Lionel Murphy Lecture - 'Vigilance against injustice in the justice system'

The Hon. Robert McClelland | Australian National University, Canberra | 7 September 2011

Acknowledgments

Good Evening, and thanks Professor Dietze for your very kind introduction. First, I would like to acknowledge the traditional custodians on whose land we are meeting today – the Ngunnawal people - whose cultures we honour as among the oldest continuing cultures in human history. And I would like to pay my respects to Elders past and present.

I’d also like to recognise our hosts this evening – the ANU College of Law and in particular Associate Dean Fiona Wheeler and Head of School Stephen Bottomley; Members of Lionel Murphy’s family;
Trustees of the Lionel Murphy Foundation; Dr Kristine Klugman – President Civil Liberties Australia and Mr Bill Rowlings – CEO Civil Liberties Australia; Dr Helen Watchirs – ACT Human Rights and Discrimination Commissioner; Mr Daryl Dellora; Ladies and gentlemen.

Introduction

It’s a great honour to have been asked to speak this evening. I have entitled this year’s address as Lionel Murphy’s Legacy – Vigilance against Injustice in the Justice System.

And I wish to speak to the national shame that is the over-representation of Indigenous Australians in the criminal justice system.

And to the practical steps the Commonwealth and the States and Territories must take to right this enduring wrong.

This problem has been brought to the public’s attention this year particularly because of the 20th Anniversary of the Royal Commission into Aboriginal Deaths in Custody and the release in June of the House of Representatives Inquiry ReportDoing Time – Time for Doing: Indigenous Youth in the Criminal Justice System.

Lionel Murphy

But before turning to that I’d first like to pay a brief tribute to Lionel Murphy, whose memory we are here to honour tonight - a great Labor leader, an accomplished Attorney-General and an inspiring High Court Justice.

And in doing so, I would like to speak briefly of a judgment he wrote as a judge of the High Court - Neal v R.1

The case was that of an Aboriginal man, Mr Neal.

Mr. Neal was Council Chairman in Yarrabah, a community in Northern Queensland. This community had a deep sense of grievance about the paternalistic treatment by white authorities, including the management of the store which was reportedly selling rotten meat. Mr Neal had argued with the store manager about the management of the reserve. When the discussion reached an impasse, Mr. Neal swore at the store manager and spat at him.

For this, Mr Neal was sentenced to two months hard labour. On appeal to the Queensland Supreme Court, Mr Neal’s sentence was increased to 6 months.

Mr Neal then appealed to the High Court where Lionel Murphy presided.

The year was 1982, and Murphy noted in his judgment the appallingly high rates of Indigenous incarceration at that time – that although Indigenous Australians made up only 1 per cent of the total population they made up nearly 30 per cent of the prison population.

In addressing the question of Mr Neal’s relatively harsh sentence for what was a seemingly trivial offence, he said:

“That Mr. Neal was an ‘agitator’ or stirrer in the magistrate's view obviously contributed to the severe penalty. If he is an agitator, he is in good company. Many of the great religious and political figures of history have been agitators, and human progress owes much to the efforts of these and the many who are unknown. …Mr. Neal is entitled to be an agitator.”2

Needless to say, Mr Neal’s appeal was allowed.

So I’d like to draw some inspiration from Lionel Murphy tonight as I speak to the challenges that we currently face in terms of the overrepresentation of Indigenous Australians in the justice system - an injustice which remains nearly 30 years after Neal v R.

Prior to the recent Commonwealth Law Minister’s Meeting that brought together Attorneys General and Justice Ministers from across the Commonwealth, I had cause to reflect on the origins of European settlement in Australia. The British Transportation System arose from an attempt by England’s privileged classes to remove a so called “criminal class”.

Transportation included punishment for lesser offences that were more often than not the effect of extreme social disadvantage. Well that’s how Europeans originally came to Australia but as a law and order measure this policy was unsuccessful. Crime wasn’t addressed until chronic social disadvantage was addressed.

Today, Attorneys-General and Justice Ministers across Australia need to ask ourselves if we making the same mistakes in respect to the issue of the incarceration of Indigenous Australians.

The figures speak for themselves.

