Such is life: reflections on the death of Ned Kelly

SUCH IS LIFE

On the 11th November 1880, Ned Kelly was hanged from the gallows of the Old Melbourne Jail. 5000 stood outside in protest, a sizeable crowd given the population of Melbourne 130 years ago was only 280,000. Close to 50,000 signatures were attached to the Petition of Mercy that was submitted to the Executive Council.

The Herald newspaper that afternoon reported on the event in these words:

The general sympathy which appeared to be felt for the condemned man was not confined to the lower orders alone, as the crowd which assembled around the gaol gates this morning testified…Women - many of them young, well-dressed and apparently respectable – were there mixing with the others.

The Telegraph reporter, on the other hand, described the crowd as:

A mob of nondescript idlers, whose morbid and depraved tastes had led them from the pursuit of honest toil. It must be acknowledged that the criminal and most depraved classes in the community predominated.

What evidence that even in the days of Ned Kelly there were such strong and divergent perspectives about crime, its perpetrators and how our government should respond.

Only 13 years before, the last of the 825 shiploads of convicts deported from mother England arrived in Australia. Among its passengers were many Irish Fenians, deported under the authority of the British Crown.

Kelly’s last request in the letter he wrote to the Prison Governor asked: "if you would grant permission for my friends to have my body that they might bury it in consecrated ground."

Kelly biographer, Ian Jones, reported that: "the headless, mutilated corpse was put in a rough, red gum coffin, covered with quicklime and buried in the gaol yard the following day, without any marking on the wall beside it". He noted that one newspaper gloated: "The body of the last Victorian bushranger was laid to rest in un-consecrated ground".

Take a visit to the tourist town of Mansfield, and as you enter the township there is a magnificent monument in the central roundabout commemorating the deaths of Sergeant Kennedy and Constables Lonigan and Scanlon, killed by the Kelly Gang. Down the street in the Mansfield cemetery, the Victorian Government provided funds for substantial tombstones to be erected in their memory.

In contrast there is no grave site for Ned Kelly, neither at the Old Melbourne Gaol where he was buried for 50 years, nor at the former Pentridge Prison site where he remained for a further 80 years until his remains were exhumed last year.

Last month, the Victorian Attorney General, Rob Hulls, directed the Victorian Institute of Forensic Medicine and the State Coroner to assist in the identification of Ned Kelly’s remains, which were exhumed in 2008 from the former Pentridge Prison site. He set a 12 month deadline for the examinations to be concluded and noted that the identification of Kelly’s remains were "a matter of historical significance".

Ned Kelly’s remains were originally at the Old Melbourne Gaol but were disturbed during some renovations and construction work for the Melbourne Working Men’s College (now RMIT University) in 1929. The Herald Newspaper reported on 12th April of that year that "After being undisturbed beneath the stone-flagged yard of the Melbourne Gaol for nearly half a century, the skeleton of Ned Kelly was unearthed about noon today".

The day after Pentridge Prison closed in May 1997, the Victorian Government announced through the front page headlines of the Herald Sun on 2nd May that a monument would be erected in the former prison grounds to acknowledge 149 individuals executed in Victoria. Those buried at Coburg included not only Ned Kelly, but also Ronald Ryan, the last man hanged in 1967, and Colin Ross, wrongfully convicted of murder in 1922 and finally pardoned by the Victorian Government in May 2008.

Some in our community would suggest that Kelly should have no monument recognising his burial place, keeping the tradition that convicted criminals executed by the State should be buried in unmarked graves.

This practice in Victoria commenced after the 1853 execution of bushranger, George Melville, whose wife was the proprietor of an oyster shop in Collins Street. Having obtained her late husband’s body, she proudly displayed it in a semi-frozen state and surrounded it with flowers in the window of her shop. This display led to the 1855 Act to Regulate the Execution of Criminals, specifying that the remains in future were to be buried within the gaol where the execution took place.

The failure to recognise Ned Kelly’s gravesite and that of other prisoners executed by the Crown simply indicate the conflicts that we continue to experience in our community in addressing the complex issues of crime and punishment.

What lessons can we learn from history and from our futile attempts to control deviant or unlawful behaviour?

Even in a country with a rapidly expanding prison population over the last twenty years, as a nation we continue to place impossible burdens on the instrumentalities of the criminal justice system.

