Monday, 3 February 2014

Parliament's recall by a panicked Premier a farce

The recall of parliament last week to deal urgently with legislation to stem the tide of alcohol fuelled violence descended into a farce when the Premier had to amend his own legislation in the last minute because he did not understand what he was doing.

I have written before that the NSW Liberal government does not have the intellectual ability to govern this state and this issue more than any other demonstrates my point. They could not even get their own Bill right. They were rightly criticised by the popular press. Although I disagree strongly with mandatory sentencing policy, see 

I suppose I am in good company. Tonight according to Fairfax Media the NSW Chief Justice and the State's Lieutenant Governor, Justice Tom Bathurst condemned the O'Farrell government for introducing mandatory minimum jail terms for alcohol and drug fuelled-violence

I have set out my contribution in the parliament below.

Mr RON HOENIG (Heffron) [3.14 p.m.]: People are entitled to go about their lawful business without being subject to violent and unprovoked assaults. The law should treat those persons harshly and, in fact, does so. Last year in November the Opposition released quite a detailed policy to address the seemingly difficult cultural problem that existed in the city and the Kings Cross area. Drink Smart, Home Safe is Labor's planned attack on alcohol-related harm; it is not a cobbled together public relations exercise. The Leader of the Opposition and the member for Toongabbie walked the streets of Kings Cross repeatedly on Friday and Saturday nights and spoke to police officers, emergency workers and health workers in an effort to prepare some response to a situation that not only resulted in people being killed, but also impacted on the reputation of Australia's premier tourist destination and the State's economic wellbeing.

Labor's document was released in November 2013. What was the Government's response? There was no response at all. It is no secret that much expert published material was available not only in this State and country, but also overseas. Dr Peter Miller, Principal Research Fellow and Co-Director of the Violence Prevention Group, Deakin University, stated:
      While there are many causes and effective solutions to violence, acting on alcohol is the only one that can have an immediate impact.

      There are effective solutions at hand and an international framework ready to adopt.

      Closing pubs earlier has been found to consistently reduce assaults and emergency department attendances. Strict enforcement of existing licensing laws has also been found to be a key element in any successful management of alcohol-related violence. Education campaigns and vague references to personal responsibility have been found ineffective at best and, in some cases, have even been associated with an increase in harm.
The trial of lockouts in Newcastle was seemingly successful. Expert opinion indicated that action needed to be taken. But where was the government of the day? It was nowhere; it was silent. Faced with a media campaign over the Christmas period, inaction continued. As Frank Sartor said in his book, one has to be careful of media campaigns during the silly season. But this was not a popular press media campaign; it was universal and reflected widespread community concern about inaction. The Premier returned from leave and suddenly there was an announcement of a raft of actions—adopting much of what the Opposition had proposed. Mandatory sentence reforms came out of the blue, some two months after the Government had dismissed that as a non-solution.

These days it is not easy to be the leader of a government and, faced with more scrutiny by the media, it is becoming more difficult. But one thing the leader of the Government must do is accept responsibility rather than blame others or attack the Opposition for preparing a policy. The Opposition must not only hold the Government to account but also show that it is an alternative government. It is easy to blame the judiciary as if somehow it is its fault. Hearing the leader of a government under the Westminster system telling the judiciary to man up but producing absolutely no material to substantiate his position is most extraordinary.

If the Premier waited too long to act because he thought his solutions were going to work, why did he not say, "I waited too long. Maybe I should not have done so." Why did he come back from holidays and introduce a raft of reforms for which the bills are not available? I saw the mandatory sentencing legislation for the first time at 9.57 a.m. when I asked Government officers whether the eight years related to a head sentence or a non-parole period of 10 years. The answer was that it was a head sentence. Does that mean that the non-parole provisions apply? Yes. Automatically a non-parole period of three-quarters of the head sentence and special circumstances would apply. When I came into the Chamber after the caucus meeting, the Attorney General's chief of staff told me they were amending the bill. I feel guilty because I am probably the one who is responsible for the Attorney General coming into this House and increasing the mandatory sentence. I adopt the words of two eminent senior counsel who are members of this House and whose views on mandatory sentencing I respect. The member for Cronulla stated:
      ... we as legislators also have a responsibility to defend the judiciary and the judicial system and to uphold the great goals of an independent judiciary and the rule of law.

