Mandatory Sentencing Laws Racist?

“You are what you repeatedly do.” — Aristotle

Let us examine whether WA’s controversial Mandatory Sentencing laws can be considered in any objective sense as racist. To do so we need to first examine the traditional principles of what sentencing is designed to achieve, we need to produce a workable definition of ‘racist’, and finally examine the laws as they exist today in this context to see if they come within the ambit of our definition.

According to volume 9 (251-501) of the legal dictionary, “Halsbury’s Laws of Australia”, the general ideals governing a judge’s construction of a punishment for crime are:

1) Deterrence: both general and specific. General deterrence refers to the motive of punishment to discourage the community at large from committing such crime. Specific deterrence on the other hand refers to the discouragement of the actual perpetrator of the crime to re-offend.

2) Rehabilitation: Stemming from the law’s paternalistic tendencies, this ideal aims to, where possible, give the offender opportunity to redeem his or herself, and to one day go back into society, restored as a law-abiding citizen.

3) Retribution: This ideal satisfies a widespread societal view that the punishment should fit the crime, and that if suffering has been inflicted by the offender, then suffering should consequently be experienced in kind by the offender. As such, the harshness of prescribed sentences are often in proportion with the seriousness of the crime.

4) Denunciation: Weight is given to a sentence to reflect social abhorrence for the crime done, in order to protect the behaivioural standards a community holds itself to.

5) Incapacitation: A sentence will suffice any need that society may have to protect itself from the perpetrator. An openly violent criminal with no short term sign of rehabilitation will receive a longer sentence than a remorseful criminal.

6) Restitution: This ideal satisfies the notion that the victim, criminal and society as a whole are better off if the criminal pays his dues through positive restitutionary action, often in the form of community service work. Where it is pragmatic, community service is much more favourable to detention, as studies have shown incarceration only alienates offendors from society, and that this is amplified by their time out of the workplace, which reduces their usefulness to society when they are released. It has been generally accepted amongst experts that incarceration is the least favourable form of punishment and should only be used sparingly and for only the most socially abhorrent crimes.

7) Consistency: Sentencing should also aim to be consistent, fair and equal to all offenders.

With regards to dealing with indigenous Australians before the law, it is encouraged that: cultural and racial background be considered in sentencing; socio-economic circumstances are recognised; racism, paternalism and guilt are avoided in judgments; the seriousness of the crime within the setting it was committed be considered; regard for the lack of good prison has on Aboriginal people (evidence suggests incarceration and the threat thereof neither rehabilitates nor deters Aboriginal people to a sufficient extent) be made; special efforts be made to protect society and especially Aboriginal communities from violent crime; Aboriginal defendants are treated as individuals and not as part of a blanket class; intoxication be recognised as particularly destructive to Aborigines and therefore counted as a mitigating factor; the wishes of the Aboriginal community be considered.

With all that in mind let us turn to the laws in question, Western Australia’s mandatory sentencing laws. These laws primarily relate to sections 400 and 401 of the Criminal Code Act, 1913. Originally, there was just one offence for burglary which had a maximum sentence of 14 years imprisonment. In 1996, Government, concerned with winning popular support, responded to community concerns of the rising rates of “home invasions” by adopting a “get tough” policy on crime. So, on the tenth of November, 1996, Parliament introduced two other, more serious forms of burglary:- Burglary of “a place ordinarily used for human habitation”, which carries a maximum sentence of 18 years imprisonment; and “Aggravated Burglary” which carries a maximum of 20 years imprisonment and covers a wide range of situations, including being in the company of and the use of or potential for violence. Further to this elucidation of Western Australia’s burglary laws, sentencing legislation was introduced in relation to “repeat offenders”, which meant anyone who has 2 previous convictions for burglary of a place ordinarily used for human habitation. It is important to note that these convictions, are any burglaries of the home, no matter how trivial or minor. If a repeat offender is convicted of a home burglary, the court must impose a minimum of a 12 month custodial sentence, for adults or juveniles (those over the age of 10 (and under the age of 18) with a proven understanding of the wrongness of their act at the time of committing it). In other words, and to coin an overused phrase, 3 strikes (for any type of home burglary) and you are in (jail or detention, for at least 12 months).

