Indigenous Australians And The Criminal Justice System

EXECUTIVE SUMMARY

This paper provides an overview of national statistics pertaining to the high level of incarceration of Indigenous Australians and the socioeconomic background to that phenomenon.  The paper goes on to consider how to address this issue by applying the traditional criminal justice principles of equal justice, personal responsibility, and fair punishment.

National averages are useful for identifying broad trends.  However, these trends are not consistent across jurisdictions and communities and the below should be read with that in mind.

The incarceration of Indigenous Australians

Government data shows that when compared to the non-Indigenous, Indigenous Australians are:

• Imprisoned at more than 12 times the rate
• More likely to serve short sentences of imprisonment
• More likely to be imprisoned or charged with assault or another violent offence
• When imprisoned, more likely to have been imprisoned previously

These statistics emerge from within a context of socioeconomic disadvantage, with Indigenous Australians being:

• Less likely to finish school
• Subject to greater instability, abuse, and violence at home
• More likely to exhibit risky drinking habits
• More likely to be unemployed and to have a low income

Additionally, the demographics of the Indigenous population exacerbate some of these trends, with the Indigenous population being:

• Younger on average than the rest of the Australian population
• Much more likely to live in remote and very remote areas, often because of cultural and spiritual commitments and often with first languages other than English.

All of these factors make alternatives to incarceration, like home detention, work orders, and rehabilitation orders more difficult for government to deliver to Indigenous Australians than to the non-Indigenous.

Applying criminal justice first principles to the incarceration of Indigenous Australians

The criminal law in Australia is founded on certain principles that cannot be compromised without calling into question the legitimacy of the system itself.  Among these are:

• The criminal law's authority must be universal.  All Australians should know what is permitted and what is prohibited, and should be able to rely on the law constraining everyone in the same ways.
• The criminal law is inherently normative:  it is connected to a particular idea of justice and the good.  This can be seen in the concept of corrections, which implies that there is a correct way to behave and that society can permissible coerce compliance with that standard.
• Protecting the universality and normativity of the law depends on equal justice, which is defined as being treated formally the same by the sovereign and the institutions of state.

Criminal justice reform must be consistent with these principles.  In practice this means:

• Community safety is the highest priority.  The criminal law serves to vindicate individual rights and society's interest in seeing those rights protected.
• Personal responsibility:  our criminal justice system is predicated on the autonomy of individuals.  While disadvantage shapes individuals' perceptions of the incentive involved in crime, it does not obviate their responsibility for their actions.
• Punishment is integral to criminal justice.  Punishments should be retributive, proportional, and consistent, and take into account all the circumstances of the offending and the harm caused to the victim and society.

Governments should do more to ensure Indigenous Australians can access our system of universal justice through:

• The provision of interpreters where required
• The establishment of residential alternatives to prison in major population centres
• Providing job skills and employment programs to prisoners
• Improving the legal literacy of Indigenous communities

Finally, the limits of the criminal justice system must be acknowledged.  The socioeconomic disparities seen in many Indigenous communities cannot be solved by criminal justice reform.  Over the longer-term, it is the actions of Indigenous Australians within their communities that will make the most positive impact.  Government can help to facilitate this work by making sure that communities are well-policed and safe and by fostering opportunities to participate in the economy through employment.

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INTRODUCTION

There is growing awareness that criminal justice in Australia is not achieving the results in terms of community safety that our citizens rightly expect.

Incarceration in Australia has grown rapidly in the past decade.  From 2007 to 2016, the prison population grew by 43 percent, and this year will exceed 40,000 people.  The adult incarceration rate has risen 23 percent to a record high of 208 per 100,000 adults.  Expenditure on prisons is more than $3.8 billion per year, with Australia spending more per prisoner than all but three other developed countries.  But recidivism rates are high:  58 percent of prisoners have been in prison before.  And many Australians report in international surveys that they don't feel safe in the suburbs at night.

It is impossible to address this issue without examining the incarceration of Indigenous Australians.  More than a third of the growth in the prison population over the past decade was caused by the incarceration of Indigenous offenders.  Indigenous Australians offend at a higher rate, and are imprisoned at a rate that vastly exceeds even the highest rates in the developed world.  These facts take place within a context of severe disadvantage.  Factors known to correlate with crime, like unemployment, low educational attainment, and exposure to crime and abuse are on average higher in Indigenous communities.

In part, this disadvantage is a product of Australia's colonial history, which has been an unchosen revolution for the inhabitants of the land and their descendants.  This is true notwithstanding the tremendous wealth and prosperity modern Australia affords for most of its citizens, and Australia's status as one of the world's most stable and fair liberal democracies.

For this reason, Indigenous policy is the most sensitive topic in Australian politics.  But in our meetings with governments and civil society organisations working in this area, I have been struck by the determination of people across the country to address this issue in a considered manner.

This paper aims to contribute to this debate by providing a perspective that, while mindful of Indigenous disadvantage, does not believe it to be determinative.  This paper contends that the high level of Indigenous offending and incarceration can be addressed in a manner consistent with the traditional bases of the criminal justice system:  community safety, fair punishment, and personal responsibility.  It contends that to do otherwise is to diminish the agency and dignity of Indigenous Australians and perpetuate a racial separatism that is not in the long-term interests of Australians and national solidarity.

This paper is in two parts:

• Part 1 provides a statistical overview of Indigenous incarceration and the socioeconomic factors correlated with it.
• Part 2 provides an application of traditional criminal justice principles to the challenge posed by the high level of Indigenous incarceration.

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PART 1:  AN OVERVIEW OF THE INCARCERATION OF INDIGENOUS AUSTRALIANS

Australia has a rising incarceration rate overall, with the figure for the total population now at its highest since Federation, at 208 per 100,000.  But the rapid increase in the national rate has been driven by the extraordinary level of incarceration among Indigenous Australians.  One third of the growth in the prison population between 2007 and 2016 was caused by the incarceration of Indigenous Australians. ⁽¹⁾

The adult incarceration rate of Indigenous Australians is more than 12 times that of non-Indigenous Australians.  Despite living in one of the world's most developed countries, Indigenous Australians are incarcerated at a rate more than two and half times that of the United States incarceration rate, which is itself a massive outlier among the rich countries of the world. ⁽²⁾

The first part of this section provides a statistical analysis of Indigenous incarceration, including the rates of incarceration, offending, reoffending, and victimisation, along with types of offending and average sentence lengths.  This analysis is not intended to be comprehensive but provides clear evidence of the scale and scope of the issue.

The second part of this section provides a statistical analysis of many social factors known to be correlated with crime.  These factors are more present among Indigenous Australians. ⁽³⁾  The aim is to place Indigenous incarceration statistics within the broader social context within which many (though of course not all) Indigenous Australians live.  This context will inform the discussion in Part 2 of how Australia's traditional criminal justice principles should be applied to Indigenous Australians.

This is a national overview.  While there are many trends that are consistent across Australia's states and territories, the situation in each area is unique and may depart from national trends in some respects both in terms of the data and in what contributes to those results.

Finally, this is an overview of adult prisoners only, unless otherwise noted.

1-1:  INCARCERATION AND OFFENDING

1-1-1:  Prison population and incarceration rate

Key statistics

Table 1:  Indigenous incarceration — key statistics 2007 and 2016

Indigenous prison population and incarceration rate

As a proportion, Indigenous Australians are vastly more represented among the prison population than among the general population.  In 2016, Indigenous Australians made up 2.8 percent of the general population, but 27.3 percent of the prison population. ⁽⁴⁾

The level of Indigenous incarceration has been increasing in both proportion and absolute numbers for the past decade.  Between 2007 and 2016, the Indigenous incarceration rate increased by 31.3 percent and the Indigenous prison population increased by 59.8 percent.

Figure 1:  Indigenous prison population and incarceration rate over time

The Indigenous prison population is not only rising in absolute terms but as a proportion of the population.  The incarceration rate of Indigenous Australians per 100,000 adults has risen from 1787 to 2346 — an increase of 31.3 percent.  This has contributed to the overall Australian adult incarceration rate rising over the same period from 169 to 208.

These numbers make plain that Indigenous Australians are vastly more likely to be incarcerated than the non-Indigenous.  In 2016, Indigenous people were more than 15 times more likely to be in prison than non-Indigenous people.

Figure 2:  Incarceration rate over time, Indigenous and non-Indigenous Australians

As noted in section 1.2 below, Indigenous Australians are on average younger than the non-Indigenous.  When the data is corrected to account for the younger age profile of the Indigenous population, the ratio of Indigenous to non-Indigenous incarceration falls slightly to 12.5.

While the line in Figure 2 for non-Indigenous incarceration looks flat, this is only because of the scale used.  In fact, the non-Indigenous incarceration rate rose 17.9 percent over the period, compared with a 22 percent rise among the Indigenous, indicating that Australia's growing use of incarceration affects the population as a whole.

Indigenous remandees

Across Australia, one of the main drivers of the increase in incarceration has been the rapid growth in the number of people on remand.

In 2016, there were 10,596 Indigenous Australians in prison.  Of these people, 69.6 percent were under sentence and 30.4 percent were on remand awaiting trial or sentencing.  In 2007, the percentage on remand was lower:  23.1 percent.  These splits and the change over the ten-year period were similar for non-Indigenous Australians.

Figure 3:  Growth in the remand population 2007-2016

Sentence lengths and expected time to serve

One potential cause of the prison population increasing is sentences and time served getting longer.  If people are in prison for longer then there is greater overlap between their sentences and those of the newly-sentenced, meaning more people in prison at any one time.

However, for Indigenous Australians, the average sentence length has not changed much over the past decade.  In 2007, the median sentence length for Indigenous prisoners was 2 years.  In 2016, this figure was unchanged.  The median expected time to serve for Indigenous prisoners changed from 1.3 years to 1.2 years.

As Table 1 shows, these figures were all higher for non-Indigenous Australians.  This is because Indigenous Australians are more likely to receive short sentences.

Figure 4:  Proportion of prisoners by expected time to serve and Indigenous status

The difference between the distribution of the two populations on this measure is attributable to different patterns of offending.  This is discussed further in section 1-1-2.

The situation is similar in regards to time spent on remand.  The median time spent on remand for Indigenous prisoners increased slightly between 2007 and 2016, from 2.2 months to 2.4 months.  Median time spent on remand increased across all classes of offending between 2007 and 2016 except for robbery and extortion.

1-1-2 Types of offence and rates of offending

The level of Indigenous incarceration is inseparable from the level of offending and types of crimes committed by Indigenous offenders.

Offender rates and multiple offending

Data shows that Indigenous Australians offend at a higher rate than non-Indigenous.  For states where data is available, the disparity in the number of offenders per 100,000 population aged ten years and over between Indigenous and non-Indigenous is stark and persistent.

Figure 5:  Offender rates selected states and territories by Indigenous status

Indigenous offenders are also more likely to be proceeded against more than once in a year.  In all states and territories for which data is available, the ABS reports a higher mean number of proceedings per Indigenous offender than per non-Indigenous offender. ⁽⁵⁾

Table 2:  Proportion of offenders by number of proceedings and Indigenous status

Most serious offence

Indigenous offenders are significantly more likely than non-Indigenous to have as their most serious offence acts intended to cause injury, unlawful entry with intent, and offences against justice procedure, as shown in Figure 6.

Figure 6:  All prisoners (sentenced and unsentenced) most serious offence

Victimisation

This higher level of offending translates to a higher level of assault victimisation among Indigenous Australians.  Indigenous Australians are also more likely to be victims of sexual assault than the non-Indigenous. ⁽⁶⁾  Despite the higher incidence of robbery offences among Indigenous Australians, the non-Indigenous are more likely to be victims of these crimes.

Table 3:  Victimisation rates — selected crimes by available state

There is no clear nationwide trend over the available time series.  Uniquely in New South Wales there has been a substantial decrease in assault victimisation, both for Indigenous and non-Indigenous, and the ratio between the two measures is lower (2.6) than in South Australia (6.0) and the Northern Territory (5.9).

Prior imprisonment

Indigenous prisoners are more likely to have been imprisoned before than are non-Indigenous prisoners.  And many studies have shown that Indigenous offenders are more likely to be recidivists. ⁽⁷⁾

Figure 7:  Percentage of prisoners who have been imprisoned previously

This high number indicates that prisons are on the whole ineffective in correcting the behaviour of the Indigenous Australians who enter into them.  This failure is one of the reasons often cited for why addressing the high level of Indigenous incarceration will require a change to the sorts of punishments and programs imposed upon Indigenous offenders.  It is worth noting that Australian prisons are not particularly effective in correcting the behaviour of non-Indigenous prisoners either.

1-2:  HEALTH AND WELFARE STATISTICS FOR INDIGENOUS AUSTRALIANS

The high level of imprisonment and offending seen in the previous section takes place within a context of significant social dysfunction within many Indigenous communities.  This section sketches some of the indicators of this dysfunction most relevant to possible criminal justice reforms. ⁽⁸⁾

1-2-1:  Demographics

Age profile

Figure 8:  Proportion of prison population by age group and Indigenous status

Youth is associated with criminal offending.  Figure 8 shows the distribution of Australian prisoners across age ranges by Indigenous status.  It shows that prisoners are more likely to be young, and this is especially true for Indigenous prisoners.  Across Australia, 52 percent of prisoners are under the age of 35.  This rises to 63 percent for Indigenous prisoners.

Because young people are more likely to commit crime, populations with a younger age profile will likely demonstrate more criminality.  Some part of the higher level of offending and incarceration among Indigenous Australians is attributable to the younger average of this cohort.

Figure 9:  Age profile by Indigenous status

Prisoners are overwhelmingly male:  90 percent of Indigenous prisoners, and 93 percent of non-Indigenous prisoners, are male.  It is crucial for public safety that young people, and in particular young men, are channelled into productive activity, reducing the incentive to commit crime.

Remoteness and culture

Indigenous Australians are more likely to live in remote and very remote areas.  As shown in the previous sections, socioeconomic factors relevant to crime are more present in these communities.  The presence of Indigenous Australians in these areas is often a product of cultural and familial attachments.

Indigenous Australians are more evenly spread across the nation's cities, regions, and remote areas.  34.8 percent live in major cities, less than half the rate of non-Indigenous.  And 13.7 percent of Indigenous Australians live in very remote areas, compared to just 0.5 percent of non-Indigenous.  Such is the difference in distribution that in very remote areas, Indigenous Australians, who are 2.8 percent of the total population of the country, are 45 percent of the population in those areas.  The greatest numbers of Indigenous Australians living in remote and very remote areas are in the Northern Territory, Western Australia, Queensland, and South Australia.  In the Northern Territory more than half live in very remote areas.

Figure 10:  Proportion of population by remoteness

Across the country, 72.8 percent of Indigenous Australians report that they recognise their traditional homelands, with 24.9 percent still living on such lands.  In very remote areas, these figures are 90.9 percent and 51.7 percent.  The cultural significance of country, especially for those Indigenous Australians who still live there, is a complicating factor for criminal justice:  incarceration separates Indigenous offenders from the practice of their culture, which some argue is counterproductive for their rehabilitation.  Remoteness also makes the delivery of non-custodial punishments and rehabilitation services more difficult.

The continuation of culture includes the use of languages other than English as primary languages.  Eleven percent of Indigenous Australians speak a language other than English as their main language at home.  This figure is 60 percent in the Northern Territory.

