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Amendment of the Northern Territory (Self-Government) Act 1978 Bill 2000

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1998-1999-2000

 

The Parliament of the

Commonwealth of Australia

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

Amendment of the Northern Territory (Self-Government) Act 1978 Bill 2000

 

 

 

 

Explanatory Memorandum

 

 

 

 

 

 

 

Circulated by Mr Andren



 

Amendment of the Northern Territory (Self-Government) Act 1978 Bill 2000

 

 

Outline

 

The purpose of this bill is to ensure that the Legislative Assembly of the Northern Territory cannot make a law which would require a court to sentence a person to imprisonment or detention for an offence committed as a child.

 

 

Background

 

At present at least two laws of the Northern Territory have the effect that in certain circumstances courts have no discretion in the sentencing of children convicted of crime.  The Northern Territory’s Juvenile Justice Act and the Sentencing Act have the effect that in certain circumstances a child must, if convicted, be sentenced to a period of detention or imprisonment.  This is known as mandatory sentencing. 

 

Mandatory sentencing removes the discretion of the courts to make decisions as to the most appropriate penalty in every case.  The circumstances of cases vary, the situations of convicted people will vary and the wider interests of society must be considered in each case.  In short, mandatory sentencing requirements are contrary to the principle that “the punishment must fit the crime”.

 

Section 122 of the Commonwealth Constitution gives the Commonwealth Parliament power to make laws for the governance of territories and to override laws made by a territory’s Legislative Assembly.  In 1997 the Commonwealth used this power to override the Northern Territory’s euthanasia laws.  On the third of October 1998, the people of the Northern Territory were given the opportunity to become a state but voted to remain as a territory of the Commonwealth for the time being.

 

As a signatory to the International Convention on the Rights of the Child the Commonwealth has obligations under international law to implement a range of rights for people under the age of 18.

 

Article 3(1) of the Convention requires that the best interests of children be a primary consideration in all actions concerning them, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies.

 

Article 37(b) requires signatories to ensure that detention or imprisonment of children is only used as a measure of last resort and for the shortest period of time.

 

Article 40 recognises the need for children recognised to have infringed the law to be treated in a manner consistent with the promotion of a sense of dignity and worth.  It requires punishments for crimes to be proportionate to the circumstances of each offence and signatories to have in place a range of alternatives to incarceration designed to maximise the chances of offending children assuming a constructive role in their societies. 

 

While it is pointed out that mandatory sentencing conflicts with the requirements of the Convention on the Rights of the Child, as already explained above, the Constitutional basis of the Amendment of the Northern Territory (Self-Government) Act 1978 Bill 2000 is Section 122 of the Constitution, not the external affairs power Section 51(xxix).

 

 



Explanatory notes on the bill

 

 

Clause 1

 

This provides that the short title of the bill is Amendment of the Northern Territory

(Self-Government) Act 1978 Bill 2000.

 

 

Clause 2

 

This provides that the act will commence on the day on which the bill receives Royal Assent.

 

 

Clause 3

 

This provides that the Northern Territory (Self-Government) Act 1978 is amended as set out

in schedule 1 and that other items also have the legal effect outlined.

 

 

Schedule 1         

 

Item 1

 

This item amends the Northern Territory (Self-Government) Act to define a child as a person under 18 years of age.

 

 

Item 2

 

This item amends section 6 of the Northern Territory (Self-Government) Act 1978 .  That section sets out the law making power of the Legislative Assembly of the Northern Territory.

 

Proposed sub-section 6(2) qualifies the law making power of the Assembly by providing that the Legislative Assembly does not have power to make laws which would require a court to sentence a person to imprisonment or detention for an offence committed as a child.

 

 

Item 3

 

This item provides that a law of the Assembly which contravenes (new) subsection 6(2) has no force or effect.  It goes on, however, to provide that actions taken under such laws before the commencement of the new act are not unlawful or invalid on account of the new law.

 



 

Item 4

 

This item requires that a person in prison or detention under a law that is contrary to (new) subsection 6(2) must, within 28 days after the commencement of the new act, be brought before the court that sentenced the person.  The item gives the court full discretion to vary the sentence if it thinks fit, having regard to all the relevant circumstances.