Transcript: Sentencing Seminar Series - Shaping the sentencing agenda
Steven Austin:
Ladies and gentlemen, good afternoon. Welcome to the Queensland Sentencing Advisory Council’s Sentencing Seminar Series, which is being run as part of Law Week. This is another important event for the Council and the second seminar in this series.
There are some familiar faces here, some new ones. So welcome back if you were here for the first one. I’d like to extend the council’s thanks to all of you for joining us. I know many people have come out of court and have sort of taken the opportunity of the break to be here. So we’re very grateful.
We’re hoping that the next hour will be both interesting, useful and entertaining.
My name is Steve Austin. I present the Morning Talk public affairs program on ABC Radio in Brisbane. I’m your master of ceremonies.
I would like to respectfully acknowledge the traditional owners of the land on which we come together for this event — that’s the Jagara and Turrbal people — and pay my respects to the Elders past, present and emerging.
Director-General David Mackie sends his apologies. He has been called away on business but he is not able to join us, sadly. I’m sure you will enjoy the event nonetheless. The event of the series aims to help increase Queenslanders’ understanding of the sentencing process.
At the back of the room there’s a couple of video cameras. This is for 50 or so people who are joining us live via the web stream in offices and courts across Queensland. So to you, welcome.
A very warm welcome to special guests. A recording from today’s proceedings will be available on the website later on today.
As you, no doubt, are already aware, there are a large number of distinguished guests with us here; a very good cross-section, the council is glad to point out, of criminal justice system representatives, victims and offender advocacy groups. A couple of special mentions for judges and magistrates and members of the Queensland Police Service: Justice Rosslyn Atkinson, Judge Brian Devereaux and Judge John Robertson, they’re joining us today, as is Magistrate Anne Thacker and Magistrate Christine Roney. So welcome.
These are the men and women who are at the forefront of sentencing in the state. They have a difficult job to do. Sentencing is a complicated process. I interviewed our guest on ABC Radio early this morning and I got the distinct impression that the reason it’s very complicated might lay at the feet of the media, which may be why they, the sentencing council, asked me to present. I suspect the fix is in. We’ll find out.
Before we begin the formal address, I’d like to acknowledge members of the Sentencing Advisory Council who have been able to come along. I know John Allen is going to say a few words after Arie speaks to us.
Together with the secretariat they’re working on some very important and exciting pieces of work. I know they’ve got an announcement tomorrow, which I’m looking forward to, including the first terms of reference to examine the classification of child exploitation material for sentencing purposes. This is due to be delivered by the Attorney-General Yvette D’Ath on 31 May, at the end of this month.
Tomorrow, the council will publicly launch an interactive website which will help people understand that there is more to sentencing than a headline. If you’re free tomorrow lunchtime, head down to Queen Street Mall at 12 noon. I got the drop on a couple of things that are planned and I’m going to try and convince the ABC to get on board. I think it’s great fun and very brave of the Sentencing Advisory Council. We’ll see.
Firstly, I need to run you through a little bit of housekeeping. As a courtesy to our speakers this afternoon, please make sure your mobile phone is turned off. You don’t want to be that person. So feel free to check it now. I once said this at a public event by the way and then guess whose phone rang? Yes. So check it now.
If you don’t already know, the men’s and ladies’ are located on this door. Take a left as you head out courtroom, halfway down and clearly signposted on the left.
In the unlikely event of an emergency, follow the directions of the security officers on site. Don’t use the lifts, please. Use one of the two flights of stairs located beside this courtroom, the Banco Court, or next to the rest rooms or court 5.
If you need to leave the court room during the presentation, we just ask that you do so respectfully and courteously, obviously.
As I mentioned before, we’ve got a group of people engaging with us via the web on the live stream. So let’s get things underway.
Our guest is a national authority on sentencing issues and the criminal justice system here in Australia having undertaken extensive research on sentencing theory, policy and practice. He is highly respected in the area of sentencing and that he is chair of both the Victorian and Tasmanian Sentencing Advisory Councils. He gives good interview. In fact, we were just starting to get stuck into it today and we had to wind it up.
This afternoon he will impart some of his knowledge when he discusses the role sentencing advisory councils play in policy debate and development and how they’re bridging the gap between the community, the courts and the government. So please join me in welcoming Emeritus Professor Arie Freiberg.
Arie Freiberg:
Well, thank you very much, Steve, for that kind introduction. It was lovely to meet you this morning and I’d like to say lock horns, but we barely got into the fighting position. I always love the work with the media, but the ABC is a wonderful organisation and I’m glad to see you here against this afternoon.
Thank you all for coming during the day. It’s a great honour to come and speak to you. I’ve addressed Queenslanders on this topic a number of times, sometimes with some success, but as we will see, you’ve had a council, it’s come, it’s gone, it’s back again. There’s a lifetime of opportunity here in the waxing and waning of the councils. It’s also lovely to meet people who I’ve met in past lives in Victoria and elsewhere.
The topic today was given to me. It’s a very challenging one because I could talk about the role of councils in a number of their functions, but the focus today is very much on the role of councils in shaping policy, and policy is certainly dear to my heart. So, what I want to discuss with you today is, basically, who, what, when, where, why? So what the hell are they? Most of you people will have some familiarity. Who is on those councils and what are they supposed to do? What can they do and, importantly, what can’t they do? Because while we have extensive terms of reference and while we have great ambitions, we aren’t able to fix the whole world. It’s a shame, we try, but we can’t put things to right across the board and there are lots of things that remain undone. I’ve been chair of the Victorian council for 13 years and we haven’t run out of work. There’s lots to do. The challenges are to look forward to a long and productive and active history in terms of the work of council. So that’s the basic framework and I’ll be looking very much forward to some discussion afterwards.
So what are they, for those who don’t know? Well, generally, they’re quite recent bodies established in general terms, as we see there, to provide guidance, advice and information to a whole range of audiences. Governments clearly are important. They’re the ones who can make things happen. The courts are there because they are at the frontline of sentencing, but, as I’ve believed right from the beginning, courts are not the only place where sentencing occurs. Sentencing is a shared responsibility between parliaments, courts, the legal profession, the public, the media, victims, law enforcers. It’s a joint enterprise. So a sentencing council is more than what courts do; it’s about the operation of a sentencing system.
Communication to the public is crucial because reinforcing the legitimacy of the sentencing system, informing the public about what sentencing is about because often, and this is not just media bashing, although it may lean towards that, but often the perception, the knowledge of what sentencing is about is received in 400 words in a newspaper article or a brief headline on TV, now increasingly social media. That task of bridging the gap, providing knowledge is important because, as any judge will tell you, anyone involved in sentencing, it is one of the most difficult tasks that judges have and it is far more complex than certainly a passing acquaintance with it through a headline would have you believe.