Figure 11:  Cultural ties

1-2-2:  Socioeconomic factors

Educational attainment

Unfortunately, many Indigenous Australians are not finishing school.  The reasons for this are complex, and some relevant statistics are discussed below.  It is apparent that the energies of young Indigenous people are not being directed towards education and the benefits that it brings later in adulthood.  However, some improvement has been made, with today's 20-24 year-old cohort more likely to have finished school than those in the 25-65 cohort, with the Year 12 retention rate rising since the turn of the century.

Figure 12:  Highest year of schooling completed by Indigenous status and age cohort

While at school, Indigenous children are more likely to be developmentally vulnerable than non-Indigenous children, meaning that they score in the lowest 10 percent in one or more domains of testing, and have lower attendance rates.

Home life

Educational achievement is strongly-linked with a child's home life.  Some of the strongest predictors of children's performance at school are out-of-school factors like home environment, socioeconomic status, parental involvement, and family structure. ⁽⁹⁾  These factors are also themselves linked with offending. ⁽¹⁰⁾

Unfortunately, Indigenous families are more likely to underperform on measurements of these factors.

Studies have shown that criminals are more likely to come from single-parent households.  Indigenous families are more likely to be single parent — in 2015, the Australian Institute of Health and Welfare found that 21 percent of Indigenous households are one-parent with dependent children, compared to 6 percent of non-Indigenous households.

Indigenous households are also more likely to contain multiple families.  The 2016 census showed that 5.1 percent of Indigenous households had multiple families, compared to 1.8 percent of non-Indigenous households.  Relatedly, the 2011 census found that 13 percent of Indigenous households were overcrowded, compared to 3 percent of non-Indigenous households. ⁽¹¹⁾

An ABS survey in 2014-15 found that Indigenous people are more likely to be in rental accommodation, and therefore have less stable housing arrangements, and their homes are more likely to be missing important amenities.  A 2014-15 survey of Indigenous Australians found that 67 percent over the age of 15 were living in rented properties, more than double the rate (29 percent) for non-Indigenous.  Twenty-eight percent of Indigenous Australians lived in properties with major structural problems, and 15 percent lived in houses that lacked at least one basic component of a healthy environment, such as a washing facilities, clothes and bedding, waste disposal, and the safe storage and preparation of food.  All of these issues were more present in remote communities than in urban and regional centres. ⁽¹²⁾

The problems in these households are related to, and compounded by, the increased likelihood of alcohol abuse and domestic violence.

According to the 2012-13 Health Survey, Indigenous Australians are more likely than non-Indigenous to abstain altogether from alcohol.  But Indigenous Australians who do drink are more likely to drink in ways that pose a risk to their health in the long-term:

• 37 percent of Indigenous Australians exceeded national binge drinking guidelines, exposing themselves to higher risk of short-term harm (compared to 27 percent of non-Indigenous). ⁽¹³⁾
• While Indigenous and non-Indigenous exceeded the long-term risky drinking guidelines at the same rate, Indigenous Australians were more likely to be in the "high risk" category (6.3 percent to 4.6 percent). ⁽¹⁴⁾

A 2010 study found that harmful alcohol abuse was twice as prevalent among Indigenous Australians as among the non-Indigenous. ⁽¹⁵⁾  A separate AIC study found a clear link between alcohol and violence. ⁽¹⁶⁾

The abuse of alcohol is linked with offending generally.  In a 2012 study by the Australian Institute of Criminology (AIC), 30 percent of detainees reported a link between drinking and the offences they had committed. ⁽¹⁷⁾  A 2017 study by PriceWaterhouseCoopers put this figure at 90 percent for Indigenous offenders. ⁽¹⁸⁾

The higher level of alcohol abuse in Indigenous communities is a factor in the higher level of offending by Indigenous Australians.  More specifically, it is also a factor in the high level of family and domestic violence seen in those communities.

Indigenous males and females are both vastly more likely to be hospitalised because of family violence than non-Indigenous Australians.  A 2006 AIHW survey found that Indigenous males were 22 more likely to be hospitalised for this reason, and Indigenous females 35 times more likely.  A 2016 opinion piece by Curtin University academic Hannah McGlade put the female rate at 37 times that of non-Indigenous Australians, which figure rose to 86 in the Northern Territory and 95 in central Australia. ⁽¹⁹⁾

Indigenous children are four times more likely to be subjected to abuse as non-Indigenous children. ⁽²⁰⁾  Moreover, this is a study by the Australian Crime Commission found that much of the child abuse and domestic violence in Indigenous communities was "undisclosed and under-reported". ⁽²¹⁾

Exposure to family violence and being subject to abuse are linked with children offending both as juveniles and later as adults. ⁽²²⁾

Employment and income

Indigenous Australians have a higher unemployment rate and lower earnings.

In the 2014-15 National Aboriginal and Torres Strait Islander Social Survey, it was reported that the unemployment rate for Indigenous Australians was 20.8 percent, far higher than the 5.8 percent rate for non-Indigenous.  38.9 percent of Indigenous Australians were not in the labour force, compared to 22.9 percent of non-Indigenous. ⁽²³⁾

For Indigenous Australians, unemployment and labour force participation were worse outside of the major cities.  The opposite was true for non-Indigenous Australians, reflecting that they are likely to live in remote and very remote areas because that is where they work.  Indigenous Australians, by contrast, are more likely to have non-economic reasons for living in those areas, as described in Section 1-2-1 above.

Figure 13:  Unemployment by location and Indigenous status

Figure 14:  Labour force participation by location and Indigenous status

Unemployment contributes to lower average earnings for Indigenous Australians.  Only 19.8 percent of Indigenous Australians earn more than $1000 per week, compared to 41 percent of non-Indigenous.  26.8 percent of Indigenous Australians earn less than $400 per week;  the equivalent figure for non-Indigenous is 11 percent. ⁽²⁴⁾

Figure 15:  Weekly income by Indigenous status

Unemployment and low incomes are linked with crime.  This is because they increase the marginal benefit to individuals of crime, and reduce the marginal cost — unemployed and low-income people have more to gain and less to lose by committing crime, so crime can seem a more attractive choice for them than for others.

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PART 2:  APPLYING CRIMINAL JUSTICE FIRST PRINCIPLES TO THE INCARCERATION OF INDIGENOUS AUSTRALIANS

The high levels of incarceration, offending, and socioeconomic disadvantage in Indigenous communities are related.  Disadvantage is not the cause, however, of crime, and therefore it is not exculpatory.  Indigenous Australians, like everyone else, are the ultimate authors of their actions — to believe anything else is to strip them of their dignity.

Instead, the relevance of the deprivation seen in Indigenous communities is that it changes the perceived costs and benefits of crime.  For people who live in poverty, the marginal benefits from crime is higher, and the costs of being caught are lower.  This is compounded by lower education and substance abuse, which make perceiving longer-term costs more challenging, and by cultural differences, which make anticipating the normative context of the law more difficult.

For the criminal justice system, the task is to take account of the often vastly different living circumstances of Indigenous Australians without compromising the fundamental principles of justice.  Australian criminal justice is founded on personal responsibility and fair punishment.  Individuals have rights, and violators of those rights must be punished in a way that fits the harm they have caused.  Any departure, much less exemptions, from this basic creed will undermine the integrity of the system and fail to gain widespread support in the general community.

The purpose of this section is to outline how Australia's traditional criminal justice principles apply to Indigenous crime and punishment, with the aim of providing a framework against which proposed reforms addressing Indigenous incarceration can be assessed.  It makes the case that:

• The criminal law is normative and reflects particular values.  Separatism in the criminal law undermines those values, including the principle of equal justice before the law.  Indigenousonly sentencing courts and programs violate this principle.
• Retribution is inherent in a system based on individual rights and personal responsibility.  The goal of correcting and rehabilitating offenders should be achieved within this context.  Alternative punishments, such as home detention and work orders, should be imposed on low-risk and nonviolent offenders where it is safe to do so.  Government should do more to make these options more available to Indigenous offenders.
• Personal responsibility is not obviated by socioeconomic disadvantage.  The proper way to account for the circumstances of a crime is through the traditional principles of individualised justice, bounded by the need for proportionality and consistency in sentencing.  The circumstances of Indigenous offending should be considered in line with the same rules by which such circumstances are always considered.
• Many of the problems of Indigenous communities, like housing and alcohol abuse, are upstream from the criminal justice system and cannot be addressed through criminal justice reform.  Over the longer-term, government's role is to enable local communities to resolve these issues for themselves.

2-1:  THE UNIVERSALITY OF THE CRIMINAL LAW

The legitimacy of Australia's criminal justice system rests on its universality:  all Australians know, or should know, which behaviours are prohibited, what the punishment is for transgression, and which interests the law protects, and they know, or should know, that everyone is subject to the law in the same way.

It is not coherent to say that the history of the settlement of Australia vitiates the claim to sovereignty of the Australian Crown and its subjects.  Were that the case, the criminal justice system would not have any authority at all.  The legitimacy of Australia's government is assumed by the criminal justice system, and this means that it is legitimate for all Australians equally.  For this reason, the criminal law — and the law generally — should not distinguish between Australians based on their race.

The rule of law seeks to limit arbitrariness by binding the government with inviolable principles and by granting all subjects rights against the state to ensure their interests are protected.  A government that treats subjects inconsistently based on their race is exercising power unjustly.

In the context of the interactions between the criminal law and the Indigenous peoples of Australia, the meaning of this principle in practice is disputed.  Because the Crown exercises authority that is not derived from nor endorsed by the traditional cultures of Indigenous Australians, it is often argued that there is a fundamental inconsistency between the norms encoded in the criminal law, and especially in our system of sentencing, and the values of traditional Indigenous cultures, with the implication that the normal operation of the criminal justice system is inherently discriminatory against Indigenous people and that therefore there must be implemented alternative procedures that are more reflective of the Indigenous people who come into the system.

However, while it is true that the criminal law of modern Australia does establish certain moral claims, the authority of the criminal justice system to take into account competing moral or cultural ideas is limited.

2-1-1:  The criminal law and norms

The law's authority is not merely positive.  It is not derived simply from the assertion of the lawmaker's prerogative, but depends upon its connection to absolute justice.  That is, the law's authority depends upon its being a good faith attempt to realise the universal ends of justice. ⁽²⁵⁾  Even on a strictly positivist interpretation of legal authority, the meaning of the law must be interpreted in light of common standards. ⁽²⁶⁾

However, the law's connection to standards (moral or otherwise) that exist in the political system and culture of which it is part does not mean that it is simply an ideological construct or expression of political power.  That would render the law inherently uncertain, always changing to reflect the interests of the powerful. ⁽²⁷⁾  But the law is much more stable than that.  The law is derived from a broader socio-cultural context but aspires to be as certain and consistent as possible by formalising universal procedural rules.

The knowledge that judges draw upon when interpreting the law is situated within the culture and traditions that gave rise to the political system of which the law is part.  For Australian law, this means that the law is inseparable from the basic tenets of our liberal democracy, such as equality before the law and the right to participate equally in political decision-making.  These tenets in turn rest upon a notion of the individual as someone who holds rights against other individuals and against the state.  Whether these are objective principles or products of a particular tradition is, from the point of view of the law, immaterial.  Australian law is bound by its very nature to impose itself on all its subjects in the same way, always drawing upon the same ideas.

The connection between the criminal law and the culture of its authors and subjects can be seen in the very notion of corrections.  Both retributive and rehabilitative approaches to dealing with criminals have as one of their aims the correction of criminals' behaviour.  This implies that there is a norm of behaviour to which criminals must conform if they are to participate freely in society.  Whatever one takes the philosophical basis of the criminal law to be, there can be no doubt that the criminal law's operation is normative.

For Indigenous Australians who continue to live within their own ancient traditions, this normative content of the law is, at least to some extent, alien.  The question, however, is whether the law can take into account values that are not part of the system within which it resides without compromising its legitimacy.  That is, can Australia's criminal law justly treat Indigenous Australians differently from everyone else, or is doing so in derogation of Australians' equality before the law?

2-1-2:  Equal justice before the law

One of the bedrock principles of liberal democracy is the equality of individuals before the law.  As traditionally understood, this principle means that the procedures by which the law interacts with a subject should be the same regardless of any of the characteristics of that individual.  Notwithstanding the great diversity among individuals within our society, it is the intention of the law to treat them as all the same.  Their equality is a formal stipulation, independent of their identities.

In recent years, the law's emphasis on formal equality has come under sustained critique.  It is asserted that formal equality is not possible absent substantive equality, and that the absence of the latter in society means that formal equality works — whether intentionally or not — to reinforce social hierarchies.  To take just one example of this kind of argument in the Australian context, the Hon John von Doussa, then-President of the Australian Human Rights and Equal Opportunity Commission said the following in 2005:

Assertions of equality usually imply positive connotations, but may disguise hidden vices.  Differences of race, ethnicity, religion, sex and economic and cultural circumstances can mean that 'one law for all' protects the values and interests of a majority of citizens at the expense of minorities.  It does so by privileging unity and formal equality over cultural diversity and substantive equality. ⁽²⁸⁾

Efforts to account for the diversity among individuals and groups in society in the criminal law have led to the creation of specialist Indigenous courts in New South Wales, Victoria, Queensland, and South Australia, specialist facilities for Indigenous Australians in custody, and agreements between states and Indigenous community groups regarding the administration of criminal justice.  The 2017 Australian Law Reform Commission discussion paper Incarceration Rates of Aboriginal and Torres Strait Islander Peoples contains 35 separate references to "culturally appropriate" procedures and services, whether actual or proposed, indicating how dominant this line of argument has become within Australia's legal community.

With so many race-based services already in existence and the Australian criminal justice system still functional, concerns about the effect of formal inequalities in the name of substantive equality on the legitimacy of government in this country might seem unfounded or overblown.  But the utilitarian argument for abandoning formal equality fails:  the rising Indigenous incarceration rate over the past decade has taken place within the context of race-specific policy.  The evaluation of specific programs for Indigenous offenders is often made more difficult by the lack of data, ⁽²⁹⁾ but at the macro level, it is clear that decades of incipient racial separatism have done nothing to arrest the growth of the Indigenous prison population.

And of course, separate legal processes for Australians based on their race is offensive in principle.  The logical end point of the materialist critique of formal equality is separatism:  if the Australian Crown has no right to govern Indigenous Australians, that can only be because either its sovereignty is illegitimate or because Indigenous Australians are not formally Australian.  As noted by von Doussa in the same speech:

The courts have consistently held that Aboriginal people are subject to the laws of the Commonwealth and of the States and Territories in which they respectively reside.  In Walker v State of New South Wales Mason CJ observed that to hold otherwise would offend the basic principle that all people should stand equal before the law. ⁽³⁰⁾

As such, the principle of equality before the law depends on equal subjection to the sovereign of the nation.  The law's force rests on its equal application to its subjects.  Departing from that formal equality undermines the sovereignty of the law.

Criminal justice reform for Indigenous offenders is limited by the need to ensure consistency across the country in the treatment of offenders who have committed the same crimes.  Reform should focus on improving the ability of Indigenous Australians to interact with the law, rather than trying to create a parallel system.

This means improving Indigenous legal literacy and providing the tools that Indigenous people need to access justice, such as interpreters and counsel.  Indigenous Australians who come into contact with the criminal justice system should be able to understand the processes and procedures of criminal justice.  This may require interpreter services and the state should work with civil society to make interpreters available.

