Senator McGAURAN (5:52 PM) —I also rise to enter the debate on the Human Rights (Mandatory Sentencing of Juvenile Offenders) Bill 1999 and the Northern Territory and Western Australian mandatory sentencing laws as they stand now. It is worthy of note that the mandatory laws apply to a very narrow base of property offences, like home burglary, and do not apply to all areas of the law. Therefore, the overriding principle of discretionary sentencing still holds. As has been argued by the state and territory leaders, the laws are a reflection of their communities' exasperation towards the growing number of break-ins, petty thefts and repeat offences, along with the view that the judges were not administering punishments to fit the crimes. The old penalties were neither a punishment nor a deterrent, and the public felt enough was enough. So it was on this basis that the Western Australian and Northern Territory parliaments believed their mandatory sentencing laws for property crimes reflected public opinion. Moreover, the law officers of the Territory and Western Australia have judged that the mandatory sentencing laws for their particular jurisdictions will work to stem crime.

I will turn to look at the laws. In the Northern Territory, under 1997 amendments to the Sentencing Act 1995 (NT), an adult first-time offender convicted of a designated property offence must receive a minimum term of imprisonment of 14 days, offenders convicted of their second offence must receive a minimum term of 90 days and offenders convicted of their third offence receive a term of one year. The same amendments also impose mandatory minimum terms of imprisonment on juveniles—that is, 15- and 16-year-olds—of 28 days for juvenile repeat offenders on the third conviction with escalating penalties for subsequent offences. In Western Australia, under the 1996 amendments to the Criminal Code, an adult offender convicted for the third time or more for a home burglary must receive a 12-month minimum term of imprisonment or detention.

While success or otherwise of these laws in stemming the crime rate would need to be measured over the long term, the Australian Institute of Criminology in the recent Trend and Issues Paper No. 138 stated that the laws have been successful in both the Northern Territory and Western Australia. That paper stated:

In April 1998 the Chief Minister released police figures on the number of reported offences over several years up to January 1998 and which covered nine months since the commencement of mandatory sentencing in March 1997. For the period January 1997 to January 1998, the figures showed a reduction in the major offence groups covered by mandatory sentencing, as well as a reduction in all reported criminal offences. In relation to all property offences covered by mandatory sentencing laws, there were 14.4 per cent fewer reported offences in January 1998 than in January 1997.

I am further informed that the Northern Territory legislation has very much been shaped around the United States experience, where such states as Massachusetts, Michigan, Florida, Pennsylvania and New York all have mandatory sentencing laws for property. In New York the laws have been a success in as much as success can be measured by the crime rate figures. They have been dubbed the zero tolerance laws. As the Senate would be aware, New York was notorious for its muggings and vandalism prior to these tough laws being introduced by the current Mayor, Giuliani. Today, it is recognised that New York is a much safer city, having introduced its zero tolerance laws.

The subways test proves the success of the laws. The notorious New York subways were the epicentre of crime at any hour of the day. Since the introduction of zero tolerance laws, it is recognised by even the most liberal that the laws have worked to make the subways safe. As one New Yorker told me, you can use the subways at 3 a.m. and feel safe. But, as any New Yorker will tell you, this has come at a price: the perceived abrogation of certain civil liberties. The core issue of the debate in Australia today is the balance between tough laws and the protection of civil liberties. When making laws, there is always that balance between civil liberties and law and order to consider.

It is true to say specifically that mandatory sentencing of juveniles is the most contentious issue, and many in this debate have sought to sensationalise single cases in an attempt to make the exception the rule. It is worth reminding the chamber that mandatory sentencing for juveniles, as outlined in the Northern Territory act, is a `three strikes and you're in' policy, not a `first strike and you're in', as many speakers would have us believe. There is scope for discretion before the third strike.