They’re made up of a very wide range of people - and I will come to the various bodies in a moment - across the English-speaking world. There are judges on councils, victims, members of the community, even academics, prosecution and defence counsel - senior usually - correctional personnel, law enforcement psychologists. There’s a very wide range of membership, some set out in legislation, as Victoria, some at the discretion of an Attorney-General. They vary widely in how they’re established. Victoria is set up under legislation, New South Wales is legislative, Queensland is under legislation, Tasmania is at the whim of the Attorney-General, not quite at the governor’s pleasure, but at the Attorney’s pleasure and so it’s only a memorandum of understanding.
This will, of course, affect the way councils operate, but, as I will come back and talk about, independence is a really key issue in terms of councils and, as my experience has shown, independence does not depend on whether you are a statutory officer or not. It’s the way councils conduct themselves in their daily business and their relationship with governments, with the courts and with the public. One thing I’ve learnt over 13 years in Victoria, you ain’t going to please everyone all the time. One of the great definitions of independence I have found is that if you’ve upset everybody at some time during your tenure, you’re probably doing a good job, but you’re not going to please everybody.
Some of them are — when I say permanent, they’re set up under legislation, but, of course, you can be abolished by the change of legislation, as the Queensland experience has found. Some are set up for a short period of time, some are, indeed, abolished and reincarnated. All of them are have a membership that’s appointed by government. This is important because independence is a really difficult concept.
I had a very interesting discussion a while ago with some senior officials from the procuracy in China. I was talking about the Australian justice system. It was a very interesting cross-cultural conversation. I’m not going to say anything about the Chinese system and the notion of independence of the judiciary or the procuracy, which is sort of like a broad prosecutor but much wider functions. I told them about the sentencing council in Victoria and elsewhere. They said ‘So who appoints the council members?’ I said ‘Well, the government’. ‘And you say you’re independent?’ ‘Yes. We’re quite independent’. ‘The government appoints judges here and you say they’re independent?’ ‘Yeah, no, they’re independent here. We have separation of powers’. ‘Who actually pays the salaries of your council?’ I said ‘Well, the government, actually’. ‘And you say you’re independent?’ I said ‘Well, it’s sort of a cultural thing, you know’. ‘Right. Okay. We understand. You are independent of government, appointed by government, paid for by government’.
So it’s not just in the written laws. While all of us in Victoria serve at the governor’s pleasure in the sense that we are a governor-in-council appointment, we can be removed. There is a certain degree of approbation or approval by a governor and council appointment. On the other hand, in Tasmania, I think we have the same degree of independence with our understanding with the government about the nature of our appointments. So, there’s a lot to be said for culture as well as law.
So who are they? Who are we? It started off in the United States. There are 23 commissions out of the 52 or so states. There’s one federal one. That’s the big one, the major one that deals with federal law, the one that has probably, if I may say, made the biggest hash of it. So far, I think at the federal level, they really, when they do things, they do things in a very large way, but they’re the ones who have got a very firm set of guidelines. It’s made up of judges, it’s made up of a range of other people, but it’s judicially dominated. In that wonderful way that America does, there are a certain number of republicans and a certain number of democrats on it and some of them are serving judges. There are 22 State Commissions there. It only goes back to 1978.
In terms of history, sentencing councils, as we now know them, are only 30 years old/40 years old. They’re quite recent given the history of where courts have come from, some hundreds of years. They are a recent invention and in the US they were really set up to provide guidance or to write guidelines to guide or control, as some judges would say, judicial discretion because they historically had a very, very wide discretion through the 50s and 60s, very much animated by a rehabilitative philosophy where the courts would impose sentences which allowed Parole Boards a very wide discretion. So if you recall those old television programs from the United States, it’s a ‘Well, defendant, we’ll give you 5 to 50’, or you know, ‘A 3 to 20’, and between 3 and 20 they would then leave it to the Parole Board to decide. That, of course, left a huge amount of discretion in the hands of the Parole Boards which people considered to be unfair, unjust and sometimes capricious. So power was handed back partly to the courts, but it was then, thought that was too much unjustifiable discretion in the courts based on race or gender and they set up their commissions to provide the courts with guidelines. Many judges thought, certainly the federal guidelines, were very, very restrictive.
In the UK, it goes back to 1988. You can see there’s been an evolution there in the nature, composition and function of those bodies. The sentencing advisory panel then was very advisory. It lasted to 2010. It was made up predominantly then of non-judicial members and to provide general advice on guidance and policy in the UK. I visited there in the late 90s, sat in there and that’s where I got many of the ideas for the establishment of the Victorian Council in 2004.
That then morphed into a Sentencing Guidelines Council whose function was very much to do with guideline, but for a while two bodies co-existed unhappily, uncomfortably, because they had overlapping functions in terms of policy, guidance, membership, until they decided one council is enough. So for the last seven years they have a sentencing council whose main task is to set guidelines for the judiciary, a task it can share with the Court of Appeal, but that is now judicially dominated, judicial majority, but with academics, lawyers, members of the community on that.
In Australia, it’s only 14 years. New South Wales was the first, just by that much. Very annoying for Victoria, just by that much. That’s been running from that date. I will come back and talk about that one. We were then set up after an inquiry I did in 2002 for Rob Hulls, the then attorney. Queensland, I don’t need to tell you your history here. You’ve come and gone. Welcome back. It’s really wonderful that you’ve been established, funded well, well-resourced and terrific staff. Tasmania, set up by an attorney under a previous Labor Government, it’s not statutory and at the moment it has a membership of about 12 or 13 council members appointed by the attorney, not statutory, one part-time administrative officer and a research officer on contract. Like everything in Tasmania, it is compact. I can’t say we have a lot of money, but we do a lot with what we do. You can see they vary widely in scope, resourcing and tasks.
South Africa in the Halcyon Rainbow Days thought about a council. There’s a very active academic in South Africa, in fact many academics, very keen on a council there. It never saw the light of day, which is a shame, and given the state of the South African criminal justice system, probably much needed.
New Zealand almost had one fully formed. That was an interesting process. Warren Young, who was then on the Law Commission in New Zealand, a brilliant man, in fact, came up with a full package before the government. It was an idea of government. He had all the guidelines, he had everything ready, ready to go. Not much consultation, but a brilliantly thought-out package. Then there was a change of governments who didn’t think that was such a good idea and the fully-formed package stayed in the post office box. It never saw the light of day, which is a shame because it was a well-crafted package.
