“Extraordinary powers for extraordinary times”: A conjunctural analysis of pandemic policing,common sense,and the abolitionist horizon

Abstract

In this paper, we offer a conjunctural analysis of policing and incarceration, examining their expansion in relation to structural economic conditions over the last 50 years and interrogating how the sudden onset of the Covid-19 pandemic enabled extraordinary growth in policing powers in the Australian jurisdictions of New South Wales (NSW) and Victoria (VIC). We examine how popular support for police-led responses to crisis and fines as a common-sense solution to social problems were sought during the period that the Public Health Orders were in effect in the two states. We argue that the discursive project of naturalizing the police-led response to the pandemic—via official communications from the state governments as well as media coverage of the pandemic—attempts to further entrench a vision of law and order governance in which infrastructures of discipline and punishment are necessary and inevitable. We identify this vision as a direct barrier to abolition and a significant limit on the capacity to imagine alternative frameworks for justice. We end by considering a small archive of tweets from users in NSW and VIC published on the social media platform formerly known as Twitter (now called X) in 2020–21. We argue that this archive registers the way the common-sense status of the fine as an efficient, effective, and equitable punishment gives way to punitive fantasies about police and prisons. We read this archive alongside the broad refusal to pay Covid-related fines and the ongoing legal disputes contesting the legitimacy of their issuance, concluding by proposing that the conjunctural moment of the Covid-19 pandemic has given rise to unresolved contradictions between the naturalized logic of law and order crisis management and the potential for this logic to come undone.

“I have said before, if you write a ticket, and you get it wrong, I understand, and I won’t hold you to account for that.”

—Former NSW Police Commissioner, Mick Fuller, speaking to NSW police officers in August 2021 during “Operation Stay at Home” (Thompson, 2021)

Introduction

What is the object of abolition? Fred Moten and Stefano Harney offer an instructive response: “Not so much the abolition of prisons but the abolition of a society that could have prisons, that could have slavery, that could have the wage, and therefore not abolition as the elimination of anything but abolition as the founding of a new society” (Harney and Moten, 2013: 42). Abolition is a revolutionary program in which we must imagine—and make—the world otherwise. This insistence on abolition as revolutionary emerges from an understanding of the carceral system not as flawed institutions that can be fixed or reformed but as that which is working as designed—the state-sanctioned reproduction of exclusion, racialization, and violence. The carceral system is an integral infrastructure of state capacity that attempts to resolve the inherent crises of capital which includes surplus populations pushed beyond the safety and discipline of the wage relation. As such, the abolition of capital is inextricably related to the abolition of police and prisons. As Ruth Wilson Gilmore (2020) reminds us, “everything has to change” (p. 171). Everything must change, but change is won. And so we ask, what are the barriers and impediments that abolition movements face? This paper examines the policing of the Covid-19 pandemic in the Australian state jurisdictions of New South Wales (NSW) and Victoria (VIC) which saw an exponential increase in fines issued for breaches of public health orders amongst other coercive policing techniques in the name of crisis management.

To begin a paper about pandemic policing with the invocation of abolition is to announce the horizon this research sets its sights upon. Moreover, it is to draw attention to how the project of winning popular support for punitive measures naturalizes both police and prisons and poses a barrier to abolition. Such a framing invites interrogation of statements made in August 2020 by then-Victorian Police Minister, Lisa Neville, who stated as a matter beyond dispute that police were being granted “extraordinary powers for extraordinary times” (Groch, 2020). The mobilization of a discourse of securitization appealing to a state of exception extends a political paradigm that was formalized in the aftermath of the war on terror and has subsequently shaped political rhetoric across the developed world. This discourse of securitization has worked to entrench and legitimize the expansion of state investment in policing and prisons which are called upon to manage surplus populations. ¹

The instrumentalization of the pandemic by states in order to renew an investment in security was called dramatically into question in the wake of the killing of George Floyd by a Minneapolis police officer in May 2020 and while much of the US was subject to shelter-in-place orders. Riots and protests swept through the US staging a contestation between hegemonic and counter-hegemonic conceptions of order and justice heightened by the pandemic. ² Solidarity actions quickly spread across the world including to the settler colony of Australia where First Nations abolitionists have long been organizing against the killing of Black people by the armed institutions of the state. Calls to abolish police and prisons were suddenly part of popular discourse. But if, as Tabitha Lean reminds us, “abolition is a verb,” then abolition involves not only the dismantling of infrastructures of control but, crucially, the building of infrastructures that support and sustain life (Kilroy et al., 2021). The work of building abolitionist infrastructures operates on a different temporal scale to the protest or the riot; it is a slower process of collective organizing. The discursive legitimation of pandemic policing by states functioned not only as an attempt to win support for a law and order response to the pandemic but to renew and further entrench established logics of law and order governance built around the police and prisons. An abolitionist analysis must attend to both of these functions.

In this paper, we want to consider the fine not just as a fact of contemporary governance, nor a domain of contemporary policing, but as a relation between crisis and its management. “It was neither natural nor inevitable,” Methven (2023) writes, “that criminal sanctions be attached to breaches of public health orders during the pandemic, nor that police assume a central role in enforcing such orders” (p. 56). Methven’s (2023) study analyzes discursive strategies deployed by state officials in NSW in order to rationalize law and order approaches to the pandemic, showing how policing became the “taken-for-granted, common sense response to this public health emergency” (p. 56). What then, enables the naturalization of this response, establishes the fine as an uncontroversial, even desirable penalty, and ensures the inevitability of the police’s involvement in managing the attendant crises borne of the pandemic? And, considering the fact that many Covid-related fines were initially unpaid and more than half the fines issued in NSW were withdrawn in 2022 for breach of the Fines Act, how do we make sense of this particular moment and what it means for the law and order governance? To answer these questions we need to engage in a conjunctural analysis that can directly engage with the moving contradictions that inhere in this moment, and that can take the fine seriously as a tool of crisis management.

