JOHN BARRY MEMORIAL LECTURE - Norden Directions



2010 JOHN BARRY MEMORIAL LECTURE

Ned Kelly, John Barry

and the role of activism in criminal justice reform

Peter Norden, AO

Vice Chancellor’s Fellow

Melbourne Law School

University of Melbourne

Australia

Abstract

This public lecture presented on the 130th Anniversary of the execution of Ned Kelly each year commemorates the contribution made to the field of criminology by the late Mr Justice Barry, of the Supreme Court of Victoria.

Using the heuristic method of social research, it examines the place of social activism in the field of criminal justice reform. The paper was presented on the eve of a Victorian State election, where debate about law and order issues predominated, as has occurred in many States and Territories around Australia in recent years. The author calls for a substantial review of the operation and effectiveness of the Australian criminal justice system.

(The final, definitive version of this paper has been published in The Australian and New Zealand Journal of Criminology, Vol 44, No 1, April 2011 by SAGE Publications Ltd, All rights reserved © )

Presentation:

On this day, 11th November 1880, Ned Kelly was hanged from the gallows of the Old Melbourne Gaol. 5000 stood outside in protest, a sizeable crowd given the population of Melbourne 130 years ago was only 280,000. 32,000 signatures were attached to the Petition of Mercy that was submitted to the Executive Council.

The Herald that afternoon reported on the event in these words (1):

The general sympathy which appeared to be felt for the condemned man was not confined to the lower orders alone, as the crowd which assembled around the gaol gates this morning testified…. Women – many of them young, well-dressed and apparently respectable – were there mixing with the others.

The Telegraph reporter, on the other hand, described the crowd (2) as: “A mob of nondescript idlers, whose morbid and depraved tastes had led them from the pursuit of honest toil. It must be acknowledged that the criminal and most depraved classes in the community predominated.

These two contrasting observations from the Herald and Telegraph reporters at the time are evidence that even 130 years ago there were strong and divergent perspectives in our community about crime, its sources, and how our government should respond.

Kelly’s last request in the letter that he wrote to the Prison Governor in the days before his execution asked: “if you would grant permission for my friends to have my body that they might bury it in consecrated ground”.

Kelly biographer, Ian Jones, reported (3) that: “the headless, mutilated corpse was put in a rough, red gum coffin, covered with quicklime and buried in the gaol yard the following day, without any marking on the wall beside it”

He noted (4) that one newspaper gloated:

The body of the last Victorian bushranger was laid to rot in un-consecrated ground.

Ronald Ryan was the last man hanged in Australia, in 1967. On the 20th anniversary of his execution, I obtained permission from the Pentridge Governor for his three daughters, then adult women, to lay a floral wreath over his unmarked grave. Within a minute of our departure from the grave, as we turned the corner past one of the bluestone walls, the wreath was placed in a rubbish bin, on the orders of the very same Prison Governor.

Forty years after his execution, I persuaded Ryan’s three daughters to seek an exhumation of their father’s remains from the former prison site at Coburg. The gravesite remained neglected and unrecognised, as it still does today. This is despite the public commitment announced the day after the prison was decommissioned in 1997, by the Kennett Government (5), to establish a memorial plaque acknowledging the remains of those (including Ned Kelly) who had been executed and buried on that site.

The Licence of Exhumation was granted by the Bracks’ Government and finally Ryan’s daughters took possession of their father’s remains and he was given a Christian burial.

Over the last forty years of my close association with persons convicted of criminal offences, and in my observation of the criminal sanctions imposed on them by the Australian courts, it has intrigued me how the general community seems to be so divided as to how best to deal with behaviour that breaches the criminal law.

Only thirteen years before Ned Kelly was executed by the State of Victoria, the transportation of English and Irish convicts to Australia ceased. 1867 might seem a long time ago to a younger generation of Australians, but many Australians alive today have shared discourse with an even older generation than themselves about such events. What happened in those post gold rush years are no longer within living memory, but they remain within the shared discourse of members of our community still alive today.

What do I mean by “shared discourse”? It is the stories, passed down from generation to generation, that impact on our thinking and the shaping of public policy today.

Reflecting more deeply on my experiences working within the Australian criminal justice system from an early age, I cannot help but think that our mentality, our mind set, our policy frameworks as a nation are still shaped by this heritage of our penal policy past.

It is interesting to reflect on how key events and experiences in our lives help shape our convictions and our lifelong concerns.

The Legacy of John Barry:

John Barry, in whose memory this annual criminology lecture is held, was a young man when soon after he graduated in Law from the University of Melbourne was articled to work in the law offices of Luke Murphy and Co.

There he earned a pound a week and walked to Murphy’s Queen Street office from his boarding house room at 47 Drummond Street, Carlton.

The work at Luke Murphy’s law offices exposed him for the first time to a prison, the institution whose role and function would preoccupy him intellectually for much of his later life.

“I have spent some time in gaol since I last wrote to you” he teased his mother Nettie in July 1921, having just turned 18. “I am not too much in love with prison life as I saw it, either”, he added (6)

During these years, young Barry also developed his distaste for capital punishment. He observed closely the 1922 trial and subsequent conviction of Colin Campbell Ross for the murder of 12 year old Alma Tirtschke, based purely on circumstantial evidence. Ross went to the gallows, despite the view of one of the High Court Appeal judges, Isaac Isaacs, that there was a danger of a miscarriage of justice in the proceedings. Jack Barry thought it was a “crying shame” (7). Ross was finally pardoned by the Victorian Government 86 years later, in May 2008.

The office of Luke Murphy was also engaged as Defence Counsel in another famous murder trial. The Argus newspaper of 11th March 1924 reported from the Victorian Court of Criminal Appeal in the case of Angus Murray who had been convicted of the murder of bank manager, Thomas Berriman, in Glenferrie. Murray, an associate of Squizzy Taylor and the Melbourne underworld of the time, had been an associate of the gunman, who himself was apprehended several years later.