Should the police, the courts and the prisons have to deal not only with criminality, but untreated mental illness, addiction and the complex needs of many indigenous Australians and other ethnic communities disproportionately incarcerated in our prisons?

Governments around Australia face a critical challenge in seeking to shape a more effective criminal justice policy. It is particularly relevant this month in the State of Victoria, as we approach a state election.

Since March of this year, it became clear that the State Opposition wished to make "law and order" concerns central to their election strategy. This has involved commitments to substantially increase police numbers and the placement of security guards on trains and railway stations. The Victorian Opposition also promised to completely ban suspended sentences, and in doing so in practice has committed a future government to the construction of a major new prison to deal with the increased prison population. The Brumby Government has responded largely by attempting to match the Opposition’s promises.

Such measures represent an incredible increase in expenditure to law and order and confirmed many of the worst fears of those in the community sector who know how ineffective such measures would be.

A good example of an alternative approach is presented in the "Smart Justice" campaign, made up of a wide consortium of criminal justice reform organisations, including VCOSS and the Federal of Community Legal Services. The Smart Justice campaign seeks to hold both major Victorian political parties more accountable to the electorate by focusing on a factual analysis of the criminal justice system and the misuse of criminal sanctions and the overuse of imprisonment.

More than 30 years experience in monitoring criminal justice policy has told me that there is little to be gained from a bidding war on who could be tougher on law and order, other than pure political advantage. Good social policy can never evolve in this way. The essential goal in this process is to find a way to hold power or, if in Opposition, a way to obtain political power.

Meanwhile the present New South Wales government struggles to meet the costs of a State prison population about to reach the 10,000 mark. At the current rate of increase of the State’s prison population, New South Wales needs to construct a new prison every year. For more than five decades now, New South Wales has had an imprisonment rate approximately double that of Victoria, but their crime rate has not significantly changed and it remains largely comparable to that of Victoria.

A recent Australian Bureau of Statistics report indicated that from 1994 to 2007 Australia’s prison population had increased at an annual rate of 3.7%, while the number of prisoners with prior imprisonment increased at 3.2% per year on average. These are rates much higher than the national population increase, measured at about 1.3% per year on average during the same period. Clearly the construction and operation of the new prisons required to house such a dramatic increase in prison numbers takes limited financial resources from such critical areas as health, education, housing and transport.

My reflections over recent years have led me to consider what it could be that leads political representatives to such desperate measures… measures that by any objective analysis have been shown to have failed in a spectacular fashion over many, many years?

Do we as a nation seriously believe that the increased incarceration of young adult males from the most disadvantaged communities in Australia will result in anything more than a hardened criminal subculture in those neighbourhoods?

How to address such entrenched long term disadvantage does not rest with the criminal justice system. It is the criminal justice system that is left to pick up the casualties when our other social systems have failed us.

Instead, what is necessary to produce lasting change are carefully planned, collaborative, long term, multi-disciplinary interventions in the most disadvantaged communities that seek to bring about real participation and empowerment. Within Australia, similar analyses and recommendations have been made for many years.

So politicians, especially those who seek the power of government by promising more and more resources to the criminal justice system while knowing that real solutions rest elsewhere, ought to know better. They do know better, but they are prepared to compromise their beliefs in the hope of obtaining or preserving the right to govern.

California, once the wealthiest State in the United States is threatened with bankruptcy, while spending more on the construction and operation of its prison system than it does on higher education.

Do we really wish to head in the same direction? Are there no political leaders across our country that have the courage of their convictions to take on the outspoken media commentators who seek themselves to shape criminal justice policy, instead of the elected government?

What is needed is a more rational, evidence-based policy direction for the future of the Australian criminal justice system today. It is critical that we acknowledge the limitations of our present systems and our need for a substantial change of direction.

Similar calls have been made in recent times by U.S. Senator Jim Webb in a country that has 5% of the world’s population, but 25% of the reported prison population. The Open Society Institute in Washington D.C. has called for multidisciplinary collaboration in responding to the underlying equity and justice issues that fuel the cycle of incarceration.

In Australia, courageous political leadership will certainly be required if we are to move forward in the coming decades, rather than reinforce the failures of the past.

I remain convinced that social change comes from a small number of committed individuals who have the determination and the courage to make things better in our world.

The memory of Ned Kelly, at this time, might make us think again about the limitations of our criminal justice system to deal with social conflict and disharmony in our society.