Criminal Justice Reform

Criminal Justice Reform

For many years, the Law Society has called for the abolition of mandatory sentencing.

Mandatory sentencing undermines the principles of the rule of law, because sentencing is the role of the judiciary, not executive government.

It is long overdue for the recommendations of the Royal Commission into Aboriginal Deaths in Custody to be fully implemented, including eliminating or minimising ligature points in prison cells and appropriately funding treatment programmes.

The 2025 state government election provides an opportunity for the incoming government to demonstrate to the people of Western Australia that it values everyone’s rights equally.

Family and domestic violence prevention must remain a priority for the incoming government, including community education, and funding to support services in all areas related to family and domestic violence.

Three Priorities:

  1. Family and Domestic Violence (FDV)
  2. Mandatory Sentencing
  3. Implementing Recommendations from the Royal Commission into Aboriginal Deaths in Custody

We are advocating for change in four key areas of law reform:

Family and Domestic Violence (FDV)

Family and domestic violence (FDV) is a major health and welfare issue in Australia. In recent years, the WA Government has taken positive steps to promote awareness of FDV. However, FDV continues to affect many Western Australian families, and the incoming government must maintain its commitment to a longterm holistic approach to addressing the causes and impacts of FDV.

FDV takes many forms and can include financial, emotional, physical or sexual abuse and coercive control. The incoming government must adopt strategies to change a culture that enables perpetrators, and to support survivors to leave violent or abusive relationships.

The Law Society also advocates for enhanced Legal Assistance Funding to support legal services in all areas of law related to FDV.

Key Statistics

  • 25% of women and 8% of men in Australia are, or have been, victims of violence from a current or former partner or a family member.1
  • An estimated 22% of adults have experienced childhood abuse and/or witnessed parental violence before the age of 15.2
  • In 2022, 37% of homicides and related offences in WA were FDV related.3
  • In 2022, the number of victims of assault in WA increased by 7% to 38,743, the highest number in 30 years. 64% of assaults were FDV related.4
  • Intimate partners are responsible for almost 80% of the hospitalisations of women from family and domestic violence in WA, with 20% of perpetrators being other family members.5
  • FDV is a leading cause of homelessness for women and children — 51.5% of women and 37% of young people accessing homelessness services sought assistance because of experiences of domestic violence.6
  • FDV is experienced at disproportionately high rates by Aboriginal and Torres Strait Islander and culturally and linguistically diverse women and children, people with disability and people who identify as LGBTIQA+.7
  • First Nations women and children in Australia are 34 times more likely to be hospitalised due to violence than non-First Nations women and 6 times more likely to die as a result of FDV.8
  • A 2019 survey of people who identify as LGBTIQA+ found that 2 in 3 respondents (65%) had experienced some form of FDV.9
  • People with disability are more likely to be victim-survivors of family, domestic and sexual violence (FDSV) than people without disability.10
  • A Monash University study of women on temporary visas who sought support for family violence in 2015-2016 found that 2 in 5 (44%) of women were threatened by a partner or family member that sponsorship for their visa application would be withdrawn.11

Endnotes

  1. Australian Bureau of Statistics, Personal Safety Survey, 20212022
  2. Australian Bureau of Statistics, Personal Safety Survey, 20212022
  3. https://www.wa.gov.au/organisation/department-of-communities/ about-16-days-wa.
  4. Department of Communities, ‘About 16 Days in WA’ (Media Release, Government of Western Australia, 3 November 2023).
  5. Department of Communities, ‘About 16 Days in WA’ (Media Release, Government of Western Australia, 3 November 2023).
  6. Department of Communities, ‘About 16 Days in WA’ (Media Release, Government of Western Australia, 3 November 2023)
  7. Department of Communities, ‘About 16 Days in WA’ (Media Release, Government of Western Australia, 3 November 2023).
  8. Ministers for the Department of Social Services, ‘First Nations-led data research on family, domestic, and sexual violence’ (Media Release, Australian Government, 7 November 2023).
  9. Australian Institute of Health and Welfare, ‘LGBTIQA+ people’, Family, domestic and sexual violence (Web page, 15 July 2024)
  10. Australian Institute of Health and Welfare, ‘People with disability’, Family, domestic and sexual violence (Web page, 5 July 2024).
  11. Australian Institute of Health and Welfare, ‘’People from culturally and linguistically diverse backgrounds’, Family, domestic and sexual violence (Web page, 5 July 2024).