Additionally, the principle of judicial discretion and the need for punishment to fit the crime provide some scope for the circumstances of offenders to be taken into account — this is true for Indigenous offenders as for everyone else.  The scope of these principles is discussed in more detail in section 2-2-3 below.

2-2:  CRIMINAL JUSTICE REFORM PRINCIPLES

I have consistently argued for criminal justice reforms that align with the traditional principles of personal responsibility, fair punishment, and fiscal discipline, with an emphasis on lowering crime and improving community safety over the long-term.

There is a considerable body of evidence from the United States that it is possible to safely reduce incarceration and criminal justice spending while reducing offending and reoffending.  My April 2017 paper Criminal justice reform:  Lessons from the United States identifies the following principles for addressing over-incarceration:

• Punishment reform for nonviolent offenders:  increasing the use of non-prison corrections and rehabilitation services for those who are of little risk to the community
• Justice reinvestment:  redirecting money slated for incarceration to other parts of the criminal justice system more likely to reduce crime and recidivism (without abandoning the concept of punishment or rolling criminal justice into the welfare state)
• Reduce recidivism by emphasising employment:  reentry services should include jobs training and removing barriers to employment for ex-prisoners
• Criminal justice programs should be evidence-based, with reliable data collection and performance tracking. ⁽³¹⁾

The application of these principles to the particular situation of Indigenous Australians is complex.  As shown in Part 1, the preponderance of violent crime in many Indigenous communities, and their remoteness and lack of amenity, makes the delivery of non-custodial punishments and rehabilitation programs more challenging.  But that difficulty should not preclude an attempt to create reforms that cohere with traditional principles of criminal justice and with the evidence base for what works to reduce crime and incarceration.

2-2-1:  Community safety

Incapacitation

The foremost concern of the criminal justice system is maintaining and improving community safety.  Reducing incarceration must be done safely.  This means that violent and recidivist criminals should continue to be imprisoned.

Incapacitation is a viable way to reduce crime.  International research shows that imprisoning repeat offenders saves their communities from the many crimes they would have otherwise committed. ⁽³²⁾  If the criminal justice system is to take community safely seriously, prison is a vital tool.

Alternatives to prison

There is widespread agreement that even where the incarceration rate is very high, as with Indigenous Australians, reforms intended to reduce that rate should not increase the crime risk of the community.  The ALRC acknowledged this in its discussion paper on Indigenous incarceration, stating:

It is the intention of the ALRC that the questions and proposals in this Discussion Paper should not be read as extending to those who would place community safety or the safety of individuals at risk.  Further, the ALRC does not suggest that criminal behaviours should be excused or ignored as a means to reduce the incarceration rates of Aboriginal and Torres Strait Islander peoples. ⁽³³⁾

With the high rates of violent crime, especially assault and family violence, in Indigenous communities, and the high percentage of Indigenous prisoners who have been imprisoned before, the safe reduction of the Indigenous prison population will be a long-term process.

Preventative measures, such as better policing and higher legal literacy among Indigenous Australians, will lower the number of people entering into the criminal justice system.  And reducing reoffending by using custodial sentences to prepare Indigenous prisoners for work and life outside of prison will lead to a gradual reduction in the number of prisoners. ⁽³⁴⁾

Many of the Indigenous Australians currently in prison will not be eligible for community-based programs if a history of violence is determinative.  Facing a similar issue, American reformers have attempted to distinguish between criminals we are "mad at" and those we are "afraid of". ⁽³⁵⁾

With appropriate selection controls, there is some potential for allowing violent offenders to participate in residential programs, but not in community-based programs.  Currently, "last chance" programs tailored to Indigenous offenders like the Balund-a residential diversionary program in New South Wales do accept violent offenders who have demonstrated an ability to benefit from the service. ⁽³⁶⁾  However, this does mean that Indigenous offenders from remote communities will need to be relocated to population centres that can sustain residential programs or, like Balund-a, are working farms.

Lastly, while governments should work with civil society and with employers to design and implement community-based punishments and work programs, it should not outsource the administration of those programs.  There is potential for corruption and abuse in the non-standard administration of justice.  Moreover, there is an equal justice concern if the nature of these community-based programs is significantly different from the programs administered elsewhere in the jurisdiction.  Programs for like offenders should be similarly rigorous.

Parole

It has been proposed that parole should be granted automatically unless it can be shown there is good reason to revoke it. ⁽³⁷⁾

However, automatic court-ordered parole would undermine the concept of corrections.  The purpose of incarceration is, apart from the isolation of dangerous and antisocial people, to incentivise prisoners to change their behaviour to better conform to the norms of society.

Research indicating that parolees reoffend less than those who serve their full sentence merely reflects that those who can demonstrate good behaviour while imprisoned are more likely to demonstrate good behaviour once released.  Making parole easier to obtain would likely remove this difference, as the parolee population would contain people who had not changed their behaviour at all.

Providing a mechanism by which automatic parole can be set aside would not resolve this issue.  The onus should be on the prisoner to demonstrate that he or she can behave properly, not on the criminal justice system to show why a convicted criminal should complete his or her punishment.  Reversing this onus would send the wrong message about the purpose of incarceration.

Data-based programs

In discussions with American reformers, I was consistently informed that reliable data and robust evaluation were vital to the successful implementation of non-prison punishments. ⁽³⁸⁾  In the United States, criminal justice reform has typically begun with a top-to-bottom review of programs by the Pew Charitable Trusts.  In a previous paper, I suggested that a similar role could be provided by the states' ombudsmen, and that the Council of Australian Governments should coordinate the consistent recording of crime statistics across the country.

The Closing the Gap Clearinghouse has acknowledged that the evaluation of Indigenous diversion programs is hampered by a lack of data:

There is little by way of in-depth data and objective evaluations to determine the medium and long-term effectiveness of Australian diversionary programs. ⁽³⁹⁾

The safe reduction of Indigenous incarceration depends on the ability of criminal justice policymakers and administrators to identify successful programs.  From a utilitarian point of view, it is not yet known or knowable whether race-specific programs are more effective than universal programs.

This point was also acknowledged in the Council of Australian Governments' report Prison to Work. ⁽⁴⁰⁾

2-2-2:  Personal responsibility

Individual autonomy

The criminal justice system is predicated on the belief that individuals can justly be held to account for actions they take that harm other people or society generally.  Underpinning this belief about justice is a belief in individual autonomy:  that individuals are, in the end, the authors of their own actions and therefore responsible for them.

Against the vision of individual autonomy is the criminological perspective, which sees crime as a natural product of the complex interactions of a number of influences on a person, including exposure to crime, socioeconomic disadvantage, and drug use.

However, whether or not humans have free will, a concept notoriously difficult to define, their every action is made in a context of potential alternative actions.  It is enough for the criminal law that a person's actions indicate disordered thinking, where order is determined by the law (and its cultural and political context).  And by its very existence, the law assumes its own power to influence human action, with part of this influence coming from the threat of corrections. ⁽⁴¹⁾  That is, the criminal law itself is inseparable from personal responsibility.

The economic perspective of crime

The economic perspective of crime is that individuals commit to break the law in the same way that they commit to do anything else:  they weigh the perceived costs and benefits and act accordingly.  Their actions reveal their preferences.

This framework makes it possible to understand how factors like unemployment, low educational attainment, socioeconomic disadvantage, and exposure to crime make crime a more attractive choice for individuals exposed to them.  People exposed to these factors see lower costs for committing crime, as their legitimate earnings now and in the future are lower, their ability to see beyond the immediate payoff of crime to longer-term benefits of obeying the law is diminished, and the likelihood that crime is something they see as normal is higher.  This analysis also helps to explain why criminals are more likely than others to adopt behaviours associated with immediate gratification rather than delayed benefits, like alcohol and drug use, and less likely to adopt behaviours with distant benefits, like participating in education. ⁽⁴²⁾

The economic view implies that raising the immediate costs of law-breaking is the most effective deterrent.  This is best achieved by increasing the chance of detection, rather than by increasing the severity of punishment, which is a less immediate cost. ⁽⁴³⁾  It also means decreasing the immediate benefit of crime by ensuring that people have more to gain by obeying the law, which can be achieved through increasing people's chances of employment.

For Indigenous Australians' interactions with the criminal justice system, the implications of this analysis are that improved relations between communities and the police, so that police are better able to detect and prevent crime, and employment opportunity are crucial factors for reducing Indigenous offending and incarceration.  For those individuals who come into the corrections system, the goal should be to prepare them for productive society.  Programs like the Northern Territory's 'Sentenced to a Job' ⁽⁴⁴⁾ and the New South Wales Government's decision to redirect prison spending towards literacy and numeracy are in line with this goal. ⁽⁴⁵⁾

Mental health

Adverse circumstances change individuals' perception of incentives.  But they do not entirely obviate personal responsibility.  For all mentally-fit individuals, these influences coexist with more positive influences that point the way to better choices.

Indigenous Australians are more likely to be assessed by general practitioners as presenting with mental health problems. ⁽⁴⁶⁾  Indigenous Australians also have higher rates of Foetal Alcohol Spectrum Disorder than the general population, which affects the mental fitness of many Indigenous offenders. ⁽⁴⁷⁾  Where such health concerns are present, culpability may be reduced.  But community safety concerns would remain.  Mentally unsound offenders should continue to be detained in appropriate facilities for treatment.

Intergenerational effects of crime

Crime is known to be strongly intergenerational.  The children of criminals are more likely to commit crime, along with developing other behavioural problems, not completing school, and being unemployed.  These factors are all related. ⁽⁴⁸⁾

Uniquely among Australians, many Indigenous people's lives are shaped to some extent by the ongoing effects of the dispossession and cultural breakdown caused by colonisation.  Apart from the contribution that this has made to the perpetuation of poverty in these communities by denying Indigenous Australians the ability to build wealth over time, the disestablishment of tradition and custom contributes to a sense of what has been called, in United States research, "despair".  The recent reversal in long term reductions in mortality among the white American working class has been attributed to rising self-destructive behaviours such as opiate abuse, alcoholism and suicide, which in turn are linked with worse outcomes in education and employment. ⁽⁴⁹⁾  The health crisis confronting white Americans highlights that the collapse of traditional ways of life contributes to intergenerational disadvantage, regardless of race or colonisation.  The situation of disadvantaged Indigenous Australians is akin to the situation of other disadvantaged individuals.

Intergenerational disadvantage does not obviate the personal responsibility of individual actors.  But it is one more factor shaping the ability of actors to determine the true costs and benefits of their actions.  Moreover, the elements of despair exist in many communities for different reasons.  Because such an effect is impossible to quantify, the principle of equality before the law ought to proscribe the use of history in determining culpability and punishment.  Otherwise the court would be obliged to examine the totality of any given offender's family history.  Clearly, a measure like a blanket sentencing discount for Indigenous Australians is antithetical to the principle of equality. ⁽⁵⁰⁾

So too are existing legislative instruments, such as Victoria's Bail Act 1977, that require consideration of Aboriginality in decision-making.  To the extent that bail conditions should take into consideration cultural and family expectations, it should do so for all who are granted bail.  The decision to grant bail should be based on the willingness and ability of the applicant to abide by bail conditions.  The relevant considerations are whether the applicant has shown a tendency toward violence, the risk of reoffending while on bail, and the risk of bail conditions being breached.  Neither Indigeneity nor disadvantage has specific relevance to these considerations.

2-2-3:  Fair punishment — making the punishment fit the crime

Retribution is integral to justice

Punishment is inherent in the concept of rights.  It does not make sense to assert that individuals have rights if no negative consequences follow for those who violate them.  Just as the criminal justice system's very existence implies a belief in individual autonomy, it implies that punishment is integral to justice.  The relevant question for criminal justice reform is not whether to prefer a retributive or rehabilitative approach, but how to deliver retribution through punishment while achieving rehabilitation and the other ends of justice.

There are two more reasons to emphasise that such reforms retain a retributive character.

The first is that emphasising the therapeutic benefits of non-prison punishments is to neglect the interests of victims.  Seeing justice done is an important part of the healing process for many victims.  The desire of victims to see more severe punishment is not dispositive but it is also far from meaningless.  Moreover, it is important that society see in the criminal justice system greater respect and care for those who have been harmed than for those who committed harmful actions.  One of the reasons for the public prosecution of criminals is that they offend against the norms of society, and in so doing take advantage of everyone who abides by the law.  The persistence of the norm of obedience to law is secured through punishment.  As Gerard V. Bradley has argued:

Civil society punishes in its own name for its own sake because, in truth, civil society is the victim of each and every crime. ⁽⁵¹⁾

Second, and relatedly, studies have shown that our concept of justice is inseparable from retribution.  Even where people state that they are more influenced by utilitarian concepts such as deterrence and rehabilitation, their behaviour in tests indicates that they are motivated more by retribution — that is, by a desire to see bad behaviour punished. ⁽⁵²⁾  This finding accords with game theory experiments that show people are willing to sacrifice some measure of their own personal wellbeing to make sure that bad behaviour is punished.  Individuals effectively price in the value they get from maintaining social norms.  And games where bad behaviour is disciplined early led to better results for participants.  Jonathan Haidt summarises this point as:

Punishing bad behaviour promotes virtue and benefits the group. ⁽⁵³⁾

For criminal justice reform, this clearly implies that attempts to redesign the criminal justice system so that it is tailored to treating crime as a natural social pathology will fail to gain public support.

The desire for retribution is deep-seated.  This is perhaps one reason why successful criminal justice reform in the United States has been led by conservatives. ⁽⁵⁴⁾

There is no reason to believe that criminal justice policy regarding the punishment of Indigenous offenders should be, or could ever be, separated from the inherent value of retribution and its essentiality to Australian criminal justice.  The relevant question is how to design and impose non-prison punishments on suitable offenders while satisfying public demands for retribution and the reinforcement of social norms.

Punishment and disadvantage

Criminal justice should impose punishments that are retributive, consistent with punishments given for similar offences, and proportionate to the harm caused by the offender.  It is in the assessment of this last requirement that judges have scope to consider the particular circumstances of the offence and the characteristics of the offender.  These factors are not relevant to the harm caused to the victim — it does not, for example, matter who stole your television, only that it was stolen — but they are relevant to how severely the offender has transgressed against social norms and thus harmed society generally.  This principle is why crimes have traditionally required mens rea (guilty mind) in the form of intention or recklessness, and it is why certain circumstances may count in mitigation against punishment.

In what ways might disadvantage, and specifically the disadvantage faced by Indigenous Australians, plausibly diminish the seriousness of the transgressive element of a crime?

There is generally no direct causal connection between any criminal act and the socioeconomic characteristics of an offender.  Even in an incentive environment shaped by disadvantage, criminal actions are not usually necessary.  Although we can think of a scenario in which, say, the only choices are stealing a loaf of bread or starving, these do not usually exist in the real world.  Moreover, even in adverse circumstances like those in many Indigenous communities, many people do not commit crime.  For this reason, it cannot plausibly be argued that disadvantage always plays a material role in the offending of disadvantaged people.  Therefore, in punishing disadvantaged offenders, there can be no presumption that their socioeconomic circumstances are or should be considered mitigatory. ⁽⁵⁵⁾

When the High Court considered this question in Bugmy v R, it found that while disadvantage is relevant to individualised justice, Indigineity per se is not.  The court held that such a presumption would actually offend the principle of individualised justice. ⁽⁵⁶⁾  To this it should be added that assuming being Indigenous is a disadvantage sufficient to diminish culpability expresses a denial of the agency, and thus dignity, of disadvantaged individuals, and risks portraying all Indigenous communities as inherently disordered.

