In January last year Greg Smith SC (pic), the NSW shadow attorney general, took what looked like a noble political step.
He pledged an end to the law and order auction that had characterised NSW state elections since 1988, particularly in the period Bob Carr was the Labor premier.
This came as a marked shift from the Smith of a year earlier, who had been demanding imprisonment for youths carrying knives and a special offence for rock throwers.
Smith, himself a former deputy DPP, is now saying that in government the Liberal’s emphasis would be to invest in rehabilitation (the buzz phrase is “justice reinvestment”) in order to address the high rate of recidivism (about 50 percent of prisoners in the state return to the nick).
Here was a potential future attorney general stating that more should be done about the causes of crime rather than relentlessly locking people up.
The policy shift was greeted enthusiastically by, among others, Professor Mark Findlay, deputy director of the Institute of Criminology at the University of Sydney.
“If we are spared another state election of retributive madness and punishment one-upmanship, maybe politicians can address the real issues of crime and justice in this state today.”
He added that to truly change the public’s perception of criminal justice, the new message of rehab over remand must be continuous, clear and consistent. And it must come from both sides.
That all unfolded 18 months ago and now that we’re eight months away from a state election it’s timely to examine whether Smith is sticking to his course.
What appears to have happened is that the hard line hasn’t been sidelined; it’s just picked up a “soft” edge to be trotted out on appropriate occasions.
While we may not be seeing a rigorous a display of one-upmanship, neither Smith nor Attorney General John Hatzistergos are willing to take a step back.
A recent example is the plan to permit sentences to be extended for serious violent offenders in the same way that the Crimes (Serious Sex Offenders) Act allows sex offenders to be detained beyond their original sentence.
To that end Premier Kristina Keneally announced a 750-prisoner audit on April 11, four days after The Daily Telegraph performed its helpful warm-up routine, saying:
“Attorney-General John Hatzistergos is looking at extending the Crimes Serious Sex Offenders Act, which allows the courts to detain rapists and child sex offenders after their sentences end, to include other violent prisoners with a high risk of reoffending.
It is part of a review of the state’s serious sex offender legislation.
Opposition legal affairs spokesman Greg Smith has flagged similar laws if the Liberals win the next election.”
This suggests that a law and order auction is being avoided by agreeing with proposals put up by the other contenders.
Smith was quick to tell Justinian:
“I’m not trying to match the government. I put out this idea some time ago and the government’s matching me.”
Hatzistergos (pic) thought Smith’s concern with who said it first was a “curious position to [take on] policy-making”.
He couldn’t pin down precisely when the government had come up with the specific policy, nor was he quite sure when Smith came up with the idea. In any event, he thought the government had raised it first.
Smith explained that he’d been burned before by Labor “pinching” his party’s “good ideas” and it made him “wary” of giving away too much now.
Of course, rehabilitation has been a major policy talking point since Smith made his pledge in January 2009 not to indulge in a law and order auction.
Labor’s June state budget allocated an additional $3.1 million to a total of $26.7 million worth of rehabilitation and diversionary programs.
It’s a drop in the budget, but at least the emphasis has shifted, even if slightly.
Smith has not yet announced the level of the coalition’s spending on rehab and how much, if any, of the $1 billion a year he would divert from punitive policies.
He said the Opposition had been criticised in the past for not properly costing policies and were “taking that seriously”. He told Justinian:
“There’ll be policies that will make alternatives to full-time imprisonment available for certain classes of prisoner and policies that will work on rehabilitation in a much more determined way than the government has.”
Hatzistergos said he was grateful for the coalition’s support on a number of his policies, including last month’s announcement that intensive correction orders could replace periodic detention, but he needled the Opposition:
“What have they done? What have they actually announced? What is their actual plan to reduce reoffending?”
Smith’s response was that Labor’s promise to reduce recidivism 10 percent by 2016 was “a great pledge, but it’s not succeeding”.
Hatzistergos shot back, telling Justinian:
“Shadow cabinet don’t know where they’re going in relation to this [law and order] area. They seem to be torn between calling for tougher sanctions and rehabilitation.”
The position of the government is not dissimilar.
Hatzistergos said in a letter to The Sydney Morning Herald on June 21:
“The government has increased some penalties but we haven’t denied individuals the opportunity to rehabilitate.”
Both the soft and hard versions of Smith emerged when he said courts should be able to extend jail time for “dangerous young murderers” because “whilst with young offenders the courts and justice system must encourage rehabilitation, protection of the community is and must remain the most important factor in sentencing”.
In April The Australian reported the shadow AG as saying he knows, “there are still rednecks out there that want mandatory sentencing and matters of that sort …
“But the massive increase in average sentences handed down in NSW had contributed to an expansion in the state’s prison population and a corrective services budget of more than $1 billion every year.
“It is sapping away at our budget.”
At the same time he is “willing to go along with” shadow police minister Mike Gallacher’s policy of mandatory life imprisonment for the murder of a police officer “as an exceptional policy … because it deals with violence”.
Even though headlines such as “State Liberals walk away from the law and order auction” and “Truce on hardline sentencing” suggested a change of direction, it was accompanied by a chafing political straddle.
”[The growing number of prisoners] has required opposition legal affairs spokesperson Greg Smith to strike a new balance in the Liberal Party’s justice policy.
The Liberals plan to cut recidivism by using new techniques – including non-government organisations – to rehabilitate prisoners.
The other side of that balance is a continuing commitment to ‘serious time for serious crime’.”
Even when he announced his pledge Smith was winking at the hardliners. The SMH reported:
“While he remains ‘very keen on punishment and deterrents’ for crimes of cruelty, especially against children, Mr Smith said with 10,000 inmates in NSW jails and a recidivism rate of 43.5 per cent, the punitive approach was not working.”
A more accurate, though slightly less snappy, headline might have read: “Truce on hardline sentencing for some crimes, continued hardline sentencing for others.”
Perpetrators of cruelty, young murderers, violent offenders (broadly defined) and graffiti artists are among an expanding group over which the auctioneer’s hammer is poised.
We don’t know whether the earlier tough agenda on knives and rock throwing has been allowed to quietly fade from view.
When pressed, the shadow AG maintains he has stuck to his pledge. He told Justinian:
“As I always did from the first time I’ve had any publicity over my views – I’ve put as an exception to my attitudes – crimes of violence.”
Smith adds that it’s NSW Labor that is “desperately trying to beat the worn out law and order drum”.
Hatzistergos says much the same – that it’s Smith who has succumbed to the call of the law and order siren, thank you very much.
According to Hatzistergos, the shadow attorney general has a history of making “impulsive statements” on crime, and not all of them fit into his “violent crime” exception.
Admittedly it is hard to see how graffiti could qualify as “violence”, yet in March last year, when the three-month gaol term imposed on an 18-year-old girl for her first graffiti offence was downgraded on appeal to 12 months’ good behaviour, the SMH reported:
“When asked if [the girl] should be behind bars, Mr Smith said: ‘Personally, I think she should. I think graffiti is a very serious offence.
‘I understand that the culture hasn’t been to jail and we’ve got to change that culture, otherwise our city is just going to be … an eyesore’.”
If it’s eyesores that Smith wants stamped out he’d better start budgeting for two or three extra jails a year.
Samantha Bowers reporting