The ACT Labor-Greens coalition is widely seen as the most permissive and truly liberal government in the country.
It is moving to raise the age of criminal responsibility from 10 to 14 and its criminal legislation is generally seen as quite generous, and its courts quite lenient, toward defendants. Indeed, many NSW colleagues are regularly amazed at the results ACT solicitors can get for their criminal clients.
But there are some crazy exceptions, all legislative rather than judicial.
In NSW, a drink-driver is a repeat (or, in their words, “second or subsequent”) offender if he or she has had a similar conviction inside five years. This means a stiff increase in the maximum available jail time or fine and a considerable lengthening of the minimum disqualification from driving.
But in the ACT, a repeat offender is anyone who ever – ever – had a previous drink-drive matter. So, the then teenager who had a DUI matter in 1970 is a repeat offender (facing those tougher penalties) when he returns to court as a pensioner in 2024 for going slightly over at a random test after his grandson’s 21st (and after more than a half-century of blemish-free driving).
The ACT Bail Act (subject to review by the ACT Law Reform and Sentencing Advisory Council later this year) includes Section 9D. This provides that anyone charged with a serious offence faces a presumption against bail. A serious offence is defined as one that carries a penalty of five years or more imprisonment. Breaching a Protection Order carries five years. An order can be breached by making contact with a protected person.
Many has been the case where one lovelorn teenager has texted another who was their partner until the week before. A breach. A few days later, they respond to a friendly text from that same ex, who is having second thoughts. Another breach. That means arrest and being held overnight in police cells for saying something stupid like “I love you”.
Perhaps the worst ACT exception is the ham-fisted way in which “vulnerable people” are protected. Of course, some need particular protection but the ACT is potentially adding to their number with rules that ban people from obtaining a Working With Vulnerable People card for committing offences unrelated to the care of vulnerable people.
The Working with Vulnerable People (Background Checking) Act 2011 is a minefield, creating Class A and Class B offences in a regulatory tangle that snares far more people than it should.
Lorana Bartels, Professor of Criminology at the Australian National University and Adjunct Professor of Law at the University of Canberra speaks of the growing body of research on “the collateral consequences” of criminal records, which can be both formal and informal, and “limit the full exercise of citizenship rights and restrict access to employment and economic opportunities as well as welfare benefits”, as put in a 2023 study led by Associate Professor Allesandra Corda, of Queen’s University, Belfast.
Professor Bartels noted most Australian jurisdictions adopted a “working with children” framework but the ACT’s “vulnerable people” regime includes people of any age experiencing disadvantage, including a physical or mental disability, social or financial hardship, an inability to communicate, or difficulty communicating in English.
“It is well established that people in contact with the criminal-justice system are more likely than the general population to themselves experience disability, hardship and communication issues,” she said. “People who are themselves vulnerable are therefore disproportionately likely to be disadvantaged by, rather than the beneficiaries of, this system.
“In addition, society as a whole will pay the price, if people are prevented from participating in activities that would promote their rehabilitation, due to an excessively restrictive framework.”
The ACT lists 23 regulated activities for which a WWVP registration is required, from coaching and tuition to vocational education and training. Within the net are religious organisations, clubs and transport.
In Victoria, a Working with Children check is required only for someone who works or cares for children in any a range of occupational fields and whose work usually involves direct contact with children, and whose contact with children is part of their duties.
In the ACT, tradespeople need a WWVP to work on school sites, where they have no direct contact with kids, and contact is certainly not part of the job.
Professor Bartels’ point about stymied rehabilitation hits home when you learn of a man who is still waiting on the nod for a job with a government agency that keenly wants him but has, with him, been waiting six months for approval for that precious registration, which usually comes within eight weeks.
Not wanting to be named while that employment iron is still in the fire, he tells me “the way things are currently structured devastates the ability to rehabilitate”.
“It even effects the ability to volunteer in areas where people with lived experience provide invaluable contributions.”
This gentleman has overcome a difficult past, acknowledging an extensive criminal history, but emerging as a star of the Supreme Court’s Drug and Alcohol Sentencing List. With many good works now behind him, he is a mentor and advocate acknowledged by Professor Bartels among others.
Despite his toughness in overcoming much adversity, the wait for the WWVP card has hit hard: “I’d be lying if I said it hasn’t affected my mental health, because it just feels like I can’t move forward.
“I’ve been trapped in the system since my early teens and have worked so hard to get to where I have just to be locked out by bureaucratic red tape.
“I’m lost at what to do, I’m exhausted and I don’t know how they can’t envisage that at some point, this all causes those going through it to question what they’re doing.”
Felicity Loiterton is another caught by the ACT’s “big speed hump”. A national champion in the martial art of Muay Thai, she came to Canberra 13 years ago. She acknowledges some previous criminal history but is caught also by a current matter where the presumption of innocence appears to have been trashed.
Things had been good after her previous conviction but her current matter – she has pleaded not guilty to an allegation of failing to stop for police (nothing to do with vulnerable people) – is stopping her on a number of fronts.
While on bail, she cannot mentor in the disability sector, unlike South Australia, where she came from: “If the person wants you [as their mentor in SA], there’s nothing stopping you there.”
She cannot go to her son’s school for various excursions.
She cannot coach her children’s teams at basketball.
And Controlled Sports ACT has got the Government hymn sheet: she is banned from competing in Muay Thai here, whereas Combat Sports NSW has no such bar.
“They’re stopping me doing something I love.”
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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