A Bill for Change

Maybe that cheque isn't quite as blank as Labor would have you believe.

In the lead-up to the election last year, Labor conceded defeat and started campaigning with the line "Don't give Barry O'Farrell a Blank Cheque".

The theory was, I expect, that people would be scared about what the Coalition would get up to if they won too convincingly.

As things eventuated (and as most people expected) the Coalition did of course win the election, and convincingly so - but did not win enough Upper House seats to have an outright majority there.

This of course means that to get legislation through the Upper House they need to bring either Labor or a minor party with them.

The presence of the Shooters and Fishers means that the task is a little easier than perhaps some might like - but nonetheless something is better than nothing.

We saw the Coalition having to give something away earlier this year when it came to getting their Power Sale Legislation through the Upper House. Of course what they had to give was a massively unpopular opportunity for hunting in our National Parks - but, as I said at the time, it was democracy at work.

Earlier this week, however, we saw a far more edifying example of this process.

Last year the Coalition introduced a real dog of a bill on graffiti.

I wrote at the time about why it was such an awful bill, at least in part. In short, there were there main changes to be made in the way that offenders could be dealt with.

The first was to require a court sentencing a person to community service for a graffiti offence to spend time cleaning up graffiti. This is sensible.

The second was to give the court various powers in relation a person's driver's licence if that person is convicted of a graffiti offence.

The powers included:

• Extending the time the person could spend on their L's or P's by up to 6 months
• Suspending a person's licence for up to 6 months, or
• Reducing the threshold number of points before a person can have their licence suspended

I wrote about why it was a dumb idea at the time.

The third change was to remove the power to issue a caution to young offenders. Again, why it was that this change was necessary, and why the additional burden this would place up the court was justified was never properly explained.

In any event, the bill (as expected) sailed through the Lower House. An amendment was moved by Paul Lynch (ALP) to allow police to issue a caution for a first offence, but this was easily defeated. The bill was promptly passed and sent to the Upper House in August 2011.

Here, the Coalition ran into some more trouble. First, Labor moved a amendment. It was explained Adam Searle (ALP):

The changes he suggested were as follows:

• To allow police the power to give a warning for a child where the offence was a first offence, and
• To remove the power over drivers licences.

These amendments were made with only the Coalition opposed, and the bill was passed (with the Greens opposing the bill in its entirety) and returned to the Lower House.

The very next day, the Lower House rejected the amendments. When the bill bounced back to the Upper House in mid-September, the Upper House took the unprecedented step of asking for a "Free Conference" - essentially a working group of 10 Upper House and 10 Lower House members to try and reach a mutually acceptable solution.

The motion for a Free Conference was passed by the Upper House with the Coalition and the Christian Democrats Opposing it.

There matters ground to a halt. O'Farrell pontificated about how the Coalition had made this promise but couldn't get the bill passed, and it appeared that that was were things would lie.

Then, earlier this week, completely out of the blue, the Lower House rejected the request for a Free Conference and sent the bill back to the Upper House.

When it arrived, the leader of the Shooter and Fishers moved an amendement. As best I am able to understand it, the amendment removed the power to extend the period of time a young person must spend on L's or P's, removed the power to suspend a licence, but retained the power to reduce the number of points a person must accumulate before their licence as suspended.

As David Shoebridge said when speaking on the amendment, it improves the act (he said "marginally", but I suppose that is a matter of perspective).

The bill as amended was passed and returned again to the Lower House, where it will no doubt promptly pass.

The deal was reported in the Daily Terror as below:

I stand by my opinion that the bill remains a pretty awful one. It is a vague attempt to do "something" without any evidence whatsoever that the "something" will achieve anything. It is another example of politicians engaging in back-of-an-envelope lawmaking.

But it is good to see a bill being improved (however marginally) through the convoluted and drawn out parliamentary process.

It is also interesting to see the Shooters using their position in the Upper House to do this - so many have written about how the Shooters are merely O'Farrell's lapdogs, but here they have forced him to abandon what was seen a key promise made to take action of graffiti.

It remains to be seen if this is the trend or the exception.

