Breaking the prison cycle

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 Coalition and Mandatory Sentencing

Who will prevail in the battle between liberals and “rednecks”?

In each election in New South Wales since 1999, the Coalition has promised a policy of mandatory sentencing in relation to one or more offences. In 1999, the Opposition spokesman on Legal Affairs, John Hannaford, proposed a form of grid sentencing.

In 2003, the Coalition went to the election promising mandatory minimum sentences for a range of offences including murder in the first and second degree, murder of a police officer, gang rape and some commercial drug offences.

It was reported that the original policy, drawn up by Shadow Legal Affairs spokesman Chris Hartcher, had also included mandatory sentences for property offences, and that a split in Shadow Cabinet had developed over the proposals.

A leaked document made its’ way into government hands, and it was revealed that Opposition front bencher, Brad Hazzard, had led the argument against mandatory minimums, and for the proposition that judicial discretion in sentencing should be maintained.

In the end, Opposition Leader John Brogden went to the 2003 election with a modified proposal that did not include property offences, but nonetheless would have required courts to impose, for example, 25 year minimum sentences for first degree murder, and life imprisonment for the murder of a police officer. These laws would have permitted no judicial discretion to impose a sentence that was appropriate to the facts of the offence or the offender.

In 2005, Brogden had again proposed to take mandatory sentencing to the next election, only to lose the Opposition leadership in disgrace. The new leader, Peter Debnam, picked up the baton and maintained the policy of mandatory life for the murder of a police officer, with Hartcher again putting forward proposals to end 'soft' jail terms and introduce a new system of sentencing for violent criminals.

Arriving as a new MP in 2007, former Deputy Director of Public Prosecutions Greg Smith became the new Shadow Attorney General. In that role, Smith has repeatedly stated his determination to take Coalition policy in a very different direction to his predecessors. In 2009, he told the Australian’s Chris Merritt:

"I have (Liberal Party) support for the view that the law-and-order auction should not be continued in the next election." 

He said his colleagues in the state opposition "did not take a lot of convincing" to abandon the law-and-order auction and embrace the need for more effective rehabilitation of prisoners:

"The Liberal Party are supportive of this line, as are people who I have spoken to in the community.”  

 Smith went on to say: "I know there are still rednecks out there that want mandatory sentencing and matters of that sort," before emphasizing his priority to reduce the growing budget devoted to imprisonment.

Despite these comments, and what would appear to be a denunciation of mandatory sentencing by Smith, the Coalition have not abandoned their policy to introduce mandatory life for the murder of a police officer.

We already know what such an amendment might look like, care of a 2007 private members bill, introduced by NSW’s next Police Minister, Mike Gallacher, but defeated in the Legislative Council.

The proposed amendment was as follows:

19B Compulsory life sentences for murder of police officers 

1) A court is to impose a sentence of imprisonment for life on a person who is convicted of murder of a police officer if the murder was committed:

(a) While in the execution of the police officer's duty, or 

(b) As a consequence of, or in retaliation for, actions undertaken by that or any other police officer in the execution of the officer's duty. 

2) A person sentenced to imprisonment for life under this section is to serve the sentence for the term of the person's natural life. 

3) This section applies to a person who is convicted of murder of a police officer only if the person was of or above the age of 18 years at the time the murder was committed. 

4) If this section requires a person to be sentenced to imprisonment for life, nothing in section 21 (of any other provision) of the Crimes (Sentencing Procedure) Act 1999 or in any other Act or law authorises a court to impose a lesser or alternative sentence. 

5) Nothing in this section affects the prerogative of mercy. 

In the Second Reading Speech, Gallacher referred to his own background in the Police Force, and the deaths of David Carty and Glenn McEnallay, both officers murdered in the execution of their duty. The bill was strongly supported by the NSW Police Association, as well as the parents of Carty and McEnally.

Interestingly, the second reading speech referred to the case of Taufahema, a co-accused in the murder of McEnallay, who drove the vehicle being pursued by Police, and in which the shooter was a passenger.

Taufahema’s murder conviction was quashed on appeal to the CCA, on the basis of certain principles of accessorial liability, and he was acquitted of the charge. Notwithstanding that the shooter, Penisini, was convicted of murder and sentenced to 34 years, with a 23 year non parole period, McEnallay’s family and the Police Association were outraged by Taufahema’s acquittal.

Although this result had nothing to do with the adequacy or otherwise of sentencing, and concerned principles that most people (including criminal lawyers) do not understand, Gallacher was not deterred:

"The community and the Opposition—and certainly Glenn McEnallay's parents—believe the driver of the car involved was implicated in the murder and should have stayed in jail for the murder of Glenn. The cases of those involved in the murders of David Carty and Glenn McEnallay highlight the soft stance taken in New South Wales against people who murder police officers. This bill is another step in providing a higher level of protection for police."

