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Legislative Assembly for the ACT: 1999 Week 13 Hansard (7 December) . . Page.. 3875 ..

MS TUCKER (continuing):

on behalf of the judiciary. But I am afraid that the confidence they have in themselves is not shared by many in the community. It is certainly not a trend we want to see supported in parliaments around Australia.

MR STANHOPE (Leader of the Opposition) (4.51): Mr Deputy Speaker, I rise to reiterate points made in the debate in relation to this amendment. It applies to some of the amendments that have been foreshadowed in relation to other parts of Division 4. The arguments have been put, but I think it important that we declare the importance of the principle we are debating, about mandatory sentencing. I take the point made by my colleague Mr Hargreaves that this is an inappropriate piece of legislation for us as a parliament to be debating. Mandatory sentencing is a very difficult and complex issue. Mandatory sentencing as a philosophy of punishment and the operation of our justice system are subjects of a most significant debate by any parliament. I regret that, in relation to legislation on road transport, we should be embroiled in a debate about the appropriateness of introducing the concept of mandatory sentencing - something that does not exist.

This is a major departure from the way we, as a community, have dealt with the role and responsibility of the judiciary and the philosophy underlining the criminal justice system. This is an undesirable precedent for us to be setting. I take the point Mr Hargreaves made that it is disappointing - extremely disappointing - that the issue is being discussed in the context of a national scheme for regulating road transport. Debate is being sidetracked by the need for us to digress and stand up and declare a position on the appropriateness or otherwise of mandatory sentencing.

This is the wrong place to introduce this debate into this parliament. It is important that we stand here and declare that, as a matter of principle and philosophy, we will not embrace or introduce into the ACT criminal justice system notions of mandatory sentencing; that we will not entrust to our appointed judicial officers, to our judges and to our magistrates, the right and the discretion to determine on the basis of the facts of individual cases what the appropriate penalty is. It has always been one of the most important aspects of the power of the judiciary that we appoint to those important positions. We entrust in our magistrates, in our judges, in our justice system the power to determine an appropriate penalty on the basis of the facts of individual cases and the facts of the individual circumstances of people that come before the court.

The facts of no two cases are ever the same. We could take any instance of any particular crime. We are talking here about things such as culpable driving. We are talking about drunk driving. We are talking about most serious crimes. But we all know that the circumstances in relation to every offence and to every person who comes before the courts are so dramatically and remarkably different that we cannot afford to simply assume that their circumstances are all the same or that the community interest, the public interest or the interest of individuals is best served by treating them as a job lot. The courts will say, "Right, you committed this particular offence, this is the penalty you as an individual will suffer", without any regard for any of the potentially extenuating circumstances; without any regard for the impact or the implications for other people within the community dependent for their very survival in some instances

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