Mandatory detention laws in Australia (2001)

Mandatory detention laws

in Australia

An overview of current laws

and proposed reform

Introduction
Current laws
Australia's
international human rights obligations
The impact
of mandatory detention laws
Criticisms
of mandatory detention
Reform of mandatory
detention laws

1.

Introduction

This paper gives

a brief overview of the mandatory detention laws currently operating in

the Northern Territory and Western Australia. It examines their operation

and gives some insights into how they have impacted on particular groups

including young people and Indigenous Australians. It gives a critique

of mandatory detention by reference to Australia's international human

rights obligations, with particular emphasis on the United Nations Convention

on the Rights of the Child. The paper cites a number of recent reports

and articles dealing with this subject. They highlight the unjust nature

of the laws, their ineffectiveness in reducing crime and the urgent need

for their reform. The paper concludes by describing a current proposal

aimed at reforming the mandatory detention laws.

2. Current

laws

Mandatory detention

laws were enacted in Western Australia and the Northern Territory in 1996

and 1997 respectively. Essentially these laws require courts to impose

minimum sentences of detention or imprisonment for people convicted of

certain offences. They effectively remove judicial discretion in relation

to those offences.

The WA laws came

into effect on 14 November 1996 through amendments to the Criminal Code

(WA). These amendments provide that when convicted for a third time or

more for a home burglary, adult and juvenile offenders must be sentenced

to a minimum of 12 months imprisonment or detention (the "three strikes

and you're in" legislation). The provisions contain some allowance for

both adults and juveniles to be released under supervision.

The NT laws came

into effect on 8 March 1997 through amendments to the NT Sentencing

Act 1995 and the Juvenile Justice Act 1983. The Sentencing

Act provisions apply only to persons aged 17 years or over.¹

Under Section 78A

of the Sentencing Act persons found guilty of certain property offences

shall be subject to a mandatory minimum term of imprisonment of 14 days

for a first offence. For a second property offence the mandatory minimum

sentence is 90 days. For a third property offence the period of imprisonment

is one year.

The NT Sentencing

Act was recently amended again to provide that courts are not required

to impose a sentence of detention under these provisions in certain "exceptional

circumstances". However, this applies to adults only and not to juveniles.

Unlike the laws relating

to adults which can be invoked at the first conviction, the mandatory

detention provisions relating to juveniles in the NT require at least

one prior conviction. Under section 53AE of the NT Juvenile Justice Act

a person aged 15 or 16 years who has been convicted of a relevant property

offence and has had at least one prior conviction for such an offence

must be subject to detention for at least 28 days.

The NT criminal justice

system treats people as adults once they attain the age of 17 years. This

means that 17 year olds will be subject to the adult mandatory detention

provisions in the Sentencing Act. As indicated above, those provisions

are not limited to repeat offenders and can be invoked on a first conviction.

In addition, under the Juvenile Justice Act a person who turns 17 while

serving a term in a juvenile detention facility is required to be transferred

to an adult prison to serve out the remainder of the sentence.

For the purpose of

the NT mandatory detention provisions, relevant property offences include

theft (irrespective
of the value of the property, and excluding theft when the offender

was lawfully on premises)
criminal damage
unlawful entry
to buildings
unlawful use of
vessel, motor vehicle, caravan or trailer (whether as a passenger or

driver)
receiving stolen
goods (regardless of value)
receiving after
change of ownership
taking reward
for the recovery of property obtained by criminal means.
assault with intent
to steal
robbery (armed
or unarmed).²

3. Australia's

international human rights obligations

Mandatory detention

laws raise a number of issues in relation to Australia's international

human rights obligations. They include obligations under the International

Covenant on Civil and Political Rights (ICCPR), which Australia ratified

in 1980. The ICCPR prohibits arbitrary detention (article 9(1)) and provides

that sentences must be reviewable by a higher tribunal (article 14(5)).

Mandatory detention

raises particular concerns in relation to children, arising from Australia's

obligations under the United Nations Convention on the Rights of the

Child (CROC). The Convention applies to everyone under the age of

18. Relevant principles include

In all actions
concerning children, the best interests of the child shall be a primary

consideration (Article 3(1)).
Detention of children
must only be used as a last resort and for the shortest appropriate

period (Article 37(b)).
Sentences must
be reviewable by a higher or appellate court (Article 40(2)(b)(v)).
Children who come
into conflict with the law must be dealt with in a manner appropriate

to their well-being and proportionate both to their circumstances and

the offence (Article 40(4)).

