COMMONWEALTH OF AUSTRALIA Official Committee Hansard · The way the three-strikes legislation has...

COMMONWEALTH OF AUSTRALIA

Official Committee Hansard

SENATELEGAL AND CONSTITUTIONAL REFERENCES COMMITTEE

Reference: Human Rights (Mandatory Sentencing for Property Offences) Bill 2000

FRIDAY, 25 JANUARY 2002

PERTH

BY AUTHORITY OF THE SENATE

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SENATE

LEGAL AND CONSTITUTIONAL REFERENCES COMMITTEE

Friday, 25 January 2002

Members: Senator McKiernan (Chair), Senator Payne (Deputy Chair), Senators Coonan, Cooney, Greig andLudwig

Participating members: Senators Abetz, Bartlett, Bolkus, Brandis, Brown, Calvert, Chapman, Crane,Eggleston, Faulkner, Ferguson, Ferris, Forshaw, Gibson, Harradine, Harris, Knowles, Lightfoot, Ludwig,Mason, McGauran, Stott Despoja, Tchen, Tierney and Watson

Senators in attendance: Senators Greig, Ludwig, McKiernan and Payne

Terms of reference for the inquiry:Human Rights (Mandatory Sentencing for Property Offences) Bill 2000

WITNESSES

BADHAM, Mr Frederick Vincent, Senior Policy Analyst, Department of Justice .................................206

COLBUNG, Mr Glen, Deputy Chairperson, Aboriginal Justice Council of Western Australia ...........225

CUOMO, Mr Mark Donato, Director of Legal Services, Aboriginal Legal Service of WesternAustralia.........................................................................................................................................................274

DUFFIELD, Mr James Albert, Research and IT Officer, Deaths in Custody Watch Committee(WA) Inc.........................................................................................................................................................245

LOVEDAY, Mrs Marilyn Ann, Supervising Solicitor, Legal Aid Information Service, Legal AidCommission of Western Australia ...............................................................................................................265

MARSHALL, Mr Andrew John, Director, Justice Policy, Department of Justice .................................206

MORGAN, Mr Neil Andrew, Director of Studies, Crime Research Centre, University of WesternAustralia; and Representative, Aboriginal Justice Council of Western Australia..................................225

MURPHY, Mr James Maxwell, Regional Council Chairperson, Wongatha Regional Council,Aboriginal and Torres Strait Islander Commission...................................................................................248

PRIOR, Mr John Brian, Deputy Convenor Criminal Law Committee, Law Society of WesternAustralia; and Treasurer, Criminal Lawyers Association of Western Australia....................................286

RAYE, Ms Donella, Policy Adviser, Law and Justice Portfolio Committee, Aboriginal andTorres Strait Islander Commission .............................................................................................................248

THOMPSON, Ms Clare Helen, President, Law Society of Western Australia .......................................286

WYNNE, Mr Eric, Commissioner, Aboriginal and Torres Strait Islander Commission.......................248

Friday, 25 January 2002 SENATE—References L&C 205

LEGAL AND CONSTITUTIONAL

Committee met at 9.02 a.m.

CHAIR—I declare open this public hearing of the Senate Legal and ConstitutionalReferences Committee. This is the fourth public hearing in the inquiry into the Human Rights(Mandatory Sentencing for Property Offences) Bill 2000. The bill was referred to the SenateLegal and Constitutional References Committee on 24 May 2001. The committee expects toreport by the last sitting day in March—that is, 21 March 2002. In the period since the referralof the bill there has been both a federal election and a Northern Territory election, whichdelayed our public inquiries. However, despite parliament not resuming until 12 February 2002,the committee is continuing its work on this inquiry, which was referred in the 39th Parliamentand will report in the 40th Parliament.

There are no specific terms of reference for the inquiry. The committee has soughtsubmissions related to the issue contained in the bill and in the second reading speech and toother issues that submitters considered relevant. The committee invited a range of individualsand organisations to make submissions. It advertised the inquiry in newspapers, including theAustralian, the Perth West Australian and the Northern Territory News, on 30 June 2001.

All witnesses are reminded that should discussions move into areas that would best behandled in camera, possibly at a time in the future, please make that clear to the committee atthe time.

L&C 206 SENATE—References Friday, 25 January 2002


BADHAM, Mr Frederick Vincent, Senior Policy Analyst, Department of Justice

MARSHALL, Mr Andrew John, Director, Justice Policy, Department of Justice

CHAIR—Welcome. The Department of Justice has lodged submissions, numbered 16, 16Aand 16B, with the committee. Are there any amendments or alterations to those submissions?

Mr Marshall—No.

CHAIR—You should note that you will not be required to answer questions which seekopinions on matters of policy, reasons for policy decisions, or advice that may have beentendered in the formulation of policy. If necessary, the committee will allow you a reasonableopportunity to refer questions to superior officers or to the minister. I now invite you to make ashort opening statement. At the conclusion of your remarks I will invite members of thecommittee to address questions to you.

Mr Marshall—I would like to structure our short presentation around five topics: firstly, astatement on behalf of the government on the rationale for retaining the three-strikes legislation;secondly, the broader context of juvenile justice in the state; thirdly, now that this bill relates toadults as well, a short discussion on the context of adult justice in the state—I will be givingyou some figures but not very many of them, as I do not want to bore you with lots of figures;fourthly, indigenous issues in particular because, clearly, that is an important part of this; and,lastly, I will hand over to Mr Badham, who will briefly take you through the review which wecompleted recently and which was tabled in the Western Australian parliament in November. Istart by reading a statement from the Attorney-General, the Hon. Jim McGinty:

Subsequent to the tabling in parliament of the report of the review of the operation and effectiveness of section 401 ofthe Criminal Code, the West Australian government has decided to retain the legislation in its current form. There arefour main reasons for this decision:

• Of all the Australian states and territories, Australian Bureau of Statistics surveys show that Western Australiacontinues to have the highest rate of reported burglary and, as commented on by the Crime Research Centre—

There is a reference which I can give the committee to that in this paper at a later date—

has had the highest rates of reported burglary offences since the start of the ABS national recorded crime series in1993. ABS victimisation surveys show that Western Australia also has the highest rates of household breakingand entering and attempted breaking and entering.

• The legislation has high acceptance by the people of Western Australia and has bipartisan political support in thisstate. In addition to reporting household breaking and entering and attempted breaking and entering, the ABSvictimisation surveys also measure people’s perceptions about problems in their area. The category ‘householdbreaking, burglary, theft from homes’ is the most common perceived problem, but the proportion of respondentsfrom Western Australia who reported that it was a perceived problem has dropped over the period in which thelegislation has operated, from 45.3 per cent of respondents considering it was a problem in October 1995 to 40.3per cent in October 2000.

• The legislation appears to be well targeted, affecting few offenders but identifying, with few exceptions, those whohave extensive sentencing histories. In terms of being identified as a repeat offender, adults are largely unaffectedbecause the mandatory imprisonment length of 12 months for a repeat offender is typically at the lower end of thesentence expected for an offender with the sentence history required to qualify. Juvenile repeat offenders have



pleaded, or have been found, guilty of significant numbers of burglary offences: on average about 50 offenceseach of which about 20 were burglaries. Over the first four years of operation of the legislation, only 143 juvenilesentence events were identified.

• Mandatory sentencing does not necessarily mean detention for juveniles. If the court believes there are specialcircumstances, a juvenile offender may not receive a sentence of detention. The court has the discretion, inappropriate cases, to impose an alternative sentence of a juvenile conditional release order. The review found thatsuch discretion had been used in about 17 per cent of cases and had been applied where the offender was veryyoung or when the nature of the offences was considered to have important mitigating circumstances such aswhere the reason for the burglary was to obtain food because the offender was hungry.

I would like to emphasise that the three-strikes legislation plays a very small role in a systemwhich has a very effective filtering process. I want to give you a few numbers to give you apicture of the way in which juveniles and adults are filtered through a filtering process, arediverted, and are dealt with by other means. At the end you get a very small proportion of veryserious offenders whom the three-strikes legislation targets.

Very briefly, in relation to juvenile justice, there are about 215,000 juveniles in this state—that is, those aged between 10 and 17, which is the criminal age for juveniles in this state. About12,000 of them come into contact with the police each year—and I use that term carefullybecause, of course, we have cautions, juvenile justice teams and so on. About 4,500 of theseappear in court each year. So already nearly two-thirds are diverted out of the system throughjuvenile justice teams or through cautions; they do not appear in court. So we are dealing withonly 4,500 who appear in court. Of those 4,500, 1,700 received community based orders and250 were sentenced to detention. The balance were given things like fines, good behaviourbonds, dismissals—the other sorts of penalties. Of those 250—and remember that we startedwith 215,000; 12,000 come into contact with the police each year and 250 are detained—21were sentenced under section 401 of the Criminal Code. That is the perspective that I would likeput across to you.

These figures show a system that is working pretty effectively at weeding out or divertingminor offenders and dealing with other offenders in a graduated way, ending up with the mostserious offenders who have to be detained. The way the three-strikes legislation has beenenacted in Western Australia simply extends this system and affects the most serious of theserious offenders. To put this in context: since 1996, over 17,000 juveniles have been sentencedin our courts and yet only 143 have been dealt with under the three-strikes provisions.

As for adults, there are about 1.29 million adults aged 15 over—there is a bit of an overlapthere which is a bit of a problem, but it is the way the ABS categorises their figures. In 2000-01approximately 88,000 charges were laid against approximately 60,000 people—that is, adults.They were criminal matters and they excluded traffic offences. Of these, 9,600 receivedcommunity supervision orders and 3,500 were sent to prison. Again, of about 1.29 million,about 60,000 people went to court and 3,500 went to prison. Of those 3,500, only 423 werejailed primarily for burglary. That was across the board—all sentences of burglary. We usedwhat we call the ‘most serious offences’ which, if there are a large number of offences, is theoffence for which the person receives the longest sentence. On average, the 423 receivedsentences of 24 months. This will add to what Mr Badham is going to say later in relation towhy the three strikes has not be used with adults. As I said, the average sentence for burglarywas 24 months in this state last year. Again, even if three strikes were applied to every adultwho was jailed for burglary, we are still talking very small numbers of people: 423 out of 3,500jailed out of 60,000 people dealt with in our courts.



Now I will turn to indigenous issues mentioned by the Attorney-General when he tabled thereview of the three strikes which revealed that the three strikes are very heavily affectingAboriginal youth in particular, with something like 80 per cent—Mr Badham will give you thefigures—being involved. It is of great concern to this government and, again, it must be seen incontext. In this case, the context that I want to paint is that overseas research and local researchshows that indigenous or even minority group overrepresentation in justice systems is anaccumulative process. It is not just in one part—it is not just in detention. It accumulates. Ingiving you the context, the idea is to show you how that builds up in Western Australia.

If anybody is interested, on the Justice web site there is a presentation that we did about twoyears ago which paints the whole picture from the proportion of Aboriginal people in thecommunity in Western Australia through arrest, through community based orders, through jail,and it has got some revealing information about the nature of indigenous overrepresentation.You need to see indigenous overrepresentation—the figures that were revealed in the three-strikes review—in the context of the whole system. The answer lies in changing the wholesystem and intervening at every point in the system. The answer is not in simply removing onepart of the system, which is obviously the most serious part—the three strikes—where theoverrepresentation is at its highest. But our goal is to affect the whole system.

The situation in Western Australia is that the indigenous population is roughly three per cent.Overrepresentation starts at arrest, and the Crime Research Centre, which published a report justbefore Christmas, revealed that, in 2000, 30 per cent of arrests were of indigenous people. Wethen need to tackle the question of underrepresentation in diversion. This has been referenced ina number of reports, including the report commissioned by the Western Australian AboriginalJustice Council, and I think that one of the submissions to your committee highlights the factthat Aboriginal or indigenous people are underrepresented in diversion. That is correct. About21 per cent of people cautioned are indigenous, and about 25 per cent of juvenile justiceteams—which is our other diversionary process—are indigenous people. But I am pleased tosay that both of those figures are improvements on the previous year and on the year previous tothat. They have been slowly improving. Nevertheless, compared to the population, it is anunderrepresentation. In community service orders—we are going slowly up the hierarchy—Aboriginal juveniles make up 55 per cent, and in detention Aboriginal juveniles make up 60 percent.

I am painting a picture that overrepresentation of indigenous peoples obviously starts beforethey come into contact with the justice system, or the circumstances for overrepresentation areset. Then, from when they are arrested or apprehended right through the system, it is anaccumulative process, and it needs to be tackled as a system. So the questions are: what ishappening and how are we tackling it as a system?

First of all, we understand that it is systemic and accumulative and it cannot be tackled bysimply tackling one part of the system. The government’s position is to tackle, as much as itcan, the whole system. The Aboriginal justice plan—a plan signed by the state AboriginalJustice Council and the state government about 18 months ago—really sets the stage for thisprocess. In particular, it has three focus areas: family, education and policing. You can see fromthat that the emphasis is on trying to stop indigenous people getting into the system in the firstplace. But it tackles the policing issue, and the policing focus group is tackling issues such assupporting the police through the Aboriginal patrols, which in a sense you could talk about as



arrest prevention—in other words, looking at alternatives to arrest—and other issues relating topolicing. The AJC are represented on the policing focus group, as they are with the other focusgroups. More recently, the Western Australian government signed an Aboriginal reconciliationagreement with the representatives of the Aboriginal community here.

The issue of underrepresentation in juvenile justice teams is being addressed by an interestingprogram which I would not like to say too much about because it is a pilot and it has not beenformally publicised by the government. We are piloting a juvenile justice team process in whichAboriginal sessional workers are employed to liaise with Aboriginal families, and an Aboriginalcoordinator has been appointed to deal with Aboriginal families. I am pleased to say that thatpilot, which is only in one juvenile justice team—and there are six juvenile justice teams in themetropolitan areas—has had a very significant impact on the involvement of Aboriginalfamilies in juvenile justice teams. There has been something like an 80 per cent improvement intheir involvement.

Further into the juvenile justice system, we have the Aboriginal cyclic offending program inGeraldton; we have the Aboriginal families supervision program; we have a major projectoccurring at the moment called the Kimberley action plan—or the Kimberley project—wherewe are looking at integrating our justice services and making them more responsive toindigenous people, particularly the local community. These are all in various stages ofdevelopment.

The government also has announced elsewhere a particular project involved in reducing therate of imprisonment in the state by direct means. One of those means is going to have asignificant impact on indigenous imprisonment rates, and that is the proscription of six monthsor less sentences, because we know that Aboriginal prisoners are very highly represented inshort sentences. In fact, a characteristic of our Aboriginal prisoners is that they rotate throughshort periods of imprisonment and short periods in the community and, in the process, rack up avery large number of previous imprisonments. On the whole, they serve only short sentences,and so, with the proscription of six-month sentences, we expect Aboriginal people to beparticularly positively impacted.

Hopefully that gives you a snapshot of how we are tackling the systemic overrepresentationof indigenous people from beginning to end. It is one in which there can be absolutely nocomplacency—not that there is—on behalf of the government in relation to indigenous issues,because the population distribution of Australia is such that, even if we stand still, we gobackwards because the indigenous birthrate is many times the non-indigenous birthrate. So,even if things remain exactly as they are now, we will go backwards in relation to indigenousoverrepresentation. On that point, I will hand over to Mr Badham, who will describe verybriefly the review that was conducted.

Mr Badham—The review was required by section 6 of the Criminal Code Amendment Act(No. 2) 1996, which introduced the amendments required to allow the legal system to take atotally different approach when dealing with burglary, particularly burglary perpetrated undercircumstances of aggravation, home burglary and repeated home burglary. In absolute summary,and in the broadest sense, the review has found that the repeat offending component of theamendments has had little impact on adults and a substantial impact on juveniles who fallwithin the bounds of meeting the three-strikes requirements.



Let me go back a step. The legal system changed its approach with respect to all aspectsrelated to burglary and, in order to do that, it implemented changes to create a new offence ofhome burglary—actually called burglary in a place ordinarily used for human habitation, but letus talk about it as home burglary for the moment. It provided for more severe penalties whereany burglary was committed under circumstances of aggravation, and there are seven of thoselisted. It provided for a mandatory sentence of at least 12 months of either imprisonment for anadult or detention for a juvenile where their offending history met the requirements of the threestrikes—that is, basically, that they had been convicted of a home burglary on a third occasion.

The review was much broader than just the mandatory component, but the other componentshave a bearing on our capacity to try and make some assessment of what happened in themandatory component. Right from the start, we were having great difficulty identifying whatwas really a three-strike conviction and what was not, particularly for adults. The problem wehave is that our computer systems are designed to follow the standard court process, and theyalways hold onto something they have in the background as being a critical component, like anoffence, an offender or a judgment. The difference with the implications of this particularamendment is that it does not have any of those root bindings, if you like, that allow it to bemonitored within the system without change. It is a circumstance required to be considered bythe court at the time of sentencing. From that point of view, it is not an offence in its own right,so it does not fit the normal process that the court would go through. We had extreme difficulty,therefore, in trying to make any amendments to the systems that would do that.

We were partially successful with the lower court system; we were unsuccessful with theHigh Court system. With the lower court system, we were successful only with children, notadults. We have good information about juveniles; we have poor information about adults. Wecan be relatively more certain about the situation with children than with adults but, from theextensive work that we did, it is clear that in the vast majority of instances the sentences thatwere handed down to adults where their offending history would have made them fall into thecategory of a repeat offender were in excess of what was required by the mandatory sentenceanyway. For the lower courts, about 92½ per cent met or exceeded the requirement of 12months. The others also were sentenced to imprisonment but for a shorter period. In the DistrictCourt the numbers were considerably smaller in the subsample that were able to take out. In thatinstance a very high proportion were sentenced to a much longer period than 12 months, butinterestingly two ended up on community orders. For the details of those we would need to readthe transcript.

It is my view that it has not affected adults in a general sense very much at all. For childrenthat is not quite the case. We were able to identify 143 occasions when a juvenile was convictedas a repeat offender. Those 143 occasions covered 119 individuals. The 143 sentencescomprised 22 juvenile conditional release orders, 111 detention orders and 10 imprisonments. Ineed to explain that a little. The legislation says ‘detention or imprisonment’. Early in the life ofthe amendments a judicial decision was made that because of an interpretation of the YoungOffenders Act the court had power to sentence a child to a period of detention but immediatelyrelease that person into society on a conditional release. The court went further and said that itconsidered that it was appropriate in that instance to do that under certain circumstances, andtypically those circumstances were either when the child was quite young or where there weresome fairly powerful mitigating circumstances relating to the commission of the offence. The



case that I clearly remember seeing on a few occasions was one in which the offender washungry and was looking for food. There were 22 such orders.

The 10 imprisonments arose because of the sentencing arrangements for juveniles when theyare rapidly approaching their 18th birthday. If it is clear that the detention period will go pasttheir 18th birthday they are sentenced to a period of imprisonment. Of the 143 sentence events,116 were of indigenous juveniles, and that is about 81 per cent; three were female, so it istypically a male issue; and 87 of them—that is, 61 per cent—lived outside the metropolitan areaand, of those, 93 per cent were Aboriginal. There is a relationship between age and theimposition of a juvenile conditional release order, as you would imagine.

It is also clear that, in one instance we have a clear overrepresentation of indigenous juvenilesoverall, but within that distribution they are also clearly over-represented in the earlier agegroups. For example, 30 per cent of indigenous juveniles concerned are below the age of 15,while only seven per cent of non-indigenous juveniles were under the age of 15.

In a nutshell, those are the important issues with respect to the numbers that came through inrelation to court activity. However, I need to make a few other comments. First, I could find noevidence for the legislation having an impact on the rate of burglary. In particular, there is noevidence for that in terms of the number of burglaries being reported to police.

CHAIR—On a point of clarification, you say that you could find no evidence of that. Did thereview seek to find evidence on that matter? It is not apparent in the review that they tested thatmatter.

Mr Badham—There is a graph fairly late in the piece that refers to the number of offencesthat have been reported to the police.

Mr Marshall—Perhaps I can clarify that. The review’s terms of reference as stated in 1996in the act included to review operation and effectiveness, and the effectiveness component wasmeasured in terms of changes in burglary rates pre- and post-1996.

CHAIR—I would have thought that it would also have examined the purposes of the bill inorder to determine the effectiveness of the legislation. Was that the case?

Mr Marshall—Yes. The original purpose was to reduce the rate of burglary.

CHAIR—I apologise for interrupting on that point of clarification, but we are anxious to getto the questions.

Mr Badham—Under section 3.2, a table shows that, in respect of burglaries of dwellingsreported to the police pre and post the implementation of the legislation, the burglary rate wentup in the short period immediately after implementation. However, on average, if you drew aregression line through the rates after implementation of the amendments, there has basicallybeen no movement up or down.

CHAIR—But that is only over an 18-month period.



Mr Badham—If you introduce the legislation at a point and you expect it to have an effecton the burglary rate, what is covered here is an 18-month period which I would have thoughtwas sufficiently long to indicate whether there was going to be a change.

CHAIR—Why haven’t you gone the full distance in terms of the statistics? There are detailsunder point 4 of the executive summary in the review of the impact in 1999, yet you stopreporting of police offences at 1997-98. This is now the year 2002.

Mr Badham—Yes, but I go back to the point that the classic way to measure impact is tolook at the situation before and the situation afterwards, and if there is a change you canpresumably explain that in relation to the points at which you checked before and after. I havean 18-month period in here because it is monthly information and I wanted to look at a fairlydetailed period. I agree that we could have taken it further, but I felt that, for the purposes of thisexercise, it was sufficiently long to demonstrate whether there had been an effect as a result ofthe implementation of that legislation.

CHAIR—I was disappointed with the results of the review. I expected a more comprehensiveand detailed evaluation of what was a very controversial piece of legislation when it wasintroduced—and it has remained controversial. From my point of view, my fears about thelegislation have not been allayed by the review’s contents. When I first read the review, Iformed the view that there was a selective use of statistics. We have up-to-the-minuteinformation about what is happening in the Children’s Court and we should have up-to-the-minute information on the number of reported burglaries. It seems to me that the review shouldhave contained a comparison. I recall debates in which it was said that the legislation was beingintroduced because of the high rate of home burglary in the state—the highest in Australia. It isstill the highest in Australia.

Mr Badham—That is right; it is.

CHAIR—Yet the review is not doing a comprehensive analysis of what is being done toaddress the problem of the high incidence of home burglary in Western Australia—for whichthe act was amended in the first instance.

Mr Badham—It may very well have been introduced because WA had the highest rate inAustralia, but that fact is a given. The issue is whether it has changed as a result of theintroduction of the legislation. We have a graph that indicates what the rate was in WA prior toimplementation. It is a given that that is very high compared with the rest of Australia and,therefore, what has happened in Western Australia as a result of the implementation of thelegislation. I accept your argument that 18 months may be too short—we can certainly extendthat graph—but I still take the view that if the legislation was going to have an impact it wouldhave had an impact in the first 18 months.

Mr Marshall—I think you are being a bit harsh there. Had we concluded, and had thegovernment published it, that the burglary rate had gone down as a result of the three strikeslegislation, then your criticism may well have been sound, but we are concluding that it had noimpact and that it has had no impact subsequently.



CHAIR—You also recognise on page 30 that the Pawnbrokers and Second-hand Dealers Acthad an impact on it as well.

Mr Marshall—Yes.

Mr Badham—No. I am not sure that we can say that it did have an impact. I am saying thatit is impossible for us to disentangle the effects of the two sets of legislation.

CHAIR—I rest my case with the words that are contained in the submission. My reason foraddressing the questions in this manner was Mr Marshall’s reference to the Attorney and thestatement that the amendments to the act were successful in the first instance. They are notborne out, to my belief, in this review. Certainly, even the review itself states that it has verylittle impact on adults. It goes on to say that overall the amendments have had little impact onthe criminal justice system and that the overall question of home burglary rates has not beenaddressed.

Mr Marshall—If you want to get technical, some would argue that the reality is that thecrime and safety surveys conducted by the ABS are probably the best measure, because they donot measure reported crime. There are all sorts of problems with measuring reported crime. Alot of people do not report burglaries because they are not insured and so on. You have to be alittle careful with the ABS figures. We were criticised a little for our previous evidence to thiscommittee. The ABS did these surveys in 1991, 1993, 1995, 1998, 1999 and 2000. You need tobe careful, because the 1991, 1993 and 1998 surveys were national surveys—they ask slightlydifferent questions in national surveys—and the 1995, 1999 and 2000 surveys were state based.However, the statistics show that burglary, as reported by these surveys, has dropped from 13.6per cent of people reporting being the victim of burglary in WA in 1995 to 12.1 per cent in 1999and to 10.1 per cent in 2000.

CHAIR—Why don’t you include numbers rather than use percentages?

Mr Marshall—That is the percentage of people who report being the victim of a burglarywhen they do these surveys.

CHAIR—So overall the actual numbers could be increasing with the increase in population.

Mr Marshall—Yes, but they all survey the same number of people. Of that pool of people,that percentage of people report being the victim of burglary.

CHAIR—I am very conscious of the time restrictions on the committee. As a WesternAustralian representative, I have a range of questions, but I am conscious that members of thecommittee also have questions and I will pass the questioning over to my colleague SenatorPayne.

Senator PAYNE—Chair, effectively you have led me to try to clarify statistics, which, really,is not what I had in mind at the beginning of this process. Nevertheless, Mr Marshall, are thosefigures which you just referred to in relation to the Australian Bureau of Statistics surveys ofhouseholders reporting home burglary the same as the statistics that are contained in paragraph4.1 of the submission we received in December?



Mr Badham—Could I answer that instead? Yes, with the exception that Mr Marshallmentioned that some later figures have come out for 2000 which are not in there.

Senator PAYNE—And that is a reduction to 10.1 in 2000.

Mr Marshall—Yes.

Mr Badham—That is.

Senator PAYNE—To enable my colleagues to continue asking questions, can I also justclarify something. Mr Marshall, at the beginning of your submission you spoke of four reasonsgiven by the Attorney for the retention of the legislation. These included the highest reportedrate of burglary—and you contend that that is still the case—for Western Australia—

Mr Marshall—Yes.

Senator PAYNE—a high acceptance by the people and bipartisan political support; that theAttorney believed the legislation to be well targeted, impacting few offenders, relativelyspeaking, the offenders being ones with extensive sentencing histories. What was the fourthreason?

Mr Marshall—The fourth was that mandatory sentencing does not necessarily meandetention. In other words, it is what we have discussed previously: the ‘out’ clause in relation tothe court being able to impose a conditional release order.

Senator PAYNE—Again in terms of figures, when you did your breakdown of young peoplein Western Australia beginning with the figure of 215,000, then those with police contact and soon, we came to a figure of 21 people impacted directly by section 401.

Mr Marshall—In that year, 2000-01, 21 juveniles were sentenced under three strikes. Theyare included in the 250—250 kids were sentenced to detention, 21 of those under three strikes.

Senator PAYNE—Does the Western Australia government do case studies of thoseindividuals’ histories, assuming all identifying characteristics and so on are removed?

Mr Badham—Yes.

Mr Marshall—On our web site is the full copy of the review. The appendix of that reviewcontains some legal stuff and the case histories of those kids—not all of them; there were someproblems with some of the records. I think we have 119 cases. There are the full case reviewswith a bit of background of each kid’s personal circumstances—obviously, no identification—alisting of the kid’s criminal record and some information on the circumstances of the offencewhich triggered the three strikes.

Senator PAYNE—Finally, towards the end of your comments, Mr Marshall, you referred to anumber of programs, for want of a better term, which I understood you to be contending the



Western Australia government used to assist indigenous juveniles often facing these problems.Are you able to provide any information you have on those to the committee?

Mr Marshall—Yes.

Senator PAYNE—Thank you.

CHAIR—There are actually 118 cases.

Mr Marshall—118, thank you.

Senator LUDWIG—You said that the section 401 review was conducted under thelegislation at the time so it was only tested in relation to whether the rate of home burglary hadincreased or not.

