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Wednesday, 22 August 2001
Page: 26370

Senator EGGLESTON (4:29 PM) —Mandatory sentencing legislation raises complex and difficult issues. I think the record shows the Commonwealth government has recognised that states and territories have a difficult job dealing with the impact of crime and the problem of repeat offenders, and acknowledges that these are issues which the states and territories are best placed to address. I think we have to ask ourselves why in Western Australia and the Northern Territory there is mandatory sentencing. Mandatory sentencing in those two jurisdictions was introduced because people were concerned about law and order problems. There was a culture of lawlessness in Perth: there were home break-ins and old people were being beaten quite cruelly. There was a great deal of public concern about what was happening. That is why the Western Australian government introduced very focused mandatory sentencing laws concerning home invasion or home burglary.

In the Northern Territory, there was also great public concern about what appeared to be a culture of lawlessness and an impression—a widespread belief, in fact—that the courts were being too lenient with offenders and that the punishments that were being meted out did not reflect the seriousness of the crimes involved. People were concerned that recidivists seemed to be let off too lightly. We have to understand that background in considering the question of mandatory sentencing.

The agreement between the Commonwealth and the Northern Territory governments for a juvenile pre-court diversion scheme and an Aboriginal interpreter service has reflected the Commonwealth government's commitment to work cooperatively with the states and territories to prevent juveniles entering the criminal justice system. That program has had a fair degree of success. The Commonwealth has worked with the Northern Territory government to ensure that rehabilitation and education programs for young people are effective in preventing repeat offending, by addressing the underlying causes of juvenile crime. Significant progress has been made under the agreement, including the implementation of community based diversionary programs, the establishment of a juvenile diversion unit in the Northern Territory and the training of police in diversion procedures. Victim-offender conferencing has also been established, which has helped—perhaps reduced— the incidence of juvenile detention in the Northern Territory. The establishment of an Aboriginal interpreter service has also been a very important innovation.

The WA laws were introduced to deal with the question of home burglaries, and they are not draconian. Offenders are given ample opportunity to modify their behaviour before they run the risk of being sentenced to detention. Under the three-strike law, the mandatory detention system operating in WA, the question of detention only arises on a third conviction for home burglary. Before that occurs, offenders are always, in all cases, given numerous opportunities to mend their ways. The detention is a way of dealing with problem offenders, and I think that should be understood. The detention occurs in Western Australia in the interests of protecting members of the community and helping the offenders to overcome their problems through counselling and through dealing with issues like drug and alcohol problems. But it is not inevitable that children in Western Australia, even upon conviction for a third offence, will be detained. The alternative is that young people are placed on intensive youth supervision orders, through which they are provided with counselling and help in the community. Detention is only a default alternative.

Although a great deal has been said over the last two years in the parliament of Australia about Australia's mandatory detention regimes, I think it is very instructive to have a look at the rest of the world and compare Australian regimes with those of other countries, particularly with other common law jurisdictions such as the United States and the United Kingdom. On 18 April 2000, Radio National's Law Report dealt with the issue of mandatory sentencing. Susanna Lobez, the presenter, interviewed Professor Freiberg, of the University of Melbourne, about how Australia's regime compared with those in the rest of the world. Professor Freiberg made the point that Australia's regimes are minor and that in the United States, 23 states have mandatory sentencing laws, some of which are quite draconian. He said:

... in California there have been 40,000 convictions under mandatory sentencing laws, and people can get up to 25 years for a third strike for stealing a pizza.

Australia's regime pales in comparison. In the United Kingdom, the mandatory legislation also applies more strictly than it does in Australia. (Time expired)