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Flynn, Martin --- "Mandatory Sentencing, International Law and the Howard/Burke Deal" [2000] IndigLawB 38; (2000) 4(30) Indigenous Law Bulletin 7

Mandatory Sentencing, International Law and the Howard/Burke Deal

By Martin Flynn[1]

On 10 February 2000, a 15 year old boy from Groote Eylandt died while serving 28 days of mandatory detention for minor property offences. Coincidentally, the Senate Legal and Constitutional Committee was due to report in March 2000 on Senator Bob Brown's Human Rights (Mandatory Sentencing of Juvenile Offenders) Bill 1999 (Cth). If passed, Brown's Bill would override any law of a State or Territory that compelled a court to sentence a person to imprisonment or detention for an offence committed when the person was under the age of 18.

The Senate Committee process became a conduit for the public outcry that followed the death of the young boy from Groote Eylandt. The Committee's report was tabled on 13 March 2000.[2] The majority of the Committee expressed strong support for the Bill, concluding that the application of sentencing laws in the Northern Territory and Western Australia resulted in a breach of the Convention on the Rights of the Child (‘CROC’), International Covenant on Civil and Political Rights (‘ICCPR’) and the Convention on the Elimination of All Forms of Racial Discrimination (‘CERD’). A minority of the Committee - Liberal Senators Marise Payne and Helen Coonan - were critical of the Northern Territory laws, urging the Commonwealth Government to enter negotiations with the Northern Territory Government.

Brown's Bill was passed by the Senate (without any coalition support) and came before the House of Representatives on 15 March 2000. The Government used its numbers in the House to defer the Bill. However, pressure continued on the Government to ‘sort out’ the Northern Territory. On 24 March 2000, the Committee on the Elimination of Racial Discrimination ‘seriously questioned’ the compatibility of mandatory sentencing laws with CERD.[3] The Commonwealth Attorney-General rejected the Committee's opinion as an ‘unbalanced and wide-ranging attack that intrudes unreasonably into Australia’s domestic affairs’.[4] Nevertheless the Prime Minister initiated a meeting with the Chief Minister Burke and an agreement was announced on 10 April 2000 (‘the Howard/Burke deal’).[5] The Howard/Burke deal is a step in the right direction, but it leaves largely untouched the legislative regimes in the Northern Territory and Western Australia. The CERD Committee criticism is unlikely to be the last word from international monitoring bodies. The Human Rights Committee will soon publish a review of Australia's performance against the obligations imposed by the ICCPR. Non-government organisations will urge the Committee to comment on the fact that mandatory sentencing laws continue to violate international standards concerning children , the administration of justice, and equality before the law.

The Howard/Burke Deal

The elements of the Howard/Burke deal announced on 10 April 2000 are:

Three broad observations can be made about the Howard/Burke deal.

First, any move away from the relentless line of young indigenous defendants whispering ‘guilty’ as part of a court process that is utterly meaningless (to them) is to be welcomed. The Northern Territory should take advantage of the substantial experience of other jurisdictions when formulating diversionary programs. The recent focus of research has been on the promise offered by restorative justice programs.[6] For example, an evaluation of the Reintegrative Shaming Experiments (RISE) in Canberra reports that both juvenile property offenders and their victims find diversionary programs to be fairer than court.[7] On the other hand, research has also shown that, without careful program design, there is a real risk of low levels of Aboriginal participation in programs and poor program outcomes among Aboriginal participants.[8] Careful program design in the Northern Territory would necessarily involve close collaboration with relevant Aboriginal organisations.

Secondly, nothing has been done about the mandatory detention of children in Western Australia. The anomalies that now exist between the law in Western Australia and the law in the Northern Territory after the Howard/Burke deal are highlighted by considering the fate of a 17 year old boy who, for the third time, steals a small quantity of food from a house. If he commits the offence in the Northern Territory then, as a minor offender, he will be diverted to a program and will not appear before a court. If the boy commits the offence in Western Australia he will be sentenced to a mandatory 12 months detention as required by s 401 Criminal Code (WA). He may or may not be released pursuant to an intensive supervision order available as a result of ss 98 and 99 Young Offenders Act 1994 (WA).

Thirdly, the Howard/Burke deal does nothing for adult defendants in the Northern Territory and Western Australia. Young Aboriginal defendants, aged 18 and over, charged with property offences comprise the bulk of the work of the Court of Summary Jurisdiction throughout the Northern Territory. The media recently carried a report of a 24 year old Aboriginal woman from Alice Springs about to commence her second year of mandatory imprisonment, having broken a window soon after release from one year of mandatory imprisonment for a similar offence.

Much of the mandatory sentencing regime in the Northern Territory and Western Australia is untouched by the Howard/Burke deal. In particular, the deal does nothing to ensure that judicial power, whenever exercised, is proportionate to the circumstances of the case before the court. Relevant circumstances may include the race of the person to be dealt with by the court. International standards emphasising proportionality in the administration of justice, racial equality and the special situation of the children are described below.


