Mandatory detention laws in Australia (2001)

Mandatory detention laws in Australia

An overview of current laws and proposed reform

  1. Introduction
  2. Current laws
  3. Australia's international human rights obligations
  4. The impact of mandatory detention laws
  5. Criticisms of mandatory detention
  6. Reform of mandatory detention laws

1. Introduction

This paper gives a brief overview of the mandatory detention laws currently operating in the Northern Territory and Western Australia. It examines their operation and gives some insights into how they have impacted on particular groups including young people and Indigenous Australians. It gives a critique of mandatory detention by reference to Australia's international human rights obligations, with particular emphasis on the United Nations Convention on the Rights of the Child. The paper cites a number of recent reports and articles dealing with this subject. They highlight the unjust nature of the laws, their ineffectiveness in reducing crime and the urgent need for their reform. The paper concludes by describing a current proposal aimed at reforming the mandatory detention laws.

2. Current laws

Mandatory detention laws were enacted in Western Australia and the Northern Territory in 1996 and 1997 respectively. Essentially these laws require courts to impose minimum sentences of detention or imprisonment for people convicted of certain offences. They effectively remove judicial discretion in relation to those offences.

The WA laws came into effect on 14 November 1996 through amendments to the Criminal Code (WA). These amendments provide that when convicted for a third time or more for a home burglary, adult and juvenile offenders must be sentenced to a minimum of 12 months imprisonment or detention (the "three strikes and you're in" legislation). The provisions contain some allowance for both adults and juveniles to be released under supervision.

The NT laws came into effect on 8 March 1997 through amendments to the NT Sentencing Act 1995 and the Juvenile Justice Act 1983. The Sentencing Act provisions apply only to persons aged 17 years or over.1

Under Section 78A of the Sentencing Act persons found guilty of certain property offences shall be subject to a mandatory minimum term of imprisonment of 14 days for a first offence. For a second property offence the mandatory minimum sentence is 90 days. For a third property offence the period of imprisonment is one year.

The NT Sentencing Act was recently amended again to provide that courts are not required to impose a sentence of detention under these provisions in certain "exceptional circumstances". However, this applies to adults only and not to juveniles.

Unlike the laws relating to adults which can be invoked at the first conviction, the mandatory detention provisions relating to juveniles in the NT require at least one prior conviction. Under section 53AE of the NT Juvenile Justice Act a person aged 15 or 16 years who has been convicted of a relevant property offence and has had at least one prior conviction for such an offence must be subject to detention for at least 28 days.

The NT criminal justice system treats people as adults once they attain the age of 17 years. This means that 17 year olds will be subject to the adult mandatory detention provisions in the Sentencing Act. As indicated above, those provisions are not limited to repeat offenders and can be invoked on a first conviction. In addition, under the Juvenile Justice Act a person who turns 17 while serving a term in a juvenile detention facility is required to be transferred to an adult prison to serve out the remainder of the sentence.

For the purpose of the NT mandatory detention provisions, relevant property offences include

  • theft (irrespective of the value of the property, and excluding theft when the offender was lawfully on premises)
  • criminal damage
  • unlawful entry to buildings
  • unlawful use of vessel, motor vehicle, caravan or trailer (whether as a passenger or driver)
  • receiving stolen goods (regardless of value)
  • receiving after change of ownership
  • taking reward for the recovery of property obtained by criminal means.
  • assault with intent to steal
  • robbery (armed or unarmed).2

3. Australia's international human rights obligations

Mandatory detention laws raise a number of issues in relation to Australia's international human rights obligations. They include obligations under the International Covenant on Civil and Political Rights (ICCPR), which Australia ratified in 1980. The ICCPR prohibits arbitrary detention (article 9(1)) and provides that sentences must be reviewable by a higher tribunal (article 14(5)).

Mandatory detention raises particular concerns in relation to children, arising from Australia's obligations under the United Nations Convention on the Rights of the Child (CROC). The Convention applies to everyone under the age of 18. Relevant principles include

  • In all actions concerning children, the best interests of the child shall be a primary consideration (Article 3(1)).
  • Detention of children must only be used as a last resort and for the shortest appropriate period (Article 37(b)).
  • Sentences must be reviewable by a higher or appellate court (Article 40(2)(b)(v)).
  • Children who come into conflict with the law must be dealt with in a manner appropriate to their well-being and proportionate both to their circumstances and the offence (Article 40(4)).