Because the factors associated with Indigenous offending are the same as those associated with offending generally, it is inappropriate to draw attention to Indigeneity in and of itself.  The only purpose of doing so would be to separate Indigenous Australians from non-Indigenous to further call into question the authority of the Crown to administer justice to the former group.

It would also offend the principles of fair punishment to take into consideration the high level of Indigenous representation in Australian prisons.  There can be no causal connection between that statistic and the acts of any individual.  It could likewise not be argued that the historically high level of incarceration in Australia should count in mitigation for all Australian offenders.

One of the purposes of punishment is to deter others from committing similar acts.  Deterrence is closely tied to retribution:  both are justified by the concept of society being one of the victims of crime.  But in sentencing, deterrence must be subsidiary to other considerations, like proportionality and consistency.  At a certain point, deterrence goes beyond reinforcing social norms and punishes particular people for the potential acts of others.  Taking into consideration punishments already visited upon others is similar:  it ties the offender's punishment to the actions of others, distorting the proportion between the harm caused and the punishment.

Judicial discretion

The inherently retributive nature of our criminal justice system does not preclude some measure of individualisation of punishment.  But the principles by which individual punishments are tailored must themselves have general application.  Judges have, and should retain, discretion to consider how a specific offenders actions have harmed society, and the proper role of specific punishments in addressing that harm, but this discretion is bounded by the demands of equal justice and proportionality and therefore does not include racial considerations.

It should not be forgotten that mandatory sentencing and other attempts to limit judicial discretion have developed in response to the perception of the public and their representatives that the judiciary is too lenient.  It is possible for a sentence to be disproportionately lenient.

Judges must remember that the purpose of the criminal law is to deliver retribution on behalf of victims and society, and to correct the behaviour of offenders so that they conform to society's norms.  An unfortunate move away from the language of punishment and corrections has created the impression that criminal justice is no longer concerned with reinforcing public standards.  The discretion of judges to individualise sentencing needs to be exercised within the bounds of proportionality and equal justice.

Similarly, it is inconsistent to advocate the abolition of mandatory sentences in the name of judicial discretion and to advocate removing the discretion of judges to impose short sentences.  Judges should retain the discretion to impose short sentences if alternatives are not deemed suitable.

Proportionality guides punishment

One of the maxims of criminal justice is that the punishment should fit the crime.  While the proper proportion between the harm caused by the offender and the severity of the punishment proposed can never be determined with absolute precision, the principle carries obvious intuitive force. ⁽⁵⁷⁾  Other relevant considerations in sentencing are that the sentence should be no more than required by justice, consistency between punishments for like offences, and taking into consideration any mitigating circumstances of the crime in light of the characteristics of the offender.  This latter principle is subordinate to the others:  unlimited discretion to tailor punishment to the offender would render the other considerations moot.

Incarceration is not always the punishment that best fits a crime.  Prison delivers the greatest retributive effect and is the strongest deterrent (among punishments) but is not the best method by which to achieve the other ends of justice, like rehabilitation and, over the long term, community safety.

Implementing punishment reform for low risk offenders can achieve better results in terms of recidivism, while maintaining sufficient retributive, deterrent, and immediate community safety effects.  A combination of home detention, community service, fines, restitution orders, and work orders can deliver a sufficient deprivation of liberty to satisfy the demands of retribution but are more strongly correlated with changes in behaviour.  In the United States, conservative states like Texas and Georgia have diverted offenders from prison to residential and outpatient rehabilitation, among other reforms, and seen crime and costs go down. ⁽⁵⁸⁾

The goal is to fill in the spectrum of coercion between release and incarceration.  Recent reforms like the abolition of suspended sentences in Victoria and New South Wales and the expansion of home detention in South Australia show the potential for innovation in the way punishment is delivered.

Lastly, for those who cannot pay fines, schemes like that in Western Australia allowing offenders to work off their debts are considerably better than incarceration as a solution to that problem.

Tying the discharge of fines to the completion of work and training is a good way to discipline offenders who cannot otherwise pay their fines.  Work and development orders enable courts to impose a proportionate amount of coercion to fine-defaulters.  Rigorous, data-based oversight of programs involved in work and development orders is necessary to make sure that they impose real conditions and maximise results.  Public scepticism about community service in particular needs to be addressed by demonstrating that these programs operate as advertised.

For non-compliant offenders, there should be the possibility of earnings and benefits being garnished.

Punishing breaches of release conditions

One area in which disproportionately severe punishment is often seen is in technical breaches of bail and parole.  In the United States, "swift, certain, and fair" punishments for minor breaches have been introduced in many states. ⁽⁵⁹⁾  Instead of either ignoring minor breaches or imprisoning people because of them, case officers are empowered to impose administrative penalties such as tightening reporting requirements or other conditions of release.

In Australia, the New South Wales Government has recently moved in this direction.  Along with the hiring of new district court judges to speed up the processing of those on remand, measures such as this will help to reduce the growth of the remand population, which will benefit Indigenous Australians without singling them out. ⁽⁶⁰⁾  Similarly, that state's recent reform of penalties for driving with a suspended licence will likely disproportionately benefit the state's Indigenous people. ⁽⁶¹⁾

2-3:  THE LIMITS OF THE CRIMINAL JUSTICE SYSTEM

Part 2 of this report has provided a discussion of some of the key considerations for reformers looking to improve the interactions of the criminal justice system with Indigenous Australians in light of cultural distinctiveness and socioeconomic disadvantage.  Such is the complexity of this situation, however, that the criminal justice system is a limited tool for addressing it.

2-3-1:  Upstream from the criminal justice system

Most of the problems described in Part 1 are upstream of the criminal justice system.  For example, the overcrowding in Indigenous households will not be affected by criminal justice policy.  While Parts 2-1 and 2-2 make an argument for how the criminal justice can ameliorate some of the effects of Indigenous disadvantage on crime and punishment without compromising on the traditional principles of Australian justice or the system's internal coherence, even a perfectly-ordered criminal justice system will not eliminate the circumstances and patterns of behaviour that drive Indigenous disadvantage.  Indeed, more radical measures to reduce Indigenous incarceration will also not address the reasons why crime is committed in the first place.

That the underlying socioeconomic phenomena are beyond criminal justice is recognised by the Council of Australian Governments' Closing the Gap targets, which do not include a criminal justice target and instead focus on improving health and education. ⁽⁶²⁾

Governments continue to fund programs to raise Indigenous living standards.  Around $5.9 billion is spent each year on Indigenous-specific programs.  Total transfers to Indigenous Australians rise to $30 billion per year if Indigenous receipt of benefits from universal programs is included. ⁽⁶³⁾  This is considerably more than is spent on prisons in total in Australia each year, which is around $3.8 billion. ⁽⁶⁴⁾  Only one of the six Closing the Gap targets is currently on track.

2-3-2:  Remoteness, residence, and alcohol

One of the enduring challenges of Indigenous policy is the remoteness of many Indigenous communities.  This remoteness, and the communities' small population size, make delivery of services more difficult and costly.  It also makes the communities more difficult to police and community-based punishments harder to deliver.  Often this means that offenders are not caught and not deterred or they are imprisoned, often for want of better options, in distant population centres.  Realistically, this will continue to be the case.  Traditional Indigenous culture is tied to country, which all but precludes for many people a move to more prosperous economies.  (As shown in 1-2-1, Indigenous people in remote areas are more likely to recognise their traditional kinship and live on traditional country.)

It should go without saying that law-abiding Indigenous Australians in remote areas should not be coerced into moving.  But for those who, by their actions, place themselves into the corrections system, connection to traditional country should not mean that the only option is incarceration.

When Texas redirected money from incarceration to substance abuse treatment, a significant portion of that money went towards residential rehabilitation facilities, halfway houses, and intermediate sanctions facilities for those who make technical breaches of their release conditions. ⁽⁶⁵⁾  Similar facilities could provide for non-prison punishments for some Indigenous offenders.  These types of facilities can only operate in large population centres from which they can draw staff and which will provide inmates with opportunities to carry out work orders and job training.  If separation from home is the price that an offender must pay to avoid prison, then that should be considered fair enough (for Indigenous and non-Indigenous alike).

A system of residential facilities for those serving community-based punishments would also ameliorate another of the main difficulties in managing Indigenous Australians' interactions with the criminal justice system:  unstable housing situations.  The lack of stable housing contributes to low grant rates of bail and parole as well as to the socioeconomic problems associated with dysfunctional families, defective housing, and overcrowded homes.  Housing supply and maintenance is not an issue that the criminal justice system can resolve.  For this reason, though, it is important that the criminal justice system make provision for suitable offenders to be punished in the community through residential programs.

Lastly, the abuse of alcohol is a problem that the criminal justice system can only manage, it cannot solve it.  The reasons that people choose to drink are complex and will need to be addressed by communities and individuals from the bottom-up.  In remote communities, cooperation between private businesses and civil society may be the best way to manage the supply of alcohol.  Accords are a proper exercise of market power, so long as membership is voluntary.  However, Indigenous Australians retain the right to purchase alcohol wherever it is legally sold, just as all Australians do.  Across-the-board prohibition will not work and is not desirable.  Alcohol bans will not address the reasons that people choose to drink.

2-3-3:  Community action

The cycle of abuse, disadvantage, and crime needs to be broken.  This means making sure that children are safe and can attend school, that Indigenous Australians know the protections to which they are entitled by law and how the country's criminal justice system operates and how it can protect their interests, that the police operate effectively and with the trust of Indigenous communities, and that more broadly, Indigenous Australians share in the normative basis of the law and respect its role in defending those norms.  It also means making crime less attractive and easy, through detection and through the provision of a path to productive society via employment.  While criminal justice policy, and government generally, can help to facilitate this vision, ultimately it will be the work of Indigenous civil society to create shared institutions of meaning that engage Indigenous people in self-improvement and morally-fulfilling lives.

This is a sustainable vision of self-determination.  Not separatism or sovereignty, but the opportunity for communities to work for their own benefit.  A renewed spirit of subsidiarity would likely benefit all Australians, but it would certainly enable those Indigenous communities and leaders with the requisite will to build their own futures.

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CONCLUSION

I visited a number of people working on this issue in the Northern Territory in August 2017 and have had discussions with representatives from across the political spectrum.  I have been consistently impressed by the amount of good will that exists in Australian politics in relation to resolving this vital national issue.  This paper is offered in good faith as a contribution to this debate, resting on a firm belief that the vindication of individual rights is to the long-term benefit of all Australians and that the universality of our liberal democratic institutions is an expression of our national solidarity.

As the statistics detailed in this report show, the factors influencing the high rate of Indigenous offending and incarceration are associated with crime for all people.  The unique historical circumstances of Indigenous disadvantage do not change the analysis that it is the shocking extent of those influences in Indigenous communities that make crime a more appealing choice for many people living within them.

Making crime less attractive means giving people more to live for, through education, employment, participation in the community and in spiritual organisations, the creation of stable families, and physical safety.  These are the basics of a good life in a modern society. ⁽⁶⁶⁾

Considerable effort has gone into advocating for the law and the institutions of government to be made more "culturally appropriate" for Indigenous Australians.  But one does not have to believe that such institutions can ever be perfectly rational and culturally-neutral to believe that this is misguided.  The institutions are themselves a part of modern Australian society:  they have emerged over centuries of English-speaking civilisation to protect the interests of individuals so that they can operate in a liberal democracy.  They are appropriate to the modern life of the nation of which Indigenous Australians are part, and their legitimacy depends on their universality.  For Indigenous Australians, who cannot opt out of those institutions any more than other Australians can, this means finding a way to live and perpetuate their cultural ideas within the ordered liberty that our institutions create.

But insisting on the formal equality of Australians does not mean pretending that material inequalities do not exist.  Plainly, there are many Indigenous Australians whose living standards fall far short of what everyone else in this country rightly expects.  There is a role for the criminal justice system to play in making sure that it does not exacerbate these problems through over-punishment or neglecting the need for all citizens to be able to understand the law, to be protected by it, and to participate meaningfully within the system when necessary.

Just as the factors influencing Indigenous offending and incarceration are versions of those present in other disadvantaged communities, so too should the criminal law approach reform with the same principles that have worked elsewhere:

• punishment reform for those criminals who can safely be punished outside of prison
• data-based recidivism programs
• job skills training, and
• residential rehabilitation for addicts.

The paramount concern is to improve community safety by reducing crime.  This cannot be done by abandoning the retributive approach, which is inherent in our criminal justice system founded on the defence of individual rights and personal responsibility.

All of the tools necessary for improving Indigenous outcomes in criminal justice are known and available.  The radical redesign of criminal justice away from individual autonomy towards a deterministic criminological analysis is unnecessary and risks diminishing the agency and standing of the very disadvantaged people it aims to help.

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BIBLIOGRAPHY

Criminal justice reports

Wood, Richard J. The use of prisons in Australia: reform directions, Australia 2016

Wood, Richard J. Australia's criminal justice costs: An international comparison, Australia 2017

Wood, Richard J. Criminal justice reform: Lessons from the United States, Australia 2017

Conversations

In August 2017, I met with the following organisations and people in Darwin to discuss the issue of Indigenous incarceration.  I am grateful for their insights.

