installation of indigenous cultural markers within say like you take for example the controversy around welcomes to country where this is essentially leveraging people's sympathy, actually people, people who, people's real investment in improving indigenous well being and their outcomes. Leveraging that for a broader political purpose which goes under the name of, you know, decolonisation or identity politics or whatever. So I think it's really unfortunate, actually I made this point in the piece. I think it's really unfortunate for these kinds of really concrete indigenous wellbeing issues like the level of crime and that manifests in terrible crimes like this to be commingled or mixed up with a broader cultural agenda that's much less popular. I think that just. That strikes me as bad politics and it makes you wonder why people would do it. And probably the best example of that, just to finish the thought, was actually the voice to Parliament where there was a deliberate elision of the difference between what you might call like the epistemic argument for it, which is that indigenous people know their own circumstances better than others and therefore should participate in policy making on that basis. And the normative argument, which is that the country itself is illegitimate unless it provides special representation to indigenous people. And it makes you wonder why, given that that's such obviously bad politics and the defeat of the voice referendum proves my point, given it's such bad politics, why is it being done? And repeatedly, even when it risks undermining the kind of popular support you need for policy change around things that are really, you know, concrete policy issues that, that deserve serious attention. Like this one.
- [21:48]
A
Yeah, yeah. It's such, such a divisive topic. Even though deep down I think most Australians genu want better things for Aboriginal Australians. Whether you're a one nation voter or a Greens voter or whoever. I think the average Australian really doesn't want people to suffer. Doesn't want, you know, Aboriginal girls in the Northern Territory being murdered. No one really wants that. It's just, it's. The topic is so divisive now and we've been told, you know, over at least a decade, if not longer, that, you know, if you don't agree with a specific narrative of Australian history, really like the black armband view of Australian history, I would say that you're, you're a bad person and that you don't want good things for Aboriginal people or that you're racist and as a result, nothing like what's, what's actually happening to improve the lives of indigenous people, especially living in remote areas. I'm, I mean, I'm sure there's people, you know, working on it, but it seems like it just doesn't seem to get that much better over the years.
- [23:00]
B
Yeah, I think, well, I think polling shows that most people do think it's important. Now if you ask people what's the most important issue, then, you know, the bread and butter issues always win out on that, you know. But when you ask people, do you think this is important? Most people say yes, they do think that improving the outcomes for indigenous people is important. But some of the more radical politics around it is not popular. And I think that's a. So for, for that reason, I think it's a mistake to your, to your other point about, you know, being being obliged to accept, you know, this, this one specific narrative or else, you know, you're the worst person in the world and, and you're racist and whatever. Yeah, I think that that's, that it's, it's totally, it's totally false. Just when you, when you, when you look at. Well, for example, I mean, not just the polling, just the idea that you do have to wonder why people would say would want to attack you for taking a look at these kinds of issues as though we're not supposed to pay attention to them. You know, the alternative is to ignore it. And that seems much worse actually. The alternative is to not ignore, is to not care and to not participate in public debate about what we ought to do about these issues. And that kind of neglect itself seems worse. But it also would leave you open to attack, like, why don't you care? So I think we have to take seriously the idea that yes, most Australians do care and would like to see an improvement in these circumstances. And when they say that they care and they talk about the facts around it, that is showing that they care. Certainly that's how I think about it when I enter it. I try and when I have written about this topic, I try and do so in good faith. But I'm coming from perspective. I think of someone who isn't. I'm not just an external observer, I'm an interested observer in the sense that I have a stake in these outcomes because it's my country too. And I think I don't really see why any Australian should feel cowed in the face of what's really an attempt by a handful of organisations and bureaucrats to protect their patch from scrutiny and to avoid accountability.
