I will turn now to the jurisdiction I know best and will report on in most detail – Australia.[4] AustraliaLaws in two of Australia’s jurisdictions - Western Australian and the Northern Territory - were specifically criticised for by the Committee on the Rights of the Child in its 1997 comments on Australia’s First Report Under Article 44(1)(a) Of The United Nations Convention On The Rights Of The Child. A key dimension to the criticisms was the racially discriminatory effect of those laws: “The Committee is particularly concerned by the enactment of new legislation in two States, where a high percentage of Aboriginal people live, which provides for mandatory detention and punitive measures of juveniles, thus resulting in a high representation of Aboriginal juveniles in detention.”[5] In addition, the mandatory sentencing laws of the Northern Territory and Western Australia were specifically criticised by the Committee on the Elimination of Racial Discrimination in its 2000 concluding observations on Australia’s Tenth, Eleventh and Twelfth Periodic Reports Under the United Nations Convention on the Elimination of All Forms of Racial Discrimination: “The Committee expresses its concern about the minimum mandatory sentencing schemes with regard to minor property offences enacted in Western Australia, and in particular in the Northern territory. The mandatory sentencing schemes appear to target offences that are committed disproportionately by indigenous Australians, especially in the case of juveniles, leading to a racially discriminatory impact on their rate of incarceration. The Committee seriously questions the compatibility of these laws with the State party’s obligation under the Convention and recommends the State party to review all laws and practices in this field.”[6] Mandatory Detention Laws in Western AustraliaOn 14 November 1996, amendments to the Criminal Code (WA) introducing a system of mandatory sentencing came into effect. The amendments provide that if a person is convicted of a home burglary, and is a ‘repeat offender’, than that person shall be sentenced to at least 12 months imprisonment. If the offender is a young person as defined in the Young Offenders Act 1994 (WA) - under the age of 18 - then that young person will be sentenced either to at least 12 months imprisonment, or to a term of at least 12 months detention. A ‘repeat offender’ is defined as having two previous convictions for the same offence - thus it is ‘three strikes and you're in’ legislation. The statute prohibits a court from suspending a term of imprisonment imposed under the mandatory sentencing provisions. Magistrates are able to order, in very limited circumstances, a Conditional Release Order (‘CRO’) alongside the period of detention, for young offenders, with the effect that the young person will not serve the sentence during the duration of the CRO. Whilst the availability of a CRO revives some element of judicial discretion, it is only available in extremely limited circumstances, and in no way alters the arbitrary nature of mandatory sentencing. Indeed, the sentence imposed under the mandatory sentencing provisions remains, and is reactivated if the CRO is breached. According to data reported in 1999, Western Australia had the highest rate of Indigenous imprisonment out of all jurisdictions (3,050 Indigenous persons per 100,000 adult population ) and the highest ratio of Indigenous to non-Indigenous rates of imprisonment (the Indigenous rate of imprisonment was 22 times the non-Indigenous rate). In terms of young people, Western Australia also had the highest rate of Indigenous youth detention of all jurisdictions (549.5 Indigenous young people per 100,000 relevant population - 53% higher than the national average, and 28% higher than the state with the next highest, New South Wales (430.6)).[7] Indigenous people made up over 55% of young people in juvenile detention in WA, yet are only 4% of the population of 10 to 17 year olds. From February 1997 until May 1998, Aboriginal children and young people constituted 80% of the mandatory sentencing cases in the Children’s Court of Western Australia. Despite a change in State Government after recent polls, the legislation remains in force. Mandatory detention laws in the Northern TerritoryMandatory Sentencing became part of sentencing landscape in the Northern Territory on 8 March 1997 when amendments to the Sentencing Act 1995 (NT) and the Juvenile Justice Act 1983 (NT) came into effect. For certain property offences it created ‘one strike and you’re in’ for adults and ‘two strikes and you’re in’ for young people. Under the amendments to the Sentencing Act 1995 (NT), adults found guilty of specified property offences shall be sentenced to a mandatory minimum term of imprisonment of 14 days for a first offence, a mandatory minimum sentence of 90 days for the second offence of such type, and for a third or subsequent offence in the specified category, a mandatory minimum term of imprisonment is one year. No such term of imprisonment may be served concurrently with any other term of imprisonment. In June 1999, the legislation was amended to provide courts with a limited discretion not to impose a term of imprisonment under the mandatory sentencing provisions, in ‘exceptional circumstances’. These are defined to include where the offender has committed a trivial offence, co-operated with police, is of good character, and has attempted to make restitution. The limited nature of the discretion is such that it is only available in very few cases, and fails to address the inflexibility and arbitrariness of the mandatory sentencing laws. For example, on 16 February 2000 a Magistrate was forced to sentence a 22-year-old Aboriginal man to a year’s imprisonment for his third offence. He had stolen biscuits and cordial worth AUD $23.