Published: 13 July 2017

Legislative Council Wednesday 24th May 

Ms  FORREST (Murchison ) - Mr President, I support the adjournment for a further briefing.  The issue is - and I respond to the honourable member for Apsley's comments - that normally there is consultation on a bill and we get feedback on it.  When this bill was tabled, I did not get much chance during the election period to have a look at all the legislation coming up.  I might not have needed to and it could have saved me a lot of work.

I have not heard specifically from the Law Society of Tasmania.  I thought that was unusual because this legislation contains mandatory sentencing provisions.  When it was contacted, as said in the email the member for Mersey read, the Law Society had some real concerns with the bill but had been hamstrung by lack of consultation or notice of its introduction.

Mrs Hiscutt - Even despite the fact they were emailed about it on 11 April?

Ms FORREST - They had emailed them - when?

Mrs Hiscutt - On 11 April, a draft bill was sent to Mr Rheinberger.

Ms FORREST - That is something we need to talk to him about.  It was interesting to hear there was no consultation when we are now hearing there was.  The Commissioner for Children and Young People made it very clear that he was not consulted.  Because this legislation refers to children, it is important.  We heard from the commissioner.  I thank him for coming in last evening to speak to us about the legislation.

I agree we do our own homework and have done all the time.  However, there are times when a bill has not been broadly consulted on, and does not come to the attention of key stakeholders until late in the game.  We need to pause to ensure the legislation is right.

This legislation is driven by an unfortunate incident that resulted in the death of a woman; thankfully the life of her baby was saved.  That matter has gone through the process.  It is important that when we react to such tragic circumstances, we do not overreact in light of community expectations that we will deal with them.  I agree we need to deal with this matter, but we need to deal with it in the most appropriate way.  Where genuine concern has been raised about some of the implications, particularly with regard to children, I think we should take those on board and take the time to make sure that what we are do is in the best interests of the children - as well as the adults - who may be impacted by this legislation.  I am not suggesting we should hold this up for months; I am saying we need to be sure.  If the Law Society was sent an email, why did they not respond?

Mrs Hiscutt - Through you, Mr President, we have a spot tomorrow at 9.30 a.m.  We will make every attempt to get the Law Society in for a briefing tomorrow at 9.30 a.m.  We will see how we go as it depends on them.  We can ask all those questions, then come back and do the bill.

Resumed from 24 May 2017 (page 36)

Mrs  FORREST (Murchison ) - Mr President, I understand the desire of the Government to increase penalties for people who evade police, particularly those who do it repeatedly.  When someone is panicking because they think they may have had one too many drinks, it is a deliberate act to avoid police because they have obviously something wrong.  If they do not get caught, they might get away with it.  I can understand that.  I can also understand the community outrage that occurs when someone who has evaded police ends up being involved in another very serious event, such as the Sarah Paino case, but you cannot make laws based on one case.  In that sad and tragic incident an innocent woman lost her life.  By a number of amazing coincidences, her unborn baby was saved.  Hearing the story about how that happened was just phenomenal.  The time of day was one factor, the fact the staff had just gone through a drill a couple of days before, the doctor who was able to work with her had worked late - all those things came together.  Nonetheless, it does not take the pain away for her family.  They have to live forever with the loss of that child's mother, a wife, daughter and sister.  It was a tragic event.

When a person who evades police is subsequently involved in another incident that causes such a tragic outcome, they should face the full force of the law for that crime.  Driving negligently, manslaughter - if that is the crime, they should suffer the harsh penalties.  Evading police on its own is not one of those sorts of offences.  We were told in the briefing about Professor Mirko Bagaric - he worked at Deakin but I understand he is now at Swinburne - who has written a book about sentencing.  When you read his articles, he is not saying we should have mandatory sentencing for this level of crime.  I will read a part from an article from the Deakin Law School titled, 'Call for an overview of sentencing law'.  The subheading is, 'We know that the best way to reduce crime is to increase visible police presence'.  I quote -

Australia's ineffective sentencing laws are failing to reduce crime and wasting taxpayer money that could be better spent on improvements to health and education, according to Deakin University Dean of Law Professor Mirko Bagaric. 

Professor Bagaric has called for an overhaul of sentencing law to start with reserving jail for the most serious criminals, including violent and sex offenders.

Professor Bagaric has made the call in a paper that sets out the need for reform in a paper published in the current edition of the Michigan Journal of Race and the Law. 

