Case Explained:This article breaks down the legal background, charges, and implications of Case Explained: Jacinta Allan needs to show us proof of her tough new policy – Legal Perspective
This was published 3 months ago
“Both sides want to introduce less judicial wriggle room, tougher bail and parole conditions, and more jail time.”
These words were written by our crime columnist John Silvester in the weeks leading up to the 2018 state election, which pitted the Coalition’s Matthew Guy against incumbent Labor premier Daniel Andrews in what Silvester called “a law-and-order auction with both sides trying to appear tougher than the other”.
We are just over a year out from the 2026 election, and this time the bidding is already at fever pitch. Incumbent Labor premier Jacinta Allan’s Thursday press conference announcing that young offenders will face “adult time for violent crime” saw her asked by one reporter whether she would resign if crime numbers did not come down.
That was a clear reference to a commitment made (and subsequently adjusted) by Queensland premier David Crisafulli before his victory in last year’s state elections. Allan didn’t bite, but in true auction spirit, Opposition Leader Brad Battin then raised his hand to say he would tie his political fortunes to the crime statistics, if he is elected in 2026, and they haven’t come down by the end of his term in 2030.
This sort of rhetorical inflation may make good theatre, but the problem of youth crime in streets and homes across the country is not a play.
Since hitting a low during the pandemic, alleged crime incidents among children aged 10 to 17 have risen steadily. Last year, then-Victoria Police chief Shane Patton said the force opposed raising the age of criminal responsibility to 14, as Labor under Daniel Andrews had pledged to do, citing statistics for crimes committed by 12 and 13-year-olds. Months later, Allan scrapped the policy.
At the time, Patton’s deputy, Neil Paterson, also declared that “much of the child and youth offending we’re seeing is mindless and driven by the pursuit of notoriety or social media likes”. Yet, this week Allan and her ministers were making much of a “new type of offending”, pointing to the role of adults recruiting children into gangs as a form of abuse and threatening these “puppet-masters” with draconian jail terms.
The public could be forgiven some confusion. After all, the same government that now talks of jailing children as young as 14 for life told us only last year that: “We know that disproportionate criminal justice interventions actually increase rather than decrease the risk of offending for children and young people.”
So what do we actually know? As our state politics reporters Kieran Rooney and Chip Le Grand revealed this week, Allan’s policy about-face was presented to Labor MPs with no legal advice attached, but instead much talk of party political research. No legislation has even been drafted at this point.
There is no question that a government that cannot meet the foundational challenge of managing crime does not deserve to govern. If the Allan government is to avoid the charge that it is putting political expediency before soundly designed policy so as to be seen to be meeting that challenge, we need to see empirical evidence, and fast.
On what basis are they so convinced that harsher penalties, putting children in jail for years and seeing them “age into” the adult prison system, as Corrections Minister Enver Erdogan put it, will actually reduce crime?
Will talk of punishment be matched with renewed investment in support services and education for young people, as has been repeatedly urged by groups such as the Victorian Aboriginal Legal Service and the Human Rights Law Centre?
What evidence does the government have that judges in adult courts will approach sentencing differently from those in the Children’s Court?
In an opinion piece for The Age, law academic Mirko Bagaric argued that “the County Court and Children’s Court apply the same substantive law, and hence moving the forum in which some youths are sentenced from the latter to the former will do nothing to abate the crime crisis in Victoria”, calling the announcement “a political stunt”.
A more worrying possibility is that both sides of politics see a chance to transfer some of the political heat they are feeling over this issue to the judiciary.
On Thursday, shadow attorney-general James Newbury suggested Labor-appointed judges either “aren’t up for the job” or that their allegiances are affecting their approach. If this claim were true, it would go to the heart not only of the separation of powers but the rule of law.
What advice, if any, has the government had from professionals within the legal system? Do they have evidence that contradicts criminal defence lawyer Bill Doogue, who wrote for The Age this week: “As the Law Council of Australia, among others, has pointed out, there is no credible proof that subjecting children to adult-style jail terms makes communities safer.”
There are already worrying noises from voices we should heed. Ombudsman Marlo Baragwanath has written to the government out of concern about a likely spike in human rights complaints while the Parole Board describes, in its annual report, a youth custodial system already groaning under the strain of bail changes, undermining rehabilitation efforts.
“The government and opposition need to decide if they want media moments or meaningful change,” John Silvester wrote last month.
One of the keys to that decision is to set out the evidence and make their case. If the politicians can’t, or won’t, the odds are we’ll be left with another noisy law-and-order auction soon, and all of us will be the losers.
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