[8] If a young person is convicted of a relevant property offence (e.g. theft, criminal damage, unlawful entry to buildings),[9] and has at least one prior conviction for such an offence, then that person must be sentenced to a period of detention for at least 28 days. Under the June 1999 amendments, where the young person’s second offence would invoke the mandatory detention provisions, magistrates now have a discretion to refer the young person to attend a diversionary program rather than face 28 days in detention. When the program has been completed by the young person, the matter is referred back to court for final decision, at which time magistrates still have a discretion to sentence the young person to a period of detention. Importantly, once a young person has been referred to a diversionary program, they can never be referred to such a program again, thus reviving the mandatory detention provisions for future convictions. Since mandatory detention sentencing was introduced in the smaller populated Northern Territory, the growth and rate of growth in juvenile detention has been higher than in any other jurisdiction. Seventy-three per cent of all juveniles in juvenile corrective institutions were Indigenous according to the Northern Territory Correctional Services Annual Report (1997-1998) and their most common offence was ‘break and enter’, a mandatory detention offence. A review conducted by the Northern Australian Aboriginal Legal Aid Service of all of its clients charged under mandatory sentencing since the legislation came into effect in March 1997 found that 70% of offences for which Aboriginal people were jailed were committed on Aboriginal communities. According to the same review, 79% of Aboriginal people jailed under mandatory sentencing were under the age of 25. Only 21% had completed secondary school and 68% spoke English as a second language. According to police crime clean up rate statistics, close to 100% of offences committed on Aboriginal communities are solved, compared to only 16% in metropolitan Darwin - a consequence of policing practices on Aboriginal communities resulting in more offenders being apprehended. In addition, in spite of making up only 25% of the overall population of the Northern Territory and 32% of the population aged between 12-25, Indigenous people make up 76% of the adult prison population in the Northern Territory, and 73% of the juvenile detention centre population in the Northern Territory. On 10 February 2000 a boy known as ‘Johnno’, aged 15, died in Darwin Hospital after hanging himself at a detention centre while undergoing a mandatory 28-day term of detention for theft.[10] He had served 24 days of his sentence. The editorial of a major Australian newspaper said: “NO DEGREE of persecution complex on the part of the Northern Territory Chief Minister, Mr Denis Burke, can change the fact that the death of a 15-year old Aboriginal, Johnno..., is a result of the territory's draconian sentencing laws. "People will rub their hands with glee and say Burke's got blood on his hands because of mandatory sentencing," Mr Burke said last week. It was "the lowest of the low" to suggest that [the boy] had died because of mandatory sentencing, he complained. Mr Burke is wrong on both counts. No one is rubbing their hands over the death of the youth, who did not have enough command of the English language to understand the system that jailed him, whose parents were dead and whose guardian, his grandmother, was ill in hospital; and the tragedy has everything to do with laws that put people in jail for trivial offences - in this case the theft of $90 worth of pens, pencils and paint. If it were not for mandatory sentencing, which allows magistrates and judges no discretion, it is most unlikely that this boy would have been in prison.”[11] The death prompted significant public outrage against the laws. As a result, the Australian federal government in consultation with the Chief Minister of the Northern Territory sought to broker an arrangement to deal with the worst aspects of the mandatory sentencing laws in the Northern Territory. Specifically, the arrangement endeavoured to allow the Australian federal government to avoid its obligations to enact overriding legislation to repeal the laws. The arrangement involved the following:
Northern Territorians went to the polls in August of this year and ousted the sitting party. The new Government has promised to repeal the laws however this has not yet occurred and the detail of what sentencing policy will be enacted is yet to be seen. BangladeshThere are provisions in the Women and Children Anti-Oppression Act 2000 and the Public Safety (Special Enactment) Act 2000 which provide for the imposition of minimum terms of imprisonment varying from 2 to 7 years. These apply to both adults and children who have attained the age of 7.[13] FijiUnder Fijian Law, the juvenile justice jurisdiction extends to children under the age of 17, under the Juveniles Act. Children between 17 and 18 are treated as adults in the justice system. Offences with mandatory dispositions are as follows: “1.Murder, contrary to the Penal Code carries a mandatory sentence of life All sentences apply to adults and children alike, although children are incarcerated in juvenile facilities until they turn 17. The [Committee on the Rights of the Child] has expressed disapproval of the drugs law insofar as it applies to children under 18. In real terms it is the only law which affects children in Fiji.”[14] In State v Pickering,[15] Shameem J was required to consider a reference by the Suva Magistrates Court to the High Court of Fiji by way of case stated. Answers were sought to the following questions: “1.Is section 8(b) of the Dangerous Drugs Act, as amended by the Dangerous Drugs Act (Amendment) Decree No. 4 of 1990 and the Dangerous Drugs (Amendment) Decree No. 1 of 1991, in breach of section 25(1) of the Constitution? 