For too long Australian citizens have endured the flawed Socialist concept of mollycoddling criminals. Once a person is convicted of a crime they should be subject to punishment and rehabilitation commensurate with the crime.
We recognize that changing our legal system is something that should only be undertaken with the utmost care. The following policies are designed in such a way that they will eliminate our Common Law, which protect some of our basic freedoms. So we need to consider other ways to protect our freedoms. We believe this can be done by enshrining our freedoms within the Constitution where they can only be changed by the People voting in a referendum.
Therefore, we have presented these ideas for your consideration in the hope that they will inspire you and future generations to seek a better system of justice.
These policies should be implemented only after the previous changes we propose have been passed into law. The idea is to create a better Justice system slowly and carefully. The following policies provide a framework for all Australian citizens to consider before voting in a carefully considered series of referendums. We need enough time to change the legal infrastructure, including education, so that the system can be put into place with the least disruption taking place.
All Citizens have a right to natural justice. This right should be enshrined in our Constitution. It should not be interpreted as a restriction on fundamental human rights.
- All citizens should understand that with every right there is a complementary responsibility.
- The exercise of individual rights must be constrained by the necessity not to infringe the rights of others.
- Fundamental human rights must be protected throughout the entire society and in particular throughout the justice system.
Our Policies:
- The Constitution shall be amended by the People voting in a series of carefully considered referendums to establish a series of Courts, a Judicial Ombudsman, a Judicial Commission and Mediators of the Peace. We will initiate a referendum to change the Constitution to establish the Basic Laws of Australia.
- The aim of the justice system is to ascertain the facts of a matter and to administer justice. The law shall be a secondary consideration in the administration of justice. Precedent shall play no part in matters before the courts except that judges shall be expected to maintain consistency in sentencing and shall be assisted in this with a “Sentencing Code of Practice”. This means that our courts will operate in an entirely different way. Instead of common law and precedent dominating in our courts; ascertaining the facts of any matter before the court will be the primary focus. The law will be based on Constitutional and Statute Law to form the basis of decisions. In deciding cases before them judges will ascertain the facts and make decisions based on delivering justice.
- Most crimes against society shall be prosecuted as crimes against the Constitution. Criminal behaviour not foreseen in the Basic Laws of the Constitution shall be included by amending the Constitution. The idea here is to eliminate reams of statute law that the People have no hope of knowing. The basic laws in this Constitution can be learned and understood by all.
- Statute law shall be used to define criminal behaviour only as an interim measure and when a Constitutional amendment is considered impractical. Examples of impracticality include laws requiring voluminous caveats or explanations and laws applicable for a limited time.
- Persons violating the laws of Australian society shall be tried in Australian Courts established by the Constitution.
- Penalties shall be imposed according to the dictates of justice and shall range from Admonition to Life in Prison.
- Judges shall take a criminal record into consideration when passing sentence.
- Persons re-offending shall be sentenced to double the normal punishment.
The Courts
- The following courts shall be established
- Australian Constitutional Court
- The Appeal Court
- Supreme Court
- Corporations Law Court
- Industrial Relations Court
- Family Law Court
- Court of Petty Sessions
- Small Claims Court
- All courts except the Constitutional Court and the Appeal Court shall operate on a common set of Standing Orders and there shall be no jurisdictional boundaries. An imbalance of workload shall be corrected by transferring cases to other courts.
- Courts shall deal with all aspects of cases before them regardless of whether National or Regional jurisdiction is involved. These arrangements are to ensure the expeditious execution of court proceedings.
- Court judgments in criminal cases shall include compensation and restitution for victims as appropriate. The assets of convicted persons shall be used for restitution and compensation whenever possible.
- Legislation shall provide the courts with guidelines for damages, costs and compensation for litigation cases; and with minimum and maximum sentences for criminal cases. Legislating guidelines for damages, costs and compensation allows the community to exert an influence. For example, fines and prison time could be equated to assets/money stolen or defrauded such that if fifty times Average Weekly Earnings is stolen then fifty weeks prison plus punishment time could be the sentence. Legislating for minimum and maximum sentences is an improvement on current practice in which only maximum sentences are set. This allows the community to react to prevalent criminal behaviour and send a strong message to potential offenders.
