Mandatory sentencing negatively impacts First Peoples in ways and in rates of incarceration that prove that they are targeted – racialised. Nowhere is this more pronounced than in Western Australia where First Peoples adult males are incarcerated, from a racialised measure, at the world’s highest rate. With recent debates for more mandatory policies, penalties and convictions the need for a public conversation needs to occur, one that can influence parliamentarians. It is our parliamentarians who are doing the damage with toxic and divisive debates on mandatory sentencing, for more retributive justice and for prohibition of this and that – with most recently conversation about making it illegal for women to consume alcohol during pregnancy – this in the hope it will reduce FASD (foetal alcohol spectrum disorders).

A recent debate in NSW, for the Crimes and Other Legislation Amendment (Assault and Intoxication) Act 2014 generated discussion on the impacts of mandatory sentencing. Prisons are overcrowded, with ever increasing numbers of First Peoples in prisons and in juvenile detention. 30 per cent of the Australian prison population is comprised of First Peoples, and the upward trend will find that by 2020 one in every two Australian prisoners will be a First Nations person, despite First Peoples making up only 1 in 40 of all Australians.

65 per cent of the prison population comprised of First Peoples can be released today and they would pose no or little risk to society – the majority are serving six month to a year long sentences, for minor offences. Restorative justice is yet to find its day, while the Corrective Services budget now exceeds $3 billion per annum.

The Assault and Intoxication Act is intended to tackle drug and alcohol related violence with the same old mantras of promoting ‘personal responsibility’. Extreme poverty breeds a prevalence of minor offences, and if there were an agenda to reduce extreme poverty there would suddenly arise a reduction in the offending, but this is not the Australian way.

Lawyer Patricia Monemvasitis said that the Assault and Intoxication Act “follows the deaths of Thomas Kelly and Daniel Christie, who were both assaulted in the Kings Cross area by offenders under the influence of alcohol.”

“The Act introduces an eight year mandatory prison sentence for serious assault offences involving alcohol.”  Ms Monemvasitis pointed to comments by the President of the New South Wales Bar Association, Phillip Boulton, SC who said, “There’s no evidence at all that mandatory sentencing ever decreases the amount of crime that’s committed and it has the ability to act unfairly on vulnerable and disadvantaged groups.”

Western Australia and the Northern Territory have packaged more mandatory regimes than other jurisdictions. In the Northern Territory one in every 120 Territorians is in prison – the highest rate in the nation. 83 per cent of the Territory’s prison population is comprised of First Peoples, the highest statistic in the nation. 98 per cent of Territory’s juvenile detention population is comprised of First Peoples youth, the world’s highest provincial rate. 43 per cent of Western Australia’s prison population is comprised of First Nations peoples, despite they comprise less than 3 per cent of the State population. Proportionally, this is the nation’s highest rate – the State’s First Peoples adult males are incarcerated at the world’s highest rate – from a racialised measure. 75 per cent of the Western Australian juvenile detention population comprises of First Peoples youth. Western Australia and the Territory have the nation’s highest rates of First Peoples homelessness, extreme poverty and suicide rates, therefore it is obvious that poverty majorly underwrites offending. Ironically, Western Australia and the Territory are the wealthiest regions of Australia – both resource rich, but with First Peoples pushed around and disenfranchised from Land Rights worse than anywhere else in the nation.

Back to mandatory penalties and sentencing – NSW’s Assault and Intoxication Act includes fines for public order offences. Public order fines for offensive language and conduct doubled to $500 or for failing to abide to move-on notices while intoxicated has shot up from $200 to $1100. For those who cannot afford these fines their problems compound – First Peoples are in a difficult predicament and far too many finish up in jail for unpaid fines.

During a recent Perth rally I attended the army of police made a big hullabaloo about the F-word printed on the T-shirts of several protesters, and unless they removed them, which they did, the standoff would have escalated into arrests.

Mandatory sentencing around the nation has led to thousands of First Peoples incarcerated. Psychosocially, the retributive prison experience is damaging – in my experience in general people come out of prison worse than they went in. In the first year post release, suicides and unnatural deaths are at least ten times the rate than while in prison.

Western Australia is a doyen of mandatory legislation – with property crime leading people into prison, with mitigation reduced by the legislation. Western Australia has also the nation’s highest eviction rates of State Housing tenants, most of them First Peoples, due to the three-strikes rule – but most are evicted for rental arrears.

Mandatory sentencing is racialised despite the bullshit that it is one rule for all. While a significant proportion of First Peoples languish disproportionately in third world akin conditions or extreme poverty then the mandatory sentencing is really about them, targeted to them.

Noongar rights advocate, Marianne Mackay, has often said that “our people only need to bump into someone and they are arrested.”

The Territory’s Mick Estens has often accompanied Yolgnu youth to Court because he said “they are lost in Court, they don’t know what is happening to them, they don’t know what they are being told, the system is not about them, it is about everyone but them.”

Yolgnu Elder Richard Trudgen has often said that many of his people do not even realise they have committed a crime or breached an order or that they have to front up to Court. Mr Trudgen describes a clash of cultures. But mandatory detention does not take any of this into account.