Policy Discussion Paper - Mandatory Sentencing
2 October 2014
The Law Council of Australia has consistently opposed the use of mandatory 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, and undermine fundamental rule of law principles.
The rule of law underpins Australia’s legal system and ensures that everyone, including the government, is subject to the law and that citizens are protected from arbitrary abuses of power. Mandatory sentencing is also inconsistent with Australia’s voluntarily assumed international human rights obligations.
In the Law Council’s view, mandatory sentencing laws are 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 offence and offender.
Mandatory sentencing disproportionately impacts upon particular groups within society, including Indigenous peoples, juveniles, persons with a mental illness or cognitive impairment, or the impoverished. Such regimes are costly and there is a lack of evidence as to their effectiveness as a deterrent or their ability to reduce crime.