Conjunctural analysis names a way of doing cultural studies attuned to the contradictions within the social formation in periods of crisis and upheaval. Conjunctural analysis seeks to distinguish between the structural forces that condition a particular historical moment and the immediate forces that differentiate moments of transformation from their longer durée. The disarticulation of seemingly disparate elements within a conjunctural moment is crucial to any attempt to intervene in common sense, and, by extension, to articulate alternative conceptions of justice such as those advanced by abolitionists. We offer some coordinates for understanding the centrality of policing and prisons in the current conjuncture. We then consider how the policing of the pandemic—in particular the enormous increase in fines—in NSW and Victoria, including the discursive articulations of a police-led response, contributes to a larger project of “winning popular consent” for coercive projects (Hall et al., [1978] 2013: xii). We examine statements made by politicians and government officials that articulate the police-led response to the crisis, arguing that the project of naturalizing the police-led response to the pandemics seeks to further entrench a vision of the state in which infrastructures of discipline and punishment are necessary and inevitable. We conclude by reading an archive of tweets that reveal the common-sense take up of the “strong” policing response to the pandemic, showing that such public comments reveal not only support for particular Covid-policing measures such as fines but index broader support—even desire—for policing and prisons. We argue that what is at stake in the states’ attempts to win consent for their Covid policing measures is the continued expansion of policing and prison budgets, and the normalization of conceptions of justice tied to punishment. In other words, popular support for the policing of the pandemic poses a direct barrier to abolition.

Conjunctural analysis

The conjuncture, for Antonio Gramsci, the Italian Marxist, describes those relations of force that come to bear upon a social structure which “appear as occasional, immediate, almost accidental” (Gramsci, 1971: 177). Gramsci contrasted conjunctural and organic movements, the latter describing relatively permanent tendencies, such as established economic structures and trends. The conjunctural movement is a way of marking acute crisis (such as the onset of global pandemic) from its longer durée (such as the period of global economic stagnation that stretches back to the early 1970s). The concept of the conjuncture would be revived by Stuart Hall, who read Gramsci closely alongside Louis Althusser and Karl Marx to develop a cultural studies methodology attentive to immediate moments of rupture that require analyses of different levels society simultaneously, tracking the relations between the economy, politics, ideology, and common sense. The “conjuncture,” for Hall (1990: 130), names a particular “moment” (as distinct from a period) in which the “accumulation/condensation of contradictions” are taken as the site for analysis of the social formation in and as a temporary totality. In Hall’s deployment of the term, a conjuncture can be long or short, defined not necessarily by regime changes but by the jostling of contradictions. The outcome of a conjuncture is never certain and might involve the reimposition of existing relations or their radical transformation (Hall and Massey, 2010: 57). If the conjuncture describes a moment defined by pronounced contradictions in the social formation, then conjunctural analysis names a framework for examining such contradictions as historically contingent, uniquely related and necessary for understanding crisis (Hall et al., [1978] 2013). More than this, as Gilbert (2019: 15) writes, analysis of the social territories given in a conjuncture is performed in order to “identify possible sites of political intervention.”

That the conjuncture refers to an immediate crisis does not mean that it can be disconnected from the organic movements in the realm of the economy. “The conjuncture,” as Gramsci (1971) defined it, “is the set of immediate and ephemeral characteristics of the economic situation” (pp. 177–179). A conjunctural crisis might give way to an organic crisis, which describes the breakdown of the social order on multiple levels simultaneously, creating a crisis of hegemony that usually leads to a radical transformation of the existing social order. But a conjunctural crisis may remain just that, defined instead by ongoing contradictions across different registers of daily life that condense in a specific moment. Gramsci’s distinction between the conjunctural crisis and the organic crisis is designed to caution us against explanations that appeal solely to ideology or economic determinism. One of his central insights is that analyses of politics and power must attend to the dynamic relations between economy and ideology, base and superstructure. As Denning (2021: 31) reminds us, Gramsci’s theory of politics begins not “from the classic concepts of political science: state, party, sovereign” but rather “from a simple but profound idea: that everyone is a legislator,” a term he treats broadly to describe an activity that seeks to change social reality. Everyone is a political actor because everyone contributes to transformations of the social even if those contributions are differentially weighted depending on our standing.

Political power sees contestation not only over the means of production but also the project of winning the consent of legislators. In this formulation, economism and ideology function in a feedback loop. The means of production determine social relations and so give rise to ideological positions that seek to naturalize capitalist relations; in turn, ideology shapes the subjectivities of those that play economic roles in the reproduction of capital, meaning that ideology also impacts on modes of production and changes to capitalist accumulation. The emphasis on ideology brings us to hegemony, which for Gramsci describes the way ideological elements are arranged into a unified system that serves power. His political science moved from the level of the individual through the economy to the state which seeks to produce hegemony as a central feature of rule. The state, as Gramsci (1971: 244) put it, is “the entire complex of practical and theoretical activities with which the ruling class not only justifies and maintains its dominance, but manages to win the active consent of those over whom it rules.” This project of winning consent takes place in distributed sites that include law, policy, state discourse, news media, and culture. Consent only becomes hegemonic settlement when, as Stuart Hall explains, “ideology captures or ‘hegemonises’ common sense; when it becomes so taken-for-granted that its ways of looking at the world seem to be the only ways in which ordinary people can calculate what’s good and what’s not, what they should support and what they shouldn’t, what’s good for them and what’s good for society” (Hall and Massey, 2010: 62). The conjuncture, then, provides a moment of rupture in which political, ideological, cultural and economic forces condense into contradictions that unsettle hegemonic power. The task of the intellectual (and the difficulty they are confronted with) is “to find the correct relation between what is organic and what is conjunctural” (Gramsci, 1971: 177) in order to understand what political interventions are possible.

