Representing pregnant women and mothers: Greens List hosts the launch of the LACW Toolkit

Greens List hosted the launch of the Law and Advocacy Centre for Women's (LACW) new resource, Toolkit for representing pregnant women and mothers who are imprisoned or at risk of imprisonment (August 2026), with panel members from LACW (LACW). The Toolkit was authored by Laura Heffes with contributions from Elena Pappas, Ellen Murphy and Georgie Adeney (LACW Toolkit, p 3). The resource is particularly relevant to the work of Dr Felicity Gerry KC in representing women sentenced for large-scale financial offending in Victoria and the Northern Territory, where practitioners must address the seriousness of the offending alongside evidence of pregnancy, caring responsibilities and the consequences of custody for children.

What the Toolkit is for

The Toolkit is designed to equip lawyers and advocates with information, research, legal arguments, strategies and resources to represent pregnant women and mothers who are imprisoned or at risk of imprisonment (LACW Toolkit, p 4). As LACW makes clear, it proceeds from the understanding that the imprisonment of pregnant women, mothers and primary caregivers can produce lifelong harm to women, their children and their families, and that bail, deferral of sentencing and other non-custodial options must be prioritised, with imprisonment a measure of absolute last resort (LACW Toolkit, p 4).

The context the Toolkit assembles is sobering. Women account for only around 6% of people in prison in Victoria, but Aboriginal women account for approximately 19% of imprisoned women, and over half of the women in prison are unsentenced (LACW Toolkit, p 9). Nationally, 72% of female prison entrants reported having been pregnant at some stage, 7% of women received into custody in 2021 were pregnant, and a third had dependent children in the community (LACW Toolkit, p 10).

Guidance from the Toolkit

Make referrals the first step. Whatever direction the case takes, the Toolkit directs practitioners to make appropriate referrals at the outset, and signposts Victorian pathways: including the Cornelia Program for pregnant women experiencing homelessness, the Women's Alcohol and Drug Service and SAGE Clinic for substance use, Djirra’s Aboriginal Family Violence Legal Service, Koori Maternity Services, and perinatal mental health supports (LACW Toolkit, pp 51–54). It also flags that involvement in the criminal legal system can trigger an unborn report or child protection notification, so lawyers should ask whether child protection has been in contact and facilitate specialist legal referrals early to minimise the risk of child removal (LACW Toolkit, p 53).

Put individualised evidence before bail decision makers. The Toolkit records that amendments to the Bail Act 1977 (Vic) introduced in 2025 require bail decision makers to take into account the accused's caring responsibilities and any special vulnerability, including pregnancy and Aboriginality, and it encourages lawyers to bolster bail applications with expert evidence — for example, from a midwife or treating medical professional for a pregnant applicant, or evidence of the specific impacts on a mother and her children if bail is refused (LACW Toolkit, pp 55–56).

Instruct experts properly and agitate hardship. The Toolkit explains that for Victorian State offences, family hardship is generally disregarded as a sentencing consideration unless the circumstances are exceptional, save to the extent that it bears upon the subjective experience of the person being sentenced (LACW Toolkit, p 57). It argues that this jurisprudence rests on a limited knowledge base about the effects of maternal-child separation and that practitioners should continue to agitate the point with research and expert evidence (LACW Toolkit, p 58). For Commonwealth offences, by contrast, the Toolkit notes that s 16A(2)(p) of the Crimes Act 1914 (Cth) requires the court to consider matters relevant and known to it, including the probable effect of a sentence on the person's family or dependants, without any exceptional circumstances threshold (LACW Toolkit, p 59). The Toolkit also identifies factors that may make imprisonment more onerous — giving birth in custody, antenatal care under guard, uncertainty about a Living with Mum Program application, and the challenges of breastfeeding in custody — and points practitioners to the Bugmy Bar Book’s "layers of evidence" approach, with experts instructed to address the research directly (LACW Toolkit, pp 59–60). It further highlights Charisiou v The King [2025] VSCA 277, in which Walker JA in dissent accepted arguments (also advanced by LACW as amicus curiae) on the interaction between the Sentencing Act and the Charter; the appeal was heard by the High Court of Australia in August 2026, in which LACW again appeared as amicus curiae (High Court of Australia).

Explore sentence deferral in eligible cases. The Toolkit encourages practitioners to consider sentence deferral, including its potential to facilitate childbirth in the community and preparation of a Living with Mum Program application while mother and baby are together (LACW Toolkit, p 61).

The Toolkit is available on LACW's website. Greens List thanks LACW and the panel for the launch.