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Wednesday, 15 March 2000
Page: 12809


Senator McKIERNAN (12:13 PM) —Perhaps you will be facing defeat on this particular amendment, but I hope that defeat will be accepted with good grace. Speaking as chair of the committee that conducted the inquiry into the issue of mandatory sentencing, I say to Senator Harradine and to the chamber that the contents of your amendment were something that I exercised my mind over when I was preparing the chair draft report for presentation to the committee for its deliberation to arrive at recommendations to be put to this chamber. It is not that we overlooked the matters you have addressed; we did address them and I addressed them before they went to the committee.

I was in a difficult position, as you would appreciate, coming from Western Australia, where mandatory sentencing applies both to children, persons under 18, and to adults, although the application of the mandatory sentencing laws in Western Australia is much different from in the Northern Territory. That does not make it good law. I quoted in my tabling statement the words of Dr Hughes, the President of the Law Council of Australia, who when he was responding to a question in the committee said that we were `comparing bad with bad' and `trying to prioritise badness'.

The other thing that exercised my mind in regard to Western Australia is the law as it applies; the law is on the statute book. Clearly it was the will of the Western Australian parliament when it passed the law with the support, regrettably, of the Australian Labor Party in the Legislative Assembly and Legislative Council that there be mandatory sentencing for juveniles in that state and that the judiciary have no discretion on how the sentences be handed down. That law still applies, but what has happened is that the judiciary have exercised a discretion. They have exercised a discretion without the approval of the Western Australian parliament but with the acceptance of the government of Western Australia. The government has accepted the practice, but the law remains.

If you get a change in the judiciary and a change in the President of the Children's Court, who is the person who must hand down the sentencing, that new person need not accept the practice that the previous President of the Children's Court of Western Australia has applied. A new president can come in, and we can end up with a regime that will not be as draconian as applies in the Northern Territory, but nonetheless it will be a very hard regime.

Were we to accept your amendment, Senator Harradine, you are asking me and the rest of my colleagues in this place, but me in particular—and I can only speak for myself—as a senator for Western Australia, to essentially approve bad law as it applies in my state. That was something that exercised my mind in preparing the chair's draft report. At the end of the day, I had to stand on the principle: bad law is bad law. If it requires the use of the external affairs powers in the case of Western Australia to remove that bad law, then that obligation is upon us to do that. It is for those reasons in particular—and there are some more reasons as well, but I will not delay the process in the chamber—that I have to say that we have to act against both regimes, even though the Northern Territory regime is much more draconian than what applies in Western Australia. Nonetheless, it does not make the bad law in Western Australia a good law. We therefore cannot ignore that and we have to pass the bill as it currently stands.