Australia ratified the Convention in 1990. This process involved consultation with all State and Territory Governments.

When a country with a federal system of government ratifies a Convention it applies to all levels of government.

Some further guidance on the interpretation of these provisions can be found in Human Rights Brief No.2: Sentencing Juvenile Offenders, a publication of the Human Rights and Equal Opportunity Commission.

4. The impact of mandatory detention laws

In both NT and WA the mandatory detention laws have had a significant impact in terms of numbers incarcerated.

The Australian Bureau of Statistics noted in late 1997 that the NT prisoner population had increased by 42% since mandatory detention was introduced.3

The National Children's and Youth Law Centre examined the impact of the NT laws.

"While there are few reliable estimates of how many people have been goaled under mandatory sentencing laws since they took effect in mid-1997, those Territorians familiar with the effects of the regime say it runs into the hundreds. The majority of those sentenced have been young, Aboriginal men."4

The National Convenor of Defence for Children International commented on the numbers of children incarcerated under mandatory detention laws.

"Over 50 children in WA have served or are serving the 12 month mandatory sentences in the State's one juvenile detention facility.In the NT . Corrective Services Annual Reports indicate that the number of juveniles sentenced to detention for relevant offences increased 53% in the one year to June 1998. The daily average [number] of juvenile detainees has also increased in the same proportion, from 15 to 23. In the two years since commencement, the number of juveniles who have already served or are serving mandatory sentences appears to be at least 66. This represents a dramatic increase on the 1995/96 numbers [of juveniles in detention] (22)."5

The impact of mandatory detention laws is seen not just in the numbers affected but also in the disproportionate impact on particular groups of people, especially Indigenous people. Recent research indicated that Indigenous children constituted 80% of cases under the mandatory detention laws before the Children's Court of WA between February 1997 and May 1998.6

Individual cases also provide valuable insights into the impact of the mandatory detention laws. They illustrate, among other things, the trivial nature of most of the offending behaviour relative to the penalty imposed. The following examples relate to the Northern Territory.

Adults

  • A 24 year old Indigenous mother was sentenced to 14 days in prison for receiving a stolen $2.50 can of beer.

  • A 27 year old white teacher disputed the quality of a hotdog at a Darwin fast food bar and poured water onto the till. She paid in full for the damage she caused. She was sentenced to 14 days in prison.

  • An 18 year old Indigenous man obeyed his father and admitted to police that he stole a $2.50 cigarette lighter. He was sentenced to 14 days in prison.

  • A 29 year old homeless Indigenous man wandered into a backyard when drunk and took a $15 towel. It was his third minor property offence. He was imprisoned for one year.

  • A 20 year old man with no prior convictions was sentenced to 14 days in prison for theft of $9.00 worth of petrol.

  • An 18 year old man was sentenced to 90 days in prison for stealing 90 cents from a motor vehicle.

Children

(Note: These examples include 17 year olds who are treated as adults under the NT criminal justice system and are therefore subject to the adult mandatory detention provisions in the Sentencing Act.)

  • Two 17 year old girls with no previous criminal convictions were both sentenced to 14 days in prison for theft of clothes from other girls who were staying in the same room.

  • A 17 year old girl with no prior convictions was sentenced to 14 days in prison for receiving jewellery stolen by other young people. The jewellery was later recovered.

  • A young offender broke into a toy shop and stole some computer games. He was detained for 14 days even though he confessed to police and his parents paid compensation to the owner of the shop.

  • Two young apprentices were each imprisoned for 14 days for first offences. One of them broke a window and the other broke a light worth $9.60.

  • A 17 year old boy was incarcerated for 28 days in an adult prison for a second conviction of minor theft. If the second offence had been committed on or after his 17th birthday the period of imprisonment would have been 14 days only.

  • A 15 year old girl was detained for 28 days for unlawful possession of a vehicle. In fact she was only a passenger in a stolen vehicle.