It would appear this policy has remained something of an article of faith for some members of the Coalition, and like other matters of faith, resistant to reasoned argument. And as the following part of the second reading speech reveals, Gallacher’s understanding of the effect of the amendment and the removal of judicial discretion was, at least in 2007, questionable:

“One member referred to it as a simple bill. It is a shame that the simpleton did not read this so-called simple bill. The Hon. Lynda Voltz spoke about her big issue with this legislation. In fact, it was her only issue in the contribution she made some time ago. She said: 

The question that comes to my mind is: If this sentence is mandatory, is there no situation that we can see where a judge should hear the case and give some weight to the decision? 

Should we not ask the judge to look at the situation? 

Had she bothered to read the bill she would have seen that in relation to the compulsory life sentence for the murder of police officers—new section 19B—it says: 

Nothing in this section affects the prerogative of mercy. 

In other words, the very issue that she hung out as the only one that was causing her not to vote for this bill is that we are denying judges the ability to use their prerogative with regard to mercy."

It is not known whether there will be a further debate within the party over this policy, or the position that Greg Smith will take. His previous statements appear not to favour mandatory sentencing, yet he has not spoken publicly against this proposal. Requests made to his office this week to clarify his position have not been answered.

Those in the criminal law world might remember that Mr Smith prosecuted the brothers Gilbert and Richard Adam for the murder of Constable David Carty in 1998, and then went on to appear in the appeals in the CCA and High Court. One wonders what that experience had on the formation of his attitude to this policy.

What we do know is that this bill will resurface at some stage. Whether the so-called “rednecks” prevail over the small-l liberals of the Coalition remains to be seen.

In 2000 the then PM John Howard said:

“As a matter of principle, I do not agree with mandatory sentencing. I agree with strong sentencing laws, but in the end I do think these matters ought to be determined by judges and magistrates.” 

Can we expect the Liberal Party to follow the lead of their patriarch, and stand up for the principle of judical discretion in sentencing? And will this issue give us any line on O'Farrell, and his reputation as a moderate?

Depending on where the Upper House votes fall tomorrow, the answers to these questions may not be too far away. 

Time for NSW to escape the penal colony

By Richard, Ackland, SMH, 1 March 2011:

Someone get a gavel. Any minute now the bidders will arrive for the latest law and order auction. 'Do I hear ''Life sentence'', anyone?'

THE prospect of a NSW election without a strong dose of law'n'order doesn't seem right. The restraint was promised by both sides, but it's inevitable that they will fall off the wagon. Greg Smith, the shadow attorney-general, has already shown what he's made of with a promise of mandatory life sentences for cop killers.

I thought that had already been promised in an earlier auction. Indeed it was. It's a dusted down version of an old Peter Debnam promise.

There was anger in 2006 that the Court of Criminal Appeal quashed a conviction for the murder of a police officer. The then premier, Morris Iemma, was so livid he said he was considering the introduction of re-education programs for judges.

As it is, you only get 25 years' non-parole if you murder a judge. Same for killing a police officer. Presumably when the Liberals speak of life sentences, they don't mean anything as soft as 25 years.

After the Cronulla disturbances in 2005 Iemma advocated top-up prison sentences for anyone who attacked a surf lifesaver. The possibilities for the sentencing of special categories of victims are limitless. Maybe lighter sentences for those who slay columnists or disc jockeys would be an attractive vote getter.

Under a no-nonsense O'Farrell government young graffiti artists will no longer be subject to police discretion. If caught spraying and daubing on walls it will be straight off to court. The courts will be empowered to cancel ''graffiti vandals''' driver's licences or extend the time they are provisional drivers.

Presumably they'll be allowed to keep their skateboards.

Smith was quoted last year as saying: ''I understand that the culture hasn't been to jail [graffiti offenders] and we've got to change that culture, otherwise our city is just going to be an … eyesore.''

Rock throwers and knife carriers are next.

Labor has yet to announce its law and justice policy. It has unveiled a proposal to introduce new laws to target serious crime ''committed in groups''. Watch out for legislation dealing with ''complicity''.

There was also legislation to allow courts to detain new categories of violent offenders beyond their term of imprisonment. The Liberals don't disagree with that. So far, though, we're seeing a softer John Hatzistergos and a milder Greg Smith.

Smith admits he's been on quite a journey. He was once a ''headkicking prosecutor … I defended life imprisonment. I fitted in with that hard-line genre''.

At a recent gathering conducted by the Community Justice Coalition, Smith conceded that years of punitive rhetoric and policies have ''done a lot of harm … It has turned a reasonably enlightened prison system into a penal colony''.

Last act for Hatzistergos before axe falls

By Richard Ackland, SMH, March 18, 2011:

Attorney-General John Hatzistergos has performed what we can only hope is his final act of bastardry before he is flung out of office. As long as Hatzistergos had breath in his body he was going to see the end of the Director of Public Prosecutions, Nicholas Cowdery - and his final play in the battle was the appointment of Ian Temby, QC, as acting DPP for two months.

