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Statement on Mandatory Sentencing

Rights Rights and Freedoms

Statement on Mandatory

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.

updated 1 December 2001

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