Young John Barry, then aged 20, prepared the brief for the Defence Barrister, Eugene Gorman. The accused was eventually hanged on 14th April 1924. Barry was deeply affected by his association with Berriman (8). In responding to his parents’ concerns about over-involvement at the time, he wrote:

“You and dad seem to fear me getting a moral squint on things as a result of my forced associations… Our work teaches us introspection – it prevents all self-deception. We view man’s evilness detachedly, calmly, impersonally” (9).

As a result of his involvement in this Appeal Trial, Barry became and remained a vigourous opponent of capital punishment.

In the Australian Dictionary of Biography, Mr Justice Teague explained (Teague, …..) that Barry was shortly after admitted to the Victorian Bar, on 3rd May 1926, and he read with Sir Eugene Gorman, who (Teague reported) claimed to have learned more from Barry, with his “high intelligence and precocious maturity” than Barry, twelve years younger, learned from him.

Whatever the truth of this matter, it is clear that young John Barry, exposed to the harshness of prison life and the scandal of capital punishment, was deeply affected by these experiences. It seems evident that that such experiences played no insignificant role in his ongoing commitment to justice and fair treatment and the defence of human rights.

The invitation to present this John Barry memorial lecture on the 130th anniversary of the execution of Ned Kelly, encouraged me to share something of my own journey and some of the lessons learnt from my own exposure to the Australian criminal justice system from a very young age.

Like John Barry, I was confronted as a young man with the harsh reality and complex challenges which criminal behaviour presents to our society. From an early age, I recognised the apparent, dare I say obvious, failure of our criminal justice systems across the country in responding to crime, the hesitancy of our Australian community in finding alternative crime prevention measures, and the persistence shown by our ongoing overuse of a prison system that is an expensive failure and wasteful of human and financial resources.

The Role of Activism in Criminal Justice Reform:

It is for this reason that I have set the focus of my address this evening on the role of activism in criminal justice reform.

In different ways both Ned Kelly and John Barry were activists in relation to the criminal justice system. Kelly was a rebel and a convicted criminal. Irish Australians saw him as a martyr in the fight against English misrule. His Jerilderie letter spoke clearly of his vision of a republican rebellion. His heritage is a complex one, reflected in the very first journalistic reports of his execution and the divergent descriptions of his supporters quoted in the media reports of the day. His heritage is more complex than that of some colonial hero, but he did act vigorously, violently against what he identified as discriminatory and corrupt police practice.

How would any of us today respond to the repeated sexual assault of female members of our family by members of the Victorian Police force? What steps would you take if you felt that there was an orchestrated plan not to arrest you on outstanding criminal charges, but to ensure that you were not taken alive?

The most reliable historical research that has been completed in recent years on Kelly by the likes of historian Ian Jones (Jones, 1995) has established the credibility of such interpretations. Kelly was not prepared to passively become a victim of such an unjust system but to actively confront it, with dire consequences for himself and the police officers whom he killed.

John Barry on the other hand was a well respected judge of the Supreme Court of Victoria. But he too was an activist. He was a foundation vice-president of the Australian Council for Civil Liberties in 1935 and foundational secretary of the Medico-Legal Society of Victoria, and its President from 1948-1949.

He was appointed a Supreme Court Justice in 1947 and as Mr Justice Teague reported in the Australian Dictionary of Biography, he was seen as the one progressive element on an extremely conservative bench at the time.

His public activism as a member of the Australian Labour Party was less pronounced after his judicial appointment, as one would expect, but his activism continued in other areas, being the foundational chairman of the board of studies in the Department of Criminology at the University of Melbourne from 1951, and of the Victorian Parole Board from 1957.

How would he view the current threat to the operation of the parole system by the imposition of post-sentence detention on those convicted of serious sexual offences: citizens detained indeterminately by the State, after the completion of the sentence imposed by the courts?

In the Australian and British criminal code, one is only to be punished once for a crime for which one has been convicted. The parole system is specifically designed to provide a level of monitoring and supervision and community control over offenders who may pose a risk upon their release. To deny parole because of one’s perceived risk of reoffending and to impose long term detention after the completion of the full sentence is rapidly becoming a widespread practice in various jurisdictions around Australia.

It is my belief that governments that pass such legislation permitting post sentence detention are expressing a clear lack of confidence in the judicial system and the proper role of the parole system of community monitoring and community supervision (10). They are also displaying a less than courageous response to certain popular media outlets that seek to make themselves the shapers of criminal justice policy.

You do need courage to oppose such reactionary elements in our community. As a political representative, you need courage to lead the community in the area of criminal justice reform, especially in the period leading up to a State election, as we are here in Victoria at the present time.

A courageous American, Frederick Douglass, who was advocating against the use of slavery more than 150 years ago, said at the time:

“Those who profess to favour freedom and yet deprecate agitation are men (sic) who want crops without ploughing up the ground; they want rain without thunder and lightening; they want the ocean without the awful roar of its many waters… Power concedes nothing without a demand. It never did and it never will” (11).

Heuristic Research:

I wish to present three actual scenarios from my prior engagement with the Australian criminal justice system that are representative of the many experiences that I have had that convinced me of the need for a systemic change in our nation’s approach to breaches of the criminal law.

Each of these experiences reinforced in my own mind the need to maintain an activist defence of human rights and civil liberties and to contribute to a more productive formulation of criminal justice policy and practice.

During my time as a Vice Chancellor’s Fellow at the University of Melbourne, I have had the opportunity of reflecting more deeply and with some historical critique on key experiences of my involvement within the criminal justice system.

