A Generation Shaped in Jail - Why Mandatory Sentencing Should End

Laws of mandatory sentencing force magistrates and judges to jail offenders rather than consider the alternative of community service or rehabilitation. It takes away the time-honoured role of the courts in ensuring the sentence fits the crime, taking into account the offender's life circumstances.

Mandatory sentencing was introduced in Western Australia in 1996, where it applies to burglary, and the Northern Territory in 1997, where it applies to a wide range of property crimes but mostly snares Aboriginal people for minor theft where no harm to a person has occurred. A good legal system protects citizens and rehabilitates law-breakers. Mandatory sentencing does neither.

In 1998 I was approached by the indigenous community and the Northern Territory Greens to instigate Federal action. The result is the bill that is before the Senate, co-hosted by the Greens, the Democrats and the ALP, to overturn mandatory sentencing of juvenile offenders in Australia and ensure that our human rights obligations to children are met.

Since mandatory sentencing was introduced in Western Australia, Aborigines have been detained at 60 times the rate of non-Aborigines. In the Northern Territory the crime rate has increased by up to 40 per cent.

Worst hit are remote Aboriginal communities, where an openness not found in the city means people who steal are much more easily detained. Port Keats, in Arnhem Land, is a village of 2,500 people. Before 1996 it provided 2.5 per cent of the Territory's prisoners. Now it provides 18 per cent.

Bewildered and resentful Aborigines are held hundreds of kilometres away from family, friends and their all- important "country", for such crimes as stealing a can of cordial, a bicycle or a packet of biscuits.

The result, as the president of the Law Society of the Northern Territory, John Tippett, put it, is the jailed generation. The expectation among youngsters, particularly boys, that they will go to jail is so high that it is being seen as a rite of passage replacing traditional transition to adulthood. Moreover, white-collar crimes, almost never committed by Aborigines, are not subject to mandatory sentencing. The effect of mandatory sentencing is clearly racist.

Earlier this month, the Senate Legal and Constitutional References Committee flew to Alice Springs, Darwin and Perth to investigate. The committee heard how one homesick Aboriginal boy repeatedly telephoned over a period of six months from Don Dale Juvenile Detention Centre in Darwin, saying, "I'm lonely. I'm missing my family. Can you bring my family to the office so that I can talk to them." But Alice Springs is as far from Darwin as Birdsville is from Sydney and his family could not be near him.

A 17-year-old boy who spoke little English went through court, was jailed for two weeks, and came out still not understanding why. None of the proceedings used his Aboriginal language. Aboriginal law, which he would have understood, is prohibited.

Interpreters, says the Northern Territory Government, are "very expensive". Yet the captains of Indonesian boats caught smuggling people have interpreters available in Darwin's courts.

The committee heard how youngsters break into supermarkets, bypassing the sweets, to steal spraycans of paint. Their aim is to sniff to contents. The result is a "rush" to the head and instant escape from the despair of their lost culture, broken communities and the deep, demoralising sense of being third-rate and victimised in their own ancient land.

Inhaling spraycan vapours, like petrol sniffing, is a horrifying indicator of the plight of a whole generation of indigenous Australians. Ending it will require imagination, innovation and considerable resources from the nation, not the application of frontier justice. For a fraction of the $340 a day it costs to keep children in detention, Aboriginal communities could establish and run facilities to have offenders given a better chance of becoming productive, happy citizens.

The committee heard how an elderly Aboriginal couple in a remote camp taught troublemakers Aboriginal and non- Aboriginal skills useful to their daily lives and the community. They are kept far from the scourge of alcohol or petrol. The woman explained that the people at her centre were given meals "with love". Her approach, which involves compassion and rehabilitation, is fundamental to the more constructive alternatives that must be developed.

The instant West Australian and Northern Territory rebuff to the letter on Monday from the Federal Attorney- General, Daryl Williams, seeking change, indicates that overriding legislation by the national Parliament is the only solution.

I have no doubt that the High Court would uphold such legislation to reassert the provisions of the International Convention on the Rights of the Child, signed by Australia in 1990, which the West Australian and Northern Territory laws subsequently overrode.

Laudably, in this Olympic year, the Prime Minister has made reconciliation one of his Government's goals. Removing the impact of mandatory sentencing from indigenous communities is a beginning well within the Government’s rights and powers.

While John Howard awaits the Senate Committee report on mandatory sentencing, he might read the evidence already made public. I cannot get out of my mind the story that Selwyn Hausman, a solicitor to the Miwatj Aboriginal Legal Service, told the Senate committee in Darwin two weeks ago. An Aboriginal boy facing mandatory sentencing for, among other things, stealing Textas, had pleaded with him, "I do not want to go to jail." The boy seemed unable to understand the Territory laws closed all options.

"Do you understand why you are going to jail and why you have been convicted?" Hausman asked him. "Yes, because I am black," the boy replied. A week later that boy, Johnno, was dead.

No future debate over apologies will redress the collective culpability this time round if we allow this generation of indigenous Australians, which is seeking an end to past injustices, instead becomes the jailed generation.