- [25:24]
A
Well, yeah, that's an interesting point about protecting one's patch because I was just thinking there's a lot of gatekeeping when it comes to Aboriginal history and knowledge. For example, you know, we've published pieces or even interviewed people. We had an interview with guy who goes by the name Mungomanic. I'm not sure if you caught that interview. Iona interviewed him, you know, about Aboriginal ancient, ancient Australians as he calls them. And this guy's genuine, he's an American guy. He's genuinely just obsessed with this topic about learning more about ancient Australia. And it was a fascinating conversation and I learned so much about these incredible people, really who had a completely distinct way of life and what they ate and how they lived and how they interacted with each other. It was fascinating. But, you know, and I have, have the same zeal when it comes to learning about the Aztecs or you know, the other, any other indigenous group around the world. And for some reason it's okay for me to learn about the Aztecs and all the things they did and be excited about that, but to have this interest in how ancient Australians lived, that's not, that wasn't seen as okay. And we, we had a lot of complaints and comments and even people threatening sort of legal action over what they said was an exposure and exposing of sacred rituals and sacred knowledge, as they call it, in particular men's knowledge, men's business when it came to, you know, hunting or circumcision practices, coming of age rituals. So we had to take down the video which was in the interview, which was such a shame because actually through learning, through getting, gaining genuine knowledge about these people, I developed even more respect and genuine interest and curiosity in these, you know, an ancient civilization, but where we're supposed to instead be, you know, knowledge is gatekept and sanitized to, to fit, I don't know, whatever narrative of the day.
- [27:35]
B
Yeah, well, it's certainly a long running part of these, the history wars, you know, in Australia, which go back to this question about legitimate national possession. I'm certainly no expert on ancient Australian history, but I would say that it is contested because any, any suggestion that the history of possession of the continent is more complicated than there were people here, the British arrived and took it from them. Any story that's more complicated than that strikes at different people's idea of who owns the place. When of course the reality is that we own it together and it's held in trust for us by, well, by the Australian crown technically, but in practice by the Australian government, you know, and I think that's where that comes from. I mean, for example, you know, you can ask how the dingo arrived in Australia, right, 4,000 years ago. Doesn't that suggest perhaps that there was greater interaction between the people on this continent and nearby islands than maybe we understand? I don't know. I don't actually know what the answer to that is, other than that dingoes are understood to be from probably somewhere in Indonesia. But the fact that like I have to hesitate before I even raise the question says something, says something, I think important about how contested this story of our deeper national history and then how it came to be the case that there's this amazing first world modern liberal democracy on these lands and you can, you know, in good faith people might say, well, you have to take the good with the bad, right? That yes, the modern history of Australia has achieved many great things for people and not all of its history is to be celebrated maybe. I mean, that would be one sort of nuanced view, but it seems like we're in this position where if you don't condemn the entire thing to the point where you might close your eyes to any complexity in the story, I think that's where it comes from. I think the hostility comes from a sense that everyone is looking for weapons to use in this debate about national possession.
- [29:58]
A
Power play. It's a huge topic. I used to think it was probably Australia's biggest sort of existential question, sort of existential question of identity. We're not going to solve it today, unfortunately, but I Did want to get into some, some other topics because, you know, there are some other big, big cases that have made the. Recently, another case he'd written about was the I'm going to Butcher his name Bao Phu Kao case, who was a man who secretly filmed over a hundred women in public toilets. I believe this was in Victoria. I might be wrong. He walked away with no conviction recorded. Could, could you tell our, our listeners a bit about that case and your thoughts on it?