I have undertaken much of this analysis according to what has been identified as “heuristic research”. Moustakas (1990) describes “heuristic research” as involving “self-search, self-dialogue, and self-discovery” (12). He suggests that “the research question and the methodology flow out of inner awareness, meaning and inspiration”.

Heuristic research is “a research process designed for the exploration and interpretation of experience, which uses the self of the researcher” (13).

The heuristic process, Moustakas suggests, involves four distinct stages: engagement, immersion, incubation and illumination.

It is a form of research which fits well with the principles of “discernment” so familiar to me during my years as a Jesuit.

In this heuristic process, I have been “personally involved in working through these key experiences of the past, searching for qualities, conditions and relationships that underlie a fundamental question, issue or concern” (14).

This study, this reflection, this discernment leads one to a greater inner freedom to explore the meaning of such key life experiences and to seek to understand more fully the deeper regions of a human problem or situation, such as I am about to describe. It is something which clearly is a critical part of effective social policy analysis and formulation. It is indeed a fitting opportunity for sharing in this John Barry Memorial lecture.

Following on from this historical and policy analysis, I wish to address the current challenges faced by State and Territory governments around Australia in finding more effective solutions to breaches of the criminal law. In that way I wish to present solutions that need to be adopted if those in government, or those seeking to be in government, wish to honestly address the needs of the community in a way which brings about productive outcomes and helps to shape a more cohesive, a more inclusive, and, in essence, a safer community.

Scenario 1 Age Jurisdiction of the Criminal Courts

Let me present the first of the three scenarios, my involvement in changing the age jurisdiction of the criminal courts in Victoria.

My very first visit to Pentridge Prison occurred in 1976. I had recently graduated with a Social Work degree from the University of Melbourne, and was visiting the young offenders J-Division as a volunteer with the St Vincent de Paul Society. More than 120 young offenders aged 17-21 were housed in four large dormitories, locked up at 4 pm after having completed their evening meal with only one officer on duty to supervise the dormitory accommodation.

It was on that occasion that I met a 17 year old young man who had been raped by several other young men the night before.

I arranged for him to be moved to a single cell in A-Division nearby, where he would have been with older more seasoned offenders, but at least he had the protection of his own cell for 16 hours a day.

But the tragic nature of his experience hit me hard and the following year I was given the opportunity of opening a half way house for young offenders. It was placed in Hawthorn and was initially called “Four Flats”. Later it moved to Collingwood and then to Brunswick. It was renamed the Brosnan Centre in 1985 after the retirement of Father John Brosnan who served Victoria as prison chaplain for 30 years.

Over the following years, I saw many young men and women aged only seventeen remanded or sentenced to adult prison in Victoria and many were mistreated in the prison environment by staff and inmates alike. Many of those remanded were homeless. No one seemed to ask the question: why send youths to an adult prison? It was a question that I asked myself many times over the following twenty years.

It was not enough to attempt to address the harm upon their release. Change was needed to keep adult prisons for adults and to insist that juveniles should be held in juvenile justice centres, as occurred in other States and Territories of Australia.

My early discussions with senior government public servants and Prison Ministers to address this anomaly were not successful. So I began an orchestrated campaign to change the legislation. Having repeatedly consulted senior public servants and State Attorney Generals on the issue, the decision was taken to expose the issue to public attention and scrutiny.

My research indicated that only a handful of 17 year olds were held in adult prisons at any one time, given the Victorian court option to sentence to an adult juvenile justice centre like Malmsbury. But at that time all 17 year olds refused bail were required to be remanded in adult remand. Most young people refused bail, it became apparent to me, were not charged with serious criminal offences, but had no stable accommodation, and were seen as unreliable in attending court when required.

In addition, my investigations uncovered that there were more than 12,000 appearances by 17 year olds in Magistrates Courts throughout Victorian in any one year… young people who deserved the protection of the Children’s Court.

Having been unsuccessful in convincing the Victorian Government of the need for a legislative change, I set about convincing the Victorian community. The daily newspapers were very interested in running stories about the mistreatment of 17 year olds in adult prisons as was the ABC’s Stateline program (15).

Soon after that program, the then Victorian Premier, Steve Bracks, visited the Brosnan Centre in 2004. I presented a strong personal case for a change in the age jurisdiction of the Victorian criminal courts from 17 to 18. I had also encouraged the President of the Law Institute of Victoria to make representations to the Premier about the matter. Bracks then gave instructions to his Attorney General to proceed with the changes to legislation required.

That young boy of 17 whom I met in J-Division in 1976 was traumatised for life because of the failure of Her Majesty’s prison to provide the protection he deserved. His experience, however, led to the campaign to change the law in Victoria, so that no other 17 year old would be exposed to the same environment and so that all 17 year olds attending criminal courts in Victoria could receive the protection of the Children’s Court.

Scenario 2 Police Use of Deadly Force

(insert overhead of book front cover)

The second scenario I wish to present this evening relates to the police use of deadly force.

“Police Shootings in Victoria 1987-1989: you deserve to know the truth”. This was the title of a book written by the families of Mark Militano, Graeme Jensen and Jedd Houghton, with the support of legal staff from the Flemington/Kensington Community Legal Centre. It was published by Fitzroy Legal Service in 1992. In total eleven men had been shot dead by Victorian police officers over the previous two years (16).

Militano, Jensen and Houghton were three of the young men who had been killed by police, the first two in relation to suspected armed robberies that occurred in Melbourne in the mid-1980’s and Houghton as part of the investigation following the tragic killing of two young police constables, Tynan and Eyre, in Walsh Street Prahran on 12 October 1988.

The number of deaths as a result of police shootings continued to rise over the following years. Between January and May 1994, there were seven deaths as a result of the use of firearms by members of the Victorian Police Force.

