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Produced and published by the School of Historical & Philosophical Studies, The University of Melbourne
Published July 2008
Published July 2008
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Since the European settlement of Melbourne in the 1830s 'law and order' has simultaneously been a political slogan and a condition of urban life. The requirements of good government were embodied in the presumption that society was ordered in definable ways - and that this ordering should be lawful. Yet when 'law and order' became a rallying cry in the political domain the concept inspired both resistance and disorder. Rhetorical appeals to law and order at times of social conflict could provoke in the metropolis the counter retort - whose law? and what order?
As the centre of government in Victoria, Melbourne was the battleground for competing definitions of what kind of law and social order was authorised by the parliament. An early expression of popular opinion was the demonstration by 15 000 people in November 1854, objecting to the British Government's attempt 'to foist the convict taint on Victoria' - the colony's legislators successfully enacted a bill to prevent the entry to the colony of those convicts released on a conditional pardon. When thousands gathered at the Eastern Market in 1858 and marched on the parliament in populist defiance of the colony's pending land legislation, the liberal George Higinbotham was alarmed enough to warn of the 'reign of mobocracy' and wonder why the authorities had not sent them packing back to the 'slums they emerged from'. The city with its institutions of government, and its apparatus of criminal justice, was both the guarantee of law and order, and the location of most of the significant political struggles of any generation.
The institutions of law and order include the police, courts and prisons. Mandated by legislation of the parliament, these institutions of contemporary Melbourne have their origins in society before the gold rush. The colony was founded in an era characterised by an international movement for the reform of law and its institutions. Expressed in some countries through the codification of laws, the movement in the Australian colonies was more inclined to follow the English model of incremental reform - laws would be changed as needed. All the same, during the first half of the 19th century those changes legislated by the Westminster parliament were of fundamental importance - the reduction of capital offences (for which those convicted could be hanged), the expansion of the use of imprisonment as a penalty, legislation for urban order, including constraints on vagrants and other casual users of public spaces, and the widening of the definition of urban nuisances. Other institutions were also being changed - the 1830s and 1840s were the decades in which a model of the penitentiary (a prison that would reform its inmates) as the core institution of punishment was becoming dominant; and in which the London Metropolitan Police and the Irish Constabulary, the two models of greatest influence on Australian policing, were founded.
The economic functions of a port city were early supplemented by the administrative apparatus of legal institutions. Prior to self-government this meant that the administration of justice was subordinate in a hierarchy of judicial authority, with the apex of authority outside the colony itself. While Judge Willis sitting in court in Port Phillip in 1841 doubted that the Aborigine Bon Jon could be tried by a British court for the murder of another Aborigine, the Supreme Court in Sydney over-ruled his adventurous departure from the presumption that British law was the only law in the colonies. After Separation from New South Wales the courts would dispense Victorian justice. Even so the authority of metropolitan justice was circumscribed by other layers of the judicial hierarchy - the Privy Council during the remainder of the colonial era and even down to 1975, and the High Court of Australia after Federation in 1901. Melbourne was a centre for the administration of law and justice, but within the constitutional limits of the Empire and later the Commonwealth of Australia. From Melbourne the judges toured the colony on circuit, bringing the judgment of law to the major towns. A reverse movement would bring those who had fallen foul of the law to Melbourne, sometimes for trial on the most serious offences, otherwise to serve a prison term at the Pentridge Prison, or, like Ned Kelly, to bide their time in the cells of Old Melbourne Gaol until a day of execution.
The first Supreme Court was one of the earliest public buildings, designed by Mortimer Lewis and standing at the corner of La Trobe and Russell streets from 1842. The expansion of the city and colony was accompanied by a lengthy debate over a new building, the subject even of a Royal Commission in 1871. The Irish heritage of many of the colony's chief law makers was perhaps signified in the dome of the new Supreme Court (across the city on William Street), recalling as it does the Four Courts edifice in Dublin. The old court became the city's main police court, sitting appropriately enough beside the gaol. In 1910 it was replaced in turn by the Gothic, sandstone façades of the Magistrates' Court.
Not all of Melbourne's offenders were brought to Russell Street. Out in the suburbs too there were courts and police stations, sometimes sitting contiguously with municipal offices. In Prahran, for example, the town hall, court house and lock-up sat next to each other from 1861; in 1869 the court house and lock-up were demolished, the same materials being used to rebuild new ones directly behind the town hall. In 1888 the police station and yet another court house were constructed behind the old court house which was now converted into council chambers. The close relation between the buildings suggests how much law and policing were elements of municipal order.
