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Legislative Assembly for the ACT: 1998 Week 3 Hansard (26 May) . . Page.. 546 ..

MR BERRY (continuing):

committed the same crime. It just does not make sense. It is not logical. It takes the notion of retribution too far. It is very popular for politicians to beat the old law-and-order drum and say, "We should lock them away and keep them there until they rot". This is a very easy, simplistic and populist theme to leap upon. But anybody who has any notion of what is fair could not support this particular Bill.

Mr Humphries: Like the judges? The judges think this should happen.

MR BERRY: Not all judges think it should. I think we have heard some discussion about that. Mr Humphries says, "Judges think it is fairer". Judges do not make the laws in this Territory.

Mr Humphries: They make the common law.

MR BERRY: They do not make the black-letter law of this Territory. It is made by the legislators. Indeed, by inviting them to take these sorts of issues into consideration, we invite them to unfairly punish people who have been convicted of a crime. The pattern is set here, and I think we would be falling down in our duty on behalf of the community if we endorsed this particular legislation. It is a backward step, and it is something that we will not be thanked for. Civil libertarians will criticise us, rightfully, for it, because it is an unfair step to take.

MS TUCKER (11.55): I seek leave to speak again on this Bill.

Leave granted.

MS TUCKER: I want to make just a couple of comments - firstly, on the process. When we were debating this Bill in the last sitting week, I was concerned to see that, in fact, there was a scrutiny of Bills report which we did not have, and a Government response too, which members had not had time to really look at. Yet the debate was expected to be concluded on that day. It is only because Labor and I sought to have an adjournment that, in fact, we have had time to have some discussion about this. As a result of that, Mr Humphries is now going to clarify the questions in the report on scrutiny of Bills. I just want to say that I hope that in the future there will be greater respect given to the importance of the comments that come from the Bills committee.

I have already spoken on why I think this is not a fair piece of legislation; that is, that one person will basically have a greater sentence because of the actions of others. The other issue here that concerns me is the politicising of the judiciary. Basically, now it is going to be up to the judiciary to make an assessment about the prevalence of a crime. That is something that, according to the Australian Law Reform Commission, well-respected people who think long and hard about issues of the law are very concerned about. They do not like that principle of prevalence in sentencing. I have been very concerned to see the way it has been picked up.

Mr Berry said that many people in the community share that concern, and there was laughter from the Liberal side of the house. I believe that Mr Berry is quite right. There is very grave concern in the community about this law. I think we will regret it.

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