Citizens in Australian society live inside complex webs of rules, laws and policies, developed and implemented by governments. Usually this web is invisible. It is seen as a relatively good, and probably often even useful, set of arrangements. Australian society accepts, for example, the value of traffic laws and rules. Like stopping at red lights and driving on the left-hand side of the road. Mostly people do not notice the result of government policies on things like small increases in the cost of petrol or food. People do not know which governments are responsible for what taxes. However, sometimes some people experience the effects of government policy-making as unfair or harsh. This work will explore certain problems that arise in Australian complex system of multi-layered government. The work does this by drawing out the implications for some ideas about justice entailed by the adoption of the principle of `mandatory sentencing’ by two state governments in the 1990s. This legislation was introduced in Western Australia and the Northern Territory. Mandatory sentencing was immediately and widely admitted as offensive to some long-established legal principles. The lives of a large number of people, for the most part Aboriginal and often under the age of 25, have been affected by this mandatory sentencing. It has been widely treated as simply adding to an already serious problem of racist law enforcement.
Mandatory sentencing legislation was introduced in response to a get-tough approach to `law and order’ policy. In 1992, the Western Australian Parliament passed the Crime (Serious and Repeat Offenders) Act. This act gave effect to an early version of mandatory sentencing. It was followed by the Young Offenders Act in 1994 that provided for mandatory sentencing of juveniles (section 126). The original 1992 legislation was introduced after a series of high-profile car chases in which police pursued young Aborigines in charge of stolen vehicles. Sometimes these high-speed chases resulted in the deaths of some of Aboriginal young offenders and/or of other drivers. This caused a media campaign run by Perth radio identity Howard Sattler that involved a well-attended Rally for Justice outside the Western Australian Parliament in 1992. The Western Australian Labor government, at the time with the second woman Premier in Australia at the head (Dr Carmen Lawrence), determined to enact a tough `law and order’ policy.
In 1997 the Northern Territory parliament introduced similar legislation. It ensured that young offenders aged between fifteen and sixteen years received a mandatory 28-day sentence for a second offence, while people convicted of a third offence were to receive a twelve-month sentence. It was evident that young Aborigines were the primary target of this legislation.
Mandatory sentencing legislation denied the traditional legal principle of `making the punishment fit the crime’. It also took away the capacity of magistrates or judges to use their discretion when sentencing persons found guilty of various offences. As most Aborigines and Torres Strait Islanders and others have claimed over some time, the Australian legal system and the legislation are all part of `white man’s’ law. It has also been well acknowledged that Australia’s criminal law and justice system is part of a proceeding practice of law enforcement that is racist. The over-representation of Aboriginal people in courts and prison sentences is so remarkable that it gives no other interpretation.
Australia has significant numbers and proportions of Indigenous peoples within its geographic boundaries. Both Western Australia and the Northern Territory have Indigenous population. Therefore, Australia had long practised what can be called `racial government’. The term `Racial government’ refers to the laws whereby Indigenous people in a given political space are classified into allegedly separate groups using `racial criteria’. Because of this alleged separation, those groups are then exposed to different modes of administration, legislation or treatment. The term of `government’ here is cited from the work of Michel Foucault. Foucault suggests that various human beings, beginning from families and businesses to schools and governments, want to control the conduct of conduct. Foucault writes that racial government and the `mentalities’ depend on what he calls `dividing practices’.
Mandatory sentencing is one of many ways of engaging in racial government. Mandatory sentencing begins with constructing a basis for defining a population using racial criteria. A racial criterion is a prelude to differential regulation. Today, Australian governments continue to practise racial government. They use racial categories in everything beginning from their Census collection through to the provision of health, welfare and education services. This is seen even though a history how the practice of racial government has moved through various phases. The phases included `protection’, `exclusion’, `assimilation’, integration and multiculturalism. Such historical periods say about different logics and intentions on the part of the dominant white population for the Indigenous peoples.
