West Australia – European rules only

The Australian
Western Australia does a U-turn on Aboriginal issues

Debbie Guest, Victoria Laurie | October 17, 2008

WESTERN Australia’s new Attorney-General Christian Porter has plans that has the Aboriginal Legal Service in a state of fear.

WA already has the nation’s highest incarceration rate for Aborigines. And ALSWA executive director Dennis Eggington believes it will go even higher under Mr Porter’s plans.

More than half of the state’s male prisoners are Aboriginal men, even though Aborigines make up a mere 3.5 per cent of the state’s population. Male and female Aboriginal prisoners collectively make up 42 per cent of the prison population.

“Western Australia is going against world trends and hard factual data shows what we’re doing is not working,” Mr Eggington said.

Those aspects of Mr Porter’s policies that worry Mr Eggington include:

* Greater use of mandatory sentencing;

* The introduction of orders against anti-social behaviour; and

* A cap on discounting sentences for early guilty pleas.

But in an interview with The Australian, Mr Porter was unapologetic. He said indigenous justice issues would not be top of his list of priorities and he would not focus on recommended reforms to tackle high rates of Aboriginal incarceration.

He was either uncommitted or hostile to two of the key recommendations on Aboriginal justice made in a 2006 report by the Law Reform Commission of WA.

Mr Porter dismissed the commission’s call to recognise tribal law and would not commit to the continuation of WA’s only Aboriginal court in Kalgoorlie.

“You could probably argue that this is a court which tends to replace rather than act as an ancillary to the criminal justice system,” Mr Porter said. “I’m opposed to systems that work to supplant the existing system that we have, to replace it. What I’ll be looking for is programs that dovetail into the system that we have at the moment, or that occur after sentencing, that have a proven effect on rates of re- offending.”

A tender is open for a consultancy to review and evaluate the Aboriginal sentencing court in Kalgoorlie and Mr Porter said he would evaluate this review before making a decision on the court’s future. He said the reasons for high indigenous incarceration rates related to consecutive welfare failures and ineffective education and health policies.

“What we see in incarceration is the end result of a range of failures. Unfortunately, the solution is not to cease the prosecution, conviction and incarceration of people who offend, it’s about trying to address welfare issues, particularly in remote communities, that feed into offending.”

Mr Porter said issues such as Aboriginal courts and tribal law recognition were not “going to be high on the list of priorities”.

Mr Porter, who at 38 is the state’s youngest Attorney-General, said the agenda was to focus on what the general population considered important.

Repealing truth in sentencing laws will be one of the first reforms introduced to parliament. He said the current laws, under which convicted criminals automatically received a one-third discount on their prison terms, was causing comprehensive damage to the criminal justice system.

On the back of public outcry over a series of police officer assaults, the Attorney- General will also introduce mandatory sentencing for people convicted of serious assaults on police officers.

“I’m a lawyer and I’m very cautious about mandatory sentencing, very cautious, but we identified that here was a problem where a strong statement had to be made that police officers’ physical safety is of paramount importance to the Government,” he said. “We took the view that ultimately an assault on a police officer is an assault on every member of society who obeys the law.”

The tough-on-crime platform will also extend to a reduction in sentencing discounts for early guilty pleas and allow judges to make parole provisions less generous.

“In 2003 when the former attorney-general (Jim McGinty) changed the laws relating to parole, about 63 per cent of offenders became eligible for parole,” Mr Porter said.

“He promised that parole would be harder to attain under the system but it’s now the case that about 88 per cent of offenders have an eligibility order attached to their sentence.”

Council for Civil Liberties spokesman, barrister Laurie Levy, said the policy was a concern. “Sentences will inevitably get longer and it will deter offenders from pleading guilty,” he said.

Mr Porter, a former state prosecutor, also plans to make it possible for police prosecutors and the Department of Public Prosecutions to apply for 16- and 17- year-olds charged with serious or violent crimes to face an adult court. This would also allow these teenagers to be publicly named.

The policy attracted criticism from the WA Law Society, which said rehabilitation should be the focus where juveniles were involved. But Mr Porter said he was only reacting to public concerns.

“The dominant public interest is in an open system of justice and one that treats the offender with the seriousness that the community requires,” he said.

The final piece in the law and order program is a policy borrowed from the UK. At the time of sentencing, prosecutors will be able to apply for an order preventing an offender from engaging in particular behaviours which could lead to a repeat of the offence. For example, a person convicted of spraying graffiti on a bus could be ordered not to carry a spray can and travel on public transport.

People given an order would have their names published in local newspapers, and because this would include juveniles, the policy will require changes to the Children’s Court Act.

