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Legislative Assembly for the ACT: 2000 Week 2 Hansard (1 March) . . Page.. 470 ..

MR MOORE (continuing):

Before I go on to explain my view on this issue, Mr Stefaniak asked me to present something so that he would not have to seek leave to speak again in this debate. I will present it for him and then explain why I think it is wrong. He said that he believes the vast majority of victims of crimes are not well off. Some people have put the view that it is the poor who are affected by mandatory sentencing, but Mr Stefaniak argues that the victims of crime are also often poor. I do not think Mr Stefaniak has any evidence to back up that statement. It would be an interesting study to determine where the victims of crime come from. My gut reaction is that there would be a very large number of victims of crime who are poor, particularly when it comes to crimes of violence.

I agree with the government submission that the use of international treaty powers is not a sensible way to help address this issue. Treaties cover only some issues and, although it might be nice in the short term to use those international treaty powers to overrule the Northern Territory and Western Australian laws, the result would be a patchwork of policy. I think the general principle against mandatory sentencing ought not be achieved by this route. One of the biggest problems we had with the Andrews legislation which overrode the Territory's euthanasia legislation was that it is an ad hoc approach. One thing I believe we should be avoiding is an ad hoc approach.

Since the issues in this submission have been raised, I have had a deal of time to think about this issue and the associated problems. I have reached the conclusion that there is a case for amending the self-government Acts of both the Australian Capital Territory and the Northern Territory - and hopefully one day the state and Commonwealth constitutions. This particular case highlights a problem we have with the state and territory constitutions, which are also known as self-government Acts.

The separation of powers that we maintain between the Executive and the courts is a vital element in our system of democracy. When that breaks down, we see a fundamental interference with civil liberties. The imprisonment of our citizens is such an important matter that it should occur only in a justice system where the independence of the courts is guaranteed. Most of us would consider that to be a fundamental principle in the issues that we are dealing with.

I have argued many times in this Assembly that the responsibility for delivering justice in individual cases must lie with the courts. For the legislature of the executive government to force sentences of imprisonment in individual trials has great potential for injustice. I think that is the fifth point in Ms Tucker's motion. I agree with the points she makes in her motion; it is the general thrust of the motion itself which I am unhappy with.

To protect the balance of powers, legislatures should not have the legislative power to direct courts to impose mandatory or minimum sentences of imprisonment. This is the fundamental difficulty. Legislatures are stepping beyond their fundamental rights, as understood by anybody who has looked at the separation of powers. We ought to ask the Federal Government to amend the Australian Capital Territory (Self-Government) Act 1988 to guarantee judicial independence against courts being forced to impose mandatory or minimum sentences of imprisonment. There should be a section in the Australian Capital Territory (Self-Government) Act which deals with the judiciary. Off the top of my head, I think it is subsections 48(a) to (d).

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