Recommendation

Provide long term, sustainable and predictable funding for legal services in all areas of law related to FDV and in particular:

  • Funding for and recognition that Aboriginal Community Controlled Organisations are best placed to provide legal assistance and social support services to Aboriginal and Torres Strait Islander peoples;
  • Funding for and recognition that the area of child protection requires urgent access to adequately resourced holistic services;
  • Specialised resourcing for women in prison, from culturally and linguistically diverse backgrounds and women with complex child protection matters;
  • Funding for courts dealing with family law matters, as well as family violence support services;
  • Comprehensive, ongoing and mandatory FDV training for judicial and court staff situated in courts exercising jurisdiction in FDV related matters;
  • Develop and implement FDV strategies, including community education for particularly vulnerable groups, such as Aboriginal and Torres Strait Islander people and individuals from culturally and linguistically diverse communities; and
  • Funding for programmes to educate the general public on FDV and targeted education programmes to support people to leave FDV relationships.

Benefits

  • Reducing the negative impact of FDV on our community;
  • Supporting survivors of FDV to access holistic services;
  • Raising awareness of FDV as a major public health issue; and
  • Ensuring that frontline workers have the resources and funding to do their best work.

Mandatory Sentencing

Mandatory sentencing conflicts with foundational justice principles in the International Covenant on Civil and Political Rights (ICCPR). Article 14(5) sets out the right of every person to be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. As a matter of principle, sentencing is the role of an independent judiciary, not the legislature.

Mandatory sentences refer to minimum sentences prescribed by the legislature for criminal offences.

An example of mandatory sentences is the ‘Three Strike Rule’ for burglary. Under section 401(4) of the WA Criminal Code, if a person is convicted of committing three separate home burglaries, the court must sentence the offender to a minimum of 2 years imprisonment. The sentencing judge does not have discretion to sentence the offender to a shorter period.

Mandatory sentences prevent judges from considering the personal circumstances and mitigating factors relevant to a person’s offending. Mandatory sentencing laws therefore result in harsh and disproportionate sentences where the punishment may not fit the crime, and impose unacceptable restrictions on judicial discretion and independence, as well as undermining fundamental rule of law principles.

In 2012, the Committee on the Rights of the Child expressed concern that mandatory sentencing legislation in WA applied to persons under 18 and recommended the laws be abrogated.15

On its face, mandatory sentencing laws do not seem overtly discriminatory. However, these laws are undeniably discriminatory in their effect on Aboriginal and Torres Strait Islander people, and especially Aboriginal and Torres Strait Islander young people. When the Royal Commission into Aboriginal Deaths in Custody released its final report in 1991, it made 339 recommendations and several addressed sentencing principles for Aboriginal and Torres Strait Islander people.

Recommendation 92 states ‘That governments which have not already done so should legislate to enforce the principle that imprisonment should be utilised only as a sanction of last resort.16

As a matter of principle, sentencing is the role of the judiciary, not the legislature. It is a principle of sentencing that imprisonment is the sentence of last resort. Some consider that to be implicit in subsection 6(4) of the Sentencing Act 1995 (WA) which states:

‘A court must not impose a sentence of imprisonment on an offender unless it decides that

(a) the seriousness of the offence is such that only imprisonment can be justified or

(b) the protection of the community requires it.’

Notwithstanding the Statutory Review of the Sentencing Act 1995 (WA) by the Department of the Attorney General,17 the Law Society maintains that subsections 6(4) and 39(3) of the Sentencing Act 1995 (WA) are not sufficient to carry the principle that imprisonment is a sentence of last resort.

If that is so, then the statute is internally inconsistent because when there is a mandatory minimum sentence of imprisonment then imprisonment is not the sentence of last resort – it is the first resort, and the only resort.

Endnotes

15. Committee on the rights of the Child, Concluding Observations: Australia, 60th sess, UN Doc CRC/C/AUS/CO/4 (28 August 2012).

16. Royal Commission into Aboriginal Deaths in Custody (Final Report, March 1991).

17. Department of the Attorney-General, Statutory Review of the Sentencing Act 1995 (WA) (October 2013).

Recommendation

Repeal all WA laws that impose minimum terms of imprisonment and commit to:

  • Legislation to enforce the principle that imprisonment should be utilised only as a sanction of last resort;
  • Flexible sentencing options for offenders; and
  • Implementation alternatives to mandatory sentencing, such as justice reinvestment strategies and diversionary non-custodial options, which may be more effective for reducing crime while remaining compatible with the rule of law and Australia’s human rights obligations.

