Bills Digest No. 62 1999-2000 Human Rights (Mandatory Sentencing of Juvenile Offenders) Bill 1999


Numerical Index | Alphabetical Index

WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

CONTENTS

Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details

Passage History

Human Rights (Mandatory Sentencing of Juvenile Offenders) Bill 1999

Date Introduced: 25 August 1999

House: Senate

Portfolio: Private Senators' Bill

Commencement: On Royal Assent

Purpose

To invalidate any Commonwealth, State or Territory law that requires courts to impose mandatory detention for offences committed by children.

Background

A Paradigm Shift

All States and Territories have legislation containing specific provisions for dealing with sentencing and detention of children or juveniles. In most jurisdictions these issues are covered in stand-alone legislation.(1) In some jurisdictions, they are dealt with in child welfare and protection legislation.(2) All jurisdictions aim to strike a balance between punishment and rehabilitation taking into account the particular needs, rights and interests of children and young people. There are wide variations in the jurisdictions in terms of informal processes,(3) formal processes,(4) and advocacy and complaints bodies.(5)

Commentators have described a paradigm shift in juvenile justice.(6) Historically, the focus was on the needs of young offenders, an approach based on the view that their behaviour was a product of social environment. In the past twenty years the focus has transferred to the needs of the wider community on the basis that individual behaviour is an exercise of free choice. The emphasis has shifted from early intervention and diversion to the costs of crime, individual culpability, appropriate punishment and deterrence.

Mandatory Detention

While the shift has been reflected in various jurisdictions(7), the most significant changes relate to mandatory sentencing. In 1992 Western Australia introduced mandatory imprisonment for repeat violent offenders.(8) In 1996 New South Wales introduced mandatory life sentences for adults convicted of murder.(9) In 1995 and 1996 Western Australia and the Northern Territory introduced mandatory sentences for adults convicted of repeat property offences.(10) The Western Australian and Northern Territory jurisdictions have extended mandatory detention to juveniles.(11)

Juveniles

The Western Australian regime requires detention of at least 12 months for juveniles convicted of home burglaries who have been convicted of like offences on two previous occasions.(12) In respect of juveniles between 16 and 18 years, a court may make further special orders(13) and/or direct that the detention be served in a prison rather than a juvenile detention centre.(14) It also has the discretion to extend detention for a further 18 months.(15) There are provisions for early release, although the conditions may be unrealistic.(16) The Western Australian Parliament intends to review the legislation every four years.(17)

The Northern Territory regime requires mandatory detention of at least 28 days for juveniles between 15 and 17 years who have previously been convicted of a property offence.(18) Property offences are widely defined and include theft, burglary, unlawful entry, assault with intent to steal, unlawful use of a motor vehicle, receiving stolen property or rewards from stolen property and criminal damage generally.(19) A court may also impose further orders, including a punitive work order.(20) Recent amendments have softened the mandatory detention provisions by allowing for diversion in respect of second property offences in some circumstances.(21)

Adults

The Western Australian regime requires detention of at least 12 months for adults convicted in the circumstances described above.(22) The Northern Territory regime requires detention of at least 14 days for a first property offence.(23) For a second property offence the regime requires 90 days(24) and for a third offence 12 months.(25) Juveniles over the age of 17 years are treated as adults for the purposes of sentencing and detention.(26) The regime has recently been extended to cover theft from an employer and unlawful possession.(27)

There is no flexibility in considering prior offences. Neither regime distinguishes between live and spent convictions. The mandatory provisions apply regardless of the period since the previous offence.(28) Neither regime differentiates between juveniles and adults. The provisions apply to adults in respect of prior offences they committed as juveniles. One consequence is that adults may be imprisoned as a result of juvenile offences.

History of the Bill

The Northern Territory and Western Australian laws have been criticised by the United Nations Committee on the Convention of the Rights of the Child (CROC Committee),(29) the Human Rights and Equal Opportunity Commission and the Australian Law Reform Commission,(30) the Joint Standing Committee on Treaties,(31) and the Law Council of Australia.(32) They have also been criticised in the Senate,(33) and by judges,(34) non-government organisations,(35) and other commentators.(36)

It has been suggested that the mandatory sentencing provisions breach certain common law principles and international human rights obligations (see below). It has been suggested that they discriminate on the grounds of age.(37) It has also been suggested that they are contrary to the doctrine of the separation of powers.(38) They would also appear to be in direct conflict with the report of the Royal Commission into Aboriginal Deaths in Custody.(39)

It is against this backdrop that the Bill has been drafted and presented to Parliament. The Bill was introduced by Senators Bolkus, Greig and Brown, suggesting support from the Opposition, Democrats and the Greens. The Government has not given public support for the Bill.(40) In September the Bill was referred to the Legal and Constitutional References Committee for inquiry and report by the first sitting day in 2000.(41)

Main Provisions

Clause 5 prohibits any law from imposing a requirement that a court sentence a person to detention or imprisonment for offences they committed as a child. Clause 4 defines a child as a person who is under 18 years. Clause 7 provides that juveniles in detention when the legislation commences must be brought back before the court for their sentence to be reconsidered.

These clauses would invalidate the mandatory detention provisions relating to juveniles in the Northern Territory and Western Australia. They would also invalidate provisions relating to adults to the extent to which they take account of prior juvenile convictions. In other words, the mandatory provisions relating to adults are retained but courts cannot be required to consider their criminal records as juveniles.

Concluding Comments

Generally, sentencing is considered to serve four objectives: rehabilitation, deterrence, retribution and incapacitation. These incorporate a range of individual and community considerations and each is relevant in decisions regarding detention. While there may be community benefits, rehabilitation is primarily directed towards the needs and interests of the individual. Deterrence and retribution serve both individual and community objectives. Incapacitation is directed at protecting the community from harm. While rehabilitation may remain a goal for juvenile justice, mandatory detention is based firmly on deterrence, retribution and incapacitation.

