Mr. Ackland on the work of The Hon. David Levine Q.C.

http://www.smh.com.au/opinion/triumphs-and-disgraces-of-law-and-order-20090402-9kwo.html?page=-1

Mr. Richard Ackland has an opinion piece in today's Sydney Morning Herald on The Hon. David Levine Q.C., a former barrister and Supreme Court judge who is the Chairman of N.S.W.'s Serious Offenders Review Council (S.O.R.C.), which

has the job of recommending the classification and placement of about 700 of the state's most serious prison inmates. These are people who typically have minimum prison sentences of 12 years.

Mr. Ackland reports that

After three years of SORCing, Levine questions how much good is being done by keeping a lot of prisoners locked up for longer and longer. "I fail to see the purpose that is served by any sentence longer than 20 years." There are some notable exceptions.

Only “some notable exceptions”? The problem is his rule, not the exceptions. Does Mr. Levine seriously think that it is not a fitting rule that murderers, rapists and other criminals of similar notoriety should not in general, as a matter of strict legal justice, serve more than twenty years in gaol? Indeed, for many of these offenders a custodial sentence would be inadequate retribution; in many of these cases the death penalty ought to be imposed.

Next, Mr. Ackland brings up

the case of Andrew Kalajzich, who was convicted in 1988 and sentenced to 28 years for the contract killing of his wife. He still has more than 2½ years before he is eligible for parole. "What is the point of it?" Levine asks. Will the extra years enhance Kalajzich's redemption, rehabilitation or make society safer?

So the offender is a man who has murdered someone—it makes no difference whether the instrument he uses is the murder weapon or a contract killer—and yet Mr. Levine appears to think that Kalajzich should not even serve twenty-eight years in gaol. If we as a society were serious about keeping the scales of justice in balance then Kalajzich should have hanged, yet Mr. Levine—who worked as a jurist, whether judge or barrister, for almost forty years—can see no point in Kalajzich even serving a (manifestly inadequate, but better than a lesser sentence I suppose) full twenty-eight years in gaol. Mr. Ackland asks rhetorically “[w]ill the extra years enhance Kalajzich's redemption, rehabilitation or make society safer?”, but he seems to ignore a fourth—but the most important of all—criterion (or at least, ignores the key aspect of the redemption criterion): the need for the offender to pay in full his debt to society, a debt that requires that he offers adequate satisfaction in retribution for his crime, which was clearly among the most serious of all crimes. The essence of justice is to render to each what he is owed (and clearly Kalajzich owes a good deal more than just twenty-eight years of his life when he has taken life itself away from his own wife) yet this seems not to matter greatly, or even at all, to Mr. Ackland, and whether or not it matters to Mr. Levine it seems that, if indeed it did matter, he thinks that somehow a mere twenty-five or so years for murder is enough to satisfy justice.

Mr. Ackland goes on to say that

Levine's point is that there is a growing proportion of prisoners whose departure from jail should be expedited but under the current punitive penal model, which has always been the case in NSW, there is fat chance of that.

But since reward and punishment are simply justice as applied to the doers of good deeds and bad deeds respectively, it is entirely proper that the justice system’s model should be punitive and penal. Sadly though, it is questionable how widely within the present-day legal fraternity one would find assent to this basic principle of true justice; as I have noted in other posts, the utilitarian, positivist ‘restorative justice’ philosophy is very much in vogue now. Certainly one expects that there would be much in this philosophy with which Mr. Ackland and Mr. Levine, both of whom are fairly high-profile and influential jurists, would agree.

