Inside Story

Ending Sydney’s law-and-order auction

The NSW attorney-general has taken the politically risky step of trying to reduce the prison population, writes Robert Milliken

Robert Milliken 3 April 2012 2125 words

NSW attorney-general Greg Smith (right) and security manager Patrick Aboud viewing the 300-bed drug treatment facility for prisoners at the state’s John Morony Correctional Complex. Kate Geraghty/Fairfax

When Sydney’s southwest suburbs suffered a wave of drive-by shootings early this year, the city’s tabloid press and notorious radio shock jocks went into overdrive. Their target was Greg Smith, who is about to complete his first year as attorney-general in Barry O’Farrell’s state government. In most respects, Smith is a classic conservative Liberal: a barrister, and former public prosecutor, who represents the leafy electorate of Epping. His Sydney north shore constituency is a world away from the streets on the other side of town where rival gangs of young men shot up each other’s homes in an intimidating display of turf warfare.

In one regard, though, Smith is something of a radical. After sixteen years of state Labor governments, he came to power promising to reform the state’s prison system. Instead of locking more people up, Smith has pledged to find formulas to allow many minor offenders and young criminals to be rehabilitated and then let go.

Sydney’s Daily Telegraph has waged an unrelenting campaign against Smith. It calls him “Marshmallow Smith,” and accuses him of going “soft on crime.” In one extraordinary front page splash in early February, the paper claimed: “Exclusive: Gays, Minorities Get Bail but the Rest… Go Straight to Jail.” The piece claimed to be based on a draft report by the NSW Law Reform Commission, which Smith had not seen. Media hype of this sort threatens to unsettle the government, in a political climate in which law-and-order auctions are the name of the game: both sides compete in proving to voters that they are the toughest on crime.

Smith claims to be unmoved. “The whole hardline approach against crime has been a failure in many places,” he tells me. “This attempt to make me look softer misrepresents what I am trying to do. I am trying to turn people away from crime. It’s not soft, it’s being more pragmatic.”

The challenge Smith faces in testing his pragmatic approach is daunting. Australia spends $11.5 billion a year on law and order, about $511 a year per person. The dubious honour for the biggest spending goes to New South Wales. In evidence late last year to a parliamentary estimates committee, and in a speech to a solicitors’ conference in Sydney, Smith painted a chilling picture.

Within two years of their release, 43 per cent of NSW prisoners reoffend, compared with just under 37 per cent in Victoria, for example, and less than 30 per cent in Tasmania. (The Australian Capital Territory will start reporting on recidivism from 2011–12.) This high recidivism rate accompanies another grim profile: of 15,000 people taken into custody in New South Wales in 2007–08, almost two-thirds were affected by drugs or alcohol when they committed their most serious offences.

Smith’s state also has the highest number of prisoners on remand in Australia. Over the ten years to October 2011, the number of adults held on remand rose by 86 per cent. More worryingly, more than four-fifths of the juveniles held on remand were eventually set free with non-custodial sentences. Locking these young people up, when their crimes are finally found not to deserve such punishment, simply creates more problems, says Smith: “They spend a long time being exposed to a university of crime among prisoners.”

The seeds of Smith’s liberal zeal to change all this go back to his days as a prosecutor, first as an instructing solicitor then as a crown prosecutor. He would respond with scepticism to the hard luck stories defence counsel wheeled out about their clients’ disadvantaged upbringings. Slowly, though, he realised that most people who commit crimes do so precisely because of their backgrounds, including dysfunctional family life and poor education opportunities.

At the same time, the law-and-order auction among politicians had corrupted the state’s judicial system. The chief cause were amendments to the Bail Act by successive governments – seventeen amendments in the legislation’s thirty-four years of operation – which made it harder for magistrates and judges to grant bail. One change under Labor in 2007 had a big impact on juveniles. The year before the amendment, about 3600 minors were admitted to remand; the year after the change, there were almost 5100.

This was a classic case, says Smith, of “the rush to appease a fearful public.” And the sense that it wasn’t working triggered his decision to go into politics and try to change it. “Being a legal practitioner, I could see that things were getting tougher,” Smith says. “It was harder for judges to comply with all the changes in legislation. The law-and-order auctions in elections over the past twenty years had skewed the judicial system. Sentencing had become much more complex. Errors were happening much more often. It was becoming harder for judges and magistrates to get it right. As a politician, I saw great difficulty in the higher recidivism rates in New South Wales than in Victoria and other states. When you look around the world, law-and-order auctions are all about being tough on crime. But they’re not cutting crime.”

Put another way, the crime picture in New South Wales presents a strange paradox. Over the past twelve years the rates of some forms of crime, including robbery, car theft and muggings, have actually fallen. Yet incarceration rates have risen. Don Weatherburn, director of the NSW Bureau of Crime Statistics and Research, says the fall in such crimes reflects a drop in heroin consumption since 2000, and a robust economy with lower unemployment rates and rising real wages. A bureau study released on 13 March found that a 10 per cent increase in household income could produce a 19 per cent drop in property crime over the long term and a 14.6 per cent fall in violent crime.

