Miranda and zero tolerance

My favourite (not) columnist, Miranda Devine, is running a campaign (1, 2) about NSW’s draconian (as she would have it) system of demerit points under which a series of relatively minor infractions within a three year period can lead to loss of your driver’s licence. That can be a very serious deprivation for many people who rely on their licences for their livelihood or, where public transport is poor, basic mobility and social participation.

I wonder how it is that Miranda has just mounted this hobby horse. It so often is the case that when a journalist (and even more, an opinionist) gets interested in something, it is based on a personal connection of some sort. After all, for years, thousands of people have lost their licences for unpaid fines, often quite unwittingly. Then, if they drive without their licence, they commit further offences and get further fines and disqualifications. But this tends to affect the poor, who either do not have the money to pay the fine or who change address more frequently than they get round to notifying the licencing authority, so perhaps it comes less to Miranda’s notice.

Reluctantly, I am tempted to agree with Miranda. Not only has there been an inflation of penalties, but in addition, the ramping up of the panopticon of red-light and speed cameras and improved techniques of police surveillance (generally conducted at places where drivers are likely to drive over the limit, often because everybody is doing it or the road conditions allow it without difficulty), not to mention school zones, especially on major roads, have greatly increased the chances of people losing their licences. It’s not hard to accrue 12 points, which is the licence-losing or -suspending point, particularly if you are at all frequently on the road, as people who drive for their jobs often will be. You can pretty well lose your licence all in one hit if what you do occurs on a holiday weekend when the system of double demerit points is in place.

Incidentally, there will be more trouble (on the fines rather than the points front) later this year, when the concept of a “no standing” zone is phased out in the name of uniformity under the Australian Road Rules, and any remaining zones “automatically” convert to “no stopping” zones. In other words, there will only be no parking zones (where the driver can stop for up to 2 minutes and can leave the car so long as no further than 3 metres away) and “no stopping” zones. But you can just guess which way any changes in these signs will have been implemented: I would be very surprised if any “no standing” zone has been converted to a “no Parking” zone because that simply isn’t the way people who designate parking zones on streets think. Already it is, strictly speaking, almost impossible to be set down or picked up lawfully by a taxi in the city. This is ridiculous, but it is the taxi drivers who have to take this risk. If it were Melbourne, there would be shirtless Indians in the streets straight away once this came into effect.

The thing is that it is great to have laws about all sorts of things, but if laws are absolutely and strictly enforced, life becomes unbearable. To escape the full rigour of the law is, in a practical sense, an aspect of de facto civil liberty. That civil liberty is diminished by the improvement in detection and enforcement. The law which we had is, in legal realist terms, now a different law. Increased penalties only compound the effect.

But this doesn’t only apply to people driving cars. There are other areas where improved detection has brought us closer to perfect (ie, absolute) lawfulness, such as the use of sniffer dogs to detect those with even minuscule quantities of drugs, or the proposed Great Australian Firewall. The GAF, a bit like the No-Standing-No-Stopping slide under the cover of “uniformity,” is being promoted by the the Government as a fulfilment of an election promise (to require ISPs to provide filtering to those who want it) nudged further by Senators Xenophon and Fielding (impose it on everyone for the things that they don’t like). And what government or lawmaker or bureaucrat is inclined to argue against anything that will lead to more perfect compliance with the law? Civil liberties? Only lawbreakers have anything to fear!

In most of these other areas, I hazard a not-uninformed guess that Miranda is a fan of “zero tolerance.” I would be more interested in her campaign about law enforcement against motorists if she widened her perspective to the more general problem of how a perfect lawfulness, enforced absolutely to the hilt and the letter, is not such a good thing as at first it may seem.

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