Today is Cowdery's last day in office. He turns 65 tomorrow and to keep the full extent of his pension benefits he has to go right now. There's a certain amount of government deliberation in that situation - more of that in a moment.

The Attorney-General put out a statement on Wednesday lauding Temby's capacities and achievements. Labor governments have been in and out of love with Temby ever since federal attorney-general Gareth Evans plucked him from the Perth bar to be the first Commonwealth DPP.

There was a two-sentence mention of Cowdery at the bottom of the announcement, thanking him for his service and noting the government ''valued the integrity of his prosecutorial decisions''. In any language it was a singularly icy farewell.

Cowdery had advised the government that he was available to serve as acting DPP from tomorrow so that the functions of the office could continue seamlessly until the incoming government found a replacement. About 11.05am on Wednesday, Hatzistergos phoned Cowdery to say his resignation had been accepted. He added he had taken advice from the Solicitor-General and would not agree to Cowdery's suggestion that he continue in an acting capacity.

Further, he would not even appoint the current deputy DPP, Lou Lamprati, SC, as acting director. Temby would take the job for two months - full stop. However, if the incoming government had not filled the position within Temby's tenure, Lamprati might be able to be acting director. How's that for tortured jockeying?

The reality is that Cowdery was perfectly entitled and eligible to be appointed for a term as acting director. It would have been the most efficient and cost-effective thing to do but under this regime memories are long and unforgiving.

Coalition to review juvenile justice

ABC Online, 18 March 2010:

The New South Wales Opposition will review plans to spend $30m expanding the Riverina's youth jail in Wagga Wagga.

The Labor candidate for Wagga and former worker at the Juvenile Justice Centre Glenn Elliott Rudder said the spending is needed to modernise the facility and to address overcrowding problems. It would bring capacity to 60 people.

The Opposition's Justice spokesman Greg Smith is not prepared to commit to the rebuild of the youth jail as an election promise.

"If they've actually started buiding, then maybe we will but if I become the minister for Juvenile Justice I would want to have a review of any of these proposals to see whether the expenditure is warranted and secondly what are the community interests in going ahead with such expansion," he said.

The Opposition is proposing a softer approach to juvenile offenders if the Coalition wins the election Mr Smith said former Labor Juvenile Justice Minister Graham West resigned over the government's refusal to consider alternatives to jail. Mr Smith said Labor has encouraged police to crack down on young people breaking curfews.

He said the Coalition would take a more considered approach, including a review of the Bail Act.

"I'm concerned about the high jailing rate, particularly of Aboriginal youth," he said.

"But so many of these cases seem to be remand situations where they've been refused bail or bail has been revoked.

"And some of these people are charged with offences that don't even carry jail, the maximum penalty's a fine.

"And it's just most improper and most wrong to jail people in that situation."

Hard line fine for dangerous criminals, but what about the rest?

By Greg Smith SC MLA, Shadow Attorney General and Minister for Justice, Bar News, 2009/10:

Building more prisons to house the growing number of prisoners, many of whom are recidivists who have had little genuine rehabilitation, is expensive and does little to make a better society. Harsher sentencing is leading to more, not less, recidivism.

Introduction 

I have worked as a lawyer in prosecution and criminal justice agencies for most of my career, since the mid 1970s. This included working in Commonwealth Government agencies in Sydney from 1975 to 1987 and New South Wales Government agencies from 1987 to February 2007, as a crown prosecutor; a secondment to the Independent Commission Against Corruption as general counsel assisting in the Milloo inquiry into police corruption; deputy senior crown prosecutor; and finally, as deputy director of public prosecutions for almost five years before resigning to run for election as the member for Epping in the New South Wales Parliament. 

During that period, I witnessed many changes to the criminal justice system by the enactment of legislation and changes to practice and procedure dealing with such things as: the establishment of offices of Director of Public Prosecutions in each jurisdiction; the Uniform evidence Act; sentencing laws; guideline judgments; and standard non-parole periods. In that period I appeared for the Crown in hundreds of criminal trials and many appeals in the Court of Criminal Appeal, and full court appeals in the High Court of Australia. I became very uneasy with the law and order auctions, as they tended to make the law – particularly the sentencing laws – more complex and more susceptible to error. 

Law and order auctions 

Remarkably, law and order did not feature as a major issue in the 2007 NSW state elections. This totally contrasted with the previous five elections held between 1988 and 2003. The Iemma government and Coalition nevertheless continued policies with a ‘tougher approach’ to crime and criminals. 

In January 2003, journalist Paola Totaro predicted that ‘Bob Carr and John Brogden share an unstated hope – that crime does pay. In the March 22 election, they expect a dividend of votes from their efforts to exploit community anxiety about criminals.’(1) 

She opined ‘law and order’ auctions in New South Wales probably had their genesis in the lead-up to the 1988 state election, in the wake of disastrous revelations about Labor’s corrupted early- release prison scheme. 

