The recent debate of the Crimes and Other Legislation Amendment
(Assault and Intoxication) Act 2014 ('the Act') in New
South Wales Parliament has sparked discussion of the impact
mandatory sentencing has on Australia's indigenous
The Act is intended to 'tackle drug- and alcohol-related
violence' by, according to Premier Barry O'Farrell,
'promot[ing] personal responsibility of offenders'. The Act
introduces an eight year mandatory prison sentence for
"serious assault offences involving alcohol". The
legislation follows the deaths of Thomas Kelly and Daniel Christie,
who were both assaulted in the Kings Cross area by offenders under
the influence of alcohol.
However, the President of the New South Wales Bar Association,
Phillip Boulton SC, has commented that "There's no
evidence at all that mandatory sentencing ever decreases the amount
of crime that's committed and it has the ability to act
unfairly on vulnerable and disadvantaged groups."
In particular, concerns have been raised about the potential
impacts the proposed legislation may have on the State's
indigenous population. Ray Jackson, from the Indigenous Social
Justice Association, has commented that
Our people drink, our people fight,
not all of them, but a minority do...And the coppers are going to
concentrate on those people. They're going to go before the
courts, under mandatory sentencing and be slammed straight into
The current "legal package of reforms" also includes
increases in the quantum of fines for public order offences such as
offensive conduct or language (doubled to $500) and "failing
to move on when intoxicated when asked by a police officer"
(increased from $200 to $1,100). Julia Quilter from the University
of Wollongong's School of Law has raised concerns about the
"flow-on effects" of such changes for Indigenous
Australians, as the inability to pay such fines may result in the
offender "going back into jail."
Furthermore, John McKenzie from the NSW Aboriginal Legal Service
has criticised the originally proposed introduction of mandatory
sentences for "less serious assault charges", including
assault occasioning actual bodily harm, assaulting police and
affray. McKenzie predicted that such mandatory sentences would be
likely to put "an additional 1,000 Aboriginal prisoners [in
gaol] each year".
Australia has been criticised previously in the international
arena for imposing mandatory sentences on offenders. In 1997,
following the introduction of "three strikes"-style
mandatory sentencing legislation focused on property
crime'" in Western Australia and the Northern Territory,
the United Nations Committee on the Rights of the Child raised
the enactment of new legislation in
two states, where a high percentage of Aboriginal people live,
which provide for mandatory detention and punitive measures of
juveniles, thus resulting in a high percentage of Aboriginal
juveniles in detention.
Speaking on the Western Australian and Northern Territory
legislation, Indigenous lawyer Megan Davis said
One of the main arguments in favour
of Mandatory Sentencing is that the laws are not discriminatory but
that they apply equally to everybody. But in fact the laws are in
essence designed to target those property offences that are
committed predominately by individuals who come from a low
And what sector of the low
socio-economic in Northern Territory and Western Australia
predominately commit these offences? Indigenous Australians.
Davis further explained how curbing judicial discretion acutely
affects Aboriginal Australians
Under Mandatory Sentencing laws a
judge does not have the discretion to review all the facts the
circumstances of a crime. The legislature effectively binds the
discretion of the judiciary. And perhaps even worse for young
indigenous Australians with an undeniable lack of trust in the
police, it delivers judicial discretion further down the structure
of the Administration of justice and essentially places greater
power in the hands of law enforcement, the police
When asked to comment on whether the NSW Legislation would
"disproportionately affect Aborigines" Premier Barry
O'Farrell replied "'I don't believe that's the
The legislation came into effect earlier this month.
The Government has since narrowed the range of offences that
will attach mandatory minimums, excluding less serious offences
such as assault occasioning actual bodily harm. Furthermore, it has
been announced that "mandatory minimums would only apply to
offences that happened in public places".
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Companies and persons in possession of "inside information" should be aware of the law governing its use and disclosure.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”