- [30:47]
B
Yeah, so a couple months ago, I wrote a piece for, for Quillette about this, this case that had attracted a lot of attention here in Melbourne, which is, yeah, Bao Phu Cow, an international student who had. He was caught in a shop, in a shopping center taking photos under the stall in a women's bathroom. And his phone was found to have hundreds of different, potentially hundreds of different women photos of them. And this wasn't his, his first, his first guilty finding on this. So he'd previously been found guilty of similar offences and no conviction was recorded. And he's allowed to stay in the country. He has a community correction order, so some different conditions he has to abide by, according to public reporting. You know, the court was satisfied that he was abiding by the conditions and so he was basically free to continue living as he had done. And you know, what, what upset everyone about this was there were a couple of elements of it was the repeat offending of it and the fact that his visa status, so the fact that he wasn't, you know, that there was no sort of mechanism to automatically deport him. I mean, I think the piece that, the piece that I wrote for Colette focused on, you know, defending, defending criminal law and sentencing as a vindication of society itself. So this case. So what distinguishes the criminal law from, say, the civil law is that it deals with wrongs that have a public element where society itself and its standards have come to be wronged. So, for example, like, you know, if I flood your. Your land, you know, my, my property floods and it floods your land, then you have a tort against me. But it doesn't really involve anyone else. It's just about me compensating you for the damage I've caused. But the criminal law involves a violation of standards that are in place to keep us all safe. And what I wrote about in that, in that, in that piece was just a failure in our, in our sentencing practices to take seriously the vindication of society as a victim. And I think in that case it was very, very concrete that there were all of these women who don't. Didn't know they were victims. Right. We don't know who they are. He had offended against them. And it was really the place of the state of the crown to vindicate their rights as well. And that this just wasn't properly taken into consideration when balancing the different sentencing principles involved. So, you know, it's not just as simple as making that so one, one principle, proportionality, the punishment should fit the crime, that the extent to which someone is punished should sort of balance against the extent to which they've hurt people. In the, in that calculation you do have to consider. Yeah. The society's standards and clearly this guy as a repeat offender, and this is the other part that you should probably give greater weight to repeat offending. Right. When someone indicates that their behavior is not going to be corrected by the means you've already tried. And that's why we talk about corrections. Right. The idea is that this intervention by the state will put people back on the right path in some sense. And a repeat offender is indicated corrections. Yeah, yeah. And so what's special about repeat offending is that someone's kind of indicated that your previous interventions were insufficient. And that's an important part of sentencing that here in Victoria there's this debate about whether the judiciary is really taking seriously people public concern about our standards and about repeat offending. And the, the other, the other sort of bit of context that's interesting is an earlier piece that I wrote for Colette just showing the way the level of incarceration in Victoria has really declined to possibly a record low. And I had had some involvement in arguing for reducing incarceration across Australia at a time when, about 10 years ago when there was a real concern that the incarceration rate would get out of hand and become unsustainably expensive and possibly sort of reach an American level of incarceration that sees more and more people come through the prison system and be affected by that. So we were motivated by a concern to avoid that outcome. But in Victoria you actually saw, throughout the COVID period, you saw a real, really rapid decline in incarceration across different categories. So not just, we're not just talking about non violent offenders or drug offenders or whatever, but across different categories. So that, that was another important bit of context for Victoria, which is this, this concern that, you know, sentencing perhaps had tilted too far in favor of a kind of, not just, not to say lenient, but a kind of a corrective, rehabilitative approach without properly waiting. In particular, the, the most Important thing about prison, which is that it's called incapacitation, right. It takes people out of circulation that the unique factor, the unique feature of prison as a punishment is that it takes criminals off the street. And so it's about, yeah, it's about properly weighting those, those two things.
- [36:36]
A
So it sounds like you really changed your mind when it comes to incarceration rates. If I understand correctly, about 10 years ago you were arguing that we should reduce incarceration rates and now you're sort of arguing that, well, maybe we're not incarcerating enough.
- [36:56]
B
No, no, I don't think I've changed my mind. Although I would say I have probably become a little bit harsher on property and drug offences. So previously we had, we had discussed those in connection with non violent offending, you know, fraud and white collar crimes. And I probably would say that I'd probably, if I was going to pull apart my earlier work, I would only say that I would draw those out and make that distinction a bit clearer. But overall, the principles of the argument remain the same, which is that punishment should fit the crime, that it's worthwhile for society to consider how expensive prison is, both in its upfront costs and its operational costs, its costs to the rehabilitative potential of people. You know, it's understood that when you basically, unless you're locking someone up for life, you're making two decisions, right? You're making a decision to lock them up and you're making a decision to release them into the community, into the community in a changed state. So we all have an interest in what that change actually is. So the basic principles that we were arguing for back then when I was working on criminal justice reform are still true and still sound. It's just that in Victoria there was a kind of indiscriminate approach taken to reducing incarceration. Incarceration at the same time as we were basically being gaslit about gang crime, you know, there was all this, There was basically a move against the punitive aspect of the criminal justice system. Whereas when I worked on criminal justice reform, that was never the argument we were making. In fact, I used to talk about a lot about alternative punishment to foreground the idea that we still want to deliver some punitive effect here to vindicate, as I say, society's interests. And so I think it's a little bit unfortunate that some of the good ideas that we were talking about then perhaps got mixed up with this different agenda. And I can share that. When I used to work on that, I remember Meeting some other people who were working on criminal justice issues from the left, if you like. And I remember being told about criminal justice reform, basically we don't need the Herald sun was how it was put to me, the Herald sun being the main tabloid newspaper here in Melbourne. And I said, I just remember saying to them, you're absolutely, you're absolutely crazy. If you alienate just normal or conservative leaning people, you're going to get just worse policy outcomes. And it's going to, the backlash is going to be immense, apart from the harm that you might do. But these people were like, you know, they'd been to New York City and places like that and they had developed a real sort of affinity for the sort of what they call decarceration in the United States. And so our more reformist sensibility, I think, at least in Victoria, got maybe washed out a little bit. But that's not to say that the principles of reform are false because a properly ordered criminal justice system remains an extremely important part of the state.