Philosophy

It has been said that there are two models of juvenile justice.(42) The 'welfare' model assumes that criminal behaviour is a product of external factors such as the social environment. It focuses on community responsibility for the individual. It emphasises the particular needs of the individual and long-term rehabilitation. It is characterised by early intervention, guidance and diversion. The 'justice' model assumes that criminal behaviour is an exercise of free choice. It focuses on individual autonomy and responsibility. It emphasises the costs of crime, individual culpability, appropriate punishment and deterrence. It is characterised by limited intervention and coercive responses to crime.

All juvenile justice regimes can be characterised as a product of competition between these two models. To some extent, the competition corresponds with a blurring of the lines between juvenile justice and child welfare. In large part this competition and blurring is the product of historical factors. Since the mid-nineteenth century, there has been a focus on child welfare rhetoric. More recently, as indicated above, governments have reacted against the welfare bias with a shift towards justice considerations. There has been a separation of justice and welfare objectives, processes and/or institutions and a re-emphasis on justice as an overriding goal.

Rationale

A range of arguments has been put forward in favour of mandatory detention. Generally the arguments emphasise the needs of the community over the needs of the individual. They point to the failures of the welfare model in respect of rehabilitation. They emphasise the 'net-widening' effect of early intervention,(43) past excesses of the welfare model,(44) the indeterminacy of the welfare approach and the mixed messages that it sends to the community.(45) They point to the strengths of the justice model in respect of retribution and deterrence. They emphasise the need to protect the community from crime, to effect retribution for the victims of crime and to provide a significant deterrent to recidivism.

Northern Territory and Western Australian government representatives have pointed to the high rate of home burglaries in their jurisdictions and the effect of this on victims.(46) They have emphasised the need to prioritise the needs of the community over those of the individual offender.(47) They have pointed to the need to protect the community from harm,(48) and have stressed the need to stop recidivism.(49) They have indicated that, in practice, the laws target a relatively small group of repeat offenders who are responsible for the majority of property crime,(50) for whom rehabilitation is no longer considered possible,(51) and who would probably have been detained anyway.(52) They have also emphasised the notion that judicial discretion must give way to community opinion and parliamentary sovereignty.(53)

Critique

In theory, there are a number of legal issues associated with mandatory detention that emerge from the common law and our obligations under international law. They arise from the general requirement that courts must exercise proportionality and emphasise the particular needs of juveniles in sentencing. In addition to these legal issues, there are a number of objections to mandatory detention that spring from juvenile justice philosophy and practice. They focus on the aims of the mandatory detention laws and their relationship to the assumed underlying causes of juvenile crime.

Legal Issues

The ultimate object of criminal law is to protect the community from crime. But there are many other relevant considerations. Community protection is a primary consideration in sentencing,(54) but it will be weighed against the personal characteristics and circumstances of the offence and the offender.(55) The common law does not sanction arbitrary detention. It requires proportionality between the period of detention and the gravity of the crime.(56) Neither does it sanction preventative detention. It does not accept excessive periods of detention for the sole purpose of protecting the community from repeat offenders.(57) Indeed, imprisonment is generally considered a sentence of last resort(58) and a court will generally strive to impose the minimum sentence necessary to protect the community.(59) To some extent these principles have special application in relation to children and, given the considerations above, courts tend to take a more lenient approach in cases involving minors.(60)

As indicated, it has been argued that mandatory detention laws offend the doctrine of the separation of powers. The argument is that by prescribing sentences, parliament is interfering with the judicial discretion and thereby undermining the independence and integrity of the judiciary. The separation of powers doctrine is not enshrined in State and Territory constitutions and, while there has been some recent speculation, has no real application to State courts.(61) However, the argument has been raised in relation to the Northern Territory Supreme Court on the basis that it operates under some constitutional peculiarities.(62) To date, the High Court refused to hear the argument(63) and its strength has recently been undermined in Re The Governor, Goulburn Correctional Centre; Ex parte Eastman .(64)

International Obligations

The common law principles are underscored by a number of international instruments. The International Covenant on Civil and Political Rights (ICCPR)(65) and the Convention on the Rights of the Child (CROC)(66) prohibit arbitrary detention(67) and require that sentences must be reviewable by appellate courts.(68) CROC also requires that: detention must be used as a last resort and for the shortest period possible;(69) treatment must take account of the needs of juveniles of the same age;(70) treatment must promote the dignity and self worth of the individual;(71) juvenile detainees must, as far as possible, be separated from adult detainees;(72) parties must promote the use of informal proceedings;(73) and non-custodial options must be available where possible.(74) These requirements are reinforced by other international non-binding rules and guidelines developed by the United Nations Congress on the Prevention of Crime and the Treatment of Offenders.(75)

Deterrence

Mandatory detention may not effectively address the issue of deterrence. Deterrence may be 'specific' or 'general'. Specific deterrence relates to the individual offender and focuses on preventing him or her from committing further offences. General deterrence relates to the wider community and focuses on preventing other potential offenders from committing crimes. Many commentators argue that mandatory detention does not deter individual offenders.(76) Some argue that it may actually increase the likelihood that juveniles will re-offend by exposing them to experienced criminals.(77) Commentators also suggest that it does not deter offenders in the community at large.(78) It has been suggested that the key factor is the certainty that an offender will be caught rather than the certainty that a severe sanction will result.(79) This may also be particularly true in relation to juveniles.