Interview with Dr Alex Wodak

 Lidija Bujanovic | Right Now | 1 September 2011

On Friday 22 July 2011, Monash University’s Castan Centre for Human Rights Law Annual Conference was held in Melbourne. Dr Alex Wodak AM, President of the Australian Drug Law Reform Foundation and Director of the Alcohol and Drug Service at St Vincent’s Hospital in Sydney addressed the topic “A Human Rights Approach to Drugs”. Following the speech Right Now’s Lidija Bujanovic spoke with Dr Wodak about drug policy, the failure of current drug policy and the need for reform both internationally and in Australia.

RN: What drove you to form your views on drugs policy and law reform?

AW: The start for me was when I was working in St Vincent’s Hospital in the early 1980s and we realized that about 3500 gay men had become infected with HIV within 10 minutes walk from the hospital. Here lived the largest concentration of gay men in the country and the same neighborhood has the largest population of injecting drug users in the country. I figured that if 3500 gay men had become infected, some of those men would be injecting drugs, some of those who injected drugs would share needles with non-gay men and women. And some of these non-gay injecting drug users who had HIV would then have sex with non-drug injecting men and women. So I could just see this cascade of HIV going out to the wider population. How could it be stopped?

The first needle syringe programme was started in Amsterdam. I knew we needed something like that here, that my arguments were very compelling and that the arguments against a needle syringe programme were very weak. Yet I couldn’t get permission to start a needle exchange programme. I wrote 13 submissions to the NSW Department of Health seeking permission to start a pilot and each submission was either rejected or ignored.

I went through purgatory: I knew I was right. Yet my colleagues and I ended up having to commit civil disobedience to make it happen. Here was a real need to prevent a health, social and economic catastrophe and I wanted to do something which clearly was logical.

I then started reading about the history of drug prohibition and realized the evidence of it working didn’t exist. My ideas crystallized over time through a long process of research. I started that needle exchange on 12 November 1986 and trying to convince people we must reform our drug laws is now a big part of my work. When I first started saying what I now say, 25 years ago, I was vilified for it. I’m still criticized for supporting drug law reform but most people these days tend to agree.

So how do you react when government claims its policy is evidence based?

Well, I challenge it, tooth and nail, line by line. I point out what they’re saying is nonsense and what they say privately is different to what they say publically. It’s interesting when you look at the kinds of comments made in private or in confidential documents that somehow emerge into public view, compared to comments made during election campaigns. It is a very difficult issue for politicians to openly and honestly deliberate about.

I point out what [the government is] saying is nonsense and what they say privately is different to what they say publically.

Does the current system hinder the realization of certain human rights? In your presentation you mention freedom of association, to health care, equality rights…

The list goes on and on and I’m not really well placed to give an analysis of the exact infringements of rights due to drug laws. Whenever I looked as a layman at the different definitions I felt that most of the criteria used to define human were significantly breached. These are major and significant breaches. For the first time ever in 2009 or 2010 there was international consideration of the human rights of injecting drug users in the UN.

Winston Churchill, in the House of Commons, 25 July 1910.

"The mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of the civilisation of any country. A calm, dispassionate recognition of the rights of the accused, and even of the convicted criminal – a constant heart-searching by all charged with the duty of punishment – a desire and eagerness to rehabilitate in the world of industry those who have paid their due in the hard coinage of punishment: tireless efforts towards the discovery of curative and regenerative processes: unfailing faith that there is a treasure, if you can only find it, in the heart of every man. These are the symbols which, in the treatment of crime and criminal, mark and measure the stored-up strength of a nation and sign and proof of the living virtue in it."

Internet Kills Jury

David Mallard | New Matilda | 3 December 2010

Short attention spans and shonky research: some commentators worry that the internet threatens the jury system. David Mallard weighs up the evidence

People tend to enjoy the benefits of technology. Advances in computing and the internet have transformed our access to information and our ability to communicate and collaborate. But it seems people also tend to have concerns about how technology transforms the ways we think, behave and interact. What’s more, these concerns feed predictions that some of our long-standing societal institutions are in grave danger. But could these predictions sometimes serve to mask the underlying flaws in those institutions?

Take, for example, a recent lecture delivered by the Lord Chief Justice of England and Wales, Lord Judge (yes, really). Lord Judge warned that "if the jury system is to survive as the system for a fair trial in which we all believe and support, the misuse of the internet by jurors must stop." His warning was triggered by cases in which it has been discovered that jurors used the internet to gather information about a case.

