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Zdenkowski, George --- "New Challenge to NT Mandatory Sentencing: Bob Brown's Abolition of Compulsory Imprisonment Bill 1998" [1999] IndigLawB 15; (1999) 4(18) Indigenous Law Bulletin 16


New Challenge to NT Mandatory Sentencing:
Bob Brown’s Abolition of Compulsory Imprisonment Bill 1998

by George Zdenkowski

The controversial sentencing laws in the Northern Territory (NT)[1] which require the court to impose compulsory minimum prison terms on persons convicted of designated property offences have been the subject of a sustained critique since they commenced operation on 8 March 1997.[2]

Legal challenges have so far had a marginal impact in some cases leading to a stricter interpretation of the legislation but without undermining its basic structure and operation.[3] An application to the High Court of Australia for special leave to appeal,[4] on the basis that the compulsory imprisonment provisions were unconstitutional, was refused.[5]

Political pressure based on arguments of cost, injustice and lack of efficacy of the legislation have not dented the NT government’s belief in these measures so far.

Now comes a fresh challenge from Australian Greens Senator for Tasmania, Bob Brown. Senator Brown will shortly introduce, as a private member, the Abolition of Compulsory Imprisonment Bill 1998. The Bill seeks to remove the power of the Northern Territory Legislative Assembly to make laws for the compulsory imprisonment of persons found guilty of property offences.

The Bill is modelled on the Euthanasia Laws Act 1996 (Cth) by which the Federal Parliament deprived the Australian Capital Territory, Norfolk Island and the Northern Territory of the legislative power to enact laws that permit euthanasia. [6]

There is no doubt that the Commonwealth Parliament has the constitutional power to pass the Abolition of Compulsory Imprisonment Bill 1998 under s 122 of the Constitution. The issue is whether this constitutional power should, and will, be exercised.

Ultimately, this is a political question. While it is difficult to predict the reaction to the Bill, there is no doubt is faces considerable obstacles. Although compulsory imprisonment is a major issue for criminal justice policy in Australia, it could not be claimed that the NT law has captured public discourse in the same way as the euthanasia controversy did.

Nonetheless, the trajectory of the Brown Bill may have certain parallels. Once introduced into the Senate, it could well be referred to the Senate Legal and Constitutional Legislation Committee as occurred with Kevin Andrews’ Euthanasia Laws Bill 1996.[7]

If this does happen, then some of the key issues which were canvassed (in the context of the euthanasia legislation) as to the desirability of a Commonwealth law overriding an NT law will arise:

There is no doubt that the attack on the autonomy of the NT Government would loom large. The suggested abridgment of legislative power, while constitutionally permissible, would be trenchantly criticised: as an ad hoc intrusion on the law-making function of the NT government; as a threat to legal certainty; as a discriminatory measure curtailing the rights of citizens in the NT in a manner which the Commonwealth could not do in relation to the citizens of the States; as defeating the reasonable expectation that the Northern Territory (Self-Government) Act 1978 would not be amended to deprive the Legislative Assembly of a power it has had for 20 years; as overriding the will of the people of the NT as expressed through the democratically elected government which specifically put forward the compulsory imprisonment measure at the most recent election and was returned on that platform.[8]

The “Territory rights” may prove to be a stumbling block for Senator Brown. In relation to the Euthanasia Laws Bill 1996, the majority of the Senate Legal and Constitutional Legislation Committee concluded that the Commonwealth should only intervene in the self-government of the NT in exceptional circumstances which, they said, existed in relation to the euthanasia issue. It is by no means clear that the mandatory imprisonment issue would be similarly characterised.

Although there is not yet satisfactory systematic evidence on the issue, anecdotal evidence would appear to indicate that the mandatory imprisonments laws are having an adverse impact on the indigenous community.[9] It will be important to assemble a more coherent picture of these developments if they are to play a significant role in parliamentary debate.

Of course, the major hurdle for Senator Brown will be marshalling parliamentary support for his Bill. Even if he were able to secure its passage through the Senate, the measure would fail in the House of Representatives unless the Federal Coalition Government were to embrace it. There is no evidence, to date, that it is inclined to do so.

The prospect of a “conscience vote” (as occurred in relation to the euthanasia legislation) being allowed is remote. The administration of justice in general, and mandatory imprisonment in particular, raise issues of justice and human rights but are unlikely to resonate with the moral, ethical and religious concerns which conventionally trigger a departure from party discipline. Even if a “conscience vote” were allowed, there is no guarantee that a majority could be obtained as parliamentarians would be likely to divide over the Territory autonomy and justice issues.

