Prison as the Last Result: Fundamental Democratic Principle in Danger

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Prison walls

Prison as a last resort is a fundamental principle across modern Western democracies.

Indeed, the idea that a person should not lose their liberty unless there is no alternative has been embodied in the common law for hundreds of years, developing in Westminster-based legal systems since the thirteenth century.

But like other tenets of democracy, the presumption that a person should not lose their physical freedom unless this is unavoidable has gradually been curtailed in recent years in a range of ways, including the tightening of bail laws and introduction of mandatory minimum prison sentences for certain criminal offences.

Queensland Coalition vows to send more children to prison

Now, the leader of Queensland’s Liberal National opposition, David Crisafulli, has announced he is ‘determined’ to remove the principle that detention is a last resort when it comes to children if his party wins the state election later this year.

He has vowed to do this by amending the state’s Youth Justice Act 1992 which currently makes clear that a child should only be sent to prison if no other option is appropriate.

The opposition leader made the populist announcement in Townsville on Tuesday, telling the media:

“An LNP government would make sure the rights of victims come first before the rights of offenders”

“We will be making sure victims are front and centre … It’s rewriting the act to put victims first, it’s giving victims visibility … and opening courts to let the sunshine in.”

But while such rhetoric may appeal to many, the fact of the matter is a plethora of research has established over many years that sending kids to prison rather than diverting them away from it and focusing on rehabilitation in fact increases the likelihood of reoffending, drawing children into cycles of crime and thereby not only harming them, but society as well in the longer term.

The Paluszek youth justice legacy 

But it’s important to note it’s not just the state’s LNP that’s been focusing on punishment rather than helping troubled kids to get back on the right track.

Under the premiership of Anastasia Paluszek, the state suspended it’s human right’s legislation so that it could lock children up in police cells with adults, because facilities are overcrowded and it’s ‘tough on crime’ approach has resulted in a massive increase in arrests, along with, under new laws, stricter criteria for obtaining bail. More recently, the Government overrode the state’s Human Rights Act to make breach of bail an offence for children.

While it might sound like a sensible approach to curbing the crime rate across the state, and certainly provides a focus on victims, who also suffer, it also represents a totally unimaginative and lazy approach to solving the underlying multifaceted problems which contribute to crime, particularly youth crime. 

It also ignores the fact that the measure of detention as a last resort for children is enshrined in the United Nations’ convention on the rights of the child, which Australia has ratified. 

Everything we know from a global body of research shows that young offenders in particular have the opportunity to turn their lives around if they are nurtured with the appropriate intervention strategies.  

And if that sounds ‘woke’, perhaps consider it this way – if we keep locking people up, all we do is end up with more overcrowding in already stretched to capacity facilities. When young people are locked up without adequate help to deal with their personal problems, they are only exacerbated, and we release, eventually, adults only more hardened to a life of crime and violence. 

All at an exorbitant cost to the taxpayer. Instead, there are strategies which have proven to work, and result in rehabilitation so that people can eventually reform antisocial behaviours, cope in society and contribute to its greater good, which is far better for the whole of the community in the longer term. It’s a simple case of ‘spending’ versus ‘investing’ –  taking the time to consider where taxpayer dollars can be used most productively. 

But politicians don’t think this way. They lack the capacity to consider life beyond election cycles and base policies on opinion polls. As a result our rights, across the board are becoming further and further eroded and have been for quite some time. This was particularly evident across the board during Covid, when ‘emergency powers’ were in force. 

It’s important to remember that while such strong strategies might seem like the perfect solution for those who commit serious crimes, we also need to consider those people who might break the law, but only commit a minor crime. One size definitely does not fit all. And research, along with, to some extent, the anecdotal evidence suggests that a punitive approach is not necessarily a deterrent. 

The principle of detention as a last resort in New South Wales 

The New South Wales sentencing council acknowledges that “imprisonment is the sentence of last resort. A court should only sentence an offender to imprisonment if it is satisfied that none of the above penalties are appropriate. 

The Council further states that a term of imprisonment may be served in a correctional centre, such as a prison or, if the sentence is imposed in the Drug Court, a compulsory drug treatment centre.

A range of non-custodial sentences are available to courts so that imprisonment as a last resort can be upheld. 

Police powers of arrest in New South Wales 

Once upon a time in New South Wales, arrest was also considered a measure of last resort, however over time, police powers have changed. Police have the power to arrest under a range of circumstances, including without a warrant. These are outlined in Section 99 of the Law Enforcement (Police Powers and Responsibilities Act) the LEPRA. 

The LEPRA states: 

(1) A police officer may, without a warrant, arrest a person if–

(a) the police officer suspects on reasonable grounds that the person is committing or
has committed an offence, and

(b) the police officer is satisfied that the arrest is reasonably necessary for any one or more of the following reasons–

(i) to stop the person committing or repeating the offence or committing another offence,

(ii) to stop the person fleeing from a police officer or from the location of the offence,

(iii) to enable inquiries to be made to establish the person’s identity if it cannot be readily established or if the police officer suspects on reasonable grounds that identity information provided is false,

(iv) to ensure that the person appears before a court in relation to the offence,

(v) to obtain property in the possession of the person that is connected with the offence,

(vi) to preserve evidence of the offence or prevent the fabrication of evidence,

(vii) to prevent the harassment of, or interference with, any person who may give evidence in relation to the offence,

(viii) to protect the safety or welfare of any person (including the person arrested),

(ix) because of the nature and seriousness of the offence.

(2) A police officer may also arrest a person without a warrant if directed to do so by another police officer. The other police officer is not to give such a direction unless the other officer may lawfully arrest the person without a warrant.

(3) The arresting police officer or another police officer must, as soon as is reasonably practicable, take the person who has been arrested under this section before an authorised officer to be dealt with according to law.

Period of arrest 

After arrest, police can only obtain a person for a maximum of six hours, for investigation and questioning (Section 114 of the LEPRA). However, under Section 118 police can apply, before the 6 hour period expires,  to a court to have this period extended. 

Terrorism offences 

Different rules apply for anyone suspected of terrorism offences. Under Australian law, police can apply for preventative detention orders to keep suspects in custody for up to 14 days without bringing charges against them.

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Sonia Hickey

Sonia Hickey is a freelance writer, magazine journalist, and owner of 'Woman with Words'. She has a strong interest in social justice and is a member of the Sydney Criminal Lawyers® content team. Sonia is the winner of the Mondaq Thought Leadership Awards, Spring 2022.

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