Mr Badham—No, the review was required to look at the effect of all of the amendments, sowe were looking at home burglary, the impact of aggravation on all burglaries and then at themandatory component as it related to home burglary.

Mr Marshall—And at the operation and effectiveness. A large part of the review was aboutquestioning the key players in the justice system—the judiciary, prosecutors, defence counsel,court personnel, et cetera—on how easy or difficult it was to actually operate and use thelegislation, in other words, the operation and effectiveness. That was the requirement of the act.

Senator LUDWIG—It was based, as I understand it, on the deterrent factor in the firstinstance, on the government’s reliance on the introduction of the mandatory sentencingprovision. Is that correct?

Mr Marshall—As has been pointed out in a number of reports on the three strikes—inparticular the AJC report commissioned by the Crime Research Centre, which I think isreferenced in a submission; you will be hearing later from Neil Morgan from the UWA aboutthis—one of the criticisms is that the rationale appears to have changed over the time since ithas been in place. That was essentially the reason the government and the Attorney-Generalwanted to put on the record and make clear what this government’s view was—remember, it is adifferent government—in relation to the rationale for the three strikes, and that is what I readout.

Senator LUDWIG—Yes, but I am trying to differentiate whether the 401 review was doneunder your government’s rationale or under the previous government’s legislation and undertheir view.

Mr Badham—The second reading speech which introduced the amendment bill related topurposes such as to:

(1) reflect the gravity of home invasion offences by creating a new offence of home burglary distinct from burglaryin any other place, with a more severe penalty;

(2) give effect to the Murray review’s recommendation that a higher maximum penalty should apply to the offenceof burglary committed in circumstances of aggravation; and,



(3) address the problem of recidivist home burglars by providing for the imposition of a mandatory minimumsentence where the offence forms part of a pattern of such offending behaviour.

It did also talk about the fear factor relating to what was then termed ‘home invasions’.

Senator LUDWIG—Is it fair to say, Mr Marshall, that there is a difference between thepurpose of the section 401 review and the reasons that you now rely on under a newgovernment?

Mr Marshall—Yes.

Senator LUDWIG—So you have not then tested by a review your reasons for maintaining amandatory sentencing regime?

Mr Marshall—As we mentioned at the beginning, that is a policy decision which I cannotcomment on. We have not been asked to review three strikes yet again in relation to the currentgovernment’s rationale.

Senator LUDWIG—Is it correct to say that the current government’s rationale has not beenreviewed in terms of the operation of the three-strikes legislation?

Mr Marshall—No, because it was only elucidated on 15 November when the report wastabled.

Senator LUDWIG—You also said that it played a small role—that is, it filtered and had asmall target. If it played only a small role in your overall process, should the mandatorysentencing bill be passed and become law? How would you change—or would you change—thediversionary programs, the practices that you now have, the resources that you put into crimeprevention?

Mr Marshall—As a general justice principle, our efforts really should be concentrated at thefront end, rather than the back end, of the justice system. Worldwide, that is what is happeningin justice. In other words, there is more emphasis on preventing particularly juveniles cominginto the system, or if they get into the system preventing them penetrating, going on into thesystem. That is a fundamental goal which we ascribe to.

Senator LUDWIG—If you did not have the three-strikes legislation, you would stillcontinue to tackle the systemic problem with the overrepresentation of Aborigines in yourjustice system in any event, wouldn’t you?

Mr Marshall—Absolutely, yes. I can, if you are interested, produce some quite interestingfigures on the representation. The overrepresentation in this state is quite a serious problem. I donot know whether people realise that on any one day six per cent of all Aboriginal adult malesare in prison and only 0.3 per cent of non-indigenous males are in prison. Six per cent of allAboriginal adult men are on community supervision orders. So 12 per cent of all adultAboriginal males are in some form of relationship with the Department of Justice. That is one ineight. That is a pretty horrific figure.



Senator LUDWIG—I know we are running out of time. You say that the four reasons orrationales for introducing mandatory sentencing legislation, or the three-strikes legislation, arethe high acceptance and bipartisan political support, the high rate of home burglary, thelegislation being well targeted and that mandatory sentencing is not necessarily mandatorysentencing, I suppose in shorthand. But you no longer talk about the rates of recidivism, thedeterrent factor, the removal of a person from the street or even issues of rehabilitation. Arethey no longer part of your rationale?

Mr Marshall—I will answer those separately. I think you have already explored thedeterrence factor, and the results of the review that Mr Badham has revealed I think answer thatone. In relation to recidivism, the problem we have in the state is that we do not have datasystems capable of producing really good recidivism information. Really good recidivismmeasures measure repeat conviction rates—in other words, after people leave jail on leave anorder, how soon or how frequently do they reappear in court and get convicted? We currentlyhave a recidivism measure, which is a measure accepted by COAG, which is ‘returned to prisonwithin two years’. But that in itself is not a particularly fine measure of recidivism. We areworking on that. There is a major project going on at the moment: ICMS, integrated courtsmanagement system, an integrated program with our prisoners database, our courts database andthe police database where we will hopefully, I understand, on a trial basis about midyear be ableto track people who have left prison into the courts. That is the reason why recidivism has notbeen used as a measure: because we do not have a fine enough measure or fine enough data.

Senator LUDWIG—So, to put it in context, you do not believe it reduces crime and you areunsure or not convinced that it deters crime. Is it expensive, then? What does it cost for both ajuvenile and an adult per day? You have given those figures previously. Can you update them?Perhaps you can take it on notice if you do not have them.

Mr Marshall—I understand that juvenile detention is about $500 a day. Adult detention isabout $180 a day. As I said, that involves 21 of the 250 juveniles detained. The question Isuppose we are not easily able to answer is whether those 21 who were sentenced under threestrikes and who got 12 months would have got less than 12 months had there not been threestrikes.

Senator LUDWIG—We know, because you have told us, that it has bipartisan politicalsupport, but can you point us to some hard information that it still has community support?

Mr Marshall—I cannot answer that one. That is one you need to direct to the Attorney-General.

Senator LUDWIG—We know that the incarceration of Aboriginal people, including womenand juveniles, has increased as a proportion during the period of the mandatory sentencing orthree-strikes regime. That is correct, isn’t it?

Mr Marshall—Can you clarify what you mean by the ‘proportion’?

Senator LUDWIG—I will ask the reverse: can you give me figures as to whether or not theproportion has increased in relation to Aboriginal adults, youths and women in the systembetween 1996 and 2002?



Mr Badham—Are you talking about a gross estimate, for example for all offences, or just forburglary offences?

Senator LUDWIG—You could split them up.

Mr Marshall—I can give you the answer for all offences. The proportion of Aboriginalindigenous juveniles in our detention centres has remained relatively constant over that periodat around the 60 per cent mark. It varies slightly year on year and in parts of the year because ofseasonal variation. I am pleased to be able to say that over about the last eight months theproportion of indigenous prisoners has actually reduced in the state from what has always beena fairly consistent 33 per cent on any one day to just on 30 per cent currently. It is not a majorimprovement; nevertheless, it is in the right direction.

Senator LUDWIG—Has that had anything to do with the three-strikes legislation, in yourview?

Mr Marshall—I think the answer is no, because the three-strikes legislation is not aimed at aparticular racial group.

Senator GREIG—Mr Marshall, in your presentation you drew a mental picture of the legalstructure that we are talking about this morning. You said, if I heard you correctly, it would bewrong in your view to remove one aspect of it—the mandatory sentencing aspect—because youwere talking about a holistic approach to the issues. If, in your view, it is wrong to remove oneaspect of the system, was it right to introduce that aspect in the first place? If the answer is notto remove that mandatory sentencing, was the answer to introduce it in terms of addressinghome burglaries, given that the statistics show that it has not resulted in that outcome?

Mr Marshall—I will qualify my answer: I was not saying that it is wrong; I was saying thatit will have little impact. If we want to make an impact on indigenous overrepresentation, weneed to intervene right across the system and that is what international research shows us. Thatis what we are trying to do. If you look at the justice system, extending from kids who arecautioned and have very little interaction with the police through to those who are detained orrepeat offenders—like the group we are talking about—clearly the government does not havethe resources to pour in right across the whole system. But the idea is that, with the resourcesthat we have, we target the whole system. As I said, the Aboriginal justice plan, particularly itspolicing group, is tackling issues related to policing of indigenous people; we have the crimeprevention programs—the Geraldton program I mentioned, the Aboriginal Cyclic OffendingProgram; we have the trial pilot to try and get more kids diverted to juvenile justice teams andwe have a whole range of projects under the umbrella of the Kimberley initiative, aimed at howwe can better supervise indigenous people.

Senator GREIG—I agree with you that a more holistic approach is better, and we heardmuch evidence on that in the previous, similar inquiry. One of the strong things I rememberfrom that was the argument from those in the field that removing young people, in particular,geographically and psychologically from their families was a big negative—and yet thislegislation seems to run counter to that in terms of detaining kids or young people away fromhome. Do you have evidence that indigenous youth, in particular, who are being convictedunder this sentencing regime come from particular geographic areas? Are they mostly regional



and remote or metropolitan? What, if anything, is the government doing to address the issue oftrying to locate those kids, once they have been convicted, as close as possible to their families?

Mr Marshall—The evidence that Mr Badham gave clearly shows that the majority ofindigenous kids affected by the three strikes are from regional and remote areas of the state. Asan example of some of the initiatives—it does not relate exactly to your question—in relation tobail, the government has developed some remote bail facilities at Banana Wells and BellSprings where kids, instead of having to come to our main remand detention centre in Perth, canactually be detained in communities and be managed by the communities.

In relation to those who have to come to Perth, where there is the only detention centre forconvicted juveniles, we have introduced at Banksia Hill, the main detention centre,videoconferencing links to all of our offices throughout the state—we have offices right throughto the north of the state—so parents can go to the office and have a videoconference with theirkids. On occasions the department brings parents to Perth to visit their kids but, when I was atBanksia Hill when they opened an extension a couple of months ago, they showed usvideoconferencing working. It is truly amazing to see how quickly these kids take up thetechnology, such that they were talking to the camera and screen where their parents were, inDerby or wherever, just as if they were right next door. It was quite an amazing sight. Those aresome of the initiatives being implemented to ameliorate the fact that there is just the onedetention centre.

Senator GREIG—You said that the cost to government, or to the taxpayer, is about $500 aday to care for a juvenile and $100 a day for an adult.

Mr Marshall—It is $180.

Senator GREIG—There is still a considerable discrepancy there. What is the key factor inthat?

Mr Marshall—That is literally the intensity in which support is provided to juveniles asopposed to adults, in the sense that most juveniles, if they have treatment needs—say, for sexoffending or violence or alcohol or drugs—generally have it on a one-to-one basis, whereasmost of the treatments that take place in the adult prisons are done on a group basis. Those aresome of the reasons. It is the intensity of the programs. The clear objective is that you havemore opportunity to change the way a juvenile will go than you have with an adult, so theemphasis is placed on turning juveniles around.

Senator GREIG—Mr Marshall, you have said a couple of times today that the statelegislation has bipartisan support. We have more than two parties represented in the stateparliament. It is true that, at the time this legislation was introduced and since, not all parties inthe parliament supported the legislation.

Mr Marshall—I did say ‘bipartisan’. I cannot comment too much, but certainly the two mainparties here are in agreement.

CHAIR—In relation to the issue of deterrence—I can understand why it is not being usednow as one of the reasons that this rather harsh legislation is in place—one of the aspects of



deterrence is the fear of getting caught. Does anybody know what the number of unresolvedhome burglaries is in this state?

Mr Marshall—I cannot answer number-wise; I can answer rate-wise. You are referring towhat the police refer to as ‘clear-up rates’, that is, the proportion of reported offences—in thiscase, burglaries—versus the number charges laid against the reports where people are identified.The rate in this state—and I do stand a little corrected—is about 12 per cent or 13 per cent.

CHAIR—So someone has an 88 per cent chance of not being caught if they break intoanother person’s house.

Mr Marshall—That is correct. I might also say that that figure for the offence of burglary isfairly consistent nationwide. I am guessing here—I have the figures back in the office—but theclear-up rate for burglary would be between 12 per cent and 18 per cent nationwide.

CHAIR—In terms of overall numbers—bearing in mind that the highest rate of homeburglary occurs in Western Australia—we would be the highest. We are also the only legislaturethat has mandatory sentencing for these offences on the books at the moment.

Mr Marshall—Correct.

CHAIR—That is even after the review. Why was the review so narrow?

Mr Badham—I guess it took a literal interpretation of the wording in the amendment act,and that was ‘operation’ and ‘effectiveness’.

CHAIR—The act was amended because of community concerns, in particular, about homeinvasions at the time but also about home burglary. That came from the community. On thisoccasion with the review, the community were not involved or not consulted at all. I put it toyou that the persons who were consulted during the review were the players in the field,including the Aboriginal legal service.

Mr Badham—That is correct.

CHAIR—Why was the community not invited to be part of the review—bearing in mind thatthis is and continues to be very controversial legislation?

Mr Badham—I accept the point that you make but, as I say, I think it relates to the strictnessof the way in which the terms of reference were read within the legislation itself.

CHAIR—The minister, in his submission to the committee, went into some detail about theselaws being in breach of various international conventions. The committee, in its previous life,has also made determinations on whether or not these laws are consistent with conventions. Theminister goes into some detail in his submission about the conventions, but one convention isnot addressed—the Convention on the Elimination of Racial Discrimination, the CERD. Wasthat examined? If not, bearing in mind the very high rate of incarceration of indigenous people,why was it not addressed?



Mr Marshall—As has been pointed out, although the legislation has a significant impact onindigenous people, it is not designed and has no provisions to separately apply to indigenouspeople. Some of the submissions have rather cynically raised the question that the offence ofburglary has been chosen because that is the offence which most Aboriginal people are involvedin, so therefore it is discriminatory. I would like to correct that. The reality is that mostAboriginal people are not jailed for burglary; burglary is actually the fifth most frequent reasonwhy Aboriginal people are jailed. If the state government were that cynical, they would havechosen the offence of assault if they wanted to particularly target indigenous people.

CHAIR—Have you addressed the CERD obligations?

Mr Marshall—I honestly do not think the CERD applies in the sense that the legislationdoes not specifically say that this applies to a particular racial group. The legislation is non-discriminatory.

Senator LUDWIG—What about the effect of the legislation? Do you still assert that that isnon-discriminatory?

Mr Marshall—No. I think we have more than adequately shown that its impact has verymuch negatively affected Aboriginal people, but again I repeat my view that it is a systemicproblem and has to be addressed systemically.

Senator LUDWIG—How does that reflect on your earlier answer when you said that to theletter of the provision the practical effect is that it might? Doesn’t that amount to the same? Itdoes in my view. I really have a lot of difficulty saying that it does not.

Mr Marshall—You have to be careful with your argument because the reality is that, as Ipointed out, there are negative impacts on indigenous people right throughout the system. Sothe question you would ask yourself is whether we should jail any indigenous people, becausefor normal offences—not for the three strikes for burglary—they are jailed at a rate vastlygreater than non-indigenous people are. In fact, should we arrest indigenous people at all,because they are arrested at a rate significantly greater than the rate at which non-indigenouspeople are arrested?

Senator LUDWIG—We could explore that some other time, but I would certainly like to askyou your reasons and why you are not addressing that as well. In relation to the state Aboriginaljustice plan you say, as I understand it, that there is a multi-agency approach to the perceivedproblem and you have a range of interventionist programs to address the problem. Yet you stillmaintain the three-strikes legislation. That does not form a component of that plan though, doesit?

Mr Marshall—It relates again to the picture of a system that I was trying to paint. If we canreduce the number of juveniles coming into the system, we are obviously going to reduce thenumber of juveniles who get detained down the track. So the target is really to start reducingoverrepresentation right across the board.



Senator LUDWIG—Do you say that the three-strikes legislation does that? The section 401review seems to suggest that it does not or that it has no impact, so how can it be a componentunder the argument you have just put to me?

Mr Marshall—It is not a component.

Senator LUDWIG—That is the point I was getting to.

Mr Marshall—Our emphasis, as I explained, is on the front end. It is on diverting kids andgetting them out of the system or, if they are in the system, dealing in different ways that do notlead them further into the system. I think the review carefully analyses that on the whole thesekids have monster records. If you look on the web site, there is one juvenile who has 180previous offences, 60 or 70 of which are for burglary. That is the sort of juvenile we have to tryto identify early and move out of the system.

CHAIR—With due respect, they said that in the case studies you supplied there are somevery bad offenders but that not everybody is.

Mr Marshall—It is true, and we identified in the review that there was a handful that met thesort of minimal or almost minimal requirements of the legislation.

CHAIR—Indeed, the review—this is in your list of case studies—has identified instanceswhere magistrates have said that they would rather be in a position to be able to hand out adifferent sentence other than a CRO or the 12-month mandatory detention.

Mr Marshall—Yes.

Mr Badham—Yes.

CHAIR—But magistrates’ hands were tied, in the third millennium—the 21st century.

Mr Badham—Yes.

Mr Marshall—You will also see from the case studies that there are a few cases in which thePresident of the Children’s Court has given a kid CROs on three or four occasions—CRO afterCRO—and the kid has almost immediately breached them. Eventually, if you read thetranscripts, she has thrown up her hands and said, ‘What can I do?’

Senator LUDWIG—You cannot contain them. Is that your answer?

Mr Marshall—That was your answer.

CHAIR—Why has the parliament such little confidence in the judiciary?

Mr Marshall—I cannot answer that one.



CHAIR—That is what it is coming back to. We have just come from the public hearings inthe Northern Territory. The laws have changed, and we are now dealing with the onlylegislature in Australia which has mandatory sentencing. Do we—that is, the parliament and therepresentatives of the people—have to tie the hands of the judiciary in the 21st century?

Mr Marshall—That was answered to some extent in the submission to the previous hearingin 1997, when the JCRO provision was used by the judge at the time. The attorney at the timemade a statement in parliament supporting the discretion of the judiciary and supporting the factthat it was being used wisely.

CHAIR—Yes, but is there no field for the handing down of sentencing between a CRO and a12-month sentence?

Mr Marshall—That is correct, but again you must not forget that this is a juvenile who hasalready been convicted of two previous home burglary offences. This is his third time. Also, donot forget that that offence carries, in this state, a maximum penalty of 18 years or, incircumstances of aggravation, 20 years. It is regarded in this state as a very serious offence.

Senator LUDWIG—How young is the youngest person whom you have detained for 12months under the three-strikes legislation? I thought the age was 11.

Mr Marshall—Yes. I can confirm that it is 11.

Mr Badham—According to my information, there is no detention for an 11-year-old; theystart at 12.

Mr Marshall—The 11-year-old on the list got a JCRO.

Senator LUDWIG—So it is 12.

Senator PAYNE—In the review was there no canvassing of changing the age at whichsection 401 would apply? Did the government contemplate increasing the age of juveniles towhom the section might apply? It is mentioned in a number of other submissions that that maybe one way to address some of the impact on very young indigenous juveniles.

Mr Badham—Yes. It certainly is a component of the comparison between these particularlaws and the laws that were in place in the Northern Territory. The simple answer is that age hasbeen dealt with as a variable like anything else. The information is there, and I guess that thatsort of decision could be made on the basis of that information, but I am not sure whether it hasbeen considered as such.

CHAIR—We have come to the end of this session. Thank you very much for coming thismorning. You knew that you were going to be in for some rigorous questioning, so thank youfor your cooperation in responding to the questions. You have taken a couple of matters onnotice and agreed to provide the committee with some more information. We are endeavouringto meet our reporting date in March, and we have to develop the report in the interim before wedeliberate upon its contents before presentation to the parliament, so we would appreciate your



providing that information earlier rather than later, to facilitate us in fulfilling our obligations tothe Senate.



[10.22 a.m.]

COLBUNG, Mr Glen, Deputy Chairperson, Aboriginal Justice Council of WesternAustralia

MORGAN, Mr Neil Andrew, Director of Studies, Crime Research Centre, University ofWestern Australia; and Representative, Aboriginal Justice Council of Western Australia

CHAIR—I welcome the witnesses from the Crime Research Centre of the University of WAand from the Western Australian Aboriginal Justice Council. The Crime Research Centre haslodged submission No. 23 with the committee. Do you wish to make any alterations oramendments to that submission?

Mr Colbung—No, I do not.

CHAIR—Submission No. 89, which is comprised of the report Mandatory sentencing inWestern Australia & the impact on Aboriginal youth, was prepared by the Western AustralianAboriginal Justice Council. Do you wish to make any comment on, or alteration to, that report?

Mr Morgan—No.

CHAIR—I invite you now to make a short opening statement or statements to the committee.At the conclusion of your remarks, we will invite members of the committee to addressquestions to you.

Mr Colbung—Thank you for allowing me, as the representative of the Aboriginal JusticeCouncil, and Mr Neil Morgan from the Crime Research Centre the opportunity to give evidenceat today’s hearing. As a Noongar man I welcome you to Noongar country. I understand thateveryone has received a copy of the report Mandatory sentencing in Western Australia & theimpact on Aboriginal youth, which was commissioned by the AJC and prepared by the CrimeResearch Centre. The AJC considered it necessary to commission this research, based on thediscriminatory nature of mandatory sentencing legislation and the adverse impact that it has onAboriginal youth. In this context, it is alarming to consider the extent of the research andevidence that was available to the government, both within Australia and internationally, whichclearly showed that mandatory sentencing legislation does in fact impact negatively onindigenous and minority groups.

Five years on, the statistics have proven the inevitable. Did the government of the day knowthe impact this legislation would have on Aboriginal youth? The irresistible conclusion the AJCdraws is a resounding ‘yes’. How could they not? Even now, faced with the evidence ofdisproportionate impact—81 per cent of cases in fact were Aboriginal youths—the governmentstill continues to stand by this legislation. It seems absurd that any government which iscommitted to reducing the overrepresentation of Aboriginal youth in the criminal justice systemwould continue to support such draconian legislation. The laws have had no impact on the ratesof home burglary. The legislation further disadvantages Aboriginal youth in country areas, dueto the lack of appropriate diversionary schemes, and therefore runs counter to the



recommendations of the Royal Commission into Aboriginal Deaths in Custody. It is argued thatit is the community’s attitude, the populist but ignorant view in the wider community, that issupporting the government’s stance that has entrenched Aboriginal disadvantage and inequalitywithin our society. Sadly, racism and discrimination have not gone away.

In order to fully appreciate why mandatory sentencing laws impact upon Aboriginal youth ata disproportionately higher rate than non-Aboriginal youths, oppressive policies, legislation andtheir consequences on Aboriginal families must be acknowledged. According to the statisticsand a number of government commissioned reports, there is an overwhelming indication that, asthe Sydney Morning Herald stated in 2000:

Indigenous Australian children are in an environment such as poverty, lack of employment for their parents, limitededucation etc. which makes their participation in criminal acts very difficult to escape from …

This supports the AJC’s argument that, yes indeed, with all the evidence available to them, thegovernment were acutely aware of the negative impact this legislation would have onAboriginal youth. Finally, the RCIADIC made 339 recommendations to address the appallingoverrepresentation of Aboriginal people at all levels of the justice system. Yet 10 years on,Aboriginal people are still 14 times more likely to be imprisoned than non-Aboriginal peopleare.

So, what does the government do, faced with this overwhelming evidence of entrencheddisadvantage and the continual negative impact that mandatory sentencing has on Aboriginalpeople? They defend it. They defend it because, sadly, that is what the majority of theirelectorate wants. In conclusion, I wish to express in the strongest terms that there is only onegenuinely acceptable option for Western Australian mandatory sentencing laws. They should berepealed, in view of their manifest faults and as a gesture of commitment to indigenousconcerns. The laws cannot be allowed to remain in their present form. Mr Neil Morgan will nowprovide a more detailed statement of the key issues and findings of the report.

CHAIR—Thank you, Mr Colbung.

Mr Morgan—Thank you for the invitation to be present this morning. As has emerged thismorning, evaluating the three-strikes laws has been somewhat like shadow-boxing. When theywere first introduced in 1996, the then Attorney-General stated that the laws were intended toact as a deterrent However, during the previous hearings of this committee some two years ago,the government spokesman claimed that, in fact, deterrence had never been the aim, and saidthat the laws were intended simply to indicate the seriousness of the offence. As some senatorspointed out at the time, this was a circular, self-fulfilling and self-serving prophecy. The lawshad achieved this purpose simply by virtue of their enactment.

Shortly after this committee previously reported in February 2000, the then governmentproduced a new rabbit from the hat, claiming this time that the laws aimed to turn around thelives of young offenders and to reduce recidivism. This of course did nothing to explain why thelaws applied to adults as well. Furthermore, the data which was said to support these claims wasfundamentally flawed. Significantly, the recent review by the Department of Justice—which Iwill call the DOJ review—makes no reference to this rationale and we were told this morningthat in fact they admit there is no adequate data to support any such argument.



What do we find now? We find that the claim now is that the laws only pick up people withvery serious repeat offending—and I noticed the Department of Justice representativesselectively focused on a number of cases in their presentation this morning. In other words, theaim seems to be some version of public protection. If the aim is public protection or deterrence,one must ask, as this committee did earlier this morning, what has been the effect of the laws onhome burglary rates? The DOJ review belatedly accepts that the laws have had no identifiableeffect on rates of home burglary. I stress we actually published data to this effect some two orthree years ago and this data clearly undermines any claim that the laws protect the public. It isalso of concern to us that in 2000, under direct questioning from members of this committee,the then government actually declined to reveal figures of which it must have been aware onhome burglary rates. Either it was choosing quite deliberately to be economical with the truth orit was simply unaware of the basic data.

In evaluating the laws it is necessary to understand judicial responses, because this is a matterupon which the Department of Justice has placed great emphasis. The Western AustraliaChildren’s Court has attempted to inject some flexibility into the three-strikes laws. As we heardthis morning, it has read in the power to impose a 12-month conditional release order in lieu ofimmediate custody. The government never of course intended the CRO to be used this way andinitially proposed a bill to overrule the court’s judgment. By early 2000 it was singing adifferent tune—and we have heard that tune very much this morning—the claim being that thefact that the judiciary uses its discretion when dealing with juveniles undermines arguments thatthe Western Australia legislation is in breach of UN conventions.

I would say first that it is utterly disingenuous to defend the laws by reference to the bits thatdid not work. More importantly, the court’s discretion is very limited—and I want to focus onthis briefly this morning. The conditional release order does not provide sufficient flexibility: allit does is give the Children’s Court a choice between a CRO for a minimum of 12 months and aminimum 12 months detention. This is too stark a choice. In some cases, a less severe optionthan a 12-month CRO might be appropriate; in other cases, a shorter period of detention mightbe appropriate.

Focusing on the CRO also glosses over the fact that most juveniles who appear to be third-strikers have, in practice, been remanded in custody prior to sentence— so they are serving timein custody anyway. Our research shows that this has been for an average of 30 days and, insome instances, two months or more. It is important to stress that this happens even where thecourt ultimately imposes a CRO. It has happened in some cases even where the person hasturned out not to be a third-striker at all—so they have been remanded in custody, it has turnedout that they are not a third-striker, and they are given some other disposition. This, I think,tends to give the lie to the claim that the CRO gives sufficient flexibility.

I also want to take issue with claims that the laws fairly target hard-core offenders, which wasstressed this morning. The first point to make is the obvious one: the Children’s Court hasalways, in its ordinary sentencing discretion, imposed tough sentences on serious hard-coreoffenders, irrespective of the three-strikes laws. It follows inexorably that the major impact ofthe laws is in the context of less serious offences or offenders with less entrenched criminalhistories. For example, our study revealed that only five per cent of cases involved any threatsof violence or actual violence to inhabitants of a home, despite the fact that the laws were saidto be about so-called home invasions.



