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Legislative Assembly for the ACT: 2000 Week 2 Hansard (1 March) . . Page.. 419 ..
MS TUCKER (continuing):
Last but not least, these laws are manifestly unjust because they prevent the judiciary from determining what punishment fits the crime. They take away the possibility of individual circumstances being taken into account by magistrates and judges and alternative socially just constructive rehabilitation options being pursued.
I address the first point, that these laws are racially discriminatory in effect. A letter to the Prime Minister from 23 legal experts from faculties of law at 11 universities said:
The Western Australian and Northern Territory Governments assert that mandatory sentencing laws are not discriminatory ... [they apply to all people] regardless of racial origin. This argument [does not take into account] the existence of a prohibition against indirect discrimination. The Preamble and Articles 1(1), 2 and 5 of CERD prohibit acts which have a discriminatory purpose or effect ... Equal treatment before courts administering justice in Western Australia and the Northern Territory requires consideration of the different impact of sentencing options on different racial groups ... [These laws ensure] the disproportionate imprisonment of Aboriginal people ...
We know that since the introduction of the laws in Western Australia indigenous people have been detained at 60 times the rate of non-indigenous people and you are six times more likely to be imprisoned if you are Aboriginal in the Northern Territory. The ACT Government's submission ignores this. The ACT Government apparently thinks that rights are more important than racial discrimination.
I turn to the second point, the inconsistency of these laws with recommendations of the Royal Commission into Aboriginal Deaths in Custody. This royal commission was established in 1987 to investigate the deaths of 99 Aboriginal and Torres Strait Islander people who had died in custody. The commission considered the social, cultural and legal factors that contributed to these deaths and subsequently listed 339 recommendations to be implemented by Commonwealth, state and territory governments. Key issues identified by the commission were the social and economic disadvantage of indigenous people as well as the need to empower indigenous people to reclaim control over their lives and communities. Commonwealth, state and territory governments are responsible for reporting, and have agreed to report, on an annual basis on the implementation of the recommendations.
I will now list some recommendations these laws breach. Recommendation 62:
That governments and Aboriginal organizations recognize that the problems affecting Aboriginal juveniles are so widespread and have such potentially disastrous repercussions for the future that there is an urgent need for governments and Aboriginal organizations to negotiate together to devise strategies designed to reduce the rate at which Aboriginal juveniles are involved in the welfare and criminal justice systems and, in particular, to reduce the rate at which
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