2.Is the mandatory term of imprisonment liable to be imposed on the offender in this case, disproportionately severe punishment and in breach of section 25(1) of the Constitution?” Pickering, was a twenty year old man with no previous convictions, was charged with in possession of 4.7 grams of dangerous drug namely, Indian hemp. His counsel asked the Director of Public Prosecutions to withdraw the charge, but the request was refused. His counsel then made a successful application to the Resident Magistrate to refer the constitutional questions to the High Court. Relevantly for the case before her Honour, Shameem J recorded the following constitutional provisions: “On 27th July 1998, the Constitution Amendment Act 1997 came into effect. Section 2 provides: “(1) This Constitution is the supreme law of the State. (2) Any law inconsistent with this Constitution is invalid to the extent of the inconsistency.” Section 3 provides: “In the interpretation of a provision of this Constitution: (1) a construction that would promote the purpose or objective underlying the provision taking into account the spirit of this Constitution as a whole, is to be preferred to a construction that would not promote that purpose or object; and (2) regard must be had to the context in which the Constitution was drafted and to the intention that constitutional interpretation take into account social and cultural developments, especially: (1) developments in the understanding of the content of particular human rights; and (2) development in the promotion of particular human rights.” Section 25(1) of the Constitution provides: “Every person has the right to freedom from torture of any kind, whether physical, mental or emotional, and from cruel, inhumane, degrading ordisproportionately severe treatment or punishment .” (My emphasis) Section 43(2) of the Constitution states, in relation to the Bill of Rights: “In interpreting the provisions of this Chapter, the courts must promote the values that underlie a democratic society based on freedom and equality and must, if relevant, have regard to public international law applicable to the protection of the rights set out in this Chapter.””(emphases in the original) Her Honour then conducted an extensive review of international jurisprudence concerning mandatory sentences which, with respect, I highly commend to you. She concluded as follows: “For the purposes of section 8(b) I consider that the possession of small amounts of Indian hemp, an offence akin to an absolute liability offence, by young people many of whom are first offenders, and whose personal circumstances are usually widely different, is an offence which cannot constitutionally lead to a mandatory term of imprisonment. There is no doubt that some offenders may deserve a term of imprisonment, and no doubt will be given one in the ordinary exercise of judicial discretion. However, the act of imprisoning all offenders regardless of good character, extreme youth, differing amounts of the drug and different circumstances explaining the possession, is a sentence which is grossly disproportionate to the offence. It is so disproportionate that it offends public standards of decency in Fiji, and is “startlingly inappropriate.” The amended form of section 8(b) insofar as it applies to the possession of Indian hemp below 10 grams, is therefore in violation of section 25(1) of the Constitution. Having made this finding, what results from it? In Namibia, in S -v- Vries (supra) the High Court said that where a punishment is found to be startlingly inappropriate or “shocking”, in a reasonably hypothetical case, there are four options open to the court (per Frank J. Gibson J concurring). (1)To declare the provision to be of no force and effect for all purposes; (2)To declare the provision to be of no force or effect only in a particular class of cases; (3)To declare the provision to be of no force or effect in respect of the particular case before the court; (4)To allow the legislature to cure the defect. In that case, the court found nothing objectionable with a term of imprisonment, what was objectionable was the length of it. There was therefore a “reading down” to allow the court to impose a lesser term of imprisonment. In this case, it is the mandatory imprisonment, that is objectionable, or “startlingly inappropriate” for reasonably hypothetical offenders in Fiji’s context. It is therefore not possible, given the clear words of the Decrees, to give the provision a restrictive interpretation as provided by section 43(3) of the Constitution. Nor is it practical at this time in Fiji’s history to await amendment through the legislative process. In the circumstances, I see no option other than to declare the amendment by Decrees No. 4 of 1990 and No. 1 of 1991 to section 8(b) of the Dangerous Drugs Act insofar as it applies to a minimum sentence for the possession of Indian hemp under 10 grams, to be unconstitutional and invalid. I do so in accordance with the powers of this Court under section 195(3) of the Constitution and section 41(3) of the Constitution. The maximum term of 24 months imposed by the Decrees for the offence remains.” South AfricaPrescribed sentencing is a variant on mandatory detention that is found in South Africa. Ann Skelton has described its history and anticipated effect as follows: “The South African Law Commission … in 1997… published an issue paper criticising mandatory minimum sentencing, and rejecting it as an option for South Africa. In a list of possible solutions[16] the issue paper includes presumptive sentencing guidelines, voluntary sentencing guidelines, principles of sentencing which determine the imposition of imprisonment, and as a final option “the enactment of mandatory minimum sentences combined with a discretion to depart from the sentences under certain conditions.” It was this option, the most retributive of all the options offered, which provided the inspiration for what was to become the Criminal Procedure Amendment Act no.105 of 1997. This amendment provides for minimum sentences ranging from a minimum of 5 years to life imprisonment for offences listed in schedule 2 to the Criminal Procedure Act. Different sentences are pre-scribed for first, second, third and subsequent offenders. The sentences must be imposed unless there are substantial and compelling reasons (the onus of showing these rest on the accused). The presiding officer must give written reasons for deviating from the minimum sentence. The initial draft of the legislation[17] included offenders under the age of 18 years within its ambit. Non governmental organisations rallied and made both written and oral submissions on the draft Bill to the Portfolio Committee on Justice , arguing[18] that the idea of minimum sentencing for children would go against the UN convention and the South African Constitution which both state that detention of children should be a measure of last resort, and that minimum sentences for children would in fact make imprisonment a first resort, notwithstanding the “escape clause” which would allow the court, in its discretion, to deviate from the minimum sentence. Perhaps as a result of these submissions, the Bill was changed so that children under the age of 16 years are now completely excluded from the ambit of the Criminal Law Amendment Act, and 16 and 17 year olds, whilst included in its ambit, are treated differently in that the onus is on the state to show that there are substantial and compelling reasons why the minimum sentence should be imposed. The reason for this change seemed to be influenced by the argument that a minimum sentence of imprisonment linked to an onus on the accused would be in breach of the international and constitutional provision that imprisonment of children should always be a measure of last resort.”