News / Opinion
Mandatory sentencing – is it fair?
Words by Emily Cousins
Strong opinion has been voiced recently in relation to the Government’s mandatory minimum penalties for antisemitic offences (See the Criminal Code Amendment (Hate Crimes) Bill 2025 assented to 7 February 2025).
The implementation of mandatory minimum sentences is causing concern among legal professionals (the team at Craig Caldicott Lawyers included).
Upholding the rule of law is crucial. Fairness is critical to the Australian judicial system and must be protected at all costs.
After all, upholding fairness is central to not only criminal defence lawyers, but all involved in the criminal law system.
On the surface, it may seem like mandatory minimum penalties directly promote fairness and consistency.
In practice, however, it erodes the ability of the Judiciary to consider each case on its own merit, including but not limited to any mitigating circumstances of the Defendant.
Mandatory sentencing serves to treat the Judicial process in a ‘one size fits all’ way (when we know that is not the case either in sentencing or in fashion).
The implementation of mandatory minimum sentences serves to strip the Judiciary of their role.
In Australia, our system is built on the foundation of an independent Judiciary – one free from interference by the other pillars (Parliament and the Executive).
Generally speaking, the Judiciary is empowered with wide discretion when imposing penalties. Justices, Judges and
Magistrates have been engaging with this discretionary process for decades and, for the most part, get it right.
And when they don’t, appeal processes can be enlivened.
Parliament ordinarily sets maximum penalties for crimes; this serves as a guide to the Judiciary.
Putting to one side the separation of powers issue, as Bartels and Sarre indicate in their recent article, mandatory sentencing “has a poor track record of reducing crime”.
To read more about mandatory sentencing in the context of the antisemitic offences, see these articles published by the Law Council of Australia (Mandatory sentencing is not the answer – Law Council of Australia), and in the Conversation (Mandatory minimum sentencing is proven to be bad policy. It won’t stop hate crimes).