How could this be explained given that in New South Wales, with a similar population and a generally similar pattern of criminal behaviour, there had been only a fraction of this number of deaths resulting from police shootings over the same period of time?

My explanation at the time was that the deaths followed from some particularly difficult circumstances in Victoria in the preceding years. On 27 March 1986, a bomb was exploded outside the then Police Headquarters in Russell Street. Tragically a young police woman was killed and many others were injured. Many more lives could have been lost. It was only two years later that the lives of the two young constables were tragically taken in the Walsh Street murders.

It is my belief that these two major incidents helped to change the culture within the Victoria Police Force at the time. A real sense of siege was allowed to develop and this culture was allowed to infiltrate the Police training academy and the way in which all police officers were instructed to respond to a threat of violence in the coming years.

The then secretary of the Police Association, Danny Walsh, insisted (17) that his members had a right to defend themselves:

“If a person wants to take up weapons … no one pays any of our members to be killed. Walsh Street changed things in Victoria”.

During the late 1980s and early 1990s, whenever an operational member of the police was confronted with a citizen threatening them with any sort of weapon, be it a gun, a knife, baseball bat or whatever, it was the formal practice to extend a warning to the person to drop the weapon. If the person failed to drop the weapon and continued to present a potential threat to the officer, it was standard practice in Victoria to shoot several times to the central body of the person posing the threat, in order to remove that threat. This training practice had been implemented officially by the Police Training Academy.

This protocol resulted in the large number of persons killed as a result of the police use of “deadly force”. On one occasion, Victoria Police had a tip off that an armed robbery was to take place. Instead of placing a uniformed officer outside the bank, an unmarked van was placed directly outside with Special Operations Group members heavily armed inside. As the offenders, Paul Skews and Stephen Crome, came out of the front door of the bank after the robbery, they were confronted by heavily armed police and were both killed on 16 May 1994.

Jude McCulloch (2001) analysed the tactics that Victoria Police resorted to during this period. She argued that the establishment of specialist counter-terrorist units within State police forces in the mid-1970’s led to an increasingly militarized form of policing. Although set up to counter terrorism, McCulloch found they had been used in a wide and increasing range of traditional police operations.

During the 1990’s, the Armed Robbery Squad often worked in conjunction with the Special Operations Group. In 1999, it was “amalgamated” with the prison police squad and the special response squad. The newly formed Armed Offenders Squad was disbanded by then Commissioner Nixon and Deputy Commissioner Overland in 2006, over ongoing concerns about the activities of some of its members.

Over the years, the general public did not have a lot of sympathy with the interests of persons committing serious crimes like armed robbery. But in the early 1990’s, a growing number of citizens shot dead by Victoria Police were those without a criminal record, but were distinguished by their suffering from serious mental illness.

The critical death that helped to change this deadly policy in Victoria was that of Colleen Richman, who was shot at Hanover Welfare Services in St Kilda on 23 September 1994 (18).

Up until that untimely death, the Victorian Police Minister, Pat McNamara defended the police’s right to use firearms to protect themselves. His position was that (19):

“Under no circumstances should police have to fear for their lives, even though using a firearm is the last resort to stop offenders. In a life-threatening situation, police are trained to aim for the main body mass, which is the torso. It is a fact of life that in a number of instances this will be fatal”.

I conducted the memorial service for Colleen Richman at Sacred Heart Church in Grey Street, St Kilda. Following the service, more than 200 people joined a march down Fitzroy Street, to a protest rally at Catani Gardens, on the St Kilda foreshore.

As I joined the marchers down Fitzroy Street, I received a phone call from the then Police Minister, and Deputy State Premier, Pat McNamara. The Minister informed me that the government had taken the decision that day to retrain the force in the use of firearms. The then Commissioner of Police, Neil Comrie, finally admitted that training and skills were inadequate and that the entire police force would be retrained within six months, through what was to become known as “Project Beacon”.

The then Health Minister, Marie Tehan, said that the Richman shooting would be a watershed in dealing with the mentally ill. A new set of guidelines were produced that required Victorian police to avoid confrontation and to use only minimal force.

It had taken several years and too many deaths, but finally the battle was won and the advocacy work on behalf of Victorian citizens was finally successful. The policies were to be changed. It had finally been established that the number one priority of Victorian Police members should be the protection of human life.

Following Project Beacon, the death toll resulting from police shootings in Victoria dropped dramatically, to less than one a year and remained that way for more than ten years.

But the whole country was shocked when, in early December 2008, a fifteen year old boy was shot dead by four Victorian Police Officers outside Northland Shopping Centre. He was emotionally disturbed and had armed himself with two knives stolen minutes before from a local supermarket. The senior Victoria Police representatives immediately reported at the time that the officers had no other option than to fire ten bullets at this disturbed young man.

Most reasonable Australians knew intuitively that there had to be a better way. The present Chief Commissioner of Victoria Police, Simon Overland, has since directed a serious review of police strategies in relation to such matters. The emphasis must remain on securing the situation and protecting human life. This was the insight of Project Beacon more than 15 years before.

My recent reflections seek to answer the question as to how the Victorian community allowed these deaths to occur. The lack of public scrutiny and community accountability seem to be the explanation.

Scenario 3 High Security Regimes

The final scenario I wish to present focuses on high security, supermax, prison regimes.

For many, many years, H-Division was the section of Pentridge Prison with the harshest discipline. It was the punishment and isolation block for those who had escaped and those who had seriously breached prison regulations.

Each Wednesday morning I would visit this unit and speak with individual prisoners in the small interview room at reception or walk down into the labor yards and mix more informally with two or three men sharing the same exercise yard during the daytime hours.