[19] Section 51(1) of the Criminal Law Amendment Act, 105 of 1997 provides that: “Notwithstanding any other law but subject to subsections (3) and (6), a High Court shall, if it has convicted a person of an offence referred to in Part 1 of Schedule 2, sentence the person to imprisonment for life.” Subsection (3)(a) provides that: “If any court referred to in subsection (1) or (2) is satisfied that substantial and compelling circumstances exist which justify the imposition of a lesser sentence than the sentence prescribed in those subsections, it shall enter those circumstances on the record of the proceedings and may thereupon impose such lesser sentence.” Subsection (3)(b) provides that: “If any court referred to in subsection (1) or (2) decides to impose a sentence prescribed in those subsections upon a child who was 16 years of age or older; but under the age of 18 years, at the time of the commission of the act which constituted the offence in question, it shall enter the reasons for its decision on the record of the proceedings.” Subsection (6) provides that: “The provisions of this section shall not be applicable in respect of a child who was under the age of 16 years at the time of the commission of the act which constituted the offence in question.” These provisions were recently considered in Nkosi v The State. This was an appeal against a life sentence that was imposed on the appellant who was a 16 year old child at the time of the commission of the offences. At first instance, the trial judge took a different approach to the one described by Skelton. Nkosi was convicted on three counts, namely murder, housebreaking with intent to steal and the theft of goods worth R22 000,00 and housebreaking with intent to steal and attempted theft of a motor vehicle. He pleaded guilty to all counts and was sentenced to life imprisonment in respect of murder and 7 years’ imprisonment in respect of each of the housebreaking counts. The housebreaking sentences were ordered to run concurrently with the sentence of life imprisonment which was imposed in respect of the murder count. His co-accused pleaded not guilty. Their trials were therefore separate The appeal court found as follows: “The appellant was convicted of murder while acting pursuant to a common purpose. This offence falls within Part 1 of the Second Schedule of the Act. Section 51(1) read with section 51(3) was therefore applicable to him. The learned judge concluded that he was obliged to impose a sentence of life imprisonment upon the appellant unless there were “substantial and compelling” circumstances, which justified the imposition of a lighter sentence. Having considered both aggravating as well as mitigating factors, especially the youthfulness of the appellant, the Court a quo considered these to be substantial circumstances which may have justified a lesser sentence being imposed but did not compel it to do so. However the provisions of sections 51(3)(a) and 51(3)(b) require closer scrutiny. The Act envisages three classes of offender namely adults, children under the age of 16 and children who are between 16 and 18 at the time of the commission of the offence. The Act is not applicable to children under the age of 16. (section 51(6)). This means that a Court is unencumbered by any legislative prescriptions in deciding an appropriate form of punishment for such an offender. A Court is obliged to impose a minimum sentence on any offender who was at least 18 at the time of the commission of the offence unless it finds substantial and compelling circumstances exist which justify the imposition of a lesser sentence. If such circumstances are found to exist these must be entered on the record and a lesser sentence imposed. (section 51(3)(a)). Section 51(3)(b) which is applicable to children between the ages of 16 and 18 contains no reference to substantial and compelling circumstances, but requires a Court which decides to impose a minimum sentence to “enter the reasons for its decision on the record of proceedings”. In this case the learned judge made no distinction between sections 51(3)(a) and 51(3)(b). Having found that substantial and compelling circumstances don’t exist he imposed the minimum prescribed sentence, which in this case, was life imprisonment. It is plain that the legislature has differentiated between the position of the two classes of persons in sections 51(3)(a) and 51(3)(b). Mr Wilson, who appeared amicus curiae in this matter submitted that the differentiation only extended to the requirements for a Court to enter the reasons for the imposition of a minimum sentence on the record in the case of a child who is between the ages of 16 and 18. This, he submitted, was nothing more than an administrative act which did not detract from the obligation on the Court to impose the minimum unless substantial and compelling circumstances were found to exist. In my view this construction of section 51(3)(b) cannot be sustained. The distinction between sections 51(3)(a) and 51(3)(b) lies in the nature of the discretion that a Court has when considering the positions of the two classes of offender. In the former case a Court should ordinarily impose the prescribed sentence unless there is some weighty justification for the imposition of a lesser sentence. The legislature has therefore limited the discretion of a Court to depart from the minimum sentence (see S v Malgas (supra ) at 481h-i). In the latter case there is no reference at all to substantial and compelling circumstances. The express wording of the section only requires a Court to justify a decision to impose the prescribed sentence by entering its reasons on the record. It does not limit the Court’s discretion to impose an appropriate sentence on this class of offender. A Court is therefore free to apply the usual sentencing