When there is a mooted new medication for a disease, there is a detailed process for approval which has developed over centuries.
There are experiments and several phases of trials and eventually, when and only when, it jumps all the hurdles, the medication is approved.
This is as it should be, because there is great harm that can be potentially caused by taking medications that either do not cure, or because the side effects are worse.
Of course, there are still stuff-ups, but the process is designed to be evidence-based, to minimise harm, and maximise benefit.
It is a shame we don’t apply that sort of rigour to other types of perceived ailments in our society and instead clutch at punitive measures as a catch-all.
Take youth crime. In almost every jurisdiction in Australia penalties are being increased for young offenders.
In the Northern Territory, they are locking up more and more for longer and longer periods of time.
In Queensland, ‘Adult Time for Adult Crime’ means much longer sentences, even life sentences, for young people and they have just this week increased the number of offences where it applies.
In Victoria, they are touting the toughest regime for sentencing and bail for young people in Australia.
And in NSW, it is often harder for a young person to get bail than an adult with the same charges and criminal record.
Not evidence-based
And it’s mainly Aboriginal kids affected. Yet nowhere is there any evidence that this works to reduce crime. No tests, no experiments, no trials just wham bam and ‘lock the little buggers up’.
Yet we know that these regimes increase harm – removing children from family and Country, making them suffer in detention, increasing their risks of reoffending on release and creating a new wave of undergraduates for adult prison.
Next, take reducing antisemitism.
NSW has drastically reduced the right to protest, shifting all the power from the courts to the police, and using major event legislation to limit marchers and protesters even more.
NSW will be banning one phrase, Queensland two, and the Commonwealth hate crime laws have been so far used only to shut down and seize art works at a Canberra cafe called Dissent, which pictured Netanyahu in a poster as a Nazi.
Criminalising everything from walking with watermelons to mouthing phrases such as ‘free Palestine’ are touted as effective measures against terrorism and antisemitism.
But where is the evidence from anywhere in the world that any of these criminal law measures will actually reduce terrorism or hatred of Jewish people?
More knee-jerk, evidence-free legislating and policy making that has more to do with foot-stomping and do-something electioneering than actually making a difference.
And yet the harm caused by these repressive measures is demonstrable immediately.
I have been litigating, determining, studying and commenting on police brutality for all of my working life, and I have never seen anything like the vicious and pitiless violence perpetrated by junior moustached officers during the protests by tens of thousands of citizens against Herzog.
It is simply impossible for this to have occurred in the full knowing glare of multiple mobile phones and media without green-lighting from above. Well above.
These young people in uniform were not about to throw away their career by punching, spraying, hitting and charging members of parliament, pensioners and students without very clear clearing clearance. Then there is the harm of assaulting people of the Muslim faith engaged in prayer. After other police approved it.
Then there is the incalculable harm to our freedoms – of speech, of movement, of protest and of association. These have been hard fought by toil and sweat and blood and will be almost impossible to gouge back after this latest legislative salad of criminalisation without evidence.
Yet, of course, there is plenty of evidence as to what works with youth crime – resources for education, safety at home, recreational activity, drug and alcohol counselling, disability support, family counselling, transport options. Almost every repeat young offender has been a victim of crime and has been reported as in need of care.
And I think we all know at least one way to reduce antisemitism pretty quick smart too, only no-one is game to say it. Not really. Not out loud. Not in print. I’ll give you a hint. It has something to do with Gaza. We whisper it to each other in small gatherings checking first to see if we are committing one offence or another.
Science methodology
So, here’s an idea.
Let’s try utilising the same process for criminalisation and penalties as we do for medicine.
Trials, tests, approval and then monitoring. We might actually get somewhere on youth crime and antisemitism if we do. But perhaps, just perhaps, the powers that be don’t want to reduce either. My conspiracy inner voice says – maybe they like it just the way it is.
And to answer a question I am being asked at least 460 times per day – can Pauline Hanson be prosecuted under the NSW rushed hate laws for saying there are no good Muslims? No. Because that legislation protects Jews as intended. But not Muslims, as intended. Surprised?
Professor David Heilpern is SCU Dean of Law and Chair of Discipline, Faculty of Business, Law and Arts.
For four decades The Echo has printed the stories some people loved, some people hated, and some pretended not to read. If you want us to keep telling the truth, the real truth, not the sugar-coated version. We’ll need your support to keep the presses rolling. 
