HUMAN RIGHTS (MANDATORY SENTENCING OF JUVENILE OFFENDERS) BILL 1999
The Bill provides that no law of a Commonwealth State or Territory can require a court to imprison or detain a child.
Defence for Children International’s Position
DCI-Australia has consistently maintained its opposition to Australian mandatory sentencing laws which oblige a court to impose a criminal sentence of imprisonment or detention upon a child. There is
no latitude for discretion on the part of the Judge or Judicial Officer. This is contrary to the proper, internationally accepted standard that loss of liberty should be the last sentencing resort.
We are, of course, only one of a great number of distinguished and ordinary individuals and organisations within our nation who are deeply troubled about the personal, social and economic costs of
such a sentencing policy and its particularly severe impacts on our Indigenous children. In respect of these matters we should be aware of the assessments made in:
Seen and Heard : Priority for Children in the Legal System (Human Rights and Equal Opportunity Commission / Australian Law Reform Commission); and
17th Report of the Joint Standing Committee on Treaties - United Nations Convention on the Rights of the Child (Parliament of the Commonwealth of Australia).
The laws have also attracted international concern. The Northern Territory provisions were specifically criticised by the United Nations Committee on the Rights of the Child in its assessment of
Australia's report on the implementation of the United Nations Convention on the Rights of the Child. While such criticism is in our view legitimate, it regrettably undermines our country's
attempts to advance the cause of human rights elsewhere.
Against this backdrop, and with concern about both current and possible future laws of a similar type in other Australian jurisdictions, DCI-Australia believes that the Human Rights (Juvenile
Offenders Sentencing) Bill 1999 deserves active support in Parliament. The bill is a timely legislative proposal. It serves the interests of our children, of reconciliation, and Australia's
standing of our nation in the world-wide community as we approach the new millennium.
The bill presents an opportunity for Parliament to vigorously affirm this country's continued commitment to human rights and to sound measures that improve community safety instead of discredited
ones.
THE FACTS ABOUT MANDATORY SENTENCING
Under the Northern Territory's mandatory sentencing laws, a child aged 15 or 16 found guilty of a property offence must be detained for at least 28 days if that child has previously been found
guilty on two or more occasions by a court of committing property offences.
A child aged 17 must be imprisoned in an adult gaol if found guilty of a property offence, save only in the most exceptional circumstances (namely where a single, trivial, first property offence has
been committed by a person of prior proven good character who can show he or she has attempted to make restitution, and that he or she co-operated with police). Offenders 17 and over are
imprisoned for 14 days on the first occasion, 90 days on the second occasion and one year on the third (and every subsequent) occasion.
Mandatory imprisonment impacts most severely upon those who commit minor offences. Serious offenders already face imprisonment, and often for much longer than the minimum period prescribed by
the legislation.
Mandatory imprisonment produces absurd results and therefore brings the law into disrepute. For example, a person who breaks into 5 houses can receive the same sentence as a person who steals a
towel from a back yard clothesline.
Mandatory imprisonment disproportionately effects indigenous offenders. This is because:
More indigenous offenders are caught. The crime clear-up rate in metropolitan centres is 18%. It approaches 100% in remote Aboriginal communities.
Indigenous offenders are more likely to be arrested and charged. All available evidence supports the conclusion that police discretion is rarely exercised in favour of indigenous offenders.
The particular offences that attract mandatory sentencing are frequently committed by indigenous offenders (for example joy-riding in remote communities). Property offences more frequently
committed by non-indigenous people such as fraud and other white collar crimes are not designated property offences.
Mandatory imprisonment does not reduce crime. It does nothing to address the underlying causes of criminal behaviour, such as poverty, unemployment, drug and alcohol dependence, boredom and
family breakdown. In the long term, the exposure of so many people to the gaol environment may well result in an increase in crime.
Mandatory imprisonment costs the taxpayer an enormous amount of money. The average daily cost of imprisoning a person in an adult gaol over 1997/98 was $146.94. The average daily cost for a
juvenile in a detention facility was $331.62.
Mandatory imprisonment creates a culture of imprisonment. It has resulted in an overall rise in imprisonment for all offences. It is contrary to the recommendations of the Royal Commission
into Aboriginal Deaths in Custody.
