Breach Bail , Go to Jail Bill
Dear Secretary,
Herewith a submission from the Qld Council for Civil Liberties in respect of this Bill.
Consultation
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The Explanatory Notes to the Bill record under the heading “ Consultation” that “ the development of the reforms set out in the Bill have been informed by consultation.” ( See Explanatory Notes p9).
It is submitted that the Explanatory Notes do not provide the Parliament or your Committee with meaningful information about the extent of consultation before the Bill was introduced.
S23(1)(g) of the Legislative Standards Act 1992 require “ the Explanatory Notes to contain a brief statement of the extent to which consultation was carried out in relation to the Bill.”
The Legislative Standards Act was introduced in Qld as one of the major post Fitzgerald reforms as reflected in the following extract from the landmark Report:
“ Laws and policies often address highly complex matters.Formulating them requires expertise. No Government will have all the ideas, expertise and insight on any particular topic. As well, Governments are not the only bodies which have these attributes.Whatever the expertise required, the solution to any problem is something about which people can and do reasonably differ. The best result will be produced by rational debate by those with opposing views. The community is entitled to such a result. This is particularly so when the problem to be tackled affects the whole community or significant parts of it as is the case with …… law enforcement. The community is entitled to be fully and properly informed about what laws and policies are needed, their objective, cost, purpose and effectiveness. The community must also be told the consequences of applying the laws. On such fundamental matters, whatever the expertise or inspiration of those in Government, they have a responsibility to invite and consider the counsel of those with differing views.”( see Fitzgerald Report p123).
This Bill and its development seriously fails this Fitzgerald injunction which was a significant part of the genesis for the Legislative Standards Act passed three years after the July 1989 publication of the Report.
This Council wrote to the Minister for Youth Justice on 17/4/26 referring to a Courier Mail report of 16/4/26 which contained comments from the Minister and the Premier relating to foreshadowed bail law changes possibly involving new mandatory sentencing laws. The letter requested consultation with the QCCL by the government. No reply was received to this letter and no consultation whatsoever has occurred with this Council.
Guidelines for the preparation of Explanatory Notes to Qld legislation and Bills provide that the Explanatory Notes should outline how consultation has occurred and should list the groups or persons consulted.
The single sentence appearing in the Explanatory Notes dealing with consultation does none of these things. It does not identify one organisation or persons consulted. It is to be noted however that the Premier and relevant Ministers having involvement in the Bill’s formulation have done various media appearances with victims groups who are among the major proponents of the changes outlined in the Bill.
The single sentence appearing in the Explanatory Notes as outlined in paragraph one above does not identify one organisation or persons consulted .It does not state whether the Qld Law Society, the Bar Association of Qld, Legal Aid Qld, ATSILS, the Qld Human Rights Commission , youth justice organisations or other bodies with specialist knowledge of bail and sentencing were consulted. It does not indicate whether stakeholders were shown the proposed legislative provisions before they were introduced into Parliament or if so how much time they were given to respond, what concerns they expressed or whether the Bill was altered as a result.
This is particularly significant because the Qld Cabinet Handbook ( which reflects the above extract from the Fitzgerald Report) notes that consultation is “ a fundamental and mandatory part part of the development of all cabinet submissions” and that relevant stakeholders are to be consulted and that consultation with external organisations should be a routine part of policy development.
The Courier Mail in an article headed “ LNP blind to oversight in push for new laws,” observed that “ major changes to crime , free speech and Olympic planning laws have been forced through parliament by the state government with limited community consultation… Analysis of the Crisafulli government’s 15 months in power has revealed how it has rushed through major changes to laws with finite or no feedback from experts or Queenslanders.” ( See CM 10/3/26 p8)
These observations are equally applicable to the lack of consultation in relation to the Breach of Bail legislation introduced 5 months after the CM criticism of the State Government’s lack of consultation in relation to other crime bills.
The Committee should require the Department of Justice to identify:
[1] each external organisations consulted before the Bill was introduced and the dates and form of that consultation.
[2] whether those organisations were provided with the proposed legislative provisions now in the Bill or sufficiently detailed policy proposals that underlie the Bill. If so, what substantial concerns were raised and what changes, if any, were made as a consequence.
The Premier and various Ministers have said variants of the following during the lead up to the introduction of the Bill to parliament , namely “ we have spoken with Queenslanders and victims.”
The central question the Committee needs to ask of the Department is what consultation has occurred for the purpose of testing the legislation for unintended legal consequences, judicial workability, prison impacts and youth justice effects. This is the sort of consultation contemplated by the Qld Cabinet and Legislation Handbook.( see 6.0 Consultation and Cabinet Handbook Dept of the Premier & Cabinet)..
