Birthplace, Migration and Crime

The Australian Experience

Kenneth A. Loparo

• Publisher: Palgrave Macmillan
• Year: 2014
• ISBN:
  9781137386489
• Topic: Social Sciences
• Subtopic: Emigration & Immigration
• Index: Social Sciences

An historical and contemporary account of migrant crime in Australia, this book explores a range of issues from mental health and victimology to immigration policy and legal analysis, arguing that it is birthplace, not race, which impacts upon crimes committed by migrants.

Part I

Historical, Policy and Legal Issues

1

Introduction

Whether driven or drawn, one of the enduring features of the human condition is the disposition to seek new and better things, with physical relocation an essential part of that tendency. The stimulation of new environments, the aspirations believed achievable, political freedom, economic benefits and the potential for spiritual accomplishments are all an integral part of this. A darker side of the impulse to migrate is manifest in the incidence of repressive regimes, of dictatorships, of social feudalism and of economic deprivation. Despite that, it has been cogently argued that world violence is diminishing – a point of view well documented by Pinker (2011).

Migration affords a means of both achieving aspirations and escaping social and political impositions. To that extent it is of social significance. The fact of migration may be energised in various ways, of which the earlier policy of transportation is but one. It is a defining global issue, and one of increasing importance. Even allowing for the growth in population numbers there is an unprecedented movement of peoples. The International Organization for Migration (IOM) website estimates that about 192 million people are living outside their place of birth, or about 3 per cent of the world’s population.

The complexity of the numbers of immigrants is implied in an IOM table that lists countries where international migrants make up more than 60 per cent of the population. The countries listed include: Andorra, United Arab Emirates, Guam, Macao Special Administrative Region of China, Monaco, Qatar and the Vatican. From this it will be seen that the simple recitation of these numbers does nothing to convey the complexity of the issue. For example, the circumstances of the Vatican are vastly different from those of the United Arab Emirates, as are those of Guam and Macao. Further, the short-term benefits of migration do nothing to accommodate the long-term consequences, nor do they illuminate the moral complexities that attach to migration policy. What is seen as important is that some basic facts be given, and then interpreted in a wider context. For a general account of post-war migration to Australia, up to 1990, see Collins (1991): for an account that extends over a longer time period, readers are directed to Jupp (2003).

Bombs and guns are essential in defence against tyrants: as long-term solutions they are less effective. At a different social level we note that negotiation, boycotts and economic drivers are more effective. Encouragement, negotiation and economic sanctions are better long-term solutions. It should not be surprising that moral force has such power. One thinks of Gandhi’s resistance to the British Raj, Mandela’s moral force in ending apartheid and the Dalai Lama’s stance on Tibetan independence.

An instance of international sanctions that may seem of lesser import, but of substantial power, was that of Soviet psychiatry. Some years ago the claim was that psychiatry in the Soviet Union was being used as a political weapon: those who opposed the precepts of the state were diagnosed as psychiatrically malfunctional, and removed from effective positions, or incarcerated. This had the effect of both providing a quick means of removing political dissidents, and also of bringing psychiatry into disrepute. In that sense branding as mentally ill becomes a way of dealing with ‘crimes against the state’. A concerted ban by international psychiatrists, the use of boycotts and professional condemnation proved to be very effective in restoring the reputation of Soviet psychiatry.

All this has to do with people. Imagining the opposite, the idea of how the world would be if people were to vanish was the topic of Weisman’s (2007) book The World without Us. In that work he examined the consequences of people-vanishment. In this world there are some examples of areas that humans have vacated. They include Chernobyl because of its radioactivity, Cyprus where partition has created people-free zones, the de-militarised zone between the two Koreas and the sites of the former Maya civilisation. The absence of people implies the absence of migration; thus that book gives a graphic description of how nature resumes sway when humans are absent.

Migration as a significant feature of modern life

Migration is, arguably, one of the most significant features of contemporary life: to re-coin a cliché, it is an integral part of globalisation. There is evidence that migration has been a feature of human life since time immemorial. Archaeological artefacts, biological similarities, written records, the feasibility of long-range ocean migration (well demonstrated by such feats as the Kon Tiki expedition) and common customs are all evidence of population movements.

Such themes have been well documented elsewhere, but the point is emphasised that the reasons for considering the problem of migrant crime in Australia are of historical as well as contemporary interest. It is worth the strongest emphasis that the issues discussed in this book may be applicable to other minority groups. It is also certainly not intended to convey the impression that these ideas are applicable only to the foreign-born. In fact, the converse applies: where ideas have been applied in other contexts, their application here may be seen as useful.

The position of this book

In order to address the problem of migration and crime one needs to have a defined stance. This work differs from much of the published work in that it deals with birthplace as the criterion. Many studies, notably in the UK and the USA, deal with the racial issue of skin colour: this study looks at ethnicity as indicated by birthplace. While one might argue that birthplace is only a guide to ethnicity, it is the one criterion that is explicit, rather than relying on a judgement of ‘racial-ness’.

