Australian Natives Blast Mandatory Sentencing

by Bob Burton

This was the crux of the testimony August 7 of the country's biggest Native organization, the Aboriginal and Torres Strait Islander Commission (ATSIC), before an Australian parliamentary committee.

The Senate committee inquiry into the mandatory sentencing laws is reviewing a private members' bill introduced by Australian Greens Senator Bob Brown that would override the mandatory sentencing laws passed by the Northern Territory and West Australian.

"Most Aboriginal people view these laws as being deliberately targeted at them. Aboriginal people in the Northern Territory find the law abhorrent," ATSIC's national manager for legal and preventative strategies, Allan Hedger, told the committee.

Native leaders urged the Australian government to support legislation to overturn laws that direct judges to imprison repeat offenders for minor property offenses, which they argue are overwhelmingly used against people from Native communities.

At the center of the controversy are Northern Territory laws, introduced in 1997, which require adults convicted of a property offense to be sentenced to a mandatory sentence of two weeks' jail.

Those under the age of 17 who are convicted of a second property offense face a mandatory sentence of 28 days in jail.

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

In its submission, ATSIC argued that crimes often committed by non-Native Australians were excluded from the mandatory sentencing legislation.

"White collar crime, such as fraud and embezzlement, is not subject to mandatory sentencing, nor is shoplifting," they wrote, arguing that there is a discriminatory imbalance in laws.

After being sentenced to detention, Johnno was transported 800 km to a special youth detention facility but committed suicide just days before he was due to be released.

The subsequent controversy split the ruling conservative Australian government, which negotiated an agreement with the Northern Territory government to institute special programs to better train police, ensure the provision of interpreter services for Native youth and employ alternative justice methods than prison sentences.

In return for the Commonwealth government funding the $2.55 million program, the Northern Territory would amend the laws to change the age threshold for the mandatory sentencing provisions from 16 to 17 years.

However, the provisions requiring prison sentences for adults remain unaffected.

Statistics provided to the Senate committee support Native leaders argument that the impact of the laws falls disproportionately on Aboriginal youth.

Of the 28 juveniles sent to formal diversionary programs by May this year following the induction of the agreement with the Northern Territory government, 24 were indigenous people.

"If the true 'diversionary program' participant rate is only 28, then the public should be asking if there is really value for the $2.04 million that the new system has cost," ATSIC argued.

The Uniting Church of Australia told the committee that it too supports overturning the laws.

"We believe that the contravention of international conventions is a serious matter," said the president of the Uniting Church of Social Responsibility and Justice, Prof. James Haire.

"The moves towards mandatory sentencing are a way of undermining a court system," he said.

Introducing the laws into Parliament in 1997, the Northern Territory's chief minister and attorney-general, Denis Burke, argued that strong measures were warranted.

"The government believes that the proposal for compulsory imprisonment will deal with present community concerns that penalties imposed are too light and encourage law enforcement agencies that their efforts in apprehending villains will not be wasted," he said.

ATSIC told the committee that state governments should address the underlying problems of lack of employment and inadequate community facilities, rather than take a punitive approach.

"Governments should be addressing these conditions as a way of resolving the end product of criminal behavior rather than mandatory detention which merely aims for revenge for the victim," it said in a submission to the parliamentary inquiry.

Since the introduction of the laws, their indiscriminate effects have gained national media coverage.

A 22-year-old Native woman with no prior convictions was sentenced to 14 days in jail for stealing a can of beer, and an 18-year-old Native man served 14 days for admitting to police that he had stolen a cigarette lighter worth $1.27.

Appearing before the Senate committee, the secretary of the Commonwealth attorney-general's office, Robert Cornall, said the attorney-general "did not agree" with the mandatory sentencing laws but was not prepared to overturn state laws.

"Sentencing policy is a state and territory issue," he said.

Committee member Senator Barney Cooney then asked: If a state government re-introduced the lash as a form of punishment in breach of Australia's treaty obligations against torture, would the Attorney-General support overriding legislation?

Cornall refused to be drawn in, saying: "It's hypothetical and I can't comment on hypotheticals."