Mandatory Sentencing Policy
2 October 2014
The key objectives of the Law Council of Australia include promotion of the rule of law and support for the administration of justice. For this reason, the Law Council often provides advice to governments, courts and federal agencies on ways in which the law and the justice system can be improved. This statement addresses the expanded take-up of minimum mandatory sentencing regimes across Australia in recent years, and also responds to increased community interest in this issue.
The Law Council of Australia has consistently opposed the use of sentencing regimes which prescribe mandatory minimum sentences upon conviction for criminal offences. Its opposition rests on the basis that such regimes impose unacceptable restrictions on judicial discretion and independence, are inconsistent with rule of law principles and undermine confidence in the system of justice. Mandatory sentencing is also inconsistent with Australia’s voluntarily assumed international human rights obligations.
Mandatory sentencing laws are by definition arbitrary and can limit an individual’s right to a fair trial by preventing judges from imposing an appropriate penalty based on the unique circumstances of each offence and offender. Such regimes are costly and there is a lack of evidence as to their effectiveness as a deterrent or their ability to reduce crime.
Mandatory sentencing regimes create especially unjust outcomes for particular groups within society: Indigenous peoples, juveniles, persons with a mental illness or cognitive impairment, and the impoverished. Apart from their frequent lack of adequate representation to challenge a criminal charge and the inhumanity involved in the imprisonment of juveniles and the mentally disabled, mandatory sentencing regimes are applied selectively and often used in response to particular kinds of crime which are disproportionally committed by these groups. In that sense the regimes operate in a discriminatory way against members of those groups in society who are already most disadvantaged.
The community is rightly concerned that law and order policies are effective in reducing crime and recidivism. However, there is a lack of any persuasive evidence that mandatory sentencing leads to these outcomes. Rather the evidence points to the significant financial and social cost of mandatory sentencing to individuals and to the community without a corresponding benefit in crime reduction.