The second point that is impressive is the absence of debate on fundamental propositions. For example, one might consider and resolve the idea that ‘The primary concerns of Australian governments are welfare and guidance for the benefit of Australian citizens’ (yea or nay). Second, there is the idea that recognises the prime responsibility of governments, however strangers arrive, to ensure they be treated with dignity and despatch. It is only by the adoption of clear principles that the issue of migration will receive much needed guidance to resolve these very difficult dilemmas. As it is, the ‘policy’ varies from government to government, and even changes within the life of a government.

Background to the founding of Australia

At the outset it should be made clear that Australia was founded originally as a colony of Great Britain. In 1901 it became a nation in its own right, with strong ties to Britain. At that point the Commonwealth of Australia, the Federal Government, assumed control of immigration. The Statute of Westminster in 1931 gave legislative equality to the self-governing dominions of the British Empire, making for legislative independence. Since that time there has been a steady move to release ties to Great Britain.

It is also worthy of note that the Federal Government has responsibility for such issues as currency, immigration, defence and marriage. The states assume responsibility for issues such as crime, health, education, and transport.

In all there are six states: New South Wales, Victoria, Queensland, South Australia, Western Australia and Tasmania. In addition there are two Territories: the Northern Territory and the Australian Capital Territory; the latter is the seat of the Federal Government. The Federal Government has the power to overturn legislation passed by the Territories, but not those laws passed by state parliaments (unless, of course, they are unconstitutional).

Two ways of looking at crime

When a single murderer is indicted, the full panoply of the law is brought into play: when a tyrant murders many, it is regarded as ‘suppressing an uprising’, and the law is, relatively, powerless (one death is a tragedy, a thousand deaths is a statistic). Picking an endangered wildflower invites individual sanctions: digging up a patch of them to build something profitable may invite fewer sanctions. These are examples of socio-political crime. Such crimes are ones that a state may make against an individual, as distinct from the reverse.

The declaration of hostilities against another sovereign state, save for self-protection, may well reflect some psychopathology on the part of the leader, or it may be driven by purely domestic political purposes. If you get drunk and act offensively in a public place you are liable to be arrested: if you manufacture alcoholic drink and promote its use and you may be rewarded as a successful business entrepreneur. Thus, in a similar vein, it is important to understand that crimes involving migration issues are wide in implication.

Clearly one may look at crime as the delictions of migrants against law and social order; or one may regard it as the offences of states, power and the status quo against particular groups. The evidence in this work almost exclusively relates to the former but it is of great importance to see it in the context of the latter. One might argue that crimes against humanity (power and the state against the individual) are more widespread and serious than are those of offenders against social order.

Such socio-political crime is by no means a new phenomenon. It is a long time since Blake wrote of ‘Dark satanic mills’, and Shelley asked ‘Men of England wherefore labour for the lords who lay you low? Wherefore weave with toil and care, the rich robes your tyrants wear?’. An apt instance of the crimes of the socially and economically dispossessed at the time of enclosures of formerly common land is captured in the traditional verse:

The law doth punish man or woman

Who steals the goose from off the common

But lets the greater felon loose

Who steals the common from the goose

As Jonathan Swift so felicitously put it, ‘Laws are like cobwebs, which may catch small flies but let wasps and hornets break through’. In this sense he was predicting what we now call socio-political crime. Where conventional law is often concerned with relatively minor malefactors, larger offences often go unsanctioned.

History of Australian settlement

It will be understood that Australia had its first settlement as a penal colony in 1788. By degrees that method of settlement was modified to include free settlers, and then to exclude convicts. All of this analysis, and Nicholas’s (1988) contribution, serve to remind us to view migration in the widest spatial and temporal context. Jupp’s (2003) abovementioned work is a concise and acute analysis of the migration facts and trends in migration to Australia. The notion of the justification of the White Australia Policy is not to be found in social Darwinism (or, indeed, anywhere else), as he noted. The various changes from the original conception through successive governments, from exclusion through assimilation to multiculturalism, is well documented.

Transportation

The first known enactment for transportation was an Act by Elizabeth I in 1597 for ‘banishing from the realm and beyond the dominions’ (the Vagabonds Act).

In 1611 Sir Thomas Dale suggested a three-year term in the colonies as a punishment and in 1655 eleven offenders who were sentenced to death in Middlesex were pardoned on condition of transportation.

The ostensible reason for transporting convicts to Australia was as a punishment, and in some cases for further punishment. As a matter of history the background and motives were much more complex. Radzinowicz (1948) referred to Lord Ellenborough, who noted in 1810 that it was ‘… a summer’s excursion, an easy migration to a happier and better climate’. Radzinowicz also referred to Bentham’s view that transportation may have had slender deterrent value, particularly for the young, unattached and out of work. This point of view is consistent with that of one then contemporary writer who said that the effect was slight because it was inflicted on persons of no property and reputation and the response of the ‘punished’ was invisible to those who it was supposed to deter.