To the lower courts the police would bring those charged with common assault or drunkenness or petty thieving - offences which made up the majority of cases. The magistrates, initially honorary but later paid as 'stipendiaries', had the duty of adjudicating the charges, finding most defendants guilty and then awarding sentences. In spite of the constant procession of minor offenders, the courts were relatively lenient, assisted from the later 19th century by a diversification of options. This did not mean that such penalties as a few days in prison or a fine fell easily on the mostly poor defendants in criminal and petty sessions cases. Then, as now, the official war on crime involved a vicious circle in which the poorest were prosecuted and penalised for offences that already signified their lowly standing, and their striving for survival.
The institutions of law and order are also, however, used by the poor to obtain their own redress. The 'poor man's system of justice', a system known in cities like London or Toronto, was found too in Melbourne. Most offences are committed within classes and local communities, rather than between them. This is also the case, as modern studies show, of the likelihood of serious inter-personal offences, such as occur within families rather than between strangers. In the later 19th century women were capable of prosecuting their husbands and others for violent assaults of both great and lesser gravity - but the high cost of being without a breadwinner, combined with the increasing control of prosecutions by police, meant that domestic violence and similar cases mounted in defence of women declined during the Victorian era. Feminist campaigners in the 1890s, the 1920s and the 1980s were prominent advocates of change in the systems of law to facilitate the proper protection of women - from the appointment of women police to greater severity of penalties in cases of sexual violence and abuse.
The example of women's place in the criminal justice system demonstrates deep ambivalence in the structures and discourses of law and order. The law is meant to secure justice as well as protection for those subject to violence or other offending. On the other hand, legislation and adjudication can also convey their own harm - and especially in the shape of the institutions to which they consign those who offend the proprieties of urban order. The random choices of fate in the colonial era affected the lives of abandoned children and deserted wives in particular. In the era after the gold rush the establishment of institutions for the care of neglected and delinquent children spoke of the colony's aspiration to the rescue of a coming generation from the dangers of a criminal career. Yet conditions in such institutions were often highly abusive, and the dangers to 'state' children within or outside them provoked reformers periodically to move governments to address them. In the absence of a poor law, the fate of such individuals lay in the hands of those who administered orphanages and children's homes, or female refuges, parts of a network of welfare institutions which included not only the prisons and reformatories, but lunatic asylums and the informal mechanisms of relief maintained by the philanthropic middle classes.
Was punishment, or justice, best administered in the city or country? Politicians debated the question in the 1880s as some demanded that the Old Melbourne Gaol be demolished, a distasteful symbol of the darker side of the city - against them were ranked those like Sir Charles MacMahon who 'had never seen a large town in England or America that had not a gaol, or house of correction, in the heart of it ... Without a great gaol within the city, what could be done in the case of a local disturbance or riot?' Chief Minister Graham Berry objected that most in the metropolis felt that the gaol should go, 'on the ground that its presence in the centre of a large community could not avoid being a public nuisance'. The old gaol temporarily survived this assault, being closed in 1929. Out in the suburbs Pentridge stood solid, a gloomy presence in Coburg, surviving periodic efforts to shift it as well as numerous scandals of mismanagement, until finally closed in 1998, as the law and order rhetoric of a new government turned increasingly to private rather than public sector management of prisons.
Since the colonial era there have been two fundamental sources of law in Melbourne - the common law (inherited from England) which increasingly has been given sharper definition by legislation, the Acts of the Victorian Parliament. The authority to process individuals through the police cells, courts and prisons derives from two kinds of statute - one dealing with serious offences (the Crimes Acts), the other enabling police to pursue their peace-keeping functions, keeping the streets and public places orderly and targeting petty offenders (the Police Acts). While such legislation shares its dominant features with similar statutes in other jurisdictions, occasional incidents in a city's history have brought the parliament's attention to bear on particular local concerns. The challenge of Dr Bertram Wainer to the Crimes Act's proscription of abortion law in 1969-70 provoked a major public inquiry, subsequent prosecutions and imprisonment of corrupt police, a review of policing (the Beach inquiry) and eventually an adjustment in the law's treatment of abortion. The powers of police to keep order on the streets are the result of a long series of redefinitions of public space and permitted activities, reflecting the city's history of dissent and public protest since the mid-19th century.
By virtue of the parliament's delegation of powers to the institutions of local government, urban order has also been the object of municipal legislation and by-laws - limiting the activities that can be carried on in public places, or in certain streets or neighbourhoods. By passing laws affecting behaviour on the streets and in other public places the parliament has preferred some modes of order to others. On occasion the preference is not sustained by popular consent - legislation on gambling did not prevent the highly organised illegal order of the Collingwood Tote from being sustained over many years. Other forms of crime, organised around the criminalisation of drugs or prostitution have been well known in Melbourne's history, although some have argued that the city is less 'criminal' in this respect than Sydney.