One factor which may, in the longer term, influence such debates in federal parliament is the prospect of an adverse view by the Human Rights Committee following a complaint procedure under the First Optional Protocol to the ICCPR (see above)[10] and/or adverse reports (and corresponding international opprobrium) in relation to Australia’s failure to abide by the UN Convention on the Rights of the Child.[11]

Such complaints (technically ‘communication’) can be made to Human Rights committee of the United Nations for an alleged violation of the International Covenant on Civil and Political Rights (ICCPR) to which Australia is a signatory.[12] But this is a slow, cumbersome expensive process which requires the exhaustion of domestic remedies[13] and has, to date, not been invoked in relation to the mandatory imprisonment regime.

George Zdenkowski is an Associate Professor of Law at the University of New South Wales.


[1] Sentencing Act 1995 (NT), Division 6 of Part 3 and Juvenile Justice Act Division 3 of Part VI.

[2] L Schetzer, “A Year of Bad Policy: Mandatory Sentencing in the Northern Territory” (1998) 23 AltLJ 117; M Antrum “NT Mandatory Sentencing - Politics and Prejudice” Rights Now, Newsletter of the National Children’s and Youth Law Centre, January 1998; M Flynn, “One strike and You’re Out” (1997) 22 AltLJ 72; G Zdenkowski, Mandatory Imprisonment of Property Offenders in the Northern Territory - [1999] ILB 6; 4(17)ILB pg15; R Hogg, “Mandatory Sentencing Laws and the Symbolic Politics of Law and Order”, (1999) 5(1) UNSWLJ Forum 3; N Morgan, “Capturing Crims or Capturing Votes”, (1999) 5(1) UNSWLJ Forum 5’ M Flynn, “Fixing a Sentence: Are there any Constitutional Limits?”, (1999) 5(1) UNSWLJ Forum 11; H Bayes, “Punishment is Blind: Mandatory Sentencing of Children in Western Australia and the Northern Territory”, (1999) 5(1) UNSWLJ Forum 14; G Zdenkowski, “Mandatory Imprisonment of Property Offenders in the Northern Territory” (1999) 5(1) UNSWLJ Forum 21.

[3] Zdenkowski (1999), ibid.

[4] Wynebyne v Marshall (1997) 117NTR11. This case concerned automatic imprisonment of first offender Margaret Wynebyne for 14 days for stealing a can of beer.

[5] One commentator argues that this constitutional battle is not over yet: M Flynn (1999), note 2.

[6] But the Brown Bill only applies to the Northern Territory.

[7] Parliament of the Commonwealth of Australia, Senate Legal and Constitutional Legislation Committee, Consideration of the Legislation Referred to the Committee: Euthanasia Laws Bill 1996, Senate Printing Unit, Canberra, March 1997. Strategically, it may well be desirable to have a Senate inquiry. Such inquiries have a good track record of assembling and reporting on the detailed issues in a credible and dispassionate manner. This might allow, for example, evidence to be collected about the adverse impact of the laws on the Indigenous community, if this is in fact the case.

[8] See report of the Senate Scrutiny of Bills Committee cited in Parliament of Australia op. cit. p. 3.

[9] Personal communication with the author by staff from the NAAILAS.

[10] The adverse view of the HRC in the Toonan case - Toonan v Australia, Views of the Human Rights Committee, Fiftieth Session, concerning Communication No488/1992, 25 December 1994 - was an important influence in the ultimate passage of the Human Rights (Sexual Conduct) Act 1994(Cth) which overrode provisions of Tasmania’s Criminal Code.

[11] Bayes, note 2.

[12] See J Blokland, “International Law issues and the New Northern Territory Mandatory Sentencing Regime” paper delivered to the Northern Territory Criminal Lawyers Sixth Biennial Conference. 22-26 June 1997; see also Bayes, note 2 for a discussion of potential violations of the UN Convention on the Rights of the Child. However, there is no grievance mechanism in relation to the latter which corresponds to the procedure under the First Optional Protocol to the ICCPR.

[13] See S Pritchard and N Sharp, Communication with the Junam Rights Committee: A Guide to the Optional Protocol to the International Covenant on Civil and Political Rights, Australian Human Rights Information Centre, July 1997.


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