New SA laws threaten rule of law

New SA laws threaten rule of law

22nd Feb 2024

Nowhere else in the Australian political and policy process is there the level of dangerous populism than that which exists in the criminal justice system. For over three decades politicians in South Australia from both major parties have sought to outbid each other with increased jail terms, disrespecting the role of the courts and refusing to acknowledge that such an approach does not reduce crime.

So the announcement in January by Premier Peter Malinauskas that there will be amendments to the State’s sentencing laws that would mean any person convicted a second time for a serious child sexual offence would automatically be sentenced to indefinite detention, and could not be released unless they can, via the means of two experts appointed by a court, show that they can control their sexual instincts (a vague term if ever there was one). Even if they are released they would face electronic monitoring.

Mr Malinauskas boasts that his laws are draconian with a capital D, as though that is a badge of honour. They are, says the Premier ‘the most draconian laws of their type anywhere in the country’. That is correct but that should be no boast. These laws are indeed draconian. They are appalling and the most egregious attack on the rule of law we have seen in some time. Equally odious is that they will lead to more defendants pleading not guilty and therefore alleged victims having to endure a trial. And as always the case with mandatory sentencing, there is zero evidence that such an extreme law will reduce offending. It has no deterrent value.

We expect, in a democratic society, that politicians respect the rule of law. As the Law Council of Australia has put it, the problem with so called mandatory sentencing, and the Malinauskas government’s proposals are an extreme example of this, is that it undermines the rule of law. That is because, as the Law Council says, judges ‘are impartial decision makers that interpret the law, assess the evidence presented from both sides of the case before making a determination’. This is how our system should work.

So by tying a judge’s hands in forcing them to sentence someone to indefinite detention, the Malinauskas government is undermining the court’s duty to accord justice in each case. Indefinite detention is problematic as a concept and even more so when it is mandatory.

Broad legislation will lead to serious injustice because it will punish people disproportionately where they do not deserve lifelong detention for their offence.

The proposed new laws do not consider the unique factors in each case. They might, for example, mean that young people are locked up for life. They might mean that a court dealing with an offender who has committed offences many years ago but who is now fully rehabilitated will not be able to take that into account.

Mr Malinauskas’ quest to be ‘Mr Draconian’ on child sexual assault crimes, will increase the likelihood of those who allege that they are victims of such crimes, having to face a trial. There will be many more pleas of not guilty, even in cases where the evidence against an individual is strong, because they have such a strong incentive to see if, despite this, they can beat the prospect of indefinite imprisonment. So those who allege abuse are not well served by this change in the law.

The final point is that while politicians promise that increasing penalties and mandatory sentencing reduces crime, the evidence is that it does not. Do we really think that a person who commits a serious sexual assault on a child, is deterred from doing so because they think about the prospect of indefinite detention? The answer is no.

There are far better ways to deter child sexual assaults, but this requires intensive work and resources committed by governments to work with those at risk of offending or who have offended. It seems however that evidence-based policy in the area of criminal justice is again put to one side so a politician can garner votes and headlines with a deeply flawed tough on crime approach.

The ALA thanks Greg Barns SC for this article.


Greg Barns SC is a barrister and national criminal justice spokesperson for the Australian Lawyers Alliance.







The views and opinions expressed in this article are the author's and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).


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Tags: South Australia mandatory sentencing Child Sexual Abuse Rule of law Greg Barns SC