Ms WOODRUFF (Franklin) - Mr Deputy Speaker, the Greens will be opposing this politically motivated stunt. Its sole purpose is to make sure that the courts impose a heavier sentence than would be proper according to the justice of the case. It has no aim for deterrents or for making frontline staff safer
This bill represents the Attorney-General's increased attacks on every Tasmanian's right to receive a just sentence. Without blinking, Dr Goodwin is throwing her judicial discretion to the wind and is wantonly undermining the capacity of our otherwise just, fair and humane criminal justice system to do justice in individual cases. It is a mark of reckless disregard on her behalf for the operation of our criminal justice system in a civilised society and the history we have inherited and that it is our duty to uphold. The move shows just how much the Attorney- General is prepared to politicise our justice system in order to avoid scrutiny of this Government's policy failings, which have created exactly the situations that lead to assault on our frontline workers in the first instance.
The increasing attacks on emergency service workers, for instance, are a direct consequence of the Liberal's savage cuts to the public health system. We know that we are expecting the hospitals to spend $18.5 million less this year than they spent last year. Given the 5 per cent average increase in admissions year on year, not to mention hospitals inflation costs, it is not surprising that there are a lot of pressures on staff working in emergency departments, for example. Emergency department presentations have consistently increased every year. That is no surprise . How is this Government responding? In 2010-11 there were 143 864 ED presentations. The minister projected that there would be 159 793 people presenting to ED next year.
As I mentioned previously the emergency department at the RHH was built for a capacity of 40 000 people going through every year. At the moment, the estimate is it is closer to 60 000 people. There is a lot of pressure on our emergency departments. It is not improved by the bed block situation nor the lack of flow through in the hospitals. These things have an effect on our emergency workers. These are the people, the frontline workers, we are talking about here today.
When this health minister, for example, cuts 5.7 per cent out of the emergency department budget - $7 million this year - that has a real effect on people who are working on the frontline. Paramedics in this state will not quickly forget Minister Ferguson's antagonism that left them in limbo for four months and sparked low-level industrial action earlier this year.
Let us talk about support for frontline workers. The fact that the amendments we have today are politically motivated is highlighted by the uncoordinated consultation process with the frontline workers they were was supposed to be protecting. As the member for Franklin mentioned, our office was also contacted by a medical orderly who works in one of the state's largest hospitals. He called to discuss how they manage Code Black situations. Code Blacks involve violent situations with patients often being treated for drug use or who are having psychotic episodes. He made it clear that in just the last couple of months alone a number of his colleagues had taken time off work because of emotional stress and injury. He was upset that this legislation to implement mandatory sentencing for assaults against frontline workers did not include him and his colleagues. He was concerned about the discrimination. When we discussed the issue of mandatory sentences and explained why we do not support them, he agreed with us. He could see that point of view. He was concerned he was being left out by this Government and not acknowledged as a person who works in an industry that is subject to assault occurring. He was interested in getting some tangible support against increasing verbal assaults and increasing low-level physical assaults. They would not come under what this bill seeks to do. It would be people who stand there every day. There is increase in abuse. That is the sort of stuff that people are being confronted with every day in our emergency departments.
To give the Attorney-General the benefit of the doubt, the failure to include medical orderlies is part of the poor consultation process. This, again, indicates the 'tough on crime' rhetoric that this Government, and this Attorney-General, is pushing is about winning votes and not about caring about implementing policy. The fact the Attorney-General is likely to understand the offensive idea of mandatory sentences herself and understands the injustice they entail and the attack they make on the discretion of the judiciary makes her capitulation to the hard right of her party hard to understand. Dr Goodwin has a PhD in criminology and is embedded in the judiciary in this state. It makes it very difficult to understand what goes on in Cabinet. Let us just say she is supporting this Government's approach.
