Renewing the commitment to a fair go for all - Part 2

The policies also have social costs in the failed lives of unrehabilitated prisoners and their families. And they have direct financial costs that the whole community is forced to bear. Between 1995-96 and 1998-99 public expenditure on public order and safety increased by at least 50 per cent. It is expenditure that cannot be justified in human rights terms. And it cannot be justified in practical terms either. Prison simply does not work to rehabilitate offenders and reduce crime.

This environment has produced the laws and policies in Western Australia and the Northern Territory that impose mandatory sentencing regimes for some offenders. These laws violate human rights. For adults and children alike, they violate the right not to be arbitrarily detained. For children, they also violate the obligations to detain children only as a measure of last resort and only for the shortest appropriate period of time. They also violate the obligation to give paramountcy to a child's best interests in all decisions that affect that child.

The Human Rights and Equal Opportunity Commission has repeatedly expressed its firm conclusion that mandatory sentencing violates these and other human rights commitments. It did so:

• in the early 1990s when the Western Australian laws were first proposed and passed and later amended;
• in mid 1997 when the Northern Territory laws were proposed and passed;
• in late 1997 in Seen and Heard, its joint report with the Australian Law Reform Commission;
• in 1998 to the federal parliament's Joint Committee on Treaties in its review of the Convention on the Rights of the Child;
• in 1999 in its submission to the Senate Legal and Constitutional Committee's inquiry into mandatory sentencing of children, and;
• in 2000 in a rare joint public statement by the President of the Commission, the Aboriginal and Torres Strait Islander Social Justice Commissioner and the Human Rights Commissioner.

There could have been no surprise, therefore, when these laws and policies were also criticised by the four international committees of experts responsible for monitoring compliance with the International Covenant on Civil and Political Rights, the Convention on the Rights of the Child, the Convention against Torture and the Convention on the Elimination of all forms of Racial Discrimination.

Mandatory sentencing of children is not only a criminal justice issue. It is also an issue of how children are treated generally. The past five years have seen increasing targeting of children and decreasing sympathy for them. Mandatory sentencing laws violate the human rights of young offenders. Other laws and policies violate the rights of young non-offenders and even the rights of young victims of crime. Laws now criminalise many ordinary activities by children, such as gathering in public places. Indeed often children can be removed from public places for no reason at all.

The Seen and Heard report described the experiences of child victims of sexual abuse subjected to unfair and improper cross-examination by defence counsel. It made recommendations for changes to rules of evidence and of professional ethics to ensure their protection. Legal professional associations in NSW, South Australia and the ACT responded positively to the recommendations and I am pleased that the Law Society in NSW recently adopted comprehensive new rules for the examination of child victims. The Law Society of Queensland, however, responded to the recommendation with vitriol. Perhaps not coincidentally, the worst reports we received were from Queensland, including the aggressive cross examination of a 7-year-old boy for seven hours and of a 14-year-old girl for two or more days on two separate occasions. It is a pity that it took a Four Corners re-enactment of the first of these incidents to force a comprehensive review of processes in that state.

There are many rights at issue in the criminal justice system: the rights of victims to receive justice and remedies, the rights of offenders to be treated fairly and in accordance with the rules of natural justice and the right of the community to safety. The approach to offending in recent years promotes none of these rights. And it is costing us all a fortune, diverting resources from more effective crime prevention and criminal rehabilitation programs and from other areas of human rights concern. Surely politicians from all parties can stop playing games with community safety for electoral advantage and start leading by developing and implementing more effective law and justice programs that meet human rights commitments.