Somebody please tell me – when are the politicians going to learn? Justice just isn’t a one-size-fits-all proposition.

When the Victorian government announced last week plans to introduce a mandatory minimum jail term of six months for anyone convicted of assaulting police or paramedics, lawyers predictably warned the move would almost inevitably lead to injustices. Victorian Bar President Mr Matt Collins QC and the Law Institute of Victoria questioned why one would want to appoint the best legal minds available as judges, then deny them any discretion to sentence according to the unique circumstances of each individual case. But such concerns were quickly rejected by politicians keen to promote their “get tough on crime” credentials.


It was an all-too-familiar scenario.

Back in the 1980s, the Queensland government came up with its own mandatory sentencing option. Anyone convicted of supplying drugs was to be automatically sentenced to life imprisonment. No more discretion for bleeding-heart judges to lessen their sentences. Drug dealers had to be sent to jail for life.

Of course the lawyers and others threw up their hands in shock and horror, warning such inflexible legislation would inevitably lead to unjust and unworkable results, but their protestations were quickly dismissed by chest-beating pollies as the banal bleating of pinkos and snivelling civil libertarians. The government had the numbers, so it passed the law. After all, cracking down on criminals always made for great politics, scoring a ten out of ten with the electorate on Law and Order.

But what followed turned out to be an unmitigated disaster for everyone except, very arguably, the lawyers. Every long-haired uni student handing around joints at a party, every addict peddling smack to his junkie compatriots, every supplier of every description, big, small, or otherwise, seasoned offender or clean-skin novice, regardless of their age, personal circumstances or mental capacity, whether supplying a gram or multiple tonnes, was immediately facing the prospect of life behind bars. The stakes were suddenly so high every drug supply charge was fully defended, making lots of money for lawyers. And everyone convicted went straight into prison to live off the public purse for the rest of their lives. The culprits ranged from the heinously culpable to the piteously gullible. But the sentence was always the same. One size fits all.

Of course, facing a lifetime in jail, everyone appealed their conviction, meaning even more money for the lawyers. The jails soon filled to capacity, largely with young first offenders who shouldn’t have been there, painfully straining the public purse, almost to breaking point. Suddenly, the politics weren’t looking nearly so good after all.

Eventually, after several years of frenetic activity in the criminal courts, good sense finally prevailed, and the government repealed the mandatory sentence provisions. So what next? Well, naturally, everyone who had been sentenced to life imprisonment had to be brought back to court and sentenced again, according to the law as it had been before mandatory sentencing, and now was again. More money for lawyers.

Matt Collins QC has called upon all sides of politics to drop populist, ‘get tough on crime’ responses, labelling them “an unprincipled race to the bottom.” He warns mandatory sentencing seeks to bring an over-simplistic solution to a profoundly complex process, by preventing judges and magistrates applying their experience and wisdom to the complicated task of balancing punishment, deterrence, rehabilitation and fairness, required in every sentencing procedure.

It’s an argument that finds some support in the lessons of history. I wonder if, this time, anyone will listen.

Chris Nyst
Lawyer, Novelist and Film Maker

Chris Nyst - Nyst Legal | Gold Coast and Brisbane Lawyers

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