The most remarkable feature of last week’s debate in the YMCA NSW Youth Parliament on the Youth Government’s Juvenile Justice Reform Bill were the words that didn‘t make an appearance: “Tough on crime.”
There were no “crackdowns” or “harsher penalties.” No “clear message” or “zero tolerance.” Also missing: accusations of “weakening,” “relaxing,” “softening,” “watering down” and granting “get-out-of-jail-free cards.”
Perhaps it was because the bill wasn’t addressing any “rampant” or “out of control” crime epidemic. Like much of this simulated parliament’s agenda, the bill located a maligned minority and laid a path for society to include them better. The YMCA NSW Youth Parliament involves students of 15-18 years representing their electorates, drafting bills and advocating their ideas in a simulated parliamentary sitting week.
Youth Deputy Premier Dempsey Bloom highlighted recidivism as he introduced the bill to the Legislative Assembly. “Sixty-five percent of young people appearing in the Children’s Court will re-offend in five years,” he said. “Time spent in remand is a significant factor.”
To reduce that time, the Youth Government’s proposal targeted bail reform. It started with recommendations in a 2012 review of the NSW Bail Act 1978 (pdf). Remember, this is what the Youth Parliament is doing, not the actual O’Farrell Government.
The Bail Act has been amended 19 times since it was introduced in 1978, making it complex, inconsistent and more susceptible to error. Remand rates have jumped as more offences have incurred presumptions against bail. In 2007 alone, when the Labor Party introduced one of its last amendments, the number of juveniles in remand leapt from 3600 to nearly 5100.
The Liberal Party promised a review prior to winning office in 2011. Attorney-General Greg Smith, then the Shadow Attorney-General, penned an article on the topic (pdf) for the Bar News of the NSW Bar Association. Smith bucked the trend, evident since the late 1980s, of escalating “tough on crime” rhetoric and policies by successive NSW governments and oppositions. Instead, drawing on his 30-year career as a lawyer in prosecution and criminal justice agencies, he was critical of the law-and-order auction” by both sides of politics.
“NSW has traditionally had a higher rate of recidivism (that is, prisoners returning to prison within two years) than the average,” Smith wrote. “It has been at about 43 percent for the last three years with our prison population now over 10,000 and steadily rising. Victoria has only about 4,400 prisoners and a recidivism rate of about 36 percent and falling.”
Measures of recidivism never match re-offence rates perfectly, for reasons outlined in a 1999 paper (pdf) by Carlos Carcach and Simon Leverett: re-offending can go undetected, and when detected it may still not lead to conviction. And returning to prison within two years is only one possible definition of recidivism among many: police apprehensions, court referrals and court appearances are alternative measures. A 2008 paper by Chris Cunneen and Garth Luke cautioned that “…the measures are a proxy for re-offending… the juvenile justice system is one where significant levels of informal and formal discretionary decisions are made concerning the treatment of young people.” The same study observed further reasons for looking beyond recidivism alone: people in the criminal justice system have interests further than avoiding re-offending.
In June 2011, the NSW Government tasked the Law Reform Commission with, among other objectives, investigating “what presumptions should apply to bail determinations and how they should apply,” “whether special provisions should apply to vulnerable people” and “the desirability of maintaining section 22A,” which limits a juvenile in the system to making a single bail application.
The review was handed down by retired judges Hal Sperling QC and James Wood QC in April 2012. Several of its themes echoed a 1996 report (pdf) by Michael Cain for the NSW Department of Juvenile Justice: the positive correlation between severity of sentences and likelihood of re-offending; the disproportionate level of juvenile crime that a small minority accounts for; the prospect that identifying this group early, and intervening more attentively, could have a significant impact on juvenile crime overall.
This new report’s findings on youths in remand attracted the Youth Government’s attention. Plainly, remand imposes limits on liberty. It is also, to some degree, unavoidable, where individuals may pose a threat to the community or flee before their court appearance. But amendments to the Bail Act, which have steadily increased the range of offences for which there is a presumption against bail, seem to serve an agenda of punishment rather than protection.
Eighty-five percent of young people remanded in juvenile detention won’t receive custodial sentences, and over 10 percent will be acquitted altogether. Is the state entitled to keep you in remand for no other reason than to punish you — especially when, in the end, it proves to be a more severe punishment than your crime is judged to deserve? And if remand amounts to punishment, and judges are instructed to presume you deserve it, in what meaningful sense are you presumed to be innocent until proven guilty?
There are practical concerns, too. Crime rates in NSW are declining while incarceration rates are climbing. The report also argues that by removing juveniles from ordinary life in society, including from employment, education and their home environments, there is “significant concern” that remand compounds factors that make re-offence more likely. People whose income is cut off are more likely to steal. People who lose their chance to live a productive day are more likely to behave destructively. People whose family environment is replaced by daily interaction with other inmates are, in Smith’s words, “exposed to a university of crime among prisoners.” The report also noted it is harder for remand prisoners to prepare for and participate in their trials than for juveniles who are granted bail.
The Youth Government’s bill would open specialised remand centres to mitigate these risks, so at least juveniles held in remand would no longer interact with convicted criminals. The bill also sought to expand rehabilitation programs.
But the bulk of the bill was concerned with NSW’s incredibly high rate of rejection of bail applications, which exceeds that of comparable Australian jurisdictions. From the Law Reform Commission report: “The number of young people on remand on an average day has increased from approximately 225 in 2000 to over 400 in 2010.” So on the one hand, the Youth Parliament bill addressed the causes of bail application rejections; on the other, it shortened the waiting time in remand before trial. It acted on many of the recommendations of the Law Reform Commission to improve the bail laws – and most radically, proposed a new Bail Court.
Of course, none of this has happened. When the Law Reform Commission’s report was released last June, it ignited a fierce debate. It was welcomed by community groups, including the Youth Action & Policy Association NSW, the Public Interest Advocacy Centre, the Bail Reform Alliance, Mission Australia, the Law Society of NSW and Greens MP David Shoebridge.
On the other hand, Scott Weber, president of the NSW Police Association, said: “We can’t afford to see watered down community protections. Softening those laws to allow persons accused of serious and violent crimes to be released on bail would be a big step in the wrong direction… Giving an accused a get-out-of-jail-free card is not the answer.” The Daily Telegraph took to calling the Attorney-General “Marshmallow Smith".
Premier Barry O’Farrell made it clear where he stood: “We have absolutely no intention of weakening the state’s bail laws.”
Back in the Youth Parliament, the Youth Opposition raised concerns about the geographic distribution of the Youth Government’s proposed remand centres — but the bill easily cleared the lower house.
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