Thursday, February 19, 2009

Draco would be proud

For the second time in a week, the Attorney-General has been forced to announce in the House that a key piece of government legislation is inconsistent with the Bill of Rights Act [PDF]. This time its the Sentencing and Parole Reform Bill, which would implement ACT's "three strikes and you're in" policy by imposing a mandatory sentence of life imprisonment with a 25-year non-parole period for a third specified violent offence. Where this would be "manifestly unjust", the court may impose a shorter non-parole period, but must still sentence the offender to life imprisonment.

The problem, of course, is that in many cases this sentence will be grossly disproportionate to the offence - and so outrageously so as to violate the BORA ban on disproportionately severe treatment or punishment (to which the normal "justifiable limitations" clause does not apply - there being no conceivable justification for torture, cruelty, or grossly disproportionate punishment). Even in cases of "manifest injustice", the law requires the courts to confirm rather than mitigate that injustice. In addition,

Absent manifest injustice [and even with it in most cases - I/S], the sentencing court is obliged to impose a sentence on a qualifying offender that may be significantly more severe than that imposed on a more culpable, but non-qualifying, offender. As a result, the scheme does not ensure a consistently rational connection between the offence and the penalty.
Instead, the Attorney-General points out that every specified offence is already subject to a possible sentence of preventive detention. Preventive detention is itself a violation of the BORA ban on arbitrary detention - but what's scary is that this proposed scheme makes it look good by comparison. At least with preventative detention the courts have to be satisfied of a significant and continuing risk of reoffending; here, they just have to say "you're a crim", and that's the end of it. So far, the courts have been reluctant to make declarations of inconsistency. But this law, engaging as it does a key part of the BORA which does not permit "justified limitations", seems designed to force them to it.

This is a bad law. it violates the BORA, it violates our international obligations under the ICCPR, and it violates basic standards of justice and decency. Instead, we seem to be codifying savagery and cruelty. Draco would be proud.