  • A 17 year old petrol sniffer from an Aboriginal community was sentenced to seven months plus 120 days for stealing food, alcohol, cigarettes, soft drink and petrol and causing associated minor property damage. The stolen items were consumed with friends. His sentence was based on the mandatory detention formula (120 days) with an additional seven months. He had very little family support and his record was clean until June 1998.

The following "stories" highlight the economic and social disadvantage of many young people affected the Northern Territory mandatory detention laws. Names have been changed to avoid identification.

  • Robert is a 15 year old Aboriginal boy. He was first referred to the Department of Family, Youth and Children's Services when he was 12 due to a lack of parental support. Since the age of 14 Robert has mostly looked after himself. This year he attempted suicide while in police custody, having been arrested for a mandatory detention offence. The offence was one of property damage. He broke a window after hearing about the suicide of a close friend.

  • Andrew is a 17 year old Aboriginal boy who lives in a town camp outside of Alice Springs. He is well known to youth services in Alice Springs, having accessed the court system and income and accommodation support since he was 15. His literacy skills are low and English is his third language. As with many young people in Alice Springs Andrew has been identified as high risk and survived a suicide attempt recently. He was charged with a mandatory detention offence when he was 16 years old.

  • Tony is a 17 year old boy who lives between Alice Springs and several bush communities. Tony has been accessing crisis accommodation with youth services since he was 14 years old. He has a history of multiple substance dependency. Tony has minimal education and his literacy skills are low. English is his third language. He has never had his own income and workers who know him believe the bureaucracy of the system and the excessive paperwork is what deters him from accessing this entitlement. Tony is considered to be an adult in the Northern Territory. He has been charged with a mandatory detention offence (unlawful entry into a shop) and is facing imprisonment in an adult jail.

Criticisms of mandatory detention

The mandatory detention regimes in NT and WA have been the subject of increasing criticism in recent times. Criticisms have included the unjust nature of the laws and in particular their tendency to target vulnerable and disadvantaged groups, the harshness of the penalties given the sometimes minor nature of the offences involved, the economic costs associated with large increases in prison and detention centre numbers and the ineffectiveness of these laws as a deterrent to criminal activity. This section of the paper highlights some sources of these criticisms and summarises the key issues raised.

Report of the Joint Standing Committee on Treaties

In its Report on the United Nations Convention on the Rights of the Child (17th report, August 1998), the Joint Standing Committee on Treaties was highly critical of mandatory detention.

"Mandatory sentencing does not take into account the child's age, the facts of the current offence, the individual circumstances of the person, consideration of an appropriate period of time or the application of judicial discretion. Mandatory detention restricts the court's capacity to ensure that the punishment is proportional to the seriousness of the offence and in relation to the rehabilitative options. These minimum sentences are in contravention of Article 37(b) of the Convention which requires that deprivation of liberty not be arbitrary and is a measure of last resort."(page 346)

Report of National Inquiry into Children and the Legal Process

The human rights violations inherent in mandatory detention laws were highlighted in Seen and heard (1997), the report of the National Inquiry into Children and the Legal Process, undertaken jointly by the Human Rights and Equal Opportunity Commission and the Australian Law Reform Commission.

"The Northern Territory and Western Australia laws breach a number of international human rights standards and common law principles. They violate the principle of proportionality which requires the facts of the offence and the circumstances of the offender to be taken into account, in accordance with article 40 of CROC. They also breach the requirement that in the case of children detention should be a last resort and for the shortest appropriate period, as required by article 37 of CROC. Mandatory detention violates a number of principles in the ICCPR including the prohibition on arbitrary detention in article 9. Both CROC and ICCPR require that sentences should be reviewable by a higher or appellate court. By definition, a mandatory sentence cannot be reviewed."

The report recommended federal legislation to override these laws unless the Parliaments of WA and NT repeal them.

The mandatory detention laws reflect the high degree of misinformation in the community about juvenile crime, a point that was also highlighted in the Seen and heard report. This includes perceptions about a "juvenile crime wave", despite the fact that there has been no significant increase in juvenile crime rates over the past 15 years. These perceptions, fuelled by the media and political rhetoric, have encouraged unjust and misconceived responses by governments to juvenile justice issues. The report cited numerous studies discrediting current perceptions about juvenile offending.