Office of the Attorney-General of the Northern Territory

Office of the Leader of the Opposition

Department of Correctional Services

Danila Dilba Health Service

NT News

Former Chief Minister of the Northern Territory Adam Giles

Government statistics and reports

Australian Bureau of Statistics, Census of Population and Housing: Reflecting Australia — Stories from the Census, 2016

Australian Bureau of Statistics, Australian Aboriginal and Torres Strait Islander Health Survey 2012-13

Australian Bureau of Statistics, National Aboriginal and Torres Strait Islander Social Survey, 2014-15

Australian Bureau of Statistics, Prisoners in Australia 2015 and 2016

Australian Bureau of Statistics, Recorded Crime — Offenders 2015-16

Australian Bureau of Statistics, Recorded Crime — Victims 2016

Australian Institute of Health and Welfare, The health and welfare of Australia's Aboriginal and Torres Strait Islander peoples 2015

Australian Institute of Health and Welfare, Housing circumstances of Indigenous households: Tenure and overcrowding 2014

Australian Law Reform Commission, Incarceration rates of Aboriginal and Torres Strait Islander people 2017

Closing the Gap Clearinghouse, "Diverting Indigenous offenders from the criminal justice system", 2013

Closing the Gap Clearinghouse, "Fetal alcohol spectrum disorders: a review of interventions for prevention and management in Indigenous communities" 2015

Department of Prime Minister and Cabinet, "2.16: Risky alcohol consumption" in Aboriginal and Torres Strait Islander Health Performance Framework 2014 Report

Morgan, Anthony and McAtamney, Amanda, Key issues in alcohol-related violence, Australian Institute of Criminology 2009

Ogloff, James RP et al, Child sexual abuse and subsequent offending and victimisation: A 45 year follow-up study, Australian Institute of Criminology 201

Payne, Jason Recidivism in Australia: findings and future research, Australian Institute of Criminology 2007

Payne, Jason and Gaffney, Antonette, How much crime is drug or alcohol related? Self-reported attributions of police detainees, Australian Institute of Criminology 2012

Productivity Commission, Report on Government Services 2017

Other reports

Case, Anne and Deaton, Sir Angus, "Mortality and morbidity in the 21st century" 23 March 2017 [accessed 4 September 2017]

Hudson, Sara Mapping the Indigenous Program and Funding Maze, Centre for Independent Studies 2016

PWC, Indigenous incarceration: Unlock the facts 2017

Academic articles

Bradley, George V., "Retribution: the central aim of punishment", Harvard Journal of Law and Public Policy Vol. 27, No. 1 2003

Keller, Livia B. et al, "A closer look at an eye for an eye" in Soc Just Res Vol. 23 pp. 99-116

Johnson, Rucker and Raphael, Steven, "How much crime reduction does the marginal prisoner buy?" Journal of Law and Economics, Vol. 55, No. 2 (May 2012) pp. 275-310

Radbruch, Gustav, "Five Minutes of Legal Philosophy", Oxford Journal of Legal Studies Vol. 26, No. 1, pp. 13-15

Sypnowich, Christine, "Law and Ideology" in Edward N. Zalta (ed.) The Stanford Encyclopedia of Philosophy 2014

Journalism

Bagaric, Mirko, "Crime: Indigenous Australians and African Americans deserve a 'sentencing discount', Guardian Australia 5 April 2016

Biddle, Nicholas "FactCheck Q&A: is $30 billion spent every year on 500,000 Indigenous people in Australia?" The Conversation 5 September 2016

Davidson, Helen, "Child and domestic abuse in Indigenous communities 'chronically undisclosed'" Guardian Australia 30 March 2015

Macy, Jennifer, "Increase in Indigenous child abuse reports 'tip of the iceberg', advocate says" ABC News 25 July 2013

McGlade, Hannah, "Indigenous women subject to horrifying levels of violence", The Australian June 20, 2016

Websites

Department of Prime Minister and Cabinet, "Closing the Gap: Executive Summary" [accessed 4 September 2017]

New South Wales Corrective Services, "Balund-a (Tabulum)" [accessed 4 September 2017]

New South Wales Department of Justice, "Improving inmate literacy and numeracy" [accessed 4 September 2017]

Northern Territory Government, "Employing prisoners in your business" [accessed 4 September 2017]

Visible Learning, "Hattie Ranking: Home effects", accessed 4 September 2017

Monographs

Jonathan Haidt, The righteous mind: Why good people are divided by politics and religion, Pantheon Publishing 2012

Marshall, Jennifer A. (ed.), 2017 Index of culture and opportunity, Heritage Foundation 2017

Terracina, David "Criminal Law Issues", Chapter 6 in E. Picozza (ed.) Neurolaw

Other

Bugmy v The Queen [2013] HCA 37

von Doussa, John, "One law for all" speech to the Australasian Law Teachers Association Conference, 6 July 2005

---

ENDNOTES

1. Australian Bureau of Statistics, Prisoners in Australia 2015 and 2016 (2016a)

2. United Nations Office on Drugs and Crime, Statistics on crime (uploaded 13 April 2015) [accessed 27 June 2017]

3. See the discussion in Richard J. Wood, The use of prisons in Australia: reform directions, 2016 pp. 19-26

4. Australian Bureau of Statistics, Census of Population and Housing: Reflecting Australia — Stories from the Census, 2016 (2016b) and Australian Bureau of Statistics (2016a) op. cit. NB: the incarceration statistics throughout this section are from that latter source unless otherwise noted.

5. Australian Bureau of Statistics, Recorded Crime — Offenders 2015-16 (2016c)

6. Australian Bureau of Statistics, Recorded Crime — Victims 2016 (2016d)

7. Jason Payne, Recidivism in Australia: findings and future research, Australian Institute of Criminology 2007 pp. 90-2

8. Unless otherwise noted, the data in this section is from: Australian Institute of Health and Welfare, The health and welfare of Australia's Aboriginal and Torres Strait Islander peoples 2015

9. Visible Learning, "Hattie Ranking: Home effects", accessed 4 September 2017

10. Wood 2016 op. cit. pp. 19-22

11. Australian Institute of Health and Welfare, Housing circumstances of Indigenous households: Tenure and overcrowding 2014 p. 18

12. Australian Bureau of Statistics, National Aboriginal and Torres Strait Islander Social Survey, 2014-15

13. Australian Bureau of Statistics, Australian Aboriginal and Torres Strait Islander Health Survey 2012-13 Table 14.3

14. Australian Bureau of Statistics (2013) op. cit. Table 13.3

15. Department of Prime Minister and Cabinet, "2.16: Risky alcohol consumption" in Aboriginal and Torres Strait Islander Health Performance Framework 2014 Report

16. Anthony Morgan and Amanda McAtamney, Key issues in alcohol-related violence, Australian Institute of Criminology 2009

17. Jason Payne and Antonette Gaffney, How much crime is drug or alcohol related? Self-reported attributions of police detainees, Australian Institute of Criminology 2012

18. PWC, Indigenous incarceration: Unlock the facts 2017 p. 65

19. Hannah McGlade, "Indigenous women subject to horrifying levels of violence", The Australian June 20, 2016. McGlade was quoting a figure cited by Josephine Cashman, a member of the Prime Minister's Indigenous Advisory Council, in an address to the United Nations.

20. Jennifer Macy, "Increase in Indigenous child abuse reports 'tip of the iceberg', advocate says" ABC News 25 July 2013

21. Helen Davidson, "Child and domestic abuse in Indigenous communities 'chronically undisclosed'" Guardian Australia 30 March 2015

22. For example see James RP Ogloff et al, Child sexual abuse and subsequent offending and victimisation: A 45 year follow-up study, Australian Institute of Criminology 2012

23. Australian Bureau of Statistics 2014–15 op. cit.

24. Australian Bureau of Statistics 2016b op. cit. NB: figures exclude those whose incomes were only partially or not stated)

25. Gustav Radbruch, "Five Minutes of Legal Philosophy", Oxford Journal of Legal Studies Vol. 26, No. 1 p. 14

26. HLA Hart argues, in the positivist tradition, that the law's authority depends on its certainty, but allows that because of the uncertainty of language, judges must have discretion to interpret the meanings of words. By contrast, Ronald Dworkin argues that when judges need to exercise their discretion they must draw upon their understanding of the rights of individuals embedded in the political system within which legal rights are created.

27. For a discussion of this, see Christine Sypnowich, "Law and Ideology", The Stanford Encyclopedia of Philosophy (Winter 2014 Edition), Edward N. Zalta (ed.)

28. The Hon John von Doussa, "One law for all" speech to the Australasian Law Teachers Association Conference, 6 July 2005 [accessed 4 September 2017]

29. Closing the Gap Clearinghouse, "Diverting Indigenous offenders from the criminal justice system", 2013 p. 2

30. von Doussa op. cit.

31. Adapted from Richard J. Wood, Criminal justice reform: Lessons from the United States, 2017 p. 2

32. Rucker Johnson and Steven Raphael, "How much crime reduction does the marginal prisoner buy?" Journal of Law and Economics, Vol. 55, No. 2 (May 2012) pp. 275-310

33. Australian Law Reform Commission, Incarceration rates of Aboriginal and Torres Strait Islander people 2017 pp. 26-7

34. Unemployment is strongly correlated with offending — see discussion in Wood 2016 op. cit. p. 20 American states have emphasised job training as part of criminal justice reform, and studies in Australia show similar programs to be effective in reducing reoffending — Wood 2017 op. cit. pp. 13-15

35. Wood 2017 op. cit.

36. NSW Corrective Services, "Balund-a (Tabulum)" [accessed 4 September 2017]

37. See for example, ALRC 2017 op. cit. p. 99

38. See discussion in Wood 2017 op. cit. pp. 16-17

39. Closing the Gap Clearinghouse 2013 op. cit.

40. Council of Australian Governments, Prison to Work 2016 p. 9

41. David Terracina, "Criminal Law Issues", Chapter 6 in E. Picozza (ed.) Neurolaw

42. Wood 2016 op. cit. pp. 29-31

43. Ibid. p. 63

44. Northern Territory Government, "Employing prisoners in your business" [accessed 4 September 2017]

45. NSW Department of Justice, "Improving inmate literacy and numeracy" [accessed 4 September 2017]

46. Australian Institute of Health and Welfare 2015 op. cit. p. 80

47. Closing the Gap Clearinghouse, "Fetal alcohol spectrum disorders: a review of interventions for prevention and management in Indigenous communities" 2015

48. Wood 2016 op. cit. p. 9

49. Anne Case and Sir Angus Deaton, "Mortality and morbidity in the 21st century" 23 March 2017 [accessed 4 September 2017]

50. Mirko Bagaric, "Crime: Indigenous Australians and African Americans deserve a 'sentencing discount', Guardian Australia 5 April 2016

51. George V. Bradley, "Retribution: the central aim of punishment", Harvard Journal of Law and Public Policy Vol. 27, No. 1 2003 p. 25

52. Livia B. Keller et al "A closer look at an eye for an eye" in Soc Just Res Vol. 23 pp. 99-116

53. Jonathan Haidt, The righteous mind: Why good people are divided by politics and religion, Pantheon Publishing 2012 p. 179

54. Wood 2017 op. cit.

55. The jurisprudence of the Canadian Supreme Court in Gladue and Ipeelee, and legislation requiring courts to take into specific consideration is therefore misguided. See ALRC 2017 op. cit. Chapter 3

56. Bugmy v The Queen [2013] HCA 38 [29]-[31]

57. Wood 2016 op. cit. pp. 56-7

58. Wood 2017 op. cit. pp. 8-13

59. Ibid. pp. 9-10

60. Richard J. Wood, "NSW reforms point way to reducing high rate of Indigenous incarceration", The Australian 28 July 2017

61. NSW Department of Justice, "Driver licence disqualification reforms" [accessed 4 September 2017]

62. Department of Prime Minister and Cabinet, "Closing the Gap: Executive Summary" [accessed 4 September 2017]

63. Nicholas Biddle, "FactCheck Q&A: is $30 billion spent every year on 500,000 Indigenous people in Australia?" The Conversation 5 September 2016 [accessed 4 September 2017] Sara Hudson, Mapping the Indigenous Program and Funding Maze, Centre for Independent Studies 2016

64. Productivity Commission, Report on Government Services 2017

65. Wood 2017 op. cit. p. 9

66. See for example the analysis of factors correlated with positive socioeconomic outcomes and opportunity in Jennifer A. Marshall (ed.), 2017 Index of culture and opportunity, Heritage Foundation 2017

Malcolm Turnbull's Thoroughly Liberal Blasphemies

What's been obvious to anyone outside the Canberra bubble for the last six months might finally have dawned upon Malcolm Turnbull and his ministers.  The Coalition can win the next federal election — if it wants to.  And of course the issue it can win on is cheap and reliable electricity.

The public like renewable energy, but only in theory.  And the public are not dumb.  They know this country's near-obsession with renewable energy is not only forcing Australia's households to pay among the highest prices in the world for their electricity, it is also de-industrialising the economy.

There's a reason Labor politicians don't talk anymore about the need for Australia to make things.  That's because to make things at a price the rest of the world will pay requires cheap energy.

The point of the polls is that despite the length of time the Coalition has trailed Labor, the Coalition is not actually that far behind, and the federal election could be more than a year away.

The catch, though, is that for Turnbull to give himself a fighting chance of beating Labor he'll have to ditch his infamous claim from 2009 — "I will not lead lead a party that is not as committed to effective action on climate change as I am".

Abandoning a commitment like that shouldn't be too hard given the Prime Minister's track record.

DISTANT MEMORY

The idea that, in his own words, Turnbull would lead a "thoroughly Liberal government" is but a fond and distant memory.  Under Turnbull taxes are up, government spending is up, and red tape has increased.  With things like the bank tax, retrospective superannuation taxes, and telling energy companies who they can sell their gas to and for how long they must keep their plants operating, the Coalition is making the arbitrary administration of policy an art form.

Just this week the Turnbull government helpfully provided two more examples of how hollow is any claim it's being "thoroughly Liberal".

The Coalition's media reforms are good policy and long overdue.  But the price the Coalition paid to Nick Xenophon to get the legislation through the Parliament is too high — and should never even have been contemplated.  The Turnbull government will pay taxpayer-funded subsidies to private media organisations on the condition they engage in "civic and public-interest journalism".

The trouble is that if the government funds something eventually the government will control it.

Then there's the Marriage Law Survey (Additional Safeguards) Act 2017 which attempts to regulate the conduct of the same-sex marriage survey.  Never has such a draconian legislation been passed by the Commonwealth Parliament in such haste and with so little scrutiny.  The law was literally made in less than 24 hours.  The text of the legislation was made public on Wednesday, with the support of both the Coalition and Labor it passed both houses of Parliament that day, and came into effect on Thursday.  This tawdry process makes a mockery of the major parties' claims they support accountability and transparency in law-making.

BLASPHEMY LAW

Section 15(1)(c) of the Act makes it unlawful to "vilify" another person because of their "religious conviction", with the penalty a fine of $12,600.  This section establishes for the first time in Australian history a federal blasphemy law.  As it's drafted the law doesn't only apply to vilification occurring during the holding of the marriage survey — it applies to religious vilification in any context.  While the law has a sunset clause and is scheduled to expire at the conclusion of the survey, a precedent for the operation of a federal blasphemy law has been set — and it's been set by Malcolm Turnbull's Coalition government.

As Senator Cory Bernardi said, the law is "18C on steroids".

The Act also overturns the rule of law.  Under section 19(3) of the Act legal action against someone accused of religious vilification can only be undertaken with the consent of the Attorney-General.  In a free country the government doesn't get to decide when a law is applied and when it isn't.

If the Coalition does come to its senses on energy policy and somehow does get re-elected it will have the opportunity to repair some of the damage it's done.

Not Really Fit For Purpose: The Bureau Of Meteorology

He studied chemistry at Imperial College, London, has 10 degrees, including a law degree, and has published more than 100 scientific papers.  I'm referring to John Abbot.  He is also a man of few words.

Last Friday morning, after flipping through the Australian Bureau of Meteorology's latest 77-page internal report — Review of the Bureau of Meteorology's Automatic Weather Stations — he looked up at me, and then said, "But this is all about you."

The report begins by explaining that the Bureau has 695 automatic weather stations spread across Australia, and that data from this network underpins all of the services the Bureau delivers, enabling more than 500,000 public forecasts, and nearly 15,000 weather and ocean warnings which are issued each year.  The report then goes on to explain that just two of these weather stations are "not fit for purpose" — Goulburn Airport (Goulburn) and Thredbo Top Station (Thredbo).

On the 5th and 18th July, respectively, I explained in detail at my blog that after temperatures below minus 10 degrees Celsius were measured by the Goulburn and Thredbo weather stations they were not subsequently recorded as such in the appropriate database by the Bureau.

While the Bureau strenuously denied it was setting limits on how cold a temperature could be recorded from any particular weather station, the Minister Josh Frydenberg nevertheless insisted on the review — and of the entire AWS network.

The Minister phoned me late on Thursday, to let me know that the review was done and that the investigation found that Goulburn and Thredbo were the only stations, out of the entire network, where temperature records had been affected.

What are the chances?  Of the nearly 700 weather stations, I stumbled across the only two with problems!