Policing the Crisis: Mugging, the State and Law and Order—published in 1978 and written by Hall in collaboration with Chas Critcher, Tony Jefferson, John Clarke, and Brian Roberts—is, we might say, the paradigmatic conjunctural analysis. The book takes the slippery term “mugging,” which suddenly appeared in the British public imagination and media representation in the 1970s—collapsing crime, youth, and race into a single sign—as a phenomenon that could be analyzed to understand the social formation at a critical moment of economic transformation. Such a study is necessarily broad in its scope, considering the complex relationships between law, policing, media, and politics and the social, economic, and cultural forces that underwrite moral panic, common-sense, and consent to certain modes of governance. In tracking the phenomenon of “mugging” in that particular conjuncture, Hall and his co-conspirators trouble the common-sense idea that mugging sprang forth as an epidemic, instead showing us how the actions of disciplinary institutions such as the police and the courts became fused with apparatuses of signification such as the news media to produce a moral panic which, in turn, provided an opportunity for the imposition of law and order governance and ideology:

contrary to the ‘common-sense’ view of how ‘mugging’ arose, this must be seen as occurring in two distinct phases. First, the period of preparation for the ‘war on mugging,’ a period of little or no publicity, but of intense police mobilisation on the ground, targeted around particular urban trouble-spots (the underground stations and trains in London) and particular groups defined in the view of the police as ‘potential muggers’ – above all, groups of black youths. It is this period of closed but intensifying police reaction, when there is an institutional definition of ‘mugging’ already in operation, but as yet no ‘public’ definition which produces, as its effect, the second phase: cases in court, editorials in the papers, official Home Office enquiries about ‘mugging,’ a publicly engaged campaign, open warfare. (Hall et al., [1978] 2013: 45)

One of the great insights of this conjunctural analysis is to draw our attention to the way spheres often considered relatively autonomous—police, courts, media and economics, politics, ideology—are drawn together in a conjunctural moment. Such agencies and institutions, writes Hall and collaborators

do not simply respond to “moral panics.” They form part of the circle out of which “moral panics” develop. It is part of the paradox that they also, advertently and inadvertently, amplify the deviancy they seem so absolutely committed to controlling. This tends to suggest that, though they are crucial actors in the drama of the ‘moral panic,’ they, too, are acting out a script which they do not write. (Hall et al., [1978] 2013: 55)

The pandemic is a moment in which a series of crises playing out on different levels—economic, political, social, health—condensed to produce contradictions that unsettled the status quo. The response to this rupture was articulated simultaneously across legislation, policing practices, state discourse, and media and sought to produce a hegemonic settlement around the idea of law and order governance. We will return to this analysis later in the paper but first we must trace the organic phenomena that underpin the current conjuncture.

Historicizing the current conjuncture: Four surpluses

The current conjuncture emerges from a period of sustained economic stagnation that stretches back roughly 50 years as global manufacturing entered a period of decline and capitalist accumulation shifted to a phase dominated by circulation, producing cyclical boom and bust crises that continue today. For Gilmore (2007), the prison-industrial complex has become essential to capitalist accumulation under these conditions. She argues that the contemporary carceral system enables the inherent contradictions that arise from overaccumulation to be temporarily resolved. As Marx (1990: 798) teaches us, the inherent contradiction of capital is that accumulation depends on the shedding of labor, despite the fact that labor power is the sole source of surplus value. For capitalist accumulation to continue, old lines of production must shed both labor and capital, which are then put to work in new locations to restart expanded lines of production. But this dynamic poses a limit for capital. When surplus capital cannot be reinvested in new lines of production because these have already been exhausted, it begins to build up in the system alongside the surplus labor it has expelled, producing a crisis of overaccumulation. In the current moment, surplus capital and surplus labor coincide with surplus state capacity (which emerges from the dismantling of the social wage) and surplus land (the legacy of colonial dispossession and/or the gradual decline of certain land-intensive industries). For Gilmore (2007), the growth of the prison-industrial complex is one attempt to balance these four primary surpluses: labor power, finance capital, state capacity, and land.

While Gilmore’s analysis is specific to the US state of California, her framework for understanding the expansion of prisons and policing holds in the Australian context, which has seen a dramatic rise in the total prison population since the 1970s, with more than 40,000 people currently imprisoned and many more flowing through the system each year (Productivity Commission, 2021). The growth of prison populations in Australia highlights the local manifestation of a global conjuncture in which the protracted downturn of markets has left the Keynesian apparatus in disrepair. Australian Treasury reports show that productivity growth has slowed since the mid-2000s, stagnating around 1.2% per annum as the impacts of economic restructuring in the 1980s catch up with the economy (The Australian Government the Treasury, 2022). Real wages—an historic marker of Keynesian stimulus—have stagnated and declined over the past decade, with growth of only 0.5% per annum between 2013 and 2018, and a decline of 4.5% in 2022 as we enter yet another inflationary crisis (Gilfillan, 2019; Hutchens, 2023). The decline in productivity in the 1980s prompted a wholesale economic restructuring (which is always also a restructuring of the social). The Prices and Incomes Accord of 1983 in which Australian unions agreed to restrict wage demands in return for government pledges to minimize inflation is a crucial example of the shifting strategy for managing economic crisis. Under the Accord, the union movement was brought within the apparatus of the state, legally (and willingly) giving up the right to take industrial action by fixing wage rises to inflation (Humphrys, 2019). This paved the way for future legislative reform restricting the right to take industrial action to active bargaining periods and according to several prerequisites set out in the Fair Work Act (2009).

Ongoing downturn reached a tipping point with the global financial crisis of 2008 which saw the expansion of state debt burdens in an attempt to stimulate economic activity. This period also saw the intensification of the dismantling of the social wage that began in the 1970s and 80s, coupled with the introduction of new austerity measures to slow the growth of expanding public debt. Such transformations have rendered a growing portion of the population surplus to the needs of capital and without access to the safety net of state welfare, a situation which marks them out as increasingly vulnerable to the disciplinary infrastructures of policing and prisons. Despite the temporary return to fiscal stimulus prompted by the sudden onset of the Covid-19 pandemic, Australian Government gross debt has continued to grow from $534.4 billion in March 2019 to $894.9 billion as of October 2022 (O’Brien, 2022).

