Malcolm Turnbull often says that the first duty of a government is to protect its people.  He uses this construction to justify offshore detention of asylum seekers and our ever-widening web of national security laws. His words reflect the understandable primary impulse of a society that feels itself under threat: to identify the physical source of that threat and eliminate it. From stomping on spiders to Guantanamo Bay, it’s immediately, recognisably human.

The current wave of extreme nihilistic violence from lone wolf attackers using endlessly inventive means, right across the world, is generating near-panic. Even without the merry hay being made by the populist haters like George Christensen and the Murdoch tabloids, fear would be stalking the public discourse. Arguing that the actual threat to any of us remains statistically remote isn’t to the point; society’s well being derives from a combination of rationality and emotion. The reality is that public confidence in our own safety is shaky.

[The real threat of terrorism to Australians, by the numbers]

The political response to this anxiety is equally comprehensible; the always reasonable Victorian Premier Daniel Andrews, is saying this: “We do sadly in these dangerous times face some unreasonable risks, people who pose an unreasonable threat.”

Andrews was commenting on the Prime Minister’s re-announced plan to introduce uniform laws across all Australian states and territories that will enable people convicted of and jailed for terrorism offences to be kept in “preventative detention” after they have served their sentences.

For arcane constitutional reasons, it might not be possible for federal Parliament itself to pass such a law. There’s no such doubt in relation to the states, however. They have the power to make a law that will allow a state court to lock a person up after his or her time is up, solely on the basis of the perceived risk that that person will commit more crimes if released.

Various states already have laws on their books that enable sex offenders to be kept in detention after their sentences have been served. The High Court has upheld their validity.

The court has reinforced the right of state governments to make special laws for involuntary detention in an open-ended range of circumstances; in doing so it has tacitly accepted that there is a functional difference between punitive imprisonment and “preventative detention”. The first is punishment; the second is to protect the public (and sometimes the subject person themselves, for example in the case of detention under mental health laws).

This all flows from a principle stated way back in 1988 by Justice (later governor-general) William Deane in a High Court case: “… the protection of the community obviously warrants the introduction of some acceptable statutory system of preventive restraint to deal with the case of a person who has been convicted of violent crime and who, while not legally insane, might represent a grave threat to the safety of other people by reason of mental abnormality if he were to be released as a matter of course at the end of what represents a proper punitive sentence.”

The point is that, in Australia, there is no legal impediment to our governments locking us up when we haven’t committed a crime. The mooted new laws allowing indefinite detention of terrorist offenders are based on a prior conviction. However, that isn’t a necessary pre-condition; at the same time, pre-crime detention laws such as control orders are being constantly expanded and refined.

The new laws, if drafted carefully enough, will be valid, but that doesn’t mean they’re a good idea. This week’s news gives us a good reason to wish that our governments were thinking a little more creatively in their responses to problems of law and order.

[Terrorism: from ‘getting the balance right’ to ‘agile as our opponents’]

As the ABC’s Four Corners revealed in such spectacular fashion on Monday, Australia has been for some years the proud owner of its very own Abu Ghraib. The royal commission immediately announced by the Prime Minister into the depraved goings-on in the Northern Territory is the obvious and necessary response; naively we will hope that it will deliver a better outcome than has resulted from every single previous commission and inquiry into the treatment of indigenous Australians at the hands of our systems of criminal justice.

In our name, Aboriginal children caught up in the juvenile detention system have been tear-gassed, stripped, assaulted, abused, demeaned and degraded — actually, literally subjected to torture. It’s been going on for years, it’s been condoned, hidden and culturally entrenched. Words fail.

Maybe some of the perpetrators will go to prison; maybe the NT government will own up to its responsibility and stop this particular horror. Maybe, even, a finger will be correctly pointed at the NT law, also validated by the High Court, that enables police to make “paperless arrests” and has been used mainly to incarcerate indigenous people without charge.

What won’t occur, but should, is some reflection on the mindless trend that is turning punishment and recidivism into an endlessly recursive and depressingly self-justifying loop.

Human Rights Commissioner Gillian Triggs, discussing the NT situation, related it in part to Australia’s continuing immigration detention of children and said this: “We’ve created a culture of accepting this level of detention without trial and without proper judicial supervision and, I’m sorry to say this, but I think that that sense that the children are out of sight and out of mind in the Northern Territory in these detention centres … I think it’s something that now we need to look deeply into our own psyche as a nation to say, why have we not been prepared to be more humane, to understand that we’re dealing with human beings?”

I agree. Two critical points emerge. First, we’ve known since at least the Stanford Prison Experiment that completely normal people, when handed physical control over others and given licence to do with them what they will, are highly likely to mistreat them in almost unimaginable ways. The Prime Minister is “shocked and appalled” by what we’ve just learned, as we all are; however, he and we shouldn’t be. It was as predictable as Abu Ghraib.

Secondly, we have become almost Pavlovian in our response to every new perceived threat to the peace and good order of our community: we point to the threat and demand it be removed from sight. Our politicians have willingly complied and they often lead the charge. In the rush to punish and protect, cause is discarded as irrelevant.

If we want our genuine disgust over the Northern Territory disgrace to mean anything, then we must take this opportunity to rethink how we are managing the physical threats confronting us.  Nothing is surer than that, if all we ever do with problematic people is lock them up, we’ll end up with a large proportion of the population in detention of some kind and we’ll be spending a lot more time being appalled by the consequences.

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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