'Australia's justice system should aim to reduce crime, punish criminals appropriately, minimise the cost of the system and ensure that the system does not violate important moral prescriptions,' Professor Bagaric said.

'These four aims should be the primary and only focus of the system, but our current laws do allow it primarily because they are unduly punitive; make no distinction between crimes that devastate the lives of victims and those which have far less impact on the community and attempt to pursue objectives that are unachievable, such as deterrence.'

The paper, 'From Arbitrariness to Coherency in Sentencing:  Reducing the Rate of Imprisonment and Crime While Saving Billions of Taxpayer Dollars', argues Australia should take a lead in developing a new sentencing system that will reduce crime. 

Professor Bagaric called for the following measures: 

•           Sentences should be adjusted so that the harshness of the sanction matches the harm caused by the crime 

•           Sentencing premiums should not be added to pursue the aims of incapacitation or deterrence 

•           The most severe punishments should be reserved for serious sexual and violent offenders 

•           A recidivist premium of approximately 20% to 50% should be added to serious offenders 

•           All sentences should be determined by way of pre-determined presumptive (not mandatory) grids; and

•           Deviations should only occur from this for demonstrable reasons;  

'The reforms should be based on two key aspects:  Nearly all violent and sexual offenders should go to jail - and often for longer periods than at present - while most other types of offenders should rarely go to jail; and some of the taxpayer dollars saved on prisons from implementing this should be diverted to policing,' Professor Bagaric said.

'We know that the best way to reduce crime is to increase a visible police presence.  These measures will result in a massive reduction in expenditure of prisons, allowing more money to be spent towards productive community services such as health and education.  The current system has failed to reduce crime, while the nation has a burgeoning imprisonment rate and this is having a negative impact on public revenue as it shifts resources from health and education.'

He is saying that jail time should be reserved for serious sexual or violent crimes and other measures should be implemented for other offenders.  I commend the Government for looking at other sentencing options.  I think that is a positive thing - drug diversion courts, mental health courts and things such as that.  I support raising penalties that give the court the jurisdiction to decide appropriate penalties.  I foreshadow an amendment to remove the mandatory nature but increase the penalty of jail time if a court sees fit to impose a jail sentence.

We have to remember that this charge is evading police.  That event does not cause harm to anybody.  It could lead to a subsequent event and this is why police do not pursue them - because, as I understand it, that increases the risk of people crashing or crashing into other people or into something such as a tree.  That is a sensible policy.  It seems to be a proven policy and it is consistent around the country, if not entirely.  That is one offence.  If it subsequently results in another offence if that is violent or causes significant harm to another person, they should suffer the full consequence of that.  If it is a violent offence, jail time is appropriate.  It is for the court to make that determination.

I am happy to support this legislation with those amendments.  I understand the desire of the Government to send the strong message that it is not okay to do this sort of thing, and particularly to do it repeatedly.  We can all make a mistake.  Sometimes you might make a mistake in your youth and evade the police, and you might not be thinking about what you are doing.  Then 20, 30 or 40 years later, you do it again and suddenly you are in the recidivist category.

I will comment briefly on the youth issue.  I will be interested to hear the member for Elwick prosecute his case.  I asked the police officers who briefed us about the issues relating to 17- to 18-year-olds.  You can get a driver's licence at 17, and with that comes rights and responsibilities.  It could be argued that until your brain is mature, you should not be able to drive a lethal weapon, which is what a vehicle could be.  In that case none of us should have had a licence until we were 25.  That is what the neuroscience tells us - you need to be 25.  If you want to be really serious about that, it is not 17 or 18 - it is 25.

The decision has been made to get a licence, particularly for employment.  Most young people are responsible.  They get a driver's licence and they do not do the wrong thing, but there are some who do.  I was interested in the 17-year-old offenders who evaded police.  Of those they managed to intercept and catch, in 2016 to 31 March - I am not sure of the numbers as I have only been given the percentages - but of those young people, 50 per cent were unlicensed.  They did not even have a licence.  That is the point here.  A lot of those who do this sort of stuff do not bother getting a licence, or they have tried and failed and thought, 'Stuff this' and drive anyway.  They are in my electorate.  I know they do it.

Mrs Hiscutt - They are elsewhere too.

Ms FORREST - I know they are elsewhere; they are everywhere.  That is a separate problem which we need to address.  The Learner Driver Mentor Program is a really good scheme which I have been involved with in Burnie.  It helps some of these young people get a licence.  The program educates them and hopefully they will be more responsible.

