You know what creates unsafe communities? Mandatory sentencing
Opinion piece by Law Council Past President, Mr Greg McIntyre SC, first published in The Canberra Times, 4 January 2025.
You do the crime, you do the time!
While this well-known saying quite rightly points out that there must be consequences for those who break our laws, it also implies that for every crime there is a predeterminable sentence that should attach to it.
What this fails to take into account are the many different factors that need to be considered when a person is sentenced if justice is to be served.
For example, if a person was driven to shoplift in order to ensure their newborn baby would have the formula they need to survive, should the punishment be as severe as that for someone who robs others purely out of greed or malice?
If a person comes before a court and it is the first time they have ever broken a law, or they are struggling with mental illness, face significant disadvantage, or they are still just a child, should such factors not be taken into account?
One of the greatest strengths of Australia’s justice system is that we trust judges to be independent arbitrators and to make informed and just decisions.
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, in accordance with the law of the land.
The traditional approach to sentencing under Australian law – both federal and state – is that the Parliament establishes a maximum penalty that can be imposed upon conviction, but the sentencing court is given the ability to determine the appropriate sentence in each individual case.
However, forms of mandatory sentencing laws exist in all Australian jurisdictions and continue to be considered by governments adopting ‘tough on crime’ political stances. Mandatory sentencing imposes a predetermined minimum sentence for a specific crime.
At the Commonwealth level, the Migration Amendment (Removal and Other Measures) Act 2024 (Cth), which received Royal Assent in December 2024, imposed minimum mandatory sentences of at least 12 months for a person who fails to comply with a Ministerial direction to cooperate in their removal from Australia.
In Queensland, the recently enacted Making Queensland Safer Act 2024 (Qld) was backed by the slogan ‘adult time for adult crime’. It changed the law so that children are actually treated more harshly than adults in some instances, and removed judges’ discretion in relation to fundamental principles such as that detention should only be a last resort for children, and that children’s history and circumstances need to be weighed carefully against the impact of their offending on victims.
The Australian Labor Party In its 2023 National Policy Platform noted its opposition to mandatory sentencing because “this practice does not reduce crime but does undermine the independence of the judiciary, lead to unjust outcomes, and is often discriminatory in practice.”
These views are backed up by the Australian Law Reform Commission, which in a 2018 Report said: “Evidence suggests that mandatory sentencing increases incarceration, is costly and is not effective as a crime deterrent. Mandatory sentencing may also disproportionately affect particular groups within society, including Aboriginal and Torres Strait Islander peoples.”
Also in 2018, three studies by criminologists and sentencing experts found that members of the public – given access to the same evidence as judges and having to make decisions based on real cases – were actually more lenient than judges. These studies proved that media articles about judges being too soft on offenders are mostly empty rhetoric.
In addition to the domestic legal considerations, mandatory sentencing is inconsistent with Australia’s international obligations, such as the prohibition on arbitrary detention in Article 9 of the International Covenant on Civil and Political Rights, and the principle that children should only be detained as a last resort and for the shortest appropriate period of time in Article 37(b) of the Convention on the Rights of the Child.
The Law Council of Australia has consistently opposed the use of mandatory sentencing regimes, and indeed has adopted a formal policy against them.
In the Law Council’s view, mandatory sentencing laws are inherently arbitrary and limit an individual’s right to a fair trial by preventing judges from imposing an appropriate penalty based on the unique circumstances of each case.
Put simply, mandatory sentencing means politicians determine the minimum jail time a person deserves, rather than our courts.
Mandatory sentencing prioritises retribution over rehabilitation. This can actually lead to more reoffending, making our communities less safe in the long run.
Accordingly, the Law Council considers that policy makers should consider alternatives to mandatory sentencing and related retributive measures, such as justice reinvestment strategies and diversionary non-custodial options, which studies show are more effective at reducing recidivism.
’Do the crime, do the time’ represents an overly simplistic approach to criminal law policy making. Mandatory sentencing can result in unjust and disproportionate sentences, where the punishment most definitely does not fit the crime.
Last Updated on 08/01/2025
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