She said Liberal opposition leader, Nick Greiner, built a powerful election policy platform on significant anti-corruption and criminal justice reforms. The early-release scheme, which allowed prisoners to earn time off for good behaviour, spawned what Greiner called ‘truth in sentencing’ legislation. 

Law and order issues featured prominently in the March 1995 election campaign, prompting ‘widespread criticism of both sides of politics for conducting a law-and- order ‘auction’ in a bid to win votes on the crime issue’.(2) 

The Fahey government proposed life imprisonment for serious offenders, such as murderers, rapists, drug traffickers and robbers who repeatedly broke the law. John Fahey stated in his campaign launch, ‘It is three strikes and you are in. In gaol. And in gaol to stay.’ 

Labor’s policy in 1995 included mandatory life sentences following conviction for dealing in large commercial quantities of hard drugs and for a new offence of ‘horrific crime’ (multiple murder, contract killing and murder or attempted murder in conjunction with violent sexual assault). 

Both sides promised greater victims’ rights. The ALP won that election and the following three elections. Many policies were not honoured or watered down. Gratefully, no mandatory sentences have ever been enacted. 

In the 1999 election campaign, the opposition’s policy included reforming the justice system with a new set of sentencing guidelines, described as ‘grid sentencing’, which would set a mandatory minimum sentence, with rare exceptions. Judges could depart from the guidelines in particular circumstances.(3) 

The Carr government labelled the plan a ‘disaster’, claiming the proposal mirrored grid sentencing, which they claimed had failed spectacularly in the United States. Attorney General Shaw said it would take away judges’ powers to sentence and hand them over to politicians and in practice, would not lead to tougher sentences.(4) 

In the 2003 election both sides proposed to abolish double jeopardy laws, to allow re-trials for homicide and other serious offences. A restricted law was enacted in late 2006. A further amendment has recently been enacted.(5) 

In 2007 the opposition promised a parliamentary committee to monitor the DPP; increasing frontline police numbers; increasing police powers; mandatory life sentences for those who murder police; tougher bail laws and tougher laws against young offenders; and giving juries a say in sentencing. The Iemma government promised to build more gaols; to increase penalties and to introduce new offences. 

Both sides also promised to modify the right to silence.

The next Labor leader?

Former Unions NSW boss, John Robertson, entered the NSW Legislative Council in 2008, following the retirement of the former Treasurer, Michael Costa.

Robertson was credited with no small role in bringing about that result, thanks to his performance in and around the 2008 NSW Labor Conference, during which he organised union resistance to the Iemma/Costa plan to sell off electricity assets, and thereafter, when he was reported to have plotted the same pair's execution.

With less than 3 years under his belt in the Upper House, Robertson will, at this election, attempt a move to the Lower House by contesting the seat of Blacktown (margin 22.4% ALP). Speculation has been growing that this move is being made with a view to taking the Labor leadership after the election.

With this in mind, RG dug into the archives to discern the attitude of one of the Labor greats to the prospect:

Keneally opens state's second drug court

SMH, 7 March 2011:

NSW Premier Kristina Keneally has opened the state's second Drug Court and promised a third if Labor wins the March election.

Ms Keneally today opened a Drug Court in Toronto, in the seat of Lake Macquarie in the Hunter region, citing the success of the original court which is based in western Sydney.

She said if re-elected, the government would spend $6.3 million on a third court at the Downing Centre justice precinct in central Sydney.

"A drug court in Sydney's east would provide full coverage for the metropolitan area," she said in Toronto, the first stop on her three-day bus tour of the Hunter.

"The people who have gone through the drug court process overwhelmingly have gotten their lives back, gotten themselves back on track, become productive members of society and kicked their drug habits.

"If we can break an offender's dependence on drugs, we can help them break the drug crime cycle and reduce the overall rates of offending."

The western Sydney court, opened in 1999, has diverted thousands of drug-dependent offenders into treatment programs, with more than 50 per cent not returning to jail, she said.

Ms Keneally's announcement came after the opposition promised a second drug court for the Sydney area.

Ms Keneally also announced a call for tenders for a $94 million justice precinct in Newcastle, which will replace the city's ageing courts with a new 10-court complex.

NSW Libs & Nats Announce Plan To Crackdown On Re-Offending Rates

Coalition Press Release, 7 March 2011:

NSW Opposition Leader Barry O'Farrell and Shadow Attorney General Greg Smith SC today announced a comprehensive plan to crackdown on re-offending rates in NSW, including the establishment of a second Drug Court in Sydney.

Mr O'Farrell explained the NSW Liberals & Nationals ambitious plan has the goal of reducing the re-offending rate to below the national average within ten years.

"The people of NSW are fed up with a corrective services system which merely acts as a 'revolving door' for offenders as they transition through a life of crime," Mr O'Farrell said.

