Mike Steketee | The Australian | 15 October 2011
IN Canberra, a hung parliament has given a Labor Party too scared to take action on climate change before the last election the courage of its convictions.
In NSW, a very different parliament in which the government has a lopsided majority may have a similar effect on law and order policy. An opposition as weakened as that in NSW may not be ideal for democracy but it does allow the government to focus more on policy than populism. And in no area has the auction for votes been more unseemly or come at a greater cost to sensible policy.
As NSW shadow attorney-general, Greg Smith called a halt to the law and order auction. While strongly conservative, he saw during his previous life as a crown prosecutor the failings of the lock-'em-up-and-throw-away-the-key approach - namely that, despite costing a packet, it does little to reduce crime and in some circumstances increases it. One pointer to that is the 43 per cent of prisoners who are back in jail within two years in NSW, compared with 34 per cent in Victoria, where there has been less emphasis on the punitive approach and there have been more resources for rehabilitation and other services for prisoners before and after they are released.
Now he is Attorney-General, Smith is saying much the same things and is starting to act on them. In parliament in May he claimed the previous government regarded the prison population reaching 10,000 as a badge of honour. "I thought it was a disgrace," he said. "This government does not believe success on law and order issues can alone be judged by how many people are locked up. We believe in policies that break the cycle of re-offending. Every prisoner should have an opportunity for rehabilitation and that is in the interests of the whole community."
Smith has commissioned a review of the bail act, particularly because of concern that too many juveniles are remanded in custody and are introduced to what he calls "the university of crime". He has asked the NSW Law Reform Commission to look at sentencing legislation to, among other things, give courts greater discretion. He has announced extra funding for education programs in prison, drug and alcohol rehabilitation services and a second drug court with detoxification facilities, drug testing and treatment.
It is early days and it remains to be seen where these measures lead and whether the O'Farrell government succumbs to a "soft on crime" campaign. Nor is the law and order traffic all one way: the government has legislated for mandatory life sentences for killing police officers.
But this is an issue which has come to defy political pigeon-holing. Bob Carr in NSW took the same attitude as Tony Blair in Britain: that a populist, punitive approach to law and order would protect his political flanks from right-wing attack. Pity about the merits of the policy. Now the coalition government in Britain is changing tack, as has the O'Farrell government. Yet its Liberal-National counterpart in Victoria is headed at least partly in the opposite direction, with moves for mandatory minimum sentences for some juvenile offences, despite the evidence of Victoria's superior performance with its emphasis on alternatives to prison.
The change in thinking was perhaps best captured by another conservative politician, New Zealand's deputy prime minister Bill English, who in May described prisons as "a fiscal and moral failure". No Kiwi, he confidently asserted, wanted to see more large-scale prison building.
The most dramatic change in direction has been in the US. No country has a stronger imprisonment culture, with one in 100 behind bars in 2008, six times the Australian rate. In a climate where Democrats and Republicans have seldom agreed on less, the new approach has bipartisan support. It has received impetus from the squeeze the recession has put on state budgets, particularly given the 300 per cent growth in spending on prisons in 20 years. At least 16 states, ranging from progressive Oregon to conservative Texas, have adopted the so-called justice reinvestment model, using some of the money previously spent on prisons to keeping people out of them.
The idea developed from identifying a small number of areas which produced a large proportion of offenders. In one neighbourhood in Connecticut, $20 million was spent in a year to jail 387 people. Some states now operate programs under which the cost of imprisonment is charged back to local counties, giving them an incentive to find alternatives, such as community service orders under which offenders work on landscaping or housing projects and acquire skills at the same time. This has resulted in a 72 per cent fall in juvenile imprisonment in one Oregon county.
Increasingly, the emphasis is on alternatives outside the criminal justice system. A Texas program provides a nurse to help first-time, low-income mothers living in high crime areas for the first two years of the child's life.
University of NSW emeritus law professor David Brown argues that some Aboriginal communities may have reached the tipping point where excessive imprisonment actually causes crime. In a situation where 20 per cent of Aboriginal children have a parent or carer in prison, going to jail becomes a normal part of life, even a rite of passage, and loses any deterrent effect.
In 2008, 73 per cent of indigenous prisoners had been in jail previously, compared with 49 per cent for the non-indigenous. Many Aborigines go to jail for offences such as traffic infringements that seldom would see white people locked up.
In 2007-08, there were 72 people from the Northern Territory town of Papunya in jail out of a total population of 379. University of NSW law lecturer Melanie Schwartz says that, at a cost of $164 a day and assuming an average sentence of nine months, this meant a cost of $3.5 million a year or more, raising the question of whether part of this money can be put to more productive use in the community on crime prevention, including improving living conditions.
Of course, the challenge as always in Aboriginal communities would be to spend the money well. But then it is being largely wasted now.