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Cunneen, Chris --- "Zero Tolerance Policing: How will it Affect Indigenous Communities?" [1999] IndigLawB 22; (1999) 4(19) Indigenous Law Bulletin 7


Zero Tolerance Policing:
How will it affect Indigenous communities?[1]

By Chris Cunneen

Zero tolerance policing has been widely discussed in Australia over recent years. Politicians and police from New South Wales, Western Australia, Victoria and the Northern Territory have made the trip to New York to consider perhaps the most famous example of this style of policing. Most have returned praising the approach and the apparent reduction in New York City’s crime rate.

What is zero tolerance policing? The idea behind zero tolerance policing is simply that a strong law enforcement approach to minor crime (in particular public order offences) will prevent more serious crime from occurring and will ultimately lead to falling crime rates. The approach relies on an analogy drawn by Wilson and Kelling regarding ‘broken windows’. If one broken window is not repaired in a building, then others will be broken and the building vandalised, followed by other buildings, then the street, the neighbourhood, and so on. An unrepaired window is a sign that no-one cares and therefore more damage will occur.[2] Similarly, if disorderly behaviour is not dealt with in a particular area, then more serious crime will be the result. Small 'incivilities' such as public drunkenness, vandalism, begging and so forth create an atmosphere where more serious crime can flourish.

In the seventeen years since Wilson and Kelling wrote the 'broken windows' article, the 'zero tolerance' philosophy has developed towards a much more punitive approach to maintaining public order. Most discussions of zero tolerance policing today regard the strategy as directly aimed at increasing arrest rates for minor offences such as public drunkenness, offensive language and behaviour, loitering and other similar offences. References to negotiating acceptable public behaviour at the local level - which had been part of the original proposition - have been dropped from the equation. Indeed, beggars and vagrants are now seen as legitimate police targets and the strategies have become popular among politicians of varying political shades in North America, Europe and Australia.

Perhaps one of the most vociferous Australian proponents of zero tolerance policing has been the former Northern Territory Chief Minister Shane Stone. Stone visited New York and Los Angeles long with the President of the Northern Territory Law Reform Commission Austin Asche, Syd Stirling the shadow Attorney General, Brian Bates the Commissioner of Police, Andrew Bruyn the Chairman of Crimestoppers and Don Kennedy the Managing Editor of News Limited in the Northern Territory.

Stone described zero tolerance policing as 'a tough approach to crime, particularly low level crime, disorderliness and "quality of life" issues'. During late 1998 a number of zero tolerance policing 'trials' took place in Darwin, Alice Springs and Tennant Creek. In August 1998 the former Chief Minister announced the introduction of zero tolerance policing in the Northern Territory, simultaneously with 'a review of police powers to ensure that Territory Police have the means to deal with aberrant and antisocial behaviour'.[3] In particular, it has been foreshadowed that the existing offence of loitering (under the Northern Territory Summary Offences Act) will be strengthened. He also left open the possibility of recriminalising public drunkenness, and indicated that the two kilometre law will be enforced more rigorously.[4]

A significant part of the motivation behind zero tolerance policing was directly articulated by Stone:

The problems are, and remain, the same drunken, abusive and, at times, dangerous individuals of all colours and shades... as a community we have become desensitised until it impacts directly upon us. Unfortunately, our visitors and tourists are not so forgiving.[5]

Later in the same speech to the Northern Territory Legislative Assembly, Stone reiterated his concern with tourism:

This type of behaviour [public drunkenness, harassment and verbal abuse] also seriously impacts on an important industry in the Northern Territory, namely tourism.[6]

At present the Northern Territory police are using weekly meetings where public disorder activity is reported upon in the major Territory centres. According to Stone:

senior police, responsible for each district, are held accountable for levels of antisocial behaviour and the success or otherwise of programs within their areas of responsibility'.[7]

Given that in the Northern Territory 56 per cent of all adult finalised court appearances were by Aboriginal adults and 64 per cent of all juvenile court appearances were by Aboriginal young people, then it is reasonable to conclude that zero tolerance policing will have a particularly marked impact on Aboriginal people in the Territory. The impact will be even more pronounced when public order offences are considered. Some 72 per cent of all adult court appearances for public order offences involved Aboriginal people.[8]

The likely impact if public drunkenness were recriminalised in the Northern Territory is evident when it is considered that at present 90 per cent of people placed in police 'protective custody' for public drunkenness are Indigenous people.[9] Even greater enforcement of the two kilometre law will directly impact on Aboriginal people given that the greatest proportion of public order charges against Aboriginal people relate to offences for consuming and possessing alcohol in restricted areas.