The control of public disorder has been one of the elemental functions of the police in the defence of law and order. Unlike many cities in Europe and North America, Melbourne was policed after 1853 as part of a single Victorian police. With the famous but rare exceptions of the social disorder threatened at Ballarat's Eureka Rebellion and later by the Kelly Gang in the northern parts of the colony, the major challenges to public order in Victoria have arisen in Melbourne. Three episodes stand out.
In August 1890 the maritime strike of marine officers, supported by seamen and wharf labourers, inspired talk of urban breakdown. Although confrontations between police and strikers were few, the agitation associated with the strike and the increasing political temperature brought to the fore the use of emergency powers always held by a government - the Premier, Duncan Gillies, signed an order banning unlawful assemblies. The speedy response of strikers and their many supporters was to defy the ban - and two days later in Flinders Park 40 000 gathered to challenge the government. Special constables were raised from the country and marshalled with the police gathered in the city. But confrontation threatened to escalate into violence as the volunteer militia was mobilised. Its leader, Colonel Tom Price, was said to utter directions remembered in labour folklore: 'Fire low boys and lay them out - lay the disturbers of law and order out, so that the duty will not again have to be performed'.
Three decades later Melbourne was the site of one of the real tests of the limits of government in the modern city. In a rare show of defiance of the police hierarchy, about half the metropolitan police went on strike in November 1923. The police strike originated in rank and file dissatisfaction with management decisions. Serious rioting and looting took place, with many injuries and substantial property damage. Again a special constabulary was raised, this time under the impressive organisational command of war hero, Sir John Monash, who acted with government mandate in establishing a force independent of the police command. The government solved the problem of striking police by sacking the strikers. But the always imagined threat of a loss of control over the city in the absence of organised defence of property and life had seemingly been confirmed. These events seemed to confirm the dangers to 'law and order' still associated in the minds of many with the disorder threatened by trade union activity. As a conservative parliamentary critic of the striking police reflected: 'If law and order are to be preserved we cannot allow members of our Police Force to be allied with trade unions'. A half-century later one of the strongest trade unions of all, the Victorian Police Association, would on the other hand assert that it acted only to uphold 'law and order' when it became actively involved in the political arena against an external police complaints body.
A third major and long-lasting display of public disorder, of minimal violence but emotionally charged, was occasioned by the Vietnam War. The subject of a growing protest movement from the earliest days of the Menzies government's commitment of Australian troops to service in Vietnam, conscription in the service of an unpopular war was by 1969 the stimulus to a continuing conflict between the police and street protesters. Police tactics were confrontational, backed as they were by the government of Henry Bolte which saw the protests as a challenge to 'law and order'. In spite of mass arrests and constant harassment of the student and union movements that sustained the protests, Bolte's approach seemed only to inspire greater levels of confrontation. Ultimately, in the organisation of the 'moratoriums' of 1970, Melbourne saw the largest political gatherings in its modern history as tens of thousands joined the marches through the city centre, protesting against the war. From these years of confrontation the Victorian Government and police learned the dangers of constant conflict with the people. By 1977 restraint rather than aggravation was the policy of Victoria's new Police Commissioner, S.I. (Monty) Miller, who advocated a more conciliatory style of policing as the most effective servant of law and order.
In truth, however, what is remarkable about public order in the city is its prevalence. Nineteenth-century critics of the city and modernity attacked its encouragement to disorder, its fostering of crime and violence. The modern city has been inhabited by citizens whose capacities for self-government have been moulded by a host of other institutions, so that regulation by force is minimal. Education, the churches, sporting institutions, the presence of the crowd, the relative prosperity of the colony and State of Victoria have all played their role in shaping the capacity of the city to function without overt displays of power. The people of the city remember the incidents of disorder as exceptions to the mundane background of orderly life. And the institutions of the city create their conditions of orderliness - no better example might be found than in the peaceful gathering of 125 000 people to watch the Melbourne Cup at Flemington in November 1923 in the midst of the city's police strike, and only three days after a mob had looted the city's stores, leaving 200 injured.