Twenty per cent of these young people in 2016 were licensed.  They were unable to confirm 30 per cent.  If you extrapolate the same figures, you would expect probably 50 per cent of that 30 per cent to be unlicensed.  More than 50 per cent of those young people do not have a licence, either because they have never bothered or have tried and failed, or it has been removed for some reason, usually because they have broken the law.

When we say having a licence comes with rights and responsibilities, we should draw the full force of the law against them as adults.  If they have not even bothered to get a licence, they are not taking on that responsibility.  I will be interested to hear what the member for Elwick has to say.

I thank the police, the Commissioner for Children and the Law Society for their briefings.  They were very useful and helpful.  I am not going to go over the whole issue of mandatory sentencing in any great detail again.  We have had this debate a number of times and there is clear evidence it does result in injustices, particularly for people from minority groups, people with a disability and young people.

Whether it has happened in Tasmania in recent times is irrelevant.  The principle is mandatory sentencing can result in unjust sentences and it does not change the behaviour.  Education, alternative methods of sentencing, those things are what we need to be focusing on.

The other concern the Law Society brought to our attention is that this bill, in its mandatory sentencing approach, does not even have a provision for exceptional circumstances.  How is a court going to decide to suspend a sentence if there is no exceptional circumstance? Maybe they can or cannot, but they are going to have some reason.

Ms Armitage - My understanding from asking the question earlier is that they are able to provide a suspended sentence.

Ms FORREST - On what basis if there is no exceptional circumstances provision in the bill?

Ms Armitage - My understanding is -

Ms FORREST - The Government can talk about how that works.

Ms Armitage - That does not say they cannot provide a suspended sentence. 

Ms FORREST - That is right.  This Government will claim to have a mandate to get rid of suspended sentences.

There is a lack of consultation around this bill.  We heard from the Commissioner for Children that he had not been consulted.  This bill does include children so I would have though it was important to engage with the Commissioner for Children.

We were told the Law Society was consulted.  When we clarified that, the Law Society informed us that they were aware of the announcement made by the minister on Sunday, 9 April.  They did their processes on 11 April, on Tuesday, and emailed the minister, saying, 'What's this about?  We have not seen a draft bill. Can you send the draft bill?'  The draft bill was sent subsequently.  It was tabled Thursday that week.  By that time it was a bit late for input because it was already on the table of the lower House.  They received an email following the tabling of the bill in the other place saying the bill that was tabled differed from the draft the Law Society had been sent.  Those changes happened.  I do not know who was consulted with but it was not the Law Society.  To say there was consultation is disingenuous.

They were sent the bill on 11 April, after they requested it and had no time to consult.  They are a member organisation; they need to consult and they had no time to consult with their membership.

Mr Gaffney - They made the point that it was no use because it was already tabled.

Ms FORREST - That is what I said.  When it is in the lower House it is not going to change.

Mr Gaffney - They were waiting for it to come here.  We were sent the email on Monday or Tuesday asking if we knew it was going to be in the House.

Ms FORREST - It was 14 April when it was tabled downstairs.  It is not that long ago.  It might have been around for that time.  It was different from the original draft because the minister's office let the Law Society know it had changed.

Mr Gaffney - In that time we have had Easter and breaks too.  Most of them are volunteer workers.

Ms FORREST - That is right.  They review legislation voluntarily.

Mr Finch - You say you consulted - and this is a phrase we come up with all the time in the Standing Committee on Subordinate Legislation.  Have the stakeholders been consulted?  Who would be as important to consult with as the Law Society?  I can understand when you say you have consulted.  Sure, but who did you consult with and then not include the Law Society?  Even if you suspect their opinion is not going to be favourable to what you are promulgating, you still should have had that criticism.

Ms FORREST - At least then you can explain why you disagree with the Law Society, for example.  They did not have the opportunity.

If you had a fishing bill and did not consult with the fishermen but you consulted with somebody else, we would hear about that too.  If it was a regulation you, Madam Acting President, would hear being the Chair of the Standing Committee on Subordinate Legislation.  The fishers are always very forward in their -

Mr Valentine - They are not backward in coming forwards.

Ms FORREST - They are not backward in coming forward when they have a concern regarding changes to rules and regulations that relate to them.

I will support the bill into the Committee stage but I will remain in my approach to mandatory sentencing.  I hope the amendments will be supported; to remove the mandatory nature, and to increase the penalty to give the court a greater range of options in prison time, if they deem that an appropriate approach, particularly for those recidivists.


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