When I read the Department of Justice case studies, the thing that struck me most were thetragic personal and social histories of the young people that were involved. Mandatory criminalresponses and scapegoating are not the ways to address what ultimately are, in many respects,welfare problems. The laws undoubtedly lead to gross injustices in sentencing. Doing justicemeans having the capacity to reflect differences between offenders and not to be forcingdifferent cases into one straitjacket. The three-strikes laws iron out these differences. Forexample, a minor opportunistic home burglary may now attract the same sentence as a far moreserious home burglary. We find offenders with lesser records receiving the same sentence asthose with far more entrenched records.

When I refer to the case studies in the Department of Justice review, I find it intriguing thatevery single offender who got detention got 12 months. They were not all the same types ofoffenders. I would draw your attention to two examples, and we can talk about them later if youwish. Case 17 involved a 17-year-old. He had 181 previous charges, 18 sentencing appearancesand 61 burglary charges. He got 12 months detention. Case 118 was a 15-year-old. He had onlyfive previous charges, four sentencing appearances and four burglary charges. That is grossinjustice in sentencing. Further problems arise in the relativities between different offence types.You might find a minor home burglary attracting a significantly longer sentence than a seriousphysical or indecent assault. I would also note that the Department of Justice has givenabsolutely no justification for the laws applying to adults—indeed, it is accepted that the lawsare largely irrelevant to adults.

One of our major concerns, of course, is that the three-strikes laws have a discriminatoryimpact upon young people, especially upon indigenous youth from country areas. I will list 10facets of concern. First, since the laws are largely irrelevant to adults, they inevitably impactalmost exclusively on children. Second, children as young as 10 or 11 are being caught by thelaws. The Northern Territory’s discredited laws only ever applied to people aged 15 and above.Third, by far, the greatest impact of the laws is on Aboriginal juveniles. The Department ofJustice has now accepted our earlier figures which show that around 80 per cent of thesejuveniles are Aboriginal. That means that four-fifths of the three-strikes cases are drawn fromless than four per cent of the state population, and they are drawn from less than one-third of thechildren appearing in the childrens court.

Fourth, the younger the offender, the worse the picture. If you look at the DOJ study, you findthat 90 per cent of those aged 15 and under are Aboriginal and 100 per cent of those aged 13and under are Aboriginal. Fifth, the picture is particularly bad in country areas. Sixth,Aboriginal juveniles are less likely to access diversionary options, such as cautioning andreferrals to juvenile justice teams. I note that that was actually conceded by the Department ofJustice this morning. Seventh, the 12-month minimum applies both to adults and juveniles. Itshould be an accepted principle that juveniles are dealt with less severely. Eighth, juveniles infact face longer in custody if they receive a 12-month sentence. An adult who receives a 12-month sentence may well be released on parole after four months. A juvenile will have to servesix months in custody.

Ninth, regarding conditions of incarceration, juveniles who are in detention will do their timein Perth, creating further family and cultural dislocation. I was astonished by the argument madeby the department this morning that video links can somehow replace personal contact. Adultsfrom regional areas are somewhat more likely to serve their sentences closer to home, but there



is a sting in the tail here too. Our Inspector of Custodial Services recently observed thatAboriginal prisoners in regional prisons in this state often serve their time in conditions which,in his words, ‘simply would not be tolerated if non-Aboriginal prisoners were the predominantprisoner group’. Tenth, regarding conditions on release, generally speaking juveniles face moreonerous conditions when they are released from custody than adults do.

When you look for explanations for this parlous state of affairs from the government youfind, as was said this morning, that they defend the laws against claims that they are raciallydiscriminatory. The argument is that they do not, on their face, target Aboriginal people.However, facial neutrality is simply not the issue. As our Inspector of Custodial Services hasrecently written, what he calls ‘structural racism’ is measured by outcomes, not by intentions.The previous state government purported to explain the figures on the basis that moreAboriginal juveniles are convicted of home burglary, the implication being that the figures arejust one of those things. But they cannot be dismissed as accidental. They are the results of twosets of conscious and deliberate types of decision making. The first is our parliament’s decisionto target offences in which indigenous youth are overrepresented and the second relates todecisions by the police and others about how cases are to be processed and about the use—ornon-use—of diversionary options.

This leads to a final theme, which is the redistribution of discretion. Schemes which eliminateor reduce judicial discretion ultimately increase the importance of pre-trial decisions taken bythe police and prosecuting authorities. These executive agencies have a great deal of controlover the decision to prosecute and the choice of charge. In mandatory sentencing regimes, wesee that these decisions have a major bearing on the person’s criminal record and whether theybecome third-strikers. These decisions are far less transparent and accountable than those madeby courts.

I have not addressed the question of Australia’s international obligations. We have nothing toadd to the discussion in the previous report from this committee. Suffice it to say that webelieve that there is ample justification for overriding federal legislation. In conclusion, I quotefrom the state government’s own multiculturalism strategy:

We need to work towards a society free from racism and prejudice. This … requires continuous commitment fromGovernment to take a leadership role … Policies ... [should be] built around the principles of social justice, equity andaccess.

We could not agree more. Sadly, the three-strikes laws tell a wholly different story.

Senator GREIG—Do you think that the existence of the mandatory sentencing regime lawsin Western Australia breaches or offends the recommendations of the royal commission intoblack deaths in custody?

Mr Colbung—I do. I think it is discriminatory. The recommendations are clearly there forthe lessening of Aboriginal people coming into contact with the prison systems. Basically whatthis legislation does is increase that, in direct contrast to the recommendations.

Senator GREIG—We heard evidence from our previous inquiry into a similar but slightlydifferent bill, particularly in the Northern Territory and Darwin, that for some juveniles—notall; there was mention, I think, of indigenous youth from Groote Eylandt and Bathurst Island—accessing the mandatory sentencing regime became a kind of rite of passage for some of them



ccessing the mandatory sentencing regime became a kind of rite of passage for some of themand, rather than preventing them from committing crimes, it was actually drawing some of theminto the system. Do you have any anecdotal evidence that that may also be happening inWestern Australia?

Mr Morgan—I do not think we have any anecdotal evidence to that effect and, personally, Ihave some concerns about this notion that somehow indigenous youth want a rite of passagethat involves incarceration. As a criminologist, I have some problems with that idea. There mayindeed be evidence in the Northern Territory, but I am not aware of it in Western Australia.

Senator GREIG—We did hear evidence to that effect, and it was presented, I believe, bypeople who were opposed to the legislation.

Mr Morgan—In terms of the royal commission, one of the problems is that, although thegovernment spokesman indicated this morning that things were starting to pick up, the reality inWestern Australia is that the prison population rocketed in the years around 1997 to 1999. Thenumbers of young people in detention have also increased. Clearly, the more people you have inprison, the more problems you have with self-harm and, ultimately—potentially—suicide.

Senator GREIG—Your submission argues that few Aboriginal juveniles access diversionaryprograms. Can you articulate a bit more as to why you think that is happening?

Mr Morgan—I should say that we recognise that it is not just a few that access programs.Our point is that they appear to access them less readily than non-Aboriginal juveniles. Ourevidence for that, for example, goes back to the time when cautioning and juvenile justice teamswere introduced, and the data we have shows that non-Aboriginal children were allowed accessto those programs much more readily than indigenous children were.

The reasons for that are quite complex. One of the problems we have in a big state is theability to provide services across the whole state. We feel that that is one reason why such alarge proportion of the three-strikes offenders are from the remote parts of the region. In ourstudy—I forget the precise figure—almost half our figures, which were Aboriginal LegalService figures, were from the Kimberley and Pilbara—a staggering proportion. There must besome problem with access, and we feel that it is partly a problem of availability of programs. Itis also probably a reflection, in part, of policing practices.

Senator GREIG—Your point about video technology being no substitute for immediatefamily interaction is a good one. To what extent do you think that the removal of young peoplefrom their family environment, and detaining them largely in metropolitan areas, but notalways, is a factor perhaps in recidivism or other problems that you may find within indigenouscommunities?

Mr Colbung—I spent quite a bit of time when I was president of the ALS consulting withcommunities with regard to customary law and how that could benefit the community. One ofthe major concerns in those communities was the fact that their kids were being brought toPerth and other detention centres. In the words of the people, they were ‘learning more tricksdown there’ on how to steal cars and all the other things that go with it. They want their kids tobe dealt with in their own community in the healing camps set up by the elders. I think that



would answer the question. They have major concerns about their kids being brought to Perthbecause of all the other tricks and bad habits they pick up from people from other areas. Theyare looking to set up constructive systems where they can look after their own people in theirown communities.

Senator GREIG—Do Aboriginal elders have a good dialogue or liaison with the stategovernment in talking about changing some of the sentencing structures to shift them moretowards indigenous and customary law and about working with elders within the respectframework that that engenders, rather than white man’s imposition of an answer?

Mr Colbung—As acting chairman of the Aboriginal Justice Council, I sit on seniorcommittees with the director-general of the ministry and other senior people. The point I keepmaking to these people is that we have to put structures in place where Aboriginal people candeal with their own because they are the people in the best position to know what is required.We have to put the structure back in their community to enable them to look after their ownpeople. That has been taken on board. There is a place out from Derby where the ministry nowis looking at providing funds to assist with the healing camp being set up. Aboriginal youths canbe taken there and basically looked after by their own people. That is the first cab off the rank,but it is a step in the right direction. It basically comes down to the fact that we havecontinuously pushed to the government and to the ministry for that to happen.

Senator GREIG—We have heard several times this morning from defenders of thelegislation that it has popular support, not that I accept that as being a reasonable response. Butfor a long time, we heard the same thing about the Northern Territory. There was very strongsupport for its laws, yet we saw that, over time, as the community became better educated aboutwhat was happening and what the results were, that support shifted to the point where thoselaws have now been removed. Do you feel that, if the Western Australian community betterunderstood the state laws here and the results of them, we might see a shift? And, in the contextof that, do you detect that the government and perhaps some departmental officials are reluctantto release the information which shows that mandatory sentencing is not having the effect that itis claimed to have?

Mr Morgan—I would find it very difficult to pass comment on what the community thinks,but it is very much linked with your second observation that the more information is releasedthen perhaps the more educated the response will be. It is interesting, looking at the two reportsthat you are discussing this morning—the Department of Justice review and the AboriginalJustice Council review—because I felt, as the author of one of them, that we were almosttalking about different things. We appear to be coming at it from such different angles. But Icannot answer what the community’s response would be.

Senator GREIG—Fair enough.

Mr Morgan—I think that, unfortunately, successive governments are tapping what is, really,perceived to be an easy target.

Senator GREIG—You made mention in your presentation of those who argue that the lawsare not racially discriminatory on the face of it but are, in effect, somehow separate; youreferred to somebody or some convention which had a different interpretation of that. How does



that relate, if at all, to the CERD, which Senator McKiernan mentioned earlier. Would CERDaccept the argument presented by departmental officials earlier this morning?

Mr Morgan—I am not an expert on the international obligations, but my feeling is thatCERD would probably not accept that. The body to which I referred is an independent bodycalled the Inspector of Custodial Services. The inspector himself is Professor Richard Harding.He recently released a report about the Eastern Goldfields Regional Prison which described themost appalling, substandard conditions: filthy conditions, cockroaches and unhygienic facilities.All of that information is available through the web site of the inspector. The department has, itseems, responded to that in a positive way and, having seen the first draft of his report, suddenlyfound that it could afford new mattresses.

Senator GREIG—Is that a Western Australian or an Australian organisation?

Mr Morgan—It is a Western Australian organisation and I can provide you with the detailsto access that.

Senator GREIG—Thank you.

Mr Morgan—Senator, in regard to that, the other useful point Professor Harding makes is inhis annual report, which is also accessible through the same site.

CHAIR—It was tabled on the same day as the report on the Kalgoorlie prison. I haveaccessed both.

Senator PAYNE—Mr Morgan, I am interested in the parts of your report that particularly goto the use of discretion as a method of, shall we say, minimising the number of juvenilesengaged at the three-strike point. Can you expand on that a little more for us please?

Mr Morgan—Are you talking about diverting people from—

Senator PAYNE—I really want you to clarify that. In your submission, under the heading‘redistribution of discretion’ you talk about mounting evidence from within Australia ofmechanisms by which, in reality, this effect can be avoided or negotiated. I am interested in howyou see that playing out in Western Australia.

Mr Morgan—The point we are trying to make is that when you restrict what judges andmagistrates can do, the decisions that are taken earlier in the system become more and moreimportant to the ultimate outcome. You see in the magistrates’ remarks in the Department ofJustice case studies that they are quite frequently saying, ‘We have no choice in this. Our handsare tied.’ One way to avoid that is if prosecutors and others decide to take alternative forms ofaction. This is where our concern is, in part, about the underuse of diversion for Aboriginal kidscompared with non-Aboriginal kids. Those choices very much lie within the hands of the policein Western Australia.

The police are essentially the gatekeepers of the juvenile justice system. Therefore, theirdecisions about how a case is to be processed will determine, in many instances, whether aperson acquires the status of being a three-strikes offender. As I say, those are decisions that are



ultimately less accountable and transparent than decisions that are taken in court. We are simplymaking an observation that these things happen. Mr Colbung used another example, in responseto a question earlier, when he said that the communities sometimes want to deal with thesethings in their way. The difficulty with the mandatory laws is that, once the police have steppedin and charged and it goes through the process, you remove that option.

Senator PAYNE—Did you want to add to that, Mr Colbung?

Mr Colbung—As I said earlier, the communities that I went to throughout the north-west—the Pilbara and the Kimberley—are all saying, ‘We want to deal with our own kids. We wantthem to learn the values that we were brought up under.’ That is the message. Like I said, I amgetting through now to the ministry at the senior level.

Senator PAYNE—One issue which was raised with us in the Northern Territory by thepolice, who obviously are now involved in administering a different system following the repealof the laws in October last year, was the use of case management and the mentoring ofindividuals. There are continuing issues, which we examined in discussion with representativesof the Northern Territory police, about who does that and how it is done. Is it your observationthat this is not a common practice in Western Australia, and perhaps that it may be anopportunity to improve the situation?

Mr Morgan—Going back to what I said earlier, we have diversionary schemes in operation.I would not pretend that they never or only rarely apply to indigenous children, but clearly thereis scope for improvement. The biggest improvement is going to come when we actuallyempower indigenous people instead of imposing on them. Unfortunately, my colleague HarryBlagg could not be here this morning. He wrote part of the report with us. One of our concernsis that the conferencing system that operates here very often does not involve indigenousorganisations and groups, yet they very often deal with a large proportion of indigenouschildren.

Senator PAYNE—At the end of the report you also referred to the question of age, which Iendeavoured to canvass with Mr Badham earlier, and suggested that the effect of the laws onindigenous juveniles might be ameliorated if the age were changed. You have selected the ageof 16 or 15. Do you have any further comment on that?

Mr Morgan—We prefaced that by saying that the only palatable option is repeal—

Senator PAYNE—I understand that.

Mr Morgan—but we were trying to hold out some sort of alternative option if the stategovernment were prepared to move down that route. One can reduce the pernicious effects ofthese laws in three ways, one of which is age. I cannot accept that any laws of this type shouldever apply to anybody under the age of 16. One might make 12 months or some other period apresumptive starting point rather than a mandatory penalty. What I mean by that is that you say,‘It is that period unless special circumstances exist,’ so you send a general message to thecourts, but you say, ‘We accept that there will be particular cases where something else isappropriate.’ In any event, there should be a lower starting point. Twelve months is far too high



for any juvenile. It offends the international obligations, as I indicated in my presentation, to saythat the 12-month period applies both to juveniles and adults.

Senator LUDWIG—I am curious about the role and function of the Aboriginal JusticeCouncil and its relationship with the Aboriginal Legal Service in Western Australia. Could yougive a short indication of how it fits together?

Mr Colbung—The Aboriginal Justice Council was set up, under recommendation No. 2 ofthe Royal Commission into Aboriginal Deaths in Custody, as the body to monitor therecommendations and how they are implemented. Basically, the AJC is an independent body. Itis independent of the Western Australia Ministry of Justice, and in that capacity we haveflexibility to be critical of all government departments if they are not implementing therecommendations. We work closely with the Aboriginal Legal Service, but we are independent.

Senator LUDWIG—Does your funding come from the state government?

Mr Colbung—Yes, it comes through the state government.

CHAIR—A question to you, Mr Colbung, in the first instance: were you aware that thereview of the legislation had taken place?

Mr Colbung—This particular review?

CHAIR—Yes.

Mr Colbung—By the Senate committee?

CHAIR—No, the review by the government of section 401—the three-strike legislation inthis state.

Mr Colbung—Are you talking about the review they did, the formal report?

CHAIR—Yes, of which this document I am holding now is a part.

Mr Colbung—We were aware of it, yes.

CHAIR—Were you invited to participate in that review?

Mr Colbung—No.

CHAIR—Did you seek to participate?

Mr Colbung—No.

CHAIR—Why not?

Mr Colbung—Because we were currently carrying out our own review anyway.



CHAIR—Are you concerned that an organisation such as yours, which has publiclyexpressed grave concerns about the impact of legislation on indigenous people, was notformally invited to participate in the review of this legislation?

Mr Colbung—If we had been invited we certainly would have put our strong concern aboutthe mandatory sentencing legislation. We would have made it absolutely clear that we certainlyoppose it and that we always have opposed it.

CHAIR—Mr Morgan, I ask similar questions of you: were you aware of the review? Wereyou invited to participate? Did you seek to participate even if you were not invited to?

Mr Morgan—We were very well aware of the review. We were not asked to participate andwe did not seek to participate. The main reason for that was that my views on the matter werequite well known to the government already because I had published academic papers that theyhad in their possession with respect to this matter. As Glen said, we were doing the report forthe Aboriginal Justice Council, so we did not want any conflict of interest.

CHAIR—Are you implying in that response that you have just given me that there was adeliberate decision taken by government not to consult you because your views were alreadyknown?

Mr Morgan—I do not know what I am implying. I am making a statement of what they hadbefore them and what they knew.

CHAIR—I am not so sure that the views that you have previously espoused on the subjectmatter have been reflected in the content of the review in any shape or form. Would I be correctin that assumption?

Mr Morgan—I think you would be fairly correct in that. The one thing we do agree on isthat the laws did not have a deterrent effect. On a lot of information we traverse a fair amount ofthe same ground, in fact.

CHAIR—But you come at it from completely different directions.

Mr Morgan—I suppose we adopted what I would call a much more analytical and criticalapproach. Theirs was a rather more factual document.

CHAIR—I actually disputed the factual content of the document when the representatives ofthe Department of Justice were in front of us. I thought it was a very selective use of facts whichI believe should be currently available to the reviewers of that legislation. It seemed to me that areview that was presented in November 2001 should have been able to have more up-to-dateinformation on which to base its conclusions. Effectively, it is a review of 18 months of thelegislation rather than a four-year review.

Mr Morgan—I would share your views on that.

CHAIR—So you withdraw your comment about it being factual?



Mr Morgan—Maybe ‘factual’ is the wrong term. They present the information in a factualway. As you put it, it may be to some extent out of date, but it is presented in a factual ratherthan in an evaluative or critical manner.

CHAIR—Do you think the document of the review itself suffers because it has not adopted acritical analysis of the legislation?

Mr Morgan—I, myself, would have thought that a document of that type should havepresented a number of options to the government in terms of what Senator Payne just asked meabout—what the options might be in terms of the scope of legislation. It does not do any ofthose things. It also makes no reference whatsoever, as far as I could tell, to any national orinternational research on mandatory sentencing.

CHAIR—That is another weakness of the document. Mr Morgan, at the last dot point on thesecond page of the executive summary of your document, you make a comment which I foundsomewhat extraordinary. In the second line you say:

The first is the Parliament’s decision to target offences in which it is well-known that Aboriginal youth are over-represented.

You then reference that to section 3.6, but I do not believe that the explanation of that statementis contained in what is written in section 3.6.

Mr Morgan—So, really, you want a fuller explanation of what I am saying. Is that the gist ofthe question, or are you concerned about the cross-referencing?

CHAIR—I would like a fuller explanation, and perhaps details, of how Aboriginal youth areoverrepresented, why they are the main offenders in the area of home burglary.

Mr Morgan—I do not know the precise data. I am not sure that I would say they are themain offenders but, if you take them as a proportion of the population, you find that they areoverrepresented per head of population in certain types of offences. The point we were makingin the review was that parliament has choices open to it. In view of community concern, it choseto introduce three-strikes laws for home burglars. It has never chosen to introduce three-strikeslaws for some of our more notorious corporate criminals or for white-collar crime and so on. Itis a choice that they take, and the choice was to respond to what they perceived as publicconcern.

What we are really saying there is that we do not think that it is good enough for governmentsto say, ‘The fact that 80 per cent of the kids who are caught are Aboriginal is just one of thosethings.’ It is not a good enough response. It is ‘one of those things’ because parliament took achoice to target certain types of behaviour and, as we say in our report, then there are choicesabout how those cases are processed.

CHAIR—Could you explain to the committee why Aboriginal people seem to be the onesthat are apprehended on a more frequent basis than non-indigenous juveniles?

Mr Morgan—Are we talking generally here, or for home burglary?



CHAIR—We are talking generally.

Mr Morgan—Partly it is to do with identifiability. There are an awful lot of issues that thisstate needs to address which are really concerned with police-Aboriginal relationships. I wouldbe very interested to see whether the police royal commission in fact touches upon these issuesin due course. Street policing is the point of immediate contact between many young indigenouspeople and the police. We have laws in this state that allow the police to request a name for noparticularly good reason. We need to look at the street policing laws. We also need to look at thequestion of the rights of people once they have been detained by the police.

Western Australia has no codified system of rights for either juveniles or adults. We need tolook very seriously at that and improve our processes at that stage. There is no requirement herein legislation, for example, that a responsible adult be present during police questioning. It issupposed to be a requirement that an adult is contacted when a juvenile is apprehended—andthat does not even happen in all cases—but there is no requirement that they be there during theinterview process. In terms of why Aboriginal youth are more frequently picked up, a lot has todo with visibility and street policing.

CHAIR—But take that visibility a step further, with your emphasis on the fact that almosthalf of the offenders, or the persons who have been affected by the three-strikes legislation,come from the Kimberley or the Pilbara regions. How many of them would come from the maintownships in that region, and how many would come from isolated communities? I ask thisquestion because of the information given to us during the course of the last inquiry that, whenan offence is committed in a smaller community, it is generally known by the community in avery short period of time who the offenders are. That is not necessarily the case in largertownships like Port Hedland, Derby, Broome, Kununurra or, indeed, the Perth metropolitanarea.

Mr Morgan—I would have to go back to our research on that and do a check, but I wouldsay a significant number are from Broome, Port Hedland and Karratha and not from remotecommunities.

CHAIR—You also differentiated in your analysis or drew reference to minor homeinvasions, minor burglary. I wonder how you define that, bearing in mind the communityconcerns that were abounding at the time this legislation came into being and the ongoingcommunity concerns about burglary. My constituents get burgled and they complain that theoffenders are not even caught. They are not worried about the third-strike legislation becausethe offenders are just not apprehended and there does not seem to be any follow-up by thepolice in inquiries. Once the initial visit has happened, that is the end of it as far as the policeare concerned.

Mr Morgan—I think we probably most commonly talk about ‘relatively minor’ burglary,because we accept that any invasion of a home is relatively serious. But there are some that arereally very much at the lower end of the scale. Some of the ones that are revealed in our casestudies involve, for instance, young people walking in through an open door, maybe grabbing acan of coke and walking out. I do not approve of that behaviour but I would have to say it isactually at the lower end of the scale of things. It is certainly very different from the type ofactivities that the government was talking about when it introduced the legislation, which was



about violent home invasions. The point I made in my verbal presentation is that we found thatonly around five per cent of cases involved any violence or threats of violence to occupants ofpremises. In other words, a lot of what has been picked up is actually not of the home invasiontype of burglary.

CHAIR—You say you talk about ‘relatively minor’. In the two instances that are identifiedhere on pages 35 and 36 the word ‘relative’ does not appear, but I will not labour that particularpoint. I will draw the fact, though, that where the third strike does come into being it is for thethird offence and it would appear from that, because it is the third offence, that the offender hasnot learnt from the two previous appearances before the magistrate. So in that sense, whether itis relatively minor or still a serious offence, it is the third occasion, is it not?

Mr Morgan—There is no doubt about that. I still think that, whether it is the third, fifth or12th occasion, the court should have options open to it.

CHAIR—Another issue that has been addressed by the committee and was of grave concernin the Northern Territory was the fact of a person appearing before a magistrate, or a judge inthe case of the Children’s Court, who has some form of disability and may not be adequatelyable to represent themselves before the court or understand the process they are going through. Iam not so sure that that issue of disability, be it a physical or a mental disability, is addressed inyour analysis.

Mr Morgan—No, we do not address it directly. What does appear in some of the case studiesand also in the Department of Justice case studies is a very consistent theme of a lot ofsubstance abusers. We know that some of them will be suffering from some degree ofintellectual impairment as a result of sniffing or solvent abuse. No, we have not made a specificstudy of that, but when you look through the Department of Justice case studies—they producea page or so on each person—you will see that virtually every single one of them has got asubstance abuse problem, very difficult family circumstances and in a lot of instances you seereferences to ADD, having left school at 12 and so on. So we appear to be dealing in manyinstances with quite damaged young people.

CHAIR—I accept the point on that. We have had some disability advocates give evidence tothe committee. You are not aware of anything particularly where a disability has beenidentified?

Mr Morgan—I do not think the disability agencies have got particularly involved in thisissue.

CHAIR—Mr Colbung, do you have anything to add on that series of questions aboutdisabilities?

Mr Colbung—A concern I have raised in a number of other forums is that more and more ofour kids are being involved with substance abuse and as a result of that are not in full control oftheir mental awareness and what they are doing. I guess that would lead to a lot of the problemsthey get themselves into.



I guess it also comes down to a health problem. If they are being affected by substance abuseand if it is affecting their brain, as was pointed out to me by the director of health in theministry, when does it cross over from a criminal offence to a health problem? It seems to be acombination of both. This legislation probably takes away the options for somebody who isbadly affected by substance abuse and is doing these activities—burglary and whatever else—while they are under these effects. If they get caught, how do you deal with that? That is theconcern I have.

CHAIR—Has the matter of language and understanding the English language been ofconcern in the sentencing, particularly of juveniles, under the three-strikes legislation?

Mr Colbung—It is hard enough for a juvenile, particularly from the remote areas, to fullyunderstand what is going on in court when he gets there if he has full control of his brain, but ifhe is affected by substance abuse as well it is going to be so much harder. It is just so hard to getthrough to these young people the implications of what they are there for.

CHAIR—Are you aware of any individuals who have been sentenced to imprisonment underthe three-strikes legislation who needed interpreters in the court when the court wasadjudicating on the case and later passing sentence?

Mr Colbung—No, I am personally not aware of that.

Mr Morgan—I am personally not aware of that either. It is probably a question bestaddressed to the Aboriginal Legal Service.

CHAIR—Thank you. It probably will be addressed to them. They might actually take it onnotice at this juncture in the hearing.

Mr Morgan—We have been relatively fortunate in that the ALS has been able to pick up, asfar as I understand it, virtually all the cases of indigenous juveniles caught by the law, so wehave not had a problem with people being poorly represented.

Senator PAYNE—Mr Morgan, this morning Mr Marshall indicated that, based on theDepartment of Justice’s figures, we were talking about 21 young people for the year 2000-01.Do you agree with their figures?

Mr Morgan—I really do not have the up-to-date information to do so.

Senator PAYNE—Do you have any reason to disagree with their figures?

Mr Morgan—I have no reason to disagree with their figures. All I would say is that, whenthis Senate committee sat last time, it was very unclear exactly how they had collated theirnumbers. Since that time, they have probably been a bit more consistent about that.

