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Justice Legislation (Mandatory Sentencing) Bill 2019


Rosalie Woodruff MP

Rosalie Woodruff MP  -  Tuesday, 26 November 2019

Tags: Mandatory Minimum Sentencing

Dr WOODRUFF (Franklin) - Mr Deputy Speaker, this being the third time I have risen to make comment on behalf of the Greens about this type of legislation, I put on the record that this is a despicable waste of parliament's time. Like Ms Haddad, I also thought about not making a substantial contribution to this debate because people who have voted for me want me to spend my time representing them on the things they care about.

This is a disgraceful, populist bill that is designed to do one thing: to deflect from the failures of this Government in so many of their portfolios; the severe and extreme stress in the health system; their failure to prepare for the bushfire season; the appalling situation of homelessness in Tasmania; children are suffering and families are suffering with lack of support. This Government could be doing something about these things. Instead it does just two things - everything possible to advance the business interests of private developers who seek to profit from public goods, whether it be publicly owned land or buildings, public resources, this Government would hand everything over lock, stock and barrel to the private sector to do whatever they want with, without the community having a say. The other thing that is this Government's core business is to breed fear and division in the community. This is a long- used tactic of governments which are failing, on the nose and under attack . What they do is deflect from their failures in government and put their efforts into whipping up fear in the community about chimera that do not exist, about concerning issues that are not there. They provide false solutions such as mandatory minimum sentencing, as though it would make any difference to children who are abused, as though it would stop these crimes happening, as though it would stop assaults on frontline workers.

That is the most revolting thing about this bill and, frankly, the reputation of our Attorney-General is seriously damaged by bringing this bill on for a third time. It is shameful. I feel embarrassed on her behalf that she has some way of finding a place in herself, given her expertise as a lawyer and her background, that she can bring this bill into this place. I know for sure she does not have the backing of any of her peers, no-one in the legal profession. None of the bodies and individuals I have spoken to have stood with the Attorney-General and this Liberal Government on these noxious bills. If they are ethical and professional of course they will not because these bills go to the heart of everything they would despise as committed, ethical lawyers. It takes away every discretion, every ounce of their professional judgment, their attention to the circumstances, their commitment to fair and equitable judgements. How could they possibly support this bill?

The evidence of the Government's report that was written by the Tasmanian Law Reform Institute so well made it clear that they thought this was totally on the nose. There was nothing in it they could support. Why does this Government and this Attorney-General continue to seek advice from the Tasmanian Law Reform Institute and disregard it all? What is the point? It is total arrogance. It is hubris to think they can continue in this fashion and not be attacked by all the peers in the legal profession, all the people who stand up for civil liberties, all the people who stand up for real action for children who are abused and real action for the underlying causes for assaults on frontline workers.

Let us be clear, an increase in assaults on frontline workers will always happen when people are under stress and when the system is at breaking point as are the emergency departments in the Royal Hobart Hospital and Launceston General Hospital. It would be no surprise to hear that assaults on our hardworking, caring frontline workers are increasing. Of course, because hundreds of people are waiting for more than 24 hours in emergency departments under this Liberal Government, which cut $250 million out of Health when they came into government in their first term. It is no surprise that they have caused a health system under such crisis that people are desperate. People in mental health distress, in psychosis, in severe suicidal states, are left sitting in this Government's public health emergency department at the Royal Hobart Hospital, often for more than a day, because they failed to fund the psychiatric emergency nurses and to put the money upstairs. Yes, minister, I am talking to you. That is what is going on.

It is disgusting that the response to that situation is to bring a bill like this in here, that the response to the reality and the horror of child sex abuse is to pretend that something like this is actually going to make a difference. The Commissioner for Children and Young People made the point, extremely concerning, that this would increase the amount of time and the trauma for young children to have to go through the sorts of trials that would inevitably be required in a situation where mandatory minimum sentencing was the only option available to the judge at sentencing.

This is the same Attorney-General who is presiding over attacks on the right to peaceful protest in the state, the same Attorney-General who is proposing four years in jail for people who protest peacefully on a business premises, defined to be so broad it could be anywhere in Tasmania .

What an extraordinary thing, Madam Speaker. This legislation the Government seeks to push through on mandatory minimum sentencing has four years imprisonment for the crime of rape of a person under the age of 17. What an awful and heinous crime. Let us reflect on the comparison between that sentence being proposed as a mandatory minimum sentence, which we do not support. Who knows what the judge might decide is appropriate in each individual circumstance? This is the same Attorney-General who is proposing to lock people up for four years for peaceful protesting. It is incredible. Look at the comparison here. It is in tatters. It would be laughable if it was not such a serious matter.

This is all about the cost-shifting that is occurring where money has been leaking out of the public sector for five and a half years to the private sector and there is nothing left. Assaults are going up and community safety is worse than it was. We have more property theft, more crime in the community, thanks to this Government's so-called war on drugs -

another failure. It is failing on every level and it is no surprise we have a bill like this which is designed to deflect from the real situation .

I cannot finish without going to the important points made by the Director of Public Prosecutions in New South Wales. At the time, he made points about the proposal to introduce mandatory minimum sentences in New South Wales in the context of some truly violent, notorious, heinous crimes that had occurred in New South Wales that had provided the opportunity for some discreditable politicians to whip up fear and hatred in the community. He made some incredibly important points against mandatory sentencing. He said that first, judges are not able to apply the sentencing principles of proportionality, totality and imprisonment as a last resort.

Second, mandatory penalties exclude the operation of judicial discretion and thereby prevent the court from being able to give proper consideration to the subjective circumstances surrounding the offender. That usually leads, he said, to an injustice.

