After building one of the nation’s most restrictive bail regimes after Jill Meagher’s murder (in 2012) and the Bourke Street attack (in 2017), Victoria bucked the trend and softened its laws in 2023, having accepted a coroner’s criticism of legislation which he found contributed to Veronica Nelson’s death in a Melbourne prison in 2020.
It’s not yet two years since those 2023 reforms. But Premier Jacinta Allan has now completely reversed this position, vowing to introduce the “toughest bail laws in Australia”. It follows staunch petitioning by social media influencers, FM radio hosts and the tabloid press, all demanding a response to what they say is a youth crime wave engulfing the suburbs.
Allan has now apologised to victims of crimes committed while offenders were on bail, and said that “we got it wrong” in 2023. Among the changes Victorians can expect will be the removal of the principle that children should only be detained in custody as a last resort.
Victoria’s one-eighty on bail laws is an expression of the age-old conflict between the forces of reform and the forces of reaction which defines criminal justice policy. Reformers cite solid evidence that prison is a wildly expensive, ineffective and ultimately self-defeating Band-Aid solution to the social generators of criminal behaviour. They emphasise the staggering numbers of deaths in custody, especially of First Nations people (including Ms Nelson, who was arrested on a shoplifting charge). They point to the traumatic and criminogenic effects of custody, especially on children.
But it is the forces of reaction – fuelled by deeply felt, often prejudicial views we cling to about what young “thugs” do and don’t deserve – that now firmly hold sway. Getting tough on what News Corp tabloids have labelled “pint-sized criminals” has become such electoral dynamite that it is winning elections.
In early 2018, Labor parties formed government in all mainland states and territories except New South Wales, and in some places it was genuinely difficult to see how the Liberal-branded oppositions would ever win back the government benches. Seven years later, they’re finding a way.
The first to do so was the Northern Territory Country Liberal party, which was blasted back into power last year by tabloid and social media campaigns to get tough on criminal kids. During its very first sitting week, the CLP government rammed through legislation reversing Territory Labor’s historic achievement of raising the age of criminal responsibility to 12. The new chief minister, Lia Finocchiaro, justified that decision to the ABC by claiming nonsensically that recriminalising 10-year-olds would create “much better opportunities for authorities to intervene early in their lives” – while actually closing down some of those opportunities. To her base, her pre-election language had emphasised “meaningful consequences” for 10-year-olds who break the law. She also pledged to reintroduce spit hoods (banned after a landmark royal commission in 2016), widen police powers and toughen bail laws.
None of this is new, and in part that’s the point. Finocchiaro and her team were determined to retreat and repeal, to undo the few royal commission-inspired changes Labor hadn’t already undone themselves, as part of a broader culture war agenda that has included ending treaty negotiations. It turns out that there were many, many votes in it for them.
Over the border in Queensland, the Liberal National party took note. While promising to “divert” young people from the criminal justice system, David Crisafulli’s LNP also pledged to make that much less likely, by allowing sentencing courts to judge them “on every police caution, restorative justice agreement and breach” – and to ensure that a child’s criminal history follows them into adulthood.
These changes fundamentally attack the principles that underpin separate youth justice regimes, the most important being based on our understanding of adolescent brain development and the impact of trauma (on the one hand) and supportive intervention (on the other). Labelling children as crooks and “thugs” – a favourite word among vigilante media and politicians – is among the worst things we can do to teens who are forging their identities and learning their places in the world.
Stoking moral panics about youth crime had won reactionaries elections in the NT and Queensland, and the rest of the country learned the lesson. The federal agreement to raise the age of criminal responsibility was quickly abandoned everywhere outside the ACT. South Australia’s Labor government this month unveiled plans to “treat teens like bikies” (as the Advertiser’s front page put it), and now Victoria’s Labor government – which was always reactionary on youth crime under Dan Andrews, despite its claim as the country’s most progressive state – has promised the toughest bail laws in the country amid panic about a perceived crime wave.
Most crime committed by young people is a symptom of much deeper social problems, which are often created or at least sustained by failures in public policy. The children in detention now in the Northern Territory – practically all of whom are Aboriginal – are the children of the Intervention, which among other things turned their communities into mini police states. Before they began committing crimes, most young offenders have been victims of truly horrific childhoods. Labelling them and punishing them more severely simply doesn’t work to reduce crime and create safer communities – if anything, it has the opposite effect.
But these lessons are being ignored and quickly abandoned in our new commitment to reaction over sensible policy – when will we learn?
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Russell Marks is a criminal defence lawyer and adjunct research fellow at La Trobe University. His latest book is Black Lives, White Law: Locked Up and Locked Out in Australia (La Trobe University Press, 2022)