Senator PAYNE—Certainly Mr Marshall provided the committee this morning with a verbalbreakdown, which obviously we can examine in the Hansard. It came to 21, as I understood it,for 2000-01. Without looking at the cases for each of those individuals, it was my impression,



from what Mr Marshall was saying, that it was his view—I do not wish to verbal him;obviously, we can both have recourse to the Hansard—that this was about very seriousoffenders. Do the results of the study that you have prepared take issue with an assessment ofthat sort?

Mr Morgan—I am not sure exactly who those 21 cases were, but certainly we would takeissue, as I did in my verbal presentation, with the idea that these laws only pick up hard-coreoffenders.

Senator PAYNE—Would you have thought it was very hard to follow up 21 individuals in astate the size of Western Australia and provide them with support or whatever legal or socialassistance is necessary to break a cycle such as the one we are talking about?

Mr Morgan—It certainly is very difficult, and one needs not to be responding to it on anindividual basis but to have structures in place to start with that may be utilised in the event of aproblem.

Senator PAYNE—But dealing with 21 young offenders like that should not be beyond thewit of an elected state government, should it, Mr Morgan?

Mr Morgan—It certainly should not be.


CHAIR—The reason we, as a Senate committee, are here is to examine the bill that is beforethe Commonwealth parliament. I do not think you have made any mention in your submissiontoday about the constitutional difficulties that may arise from the passage of that bill in theparliament. The earlier bill that the committee looked at was passed in the Senate but has notprogressed beyond the House of Representatives. If this bill were to pass both houses of theCommonwealth parliament, would you foresee any constitutional difficulties with the bill?

Mr Morgan—I probably have not given that sufficient thought. One would predict that thestate government would think about a constitutional challenge, but I have not fully thoughtthrough what the precise basis of that would be. Our view is that there is certainly enough, interms of the breach of international obligations, to give this legislation the authority it needs.

CHAIR—You made some mention of that in your article ‘Mandatory sentencing inAustralia—where have we been and where are we going?’ in the Criminal Law Journal, volume24, published sometime in 2000. You referred to the Kable decision in the High Court.

Mr Morgan—The basic point I was making was that there is probably nothing inherentlyunconstitutional in mandatory sentences—for example, we have mandatory penalties formurder, and there are certain forms of mandatory disqualification for certain driving offences. Ido not think that you can run an argument that those sorts of schemes are in themselvesunconstitutional. In that article, I was trying to tease out the point that it depends on preciselywhat structure is adopted as to whether it is unconstitutional or not. In my view, where aparliament enacts specific laws, such as the three-strikes laws, they are not unconstitutional.What would be unconstitutional, in my view, is a system where, for example, as was proposed



in Western Australia, the executive starts drawing up a so-called matrix of penalties. I do notknow whether the committee is aware that this was proposed in Western Australia.

Senator PAYNE—It has been discussed in other states.

Mr Morgan—There are issues about the structure of that, because you may in fact be givinga judicial decision to the executive body, and that creates problems. Where parliament is simplyenacting a law that says ‘you must impose a penalty of X amount’—or a minimum of X—forcertain offences, that, in my view, is not unconstitutional. The High Court has, in fact, declinedto address that issue in detail in a case called Wynbyne and Marshall.

CHAIR—Would you expect, from what you have heard in this long-standing debate, that theWestern Australian government would indeed institute a constitutional challenge if thislegislation was passed following the efforts of the Commonwealth government to override thelaws of the state, bearing in mind where the constitutional responsibilities lie in the criminaljustice arena?

Mr Morgan—They might well do. I think there is less of a chance with the current stategovernment than there was with the previous state government. I feel very strongly that theprevious state government would almost certainly have gone for a constitutional challenge. Ifind it very hard to read the position of the current government.

CHAIR—We Western Australians are very protective of our state rights.

Mr Morgan—Of course.

CHAIR—People’s rights are different.

Mr Morgan—You, like me, have a very Western Australian accent!

CHAIR—You could be held in contempt of the committee for a remark like that!

Senator PAYNE—Only if the rest of the committee agreed with you, Senator McKiernan.You have not got the numbers.

CHAIR—I have not got the numbers; I will let that one pass to the keeper.

Senator GREIG—I want to explore the area of customary law a bit more with Mr Colbung. Iam interested in this area, but I am very ignorant of it, and in working more with indigenousresponses to indigenous people. My instinct is that there would be broad community support forthat, perhaps more so over time than for the current mandatory sentencing regime. Can you tellme a little about what that proposes and how it addresses the issues? We heard some evidence—I think it was in Darwin—where customary responses to more serious crimes were things likeleg-spearing, which would probably have no community support in white communities. I amwondering how you might balance those issues in terms of a customary response by indigenouspeople.



Mr Colbung—I would see that as a way of probably keeping more Aboriginal people out ofprisons, because what happens in communities is regardless of what the white man’s law is. If acrime is committed in communities it will be dealt with according to customary law. Ourargument has been, right through, when I was president of the ALS and also in the AJC, whyshould Aboriginal people be punished twice for the same offence? What we have done in theALS, and also in the Aboriginal Justice Council, was lobby the former state Attorney-GeneralPeter Foss, who supported our arguments and referred it to the Law Reform Commission to seehow customary law could be incorporated into the white man’s system. That is where it is at thepresent time. That is going ahead and there will be consultation in communities and with otherpeople to see how it can be incorporated into the system.

We see it this way: if it is incorporated into the system, the magistrates and the judges out inthe communities should say, ‘Okay, this person has been dealt with according to his law and thepeople in his community are satisfied with that.’ So instead of giving him three years or fiveyears or whatever, which he would normally get under the white man’s law, maybe that can bereduced to a probationary sentence back in his own community—say, doing it out in the healingcamps. That, I see, would have a major effect in reducing the overall number of Aboriginalpeople coming down into the prison system, and that could also apply to the youth.

Senator GREIG—How would you balance that, though, in a situation where an indigenousyouth had broken into the home of a white person—so that the crime was against a whiteWestern Australian—but an indigenous community had argued that the punishment or theresponse to that should be within an indigenous community? There is a conflict between the twocultures. In what way, if it is possible, can you work with those together to the satisfaction ofboth systems, or is that something which is at too early a stage?

Mr Colbung—During our consultation period, when we were talking to the communitiesabout customary law, the point we were making to them is that in your particular community itis up to you to say how your law works and how you will apply it. It is not up to anyone else. Indifferent parts of the state, depending on the strength of the customary law in those areas, itcould be more strict or it could be weaker. For example, in some of the towns full customarylaw would not apply but in remote communities it would apply. It would be up to thecommunity, when this consultation process with the law reform committee takes place, to sitdown with that law reform committee and spell out quite clearly how they see customary lawapplying in their community.

CHAIR—In the attachment to the review and the appendices that go with it, the governmentgave case histories of 118 instances, some of which, from a community perspective, make prettyhorrifying reading. I am aware, because you have said so in evidence before, that there areinstances contained in the case histories that we have here where a 12-month detention sentencewould not be appropriate. I do also make the point that we have got limited information and weare not getting all sides of the argument. But some of them are pretty horrific instances. I willnot go through them and read the details of what the charges were and what the instances of thecharges and the previous convictions were. Are the hands of the courts tied in merely handingout 12-month sentences for these offences? It seems to me that there might be instances where alonger period of incarceration might be appropriate because there are obviously some realproblems with the individuals who are before the court, because they are recidivists: they arerepeat offenders, and many times over.



Mr Morgan—Yes. I found it surprising, looking at these, that there was no differentiation—that everybody seemed to be coming in at 12 months for detention. It may be a question that onewould need to ask the Department of Justice as to how they put their cases together. I thoughtthat there had been some instances of third-strike juveniles receiving 18 months, but they do notappear within this review. I am not saying they are wrong; I am simply saying that, like you, Iwas a little surprised that they all ended up at the 12-month level. I would have to read thereport in full to find out whether that was because they simply selected those who got 12months as having been caught by the laws on the basis that people who got, say, two years werenot really caught by the laws because they would have got two years anyway. I think that wouldbe better directed to them. Victoria Williams, the person who did the section on our case studiesin our report, did mention that the ALS have had cases involving 18 months.

CHAIR—One of the things that concerned me when reading this was that there were anumber of remarks recorded in the case histories where the magistrate or judge had said theywould prefer not to have their hands tied—to be able to do something different from a JCRO ora 12-month detention order. There is no mention of that in the review. It called, from the bench,for alternatives.

Mr Morgan—Are you saying there was no mention of that in the Department of Justice’sreview?

CHAIR—These are contained within the case studies. It is recorded that the magistrates orthe judges at the time made those remarks and they were obviously calling for some alternativesto untie their hands, but that is not reflected in the review.

Mr Morgan—I had not picked that up. I thought there had been some passing remarks to thateffect in the text of the report, but you have obviously read it more carefully than I have.

CHAIR—I probably will have to read it a third time. I have no further questions regardingthe Western Australian regime. If there is nothing else on Western Australia from mycolleagues, I would like to direct some remarks to Mr Morgan about the Northern Territoryregime, on which we took evidence the other day. Obviously, we are all aware that the newgovernment in the Northern Territory has repealed the laws that were in place in the NorthernTerritory. I do not want to address that. Following the last inquiry by the Senate Legal andConstitutional References Committee, there was instituted a different regime of diversionaryprograms within the Northern Territory. We heard conflicting evidence on the effectiveness ofthe new diversionary programs regime at our hearings in Darwin on Wednesday. From yourperspective, Mr Morgan, at a distance, do you have any comment on the diversionary programsthat are now operating in the Northern Territory?

Mr Morgan—I have no direct knowledge of them. I do know that there was some concern atone indigenous community in the Territory that I visited some eight or nine months ago. Theywere questioning where all the money had gone. I think the sum of $5 million had been givenby the federal government to the Territory government. Frankly, when one looks at the size ofthe Territory and the sorts of problems that are being faced in these communities, $5 millionwas not going to go very far. It was slightly ironic that I was there with a group of judges for aconference at the very expensive resort at Ayers Rock. The judges’ salaries alone—of those whowere there—would have been more than $5 million, just to put that figure into perspective. I do



not think it is enough for the problems that the Territory faces. The first thing one sees in manyof these communities is that there are no young men there.

CHAIR—Was the conference particularly on mandatory sentencing?

Mr Morgan—It was a judges’ conference, and one of the topics was mandatory sentencing.

CHAIR—Was it funded by Commonwealth moneys for diversionary programs?

Mr Morgan—No, it was not funded from there. It was entirely separately funded. The point Iam making is that, although $5 million sounds like a lot, it does not go very far.

CHAIR—I am not going to get into an argument with you, but during the last hearing weheard how very little amounts of money were being made to go a very long way in a variety ofcommunities. The evidence that we took in Alice Springs, particularly, left an indelible mark onme. Some of my colleagues are nodding in agreement. It is not just the amount of money—$20million has been allocated to the program over a four-year period—but we heard conflictingremarks about the effectiveness of the program. Some were positive, and others were critical ofthe diversionary programs. In your submission you referred to the Northern Territory mandatorydetention regime, now defunct, and I thought it would be appropriate that I address questions toyou. Have you anything further to say to the committee?

Mr Morgan—I would express our disagreement with one item that I picked up on during theDepartment of Justice presentation. The government’s position seems to be that one needs toaddress the system as a whole. Of course we agree with that, but we also take the view that youhave to deal with each and every point of discriminatory impact. We know that Aboriginaloverrepresentation reflects the system as a whole and that it does not reflect one big hit ofdiscrimination at any given point. It is an accumulating effect, as the Department of Justice said.To me, the logic of that is that you must knock out every little bit that contributes to thatcumulative effect and not think that you can address the problem as a whole.

CHAIR—Our reference is quite narrow in its definition; as distinct from the last inquiry, itdeals with one bill before the Commonwealth parliament dealing with one subject, mandatorydetention, as it applies to both juveniles and adults. On behalf of the committee I have thepleasure of thanking you for your attendance today and for the immeasurable assistance youhave given the committee in our deliberations on the very vexatious question of mandatorydetention. It brings me no joy, as a Western Australian parliamentarian and representative of thepeople of Western Australia, that this is now the only state in the Commonwealth which has thisregime in place. I had hoped it would be different. Without pre-empting the report that is goingto be delivered by the committee, I hope that the state is encouraged to see that their laws arenot as effective as they have sought to make the community believe. Thank you very much.



[11.46 a.m.]

DUFFIELD, Mr James Albert, Research and IT Officer, Deaths in Custody WatchCommittee (WA) Inc.

CHAIR—We have received a request from Mr Jim Duffield from the Deaths in CustodyWatch Committee (WA) Inc. to make a submission to the committee. I had told Mr Duffieldearlier that the committee would endeavour to facilitate this if we could. We are waiting forwitnesses to attend, and the committee has agreed to give Mr Duffield 10 minutes to make thatsubmission.

Mr Duffield—The Deaths in Custody Watch Committee (WA) Inc. was formed in 1993. It ismanaged by 15 trustees, nine of whom are Aboriginal people from Western Australiancommunities. Thank you for giving me a few brief moments; I only want to raise a couple ofissues as a matter of priority within those moments. One is the impact of mandatory sentencingand the addressing of any diversionary tactics that may be undertaken, which is clearly part ofthe recommendations from the Royal Commission into Aboriginal Deaths in Custody. Anexamination of the recommendations shows that, of the juveniles who are approached under thediversionary program to attempt to remediate some of these impacts, only 15 per cent of thosewho are accessed by the program are indigenous Australians, and 85 per cent of those who arediverted are non-indigenous Australians, which is contrary to the proportion of people whoactually hit that event. It is of concern to us that there seems to be a misdirection of effort that isnot reasonably proportional to the communities to be served by the judicial system and by itsofficers. That has been the subject of media releases put out by us. Effort needs to directed sothat the kids who are at the sharp end get the right proportion of expenditure both of effort andany moneys associated with the program.

Further to that key issue, I have to comment on something I heard from the department thismorning when they were talking about the ages of some of the people who are subject to thismandatory legislation. From the perspective of a historian, I was immediately thrown back tothe Western Australian Hansard of 1886, when the debate was about at what age Aboriginalchildren could be apprenticed. It was decided, according to Hansard in 1886, that an Aboriginecould be apprenticed at the age of 10, whilst a non-Aboriginal person could be apprenticed atthe age of 16. We are talking about a whole-of-community issue, but with a specific focus towhich we have a particular obligation. There has been almost 120 years of continuing debatewith little application to the totality of the outcome.

One of the other things that is of concern to us is addressed in a report which we presented tothe United Nations in November 2000 and which is available on the Web and has beendistributed. Once they are within the system, there is a question, I believe—I am not qualified inlaw at all—across all jurisdictions of Australia regarding prisoners’ rights. It would appear thatthis issue has been addressed throughout the world in most Western jurisdictions, and yet inAustralia we appear not to have, whether it be state or Commonwealth based, any rights forthese prisoners.



Once these young people are imprisoned, there is a question of how they may or may not bemanaged and how the system may or may not impact upon them. That is of concern to us in theDeaths in Custody Watch Committee because of outcomes leading to self-harm and, ultimately,deaths in custody in the worst case. We believe that there is an issue within mandatorysentencing, across Australia but particularly in Western Australia, because the individual goesinto jail, into a facility or a system, and there are largely no specified rights for that individual,regardless of their age, such as what their rights as a citizen of Australia may be and how theymay or may not be restricted by that incarceration. We think this is very important material thatneeds to be addressed in the main. I note that the committee is restricting itself to mandatorysentencing—

CHAIR—Actually, we are not doing that; it has been done for us by the Senate.

Mr Duffield—but I believe that the numbers involved are horrifying. We proposed to theUnited Nations when we submitted our report that the incarceration rates for indigenous peoplein Australia were the highest in the world and were worse than occurred under Joe Stalin andthe gulags or in South Africa during the period of apartheid. That was our claim, being able tofind no evidence to the contrary, and the United Nations accepted our claim that the numbersare quite horrific. Take as a benchmark the Victorian rate of incarceration, in general: it is 80 in100,000 of their population, which more or less meets European best practice across WesternEurope. When you come into Western Australia, you find the average rate of incarceration forthe people is about 220 per 100,000; that is unless you are an indigenous woman, for whom therate is 560 per 100,000, or an indigenous man, for whom the rate is 5,600 per 100,000. Takingpeople out of their community—mums and dads—has to have an impact upon the youth of thatcommunity, especially when you consider the rates that I have just mentioned. It is horrific toconsider the fact that young mothers in this state can drive without a licence and end up in jail,leaving the family with no mother.

CHAIR—I do not want to interrupt you, but we do have limited terms of reference and thematters that you are now canvassing are, in my opinion, beyond those terms of reference. In thatsense, we will not be able to reflect in our report on the evidence you are giving us. In regard tomandatory sentencing—and it is a particular bill that is before the committee—were you awareof the review the state government was conducting into section 401 of the Criminal Code?

Mr Duffield—No, we were not.

CHAIR—You were not invited to participate? You did not seek to participate?

Mr Duffield—We were not invited to participate at all. Sometimes we are invited by thedepartment to participate in events and reviews; other times we are not. We just live with that;that is part of the reality for us. We say quite unashamedly that we are a political organisation,and we cannot work for whomever may be on the hill. We clearly have an obligation in ourconstitution to address the 339 recommendations of the royal commission and to keepgovernments honest about the implementation of those 339 recommendations.

CHAIR—In regard to mandatory sentencing and the review of section 401, have you seen acopy of the review?



Mr Duffield—No, we have not. We have not had the opportunity to review it.

CHAIR—The review was presented to the parliament in November last year.

Mr Duffield—Yes.

CHAIR—Why have you not seen it?

Mr Duffield—In part it is a time and space issue. There are 1½ of us; that is the totality ofthe operating group of the committee.

CHAIR—That is half more than I have; there is only one of me.

Mr Duffield—It is the old snapping crocodiles argument: much of our time is taken up withvisiting inmates.

CHAIR—I appreciate that, but it seems to me that this is a very important review. It receivedquite a deal of publicity at the time of its presentation. I would have thought an organisationsuch as yours, which is intimately affected by the content of the review and indeed by thelegislation itself, would have cast its mind to it. There being no further questions from mycolleagues, thank you very much for assisting the committee in its deliberations. As I said, youwere canvassing some matters that were beyond the ambit of the committee’s inquiry;nonetheless, I thank you for your attendance and the assistance that you have given thecommittee.

Mr Duffield—Thank you very much, Chair.



[11.56 a.m.]

MURPHY, Mr James Maxwell, Regional Council Chairperson, Wongatha RegionalCouncil, Aboriginal and Torres Strait Islander Commission

RAYE, Ms Donella, Policy Adviser, Law and Justice Portfolio Committee, Aboriginal andTorres Strait Islander Commission

WYNNE, Mr Eric, Commissioner, Aboriginal and Torres Strait Islander Commission

CHAIR—I welcome representatives from the Aboriginal and Torres Strait IslanderCommission State Policy Centre, Western Australia. I thank you for your forbearance infacilitating Mr Duffield giving evidence to the committee earlier. Thank you very much for that.I understand that there are some colleagues who will be joining you during the course of yourpresentation.

Ms Raye—That is correct.

CHAIR—We will facilitate their attendance when they arrive. The ATSIC State PolicyCentre has lodged submission No. 47 with committee. Are there any amendments or alterationsthat you wish to make to that submission?

Ms Raye—I believe there are two submissions that we will be addressing today. One was putin by our national legal and prevention unit in Canberra, and there was another one that we didjointly with the ALSWA. We are going to speak mainly on the one from the Aboriginal LegalService and answer the questions that we can answer. Where we cannot answer, we will referthe question to the Aboriginal Legal Service. Our law and justice unit will also be providingsupplementary information to you at a later date, I believe.

CHAIR—Thank you very much. We have received a number of submissions from thevarious bodies of ATSIC throughout the nation, including the Northern Territory where we tookevidence on Wednesday of this week. If you are referring to a particular submission, it wouldhelp if you could identify that submission at the time that you make reference to it. You will notbe required to answer questions that seek opinions on matters of policy, reasons for policydecisions or advice you may have tendered in the formulation of policy. If necessary, thecommittee will allow you reasonable opportunity to refer questions to superior officers or to theminister. I invite you to make a short opening statement. At the conclusion of your remarks, Iwill invite members of the committee to address questions to you.

Ms Raye—Commissioner Wynne will make a brief opening statement.

Mr Wynne—Thank you for giving us the opportunity to address this inquiry. ATSIC hasalready provided the Senate inquiry with written submissions on mandatory sentencing inWestern Australia. We also provided a joint submission with the Aboriginal Legal Service ofWestern Australia (Inc.). We understand that our national law and justice prevention unit will be



providing supplementary information to your committee; we will therefore keep our openingstatement brief.

ATSIC supports the Human Rights (Mandatory Sentencing for Property Offences) Bill 2000.The Western Australian state council strongly believes that mandatory sentencing legislation inWestern Australia is, first, ineffective, because it has not decreased home burglary rates or therate of recidivism. Secondly, it is not cost effective or of economic benefit to the WAgovernment, because it costs approximately $70,000 to house each offender, as well asincreased court costs and the use of resources which could well be used elsewhere. Thirdly, itincreases the rate of incarceration of indigenous people, particularly indigenous children, inWestern Australia, often thousands of kilometres away from their families and communities,and the only detention facilities available to children are in Perth.

Fourthly, it unnecessarily removes discretion from the judiciary when sentencing offenders.Fifthly, it is inconsistent with the fundamental principles of sentencing and the RoyalCommission into Aboriginal Deaths in Custody recommendations, especially recommendationNo. 92, which states that imprisonment should only be a sanction of last resort. Sixthly, it isinconsistent with Australia’s international human rights obligations and the principles containedin the Convention on the Rights of the Child, the Convention on Civil and Political Rights, andthe Convention on the Elimination of All Forms of Racial Discrimination. Seventhly, it raisesconcerns within the United Nations Committee on the Elimination of Racial Discrimination thatit appears to target offences that are committed disproportionately by indigenous Australians,leading to a racially discriminatory impact on indigenous people’s rates of incarceration.Eighthly, it has very little support from academics, professional bodies within the legalprofession, and human rights bodies and organisations. Ninthly, it should not be used as a bluntinstrument for inadequate social policies.

ATSIC notes that the new Northern Territory government recently repealed the NorthernTerritory’s mandatory sentencing legislation. This leaves Western Australia as the only state orterritory in Australia with mandatory sentencing laws. We also note the critical comments madeby the United Nations on the mandatory sentencing legislation and practices in WesternAustralia. The ATSIC Western Australian state council opposes mandatory sentencing andbelieves that it is a bad policy backed up by bad legislation. We believe that the WesternAustralian government should repeal the legislation as a matter of urgency. ATSIC thereforesupports the Human Rights (Mandatory Sentencing for Property Offences) Bill 2000. Weunderstand that your committee was interested in local case studies or local scenarios relating tomandatory sentencing. Should you wish, we have a couple of local cases which we are happy todiscuss with you later in the session. Thank you for giving us the opportunity.

Mr Murphy—I am the regional council chairperson for the Wongatha region in ATSICKalgoorlie. I am here as part of the ATSIC submission as a representative of the portfoliocommittee on law and justice for the state of WA.

CHAIR—Thank you very much for that and for the opening statement. Do you haveanything to say at this juncture, Ms Raye?

Ms Raye—Not at this point.



CHAIR—Were the ATSIC state unit aware of the review of section 401 of the CriminalCode?

Ms Raye—No, we were not.

Senator PAYNE—Can you explain or indicate to the committee what level of involvement,if any, ATSIC as an organisation in Western Australia has with government in terms of puttingtogether diversionary programs or on-the-ground support and assistance for juveniles who mayfind themselves involved in the justice system?

Ms Raye—We have just recently signed a statement of agreement with the WesternAustralian government. It would probably be better if my manager, Mick Gooda, spoke aboutthat. I would like to refer that question to him in terms of the spirit of that agreement and howwe actually work with the Western Australian government to address that particular issue.

Senator PAYNE—In general terms, I draw your attention to the fact that one of the issues thecommittee considered in its hearing in the Northern Territory earlier this week, and is obviouslyconsidering in this hearing as well, is the impact and effect of using things like diversionaryprograms in juvenile justice teams to assist young people in regional and remote areas,hopefully before they get into the hard end, if you like, of the justice system. The governmenthas indicated to us in its submissions, and there is a reference in its first submission, that theyare working with the police to develop proposals for implementing the recommendations fromthe review of the Young Offenders Act 1994. That will include juvenile justice teams covering awider range of offences, Aboriginal elders and police wardens operating juvenile justice teamsin remote communities, the introduction of conditional cautioning, and so on, and provision forjuvenile detainees to have access to a similar range of early release programs as adult offenders.Are they the sorts of initiatives which your organisation would be looking at to address some ofthe problems you have identified?

Mr Murphy—From what I understand, it would be those plus more. Most of those are thingsthat apply once they are incarcerated—the latter half of those that you were explaining anyway.It is my understanding that the juvenile justice teams are being utilised now.

Senator PAYNE—Do you think they are adequate or could they be enhanced?

Mr Murphy—There need to be additional programs, because they are in place now and theyare not working.

Senator PAYNE—Commissioner, do you have anything to add?

Mr Wynne—No. I agree with him.

Senator LUDWIG—Why do you say they are not working?

Mr Murphy—From speaking with ALS—I guess they could clarify it further—it is myunderstanding that the people who have appeared under the three-strikes legislation have hadthe opportunity of intervention by a juvenile justice team.



Senator PAYNE—And that has not prevented them from continuing down that road?

Mr Murphy—I am not sure if that is so in every case, but in the broad sense it has been thecase. There are other ways of dealing with youth. We will be focussing on working with thegovernment to develop community-based programs and opportunities for the community towork with these youths rather than detaining them in some form of detention.

Ms Raye—While we are talking about diversion, I have sighted some of the concerns thatwere raised in Central Australia. Given the lack of infrastructure within the community, I thinkthat limits our ability to deal with it at the community level. There should be more focus onprevention.

Senator PAYNE—Can you give the committee some idea of the impact on young peoplewhen they are dislocated from their community and brought to Perth for detention, if that is thecase, or for a hearing in the Children’s Court? I understand that the Children’s Court only sits inPerth, is that correct?

Ms Raye—That is right. We believe the alienation is actually twofold. Firstly, it alienatesthem from their community and their family and, secondly, it has an impact on the culture. Itimpacts on the culture because we believe that quite a few of these children come from regionalareas and, in some instances, English is their second, third or fourth language. So they arealienated from the community and alienated from the culture itself. Given that some of themmay not necessarily be that conversant with European ways, the cultural component is anadditional factor.

Senator PAYNE—If English is the third or fourth language of the defendant in a particularmatter, does the court system in Western Australia adequately support those people withinterpreter services?

Ms Raye—The ALS would be the best ones to answer that question, if it can be directed tothem.

Senator PAYNE—I think I am almost on three strikes here! I keep having my questions sentthrough the covers.

Mr Murphy—I understood it would be a joint submission.

Senator PAYNE—Yes. We are seeing the ALS witnesses later in the proceedings. On thatbasis, I will cede the ground to Senator Ludwig who may have better luck than me.

Senator LUDWIG—I was just looking at some of the statistics and I am trying to get anunderstanding of how you view them when you look at the fact that mandatory sentencing perse or the three-strikes legislation accounts for something in the order of seven per cent of thejuvenile detention sentences in WA. The remainder must be still of concern to you.?

Ms Raye—Yes, it is.



Senator LUDWIG—Are you working with the government on strategies to overcome theproblems of the detention and the like?

Ms Raye—As I pointed out, we have just recently signed a statement of agreement with thegovernment and, as a consequence of that, we met with the Attorney-General yesterday tooutline some of our concerns in relation to mandatory sentencing. We are prepared to addressthe issues of offending and high offending with the government, but it makes it very difficult forus to do that given that mandatory sentencing is frustrating the situation and increasing the rateof incarceration.

Senator LUDWIG—Does it become a threshold issue to you when you then sit down withthe government? If it accounts for seven per cent, is it of symbolic importance or is it the effectof the legislation itself? If it were 50 per cent or 60 per cent, I might see the point of what youare saying. As it is only seven per cent, how does that stop you from sitting down with thegovernment to address the balance?

