Laws must protect community, not the rights of criminals

Barristers at ceremony in Banco Court

The federal government’s plan to tackle domestic violence by giving victims a paltry $5000 to flee their aggressors is a breathtaking abdication of its obligation to keep women safe from preventable harm.

Eliminating violence against women is the most pressing problem faced by our justice system. But in order to deal with it, we must tackle a broader crisis: universal violence. Despite society’s wholesale embrace of notions of inclusivity and respect, the thudding reality is that Australia is turning into a nation of bashers.

In the most recent year, 84,815 criminals appeared in Australian courts for bashing innocent Australians. That’s a whopping increase of 16 per cent over the previous year. The thugs had a conviction rate of 97 per cent. That’s a lot of carnage inflicted on everyday Australians.

It is a brutal indictment of social and criminal justice policy that in 2024 more Australians are being assaulted than at any time in Australia’s history. And, going by the current anti-solutions offered by governments, the situation may continue to get worse.

In response to the growing scourge of domestic violence, Attorney-General Mark Dreyfus said men need to “step up” and “it’s our responsibility to educate ourselves, our sons, our colleagues and our friends”. But this injunction and way of thinking won’t help. What serious parent, colleague or friend encourages people to bash others?

Let’s be clear. It is the government and the government alone that sets education, social and criminal justice policy. The government broke the criminal justice system and it needs to fix it.

In the past two decades, human rights-embracing governments have focused on the social and cultural narrative at the expense of personal responsibility and accountability. Violent criminals often escape the full consequences for their crimes because they are also often regarded as victims.

Attorney-General Mark Dreyfus

The liberty and privacy interests of bashers should never be prioritised over the safety of members of the community, especially women. It is well beyond time for effective action. The first measure that needs to occur is for the government to recognise the seriousness of violence at the sharp end of the criminal justice: sentencing.

The empirical evidence shows that victims of violent crime often never fully recover from the attack. Yet when it comes to punishing offenders the focus of the courts is on the interests of offenders. Hence, they get sentencing discounts for a seemingly endless list of considerations.

Thus, we see offenders who have had socially and economically deprived upbringings get a sentence reduction (the “Bugmy” discount). Often added to this is a discount if the offender has experienced a mental health issue (the “Verdins” discount). Thugs even get a further discount if they pretend to be remorseful. The end result is the total repudiation of the proportionality principle, which prescribes that the harm caused by the crime should be matched by the severity of the sanction.

Whereas assaults often devastate the lives of victims, the penalties handed down by courts to the thugs who perpetrate these acts are the legal equivalent of bee stings. In Victoria, for example, most offences of intentionally causing injury are dealt with in the Magistrates Court. Approximately 40 per cent of thugs get no prison time for smashing out the teeth of, or concussing, their victims, while for those who are imprisoned, on average they receive less than nine months.

If the government wants to take steps to reduce violence it needs to start by imposing proportionate penalties on defendants who injure Australians. This would see a minimum sentence of imprisonment of two years for acts causing injury. The AFL and NRL have stamped out king-hits and other gratuitous acts of violence through a zero-tolerance policy, underpinned by tough mandatory penalties. It is an unforgivable jurisprudential failing for the government to not adopt a similar approach.

Given the advances in technology it is a pitiful indictment of our society that many women continue to live in fear of males who have previously assaulted them. Male perpetrators of domestic violence should be forced to wear a GPS tracker that sends an alarm to the victim when the offender is within her geographical area. This would ensure the victim has time to flee or call police.

The rights of domestic violence victims trump the privacy concerns of their attackers. And indeed the prior criminal histories of all criminals with convictions for violence offences should be searchable on a public court register.

Bail laws also need to be significantly tightened. Immeasurable carnage is being inflicted as a result of magistrates bailing, mainly young, offenders who have committed multiple acts of violence back into the community on the misconceived notion that the rehabilitation of offenders is paramount. This is a farcical misunderstanding of the ultimate aim of the criminal law, which is to protect the community.

We can’t leave any of the remedies for the violence crisis to the judges. Most judges prefer abstract niceties to pragmatic truths because their world does not involve being impacted by the devastation caused by violence. And judges are the only people who have jobs for life. This is a sure-fire antidote to accountability.

Given that judges won’t change, the government should at least make their decisions transparent. Each time a bailed thug or under-sentenced violent offender bashes another helpless victim, the details of the bail grant and sentence should be posted on a publicly available website detailing the name of the judge and the reasons for their decision. If we can’t hold judges accountable, at least they should be named and shamed for their poor judgment.

The surge in violence in our community is one the greatest self-inflicted wounds of our generation. The lack of intellect and actual concern devoted to fixing the problem will continue to be an egregious assault on our civility until the government realises the problem can only be fixed by tangible actions not fine words.

Mirko Bagaric is a professor at the Swinburne University Law School. He is the author of Australian Sentencing.