Our concerns with the bill are numerous. I will start with the obvious issues with mandatory minimum sentences that have been acknowledged by judges, state and national law societies, the Australian and Tasmanian Law Reform institutes and various bodies representing community legal centres. There was a comprehensive and unanimous voice, a resounding, deafening lack of support for what this Government proposes. Mandatory minimum sentences are an affront to the rule of law. The doctrine of the separation of powers vests in the judiciary the duty of deciding legal disputes and, in criminal law, to impose sentences. Trouble brews when parliament, which is tasked with making the law, attempts to intrude on the role of judges, a role parliament is not equipped to execute.
Australia's highest courts have emphatically criticised attempts by other parliaments around the country to remove or to fetter the discretion of the courts, particularly in relation to sentencing. [Bookmark: OLE_LINK49] Chief Justice Barwick, in Palling v Corfield, articulated these concerns. He noted it was:
[Bookmark: OLE_LINK50] Undesirable that the court should not have a discretion in the imposition of penalties and sentences, for circumstances alter cases and it is a traditional function of a court of justice to endeavour to make the punishment appropriate to the circumstances as well as to the nature of the crime.
[Bookmark: OLE_LINK51] Chief Justice Gibbs, in Sillary v The Queen, stated that even in the case of a most serious crime:
There may exist wide differences in the degree of culpability of particular offenders, so that in principle there is every reason for allowing a discretion for the judge at trial to impose an appropriate sentence, not exceeding the statutory maximum.
He went on to say:
Mandatory sentencing would lead to results that would be plainly unreasonable and unjust.
Chief Justice Spigelman has made a number of observations about mandatory sentencing including:
The preservation of a broad sentencing discretion is central to the ability of the criminal courts to ensure justice is done in all the extraordinary variety of circumstances of individual offences and individual offenders.
Ultimately justice requires the fair and equitable treatment of all individuals under the law. In the context of sentencing, this requires proper consideration of all circumstances of the offence and the offender to make sure consistent punishment is imposed - similar behaviour by similar people - rather than just for the offence for which an offender happens to have been convicted.
The only consistency Dr Goodwin's reform promises to deliver is to repeat injustice. This is highlighted in the situation of assaults on police and frontline workers where the individual circumstances are especially relevant during the sentencing process.
Our police, emergency services workers, medical orderlies, custodial offices and the many other frontline workers are held in very high esteem in this community. They take significant risks every day as they seek to serve the community. This includes, by the nature of their work, the requirement that they come into contact with people in traumatic circumstances. People who are stressed and in trauma can react unpredictably. For example, when someone a person loves, or if they have extreme emotional or physical pain, or physical injury from a serious accident, it is expected they would behave in an irrational and unpredictable way. It is not surprising that Ambulance Tasmania rejected mandatory minimum sentencing in the submission they made to the Sentencing Advisory Council. One of the key frontline organisations this Government is talking about rejected it.
They are of the view that mandatory sentences are not appropriate in relation to these offences. They recognise the reality of stress. They understand that good people can behave unpredictably, including violently, and out of character in extreme moments of crisis. As has been mentioned before by the member for Franklin, these are rarely premeditated situations, almost invariably not. There is no forethought, and Ambulance Tasmania would prefer each offence is dealt with in relation to its own unique circumstances by the courts.
The Attorney-General argues that her mandatory sentencing policy is required to deter offenders and operates to protect frontline workers. She makes this claim, despite the fact no evidence has ever been demonstrated that mandatory sentencing acts as a deterrent. The absurdity of the Attorney-General's claims are heightened with this bill, which deals with offences committed in the heat of the moment by people confronted with often terrifying circumstances.
Consider a person lying on the side of the road with shattered bones, having been flung from their car following an accident that resulted in the death of their child or another person they love. That person is not going to be weighing up the benefits and costs of every choice they make in order to maximise their personal advantage. They would be distraught and it is foreseeable that they might make incredibly poor decisions, lashing out at others who are only trying to help. When a person is suffering from a disorder or a mental illness they are also unlikely to make a rational, cost-benefit calculation before they commit an offence.