Ms Raye—I guess it doesn’t.

Mr Murphy—As I understand it, working on the preventative measures beforehand wouldalso affect the other crimes that are being committed. It is not just about locking them upbecause they have been involved in home burglaries. If we developed those programs andmechanisms beforehand, before incarcerating them, it would flow on to the other charges thatthe other youth are in prison for.

Senator LUDWIG—Have you got any statistics or any anecdotal evidence on the victims ofthe home burglaries? We have concentrated on the persons themselves, but one of the reasonsthe government used to justify the introduction of mandatory sentencing was that it hadbipartisan political support and implicit in that was that it had community support, as Iunderstand the submission, although they did not seem to elaborate on that. But the boldstatement seems to remain that they believe that they had community support. How are thevictims dealt with? In regional and remote communities where some of the offences occur, is itAboriginal communities that are raising the issue? Do you have any information on the type ofvictim and the complaints that are made?

Ms Raye—At this point, I am sorry, we do not. The ALS might be in a better position toanswer that question.

Senator LUDWIG—You mentioned international conventions, particularly that on the rightsof the child, in relation to arbitrary detention. As I understand it, you say that mandatorysentencing equates to that provision in CROC. Is that right?

Ms Raye—That is right.

Senator LUDWIG—Perhaps you could tell me more about that in your view? Is it that it isnot a last resort mechanism or is it in relation to mandatory detention—notwithstanding thecommunity release orders, which seems to suggest that there is a slight choice there with thejudiciary? How do you say that CROC is offended?



Ms Raye—In terms of proportionality to the offence, I think the sentences that some of thejuveniles are receiving would actually be far greater than they would have received if we did nothave the mandatory sentencing legislation in place. The two options are the 12-monthconditional release order and the 12 months detention. We are also talking here about the factthat some of the children getting caught up in this, as a consequence of them being on analleged third strike, are being detained in Perth. Consequent to that, even if they are sentenced,the time they have already spent in detention is not taken into consideration. Let us look at theexample of a child aged 10 who, under the mandatory sentencing legislation, is released on a12-month conditional release order. The ability of that child to understand the consequences ofthe conditions of that release order may be limited. If the child has taken money, as aconsequence of being hungry, 12 months is a long time to remain hungry before they offendagain.

Senator LUDWIG—Do you believe there should be more discretion with the magistrate inissuing conditional release orders or the lengths of those orders?

Ms Raye—Sorry?

Senator LUDWIG—You have talked about conditional release orders and that they are for12 months. Do you believe that, as an alternative, a lesser period might be warranted; in otherwords, there should be more discretion with the judiciary to grant a conditional release order?Or do you find those offensive, as well?

Ms Raye—I think there should be options for the courts. I think, as a consequence of puttingmandatory sentencing in place, discretion has been taken away from the courts. We believe thatthat discretion should be with the courts and that that they should be able to take intoconsideration the mitigating factors. If the legislation is taking away the ability of the courts toprovide sentences that are much more appropriate for children in these sorts of circumstances,then we are opposed to that.

CHAIR—The addendums to the review include 118 case histories that detail the impact ofthe court orders and the sentences handed down. Have you examined that?

Ms Raye—I have had a look at quite a few that have been provided by the ALS but I havenot read through all of them.

CHAIR—I am not talking about the ones provided by the ALS; I am talking about thegovernment review of section 401 which contains some 118 case histories where a mandatorydetention sentence or a CRO was handed down.

Ms Raye—I have not read through all of them. No.

CHAIR—Bearing in mind that, on average, the individuals who are instanced in these casehistories have committed an average of 50 offences, what alternative sentence would have beenappropriate?

Ms Raye—I think that question should be directed to the ALS. They would be more familiarwith all of those cases.



CHAIR—ATSIC has a great concern on the issue of mandatory sentencing. What work, ifany, has ATSIC done on the issue of mandatory sentencing here in Western Australia, given thatit is the last legislature in Australia that has in place a regime of mandatory sentencing forproperty offences? A number of questions have been addressed to you so far—and you are themain Aboriginal representative organisation in this state—and on a number of occasions thosequestions have been referred off to ALS. What work are you doing on this issue, which is ofconcern to your organisation?

Ms Raye—ATSIC is doing a number of things in relation to diversion and prevention. We areonly a supplementary funding agency and, as a consequence, we think there are some agenciesthat should be taking more responsibility for this issue. As pointed out with our legal andprevention unit, we have various programs that we do fund. But, given the resources we have,we are very limited and our hands are tied in terms of what we can provide in this area. I thinksome of the questions could be asked of the Aboriginal policy unit within the Ministry ofJustice, in terms of what they are doing, given their role within the department.

CHAIR—It is somebody else’s problem—is that what you are saying?

Ms Raye—No, we are not saying it is somebody else’s problem—we are more than happy towork—we are saying that we are only there to provide assistance. To some degree a lot ofadvice will come from ATSIC about how to deal with these issues but, because it is thegovernment’s area of responsibility, I think that ultimately a lot more assistance can be given bythe state government to resolving some of these issues.

Senator PAYNE—In many ways, though, Ms Raye, we are also seeking advice from ATSICto enable us to do our job well as a committee. You mentioned to Senator McKiernan thatATSIC is working in the areas of diversion and prevention which, to me, on another rereadingof your submission, are not mentioned in any detail. It may be of some assistance to thecommittee to have that information.

Ms Raye—It is not in the submission provided by the ALS but we have provided asubmission—

Senator PAYNE—But this is a joint submission of the ALS and the Aboriginal and TorresStrait Islander Commission (State Policy Centre WA), which I understand you are allrepresentatives of.

Ms Raye—That is correct.

Senator PAYNE—So are you also signatories to this submission?

Ms Raye—Yes, we are.

Senator PAYNE—In your comments just then, you mentioned diversion and prevention andthe considerable work, as I think you implied, that ATSIC was doing in that regard. I know wewould be very interested to hear about that.

Ms Raye—We can provide you with supplementary information if you like.



CHAIR—Are you not in a position to provide that now?

Ms Raye—Not at this point in time, no. Our legal and prevention unit has submittedinformation to the inquiry and that was done separately from the policy unit here in WesternAustralia. We would like to submit further supplementary information and we can do that inthe—

CHAIR—I must say I am a little bit disappointed by this. It is not as if you have beenpressed for time in regard to this inquiry. We had originally intended to come to WesternAustralia as early as August or September of last year. We tried again in October, prior to theCommonwealth election, and we are here in January. I am disappointed that that information isnot ready at your fingertips, bearing in mind that WA is the last legislature where this regime isin place and that there has been a major review of the legislation. I cannot do other thanexpress—and I think I would be doing so on behalf of the committee—our disappointment thatthe information we are seeking at this time from a peak organisation like ATSIC at a state levelis not forthcoming.

Mr Wynne—With the law and justice portfolio funding that we give regional councils, theylook at doing their own diversionary and prevention programs. When we look at youth issues,for instance, we try to steer our youth into employment and education. We look at leadership aswell, in regards to the law and justice funding. We have started to work in partnership withDEST, and we are seeking out how we can form partnerships with other state organisations,because ATSIC in the past has funded programs by itself. We fund the Aboriginal Legal Serviceby ourselves. We have some domestic violence programs. We are heading down the track wherewe are tending to lean towards partnerships with other state organisations that want the sameoutcomes.

CHAIR—Notwithstanding that, we are working within very narrow terms of reference on amatter which is of grave concern to the community and indeed to the Aboriginal community.That is why I made the remarks that I made.

Senator PAYNE—The committee has also made the effort to visit both Darwin and WesternAustralia for the purposes of collecting evidence in this regard. I note that parliamentarycommittees are often criticised for sitting in Canberra and trying to absorb information by somebizarre form of osmosis. We have chosen not to do that and have chosen to make the effort tospend a great deal of time with witnesses in this particular area. I think the information that weare seeking is entirely reasonable.

CHAIR—I had intruded over Senator Ludwig’s questions.

Senator PAYNE—That means I did, too. My apologies, Senator Ludwig.

CHAIR—If I have broken the train of thought in that, I apologise, Senator Ludwig.

Senator LUDWIG—I accept your and Senator Payne’s apologies without question. I think Ido it to her on occasions. We seem to have already traversed the area I was getting to. What doyou do in relation to the issue? You say mandatory sentencing, three-strike legislation, isimportant to you. You say that you wish it to be expunged from the legislation. You say that it is



bad for a number of reasons: it offends international conventions. What have you done about itin the last 12 months? I do not want a complete dissertation but perhaps a summary. If it is notyour role, then tell me whose role it is.

Ms Raye—We have a national legal and prevention unit that operates out of Sydney. I canobtain further information and provide it to the committee. At this point in time, we funddiversionary programs. We do fund prevention programs. There are a number of communityinitiatives which I believe are currently being funded that are still in their embryonic forms. Iwould need to clarify with the manager of our national prevention unit whether any reviewshave been done and how effective the programs have been.

Senator LUDWIG—Bearing in mind that we have a very tight reporting timetable, I am notafter a complete snapshot, but a summary would be interesting. The other matter is the reviewof section 401 of the legislation that was conducted by the department. It was implicit in thelegislation that there was going to be a review. Correct me if I am wrong: you did not make anysubmission to the review and you were not asked to make a submission to the review. Did youseek to make a submission at some point or to ask the department, given that it was in thelegislation, or should I direct that comment to the other mob?

Ms Raye—Certainly ATSIC was never involved in the review. Whether the ALS wereinvolved in that review, I am uncertain. That is a question that they would be able to answer. Wealso believe that, in relation to some of these diversionary programs, these issues were actuallyraised with the state government at great length and discussions had been held with them. Weare more than happy to discuss this with the ministry and with the government. Given thatmandatory sentencing is ineffective and that it is not effecting its goal, perhaps it would bebetter to look at abolishing mandatory sentencing and to start from the beginning—to look atthe causes and, as a consequence of the causes, come up with more effective resolutions to theoffending in the first instance.

Senator LUDWIG—But you agreed with me earlier that the mere existence of the three-strikes legislation does not prevent you from doing that in any event.

Ms Raye—No, it does not. It just makes our job a little more difficult given that we have towork around mandatory sentencing. It is creating issues for us that we would prefer not to haveto deal with.

Senator LUDWIG—What issues would they be?

Ms Raye—There are all sorts of issues. Firstly, it is creating a situation where we are havingto focus more on diversion. Access to diversion for Aboriginal children appears to be an issue,given some of the statistical data that has come out of the Crime Research Centre in relation tocautioning and cautioning of Aboriginal youth.

We also believe that the legislation itself assumes that, when Aboriginal offenders comebefore the courts, we are all equal and that certain circumstances and the circumstances of theoffender should not be taken into consideration. We believe that that is greatly disadvantagingAboriginal offenders. If we were to do away with the legislation, we believe that we would be



better able to address the socioeconomic conditions and the marginalisation of Aboriginalpeople much more effectively.

Senator LUDWIG—I did not really want to explore this, but the socioeconomic conditionsare not tied to the legislation; socioeconomic conditions exist. As a consequence of those thelegislation acts harshly on some individuals. So the socioeconomic conditions can be addressedirrespective of the three strikes legislation, can’t they?

Ms Raye—Yes.

Senator LUDWIG—I could not quite follow what you were saying.

Ms Raye—As a consequence of coming to the courts and the courts not being able toexercise their discretion and take into consideration mitigating factors, it disadvantagesAboriginal offenders because it assumes that, as a consequence, we all have exactly the samecircumstances.

Senator LUDWIG—You have said that. I understand that.

Ms Raye—What we are trying to do is to focus on improving the socioeconomic position ofAboriginal people.

Senator LUDWIG—That is what I want to know about. What are you doing?

Ms Raye—We fund stacks of programs. We fund millions and millions of dollars worth ofprograms to improve the socioeconomic position of Aboriginal people within WesternAustralia. We are only a supplementary agency.

Senator LUDWIG—That is what I was trying to get to—that in fact you were not static inall of this, that you were doing a significant amount of work to address a broader area. This isimpacting upon a very narrow area but very harshly in that narrow area.

Ms Raye—That is right.

Senator LUDWIG—It is a little bit like rattling teeth sometimes, but bear with me. Chair,how is our time going?

Senator PAYNE—Swimmingly.

CHAIR—Senator Greig still has some questions.

Senator LUDWIG—Perhaps we could leave mine now and come back to me if there is time.

CHAIR—Thank you, Senator Ludwig.

Senator GREIG—Thank you, Chair. I will start with a question to Commissioner Wynne.Commissioner, in your opening contribution you talked a fair bit about CROC, the Convention



on the Rights of the Child, and how you believe it relates to this issue on which the bill in partpivots, at least constitutionally. The argument by opponents of the bill is that the existingmandatory sentencing legislation offends the Convention on the Rights of the Child because itbrings about the detention and imprisonment of young people and children. But Article 37 ofCROC makes it clear that, while there is a prohibition on the detention of children, there is anexception—that is, that it can be used as a last resort. Given the repeat offence requirements inthe Western Australian legislation, the diversionary programs that are available and thecondition of release orders that are available, doesn’t that perhaps provide an escape course forthose people who support the retention of the laws and for the state government which argues, Ipresume, that its legislation is not in breach of CROC because of that that condition? Do youfeel that the existing laws in WA offend CROC or that the escape clause in fact minimises theimpact that aspect might have on the opposition to the legislation?

Mr Wynne—My personal view is that the whole state law system in some cases does opposethe rights of the child. I went to New York to the rights of the child convention. It wasinteresting to listen to what is happening in other countries. It was an eye-opener.

At the end of the day, the law and justice system here needs to develop into a system whichcaters for more of a diversionary approach than one of sending people straight to jail after threestrikes. Things could change for the better. I am not sure how we are going to do it, because it isa difficult thing. It has been here only for so many years and has not had a major impact on thedetention centres. We still have an increase.

Mr Murphy—Under article 37, I understand it is also ‘shortest time possible’. Twelvemonths is not the shortest time possible given each and every circumstance, and a blanketapproach like that—12 months and you are in—definitely goes against that.

Senator GREIG—So you think it is fair to argue that the last resort argument is invalidbecause—

Mr Murphy—It is as a last resort and with the shortest time.

Senator GREIG—the shortest time is not attached to that, that it invalidates or militatesagainst the argument?

Mr Murphy—The other thing is that it talks about is ‘inhumane’. You can talk aboutincarcerating people for small or trivial offences as being inhumane. You could argue that,anyway.

Senator GREIG—Unless I am mistaken, you have not referred to CERD, the Convention onthe Elimination of All Forms of Racial Discrimination. Do you think that is anotherinternational convention that might also be used as an argument against mandatory sentencing?

Mr Wynne—When you look at who they target the most—imprisonment rates per head ofpopulation—you can see that we have to examine the whole issue of the effectiveness of themandatory sentencing.



Senator GREIG—If the Western Australian mandatory sentencing laws were to stay, if therewas to be no federal override, no state repeal, are there aspects of the existing law that youwould advocate amendments to? I am not suggesting for a moment that your implacableopposition to mandatory sentencing could change, but, if the politics of the situation determinedthat that was not going to happen, are there some amendments that could greatly improve on thelegislation? We heard evidence a little earlier this morning from people who felt that the age atwhich people could be prosecuted ought to be changed and that the minimum sentence,particularly the one-year sentence, could be changed, particularly for younger people. Do youhave some view as to what kind of amendments would be acceptable to ATSIC if that was theonly way to reform the legislation—that is, without repealing it?

Ms Raye—We believe it should be abolished completely. That is the view of the ATSIC statecouncil.

CHAIR—Is your concern about mandatory sentencing in Western Australia to do with theimpact it has on juveniles or adults, or both?

Ms Raye—It appears to be having a much greater impact on juveniles. We do not have muchevidence of the impact on adults. Our concern is mainly the impact it is having on juveniles.

CHAIR—Do you know how many people have been sentenced as a result of being convictedon the three-strikes legislation?

Ms Raye—I am not familiar with those statistics. I believe the ALS would be in a betterposition to answer that.

CHAIR—If you are not familiar with them, why do you have the concern?

Ms Raye—We are seeing that a large percentage are Aboriginal juveniles. The largestpercentage in the Crime Research Centre’s statistics is between the ages of 11 and 15. That is ofconcern to us.

Mr Murphy—ALS has represented approximately 80 individual cases.

CHAIR—Over a four-year period, that is an average of 20 per year. Is that correct?

Mr Murphy—I am not sure of the yearly levels, but I guess you could average it out at that. Iam not sure whether it has increased dramatically recently.

CHAIR—Would you agree with the results of the review that has been recently conductedthat the individuals—and I am talking about juveniles now—who have appeared under thethree-strikes legislation had conviction records of an average of 50 previous offences?

Mr Murphy—Your approach in asking me the question is that 20 seems to be okay, whereasI think that more than one is not okay. I think that the legislation does need to be repealed. I donot think accepting that 20 over a four-year period, 80 in total, is reasonable in some sense. So



there is a difference of view. The question you asked me implied that 20 does not seem to bemany.

CHAIR—With due respect, it is not many. The overall conviction rate under the mandatorysentencing regime in Western Australia is not high. When you take into account that some 88per cent of all home burglaries in Western Australia will not be resolved, it is infinitesimal inthe scheme of things. It is probably no wonder that, at the time, there was great communitydemand and concern about the numbers of home burglaries that were occurring and apparentlycontinue to occur. The chances of being caught after breaking into somebody’s home are very,very minimal—12 per cent. Then you have to get through to conviction, and not conviction onthe first offence but conviction on the third occasion.

Mr Murphy—I understand that a significant proportion of the 80 convictions that the ALShas represented have been Aboriginal people and particularly country Aboriginal people. Myimpression of what you are implying is that, if you look strictly at the statistics, people get awaywith it most of the time, but those who are being caught seem to be country Aboriginal people,and that seems to be okay. But I think the law needs to be applied evenly.

CHAIR—Forty Aboriginal people from country WA have been caught over a four-yearperiod.

Mr Murphy—I am not sure of the exact figure—whether it is 40—but I understand that themajority of the 80 cases represented by the ALS have been country Aboriginal people.

CHAIR—Are you familiar with the case studies attached to the government review that waspresented to parliament in November last year?

Mr Murphy—No, I am not.

CHAIR—Why not?

Mr Murphy—I will get to read them, I am sure. I will make a point of it now.

CHAIR—It has been two months since the report’s presentation. Some of the case studies areappalling. Opening the report at random, one case study reads: ‘Age at conviction, 18;offending history, 51 charges, 11 sentencing appearances and 26 burglary charges.’ The next oneis from Bentley—again, I am opening it at random: ‘offending history, 81 charges, 12sentencing appearances and 19 burglary charges’. The third one reads: ‘Age at conviction, 15;offending history, 85 charges, 13 sentencing appearances and 35 burglary charges.’ They are allbeing sentenced on the third burglary conviction.

Mr Murphy—Undeniably, it is fact.

CHAIR—What is the alternative—release them into the community?

Mr Murphy—I would want the Department of Justice to come up with approaches a lotearlier. There must have been indicators earlier on in these children’s lives that they would face



these types of convictions later on in life. They do not just pop up with these convictions; theyoccur over a significant period of time. I am sure that a lot more can be done a lot earlier. Thatis what I was talking about earlier. Intervention has been occurring with the juvenile justiceteams but I do not think that it has been effective.

CHAIR—ATSIC are part of that process, are you not?

Mr Murphy—The juvenile justice teams? No.

CHAIR—Through the diversionary programs.

Ms Raye—Yes.

Mr Murphy—We fund certain diversionary programs but that is not one of them.

CHAIR—Is it simply a question of ATSIC having the money and passing it out and havingno responsibility for how the money is spent, no follow-through?

Ms Raye—We do not believe that is the case at all. We think that, given the limited resourcesthat we have to work with and the number of issues we have to resolve as a consequence of thesocioeconomic positions that we find Aboriginal people and communities in—

CHAIR—But the socioeconomic positions operate to a similar or like degree in the states ofSouth Australia, Victoria, NSW, Tasmania and the ACT. This state has mandatory sentencing;you as an organisation are involved in diversionary programs—

Ms Raye—Yes, we are.

CHAIR—which is the theme of the questioning put to Mr Murphy.

Mr Murphy—I could probably explain that a lot more from our own council’s point of view.Think of ATSIC as a whole and then come right down to where we operate as an individualcouncil within an area. The area that I represent is from Laverton down to Esperance and out toEucla, and it is called the Wongatha area—or Kalgoorlie, as it is referred to because that is themain central town there.

Our diversionary funds for last year were approximately $20,000 out of $6½ million or $7.1million. When you think of diversionary programs across Australia, I am not sure what thefigures might be. We are a supplementary funder in that area and in our area it primarily hasbeen the focus. We have quarantined areas. We have CDEP and housing and then we have ourgeneral allocation funding. In the case of the regional council—we would be an example ofmost regional councils across Australia—in our general allocation area, where we wouldspecifically fund in the area of diversionary programs, we would have a pool of approximately$500,000 in our case, but with ongoing commitments to particular organisations it is reduced to$300,000. So we have a potential pool of $300,000 to fund diversionary projects, but there is alot more than that. There are cultural, art and crafts programs. There are a lot more programs



that people—organisations in particular—want to focus on and there is only a number oforganisations that apply in the diversionary area.

The state as a whole funds the ALS, though, to some $6 million or so, so the primary moneyfor the ALS budget comes from the national office. What I am indicating is that we do not havea large pool of money to be able to fund diversionary projects in the first instance. Where wedo, in our area we have focused on patrols which are more about dealing with people on thestreets, in particular itinerants and intoxicated people on the streets and youth on the streets atnight. We have two patrols in our area, one in Leonora and one in Kalgoorlie, so our money isdirected towards that. If we had a larger pool of money to be able to direct specifically towardslaw and justice or diversionary programs, we would do that. We try to do the best we can withthe money we have.

CHAIR—Wouldn’t that be resolved with extra funding?

Mr Murphy—I think it is more than extra funding; I think it is also coming up withinitiatives that are going to work. You can give us an extra $500,000 or an extra million dollars,but you have to spread that across Australia. In our case, we would like a significant portion ofit, and if we end up with an extra $100,000 we need to come up with initiatives that are going towork in the short term to address the issue of people, because it is a long-term consequence thatwe are dealing with in the end. Five years down the track, these people are going to be lockedup if we do not deal with them now when they are eight, seven, six or five—not when they are12 or 14 and are already caught up in the system.

CHAIR—Commissioner Wynne, I think you had something to add, and we will thencontinue with questioning from Senator Ludwig.

Mr Wynne—I just want to say that the whole idea of the statement of commitment that wesigned off with the state government is about creating a partnership, not only with our resourcesbut also with our programs. I noticed when I was on the outside and during my first time inATSIC that for too long ATSIC has had to fund programs by themselves and that the limitedmoneys that they had did not go too far. We have decided that, even though we cannot get anymore money from the Commonwealth, we will able to stretch our money further with regard tohow we deliver our programs. For instance, we are just negotiating with the Commonwealthdepartment of youth, DETYA—although they have changed their name to DEST—with regardto how we deliver our youth programs now, because they have a role to play as well whendelivering outcomes that benefit our Noongar youth. It is about how we deliver service also—ensuring that the right agencies come in at the right time. We never had that access before—I donot know why; ATSIC has been in the system for 10 years—and we will be able to do a betterjob than we have before. That is why we are doing things a bit differently than we have in thepast.

Senator LUDWIG—With the exception of the three-strikes legislation itself, which is anamendment to the Young Offenders Act 1994, are you satisfied with the act and its principles topromote fair treatment of young people—that young people should not be treated more severelythan they would if they were adults—and the desirability of diverting young offenders fromjudicial proceedings? I am trying to understand a flavour for the Western Australian position. Ido not mind who answers.



Ms Raye—I am not overly familiar with the Young Offenders Act and I would prefer todirect that one to the ALS, if I could.

Mr Murphy—I think the difficulty has been that we took the approach that the expertise inthe area of law and justice for us is the Aboriginal Legal Service of Western Australia, and wethought that it was a joint submission and that we would be able to pass on certain questions. Itseems like all the ALS questions are coming to us.

Senator LUDWIG—Yes. I am not drawing any adverse inference from that.

Mr Murphy—I would like to hear their answers, if they do have them.

Senator LUDWIG—I understand the predicament that you find yourself in. Then what areado you have expertise in? I will put it back on you, if you want to tell me. If you say that thesemore legal questions should have been directed to the Aboriginal Legal Service, then I will dothat—if I can remember all of them or be prompted to remember them.

CHAIR—I think we might address them in the opening statement actually.

Senator LUDWIG—From my questioning earlier, I was trying to get an understanding ofwhere you do your best work, and some of it was in your answer earlier. That then begged thequestion: do you prioritise your spending, because you have a limited budget? As aconsequence, you concentrate on the areas of most need, I suspect. And that draws the analogy Iwas trying to understand with where mandatory sentencing fits in. Is it a priority? Is it an area ofmost need? Or are there other areas of most need and of greater priority?

Mr Wynne—I know the regional councils have regional plans and they fund a lot of projects,so they have a program focus. And, recently we had a change in ATSIC 2000: we looked atrestructuring ATSIC itself and how we deliver our services as we turn towards policydevelopment—looking at how we can change policy not only within ATSIC but also withinother agencies that impact on indigenous people. We are starting to focus on saying to thoseagencies, ‘Look these policies do not work. How can we improve them?’ In the past, we havenot done that—the change is a new direction for ATSIC itself. It is slowly getting there, we cansay.

Mr Murphy—To take it further, within our regional council, of the available funding that isnot quarantined for housing and CDEPs, we direct 10 per cent towards diversionary projects,but that is because the need that we have recognised just recently in updating our regional planis that youth and culture are the most important issues for the community as a whole in the areathat I represent. That is not to say that diversionary projects are not as important as any others; itis just that across the board organisations have a particular focus: if it is an arts organisation, itsprimary focus is on art; if it is a housing organisation, its primary focus is on housing. A coupleof the organisations that we have, representing about another 10 per cent, focus on law andjustice. That is why we direct the funding in that manner. It is not a large pool of money that wehave. As I said, the ALS, in our opinion, have the expertise in the area of law and justice. Wehave a partnership with them and, in all cases, we expect that some additional funding, if it ismade available, would be able to be channelled through them.



Senator LUDWIG—Thank you.

CHAIR—Senator Payne has a final question.

Senator PAYNE—Yes. Ms Raye, I directed a question to you earlier concerning yourarrangements with the state government in relation to a recently signed agreement, I believe,which you deferred to Mr Gooda to address. He has not been able to join us. Could you pleasetake that on notice and get us some information on that?

Ms Raye—Certainly.


CHAIR—With regard to that, we have got a fairly tight reporting date in March, which weare going to endeavour to meet, and the earlier the information could be supplied to us thebetter. We have to develop the report and deliberate upon its contents prior to its presentation, sowe cannot just receive the information in March and use it. If it does not come in early we will,unfortunately, not be able to take it into consideration. Thank you, Ms Raye, CommissionerWynne and Mr Murphy for your attendance here this afternoon and for the assistance you havegiven the committee in our deliberations on this very important issue.

Proceedings suspended from 12.55 p.m. to 1.48 p.m.



LOVEDAY, Mrs Marilyn Ann, Supervising Solicitor, Legal Aid Information Service,Legal Aid Commission of Western Australia

CHAIR—Welcome. Are you appearing in any other capacity other than for the Legal AidCommission?

Mrs Loveday—I represent the Legal Aid Commission, but I am also appearing as a privateperson who has acted for children and young people almost exclusively over the last 10 years.

CHAIR—Thank you. The Legal Aid Commission of WA has not lodged a submission withthe committee. However, I invite you to make a short opening statement or a submission to thecommittee. At the conclusion of your remarks I will invite members of the committee to addressquestions to you.