Weatherburn laments that rising imprisonment rates have gone hand-in-hand with this trend. Another bureau study found that the proportion of defendants refused bail in NSW criminal courts doubled between 1993 and 2007. Instead of pouring money into rehabilitating criminals, governments had taken the safer option of imposing tougher penalties: “They lost faith in rehabilitation. There were no votes in it.”

Appearing with Weatherburn on the ABC Radio National program The National Interest three years ago, Smith pledged that if the Liberals won the 2011 NSW election, they would change that: “We will take a more moderate approach, not ignore protecting the community from serious offenders, but doing more to help the less serious offenders who have been locked up sometimes for much longer than they should, and losing their chance to be rehabilitated.”

Has Smith now found the reality of power a stumbling block to putting his promises into action? If so, he is not saying. But in his first year as attorney-general and justice minister, he has embarked on a dazzling array of initiatives that may at least set the stage for change. He has commissioned a report into bail laws from Hal Sperling, a former Supreme Court judge, due very soon. One of its terms of reference involves how bail is used for young people and Indigenous people. As Weatherburn told the ABC program, attempts to cut Aboriginal imprisonment rates have failed completely. Such rates are now depressingly higher than they were higher than they were when the Hawke government set up the Royal Commission into Aboriginal Deaths in Custody in the 1980s.

Smith says there will “certainly” be new bail laws after he has digested Sperling’s report. Precisely what, he is not revealing. But he does want an end to what he sees as discrimination against young people in the system now: “I’d like to see a return to bail as something primarily intended to make a prisoner turn up to court and not intimidate witnesses, rather than being used as another form of imprisonment, as it is now.”

He has commissioned a second report from James Wood, another former judge, into what he calls the “ridiculous complexity” of the state’s sentencing laws. The increased incarceration rates are due mainly to tougher sentencing regimes that governments have imposed, with standard non-parole periods and longer average sentences – all part of the law-and-order auction.

And there has just been a separate review into prison job structures by Keith Hamburger, a former director-general of Corrective Services in Queensland. As a result, Smith says, there are plans to cut head office job numbers in Corrective Services NSW, and to devolve more power to the regions where prisons are located.

Smith has also ordered the closure of three prisons, at Berrima, Parramatta and Kirkconnell, leaving the state with thirty prisons. He has shed 354 jobs through voluntary redundancies. And he has cut $50 million in spending to make inroads into the $113 million that the corrective services department had run over budget last financial year.

Along with stripping down an inefficient prison structure, Smith wants to cut some of the crudeness from a culture inside prisons that works against prisoners’ chances of rehabilitation. Over ten years, he says, the rate of prisoners educating themselves by taking TAFE or other courses has halved to 30 per cent. Many prisons have lockdown times, when inmates are sent back to cells, starting at 2.30 pm: hardly conducive to study.

Even less conducive is the high rate of drug addiction among prisoners. About 4500 inmates now need daily intervention for drug and alcohol problems. Many are treated with methadone, which may quieten them down but does nothing to cure them. Smith has overseen the opening of the state’s first drug treatment unit inside a prison, at the John Morony complex at Windsor, near Sydney. Eventually, he hopes up to 600 prisoners could be released each year with their drug problems solved: “That will have an effect on their chances of reoffending.”

In late March Smith and Mike Baird, the NSW treasurer, announced a pilot scheme for a government bond in which private investors put up money to fight recidivism. Two community organisations, Social Finance and Mission Australia, will develop the pilot scheme to help 500 repeat offenders released from Junee and Parklea prisons. Smith says his aim in all this is quite simple: he wants to cut the NSW recidivism rate by 10 per cent over the next five years, and to get it below the national average in ten years. “There is no point in building prisons just to house the people who keep reoffending.”

It seems a logical enough argument. And cutting a bloated, inefficient prison bureaucracy is the sort of move one could expect to win points with a cynical NSW electorate. But political landscapes are littered with examples of governments buckling under “soft on crime” attacks like those the tabloids and shock jocks have heaped upon Smith. Nine months ago another conservative leader, David Cameron, Britain’s prime minister, intervened to overrule liberal sentencing laws planned by Kenneth Clarke, the justice secretary. “My mission is to make sure families can feel safe in their homes,” Cameron loftily declared. “The first duty of government is to protect people.”

It was a classic line from the law-and-order auction songbook. Can Smith resist similar pressures that police and a populist media will put on his plans in the state with Australia’s most tumultuous and colourful history of law-and-order controversies?

Oddly enough, Smith’s reply echoes David Cameron’s line. “I want the community to be a safer place to live in,” he says. Then he turns the argument around by citing laws giving police greater powers that the O’Farrell government introduced in the wake of the drive-by shooting spree. The new laws have tightened the provisions about consorting and criminal gangs in ways that have alarmed civil liberties and prisoners’ rights advocates. The changes went through parliament unamended in March. “These are not soft,” says Smith. “They are tough laws, and I am behind them.”

Yet Smith deserves credit for at least seeking a new approach to a system that has kept too many young, Indigenous and minor offenders on a treadmill of incarceration, with little hope of more productive lives. “I have a big challenge ahead,” he says.

“I haven’t changed my views on violent crime. The community has to be protected from it. But if my statements that we’re not going to take part in a law-and-order auction make me a radical, so be it.” •