The Law Council of Australia is extremely disappointed in the Government's proposal to impose mandatory sentencing in response to certain hate crimes and a broad range of terrorism offences.
"The Law Council has been gravely concerned by the recent incidents and acts of antisemitism that have occurred across the country. At the same time, it is vitally important in challenging times to uphold rule of law principles and not adopt measures that risk serious injustice," Law Council of Australia President, Juliana Warner said.
"The Government's amendments to the Criminal Code Amendment (Hate Crimes) Bill 2024 have introduced mandatory minimum sentences for certain hate crimes and terrorism offences. This would mean, for example, a person guilty of public display of prohibited symbols at a political protest would be subject to a mandatory minimum sentence of 12 months imprisonment.
"Under mandatory sentencing, the personal circumstances of the offender are not taken into consideration. This has the potential to disproportionately impact vulnerable groups."
Other elements of the amendments would see minimum sentences of six years imposed in relation to a broad range of terrorism offences. This would include the offence of getting funds to, from or for a terrorist organisation. Financing terrorism offences would be subject to a mandatory minimum sentence of three years.
"Mandatory sentencing laws are arbitrary and limit the individual's right to a fair trial by preventing judges from imposing a just penalty based on the unique circumstances of each offence and offender," Ms Warner said. "Judges are best placed to determine the appropriate and just penalty under these laws on an individual, case-by-case basis.
"The decision to add mandatory sentencing as part of the Government's response to hate crimes has come late in the day without proper consideration. Further, the Australian Labor Party has gone against its 2023 National Platform that states Labor opposes mandatory sentencing. To our knowledge, no security or law enforcement agency has asked for these extraordinary measures.
"There has been no opportunity to scrutinise the rationale, necessity and proportionality of these changes, which comes as part of the Federal Government's response to a rise in antisemitic incidents and deterioration in social cohesion.
"Australia is a multicultural society and we must preserve our social cohesion and protect against the specific harms of hateful speech on vulnerable groups. In doing so, we acknowledge the importance of carefully framed criminal laws proscribing speech to prevent radicalisation, violence and activities that incite hatred.
"However, expanding offences and strengthening penalties should not be seen as the default tool through which to prevent radicalism and extremism from propagating or to facilitate behavioural change of disaffected individuals. There should be greater resourcing for countering violent extremism through early intervention and diversionary programs with a specific focus on children and young people.
"We are also concerned the new offences contained in the Hate Crimes Bill have the potential to worsen existing uncertainty and inconsistency by piecemeal expansion of Commonwealth criminal offences.
"Complex and overlapping Commonwealth and state offences are more difficult to enforce and may lead to arbitrary differences in outcome. There is a risk that inconsistent penalties at Commonwealth level will have limited impact on the intended objectives and worsen complexity in this area. Further, overly broad offences may rely on discretion to enforce in circumstances which become politicised.
"Before we pursue changes to our laws, we must ensure gaps do indeed exist that require a legislative response and consult on proposals to ensure they are the best solution.
"As debate on the Bill moves through Parliament, the Law Council urges the Senate to ensure proper consideration by, and consultation with, our community before mandatory sentencing legislation is passed."