Mrs Loveday—The submission I make on behalf of the commission is that the currentsituation with the legislation in Western Australia, which requires the mandatory sentencing of aperson convicted of three strikes in respect of burglaries on residential properties to 12 monthsimprisonment or detention, is not in accordance with human rights and with the true spirit ofjustice that should be in place in Western Australia. In respect of that issue, there are a numberof matters which I believe the committee will have heard about already—they would have beenraised at a previous committee hearing.

When a young person under the age of 18 is sentenced under the mandatory sentencing act,they actually serve 50 per cent of the sentence rather than a third. But the way in which oursentencing is worked out means that, if an adult is sentenced to 12 months, they get four monthsautomatic remission and four months parole, so effectively they serve four months. Certainly inthat situation it is likely that most adults convicted of home burglary on their first appearance,and quite likely on their second appearance, would attract a period of imprisonment in anyevent. Therefore, they are not as disadvantaged as people under the age of 18 are.

In this situation there is no opportunity for the personal circumstances of people to be takeninto consideration. There is no allowance for the judge to look at the surrounding factors thathave induced the young person to commit the offences. In particular, in respect of juveniles, allmatters that are going to attract the 12-month mandatory sentence have to go before thePresident of the Children’s Court, who is a district court judge and who has the jurisdiction of aSupreme Court and a District Court judge. Because the powers of a magistrate in the Children’sCourt are limited under the Children’s Court Act to imposing a maximum period of detention ofsix months, they cannot deal with any child said to be caught by the three-strikes legislation,and they all go before the President of the Children’s Court. That, in its turn, results in arelatively large number of children appearing before the president.

The variety of the matters that go before her will range from, for example, a 12- or 13-year-old living on the streets who is unable to get housing and who has no access to resources or anysort of financial assistance because of their age—and who may be breaking into houses on asurvival basis to steal food or petty amounts of cash in order to buy food—to a person who isbreaking into residential properties on a regular basis to steal large quantities of property to sell



and make a profit. Of course, once you become a three-striker, you are a three-striker on anongoing basis, although under the Young Offenders Act 1994 that strike falls away if you have atwo-year gap. But that is only at the time that you are in the Children’s Court. Once you go upinto the adult court, and you use up that two-year gap, that ceases to exist.

Senator LUDWIG—If you were detained for 12 months as a juvenile, failed to have a two-year gap, and were brought before the court again for a property offence, you would then goback for 12 months again?

Mrs Loveday—Yes. That is the situation with adults as well. Once you become a three-striker it is not like three strikes you are out and you start again. Once you have been a three-striker, you are always going to be a three-striker. Once you become an adult you could have agap of 10 years. I had a situation where I represented a young Aboriginal boy who hadnumerous appearances for home burglaries from the age of 11. At the age of 14 he wasconvicted of attempted murder and he was imprisoned for that. When he was 17 he wastransferred from one detention centre to another. He escaped with a group of other boys—theyplanned it and he arrived the day they were escaping. In the course of the time that he was out,he committed an aggravated burglary on a house, but he was not a third-striker because he hadbeen in detention for that long period. The two years had elapsed, so therefore he did not have athird strike and all the other offences that happened before that did not count because the two-year period had elapsed. That was an anomaly really; it was a very unusual situation.

CHAIR—You say it is an anomaly. Aggravated burglary would be treated differently anywaydespite the circumstances you have so described.

Mrs Loveday—In Western Australia the definition of burglary was changed in lots of ways.One of the changes was that if a matter involved the stealing of property worth less than$10,000 it could be dealt with summarily, whereas previously it could only be dealt withsummarily if the property was less than $4,000. That kept more matters in the lower court.

CHAIR—Okay, but the point is aggravated burglary.

Mrs Loveday—I am getting to that. Then they introduced circumstances of aggravation, oneof which was committing a burglary which was in company. Most burglars, particularly kids,commit burglaries together—there is more than one. As soon as a burglary is committed incompany, it becomes an aggravated burglary and therefore, particularly with an adult, it has togo to the District Court. On the one hand, they took away a circumstance to keep matters downand then by introducing that they pushed them back up again. When young people, particularlyjuveniles, attend court, nine times out of 10, whether it is a burglary on a house or on a business,it will be an aggravated burglary because they always go with someone else.

On top of that you have the question of burglary on a dwelling. Under the Criminal Code thedefinition of a residential place or dwelling is so broad that if you go into a shed or a garage onsomebody’s property or into any other part that is attached or would normally be attached tothat property, it is still construed as burgling a place that is normally used for human habitation.That just becomes ludicrous a lot of times. I know of one instance where a man went to look ata house, a real estate property, that was open. He went back and took a can of beer out of a



small bar fridge that he had seen on the verandah. He went back twice, and he was charged withtwo counts of aggravated burglary on a dwelling.

Similarly, there was an instance in Norseman of a young man who had a lot of mentalproblems and who had been the subject of disability services for some time. He had beenconvicted twice of burgling places ordinarily used for human habitation, and on each occasionhe had been to prison because at that time he was over 18. He got 15 months the first time and18 months the second.

The third time he came up, he broke into a number of houses in Norseman. Because of thetown deteriorating financially, a lot of the places have just been abandoned and people have leftbecause the mine is closing down. These houses are either boarded up or just locked, andnobody actually lives in them. In one house he had taken a rubbish bag of underwear; in anotherhouse—as he admitted to the police—he went to the toilet and read a magazine; and in anotherhouse he just went in and went out, but he was charged with three counts of aggravated burglaryon residences. At 21 he was facing a minimum sentence of 12 months but he had already beento prison on the two previous occasions. Even the police in that case were most anxious for himnot to be a third-striker because they recognised that he had some sort of mental problem, thatwhat he was doing was of nuisance value and that he was not really doing anything as serious asis perceived under the legislation. On top of that he had a year-old child and his de facto wasgiving birth to their second child within a month or two.

The police were delighted to discover that when they had done the previous complaints forthe other offences they had not actually pleaded the complaint in the terms that he had brokeninto a dwelling, so they did not have to make him a third-striker. That is the artificial way ofdoing things that has to be adopted. On the third occasion they had, but when they had to provethe other two offences they looked back and they could not prove one of the occasions so heescaped the legislation. But that broad definition makes it very difficult. A young person, oreven a person who does not have a lot of knowledge of the law, thinks that if they break into ashed or something like that they are not breaking into a house and therefore they are notcommitting a home burglary.

CHAIR—Do you know how many people have been incarcerated on the three-strikeslegislation as a result of breaking into a shed on the third offence?

Mrs Loveday—I am not able to tell you that. I am really only speaking from my ownexperience.

CHAIR—Have you completed your submission?

Mrs Loveday—No.

CHAIR—We will need to wind this up reasonably quickly. We have time constraints and wedo not have a tremendous amount of time.

Mrs Loveday—You would obviously have heard a number of times that young Aboriginalpeople and even Aboriginal people over 18 are particularly disadvantaged by the legislation. Ihave seen Aboriginal people as young as 12 receive the top of the range sentences other than



detention and by the time they get into their early teens they are already third strikers and fromthat day on continue to be third strikers. Also, being detained means that they are always goingto be detained in Perth because there is no other detention centre. A lot of them are desertpeople and they are isolated from their families. With this legislation, they will be out in thecommunities and there will be caravans there that belong to perhaps the manager of the camp orthe community and then they go into a caravan and that is a strike, which again creates ananomaly.

Another issue with respect to mandatory sentencing is that a young person coming up on theirthird strike may get a 12-month sentence and someone coming up on what might be their 12thor 15th burglary is given the same sentence. There is a tendency to do that because it is asentence that is more likely to be imposed for a 15th burglary than for a third burglary.Therefore, the sentencing process is disproportionate. From personal experience and fromtalking to other lawyers, I have found that a number of other types of offences have increasedsince this legislation has come into being. There has been an increase in bag snatchers. That isan offence that has really increased. Also, street muggings have now become robberies. Thishas pushed the people into a much higher level of offending insofar as penalties and the way theoffence is viewed, even though it may be that they have just gone up to someone and askedthem for money and, when they have refused, they have assaulted them. Similarly, homeinvasions—where people actually go into homes when the people are there—have increaseddramatically since this legislation came in.

CHAIR—Do you have statistics on that?

Mrs Loveday—Again, I am speaking anecdotally from my own experience of representingyoung people over a long period of time.

CHAIR—It is a bit of a difficulty, because we had representatives from the Department ofJustice before us this morning and they were offering statistics, some of which were somewhatdated, and now you are offering information but you are not giving substance to thatinformation.

Mrs Loveday—As I said, I can only speak from my own experience. I know Mr Prior isgoing to address this issue this afternoon, but I do not know whether he has any statistics.

CHAIR—Have you concluded your opening statement? Very shortly we will have to moveto questions from the committee. I think it is important that the committee have an opportunityto address questions to you.

Mrs Loveday—The only other issue that I would like to raise is the recording of convictions.The Children’s Court and the adult court have totally different methods of recordingconvictions. The legislation requires that the offence has to have been committed and that therehas to be a conviction after the last conviction. But when you come up into the adult court and itshows that you have been convicted on 18 October 2000 and again on 15 February 2001 there isan automatic presumption that that is two strikes. In reality, in the particular case that I amthinking of, which happened to a client of mine a couple of weeks ago, looking back on theChildren’s Court record, because he was a juvenile at the time of those two strikes, you see thatthe Children’s Court actually record the dates of the offences, and it indicated that the offence



for which he was sentenced on 15 February had occurred prior to the ones for which he wassentenced on 18 October. Once you get into the adult court you do not have the process ofhaving all the complaints proved to the judge in the way that they do it in the Children’s Court,so there is a great likelihood that people are being considered to be third strikers when they arenot. That completes my submission.

CHAIR—I am sorry to press you on this, but your oral submission went for some 15 minutesand we only have some three-quarters of an hour allocated to the subject. It is important that weget some cross-fertilisation between committee members and witnesses. The legislation we aretalking about is very contentious. It has been in place for some four years. It has been subject toreview in recent times. Was the Legal Aid Commission of Western Australia invited tocontribute to that review?

Mrs Loveday—It was not, to my knowledge.

CHAIR—Was the commission aware that the legislation was going to be reviewed?

Mrs Loveday—It was not, to my knowledge.

Senator LUDWIG—Do you know if they got a copy of the report?

Mrs Loveday—I spoke to the director before I attended, and he did not advise me ofanything in that respect.

CHAIR—I find that a bit surprising from an organisation that has an interest in the subjectmatter before us—mandatory detention. I am somewhat disappointed that the Legal AidCommission of Western Australia is not in a position to aid the committee in an informedmanner on the content of that review of this very contentious piece of legislation.

Mrs Loveday—I think the situation is that everything is quite fragmented. The reason thiscame to me was because I have basically been a Children’s Court lawyer. I was in my ownpractice for six years. I have only been at Legal Aid for two years, and I was in Kalgoorlie. So Iam not in a position to say what had actually been happening in head office before I came backrecently. At the time that I was contacted, I was the team leader at Youth Law, which hasdeteriorated from quite a large section to three people. So we only have what is provided to us,and I certainly was not aware of that report.

Senator LUDWIG—Why has it deteriorated in size?

CHAIR—Can I just clarify things? The deputy chair has just pointed out to me that, in fact,Mr Lex Payne from Legal Aid Western Australia was part of the review. He was interviewed bythe independent consultants. I was actually looking through the list for the Legal AidCommission, but of course it is not the Legal Aid Commission anymore.

Senator LUDWIG—I was just interested in funding. Has the funding dried up in relation tolegal aid from the Western Australian government or from the federal government, or was therejust a reprioritisation of the funding?



Mrs Loveday—I think there was a reprioritisation of the funding.

Senator LUDWIG—Is there a view from Legal Aid that this area is not of significance, orthat are there other more significant areas?

Mrs Loveday—I suppose it is like everything where funding is involved. There are areas thatyou would like to fund, but there are areas that need more funding, and the money is movedsideways. The other issue is that, despite the fact that people, particularly in this state, seejuveniles as being very offensive, as committing offences and as being high profile, the truth ofthe matter is that the general statistics in the Children’s Court are declining. With cautioning andJuvenile Justice Team referrals, there are fewer children actually appearing in court. There is acore of repeat offenders rather than a lot of outside people coming in. So there is not as much—

Senator LUDWIG—Were you reasoning that there is a link between the three-strikeslegislation and the rise in other crimes, or is that just an incident of Perth or an incident of civilsociety?

Mrs Loveday—The kids seemed to be aware that there was a thing called the three-strikeslegislation, but they did not really understand what it meant. There was quite a bit of publicityabout it from Youth Legal Service and other similar bodies to raise the level of awareness. Buteven within the system, originally it was misinterpreted. Even now, the police will say to youngpeople who have broken into businesses, ‘You are a third-striker.’ There is still amisunderstanding there. Really what filtered through was: if you break in somewhere you aregoing to get a year. I think that is as far as it got. That was the clarity of the message.

Senator LUDWIG—So you are effectively saying that that message was: if you need orwant money, then—

Mrs Loveday—Do it a different way.

Senator LUDWIG—Yes. Do not try a property offence or a home invasion to achieve thatpurpose. That is, anecdotally, as you understand it?

Mrs Loveday—That is it exactly. I am not able to give you statistics. I do not even haveaccess to statistics. But, from my own experience, I could see a definite increase in other crimes.I mean, bag snatches were almost unknown until that legislation came in. Then they became aneveryday occurrence.

Senator PAYNE—Are you suggesting it is a method for offenders to find funds anotherway?

Mrs Loveday—Yes. And I suppose that has escalated with the increase in drug use. Thetraditional way of funding one’s drug use was to break into houses and steal videos, TVs and allthose sorts of things and sell them and make money that way. But that avenue has becomefraught with more difficulties, so you take a different avenue.

Senator PAYNE—Do you have any experience of or views on the value of diversionaryprograms for juvenile offenders that divert them from detention?



Mrs Loveday—The Juvenile Justice Team program was initiated for that purpose and it doeswork effectively. It was actually adopted from a New Zealand model. My knowledge of theNew Zealand model is that it was not limited to first offenders. To go to the Juvenile JusticeTeam program you have to be a first offender or, in some cases, you may not have offended forseveral years and you get that chance because you have shown you can stay out of trouble.There is a schedule that says what offences can go there. Aggravated burglary and homeburglary can go to the team but some other more serious offences cannot. Now they haveadopted another one of the Children’s Court programs called the case conferencing program,which is similar but allows people who are on schedule 1 under the Young Offenders Act whoare excluded from the team to still go through a similar process. But the burglaries are actuallyable to go to the team without having to go into that particular program. They can just gothrough juvenile justice.

Senator PAYNE—Do you know if the case conferencing is carried out in situ, or is theoffender in Perth and it is managed here? Do you know how that works?

Mrs Loveday—It is only a pilot program. It is run by Mr Vose, who is one of the magistratesof the Children’s Court, and the president of the Children’s Court. So it can only happen here,although some of the young people may come from other places in Western Australia. But it hasthe same difficulty as the juvenile justice teams and, in fact, anything that the Ministry ofJustice provides, in that all these wonderful things—the few that are available in Perth—are notavailable in the country. Even though we want to look at things like how we can stop peoplecommitting burglaries, we need to have drug rehab programs, job programs and accommodationfor young people who have no money or minimal money, but none of those resources areavailable in the country, even in a big town like Kalgoorlie that has 30,000 people. They areextremely limited.

So any program that is likely to have any effect will be in Perth. But every time a programworks the funding is cut. We used to have a bail hostel for young people who could not getsomeone to bail them. That was closed down. Then we had a supervised bail program where ayoung person could go on supervised bail and they had a place they could stay. That has beenclosed down. So, as I said, every time we find a program that works the funding is cut and wedo not have it any more. My theory is that children do not vote so people do not care. I am nottalking about people here. What I mean is that children do not vote so they are not a priorityinsofar as trying to resolve their issues. They are a long way down the ladder.

Senator PAYNE—I wish we could translate the chair’s look into the Hansard.

Mrs Loveday—I do too.

Senator GREIG—Where do businesses and business warehouses come within this context?If they are broken into are they considered as places usually for human habitation?

Mrs Loveday—No, they are not a dwelling place. It is more like a residential or attached to aresidential property. It is often said to people when they are sentenced—particularly as adultsalthough it is lost a bit on children—that when you break into someone’s house you invade theirprivacy and give them a feeling of having their privacy invaded. But, realistically, when youbreak into businesses you can steal far more valuable property than you could ever steal from a



house. I had a client who took jewellery that was worth a huge amount of money but, becausehe did not like the colour—it was 14 carat—he threw it in the bin. They do not even realise thevalue of what they take. I recently represented a boy who is only just 19 and an ongoing clientfrom the Children’s Court who stole $90,000 worth of laptop computers from a warehouse. Sothe opportunity to steal large, valuable amounts of property are much greater in businesses.

Senator GREIG—Is the law framed that way because it was an oversight when it wasoriginally drafted, or did the government of the day have the view that the law should beparticularly framed in the context of potential threat to people rather than property?

Mrs Loveday—My understanding was that there was a lot of outrage, people were up inarms that they did not feel safe in their own homes and that therefore it was specifically aimedat that type of concern rather than at looking at the amount of property that was stolen.

Senator GREIG—So the end result is that we have a situation where somebody could bedoing their third break and enter, they go into a house where the door is open and they take acan of coke and are subject to mandatory sentencing of one year or, alternatively, they couldbreak into a warehouse and take, as you say, $90,000 worth of laptop computers and notnecessarily be subject to mandatory sentencing.

Mrs Loveday—That is right. It is still a discretion on the part of the particular judicial personwho is dealing with them. That is exactly what happens.

Senator GREIG—Can, and do, Aboriginal youth, Aboriginal people access legal aid, ordoes that all go through ALS or some other mechanism?

Mrs Loveday—They can access legal aid. They often do not access legal aid. I acted for anumber of Aboriginal young people when I had my own practice and they had grants of legalaid. For example, we provide a duty lawyer service at Children’s Court every day in Perth andthen ALS has a duty lawyer service. When they come in through custody it is almost like, ‘Youwill all see ALS, and you will see legal aid.’ Unless the young person actually holds their handup and says, ‘I don’t want to see them,’ or ‘I don’t want to see them,’ they will justautomatically go to one or the other. But there is certainly nothing that says we will notrepresent them. As I said, I had a number of Aboriginal young people as clients.

Senator GREIG—So is it a question of more education for the person being charged tobetter understand the system?

Mrs Loveday—Yes.

Senator GREIG—Thank you.

CHAIR—The Deputy Chair made reference to my reaction to your comment aboutgovernment or parliaments not caring about children because they are not voters. I thought thatwas an extraordinary statement and that is why I reacted in the way that I did react. It is not myposition to defend the state government or, indeed, the previous state government, but I dobelieve that both governments do care about children, whether or not they have got the vote.That was the reason for my reaction. I did find it a somewhat extraordinary statement for you to



make. I think that there are different motives behind this legislation but I will be expressingthose in a different forum in the future. With that explanation, I thank you, Mrs Loveday, foryour attendance here this afternoon and for the assistance you have given to the committee withour deliberations.



[2.19 p.m.]

CUOMO, Mr Mark Donato, Director of Legal Services, Aboriginal Legal Service ofWestern Australia

CHAIR—Welcome, Mr Cuomo. Do you have any comments to make on the capacity inwhich you appear?

Mr Cuomo—I am appearing this afternoon in lieu of the CEO, Mr Dennis Eggington, whoapologises to the committee but is currently on leave and out of Perth and unable to attend thecommittee.

CHAIR—The Aboriginal Legal Service of WA has lodged submission No. 47 with thecommittee. Do you wish to make any amendments or alterations to that submission?

Mr Cuomo—No. We have lodged the submission jointly with the state office of ATSIC andmaintain that submission for the committee.

CHAIR—I note also that ALS is a conjoiner to submission No. 89, which also has inputfrom the ALS. Page 3 of that submission comments:

The statistics included in this submission are provided on the condition that they are not reproduced or referred to withoutexpress acknowledgment that they are provided by the authors.

That is the common practice that the Senate committee is obliged to observe and we wouldnormally do that in the course of our deliberations if we do make reference to them in thereport.

Mr Cuomo—I am most obliged. It is something we put in all our submissions to at leastmaintain our identity within the process. I am much obliged to the committee for doing that.

CHAIR—I invite you now to make a short opening statement. At the conclusion of yourremarks, I will invite members of the committee to address questions to you.

Mr Cuomo—Having sat through most of this morning’s deliberations, and having noted thenumber of questions that are sitting on notice for us, I will make that statement very brief.However, there are a number of brief matters that I would like to bring to the committee’sattention.

Firstly, present this afternoon is Mr Rewi Lyall, who has assisted us greatly in the preparationof the submission, and we are very grateful for his help. Secondly, Mr Troy Collard, one of ourAboriginal court officers who is a paralegal employee and who works in the area of theChildren’s Court in Perth, has been sitting in on the proceedings throughout this morning andthis afternoon. He has been here with his pre-law class from the UWA. I am glad to have himhere. We are very proud of the work done by Troy and by all our court officers in respect of the



submission in this area. I would be incomplete in my submissions without recognising theirhard work.

The Aboriginal Legal Service in Western Australia is an ATSILS—an Aboriginal and TorresStrait Islander Legal Service—funded largely by ATSIC. We are a statewide service. We have alarge office in Perth and 17 country offices, 10 of which are staffed by solicitors and courtofficers and some support staff, the others being staffed by Aboriginal court officers.

We are the largest ATSILS in the country. I also understand that we are the largest ATSICfunded organisation in the country. To be truthful, we would like to be a bit larger. We have apressing financial difficulty, which we will be referring to in talking about this area, where weare facing decreased funding, and this situation is sapping our effectiveness, especially in thisarea.

Reference was made this morning to the annual report of the Inspector of CustodialServices—an office established by the Western Australian parliament to inquire into the variouscustodial regimes in Western Australia. I would like to briefly quote from that report from thewords of the Inspector, Professor Harding, to introduce our basic theme in viewing thislegislation. In commenting on the deplorable state of Western Australian regional prisons,noting that they are largely populated by Aboriginals and that the resources available to thoseprisons are grossly inadequate, Professor Harding stated:

Racism must be judged by outcomes rather than intentions. The fact that a manager or a policy strategist does not meanto bring about a discriminatory situation does not excuse if that situation is tolerated and not rectified.

Against that criterion, aspects of the Western Australian prison system are racist. Four prisons - Broome, Roebourne,Greenough and Eastern Goldfields - are “Aboriginal” prisons, in the sense that at any given time 75% or more of theprisoners are Aboriginal.

With respect to Professor Harding, I would like to adopt in our submission the same logic inlooking at this mandatory sentencing legislation. Our submission has pointed out to thecommittee that it overwhelmingly attaches to Aboriginal people. If you overlay that withstatistics referred to by us—and also, I am sure, referred to at some length by Mr Morgan in hissubmission and in his joint written submission with the AJC—it is clear that Aboriginal peopleare grossly overrepresented in the penal system in Western Australia. But if overrepresentationis gross in the adult system, it is that much greater in the juvenile system and particularly withregard to the offences that we are concerned with in examining the regime of mandatorysentencing.

This legislation is not, in our submission, easily susceptible to a rational discussion. Thecommittee has had before it people attempting to make a rational argument for the legislationand people attempting to meet that argument by showing the overwhelmingly disastrous resultsof the regime. At the end of the day, in a practical political sense, we do not see the situationbeing remedied by those arguments.

The first attempts at a mandatory sentencing regime in Western Australia occurred under theLawrence government in the early nineties, just as that government was coming to its end. Thecurrent arrangements are made subsequent to that and in the light of the legislative inadequaciesof that first set of legislation. We say it has been enacted not by any rational assessment of the



problems and as an appropriate, measured response to those problems but as a reaction tooverwhelming political pressure. That political pressure notwithstanding, the arguments thathave been made, from time to time, by the opponents of this legislation have not abated.

CHAIR—Political pressure or community pressure—which of these has been expressed?

Mr Cuomo—The community pressure is one of political pressure. The various governmentsin Western Australia have felt that pressure very badly. It has been a matter of someconsiderable press comment, and talkback radio has talked it up from time to time. Otheracademic writers have talked about moral panic in this context, and that is essentially thesituation that has faced various state governments of both persuasions here. The attitude thatwas presented to the committee this morning by the Ministry of Justice does indicate, I wouldsay, the attitude of the present state government.

The point of all this is that it is unlikely that this situation will be remedied by the stategovernment in Western Australia. It will ultimately be a matter for federal authorities to enact.We have had the magnificent example of political courage on the part of the newly electedNorthern Territory government in rescinding their legislation which had, in our view,community support that is akin to what one perceives as applying in Western Australia. Forvarious reasons we do not see that happening here. This is not a popular issue—whether oursupport has increased or not—and governments responding to those pressures will not remedyit. We have great hopes that the Senate, in looking at this legislation and in taking a view—asthey kindly have on the Northern Territory and on Western Australia especially—will look to alegislative regime that will hopefully relieve us of this particular difficulty.

Beyond that exercise in political analysis, I think it would be best if I were to end our openingremarks there and leave the matters open for the committee because I know, having listened toyou, that you have many questions on the practical application of the legislation and theexperience in Western Australia. We would hope to be able to satisfy some of those questions.

CHAIR—I am trying to think of the easiest way of shortening this afternoon’s session andstill getting the information that is required. Have you made notes of any of the questions whichwere taken on notice on the way through? If so, it might be easier for us to refer to them ratherthan repeat the questions.

Mr Cuomo—I have not been taking notes, but there are some themes that I might expand on.I will start with a question that the chairman has been asking of many witnesses, and that is inrelation to their involvement in the Ministry of Justice review of the operation of section 401.As you noted in dealing with the last witness, there was a consultation process which wasengaged in by a private consultant. We were engaged in that process and gave someconsiderable information. I, myself, was not engaged in it directly, but I am instructed that fourof our solicitors gave evidence at some length to that consultant. We are unaware of what thatconsultant produced and whether that is ultimately reflected in the ministry’s review. Certainlyour views seem scarcely reflected in it. Their conclusions are seemingly aimed at an issue that isvery different from the one that we perceived.

There is, however, a useful resource—perhaps biased in its presentation, though—in thepersonal profiles that are attached to the review. We have referred to a number of cases in our



submission to give what we hoped was the flavour of the day-to-day application of thislegislation to individual offenders. Two particular cases struck us as providing the extremes ofthe cases that are seen and the arbitrariness of the results that are obtained.

The first case is identified as SSS39, a young Aboriginal child of 12 years of age in Broome.The result of his conviction was a detention of 12 months. He had an offending history, theprofile stated, of 39 charges, eight sentencing appearances and 27 burglary charges. Thesentencing remarks that are quoted are illustrative of the particular dilemmas that the sentencingjudge faces in these cases. There is a lot left out here. Before I go to these remarks, I would liketo enlighten the committee as to the history of how someone such as Mr 39 would have beendealt with. You will note that he comes from Broome—that could mean Broome or it couldmean one of the communities outside of Broome. Given the nature of the offences, I think he isquite obviously from one of the coastal communities that are close to Broome, Broome being abit of a hub and there being a number of coastal communities immediately to the south and thenorth. So he has come to Broome, and he is in custody in Broome.

Because third-strike matters have to be dealt with by the President of the Children’s Court—there is only one president, a district court judge who fills that office from time to time—Mr 39would have had to come to Perth in custody. That means that he spent time there and then wastransported to Perth. So he comes to Perth, away from any possibility of family contact asBroome is a three-hour flight or a two-day drive from Perth, and he is totally isolated there. Hehas been in custody for some time—probably at this stage for at least 30 days, maybe a little bitmore. The judge is noted to say:

Now, if I wasn’t constrained by the three strikes legislation I would be prepared to give Xxxx a chance despite his recordbecause here he has members of his family who are non-drinkers, non-smokers, well-respected members of the Derbycommunity who are prepared to take the boy and I have no choice ...