Scotland, and I visited there recently, they had one set up for very specific purposes. It had a sunset clause and it sun-setted and disappeared then re-appeared again. This is a familiar story for Queensland, but it was designed to self-destruct, which it did, and then has come back and that is, again, a judicial majority, very similar to the UK, and working primarily on guidelines. I had the pleasure of sitting in on that council and talking to them last year.
Ireland has been thinking about it for a while. There have been a number of proposals. The most recent one there’s a private members bill. So this is not something that’s natural, it’s not something that just sees the light of day. It’s a political struggle, a political exercise to bring them on.
So, I’ve been asked to talk about policy, not everything that we do because that would take not only this afternoon but probably the rest of the week, but the focus on policy. That’s important. What do I mean by ‘policy’. Well, always resort to the Oxford Dictionary. Just a course or principle of action adopted or proposed by an organisation as in government policy. That’s what I’m talking about. Now, originally these councils were set up in the United States and the UK to look at sentencing policy in very narrow terms. How can we guide, or as many judges thought, control judicial discretion. A great suspicion, great unhappiness with unbridled, unbounded, unjustifiable discretion. So how might we guide that discretion so that it comports to principles of justice.
The main issue, the policy issue, was unjustifiable sentencing disparity. In the United States there was a lot of evidence for that, especially on the base of race and gender, over-representation of African-Americans, more recently Hispanics. When you did a lot of the studies, and they did, they’re very good at the studies, they found out when you took out all of the factors that might confound, you know, prior convictions, severity of the offence, there was something left behind and that was race and when you then identified what those problems were, they were differences in judicial responses; that is, the differences lay not in the cases but in the judges. There have been many studies elsewhere that says that unjustifiable disparity exists. That is those differences in sentencing that cannot be attributed to the factual, the circumstances of the case.
I’ve had many experiences, and I don’t want to be unkind to people who make decisions, but I’ve run many ‘You Be the Judge’ courses with students, with judges, magistrates. You get a scenario and you ask people what their response is. Now, granted, it’s short, it’s brief, but it works. Then you ask people - I’ve done this with judges - and say ‘What would you give?’ Well, often the sentencing range is quite wide, maybe 5 /10 years could be the difference. I’ve done it with the students for a culpable drive. I get somewhere between zero and 30 years. Now, granted, they’re not trained as judges, but it just shows you there are differences in approach.
Then I ask the judges ‘Why is there a disparity?’ The say ‘Well, you know, every case is different’. I say, ‘No. You all got the same facts. You’re different. You’ve got different attitudes about purposes of sentencing, about what weight you give to the aggravating and mitigating circumstances’. What we don’t want is unjustifiable disparity. We have justifiable disparity based on the facts of the case and the circumstances.
With mandatory sentencing, as my old friend Stephen Ey this morning talked about mandatory sentencing, you get to the other side, which is unjustifiable parity, treating unlike cases alike. So a good sentencing system has to avoid the extremes of unjustifiable disparity and unjustifiable parity. Governments, unfortunately, their main policy response to almost every sentencing crisis is mandatory sentencing. A lot of the work of sentencing councils is to try to disabuse governments of the value, attractiveness or effectiveness of mandatory sentencing because of the problems primarily of unjustifiable parity. In Steve’s wonderful words ‘One size doesn’t fit all’. I wish I would have thought of that Steve, that’s good.
But as we’ve evolved, the idea of the role of a sentencing council beyond what we can do about these issues of judicial discretion is about crime and punishment more generally; that is, sentencing policy more generally. Now, what I think here that is very important is that policy should be the outcome of a considered decision-making process. We’re aware that there are a lot of elements in decision making. What we’re looking at in sentencing is the political decision making, ‘How am I going to be re-elected at the next election?’ which is always around the corner. How do we deal with those expert opinions that might be the lawyers, it might be the criminologists, it might be an informed member of the community, the notion of top-of-the-head, knee-jerk responses versus a deliberative process of coming up with the best response to the problems that any community is facing.
The reality is, given the pressures on politicians, is that many sentencing decisions, many policy decisions, are the old knee-jerk ad hoc decisions made under pressure to come up with an answer now because it’s in the headlines every day. There is a call, there are petitions, there are talk-back radio, there are people who say ‘We want an answer now’, and the answer is simple, ‘Lock them up. Throw away the key’. If only I could find that key that’s been thrown away so many times. That would be really good.
So how do we short-circuit that? How do we deal with that understandable pressure to come up with the result when there has been some horrific crime? Many sentencing reforms, both good and ill, are the product of some horrific catastrophic event. We’ve seen that with parole reform, we’ve seen that with sentencing reform. Again and again, that case. We’ve just had it with bail reform in Victoria. It’s often precipitated by an horrendous event. We have the Adrian Bailey case, you’ve had your parole cases, we’ve had many of those cases. The pressure is on. They are horrific, they are appalling. We have to be careful about how we respond.
So sentencing councils have an important role because they can take the time to consider the appropriate response away from the heat of the daily debate. So what can they do in terms of developing policy? They can delay decisions. Just hang on, let’s cool down, let’s just wait a moment. Just don’t do something now. Take some time. Take some time.
In a later slide that I’ll talk about now, I’ve had two principles that I’ve encouraged governments to adopt. One’s called the ‘mirror principle’ and one is called the ‘fan principle’. The mirror principle is I beg the attorney ‘Just use the’ — or he or she said ‘What’s that?’ ‘I’ll look into it’. That’s the mirror. Just go out and say ‘What are you going to do?’. ‘I’m going to look into it’. That’s what you want. The fan principle is - how can I put this politely - you’ve heard about something hitting the fan. The idea is take that something and when it hits the fan, as it will, point the fan in our direction. Divert the fan, let it come on us and we will then take the time to deal with that awful event, that awful result and give us a time to come back to you in the future at some time with a considered response. So that’s what we beg.
How do we do it? Well then let’s just take the time to see what’s the size of the problem, what’s the empirical evidence of the problem. What are the issues? What are the outcomes if you choose option A or B or C? We can often recommend a much wider range of options than lock them up and throw them away the key: mandatory sentencing, longer sentencing, extended sentences and the like and it often may help governments who may after consideration look at options which they may not have thought of first, which may not be politically palatable, to say ‘Look, we’ve been given these options. We’ve chosen these options’, and this body made up of judges, experts, victims, police, prosecutors, they’ve thought about it. This has, perhaps, even more credibility than if we had come up with it on the day. You, in a sense, have got to trust these people that this is their considered finding. If the report is one, two or 300 pages with the evidence, one hopes that that will be more persuasive than a headline the following day and these councils can provide evidence and say, ‘Well, look, you’ve tried to lock up, throw away the key, lock them up forever. It’s, in fact, produced more recidivism. You’ve actually made things worse’. That’s the kind of information we could have.