Logic dictates that a prescribed minimum mandatory sentence is the antithesis of a just sentence. If a court thinks a proper just sentence is the prescribed minimum or more, then the minimum prescribed penalty is unnecessary. It follows that the sole purpose of a prescribed minimum mandatory sentencing regime is to require a judge to impose a heavier sentence than is appropriate, in all circumstances of offending.
This attempt by the Attorney-General to prescribe minimum penalties that must be imposed for any serious offence before it has been committed, in contemplation, or presumably before it can be foreseen by this Parliament, and before all the facts and circumstances are known and without knowing anything of the offender. This attempt is a direct attack on Tasmanians' right to receive a just sentence. It is an affront to our justice system. The resulting unfairness and unequal treatment of Tasmanians under the law will lead to an erosion of public confidence in the integrity and the administration of justice in this state.
The Attorney-General should not be requiring the courts to act unfairly or unjustly. Tasmania's judges and prosecutors do not want to be Dr Goodwin's instruments of justice. Defence counsels do everything they can to prevent this injustice and the community do not want it in their name either.
The bill has its roots in the final report of the Sentencing Advisory Council on assaults on emergency service workers. It is absurd that the Attorney-General has pushed this bill forward, despite the introduction of Sentencing Advisory Council's unequivocal conclusion that it does not recommend mandatory minimum sentences.
The Advisory Council's report was produced in response to the Liberal's so called tough on crime election policy. Following the consultation, the Sentencing Advisory Council acknowledged the concerns of Ambulance Tasmania, which were that while there were very few serious assaults on emergency service workers, there is a concern about the increase in verbal and physical aggression and threatening behaviour that is being experienced and is reprehensible.
The Sentencing Advisory Council also acknowledged the concerns of the Department of Police and Emergency Management, that the Magistrate's Court does not treat assaults on police more seriously than common assaults. In relation to the Police and Emergency Services, the Sentencing Advisory Council concluded that further analysis suggested sentencing practices for an assault on a police officer were nearly double the sentencing for a common assault.
This shows that the court already treats assaults on police more seriously than they treat common assaults. The Sentencing Advisory Council still recommends legislative changes be made to further emphasise the seriousness of an assault on a police officer. My point, Mr Deputy Speaker, is the Sentencing Advisory Council has considered these matters in their context. They have not only chosen for a political stunt, picked winners and losers, or picked out the easy things that will make a media headline.
The Advisory Council swept aside Dr Goodwin's proposal to create a new, specific offence for an assault on an emergency service worker, including police officers. They noted the proposed new offence did not specifically address underlying concerns about sentencing practices for assaults on emergency workers.
They also stated that the Council did not recommend mandatory minimum sentences in that instance. Instead, they recommend a number of changes to the Police Offences Act, including increasing maximum penalties and broadening the charge of assault on a public officer to include emergency service workers.
The Attorney-General has shown contempt for the Sentencing Advisory Council. She has not taken any notice of the opinions they have presented . She has not adopted a single representation they have made. Instead, she has chosen to proceed with policies the Council had categorically rejected. Since then, the Sentencing Advisory Council has strengthened their opposition to mandatory sentencing even further, in reports they have produced since the one I refer to.
The introduction of mandatory minimum sentences for emergency workers shows how little the Attorney-General respects or considers the advice of Tasmania's peak sentencing body. I do not know why she has asked them to waste the time they have spent on writing such substantial and well considered reports, because she has paid no attention to them.
We do not have the numbers in this House to prevent this offensive bill going through. We hope that the other place will consider and recognise it for the dangerous bill it is, and have heard some of the points we have made.
I conclude by laying out some general arguments which are relevant in this instance that have been made by Nicholas Cowdery AM QC in his role as Director of Public Prosecutions in New South Wales. He was in that role intimately conscious of their consequences. They had a notorious series of violent cases in New South Wales that occasioned some mandatory sentencing. Bills went through their parliament and there was a range of responses in the community and the legal profession following that. Nicholas Cowdery made these points against mandatory sentencing.