I think there is no clearer indication of the inadequacy of this legislation than that, where ajudge has no option but to jail a 12-year-old boy away from anything that is going to stop himre-offending. I noticed in this case that there is a detention of 12 months. There may be somequestion in the committee’s minds as to why, in a case like this, the order was not put in. Isuspect the explanation lies in that this conviction is undated and may be prior to when thepresident defined in this legislation the ability to make CROs. This may well predate that.

CHAIR—It would have. I think that happened very early in the piece, shortly after thelegislation received royal assent. It was one of the very first cases where the presiding judge inthe Family Court actually made a contribution—

Mr Cuomo—There had been a number of judges in and out, and their views varied as towhat was applicable.

CHAIR—I think the initial one was a decision of Justice Fenbury. Just on that matter—I wasnot going to refer to it, but you have referred to it already—I noted the judge’s remarks. Thejudge has said that the offender has members of his family who are non-drinkers and non-smokers. However, in the personal background section it states that the mother has an alcoholproblem. It also states that he has moved from relative to relative for most of his life, that he hadbeen left to his own devices since he was four years old and that he himself—the 12-year-oldthat we are talking about—had alcohol poisoning. I felt there was a contradiction in those



statements. It is not for this committee to review what the judge said, but I thought that wassomewhat of a contradiction.

Mr Cuomo—I think it is explicable. It may be helpful to the committee to understand this,because it is a common situation when dealing with offenders from remote areas. When you talkabout family, children such as these have big families. The immediate relatives are the mothersand fathers. I note there is no mention of a father other than that he was separated from the childnot long after the child was born, and there are problems with the mother and the child has beenmoved around. A lot of what the juvenile justice system does in dealing with offenders in thissituation is to seek out family who are willing to care for the child—often that is the bestdisposition of the situation. Sometimes the courts will be dealing with wards of state and thesame thing is done on a formal basis, but much of what is done in placing these children is onan informal basis—seeking members of the family who are capable of providing the supportthat a child of that age and circumstances needs. It is something that our practitioners engage inall the time and it is another option for the court. In a sense, the court formalises it but theunofficial community structures take part, and this is a community that loves its children.

As a contrast, there is a reference to case SSS72—a young Aboriginal man, aged 17 years,from Hilton, which is in the Perth metropolitan area. He has a fair offending history—132charges, 23 sentencing appearances, 72 burglary charges. The young fellow we talked aboutearlier has obviously gone through a property and committed an opportunistic offence. Thisoffender has gone out looking for cannabis plants and has stolen property. As the judge remarks,he has offended regularly. In the sentencing remarks the judge has wisely looked at theparticular circumstances of the offender and the offence—as the judges in this jurisdiction do—and noted its particular severity. His Honour has also noted a submission that has been maderegarding a conditional release order, but he says at the bottom:

Quite frankly, if it weren’t for the provisions of the section I would consider some mixture such as your counselsuggests—that is, some detention plus another opportunity on an order—but I think I am constrained by the provisions ofsection 401.

The reason I draw this out is once again to indicate the particular inflexibility of the sentencingregime that is dictated by this legislation. Section 401 maintains a mandatory regime, but with abit of excellent judicial creativity the judge has seen within the body of the legislation theability to substitute this 12-month adult order, which at least gives some flexibility. But, frankly,that does not address the problem. I think the judge indicates that, in sentencing for even themost severe of these offences, it is often rational to look at some cocktailing of orders andsupervised release to give the offender some hope and to have regard to the individualcircumstances of the offender. The reason that I take those examples out of the documentsappended to the review is to indicate that the review itself contains within it the seeds of theargument against this legislation. As I say, it is hard to maintain the argument on that rationallevel because ultimately it is not a rational argument.

Taking questions on notice in talking to our colleagues from ATSIC, the committee referredto diversionary programs. If it is of assistance, I will explain to the committee a little bit abouthow they work in the system. ATSIC programs operate at a number of levels here, but the onesthat provide some assistance are local programs and they are essentially related to issues to dowith employment, resources available to children, supervision and the provision of otheropportunities for leisure and the like. The reason I think they need to be regarded as



diversionary programs is that when you are looking at these offences—and you do not need togo much beyond the facts that are revealed in that review to see that these are offences ofpoverty, boredom and lack of opportunity—these kids are not taking the laptops that MrsLoveday referred to in her example; they are taking cans of coke. They are hungry kids takingmoney to spend on food and that is largely what happens.

ATSIC has programs in a number of areas. The patrols are a very good example of a day-to-day practical approach because at least they have the effect of getting kids off the street. MrMurphy referred to programs in his area in Laverton and Kalgoorlie. There are some othernotable programs, one of which in Halls Creek has had some spectacular success in providingoptions for kids from the desert. In Perth—and this has been topical lately—a Noongar patroloperates in Northbridge, which allows some kids to get home and keeps an eye on them.

The CDEP programs, with which I am sure the committee is familiar, provide employmentopportunities for young people and, again, I think any practitioner in this area will tell you thatthe thing that cures kids of the need to commit crime and so appear in the courts is getting a joband a stake in society, and the CDP programs provide something along those lines.

The funding of local sporting initiatives is also valuable. The hope that is given to children bysporting opportunities is not to be denied. Again, Mr SSS72 talks about his football andbasketball. The Clontarf program, an excellent program run in Perth for young footballers bythe former Dockers coach, Mr Neesham, is something that a lot of kids aspire to. At local levels,ATSIC supports some great sporting programs run by wonderful people.

The fine work of our court officers is another part of the unofficial diversionary programs,some of which come from us, that I talked about earlier. Our court officers are Aboriginalpeople who gain training from us. They have a statutory right of audience to appear in criminalcourts on behalf of Aboriginal people. They present pleas and maintain remands and the likeand appear in the Children’s Court for young offenders. They also work within the communitiesthey live in and follow up individual families. They keep an eye on kids. They tend to know thecommunities they are in and they can intervene and assist the police where it is needed to tryand get kids out.

There are problems with police attitudes. Again, the problems are to do with thecircumstances they are in rather than any particular overt attitudes, but it is very hard for policeto exercise discretion when they have a mind-set that young Aboriginal offenders are unlikely toget the support back in the community which would leave the police with some confidence thatthe kids would not reoffend. There is a case for the police to take a leap of faith and give thebenefit of the doubt to Aboriginal communities. Frankly, the more the control goes back to thecommunities the better. It is also a particular problem in Western Australia because theprosecution regime in the petty sessions courts is totally police controlled; there is no outsideprosecution service that may be able to review, as an independent third party, decisions toprosecute. It all lies with the police. The committee will have seen that again in the NorthernTerritory. It places the police in a situation where they have not only to investigate and chargethe offenders but also to exercise that discretion themselves. It is a hard role to put them in,especially in small country towns.



We are also involved in educating police and Ministry of Justice officials. That is havingsome effect. We work directly with judicial officers. We have a fine relationship with membersof the judiciary in Western Australia. They are very happy to engage in diversion or to look atalternatives to the extent that they are able. This applies both in the country, with magistrateswho also maintain Children’s Court work within their particular jurisdiction, and in Perth. Thereis some hope in those programs. It must be acknowledged that ATSIC is a very diverseorganisation and it engages in those programs to the extent to which it is financially able.

There are a number of questions, particularly on the nature of the offenders and where theycome from. We have given indications in our submissions that they are disproportionatelyyoung, essentially because youngsters are more likely to get caught. The crime of homeburglary is not a crime that serious criminals commit; it is a crime that kids looking for food andmoney commit, and they are more likely to be caught. It also, for some reason, appliesdisproportionately to young people in remote communities, and it is here that the system startsto get its Alice in Wonderland aspects. If you look at the offenders who are taken out of remotecommunities and put into this system—it is something we deal with day to day—you see thatthese are the offenders who are the most uncomprehending and who benefit least from whathappens.

As we noted earlier, the kids who are taken out of remote communities are usually taken fromregional centres, but they are also taken from remote centres outside. They have been chargedand invariably have pleaded guilty. There is very little dispute; it is part of the culture of thesecommunities that kids will freely admit what happens. I digress slightly to say that the clean-uprate in burglaries has a lot more to do with the forcefulness of the interrogation of these childrenthan with the facts of the situation. These kids ultimately own up to everything and end upagreeing to multiple charges, so they are brought to Perth in large numbers. I have been told bythe sergeant in charge of the Kununurra police station that he has a budget of about $100,000 ayear to transfer these children to Perth. They are brought to Perth and they are dealt with inPerth. They have spent some time in remand, in the same facilities, essentially, in whichoffenders are held. A lot of the children who are coming through have some languagedifficulties in coping with what they encounter in Perth. Their English can be a creole. Theirculture is very different from that of the kids down here. They are isolated from family. You aredealing with very young children, a long way from family and a long way from any support.

Aboriginal people are desperate to get their kids out of detention because of the horrendousrates of deaths in custody in Western Australia. Aboriginal parents are genuinely fearful thattheir children will die in detention, so anything that can be done to get these kids out happens. Itis amazing the number of the kids on bail whom you see around Northbridge gaining aparticularly longer record because they have been brought away from their communities andaway from social support.

These kids do not understand the system that they are in. They barely understand the systemof justice at all, without looking at the particular vagaries of a mandatory sentencing situation. Itis frankly outrageous that the Western Australian government does not take justice to thesepeople but demands that these people come to justice. The Western Australian governmentshould be putting facilities into these communities if this system is to have any meaning,because the worst injustice occurs when the kids are taken totally out of the context of their day-to-day lives and from any family support.



They inevitably go home with CROs. It is unlikely that a child in this situation will receivethe mandatory 12 months, but the committee must understand what a CRO is. It is not a softoption review such as those contained in the Young Offenders Act; it is not a youth communitywork order or anything like that; it is an adult order with adult conditions. If they violate that 12months, they immediately face the consequences of that. As the lawyers and the judges put it,they are setting up these kids to fail. So, notwithstanding that they go back to remote areas andgo home and get someone to look after them, given their age and circumstances, it is highlylikely that they will offend again. They have got this order over their heads so they are back tosee the president again. The president is a compassionate judge but, faced with thislegislation—the first dose of it has not worked; the second dose of it may not work—inevitablydetention will result, and that is not in anyone’s interest.

The attitude of the present state government will be interesting here. If there is any chance ofmitigating the effect of this legislation, it has to be by putting these resources into remotecommunities—at least one centre in the Kimberley, which is accessible to parents and families,and one centre in the Pilbara. The matter has been raised with them. There is no particularindication that it is a budgetary priority, and one would hope that, if there is any genuineness inapproaching this particular set of circumstances, it would be.

In terms of our resources tied up in this system, it causes us a great deal of problems, I mustadmit. Dealing with these remote kids is very labour intensive, because you have got to dealwith families at a local level and with the judicial system at a Perth level, you have gotproblems of transporting people back and forth, it is almost impossible to get instructions andyou have got the problem of a very dislocated kid in Perth who needs a lot of things done forthem. It is unfortunate, therefore, that the Western Australian government provides no fundingto us or to any agency other than Legal Aid WA to assist these children. Our organisation doesnot receive one cent in funding from the Western Australian government to cope with the effectsof this legislation, especially to deal with regional areas. We scrape and save from the amountwe get elsewhere but it is inevitable that these children are not receiving the support they need.

CHAIR—We are running out of time as there are still to be questions from the committee.

Mr Cuomo—I hope to cover those areas and will leave it at that.

CHAIR—I must thank you for that. It has been very helpful to us but, as I say, I amconscious of the fact that, come 4 o’clock, we shall have to start questions from members of thecommittee. We have no option on that; we do have another witness coming.

Senator PAYNE—Mr Cuomo, your contribution has been exceptionally helpful to ourdeliberations. I appreciate your input and constructive contribution from a personal point ofview and, I think I speak on behalf of the committee, I very much note your comments.

The one question that I particularly wanted to pursue with you relates to an issue whichappears in the joint submission from the ALS and ATSIC and also in the submission preparedfor the AJC by Mr Morgan and Mr Blagg. The question is to do with age. You have referred tothat briefly in your recent comments on CROs—those being adult orders with adult options—and, in the submission, you submit that for a child as young as 10-12 years to be able tounderstand and appreciate the obligations of a CRO for a period of 12 months is impossible.



The other submission to which I referred—the submission of Mr Morgan—goes so far as to saythat the law should not apply to all children but only to those above a certain age, perhaps 15 or16. Is that a view with which you agree?

Mr Cuomo—No. With respect to that, we just see this legislation as incapable of repair inthat manner. You are dealing with a question of degree here. The younger offenders do notcomprehend—there are no two ways about that. They get a little more sophisticated when theyget older but the problems of this legislation are not entirely related to the perceptions of theoffender. Frankly, 16-, 17- and 18-year-olds need a degree of flexibility in their sentencing thatthis legislation cannot provide. For that reason, our view is that it would not be sufficient reformto do that. Sure, it may make one of the more obnoxious areas of the legislation less so but, inthe scheme of things, it is not going anywhere near to remedying the problems.

Senator PAYNE—Finally, at the conclusion of your remarks you were talking about the willof government to put further resources into remote communities and you referred to centres inthe Kimberley and the Pilbara. What would those centres ideally contain to address these sortsof concerns you have raised?

Mr Cuomo—The key thing about the centres would be their location.

Senator PAYNE—Yes, I understand that.

Mr Cuomo—They would have to be sufficient to allow a young offender to receive whateverthe system wished to mete out to them, at least within their local area. Ideally, these centreswould not be necessary because, from our organisation’s point of view, we would like to handthe responsibility for these children’s punishment and rehabilitation back to the communitiesfrom which they came. To have specific centres in that sort of regime would not be necessary.

Senator PAYNE—In a Western developed democracy and justice system, that is not about tohappen next week.

Mr Cuomo—It happens in Canada and the USA but, nevertheless, it is not going to happenhere in this current context. I think the minimum necessary to address those questions, as youput it, Senator, would be to be able to do whatever the system required a detainee to do. Itwould also require, I think, giving the local judiciary the power to deal with these matters. I amnot going to divert to what Mrs Loveday was talking about with the problems of aggravatedburglaries and the changes to the legislation. Suffice to say that making this category ofaggravated burglaries a severe one, having to be dealt with by superior courts or by the presentChildren’s Court, sucks. If you were to clothe the local magistrate in the powers to deal withthese matters and to deal with them locally and on the spot then that would attend to thatparticular injustice as well. With regard to adults, we have had discussions between the chiefjudge of the district court and the chief magistrate and they have given a commission to themagistrate in the Kimberleys to deal with these matters for adults. It would be ideal if theycould deal with them for the children as well.

Senator LUDWIG—I noticed in the report that part of the process was contracted out. Youreferred to that earlier, that there was an organisation which went around and did the interview.Were you aware when the interviews were done that it was going to eventuate in a section 401



report, such as the one that has been tabled? Were you aware of what the information was goingto be used for?

Mr Cuomo—I think we had some awareness of what the information was going to be usedfor. Our involvement was limited to participation in that consultation and after that we ceasedany involvement in it.

Senator LUDWIG—Do you know whether in the interview you were told that it was part ofthe section 401 review?

Mr Cuomo—Yes, we were aware of that. We are not aware of what the consultant said inparticular and how that has been translated. We are rather curious about that.

Senator LUDWIG—So am I, now.

Mr Cuomo—That will have to remain a matter for you, Senator, rather than us.

Senator LUDWIG—We seem to have missed our opportunity. We might have a second go.

CHAIR—I do not think so.

Senator LUDWIG—In the findings on page 31 regarding the impact of the Pawnbrokers andSecond-hand Dealers Act, they are effectively saying that they could not differentiate whetherthat had a greater impact or—what was the change to the Pawnbrokers and Second-handDealers Act? Are you aware of what the change was?

Mr Cuomo—No. I would have to take that question on notice.

CHAIR—It required greater detail of proof of ownership of goods that people seek to resell.

Senator LUDWIG—You referred earlier to the issue of aggravated burglaries being dealtwith in the lower courts. That issue was also dealt with in the report. Has the government madeyou aware of what it intends to do with the report now that it has it? I know it has only had it fora very short time, but are issues like that going to be agitated or is there going to be a follow-up? Will there be a second round of consultation? Has the government spoken to you aboutthat?

Mr Cuomo—I am not sure of the government’s attitude. I am aware of the attitude of thejudiciary in Western Australia to those issues. There is a great deal of disquiet that aggravatedburglaries have to be dealt with in the way that they are, because they are clogging the districtcourt lists with matters that district court judges and others feel are probably not best dealt withwithin those courts. I understand there is a proposal that has gone to government that theCriminal Code be amended. I understand it went to the previous government, to Mr Foss, thethen Attorney-General, and the pressures were such that the government could not accede tothat request. I am not aware of what the current government’s attitude is in that regard.



Senator LUDWIG—Do juveniles who commit offences all come within your area? In otherwords, does your organisation represent them at the offence, or in the first instance, if theyrequest it? If not, how is it split between you and other organisations?

Mr Cuomo—In regional areas, we are it. They will come to us automatically and, wherethose children are transferred to Perth, it is usual for us to stay the course. In Perth, it is a bitdifferent. We would deal with the vast bulk of young Aboriginal offenders but, because thesecrimes are of a seriousness that legal aid may be granted to private practitioners, there are anumber of private practitioners who work in this area as well. They would either take clientsdirectly or take them from us. Some families have a relationship with Legal Aid too, and LegalAid will look after Aboriginal offenders as well. It is a bit of a cocktail. We would do most ofthe cases; private practitioners would do much of the remainder and Legal Aid would do a verysmall number.

Senator GREIG—In your opening statement you strongly argued your view that we areunlikely to see reform on a state level through a state government of whatever political flavour,and you were therefore advocating federal intervention. The fundamental question that thiscommittee needs to consider in its deliberations is the constitutionality of that. It was muchclearer, I think, in the case of the Northern Territory legislation, where the Commonwealth’smandate to deal with Territory laws is clearer. Do you feel you have enough legal expertise tohazard a view on whether the bill can stand as constitutional?

Mr Cuomo—I suppose my answer to that is that I would probably take the risk. To the extentthat we have a view, it is the view of an interested amateur, in the sense that we have not had along hard look at it with any particular constitutional expertise. But we are of the view, as weindicated in our submission with ATSIC, that Australia’s treaty obligations are at stake here.Given that that founds a valid Commonwealth power, we feel that that would be sufficient forthe Commonwealth to legislate in this manner.

Senator GREIG—Which treaties do you refer to?

Mr Cuomo—I think we refer to it in the submission. Again, you are taking me to somethingthat is out of my usual run.

Senator GREIG—The Convention on the Rights of the Child?

Mr Cuomo—Yes, it is the international Convention on the Rights of Child, articles 37(b) and(c).

CHAIR—When we were in Darwin, we received evidence that there has been a case taken tothe United Nations Human Rights Committee because it is alleged that the imprisonment of oneoffender is in breach of some of the conventions. I am not aware that any individual convictedwithin the Western Australia regime has gone as far as making a complaint to the UnitedNations Human Rights Committee. If the laws are in breach of the conventions, why has nocomplaint been made to date?

Mr Cuomo—Essentially because our resources are entirely devoted to getting people to courtto defend individual offenders. We are currently in a financial situation where we can barely



guarantee representation of every offender in court. As a result of our financial situation wecannot go further. The solicitor that prepared this we can no longer afford to employ—she hasgone. Our community representation unit has contracted to one person, who is quite amultifunction person at the moment because that person does a lot of other things.Unfortunately, we have had to make a choice between advocacy and meeting these problems ona day-to-day basis. Our committee of 16 elected Aboriginal people from around the state havetold us to keep their kids out of jail, and that is what we are doing.

CHAIR—That is a fair enough response from ALS; but taking an issue to the UN committeedoes not necessarily have to be done by an organisation such as yours, it could be by anotherperson with legal qualifications. If the laws are so bad, why do you think it has not been doneby other than the ALS? And that might be a question on notice to our next set of witnesses aswell.

Mr Cuomo—I am sure that the Law Society have plenty of candidates for the job. If theyneed our assistance, they are welcome to ask for it.

Senator PAYNE—There are volunteers lining up in New South Wales, left, right and centre.

CHAIR—This committee, in our previous report, took the view that it is likely that thelegislation in WA was not in breach of the conventions. It is not up to us to adjudicate on thosematters. The only way you can get them adjudicated on is by taking them to that committee andhaving the committee adjudicate, but they cannot adjudicate if nobody is taking a submission tothem. But it has not happened with regard to Western Australia.

Mr Cuomo—I take the point, Senator. It is just a question of resources.

CHAIR—The concerns that have been expressed today by ALS have focused on juveniles,on younger people. Have you got similar concerns with regard to the effect of mandatorysentencing in Western Australia on adults?

Mr Cuomo—Yes, we have. In a sense the issues are quite similar, because you are dealingwith people who are very similar: the difference between a 17-year-old and an 18-year-old isnot all that great. The problems are much the same. It must be said that part of the particularlyobnoxious nature of the legislation for juveniles is that it comes down harder on them and theinjustices are that much more easily wrought. But the injustices go on both sides—that isaccepted. The juveniles are a particular problem, though.

CHAIR—Thank you very much, Mr Cuomo. We thank your organisation, the AboriginalLegal Service, for the submission and for the cooperation with the other body. Thank you foryour attendance here this afternoon and the valuable assistance you have given the committee.



[3.10 p.m.]

PRIOR, Mr John Brian, Deputy Convenor Criminal Law Committee, Law Society ofWestern Australia; and Treasurer, Criminal Lawyers Association of Western Australia

THOMPSON, Ms Clare Helen, President, Law Society of Western Australia

CHAIR—I welcome the representatives from the Law Society of Western Australia. TheLaw Society has lodged submission No. 83 with the committee. Are there any amendments oralterations you wish to make to that submission?

Ms Thompson—No, there are not.

CHAIR—I invite you now to make a short opening statement and, at the conclusion of yourremarks, I will then invite members of the committee to address questions to you.

Ms Thompson—Thank you, Mr Chairman. I am not a practitioner in this area so the detail ofour submission and the matters which we feel are important and should be raised with thecommittee today, will be dealt with by Mr Prior. Suffice for me to say, as a matter of policy, theLaw Society of Western Australia is opposed to mandatory sentencing. We recognise thatsometimes there are exceptions where mandatory penalties are useful tools, but we say thatmandatory sentencing for property offences, particularly as it pertains to juveniles in this state,is not one of those exceptions.

As a matter of policy, the society would be prepared to support federal intervention in thisarea to override state legislation. We regard the current legislation as being sufficientlydraconian to be an appropriate case for federal intervention, despite the fact that, as a generalrule, the society does not support federal intervention in matters of state legislation. I now turnto Mr Prior who will make some submissions as to the impact of this legislation in WesternAustralia.

Mr Prior—I actually appeared before an inquiry back in February 2000 and I think three orfour of you were members of that inquiry. Our written submission, of which I was the author, isidentical to my earlier submission, and the oral submissions I made at the previous inquiry hereare identical. Nothing has changed for the better, so to speak. What has changed in nearly twoyears? In simple terms, I would suggest that the arguments against this form of mandatorysentencing have become stronger. My original submissions, both oral and in writing, still havethe same relevance.

There have been some changes and I will mention what I would say are the significantchanges. As you would be well aware from Mr Marshall’s comments this morning, thelegislation was limited to four years before there had to be a review and that time has expired.On 15 November last year, the report was tabled in parliament, and I am sure you have heard atlength about that report and have got a copy of that government report today.



The only other significant thing is that we had a change of state government in February lastyear. The new government’s position, as far as I understand it and it was probably outlined thismorning, is that it intends to maintain this legislation. What is the factual basis on which thatwas made given the review that was carried out on the legislation? Firstly, it would seem that,generally speaking, there has been no decrease in home burglaries. If you look in the report atthe statistic that refers to police reports of home burglaries, you will see pretty much ahorizontal line along the graph which shows that there has been no decrease. One of thefundamental reasons this legislation was brought in by the state government at the time was toact as a general deterrent and, hopefully, as a result of that a decrease in home burglaries. Thatjust has not occurred.

The second thing which is of most significance, and no doubt you have heard thissignificantly throughout today, is that in the first four years of this legislation’s operation—myreading of that report is the fifth year of its operation being last year and we do not have anyaccurate statistics for that; the first four years are the statistics—there have been approximately110 juveniles sentenced to 12 months of either detention or imprisonment. That is from readingthe statistics. I say ‘approximately’ because some of these are ‘repeat juveniles’. As you have nodoubt been told, 81 per cent of them are Aboriginals and the majority of them are from countryareas.

Let us go back to the oral submission that I made on 3 February 2000. Just to show you thestraight-out discrimination between adults and juveniles by way of that, combined with othersentencing legislation in this state, I gave the practical example of a father and a son doing theirthird strike, so to speak, and burgling a house. The father receives a 12-month minimum and theson receives 12 months. The father serves six months; the son serves four. The father servesfour on parole and then arguably, if he behaves himself on parole, he will have a four-monthremission while the juvenile remains under supervision for six months. So straight outobviously there the juvenile, notwithstanding that they are a juvenile, serves two months longerimprisonment, to use that example. I am no constitutional lawyer but I have seen some of theinternational conventions concerning children, and that would seem to be to be a blatant breach.

The other thing that I highlighted by using that example was that I could deliberately pickBroome in Western Australia. I am sure in this day and age all of you would be aware of thesituation in Broome. I picked that to also highlight what I have described as geographicaldiscrimination. If you were an adult and got sentenced to imprisonment in Broome, it is quitelikely you would be serving your sentence in Broome regional prison. If you were a juvenile,you would be going to Banskia or Rangeview prison in Perth. If you consider that and the sortsof young people who commit these offences, the chances of them seeing any immediate familyand relations while serving the imprisonment is pretty slim.

So what is still there from the submission I made two years ago? Firstly and fundamentally,as you have no doubt heard throughout the day, is the juvenile discrimination in this legislation,in that juveniles serve more than an adult on the same set of facts. Broadly speaking, and I amsure you have heard about this from a number of people today, there is racial discrimination juston the sheer fact that in particular with the majority of juveniles it seems about 81 per cent areAboriginals who are subject to this sort of sentence. Also, there seems to be in some of thesubmissions I have seen suggestions that non-Aboriginal people are more likely to receive non-custodial options even in juvenile courts.



There is the geographical discrimination that I have just described, and there is also this, and Ihave to say this is anecdotal. I have spoken to a number of lawyers who work for legal aid in theyouth law unit and to private lawyers who regularly go down to the Children’s Court, and thereare a couple of anecdotal things I would like to highlight that seem to have occurred since thislegislation came into play. The first is what I call discrimination within the juvenilesdiscriminated against. There are 80 or so juveniles who have been sentenced to mandatoryimprisonment. Quite clearly, it would seem some of them have committed more homeburglaries by definition than three, so some are 10 strikers and some are three strikers. Giventhat 12 months is the minimum and that you are dealing with juveniles, as a matter ofsentencing with the Children’s Court magistrate or judge who deals with those juveniles—andyou are probably aware that the Children’s Court president deals with all these sorts of offencesand that that post alternates; we have had four or five different judges sitting as Children’s Courtpresident over the last five or six years—it is quite likely that, if you are a third striker or a 10striker, you are going to get 12 months, because the consensus is that as a juvenile that is a longsentence in any event. I do not think there are any statistics or records you can rely on with this,but that is the impression I get from the people in the legal profession who are down there.Therefore someone who is a third striker gets discriminated against compared with someonewho is a 10 striker, because they are getting 12 months as opposed to two or three years. So thatis one thing that is of concern.

It also affects the legal profession. What happens when you have mandatory sentencing isthat you have lawyers who give up, in terms of doing pleas in mitigation in a thorough manner,because the sentencing discretion is so fettered they do not think it is warranted to say much. Inmost states we now have sliding scales for drink-driving offences. I regularly have people ringme up and say, ‘Can you come along and represent me on an 0.08 offence’ and I say, ‘It is awaste of time,’ because, really, there is not much discretion. There are good reasons why wehave mandatory sliding scales on those sorts of offences. But when you are dealing withjuveniles who are looking at potentially 12 months imprisonment, minimum, and you havelawyers going down there and saying, ‘Well, look, there is no point in doing a plea in mitigationbecause you are going to get 12 months’—and 12 months to most judges is still a long time—that is a concern.

