An end to sentencing is Mandatory

The Senate Inquiry into mandatory sentencing was broad-ranging, thorough and comprehensive in terms of scope and evidence. It took committee members on a valuable journey through the Northern Territory and Western Australia – through town camps, hours of hearings and visits with various indigenous organisations. Members spoke at length with government representatives in each state and territory. On all fronts, we were presented – and sought out – all sides of every issue.

This has therefore been an ultimately necessary and extremely productive endeavour effected by the Senate. Albeit within the framework of a bill – Senator Bob Brown’s Human Rights (Mandatory Sentencing of Juvenile Offenders) Bill 1999 – that does not directly address or solve the gamut of issues surrounding mandatory sentencing, this Inquiry has forced on the agenda and unearthed key undesirable consequences of the legislation and practical, realistic recommendations for action and change.

The passing of this bill will not fix mandatory sentencing. For that reason, I share the view of those committee members who feel passing it could do more harm than good. Certainly it offers no long-term solutions, and in the short term could leave the Northern Territory in a legal vacuum.

On the other hand, the conclusions and recommendations of the report offer real and valuable directions and challenges for the NT and WA governments. (It should be noted the WA legislation is applied in a much narrower set of circumstances and its implementation directed very differently from the NT.) Acted upon, they would almost certainly set in train long-term measures toward aligning legal and social responsibilities in both jurisdictions.

This Inquiry has taken place in a heightened atmosphere of debate, analysis and media attention. The impact of external events – including the NT’s by-election and the tragic death of a 15-year-old Groote Eylandt boy whilst in detention – cannot be understated.

But the essence of this Inquiry, and this report, is the impact of mandatory sentencing legislation on juveniles – 15- and 16-year-old Australians and particularly indigenous Australians. It is not ostensibly about analysing, criticising nor trivialising the justice systems of the NT and WA.

The wider community of Australia is necessarily alarmed at the high rate of youth suicide in this country, and that is a multi-faceted social problem right across the demographic spectrum. While not pretending to have the answers, I can say with certainty that detaining young indigenous people in places like Darwin detention centre Don Dale is not one of them.

This Inquiry highlights several key areas of concern arising, directly or indirectly, from the application of mandatory sentencing in the NT. They include the isolation and resultant stresses arising from the removal of young people from remote areas to detention centres hundreds of kilometres from their families. They include the difficulties associated with detained youth arranging visits or even contacting their families by telephone.

They include the possibility that repeat offenders have their own set of complex and significant social problems – such as substance abuse, homelessness and illiteracy – that mandatory sentencing does nothing to fix, and may in fact inflame. They include the disruption to education and employment responsibilities arising from 28 days in prison for often minor offences. I conclude that the NT mandatory sentencing laws almost certainly breach the spirit of Australia’s international obligations, specifically with respect to the Convention of the Rights of the Child (CROC).

It should be clearly emphasised that offenders should not go unpunished for their crimes, however the fundamental problem with mandatory sentencing is that the punishment doesn’t always fit the crime. It is a blunt instrument. When you remove a court’s discretion, you remove its capacity to take into account all the circumstances of a case – both for offenders and victims. In fact I would contend that in extremely poor applications of mandatory sentencing, everyone is a victim.

This report has addressed the terms of reference of the Inquiry. It makes constructive suggestions as to how the laws may be amended to ameliorate some of the adverse impacts on young people. It has looked at the diversionary programmes currently run in the NT, and welcomed the announcement in February of new programmes. It thus holds hope for change; it clearly indicates the need for change. It doesn’t set itself up as having all the answers, but is a constructive suggestion; a start.

This report is effectively then a letter to the NT and WA Governments. We trust it is read, considered and appropriately given weight. If not, then in light of every reason I have stated herein, in light of every reason in the report, I recommend that the Commonwealth Government should consider intervention.

I say so not to be popular or otherwise – for it will be seen as both – but to do the right thing.