Goulburn was discovered because my friend Lance Pidgeon lives nearby.  He was up early on the morning of 2 July concerned his pipes were going to freeze and burst — while watching the live AWS temperature readings tick-over for that weather station.  He then texted me when what appeared to be a new record for July of minus 10.4 was reached, only for us to both see this rounded-up to minus 10.0.

Thredbo was discovered because, after making a fuss about Goulburn, I wanted to check that the Bureau had actually lifted the limits on readings below minus 10.  So, two weeks later I decided to get up early and watch for the lowest second-readings at one of the stations in the snowfields.  Given the weather set-up that morning, I thought it might be cold across that region.  Why did I choose Thredbo — of all the weather stations in the Australian Alps?  Simply because my friend Diane Ainsworth died in the landslide there twenty years ago.

"And I'm vindicated in that 77-page report," I said to John Abbot — last Friday morning.

But unfortunately, neither the report, nor its recommendations are going to fix the more substantive issues that I have been raising since at least 2011 — when much of the city of Brisbane was flooded by emergency releases from a dam that was never meant to ever fill again, according to the best guesses from our Bureau.

Indeed, in the years preceding the flooding of Brisbane the Bureau's own David Jones, Head of Climate Analysis, was often penning opinion pieces, including for the Sydney Morning Herald, that explained drought was the new norm for Australia.  In an email, back in September 2007 he went as far as to say that:  "climate change here in Australia is now running so rampant that we don't need meteorological data to see it."

Dr Jones could be characterised as a "true believer".  He is now the Head of Climate Monitoring and Prediction at the Bureau.  Perhaps not surprisingly the Bureau keeps telling us that next year will be hotter than the last and that this last winter was the warmest on record — never mind the record number of frosts being tallied up by farmers across the south east.

For some years every minister responsible for the Bureau has successfully staved-off what must come eventually:  a proper public review into the operations of this institution, which has lost its way.  For some years, ministers responsible for the Bureau have been claiming that there can be no external review because there is a need to maintain public confidence — they seem to know that a transparent review and public confidence are incompatible.

The report pertaining to this latest internal review claims that even though there has been a strict limit on how cold temperatures could actually be recorded at Thredbo, Australia's climate history has in no way been compromised.  This is nonsense!

Since the year the new automatic weather station was installed at Thredbo — by coincidence the year my friend Diane died in the landslide — there has been a significant reduction in the number of days measuring minus 10 degrees or lower.

To be clear, and contrary to what is written in this latest report from the internal review, the equipment installed at Thredbo back in 1997 is world class.  There is nothing wrong with the equipment, and it can record temperatures down to minus 60 degrees Celsius.

The problem is senior management at the Bureau, and specifically their instructions for how the equipment is to be operated.

For example, and to raise another issue:  because the electronic probes in the new automatic weather stations are much more sensitive to temperature change than the previous liquid-in-glass thermometers, the one-second measurements from the new probes must be averaged over 1 to 10 minutes before taking a recording.  This is detailed in various reports and is also World Meteorological Organisation policy.  So, in the UK, the data loggers are set to automatically average over 1 minute;  in the US, it is 5 minutes.

The Bureau has the correct documentation in place, with the key report — based on detailed experimental work undertaken here in Australia in the early 1990s — published back in 1997.  But the Bureau is not actually following its own guidelines.

I have worked this out by comparing readings from different pages as displayed on the Bureau's website.  But according to the new internal review of AWS operations, this must stop.  In particular, the review found, "the current data flow architecture creates situations where data can be delivered to, and displayed on, the Bureau's website via multiple pathways and this can be potentially inconsistent and confusing for end users."

I was initially confused but then treated the various anomalies from the perspective of a puzzle to be solved.

This new report does clarify many issues.  Indeed, while I initially thought that the new limit of -10.0 degrees Celsius had just been put in place this winter — it is apparent from the report that it has been in place at Thredbo for ten years, since 2007.  What is not clear is how a value that is measured below minus 10 by the equipment is actually recorded, with my observations suggesting that at Thredbo it ends up as blank, while at Goulburn it is rounded to minus 10.0.

Thredbo is not far from the peak of Australia's highest mountain, Mt Kosciusko.  Temperatures have been recorded at Thredbo since January 1966.  On six separate days in 1968 temperatures dropped to -10 or below.  On 23rd June 1968 temperatures dropped to -11.6.  On 28th, 29th and 30th July of that year temperatures of -10.3, -10.6 and -10.1 were recorded.  On 28 July 1980, a record low minus 14.7 was recorded.  In July 1994, which was an exceptionally cold winter, minus 13.6 was recorded.  Not far from Thredbo, at Charlotte Pass in June 1994, the all-time lowest minimum in Australia of minus 23 degrees Celsius was recorded.

During June and July of this year, blizzard conditions were experienced across the Australian Alps, but we will never know how cold it actually got.  Because a MSI1 card reader prevented the equipment — able to record down to minus 60 — from recording below minus 10 at Thredbo and probably also at many other locations.  It is also impossible to know how cold this last winter was relative to 1994 because the weather station at Charlotte Pass was closed in March 2015 — it is no longer in operation.

Earlier this year, specifically on Wednesday 26 July, I was interviewed by Alan Jones on radio 2GB.  He has one of the highest rating talkback radio programs in Australia.  From about 7.40 a.m. that morning we discussed my concerns, specifically about limits on how cold temperatures can be recorded at Thredbo.

According to the new internal report from the Bureau, and apparently by coincidence, the very next day, on 27 July the limits were lifted at Thredbo.  After 10 years at least, the Thredbo weather station was able to record very low temperatures again.

Lo and behold:  on 2 August, a minimum temperature of -10.9 was recorded at Thredbo.

It had been such a long time since such a cold temperature had been recorded at Thredbo — at least 15 years coincident with the installation of the card that prevented the measurement of temperatures below minus 10.4.

Rather than announce the lifting of the ban on very cold temperatures at Thredbo, that very same day, 2 August 2017, the Bureau announced that July 2017 had been the warmest on record — ever, for Australia.

Contrary to the Minister's press release of last Thursday, core issues at the Thredbo weather station have not been fixed — and these are issues that also affect the other 694 weather stations.  By its own admission in the report (page 22), the Bureau is recording one-second extrema from at all weather stations:  it is not averaging these values over at least one minute as is standard practice in the UK, or over 5 minutes as is done in the US.

Recording one-second extrema (rather than averaging) will bias the minima downwards, and the maxima upwards.  Except that the Bureau has been placing limits on how cold an individual weather station can record a temperature, so most of the bias will have been upwards over the last few years — in accordance with Dr Jones' favourite story about man-made warming.

It is well and truly time for an open, transparent and independent external review of the Bureau, and its management.

And John Abbot would prefer that it wasn't just about me.  So, such a review would need to address the multitude of other issues that have been documented over the years including by Warwick Hughes, Ken Stewart, Joanne Nova, Maurice Newman and indeed also by John Abbot — most recently in the journal Atmospheric Research (volume 197, page 290) where he explains that the Bureau's probabilistic seasonal rainfall forecasts are misleading.

Lack Of Same Sex Protection

The (thankfully) former president of the Australian Human Rights Commission Gillian Triggs suggested recently that the same-sex marriage debate was taking place in a "post-truth" climate and disputed claims there were insufficient protections for freedom of speech and religion.

On the first point, Triggs is completely right.  But in making the second point Triggs is engaging in a bit of post-truth of her own.  Aside from Triggs, Attorney-General George Brandis and other members of parliament have all now asserted that the Australian Constitution will adequately protect freedoms if the Commonwealth Marriage Act is amended.

To understand how shallow this assertion is, one only needs to ask:  how exactly did the Constitution protect the Catholic Archbishop of Hobart, Julian Porteous, who was dragged before Tasmania's equal opportunity agency in 2015 for circulating an argument against changing the meaning of marriage?  Regardless of whether you intend to vote Yes or No in the plebiscite, we are entitled to know the consequences of what a change to the marriage laws would be.  This requires the political class to be honest with voters.  Instead, Brandis tells us that he won't "be tricked" into a "broader debate about religious freedom".

This attitude is surprising.  The Attorney-General was unhesitating in slamming One Nation Senator Pauline Hanson for offending "religious sensibilities" by wearing an Islamic cultural garment in parliament — to the delight of Labor and the Greens — but just days later was blasé about legal impediments potentially being placed on Australians with religious and traditional beliefs.

The only one engaging in trickery here is Brandis.  As the chief legal officer of the Crown, he surely understands that all Acts of Parliament, regulations and the common law form a single, interconnected body of law.  So while the Attorney-General may believe the marriage debate should be held in isolation, there is an inevitable question that must be acknowledged as to how a change to the Marriage Act would affect other areas of law.

Traditionalist and religious Australians are not asking for special treatment:  the right to hold and proclaim a particular world view in a community of like-minded believers is a foundational Western freedom.  The government redefining marriage, in combination with existing anti-discrimination laws, threatens to undermine this fundamental freedom.  In other words, at the core of the same-sex marriage debate is a question of whether we risk Australia's liberal democracy becoming less liberal as the price for changing the Marriage Act.

The Commonwealth and the states have a variety of laws prohibiting discrimination because of the sexual orientation or marital status of a complainant, which would give people standing to take individuals or organisations to court for their refusal to conform and comply.  In addition to laws prohibiting discrimination in the provision of services, sexual orientation "vilification" is prohibited in the state laws of Tasmania, New South Wales, Queensland and the Australian Capital Territory.

The most notorious example so far of how these laws interact with traditional values was the complaint against Archbishop Porteous.  The complaint was not terminated but was ultimately withdrawn by the complainant last year.  Australians who believe in the traditional meaning of marriage are rightly concerned they, like Archbishop Porteous, will be compelled to conform to the new vision of marriage.

They are concerned that while commentary on heterosexual marriages will remain unrestricted, that same liberty will not apply to commentary on the institution of same-sex marriages.

Recent data would suggest these concerns are shared by many Australians.  A Newspoll published in the Australian on 21 August found that 62 per cent of Australians want to see "guarantees in law for freedom of conscience, belief and religion" if the government legislates for same-sex marriage.

The political class's attempt to sidestep this crucial issue by alleging the constitution protects religious freedoms is egregious.  What they are referring to is Section 116 of the Constitution, which provides that "The Commonwealth shall not make any law ... for prohibiting the free exercise of any religion".  Read literally, Section 116 refers to laws that have a direct, explicit purpose of restricting religious practices, rather than laws that incidentally affect those practices.  And obviously no one is proposing to explicitly undermine religious freedoms.

The High Court has consistently defined Section 116 narrowly, ever since a 1912 decision where the Court found that religious objections were no excuse to compulsory military service.  In the 1997 case of Kruger v Commonwealth, the Court reaffirmed that Section 116 will only apply where a law has a purpose to prohibit religious freedom, with Justice Mary Gaudron stating that "it makes no sense to speak of a constitutional right to religious freedom in a context in which the Constitution clearly postulates that the States may enact laws" that restrict that same freedom.

To understand why we are so fortunate Professor Triggs is no longer the AHRC president, she called this "one of the best protected rights under Australian law".  Even if Section 116 could provide protection, it could apply only to Commonwealth laws.  Most litigation for sexual orientation discrimination or vilification would be brought forward under state anti-discrimination laws.  This is because those laws typically apply to a wider range of acts and have a lower threshold.  The Constitution would provide no protection under such litigation.

This issue has been framed as a matter of equality.  But this cannot be the case as long as the equal expression of religious and traditional beliefs goes unprotected.  By ignoring these concerns, the pro-change movement's call has made itself vulnerable to being described as an illiberal movement.  Unless and until it addresses them, that is a characterisation that rightly will not change.

In the absence of broad protections, the government redefining marriage, in combination with these existing anti-discrimination laws, will likely undermine the right to hold, act in accordance with, and proclaim a particular opinion.  Voters deserve better than to be told by the Attorney-General that these freedoms are "not what this is about".

Why Politicians Are Going Nowhere

The refusal to celebrate Australia Day by a handful out of the more than 500 local councils around the country represents more than just another example of "political correctness" apparently run amok.  The symbolism of local councils holding citizenship ceremonies on the day devoted to celebrating the country of which immigrants have just become citizens is powerful.

No less powerful is the symbolism of councils telling new Australians that their adopted country has a shameful history which we should apologise for.

A poll commissioned last year found 85 per cent of Australians believe "Australia Day is a day for celebration", 78 per cent believe "Australia has a history to be proud of", and 92 per cent believe "Australia is a better country than most other countries".  Based on these results not many Australians would share the view of ABC broadcaster Stan Grant the country was "rooted in racism".

Explaining the difference of opinion between the majority of the public on the one hand, and of that of political and media elites has become an urgent subject of study around the western world in the wake of Brexit, Donald Trump's election, and the supposed rise of "populism".

One of the most thoughtful contributions to this discussion is a new book The Road to Somewhere:  The Populist Revolt and Future of Politics by David Goodhart, a member of the British Labour Party, the founding editor of Prospect, and former director of the UK's foremost centre-left think tank Demos.

At one level The Road to Somewhere is Sociology 101.  Instead of dividing the population into capitalists and workers, or the haves and have-nots, Goodhart separates it into people who see the world from "Anywhere" and those who see it from "Somewhere".  It is a division based on both economic circumstance and values.

"Most Anywheres are comfortable with immigration, European integration and the spread of human rights legislation, all of which tend to dilute the claims of national citizenship."

Anywheres are likely to be highly educated with professional jobs who have a commitment to notions of mobility, and novelty and who place less emphasis on "identity, tradition and national social contracts [faith, flag and family]".

"Somewheres are more rooted and usually have 'ascribed' identities — Scottish farmer, working-class Geordie, Cornish housewife — based on group belonging and particular places, which is why they often find rapid change more unsettling."  Goodhart estimates that in the UK Anywheres are about 25 per cent of the population, Somewheres 50 per cent, and the rest are "Inbetweeners".

The thesis of The Road to Somewhere isn't complicated.  A "populist" backlash against "elites" was inevitable.  In a democracy it is unsustainable for the interests of the Somewheres to be ignored for as long as they've been.

Goodhart has a nice summation of "populism":  "If there is a single idea that unites almost all variants it is this:  that the interests of the virtuous, decent people and the corrupt, liberal elites are fundamentally opposed."

How much of what Goodhart writes on public attitudes applies to Australia will be debated.  But what he says about political parties in Britain and his description of how policy is made is very relevant to this country.

On the parties Goodhart says:  "Conventional party politics has become narrower, less ideologically distinct, more insider-dominated, both in personnel and also in the interests represented."

The truth of this as operates in Australia is easily demonstrated.  For example, how Coalition and Labor MPs talk about big business or multinational corporations is indistinguishable.

The federal Coalition plans to increase the top marginal rate of personal income tax to 47.5 per cent in 2019, yet describes Labor's policy of a top rate of 49.5 per cent as verging on "socialist".

This leads to how insiders make policy as it "is assumed that domestic and foreign policy consist of a set of discrete problems, each of which has an optimal solution upon which rational, disinterested, nonpartisan individuals can agree.  The style of Insider Nation is that of corporations, think-tanks, consulting firms — soft-spoken, analytical, emotionless."

Whatever the populist revolt is — it most definitely is not emotionless.

