Page 432 - Week 02 - Tuesday, 20 February 2018
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In addition to carrying forward important criminal law reforms from the royal commission, this bill contains amendments that will improve the ACT’s criminal laws, based on local experience. This bill will address a clear gap in the ACT Criminal Code highlighted by the High Court in the decision of The Queen v Holliday, and clarify the relationship between good behaviour orders overseen by judges and parole orders administered by the Sentence Administration Board.
In The Queen v Holliday the High Court found it was technically impossible to convict a person of incitement to procure an offence unless the crime they incited was actually committed. So the ACT Criminal Code does not technically criminalise, for example, inciting someone to arrange a homicide if the person asked never goes forward with arranging the crime. This bill amends the Criminal Code to correct this gap.
The case that gave rise to this amendment involved kidnapping, but this change will be relevant to any scenario where a criminal attempts to create distance from the commission of an offence. This amendment will make it more difficult for people to avoid conviction on technicalities and to insulate themselves from responsibility by engaging others to commit crimes.
The amendments in this bill to parole legislation resolve the potential for conflict between decisions of the Sentence Administration Board and judges overseeing a good behaviour bond. These issues were highlighted by the Chief Justice in Peter v Wade. The government is responding directly to the issues raised in that judgement. Breaches of a parole order are heard by the Sentence Administration Board while breaches of good behaviour orders are heard by a judge. This amendment will avoid any conflict between the two by prescribing that good behaviour orders begin when a sentence, including periods of parole, ends.
The final suite of amendments in this bill provide an important change for young Aboriginal and Torres Strait Islander people in the justice system. The bill amends the Magistrates Court Act 1930 to provide the Magistrates Court with clear jurisdiction to allow circle sentencing in the Children’s Court. Circle sentencing is a culturally sensitive and specialist sentencing process for Aboriginal and Torres Strait Islander people.
The Galambany Court has been providing circle sentencing for adults since 2004. Prior to 2014 the arrangement of the Children’s Court business and magistrates meant that young people could be referred to Galambany. This legislation provides a firm basis for referring young people to circle sentencing. The circle sentencing process gives the ACT Aboriginal and Torres Strait Islander community an opportunity to work collaboratively with the ACT criminal justice system to address over-representation issues and offending behaviour. Following consultation to develop this legislation, the ACT government and the courts will establish the Warrumbul court. Warrumbul is the Ngunnawal word for “youth”, reflecting the focus on helping young people to get their lives back on track.
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