Lord Judge also raised concerns that jurors’ ability to listen attentively during a trial may be compromised because children now learn by "absorbing information from machines", and that the unregulated nature of social media such as Twitter might prejudice jurors — either through inaccurate information being tweeted from within the courtroom, or from advocates sending messages from without. But are these sorts of existential threat to the jury system really so unprecedented?

Low IQ and in jail

ABC Radio 576, Background Briefing | Cathy Van Extel | 17 April 2010

Many intellectually disabled people end up in jail. They plead guilty to minor crimes not understanding either social rules or the consequences. Hear the story of Melisa who has an IQ of 57, which is in the lowest l%, and who still faces jail. 

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.

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.

Take No Prisoners

Australian Story, ABC1, 7 March 2011:

On the eve of his retirement from public office, the nation's longest serving Director of Public Prosecutions, Nicholas Cowdery, reflects exclusively on his sixteen years in the top job.

Cowdery's reign encompasses some of the nation's most notorious criminal prosecutions including the cases of Ivan Milat, Gordon Wood, Keli Lane, and the moral outcry over Bill Henson's photographs of children.

Loved by many in the legal profession, but loathed by some in the political arena, Nicholas Cowdery is acknowledged as a fierce defender of the DPP's independence. His decision from the outset not to 'curry favour' with his political masters led to a 'take no prisoners' leadership style that's divided friends and foes alike.

In a rare insight, Nicholas Cowdery reveals the stories behind some of his most difficult decisions - and finally explains what the gift of two olives in a jar from one of his biggest opponents really stood for.

Watch the Australian Story episode here

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.

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.

Youth 'grow out' of crime, study finds

SMH, February 22, 2011 (AAP): 

Youths who commit crime grow out of offending as they become older.

Research by the Australian Institute of Criminology says while a substantial amount of crime is perpetuated by young people, most adopt law-abiding lifestyles as they mature.

"While juveniles, because of a number of unique factors, may come into contact with the criminal justice system, they also have a strong capacity for rehabilitation," the study's author Dr Kelly Richards said in a statement.

Risk taking, lack of maturity and peer pressure increase the risk of children breaking the law.

Intellectual disability and mental illness are other risk factors.

"These factors, combined with juveniles' unique capacity to be rehabilitated, can require intensive and often expensive interventions by the juvenile justice system," Dr Richards said.

Intervention can include non-custodial sentencing, meetings between offenders and victims or taking into account the law's impact on the psychological wellbeing of the offender.

However, the report warned that harm can be done if intervention is ineffective or unsuitable.

For example, young people in detention can influence their peers to pick up criminal behaviour.

Also, detention can disrupt school attendance and family life.

Dr Richards says programs where young people are taken to prisons to see what they're like have been shown to backfire.

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.

The Limited Benefit of Prison in Controlling Crime

Anyone interested in criminal justice policy in NSW should read this excellent article, entitled "The Limited Benefit of Prison in Controlling Crime", published in Current Issues in Criminal Justice, and written by Professor David Brown of UNSW. 

Brown questions the relationship between imprisonment and crime rates, and makes particular reference to developments in the UK and US, where reductions in prison populations are already occurring, in part due to the concept of 'justice reinvestment'.

It also refers to the NSW Election 2011 and the policy options for this State. 

A long, hard look inside our jails would benefit all of us

By Cynthia Banham, SMH, 4 February 2011:

One of the most telling commentaries on all that is wrong with prisons was made recently by American law professor David Cole. ''We commit offenders to such places precisely so we will not have to pay attention to them,'' he wrote in an article for the New York Review of Books.

In Australia since the 1980s, state - and sometimes federal - politicians have campaigned relentlessly on simplistic ''tough on crime'' platforms. They would have you believe that locking up criminals is the answer to all society's ills.

It is precisely this ''out of sight, out of mind'' approach that Cole is talking about in regard to the US prison system, but politicians have distorted expectations and understandings of what imprisoning people can achieve.

While there is no argument that society needs prisons to protect it from violent criminals, there is a growing realisation here, and in the US and Britain, that for other offenders it isn't really working.

Tough on crime, tough on the budget's bottom line

By James Eyers, AFR, 30 October 2010:

Increasingly punitive laws come at a high price for the taxpayer. 

Given the soaring costs of incarceration, it is peculiar that economics doesn't feature prominently in the law and order debate.

