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Wednesday, 15 March 2000
Page: 12804

Senator BROWN (11:45 AM) —I point out to Senator Harradine that I have the greatest sympathy for his amendments. Had they been amendments that built upon the bill before the chamber I would support them. At the outset, in 1998-99, when approaching the matter of mandatory sentencing, we had the great difficulty of whether to take the approach Senator Harradine is now bringing before the chamber or the approach that is embodied in this jointly sponsored bill which aims to end mandatory sentencing for children across Australia. As the committee knows, there are currently laws for that in Western Australia and the Northern Territory. The potential is there for mandatory sentencing of children to be brought in in other states. We wanted to act as a national parliament should to make sure that the mandatory sentencing laws first reached out to protect the most vulnerable—that is, children wherever they might be. We took the approach that we have taken of invoking the International Convention on the Rights of the Child. I will continue to support that approach.

Having said that, like the seven ex-High Court judges, I oppose mandatory sentencing full stop. I would support any future move by Senator Harradine or anybody else to extend the prohibition on mandatory sentencing to adults. Certainly, that would be refashioned, as Senator Harradine indicated at the end of his contribution, to involve property crimes and not go beyond that. The difficulty with Senator Harradine's amendments is that there are very great complexities involved when you move to override mandatory sentencing for adults—aiming to protect, particularly, indigenous 17-, 18- and 19-year-olds—in specifying which crimes you are going to prohibit mandatory sentencing for. We were very well aware of that when we changed the original approach to the one that we now have.

If Senator Harradine's amendments built upon our bill so that it prohibited mandatory sentencing for adults in the Northern Territory, I would support them. The problem is that his amendments remove the component of the bill before the chamber which prohibits mandatory sentencing which ensnares young people in Western Australia. Moreover, it ensnares, albeit a small number compared to the Northern Territory, Aboriginal youngsters at a rate of 60 to one as against non-Aboriginal youngsters in Western Australia. In other words, the racist impact is even worse than that in the Northern Territory.

On the matter of the bill going through both houses of this parliament and then being challenged in the High Court, I refer to an opinion from Martin Flynn, a lecturer at the Law School at the University of Western Australia in Nedlands. He states:

... there is argument that the WA law does not infringe an international treaty then there is the possibility that the High Court will strike down the Bill as being beyond “external affairs” power in section 51(xxix) Constitution. Certainly, the Parliament can do what it likes to the NT as a result of power conferred by s 122 Constitution.

Mr Flynn goes on to state:

(a) As a result of decisions of the High Court in cases such as the Franklin Dam case (1983) and Polyukhovich (1991) we know that the High Court will ask one question in order to determine the validity of the Bill: “Is there material on which Parliament could reasonably have concluded that the Bill was necessary to meet an obligation arising under a treaty or an obligation arising under customary international law or to meet a matter of international concern?”

(b) the answer to (a) is clearly “yes”. The High Court would have no difficulty in seeing that the text of the Bill reasonably meets an obligation arising from Articles 3, 37 and 40 of CROC or, alternatively, meets a matter of international concern—note that the CROC Committee comments expressing concern about mandatory sentencing are relevant to defining what constitutes an international concern. Whether the High Court itself thinks that the WA law infringes a treaty is not a relevant question. What is relevant is whether the Parliament could reasonably come to the view that the Bill was necessary as a result of an international treaty or absolutely international concern.

That, I submit, is beyond reasonable doubt. This bill, if enacted by the parliament, will have the effect of overriding mandatory sentencing, as far as it applies to children in both the Northern Territory and Western Australia. Conversely, those who argue that it would not should have no worries with the bill. I have heard no legal opinion outside the Western Australian and Northern Territory governments which takes that point of view. The preponderant point of view is as expressed by Mr Flynn. I do not support the amendments, but I do support the sentiment in them. I believe that when this bill passes the parliament we have to move on to look at the awesome problem of the incarceration of young people, not children—in particular indigenous people—especially in the Northern Territory.