Conversely, the capacity of the city's citizens for self-government has not always been matched by the observance of good government by the official apparatus of law and order. Police corruption undermines respect for law and order - and is often the effect of misjudged and conflicting legislative and governmental directions. The separation of functions in the institutions of law and order has meant conflict in their administration. The actions of police (though less often those of prison governors) are subject in the end to the jurisdiction of the courts. Frustrated by the impediments of the law, some police and other guardians of the law attract the attention of the judiciary, and in turn oppose them. Melbourne Gaol governor J.B. Castieau confessed such frustration in his diary in 1871, as he reflected on a day's events in which a magistrate had dealt leniently with charges against refractory prisoners:
It is hard to get even visiting Justices to understand Gaol offences, the charges brought against prisoners frequently appear trumpery, as no doubt they would be out of doors, though they are grave infractions of discipline in Gaol & if allowed would soon put an end to the good government of the prison.
The temptation to twist the law a little, to extract a confession from an unwilling suspect, has been a common and controversial feature of policing, one that occasionally brought on judicial condemnation. When the Chief Justice of Victoria in 1936 condemned prolonged detention for questioning, the government of the day thought the matter serious enough to bring an official inquiry into such 'third degree' methods. So law was not a unified institution in which police, courts and prisons worked in unison with the parliament and executive. Governments on occasion were made all too aware of the threat of abuses of power subverting the order which law was supposed to guarantee.
Defining law and order in the city has been, above all, the prerogative of the media. Reporting crimes, trials and punishments was part of the staple fare of Melbourne's dailies from their first publication - no less so than in the present day when no television news is free of its diet of stories of assaults, car accidents and police arrests. The media has had a profound influence in shaping government responses by identifying perceived threats to law and order. Its ambivalent role in shaping public opinion has also led governments to occasional attempts to control the content of media stories about crime. In the 1920s the Victorian Government was especially concerned about the corrupting influence of newspaper stories about urban gangsters like Squizzy Taylor, or of movies about bushrangers like Ned Kelly. The result was the Victorian Censorship of Films Act enabling police to extend their powers of censorship over undesirable stories about the lawless. Self-censorship was in other times exercised by the media - in the midst of the controversy over the impending hanging of Ronald Ryan in 1967, a powerful cartoon directed against Premier Bolte on the cover of The Bulletin magazine provoked the ire of the journal's publisher who ordered the edition pulped.
Yet for the most part the relations between media and government have moved in the opposite direction. By creating images of the ever-present dangers to the security of the city's inhabitants the urban newspapers helped construct the context of changes to criminal law and its administration, especially through invocations to more punishment. At the same time, the media has brought to light those abuses of the criminal justice administration which subverted ideals of the rule of law in a modern society - whether in the corruption of police, the abuse of police powers, or the severities of prison punishments.
The urban media does not alone shape public debate on law and order - in many instances, of course, it acts as the vehicle by which numerous other interest groups articulate their desires. Law and order may have become a standard item on modern election agendas, but urban politics since the mid-19th century has rarely ignored demands for the amendments of laws, enhanced policing and changes in punishments. The city is a powerful context for the organisation of such demands. In Melbourne's history the range of lobbies interested in law and order issues has included the Criminology Society of Victoria in the 1890s, the feminist movement of successive generations since the 1890s, the Council for Civil Liberties, and numerous professional groups. A powerful influence from the 1970s was the Victorian Police Association. Its opposition to the prosecution of police, following the Beach inquiry on police corruption, was a sign of its growing influence in the shaping of criminal justice policy and administration. In the 1980s the Association again demonstrated its potential in opposing the role of the civilian oversight body the Police Complaints Authority. More successfully than many other lobby groups, the police union exercised its power through intensive agitation of its cause - demands for more police, opposition to external interference - in the course of election campaigns.
In its guise as a key element of electoral rhetoric, 'law and order' usually appeals to popular anxieties about growing crime and a threat to personal security. Media stories about particular incidents of violence may be amplified into more general anxieties about the decaying conditions of urban life. In the 19th century colonial governments followed their imperial models in the collection and publication of official statistics of justice - these 'moral statistics' would provide an index of the state of progress of the growing society. The statistics provide us with some imperfect measures against which to measure claims about the dangers of the modern city, or the growing threat to law and order. Levels of fatal violence have not, in fact, increased over the last century, although the incidence varies from year to year. Below homicide, however, changing patterns of prosecution suggest a more complicated picture. International comparisons of sexual assault suggest, for example, that while not as dangerous to women as some American cities, Melbourne is a more threatening city than Tokyo or even many German cities. Other contemporary anxieties about violence focus especially on the vulnerability of children - the incidence of sexual abuse, especially that associated with the administration of welfare institutions, has been a notable instance. Whether or not the levels of such offences against children are more prevalent than in the past is made impossible to determine by the fact of their earlier invisibility to public debate. In this respect we may take any law and order issue of the day as an index of the way a city defines its own priorities and imagines itself as a place worth living in.