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Wednesday, 15 March 2000
Page: 12797

Senator QUIRKE (10:53 AM) —There are some things in this world that are very difficult to defend. Last week Alan Bond walked out of jail after serving 3½ years, or whatever it was, for defrauding a group of old pensioners, or whoever they were, who invested in Bell Resources. I imagine that a fair amount of it was money from the large institutions, but a lot of it was also money from a number of individuals who lost a very large part of their private savings.

Senator Chris Evans —My dad.

Senator QUIRKE —Senator Evans' father was one of the people who was ripped off by Alan Bond.

Senator Kemp —I thought Bond was a Labor mate.

Senator QUIRKE —It is good to see that the minister is awake. We were worried about him snoring before. He was asleep over there, but we know he is awake and that is good. It is very difficult to justify a kid being put in jail for stealing $23 worth of cordial and biscuits for something of the order of a matter of months—or in fact, if it is a third offence, for a year—when Alan Bond has diddled Senator Evans' father and everyone else associated with Bell Resources out of $1 billion. It is a pretty hard ask to get up on any stump and defend that.

I can understand the desire for mandatory sentencing in a number of areas because the problem is that in many instances the magistrates and the judges impose penalties on all sorts of offenders—both juveniles and non-juveniles—which do not appear to even remotely approach the crime. In the eyes of the public in all of the states there appears to be a mismatch between what the judiciary hands down in terms of sentences, and in many instances—not all—the punishment just does not appear to fit the crime. However, it would appear that mandatory sentencing, particularly in the Northern Territory, is a problem rather than a cure. Indeed, the separation of powers makes it quite explicit and clear that the role of parliament in setting laws and the role in the executive in parliament of putting forward the various bits of legislation which carry the penalties, is the correct role of the elected representatives of the people. Then it should be up to the judiciary to take each case on its own merits.

It is going to be impossible for Mr Burke and all those in the Northern Territory to justify one of the more recent cases that has just come to light of a woman with five children who is estranged from her husband and pregnant with her sixth child. She was locked out of what was, as I understand it, originally the matrimonial home. The kids went into the home where they in fact reside with their father and took some food because they were hungry. I understand that the care order was with the father, so he had the responsibility of feeding them. Then the woman took a pram, which I presume was hers originally, although that may now no longer be so. Why did she take the pram? Did she take it down to the local Cash Converters to get a few quid? The answer is, no. She took it because she had a 19-month-old baby who was asleep. I have had four of them. They do have a habit of going to sleep and best place for them is either in their own bed, a pram or whatever. When that case comes to court and the judge has no choice but to slot this woman for a custodial sentence in this instance, it is going to be an impossible act for Mr Burke and his friends to defend.

I do not think there is any doubt that, with all the best of intentions to protect the rest of the community, we find governments embracing the idea of mandatory sentencing. The problem is that it actually takes away the escape valve from the judges and travesties of justice will definitely be committed. That flexibility must be with the judiciary. We get frustrated and I remember a couple of cases in South Australia where I thought the wrong decision was made in terms of sentencing of individuals. I remember one case in particular where a man robbed a bank and, indeed, the judge let him go because he had lost a lot of money on the stock market the year before. I do not know whether the judge had some sympathy with the bloke because he may have lost some on the stock market as well, but at the end of a day I thought that sent a totally inappropriate message. I was somewhat frustrated by what the judge had done and I aired those views in parliament at the time, and so did other people in the community.

But at the end of the day I have to accept the fact that I am not there listening to the case, I am not listening to the circumstances, and there are mechanisms for dealing with a whole range of these matters: to take them to further appeal, to appeal the sentences under certain conditions—unless they are before a jury, as I understand. The problem with the mandatory sentence is that you are going to catch up in the net a whole range of people you would not want to see put in prison. Senator Harris told us before that there are not that many juveniles in particular in detention in the Northern Territory. I think he gave the figures of 14 yesterday, an average of 17 and a maximum of 35. From my understanding, Northern Territory has a population of about 10 per cent of that of South Australia. On any one day in South Australia there are two juvenile facilities and, at least in the early 1990s, the average was about 35 incarcerations—and that included those who had been refused bail and were being held over for a committal proceeding. The total facilities in South Australia are about 70. I have not looked at this very closely but, if those figures are correct from Senator Harris, I am somewhat disturbed about it, because the population of the Northern Territory is one-tenth of that of South Australia and yet it would appear to have four or five times the occupancy of juvenile facilities.

I do not know where that goes. That is a matter that somebody out there is probably looking at, but I do think that the point of this bill is to say to magistrates, `You have the responsible discretion to deal with these matters.' They have to have that, because not every case is the same. If the community is unhappy with the conduct and procedure of the judiciary on these matters, then indeed it is a matter to be taken up with the judiciary through forums like this but it should not be an automatic cutting out of the accused person's rights before a court to a proper and fair trial.