In terms of imprisonment, four out of five of all imprisonment sentences in the Northern Territory are imposed on Aboriginal people (81 per cent of adult imprisonment sentences and 78 per cent of juvenile detention orders). Again any increase in imprisonment will disproportionately impact on Aboriginal people in the Territory. Specifically in relation to public order offences, 86 per cent of those sentenced to imprisonment are Indigenous.[10]

Certainly members of the Northern Territory delegation to New York are aware of the impact of zero tolerance policing on Indigenous people in the Northern Territory. In his report on the visit the Chairman of Crimestoppers, Andrew Bruyn, asked himself a series of questions:

The question of itinerants is one that would be strongly pertinent to the Northern Territory with our large and mobile aboriginal [sic] community likely to be heavily affected should such a policy [zero tolerance policing] come into play.

Do the Port Keats people in the city centre face gaol?
Yes. The likely answer is a response to the fact that drunkenness is rife and that leads to violence and disturbance among them when in town. They would unquestionably be heavily affected.

Do the Tiwi near the hospital face gaol?
Yes. The 2 kilometre drinking law, anti-gambling laws and litter and vagrancy would immediately impact on their plight.
The governmental approach is likely to be "don't do the crime and you won't do the time”.[11]

It appears that in the Northern Territory the increased criminalisation and incarceration of Indigenous people is seen as an acceptable outcome of introducing zero tolerance policing. While the above discussion has focussed primarily on events in the Northern Territory, aspects of zero tolerance policing have appeared in other jurisdictions such as New South Wales.[12] Meanwhile at the national level there has been extensive praise for New York style zero tolerance policing by John Howard. Outside of the Northern Territory there appears to have been little thought given to how such a policing strategy will impact on Indigenous people.

Zero Tolerance Policing and Royal Commission into Aboriginal Deaths in Custody

The introduction of zero tolerance policing strategies will have an adverse impact on Indigenous people. We know that Indigenous people are significantly over-represented in arrests and police custodies for more minor public order offences. The 1995 National Police Custody Survey showed that Indigenous people represented 32 per cent of all persons held in police custody. The reason for being placed in police custody for 31 per cent of Indigenous people was intoxication in public, irrespective of whether it was a criminal offence or not. Comparatively, only 15 per cent of non-Indigenous custodies were for the same reason.[13] The major offences for which Indigenous people were placed in custody after being arrested were property offences, public order offences (other than public drunkenness) and public drunkenness (in jurisdictions where it is a criminal offence). The Survey showed that 48 per cent of all people throughout Australia placed in police cells for public order offences were Aboriginal and Torres Strait Islander.[14]

Given that nearly half of all people placed in police custody for public order offences are Indigenous, any police strategy which increases arrest for these type of offences will have a dramatic and discriminatory effect on Indigenous people. The focus of zero tolerance policing on public order offences, combined with a strategy of arrest, will undoubtedly see an increase in the number of Indigenous people arrested and held in custody. This increase will flow through the criminal justice system with increases in court appearances, fine defaults, imprisonment and deaths in custody.

Many Indigenous deaths in police custody occur after the person had been detained as a result of public disorder. Of the 99 deaths in custody investigated by the Royal Commission, public drunkenness and public disorder was the reason for custody in 44 cases.[15] There is a direct connection between arrests for minor offences and the incidence of Indigenous deaths in custody. There is no doubt that the introduction of zero tolerance policing will contribute to a rise in the number of deaths in police custody. Not surprisingly, zero tolerance policing is contrary to the general thrust of the Royal Commission into Aboriginal Deaths in Custody. It also specifically contradicts a significant number of the Royal Commission's recommendations designed to minimise arrest and police custody.

