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Legislative Assembly for the ACT: 2000 Week 2 Hansard (1 March) . . Page.. 473 ..
MS TUCKER (continuing):
The WA and NT Governments assert that mandatory sentencing laws are not discriminatory because they apply to all people regardless of racial origin. This argument does not take into account the existence of a prohibition against indirect discrimination.
That is what the effect is about, Mr Kaine, indirect discrimination. The legal opinion continues:
The preamble and articles of 112 and 115 of SERD prohibit acts which have a discriminatory purpose or effect. Equal treatment before courts administering justice in WA and NT requires consideration of the different impact of sentencing options on different racial groups. These laws ensure disproportionate imprisonment of Aboriginal people.
That is why I said "in effect". It is a legal explanation of the type of indirect discrimination which these laws bring about.
Interestingly, during the lunch break I have been provided with more information which shows that, in effect, it is also discriminatory on the grounds of gender. In November 1997 research was conducted which raised concerns about the likely impact of the Northern Territory's mandatory sentencing legislation on the imprisonment rates of women. Unfortunately, this concern has proved to be well founded. The impact of mandatory sentencing on the imprisonment rates of indigenous women has been astounding, with an increase of 232 per cent in the first year of operation of the legislation. Since mandatory sentencing commenced, the number of women sentenced to periods of imprisonment has increased from 50 in 1995-96 to 225 in 1997-98. It is understood this figure has increased in 1998-99.
Traditionally - and it is almost an accepted sentencing principle - women have received more lenient sentences than men. There are often many reasons for this. For example, women defendants often have more mitigating circumstances, such as economic hardship and responsibility for children. Courts have also suggested that it has been due to lower recidivism rates for women and less prevalence of offences committed by women. Therefore, there is less need to impose sentences which have a deterrent aspect.
Mandatory sentencing flies in the face of these sentencing principles. The dramatic and disproportionate increase in the rate of imprisonment of women, particularly indigenous women, raises questions as to whether the effect of the NT's mandatory sentencing legislation is discriminatory on the basis of both gender and race and therefore placing Australia in breach of its international obligations under the United Nations Convention on the Elimination of All Forms of Racial Discrimination, SERD and the United Nations Convention on the Elimination of All Forms of Discrimination Against Women and Children. We know that, if more women are being imprisoned, more children are going to suffer.
The other point Mr Kaine raised was that he was not clear why I said "may be in breach" of the international convention. Once again, because I have researched this subject deeply, I have been told by lawyers that you cannot say it is in breach until it has
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