H-Division was a world within a world, and the staff were the hard men of the prison service. Whenever a new prisoner arrived, he was confronted with what was known as “the reception biff”. Surrounded by several officers, he was stripped naked and then subjected to a series of physical blows until he fell to the ground. During this time, the heavy door of the division was closed to prevent any observation of this serious breach of prison regulations. The division was reserved for any prisoner who breached the prison regulations, but his first experience upon arrival was to be the victim of a serious assault by those whose task it was to uphold the law.

This practice continued right until the Pentridge prison closure in 1997. The reality of the brutalizing effect of this systematic bashing by prison guards was accurately portrayed in the play, Everynight Everynight by Ray Mooney (1985). That play showed how a young offender in the person of Christopher Dale Flannery was the subject of such treatment. Flannery would in later years take revenge in his violent behaviour towards others, which earned him the title: ‘Mr Rentakill’.

Fr Brosnan, my predecessor as Chaplain at Pentridge, used to say that the systematic brutality in H-division had turned bike thieves into murderers. There was a lot of evidence in later years to confirm that point of view. But as Mooney’s play depicted, there was never an independent witness present to observe these proceedings, only the closed group of H-Division officers and individual inmates. Every Wednesday morning I observed the battered faces of those newly ‘welcomed’ into H-Division. The official account was that they had fallen over, or had attempted to assault an officer.

In July 1980, a new maximum security division was opened within the Pentridge grounds, called ‘Jika Jika’. The name derived from the name of three Aboriginal leaders who moved in that district, from the early years of European settlement. Jika Jika maximum security section cost $7 million to construct and was of a modern design, mostly concrete and razor ribbon wire and much electronic gadgetry. As the Minister responsible for prisons, Walter Jona, explained at the time of its opening:

“The opening of the new Jika Jika High Security Unit at Pentridge provides a great step forward in the management, housing and security of high risk, long term prisoners. The unit is so designed that prisoners are securely housed in single cells in either six or twelve man groups. It makes the job of prison officers a lot safer and will facilitate their difficult role in prisoner management”.

The prison made extensive use of electronic surveillance and all doors were remotely controlled using compressed air. No two consecutive doors could be opened at the same time, and movement through the units was carefully monitored from the central control room by radio and video cameras. The unit was awarded the ‘excellence in concrete’ award in 1979 by the Concrete Institute of Australia.

It did not take long for the prisoners and the staff of Jika Jika to recognize the shortcomings of both the regime and the physical environment and to become aware of its impact on human behaviour and the health of those living and working there. Despite the modern design and air reticulation and natural lighting, it was soon recognized as a far more repressive regime than the dark dungeons of H-Division that it was intended to replace. As those who lived there were quick to point out: H-Division was run by physical brutality. Like its equivalent in New South Wales, Katingal, Jika Jika played with people’s minds.

The biggest problem with the operation of Jika Jika was the prison classification committee. Those who were assigned as inmates to Jika Jika were always told by the Classification Committee that if they cooperated, kept the rules and regulations and do what was asked of them, they would eventually be returned to mainstream maximum security prison life, outside of Jika Jika.

There were, of course, some long term prisoners assigned there who were serving long periods of imprisonment. After more than twelve months in Jika Jika, most prisoners would have preferred to be back in the notorious H-Division.

One group of five prisoners had been given the following instructions on more than one occasion: Toe the line for the next twelve months and you will be moved back to the mainstream. The twelve months came with no change in their classification. They felt that they were being buried in Jika Jika, with absolutely no sign that there would ever be a change.

The previous December, as prison chaplain I had written to the Prisons Minister, the late Jim Kennan, asking for one of this group of five, Robert Wright, to be moved from Jika Jika to B-Division, another high security area. Wright had been in Jika Jika for more than six years since soon after it was opened. My concerns were expressed to the responsible Government Minister in these terms:

“I believe it is unjust to hold Wright any longer in Jika. Other prisoners have escaped from that division. Others prisoners have committed equally as serious crimes. No other prisoner has been held in that division as long as Robert Wright has at this time. I have made personal representations to you previously about the brutalizing effect of long-term placement in Jika”.

But I was given no indication when, if ever, Wright would be moved. In October 1987, Wright and four other prisoners barricaded themselves in their six man unit and set fire to newspapers and other materials they had stored over some weeks. The prison officers failed to break their way into the strongly barricaded unit, and the five men died of smoke asphyxiation within less than 30 minutes.

Bree Carlton (2007) undertook a comprehensive and critical analysis of the Jika Jika tragedy. She explained that the book was written “motivated by a desire to resurrect and reconstruct the Jika experience in order to recognize past injustices and circumvent the continuing proliferation of harm and violence producing prison regimes in the present” (20).

Following the fire, for the next 48 hours, television news and current affairs could not get enough of the story. My message was that it was a tragedy that could have been avoided. The government had been warned. The regime that had operated in the Jika Jika section could never have been sustained. The government inaction in relation to such representations was reprehensible.

As a result of the public alarm about the deaths and the saturation media coverage, the Prisons Minister announced within a few days that Jika Jika would be closed and the inmates moved to other sections of Pentridge Prison and other Victorian prisons. In doing so, he himself criticized the regime there, and referred to it as “an electronic zoo”. It was a shame he failed to act earlier.

Jika Jika had been opened by the previous Liberal Government under Premier Hamer, and it was convenient to direct the responsibility to the previous government. But the Cain Government and the responsible Prisons Minister had failed to act in time to prevent this major disaster, resulting in loss of life and huge expense to the Victorian community.

The serious operational problems within the unit had been identified as long before as August 1982, when Dennis Challenger then a senior lecturer and researcher from the Criminology Department of the University of Melbourne undertook an operational review of the facility. One of his conclusions was (21):

“I accept as quite plausible some prisoners’ comments that the increasing tension they feel in Jika Jika was brought about by the physical oppressiveness of the Division. In Jika Jika prisoners have no chance of reducing or removing these irritations, and they remain a continuing source of aggravation”.

