Social Commentary

‘Penal populism’ – A Dominant Driver of Unprincipled Legislative Change?

Penal populism is a practice where politicians fearing to appear ‘soft on crime’ introduce punitive penal policies to align the criminal justice system with popular public sentiment. Through penal populism, politicians portray themselves as allies of the public, ensuring the interests of offenders are not “favoured at the expense of crime victims…and the law abiding public.”[1]Populism is therefore a tool used to interpret changing public sentiment about what should be criminalised and the severity of said criminalisation. Consequently, penal populism is highly rhetorical and emotive, in contrast with “a more rational, formal and administrative processes of criminal justice officials and experts”.[2]Penal populism is criticised for simplifying complex social problems by offering symbolic, unprincipled and political responses to community concern. New South Wales’ one-punch laws and reform to bail laws illustrate the relationship between unprincipled over-criminalisation and penal populism, with no material improvement in the protection offered to victims of crime.

The tragic one-punch deaths of Thomas Kelly (2012) and Daniel Christie (2014) sparked outrage and concern within the media and the collective psyche of the people of New South Wales. Within the fifteen months between the deaths of Thomas Kelly and Daniel Christie, the NSW Government sought to pursue a consultative multi-faceted policy dealing with alcohol fuelled violence. As a consequence of the death of Daniel Christie, social media platforms, talkback radio, television reports and print media exasperated public concerns about one-punch attacks and lead to criticism of the NSW Government for being weak on crime. Articles titled “Father of one-punch victim Daniel Christie tells sentencing hearing son’s death led him to consider suicide”[3], “O’Farrell confirms ‘one punch’ laws push in NSW after ‘inadequate’ sentence for Thomas Kelly killer Kieran Loveridge”[4]and “Thomas Kelly died from fall after punch[5]”  alongside the Sydney Morning Herald’s ‘Safer Sydney’ campaign and The Telegraph’s ‘Enough’ campaign mounted considerable pressure on the NSW O’Farrell-Liberal Government to act decisively and legislate specifically for one-punch attacks. Public outrage was further exasperated as Kieran Loveridge was handed a sentence of a four-year minimum jail term for the death of Thomas Kelly.

The entanglement of public sentiment, politics and media prompted the Government to offer a quick populist solution to the largely rare crime of one-punch attacks. The sophisticated policy program that the Government consulted and developed over fifteen months was abandoned for specific one-punch laws, “deliberately drafted so as to capture the circumstances of specific events, behaviours and deaths that prompted the legislative action.”[6]One-punch laws commenced hastily, merely ten days after the Government announced an intention to address the experience of Daniel Christie. “Nowhere is this connection [between Daniel Christie and alcohol fuelled violence] made more explicit than in Parliament where his name is mentioned in relation to literally every piece of legislation passed by the Government in its response to alcohol-related violence.”[7]The Premier introduced a sixteen point plan to tackle alcohol fuelled violence, the most significant and onerous of which is s25A(2) Crimes Act[8], imposing a mandatory minimum sentence of either years on offenders who strike another whilst intoxicated. One-punch laws were passed without consultation with stakeholders or representatives of the legal profession, in fact, “no law reform commission in Australia recommended the introduction of a ‘one-punch’ law – in fact, they have recommended against such a course of action.”[9]Evidently, the Government’s primary objective was to appear ‘hard on crime’, irrespective of long-term outcomes.

Prior to one-punch laws, the hierarchy of homicide offences were distinctly categorised by seriousness. As per s18(1)(a)[10], murder is sufficed by an intent to kill, intent to cause grievous bodily harm, reckless indifference to human life and constructive murder. The lesser charge of manslaughter can be constituted by involuntary manslaughter, manslaughter by unlawful and dangerous act or manslaughter by criminal negligence[11]. Introduction of s25A(2)[12]  has created a third tier of homicide laws that arguably should be considered less culpable than murder and manslaughter as there is neither the subjective fault of murder offences, nor objective fault requirements of manslaughter offences. However, as a consequence of the imposed of a mandatory minimum sentence of eight years, the 2014 one-punch offence punishment is of greater severity than manslaughter punishments. “The question of hierarchy is an important one to consider in order to assess whether there is a ‘match’ between the perceived need for a new offence and the nature of the offence itself.”[13]This complication of the law can be attributed to the Government’s unprincipled hastiness in wanting to change the law without reviewing current application of the homicide framework. This inadequate assessment can be attributed to wanting to appeal to the public, who “can only be expected to rationally participate in the debate over criminal justice policy when they have an accurate idea of the extent of the problem, and the relative effectiveness of various solutions.”[14]The layperson would not appreciate how enactment of one-punch specific laws would convolute existing homicide laws, nor would they believe that offenders were being prosecuted successfully in accordance with existing assault and manslaughter laws. Consequently, a lack of consultation with the legal profession will lead this unprincipled reform to fail and not deliver on the undertaking of preventing alcohol-fuelled violence.

