Mandatory Minimums

On 8 February 2025, a new scheme of ‘Hate Crime’ legislation commenced across Australia, strengthening the prior legislative scheme and expanding the list of protected people, whilst also introducing mandatory minimum penalties for some of the offences. Whilst the new amendments to the Criminal Code 1995 (CTH) were mostly welcome, there has been criticism of Australian’s law makers utilising ‘Mandatory Minimum Sentences’.

Criminal Laws across Australia set maximum penalties for offences. For example, Common Assault in NSW has a maximum penalty of a term of imprisonment of 2 years. Whilst this is the maximum penalty, the Court has the role of setting the Sentence, upon consideration and by using discretion, up to the maximum penalty. However, some laws have mandatory minimum sentences, which place a hindrance on the role of judicial discretion in sentencing.

There are both State and Commonwealth laws that utilise mandatory minimums. In NSW, Assault causing death when intoxicated carries a minimum penalty of 8 years imprisonment (s25B Crimes Act 1900). In the Commonwealth, the newly introduced amendment against Public display of prohibited Nazi symbols or giving Nazi salute carries a mandatory minimum of 12 months imprisonment.

In Hurt v The King [2024] HCA 8, the High Court of Australia held that the mandatory minimum would act as a ‘yardstick’ in the sentencing exercise, imposing an increased starting point for an appropriate term of imprisonment in Sentencing offenders. For some Commonwealth offences that impose Mandatory Minimums, such as the new ‘Hate Crimes’ enacted, the Court can reduce a sentence due to an early guilty plea and/or cooperation with law enforcement agencies in investigation of the offence (section 16A(2)(g) and (h) Crimes Act 1914 (Cth)).

Ultimately, there is criticism of the mandatory minimums due to the removal of judicial discretion and the possibility of sentences being disproportionate to the offending behaviour. Whilst those in favour of the minimum draw attention to their deterrent effect, the Australian Law Reform Commission noted evidence of increased incarceration rates due to the use of mandatory minimums and can ultimately disproportionately impact vulnerable groups.

The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.