Benefits

  • Ensuring sentencing is fair and proportionate to the crime committed;
  • Reducing the likelihood of recidivism as prisoners are less likely to be placed in an environment which often fails to address the underlying causes of crime;
  • Increasing community confidence in the judiciary and the criminal justice system as a whole;
  • Allowing discretion from the judiciary without displacing it to other parts of the criminal justice system such as law enforcement agencies and prosecutors;
  • Reducing the economic cost to the community in terms of reducing imprisonment rates and reducing the burden on the already underresourced criminal justice system; and
  • Reducing the discriminatory effect on Aboriginal and Torres Strait Islander people.

Implementing Recommendations from the Royal Commission into Aboriginal Deaths in Custody

The Royal Commission into Aboriginal Deaths in Custody was established in October 1987 in response to growing public concern about the number of deaths of Aboriginal and Torres Strait Islander people in police or prison custody. It’s report in April 1991 made 339 recommendations, and while 78% of these recommendations have been fully or mostly implemented, the remaining are long overdue to be progressed.

The Royal Commission into Aboriginal Deaths in Custody was established in October 1987 in response to growing public concern around the number of deaths of Aboriginal and Torres Strait Islander people in police or prison custody. The National Report of the Royal Commission was released in April 1991 and made 339 recommendations.18 The Royal Commission’s recommendations encompassed a broad range of themes focussed on improving the interaction of Aboriginal and Torres Strait Islander people with police and the justice system.

According to a 2017 report commissioned by the then Commonwealth Minister of Indigenous Affairs, on average only 78% of the Royal Commission’s recommendations have been fully or mostly implemented.19 The implementation of all remaining recommendations must be progressed. Aboriginal and Torres Strait Islander people continue to be incarcerated at an alarmingly high rate compared to nonIndigenous people in Australia. Since the Royal Commission’s report was handed down in 1991, at least 545 First Nations people have died in custody across Australia – many by suicide.20 In 2022-2023 there were 21 Indigenous deaths in police custody, including 5 in WA prisons.

Recommendation 165: Prison cell safety

Recommendation 165 of the Royal Commission into Aboriginal Deaths in Custody called on Police and Corrective Services authorities to eliminate risk items in prisons which could be potentially used for self-harm, including ligature or ‘hanging’ points. The Coroner’s Court of Western Australia recently released findings following the investigation of two ligature deaths in prisons.21The issue has been described as ‘a matter of the utmost urgency’. In both matters the coroners commented on the architecture of prison cells as a factor that contributed to the deaths.

As of September 2022, only 3.9% of cells at Hakea Prison have been fully-ligature minimised, and a staggering 39.1% of cells are not ligature minimised at all22. The incoming government must take urgent action to address this appalling situation.

Recommendation 119: Opportunities for parole

Recommendation 119 of the Royal Commission into Aboriginal Deaths in Custody called on Corrective Services to ensure Aboriginal people are not denied parole due to a lack of staff or infrastructure to monitor compliance with parole orders.

The Prisoner’s Review Board (Board) has raised concerns that the inadequate resourcing of treatment programmes in WA prisons is affecting the accessibility of parole. The Board reported in 2021/2022 that 757 offenders were denied parole in circumstances where due to delays they had not been assessed for any treatment programmes.23

This issue must be addressed as a matter of urgency. If prisoners are denied parole, they are denied the opportunity to reintegrate into the community in a structured and supervised manner and with appropriate restrictions in place.

Endnotes

18. Royal Commission into Aboriginal Deaths in Custody (Final Report, March 1991).

19. Department of the Prime Minister and Cabinet, Review of the implementation of the Royal Commission into Aboriginal Deaths in Custody (August 2018).

20. Australian Institute of Criminology, Deaths in Custody in Australia 2022-2023 (Statistical Report 2023).

21. Jomen Blanket [2023] WACOR 6; Wayne Thomas Larder [2022] WACOR 48.

22. Wayne Thomas Larder [2022] WACOR 48 [136].

23. Prisoners Review Board, Annual Report 2021/2022 (Report, September 2022).

Recommendation

Fully implement the recommendations of the Royal Commission into Aboriginal Deaths in Custody, including:

  1. Eliminating or minimising ligature points in prison cells; and
  2. Appropriately funding treatment programmes carried out by Corrective Services.

Benefits

  • Reduced loss of life of Aboriginal and Torres Strait Islander people while in custody; and
  • Enhanced public confidence in the criminal justice system by demonstrating commitment to addressing the disadvantage experienced by Aboriginal and Torres Strait Islander people at every level of the criminal justice system.