Incarceration rates in Australia rose by 130% between 1985 and 2018 despite falling crime rates across the same period, in turn driving the construction of new prison projects and the expansion of policing budgets (Leigh, 2020: 15). That this has occurred alongside the sustained weakening of the welfare state indicates the uptake of a form of post-Keynesianism carceralism that resembles, albeit in shrunken form, the policies found in the capitalist core. Gilmore’s (1999) diagnosis of the transition from Keynesian welfare to post-Keynesian warfare state in the US context is animated by the realization that “the state’s capacity to discipline labor was politically and economically more important than the state’s capacity to guarantee a decent share of surplus value” (p. 179). In Australia, a similar desire to discipline labor emerged from the build up of surpluses arising from the recessions of 1974–75, 1982–83, and 1991–92. In addition to providing an avenue for resolving the crisis of overaccumulation, the rhetoric of law and order proved popular with voting publics encountering greater levels of economic uncertainty and insecurity.

The rising rates of incarceration and growth of police and prison budgets account for the ongoing push for carceral expansion, including the 1700-bed Clarence Correctional Center that was opened in 2020 as a public-private partnership between the NSW state government and Serco, producing 1100 construction jobs and 600 operational jobs (Infrastructure NSW, n.d.); the recently completed extension of the Silverwater Metropolitan Remand and Reception Centre (MRRC) that has increased the capacity of the prison by more than 400 beds, creating an extra 200 jobs for Correctional Services staff (NSW Government, 2021); and the proposed development of the Dame Phyllis Frost Centre in the north-west of Melbourne which will create more than 100 new beds and 130 new jobs during the construction phase (Victorian Government, 2021). In short, police and prisons enable surplus capital to be reinvested in infrastructure projects that promise job creation, allow for the disciplinary management of surplus populations, put “surplus” land to use in ways that entrench what Moreton-Robinson (2015) terms the “possessive logic of patriarchal white sovereignty,” and provide an avenue for the reconfiguration of state capacity away from prior forms of welfare provisioning and toward punitive and disciplinary infrastructures.

Arguments that focus on the expense of the prison-industrial system as evidence of the need for reform tend to fail at transforming popular and political discourse precisely because the prison-industrial complex is integral to the capacity to resolve the recurring surpluses of capital (Committee for Economic Development of Australia, 2022; Karp, 2022). Such arguments commonly appeal to statistics that show the inefficiency of the carceral system, for example, the Australian Productivity Commission report that shows incarceration costs Australian taxpayers more than $5 billion per year or more than $330 per prisoner per day (Productivity Commission, 2021), or its 2021 report that demonstrated investment in justice services (police, courts, and corrective services) was $20.9 billion in 2021, up 4.5% from the year earlier and accounting for about 6.9% of total government expenditure (Productivity Commission, 2022). As Mark Steven (2021) puts it: “With capital comes prisons and with prisons come the cops.” Here we encounter rigid structural barriers to the push for abolition.

In the 2021–22 state budget, the NSW government announced $4.7 billion in funding for the NSW Police Force, “including a record capital expenditure of $389 million” (NSW Government, 2021). The budget includes $41.5 million for an additional 250 police officers which is part of a $583 million commitment by the NSW Government to recruit an additional 1500 police over the next four years. The 2021–22 Victorian state budget allocates $3.9 billion to Victoria police, including $342 million to fund an additional 502 police and 50 Protective Service Officers (PSOs) over the next two  years (Victorian Government, 2022; Victoria Police, 2022). These bloated budgets occur within increasingly austere state governments experiencing reduced funding from the Federal Government and requiring supplemental revenue streams (Cooper, 2018). It is in this context that the fine, a monetary penalty increasingly issued on-the-spot by police and a source of revenue for debt-laden governments nonetheless committed to law-and-order spending becomes an urgent object of study for abolitionists. The growth of fines, as Melinda Cooper (2018) has argued, can be understood as “a way of transferring the debt burdens of the state downwards, onto those classified as excessive ‘users’ of public services” (p. 187). The case of Covid-related fines provides an opportunity to analyze how policing, and therefore the fine, become naturalized via carceral logics and economic rationalism as the default solution to crisis. The fact that, in NSW and VIC, the dependence on fines to manage the pandemic has come under public scrutiny only serves to highlight the disconnect between the common-sense perception of the fine and the fine in its actual operation as a tool of crisis management. In other words, whether or not Covid fines have or will translate into state revenue, the management of the pandemic through law and order approaches that depend on economic logics is the subject of our investigation: we are interested in how common-sense comes into being, despite—or especially—when it is most obviously contradictory.

Fines

A fine is a monetary penalty, a cost for action. It is a form of punishment that generates state revenue, as well as a technology of governance that catalyzes various additional bureaucratic and administrative processes. By a large margin, in Australia, the fine is the most frequently imposed sanction (Australian Bureau of Statistics, 2023). The range of offenses that attract a fine is ever-increasing at the same time that the discretionary power to issue fines is expanding to include different intermediary agencies (e.g. NSW transport, police community support officers). As Quilter and Hogg (2018) note, this “massive downward classification of offenses and curtailment of the courts” role has largely escaped public notice and has been the subject of little critical inquiry (p. 13).

One reason that the fine has failed to attract critical attention is that it appears to be an uncontroversial form of punishment. In fact, fines are imagined to be so efficient and non-intrusive as to be non-punitive (Brown et al., 2017: 255). Pat O’Malley’s influential account is of the fine as a form of “simulated” or “monetised” justice, or as Brown et al puts it, a “technology of freedom suited to a consumer society” (Brown et al., 2017; O’Malley, 2009: 254). Against this popular idea of the fine and considering both its increasing ubiquity and the expanding sites in which it can be issued, critical interventions have aimed to show that fines are inefficient, unequally and prejudicially issued across different social groups, disproportionately harmful to already vulnerable people, and cause a “net-widening effect” by inaugurating contact with the criminal justice system. Fines, as these scholars have shown, can lead to criminalization, incarceration, and even death (Blue, 2017; Brown et al., 2017; Cooper, 2018; Methven, 2014; Porter, 2015; Schwartz, 2017; William and Gilbert, 2011). Critical scholarship examines how fines are used by police to target minoritized communities and to unevenly discipline access to public space. Fines accord police considerable discretionary power and the capacity to issue punishment without recourse to the court’s decision-making processes. As Methven (2018) notes, police officers are often both the witness and the “victim” of an alleged offense—for example, where offensive language crimes are concerned, the police themselves are frequently recorded as the targets of swearing. For this reason, fines can be understood as a technology of policing which, with very little to no oversight, can be used to enact racism and other forms of group-based harm. More than this, fines are productive of censorious and moralized norms that govern everyday life in public space, as well as generative of novel sites for policing and administrative labor in an ever-expanding web of bureaucratic systems.

