Mandatory jail for terror risks ‘serious injustice’
Australians from vulnerable communities could be disproportionately harmed by laws that introduce mandatory jail time for some terror offences, experts warn.
Prime Minister Anthony Albanese speaks with religious leaders at the Adass Israel Synagogue after a firebombing in Melbourne, Tuesday, December 10, 2024. (AAP Image/Joel Carrett)
People found guilty of displaying terror symbols or some terrorism offences will be jailed under new laws, but some advocates warn they could disproportionately hurt marginalised Australians.
The legislation, which cleared the Senate on Thursday, will create offences for threatening force of violence against particular groups, including on the basis of race, religion, sexual orientation, gender identity, disability or political opinion.
Mandatory minimum prison sentences were folded into the bill at the eleventh hour after Labor caved to the opposition’s demands for stronger action against antisemitism.
This means the display of Nazi or terrorist symbols will carry a one-year mandatory prison sentence, three years for financing terrorism and six years for other terrorism offences under amendments put forward by Home Affairs Minister Tony Burke.
Expanding offences and strengthening penalties should not be the default tool to prevent radicalism and extremism, Law Council of Australia president Juliana Warner said.
“It is vitally important in challenging times to uphold rule of law principles and not adopt measures that risk serious injustice,” she said.
These changes could prevent judges from taking the personal circumstances of an offender into consideration, which can disproportionately impact vulnerable groups.
The offences also have potential to exacerbate existing uncertainties and inconsistencies in the law as complex and overlapping Commonwealth and state offences are more difficult to enforce, the council warned.
LGBTQI advocacy group Equality Australia also slammed the mandatory minimums and criticised the legislation as a “missed opportunity” to stamp out all forms of hate speech as it does not include serious vilification.
“Outlawing incitement to violence while ignoring the toxic rhetoric and harassment that leads to it is simply putting a Band-Aid on a much bigger wound,” chief executive Anna Brown said.
Prime Minister Anthony Albanese was critical of mandatory minimum sentences when the coalition first announced its plan to pursue the amendments.
Labor’s policy platform argued these measures wouldn’t work and would only take away judicial independence.
But after months of escalating anti-Semitic incidents – including the firebombing of a synagogue and a caravan filled with explosives being found with a list of Jewish targets – Mr Albanese capitulated.
“We want people who are engaged in antisemitic activities to be caught, to be charged and to be put in the clink – that’s my priority,” he told reporters in Townsville.
The laws have been welcomed by the Executive Council of Australian Jewry, with co-chief executive Peter Wertheim claiming it leaves “ample room” for judges to exercise their discretion.
“The bipartisanship on this important issue sends a powerful and much-needed message of zero tolerance to potential perpetrators of these offences,” he said.
He added: “We have seen too many examples of such behaviour going unpunished, such as the disgraceful antisemitic threats and hatred that featured at the Sydney Opera House steps on 9 October 2023. No one was even charged, let alone convicted.
More recently there have been similar instances of such behaviour in Sydney, Melbourne and Perth where perpetrators have been convicted and given only a token fine. That is also unacceptable because perpetrators come to regard such fines as merely the cost of ‘doing business’ and not as a real deterrent. If there is to be any hope of stamping out this hateful behaviour and the appalling antisemitic violence it has spawned in recent times, prison sentences and fines are called for.
Between the mandatory minimum sentence and the statutory maximum, there will still be ample room for judges to exercise their discretion based on the specific circumstances of each case. Now, however, that discretion will need to be exercised within parameters that reflect community expectations and standards.”
Labor also passed a coalition amendment to add advocating force or violence by causing damage to property to the legislation.
The opposition celebrated Labor being “dragged kicking and screaming” to support the changes.
“Unless people know that there is a consequence for their actions, it will continue and we are not going to allow that,” Opposition Leader Peter Dutton told reporters in Canberra.
NSW Opposition Leader Mark Speakman also backed the federal changes while pointing to other preferred options like standard non-parole periods.
However, members of the crossbench have lashed Labor.
“This is what Labor has become under Prime Minister Albanese – a hollow shell that stands for nothing,” Greens senator Mehreen Faruqi told the Senate.
Independent Zoe Daniel supported the legislation’s passage but took issue with mandatory minimums as they “do not reflect good parliamentary practice or good governance”.
The government had politicised a “good bill … (and made) it very, very hard to vote for”, Senator David Pocock said.
By: Kat Wong and Dominic Giannini/AAP with J-Wire