The other important thing is to engage the community, engage the key stakeholders in the discussion about what is the appropriate outcome; that is, it is not a unilateral discourse. It is not one way. Given time, you can come up with options papers, you can come up with recommendations, you can test them out, and at the end you will come up with a better outcome again and off the top of a head. So that’s what we do. When we’re talking about policy, we are advisory only, much to my chagrin. I would love to have extreme unbridled, unlimited executive power. ‘Dream on’ my wife says, but that’s what I would like, but that’s not our job. Our job is to advise; government’s role is to govern. So while we can’t execute our policies, we can give them to government who can then implement it.
So how do we influence policy? We can do it in a number of ways, which I will discuss now. Setting the agenda through the process, through providing evidence, through what we actually find, how we communicate it and how we follow them up. So let me go through those.
So one is how do we set the agenda for policy? Well, depending on the council and its legislation or the understanding with an Attorney-General, much of the work of councils come from a form of reference from the Attorney. It may come up from cabinet, often from a newspaper headline, some policy crisis. They will then ask the council, after they’ve looked in the mirror, they’ve put the fan in our direction, and they will then, often after negotiation, give us a reference to say ‘Well, you look into whatever it is that’s the issue’ and we’ll do that.
Some councils, I think like New South Wales, are primarily, if not only, reference-driven. That is, if they don’t get a reference from the attorney, they ain’t got no work, and I think at the moment, apart from some ongoing commitments the New South Wales Council has got no references and they can’t do anything, so nothing’s happening there.
In Victoria, I think in Queensland, we are not reference driven. Now, I think it’s fair to say that we are bound to accept a reference from an attorney, but rejecting a reference might be what they call a career-limiting move for a council, and so we don’t usually, if ever, reject it, but we do have discussions about an appropriate scope and manageability of a reference. We’ve had a number of years in Victoria where it’s been lean times for references. We are very self-generative. We’ve never run out of work. I’ve been working in sentencing for 40 years and I’ve not ran out of ideas yet, which is probably a sad state of my mind, but it’s from the council itself from our discussions with the judiciary, from the legal profession, from the public, from the media, there’s lots of ideas. We’ve never run out. So I’m very happy that we are not limited to attorneys’ references. So that’s the way the agenda will be set. We will sit around and say ‘What would you like to be covered?’. Usually by the time we’ve made a list of ideas, the attorney’s come up with a new one which will take all of our time.
As I’ve said, the process is important, not only what we get, but how we do it, what I’ve called here a policy buffer between the immediate crisis or problem and the outcome. The idea of diffusing the emotional crisis. You’ve heard of the term ‘moral panic’. We’ve got a moral panic at the moment about youth justice in Victoria, we’ve had moral panics about parole, we’ve had moral panics about bail, we’ve had moral panics about suspended sentences, we’ve had moral panics about particular offences. Once they get going, there’s a fever that infects the community and it gets hotter and hotter. That’s the worst time in which to make decisions. So if we can cool that temperature, if we take our time, act as a policy buffer, we’re likely to get better policy outcomes. The other thing, of course, so as I’ve said, talk now, act later. So let’s take our time.
The important thing is the process. Multiple engagement. Now, one of those is the council membership. As I’ve said, they’re very diverse and we have, shall we say, robust discussions. There are no shrinking violets on my councils. There are senior lawyers who are very well versed, very useful for arguing. We have victims, we have community representatives, we have intelligent, forceful, assertive, articulate people who will engage in robust discussion. Indeed, our staff who do the real work are all of those things and they will also have those debates. We will go out and consult, we will put out options papers, we will talk to the public, we will talk to the usual suspects, the bar, victims groups, police, prosecutors and the like. We will put out consultation papers, we will have round tables, we will try out the options, we will road test ideas. We will get that information back and we will represent that. We will reflect that in our papers.
I think those things that we can do, the consultation papers, draft reports, what do you think of those ideas? I’m very strongly of the belief of putting out a draft report with recommendations, not ‘What do you think?’ It’s ‘By the way, we think this is a good idea’ and that usually concentrates the mind because people, if you put out general ‘What do you think?’, they’ll come up with an idea. If you say ‘And by the way, I think all people should have their heads chopped off as early’ - ‘Hang on, no. I don’t like that one’. Focus, which means you get focused responses.
The aim is to get this balance between expert and public opinion. I think that legitimacy of consultation is the key. If there’s one thing I’ve learnt over the many years is it’s important, even for people like me, to come off that ivory tower, go down the steps, go down and be listening to the groups and understand what they’re saying what they want. You’re never going to please everybody, but you’ve got to listen. Many of our very best ideas have come out of those consultation process.
The next role that we have is how do we frame the policy debate, and evidence is an important basis. It’s not the only basis; that is, you want evidence-informed policy. We’re never going to get evidence-based policy. Politics doesn’t work that way. You often get policy-based evidence. That’s what the public service may have to do. We don’t. But what we want to do is create some degree of confidence that there’s a degree of science, there’s a degree of information underpinning what we do.
What kind of evidence? Well, one of the most important pieces of evidence that we have is what the public actually thinks about crime, and there have been many studies, including the famous Tasmanian jury studies led by Governor Kate Warner and others. We’ve now got the Victorian jury studies. We’re doing some work on parole, not with the council, but with others. So when a politician says to you ‘The public demands, the public wants, the public expects’, well, is that Steve? Is he the public, his listeners, or on commercial radio or the Murdoch press, or whoever it is? Not necessarily, in fact, often not. They’re a self-selected sample. What’s important is to get those nuanced findings that you will get out of public opinion surveys properly conducted about what the public actually thinks and what we’ve found again and again, it’s not necessarily punitive. They will believe in rehabilitation. They don’t believe in mandatory sentencing. The public is much more complex and nuanced than what the politicians will say. So every time a politician gets up and say ‘What the public demands’, I would say ‘Give us your evidence’, and they all say ‘Well, just read the newspaper’, but you’ve only got one. No, you haven’t.