- Judges shall conduct cases before the courts. This means cases shall not be conducted by barristers as is currently the case.
- There shall be provision for the appointment of up to three judges to hear specific cases. This is designed to assist with the resolution of complex cases and those involving highly technical information.
- Judges shall direct police investigations, call witnesses, and cross-examine defendants, witnesses, litigants and respondents and seek out the truth in whatever manner deemed appropriate commensurate with the rights of the individual.
- Legal Counsel for the Prosecution, the Defence, litigants, respondents and for victims shall have the right to suggest questions and make submissions to the judge and present witnesses but shall not conduct cross-examination.
- Prosecutors, Legal Counsel, defendants and litigants shall sign an affidavit when they are ready to proceed on any case. Judges shall grant adjournment only in exceptional circumstances. This means that litigants cannot impoverish respondents by continually postponing hearings etc.
- An accused person shall be regarded as innocent unless and until judged guilty. This means that, unless the prosecution can persuade the judge that release of the accused would pose a threat to public safety or the accused is likely to abscond, bail will be granted.
- Citizens shall have the right to represent themselves in any court.
The Judicial Ombudsman
- The Elected Leader of the Nation (PM or President, depending on the results of the electoral referendum) shall appoint a Judicial Ombudsman.
- The role of the Judicial Ombudsman shall be to investigate and resolve issues raised by Citizens about the administration of justice.
The Judicial Commission
- A Judicial Commission shall be established. It shall be chaired by the Judicial Ombudsman and consist of eight other persons appointed by the PM. Four of these shall be persons recommended by the Society of Judges and four shall be lay members of society recommended by Non-Government Organisations.
- The Judicial Commission shall make recommendations to the PM on the following matters:
- Judicial appointments
- Warning of Judges
- Dismissal of Judges
Appointment of Judges
- The PM shall appoint judges in consultation with the Judicial Commission and the Society of Judges. Such appointments shall be subject to veto by the Parliament and Regional Assemblies in the case of Regional Courts. Any Member of Parliament or Regional Assembly may initiate such a veto.
- Judges for Small Claims Courts shall be appointed from the ranks of law graduates who have specialised in judicial studies. In deciding such appointments the PM shall be guided by Law Academies. This means that, instead of barristers being appointed as judges as at present, judges are trained as judges from a very early stage in their law studies. That is, junior undergraduates showing exceptional aptitude will be given the opportunity to specialise and study as judges and to be appointed as judges on graduation.
- The PM shall appoint Judges to higher courts from the best of the judges in lower courts.
- Justices of the Constitutional Court, Justices of the Appeal Court and Chief Justices, shall be appointed from the best of the senior judges. The PM may also make appointments to the Constitutional Court from the ranks of appropriately qualified and experienced academics.
Termination and Dismissal of Judges
- Judges shall have the right to resign or retire at any time.
- The PM shall have the power to dismiss a judge for incompetence, incapability or impropriety on receipt of a petition; or on advice from:
- the Parliament,
- an Assembly in the case of Regional courts,
- the Judicial Commission,
- the Judicial Ombudsman, or
- the Society of Judges.
Trial by Jury
- Cases involving values in excess of 104 times AWE and cases with possible penalties of two years or more in prison shall be decided by a jury of 12 Citizens above the age of 25 years selected at random in open court. Two reserve jurors shall be chosen; they shall sit in the jury box; they shall replace jurors declared incapable for reasons such as ill-health and conflict of interest.
- Accused persons may choose to be tried before a judge alone.
- Judges may approve applications by accused persons for trial by jury in serious cases carrying penalties of less than two years in prison or involving values less than 104 times AWE particularly in cases where the fairness of the law is challenged.