It is submitted that “ the general political listening” referred to by the Premier and various Ministers including barbecues with victim groups who are among the main proponents in relation to this Bill does not comply with the mandatein the Qld Cabinet Handbook directive that there should be structural legislative consultation with affected stakeholders.
It is therefore submitted that the Explanatory Notes do not comply with the the Legislative Standards Act and a formal finding by this Committee is sought in that regard.
It is noted that since the Bill was introduced into Parliament the State government has launched a “ have your say “ faux “ consultation” about the Bill especially by way of extensive television advertising .It should be clearly understood that such ‘ consultation’ is a facade. It will not result in any meaningful changes to the Bill as it is occurring after Cabinet has signed off on the Bill whose policy dictats are now set in concrete and will not change as a result of after the event consultation or this Committee’s review process.
Similarly, the Parliamentary Committee deliberations does not amount to consultation. There is no prospect of meaningful changes being made to the central aspects of the Bill especially the 12 month mandatory minimum imprisonment for breach of bail. The history of Qld Parliamentary Committees shows that Departmental representatives routinely advise Committees that they cannot comment on various issues raised in submissions as they go to policy issues and policy issues are a matter for theGovernment, not the Department.
By the time this “ Breach Bail “ Bill was referred to this Committee policy issues such as mandatory minimum 12 month imprisonment for bail breaches were set in concrete. The most Committee deliberations can achieve is to chip away at the very edges of this “ policy concrete.” Meaningful or significant changes to a Bill are rarely, if ever achieved through what current government Ministers cynically refer to as the “ Committee”consultation process.’
Mandatory Sentencing
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The Explanatory Notes make the following observations in relation to the 12 month mandatory minimum sentencing provision in the Bill:
[1] A new standalone offence in the Bail Act for committing a prescribed offence for adults or a significant offence for youths……… carrying a mandatory minimum sentence of 1 year imprisonment to be wholly served in custody( p2 Explanatory Notes).
[2]. Mandatory sentencing limits judicial discretion to impose a sentence that reflects the individual circumstances of the offender and the offending……… the court will be required to impose a mandatory sentence irrespective of factors that might otherwise mitigate sentence. ( see p7 Explanatory Notes).
Observation (2) does not point out the miscarriage of justice and extreme disproportion in sentencing that has occurred in other Australian jurisdictions which have introduced mandatory minimum sentencing .Case examples are outlined below so that the Committee and Parliament can be made fully aware of the miscarriages of justice which will occur if this Bill is passed by the Qld Parliament.
There are numerous examples from the NT , WA and the federal jurisdiction highlighting how mandatory minimum sentencing particularly without an exceptional circumstances safety valve produces sentencing injustice .
The following cases are illustrations of the injustices produced by a mandatory sentencing regime where Parliament tells an individual judge what minimum sentence should be imposed irrespective of the individual circumstances of the case.
The following NT, WA examples are taken from a much larger number of cases referred to in the Australian Human Rights Commission Report Social Justice Report 2001. These cases provide powerful examples of how mandatory minimum sentencing causes serious injustice .
The Northern Territory cases relate to a regime of mandatory minimum sentences for property offences:
[1] Margaret Wyndbyne aged 24 yrs: received a can of beer worth $2.50: sentenced to 14 days jail
[2] Jamie Warramura aged 22 yrs: stealing biscuits and orange cordial worth $23: sentenced to 12 mths jail.
[3] an 18 year old: receiving $2 petrol: 28 days jail.
[4]. A person at Nhulunby: stealing 2 cartons eggs worth $8: received 14 days.
[5] Kevin Cook aged 29 yrs: stealing a beach towel worth $ 15: : 1 year jail.
[6]. Liam Edwards aged 16 yrs: stealing $20 he said he had found: jail 28 days.
[7]. Brett Willoughby aged 19 yrs: stealing a bottle of vodka worth$2: 14 days jail.
These cases do not mean stealing is acceptable. The principle to be derived from the cases is that Parliament had predetermined the minimum punishment without knowing the circumstances of the individual offender.The sentencing court could not say that while the offence was technically within the mandatory minimum property sentencing regime, imprisonment for the periods outlined in the above examples is seriously disproportionate in each case.
This is why in a mandatory sentencing regime a safety valve for special circumstances is needed. It is needed in the Breach Bail Bill.
There is also the case of Johnno Warramanba, a 15 year old aboriginal boy from Groote Eylandt in the NT who received mandatory detention after stealing stationery worth $ 50. He committed suicide while in jail.
The Australian Human Rights Commission Social Justice Report 2001 records that evidence at the Coronial Inquest shows that Warramanda had been mistakenly classified as a “ third striker” under the NT’s mandatory minimum sentence scheme for property offenders. The Commission noted that he should not have been in custody at all.