It’s evidence about what actually is happening out there, what the courts are actually doing. Often the idea is, ‘Well, the courts are too lenient’. ‘How do you know?’ ‘I read the newspaper about it’. Sentencing spotlights, sentencing snapshots, sentencing information. Go on the website. One of our proudest achievement is the website. Go on and see what the average sentences are, top and bottom, for murder, for rape. Don’t talk off the top of your — this is what judges actually do. Then tell me you’re unhappy, but don’t tell me you’re unhappy until you know what the judges are actually doing. Go and read the sentencing remarks, which are often now online. Understand what the purposes are. Are you trying to rehabilitate, punish, deter, any of those, and we can know what the public thinks about those. What works? Does mandatory sentencing work? Does it reduce crime? The evidence is not. Do prisons work? Do they deter? We’ve done endless papers on prison doesn’t deter. I had an argument with an Attorney-General. We found it was, in fact, criminogenic; that is, it created more crime. He said ‘No. You don’t understand statistics’. Alright, but evidence can only take you so far, but it’s where we have to base our decisions on.
What’s it going to cost? If you lock up a thousand more people, it’s going to cost you a hundred/two hundred million dollars. This is what’s going to cost. Do the numbers. Again, that doesn’t always work. We’re in a crime and justice panic at the moment. We’ve got a thousand new beds. We’re putting a billion dollars into new prisons. Do we need that? Many people would say no. The information is there. It doesn’t necessarily determine policy. Or we can often, and this is worked in other times, we will say ‘By the way, if you want this policy, this is what your prison population is going to look like, and if you add a hundred thousand dollars per prisoner plus the capital costs, this is going to cost you 5/10/15 or 20 million dollars’. One of the important audiences that we often have is not the Attorney-General or the minister of police; it’s treasury. They’re the influential people. Talk to the numbers people. They’re important. As our staff said to me, the requirement for evidence can improve evidence; that is, once we ask the questions, we can go and seek and create new evidence.
So how do we communicate it? Our website, 115,000 hits. Our snapshots, our sentencing snapshots, are informing the work of the courts. Just in one year, the higher courts, the County Court and the Supreme Court, cited our snapshots in 55 published decisions. Probably discussed in many more, but the point is we’re providing evidence of what sentencing practices are. Our online stats had 47,000 page views. What’s interesting is, and I don’t want to say all lawyers are enumerate, that’s not the case, ‘I know all cases are different, your Honour’, I know every case is different, but we do have statistics, we can get ideas of maxima, minima, media, modes, all those things, and I think one of the great things of the Victorian councils, and I hope Queensland, is that we’ve changed the nature of the sentencing discourse. Even though we have some unfortunate High Court cases about the use of statistics and Crown submissions on sentence, we think that that’s informed the policy debate within courts. Our publications are 33,000.
So what do we do in terms of content? Well, we provide independent advice. I cannot stress to you, and I come back to our Chinese visitors and I come back to our legislation, our advice is independent. It is our advice finally of the council and after a long debate, and we’re not always in agreement, but I think there’s only been one report out of the 60 where we’ve had a difference of opinion at the end, and we provide independent advice. That is ours. Not what the government wants or needs or expects. It’s what we come up with. We publish it. What’s important is we publish it hell or high water and by that we mean unlike New South Wales, unlike a government report. When we finish it, our process, we have a protocol, ‘Government, you asked for this report’. Three weeks in advance or thereabouts, we provide you with a copy so you aren’t surprised by what we get, but on the Xteenth of May, that will be published. It’s not sitting in your hands, in your inbox to decide what to do about it. That’s what they can do with Law Reform Commission reports or others. Ours will be published on that day. It’s up to you to accept it or reject it. So it’s that deliberative process which I think and independence. As I say, we are guaranteed to upset somebody with these, but that’s the best we can do. That’s our advice.
If you look at what we’ve done in Victoria in our 13 years, we’ve published 60 reports. Tasmania, we’ve published eight. Just to give you a brief overview about what’s happened, we had our 10th anniversary a while ago, 2014, and we did a bit of review. Have we made a difference to policy? It was very pleasing. I’d say between 60 and 70% of our recommendations have been turned into legislation. That’s not a bad hit rate for an advisory body. We did one on maximum penalties for repeat drink drivers. They were considered to be inadequate. A lot of our earlier references were increase maximum penalties. Sometimes yes, sometimes no. That one was necessary. The big one which took us five years, it was our very first. We never want to see suspended sentences again, but that came out of a crisis in the sense of what was considered to be an inadequate sentence for a rape offender in 2004 and we weren’t asked to look at the sentencing for rape, but he got a suspended sentence. We spent the next five years looking at that. We recommended after four or five reports that they be phased out and now they’re gone and replaced by a community correction order and, in fact, that’s the influence of the Tasmanian. There may be a coincidence that I’m chair of both, but maybe not. I think you’re looking at them possibly in Queensland as well in the future.
High-risk offenders, this whole issue of what you do at the conclusion of a sentence, especially sex offenders, we’re now expanding it to violent offenders. High Courts held it constitutional in Fardon. We did a report. We were not asked do we think it’s a good idea; we were asked how to implement it. We said ‘You didn’t ask us whether it’s a good idea. We don’t think it’s a good idea. However, here is how to implement it’. We set out a Rolls Royce model. We said ‘This is what you need to do, to do it properly’. They cherry picked some of the recommendations.
What was interesting was a couple of years ago there was another high-profile event. They set up another inquiry under Justice Cummins and a couple of distinguished academics, forensic psychologists, to look at high-risk offender models, and many of the ideas that we had raised in the Rolls Royce model. I don’t want to say anything about a Holden Commodore or any other car, but let’s just say they didn’t buy that model because the Rolls Royce or the BMC these days is too expensive. The subsequent report said ‘Hang on, you’re actually in a better model’. So some of the recommendations, you have to be very patient. They may win in the end.
Sentence indications, specify discounts. We looked at the legislation on guilty pleas, whether they worked or not, whether they should be legislation, sentence indication. That was implemented. Judges had complained in their judgments that the maximum penalties for this offence of negligently causing serious, inadequate. We agreed with them. It was doubled in the following year. A number of other consequential changes we’re looking at. We’ve looked at breaching intervention orders. We recommended some changes there. We looked at driving whilst disqualified. We found that the mandatory imprisonment that was required there was never used. It was circumvented. It was an idea that came up in 1949. I think it’s the first mandatory penalty in recent history that has ever been abolished and we got rid of that mandatory penalty. In fact, what happened was most people got fines or a community order rather than going to jail.
There was a crisis about attacks on Indian students. That was both an issue whether they were racially motivated attacks or, as we suspected, there was a real concern in the government that we might be losing some of our Indian student population who wouldn’t come to a dangerous place, but they wanted something done. We recommended that a provision be put into the Sentencing Act that this be an aggravating factor, not a different offence. I think we took the view that it would be highly symbolic rather than as a deterrence, it would be denunciatory. I don’t think it’s ever been used, but it’s in the legislation. It makes a statement, but a lot of law reform is symbolic. It’s about communication. Whether it does anything or not is a different question. What it did was it got it off the agenda. We have many Indian students now. The time has passed. That’s what happened.