"The NSW Liberals & Nationals are determined to treat crime at its source and this is why we have a comprehensive plan with the goal of reducing the rate of re-offending to below the national average within ten years," he said.

"NSW has the worst recidivism rate of any Australian State with more than 40 per cent of prisoners returning to gaol within two years."

A NSW Liberals & Nationals Government will:

1. Establish a second Drug Court in the Sydney metropolitan area including detoxification facilities, drug testing, monitoring and treatment;

2. Create a specialist Metropolitan Drug Treatment Facility to ensure up to 300 drug addicted prisoners get treatment and are given the opportunity to get off drugs;

3. Provide an additional $20 million over four years for education and training programs in prison; and,

4. Encourage greater use of non-custodial punishment for less serious offenders and create availability and access to diversionary programs.

Mr Smith said reducing re-offending makes sense.

"Every ex-prisoner who returns to gaol costs taxpayers and diverts resources which could be spent on more hospital beds, better public transport or fixing our roads," Mr Smith said.

Prisoners released during 2007-08 who returned to prison with a new correctional sanction within two years – Australian Productivity Commission, Report on Government Services 2011

                                           NSW   Vic      Qld      WA    SA      Tas      Aust

Prisoners returning to prison 42.4% 33.7% 33.5% 38.3% 30.2% 31.7% 37.6%

"A NSW Liberals & Nationals Government will establish a second Sydney Drug Court with evidence showing drug offenders who participate in drug courts are less likely to re-offend," he said.

NSW premier announces social bonds plan

From SMH, 6 March 2011 (AAP):

NSW Premier Kristina Keneally says her government will invest $25 million in social bonds, in an investment pilot to pay for non-government early intervention programs, if re-elected.

Speaking to reporters in Newcastle on the eve of a three-day bus tour of the Hunter, Ms Keneally said the government would chip in $25 million to provide confidence to investors in the scheme, inspired by a similar UK bond.

Under the Labor pledge, which she says would be an Australia-first program, $10 million would go to preventative programs that help keep young people out of juvenile detention.

Another $10 million would go to help families at risk, while $5 million has already been allocated to the Department of Ageing, Disability and Home Care to develop bonds for disability services.

"The government will kick off with $25 million, and we'll do that, one, to provide confidence to investors that this is a program that will work. We'll have our own skin in the game," she told reporters in Newcastle on Sunday night.

"And also to provide that seed funding."

The bonds are not financial instruments like those seen in the traditional bond market, but allow private investors to invest in non-government community service programs.

If the services meet agreed targets and deliver public sector savings - making a measurable social difference - then investors would receive a return on their investment.

"Social Impact Bonds increase the amount of money available to governments to invest in early intervention without having to cut services they are already delivering," Ms Keneally said.

"Social Impact Bonds will complement, not replace, government support for community services."

Greens call for end to religious discrimination

Sydney Star Observer, 16 February 2011:

The NSW Greens have called for the closing of loopholes in the NSW Anti-Discrimination Act that allow businesses owned by religious groups to discriminate against students, employees and clients if they hold that something about them conflicts with their beliefs.

Currently religious groups may refuse to hire GLBTs or terminate their employment, while GLBTI children can be forced out of a school with no redress.

The law was passed before homosexuality was decriminalised in NSW but has remained on the books ever since.

Greens lead candidate for the Legislative Assembly, David Shoebridge, said the party supported removing the exemptions and replacing them with a bill of rights that enshrined protection from such discrimination, while the NSW Government and the Coalition parties did not.

“Once a religious organisation receives taxpayer money to fund its operations, whether it’s a school, welfare services or accommodation, then it is absolutely unacceptable that they be allowed to discriminate against people on the basis of their sexual identity, their religion or being a single mother,” Shoebridge said.

The Greens state election candidate for Marrickville, Fiona Byrne, echoed the call, singling out the NSW Attorney General for criticism.

“The NSW Attorney Genenal John Hatzistergos should be protecting the vulnerable in society rather than defending an antiquated law allowing students to be expelled due to their sexuality,” said Byrne.

A spokesman for the Attorney General told media the law was necessary “to maintain a sometimes delicate balance between protecting individuals from unlawful discrimination while allowing people to practise their own beliefs”.

The Shadow Attorney General, Greg Smith indicated he believed the law needed changing, but that was not the view of his party.

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.

Focus on prisoner rehab

By Tyron Butson, Northern District Times, 24 Feb 11:

A COALITION Government would spend more on prisoner rehabilitation and outreach projects rather than simply jailing them at the taxpayers’ expense, shadow attorney-general Greg Smith says.

The Epping MP said rehabilitation projects generally cost the taxpayer less than enforcing prison sentences for relatively minor crimes - and often gave better results.

“I would be looking at beefing up rehabilitation programs and support services, we know that the expenses for keeping people in custody is expensive - we’re talking $1 billion a year,” he said.

