Labor says mandatory sentencing backflip a ‘bipartisan approach’

Labor has had a longstanding policy opposing mandatory sentencing, yet yesterday passed tough anti-hate crime laws that will impose minimum jail sentences. 

The new changes to the Criminal Code Act, which came in response to a wave of antisemitic attacks, include minimum six-year sentences for terror offences, three years for financing terrorism, and one-year sentences for displaying terrorist symbols or Nazi salutes. 

Labor’s opposition to mandatory sentencing is enshrined in its national platform, the most recent version of which was agreed to in 2023: “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.”

Many Labor MPs are on the record opposing the practice, including Attorney-General Mark Dreyfus, who said in 2017 minimum sentences “do not work and […] damage our system of justice”. 

In 2020, Dreyfus told the Parliament: “We maintain our opposition to mandatory sentencing because it does not work and makes it harder to catch, prosecute and convict criminals.”

When Crikey asked the attorney-general’s office for an explanation about what has changed, a spokesperson avoided answering the question directly, saying: “This bill is a direct response to the hateful conduct happening on our streets, at our schools, in our communities. The government has taken a bipartisan approach to this bill, which sends a strong message that this conduct can not, and will not, be tolerated.”

Prime Minister Anthony Albanese has also questioned the use of mandatory sentences, as recently as January 20 this year. 

In response to a question from the ABC’s Laura Tingle about Opposition Leader Peter Dutton’s proposal for mandatory six-year sentences for anyone who attacks a place of worship, Albanese responded: “There are issues of mandatory sentencing, of course, is something that can lead to issues which are counterproductive. We know that that’s the case. Look, we’ll continue to take whatever action is necessary.”

But when pressed by Peter Stefanovic yesterday about what the Sky News host labelled a “late night backflip”, Albanese hit back: “There’s nothing late night about it. We’ve been working through these issues. We want to make sure that there’s the strongest possible laws in place. We’ll be doing that today.”

Immigration Minister Tony Burke has been the most forthright about the change of policy. He told Parliament on Wednesday night that the government had agreed to the mandatory sentences in order to pass the legislation with “the largest majority possible to be able to send the strongest message possible to the Australian people”.

“This does not change the fact that the government — myself included — previously, for a long time, has expressed concern about the efficacy of mandatory sentencing,” Burke continued. “The concern is that it can in some situations potentially result in people not being found guilty when they should be, can potentially take away an incentive for people to cooperate by pleading guilty, and can take away an incentive for some people to inform on their co-accused.”

To mitigate that risk, Burke said, a two-year review period had been put in place. 

“Labor Left heavyweights” who spoke to The Australian said it was a groundswell of community fears over antisemitism that had convinced them to back the mandatory sentences. 

This was not the time to “die in a ditch” over the principle, one anonymous Labor Left MP told the newspaper, while another said: “I get the political reality of why they need to do it.” Former senator and Left faction powerbroker Kim Carr slammed the move as “disappointing”, telling The Australian: “The truth of the matter is the Labor Party principle, as outlined in the platform, is there for a good reason.”

Labor may have changed the legislation in an honest effort to reach bipartisanship on a sensitive and nationally important issue, or it may have done so in order to blunt opposition attacks that the government is weak on crime and antisemitism. 

Not that the Coalition will give any credit to Labor for that. Dutton and the Liberal home affairs spokesperson James Patterson responded to the rollover by immediately rubbing it in.

“The Parliament is not acting today because of the decisiveness of the Labor Party,” Paterson told reporters in Canberra yesterday. “The prime minister has been dragged kicking and screaming to finally introduce tough legislation that will ensure there are real penalties for this behaviour.”

Have something to say about this article? Write to us at letters@crikey.com.au. Please include your full name to be considered for publication in Crikey’s Your Say. We reserve the right to edit for length and clarity.