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Inquiries and Reports – Australia
Senate Legal and Constitutional References Committee
Commonwealth of Australia, Canberra
March 2002
The Human Rights (Mandatory Sentencing for Property Offences) Bill 2000 (the Property Offences Bill) was referred to the Senate Legal and Constitutional References Committee for inquiry and report by March 2002. During the course of the inquiry there was an election in the NT and the new government changed the legislation relating to mandatory sentences for property crimes. Reproduced below are extracts from the Committee’s report. These extracts include the background to the report, the conclusion to discussion in the NT, discussion and conclusion to the chapter on WA, conclusion and recommendations, and the additional comments by the Greens and Democrats.
1.5 The Property Offences Bill is similar to an earlier Bill, the Human Rights (Mandatory Sentencing of Juvenile Offenders) Bill 1999 (the Juvenile Offenders Bill), which was introduced by Senators Brown, Bolkus and Greig into the Senate on 25 August 1999.[2] The Senate referred a number of matters related to the Juvenile Offenders Bill to the Legal and Constitutional References Committee, which reported to the Senate in March 2000.[3]
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1.6 The Juvenile Offenders Bill provided that Commonwealth, State and Territory laws must not require a court to sentence a person to imprisonment for an offence committed as a child (being a person less than 18 years old).[4] The Property Offences Bill, which covers both children and adults, provides that Commonwealth, State and Territory laws must not require a court to sentence a person to imprisonment or detention for a property offence.
1.7 A property offence includes any offence (including an inchoate offence) involving theft, criminal damage to property, unlawful entry to buildings, unlawful use of a vessel, motor vehicle, caravan or trailer, receiving stolen goods, unlawful possession of goods reasonably suspected of being stolen, taking reward for the recovery of property obtained by criminal means, assault with intent to steal, robbery, armed robbery, unlawful interference with the property or property rights of another.[5]
1.8 Western Australia and the Northern Territory are the only jurisdictions to which the Property Offences Bill has been or is relevant. The list of property offences in the Bill closely parallels the list that was in the relevant Northern Territory legislation when the Bill was introduced. Unlawful entry to (residential) buildings is the only offence in Western Australia that would be covered by the Property Offences Bill.
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2.10 The Committee is cognisant that it is inquiring into the Property Offences Bill and agrees that the provisions of the Bill, if passed by the Commonwealth Parliament, would not impact on the current Northern Territory adult sentencing regime for aggravated property offences.
2.11 In responding to the suggestion by the Aboriginal Justice Advocacy Committee that the Bill be amended to impact on the new sentencing regime, the Committee formed the view that the Bill would require major restructuring in order to achieve this, fundamentally altering the nature of the Bill and rendering it beyond the scope of this reference. The Committee therefore does not support the suggestion.
3.28 The Committee can only conclude that the mandatory sentencing legislation has not brought about a reduction in the rate of home burglaries in Western Australia. This is hardly surprising, when one considers, not only that the clean up rate for burglaries is so low, but also that the legislation has been irrelevant for adults and that most of the juveniles dealt with under it have lived in the country, not the metropolitan area.[40]
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3.47 ... [T]he Western Australian Department of Justice argued that the three strikes legislation played a very small part in a system that had a very effective filtering process. ...
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3.49 This description [by the Western Australian Department of Justice] of the criminal justice system in general and the mandatory sentencing system in particular differs from much of the evidence received by the Committee. This evidence includes the overrepresentation of younger country Aboriginals,[64] the longer terms for which juveniles serve sentences,[65] the lack of regional detention centres,[66] the possibility of considerable variation between the circumstances and opportunities for any two juvenile offenders[67] and the inappropriateness of twelve month detention sentences for some juvenile offenders.[68] Moreover, the effectiveness of the mandatory sentencing legislation is placed in doubt by the lack of evidence that it has had any impact on the high rate of home burglaries in Western Australia.[69]
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3.53 The argument put by the Department of Justice gives too little weight to the fact that individual Aboriginal children, particularly younger country Aboriginal children, are detained under the mandatory sentencing laws in circumstances in which non-Aboriginal children would not be detained. These children suffer most from the operation of the mandatory sentencing legislation because they are not protected from its excesses by such factors as diversionary processes to anything like the same extent as other children. The Committee considers that mandatory sentencing in the overall context operates against young country Aboriginals in particular in a manner that is effectively discriminatory.
3.54 The Committee agrees with the view expressed by ATSIC, which said:
... it [the mandatory sentencing legislation in Western Australia] is inconsistent with ... the Royal Commission into Aboriginal Deaths in Custody recommendations, especially recommendation No 92, which states that imprisonment should only be used as a sanction of last resort.[73]
3.55 The Committee suggests that the particularly negative effect of mandatory sentencing on certain socio-economic groups be noted by the Western Australian government. In this context, the Committee suggests that the Western Australian government reconsider their mandatory sentencing laws and, in doing so, take into account the recommendations of the Royal Commission into Aboriginal Deaths in Custody Report. (The recently conducted Review of section 401 of the Criminal Code did not have regard to the Royal Commission’s recommendations.) The Committee concludes that, in relation to adults, the legislation is ineffectual and, in relation to children, it effectively discriminates against young Aboriginal country children.