Teachers As Activists

Earlier this month, parents at Forestville Public School in the Northern beaches were invited to watch their children perform in a play entitled "Australia — You're Standing in It".  Much of the junior amateur production was apparently a light-hearted re-enactment of Australia's history, from Captain Cook's arrival on the shores of Australia to the iconic "Louie the Fly" advertisements which hit Australia's screens in the 1950s.

However, particular one scene which focussed on the stolen generation, entailed a group of students dressing up as "nuns" and proceeding to victimise the "Aboriginal" students by pretending to subject them to both physical mental abuse.  Concerned and angry parents who later complained about what had taken place on stage were subsequently told to "get a grip" from the parents and teachers who had written and produced the play.

Earlier in June, tearful Year 4 students St Justin's Catholic Primary in South West Sydney were duped by their teachers into thinking that they would be removed from their families at the end of the day.  During this particular activity, a "nun" informed the 7 year olds that the "Prime Minster" had said that they would be taken away from their parents due to neglect.  Many became so distraught throughout the course of the day that they had tried to escape at lunchtime.

By both allowing and actively encouraging this activity to take place, the teachers were clearly failing in their duty of care by causing undue suffering.  Under the guise of educators, these paternalistic peddlers of propaganda were so caught up in their own moral outrage at the perceived transgressions of our forebears that they were prepared to inflict suffering on young and impressionable children.

Australia's primary and secondary school children are being politicised through the history curricula.  Rather than being taught critical thinking skills, or a balanced version of historical events based on facts, they are being fed a diet of identity politics and turned into future activists by left-wing educators who are using schools as vehicles from which to push their political agenda.

Children are being deprived of real historical knowledge about their heritage.  In history classes, they are not being taught that the settlement of Australia was a good thing, for example.  They are not being taught that the British colonists brought with them the institutions and values that have made Australia the stable, peaceful and prosperous country from which all Australians continue to benefit in 2017.

Unfortunately, things do not get any better at university.  Those who go on to study history at university are no longer being taught about the history and substance of Western Civilisation which are essential to understanding our present and shaping our future.  Instead, the focus has shifted from the study of significant historical subjects to a view of history seen through the lens of identity politics, race, gender and sexuality.  Thus by the time that young Australians have gone through both school and university, they have been thoroughly and completely politicised, their actions and behaviour in the present shaped by their incomplete and skewed understanding and knowledge of the past.

Sadly, there appears to be a direct correlation between the identity politics being taught in our schools and universities and what is happening on the streets of Charlottesville.  Throughout their school and university years, Americans are being constantly told that their country is not worth maintaining because it was founded as racist, sexist, bigoted, homophobic immoral and illegitimate.

Thus, in the minds of the protestors who took to the streets last week, the only logical thing to do was to tear down, destroy and annihilate all the physical vestiges of those racist, sexist and bigoted men who belong to America's terrible past.  As a slave owning Confederate general, Robert E. Lee, was always going to be a prime target.  Following the riots, Donald Trump presciently asked the gaggle of journalists, "this week, it is Robert E. Lee ... is it George Washington next week and is it Thomas Jefferson the week after?  You have to ask yourself, where does it stop?"

Last year, the University of Melbourne capitulated without a whimper, to the demands of students that the Richard Berry building which had housed the Mathematics and Statistics faculty for several decades be renamed.  Professor Richard Berry was an English anatomist, neurologist and anthropologist who revolutionised the teaching of anatomy in Victoria and whose teaching produced an outstanding generation of surgeons.

However, during his life, Berry made an unwitting error of developing an interest in eugenics, which happened to be an extremely popular in the 1930s and which was later discredited as a pseudoscience.  For the sin of his perceived racism, the university has begun the process of erasing Berry and all his achievements from its history.

If the University of Melbourne is really serious about its associations with a "racist" such as Berry, it might want to take a closer look at its own namesake.  According to historian Boyd Hilton, Lord Melbourne's past was far from spotless.  "It was irrefutable" he claimed, "that Melbourne's personal life was problematic.  Spanking sessions with aristocratic ladies were harmless, not so the whippings administered to orphan girls taken into his household as objects of charity".  Surely these allegations are serious enough to warrant Lord Melbourne's erasure from history?

Both the "stolen generation" play and activity which took place at Forestville and St Justin's respectively, as well as the name changing lunacy seen last year at the University of Melbourne, are all part of a much larger global war that is currently being waged on the past by left-wing ideologues in an effort to purge the present of "bad history".

Perhaps if Australian teachers and academics returned to teaching a balanced version of Australia's history and left their Marxist identity politics out of the classroom, then Australia might not proceed quite so far down the anarchic path on which America seems to be well and truly set.

Australia Can't Be Silent Amid The Misery Of Venezuela

Venezuela is a failing socialist state.  The economy is 40 per cent smaller than a few years ago.  Nine in 10 households are unable to ­afford enough food.  Infant mortality has risen 30 per cent.  The ­opposition is being severely ­repressed, even murdered.

A decade ago Venezuela was the richest country in South America, with the largest known oil reserves on the planet.  Today, the failed socialist state is brutally cracking down on democracy through violence against protesters and a constitutional rewrite.

British Foreign Secretary Boris Johnson recently tweeted that Venezuelan President Nicolas Maduro was "acting like a dictator of an evil regime and has destroyed Venezuelan economy, eroded human rights and imprisoned thousands".

The US has imposed sanctions on Maduro, including freezing his personal assets and banning firms from doing business with him.

"The people are suffering and they are dying," President Donald Trump said.  In his typical hyperbolic style, Trump even refused to rule out a "military option".

So, where does Australia stand?  As a middle power, proud to "punch above our weight" in foreign affairs, we have surely taken a stand?  Well, the Australian government has said — nothing.  Despite the deteriorating situation — more than 120 people have been killed in protests since January, people are starving and children dying, and the corrupt regime is rewriting the constitution to solidify its power — our government has said zilch this year.

No emotional dispatches in parliament, no statement from Foreign Minister Julie Bishop or perfunctory tweet from Malcolm Turnbull.  The Foreign Minister's office did not even respond to a ­ request for comment.

The only written government position is to "reconsider your need to travel" on Smart Traveller, and the outdated Department of Foreign Affairs and Trade fact page that notes Australia's "cordial relations", and claims Venezuela has a "democratically elected representative system".

The only statement in parliament this year on the situation in Venezuela came from Greens senator Peter Whish-Wilson.  In June he spoke briefly about the "escalating human rights abuses and ­deteriorating political situation".

Worryingly, it was reported in The Australian that Bishop sent a letter to Venezuela's representative in Australia, distancing the government from criticism by Whish-Wilson of the regime.  "I spoke to (Ms Bishop) and she sent me a letter saying (Whish-Wilson's criticism) is not necessarily the position of Australia, which we understand.  She's right," Venez­uelan charge d'affaires in Australia Daniel Gasparri Rey said.

The Australian government is also rejecting temporary visa ­applications — from students, and parents coming to visit their children who live here — because of the volatile situation.

Perversely, we are turning people away at the precise time we should be letting them in.  And that's just visas for people who aren't seeking to live here.

Even Britain's socialist Opposition Leader, Jeremy Corbyn, a previous supporter of the regime, has feebly condemned the violence "on both sides".

We live in globally challenging times, facing threats to our values and way of life, both internal and external.

The old saying, often attributed to Edmund Burke, that all that is necessary for the triumph of evil is that good people do nothing, could not be more fitting.

Australian foreign policy, if it is to have any meaning and purpose, must be driven by our values as a nation.

If we believe in freedom, democracy and the rule of law, we should advocate for these values abroad as well as at home.

There's no such thing as centrism in foreign policy — you stand for something or you have no relevance.

Venezuela is, admittedly, of limited strategic importance.  As its economy contracted, Australia's trade with Venezuela has halved in the past year.  Last year, our ­exports to Venezuela were worth just $15 million;  imports were worth about $1m.  Nor is Venezuela a powerful foreign operator.

But that's just the point.  If there is no good strategic logic to remain silent it should be even easier to say something meaningful.

This situation presents an opportunity to clearly position ourselves in world affairs, and express our solidarity with the Venezuelan people and the thousands of Venezuelans in Australia.

Most important, it is an opportunity to stand up for our values.

Daniel Andrews' Inflated Power Bills Will Punish The Poor

Premier Daniel Andrews' claim that he can bring down power prices by increasing red tape is hogwash.  The more regulation government imposes on the energy market, the higher your bills will be.  State and federal government interventions in the energy market have had a massive impact on prices.  Australian Bureau of Statistics data shows that in the decade to 2016, electricity prices increased 115 per cent.

That hasn't stopped the state government from announcing an energy policy that will make matters worse.  Announced on Wednesday, the Andrews Government is claiming its policy would see a decrease in household power bills of $30 a year.

That argument doesn't hold water.  Victorians are smarter than Andrews gives them credit for.  They know if something sounds too good to be true, it probably is.  And when a politician stands up and says we can have more renewables and lower power prices at the same time, they know they're being sold a pup.

The ACT is about to find that out the hard way.  Its energy policy is the blueprint on which the Victorian plan has been based.  Household power prices there are expected to increase by $114 a year.

The mechanism by which Andrews expects to decrease prices by discouraging investment in the cheapest and most reliable source of energy production currently known to man — burning coal — is not clear.  That discouragement comes in the form of a state-based renewable energy target of 25 per cent by 2020 and 40 per cent by 2025.  A RET acts as a de facto tax on consumers.  It is coupled with government-mandated cross-subsidisation for renewable energy companies.  The reason subsidies are used is because green energy is not competitive in an open market.

It's remarkably suspicious that the government refuses to release its own modelling on the policy.  As a useful tool, economic modelling is often deeply flawed because of underlying assumptions and the inherent unpredictability of the real world.  But governments love to wave the figures that an economic model spits out to pretend they can see into the future.

Governments that choose not to release their modelling (including the underlying assumptions) usually do so because they aren't confident it will withstand scrutiny.  In this case, the modelling was done by a firm chosen by Energy Minister Lily D'Ambrosio, which makes the decision not to publish the results even more damning.

But the federal government is not without blame either.  The Coalition continues to enforce a renewable energy target of its own at the federal level.  Imposing federal policies that are destructive to the national energy market gives governments permission to do the same at state level.  Federal Environment Minister Josh Frydenberg was half right when he said of the Andrews proposal:  "By going it alone with a legislated state-based RET, Daniel Andrews is setting Victoria on the South Australian Labor path for higher prices and a less stable system."

He's right that Andrews is putting Victoria on the path to SA-style blackouts.  But he's wrong about the problem being that Victoria is "going it alone".

The RET is bad policy.  It doesn't matter which level of government imposes it, the result is the same:  higher prices and less reliable energy.  Bad policy doesn't become good policy because the federal government implements it.

The RET is bad policy because it force-feeds renewables into the energy market and creates excess supply issues.  Consulting firm ACIL Allen estimates total energy prices for consumers will be $30 billion higher over 2014-2030 as a result of the RET.

The problem of federal policy pushing prices up can of course be made worse by state governments.  But even if the states were to do nothing, federal policies would still be pushing power prices in the wrong direction.  As it stands, neither state nor federal governments are blameless.

And for the most part both major parties are on a unity ticket when it comes to unreliable and expensive renewables.  The notable exception is the Guy Opposition in Victoria, which is taking the fight to Labor by promising to scrap the state-based RET.

More should be done to fight back against policies that increase energy prices.  Artificially inflated power bills hurt the poor.  They dampen economic growth and result in lower employment and wages.

Such an agenda should be rejected, beginning with the vandalism that is the state government's energy policy.

Big Data Finds The Medieval Warm Period — No Denial Here

According to author Leo Tolstoy, born at the very end of the Little Ice Age, in quite a cold country:

The most difficult subjects can be explained to the most slow-witted man if he has not formed any idea of them already;  but the simplest thing cannot be made clear to the most intelligent man if he is firmly persuaded that he already knows, without a shadow of a doubt, what is laid before him.

So, our new technical paper in GeoResJ (vol. 14, pages 36-46) will likely be ignored.  Because after applying the latest big data technique to six 2,000 year-long proxy-temperature series we cannot confirm that recent warming is anything but natural — what might have occurred anyway, even if there was no industrial revolution.

Over the last few years, I've worked with Dr John Abbot using artificial neural networks (ANN) to forecast monthly rainfall.  We now have a bunch of papers in international climate science journals showing these forecasts to be more skilful than output from general circulation models.

During the past year, we've extended this work to estimating what global temperatures would have been during the twentieth century in the absence of human-emission of carbon dioxide.

We began by deconstructing the six-proxy series from different geographic regions — series already published in the mainstream climate science literature.  One of these, the Northern Hemisphere composite series begins in 50 AD, ends in the year 2000, and is derived from studies of pollen, lake sediments, stalagmites and boreholes.

Typical of most such temperature series, it zigzags up and down while showing two rising trends:  the first peaks about 1200 AD and corresponds with a period known as the Medieval Warm Period (MWP), while the second peaks in 1980 and then shows decline.  In between, is the Little Ice Age (LIA), which according to the Northern Hemisphere composite bottomed-out in 1650 AD.  (Of course, the MWP corresponded with a period of generally good harvests in England — when men dressed in tunics and built grand cathedrals with tall spires.  It preceded the LIA when there was famine and the Great Plague of London.)

Ignoring for the moment the MWP and LIA, you might want to simply dismiss this temperature series on the basis it peaks in 1980:  it doesn't continue to rise to the very end of the record:  to the year 2000?

In fact, this decline is typical of most such proxy reconstructions — derived from pollen, stalagmites, boreholes, coral cores and especially tree rings.  Within mainstream climate science the decline after 1980 is referred to as "the divergence problem", and then hidden.

In denial of this problem, leading climate scientists have been known to even graft temperature measurements from thermometers onto the proxy record after 1980 to literally "hide the decline".  Phil Jones, the head of the Climate Research Unit, University of East Anglia, aptly described the technique as a "trick".

Grafting thermometer data onto the end of the proxy record generally "fixes" the problem after 1980, while remodelling effectively flattens the Medieval Warm Period.

There are, however, multiple lines of evidence indicating it was about a degree warmer across Europe during the MWP — corresponding with the 1200 AD rise in our Northern Hemisphere composite.  In fact, there are oodles of published technical papers based on proxy records that provide a relatively warm temperature profile for this period.  This was before the Little Ice Age when it was too cold to inhabit Greenland.

The modern inhabitation of Upernavik, in north west Greenland, only began in 1826, which corresponds with the beginning of the industrial age.  So, the end of the Little Ice Age corresponds with the beginning of industrialisation.  But did industrialisation cause the global warming?  Tolstoy's "intelligent man" would immediately reply:  But yes!

In our new paper in GeoResJ, we make the assumption that an artificial neural network — remember our big data/machine learning technique — trained on proxy temperatures up until 1830, would be able to forecast the combined effect of natural climate cycles through the twentieth century.

Using the proxy record from the Northern Hemisphere composite, decomposing this through signal analysis and then using the resulting component sine waves as input into an ANN, John Abbot and I generated forecasts for the period from 1830 to 2000.

Our results show up to 1°C of warming.  The average divergence between the proxy temperature record and our ANN projection is just 0.09 degree Celsius.  This suggests that even if there had been no industrial revolution and burning of fossil fuels, there would have still been warming through the twentieth century — to at least 1980, and of almost 1°C.

