Our nation's justice system is in need of reform when children are being imprisoned and corporations are getting away with robbery, writes Bert Hetebry.
AS I RECALL, the opening scene of the 2005 movie Pierrepoint: The Last Hangman sees a woman who had been executed, hanged, removed from the hangman’s rope and prepared for burial.
The care, the gentleness of that scene belies the violence of the death which had been ordered as punishment for murder. When asked why such care was taken with the body and how it was dignified and shown such respect, the hangman, Albert Pierrepoint (played by Timothy Spall) explained that the punishment had been carried out and justice had been served. As such, the woman’s dignity for the burial is restored.
Justice: is it “an eye for an eye” as explained in the book of Exodus:
‘But if there is harm, then you shall pay life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, stripe for stripe.’
Or is justice served as we find in the book of Matthew:
‘You have heard that it was said, “Eye for eye, and tooth for tooth”. But I tell you, do not resist an evil person. If anyone slaps you on the right cheek, turn to them the other cheek also.’
Here is a definition of justice — does this seem reasonable?
‘Justice is the ethical, philosophical idea that people are to be treated impartially, fairly, properly and reasonably by the law and the arbiters of the law, that laws are to ensure that no harm befalls another and that where harm is alleged, a remedial action is taken — both the accuser and accused receive a morally right consequence merited by their actions.’
How do we arrive at a ‘morally right consequence’ which is fair to both the perpetrator and the victim? Is justice served through revenge or vengeance or is there more to it?
Instead of satisfying a sense of morality, should the consequence be measured on an ethical basis? And how would that be different?
The destruction of Gaza and the year-long war which now envelopes Israel and Lebanon and threatens to spread to include other countries, is that justice for the horrors, the war crime committed by Hamas on 7 October 2023? Or is it an act of vengeance, going well beyond any sense of justice where it appears there is the collective punishment of those Palestinians who live in Hamas-controlled Gaza?
But justice works at less dramatic levels, too; less destructive, where an injury is done, a theft committed, an ego dented.
So what constitutes “justice”?
A teenager in youth detention suicides and through both the grieving process of the child’s family and the coronial inquiry into the death, the parents and the legal system are seeking a sense of justice which includes a claim for a settlement payment of several million dollars.
One of the cases described in Dexter Dias’ book, The Ten Types of Human, tells of a young boy who was killed while in youth detention in Britain. The description follows the boy's movements, silently on the video cameras in the facility, and also the guards who followed him and entered his cell, emerging a few minutes later. The child was dead. The grief of the mother who had lost her son, who was supposedly in the custody of the facility, is raw as she suffers the inexplicable loss of her child.
What does justice look like when a child dies in the custody of a government facility?
Time and again we view court-step interviews where those who have been aggrieved through crime, whether it be property damage, injury or death through a road accident, explain that the punishment meted out does not satisfy their sense of justice.
The questions are complex and must also consider who determines what justice is in a legal sense, and who writes the laws and prescribes the penalties for contravention of those laws.
The 1723 Black Act was passed in England after groups of poachers took part in a series of poaching raids. The act made hunting deer, rabbits or hares a crime that was punishable by death.
What the Act does not describe is why people were poaching, effectively stealing wildlife from forests, hence stealing from the king’s or other wealthy land owner’s lands. It was not necessarily because they were sportsmen hunting as in the sport of fox hunts, but because the enclosures that had rendered so many former peasants destitute meant the hunting of wildlife was a matter of survival, staving off starvation.
Examining the crimes committed by the convicts of the First Fleet which arrived at Botany Bay in January of 1788, we see that there were some serious criminals. The crimes of assault and highway robbery are listed, but most convicts had committed non-violent crimes, mainly theft, stealing livestock, clothes and bedding. These were survival items for people living in poverty, but also luxury items such as watches and handkerchiefs which could be sold to buy the necessities of life.
A fictional account, the novel Moll Flanders by Daniel Defoe, first published in 1722, describes the desperate measures taken for the poor to survive in England at that time.
The laws were to protect those who had the most, to dispose of those who were a bit of an embarrassment, those who lived rough, who stole, who sold themselves in prostitution.
Laws currently being legislated in the Northern Territory reduce the age of criminal accountability to ten years of age, effectively criminalising the behaviour of children. Similar laws are being proposed for Queensland in the “law and order” election campaign in that state.
While the politicians who are enacting or proposing those laws state that they are not discriminating against any particular group of people, anyone with eyes to see and ears to hear will understand that there is a distinct racist element inherent in the laws and proposed laws. The incarceration rate of First Nations people is hugely disproportionate in all Australian jurisdictions, as it is for children and teenagers in the juvenile justice system.
Those laws effectively criminalise being Indigenous Australians.
The ethical dilemma for justice is, in part, who the laws are targeted at and who is protected by the laws, either through ignoring unethical behaviour or who through positions of privilege or power are somehow above the law.
Theft is easy to prosecute when a person steals a trolley full of food from the local supermarket. It is not so easy to prosecute when that supermarket raises prices to increase its profitability so that the shareholders can “earn” a greater dividend for their investment.
As recently highlighted, the deceptive advertising of discounted goods and the increased profits were published for the major supermarket chains. Is that theft? No, of course not, it is business people doing what business people do, maximising profit for their shareholders, which is their primary responsibility. So the behaviour is morally acceptable, satisfying the morality of business. But is it ethical?
Does the justice system criminalise the powerless, but ignore those with the most power? Does it criminalise children and poor people and First Nations people but give a pass to those with the most power, the wealthiest, the most privileged?
Bert Hetebry is a 76-year-old retired teacher interested in politics, the arts and philosophy.
This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Australia License
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