Additionally, by designing laws specifically for offences similar to Thomas Kelly and Daniel Christie’s attacks, one-punch legislation departs from established common law principles. Intoxication[15]is deemed when the accused is proven to be affected by alcohol whereby within 100 millilitres of blood, there is a concentration of 0.15 grams or more.  This evidence can be ascertained through the accused’s breath, blood or urine at the time of the alleged offence.[16]Historically there has been great difficulty establishing an offender was intoxicated, particularly when said offender is not apprehended immediately after the attack. Kieran Loveridge, attacker of Thomas Kelly for example, was apprehended and charged near two weeks after the initial incident. Considering how difficult it can be to conclusively establish intoxication and the discrepancy between with sentencing under one-punch and manslaughter laws, “as a matter of coherence and consistency, intoxication would be better dealt addressed at sentence, rather than as an element of the offence.”[17]The lack of practical insight into the application of legal standards illustrates that the Government’s primary intention was to appear ‘tough on crime’, irrespective of whether one-punch laws could deliver a sound outcome to dispel alcohol fuelled violence or not.

Since the 1980’s consecutive New South Wales Governments have politicised bail laws and regarded penal populism as a means of gauging public sentiment regarding what crimes are considered heinous enough to restrict an offender’s freedoms. Use of the bail framework as a political litmus test is evident within its exponential reform, with over 85 changes in bail law since the 1980’s. This hyperactivity with bail law has caused an ever expansive list of offences and behaviours that are exemptions to bail. This growing list of exceptions are contributable to populist campaigns, where shock-jocks, media and the layperson share outrage and moral panic about particular crimes that politicians respond to. Bail is “as much about emotional affective and symbolic elements of crime, order and safety”.[18]Ultimately, “state government has used the bail regime for political purposes, specifically to send a “tough on crime” message…demonising particular types of alleged offenders whose crimes evoke popular anxiety and anger”[19]The legislative purpose of the Bail Act[20]is to establish a legal framework for decisions about “whether a person who is accused of an offence or is otherwise required to appear before a court should be detained or released, with or without conditions.”[21]This procedural mechanism ensures alleged offenders don’t interfere with witnesses, community  or perpetrate further offences. In practice, a disturbing trend has emerged where bail is used as punishment for alleged offenders who are yet to be prosecuted to prove governments value the safety and welfare of the community over offenders. This increase in remand population is evidenced by 2012 data, whereby near 26% of total prison population of New South Wales are unsentenced prisoners. By politicians waning to the pressure of penal populism, successive governments have entrenched unprincipled over-criminalisation of offences where bail is not recommended, with no material improvement in the protection offered to victims of crime.

In recognition of how far bail laws have deviated from their intended purpose, the New South Wales Law Reform Commission headed by Judge James Wood began extensive consultation with victim’s groups, legal representatives, courts and the NSW Police. This review was proposed by former prosecutor Attorney General Greg Smith SC, who recognised that bail laws affect specific groups disproportionately. The Law Reform Commission recommended adopting a justification model to limit the pre-trial punitive treatment. The legislation was not enacted for a twelve-month period to ensure that legal practitioners were offered adequate training and understanding of new bail laws.

