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Submission to the Senate Legal and Constitutional
References Committee Inquiry into the Human Rights
(Mandatory Sentencing for Property Offences) Bill 2000
Human Rights and Equal Opportunity Commission
Contents
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1.
Introduction
HREOC review of mandatory sentencing
International human rights law and mandatory sentencing
The Commonwealth – NT agreement on Juvenile Pre-Court
Diversionary Schemes
Alternatives to mandatory sentencing
Best practice principles for juvenile diversion
Introduction
The Human Rights and Equal Opportunity Commission (HREOC) has stated its
concerns about mandatory sentencing legislation in the Northern Territory
and Western Australia in a number of reports, submissions and papers. These
include
 Seen and heard: priority for children in the legal process – a joint
report on a National Inquiry into children and the legal process with
the Australian Law Reform Commission (1997) (Attachment A)
 Bringing them home – the report of the National Inquiry into the
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Separation of Aboriginal and Torres Strait Islander Children from Their
Families (1997) (Attachment B)
A briefing paper on mandatory detention laws in Australia (August
1999) (Attachment C)
Aboriginal and Torres Strait Islander Social Justice Commissioner’s
Social Justice Report 1999 (Attachment D)
Aboriginal and Torres Strait Islander Social Justice Commissioner’s
Social Justice Report 2000 (Attachment E)
Additional information supplied by HREOC to the UN Human Rights
Committee in consideration of Australia’s third and fourth periodic
reports, during the 69th session of the UN Human Rights Committee
(July 2000) (Attachment F)
In particular, HREOC made an extensive submission to the Senate Legal and
Constitutional References Committee Inquiry into the Human Rights
(Mandatory Sentencing of Juvenile Offenders) Bill 1999 (November
1999)(Attachment G), which focused specifically on the rights of the child.
The Bill passed through the Upper House in March 2000. The Bill has not
been considered by the Lower House of Parliament.
1
This submission does not reiterate in detail all the points raised in the
attached documents. Instead it seeks to provide some additional material
based on more recent international and domestic developments.
2.
HREOC review of mandatory sentencing
On 13 April 2000 the Senate requested that HREOC inquire into all aspects of
i)
the agreement between the Northern Territory Government and
the Commonwealth regarding the Territory’s mandatory
sentencing regime
ii)
the consistency of mandatory sentencing regimes with
Australia’s international human rights obligations
iii)
Western Australia’s mandatory sentencing regime.
On 2 May 2000 Dr William Jonas, the Aboriginal and Torres Strait Islander
Social Justice Commissioner, informed the President of the Senate that he
would commence a project to

assess the continued impact of mandatory sentencing laws in
the Northern Territory and Western Australia on Indigenous
Australians

assess the impact on Indigenous Australians of the additional
discretion placed in the Northern Territory Police

develop a methodology against which to assess the
appropriateness and success of diversionary schemes in the
Northern Territory and Western Australia, and assess these
schemes on this basis.
The project involves targeted research on the impact of mandatory
sentencing regimes on Indigenous people in WA and NT including

collection and analysis of statistical information on the impact of
mandatory sentencing laws and diversionary programs

examination of legislation governing mandatory sentencing and
juvenile diversion

meetings and interviews with defence lawyers, police,
correctional services, program coordinators, community
members and young offenders about the operation of
mandatory sentencing and diversionary schemes.
2
In addition, the project aims to develop a set of human rights principles for
the conduct of best practice diversion of young offenders, drawing on
relevant treaties and international standards.
The Commissioner’s findings will be included in his 2001 Social Justice report.
3.
International human rights law and mandatory
sentencing
Mandatory sentencing laws enacted in Western Australia and Northern
Territory are arbitrary and discriminatory in effect. The laws raise concerns
under a number of international human rights treaties, in particular

articles 2(1), 9(1), 10(3), 14(4), 14(5), 24(1), 26 and 50 of the
International Covenant on Civil and Political Rights (ICCPR)

articles 3(1), 37(b), 40(2)(b) and 40(4) of the United Nations
Convention on the Rights of the Child (CROC)

articles 2 and 5 of the International Convention on the Elimination of
Racial Discrimination (ICERD)

