19.8 In defining the role of the Commonwealth in relation to sentencing young offenders, those who offend against federal laws should be considered separately from those who offend against State and Territory laws.
19.9 The Crimes Act provides
[a] child or young person who, in a State or Territory, is charged with or convicted of an offence against a law of the Commonwealth may be tried, punished or otherwise dealt with as if the offence were an offence against a law of the State or Territory.
The Crimes Act also contains sentencing options including conditional release on parole or licence and a range of sentencing alternatives for persons suffering from mental illness or intellectual disability.
19.10 A number of submissions considered these Commonwealth arrangements for sentencing unsatisfactory. The complexity of the sentencing provisions has been criticised in case law. Submissions also expressed concern that the different sentences given under various State and Territory laws are discriminatory in their impact on children.
19.11 In its submission the federal Attorney-General’s Department highlighted the inconsistency in the treatment and sentencing of federal juvenile offenders which may result from the application of State and Territory laws. The Department questioned whether this inconsistency would amount to a breach of the constitutional prohibition against discriminatory federal laws identified by some members of the High Court in Leeth v The Commonwealth of Australia.The Department suggested that a more detailed examination was needed before a firm conclusion could be made. In Leeth the majority, consisting of Mason CJ, Brennan, Dawson and McHugh JJ held that a piece of federal legislation which had inconsistent application among the States and Territories did not breach the constitutional prohibition. In their joint judgement, Mason CJ, Dawson and McHugh JJ said
… [t]he Commonwealth may give a varying application to its laws by reference to the laws of the States …
It is obviously desirable that, in the sentencing of offenders, like offenders should be treated in a like manner. But such a principle cannot be expressed in absolute terms. Its application requires the determination of the categories within which equal treatment is to be measured. Its application in Australia is necessarily upon a State by State basis, for it has long been recognised that sentencing practices may not be uniform from State to State but may be affected by local circumstances.
19.12 However, in dissenting judgements, Deane, Toohey and Gaudron JJ took the view that the federal legislation was invalid. Deane and Toohey JJ were particularly strong in their view that the legislation was in breach of the Constitution.
The Commonwealth is one country and criminal laws of the Commonwealth are part of a system of law to which all within the Commonwealth are equally subject.
19.13 The divided opinion in Leeth ultimately leaves unsettled the question whether inconsistent standards of treatment among States and Territories in the sentencing of young offenders breaches the requirements of the Constitution. The Inquiry’s recommendations for national standards and a greater level of uniformity between jurisdictions in sentencing options should go some way towards addressing the disparity in treatment of federal offenders in different States and Territories and the concerns raised in Leeth. However, the issues raised in Leeth may need to be revisited once the effects of the national standards on sentencing of young federal offenders become apparent.
19.14 Issues also arise in relation to the enforcement of sentences for children convicted of federal offences. Of particular concern is the scope of section 20C of the Crimes Act. There is some doubt as to whether courts have the power to apply State or Territory enforcement provisions if a child convicted of a federal offence defaults on a penalty. The words ‘or otherwise dealt with’ in section 20C may not extend to enforcement provisions. For this reason the federal DPP has argued that the Crimes Act penalties should be preferred over State and Territory penalties. The federal Attorney-General’s Department has highlighted the need for clarification on this issue.
19.15 An interpretation of ‘or otherwise dealt with’ to include enforcement is, in the view of the Inquiry, consistent with the intention of section 20C to extend the application of State and Territory provisions to federal juvenile offenders. Given that enforcement procedures are determined by courts the extension of section 20C to those procedures does not offend the requirements of the Judiciary Act 1903 (Cth) that people charged with federal offences be dealt with judicially. The Inquiry sees no logical reason, either in law or in policy, why enforcement should be treated differently from other aspects of the criminal justice system in this regard. The issue should be clarified by an appropriate amendment to section 20C of the Crimes Act, making explicit provision for enforcement procedures to fall within its scope.
Recommendation 238 The Crimes Act should be amended to make it clear that s 20C allows the enforcement provisions of State and Territory legislation to apply to young federal offenders.
Implementation. The Attorney-General should initiate this amendment.
 s 20C(1).
 Crimes Act Pt 1B Div 5.
 Crimes Act Pt 1B Div 9.
 Townsville Community Legal Service IP Submission 181; Church Network for Youth Justice IP Submission 212.
 R v Paull (1990) 20 NSWLR 427.
 Attorney-General’s Dept IP Submission 178.
 (1992) 174 CLR 451.
 Leeth v The Commonwealth of Australia (1992) 174 CLR 455, 468.
 id 470.
 id 92.
 The scope of s 117 of the Constitution was also discussed by the High Court in the earlier decision of Street v Queensland Bar Association (1989) 168 CLR 29.
 Federal DPP TR Submission 110.
 Attorney-General’s Dept IP Submission 178.
 See paras 18.56-57.