Brown, David --- "Launch of Governing Through Globalised Crime." [2008] CICrimJust 34; (2008) 20(2) Current Issues in Criminal Justice 313

• Speech
• Cases
• References

Speech

Delivered at the Launch of Governing Through Globalised Crime, Futures for International Criminal Justice, Sydney, 13 May 2008^[†]

David Brown, Professor, Faculty of Law, University of New South Wales

• • Australia’s domestic criminal justice systems have recently witnessed a number of cases which illustrate the distorting effects of a hyper-politicisation of criminal justice enacted under the spectre of terrorism. I am thinking here in particular of the Hicks and Thomas^[1] ‘trials’ and control orders and the cases of Haneef,^[2] Ul Haque^[3] and Benbrika.^[4]

That politicisation of criminal justice processes is evident in various ways:

• • Politicisation of the law making processes by, to mention but a few examples, exerting tight Executive control over the process, minimising legislative input; the extraordinary attempt to keep draft legislation secret and to minimise the opportunity for public comment, followed by the attempt to strong-arm the States into passing complementary legislation precisely in order to evade potential Constitutional challenge.
• • Politicisation of the content of criminal law offences introduced which (a) include reference to political motives, and (b) drive potential culpability back in time well before the existing law of attempts and conspiracy, towards what Lucia Zedner calls ‘pre-crime’ (2007:262).
• • Politicisation of investigative processes, illustrated in the Ul Haque case where, fairly early on, Australian Security Intelligence Organisation (ASIO) and the Australian Federal Policy (AFP), knowing Izhar Ul Haque had been in a Lashkar-e- Taiba training camp, nevertheless decided he was no risk, and only charged him with terrorist offences some eight months later when he refused to cooperate with the AFP requests to become an informant against Faheem Lodhi. In short, the charge was brought as leverage or reprisal, in the context of conduct on the part of ASIO officers which Adams J in the NSW Supreme Court found to constitute the criminal offences of kidnapping and false imprisonment.
• • Politicisation of the trial process in a variety of ways, including the choosing of judges designated to be appropriate to sit in security cases; the political vetting of lawyers by requiring security clearances; withholding information from defence lawyers; and as revealed in the Benbrika case, subjecting the accused to what Bongiorno J found to be ‘an unfair trial because of the whole circumstances in which they are being incarcerated at HMP Barwon and the circumstances in which they are being transported to and from court’ (at para 91).
• • Politicisation evident in Executive responses to judicial decisions adverse to the government, including Minister Andrews’ response to Dr Mohamed Haneef being granted bail – revoking his visa – and the government’s response to Jack Thomas’s acquittal on appeal – applying for a control order – as well as the control order brought against David Hicks after a politically-negotiated guilty plea (which seems to be currently in the process of unravelling).^[5]
• • Politicisation in the form of judicial submission to the claims of terror, security and risk, illustrated in the readiness of the Federal magistrates to grant control orders in the Hicks and Thomas cases, where the evidence was arguably weak. In the Hicks case it seems especially ludicrous to suggest that Hicks is in the kind of mental state after prolonged pre-trial detention in Guantanamo Bay under solitary confinement to represent any credible threat. In Thomas’s case, the evidence of current threat seemed thin. Following this was the judgment of the High Court in Thomas, where the majority was prepared to overturn well established limits to Executive powers.^[6]
• • Politicisation of correctional processes; in the Benbrika case, effecting an unfair trial through oppressive prison and transport conditions; and in the Ul Haque case, in a form of ‘political theatre’, illustrated by Ul Haque’s arrest on terrorist charges and highly publicised trip to Goulburn HRMU supermax on an AA ‘terrorist’ classification (despite the fact that ASIO and the AFP had earlier decided he did not present a threat, indeed that it was safe for him to be catching the train between Bankstown and the University of NSW to continue his medical studies).
• • Events surrounding these cases illustrate the way that the spectre of terrorism and the technologies of risk and the politics of fear it engenders have distorted domestic criminal justice processes through a profound hyper-politicisation, overreaching claims of executive sovereignty, failure to respect the separation of powers, political trumping of judicial decisions and the use of the criminal process and the courts as a form of political theatre.

It is into this domestic context that Mark Findlay’s Governing Through Globalised Crime, Futures for International Criminal Justice, emerges. But as its title suggests, the context is the far broader one of globalisation. Findlay builds on Jonathon Simon’s notion of ‘governing through crime’ (Simon 2007) but extends it to the international sphere and, in the process, advances a similar argument about the distorting effects of the ‘war on terror’ on international criminal justice.