*(I'm a little unsure about some of the procedural details above as, in places, I had some not inconsiderable trouble understanding the Hansard transcript. If I've misunderstood something, please let me know in the comments or on twitter)*

Writing's on the Wall

I try not be too rude about politicians on this blog.

If you want to read about the ideological failings of any party, there are plenty places for you to go. If you enjoy a writer who just spews hatred at anyone in particular, there are probably dozens of blogs and more twitter accounts than you could count.

But sometimes a politician is willfully stupid. Sometimes a politician chooses to set aside any pretence of governing for the good of the people but rather makes a shamelessly populist, attention grabbing move that could wreck people's lives for no good reason whatsoever.

Take a bow David Elliott.

Photo from Hills Shire Times

Earlier today David published his grand theory of dealing with graffiti.

Now, let's be clear about something. Vandalism is a serious issue. Businesses, private individuals, and the taxpayer spend millions every year cleaning it up. I don't think tagging is art, and I'm as annoyed as the next person by graffiti on the train.

As it happens, from where I sit as I type this on a CityRail train, I can see that some wag has scrawled something incomprehensible on the wall. Moreover, some particularly industrious individuals have "etched" words onto every single window of the carriage.

The thing is, though, whilst the perpetrators' work usually simple to the point of being incomprehensible, the solutions are anything but.

Society will always have a lowest rung - a dissaffected, angry youth engages in graffiti because it provides him with self-expression, because he is bored, because he is angry and doesn't know why, or just because, to him, it gives him a sense of power in a society where he has none.

There are any number of reasons why people do this. The causes are not simple, no matter how much you want them to be, and neither are the solutions.

So, let's have a look at Mr Elliott has to say on the issue.

So, he is a victim of crime. That's unfortunate, and not something to be laughed at. What it is not is a good reason to start using the power you have to try and force an increase in penalties for the offence you were the victim of.

That's why we have things like the Law Reform Commission - sober minded people who can weigh and assess all the factors before recommending what, if any, changes need to be made.

Below is a photo of the damage, and it is awful.

Moving on:

Let's be clear.  The entire basis for his call for change is the fact that he has seen graffiti around his local area? And the fact that there is graffiti means that only "strong and aggressive" laws can combat vandalism?

Has he done any research into present penalties? Does he even know what the penalties are? Does he direct the reader to a report calling for harsher penalties? Can he perhaps indicate a foreign jurisdiction where "strong and aggressive" laws resulted in a sudden end to graffiti?

Of course he doesn't.  He's pulling this all from a certain area not mentioned on polite blogs.

Reading on:

Hang on.  He hasn't even discussed this with the AG OR the Police Minister? He is calling for these simply extraordinary penalties without having discussed it with ANYONE other than the poor sod who he got to write this piece?

And let's have a look at what his suggestion is.

Mandatory Gaol? For GRAFFITI? Is he actually crazy?

We all saw how well mandatory detention went in the Northern Territory. We all know how much it costs to keep someone in gaol. We all know that gaols are called Universities of Crime for a reason.

What else? Lifelong bans on Driving? I've written previously about how dumb it is to take licences away from graffiti vandals, so I won't repeat myself. But seriously - for life?

Oh good, naming and shaming.  First of all, if you think the prospect of having your name read out in parliament as being a graffiti vandal is going to stop them, then you really don't understand teenagers AT ALL. If they are smart enough to work Hansard (and that's not a given) I guarantee the extract will be on Facebook within the hour.

When people tag something, they use their "tag".  It's not usually their name, but it is an identifier. As I ride this train, I have no idea who NUEKS is, but I sure as heck know he was here, because his tag is scrawled all over the windows. That's the point!

Of course, had Elliott done five minutes of research he would know this. I suppose, however, that is less fun than grand-standing for attention by promoting a brainless new scheme that won't fix the problem, but will make a few Baby Boomers in their McMansions nod furiously.

Vandalism does cost everyone. And ridiculous politicking like this costs us even more.

Shooting Through

You can never rely on someone in politics.

I'm sure Barry O'Farrell knew that before the last few days came to pass, but he has certainly been reminded of it now.

To understand why, it necessary to take a few steps back.

