Parliament

Justice Legislation Miscellaneous Amendment Bill 2018

July 26, 2018

Second reading

I rise with a heavy heart to speak on the Justice Legislation Miscellaneous Amendment Bill 2018.

It is heavy for a lot of reasons, one being that it appears that nobody on that side of the house is going to speak up for so many people in our community, and it is the same on this side.

We have got an agenda driven by the Herald Sun that is really concerning to me.

I will not touch on many aspects of what is in this bill today because I am not in opposition to much of it.

However, I am strongly opposed to mandatory sentencing and cannot countenance being a member of this place and not speaking about my concerns.

 

Let me start by saying I have great regard for emergency services workers in this state. They do very difficult and demanding work, which many of us would be disinclined to do. Indeed over the years I have known many people who have worked in these areas, particularly in hospitals, and they have been the victims of perpetrators who have been violent towards them. There are many laws in place to deal with these offenders, and they are dealt with.

I have been a member of the legal profession for over 40 years. I have read widely on this topic and spoken to many people at the coalface in our court system. Many of their views will be reflected in my contribution. Court users agree that the courts of this state are underfunded and understaffed. The Herald Sun — which I hate quoting — today refers to the fact that every cell in the state is presently full. Our prisons are full. Every cell across this state is full of people who are now unable to be dealt with. So many people are now being held on remand. Many of these people will subsequently be found innocent of any charges, but there it is.

The causes of these problems include funding cuts by successive governments but also a growing animosity among political participants towards the judiciary and its officers. This animosity is worrisome because an independent, adequately funded and respected judiciary is central to the maintenance of the rule of law and the separation of powers — two principles upon which continued peace and prosperity for our society absolutely rely.

The Magistrates Court in this state bears the burden of this animosity. Far from being in ivory towers, magistrates live and work in the city, in the suburbs and in our regional centres, where their workloads increase and where they continually face growing criticism about their 'soft sentencing'. This is a fictitious phenomenon never actually reflected in the statistics that record their work or in the courtroom. It would be very salutary for many of the people in this place to go and sit in a Magistrates Court, look at the number of cases magistrates have to deal with on a daily basis and then continue to criticise them for the decisions they make.

The lessons of history will tell us that a degraded and politically meddled-with judiciary assures us of bad and unfair outcomes caused because sentences are imposed without thought, without regard to proportionality, without aim, without purpose and without a considered and objective mind. A Parliament that cuts and criticises the judiciary and then complains about its capacity is thinking only of using its basest instinct and about the next election. This arises from a hot and fleeting temper to do retribution to those it sees as bad.

It is not a Parliament concerning itself with what really works. Mandatory sentencing laws are bad laws, and they have proved to be so in so many other jurisdictions. They have been repealed in other jurisdictions. They will prove to be bad here.

The Law Council of Australia, the Law Institute of Victoria and the Victorian Bar Council all stand against this legislation, as do so many of our community legal services. They are the people who see this in operation every day. So many other organisations also do. Much has been written about this, and I acknowledge John McPherson from Bendigo, a solicitor who has written an excellent paper on this topic that summarises it particularly well.

While mandatory sentencing may be great for electoral politics, it is simply bad policy. All of the organisations I have mentioned regard it as bad policy and say that it leads to individual unfairness and negative outcomes. It fails to make the community safer — there is no evidence that it does that. Mandatory sentencing brings about unjust and anomalous, disproportionate sentences. Why should judges not have discretion? They have all the facts before them. They are the only ones who can make a considered decision on an individual basis that will provide justice for the people involved. I do not doubt that sometimes they might get it wrong. Who doesn't? Who does not make mistakes in our society? Is there anyone here who can say they have never made a mistake in the role and duties that they undertake?

Mandatory sentencing results in higher imprisonment levels. Our prisons are full. New beds are coming online, and they were announced recently, but mainly for the worst offenders. Again, our prison cells are full. All the cells at our police stations today are full. This is just a situation that a law like this will do nothing to help. It will increase the load on the prison system, and it will not improve. In Victoria nearly 45 per cent of prisoners released from jail return within two years, while 25 per cent of people within the community corrections punishment system come back within two years. The difference between the two is amazing, and I think a properly functioning community corrections system is actually shown to be much more effective. It is much more likely to be able to bring into place rehabilitation and hook people into the services in the community that they need. In a situation where people are spending a mandatory six months in jail they are unlikely to get any access to rehabilitation in that time.

Imprisonment is extraordinarily expensive. In the 10 years to June 2017 the Victorian prison population increased by more than 70 per cent. This may not sit well with many in this house and the tabloid press, but what it represents is that instead of being soft on crime, magistrates and judges are doing the opposite and putting away people in great numbers. Mandatory sentencing does not do away with the discretion in the judicial process; it transfers it to the police and to prosecutors. So instead of judges now exercising the discretion knowing all the facts, the police will decide what charges they will lay. They will become the masters of the decision about what charges are laid, and I find that a very concerning and pretty scary prospect. It is absolutely inappropriate that they should be given that level of discretion.

Mandatory sentencing undermines public confidence in the justice system generally and in judges in particular. Why should judges be given the discretion in every other case but not in this particular situation that we are legislating on today? They have shown themselves for so long to be able to exercise their discretion appropriately, and let me tell you that evidence shows that community members, when they are informed of all the relevant facts, when they consider what the appropriate sentence should be and what is fair, often consider that what judges do is over the top. The Sentencing Advisory Council has run a number of tests on this and they have found each time that people actually are more lenient out there in the community than are our judges.

Mandatory sentencing disadvantages the most vulnerable members of our society: young Indigenous people, people with mental illness, disabled people and those more sinned against than sinners in our society. There is a serious risk that a law such as this will deter people in our community who may have family members with mental illness from actually calling an ambulance. It is just an awful situation to think that you may be dealing with someone in your home who is extremely unwell, who is impacted in some way and who might lash out, but you are too afraid to call emergency services in this state because they might lash out, because something might happen — and not because they are deliberately intentionally being violent but because they simply cannot help themselves; it is their condition. We do not live in a society where we want people treated like that.

On family violence, here we have had the Royal Commission into Family Violence. It is totally counterintuitive to now have a law such as this which will make people who are the victims of family violence anxious about calling the police, about calling others to come to their home to assist them. Why would they? So many times the last thing that person wants is for their partner to be jailed for six months mandatorily. It takes away the discretion. It is bad law; it is bad policy, and I am opposed to it.

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