4.14 Although the Committee considers that the Commonwealth Parliament may have the power to pass and enact the Bill, using the external affairs legislative power, the Committee is not minded to make this recommendation at this stage. The prime responsibility for rectifying the situation in Western Australia rests with the Western Australian government.
4.15 The Committee notes that, following tabling of the Committee’s report Inquiry into the Human Rights (Mandatory Sentencing of Juvenile Offenders) Bill 1999, the Commonwealth provided the Northern Territory with funds in connection with its diversion and interpreter programs for four years from 1 September 2000.[13] In so far as the Western Australian government provides limited funding for diversionary and interpreter services to Aboriginal juveniles, particularly in remote areas,[14] it might also pursue discussions with the Commonwealth for these purposes.
4.16 The Committee recommends that the Bill not proceed at this time, in order to allow the Western Australian Government to address the serious negative impact of mandatory sentencing on indigenous juveniles.
4.17 If the Western Australian government chooses to ignore the deleterious effect of mandatory sentencing on indigenous youth, the Committee will revisit the issue through other mechanisms available to it.
Senator Jim McKiernan
Chair
The Committee has provided an excellent analysis. I back the proposal for Commonwealth assistance to Western Australia to move to the better alternatives to mandatory sentencing.
However, this remains patently unlikely. The evidence against mandatory sentencing, which disproportionately ensnares young Aboriginals is compelling. I therefore advocate the passage of the Human Rights (Mandatory Sentencing for Property Offences) Bill 2000 to override the mandatory sentencing provision of the W.A. Criminal Code.
Furthermore the passage of the bill would prevent any other state or territory from imposing a mandatory sentencing regime on the community in the future.
Senator Bob Brown
The Australian Democrats share the Committee’s misgivings in relation to mandatory sentencing. For that reason, we support its condemnation of these laws and its criticism of the Western Australian State Government’s retention of them.
However, we cannot support the Committee’s excessively cautious recommendation that, ‘the Bill not proceed at this time, in order to allow the Western Australian Government to address the serious negative impact of mandatory sentencing on indigenous juveniles’.
This proposition assumes that the WA Government might desire repeal of this law and will pursue such reform. To the contrary, the WA Government has made it very clear, including in election promises made before its recent election to power, that these laws would remain under a Gallop Labor Government. This view is strongly shared by the State Opposition.
It is extremely unlikely that mandatory sentencing will be removed from the Western Australian statutes for some time unless the Commonwealth intervenes.
We note that the Committee (when considering a very similar Bill in 1999), did not advocate that the Northern Territory Government be accorded time to consider repeal of its mandatory sentencing laws. Rather, it supported Federal intervention. This was later reflected in the Private Member’s Bill presented by Mr Kim Beasley MHR, then Leader of the Opposition. This Committee contradiction between the two Bills is unreasonable.
It is not the job of politicians to tell judges and magistrates what must be done in each and every case. But when politicians do interfere in the proper administration of justice in a fashion that clearly breaches international human rights conventions, particularly as they relate to children, we must respond as a nation through our Federal parliament. Under the Commonwealth Constitution, it is the duty of the Commonwealth to ensure that our international obligations are observed. It is not only proper that we respond with Federal intervention, it is our humanitarian duty.
We consider that this legislation is important not only to override the laws that apply in Western Australia, but also to ensure that similar laws are not enacted elsewhere in Australia in the future. The Democrats consider that there has been more than enough debate and deliberation on this issue and that Parliament should take prompt action to eliminate mandatory sentencing. The Bill should proceed forthwith.
Senator Brian Greig ?
Editor’s Note: Endnotes are extracted from the original text of the report.
[2] The Juvenile Offenders Bill was passed by the Senate on 15 March
2000 and introduced into the House of Representatives and given
a first reading
on the same day. It had not progressed any further when the Parliament was
prorogued and the House of Representatives
dissolved on 8 October 2001.
[3] The title of the report was ‘Inquiry into the Human Rights
(Mandatory Sentencing of Juvenile Offenders) Bill 1999’.
[4] At the time of the inquiry into the Juvenile Offenders Bill, the
Northern Territory law regarded a child for criminal purposes as
being a person
less than 17 years old. The age of adulthood was raised from 17 to 18 years on 1
June 2000, after the Committee’s
report was tabled.
[5] See clause 4, Human Rights (Mandatory Sentencing for Property
Offences) Bill 2000.
[40] See paragraphs 3.18 and 3.19 above for home locations of offending
juveniles. The Year Book Australia 2001 shows at page 80 that
as at 30 June 1999
the population of Perth was 1,364,200 and that of the balance of Western
Australia was 496,800.
[64] See paragraphs 3.21, 3.22 above.
[65] See paragraph 3.34,3.35 above.
[66] See paragraph 3.36 above.
[67] See paragraphs 3.40, 3.41 above.
[68] See paragraphs 3.42, 3.43 above.
[69] See paragraphs 3.25-3.31.
[73] Transcript of evidence, Aboriginal and Torres Strait Islander
Commission, p 249.
[13] See paragraphs 1.19–1.22 above.
[14] See paragraphs 3.17–3.22, 3.33, 3.34, 3.45 and 3.46 above.
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