Mandatory detention laws
An overview of current laws
and proposed reform
- Current laws
international human rights obligations
- The impact
of mandatory detention laws
of mandatory detention
- Reform of mandatory
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.
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
- unlawful use of
vessel, motor vehicle, caravan or trailer (whether as a passenger or
- 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
- robbery (armed
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)).
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)).
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.
In both NT and WA
the mandatory detention laws have had a significant impact in terms of
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.
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.
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
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.
- 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
(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
- 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
- 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.
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.
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.
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
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.
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
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
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.
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.
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."
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.
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.
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.
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
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.
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."
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.
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
He expressed concern
about inequities resulting from the inflexible nature of these laws.
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."
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.
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.
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.
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."
or capturing votes', by Neil Morgan, Crime Research Centre, University
of Western Australia, University of NSW Law Journal, Vol 22(1),
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.
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.
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.
impact of the laws was also highlighted.
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.
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."
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."
Sentences in New South Wales', by Nicholas Cowdery QC, Director of Public
Prosecutions, NSW, University of NSW Law Journal, Vol 22(1), 1999,
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
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."
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.
Act 1995 (NT), s4.
2 Sentencing 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.
10 Information on Departmental Juvenile Justice Services
in the NT, NT Correctional Services Department, 1991.
updated 2 December 2001.