History of Criminalisation

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This page considers the history of crime in England and Australia. Main points include:

  • Criminal laws are used to benefit the interests of the 'ruling' class. In 18th century England, laws are mainly concerned with protecting the interests of the landowning middle class. Many of the laws today still reflect the interests of a strong middle class.
  • Crime has always been an issue of social classes. Most prison inmates (thus serious criminals) are young males from disadvantaged backgrounds.
    • Often, activities of the wealthy and respectable are not criminal despite causing much worse harm to society than activities which are criminal.
  • The indigenous have particularly suffered under the criminal law in Australia.
    • At the beginning, they had barely any rights at all and crimes against them went unpunished. This has improved, but with many injustices along the way.
    • The 'Stolen Generation' (where indigenous children were taken from their families in an attempt to eradicate indigenous culture) is a particularly dark chapter of Australian history. Its devastating effects cannot be understated.
    • The concept of 'epistemic violence' - the attempt to destroy a culture.

This article is a topic within the subject Crime & the Criminal Process.

Contents

Required Reading

Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011), pp. 58-73.

Introduction

Historical reflection and consideration of the gradual development of English law helps question the “commonsense” of the present. In addition, the factors and assumptions underlying the processes of criminalisation and decriminalisation can be better identified.

18th Century England

[1] English Parliament was dominated by men of property, who operated so as to protect their own interests.

  • At the time, there was no paid police force or standing army.
  • There was no DPP at this time, and with victims required to hire their own prosecutors, poor victims received little justice from the courts.
  • Penitentiary style imprisonment only came to the fore in the 19th century, and as such execution, transportation and corporeal punishment were predominant.

As a result, criminal law was heavily punitive, with over 200 offences carrying the death sentence as opposed to today, where there is none.

  • As a result of a parliament dominated by men of property, the Black Act and the Enclosure Acts were created.
    • Black Act – many actions which were essential to the lifestyle of poorer people became offensive and punishable by capital punishment (eg hunting).
    • Enclosure Act – converted common land to private property (ie, in conjunction with the Black Act, it became a capital offence to hunt rabbits on common land)
  • The legislation provoked bitter resistance, especially among the common people.
  • This legislation increased the number of capital offences to over 200, and was designed to protect the gentry’s property rights.

These issues are discussed by D Hay in 'Property, Authority and the Criminal Law' (click link for further detail):[2]

  • Property law was used as a tool to protect the 'ruling-class' property owner’s interest and to oppress non-property owners.
    • This reinforced the mindset that Criminal law protects the interest of those that create the law through oppression and disposition.
  • The criminal law succeeded in keeping order, and maintaining the hegemony of the ruling class, without a revolution during this time.
  • The prerogative of mercy, whereby the free use of royal pardon and the like served to maintain confidence in administration of justice.

Social Class and Criminalisation

[3] In terms of class and criminalisation, a major assumption is that people who commit crimes can be identified as a discrete group with some form of predisposition to crime. In Australia, we can note that the vast majority of inmates are:

  • Male
  • Young (<25)
  • From disadvantaged backgrounds

In the past, the existence of a 'criminal class' was believed. However, with Australia being one of the most law-abiding societies in the world despite its convict heritage, the theory of genetic criminal inheritance has been effectively exploded.[4] Today, social classes strongly influence decisions about which activities will be criminalised.

  • Many activities of the most powerful (and 'respectable') groups in society cause greater harm than those of working class and less powerful groups, such actions are not defined as criminal, or is not prosecuted against.
  • In contrast, a more smaller issue such as retention of excess payments by welfare recipients is often associated with criminal stereotypes.

However, while noting the influence of class factors on criminalisation and the criminal process, it should be recognised that the criminal law cannot be depicted as simply an instrument of the dominant class. Several aspects of the law appear to favour victims and classes that are typically marginalised, as reflected in the benefits received by women from AVOs.

The Rule of Law, Colonialism and the Indigenous Peoples

[5] The criminal law played a role in colonisation and dispossession in Australia, with:

  • Initial virtual suspension of the laws of murder and rape where the victims were Aboriginal,
  • Development of special criminal offences applicable only to Aborigines.