- [40:07]
A
Are there any countries or cities or jurisdictions that you look up to that you think, wow, they're doing it really, really well and Australia could learn from them?
- [40:20]
B
That's a good question. I mean, in the United States there were conservative states like Texas and Georgia that we wrote about back then. And actually I went, I went and visited some of the people who were part of the conservative criminal justice reform movement in the United States where they did implement this, this kind of idea of punishment reform, alternative punishments, you know, to try and reduce.
- [40:41]
A
What can those punishments look like, for example?
- [40:43]
B
Well, so the main alternatives to prison are versions of community corrections. And so that's, you know, working in the, you know, working in the community, that's ankle bracelets and home detention, restitution, fines. So the idea was that, you know, by increasing the use of some things like, like home detain, like home detention or you know, GPS tracking in conjunction with restitution and bolstering sort of community corrections, you know, the work component of it that you could deliver for non violent, for nonviolent offenders who, who have some, you know, who can be trusted to be safe in the community, you can still deliver some, some punishment, but in a way that doesn't come with all of the very, the costs of, of prisons. The interesting thing about the politics of that though, just to say that there's two things. One is that the situation in the United States was a little bit different, that the rate of incarceration and the costs associated with it were really high and they'd had then had some. Some serious problems. So they were coming from a different place. Other, you know, the. The other point about it, the politics of it is that, you know, and I was told this pretty bluntly when I worked on this, was that no one cares about the costs of prison. They think that that's something that government.
- [42:11]
A
It's worth investing.
- [42:12]
B
You know, it's just worth. It's just worth the money. And I think what I kind of learned working on that was because I had started, I was working at the Institute of Public affairs and we were doing work on criminal justice reform and we had taken this view that we'd start with the sort of dollars and cents argument. But as I said, just bluntly told that, well, maybe no one cares about the money. So the more important thing, the more important framing is actually community safety. What is the mix of punishments across the board that actually reduces offending? And so, you know, I've always thought that if you want to be tough on crime, you should take the steps required to actually reduce crime. And if that involves prison, then that's important. But if it involves other punishments as well, then, you know, that's. That's important too. And that's where the space for reform really was.
- [43:05]
A
And I believe in your Melbourne Crime Wave piece, which I highly recommend everyone read, and I made it into a video as well, which was very popular on YouTube. You talk a little bit about the is it broken windows policy and how in Victoria, seemingly, you know, less serious crimes, nonviolent crimes, but crimes on the left less like, you know, theft or, you know, car theft, these, these types of crimes, because they were not being prosecuted as much as before people, it leads to more serious crimes. Is that a correct sort of explanation of it?
- [43:46]
B
Yeah, well, the idea of broken windows is that by raising the cost early on in people's sort of offending or raising the cost of these minor offences, and by targeting police to areas that are, you know, hotspots of this kind of offending that you will, you know, increase or improve standards across the board. Right. If someone thinks I'm not going to get away with spray painting a wall, they might think twice about committing more serious crimes. You know, criminal offending tends to be promiscuous. Right. It's in the. We're all sort of familiar from movies of like, we watch movies about, like, master criminals. You know, you watch like Heat and, you know, Robert De Niro is a master thief. But in fact, a lot of criminals, people who are willing to commit one sort of crime, are Usually willing to commit other crimes as well. So if you're cracking down on these smaller and easier to police crimes than it has an effect across the board. And I think, you know, in Melbourne, the point is that there's really been serious dereliction from the government in policing public order offences. If you come, well, you tell me you're coming to Melbourne soon, what you'll see is that the entire place has been scribbled upon. There's just graffiti everywhere. And so, yeah, the idea there and then, I guess the unifying theme across the pieces that I've written for Quillet is the idea of public order and these symptoms of disorder that are manifest in our society. And you know, I say that that's where a lot of my research interest is these days, is in what does order consist in and why are we seeing different elements of disorder manifest in our society? Crime. And crime is just the most obvious example of disordered behavior. And yeah, it makes you wonder about sort of the larger policy changes and intention of government that, you know, that doesn't seem to mind visible signs of disorder like graffiti or repeat offending.
