Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
1998-1999-2000
The Parliament
of the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Amendment
of the Northern Territory (Self-Government) Act 1978 Bill
2000
Explanatory
Memorandum
Circulated by
Mr Andren
ISBN: 0642 43106X
Amendment of the Northern Territory (Self-Government)
Act 1978 Bill
2000
Outline
The
purpose of this bill is to ensure that the Legislative Assembly of the Northern
Territory cannot make a law which would require a court to sentence a person to
imprisonment or detention for an offence committed as a
child.
Background
At present at
least two laws of the Northern Territory have the effect that in certain
circumstances courts have no discretion in the sentencing of children convicted
of crime. The Northern Territory’s Juvenile Justice Act and the
Sentencing Act have the effect that in certain circumstances a child
must, if convicted, be sentenced to a period of detention or imprisonment. This
is known as mandatory sentencing.
Mandatory sentencing removes the
discretion of the courts to make decisions as to the most appropriate penalty in
every case. The circumstances of cases vary, the situations of convicted people
will vary and the wider interests of society must be considered in each case.
In short, mandatory sentencing requirements are contrary to the principle that
“the punishment must fit the crime”.
Section 122 of the
Commonwealth Constitution gives the Commonwealth Parliament power to make laws
for the governance of territories and to override laws made by a
territory’s Legislative Assembly. In 1997 the Commonwealth used this
power to override the Northern Territory’s euthanasia laws. On the third
of October 1998, the people of the Northern Territory were given the opportunity
to become a state but voted to remain as a territory of the Commonwealth for the
time being.
As a signatory to the International Convention on the Rights
of the Child the Commonwealth has obligations under international law to
implement a range of rights for people under the age of 18.
Article 3(1)
of the Convention requires that the best interests of children be a primary
consideration in all actions concerning them, whether undertaken by public or
private social welfare institutions, courts of law, administrative authorities
or legislative bodies.
Article 37(b) requires signatories to ensure that
detention or imprisonment of children is only used as a measure of last resort
and for the shortest period of time.
Article 40 recognises the need for
children recognised to have infringed the law to be treated in a manner
consistent with the promotion of a sense of dignity and worth. It requires
punishments for crimes to be proportionate to the circumstances of each offence
and signatories to have in place a range of alternatives to incarceration
designed to maximise the chances of offending children assuming a constructive
role in their societies.
While it is pointed out that mandatory
sentencing conflicts with the requirements of the Convention on the Rights of
the Child, as already explained above, the Constitutional basis of the
Amendment of the Northern Territory (Self-Government) Act 1978 Bill 2000
is Section 122 of the Constitution, not the external affairs power Section
51(xxix).
Explanatory notes on the
bill
Clause 1
This provides that the short
title of the bill is Amendment of the Northern Territory
(Self-Government)
Act 1978 Bill 2000.
Clause 2
This provides that the act
will commence on the day on which the bill receives Royal
Assent.
Clause 3
This provides that the Northern
Territory (Self-Government) Act 1978 is amended as set out
in schedule 1 and
that other items also have the legal effect
outlined.
Schedule 1
Item
1
This item amends the Northern Territory (Self-Government) Act to
define a child as a person under 18 years of age.
Item
2
This item amends section 6 of the Northern Territory
(Self-Government) Act 1978. That section sets out the law making power of
the Legislative Assembly of the Northern Territory.
Proposed sub-section
6(2) qualifies the law making power of the Assembly by providing that the
Legislative Assembly does not have power to make laws which would require a
court to sentence a person to imprisonment or detention for an offence committed
as a child.
Item 3
This item provides that a law of the
Assembly which contravenes (new) subsection 6(2) has no force or effect. It
goes on, however, to provide that actions taken under such laws before the
commencement of the new act are not unlawful or invalid on account of the new
law.
Item 4
This item requires that a person in prison
or detention under a law that is contrary to (new) subsection 6(2) must, within
28 days after the commencement of the new act, be brought before the court that
sentenced the person. The item gives the court full discretion to vary the
sentence if it thinks fit, having regard to all the relevant circumstances.