To shed any light on the question at hand we need a workable definition of the term “racist”. Many difficulties are posed here as racism is a subjective perception as much as anything else. Many believe Pauline Hanson to be racist but she herself vehemently denies this claim. There are however some good sources which deal with the term which can be worked from. Butterworth’s provides up with an extensive term for racial discrimination: “Any act involving a distinction, exclusion, restriction, or preference based on race, colour, descent or national or ethnic origin, which has the purpose or effect of nullifying or impairing recognition, employment or exercise, on an equal footing, of any human right or fundamental freedom in the political, social, cultural, or any other field of public life.” Further to this, section 9 of the Racial Discrimination Act of 1975 declared racial discrimination ,as defined above, to be unlawful. If you are being racially discriminatory, it is reasonably safe to assume you are being racist. Since this is the only official reference to racism in Australian law we will go with this (although it is accepted that other forms of racism exist in reality, but due to the subjective nature of these other unofficial forms, an essay based on less formal definitions will run the risk of becoming merely tenuous argument.). A qualification to this definition does seem necessary, that being, it is not necessary to prove the perpetrator of the racist act intended to be racist, it is sufficient to merely have a racist effect or impact.

Pauline Howard, I mean, Hanson.

Extensive contemporary comment has been made on the topic of mandatory sentencing. Unfortunately the vast weight of this comment has been condemnation of the laws as unjust, discriminatory and racist (this imbalance is in itself a fair argument to suggest that the laws are intrinsically racist). The only defences of the legislation seem to emanate from the Government who passed the laws, Federal Attorney General Darryl Williams, and elements of the general public we can generically describe as the proverbial layman.

In defence of the laws is the recognised community sentiment that they have lost patience with young Aboriginal repeat offenders, that restitutional sentences do not work, and that justice is not been done with such leniency. It is believed that strong deterrence is the only way to discourage offenders from invading the homes of law abiding citizens. The Governments at first conformed to this view and used it to get the legislation through Parliament. But when evidence became overwhelmingly contrary to this view (even Halsbury’s Laws of Australia recognises the minimal impact the threat of incarceration has on Aboriginal juvenile behaiviour.), they claimed never to have used the deterrence argument. In the face of international criticism, defenders of the policy used the argument best typified by Federal Attorney-General Daryl Williams, “Mandatory Sentencing Laws do not target indigenous people and are racially neutral on the face of the legislation and that consequently the laws do not have a racially discriminatory purpose.” Officials also point to the fact that Australia has adopted the Racial Discrimination Act and to date no successful contest against the laws have been made in the face of such legislation. Pragmantic laymen argue that the “bleeding heart liberals” from the east and south do not know what it is like to be threatened by “young black criminals”, and that these measures, while tough, are merely a reflection of the endemic problems of juvenile (and adult) repeat offenders.

The argument supporting the suggestion that the laws are racist is much more detailed, thorough, and greater in volume. There is much argument that the laws should be scrapped for constitutional, structural, and discretionary reasons, but we shall focus on the ones pointing to the racist nature of the laws. First of all, the ‘get tough on crime’ policies simply have not worked, and despite the persisting public perception to the contrary, “research suggests longer sentences, have not been successful in reducing crime and recividism”. And further to this, “In Western Australia…serious home burglaries and violent ‘home invasions’ invited lengthy custodial sentences before the introduction of the three strikes laws.” This therefore sends the message that the laws were purely designed to “rid the streets” of petty burglars, namely young, Aboriginal people from poor socio-economic backgrounds, and that the deterrence argument was merely a facade to disguise these ends.

The Commission for the Elimination of Racial Discrimination looked at the mandatory sentencing laws and had these concerns:

“The Mandatory Sentencing schemes appear to target offences that are committed disproportionately by indigenous Australians, especially in the case of juveniles, leading to a racially discriminatory impact on their rate of incarceration.”.

