Chief law officer eschews a law-and-order auction for young offenders

Imre Salusinky | The Australian | 21 April 2012

THERE have been some under-performers in the one-year-old NSW Coalition government, and a couple of star turns as well - but for sheer surprise value, nobody has outdone the government's chief law officer, Greg Smith.

As a former high-ranking prosecutor in the office of the Director of Public Prosecutions, and coming from the Liberal Party's Right faction, the state's new Attorney-General could have been expected to ramp up the "law-and-order auction" that has been a feature of NSW politics for decades.

Instead, he has done the opposite. Under Smith, the government has begun to explore way of dealing with crime that address causes, rather than simply imposing tougher penalties on perpetrators. In particular, Smith has flagged measures to reduce the number of young people on remand, one of the ugliest features of the criminal justice system in NSW. He's also asked the Law Reform Commission to clean up the dog's breakfast that has become sentencing law in NSW after successive state governments legislated mandatory sentences and non-parole periods to burnish their "tough on crime" credentials.

Smith's judicial appointments have not met any ideological standard but appear to be based on merit and due consultation with key stakeholders. And he's paying the predictable price, being accused of "going soft" on criminals by influential sections of the electronic and print media.

At a youthful 64, Smith is a devout Catholic, plays in a folk group called the Tokens that visits nursing homes, and is a proud grandfather. For him, recent months have been a repeat baptism of fire. During his first months in parliament, in 2007, Labor, disgracefully, trawled through his record as a prosecutor in an effort to portray him as soft on pedophiles.

"I always expected there to be an attack," the Attorney-General tells Inquirer. "The fact that, as a prosecutor, I had experience running some very difficult trials, that made me tougher. Your witnesses may be hostile but that's not the end of it. You can recover your position, as long as you keep calm and keep smiling."
In fact, it was Smith's experience as a deputy in the DPP's office that convinced him the law-and-order auction had to be circumvented. His boss during those years was Nicholas Cowdery QC, whose push-back against populist crime measures made him a perpetual whipping boy for Labor during its long term in office between 1995 and last year.

"Having been someone who practised in the criminal law, I realised that the changes that were occurring through successive elections - the beefing up of legislation, especially in sentencing - was skewing the criminal law and causing more errors," Smith says.

"Sentencing had been a fairly simple exercise but had become by far the most complex of jobs in prosecutions. It led to more appeals and extra pressure on victims of crime, who couldn't get closure. Things were going from bad to worse. It kept hounding me that we were dealing with people who often hadn't had much of a chance in their upbringing. They were most of the criminals and they kept coming back and committing worse crimes as they got older. We have to look at that and see if we can turn it around."

It is the position of juveniles in the prison system that most concerns Smith. One measure he has flagged is exempting young people from tough provisions introduced to the Bail Act in 2007 that limited the right of accused offenders to make repeated applications for bail once an initial bid is refused.

Half of about 400 juveniles in detention in NSW are on remand, and the vast majority of those will not receive a custodial sentence after their trials. Smith reckons all they get out of their experience in jail is a short-order degree from the "university of crime".

"I thought young people were being discriminated against by the criminal law," he says.

"They were going into custody and being exposed to other criminals in detention centres when they weren't likely to get a jail sentence anyhow. I want to keep people away from the corrupting influence of jail, but have them under supervision outside. It's about turning them away from crime and helping them start a life that's beneficial to them."

It is impossible to overstress how different this language is to the customary idiom of the law-and-order debate in NSW. Cowdery, who retired last year, has watched his former colleague's ministerial career with fascination. "I'm pleased to see that some of what he was taught as my deputy has stuck," Cowdery tells Inquirer. "I have been particularly pleased to note the review of bail laws and sentencing laws, as well as his pre-election commitment not to engage in a law-and-order auction.

"I support and applaud his statements about removing inappropriately imprisoned people from custody, particularly juveniles and people with impairments. Hopefully it will undo the piecemeal complications and impairment of the criminal justice system that occurred under several periods of Labor government."

Cowdery's one reservation was the passage of laws mandating life sentences for those who murder police: "I oppose mandatory sentencing for any serious offence," he says. "It's an inappropriate measure."

But he notes it was Police Minister Mike Gallacher, not Smith, who took carriage of the laws. (Smith says he "did not oppose" the changes, partly as a result of his role as prosecutor in the horrific case of Constable David Carty, who was stabbed to death by a gang as he left a pub in 1997.)

Some might speculate Smith's considerable background in the Labor Party could explain his unorthodox views, even though they run directly counter to the way Labor ran the criminal justice system. As a young adult, Smith was an ALP member for 10 years and even represented Labor at local government level. It all changed when he married and moved from Hurstville, in the inner west, back to his childhood environs in northern Sydney.

"We moved back to Lane Cove and I rejoined the Labor Party," Smith remembers. "But I wasn't happy with the people we were running and John Howard became the local federal member. I decided after hearing him speak I couldn't support the Labor Party any more and that I was going to start voting for him.

"I felt that the right wing of the Labor Party was becoming too much of a numbers group. They were interested in control, but their philosophy didn't seem to be very committed. The Left faction's view in Lane Cove was militant feminism."

If anybody has landed in the hot seat in NSW politics, it's Smith. But five years on from his switch from prosecuting cases to causes, he says regrets are rare. "There are occasions when I think, my God, what have I got myself into? But if we can reduce the reoffending rate we will have achieved something for the community."