Reginaldvs Cantvar
Feast of Our Lady of Compassion, A.D. 2009

Mr. Ackland and others on an Australian bill of rights

http://www.smh.com.au/opinion/human-rights-dialogue-develops-a-stutter-20090312-8wcd.html?page=-1
http://www.smh.com.au/articles/2009/03/13/1236919563684.html?page=fullpage#contentSwap1
http://blogs.theaustralian.news.com.au/letters/index.php/theaustralian/comments/rights_charter_a_rewrite/

Mr. Richard Ackland had an opinion piece in last Friday’s Sydney Morning Herald on the prospective Australian bill or charter of rights. In this piece he reported on the pro-charter views of former High Court judge The Hon. Michael McHugh A.C. Q.C.:

Far better and constitutionally stronger [than a specified ‘dialogue model’ of rights legislation], McHugh says, to adopt the 1960 Canadian model of a legislative bill of rights, and use it to give effect to the International Covenant on Civil and Political Rights.

This would create a "judicially enforceable" regime with remedies for breaches of rights. However, politicians could still stay in charge by inserting "notwithstanding" clauses into legislation to remove provisions from the need to be compatible with a human rights act.
(http://www.smh.com.au/opinion/human-rights-dialogue-develops-a-stutter-20090312-8wcd.html?page=-1)

Now how bizarre is that—a human rights charter that Parliament can override at will. What could the point of such a charter possibly be if Parliament can override it with such ease?!

The next day the Herald published a letter from Ms Catherine Branson, the President of the pro-charter Australian Human Rights Commission, in which she mentioned a couple of other possible features of an Australian charter of rights, as well as the one that Mr. Justice McHugh mentioned:

A declaration of incompatibility is only one possible feature of such an act. Others include requiring Parliament to scrutinise the human rights impact of new laws; requiring courts and decision makers to interpret laws consistently with human rights; and providing enforceable remedies for actions of public authorities that breach human rights.
(http://www.smh.com.au/articles/2009/03/13/1236919563684.html?page=fullpage#contentSwap1)

I suppose that the first feature—requiring Parliament to scrutinise the human rights impact of its legislation—is pretty unobjectionable, but even to a non-jurist such as myself the second proposed feature—requiring courts to interpret laws consistent with legislated human rights—seemed rather odd. The Australian’s letters section of the same day showed that I was not alone in my concern:

Such a move would destroy any certainty about the future meaning of any federal law.

A ruling by a possibly idiosyncratic High Court judge could decide that the plain meaning of a certain wording was incompatible with the ICCPR’s [International Covenant on Civil and Political Rights’s] interpretation, and therefore must be interpreted to mean something else. This has already happened in the UK and the ACT.
(http://blogs.theaustralian.news.com.au/letters/index.php/theaustralian/comments/rights_charter_a_rewrite/)

wrote one Roslyn Phillips. The third proposal—enforceable remedies for human rights breaches—also seems rather dubious to me, especially since, as Mr. Justice McHugh acknowledges, Parliament could simply opt out of it at will! It seems to me that the pro-charter lobby is already scraping the bottom of the barrel (and here we are only talking about how a charter of rights would operate—no-one even knows yet what rights such a charter would contain).

Reginaldvs Cantvar
16.III.2009 A.D.

Mr. Ackland and Mr. Croome on an Australian Bill of Rights

http://www.smh.com.au/news/opinion/richard-ackland/charter-foes-tilting-at-scary-straw-monsters/2008/12/04/1228257224294.html?page=fullpage#contentSwap1

Mr. Richard Ackland has attacked what he regards as some of the straw men that have have cropped up in the re-ignited debate over having a Bill of Rights in Australia. He notes that

There are lite versions [of a bill of rights] already in existence in Australia - in Victoria and the ACT.

Nothing terrible has happened in those places. The judges have not usurped the power of Parliament, litigation has not exploded, confusion does not reign, the jails have not been emptied of criminals.

In Victoria, courts may find a provision in an act or regulation incompatible with a charter right. That's it. There is an obligation then on the relevant minister to prepare for Parliament a written response to the court's declaration. The responsibility rests with the politicians, who can repeal, amend or leave untouched the provision found to be incompatible.

