The Sydney Morning Herald Editorial: Punishment on principle Date: 14/03/2000 THE division within the Senate committee on mandatory sentencing is a measure of how easily side issues can contaminate a question of principle. The minority report by the two Liberal senators, Helen Coonan and Marise Payne, subordinates the justice principle inherent in mandatory sentencing to secondary questions of less importance. It is a sad surrender which cannot help but be seen as driven by political rather than moral considerations. Senator Coonan and Senator Payne fully acknowledge the moral objections to mandatory sentencing. To that extent, they agree with the majority of the Senate committee. But they do not accept the majority recommendation, which is that the Northern Territory and West Australian mandatory sentencing laws be overturned as far as they apply to children. Both senators say it is preferable that the NT and WA put their own houses in order. Anything more is a last resort. Senator Payne concedes that if, after encouragement to change its approach, "the operation of the Northern Territory mandatory sentencing law remains incompatible with out international obligations, I recommend that the Commonwealth government should intervene". And Senator Coonan says the "injustice [of jailing children when they should not be] is so grave that if the States and Territories will not free them then the Commonwealth, where it has the power, ought to do so". Senator Coonan and Senator Payne cannot have it both ways. They condemn mandatory sentencing of children, as the rest of the committee does. But they conclude that another principle - that of non-interference in State or Territory law making powers - is important enough to prevent them from simple endorsement of Commonwealth action to ensure the laws which include objectionable provisions relating to mandatory sentencing of children are overridden. In the light of the political reality in WA and the NT, they must know that their faith in persuasion and moral reasoning as the way to ensure the objectionable laws are changed is unjustified. The federalist argument can be carried only so far. The history of Commonwealth law-making in the late 20th century has abundant examples of Federal laws made to apply in all parts of Australia. It is true that the search for uniformity has usually occurred in a climate of consultation. States have not been bullied or overridden so much as persuaded. But States' rights to go their own way in all of their constitutional areas of legislative power can no longer be regarded as absolute. And as for the Territories, the Howard Government is caught with its own precedent of overriding the Northern Territory euthanasia law. In the Senate committee report there are many references to Australia's international obligations. But the questions of principle raised by laws for the mandatory sentencing of children do not depend on what the United Nations or its agencies might say. The reason for rejecting the NT and WA laws is not the need to comply with international agreements. It is because the laws are wrong. Put simply, children should not be imprisoned unless there is no other appropriate way to deal with them. Mandatory sentencing to jail does not allow a judge or magistrate to apply other punishment. Punishment without discretion or regard to the individual cannot go to the causes of crime. In the case of a child, vulnerable and unformed as an individual, that is a grotesque injustice. These arguments will not convince those who refuse to see those most affected by the WA and NT laws - young Aborigines - as individuals. But they should convince the national parliament and ensure action, sooner or later, against mandatory sentencing laws. -- ********************************* Make the Hunger Site your homepage! http://www.thehungersite.com/index.html ********************************* ------------------------------------------------------- RecOzNet2 has a page @ http://www.green.net.au/recoznet2 and is archived at http://www.mail-archive.com/ To unsubscribe from this list, mail [EMAIL PROTECTED], and in the body of the message, include the words: unsubscribe announce or click here mailto:[EMAIL PROTECTED]?Body=unsubscribe%20announce This posting is provided to the individual members of this group without permission from the copyright owner for purposes of criticism, comment, scholarship and research under the "fair use" provisions of the Federal copyright laws and it may not be distributed further without permission of the copyright owner, except for "fair use." RecOzNet2 is archived for members @ http://www.mail-archive.com/recoznet2%40paradigm4.com.au/