During the lead-up to the election, the Coalition released a policy entitled Graffiti Crackdown:

The full Policy can be found here

The policy detailed the following objectives:

A few initial thoughts.

1) To require the vandals to appear before the courts is silly.  To be clear - at the moment, police have a discretion as to whether a person should appear before a court or rather be dealt with by way of a fine.

Is there any evidence that police are going soft on offenders?  Or is the public dissatisfied with the approach taken by police? I've seen no such evidence, and I doubt that it is the case.

It's normal to read complaints about the discretionary decisions made by magistrates and judges.  It's odd to see police implicitly criticised in the same way.

2) The third policy point is, in fact, entirely along these lines.  It removes the court's discretion in relation to Community Service Orders and forces the court to impose such an order.

Was the court not imposing enough orders?  Were there examples of youths reoffending and not being forced to clean up the mess?  Who knows!  But this is a nice headline and a strong sounding bullet point, so I suppose I shouldn't be surprised.

3) The changes in relation to driver's licences do not make any sense.  It is ridiculous.

Let's think about the average graffiti vandal.  In using the word vandal, I am intentionally excluding those persons who graffiti in a legal and responsible manner and focus only on those who create eyesores and damage property not belonging to them.

If this person has their licence taken away or limited, is it more likely to change their behaviour, or is more likely to cause resentment, increase bitterness towards "the system" and hammer home the message that you are an outsider, that society has no place for you?

Moreover, once you start suspending licences, you start setting up people to fail, because there is a good chance that the (even more resentful and angry) young person will drive anyway, be convicted of Drive While Suspended, and start down a road that ends in being disqualified til 2050 and in prison.

Having seen many people head down that path and come out the other side in pretty poor condition, it is my view that we shouldn't be taking licences off people unless they are actually a danger to other people while driving.

Moreover, is there any good reason to be taking away their licences?  Is there any evidence that it will actually deter them from offending?  I doubt there is, and if the research was done I doubt that it would show this result.

It's illogical.  Why don't we also confiscate their IPods? Or, better yet, spray-paint their hands with acrylic paint every day for a month? ACTUALLY, what we should do is name them and shame them.  Yeah, that'll work, right?

People who tag walls and graffiti trains do it for complicated reasons.  To simply pluck solutions out of the air because it tests well or, even worse, because it sounds like a good idea to someone with no experience in the criminal law, is stupid, and deserving of ridicule.

The worst part of the whole debacle is this: in November 2010 a detailed inquiry presented its findings on the way graffiti is dealt with.

The Full report can see read here

The report spends some time looking at the way councils and the community deal with graffiti, and in fact made a recommendation that the Coalition has all but directly lifted and pasted into the policy:

On criminal penalties, the report spent some considerable time reviewing submissions made on penalties.

Several councils made submissions on this point.  Some criticised the maximum penalties available, whilst others looked at the willingness of the courts to apply heavy penalties where appropriate. Certain councils complained about the level of police resourcing devoted to graffiti, which the submission from the AG department detailed the difficulty police have catching and prosecuting the offenders.

No one who the writers saw fit to quote thought that we needed to branch out into these new forms of punishment.  Why?  In my view, it is because the changes make some political sense and no policy sense whatsoever.

The only recommendation made by the report on the issue of penalties was this:

In any event, the legislation was introduced to the Legislative Assembly on 1 June 2011. The objectives of the Act read as follows:

Greg Smith (LIB and Attorney General) spoke on the bill, explaining its provisions and the reasons for the bills introduction.

The debate continued on 2 August, with Paul Lynch (ALP) saying the following:

He goes on the criticise the part of the bill that will force magistrates to impose Community Service Orders, and makes these comments about the drivers licence changes:

The final comment I want to pick out from his speech is this, on the removal of the police discretion:

Finally he indicates that at an appropriate time he will move an amendment to the bill.

Over the rest of the week numerous Liberal members spoke in favour of the bill and just as many ALP members spoke in support of the bill with the amendments hinted at.