The Chief Coroner, Hal Hallenstein, reported on the investigation into the deaths and the fire in Jika Jika two years later in 1989. In his conclusions to that Coronial Inquiry, he stated (22):

“I find that the Office of Corrections, by its employees, servants and agents, has contributed to the cause of death of Wright, Loughnan, Gallagher, McGauley and Morris. The ultimate failure of the Office of Corrections in this case lies in its own hierarchical, ineffectual and moribund administration. The Office of Corrections also failed to have available a planned, swift, practiced, and certain method of breaching a barricaded door in circumstances where the events of barricade and fire had been reasonably foreseeable and warned of. The prisoners had died in circumstances where not one prison officer had effected any realistic activity at all to either breach the Side 1 door, or extinguish the fire, or remove the prisoners from the smoke-logged unit. If one looks at prison administration, by looking at the performance of prison administration with respect to this fire, one finds ineptitude, failure and non-performance in almost every aspect of the events examined. In this case, the prison administration is seen to be in a state of general collapse.

The conduct of the Office of Corrections in this case raises deep and fundamental concern for our community’s free institutions and its democratic style. In this inquest the Office of Corrections has sought to be unaccountable. It is recommended that there be an independent and general public inquiry into the Office of Corrections and its administration of the prison system in Victoria.

This inquiry was undertaken by a retired Supreme Court Judge, Justice Murray, with his report tabled in State Parliament on 7 March 1990. It is my view that the Murray Report failed to substantially deal with the serious issues that the Coroner had raised. The political heat had gone from the issue and the Murray Inquiry in the end was seen as burying the issue, once and for all.

When the Jika Jika high security unit was opened in 1980, the correctional services brochure announced that:

“It has been designed to meet community expectations of the secure detention of dangerous offenders and the provisions of human containment for such persons”.

But events clearly underscore the conclusion that it was an expensive failure. You cannot use terms like “humane containment” and in your policies and procedures fail to recognize the importance of treating people, even high security prisoners, as real people.

Criminological Discourse:

The famous criminologist, Stanley Cohen, more than 20 years ago explained (Cohen, 1985) that “what the social control system does is invariably accompanied by much talk. These “good stories” stand for or signify what the system likes to think it is doing, justify or rationalise what it has already done and indicate what it would like to be doing, if only given the chance and the resources. This talk (Cohen wrote) also has other functions: to maintain and increase the self-confidence, worth and interests of those who work in the system, to protect them from criticism and to suggest that they are doing alright in a difficulty world”.

Cohen suggested that the new words used, like corrections, might bear only the most oblique relationship to what is actually happening in the cells, buildings, corridors, offices and encounters of the social control apparatus”, in other words the prisons and so called correctional programs.

More recently, David Garland, Professor of Law and Sociology at New York University, developed this same theme (Garland, 2001) when he explained that:

“The current rules of political engagement ensure that governments and legislatures are highly attuned to public concerns, particularly to the sentiment that offenders are being insufficiently punished or dangerous individuals inadequately controlled, and there is a great pressure to enact measures that express and relieve these concerns”.

Garland further explained that the chief aims of the criminal justice system are not at all about correction, but “to assuage popular outrage, reassure the public, and restore the credibility of the system, all of which are political rather than penological concerns”.

Examining the experiences that I have outlined in the above three scenarios, one is led to ask serious questions about the real purposes of such ineffective criminological policies and practices that have been described.

Reflecting on my experiences as a criminal justice reformer and public advocate over the last twenty or more years, I cannot help but wonder about the powerful organisational resistance and denial that I often encountered.

The last ten years led me to a further level of action in response to such critical incidents and experiences within the criminal justice system. How to convince the Australian community to bring the same critical analysis to poor performance and outcomes which as a community we bring to the areas of health, education, housing, transport and welfare?

The Present Political Climate

In this concluding section, I wish to make some observations about the present political climate and to present some solutions, or at least some alternative strategies, that could be more effective in preventing crime and in helping to maintain a cohesive Australian society.

Governments around Australia face a critical challenge in seeking to shape a more effective criminal justice policy.

It is particularly relevant this month in the State of Victoria, as we approach a state election.

Since March of this year, it became clear that the State Opposition wished to make ‘law and order’ concerns central to their election strategy. This has involved commitments to substantially increase police numbers and the placement of security guards on trains and railway stations. The Victorian Opposition also promised to completely ban suspended sentences, and in doing so in practice has committed a future government to the construction of a major new prison to deal with the increased prison population. The Brumby Government has responded largely by attempting to match the Opposition’s promises.

Such measures represent an incredible increase in expenditure to law and order and confirmed many of the worst fears of those in the community sector who knew how ineffective such measures would be.

A good example of an alternative approach is presented in the ‘Smart Justice’ campaign, made up of a wide consortium of criminal justice reform organisations, including VCOSS and the Federal of Community Legal Services. The Smart Justice campaign seeks to hold both major Victorian political parties more accountable to the electorate by focusing on a factual analysis of the criminal justice system and the misuse of criminal sanctions and the overuse of imprisonment.

Similar work has been done in recent years in New South Wales by ‘Justice Action’.

More than 30 years experience in monitoring criminal justice policy has told me that there is little to be gained from a bidding war on who could be tougher on law and order, other than pure political advantage. Good social policy can never evolve in this way. The essential goal in this process is to find a way to hold power or, if in Opposition, a way to obtain political power.

Meanwhile the present New South Wales government struggles to meet the costs of a State prison population about to reach the 10,000 mark. At the current rate of increase of the State’s prison population, New South Wales needs to construct a new prison every year. For more than five decades now, New South Wales has had an imprisonment rate approximately double that of Victoria, but their crime rate has not significantly changed and it remains largely comparable to that of Victoria.