There was thus a form of de facto de-criminalisation based on race, with whites only punished for murder very occasionally. This occurred despite the rule of law concepts that were ostensibly in operation, due to the fact that Aborigines were viewed as sub-human.

  • Not until Mabo v Queensland (No 2) did the High Court overturn the terra nullius doctrine (ie, recognised the indigenous inhabitants' prior claim to the land).
  • This was in recognition that the common law should no longer be frozen in an age of racial discrimination.
  • 'The fiction by which the rights and interests of indigenous inhabitants in land were treated as non-existent was justified by a policy which has no place in the contemporary law of this country'.[6]

These issues were discussed by H Reynolds:[7]

  • Settlers developed a collection of euphemisms to facilitate discussion of frontier brutality.
  • In their relations with the Aborigines they were released from the normal moral restraints and felt they could do as they pleased without any worry about the law or public opinion.
  • Reynolds describes racist ideologies applied to Aborigines:
    • First there was the idea that Aborigines were sub-human... Europeans topped the chain while Aborigines were the 'missing link' between humans and animals.
    • Darwin’s theory of evolution added a new dimension to all of this - the notion of the survival of the fittest meant that the Aborigines were doomed anyway, a dying race. White murderers were simply part of the inexorable process of nature.
  • There is also abundant evidence of criminalisation of a wide range of Aboriginal behaviours and customs.

Colonial Legacies

[8] Over the years, the indigenous population have been greatly victimised by the criminal justice system in Australia. This is considered by CD Rowley in Outcasts in White Australia:[9]

  • At the time of the colonies (before the federation), no Aboriginal could sit on a jury; the range of offences in his case was wider, the penalties heavier; and he was likely to be tried by a person interested in his case (ie, not impartial).
  • Despite the fact that some legislation did exist back then which discriminated against Aboriginals (ie, prohibition against buying liquor), there was little legal discrimination against Aboriginals.
  • In other words, most of the annihilation and discrimination of the aboriginals (which was in full swing) was done without specific legislative authority, but rather by effecting regulations or exclusions which restricted and discriminated against aboriginals. Sometimes these exclusions were done without any legal justification (ie, police made them sit at the worst part of the cinema).
  • These common practices of the authorities can already explain the Aboriginal suspicion or hostility towards the authorities.
  • By the end of the 1930s the effort at protective and restrictive control had reached a climax which was reflected in Aboriginal-specific legislation as well.

The era of Aboriginal specific legislation is most known for the 'stolen generations'. The following extract discusses the suicide of an aboriginal prison-inmate:[10]

  • Aborigines were denied civil rights in the name of protection and forced into a state of dependency in which many are still stuck.
  • The Aboriginals saw the police as the immediate agents of oppression.
  • Malcolm Charles Smith was taken away from his family by the police, cut off from his family, whom he did not see again until he was 19.
  • Instead of being socialised into the family and kin network (which is so important to Aboriginals), he had been ‘socialised’ to survive in institutional communities.
  • The society which had deprived him of the opportunity to grow-up in a family and learn to live in a free community offered him no assistance whatever in adjustment or rehabilitation, but visited his every lapse with penal sentences.
  • He ended up going in and out of jail for various petty crimes for the next few years, and eventually he murdered a man whom he believed was ill-treating his sister.
  • His family was horrified and turned on him, disowning him and even giving evidence against him
  • He went back into prison in a psychotic state, becoming very religious despite understanding very little being illiterate.
  • Eventually, he killed himself by stabbing himself in the eye (taking literally a test in the bible saying "if the eye offend thee, pluck it out").
  • Without a knowledge of [history] we cannot hope to understand Aboriginal/White relations today, for they are deeply molded by that history. We will not understand the ill-suppressed hatred which many Aboriginals feel towards police, and their deep distrust of officialdom generally.