article 2 of the International Covenant on Economic, Social and Cultural
Rights (ICESCR).
HREOC’s concerns about breaches of these articles have been discussed in
detail on a number of occasions (see attachments).
Unlike the Human Rights (Mandatory Sentencing of Juvenile Offenders) Bill
1999, the current Bill seeks to implement Australia’s human rights obligations
towards adult as well as juvenile property offenders. HREOC made an
extensive submission to the Senate Committee in November 1999
(Attachment G) outlining Australia’s human rights obligations towards juvenile
offenders with respect to sentencing. However, mandatory sentencing for
adult offenders also raises concerns under the ICCPR, ICERD and ICESCR, as
listed above.
In addition, Principle 11 of the Declaration on the Rights of Disabled Persons
states that if judicial proceedings are instituted against persons with a
disability the legal procedure applied shall take their physical and mental
condition fully into account. Principle 6 of the Declaration on the Rights of
Mentally Retarded Persons states that if prosecuted for any offence, a person
with an intellectual disability has a right to due process of law with full
recognition being given to his or her degree of mental responsibility.1 HREOC
1
The Declaration on the Rights of Disabled Persons and the Declaration on the Rights of Mentally
Retarded Persons are scheduled to the Human Rights and Equal Opportunity Commission Act 1986
(Cth).
3
is concerned that mandatory sentencing laws diminish the courts’ ability to
take into account circumstances where a person’s disability is relevant to the
sentence they should receive.
The federal government has the ultimate responsibility to ensure national
consistency with its human rights obligations. Provisions of the ICCPR (article
50) and ICERD (article 2.1(a), 2.1(c) and 6) specify Australia’s obligation to
ensure compliance with these treaties at all levels of government. Further, the
federal government has the power to override mandatory sentencing laws
under sections 51(xxix) and 122 of the Commonwealth Constitution.
During 2000, Concluding Observations from three United Nations human
rights committees expressed concern that the NT and WA mandatory
sentencing laws may violate provisions of relevant treaties.
On 24 March 2000 the Committee on the Elimination of Racial Discrimination,
in considering the tenth, eleventh and twelfth periodic reports of Australia,
stated the following with regard to mandatory sentencing:
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 obligations under the Convention and
recommends the State party to review all laws and practices in this field.2
On 28 July 2000 the United Nations Human Rights Committee considered
Australia’s third and fourth periodic reports submitted to the UN under article
40 of the International Covenant of Civil and Political Rights. In its Concluding
Observations the Committee also noted mandatory sentencing legislation as a
principal subject of concern.
Legislation regarding mandatory imprisonment in Western Australia and the
Northern Territory, which leads in many cases to imposition of punishments
that are disproportionate to the seriousness of the crimes committed and
would seem to be inconsistent with the strategies adopted by the State
party to reduce the over-representation of indigenous persons in the
criminal justice system, raises serious issues of compliance with various
articles of the Covenant.
The State party is urged to reassess the legislation regarding mandatory
imprisonment so as to ensure that all Covenant rights are respected.3
2
Committee on the Elimination of Racial Discrimination, Concluding Observations by the Committee on the
Elimination of Racial Discrimination: Australia, UN Doc: CERD/C/304/Add.101, 19/04/2000, para 16.
3
Human Rights Committee, Concluding observations of the Human Rights Committee: Australia, UN
Doc: HRC/A/55/40, 28/07/2000, paras 522 – 523.
4
The Committee Against Torture also expressed its concern that the
mandatory sentencing legislation breaches the Convention Against Torture to
which Australia is a signatory. In November 2000 the Committee
recommended that
The State party keep under careful review legislation imposing
mandatory minimum sentences, to ensure that it does not raise
questions of compliance with its international obligations under the
Convention and other relevant international instruments, particularly
with regard to the possible adverse effect upon disadvantaged
groups.4
For a more comprehensive discussion of the Australian government’s dialogue
with the Committees, including a discussion of federal government
responsibility by the Committee on the Elimination of Racial Discrimination,
please see attachment E.
4.
Commonwealth - Northern Territory agreement on a
Juvenile Pre-Court Diversion Scheme
On 1 July 2000 legislative amendments commenced in the Northern Territory
which raised the age of a majority for the purposes of the criminal law from
17 to 18 years of age.
Further, on 27 July 2000 the Northern Territory and the Commonwealth
governments signed an agreement for the Commonwealth to fund a Juvenile
Pre-Court Diversion Scheme (and a jointly funded Aboriginal Interpreter
Service) in the Northern Territory at $5 million per year for 4 years ($20
million in total). The Scheme commenced operation on 24 August 2000.
The Commission welcomes the raising of the age of juveniles consistent with
article 1 of the UN Convention on the Rights of the Child. The Commission
also supports positive measures in the Northern Territory to divert young
offenders from detention, consistent, in principle, with the recommendations
of the Royal Commission into Aboriginal Deaths in Custody (RCIADIC).
However, the Commission remains concerned about various aspects of the
law and order regime in the Northern Territory including