The argument of Governing through Crime is best summarised through the subtitle of Simon’s text, ‘How the War on Crime Transformed American Democracy and Created a Culture of Fear’. In short, Simon argues that the war on crime became a major field of state governance over the last 25 years, justified domestically in terms of risk and security, risk being to both the citizen victim and the state, the state defining risk and directing the selective policies of security against fear which risk generates. A crude measure of the effects of this process is the recent figure noting that the US with 5% of the total world population has 28% of the world’s prisoners (Liptak 2008).

Findlay extends this analysis of ‘governing through crime’ to the global community, where risk/security is increasingly focused on terror. A summary of Findlay’s argument is provided here:

Put simply the argument in this book advances from two directions. First is to say that formal ICJ has become a key element of post-military global governance. The justice frameworks influencing global governance are both conventional institutions and processes such as courts and tribunals and the para-justice distortions that now feature as an important control mechanism of the dominant political alliance. The other direction indicates that the current phase of globalisation, with its risk/security focus has politicised ICJ in the governance spectrum. This in turn challenges the legitimacy of ICJ in conflict resolution and accountable global governance more generally. The challenge I propose is through a radically transformed ICJ to return it to a more communitarian, inclusive and accountable practice of justice which then can keep global governance honest (pp218-219).

• • The argument is conducted at this general level, but with a number of very useful specific case studies in particular chapters, where Findlay brings his broad international knowledge of on-the-ground developments to bear to, for example:
• • question the applicability of notions of corruption to the cultural ‘big man’ traditions of certain Pacific island states;
• • examine the pursuit of notions of truth in International tribunals and courts and compare these to Truth Commissions; and
• • engage in a detailed study of China as a hybrid jurisdiction and consider the applicability of international criminal law to it.

Governing Through Globalised Crime makes a major contribution to discussion about the future of international criminal justice in criminology and criminal justice studies and will be both widely cited and influential.

The policy prescriptions contained in the book are an attempt to intervene in the international conjuncture presented by the patent failure of pre-emptive military strike policies in Iraq and the crumbling of the Bush II presidency in the USA. Its argument that ‘the creation and sustaining of humanity rather than risk/security as the moral and operational concern of International Criminal Justice on behalf of victim communities will hopefully magnify the peacemaking and peacekeeping potential of International Criminal Justice’ (p xix) should be heard not just in the criminal justice academy but also in government, political and policy circles as part of a re-appraisal of the politics of belligerence and pre-emption, a reappraisal currently being undertaken in the Australia context by the new Rudd ALP government.

Congratulations to the publisher, Willan, on a fine production, and especially its preparedness to invest in a striking (and presumably more expensive) cover, part of a painting by James Gleeson, which is from the University of Sydney’s Art Collection.^[7] This is a move which might usefully be copied by local publishers.

Congratulations also to the author himself, for producing this major contribution to the international literature in adverse personal circumstances. At the risk of embarrassing him, I would like to continue a tradition I have started of comparing major intellectual figures with rugby league players, and in his case he is, in my view, the Brett Hodgson of the criminology code. Mark; this is a fine book; may it become a classic and may you keep skirting across the criminological field, looking for that half gap to force your slight frame through, before displaying a dazzling side step around the fullback for a touchdown under the black dot. As usual, it remains only to remark that, with this book, the criminological code is the winner.

Cases

DPP v Thomas [2006] VSC 243

Minister for Immigration & Citizenship v Haneef [2007] FCAFC 203

R v Benbrika and Ors [2008] VSC 80

R v Thomas [2006] VSCA 165

Thomas v Mowbray [2007] HCA 33

Ul-Haque v The Queen [2006] NSWCCA 241

References

Findlay M 2008 Governing Through Globalised Crime, Futures for International Criminal Justice Willan Publishing Cullompton

Liptak A 2008 ‘U.S. prison population dwarfs that of other nations’ International Herald Tribune 23 April

Simon J 2007 Governing through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear Oxford University Press

Zedner L (2007) ‘Pre-Crime and Post-Criminology?’ Theoretical Criminology vol 11 no 2 pp 261-281

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^[†] Governing Through Globalised Crime, Futures for International Criminal Justice, by Mark Findlay, Willan, 2008, ISBN 1-843923-08-4. This is the edited version of a speech given at the launch of the book, hosted by the Institute of Criminology, Faculty of Law, University of Sydney.

^[1] R v Thomas [2006] VSCA 165; DPP v Thomas [2006] VSC 243; Thomas v Mowbray [2007] HCA 33.

^[2] Minister for Immigration & Citizenship v Haneef [2007] FCAFC 203.

^[3] Ul-Haque v R [2006] NSWCCA 241.

^[4] R v Benbrika and Ors [2008] VSC 80.

^[5] See http://www.news.com.au/heraldsun/story/0,21985,23860726-661,00.html

^[6] Thomas v Mowbray [2007] HCA 33.

^[7] See http://www.usyd.edu.au/museums/about/art_collection.shtml