Sometimes it’s important to say ‘By the way, do nothing’. So a lot of concerns by our Court of Appeal about the complex interrelationship between sentencing, parole cancellation and confiscation orders. Confiscation orders are separate and civil and different timing. A whole lot of complicating. ‘This is mucking up our cases, this is mucking up our sentencing. We think it’s a real problem’. ‘Okay’. They gave it to us. The government gave it to us. We have had a look at it. We looked at the cases, we looked at a number of cases. We said, ‘Actually, we don’t think you’ve got a problem. This is not where the problem is. You’re not going to fix it by changing the law. We recommend do nothing’ and it went away. It wasn’t as big a problem. So sometimes saying do nothing is a good policy response to a problem which is perceived but not real.
Statutory minimum sentences for gross violence. The conservative Liberal National Party wanted presumptive sentences, almost mandatory sentences. They didn’t ask us whether it was a good idea. We did a report on it. We identified the offences. What we did was said ‘Look, whether it’s a good idea or not, there are problems in semi-mandatory sentencing’ and we set out a whole lot of exceptional circumstances. Interestingly, the exceptional circumstances that we have in the Act have now been picked up in a number of other jurisdictions, that where you’ve got presumptive or mandatory sentencing they put in these exceptional circumstances which ameliorate those.
Baseline sentences, again, a presumptive sentence again, a previous government in Victoria. We were asked to advise on that, not whether it was a good idea. There were really difficult problems in implementation because of the statistical foundations of that. We advised privately that there were significant implementation problems and lo and behold a full bench of five of the Court of Appeal said the system was inoperable and they weren’t going to fix it. There was a change of government. These will be repealed. We were then asked to look at a new system of guidance. We did another report which will be implemented fairly soon. So it’s an iterative process. We did a big report on fines. Some of that is coming in. Sentencing guidance, we hope in the next few weeks. So I think we’ve had a reasonably good success rate because of those processes. That’s political policy. That’s crime and punishment policy.
We’ve had another role, I think, in judicial sentencing policy. Now, I know judges don’t like to say they’re involved in policy. You’re there to decide the cases on their facts. Courts of Appeal don’t like to make broad statements. Now, that may be too broad a statement, but they’re there to decide the case, maybe set out principles. I happen to believe strongly in judicial policy and by that I mean broad statements by the courts which may in many cases pre-empt a political response if the courts are not getting it right, and the whole notion of guideline judgments, New South Wales, Victoria, Queensland has got provisions.
The highlight of my career was there in the case of Bolton. I recommended guideline judgments in 2004. It only took until 2014. As I said, instant gratification is not part of the game here. 2014, the case of Bolton, which was a case of five judges, to look at how the new community correction order ought to be implemented because there were wide variations in what judges were doing. The role of the Sentencing Advisory Council was provide background material, studies on the operation of the community-based order. We drafted together with others, if you like, a draft guideline because it hadn’t been done anywhere in the world. We presented that to the court and I was an amicus, my very first and last appearance, thank God, in a Court of Appeal. I decided advocacy was not for me, unlike here, but court advocacy, but they handed down a guideline judgment. What’s interesting, if you’re a believer in guideline judgments, as I am, it’s now been cited, according to AustLII, 329 times in cases and the like. That’s what I mean by the development of judicial policy. A fine line between legislative policy and judicial policy. I think councils have a role in that. We’ve done a lot of sentencing practices that has looked at offences like aggravated burglary, driving offences. Again they provide courts with parameters and understand what they do. A lot of indirect influences.
Here is what is what I want to say is what’s important. We’re not just there for the short term. That is, you’re given a reference and the temptation is to say ‘I’ll respond to that and give it to the government in a month/six months/a year’. Those reports have to stand the test of time. By that I mean a thorough comprehensive, incredible — I use those terms carefully — report can influence policy in a number of subtle ways; that is, even if it’s not picked up by the government that day, they might want to think about it, they might want to consider it, but I know that public servants, and there are many of you amongst us, and I was married to one — actually, I am still married to one. She was a public servant, but not now. Still my wife. Hello if she’s watching. They’re often given a problem that lands on their desk and the minister, the secretary of the department will say ‘Can you get back to me in a week with a policy outcome?’ and it may be a really difficult problem. ‘What the hell do we do?’ Often what will happen is ‘Oh, thank God. There’s been a report written by some academic, by some council, by some law reform’, and they’ll look at it and say ‘That saves me six months work because I can read the executive summary. I’ve got the stuff there. I can write my brief, no more than two pages, up to the minister, three options. Thank God somebody’s done the work a year ago/two years ago’.
You may not convince this government, but the next government may come along and think it’s a good idea. Governments come and go. I think I’ve had about six attorneys come and go. I’ve outlasted them all. But the point is we’re writing for the long term. Or even a government of the same persuasion who changes its mind because circumstances change. Or you might write the paper and in your jurisdiction they think it’s a stinker, but in Queensland they think it’s brilliant, or in South Australia or in England or America they pick it up and say ‘Oh, that’s a good idea’. I don’t know what they…’. So you’re talking, they’re published, they’re on the web, they’re there, they’re speaking to other places, to other generations, and indirectly academics will pick it up. Policy think-tanks will pick it up, law reform. If it’s credible, comprehensive, thorough, somebody will read it and they will influence others. They will go on the media, they will go and say ‘Look, by the way, Steve, look, you’re going to ask me about this. A recent report by the Sentencing Advisory Council said…, and you say ‘Wow, that’s convinced me’, and you’ve got 200/300 thousand people listening.
The point is through the diffusion of information indirectly it might then get back to policy makers. So that’s the point. It’s not hidden. It’s there available to the public on the public record. It’s there for the courts, it’s there for government. It’s not hidden. As I said, it’s not subject to government consent. I know because I’ve been through experiences before. I won’t mention any examples. You write a report and it’s sitting there on the attorney’s desk and they decide to publish it. I can’t tell you how frustrating that is. Even in some states that I am no close to here, but we say here it is, 30 May, it’s coming out, it’s public. Like it, don’t like it, make up your own mind. We communicate it. We don’t hide our lights. We have 4,900 Twitter followers, almost as many as the President of the United States. But ours make more sense. That was an unpaid political announcement. The point is because we are ongoing and continuing, we can tell people, we can inform the policy debate by how are things going, how have prison numbers changed, how have we used community correction orders, how do we use fines over the last five/10/15 years? On our website we have imprisonment numbers and rates going back to 1870. So let’s not just focus on yesterday or the day before; how about 150 years worth of data. We can monitor.