It costs an average of $205.94 a day, or $75,168 a year, to keep an offender in a NSW jail. So as the state's prison population soars – in the past decade the number of inmates held in full-time custody in NSW has  increased by 47 per cent to 10,068 – the burden on the government's coffers has also grown to the point where the NSW Department of Corrective Services spent $1.09 billion in the 2008-09 financial year, including the costs of building new jails.

According to the Australian Bureau of Statistics, 29,317 people were being held in full-time custody in Australia in mid-2009, a figure 35 per cent higher than a decade earlier. Nationally, the net operating expenditure and capital costs of prisons is $2.8 billion, stated a report this year by the Productivity Commission. Five years ago, it was $1.8 billion.

Despite the substantial spend, research about whether locking people up helps to reduce crime is thin on the ground. Nor has a significant evaluation been conducted on whether alternatives to prison are more effective at rehabilitating offenders, although many people think they are. "The question the public needs to have answered is what is the return on that investment? What are we getting back?" says Don Weatherburn, director of the NSW Bureau of Crime Statistics and Research.

"We do not know whether the imposition of tougher penalties exerts a general deterrent or not. We have very little objective information on which types of Australian correctional program are effective in reducing reoffending and which are not," says Weatherburn. "We have very little information on what contribution, if any, rising imprisonment rates have made to the fall in Australian crime. The lack of information on these issues is a serious impediment to the development of effective policy."

Nevertheless, many state political leaders maintain a penchant for stirring up community fears about crime and announcing tougher law and order policies – longer sentences, more police – as "solutions" to make their constituents feel safer.

Yet the steep rise in the number of prisoners across the country is not due to increasing crime rates. In the past decade, all property crime, including robbery, has fallen nationally by 47 per cent, while assault levels have remained stable, says Weatherburn. Rather, rising imprisonment rates are largely a product of government policies including tougher bail laws and the introduction of standard non-parole periods.

Courts are also sentencing more convicted persons to jail terms.

"In the politics of law and order, no would-be government wants to be outflanked in terms of being tough on crime," he says. "Right around the country, politicians are grappling with the fact that regardless of whether crime is going down – and it is in most states – the public think it is going up and the justice system is failing to adequately deal with it."

Reducing Indigenous Contact with the Court System

The Bureau of Crime Statistics and Research released a paper in December 2010, entitled "Reducing Indigenous Contact with the Court System".

Highlights from the BOCSAR media release:

• In 2009, Indigenous Australians constituted less than 2 per cent of the NSW population but accounted for 13 per cent of all persons charged with a criminal offence. The Bureau estimates that more than 80 per cent of Indigenous defendants currently appearing in court will at some stage return, most within less than two years. 

• A 10 per cent reduction in the return rate would reduce the number of Indigenous court appearances by 2,558 per annum or approximately 32 per cent. A 20 per cent reduction in the rate of return would virtually halve the number of Indigenous people turning up in court, reducing the ratio of Indigenous to non-Indigenous court appearances from 1 in every 9.6 cases to 1 in every 18.6 cases. 

• According to the Director of the Bureau, Dr Don Weatherburn, the best way to reduce the rate of Indigenous re-offending is through effective rehabilitation programs. 

“Programs that combine intensive supervision with treatment have been found to produce an average 16 per cent reduction in reoffending. Given the strong influence that drug and alcohol abuse have on the risk of Indigenous arrest, it would also seem prudent to increase Indigenous access to drug and alcohol treatment."

In the Illawarra Mercury on Monday 24/1/11, Michelle Webster reports reaction to the BOCSAR paper on the South Coast. Veteran Aboriginal Legal Service solicitor Gary Pudney told the Mercury that indigenous reoffending could be cut through improved access to rehabilitation programs, but said many offenders were missing out on effective treatments because of a lack of available places.

"The best way to get people out of the criminal justice system is to get them employed and the best way to get them employed is to get them off drugs and alcohol.

"But there is a lack of places in these programs. We can spend days or weeks calling trying to get someone in," Mr Pudney said.

According to the the article, a spokesman for the Attorney-General, John Hatzistergos, said that the government was trying to reduce the over-representation of indigenous people in the court system through a number of court-based and rehabilitative programs.

Recently, Barry O'Farrell pledged an additional $10 million to expand rehabilitation places.