criteria in deciding on an appropriate sentence for a child between the ages of 16 and 18. (see S v Mofokeng and Another 1999 (1) SACR (W) 502 at 520g-i; S v Kannemeyer and Another case no. 50/99 (CPD) 27 January 2000 (unreported); S v Petrus Blaauw case no. 159/2000 (CPD) 2 May 2001 (unreported).) But a Court in exercising its discretion must have regard to the purpose of the Act. In so doing it may impose the prescribed sentence, including a sentence of life imprisonment if the circumstances of the case justify it.” Importantly, the Court went on to say: These circumstances would have to be exceptional as the Court would be imposing a sentence on a child as if he were an adult. Such an interpretation would be consistent with section 28(1)(g) of the Constitution which confers the right on a child “not to be detained except as a measure of last resort .. [and] only for the shortest appropriate period of time .. .” (see S v Petrus Blaauw (supra); S v Pedro [2001] 1 JOL 7701 (C)). I deal with the effect of section 28(1)(g) later in this judgment. It therefore must be accepted that despite the peculiar wording of section 51(3)(b) the legislature intended children of between 16 and 18 years of age to be treated more leniently than those offenders who have turned 18 and are consequently deemed to be more mature. It is clear that the learned judge erred by entering into an analysis as to whether substantial and compelling circumstances existed in respect of the appellant who was 16 years old at the time he committed the offence. He thus misconceived the nature of his discretion when he sentenced the appellant to life imprisonment. This Court is therefore entitled to interfere with the sentence that was imposed by the Courta quo.” SOME EXAMPLES OF WHY MANDATORY DETENTION REGIMES ARE HUMAN RIGHTS VIOLATIONSThe reference in Nkosi to the right of a child “not to be detained except as a measure of last resort .. [and] only for the shortest appropriate period of time” will resonate with those familiar with the inspiration for the South African provision - Article 37 of the United Nations Convention on the Rights of the Child. As pointed yesterday in compelling paper presented by Dr Willie McCarney,[20] the Convention must not be considered in isolation. For example, the following of the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (“the Beijing rules”) are also pertinent to this extract from Article 37: Rule 5(1) states that the aims of a juvenile justice system are to emphasise the well-being of the juvenile and “to ensure that any reaction to juvenile offenders shall always be in proportion to the circumstances of both the offenders and the offence”. Rule 17.1(b) requires that “restrictions on the personal liberty of the juvenile shall be imposed only after careful consideration and shall be limited to the possible minimum”. Rule 19.1 further states that “the placement of a juvenile in an institution shall always be a disposition of last resort and for the minimum necessary period”. Article 37 also enjoins State Parties to ensure that “no child shall be deprived of his or her liberty unlawfully or arbitrarily.” As to the meaning of arbitrariness, the Human Rights and Equal Opportunity Commission of Australia has described the connection with the concept of proportionality as follows: “Arbitrary detention is detention 'incompatible with principles of justice or with the dignity of the human person'. … Principles of justice include the principle of proportionality, the principle of consistency and the principle of non-discrimination.”[21] In discussing the unequivocal principle of proportionality, it was further said that: The sentencer must make the decision in the individual case. A sentence which is proportionate to the circumstances of the offender must be an individualised sentence. … This principle of individualised sentencing further means that mandatory sentencing further means that mandatory sentences of any kind, and particularly of detention contravene CROC.[22] Also, in its submission to an Australian Parliamentary Inquiry, the Commission noted: “The jurisprudence of the Human Rights Committee indicates that, to avoid the taint of arbitrariness, detention must be a proportionate means to achieve a legitimate aim , having regard to whether there are alternative means available which are less restrictive of rights.”[23] The meaning of arbitrariness was considered by the United Nations Human Rights Committee in the case of Alphen v The Netherlands [24] in which the Committee stated: “The drafting history of article 9, paragraph 1, confirms that “arbitrariness” is not to be equated with against the law, but must be interpreted more broadly to include elements of inappropriateness, injustice and lack of predictability.” To my mind, there is no validity to the claim that violation is avoided by the fact that the criteria for detention are contained in legislation that is consistently administered by the courts. As put in a submission on the Northern Territory laws by NAALAS: “This argument fails to appreciate that lawful detention can nevertheless be arbitrary and contrary to international human rights law. The Human Rights Committee has made the following observation on Article 9 of the ICCPR: the Committee recalls that the notion of "arbitrariness" must not be equated with "against the law" but be interpreted more broadly to include such elements as inappropriateness and injustice. Furthermore, remand in custody could be considered arbitrary if it is not necessary in all the circumstances of the case, for example to prevent flight or interference with evidence: the element of proportionality becomes relevant in this context. A (name deleted) v. Australia Communication No. 560/1993, UN Doc. CCPR/C/59/D/560/1993 (30 April 1997).” Mandatory detention laws do not allow the competent authorities to consider all the circumstances of a case in committing a person to detention and will therefore always be arbitrary in that they fail to meet the criteria of appropriateness and justice. Article 14.5 of the International Covenant on Civil and Political Rights will also necessarily also be breached. It provides: “Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.” Where the Legislature of a jurisdiction has ousted the scope for judicial discretion to impose a non-custodial sentence