Methven traces the history of the fine in NSW over the last 30 or so years, showing how commissioned reports from the NSW Ombudsman and the NSW Law Reform Commission have consistently been ignored for their warnings and recommendations. Methven (2014) writes that it is not only that the insights generated by these reports have been ignored, but that it would take a radical sort of political courage within the government itself to engage with them directly “in a state where criminal laws are dictated more by hard-hitting law and order slogans than evidence-based research” (p. 255). She notes that when legislation introduces new offenses, confers higher penalties, and/or affords police more power, there is no evidence given to justify these various expansions of the fine’s reach, nor to show that such expansions will have the intended effect of deterring so-called offensive behavior. The fine, therefore, is a problem whatever way you look at it: even within governance itself. We argue that the fine must be understood as part of a continuum of law and order governance that includes the prison industrial complex and that is managed by the institutions and infrastructures of policing. The solution to the problem of the fine, therefore, is both simple and difficult: it, too, is an object for abolition.

Barriers to abolition are not only structural, but also discursive and imaginative. The project of abolition requires an orientation toward action, but this necessarily also entails the confrontation with habituated discourse that locks popular imagination into believing that carceral solutions are the only mechanism to manage complex social problems. If, as Debbie Kilroy tells us, policing and prisons “have become the default response for homelessness, mental illness, drugs and alcohol, poverty,” then we face the challenge of combating the notion that institutions of control are the only mode of combatting crisis (Kilroy et al., 2021). Abolitionist struggle takes aim at carceral institutions, the states that wield them, and the ideological frameworks that grant them legitimacy. This is a lesson we learn from Policing the Crisis, in which the authors argue that power includes “not only the capacity of institutions to practice authority, but also their ideological and cultural power to signify and thus give events a social meaning, and to win society to their ‘definition of the situation’” (Hall et al., [1978] 2013: xii). Such a task is challenging when we consider the naturalization of hegemonic ideology as common sense. Hall offers a useful example of this process in relation to the credit collapse of 2007–08: “‘Market forces’ was a brilliant linguistic substitute for ‘the capitalist system’, because it erased so much, and, since we all use the market every day, it suggests that we all somehow already have a vested interest in conceding everything to it. It has conscripted us” (Hall and Massey, 2010: 64). Here we might say that “law and order” has been a brilliant linguistic substitute for “capitalist inequalities” (as Kilroy makes clear), erasing the differential exploitation that capitalism relies upon for value extraction while soliciting a vested interest in the maintenance of security and safety.

Policing the pandemic

The response to the pandemic in NSW and VIC was not only police-led but took a punitive approach to policing that involved the creation of new offenses, the criminalization of uses of public space, the mass issuing of fines, the enforced lockdown of public housing, and the expansion of street policing powers which resulted in an increase in stop and search incidents (Boon-Kuo et al., 2021: 78–81). Already existing police biases were intensified with this expansion of discretionary powers. The heavy-handed approach to policing privileged punitive and coercive techniques rather than engagement and education, as was official policy (if not practice) in places like the UK (UK Metropolitan Police, 2021). Winning support for a police-led approach to public health preemptively emphasized the non-compliance of certain sections of the population and asserted the introduction of new laws and sanctions as both necessary and desirable. Consider the justification of expanded policing powers and the targeted lockdowns of specific Local Government Areas made by the former NSW Police Minister, David Elliot: “There’s no silver bullet when it comes to responding to the virus, but the police have said to me that this will make policing a lot easier” (Clarke, 2021). Here policing is equated with the containment of the virus; the justification of expanded powers does not involve an account of how and why policing will curb transmission but rather begins from a position in which policing is already naturalized.

Boon-Kuo et al. identify three inter-related sites of Covid policing in NSW and VIC:

The first site is new criminal offences created by Public Health Orders (for example, the offence of being in public without an excuse). These new offences give police expansive discretion to decide what conduct ought to be considered an offence and reflect the practical indistinction between criminal offences and police powers (Dixon, 1997). The second site is the new, explicit police powers of intervention or ‘enforcement,’ including powers to give warnings, make compliance checks and return people to their homes. Lastly, existing police powers form part of the legal resources available to police (Dixon, 1997, p. 11; Ericson, 1982, pp. 3–11, 206) alongside COVID-tailored provisions. (Boon-Kuo et al.. 2021: 78)

The creation of new laws, enacted through the use of emergency powers that circumvented parliamentary processes, imbued police with pre-emptive powers to assess and contain risk according to often-vaguely articulated and frequently changing public health orders. Data obtained by the Guardian shows that 71 amendments to the public health orders in NSW were made between July and October 2021, with many more changes taking place over the extended Covid-19 period (Knaus, 2022). Methven (2023) points out that “the swift passing of public health orders and their frequent amendment as the pandemic unfolded resulted in a communication gap between the texts of the public health orders, government advice regarding their content, and the policing approach being undertaken” (p. 58). Here we can see that the criminalization of the failure to comply with public health orders is not simply about the enforcement of established law but requires police to define and interpret the law in situ. The rate at which public health orders were subject to change during the initial waves of Covid amplified the always-present discretionary power of policing (Boon-Kuo et al., 2021: 78).