Australia ratified

the Convention in 1990. This process involved consultation with all State

and Territory Governments.

When a country with

a federal system of government ratifies a Convention it applies to all

levels of government.

Some further guidance

on the interpretation of these provisions can be found in Human

Rights Brief No.2: Sentencing Juvenile Offenders, a publication

of the Human Rights and Equal Opportunity Commission.

4. The

impact of mandatory detention laws

In both NT and WA

the mandatory detention laws have had a significant impact in terms of

numbers incarcerated.

The Australian Bureau

of Statistics noted in late 1997 that the NT prisoner population had increased

by 42% since mandatory detention was introduced.³

The National Children's

and Youth Law Centre examined the impact of the NT laws.

"While there

are few reliable estimates of how many people have been goaled under mandatory

sentencing laws since they took effect in mid-1997, those Territorians

familiar with the effects of the regime say it runs into the hundreds.

The majority of those sentenced have been young, Aboriginal men."⁴

The National Convenor

of Defence for Children International commented on the numbers of children

incarcerated under mandatory detention laws.

"Over 50

children in WA have served or are serving the 12 month mandatory sentences

in the State's one juvenile detention facility.In the NT . Corrective

Services Annual Reports indicate that the number of juveniles sentenced

to detention for relevant offences increased 53% in the one year to June

1998. The daily average [number] of juvenile detainees has also increased

in the same proportion, from 15 to 23. In the two years since commencement,

the number of juveniles who have already served or are serving mandatory

sentences appears to be at least 66. This represents a dramatic increase

on the 1995/96 numbers [of juveniles in detention] (22)."⁵

The impact of mandatory

detention laws is seen not just in the numbers affected but also in the

disproportionate impact on particular groups of people, especially Indigenous

people. Recent research indicated that Indigenous children constituted

80% of cases under the mandatory detention laws before the Children's

Court of WA between February 1997 and May 1998.⁶

Individual cases

also provide valuable insights into the impact of the mandatory detention

laws. They illustrate, among other things, the trivial nature of most

of the offending behaviour relative to the penalty imposed. The following

examples relate to the Northern Territory.

Adults

A 24 year old
Indigenous mother was sentenced to 14 days in prison for receiving a

stolen $2.50 can of beer.
A 27 year old
white teacher disputed the quality of a hotdog at a Darwin fast food

bar and poured water onto the till. She paid in full for the damage

she caused. She was sentenced to 14 days in prison.
An 18 year old
Indigenous man obeyed his father and admitted to police that he stole

a $2.50 cigarette lighter. He was sentenced to 14 days in prison.
A 29 year old
homeless Indigenous man wandered into a backyard when drunk and took

a $15 towel. It was his third minor property offence. He was imprisoned

for one year.
A 20 year old
man with no prior convictions was sentenced to 14 days in prison for

theft of $9.00 worth of petrol.
An 18 year old
man was sentenced to 90 days in prison for stealing 90 cents from a

motor vehicle.

Children

(Note: These examples

include 17 year olds who are treated as adults under the NT criminal justice

system and are therefore subject to the adult mandatory detention provisions

in the Sentencing Act.)

Two 17 year old
girls with no previous criminal convictions were both sentenced to 14

days in prison for theft of clothes from other girls who were staying

in the same room.
A 17 year old
girl with no prior convictions was sentenced to 14 days in prison for

receiving jewellery stolen by other young people. The jewellery was

later recovered.
A young offender
broke into a toy shop and stole some computer games. He was detained

for 14 days even though he confessed to police and his parents paid

compensation to the owner of the shop.
Two young apprentices
were each imprisoned for 14 days for first offences. One of them broke

a window and the other broke a light worth $9.60.
A 17 year old
boy was incarcerated for 28 days in an adult prison for a second conviction

of minor theft. If the second offence had been committed on or after

his 17th birthday the period of imprisonment would have been 14 days

only.
A 15 year old
girl was detained for 28 days for unlawful possession of a vehicle.

