Mandatory Sentencing Laws: The Policy Evidence Says It Doesn't Work
By Direct Democracy
What Is Mandatory Sentencing?
Mandatory sentencing laws remove judicial discretion. Instead of allowing a judge to weigh the circumstances of a case - the offender's history, mental health, background, or the specifics of the crime - the law prescribes a fixed minimum prison term that must be applied regardless of context.
In Australia, mandatory sentencing exists at both state and federal levels. Some of the most well-known examples include:
- Northern Territory: Mandatory minimums for property offences and assault, including a highly controversial 28-day minimum for repeat property offenders introduced in 1997
- Western Australia: Mandatory sentencing for home burglary, assault causing grievous bodily harm, and a range of other offences
- Federal level: Mandatory minimum sentences for people smuggling (5 years, with a 3-year non-parole period), and for some firearms offences
- Victoria, NSW, Queensland: All have various forms of mandatory or presumptive minimum sentences for specific offences, including assaults on emergency workers and serious drug trafficking
The political logic is simple and emotionally appealing: tough crimes deserve tough sentences, and courts shouldn't be able to let serious offenders off lightly. It's a message that fits neatly on a campaign leaflet.
The reality is considerably messier.
Who Actually Gets Hit
Mandatory sentencing does not fall equally across the community. In Australia, the evidence is stark: these laws disproportionately affect Aboriginal and Torres Strait Islander people.
When the NT introduced its mandatory sentencing laws in the late 1990s, the incarceration rate for Aboriginal people surged. By the mid-2000s, Aboriginal Australians were being imprisoned for minor property offences - stealing food, petrol, small amounts of money - under laws that gave judges no room to consider context, trauma, or disadvantage.
Nationally, Aboriginal and Torres Strait Islander people make up around 3% of the general population but over 32% of the adult prison population (Australian Bureau of Statistics, 2023). In the NT, that figure climbs to over 85% of the prison population.
Young people are also heavily affected. Mandatory sentencing for juvenile offenders has been widely criticised by legal experts, social workers, and the United Nations Committee on the Rights of the Child, which specifically called out Australia's NT laws as a violation of international obligations.
What the Evidence Actually Shows
The core justification for mandatory sentencing is deterrence: if people know they'll face a harsh sentence, they won't commit crimes. It's an intuitive argument. It's also not well supported by the research.
| Claim | What the Evidence Shows |
|---|---|
| Mandatory sentencing deters crime | No consistent evidence of deterrent effect (Australian Law Reform Commission, 2006) |
| It reduces recidivism | Prison - especially short sentences - often *increases* reoffending rates |
| It ensures consistency in sentencing | It creates inconsistency by removing proportionality |
| It's cost-effective | Imprisonment costs taxpayers approximately **$400 per day per prisoner** in Australia |
The Australian Law Reform Commission has reviewed mandatory sentencing on multiple occasions and consistently found that it does not achieve its stated aims while generating significant human and financial costs. The Australian Institute of Criminology has reached similar conclusions.
The NT's 1997 experiment is particularly instructive. Property crime rates did not fall meaningfully following the introduction of mandatory sentencing. What did happen was a dramatic increase in incarceration - and at least two deaths in custody of young Aboriginal men, including the widely reported case of a 15-year-old boy who took his own life after being imprisoned for stealing a texta marker and some biscuits.
WA's experience has been similar. Despite decades of mandatory sentencing for burglary, WA continues to have one of the highest incarceration rates in the country.
So Why Does It Persist?
If the evidence is so clear, why do both Labor and Liberal governments keep supporting, expanding, or at minimum, refusing to repeal mandatory sentencing laws?
The answer is politics, not policy.
Mandatory sentencing is popular with a vocal constituency - particularly in the aftermath of high-profile crimes. When a serious assault makes the evening news, the political pressure to be seen as "tough on crime" is intense. Repealing a mandatory minimum can be framed by opponents as "going soft" on perpetrators, which no politician in a marginal seat wants to risk.
Both major parties have a record here. The Howard government introduced federal mandatory sentencing for people smuggling. The NT laws were introduced under a Country Liberal Party government but were retained by subsequent Labor administrations. In WA, both Liberal and Labor governments have expanded mandatory sentencing over the years rather than winding it back.
The people who pay the price - incarcerated individuals, their families, remote Aboriginal communities - are not a powerful political constituency. They don't have lobbyists. They don't fund campaigns.
The Costs We All Bear
Beyond the human cost, there is a direct financial one. Australia's total prison expenditure exceeds $5.4 billion per year (Productivity Commission, Report on Government Services, 2023). With mandatory sentencing filling prisons with people who might otherwise receive non-custodial sentences - community service, treatment programs, supervised probation - we are collectively spending enormous sums on an approach that the evidence tells us makes communities less safe over time, not more.
Evidence-based alternatives - rehabilitation programs, restorative justice, addressing the underlying drivers of offending like addiction, mental illness, and poverty - are consistently shown to reduce reoffending at a fraction of the cost. But they don't make for punchy press releases.
This Is Exactly Why Direct Democracy Matters
When Australians are given the full picture - not the three-word slogan, but the actual evidence about what works and what doesn't - polling consistently shows support for rehabilitation over punishment as the primary goal of the justice system (Australia Institute, 2022).
The problem is that our political system doesn't ask us. It asks us every three or four years to pick between two major parties whose justice policies are shaped more by focus groups and media cycles than by evidence or community values.
Direct Democracy changes that. When members vote on policy directly, and elected representatives are bound to follow that mandate, the gap between what the evidence supports and what governments actually do narrows dramatically. Mandatory sentencing persists not because Australians demand it upon reflection - but because no one ever properly asked them.
If you think Australians deserve better than evidence-free policies driven by political self-interest, we'd love to have you involved.
[Take our policy quiz](https://directdemocracy.com.au/quiz) to see where you stand on justice and a dozen other issues - then consider [joining Direct Democracy](https://directdemocracy.com.au/join) and having your voice actually count.