Jamie Parker (GRN) also spoke on the bill.  Rather than supporting an amended version of the bill, he indicated that he would oppose it. He said the following:

On 3 August Clover Moore (IND) spoke briefly on the bill, opposing it because she believes it will not act to reduce graffiti. On the same day Greg Piper (IND) gave what he called "qualified support" - the qualification appearing to be that "a concerted effort to engage with offenders and potential offenders must be maintained." Richard Torbay also spoke in support of the bill.

On 5 August the bill was passed by acclamation.  

An amendment was immediately moved by Paul Lynch (ALP).  The proposal was neatly summed up by Greg Smith:

The amendment failed and the bill was promptly sent off to the Legislative Council.

The Second Reading Speech before the Legislative Council was delivered by Michael Gallagher on 10 August, before Adam Searle (ALP) spoke of the ALP's intention to propose and amendment to the bill.

After some speeches for the bill (every second speech being in favour of some sort of amendment) Paul Green (CDP) spoke strongly in favour of the bill, including the parts that the ALP had to this time indicated an intention to amend.

The next day David Shoebridge (GRN) came out hard against the bill, opening with:

There followed further speeches from LIB and ALP members parroting the same positions.

On 25 August, the bill was read for a second time. Adam Searle then proposed amendments which would, if I am reading them correctly, allow police to caution offenders who have committed a first offence, and further restore a magistrate's discretion regarding the making of Community Service Orders.

Jane Barham (GRN) and David Shoebridge (GRN) both spoke in support of the amendments, whilst Scott MacDonald (LIB) spoke against. The House divided as follows:

The important part, and the part that would get O'Farrell so upset in the days to follow, is this: Mr Borsak (SF) and Mr Brown (SF) can both be seen in the Ayes section. The Shooters and Fishers had not said a word against the bill during the debate but voted for the amendments.

The bill as amended was put to a vote and, with only the Greens opposing it, was passed and returned to the Legislative Assembly.

O'Farrell's fury practically screams off the pages of Hansard for 26 August:

The bill was sent back to the Legislative Assembly with the following message:

Not content to have his say in parliament, O'Farrell immediately started speaking to the media about the issue using what can only be described inflammatory language:

From SMH - full article here

Whilst O'Farrell was out talking about the act however, the Greens were far more interested in talking about the fact that the Shooters and Fishers had sided with the ALP and the Greens:

From SMH - full article here

By Saturday O'Farrell was ripping into the Shooters for voting for the amendments in the manner in which they did:

From SMH - full article here

Typically, the Tele went over the top with this headline:

Full article here

Herald reports suggest that since the vote the Shooters members have been avoiding the media.

It is difficult to imagine why the Shooters would create this issue.  Do they really care that much about the Graffiti legislation?  They are more than a single issue party, but they also usually pick their battles. Why this?  Why now?

The cynic in me wants to suggest that they have been put up to this by O'Farrell as a chance to prove their independence on a comparatively minor bill - but the drama seems to have hurt the two parties, despite the fact that it has somewhat lessened the impression of being in the Coalition's pocket.

The Greens have been busy saying that this issue a big falling out between the Coalition and the Shooters:

As for me - I don't know what to think.  Perhaps the Shooters are sticking it to the Coalition by voting down a bill that had been a part of their campaign - but how does voting with the Greens and the ALP help the Shooters?

And is it possible that O'Farrell really didn't expect that to happen?  No matter what it is that the Shooters want - why would they do this without giving O'Farrell any warning whatsoever.

I don't know.  The more I think about it, the more I think that there is more to this than meets the eye.  Maybe the Shooters are feeling taken for granted.  Maybe they will relent and let the bill pass through the Legislative Council once they get a commitment on something they want from the Coalition.

Or maybe this has all happened with a wink and a nudge from both sides, just to prove to everyone that they are not the great mates everyone seems to think they are. I certainly find it hard to believe that this is all about the merits of the bill.

Either way, I'm sure we'll be hearing a lot more about this bill, no matter what happens when it reappears in the Legislative Council later this week.

Spray-on Justice

Another day, another Coalition "Law and Order" announcement.


I've written previously about the push for mandatory gaol sentences for cop killers (and David Shoebridge MLC posted an excellent criticism of the policy here).


