JUVENILE CRIME Let judges be the judge Date: 23/08/99 Mandatory sentencing is inevitably a denial of justice. By GEORGE ZDENKOWSKI The Senate is about to consider legislation invalidating all Federal, State and Territory laws which impose mandatory prison sentences on juveniles. A private member's bill, the Human Rights (Mandatory Sentencing of Juvenile Offenders) Bill 1999, is being put up by the Greens Senator Bob Brown and its immediate target is the notorious 1997 Northern Territory mandatory minimum imprisonment legislation. This required courts, in designated property crimes, to imprison adults (those 17 and above) for their first offence and juveniles (15- or 16-year-olds) for their second offence, no matter how trivial the offences and without regard to the offender's background - the twin considerations usually at the heart of sentencing decisions. There is no adequate statistical base to measure the effectiveness of the legislation against crime, but its unfairness and its economic and social cost are plain: removing judicial discretion creates harsh, capricious and arbitrary outcomes with a particularly devastating impact on the indigenous population. The NSW Chief Justice, Jim Spigelman, talking about guideline sentences, recently observed: "Sentencing discretion is an essential component of the fairness of our criminal justice system [otherwise] there will always be the prospect of injustice ... Guideline judgments are preferable to the constraints of mandatory minimum terms of grid sentencing." Despite sustained criticism, the NT laws (and kindred "three strikes" laws in WA) have survived both political and constitutional challenge. Recent amendments to the NT laws have done little to assuage critics because few defendants could demonstrate the exceptional circumstances required to avoid a mandatory term. For indigenous offenders, it is likely to be business as usual. Moreover, the mandatory regime has been extended to new offences. In 1998, Senator Brown formulated the Abolition of Compulsory Imprisonment Bill to override the NT regime. It was based on S122 of the Commonwealth Constitution which authorises the Federal Parliament to enact laws for the NT. But this ran into complaints that it was an attack on NT autonomy and was discriminatory. The new bill has an Australia-wide application and its scope is also limited to outlawing the mandatory imprisonment of juveniles which some politicians might find more palatable than a general measure which extended to adults. The constitutional basis for the bill is the external affairs power. The bill would implement aspects of the Convention on the Rights of the Child (an international treaty to which Australia is a signatory) requiring the use of imprisonment only as a last resort. One interesting issue would be whether the bill also overrode the NT law as far as 17-year-old Northern Territorian adults were concerned. The international benchmark of adulthood is 18. However, the Brown bill defines a child as a person under 18. Arguably, the International Covenant on Civil and Political Rights (ICCPR) provides a constitutional touchstone for a general measure prohibiting Commonwealth, State and Territorial legislation requiring courts to impose mandatory prison terms on anyone. But the legal and political arguments for relying on the Convention on the Rights of the Child are certainly stronger. There is, apparently, growing support for Senator Brown's bill in the Senate. But the key will be the Government's attitude in the House of Representatives. The Greens are also canvassing support for a Senate inquiry into mandatory sentencing. Such inquiries have the power and resources to amass detailed, credible evidence. In the NT, consideration is being given by a member of an Aboriginal community in Darwin to an approach to the UN Human Rights Committee about a violation of aspects of the ICCPR by the NT legislation. There is also an Amnesty International campaign, focusing on mandatory imprisonment of juveniles, which is likely to cause the Australian Government international embarrassment. However, it remains to be seen whether these developments can influence a government which is publicly sceptical about the domestic implementation of human rights obligations in international treaties. - George Zdenkowski is an associate professor of law at the University of NSW. 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