A short story of law, order and bipartisanship in Australia

By Scott Hamilton & Stuart Kells

December 11, 2019

Ned Kelly holds a gun in Melbourne, Australia. Photograph: State Library of Victoria/AP Photo

In some ways, Sydney is the mother of modern Australia. Captain Cook dropped anchor at Botany Bay. The First Fleet went ashore in the harbor next door, at Port Jackson. These days, and especially on New Year’s Eve, the Opera House and the Harbour Bridge are Australia’s stunning front door.

But Port Jackson hasn’t always been our main entrance, and Sydney wasn’t always the head office of modern Australia. The first parliament of the newly federated Australia convened in Melbourne’s Exhibition Building, in 1901. In the spheres of politics, religion, scholarship and culture, Sydney and Melbourne have engaged in a mostly friendly jostle for national pre-eminence. Younger cities such as Perth, Brisbane and Canberra have periodically disrupted the competition.

In the underworld, too, Australia’s major cities have vied for supremacy. Sydney’s long history of crime and civic disorder began of course with the transportation of convicts, and it took an early and surprising turn with the rum rebellion. On those foundations, generations of Sydney crims flourished in the nineteenth and twentieth centuries.

In the roaring twenties and early thirties, the razor gangs of Tilly Divine and her rival Kate Leigh fought to control the worlds of sly-grog and sex work in ‘sin-city’. In Victoria, Squizzy Taylor had moved from pickpocketing in Richmond to armed robbery and involvement in the ‘Fitzroy vendetta’ murders of 1919. In the nineteenth century, Ned Kelly and other notorious bushrangers had menaced the countryside to Melbourne’s north.

Till Devine, 1925. Wikipedia
Kate Leigh, 1915. Wikipedia

During the seventies — an era of sex, drugs and rock’n’roll — bribery and corruption took on a new flavour. The drug trade collided with big business and big policing and big politics. The Griffith-based businessman ‘Aussie-Bob’ Trimbole ran the organisation of pickers in NSW marijuana farms and was named as a ‘top man’ in the Woodward Royal Commission. Anti-drugs campaigner and local figure Donald Mackay ended up dead. The drug trade made a tragic pivot towards heroin. Multiple investigations into police corruption uncovered dark dealings and unwholesome connections. Just one example: Rex Jackson, Corrective Services Minister under NSW Labor Premier Neville Wran, was jailed in 1987 for accepting bribes for the early release of prisoners.

The 1980s demonstrated the problem of police investigating police. Independent commissions against corruption would follow. Some people in Victoria had enjoyed pretending that corruption was a NSW problem. But the gang wars and targeted killings of the late nineties and the noughties, along with high-profile frauds and legal disasters, made that pretence untenable. We now accept that law and order issues transcend state boundaries — and political parties.

Despite the sometimes-toxic political rhetoric on crime, there has been a lot of bipartisanship on law and order in Australia. Sometimes the bipartisanship has been forced — because neither side wants to be seen as soft on crime. Sometimes it has been focused on genuine improvement and the public interest. In our work on bipartisanship, we’ve asked the question: to what extent has political agreement on crime led to safer and stronger communities in Australia?

To find out more about state governments and bipartisanship, we spoke with former NSW shadow attorney general and shadow leader of the house, Andrew Tink. He was instrumental in helping steer NSW to bipartisan solutions on law and order. Here are some extracts from the interview:

Andrew Tink (NOTE: This is not a mug shot.)

Andrew, could you tell us what it was like in the NSW parliament of the eighties, nineties and noughties?

Like every other member of parliament, I was ambitious when I went there, so the first thing you do is look around the room and say, who are the likely Premiers on my own side, who are the likely Premiers on the other side? Who is in a safe seat, who is going to be here for a while, and who is in a seat which means they will only be here for about three years, also known as a ‘oncers’?

