It couldn’t be clearer. Labor’s 2023 National Platform states:
Labor opposes mandatory sentencing. This practice does not reduce crime but does undermine the independence of the judiciary, lead to unjust outcomes and is often discriminatory in practice.
Labor’s position against mandatory sentencing has been long-standing and for good reason: anyone with practical experience in the criminal justice system knows those criticisms of mandatory sentencing to be true.
The Law Council of Australia has observed that mandatory sentencing, among other things, undermines the independence of the judiciary and the rule of law, disproportionately affects vulnerable groups within the community, leads to unjust, harsh and disproportionate sentences where the punishment does not fit the crime, fails to deter crime and increases the likelihood of recidivism.
Despite all this, Federal Labor has now followed its Victorian counterpart in first failing to oppose, and now enacting, mandatory sentencing provisions. This is because, in a base political calculus, the end has been seen to justify the means.
This story begins in 2020, when the Labor Opposition ultimately did not oppose the introduction of mandatory minimum sentences for certain sexual offences committed against children. On the eve of the 2022 federal election, Labor again failed to oppose the introduction of mandatory sentencing provisions for firearms trafficking offences. This was a pragmatic if cynical political choice by the then Opposition to avoid being “wedged” by the Morrison Government.
The Federal legislative regime is even more draconian than the Victorian regime (which the Victorian Court of Appeal has described as turning judges into “instruments of injustice”), because it has no exceptions to mandatory sentencing for things like mental illness or intellectual disability. There can be a limited reduction to the sentence for a plea of guilty and co-operation with the authorities, but that’s it. However, those limited exceptions won’t even apply to the recently enacted supervision order offences and the newly proposed migration offences.
In Magaming v The Queen [2013] HCA 40; (2013) 252 CLR 381, a majority of the High Court found mandatory sentencing provisions in relation to aggravated people smuggling offences to be valid under the Constitution. But there is a strong argument that, in requiring judicial officers to impose what can be grossly disproportionate sentences, the provisions breach Australia’s obligations under international human rights law, including the rights of freedom from arbitrary detention and freedom from cruel, inhuman and degrading treatment.
Understandably, the community has little sympathy for child sex offenders and firearms traffickers. But as we’ve seen time and time again in the criminal justice arena, what begins as an exceptional stand for the worst type of offences becomes the new normal. This pattern of “ratcheting” is now common among governments that have been unable to resist the siren’s call of penal populism.
So it should come as little surprise then that, faced with another difficult political reality, Federal Labor has shredded its own national platform. The High Court having found that indefinite immigration detention was unlawful in NZYQ, the Government – instead of using this as a time to reflect on the terrible and inhumane bipartisan legacy of Australia’s policies towards people seeking asylum – has panicked in an endeavour to be seen to be doing something “tough”.
First, the Migration and Other Legislation Amendment (Bridging Visas, Serious Offenders and Other Measures) Act 2023 (Cth) introduced a regime of supervision orders for those released from immigration detention after NZYQ, with a mandatory 12-month sentence for breaching a condition imposed under a supervision order. That would include, for example, the person committing a minor offence such as shoplifting whilst in the community.
Now, the Migration Amendment (Removal and Other Measures) Bill 2024 (Cth) would, among other things, create a criminal offence of certain non-citizens failing to cooperate with deportation, including to a country where a person has a genuine fear for their life. The person may have had their protection claims rejected by the deeply flawed and unfair “fast track” system. These can be life and death decisions. Anyone who has worked with refugee communities knows of cases where protection claims were rejected and the person was returned to precisely the consequences they feared.
What makes the latest lurch towards mandatory sentencing quite different is that the maximum penalties for the offences are moderate (5 years’ imprisonment). Previously, mandatory sentencing has been sought to be justified on the flawed basis that judicial officers were sentencing for serious offences too lightly. Research demonstrates that, once people are fully informed of the facts and circumstances, that is generally not the case.
In any event, in light of the relatively short maximum sentence the mandatory minimum sentence (12 months’ imprisonment) serves a different purpose. It becomes a tool of deterrence in order to seek compliance for those on supervision orders and those intended to be deported, even those who genuinely fear being killed.
You commit a shoplift because you can’t afford to feed your family? 12 months’ imprisonment.
You refuse to cooperate with your own deportation? 12 months’ imprisonment.
The Bill is a blunt instrument attempting to shoehorn vulnerable people to agree to their own deportation, no matter their fears or the cost.
Perhaps some prosecuting agencies will decline to prosecute some potential offences, but that raises yet another problem with mandatory sentencing: it reduces the transparency and consistency of prosecutorial decision-making. And the reality is that many people will be prosecuted.
Labor’s long-standing policy against mandatory sentencing now comes with an asterisk; Labor is opposed to mandatory sentencing apart from when it’s politically expedient. However, Labor is not going to win a race to the bottom on law and order, and it would be worth pausing to consider where this kind of knee-jerk disregard for long-standing principle will end.
Those of us who practise in criminal law know that many people do not understand just how terrible mandatory sentencing is until they, or a family member or friend, are exposed to it. Further, by its very nature mandatory sentencing undermines the judiciary and the delicate balance of the separation of powers. We erode the oversight of the independent umpire at our peril.
Now that, extraordinarily, the Coalition, Greens and others on the crossbench have united to pause this latest Bill and refer it to a six-week Senate inquiry, Labor should take a moment to reflect and remind itself why it has, over its long history, opposed mandatory sentencing.
Whatever course the Government takes, the mandatory sentencing provisions should be removed, and Labor should return to a position of principle over penal populism.
