High Court decision on sentencing overturned in the ACT

Labor MLA Dr Marisa Paterson’s Bill to reinstate sentencing submissions for the prosecution has passed the Legislative Assembly. Both parties to criminal proceedings will now be able to provide advice to the judge on sentencing.

The Crimes (Sentencing) Amendment Bill 2024 overrides the High Court decision Barbaro v the Queen [2014] which limited the ability of the prosecution to make submissions regarding the appropriate sentencing range. Queensland is the only jurisdiction in Australia to override this ruling, with the ACT set to be the second.

“There has been a lot of public debate around sentencing in the ACT over the last couple of years,” Dr Paterson said. “Today is a good step forward in overturning the High Court decision that has only allowed defence council to provide advice to the judge on sentencing for the last decade. From today onwards, I hope that we will see more robust sentencing practices in the ACT, increased transparency, and a reduction in appeals.”

‘Sentencing submissions’ were a recommendation of the 2021 Sexual Assault Prevention and Response Reform Program Steering Committee report in respect to sexual assault cases. The law reform committee suggested that limiting such submissions could unnecessarily increase appeals based on either inadequate or excessive sentences. The report stated that ‘protracted appeals may continue to traumatise victim survivors and do not provide closure’. Data from the 2021/22 DPP Annual Report also points to an increase in appeals.

Last year, Dr Paterson released a discussion paper on sentencing submissions and invited responses from stakeholders. ACTCOSS, the Victims of Crime Commissioner, the DPP, AFPA, Safer Roads ACT, Women’s Legal Service, DVCS, the Justice Reform Initiative, and ACT Policing all voiced support for the amendment.

Canberra Liberals: Reducing knife-related violence

A Canberra Liberals motion to consider giving ACT Police the power to search people for knives using metal detection wands passed the Legislative Assembly. The bill would be similar to Queensland’s ‘Jack’s Law’, which granted police powers to use metal detection wands on people without reasonable suspicion in designated areas. 

Shadow Attorney-General Peter Cain moved the motion, supported by shadow police minister James Milligan.

Mr Cain said the existing scheme to frisk and search for weapons on people was informed by outdated legislation, exposing police to risk of sustaining a needle stick or similar injuries. Ordinary frisk searches are more intrusive and less human rights compliant than the proposed reforms.

Mr Milligan said the reforms must be considered due to the fatal Civic nightclub stabbing in 2020 and the ANU stabbing incident in 2023.

New South Wales has also committed to introducing ‘Jack’s Law’ reforms following the Bondi Junction and Wakeley Church stabbings. He suggests the new laws could be deployed in designated areas at high risk of violence, such as nightclubs, public transport hubs, and shopping centres.

The Australian Federal Police Association supported introducing the use of authorised detection wands in the ACT.

ACT strengthens oversight of places of detention

To safeguard the rights of people in detention and ensure greater oversight of places of detention, the ACT Government has introduced the Monitoring of Places of Detention Legislation Amendment Bill 2024.

The legislation follows Australia’s ratification of the Optional Protocol to the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT), which requires each state to nominate a body to fulfil the role of a National Preventive Mechanism (NPM).

The Bill provides for the establishment, functions, powers, privileges and immunities of the ACT NPM.

In January 2022, Attorney-General Shane Rattenbury designated the Human Rights Commission, the ACT Ombudsman and the Office of the Inspector of Correctional Services as the ACT NPM. These bodies will continue to work together to fulfill the functions of the NPM.

The NPM will visit custodial facilities in the ACT and other places of detention, interview people in detention and any other relevant people, inspect documents at places of detention and request documents and other information, and refer matters to investigative entities. The NPM will be able to report on its visits, and where relevant, provide advice and recommendations to Government with the view to strengthening human rights protections for people in detention and preventing torture and ill-treatment.

Mr Rattenbury said the Bill marks an important milestone in the ACT’s journey to implementing the requirements of OPCAT, and complements the ACT’s human rights framework.

The new legislation updates the Inspector of Correctional Services Act 2017.  The title ‘Inspector of Correctional Services’ will change to ‘Custodial Inspector’ to reflect that the role oversees both youth and adult detention. Various processes have been improved, and safeguards against reprisals have been strengthened for those who share information with the Custodial Inspector.

Voluntary assisted dying

In-principle debate began on the Voluntary Assisted Dying Bill – the first time that all members of the ACT Legislative Assembly had the opportunity to put forward their views on the record about the legislation.

Since the ban on the ACT debating euthanasia was lifted in 2022, Tara Cheyne, ACT Minister for Human Rights, stated that the government had released a discussion paper; consulted the community and stakeholder groups; produced a listening report; and presented Australia’s most progressive Voluntary Assisted Dying Bill.

If the issue of voluntary assisted dying raises issues for you or your family, you can contact Lifeline on 13 11 14 or Griefline on 1300 845 745.