Incapacitation

Mandatory detention may also be ineffective in addressing incapacitation. Generally, incapacitation relates to the selection and removal of particularly dangerous offenders from circulation in the community. Ordinarily, the rhetoric is of protecting the community from 'heinous criminality'(80) or 'a dangerous group of offenders'.(81) However, the rhetoric in relation to mandatory detention of juveniles seems to focus less on danger to the community than on 'separating offenders from the community to reduce the opportunity for further crime'.(82) The perceived harm is less personal or direct and seems to arise from a greater emphasis on victims than any clear characteristics of the offence. For this reason, commentators have suggested that mandatory detention is ineffective or inefficient.(83) By focusing on a class of offences, like property offences, it may select petty criminals rather than dangerous offenders. Many commentators offer compelling anecdotal evidence.(84)

Recidivism

In reality, the key issue is recidivism by a target group of young offenders. It is generally agreed that a small group of juveniles is responsible for most juvenile court cases and that most detainees are repeat offenders. However, opinion is divided as to the cause of recidivism and the appropriate social, legal and political responses. Recidivism may be a product of individual characteristics or underlying social disadvantage. It may also be a product of other factors such as the approaches of particular courts, availability of non-custodial sentencing options, and adequacy of resources and coordination efforts in diversionary programs.(85)

In practice, one key issue is the relationship between recidivism and the nature of the offences. For all jurisdictions the most common offences among juveniles are property related.(86) It has been reported that juveniles who commit property crimes and juveniles who are given custodial sentences are more likely to re-offend.(87)

The other key issue is the characteristics of the target group. In all jurisdictions by far the most over-represented group of offenders is males between the ages of 15 and 17.(88) This group is highly represented in respect of property offences, personal offences, traffic offences, offences related alcohol and drugs. This group is dominated by indigenous youth in some jurisdictions, especially in Western Australia and the Northern Territory.

Indigenous Issues

It has long been recognised that indigenous youth are over-represented in the criminal justice system.(89) Indigenous youth are over-represented in detention statistics and this increases with the move away from urban to rural to remote centres.(90) They are more likely to be repeat offenders.(91) Decisions regarding sentencing options are exercised more frequently to their disadvantage.(92) Indigenous youth receive harsher penalties, particularly at the point of being sentenced to detention.(93)

As indicated, recidivism may be a product of individual, social and other factors. It has been suggested that indigenous youth see imprisonment as neither a deterrent nor a punishment.(94) It has also been observed that, partly because of their geographic location, indigenous youth are more likely to appear before a non-specialist children's court,(95) and are less likely to have received a diversionary alternative.(96) While there is frequent discussion of diversionary programs for indigenous youth, it may be the case that there are insufficient general or specific programs and/or insufficient resources for this end.(97)

Statistics

Despite assumptions about youth crime, research indicates that juvenile court appearances and formal diversions have remained stable for over a decade.(98) While there do not appear to be firm or reliable figures at this stage, commentators have reported that detention rates have risen sharply in both Western Australia and the Northern Territory since mandatory detention laws were introduced.(99) Governments have pointed to a reduction in reported crime,(100) although some commentators clearly disagree.(101) Generally it is considered too early to assess the full impact of mandatory sentencing and detention on crime.(102)

The demographic factors above clearly suggest that mandatory detention will have a particularly significant impact on young indigenous men. This impact was predicted when the laws were enacted(103) and it has subsequently been reported in both jurisdictions.(104)

Responses

Courts and the Community

It seems that some courts are reluctant to apply the mandatory detention provisions. Despite the severe limitations on their judicial discretion, they have been able to avoid the provisions in various ways, for example by imposing conditional release orders and by convicting juveniles of alternative offences that do not carry a mandatory sentence.(105) It has also been suggested that community members, police and prosecutors have become more reluctant to report crime, to lay serious charges or to press these charges in court.(106)

Commonwealth Role

There have been strong arguments for Commonwealth action to prevent mandatory detention. A senior Human Rights Commissioner has argued that the Commonwealth should develop a national focus on the needs and interests of children and provide a commitment to coordinate policies and services for children and families.(107) It has also been argued the Commonwealth should be pro-active in developing national standards for dealing with juvenile justice.(108) The Stolen Generations Inquiry has also recommended the adoption of national standards in relation to indigenous youth that would reinforce the principles contained in international law.(109) They have recommended that all governments provide effective evaluation and monitoring of juvenile justice policies and practices.(110) As indicated the CROC Committee has been critical of the mandatory detention regimes,(111) particularly in relation to their potential impact on indigenous youth.(112)

On the other hand, there has been strong opposition based on federalism and the distribution of power. States and Territories have primary legislative responsibility for criminal and child welfare matters and are likely to be critical of Commonwealth interference. Western Australia and the Northern Territory have already expressed concern at the possibility that the Commonwealth Parliament would pass this Bill.(113)

Legislative Power

Capacity to Legislate

A key issue in relation to this Bill is whether the Commonwealth Parliament can legislate to prevent States and Territories from passing or exercising mandatory detention laws. The Commonwealth Parliament does not have a general power to legislate with respect to criminal law or children. While it has been able to legislate on a range of issues affecting children, there are doubts as to whether it could legislate with respect to juvenile justice.(114)

The Commonwealth Parliament does have a plenary power in respect of Territories.(115) This power was used to support the anti-euthanasia law passed by the Commonwealth Parliament in 1996.(116) Arguably, it could be used to invalidate the Northern Territory mandatory sentencing regime both in respect of juveniles and adults.(117)

The Commonwealth Parliament also has a power with respect to external affairs.(118) Among other things, this power supports laws with respect to matters affecting our relations with other nations and specifically it supports laws implementing our treaty obligations or obligations reasonably apprehended from the terms of treaty.(119) It may also support laws that give effect to other international obligations,(120) or address other matters that the international community regards as a proper matter for international action.(121) Either way, legislation must be reasonably capable of being considered appropriate and adapted to achieving the purpose or object ascribed to the obligation by the international community.(122) Expectations of the external affairs power were pared back in Victoria v The Commonwealth: doubts may arise where legislation only partly implements a treaty, expands upon a regime established in a convention or seeks to implement non-binding recommendations that are independent of a treaty or convention.(123)

International Obligations

The key issue in relation to the external affairs power is the extent to which Australia's international obligations prohibit mandatory detention. It would be sufficient to demonstrate that mandatory detention offends specific obligations arising from the treaties described above, or obligations that can be apprehended from those treaties. It may be sufficient to demonstrate that mandatory detention is a matter that the international community has denounced or proscribed.