Indigenous Self-Determination

Zero tolerance policing is aimed at increasing police activity in the regulation of public behaviour - it is designed to increase arrests for street offences. It is inevitable that a policy zero tolerance policing will see the imposition of essentially non-Indigenous standards of public behaviour. The standards imposed on Indigenous people are unlikely to be negotiated at a community level if a zero tolerance policing philosophy is adopted. Thus, in addition to increasing the number of arrests of Indigenous people, zero tolerance policing has a number of direct implications for self-determination and the development of Indigenous community policing.

Zero tolerance policing will particularly and significantly affect Indigenous people. Yet, as a policing policy and strategy, it has no room for negotiation. It relies essentially on a unitary view of policing and the law, and a unitary view of appropriate public behaviour. Certainly, Indigenous people have a long history of examples which show that the standards which will be imposed and policed will be in the interests of non-Indigenous society. It contradicts fundamentally the principle for which Indigenous people have argued so strongly - that Indigenous communities have the right to negotiate over criminal justice policy.

Zero tolerance policing undermines community policing in a number of ways. Firstly, it reinforces the problems of over-policing. It requires a greater police presence to enforce minor public order offences. Secondly, it is seen as an alternative to approaches which emphasise crime prevention, problem-solving approaches and community policing. Rather than emphasising negotiation and the development of partnerships with communities, it emphasises a 'non-negotiable' approach (hence 'zero tolerance') to law enforcement.

Perhaps most importantly zero tolerance policing will undermine Indigenous initiatives in the area of law enforcement and the maintenance of social order. It has long been argued that Indigenous communities should be provided with the opportunity and the resources to develop community-based responses to problems of social order. Throughout Australia we have seen during the 1990s the development of Indigenous-run nights patrols, visitor’ schemes, community justice panels, and so on. These initiatives represent community involvement and control in maintaining public order. Yet it is these community initiatives which will be undermined through zero tolerance policing approaches. These approaches rely on negotiated agreements with police for their operation. In this sense Indigenous self-determination and zero tolerance policing are in opposition to one another.

Failure to Comply with International Standards

Zero tolerance policing is potentially in conflict with sections of various human rights standards.

The Rights of Young People

Article 3 of the Convention on the Rights of the Child (CROC) makes the primary consideration the best interests of the child in all actions taken concerning the child. Zero tolerance policing directly contradicts this provision by introducing mandatory arrest policies for minor offences. The child's best interest is made secondary to a zero tolerance strict law enforcement policy. Article 37 of CROC and various sections of the Beijing rules[16] are designed to encourage greater use of alternatives for children and to discourage the use of arrest. The pro-arrest strategy of zero tolerance policing is contrary to these provisions.

Freedom of peaceful assembly and movement is a requirement of article 15 of CROC, and also article 21 of the International Covenant on Civil and Political Rights (ICCPR). A policing focus on public space inevitably raises issues of whether the rights of young people, and of homeless and itinerant people are being violated - particularly when vagrancy or loitering laws are enforced.

Racial Discrimination

Article 2 of the Convention on the Elimination of All Forms of Racial Discrimination (CERD) requires that governments undertake policies to eliminate racial discrimination including the review of governmental policies and measures which have the effect of creating or perpetuating racial discrimination. Article 5 specifically refers to the need to eliminate racism in the administration of justice. Zero tolerance policing will have a foreseeable discriminatory impact on Indigenous people because of its focus on public order offences. Furthermore, it will entrench existing indirect discrimination in the over-representation of Indigenous people in the criminal justice system.

Self-Determination and the Rights of Minorities

Article 1 of the ICCPR and article 3 of the draft Declaration on the Rights of Indigenous Peoples establish the right to self-determination. Article 4 of the draft Declaration further defines the right of self-determination in relation to law and politics, and article 31 sets out the extent of governing powers of Indigenous peoples. Taken in total these provide for autonomy for Indigenous peoples in relation to developing and maintaining legal systems including criminal justice and juvenile justice. Zero tolerance policing imposes the cultural norms of the dominant society on Indigenous people without providing for a negotiated settlement to these issues. It is antithetical to the principle of self-determination.