“In the UK, publication of names is an inherent part of prohibition orders because it will empower Councils (and) local communities, to inform police of anything they think is in breach of an order, and it empowers police to recognise potentially criminal behaviour,” Mr Porter said.

ALSWA president Terry Whitby said that the orders would place huge restrictions on freedom of movement and association and the “name and shame” policy was state- sanctioned vigilantism.

“The bans inevitably get broken, people end up in court and because they are often disadvantaged, they can’t pay fines and end up in jail,” Mr Whitby said.

“However you come at it, it will result in more people in jail and for longer periods of time.”

Mr Porter, who is also Minister for Corrective Services, said the problem of overcrowding in prisons would require “innovative approaches”.

Two new prisons will be built, one for young offenders and the other for 350 more maximum security prisoners. Mr Porter also plans to increase the use of home detention and work camps, where prisoners work and stay at accommodation outside jails.

Mr Eggington said increasing penalties and building more prisons was not a solution to crime.

“During the election Mr Porter issued a 15 page document about stiffer penalties but his prisons policy is a page and a half long.”

Before the September 6 election Mr Porter had only been shadow attorney-general for six months, after a by-election in February. After a short stint in parliament facing off against Mr McGinty, Mr Porter is clear about how he will differ.

“The former attorney-general undertook an enormous amount of law reform, quite unheralded in its quantum, but a lot of it was pertaining to matters that the general rung of the population didn’t consider important to the quality of their own lives.”

Mr Porter said he strongly opposed Mr McGinty’s idea of a human rights bill and maintained he would not become wrapped up in his own pet projects.

“The law reforms I want to focus on are ones that are tailored to addressing patterns of offending that have the greatest impact on suburban life in Western Australia.”

On the issue of a unified regime for regulating the nation’s lawyers, Mr Porter said he was “generally supportive” but would need to seek further advice from his department.


The Australian
Justice Valerie French has hope for Aboriginal inmates

Victoria Laurie | October 24, 2008

AS a serving district court judge and chairman of the Prisoners Review Board,
Justice Valerie French knows that Western Australia’s unrivalled record for
imprisoning Aboriginal men, women and children is having a devastating effect on

“There’s no doubt that prison has a ripple effect on every family, especially if the
member in prison was supporting the family,” says the judge.

“The difficulty with the high Aboriginal prison rate is that there are so many factors.
At bottom is the level of dysfunction, so the rate of offending is disproportionately

Justice French, who also chairs the Mentally Impaired Accused Review Board, will
retire from all her judicial roles in February to join her husband, High Court Chief
Justice Robert French, in Canberra.

She will leave with a firm conviction that accommodation and post-prison support
are the keys to reducing the prison population. “Imprisonment doesn’t stop offending
— everybody knows that. For successful parole, you need a home to go to and a job
to go to.”

But the disadvantaged situation of many Aboriginal families leads to prison, and then
to people staying inside longer, “because it’s difficult to release an offender on
parole if they don’t have somewhere to live”.

“Take the example of a young 15-year-old Aboriginal offender. If a family says ‘we’ll
offer support, he’ll go to school and we’ll ensure he’s housed with us’, the court is
more likely to release him on a community-based order. If not, he ends up in
detention; statistically, he’s then more likely as an adult to offend and go to jail.”

Justice French says she understands why new WA Attorney-General Christian
Porter (who told The Australian last week that addressing the state’s indigenous
prison rate was not high on his agenda) is pursuing a wider law and order agenda.
And she stresses that Aboriginal disadvantage “is not amenable to an easy fix by an

“I understand that measures have to be taken to safeguard the community,” Justice
French says.

“The sad thing may be that it leads to more young Aboriginal men being imprisoned.

“And our prisons are already running at capacity now.” She says housing “is
probably the most important factor for the (parole) board”. Ideally, she says, there
should be supportive short-term accommodation for exiting prisoners. That call has
been heeded, says Peter Sirr, CEO of Outcare, an agency that for several decades
has helped adults and juveniles leaving prison find jobs and accommodation.

Four months ago, the size of Outcare’s state government contract was doubled by
the former Carpenter government.

“They realised that we were keeping people out of jail and saving the state money,”
says Sirr, who manages a staff of 65. “If a hundred people were released today
directly from prison, the odds are that 41 per cent will be back in jail within two years.
If they come via our service, only 17 per cent go back. It costs $93,000 a year to
keep someone in jail, so the government realised that all we had to do was keep
eight or nine people out of jail for the program to pay for itself.”

But Sirr shares Justice French’s concern that housing problems are keeping
offenders, especially Aboriginal ones, in jail.

He also says the substance abuse problems of exiting prisoners need to be
addressed. By the end of this year, Outcare will have five addiction counsellors.