Law Reform Without The Scare Tactics


Sometimes the length of time a government takes to release a report is a good indication of its significance. How often have we seen reports that parrot what governments want to hear being bundled into booklets and pressed into the hands of journalists with almost unseemly haste?

Reports that challenge government policy, however, invariably take a little longer to roll off the presses.

The review of the Bail Act by former Supreme Court Judge Hal Spurling took six months to be released by the government. That’s a good indication that this report might actually say something.

It is good to see that in his first serious public comment on the Bail Act review this week, Attorney General Greg Smith has indicated that he might be prepared to fight for one of the core recommendations of the review: that a person charged with a crime has a presumption of innocence and the right to liberty, unless there is evidence of a significant threat to the community.

The A-G’s stance is in line with the overwhelming body of evidence favouring bail reform. As a well tested and evidence-based approach, you might think it could easily become government policy. Sadly things are not that easy. In fact the A-G’s position is a red rag to a bull for sections of the law-and-order obsessed commercial media.

It is also being exploited for narrow political advantage by those politicians, including the leader of the Labor Opposition in NSW, who are stuck in the "Laura Norder" battles of past state elections.

Greg Smith’s defence of some of the review’s recommendations matters because over the years, the Bail Act has been tinkered with for political purposes to the extent that it basically drives people into jail.

One of its worst features is the notorious Section 22A. This section states that you get one shot at bail. If you muck it up, you spend months and months waiting in jail for your trial.

This provision alone has seen the prison population swell. The number of prisoners held on remand because they have been refused bail has grown from just over 700 in 1995 to more than 2500 in 2010. It has become such a problem that in the most recent 2011 figures more than a quarter of the NSW prison population was in jail awaiting trial, having been found guilty of nothing.

This spiteful provision applies to kids in exactly the same way as it applies to adults. Even the most ardent advocates of a law and order agenda admit that kids are collateral damage when it comes to 22A. It was never intended to incarcerate more children. But that’s exactly what it has been doing all these years.

The scandal is that only 20 per cent of kids on remand — kids jailed while they wait for their trial to start — end up being convicted and sentenced to jail. That means that the other 80 per cent have been dragged out of home and school and held in jail for days, weeks, months, waiting for a trial that doesn’t result in a custodial sentence. This sees bail being used to punish defendants rather than ensuring people turn up for trial.

The fact that tonight we will have more than 400 kids locked up in NSW jails is deeply worrying. This figure is even worse when you consider NSW jails its kids at four times the rate they do in Victoria.

However, if those combined tragic figures are not shocking enough, the fact that more than 50 per cent of those young people in jail are Aboriginal is proof of the abject failure of our criminal justice system.

While these utterly devastating facts have been shouted from the rooftops by social justice activists and lawyers for years, there’s been little discussion of the issue in broader society. This is why many in the legal community and beyond were heartened when the Attorney General indicated in the lead up to the 2011 election that it was time to look again at the Bail Act and its increasingly complex and unworkable provisions.

For even mentioning bail law reform the Attorney General has been given a pasting on commercial radio in recent months. In much of this rhetoric the weight of evidence against a broken and destructive Act that ruins lives and adds to a burgeoning prison population is dismissed as being "soft on crime".

But having binged for two decades at the law and order smorgasbord, there are signs that politicians are feeling queasy. Such a feast also costs the state an arm and a leg. There has been a 254 per cent increase in the total remand population since 1995 compared with an increase of 55 per cent in the full-time custody population. Both figures have greatly outstripped population growth.

The swelling prison population not only has adverse social impacts. It has also delivered a billion-dollar-plus prisons budget, with an extra $333 million being spent on jailing juveniles. A move away from the "tough on crime" mantra would benefit not only the most vulnerable citizens of NSW, but the state’s financial bottom line, too.

Since taking office the NSW Premier has made several public statements worthy of the worst days of the law and order "auction" under state Labor. Evidently the Attorney faces a formidable battle both within his own party as well as with sections of the commercial media and other politicians in seeking to reform a law that results in the misery and corruption of so many lives.

It will be a courageous move for the Attorney General to comprehensively address the failings of the current Bail Act and adopt the recommendations of the Bail Act review, but his statement this week that we need "a smarter bail law, one based on risk management" is a welcome indication of a more rational approach. People admire politicians who stick to their principles, especially when under attack.

These recent comments from the Attorney show some hope that he might have the strength to stare down the more virulent opponents of Bail law reform. How this positive start translates into legislative action is a real test of this Parliament’s capacity to enact law reform in the public interest. No one is holding their breath.

New Matilda is independent journalism at its finest. The site has been publishing intelligent coverage of Australian and international politics, media and culture since 2004.