Queensland Law Society Mandatory Sentencing Policy Paper Launch

Acknowledgements

Thank you for your kind introduction.

I would like to begin by acknowledging the Turrbal People, the traditional owners of the lands on which we are meeting today.

I would also like to acknowledge:

• The Honourable Justice, Margaret McMurdo AC
• Queensland Law Society President, Ian Brown
• Bar Association of Queensland President, Peter Davis QC
• Queensland Anti-Discrimination Commissioner, Kevin Cocks
• Queensland Public Interest Law Clearing House President, Lucy Bretheron
• Bar Association of Queensland CEO, Robyn Martin
• Director of Caxton Legal Centre, Scott McDougall
• President of the ALA Queensland, Michelle James
• Vice President of the Queensland Council for Civil Liberties, Julie Jansen
• CEO of the Aboriginal and Torres Strait Islander Legal Service, Shane Duffy.

It is a great pleasure to be here with such honoured dignitaries, and everyone here, today.

My role as the Human Rights Commissioner

As you may have noticed, in February I was formally appointed the Human Rights Commissioner at the Australian Human Rights Commission (the Commission).

There are eight Commissioners at the Australian Human Rights Commission, including the President, as well as six other Commissioners that focus on Age, Sex, Race, Disability Discrimination, as well as the Aboriginal and Torres Strait Islander Social Justice Commissioner, the Children’s Commissioner, as well as myself.

The role of Human Rights Commissioner differs too many of these portfolios that give specific focus through relevant pieces of Federal legislation. 

There is no equivalent legislation directing my position as the Human Rights Commissioner and indeed, my role potentially touches on all areas of the work of other Commissioners.

The office of the Human Rights Commissioner is established under Commonwealth law, the Australian Human Rights Commission Act. This means that I do not have the power to investigate human rights issues at a State level. I will leave that to Commissioner Cocks.

When announcing my appointment, the Commonwealth Attorney-General noted the absence of a ‘rights’ culture in Australia and asked me to focus on advancing rights and freedoms as set out in the International Covenant on Civil and Political Rights (ICCPR) – particularly our rights to freedom of thought and expression.

Resulting from my philosophical approach to human rights and greater freedom for the individual, the Attorney-General dubbed me the ‘Freedom Commissioner’, and I can assure you that is precisely what I plan to be.

My approach to human rights

Throughout my career, I have proudly approached human rights from a classical liberal perspective.

Broadly, a classical liberal approach believes that people own their own lives; rights are universal and can be reasonably consistently exercised by individuals to pursue their happiness and enterprise.

Classical liberals view human rights narrowly such as freedom of speech, association, worship, protection of property and protection against arbitrary detention. In balancing competing rights, deference is given to more freedom, not less.

Importantly, classical liberals elevate these birth rights to sacrosanct principles that should not be disposed of when they become a nuisance to collective aspirations. Without rights, individuals are exposed to the tyranny of the majority. In practice it means defending individuals from the abuse of power by government.

So, on that basis, it should come as no surprise that I have strong concerns about the imposition of mandatory sentencing across jurisdictions in Australia.

Mandatory sentencing

I would like to commend the Queensland Law Society for producing a clear policy position on mandatory sentencing and congratulate you on the launch of this policy paper today. I have read the paper and it accords strongly with some of my views on the subject.

I would also like to acknowledge my colleagues at the Commission; Mick Gooda, the Social Justice Commissioner and Megan Mitchell, the Children’s Commissioner, who have also spoken strongly against mandatory sentencing laws and their disproportionate impact on Aboriginal and Torres Strait Islander peoples and children.

Given we have a short timeframe this morning, I will make some brief general comments about mandatory sentencing from my perspective as the Human Rights Commissioner.