“The courts themselves, the DPP and legal services need greater support from the government, the State Government has not been particularly supportive of our legal services.

“Extra funding for these projects is just one aspect, courts also need the support of their government to operate effectively.”

Last June the Keneally Government rolled out new sentencing legislation that included mandatory participation in rehabilitation and education programs and random breath and urine tests. Attorney-General John Hatzistergos said the program was aimed at cutting reoffending by 10 per cent by 2016.

Mr Smith, who became a public prosecutor in 1987 and was deputy director of public prosecution for the Supreme Court of NSW, has previously criticised the program for putting added pressure on probation and parole officers.

Long tipped to take the Attorney General’s job if Labor is defeated in March, he said his legal background made him a solid pick.

“Ultimately, it’s up to the leaders but I’m quietly confident,” he said. “And I think that’s appropriate.”

Coalition open to wide-ranging prison reforms

By Geesche Jacobsen, SMH, February 19, 2011:

NSW should increase alternatives to prison for minor offences, encourage lower sentences, review bail laws and consider a needle exchange trial in prisons.

These are some of the election proposals put forward by the Coalition in response to a call for prison reform.

The commitments come from the Coalition's campaign director, Mark Neeham, in a policy questionnaire by the Community Justice Coalition.

Responses by the Labor Party to the proposals were along the lines of ''the government is already doing this''. The party's 37-page response features the word ''already'' 51 times.

The Community Justice Coalition's president, David Bitel, a lawyer and a long-time Labor Party member, said yesterday that the group would not endorse a political party but would support those committed to progressive prison reforms.

''In the UK and the US it has been accepted that prison is not a solution to crime in most situations,'' Mr Bitel said. ''One has to look at the long-term consequences for those [prisoners] involved in terms of rehabilitation and in terms of their families.''

The current policies were creating a ''generational'' prison population, which came at a huge cost to the community, he said.

Back to where Labor began: Bob Carr

When the dust settles and learned discussion turns to the legacy of the ALP government (1995 - 2011), Labor's reform of the criminal justice system will surely rank as one of its' most important.

First, let us reflect on a few key numbers:

 - In 1995, the prison population of NSW was sitting at somewhere between 6000 and 7000. When Labor hand back the keys in a few weeks, that number will be pushing through 11 000; 

- In 1994, the rate at which we imprisoned New South Welshmen and women was 167.8 per 100, 000.  In 2011, it had risen to 196, which is almost double the rate of Victoria at 105;

-  The percentage of NSW prisoners on remand (unsentenced) rose from 9.6% to 22.8% in the same period;

- In 2010, NSW's Budget for Corrective Services exceeded $1 billion;

To appreciate the results of the Labor regime, it worth reflecting on the premiership of Bob Carr, under whom it all began. Most will recall that Carr came to power, and was re-elected twice, on the foundation of successful law and order campaigns. The phrase "tough on crime, tough on the causes of crime", although borrowed from Tony Blair,  became firmly associated with his image, and also his agenda.

Indeed, Carr had no closer ally in his pursuit and retention of power than one Laura Norder; an alliance that went on to make fundamental and lasting change to the NSW criminal justice system. Most notably, sentencing laws were radically amended with the introduction of standard non-parole periods for a range of serious offences. The slow restriction of the law in relation to bail also began, making it much more difficult for accused persons to obtain liberty before matters finalise.

Carr, already an author with "Faultlines", is now a keen blogger and tweeter (@bobjcarr), and seems well aware his legacy is in the process of being assessed. In recent times, the early shots fired by Bob on his blog have been fascinating.

He recently cited with approval the British MP, John Spellar, who described the middle-portion of the electorate as follows:

They are law abiding and expect others to play by the rules. They want to live in a peaceful, orderly neighbourhood. If they do not, then they are hostile, both to the perpetrators and the authorities who permit it to happen.

Later Carr said in the same post:

By the way, the reason I adhered to explicit law and order policies as Premier was to hold the support of working class people who expect Labor governments to keep their streets safe and lock up the criminals who degrade life, especially in public housing estates, making existence hell for law-abiding citizens. If Labor parties spend more time apologising for the wrong-doers than they do backing law enforcement and community safety they run the danger of being crushed in a right-wing populist backlash.

With these words, Carr concedes what I imagine many have long thought, namely, that the objectives of his criminal justice policies were purely political: to soothe what he imagined to be a populace hostile to wrongdoers, to avoid a populist backlash, and retain power.

That he avoided a backlash by introducing his very own populist policies to lock up increasing numbers of people? Well, it seems that was just the necessary price to be paid. I mean better us than them, right?

The very narrow justification of his policies also seems to suggest he might have pursued another course had the Opposition not forced him into it. You see, it was all their fault!

In 2011, however, the Coalition appear to have distanced themselves from previous campaigns and policies, going so far as to explicitly reject a "law and order auction" election. So where does this leave Labor and the Carr Doctrine of Criminal Justice? How will ALP policies be justified in the absence of Opposition muck-raking?