The Stolen Generation: Penal Welfarism

[11] The removal of Malcolm Smith (above) is a part of the 'stolen generation'. According to the HREOC[12], between 1/10 to 1/3 aboriginal children were removed from their families. These removals were criminogenic[13] in various ways:

  1. They cut off aborignals from the protection and influence of their families. Instead, it introduced them to institutional life (which was often brutal).
  2. They caused the loss of personal identity and security, which often led to heavy drinking and other damaging acts and criminalisation.
    • Research shows that aboriginals that have been removed have been much more likely to end up in prison, attempt suicide, to have been sexually assaulted at a point of their life.
  3. The removals themselves can be considered criminal, and as amounting to genocide.

Child removal was mainly about the attempt to distance the aboriginal children from their aboriginal culture and the influence of their parents. R Hogg remakrs:[14]

  • Aboriginal family and community were considered the enemy of the modern and civil social order, therefore their values and culture had to be eliminated.
  • Aboriginals were 'micro-managed' under administrative authority.
  • Various types of administrative measures (which were penalties in the name of welfare) were used to deal with aboriginals instead of the usual criminal processes.
  • Once these measures were removed in the 60s, aboriginals were suddenly confronted by the criminal justice system which they were not familiar with, and was incredibly hostile to them.
  • Child removal especially represents this "nexus between 'welfare' and penal incarceration".

The government has tried to deny or at least understate the effect of the child removals, claiming that only 1/10 of children have been removed and this 'hardly amounts to a generation'.[15] However, the removals had a greater effect - it is simply that most of those affected are no longer alive today and thus are not included in recent reports. In reality, few aboriginal communities have not been seriously impacted by the removal of children.

In Kruger v Commonwealth[16], the High Court determined that the Aboriginal Ordinance Act 1918 (NT) (which provided the statutory authority for the removals) was constitutional and valid. This means it is hard for aboriginals to claim compensation for damage which occurred as a result of such removals.

Harry Blagg's 'Issues in Aboriginal Law and Aboriginal Violence'

[17] A colonial conquest involves 'epistemic violence' , which is the destruction of the symbolic and cultural world of the colonised and the imposition of a new culture or way of life.

  • The settlers did not come in and impose law, they came in and imposed the law of an alien culture.
  • Aboriginals have preserved their culture through practices of law and ceremony, the maintenance of kinship obligations, storytelling and respect for the traditional wisdom of their elders.
  • Aboriginal australia should be seen not as simply a marginalised sector of the Australian community, but as a separate society containing its own distinctive laws.
  • "Aboriginal laws create their own specific spheres of obligations, rights and responsibilities".
  • They are different to other minorities, and should be treated in a special way.

End

This is the end of this topic. Click here to go back to the main subject page for Crime & the Criminal Process.

References

Textbook refers to Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011).

  1. Textbook, pp. 58-61.
  2. D Hay, Property, Authority and the Criminal Law, Hey et al, Albion’s Fatal Tree (1975) in Textbook, pp. 59-61.
  3. Textbook, pp. 62-4.
  4. Robert Hughes, The Fatal Shore (1987).
  5. Textbook, pp. 64-7.
  6. (1992) 107 ALR 1, 28 (Brennan J).
  7. H Reynolds, Frontier (1987) in Textbook, pp. 65-7.
  8. Textbook, pp. 67-70.
  9. CD Rowley, Outcasts in White Australia, (1972) in Textbook, pp. 67-8.
  10. Royal Commission into Aboriginal Deaths in Custody, Report of the Inquiry into the Death of Malcolm Charles Smith, (1989) in Textbook, pp. 68-70.
  11. Textbook, pp. 70-73.
  12. The Australian Human Rights and Equal Opportunities Commission.
  13. Producing or tending to produce crime or criminality. Definition given by: The American Heritage® Dictionary of the English Language, Fourth Edition copyright © 2000 by Houghton Mifflin Company. Updated in 2009. Published by Houghton Mifflin Company. All rights reserved.
  14. R Hogg, 'Punishment and Race in Colonial Settler Society: The Australian Case', (2001) 3 Punishment and Society in Textbook, p. 71.
  15. J Herron, 'A generation was not stolen', SMH, 4 April 2000.
  16. (1997) 146 ALR 126.
  17. H Blagg, 'Issues in Aboriginal Law and Aboriginal Violence', in T Anthony & C Cunneen (eds), The Critical Criminology Companion, (2008) in Textbook, pp. 72-3.
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