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
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
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.