Right: these protesters were concerned at the potential of the new alcohol and lockout laws to damage Sydney's night-life.
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Arguments against New South Wales laws designed to reduced alcohol-related violence
1. Alcohol-related violence is declining
It has been claimed that the rate of alcohol-related violence is declining in New South Wales and does not warrant the introduction of new harsher penalties.
According to the New South Wales Bureau of Crime Statistics and Research, over the past five years assaults on licensed premises across the state have fallen by 7.2 per cent and off-premises the incidence has dropped 3.9 per cent.
In the Kings Cross area, over the same period, assaults in licensed premises have fallen while off-premises they have remained stable.
This point was made in an article published in The Guardian on January 9, 2014. The article noted, 'Bureau of Crime Statistics and Research statistics show the rate of alcohol-related assaults in New South Wales has been declining since 2008 and is the lowest since 2002, with 184.8 assaults per 100,000 people per year.'
Statistics for the number of hospitalisation in New South Wales, for males aged between 15 and 44, which have occurred as a result of assault, tell a similar story. When hospitalisations due to injury are ranked by number of incidents, interpersonal assault is eighth. Both falls and motor vehicle accidents result in more than twice the number of hospitalisations.
2. The proposed laws would reduce judicial discretion
Concern has been expressed that imposing maximum minimum sentences for alcohol-related violent crimes reduces the discretion of a judge to impose what he or she believes is an appropriate penalty in a particular case.
Judicial discretion is intended to allow judges to draw on their expertise and experience and their appreciation of the circumstances of a particular offender to ensure that the sentence imposed is both just and most likely to ensure the rehabilitation of the convicted person.
Mandatory minimum sentences have been condemned as crude, irresponsive measures which do not achieve the best overall outcomes.
In an address to the New South Wales Law Society, Chief Justice Bathurst stated, 'Ultimately, the question must be whether, regardless of the circumstances in which an offence was committed and regardless of the circumstances of the offender, a particular mandatory minimum sentence will always be justified.' The Chief Justices intended the implicit answer to this question to be 'no'.
The president of the New South Wales Bar Association, Phillip Boulter, has also stated, 'Mandatory sentencing is a "one size fits all" form of justice, which fails to take into account the individual circumstances of each case.'
Phillip Bolton has further argued, "Mandatory sentencing laws do not deter criminal activity. They remove discretion from judges. They result in penalties that are often disproportionately harsh.'
Sydney criminal solicitor, Olivia Harris, has similarly stated, 'One of the most important aspects of the judicial system is judges have discretion to consider all the circumstances when making decisions.
Mandatory sentencing only fetters judges' capacity to take everything into account and I would have thought most people would agree all of the circumstances about offenders and victims should be taken into account.'
3. The proposed laws would discriminate against indigenous Australians
It has been predicted that one aspect of the mandatory minimum sentences proposed for alcohol-related violent crimes would be a dramatic increase in the number of Aboriginal men being incarcerated in regional prisons.
Brad Orrington and Mark Coulta, in an analysis published in The Australian on January 28, 2014, noted, 'Every year more than 3000 Aboriginal men, most affected by alcohol at the time of their offence, are found guilty of assault in NSW courts. But only 740 receive jail sentences while the rest are given bonds, fines or other non-custodial penalties.'
The imposition of non-custodial penalties upon Aboriginal offenders is a recognition of the disproportionate number of Aboriginal men who have historically been incarcerated in Australia and of the extremely damaging effect that such incarceration has often had on these men. The number of deaths, including suicides, suffered by these men has become a cause for national concern.
The 1987 Royal Commission into Aboriginal Deaths in Custody made numerous recommendations aimed at reversing this trend. Despite this, a major recent review of deaths in custody conducted by the Australian Institute of Criminology has found a substantial increase in the number of Aboriginal people dying in custody over the past five years.
The study found the overall rate of deaths in state and territory prisons has remained relatively steady over the past 20 years. But there has been a spike in the number Indigenous deaths in custody, in line with an almost doubling of the number of Aboriginal Australians being locked up.
Concern has been expressed that the changes to maximum minimum sentences to be made in New South Wales will exacerbate this recent pattern of increase.
