Monday, September 24, 2012

Stay Directly In Gaol

Sometimes standing up for an individual's rights can put you in a difficult position.

As many of you would know, my day job is a criminal defence lawyer. Some of my clients have been accused of pretty awful criminal offences. Others who I have represented on sentence have admitted committing awful offences.

That's ok. I'm proud to stand up for someone and make sure they receive the just penalty, rather than the penalty that an ill-informed public baying for blood might deem appropriate.

Having said that, I'm sensitive to society's views on criminal punishment. By way of example - at present the maximum penalty for a person who sexually assaults a person under the age of 16 is 20 years imprisonment.

At present, there are a select group of offences that are deemed worthy of imprisonment for life (including, for example, murder and some examples of gang-rape.

If someone wanted to make the argument that sexual abuse of a child should be added to that list, then that is a discussion we should have. I'm not backing any such change - but it's a reasonable argument for someone to make.

What I will almost always oppose are changes that remove a court's discretion. I wrote earlier this year about the new law mandating life-imprisonment for murder of a police officer earlier this year.

But if there is a particular maximum penalty that needs to be increased, then so be it.

This is why I was so interested to watch this documentary from the always excellent Louis Theroux:
Screenshot from here
The doco is fascinating, and thoroughly worth a viewing. In short, Theroux spends a few days in a mental hospital in the US that was built for paedophiles who are still deemed to be too great a risk for a release, but who had finished their court-imposed sentence.

The offenders were kept in good conditions (at least when compared to a prison). They had all sorts of luxuries and benefits that are not afforded to regular prisoners.

And so it should be. These men had all completed the sentence that was imposed by the court, and there was no longer any basis for "punishing" them. They had rec-rooms, DVD players, sports competitions - they just weren't allowed to leave and re-enter the community.

The problem was that an idea that is perhaps good in theory was perhaps always destined to fail - the "inmates" were almost never approved for release. Even those that completed all the necessary rehabilitative programs found that accommodation difficulties, judicial review or plain bureaucratic SNAFU's meant that they tended to remain there indefinitely - even once approved for release.

But in theory, I think the idea has merit. A person who had completed his or her sentence should not be punished further - but surely there is merit in keeping those people separate from potential victims.

The problem in NSW is that there is not even an attempt to ensure that punishment is not any part of the preventative detention.
Full Act available here
This act, in short, allows the state to apply to the Supreme Court of NSW to keep a person in custody after the completion of his or her sentence if the person is service a sentence for a "serious sex offence".

This isn't simply keeping the person away from potential victims - a person who is subject to such an order is kept in gaol, as if their sentence was not yet finished.

It is abhorrent, but no one really seems that fussed. They're just sex-offenders, after all.

Today Greg Smith announced that the scope of the act was to be widened:
If it was simply a matter of preventing these offenders from re-integrating into the community, and if they were housed and cared for in such a way that made that clear, then I would have some sympathy for the position.

But that is clearly not the case. These people will simply be kept in gaol as if they were still serving their sentences.

And that's the problem. An idea that would be a necessary evil if carefully thought through and sufficiently funded becomes an arbitrary, capricious law that unnecessarily and grossly breaches human rights.

Why? A few cheap headlines in the Terrorgraph.

Worth it?

Sunday, September 23, 2012

A PaRole for the Court

The decision to release an offender on parole is always a difficult one.

This is particularly so with serious offences, and doubly so with high-profile ones. The media is often intensely interested, not least of all because it allows them to dredge up scandals in the past.

It's all to easy for the media to get a quote from the victim of victim's family, something inflammatory from some victim's group, rewrite a retrospective article, and there's five o'clock.

The release of Victor Chang's killer was always going to upset a lot of people.

For those of you who are too young (or, like me, too foreign) to know much about the events, this from Wikipedia:
At a public hearing earlier this week, the Parole Board ordered that Liew be released.

In deciding to release a person on parole, the Parole Board is bound by section 135 of the Crimes (Administration of Sentences) Act 1999:
Obviously it's a complicated matter.

In any event, the Parole board ordered that Liew should be released. He had been sentenced to a maximum of 26 years in gaol and had completed his 20 year non-parole period (ie minimum term he has to serve before he can be considered for parole) in July 2011.

Naturally enough, Greg Smith has indicated that the state was going to appeal:
From the SMH
Now, Regular Readers will know I'm usually keen to rant and rave about government's making decisions purely on populist grounds. And this is what Smith is doing - the above article doesn't actually provide any information from Smith explaining why parole is a bad idea or why the Parole Board was wrong.

But, in this case, I'm happy for Smith to take it to the Supreme Court. Obviously I'm not thrilled on the State's resources been wasted if it is in fact a wasted application - but I'm happy to see the state approach these things in a proper fashion.

It's quite different from those times where we frantically legislate to appease the Daily Terrograph. Of course, that is the motivation here, no doubt - but there's nothing wrong with going to the court and asking for a review. It's quite different to just changing the rules to the community's detriment.

What remains to be seen is whether a curmudgeonly Supreme Court judge raps the State over the knuckles for wasting the court's time, or whether there is in fact a valid basis for complaint.

Not that Smith is likely to care either way.

Tuesday, September 18, 2012

An Opportunity to Improve?

Well, we were waiting to see what the suggested amendment was going to be, and now we know. Except, I'm not certain what to think.

I wrote about the proposed changes to the right to silence a little while ago, and I won't repeat the reasons that I think it is an awful idea.