Third, they have the legislature fixing penalties that detracts from the independence of the judiciary and the principle of the separation of powers. As the Greens have said, and will continue to stand in this place and say, the separation of powers is one of the bedrocks of democracy in our Westminster system in the State of Tasmania. We will continue to fight to uphold that separation of powers to prevent the overweening control of governments, like this Liberal Government, which seeks to get its dirty little mitts into the decision-making of judges, instead of leaving it to people who have their whole professional careers focused single-mindedly on justice.

Fourth, Mr Chaudhry (TBC) said mandatory sentences are arbitrarily fixed in advance and they constitute an arbitrary detention that is contrary to Article 9.1 of the International Covenant on Civil and Political Rights, to which we are a party as a country. By removing the power of an appeal court to impose a lesser sentence, they deprive people of their right to have their offences effectively reviewed by a higher tribunal. That is also contrary to Article 14.5 of that same international covenant.

Fifth, Mr Chaudhry says police may overreact and charge more serious offences than are warranted with an added incentive for police to inflate their statements of fact as a result.

Sixth, bail will commonly be refused and the prospect of an inevitable prison sentence, providing extra incentives for a person to plea.

Seventh, there will be fewer pleas of guilty because, amongst other reasons, no proper discount can be given for a plea or for cooperation. Therefore, this leads to an extra strain being placed on the courts, the prosecution, legal aid bodies and defence representatives and all the services that are associated with defending trials. It will lead to backlogs and remand populations to grow. Importantly, it will also mean that victims of crime will have to wait longer for the resolution of their matters and that cost will blow out, again a matter in terms of the victims of crime, noted by the previous Commissioner for Children and Young People as a concern.

Eighth, Mr Chaudhry said juries may become reluctant to convict in some circumstances, and that has been found with some Commonwealth jurisdictions.

Ninth, there will be delays involved in the process of achieving resolution, including for police and victims.

Tenth, it means the transfer effectively of sentencing discretion from courts to police and prosecutors by the selection of charges to proceed, even without directions from, or agreements with, the Attorney-General. There will be additional pressures on prosecutors to negotiate with the defence and, perhaps inappropriately, for pragmatic reasons, to agree to pursuing lesser charges.

Similar pressures will be imposed on the police at the charging stage. That process is not transparent and is not readily accountable and would also be unsatisfactory, as you would expect, to the very victims the Attorney-General is supposedly seeking to protect through this bill.

The eleventh reason against mandatory sentences is that there will be more and longer sentences for those people who are convicted and, clearly, that would be the case with this bill. Prison populations would expand in the remand and the sentence populations with a cost in terms of the money spent in prison and the detrimental effect of prison on many of the people who are inmates there.

The twelfth reason is it is not a reliable method of treating offenders. A past criminal record, or an atypical criminal involvement can be a very poor predictor of future offending. Therapeutic approaches to sentences are not possible, or not included, where mandatory sentences provide for a period of imprisonment. Where it might have been possible to deal in a permanent rehabilitative way with a person and the money could have been used for therapeutic programs, that money is diverted to keeping a person locked up with all of the problems that go with having a prison sentence and all the unintended consequences that go with that, which are negative and often lead to a person offending in the future.

The thirteenth reason is that mandatory sentences are not effective and this is really the main point, the really serious point here. In the case of assaults on emergency workers, where an assault is most likely to occur in circumstances that might never occur again in the offender's life. They may never be in that situation. In that situation, a mandatory sentence is not acting as a general deterrent on offending.

People who are suffering mental psychosis, people who are drug affected or under acute mental or physical stress, will not stop to consider what might happen to them if they make a spontaneous or involuntary response under stress which may lead to an act of assault.

I make no apology for the harmful and damaging behaviour of people who assault frontline workers. I make no apology for child sex offenders abusing innocent children but it is a fact and has been shown time and again that mandatory minimum sentences do not deter offending.

In relation to assaults on frontline workers, where else would you seek to go to get some support for a bill like this than from one of the bodies, one of the emergency services organisations and what do they think?

Ambulance Tasmania in its submission to the Sentencing Advisory Council on this matter rejected mandatory minimum sentencing. They were of the view that mandatory sentences are not appropriate in relation to offences on frontline workers. They recognise the reality of stress that people are under. They understand that good people can behave unpredictably, including violently and out of character, in extreme moments of crisis. They recognise that these are rarely premeditated situations. They almost never are; there is no forethought and Ambulance Tasmania would prefer that the courts, the judges and the magistrates appropriately deal with each offence in relation to its own unique circumstances, which is what already happens.

Frontline workers recognise the reality of the situations they are working in. They do not excuse the behaviour but they want justice to be done fairly and equitably. Surely, if the AttorneyGeneral is incapably of listening to her own legal profession, her own peers, all the experts that she and her Government have paid to provide advice, she could listen to the people who are on the frontline themselves.

I really do not believe that there is anything else that is worth saying to this despicable bill. We will not be supporting it, as we have not supported any of the other bills like this that this Government has brought in. We very much hope that the other place will do what they have done the last two times and -

Ms O'Connor - That is if it gets through here.

Dr WOODRUFF - Yes, and throw it out. Well, there is no reason for it to get through here.

Ms O'Connor - Oh yes there is. There is one.

Dr WOODRUFF - But that is a person who is legally trained and you would assume that anyone who actually has a professional ethic would see this for what it is, which is a populist -

Ms OGILVIE - Point of order, Madam Speaker, I take offence to the commentary that is made before I have even spoken on the bill.

Dr WOODRUFF - I do not really understand what your offence is.

Ms Ogilvie - You are just offensive. Sit down. You are just offensive.

Dr WOODRUFF - Anyone who has a law degree will see this for what it is -

it is a populist document.

Madam SPEAKER - You have possibly offended a couple of people. It is a debating point and you will have an opportunity to rebut it.