Catholic Diocese of Broome

The recently retired District Court Judge, Antoinette Kennedy, has been very outspoken about the deficiencies of the State’s legal system and the lack of diversionary programs and alternatives to jail for many people who end up in the criminal justice system. She also expressed her concern about the latest changes to the powers of police who will be able to stop and search any person without reasonable suspicion. Her concern, as she pointed out on Stateline, was about the situation being created in Western Australia where people had become ‘more frightened of disorder than tyranny,’ which ‘enables you to do almost anything you like as far as legislation is concerned.’

There is a need for a balance between what is required to keep the majority of the population safe and able to enjoy the freedoms that we have come to expect, and the need for the majority to surrender some of those freedoms in order that the minority who do not respect the rights of others can be restrained. Many, such as Antoinette Kennedy, think that the balance might have been tipped too far in favour of the power to restrain. We see this not only in the matter of ‘stop and search’, but also in the area of Federal laws in relation to those seeking asylum. The Rudd government has not yet amended all the harsher aspects of these laws

There are those who refuse to admit that these were aspects of Australia’s legal framework that infringed significantly upon the rights of those genuinely seeking asylum. They continue to assert that this trade-off of rights was justified in order to keep out of our country the less than ten per cent of applicants who turned out to be non-genuine applicants. It hardly seems to be a fair balance, and it is a legislative regime to which we ought never return.

The prisons in Western Australia are full to overflowing, yet we continue to incarcerate people for minor offences and fine defaults. These minor offences demand a more creative community solution than simply locking people up. The majority of people jailed for these offences tend to be those at the lower end of the economic scale, who lack the skills to avoid the same result in the future. Jail without further education and training, also in short supply in the prison system, will not help these people to avoid similar situations in the future.

Some aspects of the ‘anti-hoon’ legislation are also in need of reform. It has been shown recently that innocent parties can be caught up in the aftermath of the automatic application of the seizure of vehicles section of the legislation. The government has shown that it is willing to review this aspect. Let us hope that it will also review its approach to mandatory sentencing, stop-and search, and imprisonment for minor offenders and fine defaulters before the prison system reaches breaking point.