at first instance, an appellate court is obviously unable to lawfully review the mandatory component of the sentence. Article 5 of the Universal Declaration of Human Rights and Article 7 of The International Covenant on Civil and Political Rights are of great significance. They each provide that “No one shall be subjected to torture or to cruel, inhuman or degrading punishment.” These concepts also interlock with “proportionality” and “arbitrariness”. Relevantly: “The Human Rights Committee's General Comment on Article 7 of the ICCPRnotes that whether or not the Article is violated depends on the nature, purpose and severity of the treatment applied. Imprisonment per se does not result in cruel, inhuman or degrading treatment or punishment. However, a sentence of imprisonment which is grossly disproportionate to the gravity of the offence is likely to amount to a clear violation of Article 37(a) of CROC and Article 7 of the ICCPR. Jacobs and White, writing about the equivalent provision of the European Convention for the Protection of Human Rights and Fundamental Freedoms, state: But treatment which may be perfectly justifiable in some circumstances may, in different circumstances, be unlawful. The clearest case is of criminal punishment. A penalty which might be justified for a serious crime could constitute inhuman treatment or punishment if imposed for a petty offence. To this extent at least inhuman treatment is a relative notion. Jacobs F and White R The European Convention on Human Rights (Clarendon Press, Oxford 1996) p 51.” It is also pertinent to note the Committee’s observations that the prohibition of torture and other cruel, inhuman and degrading punishments aims “to protect both the dignity and the physical and mental integrity of the individual” and that the protection extends “not only to acts that cause physical pain but also to acts that cause mental suffering to the individual”.[1]
As Shameem J’s judgment in State v Pickering explains: “This declaration of the fundamental right not to be subjected to torture or inhumane treatment, is, in most written constitutions, declared to be an absolute unqualified right. It is not derogable even in an emergency. The legislature cannot whittle the right down, or legislate it away in the interests (for example) of public order. This is the case in Fiji’s Constitution. There is good reason for the creation of such an absolute unqualified right to be free from inhumane and degrading treatment, or from torture. The right, declared in 1948 to be a universal human right, emerged from the historical experiences of the gas chambers and concentration camps of Nazi Germany. It emerged from the prisoner-of-war camps and emergency decrees of a world torn by war, suffering, degradation and inhumanity. In the context of that human experience, it is not surprising that the right of freedom from torture and inhumane punishment or treatment, should be an absolute, unqualified, and non-derogable right. Most jurisdictions with written constitutions have duplicated this provision as part of their Bill of Rights chapter. The Papua New Guinea Constitution added the words “or is inconsistent with respect for the inherent dignity of the human person.” InNkosi v The State,[25] the appeal court of the High Court of South Africa cited approvingly the following remarks by Ackerman J in S v Dodo[26] as to “the centrality of the concept of proportionality in the sentencing process as follows: “[37] The concept of proportionality goes to the heart of the inquiry as to whether punishment is cruel, inhuman or degrading, particularly where, as here, it is almost exclusively the length of time for which an offender is sentenced that is in issue. This was recognised in S v Makwanyane. Section 12(1) guarantees, amongst others , the right ‘not to be deprived of freedom ... without just cause’. The ‘cause’ justifying penal incarceration and thus the deprivation of the offender’s freedom, is the offence committed. ‘Offence’, as used throughout in the present context, consists of all factors relevant to the nature and seriousness of the criminal act itself, as well as all relevant personal and other circumstances relating tot he offender which could have a bearing on the seriousness of the offence and the culpability of the offender. In order to justify the deprivation of an offender’s freedom it must be shown that it is reasonably necessary to curb the offence and punish the offender. Thus the length of punishment must be proportionate to the offence. [38] To attempt to justify any period of penal incarceration, let alone imprisonment for life as in the present case, without inquiring into the proportionality between the offence and the period of imprisonment, is to ignore, if not to deny, that which lies at the very heart of human dignity. Human beings are not commodities to which a price can be attached; they are creatures with inherent and infinite worth; they ought to be treated as ends in themselves, never merely as means to an end. Where the length of a sentence, which has been imposed because of its general deterrent effect on others, bears no relation to the gravity of the offence (in the sense defined in para 37 above) the offender is being used essentially as a means to another end and the offender’s dignity assailed. So too where the reformative effect of the punishment is predominant and the offender sentenced to lengthy imprisonment, principally because he cannot be reformed in a shorter period, but the length of imprisonment bears no relationship to what the committed offence merits. Even in the absence of such features, mere disproportionality between the offence and the period of imprisonment would also tend to treat the offender as a means to an end, thereby denying the offender’s humanity.” The Court went on to observe that additional considerations arise where the offender is a child. In a passage that recalls Article 3 of the Convention on the Rights of the Child, the Court said: “With respect to child offenders the “best interests” principle is now a crucial element in the proportionality inquiry. The “well-being” and the “needs of the juvenile” are therefore important considerations in the determination of an appropriate sentence for a child offender. In S v Kwalase (supra at 139g-i) Van Heerden J described the application of the principle