In fact she was only a passenger in a stolen vehicle.
A 17 year old
petrol sniffer from an Aboriginal community was sentenced to seven months

plus 120 days for stealing food, alcohol, cigarettes, soft drink and

petrol and causing associated minor property damage. The stolen items

were consumed with friends. His sentence was based on the mandatory

detention formula (120 days) with an additional seven months. He had

very little family support and his record was clean until June 1998.

The following "stories"

highlight the economic and social disadvantage of many young people affected

the Northern Territory mandatory detention laws. Names have been changed

to avoid identification.

Robert is a 15
year old Aboriginal boy. He was first referred to the Department of

Family, Youth and Children's Services when he was 12 due to a lack of

parental support. Since the age of 14 Robert has mostly looked after

himself. This year he attempted suicide while in police custody, having

been arrested for a mandatory detention offence. The offence was one

of property damage. He broke a window after hearing about the suicide

of a close friend.
Andrew is a 17
year old Aboriginal boy who lives in a town camp outside of Alice Springs.

He is well known to youth services in Alice Springs, having accessed

the court system and income and accommodation support since he was 15.

His literacy skills are low and English is his third language. As with

many young people in Alice Springs Andrew has been identified as high

risk and survived a suicide attempt recently. He was charged with a

mandatory detention offence when he was 16 years old.
Tony is a 17 year
old boy who lives between Alice Springs and several bush communities.

Tony has been accessing crisis accommodation with youth services since

he was 14 years old. He has a history of multiple substance dependency.

Tony has minimal education and his literacy skills are low. English

is his third language. He has never had his own income and workers who

know him believe the bureaucracy of the system and the excessive paperwork

is what deters him from accessing this entitlement. Tony is considered

to be an adult in the Northern Territory. He has been charged with a

mandatory detention offence (unlawful entry into a shop) and is facing

imprisonment in an adult jail.

Criticisms

of mandatory detention

The mandatory detention

regimes in NT and WA have been the subject of increasing criticism in

recent times. Criticisms have included the unjust nature of the laws and

in particular their tendency to target vulnerable and disadvantaged groups,

the harshness of the penalties given the sometimes minor nature of the

offences involved, the economic costs associated with large increases

in prison and detention centre numbers and the ineffectiveness of these

laws as a deterrent to criminal activity. This section of the paper highlights

some sources of these criticisms and summarises the key issues raised.

Report of the Joint

Standing Committee on Treaties

In its Report on

the United Nations Convention on the Rights of the Child (17th report,

August 1998), the Joint Standing Committee on Treaties was highly critical

of mandatory detention.

"Mandatory

sentencing does not take into account the child's age, the facts of the

current offence, the individual circumstances of the person, consideration

of an appropriate period of time or the application of judicial discretion.

Mandatory detention restricts the court's capacity to ensure that the

punishment is proportional to the seriousness of the offence and in relation

to the rehabilitative options. These minimum sentences are in contravention

of Article 37(b) of the Convention which requires that deprivation of

liberty not be arbitrary and is a measure of last resort."(page 346)

Report of National

Inquiry into Children and the Legal Process

The human rights

violations inherent in mandatory detention laws were highlighted in Seen

and heard (1997), the report of the National Inquiry into Children

and the Legal Process, undertaken jointly by the Human Rights and Equal

Opportunity Commission and the Australian Law Reform Commission.

"The Northern

Territory and Western Australia laws breach a number of international

human rights standards and common law principles. They violate the principle

of proportionality which requires the facts of the offence and the circumstances

of the offender to be taken into account, in accordance with article 40

of CROC. They also breach the requirement that in the case of children

detention should be a last resort and for the shortest appropriate period,

as required by article 37 of CROC. Mandatory detention violates a number

of principles in the ICCPR including the prohibition on arbitrary detention

in article 9. Both CROC and ICCPR require that sentences should be reviewable

by a higher or appellate court. By definition, a mandatory sentence cannot

be reviewed."

The report recommended

federal legislation to override these laws unless the Parliaments of WA

and NT repeal them.

The mandatory detention

laws reflect the high degree of misinformation in the community about

juvenile crime, a point that was also highlighted in the Seen and heard

report. This includes perceptions about a "juvenile crime wave", despite

the fact that there has been no significant increase in juvenile crime

rates over the past 15 years. These perceptions, fuelled by the media

and political rhetoric, have encouraged unjust and misconceived responses

by governments to juvenile justice issues. The report cited numerous studies

discrediting current perceptions about juvenile offending.