If you want to take that one step back—and it would be interesting if statistics could beobtained on this, I am not aware of any, but what I have been told anecdotally makes sense ifyou analyse how bail works in any state or territory—it is difficult to get bail if you are on acharge of this nature. So, if you come before the Children’s Court in this state, and it is clearfrom your record you are a third-, fourth- or fifth-striker—in other words, if you are convictedyou will get 12 months at least—the policy generally is for the courts not to give bail,notwithstanding there is a presumption of innocence at that time—that the person may bedefending the charge and ultimately be acquitted. The backlog in the Children’s Court, as Iunderstand it, is not as bad as in the adults court but you could potentially have someone goingto jail as a remand prisoner for three to four months and ultimately being acquitted—ultimatelynot being a third-striker. That results from the fact that in assessing bail things such as thelikelihood of reoffending and the likelihood of not coming back to court have to be looked at. Ifchildren are faced with the threat of no ifs or buts and that they will get 12 months’ jail, theweight that is given to that principle is pretty strongly against the accused person.



It would seem clear—and I think the government report suggests this—that even withoutmandatory sentencing some juveniles would still go to jail for 12 months or more. They mightbe the 10-strikers, they might be the five-strikers, to use the expression. As a person whoregularly appears in the adults court for accused people—and to prosecute accused people—Ican say that the implicit comment in the state government’s report is that sentences for homeburglary do not seem to have gone up. The reason is that people were getting 12 months at leastfor home burglary unless they were first offenders, perhaps under 21, appearing in the DistrictCourt. So there has not been much change in the adult court sentencing regime.

Going back to my example of the age discrimination: if you have the same set of facts wherethe child does more in terms of served sentence and sentence under supervision than the adult. Ithink Senator Payne said to me, when I raised that submission at the last hearing in February2000, that she was aware of this, because the government representative—I think it was DrFitzgerald at the time—appeared before me and said, ‘Well, there is a bill before parliament andthat bill is a result of what we call the Hammond report.’ That is a report commissioned bygovernment and chaired by the Chief Judge of the District Court, Chief Judge Hammond—where sentencing regimes were going to be changed so adults served a half instead of a third.That was in February and my response to it was actually incorrect. I said, ‘I think that is justabout to be proclaimed’ but, in fact, it was still being debated in state parliament. Here we are,two years later, and nothing has happened other than there has been a change in stategovernment, supposedly to a government that is, one would say—given some of its initiatives—quite focused on diversionary options for sentencing.

The other thing that permeates this, which was brought in by the previous state Liberalgovernment—and you have probably seen this in the government’s report—is that there hasbeen a drug court regime brought in here, and I say ‘brought in here’ because it is notlegislatively backed, which is of huge concern. But it is a pilot scheme and it has been runningfor about 18 months.

Senator PAYNE—Your drug court is a pilot scheme?

Mr Prior—Yes. It has been running under a specific magistrate. She runs the drug courtmagistrates court and has the power, once the district court judge sends matters down to her, todeal with matters in that court. No-one has really challenged that in a higher appeal court, andthere are probably obvious reasons for that, but the fact that there is no legislative backing to itis a big concern at the moment—but that is supposed to be in the pipeline, so to speak. Thepoint I am making is that, in one breath, you have both state governments, the Liberalgovernment and now the Labor government, saying the same thing: that it is a gooddiversionary option; on the other hand you have this mandatory sentencing regime. I think it iswell accepted—it certainly is in the government report—that people who commit homeburglaries, whether they are juveniles or adults, are quite often people who should be looked atby the drug court because they are committing those sorts of crimes as a direct result of theiraddictions.

So I find it quite contradictory that in one sense you still have this mandatory sentencingregime but in the other sense you have things such as the drug court and the present stateAttorney-General saying that he is going to bring in legislation so that no-one can be sentencedto less than six months imprisonment; yet this penalty still remains on the statute books.



CHAIR—Can I just intrude and ask how long you are going to be with your openingcomments?

Mr Prior—Those are the substantial comments I have to make. The only other thing—whichI hope someone has already highlighted to you—is that, if you look at the government report,you will see the number of children who have been affected by this legislation in the Children’sCourt. By my count, there are approximately 21 children, aged from 11 to 14, who havereceived a 12-month sentence.

CHAIR—Do you include CROs in that definition of sentence?

Mr Prior—No, I do not. I have actually excluded that. From memory, I think the figures inthe government report show about five or six.

CHAIR—Yes, indeed.

Mr Prior—There are actually about 21. I cannot be certain that there are exactly 21, becausethere could be someone who is a repeat offender. One wonders how an 11-year-old can get up to10 strikes, but I suppose it is possible. So you have people of that age who are going to jail for12 months and that would seem, fundamentally, to be a major concern. I query whethergovernments, when they brought in this sort of legislation, anticipated this was going to happen.One thing I am sure you have heard from every state and territory legal body in terms ofmandatory sentencing, whether it is for home burglaries or whether it is for property offences asin the Northern Territory—and I said this last time—is that the loss of judicial discretion is ofconcern to those of us in the legal community, because the sentence should meet the crime. If itis suggested generally by the non-legal community that judges do not react to the prevalence ofcrimes or to community concerns, that is just wrong.

For example, I have just brought a judgment down from the Court of Criminal Appeal inWestern Australia. This is the matter of Ward v. the Queen. It was delivered on 2 August 1999.The members of the bench were Chief Justice Malcolm, Justice Ipp and Chief Justice White.They are all quite experienced judges. I will read you this paragraph which is from 1999, afterthis legislation came in:

The courts in this State have taken the view for some considerable period that the offence of burglary is a serious offence,the prevalence of which has been the subject of considerable community concern. In a number of cases the Court hasheld that the range of sentences imposed for burglary offences when they are committed on people’s homes, particularlywhen persons are present at the time when the offences are committed, should be firmed up.

And a number of decisions from 1997 to 1999 are referred to. It continues:

Parliament recently singled out the offence for special treatment by increasing the maximum penalties for domesticburglaries in 1996.

Which is the legislation that we are referring to. It continues:

It is necessary that courts give effect to the reasons for these changes ...



That appeal against the 12-month minimum received by the adult offender, Mr Ward, wasdismissed. But the comment there suggests—and you can look at other offences where there areexamples also—that the courts readily do firm up sentences if there is a prevalence of them or ifthere is a community concern, and that community concern is usually because of a perceivedprevalence of those sorts of offences.

If you look at that and look at what the government report says in relation to section 400 and401, you can see that there does not seem to be any increase in sentences for burglary. It wouldseem that most people, if they were adults, were going to get 12 months or more for burglary inany event. So it has been a complete failure for adults, and then you have all of thediscrimination factors that I have highlighted for juveniles. That is all I really wanted to say—but perhaps there is one other anecdotal comment.

CHAIR—We do have a time line and there are questions to be directed to you. If you cankeep the anecdote very short, I will allow it at this time, but I am very anxious to get intoquestions.

Mr Prior—You might have already heard this, but some members of the legal professionwho appear in the criminal jurisdiction believe this sort of legislation just redirects the offenceselsewhere. In other words, there has been an increase in street muggings and the robbing of softtargets—that is, delicatessens and petrol stations—as a direct result. If you are a juvenile, youthink, ‘Jeez, I automatically get 12 months for burgling this house as a third strike or I can walkinto this deli with a syringe.’ They do not think that ultimately that is probably a more seriousoffence and the maximum penalty they are exposing themselves to is greater; all they rememberis the mandatory penalty. That is a perverse effect of deterrence—a penalty. That is all I wish tosay, and thank you for the extra time.

CHAIR—You are welcome. We do have a time frame and I apologise for intruding uponyou. The Criminal Lawyers Association were part of the review into section 401.

Mr Prior—Yes.

CHAIR—Is that the reason you were so generous about the results of the review when youtalked about the graphs and the statistics and them being over a four-year period when in actualfact they were only over a period of 18 months from the legislation being on the books?

Mr Prior—I think the answer to that is yes. The problem —and I do not know whether MrMarshall said this—is that there has been a real lack of concrete reporting facilities for offencesand appearances in court in this state for a long period of time. Examples such as this have hadone positive effect, which is that, through the crime research unit and through the courts’ ownstatistics, there now seems to be a bit more statistical information, but I am still somewhatconcerned about the amount of it.

CHAIR—The report itself I think goes some way to highlight those deficiencies.

Mr Prior—Yes, given the government was aware that they had to write a review on thislegislation, it was a classic example of where they had to keep some sorts of statistics and startworking out a good statistical basis on which to keep them.



CHAIR—Why was the Law Society not involved in the review?

Ms Thompson—I believe that we deferred to the Criminal Lawyers Association, as we oftendo in these sorts of matters, because of their specialist expertise. It is quite likely that we wouldhave referred our inquiries to Mr Prior in the other association, and the submissions would havebeen done on behalf of both organisations. If I could just mention one thing in relation to thatreport, something that strikes me upon reading it is that it seems to be very administrative innature in terms of its findings. That is useful for government finding out what it needs to do toimprove its reporting mechanisms, but it does not actually, as far as I can read, address thefundamentals of what mandatory sentencing is about and whether it is achieving its objectives.As far as inferences about objective achievement are concerned, you actually have to draw themyourself, as opposed to getting them from the report itself, so we have a problem with the reporton that basis as well.

CHAIR—My next question was going to be: did you find that the review was adequate, andadequate in the circumstances that the legislation has been very controversial, both at itsinception and since then in the fact that has been subject to now two Senate committeeinquiries. You have answered that question. I make the comment, though, that on the lastoccasion we were specifically looking at mandatory sentencing for juveniles and, of course, thefocus of attention at that time was on the Northern Territory and the excesses that were comingfrom that jurisdiction—and they actually got worse as the committee review commenced. Theother thing that has changed—and this is a change for the better—is that Western Australia isnow the only state with mandatory detention for property offences on its books. That is achange, I think, of some substance that causes me, as a member of the Australian Labor Partysome concerns—and still does.

Ms Thompson—It is a matter which is of concern to the society. We, as a matter of principle,like to see laws which are consistent in states. That is a real issue as far as we are concerned.

Mr Prior—The question should be asked: is the home burglary rate so bad in this state thatwe are the only state that needs mandatory sentencing to deal with that specific crime? Thereare some statistics that say we perhaps have the highest level of home burglary.

CHAIR—We had it confirmed again this morning. It still remains the highest in Australia onan incident rate and there has been very little change in that rate. However, the statistics werenot up to date and we had some problems with them in the course of the public hearing thismorning.

I have a final question. Mr Prior, you indicated that this legislation was ‘a blatant breach ofthe conventions’. That being so, and this legislation having been on the books now for somefour years, why has a case not been taken to the United Nations about this? In the NorthernTerritory a case has been taken to the United Nations. ALS told us earlier that they do not havethe resources to do it, but I am sure there are many others who do.

Mr Prior—There are three reasons I can see for that, none of which I am particularly proudof. The first is that there is probably no point doing it with an adult because, as the state reportrevealed, those people are going to get that sort of sentence anyway from judges exercising theirnormal sentencing discretion. So then you go to the juvenile, which goes back to my submission



earlier on that that is the Achilles heel because it seems to be fundamentally againstinternational conventions. The problem with that is that no-one has picked out an appropriatecandidate.

I think some people in the legal profession believed that (a) they should wait for the reviewand (b) when the government changed, given the changes from one political spectrum toanother, this was going to be the end of mandatory sentencing. Only in about December or lateNovember last year did it become really clear that mandatory sentencing was here to stay, so tospeak, and would survive the five-year review period on the legislation.

CHAIR—But there was no commitment given by the then opposition in the lead-in to theelection that mandatory sentencing would be removed from the statute books. In fact, I think thereverse was the case in point.

Mr Prior—I agree.

Ms Thompson—That is true.

Mr Prior—I suppose the answer to the question about what happened in the NorthernTerritory is that a lawyer who felt particularly passionate about this brought an application tothe High Court. The important distinction between the Northern Territory and WA—and I amnot being disrespectful when I say this—is that the focus was probably more on the NorthernTerritory two years ago because the pool of people it was going to affect, in particular juveniles,was larger because there were more offences covered. That has now gone. The fundamentallyfrightening thing about this legislation is the minimum period of 12 months imprisonment. Thatis probably something that should have been looked at earlier on. So I have provided a sort ofanswer to your question but it is not a good answer, unfortunately, because in my opinion itshould have happened.

CHAIR—Perhaps it will jog some memories.

Senator PAYNE—I have questions in three areas. Mr Prior, can we assume that you agreewith Ms Thompson’s assessment of the utility of the government’s review?

Mr Prior—Yes. I think the best evidence of that is to read the findings: it is about two linesfor every—

Senator PAYNE—Indeed.

Mr Prior—I have difficulty equating the finding with the statistical material that is before it,unfortunately.

Senator PAYNE—Have you had the opportunity to see the initial public submission thecommittee received from the Western Australian government in August last year?

Mr Prior—No.



Senator PAYNE—I will just read you one paragraph:

Western Australia is strongly committed to protecting the rights of young people as is evidenced from the informationprovided above.

This refers to some statistics and further information. It continues:

However, with Western Australia having the highest rate of reported burglary offences in Australia, it is a matter ofachieving an appropriate balance between the rights of the child and the rights of the community.

I would be interested in your association’s view of how incarcerating an 11-year-old child for 12months achieves that appropriate balance between protecting the rights of the community andthe rights of the child from whom one imagines it is being protected.

Mr Prior—There are some case examples in Mr Morgan’s submission, and unfortunatelythere is even an anecdotal comment in the government report, probably picking up the samecase, about an 11-year-old Aboriginal child who has now become entrenched in the systembecause they have gone to the ‘graduate school’ of criminal practice at the age of 11 and spentsix months there learning their trade, so to speak, and then continually going back.

So, in answer to your question, the bottom line is that those sorts of people are going to goout into the community, having been institutionalised to some extent, and just commit moreoffences of a similar nature and probably of a more serious nature. You cannot just draw a lineand say, ‘There are the interests of home owners and there are the interests of juveniles and wethink the interests of home owners are paramount.’ You have to look at the juveniles first. Touse your example, if an 11-year-old is going to jail for 12 months and is going to serve a six-month period in jail, something has gone horribly wrong in the first 11 years of their life andeveryone should be asking the question: what could have been done besides sending them tojail?

Senator PAYNE—So you would be having the same difficulty I am in finding thatappropriate balance?

Mr Prior—Yes.

Senator PAYNE—In fact, I might say—just for the record, rather than being correctedlater—that the information that we have from the government indicates no period of detentionor imprisonment for an 11-year-old, rather for a 12-year-old. But my point stands. My thirdquestion goes again to the government’s first submission to us, which says with someenthusiasm that the Department of Justice and the police service are working together to look atsome proposals for implementing recommendations from the review of the Young OffendersAct 1994. They include juvenile justice teams covering a wider range of offences, Aboriginalelders and police wardens and so on. Are you familiar with this? Does the Criminal LawyersAssociation have a view on those? Do you have any role to play in the consultation process thatleads to these recommendations?

Mr Prior—Yes and no. If we are asked to make a submission we usually do. Sometimes—and I am being apolitical about this—some of the two governments we have had of recent timesdo these things and ask for a submission when the bill is already before parliament, and it is,



quite frankly, useless to make a submission at that point in time. It is a bit like what I was sayingabout the drug court. There is a strong cry from the present Attorney-General to increase the useof juvenile justice panels—diversionary options—and to increase the width of offences thatpeople can be referred off to juvenile justice panels for.

Senator PAYNE—We have been very interested in that, and we have looked at the Territorywith interest as well.

Mr Prior—To some extent, defining what can go to a juvenile justice panel by sheerdefinition of the crime is wrong. Assaulting a public officer can be a very minor offence bysome 13-year-old pushing a police officer after they have been put in a panel van for doingsome graffiti and then, all of a sudden, they cannot go before a juvenile justice panel. But theintent of this state government, in particular, is to increase that spectrum. That flies in the faceof sections 400 and 401 of the Criminal Code, to leave it on the statute books.

Senator PAYNE—Thank you for that clarification.

Ms Thompson—I would like to add two small comments. The first is in respect of thatstatistic you had in relation to 12-year-olds. I have been told anecdotally by people who work inthe Children’s Court that they have recently been in the position of having to sentence 11-year-olds. So, whilst it may not show up in the government’s statistics, as recently as December an11-year-old was sentenced to a term of imprisonment. That is something that ought to be ofenormous concern to the community.

The second thing that is also important in relation to the drug court issue is that once you aresubject to the mandatory sentencing regime as an adult you are not entitled to go to the drugcourt. So that cuts you out of that option and, of course, the drug court regime is not currentlyavailable to juveniles. So, again, it is an area where there is considerable concern amongst theprofession.

Senator PAYNE—What is the duration of the pilot for the drug court?

Ms Thompson—Two years.

Senator PAYNE—Starting when?

Ms Thompson—November 2000.

Senator GREIG—Where do the kids who are as young as 11 who have been convicted forterms of imprisonment go? Geographically, where do they go in Western Australia?

Ms Thompson—There are two detention centres here in Perth. All juveniles from throughoutthe state come to Perth. That, obviously, has a huge impact on children who live in the north orthe south.

Senator GREIG—What are the names of the centres?



Mr Prior—Banksia Hill and Rangeview.

Ms Thompson—One is in Canning Vale and the other is in Banksia Hill.

Senator GREIG—I have a rough understanding. What is the approximate average age ofmost juveniles at those places?

Mr Prior—I would say 16 to 18.

Senator GREIG—So considerably older than 11 and 14. Is there any opportunity ormechanism—or is it happening now—for intervention by social workers or youth workers whenkids as young as 11 or 12, as Senator Payne indicated, are being caught up in the system at thatlevel? Is there some kind of social response, or are they just left at the whim of the jail?

Ms Thompson—As I understand it, and this is again anecdotally, the Children’s Court is verymuch concerned with issues of that nature and operates a number of programs for intervention.There are a lot of things that are done.

Senator GREIG—And that happens after they are convicted?

Ms Thompson—I believe it does.

Mr Prior—For example, if they got a 12-month mandatory sentence, part of it would be six-month supervision—so it would effectively be like an adult doing a parole sentence withconditions on it.

Senator GREIG—We heard some evidence earlier from Mr Colbung advocating a responseto juvenile crime with indigenous kids in indigenous communities with what you might calltribal or custodial law. Does the Law Society have a view on that and how that may complementor possibly conflict with other legal systems?

Ms Thompson—The Law Society has not specifically considered the impact of tribal law,but the society’s view is very clearly that juveniles ought to be dealt with in their communities.If that is a tribal based community, then obviously there is an opportunity there for those sorts ofissues to be taken into consideration. We have not looked in detail at what that will mean on acase-by-case basis but, as a matter of principle, communities are better placed to look afterjuvenile offenders and deal with them than a detention centre thousands of kilometres awayfrom their homes would be.

Senator GREIG—I asked representatives of ATSIC earlier today if, in the event that repealof the legislation was not going to happen in the current political climate and there was going tobe no Commonwealth intervention, they could advocate or support some amendments to thecurrent regime in WA. Would it be your view that, if that were to happen, you would be in aposition to perhaps advocate changes to the current system, or do you maintain an implacableopposition to mandatory sentencing, no matter what?



Ms Thompson—We are opposed to the present regime of mandatory sentencing. As I said inmy opening remarks, the society accepts that mandatory penalties are appropriate in somecases—the drink-driving offences are probably the most obvious of those—but we say that thisis not an appropriate case for mandatory sentencing, particularly for juveniles. We would bemore than happy to work with the government to try to come up with some options that wouldresolve some of the difficulties and that were particularly targeted at resolving these anomaliesin the system. But, as a matter of principle, we are opposed to 11-year-olds, 12-year-olds and14-year-olds going to prison.

Mr Prior—The problem is that if you tinker with it, to use an expression, you createjurisdictions within jurisdictions. Perhaps it would be logical to amend the legislation so that itdoes not apply to children 15 years and under. What happens then is you have a Children’sCourt which deals with children under 18 and over 10, I think, for criminal responsibility butyou create a jurisdiction within a jurisdiction for a specific crime. That seems somewhat strangewhen, in that same jurisdiction, if you commit an offence that some people might argue is amore serious offence, like an armed robbery, and you are 13 or 17 the same general rules apply,notwithstanding your personal antecedents getting weighed in, but with a certain type of offenceyou are either in or you are not. It means that within the whole jurisdictional process of having aChildren’s Court to deal with children and an adults’ court to deal with adults all of a suddenyou are creating these subcategories.

Senator LUDWIG—In respect of your opening remarks supporting federal intervention, doyou go so far as to support enactment of the Human Rights (Mandatory Sentencing for PropertyOffences) Bill 2000?

Ms Thompson—We have had a look at the draft bill and we do not have any particulardifficulties with it.

Senator LUDWIG—So you have no difficulties with clause 5—some of it is repeated inclause 6—which states:

A law of the Commonwealth, or of a State or of a Territory must not require a court to sentence a person to imprisonmentor detention for a property offence committed as a child.

Under clause 4, a property offence includes robbery or armed robbery.

Ms Thompson—I see no particular difficulty with that. The issue is ‘require’ as opposed to‘discretion’, and it would still leave the court with the discretion to sentence someone inappropriate circumstances.

Senator LUDWIG—I was thinking of a situation where the penalty might be a minimum,and the discretion for the judge might be a minimum or maximum detention period, and that isthe discretion the court might otherwise have. For argument’s sake, it might be 28 days, 90 daysor one year, as against, in the instance of, say, armed robbery, where there may be no otherorder, but the discretion still exists for the judiciary to detain someone for 14 days or 12 months.So you have the discretion there. Is your argument that there should be further discretion andthat the discretion should also include other orders?



Ms Thompson—Yes.

Senator LUDWIG—What other orders might they be?

Ms Thompson—The sorts of orders that you would be looking at are things like intensivesupervision and the types of diversionary programs that are often talked about in this field. Wethink that, particularly when you are dealing with juveniles, diversionary programs ought to beyour first port of call. Sentencing to terms of imprisonment ought to be your absolute last resort.The person who is in the best position to make a decision about the appropriate penalty toimpose is the judicial officer who is hearing the case and has all the facts before her or him.

Mr Prior—In this state—this is something we have had a problem with nationally—only inthe last 10 or maybe 15 years have we looked at ranges of sentencing options and increasingthose ranges. For example, in this state we do not have weekend detention or conditions whichcan be imposed on suspended prison sentences. I am aware that some eastern states have them.That is one of the problems in this state. In 1995, when our Sentencing Act was brought intoplay, for the first time we had suspended prison sentences for state offences. We and, Iunderstand, the state government are still looking at these things. I think there is a draft billwhich deals with weekend detention and so on.

Senator LUDWIG—In relation to a 17-year-old who hypothetically commits an armedrobbery, under the current Western Australian law what sentencing options are available to theDistrict Court?

Mr Prior—I have prosecuted quite a few 17-year-olds who have committed armed robberies,and most of them have received sentences of around a year to two years imprisonment. In manycases, if they were 17 when they offended, by the time they got to court they were 18 or nearly18, so they either did the whole of the sentence in an adult prison or were transferred to an adultprison.

Senator LUDWIG—But what other sentencing options were available?

Mr Prior—If you are over 17 you can be subject to adult intensive supervision orders.

Senator LUDWIG—What I am getting at, to shortcut it slightly, is that ‘a child’ means aperson under the age of 18. A property offence includes an armed robbery, so theCommonwealth law enacted under the Human Rights (Mandatory Sentencing for PropertyOffences) Bill 2000 would then not require a court to sentence a person to imprisonment. Ifnothing other than imprisonment is available for the District Court judge, what does he or shedo? That is the point I am trying to ascertain.

Mr Prior—There are other options available now.

Senator LUDWIG—Is that across the board—for example, for robbery, armed robbery?

Mr Prior—It is across the board.



Senator LUDWIG—That is provided there are other available remedies. If there are no otheravailable remedies, the imposition of a federal statute will leave the person to go free. If that isthe case we will have a little trouble with it.

Ms Thompson—It would leave the state government in the position of having to identify andfund alternative diversionary programs.

Senator LUDWIG—Because it is a federal law, I do not know if they would do that in thefirst instance. I am sure we would end up playing a difficult political game over that. What Iwas trying to ascertain was whether you have explored those issues. You said unequivocally thatyou support the introduction of the human rights mandatory sentencing property offences, and Iwas trying to ascertain whether you had taken armed robbery into consideration.

Mr Prior—Certainly not. To use your example of a 17-year-old—I think the cut-off mark is17—some of the juvenile legislation in the state says that, if you are 17, you can get all the adultsentences or all the child sentences. So the 17- and 18-year-old age range, out of any age range,has the widest range of sentencing options available to them, for probably good reasons.

Ms Thompson—They also include things other than imprisonment, so there are otheralternatives.

CHAIR—One of the things I was surprised about with the review was the fact that the reportwas presented and almost sank without a trace. There was very little comment about it, and Iwas amazed that a number of the witnesses who came before this committee were not only notinvolved in the review—

Senator GREIG—Or not invited to the review.

CHAIR—but did not know the results of the review, despite the concerns in the communityabout this legislation.

Mr Prior—That is the other thing. I did not address the reviewer; the President of theCriminal Lawyers Association did, and we took along a defence lawyer who regularly practisesin the Children’s Court. My understanding is that it was a reviewer—not a practising lawyer, nota committee—who prepared the report and, with the greatest respect to the person, I think thatthat is reflected a little bit in the final report.

CHAIR—Almost half of the interviewees were representatives of the judiciary. We haveheard about the judicial concerns—indeed, we have read about the judicial concerns, includingsome that are incorporated into the case histories here—within a very large body from the legalprofession, including criminal lawyers and the Aboriginal Legal Service, all of whom haveexpressed concerns about the legislation and the impact of the legislation. It would seem to me,from the outside, that those concerns, if indeed they were expressed to the review, are notrepresented in the review.

Ms Thompson—I think that is an accurate assessment of the review. As I said before, thereview is very administrative in nature—not only that, it is also extremely disappointing in its



depth and breadth. It just does not look at what mandatory sentencing is about and try to answerthose questions.

CHAIR—Is it a review in the strictest sense of the word? Bearing in mind how I pulled youup on the statistics, it is actually a review of the 18 months of the—

Mr Prior—It is not a review.

Ms Thompson—It is certainly very deficient and it is arguable that it does not meet thestandard that ought to be met.

CHAIR—My final question concerns the constitutionality of the bill that is before thecommittee. Are there any concerns from the legal profession here in Western Australia as towhether or not this bill would be constitutional if it were indeed passed by the Commonwealthparliament?

Ms Thompson—We have not taken advice on it specifically, but when the council of theLaw Society, all members of whom are practising lawyers, reviewed the submissions andendorsed them, the council took the view that the external affairs power, in particular Australia’sbeing signatory to the Convention on the Rights of the Child, would provide the constitutionalbasis upon which this legislation would operate. That was an issue that was raised and discussedat council, and no real concerns were raised about that. In the absence of having taken specificadvice on it from a constitutional expert, we have no particular constitutional concerns.

CHAIR—Ms Thompson and Mr Prior, thank you again for the assistance you have given thecommittee and for giving up your time this afternoon to come and assist us again with ourdeliberations. We are appreciative of it. I again acknowledge the gratitude of the committee toall the witnesses who assisted us at this public hearing here in Perth today. I also acknowledgethe assistance of the Sound and Vision Office and Hansard, who have recorded the proceedingshere today. I thank also the committee secretariat, who have enabled this hearing to run verysmoothly, and of course that would not have been possible without the cooperation of mycolleagues, the members of the committee. Thank you very much.

Committee adjourned at 3.59 p.m.

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