There are numerous objections to parliament enacting laws requiring judges to impose certain sentences on offenders. In the case of legislation which requires people to be imprisoned for property offences, the following arguments come to the fore:

1. This country’s first white settlers came here because of the practice of sentencing people to transportation from Britain for offences which we now regard as minor. Some of the earliest convicts arrived here as a result of being convicted for stealing food or lace handkerchiefs. When we read about this in school history books we think it quaint at best, barbaric at worst. The question about whether we have made any advance in our thinking about criminology and rehabilitation is pertinent.

2. It is a fundamental of our system of justice that sentencing must take into account the circumstances of the offence and the circumstances of the offender. We give the responsibility of deciding upon a sentence to a person experienced in the law (the judge), because that person is aware of all the circumstances of the case at hand. If parliament were to extend the concept to mandatory sentences for each and every offence, we would not need judges (a jury verdict of guilty would trigger the legislated sentence).

3. As a nation, we spent $35 million in the late 1980s and early 1990s conducting a royal commission into Aboriginal deaths in custody. The lessons learnt during that inquiry apply to all people, not only the Aboriginal community. Recommendation 92 urged all State and Territory governments to legislate to make imprisonment the sentence of last resort. The mandatory sentencing laws in both Western Australia and the Northern Territory are at odds with this recommendation. However, a 1997 report on implementation of the royal commission’s recommendations prepared by the Western Australian says that the recommendation has been implemented.

4. As a member of the international community of nations, Australia has taken on certain obligations in the area of human rights. While it may be convenient for governments, from time to time, to ignore the provisions of treaties, covenants and conventions, these obligations are ones we have taken on of our own accord – they have not been forced on us. In many cases we have been at the forefront of creating the treaties and have urged countries around the world to adopt them. A great deal of public debate focussed on the Convention on the Rights of the Child some years ago when the (federal) government was considering appending it to domestic legislation (in effect, giving the convention force in government decision-making). We cannot now turn our backs on the convention simply because sections of the community want to ‘get tough on crime’.

At the heart of the Convention on the Rights of the Child is the principle that all decisions should be made ‘in the best interests of the child’.

Specifically, these provisions in the Convention on the Rights of the Child are violated by the mandatory sentencing laws:

article 37(b) “No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time.”

article 40(4) states “A variety of dispositions, such as care, guidance and supervision orders; counselling; probation; foster care; education and vocational training programmes and other alternatives to institutional care shall be available to ensure that children are dealt with in a manner appropriate to their well-being and proportionate both to their circumstances and the offence.”

5. It is common for governments to promote harsh sentencing measures on the basis that they will deter people from offending, and remove a ‘hard-core’ of repeat offenders from the community. However, research by Neil Morgan published in an article in the Law Journal Forum (University of New South Wales, January 1999, pp5 –15), shows that neither effect has been demonstrated in relation to Western Australia’s 1992 legislation aimed at ‘serious and repeat offenders’. [The legislation was passed in response to community outrage over motor vehicle thefts which resulted in a number of deaths during high speed pursuits. Morgan’s research shows that there was a decline in offences in the months leading up to the legislation, and a marked increase immediately after the laws came into effect.]

Deep within the Christian faith is a concern for the person on the edges of society. This has expression in stories Jesus told (Matthew 25: 31 – 46), in his actions in relation to others (Mark 1: 40 – 45) and in the instructions conveyed in his spirit to the early church (James 2: 1- 4). This has shaped the ministry of the Church throughout the centuries and continues to do so today through our welfare agencies, prison chaplaincies and street work. We dare not walk away from it.

Opposing mandatory sentencing may put us out of step with many people in the community – again.