Mandatory sentencing leads—although not inevitably—to the creation of a `racial law’. `Racial laws’ are law formations dedicated to the building of a racialised `national community’. This community works either by excluding racially defined `foreigners’ and/or controlling those peoples within the borders of the nation-state considered to be `outside’ the dominant `racial community’. Racial laws tend to be more like Draconian methods of rule. They are including everything from systematic exclusion through to terror and even genocide. Today, the introduction of mandatory sentencing is a good example of the modern practice of racial government.
There is record that most offenders subject to mandatory sentencing laws were young (under 25 years) and black. Mandatory sentencing is like one famous racist legislation, the 1901 Immigration Restriction Act, the first legislation passed by the new Commonwealth parliament. Both the 1901 Immigration Restriction Act and the mandatory sentencing legislation achieved its racist effect without being explicitly racist. Similar to the legislation that laid the foundation for the `white Australia’ regime, the state and territory legislation providing mandatory sentencing created for a simple mechanism—that is, mandatory sentencing—while retaining a discrete silence about the real object of the legislation—young black people. (The 1901 Immigration Restriction Act in similar manner never once referred to the people it supposed to exclude, for example, Chinese or Japanese immigrants. Rather, the Act simply introduced a process to apply a language test to prospective immigrants. However, the immigration officials used any language they considered appropriate, comprising ancient Norse or Gaelic.)
Indigenous people in Australia have long been the object of special police attention. They were the centre of legal surveillance and punishment. This has been a central focus of racial government for most of the two centuries of white settlement. One result of this is that Aboriginal people have been popular in Australia’s arrest, trial and penal statistics. Aborigines and Torres Strait Islanders generally, and young Indigenous people in particular, are sentenced in the prison system in large numbers (Human Rights and Equal Opportunity Commission 1997; Cunneen 1997; Beresford & Omaji 1996).Really, there is a disproportionately high rate of Aboriginal imprisonment at every level of the criminal justice system. This is also the case for young Aboriginal people. In 1996 the Census of Population and Housing showed that there was an over-representation of Indigenous children in corrective institutions in every jurisdiction except Victoria. The practice of mandatory sentencing has magnified the differential treatment of Aboriginal and Torres Strait people. These people are already being dealt with disproportionately by the various criminal justice systems.
Most of those condemned under the mandatory sentencing laws in the Northern Territory are Aboriginal boys and young men. It seems remarkable that the Western Australian and Northern Territory governments tried to justify the legislation on a number of reasons. One popular theme was that the `bleeding heart progressives’ in the eastern states did not understand what it was like to be `constantly endangered’ by `delinquent black youth’. Essential in this argument was the plan that mandatory sentencing would work as a protection, and thereby resolve `the crime problem’.
Has mandatory sentencing accomplished the stated goal of preventing crime? Taking into account the evidence, which indicates that there are increased crime rates in those jurisdictions, the answer is no. However, one important and sad outcome of mandatory sentencing has been a further increase in the quantity of Indigenous people being confined (Jones 1999).
It is evident that the rate of imprisonment of Aboriginal people has increased since the beginning of mandatory sentencing. Lets see at data released by the Australian Productivity Commission that compares the performance of police, courts and corrective services in 1998—99 for each of the states. One will see that the number of Aboriginal people imprisoned in Western Australia rose from 381 to 466. At the same time, the number of non-Aborigines fell from 160 to 158. In the Northern Territory, the number of Aboriginal people rose by 22 per cent. In Western territory gaols, the number of Aboriginal people grew 20 per cent in the year to June (from 753 to 905). In Western territory, if you are Aboriginal, you are 60 times more likely than a non-Indigenous person to be imprisoned. The petty crime rate has likewise not declined in either Western Australia or the Northern Territory. Considering this, it is clear that the `three strikes and you’re in’ principle that underpins mandatory sentencing has not worked as a protection.