This is an important case as it demonstrates that mandatory sentencing does more than remove proportionality. It can magnify an error elsewhere in the criminal justice system. A mistake about a criminal history which under a discretionary sentencing regime might be detected can instead trigger automatic incarceration.
The West Australian three strikes burglary legislation imposed mandatory detention on repeat home burglars, including children. The 2001 Australian Human Rights Commission report concluded that this regime had resulted in people receiving sentences disproportionate to the circumstances of the offending.
The Commission reported the case of a 12 year old aboriginal boy whose third burglary involved taking a wallet containing $4. The earlier burglaries involved entering a hotel laundry and taking nothing and entering a school canteen and taking a soft drink. The mandatory sentencing regime resulted in him receiving 12 months detention.
This case matters because burglary is unquestionably a serious intrusion into another person’s s property. The argument is not that it should attract no punishment. The question is whether every possible combination of three offences falling within the statutory definition of the WA mandatory minimum sentencing scheme warrants 12 months jail for a 12 year old child.. Mandatory sentencing answers that question before the particular child’s circumstances are known.
The case of Magaming v The Queen is an instructive example from the Commonwealth legislation which required a mandatory sentence of 5yrs with a minimum 3 year non parole period for people smuggling.
Magaming was an Indonesian crew member on a people smuggling vessel . The sentencing judge described him as a simple fisherman recruited to help steer the boat. His participation was described as at the bottom end of the scale. The sentencing judge said if he could have applied ordinary sentencing principles it would have resulted in a lesser sentence than the minimum 3 years.
The people smuggling cases became so problematic that in 2012 the Cwth A-G issued a direction to the Cwth DPP to not prosecute first time low level boat crew under the mandatory minimum sentencing regime. The aggravated provision according to the direction was to be charged in respect of a role beyond ordinary crew.
The Australian Human Rights Commission pointed to the issue of prosecutorial discretion and noted that when parliament removes discretion from judges the system may be forced to recreate discretion through prosecution charging policy. That discretion is exercised less transparently behind closed doors and by the Executive rather than by an independent court sitting in public after hearing all of the relevant sentencing material.
The Human Rights Commission made the same structural criticism of the NT & WA schemes namely that once a mandatory charge reaches sentence the result is predetermined. In the result the discretion which would otherwise be exercised by a judge in a non mandatory minimum regime shifts to police and prosecutors in deciding what charge to bring. This gives Prosecutors more power than a Sentencing Judge.
Also, the failed Qld mandatory sentencing regime for drug “ traffickers” during the 1980s should not be forgotten. In a number of cases addicted drug sellers were sentenced to life imprisonment for selling drugs to feed their drug addiction. I was involved in some of theses cases. Addicts had to be given the same mandatory life sentence as high level non drug using organised crime cartels. This significant injustice had to be remedied when a new government elected in the late 80s removed the mandatory life sentence regime. The drug addict “ traffickers “ were then able to be sentenced to a finite term of imprisonment with proper regard to their individual criminality and their individual circumstances, including their drug addiction.
The examination of the NT, WA QLD and federal people smuggling cases highlight 4 dangers that are applicable to the Breach Bail Bill:
[1]. Parliament cannot anticipate every factual case. There is an enormous range of conduct capable of falling within the 12 mth mandatory minimum period.
[2]. Errors occur
[3]. Removing judicial discretion does not remove discretion. It transfers much of it to unaccountable police and prosecutors through charging decisions.
[4]. A judge may know that the statutory minimum results in a disproportionate sentence but is powerless to correct it.
The above cases and principles derived from them support an amendment to S 29AA to insert a judicial safety valve permitting departure from the one year minimum where the court is satisfied special circumstances exist and the application of the minimum sentence of 12 months would result in manifest injustice.
The High Degree of Confidence Test.
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The Explanatory Notes refer to this reverse onus test which a defendant has to establish in relation to making a bail application if charged with a prescribed offence while on bail( See Explanatory Notes p2] .
The Explanatory Notes observe that there is a similar test operating in NSW and the NT.
The NT legislation is currently subject to a High Court of Australia challenge. The question is validly posed as to why the Breach Bail Bill is not being deferred until the outcome of this High Court challenge is known.
There are multiple arguments against such a test being adopted in Qld.
First, it requires courts to make an inherently uncertain prediction where conventional bail laws already address the issue.Courts currently routinely assess the risk of further offending and determine whether conditions can adequately mitigate the risk. The high degree of confidence test is therefore unjustified.
Second, the NSW experience resulted in an increased remand rate. The NSW Bar Association in its submission to a Parliamentary Inquiry noted a 70% bail refusal rate following the introduction of this test.