The answer will be found in the current AG, John Hatzistergos, who can always be relied upon to defend Labor's record. Indeed, the Hatman rarely misses an opportunity to "make no apology" for their tough stance on crime, and increasing prison numbers, which he will claim are responsible for making us safer.

RG intends to examine his policies, as well as those of the Shadow Attorney-General Greg Smith, in the coming weeks.

Labor screams green murder over cuts to preference lifeline

By Sean Nicholls, SMH, February 15, 2011:

LABOR has reacted furiously to a decision by the Greens not to direct preferences to the main parties at the state election, warning it will ''almost certainly'' deliver control of the upper house to the Coalition and conservative minor parties.

The Herald revealed on Saturday that the Greens had decided not to direct preferences to either Labor or Coalition candidates in the Legislative Council and in at least 30 seats in the Legislative Assembly.

''The decision of the Greens to not swap preferences with Labor will almost certainly deliver control of the upper house to Fred Nile, the Shooters Party, the Liberals and Nationals,'' said Labor's campaign spokesman and preferences negotiator, the upper house MP Luke Foley. ''Those right-wing parties will all swap preferences with each other.''

Mr Foley said the Greens were ''obsessed'' with beating Labor in lower house seats even if it was at the expense of a ''far right'' upper house.

''The Greens' hatred of Labor will deliver upper house control to the book burners and elephant shooters - people who are on a crusade to overturn environmental protection, let hunters rampage through national parks, bring back duck hunting, close the safe-injecting room and end ethics classes in schools,'' he said.

But the Greens' lead candidate for the Legislative Council, David Shoebridge, rejected Mr Foley's analysis.

He said that under the NSW system of optional preferential voting, preferences have had ''next to no impact'' on the make-up of the upper house.

''Our clear electoral approach to retain a progressive upper house that is not a rubber-stamp for the Coalition is to maximise the Green vote,'' Mr Shoebridge said. ''The NSW Labor machine is toxic to voters in NSW and the Greens want nothing to do with them.''

It isn't smart to hold election auctions on tougher penalties.

By Hal Sperling and Alex Wodak, SMH, June 17, 2010:

IN THE run-up to the next state election, Victoria has started a law-and-order auction. Until now, unlike New South Wales, Victoria has avoided such things.

Law and order has been an election issue since the 1980s in NSW, yet for the 2008-09 financial year, the state had an imprisonment rate of 184.8 per 100,000 adults, nearly double that of Victoria at 103.6 per 100,000.

Crime rates are lower in Victoria across nearly all categories. And, worldwide, there is no clear positive relationship between the severity of prison sentences and the crime rate.

The law-and-order auction assumes that people want tougher sentences. Some do. For victims of crime and their families, no sentence is heavy enough. They want revenge. That is understandable, but it is not an objective response.

Retribution is a different sentiment. It is a response to wrongdoing shared by the community at large. It explains why people used to take their children and a picnic lunch to public hangings.

We have gone past that now, but retribution is still there. It is the chord that politicians strike when they call for tougher penalties.

It cannot be assumed, however, that retribution is now the prevailing attitude in the community. Recent studies in Britain indicate that a lot of people are more interested in offenders making recompense than in punishment for the sake of punishment. That would suggest that the community would be just as satisfied - perhaps more satisfied - with visible and useful community service as the penalty for much of the crime that currently attracts a prison sentence.

Retribution and making recompense are emotional responses. There is another side to the coin - commonsense.

Politicians still dancing to the beat of the blue light disco

by Alex Mitchell, SMH, 22 January 2011:

YOU can always tell when a state election is imminent because the NSW cops suddenly become furiously proactive.

On past form, an unusually large number of raids will take place in the next few weeks and no expense will be spared to obtain photographs and footage of all the excitement.

The media will be flooded with pro-police stories, while the Police Association of NSW will start menacing politicians with a shopping list of new laws, more specialised equipment, extra recruitment and even more generous working conditions.

For the past 16 years of Labor rule, the high-pressure tactic has worked. Whatever the police wanted, they got because the government was determined to keep the cops “on side”.

Former premier Bob Carr had a simple electoral rule: don't let the Liberals outflank us on law and order. Thus the police received Glocks, Tasers, helicopters, a water cannon and much more.

O'Farrell pledges 10 million for rehab

From the SMH, 19 January 2011:

The NSW opposition has pledged $10 million to boost rehabilitation services for drug and alcohol problems in an election promise they say will help an extra 5000 people.

NSW Opposition Leader Barry O'Farrell on Wednesday announced the four-year funding promise, which would see government and non-government rehabilitation services tendering for the additional funding.

"This program today will enable an additional 5000 people to get treatment, to get assistance to get off their treatment, and will have the added benefit of relieving pressure on emergency departments, on acute beds in hospitals, which too often, because of the lack of these services, are filled up with those who suffer addiction," he said.