The mandatory detention regimes in Western Australia and the Northern Territory do not appear to offend specific treaty obligations. Neither the ICCPR nor CROC directly prohibits mandatory sentencing. Commentators commonly refer to the articles relating to 'arbitrary detention' and 'appellate review' on the basis that the binding nature of the legislation makes sentencing decisions arbitrary and unreviewable. However, there is doubt as to whether these articles actually proscribe mandatory detention. In international jurisprudence the prohibition on 'arbitrary detention' has been interpreted simply to require that detention be 'in accordance with the law',(124) and there is nothing to suggest that the requirement for 'appellate review' would demand anything more than a general right of appeal to a higher court.(125) Clearly, juveniles in Western Australia and the Northern Territory are sentenced in accordance with the law and retain a right of appeal.

Commentators also refer to other articles in CROC. They argue that mandatory detention is not necessarily used as a last resort or for shortest possible period and nor does it appear to take into account the needs of the offender or promote his or her dignity and self worth. They also argue that the laws do not promote the use of informal proceedings. The difficulty with these arguments is that the obligations described above are imprecise and open textured leading to uncertainty in their interpretation and application.(126) This fact alone should not necessarily be an obstacle for the Commonwealth Parliament.(127) But it is likely to pose significant obstacles to passage of this Bill.

The stronger argument would seem to be that mandatory detention regimes offend apprehended obligations. The obligations discussed above strongly suggest an implicit prohibition on mandatory detention. They suggest that the international community would expect parties to the convention to avoid criminal justice regimes that seek to emphasise retribution and community protection rather than rehabilitation of juveniles. This observation is strengthened by the existence of various non-binding rules and guidelines identified above. These emphasise the need for judicial discretion(128) and proportionality(129) in sentencing. They stress that courts should focus on the needs of juvenile offenders(130) and utilise non-custodial sentencing options.(131) They emphasise that detention should be a last resort and should be limited to serious offences.(132) The difficulty with this argument is the uncertainty discussed above surrounding the scope of the external affairs power in its application to apprehended obligations and other matters of international concern.

Consequences for this Bill

While the Commonwealth Parliament may have a power to prohibit mandatory detention, it is unclear whether the Bill would be considered a valid exercise of that power. Arguably, the Territories power could be used to support the entire Bill as it applies to the Territories. But it could not be used to support the Bill as it applies to the States. Likewise, it is possible that the external affairs power could be used to support the Bill as it applies to juveniles. But it may not be able to support the Bill to the extent that it relates to adults in respect of prior juvenile offences.

The issue is whether the treaties, rules and guidelines discussed above contain or imply a relevant obligation.(133) Given these considerations, it may be necessary to consider whether or not the Bill could be read down to fit within the Territories or external affairs powers. Ordinarily Commonwealth Acts will be interpreted so as not to exceed legislative power.(134) However, difficulties may arise where a single provision intentionally deals with disparate subject matters.(135) Such difficulties might arise in relation to the application of clause 5 to adults.

If the Commonwealth were able to enact valid legislation, the effect would be immediate. The mandatory detention regimes in Western Australia and the Northern Territory would automatically be invalidated. While the relevant laws would survive, individual provisions would be read down to the extent that they were inconsistent with the prohibition in the Commonwealth Act.(136) Likewise, any subsequent Commonwealth law that sought to impose a mandatory detention requirement would be invalid unless it expressed a clear intention. In other words, any subsequent Commonwealth law that clearly and unambiguously imposed a mandatory sentencing requirement would be valid, notwithstanding the prohibition in clause 5 of the Bill.(137)

Caveats

In exercising either of the legislative powers discussed, a key issue for the Commonwealth Parliament will be the reaction of the States and Territories. In relation to the Territories power, there is likely to be stern objection the Bill on the basis that it is an ad hoc, discriminatory intrusion into the Territory's affairs which creates uncertainty and trespasses on parliamentary sovereignty.(138) In relation to the external affairs power, there is likely to be strong resistance on the basis that it is an attempt to effect a de facto bill of rights that trespasses on 'state's rights' and threatens federalism.(139) Political constraints, particularly in relation to federalism and the balance of power, mean that the Territories power and the external affairs power will only be exercised in exceptional circumstances.(140)

Conclusion

Despite an apparent 'paradigm shift', there is still a strong emphasis on welfare considerations in juvenile justice. All jurisdictions, including Western Australia and the Northern Territory,(141) accept that rehabilitation should be a goal of juvenile justice and that detention is not the preferred option for this end.(142) However, it seems that, with respect to repeat offenders, there is now a strong emphasis in Western Australia and the Northern Territory on retribution and deterrence with rehabilitation being diminished or dismissed.(143)

The reasons for the enactment of mandatory detention regimes appear to be clear. The focus is clearly on general deterrence and incapacitation. As indicated above, the key issues seem to be: recidivism on the part of a small group of juveniles; community perceptions, concerns and expectations of juvenile crime and juvenile justice; the needs of the community over the needs of the individual; and the balance of power between parliament and the judiciary in determining and implementing social policy.

