(Motion, 29 May 2014, Legislative Assembly, NSW Parliament)

I move:

That this House agrees that:

(1) Judicial independence is necessary to the rule of law and the separation of powers and is a fundamental requirement for a fair trial.

(2) As a member state of a State Party to relevant United Nations instruments, New South Wales must apply basic principles on the Independence of the Judiciary including respect for and observance of that independence and allowing the judiciary to decide matters impartially and without inappropriate restrictions or influence.

(3) Broad sentencing discretion allows the courts to consider all relevant circumstances surrounding an offence, the offender and the victim to ensure the punishment fits the crime and the criminal, and reflects the community's sense of justice.

Courts are charged with the ultimate decision over the freedom, rights, duties and property of accused persons. Protecting the innocent and ensuring punishment fits the crime are fundamental to a liberal democracy, and these are only possible if the courts exercise decision-making powers fairly by considering all relevant information, with final decisions made independently and without interference or influence. Everyone has the right to a fair trial, and that is important to decisions on both conviction and sentencing. A fair trial can only be achieved with an independent judiciary that has full discretion.

Judicial independence is a vital part of the separation of powers, which is central to the rule of law in Australia. The separation of powers divides the institutions of government into three branches: the Legislature, which makes the laws; the Executive, which puts the laws into operation; and the judiciary, which interprets the laws. Each has separate powers and functions to avoid a concentration of power in any one arm of government. Parliaments should not set laws that force courts to make specific decisions because it takes away the courts' ability to ensure decisions are fair and that they reflect the nature and severity of a crime. Australia is a member state of the United Nations and party to its instruments. As such, New South Wales is required to apply basic principles including those on the independence of the judiciary that enable it to decide matters impartially and without inappropriate restrictions or influence.

Under the United Nations Congress on the Prevention of Crime and Treatment of Offenders we must enshrine judicial independence; ensure the judiciary decides matters impartially based on facts without restriction, improper influence, pressure, or interference; and ensure the judiciary has jurisdiction over all judicial issues. Our human rights obligations require access to a fair and public hearing by a competent, independent and impartial tribunal, and prevention of arbitrary imprisonment and access to sentence reviews by a higher tribunal. Arbitrary imprisonment can occur if a sentence does not reflect the true nature and circumstances of a crime.

Like many in the community, I have been concerned by mandatory sentencing laws in this State where Parliament has set a minimum sentence for someone convicted of the murder of a police officer or of intentionally hitting someone while intoxicated resulting in death. When these laws were introduced there was a barrage of verbal attacks on the judiciary by members of both sides of this House and by some in the media based on a small number of cases. Targeting judges is unhelpful. In order to ensure a fair trial, judges are not meant to take into consideration what is being said in the media. Instead, we need to educate people about the importance of judicial discretion in creating a fair and equitable society. We need to educate them about how judges determine a sentence and why sentences sometimes seem lenient. And we need to trust the courts' extensive appeal system.

Justice requires that the punishment fit the crime. This can only be done if courts have broad sentencing discretion that allows them to base a sentence on all relevant circumstances surrounding an offence, the offender and the victim. When parliaments set minimum sentences, prison terms become inflated. Depriving people of their freedom is a serious thing that should not be treated lightly. It should be done only through a fair and independent trial based on the merits of the case. An unjust and excessive sentence can ruin a person's life. We cannot predict every scenario that is relevant to a case, so it is wrong for parliaments to play judge. Courts and the judiciary must remain independent from Parliament and the Executive, and have the discretion to consider all relevant circumstances. That is fundamental to our international obligations and to ensuring everyone has access to a fair trial. I commend the motion.