The terms of reference for the ACT Law Reform and Sentence Advisory Council are Rolls Royce, but the resources – three public servants – are Mini Minor. While the council is well constructed and will certainly be well led, it needs more horsepower.
The establishment of the ACT Law Reform and Sentence Advisory Council is welcome. Indeed, it’s overdue.
The appointment of former Magistrate Lisbeth Campbell as its chair is impeccable.
Its membership, at 13, is perhaps a little unwieldly, but critically it includes both the Acting Director of Public Prosecutions, Anthony Williamson, SC, and the chief executive of Legal Aid ACT, Dr John Boersig.
Its terms of reference are laudably broad and its independence at least ostensibly assured, particularly including the ability to suggest proposals for investigation and not merely swallow those that come from the Attorney-General, Shane Rattenbury.
It is to provide “high-level independent advice” in relation to law reform and to assist the Attorney to make decisions relating to sentencing issues, including “by the council’s own motion following consultation with the Attorney-General”.
So, is that, you can have your head, but only if I say so?
The expectation that this Attorney will listen to his council and his chair is high. His praise of Ms Campbell at the ceremonial sitting to mark her departure from the Bench was of the first order.
But how the council can possibly fulfil the lofty aims of its six pages of terms or reference with the resources I understand it has been provided – three middle-ranking public servants – is beyond me.
The 13 on the council, including the chair, are of course part-timers, but you can bet London-to-a-brick-on that Ms Campbell will expect plenty from them and task individuals with specific jobs, and expect them done in a thorough and timely fashion. This will be no board where some members might be tempted to turn up with a view or two and nothing else.
While councillors will do what they can, the work required dwarfs the resources initially committed.
In delivering law reform, the council is 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.”
With three workers? Attorney, you would have seen (or, better, felt the weight of) an Australian Law Reform Commission report?
Your terms of reference are Rolls Royce (seemingly aiming at something like a mini-ALRC) but the resources, at least so far, are Mini Minor.
Perhaps that is because the council seems to have sprung not from a blue-sky approach to making the law better, and sentencing better understood, but as a reaction to two particular areas: dangerous-driving sentences and the granting of bail.
Both need consideration, but so do many more aspects of the law, particularly Term of Reference 8 (d): “Engage and educate the community on sentencing issues.”
The council will feel a real push to do something to increase penalties for dangerous driving. This will continue to come from the families of victims, joined by those of a good, old “law-and-order” persuasion in the Assembly (thankfully fewer here than in some state legislatures).
But where does dangerous driving start and end? Reckless and menacing driving would be captured, but should negligent driving be in, too? Perhaps. But what about driving suspended, a fine-only offence?
The Road Transport (Safety and Traffic Management) Act has been amended in recent years to increase penalties already, specifying ascending penalties for various points of aggravation (Was a police pursuit necessary? Did the driver have drugs or alcohol in his or her system? Was excessive speed a factor?)
I’d wager that none of the defendants on these charges could have told you what the particular penalty for their offence was. The deterrent, in my experience, is not the size of the penalty, but the potential for being caught. More police on the roads, not more numbers in the statute book.
Bail, too, is an area where there will be – especially in an election year – a big push to tighten provisions. Indeed, it has already happened in relation to the presumption of bail for (guess what?) dangerous driving.
Bail law has changed forward and back over the years, here and in NSW, as jurisdictions wrestle with whether they have presumptions for or against bail for certain offences, or categories of offences (alleged repeat offenders, family-violence matters etc).
Revamping bail law in line with the lofty aims of the terms of reference would be a project for dozens of specialists over a number of years – a worthy one, but one not in prospect on the budget as it stands.
Educating on sentencing issues is tough. Many people come with pre-conceived notions, something Ms Campbell was quick to disavow herself of at her initial press conference. I often refer people to a Tasmanian study of some years back in which people were asked their initial view of recent reported sentences, the great majority saying they were too light. They were then taken through the whole sentencing process in court in a number of matters and asked their view as they emerged. About right, they said.
That’s not to suggest that the system needs no change. It does, and the ACT has a perfect chance to get it right.
While this council is well constructed and will certainly be well led, it needs more horsepower.
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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