- [45:59]
A
Yeah, yeah. It's so interesting, isn't it, the psychology behind this behavior. Like, for example, I've always noticed working in co working spaces and I've worked in a few, you know, shared sort of office spaces that there's always a sign, right, like don't leave your dirty cups in the, in the sink. And a lot of the time people respect, you know, that rule. But over the course of the day, if just one person leaves one dirty cup seems to, you know, someone starts the trend, someone breaks that rule and before you know it. I don't know if it's a personality thing, but I'm quite a rule follower in general. Even I think, like I am in a rush to leave the office, I could just leave it like other people have just left their cups there. You know, I really think about it, it's fascinating. And even every time I go to Melbourne, I'm reminded of a friend who lives there and told me once, you don't need to use your Myki. Your Myki card when you tap onto the tram. No one, no one uses the. No one taps on. So once she told me that, I sort of thought, oh, well, I guess I don't want to be the one person, the one idiot who's, who's actually paying like, you know, and they're a very. I've never really seen any inspectors, so it's interesting.
- [47:23]
B
Yeah, well, that's a real Problem that's a real problem on the bus in Melbourne in particular, that no one pays for the bus. But it is. Yeah, I think. I think that's right. Is that we're perhaps not because. Because we fashion. We. We style ourselves as. As rationalists these days, and we tend to think that we have reasons for our behaviors and our institutions are grounded in some sort of unimpeachable set of reasons. Or if not a set of reasons, then at least in a democratic process that produces reasons by consensus that we overlook exactly how much of our society operates on habit. And in. In the law, I mean, there's. There's a thing called the law habit in the literature, which is the habit of following the law. And it's not grounded. People don't have their reasons for abiding by the law. It's just that in a properly ordered society, our institutions. And by that I don't just mean like the complex rulemaking institutions, but that the institutions that we use to coordinate our behavior can be trusted over the long term to conduce to our good. So we put our. Essentially we put a kind of faith in them that if I follow this rule, it'll work out all right. It'll at least, like, passably okay. And that's a habit we don't even think about that day to day. Like, if I keep left on the footpath, I'm not thinking. I'm not even thinking about it. I'm doing it by habit. If challenged, if someone's on the wrong side of the footpath, then. And it occurs to me, I'll be like, I'll be slightly annoyed. But, you know, in inquiring into my annoyance, what I'll find is just that I'm habituated to. To do one thing and this other person doesn't share my habit. And I think. I think a lot of people are probably uncomfortable with how much of society operates in that way because it raises a whole bunch of questions about, you know, who. Who has what habits?
- [49:16]
A
Culture.
- [49:17]
B
Yeah, culture. And in Australia, I mean, I would say this. In Australia, we don't tend to like having those kinds of debates. And that itself is a kind of habit that has served us quite well. I mean, Australians are very moderate and reasonable people, and overall that's been to our good. But in present circumstances where you have. I would say you have governments like here in Victoria that are hostile to those habits, and you have government policy at the Commonwealth level, say with mass immigration and culture change and sort of a disrespect for Our culture and then, you know, to bring it all the way back, the sort of weaponization of serious indigenous issues for culture change purposes. When you bring all that together, our habit of not really inquiring into it is perhaps less useful than it used to be.
- [50:09]
A
Yeah, we're funny people culturally. We just, I would say we really don't like to rock the boat much. We are very polite people to a fault, you know, if, if someone offends us or, I don't know, may. Maybe I'm wrong. This is just my, my interpretation, but I think we're different to other cultures in, in that regard. Americans, I don't know other cultures.
