The coronation of King Barry

By Tom Westbrook, Justinian, 23 February 2011:

The law and justice spokespeople for the main parties were put through their paces at a Community Justice forum in Sydney on the weekend ... Opposition parties want to make significant changes to the "penal colony" ... Labor is stuck with its record ... Tom Westbrook reports 

Community Justice Coalition's pre-election forum on criminal justice and the NSW prison system provided a unique opportunity for voters to get within sniffing distance of the main contenders.

Organisers promised a glimpse of what is a rare beast in the era of the new paradigm – the policy speech.

The closest approximation on display was shadow attorney general Greg Smith's enthusiastic vision for "a better society".

As well as the usual raft of inquiries, he proposed to end the "penal" tenor of NSW's approach to criminal justice system. Instead, under the Coalition there would be a renewed focus on education and rehabilitation.

Smith added that what an O'Farrell government might actually deliver was, "for the leader to announce".

NSW attorney general John Hatzistergos and Greens MLC David Shoebridge were also in attendance with their parties' responses to a CJC questionnaire on law and order policies.

The CJC, headed by former President of the Refugee Council David Bitel, is pressing for greater commitment to prisoner education and rehabilitation programmes. 

It is supported by a wide range of worthy citizens, including Kep Enderby, Elizabeth Evatt, John Dowd, Kevin Cook, Wendy McCarthy, Anne Deveson, Joan Bielski and Brett Collins.

The CJC's law and order questionnaire runs to 33 pages and sought to extract "commitments" from the political parties to consider or realise specific elements of the CJC's reform agenda.

The parties' formal responses to the questionnaire, which can be found here, are a refreshing change from the simplistic rhetoric that has characterised previous state election campaigns.

The Coalition and the Greens are more supportive of the CJC proposals than the Labor Party, which is reluctant to acknowledge the need for reform.

It was a weary looking John Hatzistergos who spoke in defence of his party's record. Reoffending was down five percent in two years, the average time spent on remand had fallen and the juvenile and adult prison populations were down, he said.

Under his watch female prisoners learned about, "washing, cooking, cleaning and caring for others".

New South Wales is on track to reach the targets in the 2006 State Plan (a tough on crime manifesto par-excellence) and the "outcomes will be reported in the next report", he said.

Never mind that the State Plan targets weren't exactly ambitious.

Reducing re-offending within 24 months by 10 percent before 2016 would bring NSW only slightly below the national average.

Though the average time spent on remand has fallen from 13 to 10 days, the NSW per-capita remand population remains double that of Victoria's. So does the overall prisoner population, which is hovering around ten thousand.

Hatzistergos defended the government's draft Bail Bill 2010 as the answer to the problems with the present Bail Act 1978 and described as "ridiculous" the CJC proposal that a needle and syringe program be trialled in prisons. He cited the fatal needle stick injury received by a prison guard in 1991.

He said that the Labor Party would extend the successful Drug Court initiative to the Hunter and "recalibrate" the forum sentencing program to address re-offending (presently, it doesn't).

Greg Smith was open to more significant changes. He seems to have evolved from a "headkicking prosecutor" to someone who has "mellowed". 

"I defended life imprisonment. I fitted in with that hard line genre," he said. However, he conceded that years of pre-election law and order auctions "had done a lot to harm" to the NSW criminal justice system. "It has turned a reasonably enlightened prison system into a penal colony." he said.

Smith described the NSW juvenile remand population as "a disgrace", specially considering some juveniles on remand are charged with offences that do not carry a gaol sentence.

He said that the consistently high rate of recidivism in NSW (in 2009 43 percent of prisoners re-offended within two years of release) was evidence that "the rehabilitation measures in prisons aren't working". This is because of "the penal attitude defining our system". Smith said he is committed to change this.

Rather that offering post-release assistance to former prisoners, the shadow AG said that the government was "going around looking for breaches".

"We've got to give [ex-prisoners] some support, we've got to find them a job, we've got to find them a home [but] we will still be tough on violent crime."

The Coalition would consider a trial needle and syringe program in prisons and run an inquiry into reforming the Bail Act.

