Legislative Assembly for the ACT: 1998 Week 3 Hansard (26 May) . . Page.. 547 ..
MS TUCKER (continuing):
I hope that somehow in the future - obviously, the numbers are here now - it will be changed again because it is not seen to be good law. We do not want to see the judiciary politicised. The question of prevalence is obviously fraught with problems. Are you going to say that a crime is prevalent because it gets a lot of media coverage? If that is the case, then we are really worried straightaway. I would say that one of the most prevalent crimes would be abuse of children; but mostly that is not reported at all.
I was interested also to note that in the 1980s there was a tendency at one point for surveys of crimes to be brought into courts by prosecutors. It was interesting, because it was shown that they were flawed. They were often skewed and not reliable at all. If members of the community are concerned about crime, they come to the people they have elected to talk about their concerns. It should not be left to the judiciary. That is about politicisation of the judiciary, and it is very worrying.
MR RUGENDYKE (11.59): I rise to support this Bill, and I will be brief. In June 1997, the Chief Justice of the Supreme Court, Jeffrey Miles, made a comment from the bench regarding section 429 of the Crimes Act. The gist of what Justice Miles said was that, the way the ACT Crimes Act was written, it elevated rehabilitation and repatriation above other elements in the Act. He believed that it did so at the expense of an equally important consideration in the law - the protection of the community.
The Chief Justice is not the only critic of the Act. To my knowledge, it has also come under fire from the DPP and Justice Ken Crispin. The problems stem from 1993 amendments to the Act. One of the things they did was to hamstring the court by preventing it from increasing the severity of a sentence because of the prevalence of the offence. The 1993 amendments are a clear departure from the common law. More than that, the principle of prevalence in sentencing has been given the seal of approval from no less an authority than the High Court of Australia. In 1992, the then Chief Justice of the High Court said that "an offence may be prevalent in one locality and rare in another, and sentences in those localities may properly reflect those factors".
Mr Speaker, I do believe that our system of justice should be humane. I do believe that it should, wherever possible, attempt to redeem those who have fallen foul of the law. However, we should never lose sight of what I believe is the primary aim of our justice system, and that is to protect the community. People who break the law are supposed to be punished by the court. Where the community is suffering a spate of problems with a particular crime, it should be open to the court to send a loud and clear message that such behaviour will not be tolerated. In so doing, we are not removing the ideals of rehabilitation and repatriation from the law. What we are doing is giving the courts the power to take all the circumstances of the crime into account when delivering a sentence. It is still open to the court to act with mercy. What this amendment will do is ensure that it is also open to the court to deliver justice to the community.
MR HUMPHRIES (Attorney-General, Minister for Justice and Community Safety and Minister Assisting the Treasurer) (12.02), in reply: Mr Speaker, I am very pleased to be able to close this debate, because, I have to say, I do not think that the Assembly has covered itself in glory in this particular debate. To be quite frank, in the course of this debate there have been a great many errors made by people who ought to have known better. I would like to address some of those immediately.