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Wednesday, 15 March 2000
Page: 12808


Senator HARRADINE (12:05 PM) —Are we in a dream world or aren't we? Are we living in the real life of politics and the understanding of what isgoing on in this place? Mr Temporary Chairman, you know as well as I do that this legislation will go through here, will go to the House of Representatives and, as it is, will not get through. It does not have a show of getting through. Even if it did get through, there is no doubt that there would be an appeal from the Western Australian government challenging this legislation as it relies on the external affairs powers. Senator Brown suggested that they would not question the use of the external affairs powers. Their actual submission certainly questioned it. That would be the first thing that they would do. But, let us face facts: this legislation is not going to get through the parliament as it is.


Senator Bolkus —Do you reckon yours will?


Senator HARRADINE —Senator Nick Bolkus asks whether I think mine will. The fact of the matter is—and I only heard this a mere hour ago—that the member for Hughes, Danna Vale, as I understand it, is proposing a private member's bill which relies on the territories power. I am not sure whether she is going to include other mandatory sentencing so far as it applies to adults. I hope she does.


Senator Brown —She is not.


Senator HARRADINE —Isn't she?


Senator Brown —No.


Senator HARRADINE —Well, when it comes here we can amend it, can't we? That is a very interesting point that she is not. I do not know whether or not she is, but I think we have to look at what is happening in the Northern Territory and understand that it is all very well to say that my amendment is not covering Western Australia. If the bill is not going to get through, nothing is going to cover Western Australia. What I was proposing was that on the next occasion there is mandatory sentencing for property offences in Western Australia, leave ought to be sought to appeal to the High Court on the grounds that the state courts in Western Australia, under chapter 2, exercise federal jurisdiction. As such, the public confidence in the integrity of the states courts which do exercise such power must be protected and it is the responsibility of the High Court to ensure that that is done.

I can see what is going to happen. My amendment is going to go down the drain. I feel strongly about this matter. I had hoped that this would have been able to be accepted by this chamber and then go to the House of Representatives to see whether or not people would be able to vote for this. Certainly nobody can deny that, if my amendment is carried, it has far more chance of being adopted by the parliament, in general, than the current bill.

I understand what has been said around the chamber about juveniles and the importance and priority that should be given to juveniles. Of course, my amendment covers the situation so far as the Northern Territory is concerned. But I have had to face reality, and reality indicates quite clearly to me that the legislation as it is at present, unless it is so amended, has absolutely no chance of getting through the parliament as a whole. There is a chance, I believe—I do not know how big the chance is—that if my amendment were carried it could meet with some approval in the House of Representatives by those who are concerned about mandatory sentencing and also by those who are concerned about the underlying scheme of things when it comes to justice.

There are a lot of people who are very, very concerned about the question of separation of powers. Is mandatory sentencing in respect of property offences regarded as an inappropriate intervention in the proper duties of the judiciary? I believe it is, and there is a great deal of concern about that matter. That concern is shared by a number of government colleagues—in fact, I heard one member of the House of Representatives talk on this in the chamber. It was he who was referring to the principle that justice demands that sentencing decisions fit the crime and that it is impossible for members of parliament to determine that there should be mandatory sentencing and determine that in a just way when it comes to individual cases. Of course, members of parliament are not in a position to know all the facts which should surround proper and fair sentencing procedures. I am afraid I face defeat, so I will sit down and allow the matters to go forward.