The Bail Act 2013 (NSW) commenced in 2014 and sought to remove presumptions against granting bail and instead consider unacceptable risk. One month after the enactment of the bill, shock-jocks and newspapers commenced a campaign criticising judicial discretion and decisions regarding the bail of Steve Fesus, Hassan ‘Sam’ Ibrahim and Mick Hawi. Ray Hadley, 2GB shock-jock, incessantly attacked Attorney General Greg Smith for being “soft on crime,…a raving lunatic, that Barry O’Farrell should sack him.”[22]The  Daily Telegraph likened the Attorney General to a marshmallow.  “Media coverage of these cases has conflated the role of bail with that of guilt and a desire to condemn and punish. It is suggested the new laws are ‘soft on crime’”.[23]This anti-bail campaign illustrates “law and order politics driven by the shock jocks and tabloid media, the views od which are based on fundamental misconceptions of the purpose of bail.”[24]Consequently, the Premier commissioned former New South Wales Attorney General Hatzistergos, notorious for his hard-line ‘tough on bail’ position, to review bail laws. Hatzistergos’ proposed twelve recommendations with the three most notable being relocate the purposes of bail from the body of legislation to the preamble, streamline two-stage test of unacceptable risk to one and introduce show cause offences. Unfortunately, the recommendations enacted by the Premier did little to remedy concerns about overrepresentation of accused persons who are yet to undergo trial in remand. If not for penal populism and the Government’s fear of appearing ‘soft on crime’, the thoroughly investigated pre- Hatzisergos bail reform was not afforded the opportunity to remedy issues of over incarceration in New South Wales.

In conclusion, one-punch laws and bail reform illustrate that there is a “pressing need to establish sufficient commonality among criminal legal scholars so that they can… speak together, persuasively, against the excesses of state power.”[25]

[1]John Pratt, ‘Penal Populism’ (Routledge, 2007),12.

[2]Julia Quilter, ‘Populism and Criminal Justice Policy: An Australian Case Study of Non-Punitive Responses to Alcohol-Related Violence’ (2015) Australian and New Zealand Journal of Criminology, 48 (1) p24-52.

[3]Jayne Margetts, ‘Father of One-punch Victim Daniel Christie tells Sentencing Hearing Son’s Dead led him to Consider Suicide’ ABC News (NSW) 21 August 2015.

[4]ABC News, ‘O’Farrell Confirms ‘One Punch’ Laws Push in NSW after Inadequate Sentence for Thomas Kelly Killer Kieran Loveridge” ABC News (NSW) 11 November 2013.

[5]ABC News, ‘Thomas Kelly Died from Fall after Punch’ ABC News (NSW) 16 July 2012.

[6]Julia Quilter, ‘Criminalisation of Alcohol-Fuelled Violence – One Punch Laws’ (2015) in T. Crofts & A. Loughnan (Eds.), Criminalisation and Criminal Responsibility in Australia (pp. 82-104).

[7]Above n 2

[8]Crimes Act 1900(NSW) s25A(2).

[9]Above n 2

[10]Crimes Act 1900 (NSW) s18(1)(a).

[11]Crimes Act 1900 (NSW) s18(1).

[12]Crimes Act 1900 (NSW) s25A(2).

[13]Julia Quilter, ‘One-punch Laws, Mandatory Minimums and ‘Alcohol-Fuelled’ as an Aggravating Factor: Implications for NSW Criminal Law’, (2014) International Journal for Crime, Justice and Social Democracy 3(1),88.

[14]Above n 2

[15]Crimes Act 1900 (NSW) s25A(6)(b).

[16]Crimes Act 1900 (NSW) s25A (6)(a).

[17]Legal Aid, ‘Statutory Review of Sections 25A and 25B of the Crimes Act 1900 (NSW)’ (2016) Legal Aid NSW,7.

[18]Above n 2

[19]Julia Quilter, ‘Not for Punishment: We Need to Understand Bail, Not Review It”, (2014) The Conversation

[20]Bail Act 2013 (NSW).

[21]Bail Act 2013 (NSW) s3(1).

[22]David Brown and Julia Quilter, ‘Speaking Too Soon: The Sabotage of Bail Reform in New South Wales’ (2014) International Journal for Crime, Justice and Social Democracy, 3(3) 73.

[23]Julia Quilter, ‘Not for Punishment: We Need to Understand Bail, Not Review It”, (2014) The Conversation.

[24]David Brown and Julia Quilter, ‘Speaking Too Soon: The Sabotage of Bail Reform in New South Wales’ (2014) International Journal for Crime, Justice and Social Democracy, 3(3) 73.

[25]Ngaire Naffine, ‘Human Agents in Criminal Law and its Scholarship’ (2011) 35 Criminal Law Journal 51, 52.


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