BY ROBERT MILNE
& PETER JOHNSTON
DARWIN — After months of stalling and damning criticisms from the United Nations, the so-called mandatory sentencing "compromise" between Prime Minister John Howard and Northern Territory Chief Minister Denis Burke was finally signed on July 26.
The new deal is only a minor adjustment to existing mandatory sentencing laws. Under its terms, young people who steal items worth more than $100 or commit burglary will still be automatically sent to jail. Youths under 18 accused of minor offences, involving less than $100, will be sent to diversionary programs, regardless of whether they admit to the crime or not.
The diversionary programs include victim-offender conferences, substance-abuse treatment, and community programs such as bush camps in remote communities.
The agreement concludes an earlier pact between Burke and Howard, who was desperate to stem mounting national and international pressure to overturn the territory laws.
'Slap in the face'
The pressure began mounting again on July 10 when Louis Schetzer, director of the National Children's and Youth Law Centre, received national news coverage claiming that Howard and Burke had breached their agreement. The lack of any action was a "disgrace and a slap in the face to every taxpayer in the country", Schetzer said.
Burke had stated on July 7 that most of the allocated $20 million would go to the territory's police, to help it cope with an increasing workload. Stung by the resulting furore, he did an abrupt U-turn on July 10, insisting that none of the money would go to ordinary police operations.
Schetzer has criticised the final deal, in which the bulk of the $20 million allocated over four years is still to be diverted to the police force, describing it as "fraud".
"This funding was for the specified purpose of the establishment of an accredited, recognised indigenous interpreting service which Aboriginal Legal Services could access, and for the funding of more community-based diversionary programs for young offenders", he said.
It remains to be seen how much, if any, of the $20 million will be accessible by Aboriginal Legal Aid services. Earlier in July, the NT government announced that funds from a $1 million allocation to the Northern Territory's newly established Aboriginal Interpreter Service will not be available to legal services defending Aborigines.
Furthering the pressure on the Howard government to review mandatory sentencing are recent claims that people with intellectual disabilities are being adversely affected. John Lownes, a magistrate who sentenced an intellectually impaired man to 90 days jail in June, has vented his frustration at the loss of discretion in his decision. "This court's hands are tied, of course, by mandatory sentencing", he said.
Lownes said that while it was clear the man had an intellectual disability, he could not give him a suspended sentence to keep him out of jail. The lack of services for people with intellectual disabilities or mental illnesses in remote Aboriginal communities often meant such people ended up in the justice system.
The North Australian Aboriginal Legal Aid Service on July 24 said that people with intellectual disabilities and mental illnesses were adversely affected by mandatory sentencing laws. The service's legal policy manager, John Sheldon, said many people with intellectual disabilities were behind bars because they did not understand how the laws operated.
"The absence of judicial discretion under the laws meant judges could not take people's conditions into consideration for sentencing", he said.
Hostile reaction
The political reaction to the Howard-Burke deal was almost universally hostile.
Greens Senator Bob Brown pointed out that the 15-year-old boy who hanged himself in Darwin's Don Dale Juvenile Correction Centre in February, whose death sparked the national outcry against the laws, would still have been imprisoned under the terms of the Howard-Burke deal.
"Mr Howard is opening Australia to serious world condemnation, in the Olympic year, as more people in the NT and WA will be jailed without the discretion of the courts", Brown said.
Brown has announced that he is drawing up legislation to overturn the laws as they apply to all property offences in both the NT and Western Australia. The bill will be presented to the Senate in August.
Democrats Senator Brian Greig said his party would reintroduce the bill defeated in the House of Representatives earlier this year to overturn the laws as they apply to juveniles.
The federal Labor opposition has also condemned the deal, shadow attorney-general Robert McClelland describing it as "an attempt to keep the stories about juveniles being jailed for stealing biscuits off the front pages"
The Labor Party is set to debate mandatory sentencing at its conference, beginning on July 31, and McClelland will seek a commitment that the laws as they apply to juveniles and adults will be overturned by the next Labor government.
UN criticism
Neither is the deal likely that the deal will assuage international criticism of the laws.
Mandatory sentencing has been at the centre of criticism by the United Nations Human Rights Committee over Australia's treatment of its indigenous people.
On July 28, the committee urged the government to review the laws, saying the laws led to disproportionately severe sentences for the crimes committed and that they were discriminatory against Aborigines. The committee was also critical of the government's unwillingness to address the issue of the stolen generations.
The UN committee, however, held back from making a ruling that the laws breached the International Covenant on Civil and Political Rights, to which Australia is a signatory, on the grounds that a specific complaint from an individual had to be lodged with them.
That loophole doesn't look like it will save the federal government for long, however — British QC Cherie Booth, the wife of PM Tony Blair, has lodged just such a complaint.
The federal government is likely to dismiss the latest adverse UN finding, just as it has previous UN findings on mandatory sentencing, the stolen generations and the Jabiluka uranium mine.
At the time the UN committee's hearings on the matter began in early July, the attorney-general, Daryl Williams, and the foreign minister, Alexander Downer, both hit out at what they described as political points-scoring by Aboriginal activists and warned that they would not allow Australia "to be run by people in UN committees meeting in Geneva".
When the spotlight of the world's news media is focussed on Australia during the Olympics, international criticism of government racism is bound to intensify. The spotlight will present an important opportunity for activists all over Australia to show their solidarity with Australia's indigenous people and to increase the pressure on the federal government to overturn all mandatory sentencing laws.