John McKenzie, the chief legal officer of the New South Wales Aboriginal Legal Aid Service, has noted that Aboriginal people were already over-represented in New South Wales jails, accounting for 2 per cent of the state's population but 23 per cent of all prison inmates in the state.
Mr McKenzie has stated, 'My biggest concern about Mr O'Farrell's measures is at the lower end of the scale of assaults, if they are cases involving alcohol, that attract mandatory minimum sentences and extended maximums.
The impact on the Aboriginal community would be vast - we are talking hundreds or even 1000 to 2000 additional people convicted of assaults getting locked up for two years.'
4. The proposed laws discriminate against law-abiding drinkers and business owners
It has been claimed that the proposed lock-out provisions from nightclubs would unfairly restrict the behaviour of the majority of drinkers, who are law-abiding.
Incoming Australian Human Rights Commissioner, Tim Wilson, has stated, 'Stopping street violence is not achieved through arbitrary restrictions on the individual liberty of law-abiding citizens in the hope that it may reduce criminal behaviour amongst a small number of individuals.'
Mr Wilson has further claimed, 'A lockout limits the rights of law-abiding patrons to exercise their right to self-determination by engaging in legal behaviour. Lockouts also arbitrarily punish licensed premises.'
Mr Wilson went on to explain that a majority of citizens were in fact adhering to the law and that this trend was increasing. Under such circumstances, limiting their recreational freedoms seems inappropriate. Mr Wilson stated, 'Introducing a lockout also misdiagnoses the problem. Apart from a small group who have increased their consumption of alcohol, the ABS reports that the average rate of consumption of alcohol is actually in long-term decline.'
It has also been noted that the new lock-out proposals will damage the business of nightclubs owners and the owners of other entertainment venues.
A spokesperson for the Australian Hotels Association has stated, 'The lockouts and closures in the Sydney CBD will also have an undeniable impact on the night-time economy - penalising businesses that are well run and have had nothing to do with the recent violence.'
Musician Emoh Instead has stated, 'The seven years I've been involved in the music industry I have never been more impressed by crowds, events, culture, music and the general attitude currently present in the Australian club scene.
I am so sad today seeing the new lockout legislation brought on Sydney venues. It is a quick fix to please people consumed by media hype, completely removed and lacking understanding of the true circumstances.
The worst part, this does not even solve the real issue and will ruin our thriving music culture. I am scared of what will happen at 3am every weekend at taxi change over time, with 10,000 disgruntled people on the streets at once trying to get home.'
5. The proposed laws are unlikely to reduce alcohol-related violence
It has been claimed that the new lock-out regulations are imposed at such a late hour that they would have no impact on the many offences committed earlier in the evening.
The new laws lock new customers out of city nightclubs from 1.30am and call last drinks at 3am, but the blows that caused the recent deaths of the two New South Wales teenagers were delivered around 9pm and 10pm respectively. The new laws would have offered these young men no protection as each had been fatally injured many hours before the fatal blows were struck.
Critics of the lock-out proposals argue that they become effective so late in the average nightclub patron's evening that they would offer little to no safeguard against violence, assault and possible death.
Chris Kenny, in an opinion piece published in The Australian on January 25, 2014, wrote, 'People, of course, are perfectly entitled to make the case for curtailing nightlife hours and sending revellers home earlier - it is just that it shouldn't be dressed up as an effective measure to prevent attacks that we know can happen long before midnight.'
It has further been noted that the harsher penalties to be imposed for alcohol-related assault are unlikely to reduce the incidence of such crimes. Alcohol-crimes, it is claimed, are not premeditated, and their perpetrators are unlikely to have considered the punishment that might later be meted out to them when they commit these crimes.
Sydney criminal solicitor, Olivia Harris, has stated, 'In my opinion people rarely think about the consequences of their actions when they're in the throes of crimes, specifically one-punch deaths that are usually caused by young men fuelled by alcohol.'
Ms Harris added, 'You couldn't expect those offenders, whose tempers end up killing people, to be thinking of mandatory sentences.'
The same point has been made by the President of the New South Wales Bar Association Phillip Bolton. Mr Bolton has claimed, 'There's no evidence at all that mandatory sentencing ever decreases the amount of crime that's committed and it has the ability to act unfairly on vulnerable and disadvantaged groups. It isn't effective, it's not a deterrent, it just leads to more people being locked up for no good purpose.'