The consequences of these regimes are less certain. There are insufficient reliable statistics and the jury is still out on the legal, social and other impacts of mandatory sentencing. Most commentators agree that detention rates have increased, that the cost of administering justice has increased and that the regimes will have a significant adverse impact on indigenous youth. Many also suggest that the Commonwealth Government has an international obligation to address these issues and that the Commonwealth Parliament has the capacity to legislate to this end. These issues form the basis of the inquiry by the Legal and Constitutional References Committee.(144)

Endnotes

  1. For example: Young Offenders Act 1997 (NSW), Juvenile Justice Act 1992 (Qld), Young Offenders Act 1993 (SA), Young Offenders Act 1994 (WA), Juvenile Justice Act 1983 (NT).

  2. Children and Young Persons Act 1989 (Vic), Children's Services Act 1986 (ACT).

  3. For example: crime prevention programs, police cautions, diversionary programs, conferencing, and intervention panels.

  4. For example: age of juveniles, provisions for custody in prison, and maximum penalties, community based orders, probation and parole.

  5. See generally, Australian Law Reform Commission, Seen and Heard, Report No 84, September 1997, pp 141-158.

  6. See Royal Commission into Aboriginal Deaths in Custody, National Report: Vol. 2, Commissioner Elliott Johnstone QC, AGPS, Canberra 1991, p 268-269; Ian O'Connor, 'Models of Juvenile Justice' in Christine Alder (Ed.), Juvenile Crime and Juvenile Justice, Australian Institute of Criminology, Research and Public Policy Series No 14, 1998, 12-15, p 1; Fay Gale, Ngaire Naffine and Joy Wundersitz, Juvenile justice: Debating the issues, 1993, p 1-17; Ian Connor, 'Models of Juvenile Justice', in Allan Borowski and Ian Connor, Juvenile Crime Justice and Corrections, Longman, Melbourne, 1997, pp 229-253.

  7. For example, Queensland has strengthened penalties for juveniles in respect of 'life offences', providing for imprisonment for 10 years or life imprisonment (if the offence is particularly heinous and involves violence against a person): Juvenile Justice Act 1992 (Qld), s. 121(3)(b); Northern Territory has strengthened penalties in respect of community service orders, allowing an additional 'punitive work order' to shame juveniles: Juvenile Justice Act (NT), ss. 53AH-AM.

  8. Crimes (Serious and Repeat Offenders) Sentencing Act 1992 (WA). Violent offences included: murder, manslaughter, grievous bodily harm, actual bodily harm, serious assaults and robbery (s. 4).

  9. Crimes Amendments (Mandatory Life Sentences) Act 1996 (NSW).

  10. Sentencing Amendment Act 1996 (NT); Criminal Code Amendment Act 1996 (WA).

  11. Juvenile Justice Amendment Act 1996 (NT); Sentencing (Consequential Provisions) Act 1995 (WA).

  12. Criminal Code (WA) s. 401(4). Arguably, every single subsequent residential burglary would attract the same penalty.

  13. Criminal Code (WA) s. 401(6) and Young Offenders Act 1994 (WA) s. 126.

  14. Criminal Code (WA) s. 401(6) and Young Offenders Act 1994 (WA) s. 118(4).

  15. Young Offenders Act 1994 (WA) ss. 126-128.

  16. Helen Bayes, 'Punishment is Blind: Mandatory sentencing of children in Western Australia and the Northern Territory', University of New South Wales Law Journal, 22(1), 1999, pp 286-289, p 287.

  17. A report is due to be submitted in 2001: Bayes, op. cit., p 287.

  18. Juvenile Justice Act (NT), s. 53AE-AG. The mandatory provisions could apply in the case where a juvenile, having been convicted of a property offence, is subsequently convicted of an earlier property offence: s. 53AE(5).

  19. ibid., Schedule 1 and Criminal Code Act (NT), Part VII, Division 1.

  20. Juvenile Justice Act (NT), s. 53AF(1).

  21. ibid., s. 53AE(2)(c), inserted by Juvenile Justice Amendment Act (No. 2) 1999.

  22. Criminal Code (WA) s. 401(4)(a).

  23. Sentencing Act 1995 (NT), s. 78A(1).

  24. ibid., s. 78A(2).

  25. ibid., s. 78A(3).

  26. Juvenile Justice Act (NT), s. 3(1). Juveniles who turn 17 during a period of detention must be transferred to a prison to serve the remainder of their term of imprisonment: s. 53AG(2).

  27. Sentencing Amendment Act 1998 (NT), s. 21.

  28. Although it appears that Western Australian courts will consider offences over two years old to be 'spent': Bayes, op. cit., p 288.

  29. Concluding observations of the Committee on the Rights of the Child: Australia, UN Doc. CRC/C/15/Add.79, 21 October 1997, para. 27.

  30. Australian Law Reform Commission, Speaking for ourselves: Children and the legal process, Issues Paper No 18, March 1996; Australian Law Reform Commission, Seen and Heard, Report No 84, September 1997.

  31. Joint Standing Committee on Treaties, op. cit., p 424.

  32. Law Council of Australia, 'NT Government's Expansion of Mandatory Sentencing Highly Questionable', Press Release, 7 June 1999.

  33. They were the subject of a motion passed by the Senate in April 1999: Senate Journals, 29 April 1999, p 809.

  34. See discussions by ALRC, 1997, op. cit., p 552 and Human Rights and Equal Opportunity Commission, Submission to the Inquiry by the Joint Standing Committee on Treaties Into the Status of the United Nations Convention on the Rights of the Child, July 1997, pp 42-45.

  35. Amnesty International, 'Asia-Pacific regional country index: Australia', Annual Report 1999. See also criticisms by non-government organisations in Joint Standing Committee on Treaties, op. cit., Chapter 8.