One thing I mentioned last time was that it would be interesting to see the way the actual law was drafted.

This is what part of the new section 89A of the Evidence Act looks like:
That's interesting, for a number of reasons.

The big problem with the changes is that they are going to pressure lots of people, particularly innocent people, into giving an interview when it would be hugely contrary to their interests to do so.

When similar changes were introduced in the UK, a 24 hour legal aid service was provided so that anyone arrested would be able to get in person advice before deciding to give an interview.
And extract from a UK government website
The English courts have held, as I understand it, that if a person could not get legal advice before the interview then the "old rules" applied.

Naturally enough, the efficacy of the changes for the UK was used to justify the changes in NSW, even though there was no intention of providing funding to Legal Aid so a similar service could be provided.

My experience is that if a person is arrested and says they want to speak to a lawyer, the police usually just fling a yellow pages at them and give them a cordless phone.

Since a lawyer is unlikely to come down to a police station unless the person is able to pay for their attendance, it's extremely rare for a person to actually get legal advice before they get interviewed.

The new section says that the new rule will only apply once they have been given the "opportunity" to obtain legal advice.

It will be fascinating to see the way the courts interpret the word "opportunity".

Technically, every arrested person is already afforded the "opportunity" to seek legal advice. If they say they want to speak to their lawyer, or any lawyer, the police will give them that cordless phone.

But I fancy the drafters had something a little more substantial in mind. But what?

The good thing about the drafting is that it means that the issue will be left up to the courts to interpret with very little precedent to be guided by, other than the UK system.

Given the way in which this section flies in the face of centuries of legal protection for the rights of the individual, it is my hope that the court reads "opportunity" very narrowly, perhaps limited to an in-person conference with a solicitor who has been given the chance to obtain a detailed account from you.

Of course, there are still a number of significant problems with that system. People will be giving interviews before the police have had to provide a brief of evidence, before it is clear what charges will be preferred, and before it is clear whether police have any prospect of proving the charges without you opening your fat mouth.

But it's something at least.

The full proposed amendment can be found here along with an invitation to make a submission. If you are so inclined, you have my permission to plagiarize as much of my writing as you like.

Wednesday, September 12, 2012

Teach Our Children Thrift

Yesterday must have been a pretty tough day to be a Coalition supporter.

The reasons given for the dramatic cuts being made to the education budget are sound. True it is that state revenues are falling, and that cuts are going to have to be made.

And I don't think anyone could argue that the wage bill for the public service is exploding, and, if not reigned in, risks a legacy of endemic deficits.

But why it is that education needs to bear the brunt of the cuts remains unclear.

I've written previously about other places the budget could do with a trim - but powerful groups need to be kept happy. Days like yesterday are the price you pay for looking after power rather than need.

Unlike the cuts being made in Queensland, O'Farrell's cuts usually do not seem petty or vindictive - they are probably better described as universal.

Unsurprisingly, the condemnation to the education cuts has been uniform.

I don't think anyone was fooled by the Coalition pulling the all too common trick of leaking a draconian plan and then quickly "responding to community concerns". They did earn some headlines like the below, but no one is really fooled:
When it comes down to it, the Coalition does have to make cuts somewhere. Revenues are not showing signs of going back up, and expenses do need to be controlled.

But the choice to cut education funding (as opposed to freezing or indexing it, both reasonable enough options) smacks of something a little more sinister.

What remains to be seen whether we will have another last-minute backdown.

Wednesday, September 5, 2012

A Driving Ambition?

The criticism of O'Farrell's draft 20-year Master Plan has been almost universal.

It's surprising, and a little unfair, but not unexpected.

The people at the Terrorgraph have continued their campaign to paint O'Farrell as being a dithering planner rather than the bold doer they would rather write about.
Full editorial here
That criticism is not without basis. O'Farrell has showed himself to be quick to plan and slow to do.

Other papers have focused on the lack of confirmed funding for plans. Whilst the projects highlighted in the plan are categorised as being short, medium or long-term, there is no specific information as to how the projects will be paid for.

Precisely how the state of the budget in 2020 is meant to be predicted accurately enough to say that a project will be paid for in a certain way is beyond me.

That said, the plan is still only a draft - we won't get the final version until later this year. Plus, it's a PLAN - not a budget.

O'Farrell does deserve credit for planning in this way. An oft-repeated and richly deserved criticism of Labor's history of transport planning is that it was all "back-of-the-envelope" stuff - plans announced and then dropped before you knew it.

If ever an area of public policy required forward planning, it is transport. It is appropriate and commendable that these steps are being taken.

The problem for O'Farrell is that the public is restless for more action.
Full story on the Herald Sun site
That's not all O'Farrell's fault - he is being forced to carry the can for the failings of his predecessors. People are all out of patience.

He's snookered in because he came to power talking big about infrastructure and transport - but his budget just doesn't have the space.

These projects are going to be hugely, massively expensive - and he is committed to starting the North-West Rail link soon. This all in the face of a shrinking tax base and the exploding cost of the public service.

When the retrospectives are being written, no one is going to remember whether announced funding at this time, or the number of plans released.

What will be remembered is whether O'Farrell, like the Labor Premiers before him, announced then shelved plans, never once showing the citizen an ounce of respect.

Did he deliver on his promises? That's the question that matters.

PS Memo to John Robertson: No, you can't criticise yet. Give it a decade.