Statement on Mandatory Sentencing
Chris Sidoti, Human Rights Commissioner, HREOC Press Conference, 17 February 2000
This is a rare event for the Human Rights Commission - a media conference convened by the President with other Commissioners. I can recall it occurring only once before in the Commission's history. The fact that we are doing this today reflects the seriousness of the issue we are discussing.
The President and the Aboriginal and Torres Strait Islander Social Justice Commissioner have stated clearly the Commission's concerns with mandatory sentencing. I want to make only two points.
First, the key argument for mandatory detention for juvenile offenders - and others as well - is responding to community demands for protection from the kinds of offending covered. The community is entitled to protection. International human rights law recognises that and protects personal security for everyone.
But trampling the rights of offenders is not the best way of achieving community safety. International human rights law recognises that, too, and stipulates that sentencing should aim to reintegrate the offender into the community as a law-abiding and responsible citizen. This is the way that protecting the rights of offenders contributes to community rights. The Convention on the Rights of the Child explicitly says that sentencing for juvenile offenders should 'reinforce the child's respect for the human rights ... of others' taking into account 'the desirability of promoting the child's reintegration' (article 40.1). There is no conflict between the rights of the community and the rights of young offenders.
Second, to say, as some have, that mandatory detention doesn't violate children's rights flies in the fact of the explicit language of the Convention on the Rights of the Child. It's not a difficult interpretative exercise to realise that if a sentencing magistrate or judge has no discretion about the sentence she or he is unable to consider the 'individual circumstances of the offence and the offender' to deliver a 'proportionate sentence', to consider a 'range of sentencing options' and to impose a sentence of detention only as a 'last resort' and for 'the shortest appropriate period of time'.
Our Commission has sought for many years to persuade the governments of the NT and WA to repeal these objectionable laws. The time for waiting for them to act is over. The federal parliament must exercise its ultimate responsibility as the guardian of the nation's human right promises and enact a national standard, applying to all jurisdictions, to prohibit mandatory sentencing of children.
Last updated 1 December 2001
