The mandatory detention of adults and juveniles in Australia's Northern Territory (and less drastically in the State of Western Australia) has been the subject of local, national and international controversy. My purpose here is to describe the laws, outline their criticisms and define the response of the Northern Territory and Commonwealth governments.
Australia is made up of six states and two self-governing territories. The Northern Territory is distinct from much of the rest of Australia in a number of ways. It has a population of less than 200,000, just over l percent of Australia's population, spread over about one sixth of the country's landmass. It has by far the largest proportion of indigenous citizens (27 percent against the national average of 2 percent). Of those Indigenous People, at least 30 percent do not speak English as a first language, an indication that many indigenous Peoples engage only distantly with the social, economic and legal practices and systems of the rest of the country. The rate of imprisonment of Indigenous People is six times that of non-Indigenous People and Indigenous People make up 75 percent of the people in gaol.
On the 8th of March, 1997, laws enacted to provide for mandatory periods of detention/gaol for a broad range of property offenses came into force. Virtually all offenses against property other than fraud or shoplifting are affected. These include home burglary, car stealing (including "serious" theft by riding in the back of a stolen car), and minor criminal damage where the value of the stolen property is as low as $S1 (US$0.60).
When enacted, the laws provided that adults (17 years of age or older) convicted of a relevant offense are sentenced as follows:
For juveniles (aged 15 or 16), the sentence for first offenders was left to the court's discretion, whereas second and subsequent offenders were sentenced to a minimum of 28 days gaol. Of course, where the court deems a greater punishment is warranted, a greater sentence is imposed.
Following publicity about many (mainly non-indigenous) first offenders of good character being gaoled for 14 days for trivial offenses (e.g., an apprentice breaking a light globe after an argument with his boss), the laws were justified by the government on the basis of claims that, historically, the public was not satisfied with sentences handed Out by courts, particularly in the main "city" of Darwin (population 90,000). Alternatively, the government claimed that the level of property crime was a significant and worsening concern.
Neither proposition was, in fact, true. There were, as always, occasional cases where newspaper articles highlighted apparently lenient sentences. Generally, however, the prosecution did not exercise its right to appeal against sentences. This is probably an indication that having complete information about the facts of the case available to it (more complete than that available to the journalist), the prosecutor viewed the sentence as reasonable. More significantly, the rate of reported property crime in the Northern Territory was lower than in most other Australian jurisdictions and was not increasing at the time the laws were enacted in 1996. Since the introduction of mandatory sentencing, the rate has essentially remained the same.(1)
Predictably, legal and community groups spoke out against the laws. Criticism at the time claimed:
That the laws would have no deterrent effect and would not reduce property crime.
That the laws were not fair as:
(i) they undermined the fundamental principle that like cases be treated alike,
(ii) they would see offenders gaoled for trivial offenses, and
(iii) they could result in sentences way out of proportion to the crime committed.
That the laws would cost the taxpayer considerable sums of money but give the community no benefit.
After three years, these criticisms have been borne out. In one case, for example, a homeless indigenous man stole a towel from an external clothes line. He was sentenced to 12 months gaol. in another case, a 21 year old man is serving 12 months gaol for entering an open shed and stealing A$23 worth of biscuits and cordial on Christmas Day.
The laws were then ameliorated in a number of ways. An "exceptional circumstance" defense was introduced for adult first-time offenders only. Diversionary programs were allowed as an alternative to 28 days detention for juvenile second offenders (but not third). To date, however, few diversionary programs have been established and only 17 offenders were referred to one.
Critics insist that, in their operation, the laws indirectly discriminate against Indigenous People or at least significant groups of Indigenous People.(2)
On several occasions, young indigenous people with petrol sniffing problems have been charged and sentenced to various mandatory terms for stealing or merely receiving a quantity of petrol typically valued at A$1 - $4.
Young men resident on a remote Aboriginal community were charged with unlawful use of a motor vehicle (typically stolen and driven around the community at night). Those who were not present at the theft but were picked up later to joyride were sentenced to 12 months in prison. In one absurd result, the offender who stole and drove the vehicle was sentenced to 8 months gaol (i.e. the mandatory minimum plus some more) while a passenger not present at the time of the theft was sentenced to 12 months. He had only two previous offenses and neither were serious, but the court had no discretion to impose an alternative sentence.
The Commonwealth Response
Under the Commonwealth Constitution, the Parliament may override any law of a territory. Despite calls for it to act, however, the Commonwealth Government has taken the view that because law and order issues are a state and territory responsibility, it should not intervene.
In response, opposition and minor parties sponsored a bill to overturn the laws as they relate to juvenile offenders, which in turn led to an inquiry by a Committee of the Senate. It took evidence in February 2000 and reported on the 14th of March, 2000.
The simmering controversy erupted into a national political drama with the death in custody (in February 2000) of a 15 year-old indigenous boy from a remote community who was serving a period of 28 days detention. The sentence was imposed on him for stealing marker pens and paint from the local community council building. The value of the stolen property was A$90.
The Senate Committee recommended by majority that the bill before the Senate, which would have the effect of overturning the laws for people under 18 only, be passed -- and it duly was.
The government -- which controls the lower house -- was not persuaded, however. Its view was that mandatory sentencing laws were wrong but that the Commonwealth should not intervene. It has effectively refused to accept that pronouncements by UN bodies (that Australia is in breach of its convention obligations [CERD, CROC, arguably ICCPR]) should influence its decision on this and other matters.(3)
In the end, concern within government political parties has led to a face-saving deal between the Prime Minister and the Chief Minister of the Northern Territory. The deal involves regular use of pre-charge diversion of juvenile offenders and Commonwealth funds for diversionary programs and substance abuse programs. Whether the deal will eliminate the incidence of people under 18 being detained due to the mandatory sentencing laws is yet to be seen. The changes leave the laws on the statute books, do not restore the court's discretion to ensure that the punishment fits the crime, and raise a whole new set of problems in relation to police use of their new powers. Most importantly, the more draconian adult laws remain untouched. We will see more and more mainly indigenous offenders gaoled for periods of 12 months. It is only a matter of time before we get to the point where 50 per cent of the males from a particular remote indigenous community are incarcerated or there is another death in custody of a person gaoled for a trivial offense. The only question is which will happen first.
(1). There has been no meaningful change in the rate of repeated offenses. Some are down, but home burglaries are up. The government has admitted that mandatory sentencing has had no deterrent effect.
(2). The law impacts more heavily on offenders resident in remote Aboriginal communities primarily because the clear-up rates there for minor property crime approach 100 per cent (due to the size of the communities and cultural factors) as opposed to the clear-up rate of 15 per cent for home burglaries in Darwin. There has been no noticeable change in crime rates in remote Aboriginal communities.
(3). The UH Human Rights Commission and the committee overseeing the Convention on the Elimination of Racial Discrimination both condemned the laws.
Acknowledgements: Thanks to Danny Brown for research assistance and helpful comments on an earlier draft.
Article copyright Cultural Survival, Inc.