the continuation of mandatory minimum sentences of detention for
young repeat property offenders who have not been diverted or have
failed to complete diversion for various reasons

the continuation of mandatory minimum sentences of imprisonment for
adult property offenders, notwithstanding 78A(6B) of the Sentencing
4
Committee against Torture, Conclusions and Recommendations of the Committee Against Torture:
Australia, UN Doc: CAT/C/XXV/Concl.3, 21/11/2000, para 6(h).
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Act 1995 (NT) which permits alternative orders for first time property
offenders in exceptional circumstances

the removal of sentencing discretion from the courts to the police and
prosecutors. This is of concern because of 1) the history of racially
discriminatory treatment of Indigenous people by police and 2) a lack
of mechanisms for review or appeal of police decisions

zero tolerance measures introduced by the NT government, such as
the Public Order and Anti-Social Conduct Act 2001 (NT), which target
Indigenous people and have the potential to further increase
Indigenous over-representation in the criminal justice system

lack of effective crime prevention strategies which take into account
the social and economic disadvantage experienced by Indigenous
people, including in remote communities.
The Aboriginal and Torres Strait Islander Social Justice Commissioner will be
commenting on these concerns in detail in his annual Social Justice Report, as
discussed above.
5.
Alternatives to mandatory sentencing
The Commission supports the development of alternatives to mandatory
sentencing which are consistent with Australia’s human rights obligations.
In the case of juveniles, the Commission outlined to the Senate Committee
Inquiry into the Human Rights (Mandatory Sentencing of Juvenile Offenders)
Bill 1999, how international law supports and in some instances requires the
development of positive alternatives to mandatory sentencing (attachment G).
It considered three main alternatives:

Crime prevention programs that address poverty, homelessness,
discrimination, child abuse and neglect, substance abuse, family
breakdown and exclusion from education, especially those
programs aimed at early intervention for young people at risk

Diversionary programs which keep young offenders out of the
formal court system, including cautions, family conferencing and
victim-offender conferencing

Non-custodial sentencing options such as probation orders,
community service orders and treatment programs.
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6.
Best practice principles for juvenile diversion
Diversionary programs are those that, where appropriate, keep young
offenders out of the formal court system. They include mechanisms such as
cautions and victim/offender conferencing.
The UN Convention on the Rights of the Child (CROC) recognises the
importance of diverting young offenders from the formal processes of the
criminal justice system.
Article 40.3 of CROC states that
States Parties shall seek to promote the establishment of laws, procedures,
authorities and institutions specifically applicable to children alleged as,
accused of, or recognized as having infringed the penal law, and, in
particular:
(b) Whenever appropriate and desirable, measures for dealing with such
children without resorting to judicial proceedings, providing that human rights
and legal safeguards are fully respected.
The content of the obligation in CROC to develop diversionary programs is
elaborated upon by the following United Nations rules and guidelines:
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UN Standard Minimum Rules for the Administration of Juvenile Justice
1985 (Beijing Rules);
UN Standard Minimum Rules for Non-Custodial Measures 1990 (Tokyo
Rules);
UN Guidelines for the Prevention of Juvenile Delinquency 1990 (Riyadh
Guidelines); and
UN Rules for the Protection of Juveniles Deprived of Their Liberty 1990.
Diversionary programs must also pay regard to Australia’s human rights
obligations under CERD and the ICCPR.
The Aboriginal and Torres Strait Islander Social Justice Commissioner is in the
process of developing best practice principles for diversion of juvenile
offenders consistent with these international instruments. These principles will
be instrumental in assessing diversionary schemes for young people in the
Northern Territory, Western Australia and elsewhere in Australia.
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