- All citizens over the age of 25 years shall be eligible for jury duty. Judges shall decide applications for exemption from persons selected for jury duty.
- Jurors shall be compensated at the rate of one and one half times AWE for the time spent on jury duty.
- Jury decisions shall be decided by a 75% majority of the jury. A figure of 75% is recommended as a basis for decision-making. It is considered this is a far better basis than 50% plus one because 75% indicates a reasonable level of agreement. Using 75% agreement in a jury is considered likely to reduce the time spent in jury decisions and avoid the number of “hung” juries when one member of a jury is in disagreement with the majority.
- In deciding their verdict, juries shall concentrate on the overriding requirement for justice and are empowered to take into consideration the adequacy or otherwise of the law in the case before them. This means that juries are not bound to hand down a guilty verdict simply because a law has been contravened. Instead they are required to deliver a verdict that takes account of the need to administer justice.
The Constitutional CourtRole
The role of the Constitutional Court is to:
- ensure the Constitution remains consistent with the aspirations of the majority of Australian Citizens,
- initiate referenda to change the Constitution,
- advise the PM on the Constitutionality of legislation,
- advise Regional Chief Executive Officers on the Constitutionality of ordinances, and
- make judgments on Constitutional matters brought before it by the People, by the Parliament, by Regional Assemblies, by the Courts or by the Parliamentary Counsel.
Procedures
The Constitutional Court shall hand down judgments within three months of instigation.The Appeal CourtRole
- The Appeal Court shall be the highest Court of Appeal.
- Decisions of the Appeal Court shall be based on justice. Appeals shall be decided not on points of law or procedure but purely on the question of justice.
- Decisions of the Appeal Court shall be handed down within three months of referral.
The Supreme Court
A Supreme Court shall be established in every Region.Role
- The Supreme Court shall provide a forum for litigation and for the investigation and resolution of serious crimes against society. Serious crimes are those carrying a penalty in excess of two years in prison and matters involving values greater than 104 times AWE.
- The Supreme Court shall be the first Court of Appeal for cases referred from Corporations Law Court, Industrial Relations Court, Family Law Court, Court of Petty Sessions and the Small Claims Court.
Procedures
- Legal Counsel is not mandatory. Defendants and litigants shall have the right to conduct their own cases before the Courts.
- All cases shall be heard within 3 months of instigation or shall lapse after that time unless special leave is granted by the Appeal Court.
- Judges shall conduct proceedings, call witnesses, conduct all cross-examinations and brief juries.
- Legal Counsel shall have the right to present witnesses, suggest questions and lines of inquiry, and make representations to the Judge but may not cross-examine witnesses.
- Accused persons shall be granted bail unless the Prosecution can persuade the Judge that such release would not be in the Public Interest.
Corporations Law Court
A Corporations Law Court shall be established where and when required.
Role
The Corporations Law Court shall provide a forum for the investigation of serious crimes against society by corporations. Serious corporate crimes are those carrying a penalty in excess of two years in prison and matters involving values greater than 520 times AWE. (In 2007 the amount of 520 times AWE was approximately $520,000.)
Procedures
- All trials in Corporations Law Courts shall be heard before juries of 12 Citizens chosen in open court. A 75% majority decision by the jury shall decide the case.
- At appropriate times during the investigation, the judge shall indict those members of the corporation board and those members of the corporation executive he decides should face charges.
- Legal Counsel is not mandatory. Defendants and litigants shall have the right to conduct their own case.
- All cases shall be heard within 6 months of instigation or shall lapse unless special leave is granted by the Appeal Court.
- Judges shall conduct proceedings, call witnesses, conduct all cross-examinations and brief juries.
- Legal Counsel shall have the right to present witnesses, make representations to the Judge but shall not cross-examine witnesses.
- Accused persons shall be granted bail unless the Prosecution can persuade the Judge that such release would not be in the Public Interest.
Industrial Relations Court
An Industrial Relations Court shall be established as required.
