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Legislative Assembly for the ACT: 2000 Week 2 Hansard (1 March) . . Page.. 463 ..

MR HARGREAVES (continuing):

We need to make a statement in the strongest possible terms to the States and Territories which are enacting laws which we believe will work to the detriment of segments of the community - particularly ones which have a significant, similar problem around the country - that we do not believe they are doing the right thing. If this is the way we have to express that, then so be it.

Mandatory sentencing takes away the fundamental freedom of going before a magistrate, stating your case and having mitigating circumstances taken into account before he or she dispenses justice. I would like to think our magistrates are not only very wise and very learned people but also compassionate people who would understand the difference between a well-heeled person from one of the best suburbs of Canberra and someone from a particularly disadvantaged suburb or township like Cherbourg, for example. Judges ought to be able to use compassion, but these laws take such compassion away from them. The law is above the people.

We have been talking about sovereignty. Sovereignty is meaningless to the people in the outback, but the law is not. We heard an Aboriginal gentleman today say, "By whose law? Not Aboriginal law, your white man's law". They have enough trouble with the law as it is. This law is killing young Aboriginal people, and we cannot stand by and let that happen. I urge every member to think seriously about their support for Ms Tucker's motion and consider what is more important to them - the sovereignty of the States in this particular issue and only this particular issue and the sovereignty of human beings.

MS CARNELL (Chief Minister) (4.22): I note that Ms Tucker's motion concerns what the ACT government submission did not say on mandatory sentencing rather than what it does say. Let me go through what the submission does say. The submission clearly states that the Government does not propose to address the issue of mandatory sentencing of juveniles because there is a significant threshold issue. The submission does address this threshold issue of the exercise of external affairs powers to permit the Commonwealth to legislate in respect of a matter that is traditionally and appropriately the responsibility of States and Territories.

This Government accepts that the Federal Government has the constitutional power to legislate to implement international instruments, such as the United Nations Convention on the Rights of the Child. What is questioned is the propriety of the Federal Government doing so in an area that is otherwise firmly the responsibility of States and Territories. The ACT government submission to the Senate Legal and Constitutional References Committee advised the exercise of caution in legislating in areas of state and territory responsibility.

The Senate Legal and Constitutional References Committee, in its 1995 inquiry into the Commonwealth's power to make and implement treaties, raised this very issue. The committee specifically referred to the United Nations Convention on the Rights of the Child and the concern which Australia's ratification generated both in the wider community and with state and territory governments generally. These concerns were squarely based on the fear that ratification could allow the Commonwealth to legislate in a particularly sensitive area that is very much the traditional province of the States and Territories. This is the very situation that has come to pass.

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