PRESIDENT’S COLUMN
Mandatory sentencing
By Phillip Boulten SC
actual bodily harm and affray. If
every intoxicated person convicted
of these offences each year had
to serve a minimum of two years
imprisonment (as was proposed),
the state’s prison population would
escalate by at least 1000 per year.
A conservative estimate of the
cost of this proposal was 1.5 billion
dollars.
In January the then premier, Barry
O’Farrell, announced a range
of important policy proposals
in response to widespread and
strongly held community views
about alcohol related violence
in Sydney and Kings Cross. The
proposals were unexpectedly
broad. Surprisingly, the premier
announced a 1.30am ‘lock out’ and
3am ‘last drinks’ in Kings Cross and
the CBD. Much more predictably,
the premier also announced a large
number of proposed mandatory
sentences that would apply to
violent offences when committed
whilst intoxicated.
There was no community
consultation about the
mandatory sentences. The Law
Reform Commission’s extensive
discussion paper on the reform of
sentencing law was delivered to
the government late last year. The
Law Reform Commission has not
mentioned mandatory sentences in
their discussion paper.
Initially, the list of offences
that would attract mandatory
sentences included assaulting a
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The Bar Association and the
Law Council of Australia have
always opposed mandatory
sentences. The removal of judicial
discretion negates the concept of
individualised justice. At the very
time that the US Senate Justice
Committee began the process
of winding back mandatory
sentences for drug offenders, the
New South Wales Government
decided it would embrace the
concept.
There was no community
consultation about the
mandatory sentences.
Media interest in the topic was
high. I began to spend more time
on the radio than I did in court.
The legal profession was the only
prominent contradictor in the
argument. Over time, though, the
arguments against mandatory
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traction.
The parliament met in February
and on one day created a new
offence of unlawful homicide that
carries a mandatory minimum
sentence of eight years. But, the
government’s further proposals
for mandatory sentences met with
strong opposition in the Legislative
Council even after assaulting
police, assault occasioning actual
bodily harm and affray were
dropped from the list of offences
that would carry mandatory
sentences.
The opposition with the support
of the Greens and the Shooters
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Crimes Amendment (Intoxication)
Bill, eliminating the concept
of mandatory sentences for
the various offences on the
government’s list and creating
another new offence of gross
alcohol fuelled violence that
mirrored a similar proposal in
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degree of judicial discretion on
sentence.
The government rejected the
amendments twice and at the time
of writing, the original bill is due to
be reconsidered by the Legislative
Council a third time.
It is because the bar is actually
independent and free of obligation
to any political power, movement
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the legislative process. When we
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of laws we always act in what we
perceive to be the public interest.
Whenever we ask the government
to listen to us we must be guided
by principle and the greater
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SC or QC?
By 2013 a national conformity
about the title of senior counsel
had been achieved. Every
state and territory and the
Bar News | Autumn 2014 | 3
PRESIDENT’S COLUMN
We have had a very widely recognised and respected system
of appointing senior counsel in NSW for more than 20
years.
Commonwealth itself appointed
senior counsel and not queen’s
counsel. Last year the Queensland
Bar enthusiastically responded to
an invitation from their attorney
general to revert to QC. In
February this year, the Victorian
Bar Council resolved to give
senior counsel the option of being
QC or SC.
In our state we have had no
option since the government
amended the Legal Profession
Act to effectively abolish QC in
NSW. We have had a very widely
recognised and respected system
of appointing senior counsel in
NSW for more than 20 years. For
most of that time we were on our
own in this regard. None of us
operated under any measurable
market disadvantage at any point
in that history.
As a result of the Queensland and
Victorian developments, the Bar
Council established a working
group to advise it about the
advantages and disadvantages of
reverting to QC. This group was
chaired by Bill Priestly. It received
more than 200 submissions from
our members. The submissions
and the opinions of the members
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a stark and deeply held division
amongst us about reversion to
QC.
At the time of writing the Bar
Council had yet to consider
the working group report but,
irrespective of its decision on
the issue, many people will be
unhappy. Of course, the issue
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by the bar. Ultimately, if there
is to be reversion, it will need
legislative change.
Like any political advocacy that
the bar engages in, any approach
to the government needs to
focus on public interest issues. To
revisit ‘QC’ in NSW, the bar will
need to convince both houses
of parliament that the public will
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The Bar Child Care Initiative
This month I was honoured to
be able to launch the new child
care initiative for members of the
Bar Association. We conducted a
survey of our members and found
strong support for the association
facilitating access to child care.
As a result, we have entered
into an agreement with Jigsaw
Corporate Childcare to underwrite
the cost of a number of childcare
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facilities in the CBD. Parents
increasingly struggle to juggle
work and child care burdens.
The waiting lists for placements
in child care facilities are almost
as long as the waiting list for
membership of the SCG. We have
places reserved for barristers and
their staff.
I foresee great demand for the
existing places and growth in the
arrangement.
Corrections
Page 84 of Bar News Summer
2013-­14 included an article on
the swearing-­in ceremony for
the Hon Justice Darke. The
article referred to his Honour
as ‘the Bar Association’s
representative’ on Justice
Sheahan’s inquiry into workers
compensation common law
matters in 2001. This was
4 | Bar News | Autumn 2014 |
incorrect. Justice Darke was
counsel assisting the inquiry.
Bar News regrets any confusion
this might have caused.
***
Page 5 of Bar News Summer
2013-­14 featured a group
photograph of barristers
in the Bar Practice Course
02/13. The caption misspelt
Ramesh Rajalingam. Bar News
apologises to Mr Rajalingam.