RIGHTS-AUSTRALIA: Repeal of Laws on Harsh Sentencing Hailed

By IPS Correspondents Reprint | | Print |

Bob Burton

CANBERRA, Oct 22 2001 (IPS) - Aboriginal and rights groups cautiously welcomed the repeal effective Monday of harsh sentencing laws in Australia’s Northern Territory, rules that saw mainly Aboriginal youths and adults serving 12 months in jail for minor offences such as theft.

Legal Policy Manager with the North Australian Aboriginal Legal Aid Service (NAALAS), John Sheldon, said of the repeal of mandatory sentencing: “We’re seeing this as a genuine victory in the repealing of the laws.”

However, support for the government’s alternative to mandatory is more qualified. “While not within what we say should be done — which is that the courts should have full sentencing discretion for all matters — at the end of the day they are the government and they want to do it differently and we will wait and see,” he said.

Aboriginal people represent some two-thirds of the Northern Territory prison population, although they account for only one quarter of the population. This, activists say, show how the mandatory sentencing provisions have had a profound impact on Aboriginal communities.

Amnesty International unsuccessfully lobbied both the former Northern Territory government and the current Australian government that mandatory sentencing breached the international convention on the rights of children.

This, it says, it because it forces the courts to impose custodial sentences rather than deciding what was in the best interests of the individuals.

“We regard it (Monday’s repeal) as an encouraging sign, but we will have to have a closer look at the legislation and the impact that it has for juvenile offenders and specifically Aboriginal juvenile offenders,” Amnesty spokesman Damien Spry said.

Last Thursday, the Northern Territory Attorney-General, Dr Peter Toyne, pushed legislation repealing the harsh sentencing laws — which specified prison terms for both juvenile and adult re-offenders for minor property crimes — through the first parliamentary sitting of the recently elected Labor Government.

In August, the Country Liberal Party (CLP) suffered a shock election defeat after 27 years governing the normally conservative Northern Territory in part because of its hardline stance on mandatory sentencing.

Heralding the legislation last week, Toyne rejected the previous regime of mandatory sentencing. “It resulted in unjust and inappropriate sentences of imprisonment. . .Children will not be imprisoned for minor offences,” he said in introducing the legislation.

‘Mandatory sentencing’ laws were introduced in 1997 and compelled judges to impose prison sentences even for minor property offences. Those under the age of 17 who were convicted of a second property offence faced a mandatory sentence of 28 days in jail.

For adults convicted of certain property offences, the legislation provides for 14 days imprisonment for first offenders, 90 days for second offenders and one year for third offenders.

Last year, controversy over the laws erupted after publicity about the case of a 15-year-old Aboriginal boy, “Johnno”, who had had been sentenced to 28 days detention for stealing liquid paper and felt pens.

“Johnno” was transported 800 kilometres from his community to a special youth detention facility, but committed suicide just days before he was due to be released.

In another case, a 22-year-old Aboriginal woman with no prior convictions was sentenced to 14 days gaol for stealing a can of beer, while an 18-year-old indigenous man served 14 days for admitting to police that he stole a cigarette lighter valued at 2.50 dollars.

While the repeal of the mandatory sentencing laws has been welcomed, concern remains about the impact of its alternative approach which the government promised would be “tough on crime and tough on the causes of crime”.

Under the new government’s proposals, offenders convicted of aggravated property offences face either jail sentence or compulsory community work orders, unless they can make a compelling case for more lenient punishment.

Aboriginal campaigners on the Northern Territory laws are worried that the alternative proposals will do little to address the disproportionate number of Aboriginal people being imprisoned.

“It is of concern to us to see that a person would be jailed or given a work order, unless exceptional circumstances prevail under this new wording post election,” Chris Howse of the Aboriginal Justice Advocacy Committee said.

However, the repeal of mandatory sentencing is unlikely to have any impact on the 30 people currently serving sentences imposed under the earlier laws.

While the chief minister of the Labor Government had indicated general support for overturning the sentences of those gaoled under the controversial provisions, last week’s legislative amendments backtracked on that commitment.

Toyne argues that those currently serving time will serve their sentences unless they can persuade the Northern Territory equivalent of a state governor by lodging a petition for mercy with the administrator.

“What I can say is that all prisoners can apply for the prerogative of mercy and if the people genuinely feel there has been an injustice in the sentence they had handed down, they can go to the administrator,” he said.

Toyne argues that while the new government investigated overturning the earlier sentences, it retreated on the basis of legal advice. “The moment you start to put retrospectivity into a law, it starts to open up all sorts of other issues, and probably an endless scenario of appeals and — the advice was very much against doing that,” he told journalists.

Last week, in a speech to a conference hosted by the Christaid and advocacy organisation, the Brotherhood of St Laurence, former Federal Court judge and human rights advocate Justice Marcus Einfeld described mandatory sentencing as being akin to the now abandoned practice in Australia of removing Aboriginal children from their parents.

“Our generation has it’s own quite new ‘stolen children’ saga to confront,” he said, referring to the term used to refer to the Aboriginal children who for decades were taken from their families and sent to be raised by white Australians. Mandatory sentencing, Einfield said, was really “compulsory jailing”.