The figures for both, arrests, incarcerations and the types of crimes commonly committed by indigenous Australians support this conclusion. White collar crime (crimes more often associated with reasonably well off, white Australians) is not targeted in the legislation and prompted Tasmanian Senator Bob Brown to draw the analogy that “Alan Bond spent a year in jail for every million dollars he stole, while a young Aboriginal boy got a year for stealing a packet of biscuits. That is not justice.”

Senator Bob Brown

A final argument supporting the racist nature of the legislation is that the laws, make for inequality before the law. While on the surface, mandatory minimum penalties seem consistent and therefore fair and equal for all that face them, the judge can no longer “equalise” in relation to the crime in the setting it was comitted, the seriousness of the crime, and any mitigating “factors based on race, culture and circumstance”.

Based on our definition of racial discrimination, the laws in question seem to be reasonably racist. There is a recognisable human right in question, equality before the law, which, under the mandatory sentencing laws seems to be disproportionatly denied to aboriginal offenders. With our qualification that the discrimination need not be intended, but merely has a racially discriminatory effect, then that is sufficient. On the weight of the respective arguments, The current Western Australian mandatory sentencing laws are probably racist as we have defined it.

Obvious reforms include the entire scrapping of the 1996 amendments. Less drastic proposals, are the replacement of the mandatory custodial sentencing arrangments with pursuasive guidelines for appropriate sentences for a number of different types of offences in relation to the offenders. Utilitarians suggest more flexibility in sentencing, with the option of the restitutional approach, and a return to the judicial discretion for dealing with Aboriginal offenders as outlined in Halsbury’s Laws of Australia. Any of these proposed reforms would be better than the discriminatory laws we have in place at the moment. However, to satisfy the principles of popular sovereignty in a democracy, one would suggest the guideline reform to be the most appropriate.

But whatever is done, or even if nothing is done, it must be expressed with sadness that these laws were introduced due to the popular support the government had behind it for making such measures. Australia is a democracy, and “the community, through the legislature, decided to fix the range of penalties and indeed even the minimum penalties” for these blue-collar crimes. People knew the sort of people they hoped to incarcerate and ostracise from society. The implementation of these racist laws means that at least a large number of Western Australians are inherently racist, and that is a sobering thought.


1. Halsbury’s Laws of Australia vol. 1(1). 2. Halsbury’s Laws of Australia vol. 9. 3. The Criminal Code of Western Australia (1913). 4. Morgan N, Mandatory Sentences in Australia: Where Have We Been and Where Are We Going?, Criminal Law Journal, 24(3): 164-183. 5. Butterworths, Legal Terms, Butterworths (1998) 6. Racial Discrimination Act (Cth) 1975 7. Bessant J, Mandatory Sentencing : Justice for young indigenous people, Children Australia, Vol. 25(1) 2000: 10-13. 8. Ah-Kit J, And You Know Why: Compulsory Jailing and Racism, ANU Reporter, vol. 31(14) 6 October 2000 : 6. 9. Flynn M, “International Law, Australian Criminal Law and Mandatory Sentencing : the Claims, the Reality and the Possibilities.” , Criminal Law Journal, vol. 24(3): 184-197. 10. Yeats M, Three Strikes and Restorative Justice: Dealing With Young Repeat Burglars in Western Australia”, Criminal Law Forum, Vol. 8(3) 1997 : 369-385 11. Howse C, Covering a Multitude of Sins, Alternative Law Journal, vol. 24(5) 1999: 224-227 12. Green Left Weekly, Issue No. 437, June 2000. 13. Allen R, Literature and the Judicial Role, Alternative Law Journal, vol. 25(4), 2000: 157-160. 14. Santow GFK, Mandatory Sentencing: A Matter for the High Court?, Australian Law Journal, 74(5) 2000 : 298-305. 15. (for the Racial Discrimination Act (Cth) 1975, and the Criminal Code Act (WA) 1913.

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