An end to law-and-order auctions in NSW?

Michael Pearce SC

In a surprise but welcome move, a senior NSW politician has called for an end to the law-and-order auctions which have prevailed in NSW politics since the 1980s. And this was not just any politician but the NSW Shadow Attorney-General Greg Smith SC MLA.

In an article in the current Bar News of the NSW Bar Association, Mr Smith traces the history of the law-and-order auction through various state election campaigns back to the 1980s. He demonstrates convincingly the damage done by that debate and concludes: ‘I became very uneasy with the law and order auctions, as they tended to make the law — particularly the sentencing laws — more complex and more susceptible to error.’

He refers to the lower imprisonment rates and lower recidivism rates in Victoria and observes: ‘[Victorian] sentences are lower and rehabilitation more effective. Be assured that I strenuously support protecting the community from dangerous offenders, but most of those imprisoned could not be so described. They are sentenced to less than 12 months’ imprisonment and there is a strong case for non-custodial punishment.’

He refers also to the failure of the Blair government’s law and order agenda in the United Kingdom and its repudiation by the present government following a report by Cherie Booth QC. Mr Smith concludes: ‘We have come to a point in time when the theory of “lock them up and throw away the key” just doesn’t work.

Governments all over the world have to contend with more pressures on limited resources … The state cannot afford to keep incarcerating more people, and spending will have to shift to reducing incarceration rates.

Non-custodial punishments will inevitably become more prevalent and far more work must be done on rehabilitation before, during and after incarceration.’

This departure from decades of reflexive law-and-order rhetoric in NSW is bold and courageous. It carries special weight because of Mr Smith’s intimate knowledge of the justice system and his senior position as a prosecutor.

It is especially timely for us in Victoria where politicians on both sides of the major divide show signs of being seduced by the lure of a law-and-order auction. For example, there is legislation currently before the Victorian Parliament giving police unprecedented powers to stop and search people, in direct conflict with the Charter of Human Rights and Responsibilities. It has bipartisan support and is modelled on UK legislation, part of that country’s failed law-and-order program.

It is time for politicians of all persuasions in Victoria to stop and take stock of where we are headed. They need not look too far: just northwards and over the Murray River. What lies beyond there is not attractive or worthy of emulation. If you doubt that, just ask Mr Smith.

Michael Pearce SC is president of Liberty Victoria.