The reason is that racial government relies on dividing practices. Therefore, there is always a high likelihood that racialised administrative or legal practices will breach some of the core principles of justice administration. One basic principle operating in the Anglo-American legal system has been the requirement that `the penalty should fit the crime’. Mandatory sentencing legislation virtually cancelled this principle. It removed judicial discretion and the ability of magistrates and judges to consider extenuating circumstances and alternatives to penalties for Aboriginal offenders. It denied the courts their legitimate authority to judge the matching of the penalty, and whether it was fitting to the offence. Mandatory sentencing produces inconsistency in sentencing. The result is that offenders receive the same sentence regardless of the nature of the offence. They receive sentence irrespective of the damage caused or the value of the stolen property and regardless of the details of the crime. Mandatory sentencing produces inconsistent responses. The law requires the same punishment for diverse offences that were perpetrated under different circumstances. Offences and sentences under mandatory sentencing have comprised:
• the imprisonment for 28 days of a fifteen-year-old Aboriginal boy for stealing pens and pencils from a newsagent;
• a twelve-month gaol sentence for a homeless 29-year-old Aboriginal man who wandered into a backyard and `stole’ a towel from a clothesline to keep warm;
• the imprisonment for fourteen days of a 24-year-old Aboriginal mother who received a stolen can of beer valued at $2.50;
• the incarceration of a 21-year-old Aboriginal man for the theft of $23 worth of biscuits and cordial drinks;
• the sentencing of an eighteen-year-old to 90 days’ gaol for stealing 90 cents from a car;
• the imprisonment for a month of a sixteen-year-old mentally ill Aboriginal boy found in possession of an empty wallet valued at $2. He was convicted for receiving stolen goods;
• the sentencing for three months of a seventeen-year-old Aboriginal boy for stealing $4 of petrol to sniff.
The result of mandatory sentencing has been to force the judgment and the courts to act unjustly. This situation did not change even with the federal government intervention. It established the diversionary option for under-eighteen-year-olds who committed minor offences. However, prison remains the reality for most juveniles who have committed a `serious crime’. For people over eighteen years of age and charged with a minor offence, mandatory sentencing continues to apply. A law that gives a judge the right to sentence an individual to prison when that punishment is not legally warranted is itself corrupt. As former Australian High Court Chief Justice Gerard Brennan has claimed:
The offender becomes a victim of senseless retribution and the magistrate or judge is brutalised by being forced to act unjustly . . . The punishment must fit both the crime and the criminal.
There are many other problems connected with mandatory sentencing too. Mandatory sentencing has turned out to be bad policy. It is a financially costly and uneconomical exercise in punitive futility. First, mandatory sentencing is ineffective as a means of preventing petty crime. Second, the governments of Western Australia and the Northern Territory spend more money than any other Australian state or territory on prisons and legal services. In accordance with the annual report of the federal government-sponsored Steering Committee for the Review of Commonwealth/State Services Provisions, in 1998—99 the national average sum spent on police services was $204 per head of the population. In the same time, in the Northern Territory it was $497, and in Western Australia $232 per head. Per capita expenditure on corrective services is also revealing. The average of Australian territory was $63 per capita. The Northern Territory spent $211 and Western Australia spent $91 per head of population.
Mandatory sentencing also carries unacceptably high social costs. The costs include those associated with taking young Aboriginal people and Torres Strait Islanders away. These people are took away (usually long distances) from their families and communities. This punishment makes it difficult for family to visit the sentenced relatives This punishment is also the provision of family and community support for young people who are more often than not already `at risk’ very difficult, if not impossible.
One would have think that Australia’s unfortunate history when Aboriginal children were separated and removed from their homes would have served a valuable and unforgettable lesson about the social and cultural costs of such practices. However, looking at these current sentencing practices, it seems evident that such lessons have not been taken into account.
The consequences resulting from mandatory sentencing place Aboriginal young people—many of whom already fall into the `at risk’ category—in greater danger. For example, they can commit suicide and other forms of self-harm and assault). Further, the prison environment usually increases rather than diminishes the prospect of a criminal identity and unlawful conduct. As the former federal Minister for Education, David Kemp, reportedly argued in a submission to the Senate Committee examining sentencing laws in the Northern Territory and Western Australia:
Mandatory sentencing hurts Aborigines because it can interfere with crucial government initiatives to involve them in school and education programs . . . it is more productive for the community to persevere with attempts to re-engage Aborigines in education than mandatory sentencing of young people for relatively minor matters with no opportunity for judicial discretion.