Role
- The Industrial Relations Court shall provide a forum for the investigation and mediation of serious disputes between employers and employees.
- Judges shall impose penalties and order restitution in cases revealing serious violation of the provisions of this Constitution or Statute Law.
Procedures
- Hearings in the Industrial Relations Court shall be heard before a panel of three judges.
- The Judges shall conduct proceedings, call witnesses and conduct all cross-examinations.
- Parties to the dispute shall have the right to present witnesses and make representation to the judges but shall not use Legal Counsel in the Industrial Relations Court.
All cases shall be heard within two months of instigation or shall lapse unless special leave is granted by the Appeal Court.
Family Law Court
A Family Law Court shall be established as required.
Role
- The Family Law Court shall provide a forum for the investigation and mediation of serious disputes within or between families.
- Judges shall impose penalties and order restitution in cases revealing serious violation of the provisions of this Constitution.
- In mediating family breakdown, custody of children shall be decided primarily for the benefit of the children and from a start point assuming equal rights for both parents.
Procedures
- Hearings in the Family Law Court shall be heard before a panel of two judges one of whom shall be female and one of whom shall be male.
- The Judges shall conduct proceedings, call witnesses and conduct all cross-examinations.
- Parties to the dispute shall have the right to present witnesses and make representation to the judges but shall not use Legal Counsel in the Family Law Court.
- All cases shall be heard within one month of instigation or shall lapse unless special leave is granted by the Appeal Court.
Children’s Court
- A Children’s Court shall be established as required.
- The Children’s Court shall establish the truth and administer justice in cases involving persons under the age of 18 years.
- Judges in the Children’s Court shall conduct proceedings, call witnesses and conduct all cross-examinations.
- The Prosecution and the Defence Legal Counsel shall have the right to present witnesses and make representation to the Judge but shall not conduct cross-examination.
- All cases shall be heard within one month of instigation or shall lapse unless special leave is granted by a Supreme Court.
Court of Petty Sessions
A Court of Petty Sessions shall be established in all Regions.
Role
The Court of Petty Sessions shall provide a forum for the investigation and prosecution of crimes against society.Crimes carrying penalties of less than two years in prison and those involving values of less than 104 times AWE shall be heard in the Court of Petty Sessions before a Judge. The Judge shall approve the empanelling of a jury of 12 honourable Citizens in serious cases where the fairness or appropriateness of the Law is challenged.Judges shall impose penalties and order restitution in cases revealing violation of the provisions of this Constitution or Statute Law.
Procedures
- Judges in Courts of Petty Sessions shall conduct proceedings, call witnesses and conduct all cross-examinations.
- The Prosecution and the Defence Legal Counsel shall have the right to present witnesses and make representation to the Judge but shall not conduct cross-examination.
- All cases shall be heard within two months of instigation or shall lapse unless special leave is granted by a Supreme Court.
Small Claims Court
A Small Claims Court shall be established in all Regions.
Role
- The Small Claims Court shall provide a forum for the investigation and resolution of less serious disputes between members of society and disputes involving values of less than 25 times AWE. (In 2007 the value of 25 times AWE was approximately $25,000.)
- Judges shall impose penalties and order restitution in cases revealing violation of the provisions of this Constitution or Statute Law.
Procedures
- Judges in the Small Claims Court shall conduct proceedings, call witnesses and conduct all cross-examinations.
- Parties to the dispute shall have the right to present witnesses and make representation to the judges but shall not use Legal Counsel in the Small Claims Court.
- All cases shall be heard within one month of instigation or shall lapse unless special leave is granted by a Supreme Court.
Mediators of the Peace
- The PM and Chief Executive Officers of Regions shall have the right to appoint persons as Mediators of the Peace (MoP). The role of MoP is to mediate disputes between Citizens.
- The qualifications, terms of engagement, remuneration, appointment and dismissal of Mediators is detailed in Schedule 1 below.
