“Once you can have people more frightened of disorder than tyranny, it enables you to do almost anything you like so far as legislation is concerned.”

The words of retiring Chief Judge of the District Court Antoinette Kennedy.

Since taking office in 2008, the Liberal-National Government has moved aggressively to reform Western Australia’s criminal justice system.

It has introduced mandatory jail sentences for a range of offences including assaults on public officers.

It’s introduced anti-hoon laws and has proposed a raft of others including stop and search laws, anti-association laws, and laws which would see juvenile offenders named and shamed for committing serious criminal offences.

Throw a tough new Parole Board into the mix and the result is a prison system bulging at the seams.

The Attorney General Christian Porter and the Police Minister Rob Johnson have been unapologetically leading the charge.

But recently, two senior judges have voiced serious concerns about the direction of law reform in Western Australia.

Limited deterrence

In her farewell speech to the Supreme Court of Western Australia, Honourable Justice Christine Wheeler said imprisonment does little to deter crime and that it may even increase it.

While criminal law must be enforced and offenders punished, she says “reasonably often people, often young people, people with young children, people with mental problems, are in gaol for longer than is strictly necessary or sometimes when not necessary at all.”

In introducing the mandatory sentencing laws, the State Government has effectively removed a judge’s discretion in sentencing.

It means a judge can no longer draw on their experience in the justice system and hand down what they believe to be the most appropriate punishment for an individual offender.

Judge Wheeler says the over-reliance on imprisonment as a punishment was one reason behind her decision to retire.

“The disconnection to a degree between what I do, as I see my duty to do it, and what empirical evidence suggests it would be better to do, is one reason that maybe it’s time to give it away.”

Culture of Fear

The retiring Chief Judge of the District Court Antoinette Kennedy was a little more pointed in her criticism, accusing the government of creating a culture of fear in WA and introducing laws which erode civil rights.

“It’s cheap and it doesn’t require any leadership to say we’re going to increase all penalties and we’re going to lock everybody up longer.

“But, to actually convey to the community, no, we’re not doing that because it doesn’t work, we’re going to do these other things such as early intervention – that requires leadership, and it requires more than a 30 second television grab, I’m afraid.”

Like her colleague, Judge Kennedy says jail has never been the be all and end all solution in the criminal justice system.

“It’s not the whole answer, it’s part of the answer.

“I’ve often had lawyers say to me about their clients, “It was inevitable that my client would end up in the criminal justice system” and when you look at the lives that they’ve had as small children you know that that’s right, it was inevitable that they’d end up in the criminal justice system.”

“So, if we know it’s inevitable that certain people will end up in the criminal justice system, why aren’t we doing something about it where we can stop it?”

Police stance

While the Police Commissioner Karl O’Callaghan has been supportive of the mandatory sentencing laws, he’s somewhat distanced himself from the stop and search debate.

“These are not my laws, these are the Government’s laws.

“My job is if the law becomes enacted that we apply those laws, ” he said on ABC’s Stateline program.

“I think they are useful powers. I think they are applicable to some of the weapons we’re seeing carried in the Western Australia.

The Commissioner pointed to the significant increase in the last 10 years of the number of weapons being carried.

“Let me say that in 1999 there were 2,500 weapons offences detected in Western Australia; in 2008/2009 that had risen to more than 9,000.”

But, Karl O’Callaghan said the effectiveness of the laws remains to be seen.

“We will apply them very fairly and very carefully at least until they get evaluated in 12 months or 24 months.

“So we’ll have to wait till that times comes. In that space of time, we’ll be very careful with the application and at the end of that process, when we’ve had time to evaluate them, we’ll know whether they’re right or not.”

An Upper House Committee is currently reviewing the proposed laws and is due to report to Parliament mid-year.

It may temper that law but overall, the increased penalties, mandatory sentencing and other restrictions are trends that concern the two judges.

Judge Kennedy said she had hoped to achieve a little more in her 40 year career.

“I had hoped that over the period of time, more programs would be available for offenders and there’d be more chance of putting them out into other programs that would be more effective than jail, and that has never come to pass.”