JUSTICE: by Richard EganNews Weekly
The facts behind the furore on mandatory sentencing
, March 25, 2000
The Senate Legal and Constitutional Affairs References Committee tabled its report on the Human Rights (Mandatory Sentencing of Juvenile Offenders) Bill 1999 on March 13th.
The majority of the Committee - three ALP and two Democrat Senators - recommended the passage of the Bill, which would have the effect of overriding any State or Territory law that required a court to sentence a person to imprisonment or detention for any offence committed as a child.
The majority found that the mandatory sentencing regimes in the Northern Territory and Western Australia violated Australia's international obligations under the Convention on the Rights of the Child. This Convention provides that detention should be "a last resort" for children, and that no punishment should be "arbitrary". The reasoning on these findings seems a little thin, as in both jurisdictions mandatory detention is a "last resort", enforced only after two previous court convictions.
The Government minority on the Committee - Senators Coonan and Payne - were also critical of the mandatory detention regimes, especially that of the Northern Territory, but were in favour of further negotiations between the Commonwealth and Western Australia and the Territory before resorting to the use of the external affairs power.
The distinction between the Western Australian and the Northern Territory regimes was noted throughout the report.
The Western Australian legislation only applies to home burglaries and was enacted in response to widespread community concern that the courts were failing to treat this crime with the seriousness it deserved and releasing repeat offenders too readily into the community. In relation to juveniles (ages 16 to 17) the 12 month mandatory detention only applies in the case of a third conviction for home burglary within a two year period. These cases can only be heard by the president of the Children's Court who has the power to place a young person on an intensive youth supervision order with detention as a default if the order is breached.
The legislation came into effect in November 1996 with 57 juveniles being convicted in 1997, only 9 in 1998 and 22 in 1999. Of this total of 88 convictions 9 received an intensive youth supervision order. This suggests, that in Western Australia, mandatory sentencing is not imposing detention on juveniles arbitrarily.
In the light of these facts the Committee was forced to concede that "in a sense, this 'mandatory' sentencing is not 'mandatory'. Surprisingly the majority still favoured invoking the external affairs power to overturn Western Australian law because "it had the appearance of mandatory sentencing". This would seem to be a frivolous use of constitutional power.
In regard to the Northern Territory it was clear from the information available to the Committee that there are significant problems with Aboriginal juveniles in the Territory, including juvenile justice issues.
The death of a 15 year-old Aboriginal boy who was being held at the Northern Territory's Don Dale Juvenile Detention Centre in Darwin, while serving his second detention term under mandatory sentencing, is perhaps the most tragic example. However, abolishing mandatory sentencing won't solve such problems for which more complex solutions are required.
The Northern Territory law applies to a wide range of property offences including stealing (except shoplifting) and vandalism. First offences are dealt with by caution and are not counted. The second offence attracts a range of non-custodial sentencing options. The third offence receives 28 days detention or a diversionary program, sometimes in an appropriate Aboriginal community. The fourth offence carries a mandatory sentence of 28 days imprisonment.
Public attention has been drawn to the trivial nature of some of the stealing offences that have resulted in a conviction. The Northern Territory Government gave evidence that at least some Aboriginal communities want young repeat offenders removed from the community and support custodial sentences.
The Northern Territory would be wise to review its mandatory sentencing laws. If not pressure will continue to mount for the Commonwealth to intervene.
If the Howard Government is persuaded to do so it would be preferable for it to rely entirely on the Territories power in Section 122 of the Constitution, as the Federal Parliament did with the Euthanasia Laws Act, which removed the Northern Territory's ability to legalise euthanasia.
It is quite proper for the Commonwealth to retain a final supervisory power over territories, which are not States, but the Federal Government is rightly cautious in choosing when to exercise this power.
In the light of the Committee's findings on the Western Australian law it is inappropriate for the Federal Parliament to invoke the external affairs power and to rely on the Convention on the Rights of the Child, a treaty strongly opposed by many Australians, to intervene in a matter properly the responsibility of a State.