- Any Citizen may refer any matter to a MoP. Provided all parties to the dispute agree in writing to accept the findings, the MoP shall have jurisdiction. The findings of MoP are binding on the parties unless a Court of Appeal overturns the decision.
- Matters referred to MoP shall be decided within one month.
The Penal System
- The National Parliament is responsible for policy regarding the penal system.
- The primary aim of the penal system is to ensure that after release, offenders live a useful life and do not re-offend.
- Deterrence of potential offenders and punishment of offenders is an important but secondary aim of the penal system.
- Regional Assemblies are responsible for operating penal institutions. Convicted persons shall be committed to a penal institution in the Region of their domicile where possible.
- Each region shall establish a tribunal to investigate and punish crimes committed in prisons and to act as a Parole Board. Arbitrary judgment and punishment by prison officers shall be illegal.
- Sentences shall be served with a combination of work, education, and training as a means of equipping offenders to better integrate into society on their release. All custodial sentences of Australian Citizens shall include a period in halfway houses to ensure smooth re-integration into society.
- In general terms a day in the life of a prisoner shall consist of eight hours in the cells, eight hours in education and or training, and eight hours work. There shall be no public funded entertainment but reading of vetted material and viewing of vetted TV, video, DVD etc. shall be encouraged.
- Sentences to life imprisonment and sentences resulting in release after retiring age shall be spent in productive work.
- In the first three weeks of incarceration prisoners shall undergo mental and physical health testing to determine necessary rehabilitation programs and aptitude assessment to decide the education and training program for each prisoner. In making these decisions, cognisance shall be taken of the job market in the area in which the prisoner is expected to reside when released.
- The penal system shall include a range of institutions from high security institutions for dangerous criminals to ‘open door’ farm or work place institutions for low-risk prisoners. Prison hospitals shall be established to house those needing drug and alcohol rehabilitation programs and other needs.
- Persons arrested and those charged but not released on bail shall be housed separate from convicted persons. Prisoners under 18 years of age shall be housed separate from older prisoners.
- Persons with psychiatric problems shall be housed separate from other prisoners.
- Prisoners shall not be released from ‘half-way houses’ until employment or an education place is arranged. Prisoners on release shall be kept under observation for up to two years. The decision to end observation shall be made by a panel consisting of:
- 2 Police officers
- 2 Health workers (one physical, one mental health)
- 2 Ordinary citizens, preferably Mediators of the Peace
- Repeat offenders who are not Australian Citizens shall not go to halfway houses but shall be deported to their country of citizenship immediately upon completion of their prison sentence. In such cases Judges shall also decide the fate of the convicted person’s family.
- If a person who is not an Australian citizen is convicted of a terror act, that person’s whole family will be deported immediately to their country of citizenship, or interned in an offshore facility if they would be in danger returning to their country.
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Schedule 1
Mediators of the Peace
General
- This schedule details the provisions covering the training, appointment, dismissal, remuneration and tenure of persons appointed as Mediators of the Peace.
- In appointing Mediators of the Peace, Citizens who have a proven record of service to the community or have distinguished themselves in the Armed Services or the Emergency Services shall be considered first.
Role
The role of Mediators of the Peace is to resolve issues between Citizens thus avoiding resort to the courts and to provide readily available persons before whom Statutory Declarations and other official documents can be signed.
Jurisdiction
- All parties to a dispute must agree in writing to mediation before a Mediator of the Peace who has jurisdiction.
- Mediators of the Peace shall have jurisdiction on any issue and findings shall be binding on participants unless overturned by the Appeals Court.
Training
Regions shall train Citizens aspiring to be Mediators of the Peace as and when required.
Appointment, Remuneration and Termination
- Regions shall appoint Mediators of the Peace as required. Appointment shall be indefinite and may be terminated by the appointee or by the Region at any time.
- Operating as a Mediator of the Peace is a community service and attracts no remuneration. Regional Offices shall consider moderate expense claims.
- Regions shall terminate the appointment of any Mediator of the Peace found guilty of any offence.