In NSW and VIC, failure to comply with public health orders or public health directives is a criminal offense that, in VIC is punishable through fines, while in NSW is punishable via both fines and, in some cases, up to six months imprisonment (Public Health Act 2010 (NSW) ss 10, 70, 113; Public Health and Wellbeing Act 2008 (Vic) ss 203, 193, 188, 183). The Guardian reported that in VIC, police issued more than 50,000 Covid-related fines for various breaches of public health orders (Australian Associated Press, 2022); in NSW, the total amount of fines was in excess of 62,000 (Mitchell, 2023). In March 2022, an ABC report revealed that the majority of fines issued in VIC during 2020 and 2021 remained unpaid (Silva, 2022), and in May 2022, it was reported in the Sydney Morning Herald that 75% of fines issues in NSW were unpaid and that many had progressed to the enforcement stage, in which people faced the possibility of having “their possessions seized, money taken from their bank accounts, their car registrations cancelled and their driver’s licences suspended” (Fitzsimmons, 2022).

In November 2022, Revenue NSW announced that 33,121 of the total fines issued would be withdrawn following a test case in the NSW Supreme Court lodged by Redfern Legal Centre which successfully argued that fines issued during the 2021 lockdown were invalid because they did not adequately describe the alleged offense as required under the Fines Act (Mitchell, 2022). Despite the Supreme Court findings recommending that the remaining Covid fines be withdrawn, the NSW government has yet to do so, opting instead to manage requests for cancellation of outstanding fines on a case by case basis. This response has been criticized by Redfern Legal Centre, which argues that the ruling applies to all Covid-related fines and that, further, the case of Covid fines reveals systemic problems in the state. Senior solicitor Samantha Lee, from the Centre, put it this way: “The judgment is not just about the need to withdraw invalid fines, but it has highlighted that the current penalty notice system in New South Wales is not fit for purpose and has huge legal flaws because fines (not just Covid fines) fail to meet the legal requirements under the Fines Act” (Knaus, 2023). In VIC, calls for the state to withdraw its remaining fines have as yet gone unheard, despite a report showing that negatively racialized people were disproportionately fined during the peak period of the pandemic (Ore and Kolovos, 2023).

How are we to read first the unpaid fine and second the withdrawn fine as opening up space in which it is possible to intervene in common sense, to see more fully the contradictions inherent in the fine? We read in the unpaid fine both the inequity of a monetary penalty as a form of punishment that is radically uneven in its impact, as well as a refusal to accept the fine as form of crisis management during the pandemic; in addition, we read the withdrawn fine as exemplary of the tension between the fine as a discretionary tool for policing and the consequences of that discretion on both the law and its enforcement. It is too soon to know what the lasting consequences of the pandemic will be, but we take seriously this moment in which the common-sense of the fine has been unsettled. Whether the fine may be further unsettled will remain to be seen, and will depend, in no small part, on the work of abolitionist organizing.

The deployment of exceptional measures during the pandemic was framed by officials as a necessary line of defense, with NSW Deputy Police Commissioner Mal Lanyon announcing the expanded police powers under Operation Stay-At-Home in 2021 through conflict metaphors: “It’s a war on the virus. . . we are deploying so many people and it shows the seriousness of the situation at the moment” (Bouda, 2021). This war metaphor, it should be noted, was literalized in August 2021 through Operation Covid-19 Assist, when 300 members of the Australian Defence Force were deployed to work alongside police and NSW Health to enforce lockdown measures and stay at home orders in eight local government areas of “concern.” It should come as no surprise that police power was wielded along race and class lines, with the deployment of police and the distribution of fines overwhelmingly targeting towns and suburbs with low socio-economic composition and high Indigenous and migrant populations, including Walgett, Brewrrina, Wilcannia, Coonamble, and Mt Druitt (Rachwani and Evershed, 2022). The discursive normalization of policing involves the repetition of the identification of aberrant actors positioned as risks to an imagined general public. It has also involved the reiteration of appeals to a “strong” policing response by state officials—take, for example, then-Police Commissioner Fuller during the announcement of Operation Covid-19 Assist: “you can expect to see more police on the ground; you can expect to see more enforcement” (Pearce, 2021). This official discourse found its way onto social media platforms such as X (formerly Twitter), with some users posting in support of a police-led response and for the fine as the default punishment. This will be the subject of closer analysis below.

In addition to the widespread use of fines as a mechanism of control, in VIC, hundreds of police officers were deployed to nine public housing towers in the inner-city Melbourne suburbs of Flemington and North Melbourne to secure the buildings and enforce a lockdown of its inhabitants in July 2020. The stated justification for the police presence and lockdown of residents was the risk of potential spread of Covid-19 in the high-density buildings. The “hard lockdown” meant that roughly 3000 people were forbidden from leaving for any reason and the immediate implementation of the “Detention Directives” meant that residents were also prohibited from preparing for the lockdown by leaving their homes to buy food, medicine, or other essential supplies. The restrictions lasted for five days at the Flemington towers and 14 days in North Melbourne. Residents of Flemington and North Melbourne living in private housing, including similar-sized apartment complexes, were not subject to the same lockdown measures and could leave home for the four reasons specified in the Victorian Government’s stage three restrictions: shopping for food, exercise, work or education, and medical care or caring responsibilities. The policing of public housing calls into question the deployment of state resources which might conceivably be directed toward the cleaning and maintenance of these spaces, as well as the distribution of resources necessary for safely navigating outbreaks, for example, food and supplies, medication and hygiene products, masks and access to speedy Covid-19 testing services. The differential treatment of public and private residents once again draws attention to the uneven experience of policing, highlighting the way the policing of the pandemic has enabled the entrenchment of existing biases and inequalities.