I endorse that statement entirely. The member for Cronulla also stated: 
      It may therefore be appropriate for the courts to develop sentencing guidelines or, if necessary, to do what has been done in reforming the common law of the civil law, namely legislative intervention. However, that intervention should not take the form of fixed minimum sentences or elected judges, which are a recipe for partiality, favouritism and, ultimately, corruption. There is no evidence that mandatory sentencing reduces the incidence of crimes. In fact, it reduces the incentive to plead guilty and leads to arbitrary and capricious results. Judges can sometimes get it wrong, so robust and rigorous criticism is therefore always appropriate. However, we as community leaders need to be respectful in making that criticism.

On 11 November 2013, in relation to mandatory sentences, the Attorney General stated: 
      First, around the world they have not reduced crime. That is, after mandatory sentencing, there are as many victims as before, there is as much drug trafficking or gun possession.

      Second, mandatory sentences reduce the incentive to plead guilty. This imposes additional costs on the justice system and more trauma on victims and witnesses who will have to give evidence at trial.

No right-thinking person believes that mandatory sentencing is an appropriate response, particularly under these circumstances, because it produces injustice. I had a private talk to the Attorney General in the presence of the Premier. I gave him a couple of examples and asked him to look again at his legislation in the intervening period because of the unintended serious consequences that I will not disclose to the House. I have never known a Government to act so contemptuously towards the judiciary. Judicial salaries have been interfered with as a result of legislation that the Treasurer introduced on economic grounds, despite the criticism of the Chief Justice. [Extension of time agreed to.]

Towards the end of last year, the Premier produced a remunerations report that members had not seen and, for no particular reason, moved a disallowance motion and then gagged the Opposition. He then returned from leave under pressure as a result of a media campaign. 

Mr Ray Williams: Point of order. The member for Heffron is not speaking to the motion. This is not a motion about the entitlements of the judiciary. 

ACTING-SPEAKER (Mr Gareth Ward): Order! This is a take-note debate and take-note debates are generally very wide. I uphold the point of order. The member for Heffron will continue. 

Mr RON HOENIG: This year the Premier returned from leave under pressure from all media and told judges to man up which is a rather contemptuous way to refer to the judiciary. All members of this House and all members of the executive government must respect the traditions of the Westminster system and the doctrine of separation of powers. It is vital for the community to respect the judiciary—the bedrock on which our democratic system and rule of law are based. Judges sometimes get it wrong. If sentencing judges get it wrong there is an appellate process. The very issue that caused debate in this House—the matter of Loveridge—is currently pending on appeal to the Court of Criminal Appeal. It has yet to be decided whether or not the sentence is manifestly inadequate. The court has before it an application by either the Attorney General or the Director of Public Prosecutions for a guideline judgement in respect of matters of this nature.

There is no pressing reason for the Parliament to be involved. There is no pressing reason to proceed down a path that is contrary to the views and opinions of the Attorney General of this State and—up until he returned from leave—the Premier of this State. The fact of the matter is that this Government is under pressure through a media campaign of its own making. Why does it not just put up its hand up and say, "We misjudged the situation." Why does it not put up its hand and say, "We are going to try lockouts. We thought we would get through all these issues but it is not working." We all know that the terrible killings in the Kings Cross area occurred between 9.00 p.m. 10.00 p.m. The Opposition and the Government are talking about 1.30 a.m. lockouts and the cessation at 3.00 a.m. of the service of alcohol. We have to address a cultural issue but we should not blame the judiciary. 

As I said a moment ago, during my career at the bar I bristled at many of the judges' decisions but fortunately, those times were rare. There were times when I bristled at the behaviour of judges on the bench, although the judicial temperament of nearly all the judges has improved over the past decade. There have also been times when I have bristled after reading decisions of the High Court. No doubt the Premier bristled at the end of last year at the finding relating to campaign donations and things of that nature. There are many occasions on which we disagree or do not like decisions. There are many occasions when governments of the day and Premiers are attacked by the media, in particular, the popular press which at times can cause us to become annoyed or angry. For whatever purpose the State needs leadership, firmness and an appropriate response. These bills were cobbled together to respond to a media campaign rather than to ensure—

Mr Ray Williams: Why did you just vote for it? 

Mr RON HOENIG: At the end of the day, when this legislation does not work, the Government will wear its decision like a crown of thorns around its head.

The Government is running this State. The Government was supposed to come up with a solution but it never did. Those opposite should accept responsibility instead of interrupting from the opposite side of the Chamber like trained monkeys. 

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