to juvenile offenders as follows: “The judicial approach towards the sentencing of juvenile offenders must therefore be re-appraised and developed in order to promote an individualised response which is not only in proportion to the nature and gravity of the offence and the needs of society, but which is also appropriate to the needs and interests of the juvenile offender. If at all possible, the sentencing judicial officer must structure the punishment in such a way as to promote the reintegration of the juvenile concerned into his or her family and community.” The principle of reintegrating the juvenile offender into his family and community referred to by Van Heerden J has also received attention in international instruments . The CRC thus emphasises that the objective of sentencing in “promoting the child’s reintegration and assuming a constructive role in society” (article 40(1) of CRC). The International Covenant on Civil and Political Rights specifically states that “in a case of juvenile persons [a court must] take account of their age and the desirability of promoting their rehabilitation”. DISCRETION AS A FEATURE OF JUDICIAL POWER AND PROCESSThe very notion of a court “taking account” of the circumstances of the offence and the offender presumes a capacity to exercise discretion. Mandatory regimes specifically rob competent authorities of that capacity save for a discretion to impose a longer than mandatory period of detention. In doing so they are an attack on judicial power. As three members of the High Court of Australia have observed: “[t]he sentencing of offenders, including in modern times the fixing of a minimum term of imprisonment, is as clear an example of the exercise of judicial power as is possible.”[27] So far as common law jurisdictions at least are concerned Desmond Manderson and Namoi Sharp have argued in the Australian context that notwithstanding incompatible judicial views: “…judicial power is impermissibly compromised by legislation which removes the elements of discretion which have always allowed those who preside over the judicial process – judges – to exercise judgment in the imposition of force. We argue that the ability of the judge to actually judge, often channelled but never extinguished, legitimates the coercion of the judicial office and gives it a proper gravity and respect. On this view, discretion is essential to judgment – it is what makes the process judicial; perhaps this is nowhere more important than in the act of sentencing. By requiring of judges that they condone the custodial violence of the State (as only they can) in a manner which is unrelated to their office, the legislature impermissibly interferes with the judicial process.”[28] I respectfully agree with them and their further contention that as a consequence of compromising judicial power, the court is brought into disrepute in a number of ways: “First, the ‘mandatory’ element of the Sentencing Act requires the court to pass a sentence when no theory of sentencing can justify it. This lack of justification must lessen the courts’ repute in the wifes community and, now less importantly, draw forth the contempt of those who are sentenced by it. Second, the court is being asked to behave in a way that is, literally speaking, irresponsible. We have argued that, ultimately, the legitimacy of law draws on a concept of responsibility without which the process is reduced to a sham and courts forfeit their claim to be acting judicially.”[29] “It is not the severity of the laws but their complete and structural abrogation of a meaningful judicial role in the infliction of a penalty that subverts the rule of law and is thereby and instance of the legislature requiring the courts to act in a manner which is incompatible with the judicial process.”[30] If one agrees with this position, I would think that it is a highly persuasive argument[31] that the fundamental offensiveness of mandatory detention laws extends beyond common law jurisdictions. Principle 4 of the Basic Principles on the Independence of the Judiciary adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders. Principle 4 states in part: “There shall not be any inappropriate or unwarranted interference with the judicial process…”.[32] In addition, Principle 6 states that “The principle of the independence of the judiciary entitles and requires the judiciary to ensure that judicial proceedings are conducted fairly and that the rights of the parties are respected. In my view, they are also inconsistent with certain provisions of The Beijing Statement of Principles of the Independence of the Judiciary in the Lawasia Region which were signed in 1995 and reaffirmed in 1997. These representthe conclusions “of the Chief Justices and other judges of Asia and the Pacific listed below that these represent the minimum standards necessary to be observed in order to maintain the independence and effective functioning of the Judiciary”. [33] For example, Principle 10 is pertinent. It states in part: “The objectives and functions of the Judiciary include … (b) to promote, within the proper limits of the judicial function, the observance and the attainment of human rights; …”. Of greater applicability still is Principle 5 under the heading of “judicial independence”. It speaks of “the duty of the Judiciary to respect and observe the proper objectives and functions of the other institutions of government.” Very importantly, that Principle goes on to say: “It is the duty of those institutions to respect and observe the proper objectives and functions of the Judiciary. “ CONCLUSIONFor the reasons set out above and more, mandatory detention regimes demonstrate a lack of respect by government for all people, not just the judiciary. While this paper has focussed on such structures in the context of juvenile justice, you will all be well aware that children’s rights are harmed by the mandatory incarceration of their significant adults and that both children and adults can be subject to mandatory detention even where no criminal law has been infringed; for example undocumented asylum-seekers.[34] It is against this backdrop that I conclude with a proposed resolution which I urge you to endorse and press for adoption by this Congress:
