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7 Appendices

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7.1 Appendix 1: Acknowledgements

The Aboriginal and Torres Strait Islander Social Justice Commissioner thanks the following people and organisations for their assistance in preparing the Social Justice and Native Title Report 2014:

Cath Brokenborough, Chair of Indigenous Engagement and Reconciliation
Lend Lease
Dr Valerie Cooms, Member
National Native Title Tribunal
Alice Cope, Executive Manager
Global Compact Network Australia
Eddie Cubillo, Executive Officer
National Aboriginal and Torres Strait Islander Legal Services (NATSILS)
Alistair Ferguson
Bourke Justice Reinvestment Project
Janine Gertz, Team Leader Community Engagement
James Cook University
Rosalind Hanf, Manager Registrar Directorate
National Native Title Tribunal
Sarah Hopkins, Chairperson
Just Reinvest NSW
Catherine Hunter, Head of Corporate Citizenship
KPMG
Nolan Hunter, Chief Executive Officer
Kimberley Land Council
Ian Irving, Acting National Native Title Registrar
Federal Court of Australia Registry
Dr Miriam Jorgensen, Research Director
Native Nations Institute, University of Arizona
Ian Kuch, Chief Executive Officer
North Queensland Land Council
Kathy Marks
  
Tony McAvoy, Barrister
Frederick Jordan Chambers
Lachlan McDaniel, Public Awareness Project Officer
Recognise
Dr Mark McMillan
University of Melbourne
Donna Mullins, Manager Corporate Citizenship
KPMG
Rob Powrie, Acting Principal Legal Officer
Kimberley Land Council
Robynne Quiggan
Australian Indigenous Governance Institute
Ben Schokman, Director of International Advocacy
Human Rights Law Centre
Melanie Schwartz, Senior Lecturer
University of NSW Law Faculty
Geoff Scott, Chief Executive Officer
National Congress of Australia’s First Peoples
Mathew Storey, Chief Executive Officer
Native Title Services Victoria
Dr Alison Vivian
University of Technology Sydney
Raelene Webb QC, President
National Native Title Tribunal
Jayne Weepers, Manager, Policy and Research
Central Land Council
Sgt Mick Williams
Bourke Justice Reinvestment Project
Strategic Policy, Health & Communities Division
Department of Prime Minister and Cabinet
Native Title Unit and Human Rights Policy Branch
Attorney-General’s Department
Office of the Queensland Premier
  
Queensland Department of Natural Resources and Mines
  

 

7.2 Appendix 2: Mandatory sentencing laws as at July 2014

State/

Terr
Overview
NSW
Crimes Act 1900 (NSW)
  • Crimes and Other Legislation Amendment (Assault and Intoxication) Bill 2014 (NSW)[605]
    • Commenced on assent on 31 January 2014
    • Inserts new ss 25A and 25B into the Crimes Act
    • Section 25A creates a basic and aggravated form of the offence of assault causing death
      • Section 25A(1) sets out the basic form of the offence
      • Section 25A(2) sets out the aggravated form of the s 25A(1) offence. A person aged 18 years or above who commits an offence under s 25A(1) whilst he or she is intoxicated commits an offence under s 25A(2)
    • Section 25B(1) sets a mandatory minimum for the offence
      • Provides that a court is required to impose a sentence of imprisonment of not less than eight years on a person guilty of an offence under s 25A(2)[606]
    • This offence of unlawful fatal assault, where the offender was intoxicated by alcohol and/or drugs when the offence was committed, has become known as ‘one punch’ laws[607]
    • The current proposals in NSW to introduce minimum sentences for alcohol-related violence have been both criticised[608] and commended[609] by members of the legal community
  • Crimes Amendment (Murder of Police Officers) Act 2011 (NSW)
    • Provides for mandatory life sentences to be imposed on persons convicted of murdering police officers in the course of his or her duty: s 19B


Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Section 61 sets out mandatory life sentences for certain offences[610]
VIC
Sentencing Act 1991 (Vic) and Crimes Act 1958 (Vic)
  • Crimes Amendment (Gross Violence Offences) Act 2013 (Vic)
    • Two new offences carrying a mandatory minimum non-parole period of four years for intentionally or recklessly causing serious injury in circumstances of gross violence:
      • Causing serious injury intentionally or recklessly in circumstances of gross violence: s 15A and 15B of the Crimes Act 1958 (Vic)
      • Custodial sentences must be imposed for offences of gross violence under ss 15A and 15B of the Crimes Act: s 10 of the Sentencing Act 1991 (Vic); special reasons relevant to sentencing for gross violence offences: s 10A
    • The new provisions will apply to offences committed after 1 January 2014[611]
NT
Sentencing Act 1995 (NT)
 