The defence of mandatory sentencing laws by the Northern Territory and Western Australian Governments:

Administration of Justice

Article 7 of the ICCPR provides that no person shall be subjected to cruel, inhuman or degrading treatment or punishment. Article 37(a) of CROC contains the same prohibition in relation to a child. The Human Rights Committee's General Comment on article 7 of the ICCPR notes that whether or not the article is violated depends on the nature, purpose and severity of the treatment applied. Imprisonment per se does not result in cruel, inhuman or degrading treatment or punishment. However, a sentence of imprisonment which is grossly disproportionate to the gravity of the offence would be a violation of article 7 of the ICCPR. Evidence emerging in the media and in submissions to the Senate Inquiry suggest that as a result of mandatory sentencing laws, children and adults are receiving punishment that is grossly disproportionate to the offences they have committed.

Article 9(1) of the ICCPR provides that no person shall be deprived of his or her liberty unlawfully or arbitrarily. Article 37(b) of CROC contains the same prohibition in relation to all a child. The Human Rights Committee has stated that ‘“arbitrariness” must not be equated with “against the law” but be interpreted more broadly to include such elements as inappropriateness and injustice’.[9] Mandatory sentencing laws do not allow the courts to consider all circumstances of a case and, accordingly, could be considered arbitrary.


The effect of mandatory sentencing is to abolish existing sentencing principles which allow courts to have regard to relevant factors when sentencing an Aboriginal person.

The relevance of Aboriginality is not necessarily to mitigate; rather it is to explain or throw light on the circumstances of an offence. In so doing it may point the way to an appropriate penalty. Aboriginality may in some cases mean little more than the conditions in which the offender lives. In other cases it may be the very reason why the offence was committed.[10]

The Commonwealth, Western Australian and Northern Territory Governments assert that mandatory sentencing laws do not discriminate on the grounds of race. They argue that the same sentencing laws apply to all. This argument fails to appreciate the existence of a prohibition against indirect discrimination. The Preamble and articles 1(1), 2 and 5 of CERD prohibit acts which have a discriminatory purpose or effect. The effect of mandatory sentencing laws is that the court must ignore racial factors that are relevant to sentencing. The effect is to violate the right to equal treatment before the tribunals administering justice (article 5(a) CERD). Equal treatment before courts administering justice in Western Australia and the Northern Territory requires consideration of the different impact of sentencing options on different racial groups. The persistence of mandatory sentencing legislation in Western Australia and Northern Territory ensures the disproportionate imprisonment of Aboriginal people in those jurisdictions.

What Happened to ‘Imprisonment as a Measure of Last Resort’?

Finally, reference should be made to the recommendations in Bringing Them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families[11] and in the Report of the Royal Commission into Aboriginal Deaths in Custody.[12] Both recognise the multitude of underlying reasons which result in Aboriginal people becoming involved in the criminal justice system. Both conclude that, without a policy of imprisonment as a sanction of last resort in relation to Aboriginal offenders, a significant proportion of young Aboriginal people in Australia will face a life of detention. Mandatory sentencing laws are the antithesis of the recommendations of those bodies contained in those reports. An imprisoned generation of Aboriginal people will have no real possibility to attend to the revitalisation and promotion of Aboriginal culture. The devastating extent of imprisonment of Aboriginal people in Australia places an obligation on the Commonwealth, confirmed by standards of international law, to ensure that all courts have the discretion to minimise very real threats to the survival and well-being of indigenous cultures in Australia.[13]

Martin Flynn is a lecturer in the Faculty of Law, University of Western Australia.

[1] I wish to acknowledge the contribution of Sarah Pritchard of the University of New South Wales to this article. In particular, the discussion of international law draws upon our joint submission to the Senate Legal and Constitutional References Committee Inquiry into the Human Rights (Mandatory Sentencing of Juvenile Offenders) Bill 1999 (Cth).

[2] The full text is on the web at <> .

[3] Concluding Observations by the Committee on the Elimination of Racial Discrimination: Australia. 24/03/2000. CERD/C/56/Misc.42/rev.3, para 16.

[4] Hon Darryl Williams AM QC MP, Attorney-General News Release ‘CERD report unbalanced’, 26 March 2000.

[5] The Joint Statement is on the web at <> .

[6] Heather Strang, ‘The Future of Restorative Justice’ in D Chappell and P Wilson, Crime and the criminal justice system in Australia: 2000 and beyond (Butterworths, 2000), p 22. See especially comments on restorative justice and Aboriginal defendants at p 30.

[7] See the many papers and reports on RISE at

[8] Joy Wundersitz, ‘The net-widening effect of aid panels and screening panels in the South Australian juvenile justice’ (1992) 25 Australia and New Zealand Journal of Criminology 115; Harry Blagg ‘A just measure of shame? Aboriginal youth and conferencing in Australia’ (1997) 37 British Journal of Criminology 481.

[9] A (name deleted) v. Australia Communication No. 560/1993, UN Doc. CCPR/C/59/D/560/1993 (30 April 1997).

[10] Justice Toohey, unpublished extract from address delivered to the National Criminal Law Congress on `Aboriginal customary law' (24/6/1988).

[11] The Human Rights and Equal Opportunity Commission, Bringing Them Home: The Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families (1997).

[12] Royal Commission into Aboriginal Deaths in Custody National Report (1991), especially Recommendation 92 discussed in Volume 3, para 22.1ff.

[13] Note that article 27 of the ICCPR requires States to take steps to ensure that indigenous people are able to enjoy their own culture with other members of their community. Article 30 of CROC also recognises the right to the enjoyment of culture of a child.

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