Pillar of ACT judiciary proves our exceptionalism

Jul 7, 2023
Pillar of ACT judiciary proves our exceptionalism

The ACT’s judiciary will henceforth be lacking a meticulous pillar of consistency, but the resignation of Magistrate Beth Campbell allows also pause for reflection on the exceptional criminal courts the Territory has grown across Campbell’s quarter-century on the bench and indeed across the 34 years since self-government.

The ACT was always different, having no intermediate District (NSW) nor County (Vic) Courts but instead having indicted defendants go straight from the Magistrates Court to the Supreme Court.

But it has been, and continues to be, different in other, more palpable ways. The big swinging so-and-sos of the Sydney bar may scoff, but the ACT has now grown its own, highly citable, case law.

It has a real care for the liberty of the citizen and a demonstrated belief in the great maxim that the community’s best protection from re-offending is the thorough rehabilitation of the offender.

As well as noting plenty of home-grown ACT legislation, Campbell cites Justices Richard Refshauge and Hilary Penfold of the Supreme Court for carving a body of ACT case law. Justice David Mossop, who has written the definitive work on the ACT Constitution, received praise from Campbell, too, for continuing the work started by Refshauge and Penfold when the respective former Director of Public Prosecutions and First Parliamentary Counsel were simultaneously elevated to the Bench in 2008.

“We are our own jurisdiction,” Campbell says. “We now have an Act on every possible topic rather than adopting what was in NSW, which was the case originally …“You therefore need your own body of judicial law…Dare I say it, maybe before Richard’s advent really, there was no real resident legal historian or philosopher committed to creating a body of local jurisprudence.”

Campbell has kept “filing cabinets full” of Refshauge decisions, because his lengthy decisions commanded magistrates to give reasons even for simple drink-driving matters. He also insisted on defendants standing and audibly entering pleas of guilty (closing the loop for those who later sought to backtrack by blaming advice) and when granting non-conviction orders, those precious “Section 17s” (from our current stand-alone sentencing Act, the old 556A of the inherited century-old Crimes Act).

“It pulled us all up,” said Campbell, who had been on the Bench a decade before Refshauge was appointed a judge. “I think he introduced a real jurisprudence … we introduced our own tests …. It made me question my approach to every matter, particularly sentencing.”

One big area of ACT difference is bail, where Refshauge has written lengthy reasons, to the point of enraging at least some of the leadership of the local Bar Association, who made a formal complaint in 2012 about the time they were waiting for civil judgments while His Honour was dealing with the liberty of citizens, particular and general.

Those judgments have become law, exercised now by our dozen magistrates more and more, particularly after a legislative change made more applications mandatory in the lower court before a defendant could leap to the Supreme Court.

Justice Refshauge, after a dozen years on the Bench, returned as an Acting Justice, so far for three years, the shaping hand around the Territory’s innovative Drug and Alcohol Sentencing List.

DASL, as it’s known, keeps some serious offenders with serious drug or alcohol issues out of prison.

It is a vital part of the sentencing suite, a suite which remains wider than NSW, but still not wide enough. We have retained suspended jail sentences, where NSW has not, but have done away with both weekend and home detention, for lack of resources.

Campbell says there are not enough resources for the sentencing options that remain to be fully utilised.

Those sentenced to supervision in the community were too often back before court, not wholly by their own fault.

“A number of people had done perhaps not as much as they could have, they’d missed a few appointments, but then they would attend Corrective Services for another one and be told, ‘There’s no-one here to see you’ …” Campbell says. “I can remember seeing parents sitting anxiously in court and me giving the lecture to their young adult (usually) son … and then saying ‘I’ll put you on a Good Behaviour Order with all these conditions, attend drug and alcohol counselling etc’ … and then having to look at the parents and say, “This may not work because nothing might happen. You are better off going and finding your own help because the system doesn’t have it’ …

“If they [the Government] are serious, they must spend big money on counselling and support and big money on the jail. Otherwise, people can say all the right things, courts can make the Orders but they’re meaningless. Rehabilitation of an offender into a law-abiding member of the community is never going to work because we’re not following up.”

She understood it might not appear “sexy” to the electorate but it was that same electorate who would be protected from its feared re-offenders if it supported the needed rehabilitation.

The ACT Bench, even more than others, has been repeatedly broadly attacked for being too lenient, something that troubles Campbell, who thinks the public needs to know more about the process. But she also thought that, while defenders put plenty of focus on their clients, the Prosecution might yet do more on behalf of victims.

“The mantra I would apply every time I had to sentence someone was my oath of office,” Campbell says. “I had to apply the law. It was not a personal whim or fiat of Beth Campbell. Sometimes I had to perhaps be more stern than I was being asked to be … Occasionally, there’s that extra special exercise of leniency, or mercy …But, again, I remind myself I’m here on behalf of the community, and I think sometimes we [judicial officers] forget that … It’s not about me.”

Judicial officers, Campbell opined, sometimes forgot that, with one colleague mentioning on one occasion that they followed “a gut feeling”.

“I thought that’s the worst thing you could possibly do in this job. No!” Campbell said. “I thought my gut was a particularly poor indicator.”

Pressure from public and press had to be resisted, Campbell citing the recent matter of one Nick Kyrgios, where there was an international groundswell that the tennis star should get a solid sentence in a domestic-violence matter. But Campbell, looking at it all closely, including the absence of any criminal history, the low objective seriousness of his conduct and impressive subjectives, including mental-health materials, imposed no conviction as she says she would have for any other young man in similar circumstances.

That’s impressive self-discipline. Attorney-General Shane Rattenbury, in his speech at Campbell’s ceremonial sitting, noted Her Honour’s “exacting standards” while also describing himself as “not your best student” when at ANU under Campbell’s carriage of the graduate diploma or “legal workshop” some years ago.

The attorney didn’t go on to mention that, upon becoming his party’s legal-affairs spokesman many years ago, he took up his erstwhile teacher’s offer to be walked through the practical aspects of Canberra’s criminal-justice system. We can be sure our future first-law officer was treated with the “fine combination of warmth and firmness” that he spoke of at the ceremonial sitting. And the Canberra community will continue to be better served because of it.

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