Legislative Council, Wednesday 7 August 2024

Ms FORREST (Murchison) - Thank you, Mr President, I will not make a long contribution on this bill, because a lot has been said in relation to previous attempts by the government to bring in mandatory minimum sentencing. At the risk of going over that again, I know we are talking about presumption here as opposed to mandatory, but the principle is the same in that the court is there to do a job. We give the court guidance through the maximum penalties we set and other mechanisms that are used. We pay members of our judiciary well to make such judgments. Any time we seek to interfere in that process or say we know best when we know nothing about the circumstances of the person that may be appearing before that highly skilled, highly credentialed member of the judiciary, I think we do a disservice to the court itself.

The government continues to bring mechanisms such as this forward, potentially to make it less offensive by making it a presumption rather than a mandatory requirement from the court. However, the court already makes assessments and presumes the matters that would indicate a higher sentence based on all the facts before them. They have all the resources they need to determine those facts. Anything that suggests that we might tell them how to do their job is too close to breaching that separation of powers that we hold dear in this democracy and the process under which we operate.

If we seek to continue to constrain the court in any way or tell them how to act, what is the court actually for? That is what they are there for. They are there to make these judgments and to consider all the relevant facts. When you look at the exemptions that have been put into this bill, of course there should be exemptions or considerations. That is what the court does. That is what the judge or the magistrate do already. They consider those matters and decide what penalty the person deserves if indeed they are guilty.

I might well find a Facebook post saying, 'The member for Murchison is soft on crime' by one of my colleagues from the area I represent. Maybe I will not. I hope I do not because that would be pretty childish and pretty stupid. I have seen some pretty childish and stupid things put on social media, though, but I have also seen some very good things on social media, too. I am referring to some things that are not so good. I have a respect for the court and the judiciary to do the job that we pay them handsomely for and train them up properly to do.

I do not always agree with the editor of The Advocate, but I did agree with him on an editorial he wrote on 11 June this year. I will read it because it expresses my views on the approach to legislation such as this. Anthony Haneveer is the editor of The Advocate and he is a former Liberal Party staffer. Keep in mind that he generally has views that would support the position of the government on a lot of things, but he wrote:

How disheartening to see the Liberals persist with their 'tough on crime' nonsense. Since they were humbled into minority government we might have hoped for more, but the conservatives clearly still hold sway. And they love playing the trite law and order card. They cannot help themselves. Unfortunately, it does nothing to help us to help the community. More often than not it is shallow politics aimed at creating division. The most recent example was thrown out over the weekend by Attorney-General Guy Barnett, who previewed the week ahead in parliament by announcing a new bill would be tabled. It is all about "protecting Tasmania's frontline workers, Mr Barnett says. If you believe that, you are likely also happy to help a Nigerian prince with a little money problem he's having. A bill would introduce a presumption of a minimum of six months imprisonment for those who cause serious bodily harm to Tasmania's frontline workers. We are told the list of who is a frontline worker includes retail and hospitality workers. One wonders if journalists, union officials and opposition MPs have made the cut. They haven't. (tbc very hard to see where the quote ends and she starts with her own words…further down she goes in and out of the quote many times)

But also who did not make the cut were teachers and our electoral officers. If you look in Victoria, what is happening in some of the electoral offices there, you would think they might deserve some protection, if others do. I am not saying anyone is worthier than another, I think the problem is making the list in the first place.

I will go back to what Mr Haneveer had to say.

It is an absurdity to even create a distinction of frontline workers who are somehow more deserving than others of being protected. The problems do, though, go deeper. For a start, such a law will not protect anyone. There is little to no evidence to believe that minimum mandatory sentencing serves as an active deterrent to offending.

I have spoken about that ad nauseam over my years here, when minimum mandatory sentencing has been brought forward, it does not act as a deterrent. There is evidence after evidence after evidence of that fact, particularly when people are committing crimes that cause serious bodily harm, whatever that is - and I will come to that - or grievous bodily harm, which we seem to have a definition for, that includes serious harm to the body - just saying.

I will go back to Mr Haneveer's comments.

Do we really think someone who is being violent will stop because they realise their victim is a frontline worker? As for satisfying our sense of justice again, it is questionable if it will even result in longer prison terms and a judge would impose anyway.

Just to digress again, Mr President, we have seen evidence in the past that the courts - when there is serious bodily injury or grievous bodily harm - the judges are awarding sentences more than what the minimum mandatory was proposed to be anyway.

Some members will recall the work done by a former governor that sought the input from members of the public to make a determination on particular real cases that did not have all the facts in the public eye, but to look at those cases and say, 'well, with all the facts then presented to them, how would they sentence this person?' Except the sexual crimes against children, they all said they would impose a lower sentence than what the court had actually imposed. How is the court getting it wrong there? They are probably stronger than community expectation, if you want to put it that way.

