Recommendation 8–1 Commonwealth, state and territory governments should repeal legislation imposing mandatory or presumptive terms of imprisonment upon conviction of an offender that has a disproportionate impact on Aboriginal and Torres Strait Islander peoples.
8.17 There are principled reasons for opposing mandatory sentencing, including those set out above. In fact, the ALRC has previously recommended against the imposition of mandatory sentences in relation to federal offenders. Nevertheless, the Terms of Reference for this Inquiry are focused on those aspects of the criminal justice system that are contributing to the over incarceration of Aboriginal and Torres Strait Islander people. Accordingly, this recommendation requires a focus on those particular offence provisions with a mandatory or presumptive term of imprisonment which have a disproportionate impact on Aboriginal and Torres Strait Islander peoples. Identifying individual offence provisions with a disproportionate impact is not a simple exercise given the way data are collected. With a view to abolition, Commonwealth, state and territory governments should review provisions that impose mandatory or presumptive penalties to determine whether they have a disproportionate impact on Aboriginal and Torres Strait Islander peoples.
8.18 The next section highlights those provisions identified by stakeholders as having a disproportionate impact on Aboriginal and Torres Strait Islander peoples. Most of those identified by stakeholders related to Western Australia (WA) and the Northern Territory (NT) where mandatory sentencing is most common.
Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders Report No 103 (2006) recs 21–3.
See ch 3.
See, eg, Legal Aid NSW, Submission 101; Commissioner for Children and Young People Western Australia, Submission 16; Legal Aid WA, Submission 33; Victorian Aboriginal Legal Service, Submission 39; National Aboriginal and Torres Strait Islander Legal Services, Submission 109; Caxton Legal Centre, Submission 47; Australian Lawyers for Human Rights, Submission 59.