"Contrary

to police and media reports and the claims of politicians, there is in

Australia no juvenile crime wave and no large increase in serious juvenile

crime."⁷

".current [juvenile

justice] policy is flawed by political expediency and 'knee jerk' responses

to perceived problems of antisocial and delinquent youth behaviour."⁸

United Nations Committee

on the Rights of the Child

The mandatory detention

laws have also been the subject of international criticism. In 1997 the

United Nations Committee on the Rights of the Child stated, in relation

to Australia

"The situation

in relation to juvenile justice and the treatment of children deprived

of their liberty is of concern to the Committee.The Committee is particularly

concerned by the enactment of new legislation in two States, where a high

proportion of Aboriginal people live, which provides for mandatory detention

and punitive measures of juveniles, thus resulting in a high representation

of Aboriginal juveniles in detention."⁹

'A Year of Bad Policy:

Mandatory sentencing in the Northern Territory', by Louis Schetzer, [now

Director, National Children's and Youth Law Centre] Alternative Law

Journal, Vol 23, No.3, June 1998, p117

As the title suggests,

this article was highly critical of the NT mandatory detention laws.

"The past

18 months have seen the development of a repressive and unreasonable response

by the Northern Territory's CLP Government to a perceived increase in

criminal activity in the NT. Without providing any statistical evidence

to substantiate statements that the NT was in the midst of a 'crime wave',

the Government adopted measures which are in clear contravention of international

human rights conventions, particularly in their effect on young people."

Mr Schetzer noted

the irony of the fact that white collar crimes, such as fraud, obtaining

financial advantage by deception and related offences are not subject

to mandatory detention.

The article expressed

concern about the economic cost to the community of these laws.

"Undoubtedly,

increasing incarceration rates will involve significant extra costs. The

1995-96 NT Correctional Services Annual Report stated that it costs $12,432

to accommodate each young person sentenced to a 28 day period of detention.The

cost to the public purse for every adult sentenced under mandatory sentencing

for the minimum 14 day period is approximately $2,400."

"The community

is entitled to question whether they are getting value for their law

and order dollar, or whether the money could be better spent elsewhere

(such as health, public and emergency education and education)."

Mr Schetzer challenged

assumptions about the deterrent value of mandatory detention.

"[T]he prime

motivation for the introduction of mandatory sentencing was a perception

that property crime rates in the NT were far too high. The assumption

that a tougher system of sentencing will act as a deterrent is a political

vote winner, but it is contrary to an overwhelming weight of evidence

across Australia and from overseas."

According to Mr Schetzer,

the NT Correctional Services Department has itself acknowledged the ineffectiveness

of incarceration as a deterrent to re-offending. He quoted from a publication

of that agency.

"The evidence

is clear that the more access juveniles have to the criminal justice system

the more frequently and deeper they will penetrate it.it has been shown

that punishment of criminal offenders through incarceration in a juvenile

detention centre or a prison.has little positive effect. What happens

in many cases is that the detainees learn from their fellow inmates how

to become more effective in committing crime."¹⁰

'Punishment is Blind:

Mandatory Sentencing of Children in Western Australia and the Northern

Territory' by Helen Bayes, National Convenor, Defence for Children International,

University of NSW Law Journal, Vol 22(1) 1999, p286

Ms Bayes highlighted

the especially severe impact of these laws on children.

"Both pieces

of legislation are more harsh on children than adults. In the NT young

offenders receive multiples of 28 days, whereas adults (those 17 and over)

receive multiples of 14 days for the same offence. In WA, children must

serve half of their sentence (six months) before becoming eligible for

release under supervision, whereas adults need serve only one third (four

months)."

Ms Bayes was especially

concerned that these laws tend to target young people from seriously disadvantaged

backgrounds, many of whom engage in petty crime to survive.

"What is

not acknowledged by the politicians is that many of these young offenders

are children who have suffered years of physical and emotional neglect,

have effectively been abandoned by their families and the welfare system,

and are trying to live independent of violent and abusive homes. These

are children and young people who have learned to live by their wits and

whose survival may already have depended on it."