  • Sentencing Amendment (Mandatory Minimum Sentence) Act 2013 (NT)
    • Inserts five new levels of violent offence and their corresponding mandatory sentences: s 78CA
    • Introduces new mandatory minimum sentences of three or 12 months depending on the level of offence: sub-div 2
    • The mandatory minimum imprisonment terms apply when the court is sentencing an offender for specific violent offences
    • Adds more Criminal Code offences to Schedule 2 as violent offences. The offences listed in Schedule 2 can be taken into account to form a Level 1 to 5 offence or as a previous conviction for a violent offence (see footnote 7, Fact Sheet, for list of types of offences)
    • The new provisions commenced on 1 May 2013 - applies to offences committed after that date
  • Exceptions to the application of the mandatory sentences
    • Where a youth is sentenced under the Sentencing Act (and not under the Youth Justice Act), the mandatory minimum imprisonment terms do not apply, however, the court must still sentence the youth to actual imprisonment (i.e. the court has discretion as to the duration of imprisonment)
    • The mandatory minimum imprisonment terms may not apply if the court considers there are exceptional circumstances in the case of the particular offender, and the court must sentence the offender to actual imprisonment
    • Intoxication by alcohol or drugs is not to be considered as an exceptional circumstance[612]


Criminal Code (NT)
  • Mandatory life imprisonment for manslaughter: s 161
WA
Criminal Code 1913 (WA)
  • Criminal Code Amendment Act (No 2) 1996 (WA)
    • If a person is a repeat offender at the time of committing a home burglary, adult and juvenile offenders must be sentenced to a minimum of 12 months imprisonment: s 401(4)
    • In November 2001, the Government released a review of the provisions, which concluded that they had little effect on the criminal justice system[613]
  • Criminal Code Amendment Act 2009 (WA)
    • Mandatory sentencing for:
      • Serious assault: s 318A(2)-(5)
      • Grievous bodily harm: s 297(5)-(8)
      • Murder: ss 279(4),(6)[614]
  • Criminal Code Amendment Act (No. 2) 2013 (WA)
    • Extended the application of the above mandatory sentencing provisions to include assault and grievous bodily harm offences committed against youth custodial officers: ss 297, 318
    • The minimum term for adults ranges from six months to 12 months, while the minimum term for young persons aged 16 or over is three months imprisonment or juvenile detention, or an intensive youth supervision order (IYSO)
  • Criminal Organisations Control Act 2012 (WA)
    • s173 amends the Criminal Code
    • Minimum terms of imprisonment for adult offenders who commit certain offences at the direction of, in association with or for the benefit of a declared criminal organisation: ss 221E, 221F of the Criminal Code WA[615]
QLD
Corrective Services Act 2006 (Qld)
 
  • Criminal Law (Two Strike Child Sex Offenders) Amendment Act 2012 (Qld)
    • Imposes mandatory terms of life imprisonment (with a 20-year non-parole period) for repeat serious child sex offenders: s 181A


Penalties and Sentences Act 1992 (Qld)
  • Criminal Law (Two Strike Child Sex Offenders) Amendment Act 2012 (Qld)
    • Mandatory life sentence for repeat serious child sex offence: s 161E
  • Weapons and Other Legislation Amendment Act 2012 (Qld)
    • Minimum sentencing provisions in relation to some serious firearms offences:
      • Sentences of imprisonment between 12 months and 18 months for possession and use of a firearm in certain offences: s 50(1)(d)
      • Sentences of imprisonment from two and a half years for unlawful supply of weapons: s 50B(1)(d)
      • Sentences of imprisonment between three and a half years and five years unlawful trafficking of weapons: s 65


Vicious Lawless Association Disestablishment Act 2013 (Qld)
  • Provides for mandatory additional terms of imprisonment for ‘declared offences’ committed by ‘vicious lawless associates’ (VLAs): s 7


Criminal Code 1899 (Qld)
  • Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 (Qld)
    • Minimum terms of imprisonment of six months or 12 months for several new offences involving participants in a criminal organisation:
      • Participants in a criminal organisation, knowingly present in public places with two or more persons who are also participants in a criminal organisation: s 60A
      • Participants in criminal organisations entering prescribed places and attending prescribed events: s 60B
      • Participants in criminal organisations recruiting persons to become participants in the organisation: s 60C
  • The penalty for murder is mandatory life imprisonment or an indefinite sentence: s 305(1)
    • The effect of an indefinite sentence under Part 10 of the Penalties and Sentences Act 1992 (Qld) is that after the offender has served the minimum term for life imprisonment (either 15 or 20 years) the offender is subject to continuing incarceration and regular reviews
  • Mandatory life imprisonment for manslaughter: s 310
SA
Criminal Law Consolidation Act 1935 (SA)
  • Mandatory life imprisonment for manslaughter: s 13(1)


Young Offenders Act 1993 (SA)
  • The penalty for murder for a child offender is mandatory life imprisonment: s29(4)

