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Flaws exposed in mandatory sentencing 'deal'



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Flaws Exposed In Mandatory Sentencing 'Deal' Robert McClelland - Shadow Attorney-General

Media Statement - 18 July 2000

The submission of Aboriginal Social Justice Commissioner Dr Bill Jonas to the United Nations Human Rights Committee is based on sound human rights principles, but more importantly, it conforms with common sense, according to the Shadow Attorney-General, Robert McClelland.

"The Howard-Burke deal is flawed because it does nothing to increase judicial discretion in sentencing but places further discretion in the hands of the Northern Territory police," said Mr McClelland.

"Whereas magistrates must act in accordance with a body of statutory and common law which has developed for over 800 years, there are no such constraints or guiding principles for the way in which police officers exercise their discretion.

"Secondly, decisions by magistrates are subject to appeal, but decisions by police officers whether or not to send young offenders to juvenile diversionary programmes - or to an inevitable prison sentence - are not.

"Because human beings inevitably make mistakes, it is common sense to ensure that decisions are subject to appropriate review - particularly where those decisions have potentially serious consequences.

"Without suggesting improper motives on the part of individual police officers, the fact is that bestowing powers on them without appropriate guidelines and systems of review leaves open the possibility of favouritism, discriminatory application and other forms of abuse.

"As Jonas points out in his report:

'There is empirical evidence on problems with the exercise of police discretion in relation to indigenous people in Australia. Indigenous offenders do not receive the benefit of cautioning at the same rate as the general youth population.'

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For these reasons, the Howard-Burke deal is likely to do more harm than good. The only permanent solution is for judicial discretion in sentencing to be restored.

Authorised by Geoff Walsh, 19 National Circuit, Barton ACT 2600.