Cost of undermining judicial independence is high
28 October 2025
Judicial independence and discretion are bedrocks of our justice system and mandatory sentencing unduly undermines these essential foundations, the Law Council of Australia said today.
“Sexual offences involving children are highly serious and those who commit these heinous offences should receive appropriate sentences,” Law Council of Australia President, Juliana Warner said.
“Sentences must reflect the severity of the conduct and protect our community.
“However, in our view expansion of the mandatory minimum sentencing scheme as proposed by the Crimes Amendment (Mandatory Minimum Sentences for Child Sexual Abuse) Bill 2025 represents an undue incursion on judicial discretion.”
Mandatory minimum sentencing currently applies to the most serious of Commonwealth child sex offences and repeat offenders. The Law Council cautions against its extension.
“When the current mandatory sentencing scheme was reviewed by the Attorney-General’s Department last year, it did not recommend expanding the mandatory minimum provisions.
“In fact, it made some important observations about the nature of Commonwealth child abuse material offences and the wide spectrum of conduct which they cover.”
The review stated: “These offences can, for example, involve a person accessing a single file of animated child abuse imagery on a single day, or a person over a period of several years continuously accessing, downloading and distributing hundreds of thousands of images of child abuse. These offenders are treated significantly differently by the courts and appropriately so.”
“We consider that upholding the role of the courts, and their ability to administer justice as required in the individual circumstances, is essential,” Ms Warner said.
“The Law Council supports sensible, evidenced-based reform measures designed to keep the community safe, especially our most vulnerable members of society.
“However, there is a lack of compelling evidence as to the effectiveness of mandatory sentencing as a deterrent, or its ability to reduce crime.
“Judicial independence and discretion have long underpinned our justice system – and must always do so. These principles ensure a judge is not swayed by the popular opinion of the moment or the shifting policy landscape, but rather can assess all relevant evidence and make decisions in the best interests of justice and in accordance with the law of the land.
“The Private Member’s Bill introduced this week appears to have been developed in response to a single sentencing decision. It is almost always bad policy to make significant changes to sentencing law based on a single case where judicial discretion is thought to have been exercised too leniently. Especially when it has not, or not yet, been reviewed by a court of appeal.”
Contact
Kristen Connell
P. 0400 054 227
E. kristen.connell@lawcouncil.au
Last Updated on 05/11/2025
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