"Contrary to police and media reports and the claims of politicians, there is in Australia no juvenile crime wave and no large increase in serious juvenile crime."7

".current [juvenile justice] policy is flawed by political expediency and 'knee jerk' responses to perceived problems of antisocial and delinquent youth behaviour."8

United Nations Committee on the Rights of the Child

The mandatory detention laws have also been the subject of international criticism. In 1997 the United Nations Committee on the Rights of the Child stated, in relation to Australia

"The situation in relation to juvenile justice and the treatment of children deprived of their liberty is of concern to the Committee.The Committee is particularly concerned by the enactment of new legislation in two States, where a high proportion of Aboriginal people live, which provides for mandatory detention and punitive measures of juveniles, thus resulting in a high representation of Aboriginal juveniles in detention."9

'A Year of Bad Policy: Mandatory sentencing in the Northern Territory', by Louis Schetzer, [now Director, National Children's and Youth Law Centre] Alternative Law Journal, Vol 23, No.3, June 1998, p117

As the title suggests, this article was highly critical of the NT mandatory detention laws.

"The past 18 months have seen the development of a repressive and unreasonable response by the Northern Territory's CLP Government to a perceived increase in criminal activity in the NT. Without providing any statistical evidence to substantiate statements that the NT was in the midst of a 'crime wave', the Government adopted measures which are in clear contravention of international human rights conventions, particularly in their effect on young people."

Mr Schetzer noted the irony of the fact that white collar crimes, such as fraud, obtaining financial advantage by deception and related offences are not subject to mandatory detention.

The article expressed concern about the economic cost to the community of these laws.

"Undoubtedly, increasing incarceration rates will involve significant extra costs. The 1995-96 NT Correctional Services Annual Report stated that it costs $12,432 to accommodate each young person sentenced to a 28 day period of detention.The cost to the public purse for every adult sentenced under mandatory sentencing for the minimum 14 day period is approximately $2,400."

"The community is entitled to question whether they are getting value for their law and order dollar, or whether the money could be better spent elsewhere (such as health, public and emergency education and education)."

Mr Schetzer challenged assumptions about the deterrent value of mandatory detention.

"[T]he prime motivation for the introduction of mandatory sentencing was a perception that property crime rates in the NT were far too high. The assumption that a tougher system of sentencing will act as a deterrent is a political vote winner, but it is contrary to an overwhelming weight of evidence across Australia and from overseas."

According to Mr Schetzer, the NT Correctional Services Department has itself acknowledged the ineffectiveness of incarceration as a deterrent to re-offending. He quoted from a publication of that agency.

"The evidence is clear that the more access juveniles have to the criminal justice system the more frequently and deeper they will penetrate it.it has been shown that punishment of criminal offenders through incarceration in a juvenile detention centre or a prison.has little positive effect. What happens in many cases is that the detainees learn from their fellow inmates how to become more effective in committing crime."10

'Punishment is Blind: Mandatory Sentencing of Children in Western Australia and the Northern Territory' by Helen Bayes, National Convenor, Defence for Children International, University of NSW Law Journal, Vol 22(1) 1999, p286

Ms Bayes highlighted the especially severe impact of these laws on children.

"Both pieces of legislation are more harsh on children than adults. In the NT young offenders receive multiples of 28 days, whereas adults (those 17 and over) receive multiples of 14 days for the same offence. In WA, children must serve half of their sentence (six months) before becoming eligible for release under supervision, whereas adults need serve only one third (four months)."

Ms Bayes was especially concerned that these laws tend to target young people from seriously disadvantaged backgrounds, many of whom engage in petty crime to survive.

"What is not acknowledged by the politicians is that many of these young offenders are children who have suffered years of physical and emotional neglect, have effectively been abandoned by their families and the welfare system, and are trying to live independent of violent and abusive homes. These are children and young people who have learned to live by their wits and whose survival may already have depended on it."