To complement this view there is that of regarding transportation as the wisest and most humane course as it removed the evil, separated them from abandoned connections and gave freer opportunity. It served at once as both a humanitarian and a reformative measure. Earlier transportation to the American colonies also had the desirable consequence of reducing the need for the slave labour of Africans on the American plantations.

It is plain that transportation was a temporary and ineffectual means of dealing with a burgeoning crime problem, but there are a number of reasons why transportation to Australia was considered desirable. First, with urbanisation and the development of the Industrial Revolution, crime was increasing; second, the penal policy of England and Wales was ineffective and poorly coordinated; and third, the American colonies were no longer available as receiving grounds. Slave traffic had ceased, and convicts were expendable substitutes.

The theme of criminological explanations for transportation could be developed further, but reasons of a non-criminological nature should also be considered. It could be said that transportation was a convenient and inexpensive way of planting the British flag in the southern hemisphere; it could also be said that Australia could become a naval provisioning base and a trading station for the British, as a means of countering the Spanish and Dutch incursions into the South Pacific, as Matra suggested in 1783 (O’Brien, 1950). (Readers may recall that in Galsworthy’s Forsyte Saga there was an extended reference to ‘Foggartism’. The politician Foggarty espoused the view that British emigrants should be sent to the colonies so that the colonies might grow in population and thereby become export markets for British goods.)

After the American War of Independence an Act recognised the difficulties of transportation to America and therefore provided for transportation to any part beyond the seas ‘… whether in America or elsewhere’. It was in that same year that the branding of criminals ceased, and the notion of state-run prisons was introduced.

The notion of transportation had been canvassed in imperial parliaments during the 18th century and clearly flowed from the idea of exiling the socially undesirable. With the loss of the American colonies, and with the prisons packed to overcrowding, the House of Commons decided in 1784 to renew transportation, and the Home Office was called upon to select a site. A variety of alternative locations were considered, among them Canada, the west coast of Africa and the West Indies. Using the late Captain Cook’s recommendation, Lord Sydney chose Botany Bay, on the east coast of what was then called New Holland.

During such debates there were some bizarre themes in transportation policy, including Governor Phillip’s view about criminality. At one point he was quoted as suggesting that murderers and sodomites were best delivered to the cannibals of New Zealand (Clark, 1977, vol. 1, p.77).

Most of the transportees were sent to Australia after 1815 – half for seven years, one-quarter for life. Approximately two-thirds were tried in England and one-third in Ireland: only a tiny proportion was tried in Scotland and elsewhere. The average age of all transportees was twentysix years, and 75 per cent were single. Between half and two-thirds had been punished previously (usually for theft). About four-fifths were transported for larceny of some kind, about two-thirds were Protestant and one-third Roman Catholic.

The first immigrants

One of the lesser known places considered for transports was West and South West Africa. Christopher (2010) has written an account of such a venture in which two companies of felons, enlisted as soldiers, sailed to what was to become known as Ghana. Roguishness, psychosis, tropical diseases and class (rather than morality) separated the containers and the contained. It was from such experiences that Australia emerged as a strongly preferred option for transportation. The whole story of how the failure of transportation to Africa, and its lead-in to transportation to Australia, is told by Christopher.

The first criminal expatriates from Britain were sent to the American colonies, and to Africa. The first failed for several reasons, not the least of which was that the the residents of the colonies did not want their settlements to be regarded as dumping grounds for British criminals. Those sent to Africa did not fare well for dissimilar reasons. The arrangements, the minding personnel, the climate and disease made it an unacceptable place for a criminal depository (see Christopher, 2010). It is interesting to note the then doctrine of Australia being a Terra Nullius; evidence to the contrary made it a more acceptable alternative, without seeming to question the notion of exporting criminals.

The first settlement was in Botany Bay in 1788: in 1803 transportation to Tasmania (Van Diemen’s Land) was begun. The Tasman Peninsula, which is a relatively short distance from the city of Hobart, was a preferred site because it was a peninsula with a very narrow neck, and it was therefore relatively economical to contain the prisoners by chaining guard dogs close together across the isthmus. Port Arthur was the largest penitentiary on that peninsula and is one of the few places (togethe...

Table of contents

• Cover
• Title Page
• Copyright
• Contents
• List of Tables
• Preface
• Acknowledgements
• List of Abbreviations
• Acts of Parliament
• Part I: Historical, Policy and Legal Issues
• Part II: Issues, Data and Interpretation
• Part III: Method, Theory and Moral Issues
• Part IV: Concluding Comments
• References
• Index