The facts are that, in the Northern Territory, when a juvenile—that is a 15- or 16-year-old—appears before a court for the first time and is found guilty of a property offence, the court is not required to send the offender to a detention centre. In fact, the court has a range of sentences available, which include sending the juvenile away without recording a penalty, requiring the juvenile to behave themselves, placing the juvenile on a bond, making the juvenile pay a fine or making them perform community work. Further, if a juvenile appears before a court for a second time and is found guilty of a property offence, the court may require the juvenile to participate in a program as an alternative to spending time in detention. The programs currently available include programs that are aimed at boosting the self-esteem of young offenders; providing them with training, education, employment and lifestyles; and, more recently, providing joint offender-victim workshops and counselling as well as the community service parts of the Duke of Edinburgh Award.

People are not incarcerated in the Northern Territory for a single breach of the law. It is, as has been described, a `third strike and you're in' system. It is worthy of note that the Northern Territory and Western Australian governments have been prompted to introduce these tough laws due to the exceptionally high rate of break and enters in their jurisdiction. They have introduced these tough laws on behalf of the victims. Anyone who has had their home ransacked or robbed feels aggrieved and violated. They feel that the privacy of their home has been invaded and often demand tough justice from their public representatives. Throughout this debate we therefore should not lose sight of the victims' rights. Nevertheless, it is not hard to understand those that support judicial discretion as opposed to mandatory sentencing. The argument goes that each crime and each offender is different and should be judged on the merits of the case. Therefore, the bill before the Senate requests that the government overturn the Western Australian and Territory mandatory sentencing laws.

In regard to Western Australia's state law, the federal government has no constitutional power to overturn other than to use its external powers—that is, to rely upon an international treaty to override a state law, such as Australia's obligations under the International Covenant on Civil and Political Rights. I refer the Senate to the recently tabled Legal and Constitutional References Committee report on mandatory sentencing for a full discussion on this matter of external powers. While the legal opinions may vary greatly, as they always do in trying to make judgments on international agreements, there is no direct link between the Western Australian mandatory sentencing laws and the International Covenant on Civil and Political Rights. If there were a direct and obvious transgression, many other countries before Australia would have to adjust their laws and many other states before Western Australia would have to adjust their laws—many other countries being no less than the United States but also countries in the Middle East, South America and Africa.

Traditionally, the government has not directly interfered with the rights of states with regard to law and order, nor do we seek to. Where we disagree, we will certainly express our views and encourage change—and that is what we have done in this case, given that the Attorney-General has written to the Premier of Western Australia seeking a review of the laws. The matter concerning the Northern Territory is different, as the Commonwealth has the authority to change any part of the NT's laws. The Commonwealth power has been enhanced, particularly given the Northern Territory's rejection of statehood last year. Nevertheless, the government chooses not to directly intervene for similar reasons to those relating to Western Australia; that is, we wish to maintain the traditional responsibility of the territory to deal with matters of law and order and, where we disagree, to consult with the territory concerned in order to encourage change.

I particularly refer to the Northern Territory, given that this parliament does have a direct responsibility over the laws of the Northern Territory more so than Western Australia. I do believe that the Northern Territory government, in particular the Chief Minister, does have an obligation to take notice of the obvious national concern with its law that is going on at the moment and to keep its laws under review, particularly to make amendments where it believes that amendments should be made. The Northern Territory has that obligation and it should not just see this as a turf war, a fight against Canberra, and, therefore, stubbornly make no changes where changes should be made. It has an obligation to see that the principles of law are upheld and that there should not be total abolition of discretionary law, that there should be an element of rehabilitation and, of course, that the separation of powers should be maintained.

I was in the chamber when Senator Harradine made the point that he believed the mandatory sentencing laws in the Northern Territory were a violation of the separation of powers between the parliament and the judiciary. Of course, that would be very serious if it were true. It is, in fact, a serious charge, but it would be serious if it were true. The truth is that the parliament has long set the sentences and the penalties for the judiciary. It should also be remembered that these mandatory sentencing laws are not all pervading and that there is great room for discretion.

If the argument is that the parliament of the Northern Territory and, for that matter, that of Western Australia have influenced the judgments of the court, that is a violation of the separation of powers. But that is not the case, and no-one is suggesting it is. So, on those grounds, the government rejects the bill before the house.