While I was a criminal justice researcher in the public sector, I got really interested in sentencing laws in Australia and their history. This might form part of a broader paper about the pursuit of a ‘law and order’ agenda in South Australia under the 2002-2011 Rann government.
As Don Weatherburn wrote in his book Law & Order in Australia (pp. 28-32), state governments across Australia started to promote tough ‘law and order’ agendas in the 1990s and into the 2000s. Both Liberal/National and Labor governments have been keen to promote this agenda (taking inspiration from the United States and the UK). South Australia was no exception. Although South Australia had a Liberal government for most of the 1990s, it was not until the final years of the Olsen government that ‘law and order’ became a hot political issue. This delay in joining the ‘law and order; bandwagon probably owes much to the small ‘l’ liberal outlook of the Attorney General Trevor Griffin, who had been part in the position of Attorney-General (or Shadow Attoryney-General) since the late 1970s. But once Mike Rann became Labor leader in South Australia in the late 1990s, he was willing to push this ‘law and order’ agenda – a policy area where Labor had seemed weak traditionally.
Rann’s ability to promote Labor and himself as ‘tough on crime’ and in tune with the concerns of the tabloid media first pressured Griffin and the Liberal government into reforming the law concerning break and entering during a moral panic over ‘home invasions’. The Criminal Law Consolidation (Serious Criminal Trespass) Amendment Act 1999 introduced tougher penalties for break and entering offences, but also inserted into the Criminal Law (Sentencing) Act 1988 an instruction for sentencing judges that stated:
A primary policy of the criminal law is to protect the security of the lawful occupants of the home from intruders…
Once Rann’s Labor government came into power in 2002, s. 10 of the Criminal Law (Sentencing) Act 1988 was amended on several occasions to instruct sentencing judges that they needed to consider certain things before handing down their punishments to offenders. But the amendments made seem to have had little coherence and look as if they were inserted into the legislation after a particular issue became a media storm for the Rann government. For example, the Statutes Amendment(Bushfires) Act 2002 stated that in relation to bushfires and arson, the primary policy should ‘bring home to the offender the extreme gravity of the offence’ and ‘extract reparation from the offender… for harm done to the community’.
In 2005, the Statutes Amendment (Sentencing of Sex offenders) Act, among other things, inserted another primary policy into s. 10. This third primary policy of the section now stated:
A primary policy of the criminal law is to protect children from sexual predators…
There was little explanation by the Government for the reason for inserting the new primary policy concerning child sex offenders, other than the Attorney-General Michael Atkinson asserting that ‘[t]his government is tough on convicted paedophiles and pederasts’ and that it related to the State Strategic Plan’s priority about reducing crime rates (House of Assembly, Hansard, 11 April 2005: 2274). Opposition MP Vickie Chapman said that this amendment would ‘create a plethora of primary purposes’ and proposed that ‘surely it is a contradiction in terms to have more than one primary or chief purpose’ (House of Assembly, Hansard, 4 May, 2005: 2516). In the Legislative Council, Robert Lawson further declared that this amendment was ‘window dressing’ and that the Government were ‘just simply seeking to put political rhetoric into the sentencing legislation’ (Legislative Council, Hansard, 26 May, 2005: 1949).
Chapman also asked the Attorney-General whether the two prior primary purposes had had any impact upon the sentencing decisions by the courts, asking for sentencing comments which refer to these primary policies, with Atkinson stating that he only aware of one case explicitly mentioning this policy (House of Assembly, Hansard, 4 May, 2005: 2516).
Indeed when the Rann governmment tried to insert another primary policy into s. 10 in 2007, Opposition Leader Isobel Redmond questioned why the insertion of another primary policy statement was necessary, based on the impact that the three previous primary policy statements had had on sentencing. Redmond said that she had asked members of the legal community whether these primary policy statements had had any effect on sentencing and claimed that ‘each of them was at a loss to give me any precise answer’, adding:
I simply wonder how, in practice, it will make any real difference to the way these matters are dealt with when an offender is before a sentencing judge (House of Assembly, Hansard, 6 March, 2007: 1935).
By the end of the decade, s. 10 was a conglomerate of different primary policies that reflected the reflexive nature of the Rann government to public/media concern over certain ‘law and order’ issues. Before these primary policies were removed from the legislation in 2012-13, the primary policies of s. 10 read:
(1b) A primary policy of the criminal law is to protect the safety of the community.
(2) A primary policy of the criminal law is to protect the security of the lawful occupants of the home from intruders.
(3) A primary policy of the criminal law in relation to arson or causing a bushfire is—
(a) to bring home to the offender the extreme gravity of the offence; and
(b) to exact reparation from the offender, to the maximum extent possible under the criminal justice system, for harm done to the community…
(3a) A primary policy of the criminal law in relation to offences involving firearms is to emphasise public safety by ensuring that, in any sentence for such an offence, paramount consideration is given to the need for deterrence.
(4) A primary policy of the criminal law is to protect children from sexual predators by ensuring that, in any sentence for an offence involving sexual exploitation of a child, paramount consideration is given to the need for deterrence.
As the title of this blogpost said, this s. 10 can be seen as a microcosm of the ‘law and order’ agenda of the South Australian government under Rann. In 2012, legislation was passed by the new Jay Weatherill government that removed the terms ‘primary policy’ from the Criminal Law (Sentencing) Act, which came into effect in March 2013. The new s. 10 now specified that in certain cases concerning serious criminal trespass, arson, child sex offences or firearms, the court had to take certain things into consideration. The new s. 10 read as:
(2) In determining the sentence for an offence, a court must give proper effect to the following:
(a) the need to protect the safety of the community;
(b) the need to protect the security of the lawful occupants of their home from intruders;
(c) in the case of an offence involving the sexual exploitation of a child—the need to protect children by ensuring that paramount consideration is given to the need for general and personal deterrence;
(d) in the case of an offence involving arson or causing a bushfire—
(i) the need to protect the community from offending of such extreme gravity by ensuring that paramount consideration is given to the need for general and personal deterrence; and
(ii) the fact that the offender should, to the maximum extent possible, make reparation for the harm done to the community by his or her offending.
As John M. Williams has argued, ‘law and order’ was central to the vision of the Rann government, seeing it as a potential vote-winner, a measure to demonstrate that the government ‘as listening’ to the public and the media and something to undermine the criticisms of the Opposition. This examination of s. 10 of the Criminal Law (Sentencing) Act and how it was subject to various amendments over the decade that Rann was in power reveal that this government tried to subvert the independence of the criminal justice system and bend the decision-making of the courts to the political will of the ruling government. As the Rann era passes into history, hopefully historians, political scientists, lawyers and criminologists will start to examine the major shifts in the South Australia’s criminal justice system since the late 1990s and determine how they fit into a wider ‘law and order’ trend amongst Australian state governments.
Photo credit: Gary Sauer-Thompson