ACT Attorney-General Shane Rattenbury might get the feeling that the new Law Reform and Sentencing Advisory Council he established in November last year is channeling Freddie Mercury: they want it all, and they want it now.
Council chair Lisbeth Campbell has made it clear that hers is an independent body. She even had to have something of a fight over the optics – ensuring the ACT Government logo was removed from council’s letterhead.
She has taken the terms of reference at their word. In delivering law reform, the council was to “conduct reviews and research, with a view to the modernisation of the law, the elimination of defects in the law, the simplification of the law, the consolidation of any laws, the repeal of laws that are obsolete or unnecessary and uniformity between laws of other states, territories and the Commonwealth”.
As I noted in these pages in November, this is to be done with three workers. No chance. I suggested then it was a Rolls Royce ambition with Mini Minor resources.
Five months on, the Mini appears to have lost a cylinder or two, the tyres are flat and sources close to the council say that the driver, Campbell, has become particularly reliant on one council member, who has proved anything but a passenger.
Indeed, but for this council member, I am told, the whole operation may have withered before it sprang shoots.
This one-in-13 councillor has helped craft, with the chair, the overall strategies and scope of work that may be possible (even, on occasion, having to rein in the chair’s very high expectations). The chair, I have been told by multiple sources, has even had to rewrite the minutes of council meetings herself, such is the paucity of capacity and experience made available to the council.
There are a number of dichotomies here.
Two are age-old: the boldness of what government professes versus the inadequacy of what government provides to achieve it; the forensic approach of the lawyers appointed versus the outcomes expected from the politicians who appointed them.
The most striking, however, in my view, is the tension within the organisation itself, tasked as it is with comprehensive law reform and sentencing advice.
Certain politicians have seized only on the latter. Indeed, the first referral to the council was also a reason for its establishment: the outcry over dangerous-driving deaths and how the courts dealt with offenders.
That inquiry is underway, Campbell launching the consultation period in late March, with submissions due by 7 May.
The consultation paper for the inquiry was largely drafted by the aforementioned lone councillor but with four others contributing sections and Campbell setting the direction, editing and settling the final document.
The paper begins with a section about the council, including, on the very first page, this subtle laying-down of markers for Rattenbury:
“In most Australian jurisdictions, law reform and sentencing advisory bodies are creatures of statute with all the protections that this affords their members. They are usually separate from each other although they might share administrative and research staff. This council has been established with both law reform and sentencing functions.
“As is clear from the terms of reference, the council has a duty to act independently and impartially from the Government.”
The paper notes the imprecision of the referral regarding the definition of “dangerous driving” and frames questions for those considering submissions about which acts should or should not be included and notes that the more serious driving offences are confusingly contained in three separate Acts.
The paper spells out for the non-lawyers how sentencing practice has been developed and includes a comprehensive comparison of serious motor-vehicle driving offences as at March 2024 across all eight states and territories. This was a monumental task, one not done by the council’s secretariat but by its chair and that indispensable member.
The paper’s second annexure lists the five most recent ACT Supreme Court decisions for the offence of culpable driving causing death.
It is quite possible that the council will not receive one submission that will match the thoroughness of its own consultation paper – and it probably knew this would be the case. A legal eagle with an established point of view can grab the consultation paper to flesh out his or her case. The spadework has been done.
This is a document beyond what the three staff provided for council could have come up with, but Campbell should have been able to rely on a bank of government-provided expertise to produce at least the evidential base for the paper.
Much more work looms on the horizon. There is a second referral already on the books that will be far more involved than the first: bail law. The timeframe for it is abominable. The driving inquiry is to wrap up on 30 July. Bail is to be completed by 30 November: that’s four months to work up a consultation paper, run the public consultations, distil the materials received and write a report that reviews the entire Bail Act 1992 as well as the considerable and unique body of ACT law that has built up around it.
Anyone not living under a rock would have seen the enormous to-and-fro on bail our neighbours in NSW have endured in recent years, with the law being changed, and changed back again.
The former attorney-general Greg Smith, a true first law officer, led a review of the complex area, which had been in place more than three decades and amended 80 times.
After media criticism that Smith’s thoughtful new deal was allowing accused murderers to “walk free”, new premier Mike Baird quickly commissioned another review, then quickly brought the supposed tough-on-crime regime back in again – and Smith found himself out of the AG’s gig.
As Smith told the ABC at the time, some people (you can start with Chief Justice Ray Hadley of the Court of 2GB) had it as their agenda to destroy those bail laws – and Smith’s Liberal parliamentary and ministerial colleagues caved spectacularly.
Dangerous driving and bail are just the first two referrals for the ACT council. There is so much more to be done, remembering the universality of the terms of reference.
In my view, the best way forward is for the council to be split in two. Establish, by statute, both a Law Reform Commission and a sentencing council, staff both with experienced lawyers and AG’s department policy staff – and have them report to the parliament, not the government.
But, no sooner do I suggest it, than I hear the voice of Darryl Kerrigan, the successful High Court litigant in that fine legal documentary The Castle: “Tell him he’s dreaming!”
Andrew Fraser is the principal of Fraser Criminal Law and has worked in criminal law in the Canberra region for more than 15 years. Before beginning legal practice, Andrew was a journalist for close to 30 years with the Canberra Times and the Sydney Morning Herald, including stints in the Federal Parliamentary Press Gallery. He is also a former news editor, chief of staff and political correspondent of the Canberra Times.
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