The Intergovernmental Panel on Climate Change, relying on General Circulation Models, and giving us the Paris Accord, also estimates warming of approximately 1°C, but claims this is all our fault (human caused).

The Freedom Conundrum

Recently I attended the Centre for Policy Studies' Margaret Thatcher Conference on Security 2017 at the august Guildhall in the heart of the City of London.  The theme of the day was threats to the West — including tensions with Russia and China, terrorism, as well as emerging issues like bio-warfare and cyber-warfare.

The keynote address came from Henry Kissinger, at the ripe age of 94, who spoke about the external dangers the West faces — and delightfully commented during questions that Brexit will bring Britain closer to the US.  But the standout speaker of the day wasn't Kissinger.  It was Lord Jonathan Sacks — former Chief Rabbi of the Commonwealth.

Speaking at the beginning of a panel on What should "the West" stand for, Sacks made the important point that the West isn't a single line of thinking.  He pointed to Friedrich Hayek's distinction between the Anglo-American and the French concept of human rights, which is laid bare in two of the West's key revolutionary documents.

The French Declaration of the Rights of Man and of the Citizen declares that "all men are born and remain equal in rights".  In contrast, the American Declaration of Independence, influenced by John Locke, holds "that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, (and) that among these are Life, Liberty and the Pursuit of Happiness".  They may sound similar, but they are not.

The French concept of human rights in effect calls for equality of outcomes ('created and remain equal'), not just equality of opportunity like the American Declaration ('created equal').  The French concept necessitates maximal government to keep people "equal".  This inevitably infringes on liberty to develop our differences — and, in many ways, is what sowed the seeds for the downfall of the French Revolution as it turned to The Terror to make people "equal".  In contrast, the American formula of human rights requires limited government to allow individuals to pursue their own concept of human flourishing.

In addition, the French idea of human rights is based upon the state as the guarantor of rights.

In contrast, the American Revolution was predicated on a very strong civil society.  This is one of the facets of America that fascinated Alexis de Tocqueville in his masterful Democracy in America:

Americans of all ages, all conditions, all minds constantly unite ... In America I encountered sorts of associations of which, I confess, I had no idea, and I often admired the infinite art with which the inhabitants of the United States managed to fix a common goal to the efforts of many men and to get them to advance to it freely.

These associations stand between the individual and the state, enabling the individual and society to achieve our common goals without coercion.

However, there has been an almost unnoticed cultural climate change in the past half-century:  the rise of the French concept of the state by elites.  "We are all French now," Sacks said.  The state is now maximal in its role, and so are the demands laid upon it.  Much of this links to the weakness of civil society.

Robert Putman's Bowling Alone diagnosed the death of "social capital", that is, the breakdown of civil society organisations and community bonds.  The book's title comes from his finding that more people are bowling than ever before — but instead of bowling in clubs, Americans are bowling alone.  The breakdown of community bonds, that operated through mutual benefit organisations, charities, and churches, has been enabled by a growing state and led to the perceived necessity for bigger government.

We often forget that, for example, unemployment benefits are quite a new concept.  In Australia, unemployment assistance was first introduced by the Labor Government in 1945.  Before that, people turned to the community for help when they lost their job.  Your neighbours and family dropped off food and donated clothes, and charities provided support.  Albeit for benign reasons, this all changed with the advent of unemployment assistance.  In effect, the growth in the role of government has crowded out community.

The consequences of this have proven dire.  "The French tradition leaves very little between the individual and the state, and the end result of that is that when the individual feels that the state is not meeting its needs, it turns to populist politics," Sacks says.  The state inevitably fails to deliver, and as Harvard professor Pippa Norris diagnoses in Democratic Deficit, there is a growing gap between expectations of the governed and outcomes of government.  Feeling powerless, people are now turning to strong individuals, who often are not friends of liberty, to defeat the elites.

Therefore, the threat facing the West is not in fact external — it is internal.  As Sacks concludes:

The great danger is the moral vacuum at the heart of Western political structures.  The French system believes that liberty is a political achievement.  The Anglo-American tradition believes that freedom is at least also a moral achievement, and without that moral substance, born, and cultured, and cultivated, in families, communities and traditions, some religious and some national, the West will be left with a vacuum out of which disorder will follow.

The internal dangers to the West were elegantly summed up by President Trump in the best speech of his presidency in Warsaw last month:

We have to remember that our defense is not just a commitment of money, it is a commitment of will.  Because as the Polish experience reminds us, the defense of the West ultimately rests not only on means but also on the will of its people to prevail and be successful and get what you have to have.  The fundamental question of our time is whether the West has the will to survive.  Do we have the confidence in our values to defend them at any cost?

In challenging times, we don't need post-modernist moral relativism and self-doubt.  Our best security is understanding, and believing in ourselves.

With Little Thought To Consequences, Gay Marriage Could Reduce Freedom

After this country's politicians eventually work out who is and isn't entitled to sit in Parliament, hopefully they'll turn their attention back to more important things — like the plebiscite on same-sex marriage.

Despite the seemingly endless discussion about the issue and the cry from advocates for change for politicians to "just do it because it's popular", there's been remarkably little public debate about the consequences if a majority of people vote "Yes" to change the legal definition of marriage.

Partly this is because both supporters and opponents of same-sex marriage are for the moment arguing about the technicalities of what marriage is, and partly it's because Australians take a narrow and utilitarian view of human rights and are reluctant to engage in philosophical arguments — unlike in the United States.

The debates around the free press and the Gillard government's attempt in 2013 to regulate the media, and now the ongoing controversy about the appropriateness of legislation which makes it unlawful to offend someone on the basis of their race reveal that in Australia when it comes to fundamental issues of principle, there's a tendency to pick a partisan side first and invent a rationalisation for it second.

LAW GRADUALLY PROSCRIBED WHAT WE CAN SAY

In the wake of a "Yes" vote, how we talk about same-sex marriage and how we're allowed by the government to talk about it, is part of a much larger conversation about how Australians talk about questions of sexuality, gender, race, and politics.  Gradually the bounds of what by law we can and can't say about these things are being limited, and at this stage there's certainly the potential for the legalisation of same-sex marriage to reduce our freedoms rather than extend them.

The question to be asked in the plebiscite:  "Should the law be changed to allow same-sex couples to marry?" is at best disingenuous — and at worst dishonest.  The answer that many reasonable people would give is — "it depends".  It's completely consistent for someone to believe that two people who love each other should be able to get married, while at the same time also believing that those who publicly state that marriage can only ever be between a man and a woman should not be guilty of breaking the law for expressing such an opinion.

If the plebiscite passes, whether it will in fact be unlawful for say a Christian or Muslim school to teach the "traditional" view of marriage is unknown — as yet no politician has wanted to answer.  The question is not hypothetical.  Last year the Catholic Archbishop of Hobart was alleged to have breached Tasmania's anti-discrimination laws for distributing a brochure saying marriage was between a man and a woman.

WHAT ABOUT THE QUESTION?

It's surprising the "conservatives" in the Coalition who were so eager to have a popular vote on same-sex marriage did not demand that the public should vote on the actual legislation implementing same-sex marriage.  The result of a "Yes/No" plebiscite on same-sex marriage is as meaningless as that from Labor's own proposed plebiscite on Australia becoming a republic.

Same-sex marriage is often presented as a matter of personal freedom.  But freedom cuts both ways.  At the moment anyone is free — without threat of legal sanction — to describe traditional marriage as a product of the capitalist patriarchy that enslaves women.  In fact that's exactly how marriage is labelled in more than a few critical theory classes at universities across the country.  The advocates of a "Yes" vote in the plebiscite would increase their chances of success if they reassured the public that should the law be changed, same-sex marriage could be talked about in exactly the same way as is traditional marriage.

Marriage is more than a legal construct, it's a cultural and social institution and it's entirely appropriate the community should have a say on its future.  But it should be a real consultation about the specifics.  It's incumbent on those who want change — whether to the definition of marriage, or our head of state, or anything else so significant — to explain how the change will work in practice.

One of the lessons of history is that the habit of authoritarians is to talk in generalities.

Blockchain Offers An Innovative Solution To The Brexit Customs Puzzle

This week the government released a new paper calling for the "freest and most frictionless trade possible" with the EU.  Ideally, Britain wants no customs border, which, the paper admits, would be "unprecedented" and "could be challenging to implement".

In just hours, the European Parliament's Brexit negotiator Guy Verhofstadt dismissively labelled "invisible borders" a "fantasy".

The good news is that a new technology is very well suited to having no customs border:  blockchain.

Blockchain is a technology to create distributed trusted ledgers of information — it is a type of database that records blocks of information in a an efficient, verifiable manner.  Blockchain is the technology sitting underneath the cryptocurrency, Bitcoin — but it has, far wider applications.

It's become cliche in industry to say blockchain is the next big thing.  The Big Four accounting firms and banks are already testing the technology.  That's because blockchain will revolutionise how systems will operate, from financial transactions and supply chain management, to asset ledgers and government records.

Blockchain would be very well suited to managing a customs system.

In order to deliver a borderless solution, Britain needs to be able to track the final destination of imported goods, and apply the appropriate EU or British tariff, if it is to pursue the "New Customs Partnership" model proposed in the paper.

Blockchain technology could be used to store information about, for instance, a new package of goods imported into Britain but destined for the EU.  The data can be accessed immediately by all authorised parties, and include information such as the dimensions and weight of the package, and the origin and destination.  This could all be clearly linked to the producer and transporter.

The record could then be used by the government to determine the appropriate tariff — be it the EU rate for a package destined for the EU, or the (hopefully lower) UK rate.  If the destination of the goods were to change, this would be automatically updated on the blockchain, updating the payable tariff.  There would be no need to require businesses to inefficiently pre-pay maximal tariffs and receive a refund, as some have mooted.  The process of calculating duties could even be automated within the blockchain through what's known as "smart contracts", minimising administrative costs.

Blockchain is also highly secure.  Once information is added to the blockchain it is extremely difficult to modify.  In order to change some information on the new customs blockchain, such as inputting a new location for a package, all the other related blocks must be modified, allowing for efficient verification and auditing.  In simple terms, you can track and trace the origin of a good's record, and if it has been changed.  This significantly reduces the risk of fraud within the system.

In practice, every ship and vehicle carrying goods across the border into the EU would register the information of the consignments they are carrying on the new blockchain.  This would allow for secure cross-checking and tracing.  You would know the exact location of goods, be it in the dock, on the ship, or at the destination, the contents of each consignment, and the payable tariff.  The EU could even track this process on the blockchain, ensuring they are receiving the appropriate tariffs.

A blockchain could also help solve the complex issues related to Northern Ireland.  A blockchain could track cars crossing the border to maintain borderless travel and peace in the region.

Brexit, most will admit, is a very complex project.  Untangling decades of interconnected institutions is no easy task.  But it also provides an extraordinary opportunity.  In the future, all customs systems will be on a blockchain.  Rather than dismissing the possibility of frictionless trade, Britain and the EU could become world-leading adopters of the new technology.

Resilient Alliance With Us Underwrites Our Strength

For all the furore it generated, the prickly phone call between Donald Trump and Malcolm Turnbull was a blip in Australia's alliance relations with the US.

In the mid-1950s Canberra and Washington differed over how to respond to the communist threat in Indochina.  In the 60s we were at odds over Indonesia's claim to Western New Guinea (now Papua), the struggle for independence in Laos and open versus preferential trade arrangements.  The alliance was spectacularly imperilled when personal relations between Richard Nixon and Gough Whitlam broke down almost completely in 1973 over Australian criticisms of the "Christmas bombing" of Hanoi and Haiphong.

The alliance later experienced severe strains over Ronald Reagan's response to Soviet missile deployments in Europe, the Labor left's opposition to joint defence facilities, and the Hawke government's rejection of a US request to support MX missile tests.  With the end of the Cold War, Australia-US tensions again focused on trade.

Nor are periods of Australian doubt about US staying power and commitment to our region anything new.

Australian worries about US disengagement from the region have recurred periodically since 1945.  They were pronounced in the aftermath of Vietnam and the bombshell announcement of the Guam Doctrine, when Nixon called on US allies in Asia to take more responsibility for their own defence, and again after the collapse of the Soviet Union and the end of the Cold War.

It's hardly a surprise, then, that doubts are resurfacing in the face of China's rise and a shifting power balance in Asia, and following the election of a US president sceptical of the value of America's alliance commitments.  Opposition to the US alliance is a longstanding minority strand of Australian foreign policy opinion, often dormant but virulent nonetheless.

This often manifests in calls for Australia to adopt a more "independent" foreign policy — a vacuous slogan that was popular in the debate about Iraq in 2003 and is resurfacing today in the context of China.

This ignores the reality that working with the US on security issues has not only contributed materially to our security and to the stability and prosperity of our region but hasn't held us back from pursuing our other interests, such as trade.

A second, related, argument is that maintaining a strong alliance with the US is inimical to nurturing close relationships in our region.

For all Labor's mythologising, it was Robert Menzies who declared in 1939 that "in the Pacific we have primary responsibilities and primary risks ... What Great Britain calls the Far East is to us the near north", and it was Menzies' brilliant foreign minister Percy Spender who not only negotiated the ANZUS Treaty but launched the Colombo Plan in Asia.

But even more than Menzies it was John Howard who demonstrated — by building closer ties with Japan, China, South Korea, India, Indonesia and other Southeast Asian countries as well as a deeper American alliance — that, far from jeopardising our relationships in Asia, a strong alliance with the US adds weight and value to Australia's regional engagement.

A third argument that is frequently made is that the ­alliance may endanger our economic interests in China.

The national interest is our lodestar when it comes to weighing closer co-operation with our allies.  But neither should we allow ourselves to be intimidated into compromising our fundamental national security choices or values through the threat of economic payback.

For one thing, China's economic leverage over Australia is less than many Australians assume.  The other key point, however, is that a strong alliance with the US strengthens Australia's hand when it comes to confronting possible economic coercion.

For all its domestic dysfunction, America will remain the world's richest and most powerful country for the foreseeable future.  Even if one were to accept China's inexorable rise, relative US decline and the emergence of a more multipolar world, what will matter most to Australia is how to shape our region and influence how other powers, particularly China, behave.

The notion that the best way to achieve this is to distance ourself from the US and to think that China will then respect and listen to us more flies in the face not only of logic and international theory but also of experience.

Nonetheless, the election of Trump as President has induced a rash of calls for Australia to do precisely that.

President Trump's temperament, Twitter outbursts, "America first" rhetoric and track record of ambivalence about US international security commitments have given opponents of the alliance a free kick.

We are already seeing the Labor Party abandon its traditional support for Israel.  Bill Shorten supports the US alliance, as does his party's current policy.  But we may be about to enter an era when bipartisan political support for the alliance can no longer be assumed.

Until now commentators have tended to worry about Australia being dragged into a war with China.

More recently, of course, it has been less "entrapment" in war between the US and China that has been in prospect than the risk of Australia being caught up in a conflict with North Korea.

To judge from much of the commentary you would think that President Trump's supposed unsteadiness is the real threat, rather than Kim Jong-un's nuclear and missile programs and brinkmanship.

In this context it is good to see the Australian government firmly supporting the Trump administration's position and declaring that Australia would invoke ANZUS in the event of a North Korean attack on the US.

No matter who occupies the White House, it has always been in Australia's national interest to build the strongest possible relationship with the US, and to maximise access and influence in Washington to help shape American policies in ways that support our national interests.