A recent Australian Bureau of Statistics report (Zhang & Webster, 2010) indicated that from 1994 to 2007 Australia’s prison population had increased at an annual rate of 3.7%, while the number of prisoners with prior imprisonment increased at 3.2% per year on average. These are rates much higher than the rate of overall population increase, measured at about 1.3% per year on average during the same period. Clearly the construction and operation of the new prisons required to house these increased numbers takes limited financial resources from such critical areas as health, education, housing and transport.

Yet increased prison numbers show no correlation to decreased crime, as retired New South Wales Supreme Court Judge, Hal Sperling, and drug law reform activist, Alex Wodak, recently indicated (23).

My reflections over recent years have led me to consider what it could be that leads political representatives to such desperate measures… measures that by any objective analysis have been shown to have failed in a spectacular fashion over many, many years?

Do we as a nation seriously believe that the increased incarceration of young adult males from the most disadvantaged communities in Australia will result in anything more than a hardened criminal subculture in those neighbourhoods?

The Way Forward

After more than 30 years of being confronted by a system that seems to excel in wasting both human and limited financial resources, I felt a strong need to take a different approach.

It was this determination that led me to join efforts with Professor Tony Vinson, now of the University of Sydney and formerly Commissioner for the New South Wales Department of Corrections from the late 1970’s. We set out to confirm some of our professional observations in a quantitative, measurable form.

Over the last ten years, I project managed the research which Professor Vinson undertook mapping the concentration of disadvantage by postcode for every part of Australia (24). More than twenty measures of disadvantage were used, including court conviction and imprisonment, in addition to the regular measurements used by the Australian Bureau of Statistics SEIFA scale, such as income, education, employment and housing.

Professor Vinson has established a clear pattern of correlation in this quantitative research between high levels of disadvantage and criminal conviction and imprisonment.

His research clearly establishes a clear pattern that can predict eventual high rates of court convictions and even imprisonment for those postcode areas or local government areas that have high levels of early school leaving, lack of further education and training after leaving school, high levels of unemployment and poor levels of mental health.

What the research findings establish is not a new story, but the extent of the measurements that Vinson completed is confronting. How to make the implications more confronting to the Australian community it is hard to know.

Ten years ago I attended a conference conducted by Catholic Charities USA in Chicago. At that conference a paper was presented outlining the strategy being used in the State of Louisiana that used the demographic reading scores of 10 – 12 year olds in different parts of that State to predict how many prison cells needed to be constructed in the coming decade.

Vinson’s research indicates we are doing precisely the same thing here in Australia. We know the strong positive correlations that exist between such variables as low pre-school attendance, early school leaving and lack of further education and skills training and eventual unemployment with the frequency of criminal convictions and eventual imprisonment later in life. Yet we persist with attempts to manage such problems by extending the interventions of the criminal justice system rather than addressing the problem at its source.

The result, Vinson reports, is that the most disadvantaged communities around Australia, both in metropolitan, regional and rural areas are being more and more deeply mined by the instrumentalities of the criminal justice system. We see the impact of this most clearly when we refer to the overrepresentation of our Australian indigenous community within the States’ and Territories’ prison populations. But the problem is not limited to our indigenous brothers and sisters… it is the same pattern for every severely disadvantaged community in Australia.

How to address such entrenched long term disadvantage does not rest with the criminal justice system. It is the criminal justice system that is left to pick up the casualties when our other social systems have failed us.

Instead, what is necessary to produce lasting change are carefully planned, collaborative, long term, multi-disciplinary interventions in the most disadvantaged communities that seek to bring about real participation and empowerment. Within Australia, similar analyses and recommendation have been made for many years (Brown, 1994; Henry & Lane, 2004).

So politicians, especially those who seek the power of government by promising more and more resources to the criminal justice system while knowing that real solutions rest elsewhere, ought to know better. They do know better, but they are prepared to be led by the loud, simplistic, manipulative and most sensationalist of our media commentators, in the hope of obtaining or preserving the right to govern.

California, once the wealthiest State in the United States is threatened with bankruptcy, while spending more on the construction and operation of its prison system than it does on higher education.

Do we really wish to head in the same direction? Are there not any political leaders across our country that have the courage of their convictions to take on the outspoken media commentators who seek themselves to shape criminal justice policy, instead of the elected government?

Conclusion

In concluding these reflections and this call for a more rational, evidence-based policy direction for the future of the Australian criminal justice system today, I believe it is critical that we acknowledge the limitations of our present systems and our need for a substantial change of direction.

Similar calls have been made in recent times by U.S. Senator Jim Webb (Webb, 2009) in a country that has 5% of the world’s population, but 25% of the reported prison population. The Open Society Institute in Washington D.C. (Beane, 2008) also calls for multidisciplinary collaboration in responding to the issues that fuel the cycle of incarceration.

In Australia, courageous political leadership will certainly be required if we are to move forward in the coming decades, rather than reinforce the failures of the past.

Even on the anniversary of his execution, I am not sure that Ned Kelly’s heritage could assist with this challenge, but I am sure that the qualities displayed by John Barry through his lifetime of community service could well assist.

I remain convinced that social change comes from a small number of committed individuals who have the determination and the courage to make things better in our world.

I look to the future generation of lawyers, academics, social activists and community organisers to consider that challenge, one that should never be left in the hands of our political representatives.

Peter Norden, AO

Vice Chancellor’s Fellow

Melbourne Law School

University of Melbourne

11th November 2010.