- [50:38]
B
Well, yeah, Americans. Americans tend to be animated by strong beliefs. That's one of the, one of the unifying characteristics of America. Americans, despite, you know, their different heritages and things, is they all tend to be quite. Have quite strong beliefs and they almost don't believe you when you tell them that you don't care about something. I remember explaining to Americans saying, like, no, I'm Australian, when I say I. When I say I don't care, I really mean it. And when I say I do care, it's always caveated by, well, maybe I'm wrong. So it is definitely a specifically Australian mindset. There's a, there's a sort of a streak of, of skepticism and there's a sort of a willingness to accept that a lot of our institutions really are contingent and habitual. And that's why I think, you know, to bring it sort of full circle. A case like the one that we were discussing at the start and this discussion around, well, what, what common sense actually does reside in our criminal law. You know, when I was saying about, you know, if you peel back all of the contingent cultural aspects of it, what's, what's actually the human nature at the heart of all of this? I think in Australia, we're probably being pushed more than we ever have been before to inquire into why our institutions historically have worked. And then if we accept, as I do, that our country has broadly been a good and successful one, why do we feel now that there's this rise in disorder? I mean, I always caveat this by saying, look, this is very much the perspective of a conservatively minded man in, in Melbourne, where it's probably most acute, you know, why, young dad, you've got
- [52:24]
A
a kid as well, that would affect you.
- [52:26]
B
Yeah. So it's kind of been thrust upon us, I think, to inquire a little bit more deeply than we would normally about why our country has worked and then what that means for how we think it should work going forward.
- [52:38]
A
Yeah, yeah. And I think you're not alone in thinking about that. I mean, I've changed a lot over the last few years. I went from, you know, being a member of the Greens Party the day I could join when I was 18, and having a lot of lofty and naive, I would say, opinions about our country and how it works. And I think my opinions changed over time, yes, because I got older and that naturally came with more maturity and more conservatism, but also simply that the world did change and Australia has changed. And I think you can't deny that. It's just a fact. It has literally changed. Everything does change, I suppose.
- [53:30]
B
Yeah. Well, I think that the part of that that's important is that some of the changes we've seen are the direct result of policy. And you're not. You're not being a victim. You're not giving up your individuality. If you ask about policy, if you engage in politics and you say, well, this was changed one way and it didn't result in anything good, so let's change it a different way. So, you know, if you take, say, immigration policy, right, it's just a policy, right? You might have different levels of immigration at different times in your national history based on what the country needs. And you can increase it. You can increase it or you could decrease it, and you're allowed to talk about that. And you're not being a victim if you say, well, I'm worried about how this affects my house housing situation. You're allowed to engage in politics and you're allowed to ask these questions about where these changes came from. And it's not just immigration. It's just a really salient example. But if you look at crime or something, why am I worried on the street now more than I used to be? It's not me being weak or attacking my. Or like giving up my individual or personal responsibility to look after myself and my family. It's asking as a citizen what policy changes here might do better. And as part of that question, I think, and this is really why I am a conservative, is that I think part of answering that question is looking to what worked historically and saying what were the assumptions behind more successful policies and institutions in the past? And. And what does that tell us? It's not going to be. You can't lift the past out of history and then impose it on the present one, you know, directly one to one like that. The world is too complex for that, but you can think about it. And so I guess the point that I'm trying to make is, yes, Australia has changed and we have to respond to that. But part of responding to it is asking about policy. And I really think that there's been a kind of abdication perhaps of policy thinking, certainly on one side of politics in this country where we sort of had adopted this view, perhaps that thinking about policy was somehow a betrayal of our principles. Like, oh, well, don't we want to reduce the size of government? Yeah, we do, but even that is a choice and we ought to inquire into why we want to do that. And yes, some people's issues and problems in society have to be addressed by policy. And so thinking seriously about government, how it works and what we might want from government, if it's not this that we're getting, I think is really important in criminal justice policy and everything else.
- [56:10]
A
I've got one last question. We've been speaking for over an hour now, so I don't want to take up too much more of your time. It's also a topic you haven't yet written about for Colette. Who knows, maybe you will. But I've been seeing a lot in the news about firebombings of nightclubs across Melbourne and I'm wondering, is that connected to the so called tobacco wars? Can you, can you just say a little bit about that?