'Mandatory Imprisonment of Property Offenders in the Northern Territory', by George Zdenkowski, Associate Professor of Law, University of New South Wales, University of NSW Law Journal, Vol 22(1), 1999, p302

Like many other observers, Professor Zdenkowski has questioned the deterrent effect of mandatory detention laws. He cited a number of research studies in support of the proposition that mandatory minimum sentences have no real impact on the rate of crime.

The focus on particular property offences was also questioned.

"While certain property crimes are targeted, there is no evidence that they are the source of greater social harm than non-targeted property offences (especially as there is no requirement of seriousness) or indeed, offences involving personal violence."

He expressed concern about inequities resulting from the inflexible nature of these laws.

"[G]iven the inflexible and discriminatory impact of the mandatory minimum prison term on differently circumstanced offenders and offences, it is inevitable that the penalty will be disproportionate in some cases."

'Mandatory sentencing laws and the symbolic politics of law and order', by Russell Hogg, School of Law, Macquarie University, University of NSW Law Journal, Vol 22(1), 1999, p262

This article drew upon the US experience. It noted that California's "three strikes law" is one of the toughest in the US. The Rand Organisation analysed the likely costs and benefits of the Californian laws over a 25 year period. It concluded that by 2002 spending on corrections would increase from 9% of the State budget to 18%. It also concluded that spending in other areas such as higher education, pollution and workplace safety would need to drop by over 40% in the period up to 2002 to fund the three strikes law.

The author foresaw a similar scenario for Australia.

"Prison populations will still rise dramatically and the budgets of other public services will have to be plundered to pay for them."

The author saw clear lessons for Australia from the US experience.

"Politicians in Australia have in recent years increasingly looked to the US for their ideas about criminal justice policy. The lessons we have to learn from that country, however, are largely negative ones: those of a country that has more than tripled its prison population in less than two decades (and currently has a prison population more than five times that of Australia), that despite recent reductions in crime still experiences much higher crime rates (especially violent crime) than most other countries in the world and that appears incapable of relaxing its punitive obsession."

Like many commentators, Mr Hogg was disturbed at the way public discourse on these issues has been driven largely by political rhetoric.

"In Australia.the stridency of the political rhetoric, the vagueness of proposals for sentencing reform and their proximity to elections are the clearest indications of what is really at stake. They usually represent the latest attempt to lift the bar in the law and order high jump. The rationale for such measures is less an instrumental one of reducing crime than it is the symbolic one of tapping and harnessing punitive public opinion behind a new program of draconian penal measures."

'Capturing crims or capturing votes', by Neil Morgan, Crime Research Centre, University of Western Australia, University of NSW Law Journal, Vol 22(1), 1999, p267

This article focused on the WA laws. It spoke about the "phantom" of deterrence, arguing that there is a steadily accumulating body of research confirming that increased penalties do not have a significant deterrent effect. It noted that in the US mandatory penalties for drug offences have had no impact on the drug trade or the price of illegal substances.

Mr Morgan placed the onus of proving the deterrent effect of mandatory detention squarely on its supporters.

"At the very least the onus is on those who argue for a deterrent effect to produce evidence to support their thesis."

The "knee-jerk" way in which these laws were introduced was the subject of criticism.

"[T]he political process can move with unseemly haste: there is a clear pattern of mandatories being introduced at time of political pressure without adequate data to support their introduction..."

The article highlighted the unjust nature of the laws, noting that in WA a very trivial burglary may well attract a much harsher penalty than a relatively serious fraud.

The discriminatory impact of the laws was also highlighted.

"[M]andatories involve the policy choice to select certain types of criminal activity for special attention. These policy choices invariably involve the selection of offences (for example burglary or car stealing) in which minority and lower socio-economic groups are over-represented."

Launch of UNSW Law Journal Forum on Mandatory Sentencing Legislation, by Hon Justice Michael Adams, Justice of the Supreme Court of New South Wales, University of NSW Law Journal, Vol 22(1) 1999, p257

Justice Adams argued that mandatory detention laws undermine the independence of the judiciary.