First, judges are unable 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 to an injustice. Penalties, especially for serious offences, must be tailored to fit the crime and the criminal. Justice must be individualised and penalties fixed in advance by parliament cannot achieve this.
Third, to have the legislature fixing penalties detracts from the independence of the judiciary and the principle of the separation of powers. That is something I have stood here and mentioned too many times in the short time I have been in Parliament. People are deprived of their liberty not in accordance with the public balancing process - that is, individually accountable - but it deprives them of their liberty arbitrarily in accordance with penalties fixed in advance without regard for the individual circumstances. It may even be that penalties such as this would be unconstitutional.
Fourth, mandatory sentences, being arbitrarily fixed in advance, constitute arbitrary detention that is contrary to article 9(1) of the International Covenant on Civil and Political Rights, to which Australia is a party. 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. This is contrary to article 14( 5) of this same international covenant.
Fifth, police may overreact and charge more serious offences than are warranted, with an added incentive for police to inflate their statements of facts as a result. Sixth, bail will commonly be refused and the prospect of an inevitable prison sentence providing extra incentives for a person to flee. 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 extra strain being placed on the courts, prosecution and Legal Aid bodies and offence representatives and all the services that are associated with defending trials. It will lead to backlogs and remand populations to grow. It will also mean, importantly, that victims of crime will have to wait longer for the resolution of their matters and that costs will blow out.
Eighth, juries may become reluctant to convict in some circumstances. This has been found already with some commonwealth prosecutions and it used to happen when the death penalty was available in Australia for murder. Juries tended to convict of manslaughter instead of murder. 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 the 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 to agree to pursuing lesser charges. Similar pressures will be imposed on police at the charging stage. This process is not transparent or readily accountable and can also be unsatisfactory, as you would expect, for the victims of crime.
The eleventh reason against mandatory sentences is that there will be more and longer sentences for those people who are convicted - clearly in this case a minimum of six months. Prison populations will expand in both the remand and the sentenced populations and this has a cost in terms of the money spent in prisons and the detrimental effect of prison on many people who are inmates there. Where minimum sentences are short, as they are in this instance, alternative dispositions would usually be more appropriate and effective. Here in Tasmania our ballooning jail population has already created a $2 million cost blowout recently. Since the last financial year the number of inmates at Risdon Prison has increased from an average of 470 to 550 and the current levels look as though they are heading towards 600 prisoners on average. The Attorney has not provided us with any commentary on how she is going to cover these increased costs.
The twelfth reason is that it is not a reliable method of treating offenders. A past criminal record or an atypical criminal involvement can be often a poor predictor of future offending. As I have mentioned previously, therapeutic approaches to sentences are not included or possible where mandatory sentences provide for a period of imprisonment. Where it could be possible to deal on a permanent rehabilitative way with the person, that money which could have been used in therapeutic programs is being diverted to keeping a person locked up.
The thirteenth reason is that mandatory sentences are not effective, particularly in the case of assaults on emergency workers where an assault is most likely due to circumstances that may never again arise in an offender's life. A mandatory sentence in this instance does not act as a general deterrent on offending. People who are suffering mental psychosis, 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 stressful response which leads to an act of assault. There is no apology I am making here for that behaviour -
Time expired.
Mr STREET (Franklin) - Mr Deputy Speaker, I affirm my support for the bill and the minister's intentions in bringing it forward. First, I believe this bill sends a message to the general public and that message is 'Keep your hands off our frontline workers'. Ms Giddings talked about the failure of mandatory sentences and I have heard her speak on that before so it was no surprise, but one of her arguments against it was that assaults on these frontline workers are most likely to be crimes of emotion, passion or anger. The counter-argument to that is one that you gave me before you moved to the Speaker's Chair this afternoon. You were sitting next to me and pointed out that football players often get involved in heated exchanges between themselves but when umpires get involved, no matter what the emotions or anger present in the situation, something in the back of their minds tells them or makes them aware that the consequences of putting their hands on an umpire in the way they would to a player is completely different. The reason is they know the consequences for touching an umpire are far more drastic than for dealing with a player.
