Sunset on Criminal Procedure Bill a win for the community

Hansard: 13 March 2008 ASSEMBLY

Mr CLARK (Box Hill) — These amendments of the Legislative Council are a win for the community. They will protect Victorians against the risk of the Brumby government using lower sentences as a backdoor way of reducing court waiting lists.

Members will recall that when the bill was debated in this house the opposition parties took the position that we would not oppose it in the Assembly but that the position we adopted in the Council would be very much determined by the future course of events and in particular by what response we received from the government and the Attorney-General both in the course of the parliamentary debate and in their response to the Scrutiny of Acts and Regulations Committee report on the many concerns we raised during the debate in the Assembly.

The process of getting those responses from the government has been like the process of drawing teeth, but eventually various pieces of information, various assurances and ultimately various amendments were extracted.

It is pleasing that the Attorney-General is supporting those amendments despite the fact that, as I understand it, his parliamentary secretary in the Legislative Council, Mr Tee, stated that the government was only accepting or going ahead with the amendments because of the insistence on them by the Liberal Party, The Nationals and the other non-government parties.

The indicative sentence provisions of the bill are intended to give offenders who might be considering pleading guilty to an offence the opportunity to apply to the court to find out in advance the sort of sentence they would receive if they did plead guilty. Those laws have the potential to help victims and the community by avoiding the trauma and cost of protracted trials, but they also run the risk that the courts will feel under pressure to offer more lenient sentences in order to help overcome the huge court backlogs that have built up under the Bracks and Brumby governments.

By way of example, the Productivity Commission’s report on government services 2008 that was released recently shows that Victoria’s courts have some of the biggest criminal case backlogs in Australia, with 1094 appeal cases on the County Court waiting list as at June last year, up from 510 cases in 2003; and 2467 non-appeal cases, up from 1722; and there is a similar position in the Supreme Court. These were the concerns that we had when the bill arrived in the other place.

After the Liberal Party and The Nationals gave the government copies of our proposed amendments that would apply a two-year sunset clause to the indicative sentence provisions and some other provisions of the bill, the government introduced its own amendments, which have been adopted by the Council and which are now the amendments before us. As a result of those amendments, the indicative sentence laws for the Supreme and County courts will operate as a genuine pilot scheme that expires on 30 June 2010. Further legislation will need to be passed if the government wants to extend the laws beyond that date.

When the bill was debated in this place we raised a range of concerns, particularly in regard to discrepancies between what the government was informing the house of and what appeared to us to be the situation.

In that respect the making by the Legislative Council of these amendments is a victory for decency, for true openness and accountability and for expecting honest and full explanations to this house by the government of what its legislation consists of.

When the Attorney-General introduced this bill originally he made a number of statements to this house that, on closer examination, did not seem to be correct. He told the house that the Sentencing Advisory Council had recommended that the process of indicative sentences be extended so it is available to the County Court and the Supreme Court, but that council made clear that it recommended against the introduction of such a scheme in the Supreme Court. The bill before the house extended coverage of the scheme to sexual offences, which was contrary to the express statement by the Sentencing Advisory Council, which cautioned against the inclusion of sexual offence proceedings in a pilot sentence indication scheme.

The Sentencing Advisory Council recommended a pilot scheme. The bill brought before the house provided not for a pilot scheme but for an ongoing scheme. The Sentencing Advisory Council stressed the need to be satisfied that the position of victims was adequately protected. Those assurances were not given in this place.

On top of that, the Scrutiny of Acts and Regulations Committee raised a wide number of concerns about the legislation. The Legislative Council referred the issue to its Legislation Committee, and I commend the work of Legislative Council members Mr Gordon Rich-Phillips and Mr Edward O’Donohue, together with Ms Sue Pennicuik, in extracting further information and assurances from the Attorney-General’s parliamentary secretary in the other place, Mr Tee, and in particular for extracting assurances that the prosecution would always consult with the victims before agreeing to an application by an offender to be entitled to apply to the court for a sentence indication.

Most recently the legislation returned to debate in the full chamber of the other place. The Liberals and The Nationals took the view that the best way forward was to introduce a sunset clause that applied to all aspects of the legislation that related to indicative sentences, as well as the provisions relating to sentence discounts. That seemed to us to be the cleanest, simplest and most straightforward way forward and one that would then allow a review of all aspects of these two innovations.

The government amendments did not go as far as we proposed. I would say in terms of substance, effect and benefit achieved, they probably went about 80 per cent of the way. As I indicated, the government was forthcoming with its amendments only after it became aware of our amendments and the likely response of the other non-government parties to them. The government amendments simply provide sunsets for the indicative sentence provisions as they apply in the Supreme and County courts.

Nonetheless these amendments carried by the Legislative Council achieve a great deal, and in particular and most importantly they achieve what I said at the outset: we will now be in a position to see whether these laws will in fact work as well as we all hope in order to avoid unnecessary trials, which cause trauma to victims and cost to the community. But very importantly, at the same time these sunset provisions will protect Victorians against the risk that the Brumby government will use and rely on these provisions to encourage the courts to give indications of lower sentences as a backdoor way of reducing the very substantial court waiting lists that have built up under the Bracks and Brumby governments.