Written in 2000, published in Parity.
Following the recent death of a young Groote Eylandt man serving a 28 day mandatory sentence in a Darwin detention centre, a number of eminent jurists have denounced mandatory sentencing on the grounds that it does not allow judges and magistrates to exercise discretion. These jurists considered that the appropriate role for the court was to take account of the competing rights of all people affected by the offending behaviour. Kim Beazley, the leader of the Federal Opposition approached Kofi Annan, Secretary General of the United Nations (UN), about his concerns over Mandatory sentencing. Kofi Annan had said on the 13/3/2000:
The UN expresses concern about the unjustified and disproportionately high percentage of Aboriginal children in the juvenile justice system. It also expresses concern about the enactment of the legislation in two jurisdictions where a high percentage of indigenous people live” (ABC On Line).
The current mandatory sentencing legislation in the Northern Territory (NT) has been justified by Chief Minister Burke on two grounds:
This Chief Minister on 12/3/2000 declared a 7% loss in electoral support in a by-election in the Country Liberal Party’s (CLP) safest seat signalled Territorians’ wholesale “support for mandatory sentencing”. Even in the highly doubtful event of this Chief Minister being capable of interpreting from a by-election result the degree of popular support in the NT for mandatory sentencing, this would tell us little about the quality of justice in the NT mandatory sentencing regime.
Before it would be possible to know what support for mandatory sentencing meant it would be necessary to know on what basis such support was generated. For instance, if the support was generated as a result of a detailed understanding of indigenous issues and their relationship with the criminal justice system, plus a full appreciation of the system of law in Australia as it is affected by the principles underlying relevant international law one would give such support a more detailed scrutiny than one would if the support for mandatory sentencing arose out of an unthinking acceptance of a law and order campaign run by the CLP, coupled with anti-indigenous prejudice and an ignorance of the law.
It would be possible to conceive of a society in which both human rights and property rights were held in high regard. However, in any society which had regard to human rights, those rights which protected the life and liberty of humans would take precedence over property rights. It seems, from the Chief Minister’s comments, that in the Northern Territory property rights are accorded pre-eminence. This was exemplified in the perfunctory manner by which Burke and his Ministers have dismissed the death of the Young Groote Eylandt man. They have been content to deflect attention from mandatory sentencing by talking about copycat suicides and the detention centre, where he died, as if it were a holiday home. They have even suggested that this young man would have been jailed for this petty offence whether or not mandatory sentencing applied.
The first issue in this mandatory sentencing debate is the primacy given to property over human life (particularly indigenous human life). British conservative ideology has seen private property as a central feature at least since the late 18th Century. In the Australian context “property” has since the invasion been interpreted in various ways depending on who “owned” the property in question.
For most of the last 212 years since the invasion, if white people “owned” the land or other property then their right to enjoy their ownership was reinforced by the State. If the land had not been alienated and was not wanted by any white interests then indigenous people were allowed to live on the land but the State seldom regarded indigenous people as the “owners”. As soon as white interests found a use for the land the State either aided and abetted or turned a blind eye to the subsequent indigenous dispossession.
The second issue in mandatory sentencing is the rights of all parties in the Northern Territory to a system of law which is mindful of the international rights which Australia (by signing and ratifying a number of international instruments) has recognised.
In the wake of the 1967 referendum, the High Court’s Mabo decision, the release of the Human rights and Equal Opportunity Commission’s reports on Aboriginal deaths in custody and the stolen generations, a decade of the reconciliation process, a plethora of scholarly books on indigenous issues, and a concerted effort by non-racist Australians to right the wrong of the past, optimists might have hoped that most Australians would have been prepared to accept that indigenous Australians were Australian citizens and as such were entitled to be accorded human rights as defined by the international treaties, covenants and conventions which Australia as a nation has signed and ratified.
Several world bodies have recognised that First Peoples have specific limited rights not available to other citizens. The comments emanating from Country Liberal Party members of the Legislative Assembly, and the Northern Territory Government web site when coupled with the Chief Minister’s (later retracted) assertion that the justice system was “corrupt” because it ignored the rights of the victim, reveal a colonialist / frontier perspective. The thrust of this NT Government’s response, to mandatory sentencing and to the request they have received from all over Australia for respect to be shown for indigenous people’s rights, demonstrates a preparedness to perpetuate the abuse of indigenous people in the tradition of the last two centuries.
It seems that the NT debate in relation to indigenous citizens generally and mandatory sentencing in particular fails to recognise that several international bodies acknowledge that the First Peoples confront different difficulties to other citizens. The United Nation Committee on the Elimination of Racism and the International Labour Organisation with its conventions on tribal peoples are but two examples. Such bodies recognise that treating unequals equally is as unfair as treating equals unequally.
In Australia the pastoral, and mining lobbies when they approach indigenous issues refer to the rights (recognised by these international bodies) as ‘special rights‘. Pauline Hanson, John Howard, Richard Court and Dennis Burke reiterate such lobbyists’ interpretation of indigenous people’s specific rights, they too denounce indigenous people’s attempts to assert their entitlements under international law as a claim to ‘special rights’. The claim to special rights is meant to imply privilege.
Dominant conservative groups throughout the world, from anti-gay rights campaigners in the United States (see the documentary Ballot No. 9) to the One Nation Party here demand the rights accorded to less powerful minorities be exactly those rights which are accorded to the majority. These conservative groups fail to acknowledge that the international bodies are simply recognising that the First Peoples confront massive difficulties in asserting their rights in the mainstream. In order to rectify this unequal situation these international bodies accord them limited rights not available to the general populations in order to ensure that the First Peoples are accorded equivalent rights to other nationals.
Clearly the criminal justice generally, and the mandatory sentencing regime in particular, disproportionably impact upon indigenous people in the Northern Territory and Western Australia. In part this is because the invaders have via their imposed system of “justice” removed indigenous people’s land, children and anything else for which the invaders had a use. When indigenous people fail to obey the imposed law they are criminalised. Indigenous people in this country are 15-18 times more likely to be in jail than no-indigenous people.
If the white “justice” system were providing equal “justice” to indigenous and non-indigenous Australians then the indigenous population would be no more likely to be imprisoned than other Australians. Clearly this is not the case.
The failure of the Northern Territory and Western Australian Governments to design a criminal justice system which remotely approaches one in which being an indigenous or a non indigenous person would not affect how one is treated means these governments can’t any longer be left entirely alone to design their own system of imprisonment. If we are to have any claim to being a fair society, then it is imperative that we force these recalcitrant vestiges of a bygone era to join the rest of the nation in honouring the commitment we as a nation have made. As a nation we must insist that these governments incorporate those specific and limited international human rights which are embedded in the treaties covenants and conventions which Australia has signed and ratified.
The Premier of Western Australia and the Chief Minister of the Northern Territory will no doubt claim that if the Federal Parliament overrides these discriminatory State and Territory laws that this is an interference with “state’s rights”. This claim to states’ special rights is a nonsense. Before a federation like Australia signs and ratifies an international agreement each state and territory has to acquiesce. So if the Commonwealth Government does intervene to overturn mandatory sentencing it is only acting to force the state or territory to live up to a commitment to which it has already agreed.
Copyright © 2020 John Tomlinson