The Commonwealth government will only very reluctantly overturn another Territory law. However, the mandatory detention of children in the Northern Territory is a clear and unarguable breach of
Australia's international human rights obligations. The situation is devastating. Courts in some remote communities are imprisoning up to 15 children per day.
At the very least the Senate should establish an Inquiry into the issues raised by the Bill, and all Senators should be urged to give their immediate support to such an initiative.
The situation is urgent. Please write now.
SUGGESTED LETTERS:
Dear Senator,
MANDATORY SENTENCING OF CHILDREN AND YOUNG PEOPLE
I am writing to express the support of this organisation for the the Human Rights (Sentencing of Juvenile Offenders) Bill 1999 and to ask you to give your support to the Bill and to a Senate Inquiry
into the issues it raises.
The Bill would ensure that no court in Australia could be required to sentence a child to imprisonment or detention except as a last resort, in acccordance with international standards in juvenile
justice and the UN Convention on the Rights of the Child (CROC).
Two jurisdictions currently have laws which require the Court to impose imprisonment or detention on offenders under the age of 18.
In the Northern Territory, a child aged 15 or 16 who is found guilty of a property offence must be detained for at least 28 days if he/she has previously been found guilty on two or more occasions
of committing property offences.
Also in the NT, child aged 17 who is found guilty of a property offence must be imprisoned in an adult gaol for 14 days on the first occasion, 90 days on the second occasion and one year on the
third (and every subsequent) occasion. This may be avoided only in the most exceptional circumstances (ie. it was single, trivial, first property offence and the child can prove that he/she is of
good character, has attempted restitution and has co-operated with police).
In Western Australia, a child who is found guilty on a third occasion of home burglary is automatically sentenced to 12 months detention, with the possibility of conditional relaease for good
behaviour after 6 months.
We understand that mandatory sentencing of juveniles is being proposed (informally at this stage) in other jurisdictions also.
The mandatory detention of any child is a breach of human rights. The Courts must be allowed to use their legal expertise and their access to other experts to assess the circumstances of the
offender, the details of his or her offence and previous record and decide what is best done to promote the child’s sense of dignity and worth and enable his/her rehabilitation and
reintegration into society (Article 40.1 CROC).
Mandatory imprisonment treats those who commit minor offences the same as more serious offenders. It ignores the factors of poverty, marginalisation, unemployment, family breakdown and violence
in a child’s life. It is unable to take account of programmes of assistance offered in the community to help the young people in conflict with the law. It exposes more children to the
social dislocation and trauma of detention and frequently increases the child’s anti-social behaviour during and after detention.
In particular it impacts harshly on indigenous offenders and their families. We understand that the situation is devastating some remote communities. We believe that it represents to these
parents a modern form of child removal, justified by law. It is incompatible with the recommendations of the Royal Commission into Deaths in Custody and the conclusions of the Indigenous
Separations Inquiry.
Given these social costs and the excessive financial burden created by high rates of detention, we find every argument for these laws to be totally unacceptabe. Action to stop this long term
damage to children and their communities is urgent.
We wish to urge you and the Commonwealth Government to act decisively to prevent this clear breach of Australia's international human rights obligations.
Yours faithfully,
Sponsor of the Bill:
Brown, B
senator.brown@aph.gov.au
fax: 02/6277 3185
Members of the Senate Legal and Constitutional References Committee
Coonan, H
senator.coonan@aph.gov.au
fax: 02/6277 3221
Cooney, B
senator.cooney@aph.gov.au
fax: 02/6277 3829
Hutchins, S
senator.hutchins@aph.gov.au
fax: 02/6277 3092
McKiernan, J (Committee Chairman)
senator.mckiernan@aph.gov.au
fax: 02/6277 3432
Payne, M
senator.payne@aph.gov.au
fax: 02/6277 3811
Stott Despoja, N
senator.stottdespoja@aph.gov.au
fax: 02/6277 3235
Other Senators with a specific interest
Crossin, T
senator.crossin@aph.gov.au
fax: 02/6277 3661
Ridgeway, A
senator.ridgeway@aph.gov.au
fax: 02/6277 5727
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