As I said, Ms Giddings' opposition to mandatory sentences is well known in this place so I was not surprised by that. What I was surprised by was a couple of the arguments that followed. The first one being the confluence of the introduction of section 16A in December 2014 for assaults on police officers and the 30 per cent increase that there has been in minor assaults on police officers and the fact that the introduction of section 16A caused the 30 per cent increase. How you can argue that mandatory sentence is not a deterrent but somehow the introduction of it increased, not decreased, the percentage of assaults on police officers is mind- boggling.
The other thing that surprised me was I have never heard somebody so vociferously argue against a bill and the fact that it will not work and then combine that with an argument that the scope of the bill is not wide enough.
Ms Giddings - It just shows how pathetic the bill is and how discriminatory it is.
Mr STREET - It is discriminatory? So here we have what Ms Giddings describes as a bill that will not work, but one of her arguments is that the scope of the bill is not wide enough and the poor people should be protected by a bill that will not work. It is mind-boggling. It makes no sense whatsoever to me and I do not think it makes sense to anybody sitting behind me.
I note from the minister's second reading speech that Western Australia, Victoria and the Northern Territory all agree with our approach as they have mandatory sentencing provisions in acts to protect emergency workers, police officers et cetera. The argument about taking away judicial discretion is debunked in the minister's second reading speech by the following passage:
Section 16A will continue to have no implication if there are exceptional circumstances. The phrase 'exceptional circumstances' has been interpreted by courts to mean circumstances that are out of the ordinary course, unusual, special or uncommon. Where such circumstances are found to exist there would be no requirement to impose the mandatory minimum sentence of six months imprisonment.
So there are still judicial discretions in every case. There is still plenty of judicial discretion to evaluate the circumstances under which these assaults take place and to take that into account in sentencing. The most important phrase is another one from the minister's second reading speech and it is this:
The community expects frontline workers to be able to carry out their duties safely. It is in the interests of the entire community that the important functions carried out by frontline workers continue. As the body that is representative of the community as a whole it is appropriate that the Parliament enact laws to protect frontline workers and reflect the community's view that offences resulting in serious bodily harm to frontline workers are entirely unacceptable.
It is my belief that this bill and these amendments do exactly that and it is for that reason that I am more than happy to stand here and support it. I commend the bill to the House.
Mr FERGUSON (Bass - Minister for Health) - Mr Deputy Speaker, I rise to respond to the debate and the points that have been made. First of all, I thank each member who has spoken. In particular I thank those members who have spoken in strong support of the bill because in doing so they are demonstrating their strong support for the frontline workers who are there supporting us, supporting Tasmanians.
Emergency service workers including police and some of the health practitioners who are included in the bill are there to support people at a time of some of their greatest need, so it is time for this House to stand up and support the people who support the Tasmanian community. That is precisely what this bill is geared to. I was very challenged by listening to Ms Giddings' speech. She was unable to utter the word 'victim'. She was unable to talk about the victims of crime except for one occasion where she said that the victim and the offender ought to come together and sort it out through some sort of restitution.
We are talking about someone who has been seriously assaulted, someone who has suffered serious bodily harm and once again, as we have seen in previous debates on sentencing amendments, the Labor Party unable to put itself in the shoes of the victim of crime. They are only able ever to put themselves in the shoes of the offender, wanting to defend the offender, wanting to stick up for the offender, wanting to raise arguments of discrimination on the side of the offender. Why not more sympathy and compassion for the victims of crime. That is what the Government is motivated by. There was discussion during the debate, including from Ms Woodruff -
Ms Woodruff interjecting.
Mr DEPUTY SPEAKER - Order.
Mr FERGUSON - who now interjects questioning the motivation of the bill. The motivation of the bill is to have a just justice system. The motivation of the bill is to stand up for and show support and create greater deterrence for people who do the wrong thing and lay their hands on our frontline staff and hurt them.