Today O'Farrell announced that there would be expanded, stricter penalties for graffiti vandals.

Photo from here

I have no problem with graffiti being taken seriously.  It is a vandalism, it is a serious matter, and I don't doubt the figures quoted in this Herald article ($100 million spent per year, $50 million of that by CityRail).


The offence carries gaol as a maximum penalty and, for repeat or very serious offenders, that is an appropriate penalty.


That said, graffiti is, for now, usually punished by an on-the-spot fine.  Repeat offenders can be brought before the court on Malicious Damage charges, and receive the appropriate criminal penalties.


Today it was announced that all offenders will now have to attend court to be sentenced.


I wouldn't have a problem with this if the courts were not already stretched to capacity.  Most local courts struggle to deal with the quantity of work they already face, so it is going to be a challenge if there are now to be a whole new tranches of alleged offenders to be dealt with.


Another gripe with the move is the fact that these "law and order" policies seem to fly in the face of the government's stated policy to direct young people away from the court system.


Shoebridge said today "Less than a month after the Attorney-General called for less young people in the justice system, Greg Smith has announced a measure which is going to force more young people before the courts." quoted here.


Before the election, the then shadow attorney General called for an end to the unedifying "law and order auction" that took place every election.  Given the move towards mandatory sentencing and now this "crack-down" on graffitti, it would appear that the only reason the auction was ended was that the Coalition knew they could win without it

Attorney General Greg Smith, photo from here

That's all a side-point, however, to the really baffling part of this move: according to the Tele, "the courts will have the power to suspend a driver's licence, extend the period they remain on their learners or provisional licence or limit the number of demerit points accrued."


This idea is pretty stupid, for a number of reasons.


First of all, i question whether has anyone got any reason to believe that this will reduce offending other than "Yeah, that sounds like a good idea"?


I doubt it will.  O'Farrell said today "We know that too many of those involved in graffiti are young boys, but we know that young boys enjoy their cars and drivers licences - that's why we think this is an effective policy."


It just seems like something that might work. Or it might not.  But whatever, let's just inflict it on the community and see what happens!


I don't know how many convicted graffiti artists actual have drivers licences, let alone how many are 17, how many actually have accumulated demerit points, or how many people will therefore lose their licence.


I suspect the Coalition government doesn't really know either, because no one has actually had a close look at the issue to work out whether it will work.


Further, does an act of graffiti make a person any less fit to hold a driver's licence?  Why don't we also ban them from the CBD, forbid them owning a mobile phone, force them to get a haircut, or make them say "I must not ruin other people's stuff" 100 times whilst standing on one leg? Why are we taking their licence off them?


None of the reports I have read have any information as to whether these licence consequences will be mandatory on conviction, or whether they will be part of a magistrate's discretion.


As someone who works in the criminal law and deals extensively with licence issues, I'm pretty sure this is going to a massive headache for everyone involved.


There are already a large number of offences that can result in a loss of licence, including:
- Drink Driving
- Dangerous Driving
- Driving Whilst Suspended/Disqualified/Cancelled
- Driving Unlicenced


Of course, people can also lose their licence for having accrued too many points.


The system is complex.  Penalties and disqualifications increase if an offence is a second offence in a 5 year period. Disqualifications can be concurrent or  consecutive.


People who commit 3 major offences in 5 years are automatically given a further 5 years off the road, but this can be quashed at a later date.


Depending what kind of licence you have, you can accumulate different numbers of demerit points before you lose your licence.


Now we are going to start changing the number of points people can get, start extending their time on their P's, or even start suspending licences. And all for what?  All because "we know that young boys enjoy their cars and drivers licences - that's why we think this is an effective policy."

This is not dissimilar from the SDRO having the power to suspend driver's licences for non-payment. Yes, it is a useful enforcement, but we shouldn't be going about taking away privileges everyone else has without good reason.


If you are a drink driver, or if you drive recklessly, if you speed or if you talk on your phone while driving, you deserve to lose your licence.


But to start taking people's licence away for reasons entirely unconnected to a person's driving - it's arbitrary, it's going to be administrative nightmare, and there is no evidence (at least that I have seen) that it will work.


So what's the point?