  36. Satyanshu Mukherjee, Carlos Carcach and Karl Higgins, Juvenile Crime and Justice: Australia 1997, Australian Institute of Criminology Research and Public Policy Series: No. 11, pp 11-48; Lois Schetzer, 'A year of bad policy: Mandatory sentencing in the Northern Territory', Alternative Law Journal, 23(3), June 1998, pp 111-120; Bayes, op. cit.; Chip Le Grand, Maria Ceresa, 'Three Strikes - the Jury's Out', The Australian, 11 December 1998, p 6; George Zendowski, 'Mandatory Imprisonment of Property Offenders in the Northern Territory', Indigenous Law Bulletin, Vol. 4(17), pp 14-15; George Zendowski, 'New Challenge to NT Mandatory Sentencing: Bob Brown's Abolition of Compulsory Imprisonment Bill 1998', Indigenous Law Bulletin, Vol. 4(18), pp 16-17.

  37. Helen Bayes, 'Punishment is Blind: Mandatory sentencing of children in Western Australia and the Northern Territory', University of New South Wales Law Journal, 22(1), 1999, p 286.

  38. Martin Flynn, 'Fixing a sentence: Are there any constitutional limits?', University of New South Wales Law Journal, 22(1), 1999, pp 280-285.

  39. RCIADIC, Vol. 2, op. cit., pp 92-121.

  40. The Prime Minister stated on Perth radio 6PR: 'It won't be attracting government support so it can't become law': 'Mandatory Sentencing bill doomed', AAP Newswire, 25 August 1999, Story No 1328. So too the Attorney General: 'Federal bid to reverse NT, WA jail laws', The Canberra Times, 25 August 1999, p 2.

  41. Parliamentary Debates, Wednesday 1 September 1999, pp 7794-5.

  42. For a critique of these models see: Ian Connor, 1997, op. cit..

  43. That is, the effect that diversionary programs had in widening the justice net, involving juveniles in semi-formal processes that brings them to the early attention of more formal processes: RCIADIC, Vol. 2, op. cit., p 271.

  44. For example, the practice of using long term detention to serve a child welfare objective: RCIADIC, Vol. 2, op. cit., pp 268-269.

  45. That is, that juvenile offenders are to be treated as the victims rather than the perpetrators of crime: Le Grand & Ceresa, op. cit., p 6

  46. The Hon. Denis Burke, Parliamentary Debates, 17 October 1996, p 9685, Second Reading Speech: Juvenile Justice Amendment Bill. The Hon. Peter Foss, Parliamentary Debates, August 1996, p 4429, Second Reading Speech: Criminal Code Amendment Bill (No 2). The Hon. Cheryl Edwardes, Parliamentary Debates, 25 May 1995, p 4255, Second Reading Speech: Sentencing Bill 1995. See also oral submissions reported in: Joint Standing Committee on Treaties, op. cit., pp 340 and 342.

  47. The Hon. Cheryl Edwardes, Parliamentary Debates, 25 May 1995, p 4255, Second Reading Speech: Sentencing Bill 1995; The Hon. Denis Burke, Parliamentary Debates, 17 October 1996, p 9686; The Hon. Peter Foss, Parliamentary Debates, 22 August 1996, p 4429; The Hon. Michael Reed, Parliamentary Debates, 1 June 1999, p 3427, Second Reading Speech: Juvenile Justice Amendment Bill 1999. The Hon. Dr Carmen Lawrence, Parliamentary Debates, 5 February 1992, p 7899, Second Reading Speech: Crimes (Serious and Repeat Offenders) Sentencing Bill 1992, p 7905. Joint Standing Committee on Treaties, op. cit., pp 150-160.

  48. The Hon. Dr Carmen Lawrence, Parliamentary Debates, 5 February 1992, p 7899.

  49. The Hon. Denis Burke, Parliamentary Debates, 17 October 1996, p 9686. Le Grand & Ceresa, op. cit., p 6.

  50. Le Grand & Ceresa, op. cit., p 6.

  51. Le Grand & Ceresa, op. cit., p 6.

  52. Joint Standing Committee on Treaties, op. cit., pp 150-160.

  53. The Hon. Shane Stone, Parliamentary Debates, 22 April 1998, p 963.

  54. See generally Halsbury's Laws of Australia, 'Title 130 - Criminal Law' [130-17000].

  55. Lowe v R (1984) 154 CLR 606 at 612. See generally Halsbury's Laws of Australia, 'Title 130 - Criminal Law' [130-17025].

  56. Veen v R (1979) 143 CLR 458; Veen v R (No 2) (1988) 164 CLR 465; Hoare v R (1989) 167 CLR 348.

  57. Veen v R at 468 per Mason J, at 482-3 per Jacobs J; Veen v R (No 2) at 473; Chester v R (1988) 165 CLR 611, at 618.

  58. See generally Halsbury's Laws of Australia, 'Title 130 - Criminal Law' [130-17050].

  59. ibid., [130-17000].

  60. However, the offender's age and criminal record and the seriousness and prevalence of the offence are mitigating factors: ibid., [130-17105].

  61. The issue of separation of powers and the need for public confidence in the independence of State courts was discussed in Kable v DPP (NSW) (1996) 189 CLR 51. See also Peter Johnson and Hardcastle, 'State Courts: The Limits of Kable', 1998, Sydney Law Review 214.

  62. The argument suggests that the doctrine is either implicit in the Self Government Act or that judicial power in the Northern Territory is exercised subject to the Commonwealth Constitution: See Wynbyne v Marshall (1997) 117 NTR 11 and the discussion in Martin Flynn, op cit., p 283.
  63. See the transcript of Wynbyne v Marshall D174/1997 [http://www.austlii.edu.au/do/disp.pl/au/other/hca/transcripts/1997/D174/1.html]
    13 September, 1999.