Treating people in unjust and retributive ways and when a main official objective of the penalty is reform is likely to result in claims of falsehood, agitation, hostility, and a greater sense of dissatisfaction and alienation the part of the young person. The social, cultural and material harm that results from these laws is not appropriate for the building of the strong community. Only free of racism legal system can create good community networks and family support that are critical for crime prevention and the development of a high quality of life. Beyond the sociocultural hurt is the harm caused by a betrayal of those with such a horrid history of persecution, people who remain the most disadvantaged Australians If one attempts to review or change this legislation raise very difficult questions. On the one hand, questions about the sovereignty of governments and about their accountability on the other. One main problem that emerged in the often-heated debate about mandatory sentencing that took place in Australia. The legal arrangements left the federal government with little authority or capacity with which to convince or require that the two governments involved change their policies. Taking into account this weakness in Australia’s constitutional division of powers critics of mandatory sentencing could only appeal to international human rights law. Neither the national government, nor some international laws and the international legal system, has been specifically effective in ensuring that certain core principles of justice, the rule of law and main human rights will be respected.
‘Human Rights and Equal Opportunity Commission’ 1997, Bringing Them Home— Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families, HREOC, Sydney.
Bessant, J., `Australia’s Mandatory Sentencing Laws: Ethnicity and Human Rights’ 2001 8 International Journal on Minority and Group Rights. 4.
Black, D. ‘Western Australia’ (2000) 46 The Australian Journal of Politics and History 4.
Cowdery, N. Getting Justice Wrong: Myths, Media and Crime (2001).
Cunneen, C., ‘Indigenous Young People and Juvenile Crime’ (1997) Juvenile Crime and Justice Corrections.
Dowrick, S. The Cambridge Handbook of the Social Sciences in Australia (2003).
Drabsch, T., ‘Indigenous Issues in NSW’ (2004) 2 Background Paper 04.
Foucault, M., `On Government’, in P. Rabinow (ed.), 2000, 3 The Essential Foucault: Power.
Frase, R., Sentencing and Sanctions in Western Countries (2001).
Mosler, D. Australia, the Recreational Society (2002).
Saunders, P., ‘The Poor are Not Poorer in Fact’ (2002) 26 Age.
 J., Bessant, `Australia’s Mandatory Sentencing Laws: Ethnicity and Human Rights’ 2001 8 International Journal on Minority and Group Rights. 4, 369—84.
 M., Foucault, `On Government’, in P. Rabinow (ed.), 2000, 3 The Essential Foucault: Power.
 T., Drabsch, ‘Indigenous Issues in NSW’ (2004) 2 Background Paper 04, 5.
 T., Drabsch, ‘Indigenous Issues in NSW’ (2004) 2 Background Paper 04, 6.
 N., Cowdery, Getting Justice Wrong: Myths, Media and Crime (2001), 67.
 N., Cowdery, Getting Justice Wrong: Myths, Media and Crime (2001), 67.
 N., Cowdery, Getting Justice Wrong: Myths, Media and Crime (2001), 123.
 N., Cowdery, Getting Justice Wrong: Myths, Media and Crime (2001), 89.
 P., Saunders, `The Poor are Not Poorer in Fact’ (2002) 26 Age.
 D., Black, ‘Western Australia’ (2000) 46 The Australian Journal of Politics and History 4, 3.
 S., Dowrick, The Cambridge Handbook of the Social Sciences in Australia (2003), 88.
 R., Frase, Sentencing and Sanctions in Western Countries (2001), 56.
 ‘Human Rights and Equal Opportunity Commission’ 1997, Bringing Them Home— Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families, HREOC, Sydney.
 C., Cunneen, ‘Indigenous Young People and Juvenile Crime’ (1997) Juvenile Crime and Justice Corrections, 104—20.
 D. Mosler, Australia, the Recreational Society (2002), 44.