Tuesday, 29 November 2005: Federal sentencing laws and procedures require a major overhaul, recognising that the federal criminal justice system has expanded and matured in recent decades, the Australian Law Reform Commission said today.
ALRC President Professor David Weisbrot said “the ALRC is proposing four major structural changes that may be seen as controversial, but represent logical responses to the problems we’ve found and are necessary to meet the significant new demands being placed on the federal criminal justice system”:
- the introduction of a new, dedicated Federal Sentencing Act;
- the expansion of the role of the Federal Court, to provide for original (trial) jurisdiction for specified federal crimes and to enable it to act as a national court of criminal appeal in federal matters;
- the creation of an Office for the Management of Federal Offenders to monitor federal offenders and liaise more actively with state and territory authorities; and
- the establishment of a new Federal Parole Board, similar to those operating in all states and territories.
Prof Weisbrot’s comments were made as the ALRC released a Discussion Paper—Sentencing of Federal Offenders (DP 70)—as part of its review of federal sentencing laws and procedures. The Discussion Paper contains 140 proposals for reform, which will be subject to further consultation and debate before a final report and recommendations are presented in early 2006.
“In the past, federal offending was largely limited to such crimes as drug importation, and tax or welfare fraud. But the system has grown—the reach of federal criminal law is now much broader, including such new offences as terrorism, illegal fishing, people smuggling, child sex tourism and sexual slavery.”
Prof Weisbrot said that because the federal criminal justice system originally was very small, it traditionally has ‘piggybacked’ on the state and territory judicial and correctional systems.
“This means a federal offender in one state or territory may serve a sentence in a very different way to a person who committed the same crime in similar circumstances, but in a different part of Australia. States and territories also have varying approaches to sentencing options, probation and remissions and these affect the options available to federal offenders.
Prof Weisbrot said a new Federal Sentencing Act would provide a more logical structure for sentencing laws, and would be drafted in much clearer terms than the existing parts of the federal Crimes Act.
“Federal crime forms only a small part of the typical caseload of a state or territory judicial officer, so it is especially important that federal sentencing laws can be easily located, understood and applied.”
Commissioner-in-charge of the inquiry, Mr Brian Opeskin, said the ALRC had held more than 60 meetings around Australia with a diverse range of interested parties, and received over 50 written submissions, since the inquiry commenced in July 2004.
“Judges and magistrates consistently emphasised that they wanted a wider range of federal sentencing options to deal with the circumstances of each case,” Mr Opeskin said.
“Some options that are available in state and territory jurisdictions—such as the rehabilitation programs offered through state Drug Courts—are simply not available to federal offenders. Other options such as periodic or home detention are only available to some federal offenders, depending on where the sentencing takes place. That’s clearly not fair.
“We also contacted about 2000 federal offenders, including about 700 in custody, and received more than 200 replies. Federal prisoners consistently expressed concerns about the lack of information about parole, transfer to another jurisdiction, and access to the relevant federal legislation.
Mr Opeskin said a major jurisdictional change proposed by the ALRC is to give the Federal Court a bigger criminal caseload. “At the moment, the Federal Court does very little criminal work; however, its civil caseload in areas such as taxation, trade practices and corporations means it already specialises in much of the law associated with federal crimes. Many Federal Court judges already have backgrounds in criminal law as practitioners or as state court judges.
“We’ve also floated the idea of taking appellate jurisdiction for federal criminal matters away from state Courts of Criminal Appeal and giving it to the Full Court of the Federal Court. We believe this would help promote consistency of principle and practice among the states and territories in federal sentencing. While the High Court can do this, in practice very few federal sentencing matters reach the High Court.”
Mr Opeskin said that the ALRC has proposed the establishment of an Office for the Management of Federal Offenders (OFMO), to give the federal Government a much more active role in monitoring and managing federal offenders.
“Because federal offenders sentenced to terms of imprisonment are committed to state and territory prisons, procedures vary depending on where they are being held. We’ve heard that breaches of parole or licence are dealt with differently around Australia . The OMFO also would be responsible for ensuring better information and statistics are kept on federal offenders, and for supporting the proposed new Federal Parole Board.
“The Federal Parole Board would ensure that decisions about releasing federal prisoners are made in an open and transparent manner, with an opportunity for the prisoner to be heard. Currently, decisions on prisoner release are made by a departmental officer, based on a review of the prisoner’s file,” Mr Opeskin said. “There is no evidence that poor decisions are being made; rather, we believe that public confidence in the system requires a better process, as recognised in the states and territories.”
Other significant proposals raised in the Discussion Paper include:
- facilitating the use of victim impact statements and pre-sentence reports in federal sentencing;
- introducing a ‘Sentence Indication Scheme’, to allow federal offenders to seek an indication of their sentence, if they pleaded guilty and avoided a costly court trial and possible distress to the victim and witnesses; and
- encouraging specialisation within the state and territory courts, so that judges and magistrates can become more familiar with using complex federal laws and procedures.