- [56:39]
B
Yeah, there's been a series of arson attacks and it seems to be gang related violence. And what they're fighting over is control of this black market in tobacco. I mean, that's how it's been reported. I don't have any personal experience with it, but the way it's been reported is that, that what they're fighting about is a huge amount of money in the black market for tobacco and billions of dollars. And that this, I mean to go to that question about policy, right, this is being created by government policy, a government policy of increasing the excise on tobacco products and deliberately making them more expensive for consumers. The idea is to reduce tobacco consumption, but that tobacco use tends to be quite sticky, right? People don't give it up and so they go looking for more affordable means of getting it. And so it's a good, it's a good example of unintended consequences.
- [57:32]
A
I'll just say, I'll just say for our audience because people outside of Australia are always shocked when, when I tell them this. Cigarettes. It's been a while since I've bought, to be fair, but I think that they're around $40 if not more. Is that correct? I don't know.
- [57:51]
B
I actually don't know. I mean, I know how much milk costs because I'd buy that, but I don't, I don't buy cigarettes.
- [57:55]
A
But they're extremely expensive.
- [57:58]
B
Yeah, extremely expensive in world terms.
- [58:01]
A
Yeah. And, and as a result, people have been looking at buying or purchasing cigarettes. Yeah. Black, black market cigarettes. I believe they often come from China. They've definitely got, I've seen them. They, they're definitely a different packet. They don't have our plain packaging. They've got branding on them. Yeah. In my experience, they taste absolutely disgusting. Not that I, I'm a big smoker, but, you know, every now and again. So.
- [58:30]
B
Yeah.
- [58:31]
A
Yeah. So I guess there, there are gangs who are controlling the, the importation and the sales of these cigarettes. Is that correct?
- [58:42]
B
Yeah, and it's, I mean, it's essentially created a market for them that's, you know, analogous to the drug, illicit drug market. But of course it's really lucrative because smoking is a mainstream habit still. Something like 20% of people smoke regularly or something like that. So it's millions of people. I think what's really interesting about that is that we tend to have, when we think about policy questions, we tend to have of a sort of a technocratic mindset of like, well, if we just adjust the, the excise and, and things like that, the sticker price, like a little bit, then a little, little reduction, you know, which we're always trying to sort of, you know, spin or, you know, dial little knobs and, and get the right sort of trade off. And basically government's got that wrong and it's created this opportunity for criminals. And so it raises this question about, well, if the government is really hostile to smoking and really serious about it, why doesn't it just ban it? Right. Like that'd be a much simpler policy. And then everyone would, then you'd know who all the criminals were. I'd be all the people who had cigarettes. And of course they don't want to do that because they get revenue from it. So the regulation of the market created the technocratic mindset of fiddling with it and then the fiddling created this negative outcome. Of course, alternatively, it could reduce its reliance on taxation of tobacco and related products and then it wouldn't matter so much. You box out the criminals and you just take your hand off the wheel and say, well, if you smoke, it's up to you. So there's different things, but like this basically this policy is coming. The government's tied itself in knots by trying to be, in a way, too nuanced.
- [60:28]
A
Okay, well, I think we should call it a day. Thank you so much for joining me, Andrew. And if people want to check out your writing, well, obviously they should head to Quillet, where you've published. Well, we've published, I don't know, four or five. Who knows, more of your pieces.
- [60:48]
B
Three.
- [60:49]
A
Three. Okay. More to come, I hope. Where else can they check out your work? Do you want to plug anything?
- [60:55]
B
Yeah, I've just. I've just signed a contract to go back to the. The ipa, the Institute of Public affairs, where I'll be working on Australians legal rights. So related, not strictly criminal justice, but related issues around freedom of speech, misinformation, disinformation, things like that. So, yeah, follow along with the ipa. The IPA substack is called Looking Forward, so there'll be also some opportunities for me to write there. So, yeah, check out the work that we're going to be doing at the IPA on defending Australians legal rights.
- [61:29]
A
Very good. Exciting, exciting times. Okay, Andrew, we'll catch you on the flip side. Thanks for joining me. Me?
- [61:35]
B
Yeah. Great. Thanks for having me.
- [61:39]
A
Thank you. Sa.