Hussin, Grattan Fiona --- "Mandatory Injustice by Dianne Johnson and George Zdenkowski" [2001] AltLawJl 15; (2001) 26(1) Alternative Law Journal 50

• Reviews
• Mandatory Injustice
• Compulsory Imprisonment in the Northern Territory

Reviews

Mandatory Injustice
Compulsory Imprisonment in the Northern Territory

by Dianne Johnson and George Zdenkowski; Australian Centre for Independent Journalism, 2000 <acj.uts.edu.au>: 145 pp; $38.50.

As a 'Territorian' who has been a lawyer since the introduction of mandatory sentencing, I had difficulty opening Johnson and Zdenkowski's book Mandatory Injustice. Although academically interesting, the topic of mandatory sentencing is negative and depressing to me and to many of my colleagues. In addition, having followed the legal, social and political developments on this topic, there may have been a sneaking suspicion on my part that this book would not tell me anything that I did not already know.

However, once I had begun reading, I had difficulty putting it down, and when I did put it down I was upset and angry. This is an important quality of the book, especially for Territorians. We are living with mandatory sentencing. Despite regular exposure to it, we may at some point shrug our shoulders in acceptance. This book does not allow that. It is a comprehensive compilation of many aspects of the mandatory sentencing regime.

It is vital that the events and circum­ stances surrounding mandatory sentencing are documented. The documentation of this information in a single text allows the reader to absorb the context of the development of the mandatory sentencing regime and its continuation in spite of there being no statistical evidence or research to support it.

The point is made several times in the book that statistics and detailed information on the topic are scarce. This is an important point to note and one which was highlighted by the Senate Inquiry. It illustrates that mandatory sentencing exists in a democracy where there is no access to information about the impact of mandatory sentencing on the community. In particular, the lack of information about the effect of the law on the indigenous community is unconscionable.

Chapter 2 'The Genesis of Mandatory Sentencing Laws in the Northern Territory' covers several important topics: the apparent motivation behind the law-to deter crime; the government's own misapprehension regarding the operation of the law; questions surrounding the type of offences caught by mandatory sentencing; and the theoretical basis for the law.

Chapter 4: 'Opposition to Mandatory Sentencing' reviews the history of opposition to the legislation. It is a long chapter, and much of its content is duplicated in other areas of the book. Nonetheless, documented objections are detailed, informative and well researched. They include those by the then Chief Magistrate Ian Gray; the Director of the NT Legal Aid Commission, the Director of the National Aboriginal Youth Law Centre; the former NT Administrator and Supreme Court Judge James Muirhead; the then President of the Criminal Lawyers Association; the Miscellaneous Worker's Union; Central Australian Aboriginal Legal Aid. It includes legal opposition, reviewing legal challenges to the law. Where applicable, it includes the government's responses to the opposition to the laws. It records the formation of several community groups opposed to mandatory sentencing. It notes the numerous expressions of judicial discomfort by magistrates in gaoling offenders. It advises of the various national and international reports which have criticised mandatory sentencing. Finally, it reports on the approaches of both the ALP and the Greens.

Chapter 7: Specific Impacts of Mandatory Sentencing discusses the role of the police and the prosecution, an important aspect of the separation of powers argument. It also specifically examines the effect of the laws on indigenous offenders, providing powerful case studies. This grassroots approach by the authors is continued in Chapter 8: Case Studies and is a valuable compilation.

Because of my sneaking suspicion that the book would not reveal anything to me that I did not already know, Chapter 10: Policing Images was a surprise. This chapter is somewhat of an aberration from the traditional debate. It examines the role of 'Tourism and the Construction of Aboriginality in Alice Springs' in the development and operation of mandatory sentencing. From a legal point of view, I felt that much of the discussion on this point could be shorter. However, this text is not only for lawyers. Other researchers may find this perspective interesting. This chapter includes the subheading 'Policing the Images'. At this point my interest returned. As a 'Darwinian', I found the focus on Alice Springs compelling. The description of the operations in the Todd Mall, including those of retailers, leaves the reader with a feeling of disgust. It identifies a trap for all tourists: whether visiting a cultural or spiritual place contributes to the desecration and destruction of that place and its people. It leaves the reader wondering what their unwitting role in the support of the mandatory sentencing laws might have been.

Although this text was published last year, the Epilogue: Death in Custody of Wurramarrba illustrates the unfinished status of the mandatory sentencing saga. A second edition would not be unwarranted.

While there has been opposition to the mandatory sentencing laws since before they were introduced, national attention was not drawn to the issue until after this book was published.

The debate peaked this year following a string of events. Firstly the Legal and Constitutional Senate References Committee Inquiry into Human Rights (Mandatory Sentencing of Juvenile Offenders) Bill l999 heard submissions in the Northern Territory in early February. Then a boy committed suicide while serving a mandatory sentence in mid February. Finally the Howard government suffered extreme embarrassment when a number of his ministers threatened to 'cross the floor' and vote in favor of the Bill.

Until these events, the struggle against mandatory sentencing in the Territory had been an isolating experience. Largely because of these events, the opposition to the law spread to the national and international arena. Due to this pressure, a deal was done between John Howard and our Chief Minister Denis Burke. Although the law was not substantially altered, the national and international outrage was quelled.

Even though mandatory sentencing is no longer on the Howard agenda, it is still being opposed legally, politically and socially in many forms in the Northern Territory. This will continue until the law is repealed or substantially amended. Mandatory Injustice will be of assistance to anyone involved in this fight.

FIONA HUSSIN

[e-mail]

Fiona Hussin teaches law at the Northern Territory University.