'Mandatory Imprisonment

of Property Offenders in the Northern Territory', by George Zdenkowski,

Associate Professor of Law, University of New South Wales, University

of NSW Law Journal, Vol 22(1), 1999, p302

Like many other observers,

Professor Zdenkowski has questioned the deterrent effect of mandatory

detention laws. He cited a number of research studies in support of the

proposition that mandatory minimum sentences have no real impact on the

rate of crime.

The focus on particular

property offences was also questioned.

"While certain

property crimes are targeted, there is no evidence that they are the source

of greater social harm than non-targeted property offences (especially

as there is no requirement of seriousness) or indeed, offences involving

personal violence."

He expressed concern

about inequities resulting from the inflexible nature of these laws.

"[G]iven

the inflexible and discriminatory impact of the mandatory minimum prison

term on differently circumstanced offenders and offences, it is inevitable

that the penalty will be disproportionate in some cases."

'Mandatory sentencing

laws and the symbolic politics of law and order', by Russell Hogg, School

of Law, Macquarie University, University of NSW Law Journal, Vol

22(1), 1999, p262

This article drew

upon the US experience. It noted that California's "three strikes law"

is one of the toughest in the US. The Rand Organisation analysed the likely

costs and benefits of the Californian laws over a 25 year period. It concluded

that by 2002 spending on corrections would increase from 9% of the State

budget to 18%. It also concluded that spending in other areas such as

higher education, pollution and workplace safety would need to drop by

over 40% in the period up to 2002 to fund the three strikes law.

The author foresaw

a similar scenario for Australia.

"Prison

populations will still rise dramatically and the budgets of other public

services will have to be plundered to pay for them."

The author saw clear

lessons for Australia from the US experience.

"Politicians

in Australia have in recent years increasingly looked to the US for their

ideas about criminal justice policy. The lessons we have to learn from

that country, however, are largely negative ones: those of a country that

has more than tripled its prison population in less than two decades (and

currently has a prison population more than five times that of Australia),

that despite recent reductions in crime still experiences much higher

crime rates (especially violent crime) than most other countries in the

world and that appears incapable of relaxing its punitive obsession."

Like many commentators,

Mr Hogg was disturbed at the way public discourse on these issues has

been driven largely by political rhetoric.

"In Australia.the

stridency of the political rhetoric, the vagueness of proposals for sentencing

reform and their proximity to elections are the clearest indications of

what is really at stake. They usually represent the latest attempt to

lift the bar in the law and order high jump. The rationale for such measures

is less an instrumental one of reducing crime than it is the symbolic

one of tapping and harnessing punitive public opinion behind a new program

of draconian penal measures."

'Capturing crims

or capturing votes', by Neil Morgan, Crime Research Centre, University

of Western Australia, University of NSW Law Journal, Vol 22(1),

1999, p267

This article focused

on the WA laws. It spoke about the "phantom" of deterrence, arguing that

there is a steadily accumulating body of research confirming that increased

penalties do not have a significant deterrent effect. It noted that in

the US mandatory penalties for drug offences have had no impact on the

drug trade or the price of illegal substances.

Mr Morgan placed

the onus of proving the deterrent effect of mandatory detention squarely

on its supporters.

"At the

very least the onus is on those who argue for a deterrent effect to produce

evidence to support their thesis."

The "knee-jerk" way

in which these laws were introduced was the subject of criticism.

"[T]he political

process can move with unseemly haste: there is a clear pattern of mandatories

being introduced at time of political pressure without adequate data to

support their introduction..."

The article highlighted

the unjust nature of the laws, noting that in WA a very trivial burglary

may well attract a much harsher penalty than a relatively serious fraud.

The discriminatory

impact of the laws was also highlighted.

"[M]andatories

involve the policy choice to select certain types of criminal activity

for special attention. These policy choices invariably involve the selection

of offences (for example burglary or car stealing) in which minority and

lower socio-economic groups are over-represented."

Launch of UNSW Law

Journal Forum on Mandatory Sentencing Legislation, by Hon Justice Michael

Adams, Justice of the Supreme Court of New South Wales, University

of NSW Law Journal, Vol 22(1) 1999, p257

Justice Adams argued

that mandatory detention laws undermine the independence of the judiciary.

"One of

the crucial aspects of this debate.concerns the independence of the judiciary.

In proposing schemes.of mandatory.sentences, the politicians are.calling

into question the sentencing patterns and procedures that have been developed

by courts in accordance with statutes of long standing. To do so without

any attempt at reasoned justification or to analyse the alleged shortcomings

of the existing sentencing regimes.seriously undermines public confidence

in the courts."