 

7.3 Appendix 3: Declaration Dialogues: questions asked at workshops

Principle
Questions workshopped by participant groups at Declaration dialogues
Self-determination
  1. What do Aboriginal and Torres Strait Islander peoples mean by ‘self-determination’? What does this look like in a practical sense?
  2. What changes need to happen in communities to facilitate self-determination?
  3. What changes need to happen in the policy/legislative environment to facilitate Aboriginal and Torres Strait Islander self-determination?
Effective participation
  1. What changes do Aboriginal and Torres Strait Islander peoples feel are required to achieve better participation in the decisions that affect them?
  2. What does it look like when governments, service providers and businesses consult/do business respectfully?
Respect for and protection of culture
  1. What changes do Aboriginal and Torres Strait Islander peoples feel are required to achieve respect for and protection of culture?
  2. What positive behaviours can government and business make?
  3. What positive behaviours can communities make?
Equality and non-discrimination
  1. What changes do Aboriginal and Torres Strait Islander peoples feel are required to achieve non-discrimination and racial equality?

[605] Crimes and Other Legislation Amendment (Assault and Intoxication) Bill 2014.

[606] Judicial Commission of New South Wales, Special Bulletin 6, http://www.judcom.nsw.gov.au/publications/benchbks/sentencing/special_bulletin_06.html (viewed 16 July 2014).

[607] NSW Parliament E-brief, ‘Mandatory sentencing laws’, January 2014; Parliament of Victoria, Crimes Amendment (Gross Violence) Bill 2012 Research Paper. At http://www.parliament.vic.gov.au/publications/research-papers/8491-crimes-amendment-gross-violence-bill-2012 (viewed 25 June 2014); B O'Farrell, 'Lockouts and mandatory minimums to be introduced to tackle drug and alcohol violence' (Media Release, 21 January 2014); A Clennell, ‘Barry O’Farrell gets tough: mandatory sentences on the way for gang shooters’, The Telegraph (7 November 2013).

[608] M Whitbourn, ‘Lawyers condemn knee-jerk mandatory jail term changes’ Sydney Morning Herald, 22 January 2014; ‘”One-punch laws: mandatory sentences for drunken violence 'a recipe for injustice”, say NSW legal experts’, ABC News online, 23 January 2014. At http://www.abc.net.au/news/2014-01-22/one-punch-mandatory-sentences-27a-recipe-for-injustice27/5212462 (viewed 25 June 2014).

[609] M Bagaric, ‘New chapter for crime and punishment begins with a sentence from Barry O'Farrell’, Sydney Morning Herald, 23 January 2014.

[610] See http://www.austlii.edu.au/au/legis/nsw/consol_act/cpa1999278/s61.html for list of ‘certain offences’.

[611] Parliament of Victoria, Crimes Amendment (Gross Violence) Bill 2012 Research Paper. At http://www.parliament.vic.gov.au/publications/research-papers/8491-crimes-amendment-gross-violence-bill-2012 (viewed 1 October 2014); NSW Parliament E-brief, ‘Mandatory sentencing laws’, January 2014; Lawyers Picnic: a feast for fresh legal news, Mandatory Minimum Sentences for Gross Violence. At http://www.lawyerspicnic.com/mandatory-minimum-sentences-for-gross-violence/ (viewed 25 June 2014).

[612] Department of Attorney General and Justice, Sentencing Amendment (Mandatory Minimum Sentences) Act 2013 (NT), Fact Sheet. At http://www.google.com.au/url?sa=t&rct=j&q=&esrc=s&frm=1&source=web&cd=1&cad=rja&uact=8&ved=0CBwQFjAA&url=http%3A%2F%2Fwww.nt.gov.au%2Fjustice%2Fpolicycoord%2Fdocuments%2Flawmake%2F2013%2FFact_sheet_Sentencing_Amendment_(Mandatory_minimum_sentences)_Act_2013.pdf&ei=ARTHU_q9Gc768QXAh4CwBA&usg=AFQjCNHaOVYlWXyoj6VCpykODZnvAv1ffw (viewed 1 October 2014); NSW Parliament E-brief, ‘Mandatory sentencing laws’, January 2014, p10.

[613] The findings of the review are outlined in more detail in R Johns, Sentencing Law: A Review of Developments in 1998-2001, NSW Parliamentary Research Service, Briefing Paper 2/02, January 2002, p76-78.

[614] Criminal Code Act Compilation Act 1913 – notes (WA), ss 279(4),(6). At http://www.austlii.edu.au/au/legis/wa/consol_act/ccaca1913252/notes.html (viewed 1 October 2014).

[615] NSW Parliament E-brief, ‘Mandatory sentencing laws’, January 2014, pp 8-9; Criminal Code Act Compilation Act 1913 – notes (WA), above, ss 221E, 221F.