The Salvation Army's Clinical Director of Recovery Services, Gerard Byrne, said the funding would help organisations like his meet the growing demand for help.

"For a long time we and other organisations such as ours have struggled to meet the demand for services," he said.

"The provision of such a good quantum of funds to provide a sustainable and viable financial basis on which we can then provide our services is very welcome."

The NSW state election will be held on March 26.

But Darren Marton, director of The No-Way Campaign and independent upper house candidate at the upcoming poll, expressed disappointment that funds had not been committed to prevention services.

"Don't get me wrong, I'm all for rehabilitation, but I think our focus and direction should be first and foremost on prevention," he said.

"Trying to turn around a generation over the next couple of generations to make drugs not as prevalent as they are."

NSW Election 2011

In ten weeks time, New South Wales will elect a new government.  If the bookies and pundits are to be believed (not to mention those inside the Labor Party) there is no prospect this election will be close and it now seems the only real contest will be fought over the size of the Coalition majority, tipped to be somewhere between healthy and massive.

It is shaping as the most unusual election seen in New South Wales for a very long time. Word has well and truly got out that the electorate are armed with intent to inflict grievous bodily harm on Labor. Even if Barry O'Farrell died or was charged with a criminal offence, he could be replaced and the Coalition still win in a canter.  Indeed, the drover's dog could lead them to victory.

Seeing then the Coalition bears no real onus to shift votes, will they have any need to take part in the type of "law-and-order" campaign with which NSW has become so familiar? Perhaps not, although Labor, fearful of a wipeout, and unable to change their spots, may still draw them into one.

With this in mind, RG intends to examine the major parties in the next ten weeks, and determine their policies on issues surrounding the criminal justice system.

Throughout their sixteen year reign, Labor has a shown a great fondness to use imprisonment as the primary lever of policy. During this time the NSW prison population has risen sharply. Can we expect any changes in 2011 and beyond? In an interview on Stateline between Quentin Dempster and Police Minister Michael Daley last May, we are given a strong indication that Labor believes imprisonment works.

Here's a part of the transcript, which also includes an interview with Shadow Police Minister, Michael Gallacher, himself an ex-police officer, who observes that teenagers do "apprenticeships in crime" in the juvenile system, and speaks of a need to prevent them from going on to complete a "masters in crime".

Stateline - 18 May 2010

As we all sleep more soundly in our beds knowing police will soon have the capability to catch more criminals, Dr John Buchanan, an expert on incarceration rates, unemployment, social and workforce trends, has a warning for police and for the rest of us: Australia now has a growing prisoner population and we're trending towards the United States in locking up marginalised and criminalised citizens.

JOHN BUCHANAN, SYDNEY UNI: Two per cent of the adult male population in the US is in jail. It actually keeps their unemployment rates down. That's actually ...

(Laughter from audience).

That's actually the equivalent of what we call the long-term unemployed. In the US they call them inmates. I was thinking for you guys, for policing, that's something to reflect on, because if you look at Australia, it was like Norway and it's becoming like America. So we've got a long way to go, but they are dramatic shifts, and if you look across all countries, Australia's been one of the fastest shifters to rely on the rising incarceration rates for maintaining social order.

QUENTIN DEMPSTER: Stateline asked the Government and Opposition Police spokesmen if it they were happy with the NSW and Australian incarceration trends.

MICHAEL DALEY: As Police Minister, and I can speak for the Police Commissioner and for all of his record 15,000-odd troops, we have a very simple job to do and that is simply to keep people safe and feeling safe. And this graph issued by the Bureau of Crime Statistics bears out what you say. As we see the blue line there trending up, the rates of incarceration trending up, the pink line, which is the crime statistics trend, correspondingly down. For every point that pink line falls, it means one of your viewers has not fallen victim to someone who wants to hurt them or their family. That's our charter: stopping people becoming victims before the criminals get hold of them.

QUENTIN DEMPSTER: You make no apology for the incarceration rates and the likelihood that it will go up?

MICHAEL DALEY: Does government have a responsibility to make sure that people from lower socio-economic groups and those that you talk about as marginalised get the welfare that they deserve and the safety nets are in place? Yes, we do. Do we have a responsibility to make sure that they have an access to education and employment so they don't embark upon a life of crime? Yes, we do.

MICHAEL GALLACHER: Every person you've got in jail are there because there are victims out on the street. And we believe that the direction that we are travelling isn't necessarily in the best interests of the community. We do need to look at measures that we can intervene much earlier on. We've got young offenders now, 11, 12 years of age - four years from now when they've completed their apprenticeship in crime in the juvenile justice system, they've still got two years to run, and I think we've gotta do a darn site more to try to get those people out of the pathway that they're currently travelling and get them into one where we can actually prevent them completing an apprenticeship beyond that and indeed a masters degree in crime.