"One of the crucial aspects of this debate.concerns the independence of the judiciary. In proposing schemes.of mandatory.sentences, the politicians are.calling into question the sentencing patterns and procedures that have been developed by courts in accordance with statutes of long standing. To do so without any attempt at reasoned justification or to analyse the alleged shortcomings of the existing sentencing regimes.seriously undermines public confidence in the courts."

"To remove judicial discretion in such a vital area of the liberties of the subject is tantamount to a vote of no confidence in the judiciary."

"The assertion by the elected politicians of the right, in effect, to impose particular sentences for particular crimes, as a response to immediate political exigencies is a significant interference with traditional and well settled principles of the separation of powers."

'Mandatory Life Sentences in New South Wales', by Nicholas Cowdery QC, Director of Public Prosecutions, NSW, University of NSW Law Journal, Vol 22(1), 1999, p290

This article emphasised the important role of judicial discretion in sentencing, a role that is effectively removed by mandatory detention. The High Court of Australia was cited on this point.

"It is both unusual and in general, in my opinion, undesirable that the court should not have a discretion in the imposition of penalties and sentences, for circumstances alter cases and it is a traditional function of a court of justice to endeavour to make the punishment appropriate to the circumstances as well as to the nature of the crime." [Barwick CJ in Palling v Corfield (1970) 123 CLR 52 at 58]

Mr Cowdery's comments about the meaning of "justice" may well be applied in the context of mandatory detention.

"Justice means justice to both the community and the individual. It has been a hard won commodity and we should think carefully before we allow the government of the day to shackle it."

Reform of mandatory detention laws

The evidence and the arguments presented in this paper confirm the urgent need for reform of the mandatory detention laws. A proposal for Commonwealth legislation to outlaw mandatory detention of juveniles has recently been developed. It is set out in the Human Rights (Mandatory Sentencing of Juvenile Offenders) Bill 1999. The focus of the Bill reflects the high level of community concern about the effect of these laws on children.

The proposal is based on Australia's obligations under the Convention on the Rights of the Child. There is significant cross-party support for the proposal, which reflects the multi-partisan nature of Australia's commitment to the well-being and dignity of its children.

This initiative follows repeated calls from human rights groups and other organisations for those jurisdictions that have enacted mandatory detention laws to repeal them. Despite widespread opposition to these laws from many sections of the community these calls have not been heeded.

The effect of mandatory detention on the human rights of children is clearly a national issue requiring leadership and action by the national Parliament.

For the purpose of the Human Rights (Mandatory Sentencing of Juvenile Offenders) Bill a child is defined as a person under the age of 18 years. The Bill provides that a law of the Commonwealth or of a State or Territory must not require a court to sentence a person to imprisonment or detention for an offence committed when that person was a child.

Endnotes

1Sentencing Act 1995 (NT), s4.
2Sentencing Act 1995 (NT), Schedule 1.
3 Australian Bureau of Statistics, Year Book Australia 1998, 'National Figures on Crime and Punishment'.
4 National Children's and Youth Law Centre, 'Mandatory Sentencing Continues to Disgust', Rights Now, July 1999.
5 Helen Bayes, 'Punishment is Blind: Mandatory Sentencing of Children in Western Australia and the Northern Territory', University of New South Wales Law Journal, Vol 22(1), 1999 p286.
6 C Stokes, 'Three Strikes and You're In: Mandatory Minimum Sentences for Repeat Home Burglars in Western Australia', unpublished honours thesis, University of Western Australia, 1998.
7 M Findlay, S Odgers & S Yeo Australian Criminal Justice Oxford University Press Melbourne 1994, 264, cited in Seen and heard: priority for children in the legal process HREOC/ALRC 1997, p466.
8 K Buttrum 'Juvenile justice: What works and what doesn't!' Paper Juvenile Crime and Juvenile Justice: Towards 200 and Beyond AIC Conference Adelaide 26-27 June 1997, cited in Seen and heard: priority for children in the legal process HREOC/ALRC 1997, p466.
9 Committee on the Rights of the Child, Concluding observations on Australia's first report under the Convention on the Rights of the Child, adopted on 10 October 1997.
10Information on Departmental Juvenile Justice Services in the NT, NT Correctional Services Department, 1991.

Last updated 2 December 2001.