Boon-Kuo et al. (2021: 80–81) have argued that searches conducted as part of Covid-related stops in NSW surged despite there being no special search powers mandated. NSW law decrees that police may conduct a search if there is reasonable suspicion of possession of drugs, weapons, or stolen items, or possession of anything that has, or could be, used in the commission of an offense (Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 21). Boon-Kuo et al. (2021) have shown “that 45% of all people stopped for a COVID incident in NSW were searched,” meaning that “COVID policing in practice has been heavily consisting of stop and search” (p. 80). They continue: “not only this, the disproportionate searching of First Nations peoples reflects COVID policing as an extension of everyday racialized policing. Of all First Nations people recorded as having been stopped, a staggering proportion—almost 74%—were then searched by police” (Boon-Kuo et al., 2021: 80–81). The punitive response to the pandemic has not only seen the widening of police powers, the creation of new offenses, and a dramatic surge in the issuing of penalty notices—justified through the discourse of a state of exception—but also the over-deployment of existing police powers under the guise of emergency measures.

An archive of common sense

Fines can be understood as part of the “documentary infrastructure” (Grealy, 2022: 174) of settler-colonial governance. The ubiquity of fines speaks to the use of administration as a form of policing and state-managed punishment. On the one hand, the capacity for police to issue an on-the-spot fine diverts administration away from the court system; on the other hand, the administrative procedure for challenging a fine is complex and rarely pursued (Quilter and Hogg, 2018: 15–16). The paperwork through which the fine is managed at once increases police capacity and constrains the capacity for those fined to challenge their status as having committed an offense. The fine is a penalty that is managed through paperwork; more than that, it is a penalty for which paperwork is the medium of punishment (and also the means of disputing it). The policing of the pandemic calls attention to the fine as documentary infrastructure and, in particular, to the paradoxical status of the fine that derives from the assumption that its “paper” form renders it a safe and fair punishment, an assumption that obscures the violence that its very paperness facilitates.

So far, we have argued that political and media discourse around state government responses to the pandemic worked to reinforce and naturalize policing as a common-sense response to the Covid-19 emergency. In Policing the Crisis, Hall et al. ([1978] 2013) describe common sense not only as part of ideology but as the form in which ideology is carried: common sense assumes that things are—or ought to be—the way they are according to rarely specified notions of what is natural and rightful. Where ideology is most powerful, in other words, is where it appears as its opposite or absence. Fines appear a common-sense punishment only when they are seen from within a larger ideological structure in which policing is naturalized as the logical response to social crisis and in which criminalization is understood as the logical response to the many different ways in which social crisis is experienced.

In what remains of this paper, we will offer a cursory study of a small archive of tweets that emerged during the pandemic, amidst social isolation and rolling lockdowns—an archive we are considering as a suggestive example of how the fine is taken up imaginatively in ways that confound their presumed function and their reputation as fair. Methven (2023) points out that over the course of the pandemic and with new legislation passed for its management, the general public interpreted health orders not via direct engagement with the frequently changing legislation which was presented in technical legal language but through daily press releases and social media that often recontextualized the orders (p. 63). Social media platforms like X became central sites for the interpretation, navigation, and contestation of legislation and its representation by state governments and media outlets. As well as a site for the decoding of public health orders, social media can be read as an important archive of the affective dimensions of crisis, insofar as users take to X, for example, to express themselves and to seek recognition in doing so. Our focus is on this affective archive, reading it as one way of apprehending the (in-process) formation of common-sense in relation to police-led state responses to the pandemic. Many of the tweets we collected via hashtags, keyword searches, and in response to official announcements via government accounts, garnered little attention in the way of likes or reposts: these tweets are not indicative of texts central to or influential over pandemic discourse. Nor are they offered as incontrovertible evidence for the (re)production of hegemonic ideology: they are, instead, intended to be read as indicative of the processes through which ideology is refracted through everyday language and affects and through which we can observe the inherent contradictions that ideology seeks to obscure. Nevertheless in their registration of everyday feelings, opinions, and desires, they represent an important dimension to how the pandemic discourse was participated in across diverse sites of communication, and how the common-sense logic of policing the pandemic operated to imbue X users with a sense of justice and with a responsibility to adjudicate behavior accordingly.

Consider the following tweets as indicative of this archive:

Probably one of the 1,000 who refused testing in Victoria hotspots. Should be fined outright. Even deserves jail! (@TheStarfish2, 26 March 2020)

The “super spreader” who refused to isolate in Sydney should be fined $100k and spend 2 years in jail also, if it can be proven that it was because of him spreading it caused the death of someone, he should be charged with manslaughter! (@archiemfromoZ, 16 December 2021)

And someone returning from Sydney, who broke quarantine and mixed, started the latest outbreak in NZ and now we are stuffed! They should be fined and locked up or sent back . (@h_81, 24 October, 2021)

No good at all. Those breaching any CHO or Premiers orders, should be fined $5000 and quarantined for 6 weeks on stale bread and Sydney Water. (@myknittingwool, 8 September 2021)

this is disgusting every one of them should be fined at 5 times the going rate for breaking the border, why are planes being allowed in from Sydney, they should be turned back on the runway! (@ShaunNewman2, 31 August 2021)

These two created havoc not only to NSW and Sydney but sadly to the whole country. They should be fined and jailed for their stupidity and carelessness. (@kumag, 18 December 2020)

I have friends in #Melbourne Melbourne who think people carrying the #CovidVic virus who do not stay at home, should be fined $18,000 and lose their driver’s license. Same penalty as for drunk drivers in Victoria. I totally agree. What do others think? (@jessicacadams, 31 July 2020)

It’s so frustrating, they should be fined and jailed. I self isolated for two weeks when I arrived home from Asia in February, and again after I was exposed to the virus in a flight from Melbourne in March. I am tired of being punished for the morons in this country, that’s all (@MissJackx, 18 June 2020)

People who go out & travel for any reason or lie about their activities, knowing they are infected with covid, should be fined & quarantined - IN JAIL.

Time to get tough Australia.

They are screwing our lives & our economy.

