Beyond Bars Position Statement Download as Word Version Here

David Brown

BEYOND THE LAW AND ORDER AUCTION
With a NSW state election looming the various political parties are releasing their election policy statements and jockeying for media coverage. In the criminal justice and law and order area a familiar pattern has been played out in election after election. Both major political parties have attempted to position themselves as "toughest" on law and order. This has led to what is commonly described as a law and order "auction" or "bidding war".

Typically both the ALP and the Coalition promise to protect the community by providing for more police, heavier sentences and more prisons. Whether such promises actually provide greater community safety and protection against crime is seen as largely irrelevant. The aim is to appear "tough" on the assumption that this is what public opinion and the media want and therefore what will be popular at the ballot box.

Many citizens and the more responsible sections of the media have become cynical about this law and auction, realising it is largely rhetorical and symbolic. People are fed up with being played for dupes. They are looking to politicians to provide responsible and accountable criminal justice policies, policies which actually work to prevent crime, protect the community and respect our institutional traditions of due process and a fair trial.

A responsible debate would focus on issues such as what sort of policies do actually work to prevent crime, protect the community and diminish recidivism; what sorts of values the criminal justice system should promote; how public monies devoted to criminal justice should be spent; and what services should be delivered. But we hear little about such issues and instead debate is dominated by short term, short sighted and largely symbolic posturing over heavier penalties. In order to have a responsible debate over these issues Beyond Bars suggests it is time to leave behind the symbolic macho politics of the law and order auction and engage in a constructive debate oriented around crime prevention, community safety, and accountability.

TOWARDS A RESPONSIBLE DEBATE
In the interests of promoting such a debate Beyond Bars suggests certain approaches or themes which might assist in producing a better quality of debate and policy over criminal justice issues. These suggestions concern the way the debate might be conducted rather than what particular policies should be pursued. Beyond Bars has produced a separate series of Fact Sheets on specific issues which people might like to consult (see www.beyondbars.org.au).

Standing up for good policies
Criminal justice news is not all bad. NSW governments of both political persuasions, sometimes supported by the opposition of the day, have introduced a range of constructive measures which research has shown do work to prevent crime, protect the community and deflect offenders from further criminal involvement. Measures such as the juvenile cautioning scheme, the introduction of circle sentencing in particular Indigenous communities, community mentoring schemes, and intensive post-release services have demonstrated positive effects. But when it comes to the law and order auction no-one wants to own or support these policies publicly.

Presumably the thinking is that the opposition and media will tag the schemes as "soft on crime" and that the public is only interested in more and more punitive measures. But this becomes a self-fulfilling prophecy for without the political leadership arguing the benefits of such policies and programs they do not develop the public support they deserve and can be easily cut back or starved of resources.

Beyond Bars calls on the NSW government and the Coalition opposition to highlight, defend and extend the various positive criminal justice programs and initiatives that do exist, rather than only focussing on punitive policies. It is clear that policies and programs that focus on crime prevention, creating harmonious communities, and giving young people a good start in life do exist, but these are frequently limited, under-funded and then ignored in the public sphere.

Evidence-based policies
While most politicians pay lip service to evidence based policies, when it comes to the crunch, research evidence is often ignored in favour of a punitive quick fix to alleviate media pressure, often arising out of a particular case. That quick fix is often to simply increase penalties or diminish defendants' rights. This is seen as alleviating the media and public pressure and lets the politicians off the hook. It is in truth the softest of soft options -the easiest and most symbolic of responses, which frequently has little effect in preventing crime and promoting community safety and sometimes makes matters worse. It is vital both that government properly fund criminal justice research and even more importantly, pay attention to what it tells us.

Research produced by agencies such as the NSW Bureau of Crime Statistics and Research, the NSW Law Reform Commission and the NSW Ombudsman, should be read, digested, debated, and acted on. Instead we see examples such as the decision to move to majority jury verdicts. The Attorney General announced this decision the very same day as tabling a NSW Law Reform Commission report which recommended against this very change. Frequently the NSW Ombudsman's Reports monitoring legislation are completely ignored in the political process, unless they happen to recommend an increase in police powers. Beyond Bars calls on all political parties to promote and respect criminal justice research, to debate it seriously and to use it to fashion evidence-based criminal justice policies.

