Law Society disappointed by lack of consultation
16 February 2017
The President of the ACT Law Society, Sarah Avery, today expressed disappointment at the retrospective legislation passed by the Legislative Assembly today that attempted to ensure the validity of certain decisions made in relation to Intensive Correction Orders (ICOs).
The legislation, the Crimes Legislation Amendment Bill 2017, was passed through the Legislative Assembly today having been introduced just before the adjournment last Tuesday.
“It appears that over three months ago, the Justice and Community Safety (JACS) directorate realised that certain delegations had not been put in place under the Crimes (Sentence Administration) Act 2005 and the Crimes (Sentencing) Act 2005,” said Ms Avery. “This means that at certain times following the introduction of ICOs as a sentencing option in the Territory, some directions given by corrections staff to offenders subject to an ICO may have lacked proper legal authority.
“The government decided to enact retrospective legislation in an attempt to place the validity of those directions beyond question and avoid any potential litigation by offenders serving an ICO who may have been affected by an unauthorised direction.
The Society understands that some offenders may have been taken into custody on a decision of the Sentence Administration Board (SAB) as a result of directions given by corrections officers who were not lawfully authorised to give those directions.
The retrospective operation of the legislation means that such people, having been detained, apparently have no redress.
It is not known how many offenders may have been sent to gaol illegally or why those affected (and their legal representatives) were not informed of the problem.
The Society is concerned by any retrospective legislation and does not accept the government’s view that the amendments are simply a technical or administrative fix.
It is important to maintain confidence in our law makers. In the past, this confidence has been built on frank and open communication between the government, the Society, legal practitioners, and the legal community in the ACT.
The apparently secretive way in which this matter has been handled adds to the Society’s existing concerns regarding the operation of ICOs. At the time of their introduction, the Society opposed the administration of breaches, suspensions and cancellations of ICOs by the SAB rather than the sentencing court.
The rule of law is fundamental to justice in the ACT. Equally fundamental is a person’s liberty and the right of citizens not to be detained except by lawful process.