I am sick of it. (@wandalouh, 21 July 2021)

That Victorian couple in Australia who broke Covid rules and drove across borders should be fined heavily and/or jailed. (@AnneCli31323222, 10 June 2021)

They should be fined many thousands dollars and locked up for 6 months. The amount of economic damage if those states have to lockdown could total $Billions. #Selfish (@crispi_1971, 9 June 2021)

What right does this chick have to risk prolonging lockdown for the rest of Victoria & possibly the whole of Australia? Anybody that breaks the law should be fined or arrested. Being pregnant is not a “get out of jail” freebie. (@peejsaid, 3 September 2020)

I don’t think it will come to that but the Victorian government needs to be sacked and anyone not obeying the rules should be fined $10,000 and spend a year in prison and if you’re from overseas a $10,000 fine a year in prison and a 10 year ban from Australia (@mightymick1981, 19 July 2021)

Selfish friggin idiots. This is only going to extend lockdown. They need to be fined, jailed and - if they catch Covid - not provided medical assistance ahead of people who have been doing the right thing. (@callingoutthee1, 21 August 2021)

These tweets accept the state framing of a police-led pandemic response and the fine as an appropriate method for ensuring adherence to health orders. In different ways, they express frustration and anger with perceived transgressions of the rules in place, and with the individuals or organizations whose transgressive behavior is collectively punished through extended lockdowns and the threat of punishment. On first look, we might say, these tweets are indicative of the fine at work as a common-sense response to the pandemic: if fines are the dominant form of punishment for breaching public health orders, then they ought to be issued in instances of those orders being breached. And yet, on another look, something else becomes apparent. The fine is evoked not as a form of a punishment in its own right, but as a form of punishment that opens the door to further, more extreme, forms of punishment issued via fantasies that internalize and extend the logics of law and order: fines and quarantine, fines and imprisonment, fines and surveillance, fines and loss of license, fines and criminal charges of manslaughter, fines and deportation, fines and the withholding of medical care. These fantasies problematize the apparent common-sense logic of the fine as equal, uncontroversial, fair, efficient, and non-punitive. Such fantasies affirm the historical trajectory of fines and incarceration as forms of punishment that do not displace one another but rather grow in tandem: the fine as a revenue stream for debt-laden states, the prison as a necessary infrastructure for the resolution of surplus, and the police as the oil that keeps the machinery running.

Or perhaps, to say it more suggestively, the exaggeratedly punitive fantasy shared across these tweets reveals “common sense” to be far less about reason and far more about complex attachments to and identifications with hegemonic power. Specifically, such fantasies show us the internalization and naturalization of coercive approaches to social order and justice. The task of intervening in common sense, then, is less a task of dismantling a concrete truth but of demonstrating the grounds on which the contradictory elements of the truth-claim are founded and felt. Perhaps here we see one site for intervention into common-sense understandings of the fine as a natural-enough penalty or functional medium for the management of health emergencies. Our intention in this paper has been to trace the relation between the issuing of fines and the expansion of policing in relation to the pandemic, the discursive justification for “strong” policing solutions to the health crisis, and the longer trajectory that has seen the entrenchment of police and prisons as naturalized responses to the surpluses that arise from stagnating capitalist growth.

Conclusion: The horizon of abolition

What does the state response to the Covid-19 pandemic mean for the project of abolition? Today, as governments pursue a return to “normal,” we have seen public health orders dropped (sometimes against the advice of medical officers) and the withdrawal—or push for withdrawal—of Covid-era fines. We have seen a shift away from policing as a strategy for managing the pandemic and toward a reinstatement of “business as usual.” And yet, the long-lasting impacts of the policing of the pandemic—the legacies associated with the expansion of police power and the introduction of new penalties—will continue to be felt unevenly.

We call for the immediate withdrawal of all Covid-related fines. Taking this one step further, we call for the abolition of the fine as a first step toward the abolition of policing and prisons. Here we can point again to the disproportionate harm to vulnerable people, pushing against the notion of the fine as a price signal that is fair and equal: both the unpaid fine and the withdrawn fine offer a way to intervene in this notion and to articulate a vision for the fine’s abolition. The contemporary deployment of the fine is at odds with the vision articulated by Chicago and Virginia school economists such as Gary Becker, who theorized it as an instrument of discipline that would displace reliance on the prison, a cost inevitably transferred to the taxpayer. Yet, as Cooper (2018) points out, rates of imprisonment and monetary sanctions have increased in Australia at the same time (p. 189). The fine is part of the continuum of state power, becoming a revenue stream for an “increasingly austere and deficit-averse state” rather than alternative to prison (Cooper, 2018: 189). In the jurisdictions of NSW and VIC, the uneven impacts of the fine mean that those unable to pay are bound up in further legal processes or some are subjected to “work and development orders” in which they are compelled to labor, study, or receive treatment to pay off their debt. The call to abolish the fine is a call for the abolition of an instrument of regressive taxation that amplifies existing inequalities under the guise of fairness.

Our intention in this paper has been to sketch some of the ways that policing (both in relation to fines and other forms of discipline) has become a naturalized response to crises in our current conjuncture. This naturalization not only shapes the way subjects differentially experience particular crises but also works to normalize a vision of the state that depends upon coercive forms of punishment. We have shown that policing and prisons are crucial sites for a state’s capacity to resolve the crisis of overaccumulation endemic to capitalism, while the logic of securitization emerges from, and rationalizes, this expansion. The articulation of law and order politics is carefully managed by the state and reinforced by media with echoes across social media platforms. Ongoing attempts by the state to control narratives around crime, policing, and punishment reveal the way that hegemonic articulations give rise to the construction of common sense. The process of re-articulating the current conjuncture remains crucial precisely because common-sense notions of securitization naturalize and invisibilize the racial logics of criminalization, which often have death-dealing effects. The work of re-articulating the policing of the pandemic is concerned with separating the component parts of that which appears to us as a unity to show that is, in fact, a construction, and so to remind ourselves that things might also be constructed differently. The barriers to abolition remain complex and multi-faceted, requiring a critical attention to the moving totality that is capital and the moving discourses and ideologies that accompany it, as well as a pivot toward action that seek to intervene in the reproduction of violence and the ongoing expansion of the carceral complex in the here and now.