Page 4095 - Week 13 - Tuesday, 15 November 2005
However, I now understand that this subclause is purposely obscure as it is extremely difficult to cover all the reasons that a detainee may be incapable and thus, by not outlining the reasons, it provides a greater level of flexibility for the determination of a detainee’s incapacity.
The issue of victims’ rights came across through chapter 13, regarding the release of a detainee on licence, remission and pardon. Under this chapter, there is no requirement, firstly, for the Sentencing Administration Board to record submissions of a victim in or accompanying a recommendation of the board to the executive as to whether the executive should release an offender; secondly, for the executive to give an opportunity to the victim to make representations to it when determining whether to act on a recommendation of the board as to whether an offender should be released; and, thirdly, for the executive to give any reasons for its decision on whether or not to act on a recommendation of the board.
Departmental officers explained that this did not limit the victim’s ability to make representations through this process. Victims can still make representations if they feel it is necessary. The rationale behind these clauses is to allow the executive to provide mercy to a detainee if they feel it is appropriate. It is a sensitive, complicated and serious matter and there is great responsibility placed on the executive when such a decision is made.
There is an argument that, by requiring a victim’s submission to be sought and included in all cases, there is greater political and public burden placed on the executive that may operate to limit their ability to provide for mercy. This is a difficult point to argue for or against, but the provisions that have been included in chapter 13 are of a progressive nature and I do not wish to oppose them as, by doing so, I would be opposing the ability for a detainee to be granted mercy in the most necessary and serious circumstances.
Finally on the Crimes (Sentence Administration) Bill, my office was at first alarmed to read subclause 9 (4) of the bill, which may provide an inappropriate delegation of legislative power to the executive as it states in relation to treatment of other people in custody:
A regulation may make provision in relation to the application of this Act (other than this section) to the person, including modifications of the Act in its application to the person.
My office was wondering whether the executive would need to exempt this legislation from applying to one particular person, but then it was explained by way of example that the power is needed in cases where a person is detained in the ACT under commonwealth laws—for example, under the Migration Act—and the detainee’s right to be treated in accordance with the ACT Human Rights Act may need to be clarified.
I will not be supporting Mr Stefaniak’s Sentencing and Corrections Reform Amendment Bill. The Greens’ response is based upon our strong support for maintaining the separation of powers between the legislature and the judiciary. I believe that telling judges and magistrates how they must sentence offenders is a dangerous step towards narrowing this important safeguard of our freedom and rights.