Here is the reform. What’s happened since? We’ve done many monitoring reports on the operation of the CCOs on family violence, on guilty. That is, what’s happened and how do we evaluate? Does it work, is it effective, fair and efficient? So what can’t they do? This is what we’ve done. Fantastic. You’ve all bought one, right? You’re going to take one home? What they can’t do? Well, we can’t be truly representative. We can’t represent the whole community. The council itself can be reasonably represented, but we don’t have offenders on it. I once recommended ‘Why don’t we have offenders on our council?’ ‘But they’re criminals’. I said ‘Well, who else is better to know what sentencing is about?’ and we haven’t managed an offender. Or everybody on the committee, ‘You can’t do that’. We don’t have an indigenous person. We had a number previously. We have difficulties.
The other thing is we can’t take the emotion out of sentencing. It is an affective process. It’s always going to be emotional. What I’ve argued is we can’t ignore emotion. We can have emotion-informed debate and that shapes the way we often present the reports. One of the things we do is we often have break-out boxes. We do what the tabloids do. Here is a real-live case. Here is a real life example. Instead of or as well as all the data which is mind-boggling and blurry, 53%, 87% of this, quarter of that, high percentiles, a fraction of the coefficient of the people understand.
Here is a story of Billy or Mary. This is what’s happened. People can relate to that. We tried to diffuse the moral panics but we don’t always work. They often don’t seek our advice. They’ll go straight to it or they’ll set up an independent body or ad hoc, a Sofronoff Commission, a Coglin Commission, a this Commission. Even if it’s in sentencing, they’ll get a distinguished person to do it, come back in three weeks, six weeks, six months. They won’t come to us. We will never contain the effects of the high-profile cases, the ones that will dominate the press, the media, for weeks, and they won’t win a government an election we’re not going to provide them with.
So what haven’t we done? We can’t take it out of politics. Sentencing is essentially political. Sentencing policy — I’m not talking about judicial sentencing, I’m talking about sentencing policy - will always be political. Imprisonment rates have gone up. We’re nearly 40,000 in number in Australia. We may have slowed it, but we can’t stop it. Other forces are at work. We in Victoria haven’t done an efficient evaluation. We’ve done a lot of monitoring, but we haven’t had the skills or resources to do evaluations. If you look overall, even with You Be the Judge and even with all that information, how do you influence six million people to be wise, informed, caring and the like? It’s very difficult. I don’t think there’s any study that could show that those states with sentencing councils are more informed, lenient, less populous than those states without one. I can’t prove that. I’d like to believe that we do change ideas, but I can’t prove it.
We haven’t changed the media. They are still going to run the same stories. I’m not going to talk about certain kinds of media, but it is DNA, it’s in their DNA, it’s built in. That’s what will sell papers. They will run the campaigns on youth justice, on bail, on parole, on mandatory sentencing and they will do it relentlessly, no matter how much we talk to them and talk to the reporters, and we have conferences and have media discussions and training and all that. That’s what they are designed to do. We haven’t been able to change that.
So in conclusion, sentencing is political. We live with that. We need to understand that. However, we can believe in the separation of powers. We need to maintain the independence and the discretion of judges to the extent that we can. We want an independent advisory body which will withstand the political vicissitudes and provide fearless advice, and believe me, through the experiences, fearless is important because you are going to upset people, upset judges, upset victims, upset the police. If the council is with me, behind us, together, we will wear it together. That’s the collective decision. I think that’s important. It can provide good advice to the courts. It can help build confidence, it can maintain trust and, as I say here, we can pursue justice, even if we can’t catch it.
I’ll just finish off with a wonderful testimonial from my friend Chief Justice Michael Rozenes, who was the Chief Judge of the County Court, now no longer in the County Court, but this was for our 10th anniversary. We didn’t write this for him; he did it himself. Lovely man. We couldn’t have done better and I will read it:
‘The council’s work has been instrumental in shaping the sentencing landscape in this state and shows the value of having independent authoritative advice in an area which can be fraught with emotion and is often misunderstood. The council’s advice to government based on comprehensive research and data analysis has led to significant changes in the law. The council’s involvement has meant that law reform proposals in this area are scrutinised to a much greater extent and provide an opportunity for the public to make an informed contribution to the debate. In addition, the statistics produced by the council have provided a valuable evidence base for courts in considering current sentencing practices.’
And I’ve bolded this — I can’t resist:
‘In my view, every jurisdiction should have such a body to bring serious expertise to bear as an independent voice on sentencing issues and promote greater public understanding as to how sentencing works.’
I couldn’t have put it better myself. Thank you.
Steven Austin:
Professor Freiberg, thanks very much. I can assure you, you can appreciate why the independent role that sentencing advisory councils play in the system, it’s obvious why Arie is considered Australia’s sentencing advisory council expert. It’s also not surprising that our Queensland Sentencing Advisory Council is modelled on the Victorian Council, which has had a significant impact.
Arie, I want to ask you a couple of questions first of all if I may.
Arie Freiberg
I'm sorry were out of time
Steve Austin:
That’s my trick
Q&A Session
Steve Austin:
Where is the evidence that a sentencing advisory council is any better than public opinion in deciding a sentence? Where’s the evidence?
Arie Freiberg:
Evidence-based policy. How would we go about determining what public policy would be or public opinion would be in terms of transforming that into legislation? I think we’ve seen that on a number of occasions where we’ve produced outcomes which I think have been counterproductive. Public opinion tends to focus on short-term outcomes such as mandatory and presumptive sentencing. I think the evidence is quite convincing that they’re expensive, ineffective, counterproductive and do not achieve the outcomes which is a reduced crime rate.
Steve Austin:
And democratic.
Arie Freiberg:
Democratic in the sense that they may be adopted by Parliament, but I don’t think that they necessarily reflect informed public opinion. I would like to believe that the policy proposals put forward by councils, whatever they are, do have the advantage of that considered policy option, including often costs, including effectiveness and fairness and efficiency. So it’s very difficult to directly attribute whatever those populist outcomes are, whether they be as a result of a particular crisis. We’ve not done a study which says ‘Here’s the ones that come directly from the public or the media and here’s the ones that come from us’, but, perhaps, that’s a study that we might follow-up in the long term.