I will be responding quite seriously to the arguments that were made, and unfortunately failed to be adequately made, by members opposite, but I must begin by providing a reminder to Ms Giddings who opened her contribution by saying that she had not heard from anyone who supported the bill, which was a breathtaking comment for the Labor Party to be making. Where is the Labor Party? They must be walking around with fingers in their ears. Tasmanians do support this strong approach to law and order policies. They do support very strongly action to show support and protect our frontline workers. You need go no further than the editorial of The Advocate from 25 October of this year. It says:
It should shock most people that dedicated professionals and volunteers who may be going as far as saving lives have their own safety, or in the most extreme circumstances their lives put at risk. That is why a move by the state Government to provide stronger consequences to protect these vital frontline workers is so important.
It is a sad day when members of the Labor Party have to admit that they do not even read The Advocate anymore if they truly claim they have not heard from anyone who supports this legislation. The Advocate says:
While the point has been made by the Opposition that there is no evidence to show that this type of mandatory sentencing works, the message must be sent loud and clear that it will not be tolerated.
This is important. If the Labor Party has totally switched off from listening to Tasmanians then it is a very sad indictment. They only come in here today representing their Labor-aligned unions and their Salamanca branch of the ALP. They have completely lost touch with everyday Tasmanians. There is more and I will come to it if time permits.
Ms Giddings and Ms Woodruff both asserted that these amendments somehow suggest that the Government does not trust judges, or that the changes are undermining judicial discretion. For those comments to be made shows a very basic misunderstanding of what our role here is as MPs. That is fairly pathetic given that we are all MPs. The overarching division between the role of Parliament and the role of the courts in sentencing is that Parliament sets the parameters for the sentence. Courts make decisions on individual cases within the laws set by Parliament.
If Ms Giddings and Ms Woodruff are seriously suggesting that we go back to a medieval system of people turning up to the King and asking for a judgment, they have completely missed the point that Parliament is the arbiter of what laws are then administered by the courts. Courts must sentence offenders according to law. The courts can only base decisions of this kind on the law that is made by this House and the other House of the Tasmanian Parliament. This means that they must sentence the offender within the boundaries set by any applicable legislation and within any boundaries set by relevant decisions of courts that are higher in the hierarchy of courts.
To those members who I would have thought ought to know better, I say again Parliament's role, our role, the proper role of this House is passing sentencing legislation that is a well-recognised role, it is an entrenched role and it is a proper role. Does Labor really oppose this legislation?
Ms Giddings - Do not bring in mandatory penalties; just increase penalties.
Mr FERGUSON - I will come to that, thank you, Ms Giddings. Here is a question for the Labor Party: do they really oppose this legislation?
Ms Giddings - Yes, we said we did.
Mr FERGUSON - Are they promising to repeal it if they were to win the next election?
Ms Giddings - We do not support mandatory sentencing.
Mr FERGUSON - Will you repeal it?
Ms Giddings - We do not support mandatory sentencing.
Mr FERGUSON - Will the Labor Party promise to repeal it?
Ms Giddings - We do not support mandatory sentencing. It is very clear.
Mr FERGUSON - Those of us who are smart enough to understand what that coded message is from Ms Giddings shows an insecurity by Labor. Ms Giddings has not thought this through. It is quite clear Labor's election policy, with the Greens, is to repeal it.
On the question of deterrent, members opposite said it - again, Labor and the Greens are joined at the hip - these amendments will not have a deterrent effect. The Victorian Sentencing Advisory Council examined the question of whether the threat of imprisonment deters offenders and conducted a review of the evidence. It found the threat of imprisonment generates a small general deterrent effect. Ms Giddings said it would have no effect or would cause more assaults. You cannot have it both ways, so make your mind up. Ms Giddings is inconsistent. It found that the threat of imprisonment generates a small general deterrent effect. Further, general deterrence means that the community as a whole is deterred from committing crimes.
Ms Giddings - I hope the community, as a whole, doesn't commit crime. Come on. That is civil society.
Mr FERGUSON - Listen to the discomfort. St