As indicated elsewhere in this submission there has been no impact statement of what is expected to be very significant increases in imposts on the Qld budget which will result from these changes arising particularly from expected much higher rates of incarceration.
Under the heading “ Estimated cost for government implementation”, the following most unhelpful observation is made , namely:
“ Implementation of the Bill will have operational and financial impacts across Qld Corrective Services, the Qld Police Service , the Department of Youth Justice, Qld Courts , prosecutions and the legal assistance sector. These impacts will be addressed through normal government processes.” (See Explanatory Notes p6).
This is Yes Minister/ Sir Humphrey waffle.
The Courier Mail Tuesday 8/9/26 under the heading “A-G rejects breach fallout” reports that “ the Attorney General has refused to say what impacts new breach of bail laws will have on prisons. “
The Explanatory Notes and the Attorney-General complete failure to address the obvious considerable costs consequences of the Breach Bail Bill is pure Joh speak resurrected.
At a time when jail building and associated operational costs are accelerating hugely in Qld in both adult and juvenile jails the complete and ongoing failure to give a considered cost estimate of the Implementation of the Bill is a major failure of both the Explanatory Notes and the Attorney-General’ s handling of the Bill.
Similar criticisms to the lack of Consultation are applicable here. This Committee and later the Parliament when debating the Bill have no information whatsoever as to the budget costs of the Breach Bail Bill. If, as in NSW, the high level of confidence test on its own even without the impact of the mandatory sentencing regime being taken into account results in a 70% or similar increase in the jail remand population the budget consequences are going to be considerable and will be to the detriment of other cash starved budget priorities such as the Qld Health budget.
The Qld Human Rights Act 0verride
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The Explanatory Notes provide the following very sparse and unhelpful comments about this override, namely:
“ As a result of these strong reforms to bail laws it is also necessary to extend the existing framework of human rights overrides exemptions which currently apply under the Youth Justice Act in relation to the detention of youths in Watchhouses and other relevant facilities. This override and exemption framework is set to expire on 31/12/26. However, the challenges presented by the significant demand on youth detention centres persist and therefore the Bill will extend the operation of these override provisions and exemptions for another 5 years.” (See Explanatory Notes p1)”
Note the contradiction here. The Human Rights Act override had to be extended because of “ challenges presented by the significant demand on Youth Detention Centres” but no detail at all is provided as to the budget costs associated with these “ challenges.”
This further override provision effectively is proceeding along the route of making permanent the inability of the Qld Human Rights Commission to accept complaints or effectively monitor the treatment of juveniles in Qld watchhouses.
It can be expected that in another 5 years time the override will be extended again. It will become permanent.
Independent evidence from the Human Rights Commission when it took a proactive role under its inaugural Commissioner Scott McDougall in highlighting the often parlous conditions for juveniles in watchhouses demonstrated that prolonged watchhouse detention has involved children being held for unacceptably long periods in facilities designed for very short term police custody, often with inadequate access to sleep, showers, exercise, education, health care, mental health support and family contact.
The QLD Inspector of Detention Services has emphasised that Qld watchhouses are not designed or resourced for detainees beyond 72 hours yet children have been held for many days , in some cases weeks. The scale of the problem is significant. QFCC records a large number of children spending more than a week in watchouses including substantial numbers detained for 15 days or longer.
For individual children there are reported problems of interrupted or poor quality sleep because of constant lighting, noise and interruptions associated with frequent watchhouse self harm observation requirements: limited access to outdoor exercise and fresh air: little or no meaningful schooling : reduced contacts with support groups.
These effects become progressively more serious the longer a child remains in the watchhouse.
The sidelining of the oversight role of the Human Rights Commission by the override extension will mean that the disgrace of children being kept in watchhouses for long periods of time will more easily be kept from public view.
Conclusion
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All aspects of this Bill are opposed by this Council.
The Committee is respectfully urged to require answers from the Department to the numerous failings of the Consultation process as outlined in this submission as well as to how the Department responds to the scenario of demonstrated miscarriages of justice arising from the mandatory minimum sentencing regime in other Australian jurisdictions.
The Committee should also request of the Department a considered and detailed response as to the expected budget impact of much higher remand in custody rates arising from both the mandatory minimum sentence regime and the new high degree of confidence test.
There should be a sunset clause of 3 years to force a review of how the new Breach Bail laws are operating. Associated with this proposal there should be mandatory detailed court records kept to ensure the proposed review is evidence based.
The Committee should make a formal finding that the Consultation heading in the Explanatory Notes breach the Legislative Standards Act.
Finally, if the Bill is to proceed in its current form the safety valve of a. special circumstances exemption as outlined herein should be implemented.
Yours Faithfully,
Terry O’Gorman Vice President Qld Council for Civil Liberies