  64. [1999] HCA 44, 2 September, 1999.

  65. The ICCPR was adopted by the UN General Assembly in 1966 and came into operation in 1976. Australia signed it on 18 December 1972 and ratified it on 13 August 1980. Australia signed the First Optional Protocol on 25 September 1991. The First Optional Protocol came into effect on 1 December 1991.

  66. The CROC was adopted by the UN General Assembly in 1989 and came into operation in 1990. Australia signed it on 22 August 1990 and ratified it, with a reservation to Article 37(c) regarding separate imprisonment, on 17 December 1990.

  67. ICCPR, Article 9(1); CROC, Article 37(b).

  68. ICCPR, Article 14(5); CROC, Article 40(2)(b)(v).

  69. Article 37(b).

  70. Article 37(c).

  71. Article 40(1).

  72. Article 37(c).

  73. Article 40(3)(b).

  74. Article 40(4).

  75. See UN Standard Minimum Rules for the Administration of Juvenile Justice 1985 (the 'Beijing Rules'): UN General Assembly resolution 40/33 of 29 November 1985, Annex. See also UN Rules for the Protection of Juveniles Deprived of their Liberty 1990, UN Standard Minimum Rules for Non-Custodial Measures 1990 (the 'Tokyo Rules'), and 1990 United Nations Guidelines for the Prevention of Juvenile Delinquency (the 'Riyadh Guidelines'): UN General Assembly resolution 45/110 of 14 December 1990, Annex.

  76. For example, Morgan, 1999, op. cit., p 271.

  77. For example, Information on Departmental Juvenile Justice Services in the NT, quoted in Schetzer, 1998, op. cit., pp 111-120.

  78. Morgan, 1999, op. cit., p 271.

  79. Pontell, A Capacity to Punish. The Ecology of Crime and Punishment, Indiana University Press, Bloomington, 1984.

  80. The Hon. Jeff Shaw, Parliamentary Debates, 17 April 1996, p 84, Second Reading Speech: Crimes Amendment (Mandatory Life Sentences) Bill 1996.

  81. The Hon. Dr Carmen Lawrence, Parliamentary Debates, 5 February 1992, p 7899.

  82. The Hon. Denis Burke, Parliamentary Debates, 17 October 1996, p 9687.

  83. Morgan,1999, op. cit., p 275.

  84. Bayes, op. cit., p 288-289. Human Rights and Equal Opportunity Commission, Mandatory detention laws in Australia: An overview of current laws and proposed reform, August 1999, p 5-7. Lois Schetzer, 'NT Mandatory Sentencing - 12 Months of Bad Policy', 1998, [http://www.nt.greens.org.au/public_html/mandsen1.htm, 7 August 1999.

  85. ALRC, 1997, op. cit., p 544.

  86. Mukherjee, et al, op. cit., p 49. These figures were produced from a national police custody survey in August 1995.

  87. NSW Dept of Juvenile Justice, Recidivism of Juvenile Offenders in New South Wales, 1996, discussed in Michael Cain, 'An Analysis of Juvenile Recidivism', in Christine Alder (Ed.), Juvenile Crime and Juvenile Justice, Australian Institute of Criminology, Research and Public Policy Series No 14, 1998, pp 12-15, p 13.

  88. ibid..

  89. RCIADIC, Vol. 2, op. cit., p 252.

  90. ibid., p 265.

  91. ibid., p 264.

  92. This observation was made in relation to indigenous offenders generally: Royal Commission into Aboriginal Deaths in Custody, National Report: Vol. 3, Commissioner Elliott Johnstone QC, AGPS, Canberra, p 61.

  93. Human Rights and Equal Opportunity Commission, Bringing them home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families, April 1997, Sterling Press, p 527.

  94. RCIADIC, Vol. 3, op. cit., p 93.

  95. HREOC, Bringing Them Home Report, 1997, op. cit., p 527.

  96. ibid., p 527.

  97. RCIADIC, Vol. 3, op. cit., p 62.

  98. HREOC, Submission to the Treaties Committee, 1997, op. cit., p 41.

  99. Bayes, op. cit., p 287.

  100. The Hon. Shane Stone, Parliamentary Debates, 22 April 1998, p 966, Ministerial Statement: Effects of Mandatory Sentencing.

  101. Lois Schetzer, 'NT Mandatory Sentencing - 12 Months of Bad Policy', 1998, [http://www.nt.greens.org.au/public_html/mandsen1.htm], 7 August 1999.

  102. The Hon. Shane Stone, Parliamentary Debates, 22 April 1998, p 967.

  103. RCIADIC, Vol. 3, op. cit., p 63; Neil Morgan, 'Non-custodial Sentences Under WA's New Sentencing Laws: Business as Usual or a New Utopia?', University of Western Australia Law Review, 26, 1996, pp 364-388, p 368.

  104. National Children's and Youth Law Centre, 'Mandatory Sentencing Continues to Disgust', Rights Now, July 1999.

  105. See DPP v DCJ (a Child), unreported, Children's Court of Western Australia, 10 February 1997; DPP v RJM (a Child), unreported, Children's Court of Western Australia, 19 March 1997, and DPP v DCJ (a Child), unreported, Children's Court of Western Australia, 10 February 1997; Trennery v Bradley, unreported, Supreme Court of the Northern Territory, 20 June 1997; and McMillan v Price, Supreme Court of the Northern Territory, 20 June 1997. See also the discussion in HREOC, Submission to the Treaties Committee, 1997, op. cit., p 43 and Bayes, op. cit., p 288 and a casenote: David Saylor, 'Three strikes by the burglar: The Police v DCJ (a child)', Indigenous Law Bulletin. Vol. 4(2), pp 14-15.