Ensuring equality of access to criminal justice resources and programs
It is not widely known but there is not equality of access to various criminal justice programs across the state. For example in relation to sentencing options, Community Service Orders and Home Detention schemes are not available sentences across many rural areas of the state as there is not the resource infrastructure to support those forms of sentence. As a result offenders in particular areas may end up being sent to prison where they would have received a CSO or a home detention order if they lived in a metropolitan area.

To give another example certain prison based rehabilitative programs are only available in particular prisons. This is a form of inequality and discrimination that is just not acceptable. A concerted effort backed by substantial resources needs to be made to ensure that criminal justice programs are equally available to all residents of the state.

Respecting institutional independence
It is important that politicians understand and respect the basic framework of government, the separation of powers, the balance of powers and the importance of institutional independence. When it comes to criminal justice issues politicians have sought time and again to diminish the independence of key criminal justice agencies and interfere directly in criminal justice processes. The Coalition has repeatedly proposed to bring the DPP under direct parliamentary control, which would be disastrous. The government frequently "directs" the DPP to appeal in cases where the prospects of success are slight, but the government wants to appear outraged by particular decisions, however legally correct they may be.

These interferences can compromise judicial processes as well as use up valuable resources. Politicians of all persuasions seem to think they should be able to tell the judiciary how to sentence offenders and what sentences to give, with some of the more extreme proposing US style mandatory minimum sentencing regimes or some other form of sentencing by politician. The traditional convention of the Attorney General defending the judiciary has been abandoned and the AG is frequently one of the first to distance themselves and the government from particular decisions.

Enormous political pressure is placed on authorities such as the Parole Board and inappropriate political veto is placed over decisions by the Mental Health Tribunal to release forensic prisoners. Proper legal procedures are frequently by-passed. The NSW Police Association has run media campaigns against "lenient" magistrates and particular decisions without bothering to lodge appeals. Their strategy is that it is easier to run a campaign through the Daily Telegraph than bother using the formal legal avenues of appeal. Such approaches undermine the integrity of the criminal justice process. Beyond Bars calls on all political parties to respect the independence of criminal justice agencies such as the DPP and the judiciary.

De-politicising policing
Policing in NSW has become highly politicised. Media conferences are frequently held at which the Minister of Police and sometimes the NSW Premier appear on the platform together with the Police Commissioner and senior police. This is similar to the Bush tactic of appearing at press conferences flanked by American generals, a militarisation of politics. Policing at the upper levels in NSW has been most obviously and publicly affected by this politicisation and factionalisation. Particular officers are favoured for promotion according to how well they can handle political crises and appear media savvy. Particular media commentators receive internal leaks and promote the views of individual officers to suit their own media agendas.

Policing is highly political. The laws being policed are products of the political process, and the social and economic context in which offences are committed is influenced by political factors. Further, politicians are ultimately responsible, through the Police Minister, for the funding and conduct of policing. However this does not mean that politicians should micro-manage the police and seek to direct or influence policing operations or targets. If formal directions are to be given they should be in writing and not in secret behind the scenes. The suggestion that police should go about "rounding up" or "locking up" people of particular ethnic background, apparently with little or no concern for the legalities of whether there is evidence of particular wrongdoing justifying specific charges, is the height of irresponsibility. It shows such a fundamental lack of understanding of basic principles of legality and government as to render those who make such calls unfit for public office.

Beyond Bars, while recognising the political nature of policing, calls on all political parties to back off and as much as possible de-politicise policing; the police should not become an arm of particular political parties.

Conclusion
Beyond Bars suggests that in the lead up to the 2007 NSW state election all political parties produce a better quality, responsible and accountable debate around law and order and criminal justice issues. We suggest that such a debate should feature:

• A preparedness to stand up and argue for, defend and extend existing policies that are working to reduce crime and recidivism, such as circle sentencing and juvenile cautioning;
• An emphasis on evidence-based policies and criminal justice research;
• Equality of access to criminal justice resources and programs across all areas of the state;
• A respect for the institutional independence of criminal justice agencies such as the DPP and the judiciary;
• An attempt to de-politicise policing