Endnotes:

1. Quoted in Jones (1995), P. 321.

2. Quoted in Jones (1995), P. 321.

3. Jones (1995), P. 324.

4. Jones (1995), P. 324.

5. Herald Sun Newspaper, “Monument to Killers”, P.1 headline, 2nd May, 1997.

6. Finnane (2007), P. 37.

7. Finnane (2007), P. 37.

8. Finnane (2007), P. 40.

9. Finnane (2007), P. 40.

10. Note the comments of The Hon Justice Murray Kellam, AO, Annual Report 2006/2007, Adult Parole Board of Victoria, where he criticises the regime in which younger and older convicted sex offenders who have completed their sentences are being held in the detention centre at Ararat Prison: “Regrettably, those living at Ararat pursuant to the Act are not being rehabilitated in any way. This creates a situation of real concern for their future and of equal, if not of more importance, for community safety”.

11. Douglas, F. (1881) American Memory, Washington DC: Library of Congress.

12. Moustakas (1990), P. 12.

13. Hiles (2001), P. 2.

14. Moustakas (1990), P. 11.

15. Australian Broadcasting Commission ABC Television, Stateline Program, 7th May, 2004.

16. In the foreword to the publication on police shootings, I wrote the following introduction:

“On 24th May, 1989, I conducted the funeral service for Gary Abdallah at St Brendan’s Church in Flemington. He had been shot at several times by police in his Carlton flat on the 9th April, and died from a bullet wound to the back of his head. It was the eleventh death resulting from police shootings in the previous two years. As the service commenced, I made the following introductory remarks:

“Many questions have been raised around the circumstances of Gary’s death, and it is imperative that these questions be fully answered. It is only when these questions are fully and truthfully answered, that the people of Victorian can be confident that justice has been done in this case. As a result of these shootings, the integrity of the Victoria Police Force is under question, and the only way to resolve this is through a full inquiry. The suspicion that revenge has been allowed to overcome reason, following the tragic Walsh Street killings, must be answered. The central question which this book POLICE SHOOTINGS IN VICTORIA, 1987-1989 addresses is the accountability of the Victoria Police Force to the community which it serves”.

(Two police officers were subsequently charged with murder, but the case did not proceed to trial because of lack of independent evidence).

17. The Age Newspaper, 28th March, 1994.

18. As Stuart Rintoul wrote in the Weekend Australian on October 1st, 1994:

Colleen Richman, who was shot dead by police in Melbourne eight days ago, had four bullets in her body and was still standing. A fifth bullet had hit the hatchet she was carrying. A sixth had been fired as a warning. When she fell, the policeman had knelt to reload.

Police say that before being shot in the gateway of the Hanover Welfare Women’s Services in St Kilda, she shouted “Shoot me! Shoot me!” They say she was going berserk. Richman, aged 41, was a disturbed, black, poor woman with a history of depression and a splintered past that included being taken from her mother’s hospital bed in Adelaide when she was born as part of notorious government policies of assimilating black children into white families. Hers was the eight police shooting in Victoria this year, five of which involved people with a history of mental illness. It was the 22nd police shooting in Victoria since 1988, compared with just four in NSW in the same period.

19. The Age Newspaper, 28th March, 1994.

20. Carlton, B. (2007), P. 8.

21. Challenger (1982), P. 25.

22. Hallenstein, H. (1989), P. 71-72.

23. The Age Newspaper, 17th June, 2010.

24. The findings of this research were reported on in Unequal in Life (Vinson,1999), Community Adversity and Resilience (Vinson, 2004) and Dropping off the Edge (Vinson, 2007).

References:

Beane, C. (2008). Moving Towards a More Integrative Approach to Justice Reform. Washington DC: Open Society Institute.

Brown, D. (1994). Transcending Dichotomies: the Criminal Justice Network and a Dialogue Concerning Prisoners and Victims. Current Issues in Criminal Justice, 6(1)143.

Carlton, B. (2007). Imprisoning Resistance: Life and Death in an Australian Supermax. Sydney Institute of Criminology Series, No 25.

Challenger, D. (1982). Jika Jika: A Review of Victoria’s Maximum Security Prison (a report to the Director General of Community Welfare Services. Criminology Department, University of Melbourne.

Cohen, S. (1985). Visions of Social Control. Cambridge: Polity Press.

Finnane, M. (2007). J.V.Barry: A Life. Sydney: UNSW Press.

Flemington/Kensington Legal Centre (1992) Police Shootings in Victoria 1987-1989. Melbourne: Fitzroy Legal Service.

Garland, D. (2001). Culture of Control: Crime and Social Order in Contemporary Society. University of Chicago Press.

Hallenstein, H. (1989). Record of Investigation into Death and Fire. State Coroner of Victoria Report, Cases 4771-5.

Henry, K. & Lane, M. (2004). Beyond Symptoms: Crime Prevention and Community Development. Australian Journal of Social Issues, 39, 201-213.

Hiles, D. (2001). Heuristic Inquiry and Transpersonal Research. Paper presented to CCPE, London.

Jones, I. (1995). Ned Kelly: A Short Life. Melbourne: Lothian

McCullock, J. (2001). Blue Army: Paramilitary Policing in Australia. Melbourne University Press.

Mooney, R. (1985). Everynight, Everynight. Melbourne: Yackandandah Publications.

Moustakas, C. (1990). Heuristic Research: Design, Methodology and Applications. London: Sage

Teague, B. John Barry. Australian Dictionary of Biography. Canberra: Australian National University.

Vinson, A. (1999). Unequal In Life. Melbourne: Jesuit Social Service.

Vinson, A. (2004). Community Adversity and Resilience. Melbourne: Jesuit Social Service.

Vinson, A. (2007). Dropping Off the Edge. Melbourne: Jesuit Social Service.

Webb. J. (2009). Now is the Time to Reform our Criminal Justice System. Criminal Justice Ethics, 163.

Zhang, J. & Webster, A. (2010). An Analysis of Repeat Imprisonment Trends in Australia. Canberra: ABS 1351.0.55.031

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