First, and consistent with my view that we should not just be looking to laws to solve all of society’s ills, there are many alternatives to mandatory sentencing that are more suitable for combatting crime. These alternatives include:

• anti-crime programs that address issues such as poverty, homelessness, discrimination, child abuse and neglect, family breakdown and exclusion from education

• early intervention and social support programs that protect against later offending

• where appropriate, diversionary programs that keep offenders out of the formal court system

• non-custodial sentencing options such as probationary orders, community service orders,  and treatment programs for people with psychological problems or drug/alcohol dependencies.

Second, mandatory sentencing raises serious concerns about the operation of the separation of powers between the executive and the judiciary.

As you are all aware, Australia’s political system is founded on a clear separation of powers whereby the power of government is balanced between the legislature and executive that establish laws, and the judiciary who interprets these laws. The implementation of mandatory sentencing means that the terms of sentencing – a key aspect of ‘interpreting laws’ – are determined by the executive and are not reviewable by the courts.

The importance of the separation of powers should not be lost. The separation of powers is designed to limit the power of the Parliament to impose its will on the public. It is designed to protect the individual from the tyranny of the majority. It is designed to preserve and protect the freedom of all individuals from the abuse of government power.

Mandatory sentencing compromises the well-thought-out structures of our democracy, to address popular concerns.  

In this light, mandatory sentencing is not conservative law. It is anti-conservative law. It is progressive law. This is because conservative law focuses on respecting the role of institutions, while progressive law is about solving society’s problems through government.

I understand that governments take this approach to mandatory sentencing because they want to be seen by their constituents as being ‘tough on crime’. Certainly, we can observe from the recent mandatory sentencing laws here in Queensland and also in NSW that these laws reflect governments responding to pressure from some citizens to address particular – real and perceived – ‘problems’. I also understand that the relationship between society and the justice system is symbiotic – justice must be done, and it must be seen to be done. I want to make it clear that I have no issues with the Queensland government being firm in upholding the law.  

But mandatory sentencing laws do not provide a solution. Instead they stifle the role of courts to review and interpret the laws, governments instead create arbitrary sentencing laws that are often not proportionate to the crime and do not allow sentencing judges to consider mitigating factors.

Third, in spirit and intent, preserving and protecting human rights is about aiding the weak and powerless – the individual and their rights – not the strong and the powerful – government and its interests. The deference should be towards the fullest realisation of rights, not limiting them. In the discussion surrounding mandatory sentencing the human right to equality before the law is vital.

I was reminded only the other day by my good friend, Dr Simon Longstaff, of the St James Ethics Centre, that one of the key points of an independent judiciary is about equality before the law. An independent judiciary enables individuals to be treated equally in a court room against the imbalanced, significant resources and power of government.

It is often wrongly assumed that such policies only harm ‘crooks’ and don’t impact on the rest of society.

Undermining that equality before the law does not just harm the individual wronged, it harms the whole society by the precedent is establishes, as well as the consequences that then flow through the law through any inappropriate legal precedent as well.

Similarly, the consequent risks of using the justice system to inculcate petty offenders into a culture of criminality that leads them to be repeat offenders also impacts on everyone.

Finally, the introduction of mandatory sentencing does not sit in isolation. Mandatory sentencing is another incremental stake stabbed in the heart of the foundations of our liberal democracy, driven by the progressive ideal that more prescriptive legislation can drive better results.

In short, mandatory sentencing assumes that centralised government with less information can make better decisions about individual cases than decentralised independent agents with more information.

That’s why I am enthusiastic about the Commonwealth Attorney-General’s initiative to direct the Australian Law Reform Commission to investigate legislation that unnecessarily encroaches on traditional rights, freedoms and privileges, including reversing the onus of proof, procedural fairness, the right to not self-incriminate, free speech, religious faith, property rights, free association and movement, restricting access to courts, among other things.

I believe that this process will provide the opportunity to take stock on how policies, like mandatory sentencing, have compromised the foundations of out liberal democracy and the negative consequences for human rights.

I congratulate the Queensland Law Society on its initiative and wish them luck in having their policy getting a fair hearing in government. 

Thank you.