Footnotes[1] See D Sandor ‘The Sorry and Shameful Saga of Mandatory Detention Laws in Australia’ Vol 13 No 3 International Children’s Rights Monitor 16 for a detailed discussion of the political context and reaction to United Nations’ Committees’ criticisms of Australian laws. See also H Charlesworth (2000) ‘The UN and Mandatory Sentencing at http://www.dci-au.org/html/unmandatory.html [2] J Sloth-Nielsen ‘The Role of International Law in Juvenile Justice Reform in South Africa’, Doctoral Thesis 2001. [3] Flyer handed out to young people – personal communication from Jim Stegmiller [4] Various articles and submissions by the Australian Section of Defence for Children International may be found at http://www.dci-au.org/ [5] At http://law.gov.au/publications/croc/crocaa.html#RTFToC2; the Committee’s observations are at http://www.unhchr.ch/tbs/doc .nsf/MasterFrameView/3d744477ea59fdaf8025653200508bb8?Opendocument [6] Paragraph 16, Concluding Observations by the Committee on the Elimination of Racial Discrimination, Australia, 56th Session24 March, 2000 (CERD/C/56/CRPS, CERD/C/56/Misc.42/rev.3). [7] Western Australia is second only to the Northern Territory in terms of the percentage of adults imprisoned being of Indigenous origin. [8] ‘Sorry day for Justice’, The Sydney Morning Herald (Newspaper) 18 February 2000. [9] Dr William Jonas AM, the Aboriginal and Torres Strait Islander Social Justice Commissioner appointed by the current Howard Government has noted: "By way of comparison, mandatory sentencing does notapply to the crime of fraud, and 100% of fraud cases involving juveniles in the NT are by white children." (emphasis in the original) Human Rights and Equal Opportunity Commission (2000) Statement on Mandatory Sentencing [17 February 2000] at http://www.hreoc.gov.au/news_info/speeches/social_justice/sp_16.html. [10] ‘Johnno: a life and death of misery’, The Age (Newspaper) 12 February 2000. [11] ‘A day of shame for Australia’, The Age (Newspaper) 14 February 2000. The boy’s full name has been edited as a matter of respect and in the interests of privacy. [12] See R Goldflam (2001) ‘Mandatory Sentencing – A Fatal Attraction?’ No 28 Australian Children’s Rights News, 26 [13] Personal communication from Fazlul Huq, Executive Director Bangladesh Legal Aid and Services Trust. [14] Personal communication from Justice Nazhat Shameem, High Court of Fiji. [15] High Court of Fiji at Suva, decision of 30 July 2001, judgment available at http://www.alhr.asn.au/publications/audie1.html [16] South African Law Commission, note 32 of Skelton, at 52 - 54. [17] Bill B46-97 [18] A Skelton and J Sloth-NielsenSubmission to Portfolio Committee on Justice on Aspects of the Criminal Law Amendment Bill B46-97(1997) unpublished. [19] From A Skelton “Juvenile justice reform: children’s rights and responsibilities versus crime control” in CJ Davel (ed) Children’s Rights in a transitional society Protea Books, Pretoria, 1999, pages 88 to 106. [20] The United Nations Instruments Concerning Juvenile Justice: Importance of International Norms and Standards, Session 5.3, 21 September 2001. [21] Human Rights Brief No. 2 at www.hreoc.gov.au/human_rights/brief/h_9_2.html, footnotes omitted. [22] Ibid. [23] Submission to the Inquiry by the Senate Legal and Constitutional References Committee into the Human Rights (Mandatory Sentencing of Juvenile Offenders) Bill 1999, November 1999. [24] , Communication No. 305/1988, Human Rights Committee Report 1990, Volume II, UN Doc. A/45/40, paragraph 5.8 [25] Human Rights Committee General Comment 20: Human Rights Committee, General Comment on Article 7 of the International Covenant on Civil and Political Rights, 1992 in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc. HRI/GEN/Rev.3 (1997). Electronic version at www1.umn.edu/humanrts/gencomm/hrcom20.htm. [26] High Court of South Africa (Witwatersrand Local Division) Case No. A727/00, Cachalia J for the Full Court. I am indebted to Dr Sloth-Nielsen for drawing the case to my attention. [27] 2001 (1) SACR 594 at 614-615 at [37] - [38] [28] Leeth v Commonwealth (1992) 174 CLR 455, per Mason CJ, Dawson and McHugh JJ. [29] ‘Mandatory Sentences and the Constitution: Discretion, Responsibility, and Judicial Process, Vol. 22 Sydney Law Review 585 at 623 – pdf version available at http://www.law.usyd.edu.au/~slr/v22/n4/manderson.pdf [30] ibid [31] op. cit. 605. [32] Although I acknowledge that it has not been held that mandatory detention laws offend judicial independence. [33] Held at Milan from 26 August to 6 September 1985 and endorsed by General Assembly resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985. [34]Available athttp://wwwlaw.murdoch.edu.au/icjwa/Beijst.htm. The Statement was igned by: The Hon Sir Gerard Brennan AC KBE Chief Justice of Australia The Hon Mr Justice A. T. M. Afzal Chief Justice of Bangladesh HE Mr Wang Jingrong Vice-President Supreme People's Court of the People's Republic of China (Representing HE President Ren Jianxin, President of the Supreme People's Court) The Hon Sir Ti Liang Yang Chief Justice of Hong Kong The Hon Shri Justice S. C. Agrawal Justice of the Supreme Court of India (Representing The Hon Mr Justice A. M. Ahmadi, Chief Justice of India) The Hon Justice S. H. Soerjono Chief Justice of Indonesia The Hon Yun Kwan Chief Justice of the Republic of Korea The Hon D. Dembereltseren Chief Justice of Mongolia The Hon U Aung Toe Chief Justice of the Supreme Court of The Union of Myanmar (Burma) The Rt Hon Mr Justice Biswanath Upadhyaya Chief Justice of Nepal Monsieur Le Premier Président Olivier Aimot Premier Président of the Court of Appeal of New Caledonia The Rt Hon Sir Thomas Eichelbaum GBE Chief Justice of New Zealand The Hon Mr Justice Sajjad Ali Shah Chief Justice of Pakistan The Hon Sir Arnold K. Amet Chief Justice of Papua New Guinea The Hon Andres R. Narvasa Chief Justice of the Philippines The Hon Justice Yong Pung How Chief Justice of Singapore The Hon Mr Justice P. R. P. Perera Justice of the Supreme Court of Sri Lanka (Representing The Hon Mr Justice G. P. S. De Silva, Chief Justice of Sri Lanka) The Hon Charles Vaudin D'Imecourt Chief Justice of Vanuatu The Hon Mr Justice Pham Hung Chief Justice of Vietnam Tiavaasue Falefatu Maka Sapolu Chief Justice of Western Samoa [35] See the articles contained in The Australian Section of Defence for Children International, Australian Children’s Rights News, No.s 28 and 29
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