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Legislative Assembly for the ACT: 2005 Week 14 Hansard (Tuesday, 22 November 2005) . . Page.. 4388 ..


One of the biggest problems in sentencing is that there is often a very significant difference between what one judge or magistrate and another judge or magistrate might do. That is a real problem. Most people want some idea and certainty. It is appreciated by people who practise in the area if there is some certainty as to what the person is likely to get—what the tariff will be for a certain offence. That is a very important sentencing consideration. This enables the Court of Appeal, on its own initiative, to do that. That seems to have worked quite well in New South Wales, where it has been in place for over five years. It is equally applicable regardless of the size of jurisdiction.

Perhaps it is even starker in a smaller jurisdiction where you have fewer judicial officers. If one judgment is perhaps way out of kilter with the norm—it is hard to say what a norm is—or seems totally inappropriate, it is that much harder. I think there should be guideline judgments in relation to that, should any party take the matter up on appeal. It gives some consistency between courts and enables the superior court to issue guidelines. Of course there will always be differing circumstances that would justify a completely different sentence in any particular matter, but the guidelines are important. They have served other jurisdictions well and I would certainly commend them to members.

DR FOSKEY (Molonglo) (11.00): The Greens reject this guideline judgment proposal as an unwarranted interference in the independence of the courts. I want to respond to Mr Stefaniak’s claim that we have misunderstood the purpose of this amendment and that its intention is to give the courts more power to set guideline precedents. I point out that that is not all it does; it also creates an avenue for political interference by the government of the day. Whether by design or default, this proposal weakens the independence of the judiciary.

Australia seems to be engaged in a fairly rapid slide away from an independent judiciary that has served us well since Federation. I find it astonishing that the people responsible for these changes have not been able to justify their actions with research or evidence and have not reflected on the consequences of this approach—or, if they have so reflected, they have chosen to pursue their own perceived short-term political advantage. It is almost certainly the case that jails are often run more humanely than they were in the past, but there is no justification for persisting with this ballot box focused populist campaign to increase penalties and limit the scope of the courts.

MR STANHOPE (Ginninderra—Chief Minister, Attorney-General, Minister for the Environment and Minister for Arts, Heritage and Indigenous Affairs) (11.02): I will not take too much of the Assembly’s time on this. When we previously debated the bill, proposed new clause 33A was debated at length. Mr Stefaniak took the opportunity to respond to some of the arguments then. I stand by the position I put and make the same comment as Dr Foskey has made today. I think it is overstating the case—or, I am not sure that it overstates it but it does not reflect either position, as Dr Foskey has explained—to say that the position we put was one that lacked understanding or was put lightly in relation to our guideline judgments.

Mr Stefaniak, I think that, to some extent, you have done us a discourtesy in suggesting that our position was neither well thought out nor well put in relation to a fundamental philosophical objection to guideline judgments. I do not want to labour the point, other than to say that I share with Dr Foskey the comments she has just made in response to


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