Conclusion: The Impact on Indigenous People

The zero tolerance approach to policing completely ignores both the historical and contemporary contexts of Aboriginal - police relations. The concentration of police resources on low level street offences will inevitably drag more Indigenous people into the criminal justice system given the combination of cultural difference in the use of public space, discrimination and a socio-economic position which largely precludes access to the many private social venues of non-Aboriginal Australia. Zero tolerance policing is likely to increase the level of antagonism between Indigenous people and the police rather than lead to improved relations. There is little doubt that many Indigenous people will perceive a renewed concentration on the policing of street offences as aimed directly at their use of public space. In this sense, zero tolerance policing recalls the historical role of police in enforcing an exclusionary social order which kept Indigenous people 'off the streets' for much of the twentieth century through protection legislation and, more recently, through the enforcement of street offences.

Zero tolerance policing signals once again a shift towards the politics of intolerance and a policing profile which has no respect for difference. The adoption of the rhetoric of zero tolerance may well be a marker in the reversal of what was seen to be a phase of reform following the Royal Commission into Aboriginal Deaths in Custody. Certainly, police concentration on arrests for minor offences was seen by the Royal Commission into Aboriginal Deaths in Custody as one of key causes of Indigenous over-representation in police custody and an area in need of reform. Rather than looking to New York for police strategies, we should be considering the strengths of policies and programs that have been developed within Aboriginal communities to maintain social order. Recent national meetings including the Indigenous Summit and the Ministerial Summit held in Canberra in February and July 1997 respectively, have considered best practice examples in Indigenous communities. These programs reflect Indigenous communities developing solutions to their own problems with negotiation and cooperation from police departments. They reflect Aboriginal community organisations developing an Indigenous response outside of, but with cooperation from, the formal criminal justice system. These programs reflect successful use of alternatives to arrest, custody and the criminal justice process.

Chris Cunneen is Associate Professor in Criminology at University of Sydney Law School.


[1]A more extensive discussion of these issues can be found in a report Zero Tolerance Policing: Implications for Indigenous People prepared for the Law and Justice Section of ATSIC. Research assistance was provided by Zena Dabboussy.

[2]Wilson, J.Q. and Kelling, G.L., 1982, 'Broken Windows', The Atlantic Monthly, Vol 249, No 3, March 1982 pp.29-38

[3] Stone, Shane. 1998, Reclaiming the Streets - Zero Tolerance Policing and the Northern Territory, Ministerial Statement to the Legislative Assembly, Darwin, 18 August 1998, pp. 2 and 5. See also NT News, 18 August 1998, p. 6.

[4] The ‘two kilometer law’ prohibits public consumption of alcohol within two kilometers of a licensed liquor outlet.

[5]Op cit., above n 1, pp. 5-6

[6]Ibid., p. 22

[7]Ibid., p.27

[8]Data relates to 1996. Luke, G. and Cunneen, C. 1998, Sentencing Aboriginal people in the Northern Territory: A Statistical Analysis, NAALAS, Darwin, (unpublished).

[9]Ibid.

[10]Ibid.

[11]Bruyn, A. 1998, Zero Tolerance Policing Assessment, Report to the Legislative Assembly, Darwin, 18 August 1998, p.7

[12] For example, ‘Operation Puccini’ in Cabramatta and ‘Operation Innsbruck’ in Bankstown.

[13]Carcach, C. and McDonald, D. 1997, National Police Custody Survey, Australian Institute of Criminology Research and Public Policy series No. 9, Australian Institute of Criminology, Canberra, p.viii.

[14] Ibid., p. 27

[15] Johnston, E 1991, National Report, Royal Commission into Aboriginal Deaths in Custody, AGPS, Canberra. Vol 1, pp.46-47

[16] UN minimum standards for the administration of juvenile justice.


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