The South Australian Parliament has passed the Criminal Law Consolidation (Looting) Amendment Act 2012 (SA).   This official précis of the Act says:

This Act provides for aggravated penalties for certain offences under the Criminal Law Consolidation Act. These penalties are specifically enshrined in legislation to deal with those people who loot premises affected by fire or in a fire prone area when an emergency has been declared or when there is a day of extreme fire danger.

In situations where the CFS have warned people in a certain area that their homes and businesses are at risk; and that they need to put in place their bushfire action plan, many people will leave the district. These warnings are publicly broadcast, and those who have a criminal mind therefore know that in those geographic areas a large number of people are not likely to be home. This situation exposes those areas to a higher level of crime.

Also in the immediate aftermath of a fire the authorities are naturally worrying about the basics of life; rescuing people, food, water, shelter and delivering emergency provisions. Experience has shown that the looting of properties in the affected areas is prevalent.

This Act sends a message to looters that their crimes are heinous and totally unacceptable and such activities will attract an aggravated offence with a higher penalty.

The principle behind this legislation is: If a bushfire occurs and premises are ruined, people who then go in and rob at that point need to be sent the strongest message possible that they are preying on people in their time of need and they should be dealt with more severely under the law.

The Act may give some reassurance to people who evacuate their homes in response to fire warnings, but probably not much.  Criminal law is notoriously bad at actually preventing crimes and raising penalties has little consequence unless people think they are going to be caught.

The claim that ‘Experience has shown that the looting of properties in the affected areas is prevalent’ is very much contested.  Looting post disaster has been exposed as one of the myths, rather than realities of disaster response (see for example Lee M. Miller, ‘Controlling disasters: recognising latent goals after Hurricane Katrina’ (2012) Vol 36 Issue 1 Disasters 122-139).

In the second reading speech the Hon I F Evans reported that looting occurs but cited no evidence to that effect and I’m not aware of reports of people being charged with looting.  As Miller noted:

Media images focused on examples of deviance, such as looting, and the capture and punishment of looters not only make for exciting coverage, but also reinforce the definition of looting as unacceptable and provide a warning that violators will be punished. The definition of looting was challenged and racialised when two photographs of people wading through chest-deep water received different captions despite seemingly identical behaviour. The White people had just ‘found’ food and the Black person had ‘looted’ (Kaufman, 2006). Regardless of actual events, the perception based on these images was that race was a factor in defining crime even under the most extreme conditions. These images appeared as troops had taken over New Orleans, Louisiana, presumably because the large minority population there warranted a dramatic presence of control agents.)

The image of looting he argues was used to justify deploying US National Guardsmen to control the population rather than aid it and justified many actions to restrict the movement of affected people in order to retain social control.

The SA Act may serve some purpose if it makes people more willing to evacuate, but not if it perpetuates an unsubstantiated myth or in fact makes people think looting does occur when there is no evidence to that effect.

Michael Eburn

23 April 2012.