Vestiges of auction-style politics remain. A special "drug prison within a prison" is on the cards. Smith said he would "not allow legal aid to be transformed into a social welfare department" and if elected he "would be beefing up the DPP".

Both the Coalition and the Greens support reinstating the position of Inspector of Corrections, to oversee the Corrective Services Commissioner, ("Rotten") Ron Woodham - whom Smith described as a "rockstar" and whom Shoebridge called "the last great feudal lord in New South Wales".

Hatzistergos reminded the audience that there wasn't a peep out of either party when the inspector position was terminated by parliament.

Greg Smith wants to get "women of child bearing age" out of gaol and into diversionary programs and he has the support of the Greens.

When Corrective Services Minister Phillip Costa, who turned-up to field questions relating to his portfolio, outlined a current program that allows imprisoned mothers to send DVDs of themselves reading stories home to their children, Shoebridge asked "wouldn't it be better for mum to go home?"

The Greens, in fact, are "committed" to virtually every CJC proposal in the questionnaire.

David Shoebridge was highly critical of the Bail Act 1978, which he described as a "failed and broken Act" and he was critical of the Bail Bill 2010, which he said did not go far enough.

He wants to remove section 22A from the Bail Act immediately. Section 22A, which is retained as s.36 in the Bail Bill 2010, has had the effect of restricting people to a single bail application.

The Greens also want to legislate for a presumption in favour of bail for all juveniles.

"Eighty percent of kids who get put on remand are either found not guilty or given a non-custodial sentence," he said.

"We gaol our kids here in NSW at four times the [Victorian] rate. That is a failure."

He added that, "the generation we are most failing is the next generation of Aboriginals", who comprise almost 50 percent of juvenile prisoners, while they make up only 2.7 percent of the Australian population.

The Greens' spokesman said he wanted "a prison system that works towards rehabilitation". He advocated slashing the police and corrective services budgets to fund as-yet-unnamed diversionary and community based programs as well as post-release support services.

Therein lies a problem. The CJC questionnaire too frequently permitted the parties to "commit to research ... commit to considering ... [and] commit to assessing [new approaches]".

Even in the midst of an election campaign, which Shoebridge complained was being treated as "the coronation of Barry O'Farrell", the tendency for the politicians is to hide behind research, inquiries and reviews.

Saturday's forum (Feb. 19) was a long overdue discussion on criminal justice reform, but the "commitments" it yielded were strictly non-core.

The panel of politicians expressed in-principle support for Brett Collins' proposal of computers in cells. 

"The new facility in Nowra is 'wired-up'!" said Costa, harking back to the good old days. He spoke glowingly of the computers' potential as an education tool. 

Computers in cells would be "a very good thing to do, as long as it is managed and controlled," Costa said and Smith offered cautious support.

But could such a proposal really get past Barry? Could it survive a "Soft on Crime" headline in the Daily Telegraph?

Little was said, beyond expressions of "concern", on the parlous state of mental health in NSW prisons.

There are "24 senior psychologist positions" in the NSW Department of Corrective Services, Costa said proudly. That is about one for every 384 prisoners. The minister also said that there were "105.4 full time teachers" in NSW prisons.

All the main parties said they could fund their policies out of the Department of Corrective Services budget. 

Shoebridge said that if re-allocating money from prisons to addressing the causes of crime is done properly it will be "at worst cost neutral, at best saving money."

The politics of reform are another matter and Barry isn't counting his pennies, he is counting his votes.

If O'Farrell wins, as expected, Greg Smith will have to carry Barry and quite likely the Shooters and the Christian Democrats with him if he is to get any changes through.

Meanwhile, the prison population grows out of sight and out of mind. Prisoners at the privatised Parklea Correctional Facility are locked in their cells every Tuesday, because it is the guards' training day. "Forensic patients" are locked down with everybody else, all over the state. 

These are people that have ...

"been found unfit to be tried for an offence and ordered to be detained in a correctional centre, mental health facility or other place; OR been found not guilty by reason of mental illness and ordered to be detained in a correctional centre, mental health facility or other place or released into the community subject to conditions."

"We could close a gaol tomorrow," said Hatzistergos, "but it's much better to incarcerate people close to their family and friends."