What I was told was, that the enemy is not really on the other side of the chamber, the enemy is on your own side, the enemy is really your own people, when it comes to your own ambitions. We have seen so many examples of that recently, I don’t think I have to go any further.

I was on the front bench in the police and attorneys’ general area for about eleven years. Law and order was a hard game in NSW, hotly contested. We used to fight like Kilkenny cats with my opposite numbers — the Attorney General and the Police Minister. But at the end of the day, it was very important, outside the chamber, to get on with them and get on well. There had to be a bit of humanity and a bit of civility outside the chamber to justify the red-hot contest inside the chamber.

And what about your opposite number, how did you find him?

Well, Paul Whelan is a terrific ‘hail fellow, well met’, right wing catholic sort of guy. Impossible not to like. But a formidable opponent and we did fight like Kilkenny cats, but we did get on well outside the chamber.

Sometimes governments were dragged kicking and screaming to be bipartisan — but ultimately were. The best example of that was majority verdicts. For the better part of ten years, I fought to change the law in NSW to allow 11–1 majority verdicts in criminal trials. Two private members bills over that time and a lot of debate didn’t really change anything, until the case of Kerry Whelan.

[Kerry Whelan, a 39-year-old Sydney mother, went missing from a suburban car park in Parramatta in 1997. Her body was never found. After extensive police investigations and a coronial inquest in 2002, a trial of Whelan family friend Bruce Burrell ended in a hung jury, with no unanimous verdict.]

It was the publicity surrounding that case that ultimately led the then government to bring in a bill, not dissimilar to the one I had in parliament to get the law fixed. The Attorney General of the day, Bob Debus — quite a good friend of mine — brought in the bill. He’s a nice guy on the left, but not at all keen on majority verdicts. He even stood against his own caucus but at the end of the day they said, ‘Bob, its gotta happen’ and that’s how it came about.

I would have had trouble with 10–2 but 11–1 I think is pretty safe. Another legendary example was Joh’s jury when a young Nat held out to get Joh acquitted. Nobody around NSW now challenges 11–1 majority verdicts. That was a bipartisan result, but with a 10-year history to it.

[Bruce Burrell was then found guilty of kidnap and murder.]

Could you tell us about the police investigating police issue?

I hadn’t been in parliament very long but I’d been made chairman of the Ombudsman oversight committee. In those days, the Ombudsman had oversight of complaints against police — but it was very unsatisfactory. I went to the (opposition) Police Minister and asked if there was an investigation or inquiry you’d like us to do which would help in a policy area where you have been unable to get anything done. He said, ‘Well, police complaints against police’. I then took a huge breath. And then we looked at it.

The Ombudsman had a wide but shallow jurisdiction. He could do things that drove the cops mad but the cops resolutely refused or were able to stall the Ombudsman having any serious jurisdiction over police complaints about police. Both the police commissioner of the day, Tony Lauer, and the Ombudsman of the day, David Lander, were at each other’s throats and both started off playing defensive games. They were suspicious of each other and suspicious of our motives.

We had quite a big committee of nine people. Liberal, Labor, National and an independent, John Hatton. In the end, we could see there was a compromise proposal that might be possible, but nobody trusted each other. In the end, what we did was, everybody respected John Hatton because he was a senior independent. I said to John: ‘Mate, we’re close but we are not there. Maybe what we need to do is the commissioner and the ombudsman in a room together with us and nobody leaves until it’s sorted out.’

We could only do that because we had a person of Hatton’s stature. Anyway, that’s what happened and both the Ombudsman and Commissioner both got something out of it. The Commissioner got wider discretion to handle minor matters, and the Ombudsman stepped back from those matters, and the Ombudsman got greater power for looking at more serious matters.

This was a great example of how a group of individual MPs in a properly constituted committee can do things that even a Minister cannot do. They can provide a forum for a witness, they can cross-examine a witness, they can report on the evidence and what needs to be done. They don’t have the executive power to implement the recommendations, but the power to conduct the hearings is a significant power.

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