Steve Austin:
I’m the Attorney-General. The Director-General of Treasury has said we’ve got 10 people on the Sentencing Advisory Council. ‘What do they do that your department, Attorney, reading through the decisions of Justice Atkinson and others, can’t tell me? We have experienced judges who are well paid and they reach informed decisions based on the evidence. Why can’t you get your sentencing guidance from people that are already in the system? Why do you need another group of bureaucrats?’ What’s the answer?
Arie Freiberg:
That’s a good question. First of all, we’re not bureaucrats. We are independently appointed from where we are and, as we’ve just heard, the important point there is none of our members represent their organisation. That is an important point. I wish I would have raised that originally. The police members do not represent the police force, the DPP people do not represent the DPP. Often we’ve had situations where they may, in fact, disagree with the views of their home department or home organisation. That’s important.
Secondly, there’s the question of independence. Now, many people here will have worked in the bureaucracy. You have to be a courageous person to tell the secretary or the director-general of the department or the attorney that ‘With all respect, with all due respect, Attorney-General, that that’s a load of bollocks that idea’, and I may be courageous, but I may want my job in the future, and we have very limited time to provide that advice.
A sentencing council, we can be sacked, we can be dismissed, we can be criticised, but we are not beholden to the organisation, and that is the Department of Justice.
Steve Austin:
Neither is Judge Robertson, neither is Justice Atkinson.
Arie Freiberg:
They are not providing policy advice because a judge will be deciding the cases in front of them. They may provide background advice. In fact, we have a wonderful relationship with our judiciary in Victoria, but very often they will not want to go on the public record because, first of all, as an organisation courts represent diverse numbers of people and so judges don’t believe, many judges don’t believe, it’s their role to talk about policy. When the law comes up, they will decide whether that law is valid or invalid or how it applies, but they are both constitutionally and culturally disinclined to get involved in policy debate.
So, yes, you might get information from the courts in the background, but institutionally unless you have a judge on the council, and this is what they do in UK and other places, there is a different place for that advice. I think it is a separate independent function from that advice provided by those who work for the department directly. I know a lot of people who work in the department. They can provide advice which may never be public. Our advice is public. If they want to sack us, they’ll sack us. Believe me, we don’t do it for the money.
Steve Austin:
What happened to the Titan Goddess Themis? She used to be outside the old court building. She’s down there somewhere. The Titan Goddess Themis. She stands in this court with a blindfold.
Arie Freiberg:
Yes. It’s a bit unfortunate, isn’t it?
Steve Austin:
Well, she was there in the ancient world to provide guidance on the ancient rule of conduct, of social behaviour. She would issue instructions about divine law. But she was blindfolded. In other words, she didn’t care about your gender and she didn’t care about your race because we’re equal before the Lord. There’s accepted social conduct in our society.
Why aren’t you blind to gender or race on the sentencing advisory council? Why do you think it’s important to have representation?
Arie Freiberg:
Yes, you’re right. Because in the application of law there’s a really major difference between formal equality and substantive equality. We can say all people are equal before the law, but we have an over-representation rate of Indigenous people of something like 30% or 50% in our prisons, many more police, prisoners, parole and the like. In the application of the law, society is not equal. I think we need to understand the different views of different groups in the community, different members because we bring different things to it.
So, yes we could say we are blind and we will have all men on the council. I think that would be formal equality. Tell me if that’s a representation of the community. I think she should take her blindfold off, actually, and have a good look at how society operates. It ain’t equal. It ain’t fair.
Audience member:
I believe the statue doesn’t have a blindfold down the road, correct me if I am wrong.
Steve Austin:
It doesn’t have a blindfold?
Audience member:
No. It doesn’t have a blindfold.
Steve Austin:
Okay. My mistake, sorry.
Audience member:
You talked about your role in providing courageous advice to bureaucrats, so the bureaucrats may not feel that they are able to do, particularly if they’re representing their agencies.
If I could draw a parallel that maybe political representatives, ministers don’t feel they can be courageous when facing their public who vote them in, who have opinions that may be belief-based.
Do you think that bodies such as yourself need to step up and have a far stronger educative role, advocacy role, to the public to, for instance, diffuse belief-based discussions about being tough on crime or hard on drugs or the opposite? Is there a gap in that discussion at the moment which is trapping governments into playing to the populous, that you guys probably could more effective counter?
Arie Freiberg:
Yes. that’s a really important question because the question of how we engage in the public discourse and there are a lot of areas that we can engage going out there, going on Steve’s program or other programs, especially those where the audience may not be sympathetic. So I go out of my way if I can to respond to requests from commercial radio where those mainstream views are probably better represented. We write articles for newspapers. I try not to get engaged myself in the day-to-day debate otherwise I’d spend my whole life responding to every headline, but often when we have done the research or done the reports, we have to go out and sell them and convince people that those evidence-informed policies are probably better than the ones that the populous might come up with. It’s difficult because it’s not a day-to-day battle.
The criminal justice discourse goes on every day in the media. We can’t be out there every day, but we can fill the gap in many ways that we can, but I think in some ways it’s a bit of a losing battle because unless you’re doing it every single day, you’re going to be overwhelmed. So we do have a role.
I think some councils do it differently. I know some councils overseas and in other places where they’re judicially led there is often a reluctance to get involved in the debate because of that cultural background. Some chairs are more activist or not in engaging in the public debate. I think that’s important. Some don’t do it at all. You know, we write our report and we don’t do it. So there are differences in the way councils do it.
The other thing, by the way, is we have a firm rule it’s only the chair that speaks for the council because although there’s a variety of views, what we don’t want is like the American juries, ‘Why did you? I disagreed with everybody else on that’. We have one voice. If it gives us any credibility, that’s it, otherwise we have a multitude of voices and people say ‘Well, we don’t know who to believe’, and then it sounds like Parliament.
Steven Austin:
Please thank Arie Freiberg.
That concludes the formal part of the event.
As with most events, we’re very keen to know what you think. Tomorrow morning you will receive an email in your inbox asking you to complete a short online survey. It should be clearly marked ‘Queensland Sentencing Advisory Council’. If you would fill it in, we would welcome your feedback so they can continue to try and improve these events. The survey really helps in finding out what’s useful to you and whether it worked or not.
I also want you to know that they’re in the final stages of planning for the next two events in this series. The seminars will focus on the over-representation of Aboriginal and Torres Strait Islander peoples in our prison system, something Arie addressed significantly. Also then on the work of the Royal Commission into Institutional Responses into Child Sexual Abuse. That would be worth registering for. They will be pretty significant topics, for obvious reasons, and details will be on the sentencing council’s website in due course.
Once again, thank you very much. Enjoy the rest of your day. I appreciate it.