I will go back to Mr Haneveer's comments.

Do we not think that judges take into account all the circumstances of a crime in sentencing? If someone is assaulted because they are doing their job as a frontline worker, then would that not be an aggravating factor? Of course, we are not supposed to think too much about all of this. It is the vibe of the government in going for all that matters. The Libs are praying that Labor votes against their bill -

Sadly, they did not downstairs. He did not say that, but I am just saying that

- preferably alongside the Greens. Then they can wheel out the much-loved narrative, the two sharing a [4.57.08?] of being weak on crime. Please stop treating us like fools.

I agree with him, with those comments. It is a sad position to be that we keep coming back. We know that in this House now that when both the major parties line up, it is devil's own job to stop it going through. It might be a moot point what I say if someone else wants to join them, but we did not get any clarity in the briefing about how the list of frontline workers was determined, who got to the list and who did not. One of the obvious ones that is missed off there, as I said, was a teacher. Teachers are assaulted far too often by students and parents. Sports coaches on the side of umpires. Umpires, whether they are volunteers or being paid to do a job, why are they not there?

It is extraordinary we can come up with a list like this with, from what we heard in the briefing, no actual data to support it; no risk assessment, as such, except other than you could claim they work at the front line, but so do many other people. Surely the crime that is committed should be assessed by the court and the members of the judiciary on the facts presented to the court, so you may use a decision on all those matters. There is also, as I alluded to, no firm definition of serious injuries. There have been some cases that have referred to that and it seems to be between harm and grievous bodily harm, but grievous bodily harm talks about serious harm to the body, so what is it? Surely, this is a matter for the court to consider.

For example, someone who is a concert pianist, to have their little finger broken in such a way that it cannot be reset properly is a very serious injury, but for someone who has all seven other functioning fingers and two thumbs, it is not such a big deal.

How do you make that assessment? The court makes that assessment, the court decides whether this is really serious or not. For someone who is a shooter at the Olympics, who has an injury to their eye from someone punching them in it, would obviously be considered by them to be a very serious injury. There is a relativity around all of this and it is not clear you do not have a definition. Yes, you have cases that are heard and maybe a body of determinations and court decisions builds up, but why are we creating a problem here that does not need to exist when the court has everything there at their disposal to actually consider what is the appropriate sentence. The courts, the judges and magistrates are not stupid. They know what the community expectation is. They live in the community.

I do not know if anyone else in this Chamber went to see The Box that Mudlark Theatre put on the other day. Did anyone else go and see it? I am disappointed you did not. It was written by Nathan Maynard. It was the most extraordinary, in-your-face play that depicted growing up in a housing commission area in a public house. It depicted drug use, it depicted one of the siblings in prison, all the challenges. It was the most tragic, gut wrenching performance I have ever seen. Many people I have spoken to who saw it said they were watching their own life play out on that stage. They were watching it. At least they are seen now. If they ever play it again anywhere, please go. It is called The Box. I make a full declaration: my daughter is the chair of Mudlark Theatre. She was not involved in the artistic design, direction, production or anything, but it was truly profound.

At the end of the performance, it went to Burnie, Launceston and Hobart. It was pretty much sold out down here. At the end of it, there was significant applause for the actors who were truly incredible Aboriginal people. The audience was stunned and shell shocked. What we were seeing there was the lived reality of so many people. One had just come out of prison, others were about to go back in, one was murdered, one had suicided. It was all there in front of you.

The court sees these people. There was a person in the audience who sees these people in their role who said to me afterwards, 'This is what I see'. The court looks at all of this and makes a determination with all those facts. It does not mean those people are going to get off because they have committed a crime. It means that the court will determine what is the appropriate sentence. You can put these exemptions in rightly, that if someone has a mental health condition that means they have committed an offence, because there is no way that person would do it without having that condition, then that is taken into consideration anyway. Why do we need that as an exemption? That is what the court does.

I find it sad and somewhat frustrating that we are back here again, even though it is presumptive and not minimum mandatory sentencing. We have to send a strong message like the Strong Plan, yes. What message are we really trying to send? Are we saying the judiciary does not know what the community thinks, that they do not know what the expectations of our community are?

If everyone who thought we should be so 'tough on crime', and uses that terrible rhetoric, spent every day in a court with some of these cases and thought about what penalty they would give that person - it is easier to do this when you are not the person who is the victim, or a family member of the victim. For some of those people, no penalty will ever be enough. I understand that. For those who want to pass judgment themselves, do not do it without all the facts. The only place that has all the facts is the court. Let the court do its job.