"To remove judicial

discretion in such a vital area of the liberties of the subject is tantamount

to a vote of no confidence in the judiciary."

"The assertion

by the elected politicians of the right, in effect, to impose particular

sentences for particular crimes, as a response to immediate political

exigencies is a significant interference with traditional and well settled

principles of the separation of powers."

'Mandatory Life

Sentences in New South Wales', by Nicholas Cowdery QC, Director of Public

Prosecutions, NSW, University of NSW Law Journal, Vol 22(1), 1999,

p290

This article emphasised

the important role of judicial discretion in sentencing, a role that is

effectively removed by mandatory detention. The High Court of Australia

was cited on this point.

"It is both

unusual and in general, in my opinion, undesirable that the court should

not have a discretion in the imposition of penalties and sentences, for

circumstances alter cases and it is a traditional function of a court

of justice to endeavour to make the punishment appropriate to the circumstances

as well as to the nature of the crime." [Barwick CJ in Palling v Corfield

(1970) 123 CLR 52 at 58]

Mr Cowdery's comments

about the meaning of "justice" may well be applied in the context of mandatory

detention.

"Justice

means justice to both the community and the individual. It has been a

hard won commodity and we should think carefully before we allow the government

of the day to shackle it."

Reform

of mandatory detention laws

The evidence and

the arguments presented in this paper confirm the urgent need for reform

of the mandatory detention laws. A proposal for Commonwealth legislation

to outlaw mandatory detention of juveniles has recently been developed.

It is set out in the Human Rights (Mandatory Sentencing of Juvenile

Offenders) Bill 1999. The focus of the Bill reflects the high level

of community concern about the effect of these laws on children.

The proposal is based

on Australia's obligations under the Convention on the Rights of the

Child. There is significant cross-party support for the proposal,

which reflects the multi-partisan nature of Australia's commitment to

the well-being and dignity of its children.

This initiative follows

repeated calls from human rights groups and other organisations for those

jurisdictions that have enacted mandatory detention laws to repeal them.

Despite widespread opposition to these laws from many sections of the

community these calls have not been heeded.

The effect of mandatory

detention on the human rights of children is clearly a national issue

requiring leadership and action by the national Parliament.

For the purpose of

the Human Rights (Mandatory Sentencing of Juvenile Offenders) Bill

a child is defined as a person under the age of 18 years. The Bill provides

that a law of the Commonwealth or of a State or Territory must not require

a court to sentence a person to imprisonment or detention for an offence

committed when that person was a child.

Endnotes

¹ Sentencing

Act 1995 (NT), s4.

² Sentencing Act 1995 (NT), Schedule 1.

³ Australian Bureau of Statistics, Year Book Australia 1998,

'National Figures on Crime and Punishment'.

⁴ National Children's and Youth Law Centre, 'Mandatory Sentencing

Continues to Disgust', Rights Now, July 1999.

⁵ Helen Bayes, 'Punishment is Blind: Mandatory Sentencing of

Children in Western Australia and the Northern Territory', University

of New South Wales Law Journal, Vol 22(1), 1999 p286.

⁶ C Stokes, 'Three Strikes and You're In: Mandatory Minimum

Sentences for Repeat Home Burglars in Western Australia', unpublished

honours thesis, University of Western Australia, 1998.

⁷ M Findlay, S Odgers & S Yeo Australian Criminal Justice

Oxford University Press Melbourne 1994, 264, cited in Seen and heard:

priority for children in the legal process HREOC/ALRC 1997, p466.

⁸ K Buttrum 'Juvenile justice: What works and what doesn't!'

Paper Juvenile Crime and Juvenile Justice: Towards 200 and Beyond

AIC Conference Adelaide 26-27 June 1997, cited in Seen and heard: priority

for children in the legal process HREOC/ALRC 1997, p466.

⁹ Committee on the Rights of the Child, Concluding observations

on Australia's first report under the Convention on the Rights of the

Child, adopted on 10 October 1997.

¹⁰ Information on Departmental Juvenile Justice Services

in the NT, NT Correctional Services Department, 1991.

Last

updated 2 December 2001.

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Mandatory detention laws in Australia (2001)