The question is, then: if having a bill of rights won’t change anything then why are we bothering? I suppose I shouldn’t underestimate the liberals’ love of symbols, whether or not there’s any substance beneath them, as we were reminded at the time of the big apology of February this year. But there’s something that I find troubling about people clamouring for this kind of legislation while soothing the skeptics with assurances that it won’t actually do anything. Think of what a certain Mr. Rodney Croome had to say in The Weekend Australian on Saturday:

IN the early 1990s, Tasmania was the last Australian state and one of the few places in the Western world to punish homosexuality with a jail term, yet neither the state nor federal parliaments seemed able to act on this embarrassing human rights abuse.

Only after the offending Tasmanian laws were roundly condemned by the UN Human Rights Committee as a violation of the International Covenant on Civil and Political Rights were these laws overridden federally and then repealed locally.

In other words, it took a foreign tribunal judging a global charter of rights to do what Australia’s parliaments could not do.

This history exposes as a lie the case that parliaments alone can protect human rights.

It also shows that the debate is not about whether we should have an Australian charter of rights—the International Covenant is already our defacto
charter.

The debate is whether it’s sufficient for Australians to be judged by a tribunal we didn’t appoint under a covenant we didn’t design, or whether human rights violations should be judged by Australian judges according to standards set by Australians.

For me there’s no doubt; I’m for bringing human rights home.
Rodney Croome
South Hobart, Tas
(http://blogs.theaustralian.news.com.au/letters/index.php/theaustralian/comments/bring_human_rights_home)

(Fortunately the redoubtable Mr. Henk Verhoeven saved me the trouble of having to submit a comment at that blog by reminding readers that “No, Rodney Croome, Tasmania was NOT the last Australian state to punish homosexuality with a jail term! It was a homosexual act such as sodomy, not homosexuality, that could attract a jail term.”) When the Sodomites’ League is all for something one knows it’s the sort of thing that one wouldn’t want to touch with a barge pole.

Reginaldvs Cantvar
9.XII.2008 A.D.

Mr. Ackland on criminal justice

http://www.smh.com.au/news/opinion/richard-ackland/media-are-tough-on-crime-and-rough-on-justice/2008/10/23/1224351445261.html?page=fullpage

Mr. Richard Ackland had an opinion piece in last Thursday’s Sydney Morning Herod on supposed public misconceptions about matters of criminal justice. He writes that

In fact, the proportion of people being sent to jail in the major serious crime groups has been rising for seven years.

Just take a few examples. In sexual assault and related cases, 16 per cent of those convicted went to prison in 2000. Last year it was more than 24 per cent. In robbery cases 25.8 per cent of offenders were imprisoned, and last year that had risen to 45.3 per cent.

but fails to mention what sentences were handed down and whether those sentences were intended as punishments for the satisfaction of justice, or whether the punishment was merely a means to deterring or reforming the offender. But even if we just examine it as the bare question of whether or not a conviction was achieved, one has to ask: conviction for what crime? For another way in which the so-called justice system has institutionalised injustice is by the system of ‘plea bargains’ whereby one may plead guilty to a lesser crime in order to guarantee the prosecution a conviction, any conviction. A better way to balance the need to economise on court costs with the need to punish the offender as fully as retribution requires would be the following offer:

Plead guilty to the charge of which you know you are guilty and you will receive the penalty that fits that crime. Plead not guilty and if you are found guilty then you receive the penalty for your original crime, plus you will be prosecuted for the crime of perjury and thereby receive an additional penalty.

That way a differential between the penalty for a guilty plea and the penalty for a not guilty plea that fails, or, if you will, between the pay-offs for compliance and non-compliance, is maintained, while justice will certainly be satisfied in the case of an unsuccessful not guilty plea according to my proposal, whereas it might not be under the equivalent outcome in the prevailing method.

Reginaldvs Cantvar
Feast of Ss. Simon and Jude, Apostles
Memorial of Alfred the Great, 2008 A.D.