  106. Honor Figgis, Mandatory and Guideline Sentencing: Recent Developments, New South Wales Parliamentary Library Service, Briefing Paper No 18/98, p 30. Bayes, op. cit., p 288.

  107. Dr Kathryn Cronin, 'The Failings of Federalism - Juvenile Justice Issues in Australia', Current Issues in Criminal Justice: Journal of the Institute of Criminology, Vol. 9(2), November 1997, p 111.

  108. ALRC, 1997, op. cit., p 467.

  109. HREOC, Bringing Them Home Report, 1997, op. cit., pp 593-596.

  110. ibid., p 596.

  111. Concluding observations of the Committee on the Rights of the Child: Australia, UN Doc. CRC/C/15/Add.79, 21 October 1997, para 21.

  112. ibid., para 22 & 32.

  113. Carine Tan-Van Baren and Julie Butler, 'Butt out of laws, Court tells Senate', The West Australian, 26 August 1999; Camden Smith and Maria Moscaritolo, 'Opposition "passes sentence" on bill', Northern Territory News, 25 August 1999.

  114. Joint Standing Committee on Treaties, op. cit., p 23. See specifically Australian Law Reform Commission, Submission to the Inquiry into the status of the United Nations Convention on the Rights of the Child in Australia, Submission No 382, p 2155i.

  115. Constitution, s. 122.

  116. Euthanasia Laws Act 1996 (Cth).

  117. For a discussion see Zendowski, 'New Challenge to NT Mandatory Sentencing', op. cit.

  118. Constitution, s. 51(29). For a discussion of the scope of the external affairs power see the discussion in Senate Legal and Constitutional References Committee, Trick or Treaty? Commonwealth Power to Make and Implement Treaties, November 1995, Chapter 5.

  119. That is, obligations that are apprehended from a reasonable interpretation of existing treaties: State of Queensland v The Commonwealth (1989) 167 CLR 232; Richardson v The Forestry Commission (1988) 164 CLR 261, per Mason CJ and Brennan J at 295, per Wilson J at 298, per Deane J at 313, per Dawson J at 327, and per Gaudron J at 343.

  120. Koowarta v Bjelke-Petersen (1982) 153 CLR 168, per Mason J at 234 and Murphy J at 241-242; Commonwealth v Tasmania (1983) 158 CLR 1, per Mason CJ at 130, Murphy J at 177-178 and Deane J at 258-259.

  121. Commonwealth v Tasmania (1983) 158 CLR 1, per Gibbs CJ at 101.

  122. Victoria v The Commonwealth (1996) 187 CLR 416, per Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ at 487-488.

  123. Victoria v The Commonwealth (1996) 187 CLR 416 per Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ at 468-489.

  124. Human Rights Committee, General Comment 8, Article 9 (Sixteenth session, 1982), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI\GEN\1\Rev.1 at 8 (1994).

  125. See generally Human Rights Committee, General Comment 13, Article 14 (Twenty-first session, 1984), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI\GEN\1\Rev.1 at 14 (1994).

  126. See the discussion in Joint Standing Committee on Treaties, op. cit., p 23.

  127. Victoria v The Commonwealth (1996) 187 CLR 416, per Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ at 486.

  128. 1990 United Nations Rules for the Protection of Juveniles Deprived of their Liberty, para 2; 1985 United Nations Standard Minimum Rules for the Administration of Juvenile Justice, para 6.1.

  129. 1985 United Nations Standard Minimum Rules for the Administration of Juvenile Justice, para 5.1, 17.1.

  130. ibid., para 5.1, 27.2

  131. 1990 United Nations Standard Minimum Rules for Non-Custodial Measures.

  132. 1985 United Nations Standard Minimum Rules for the Administration of Juvenile Justice, para 17.1, 19.1; Riyadh Guidelines, para 6.

  133. Neither ICCPR nor CROC address this issue, but it is covered in 1985 United Nations Standard Minimum Rules for the Administration of Juvenile Justice, para 21.2.

  134. Acts Interpretation Act 1901 (Cth), s. 15A.

  135. See Patrick Lane, Lane's Commentaries on The Australian Constitution, Law Book Company, Sydney, 1997, pp 918-919.

  136. Constitution, s. 109.

  137. See Lane, op cit., p 767.

  138. These arguments were raised in relation to the Euthenasia Laws Bill 1996: Senate Standing Committee for the Scrutiny of Bills, Alert Digest No. 7/96, 18 September 1996, p 18; Senate Legal and Constitutional Legislation Committee, Consideration of the Legislation Referred to the Committee: Euthanasia Laws Bill 1996, March 1997, p 3. They might also apply to this Bill: Zendowski, 'New Challenge to NT Mandatory Sentencing', op. cit., p 16.

  139. See the discussion in Senate Legal and Constitutional References Committee, 1995, op. cit., Chapter 5.

  140. Senate Legal and Constitutional Legislation Committee, 1996, op. cit., p 115; Senate Legal and Constitutional References Committee, 1995, op. cit., pp 116-119.

  141. In Western Australia the mandatory detention provisions were introduced alongside a legislative and policy commitment to increased sentencing options and rehabilitation programs: The Hon. Cheryl Edwardes, Parliamentary Debates, 25 May 1995, p 4255, Second Reading Speech: Sentencing Bill 1995. In the Northern Territory the provisions were introduced subject to the caveat that they were not intended to supplement existing diversionary programs: The Hon. Denis Burke, Parliamentary Debates, 17 October 1996, p 9685.

  142. ALRC, 1996, op. cit., p 98.

  143. Le Grand & Ceresa, op. cit., p 6.

  144. Parliamentary Debates, Wednesday 1 September 1999, pp 7794-5.

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