The Law Council has praised Labor’s stand against mandatory minimum sentences for sexual offences against children as Peter Dutton and the justice minister, Michael Keenan, step up their attack over the controversial measure.
The Law Council president, Fiona McLeod, said on Thursday that mandatory sentences were a “one-size-fits-all” penalty that caused “unintended consequences”.
On Wednesday Labor’s shadow justice minister, Clare O’Neil, said in a lower house debate that the party opposed mandatory minimum sentences for serious or repeat offenders contained in a government bill to crack down on child sexual offences.
O’Neil said mandatory minimums would “let guilty people off the hook because juries are less likely to convict them when they know there is no discretion about the sentence”.
She argued that mandatory minimums would prevent criminals cooperating with police to “bring the kingpins who run [child exploitation] networks to justice”.
O’Neil said the bill would impose a mandatory five-year jail term on an 18-year old in a relationship with a 15-year-old, such as a year 12 student and a year 10 student sending explicit images over Snapchat.
A spokeswoman for O’Neil told Guardian Australia that, despite attacking the mandatory minimum sentences, Labor will vote for the bill even if the measure is not removed.
On Thursday Keenan told 2GB Radio he was “astonished” Labor would not support the main measure of the bill. He said there was “no such thing as a minor commonwealth child sex offence, they’re all horrible”.
“Currently commonwealth child sex offenders, 40% of them don’t even spend one day in jail and, of the cohort who do go to prison, the most common length of time served is six months.”
Dutton told 2GB Radio that Bill Shorten should explain why Labor did not support minimum mandatory sentences for child sexual offenders when they supported them for people smugglers.
“Why on earth he’d oppose that, I don’t know,” he said. “The fact is that they supported these mandatory provisions in relation to people smuggling ... and they’re saying that sex offenders don’t deserve these minimum sentences and there is huge hypocrisy.”
In 2010 Labor created mandatory minimum sentences for “aggravated people smuggling”, which have never been successfully prosecuted. It has never supported mandatory sentences for people convicted of terrorist offences.
Asked about Labor’s stand on mandatory minimums McLeod told ABC News: “The problem with mandatory sentencing, in any bill, and in … the child sex offenders’ bill, is that it can lead to drastic unintended consequences.”
McLeod said if a 17-year old were in a relationship with a 15-year old, the older partner would “suddenly” be guilty of a criminal offence when they turned 18.
“You instantly have, with no discretion for the courts whatsoever, a minimum period of jail,” she said. “It must be an unintended consequence and it’s far too harsh.”
McLeod suggested that increased sentences could send a signal about the seriousness of crimes without the “great unfairness for many people” caused by mandatory minimums.
“Courts can take this into account in their sentencing principles. We don’t want to hamstring the court so they have no option.”
The sexual crimes against children bill passed the lower house on Thursday. Keenan said he was hopeful the Senate would pass it because “we’ve got a lot of common sense out of the crossbench”, although he expressed disappointment Labor had not supported it.
The shadow attorney general, Mark Dreyfus, has defended Labor’s opposition to mandatory minimum sentences for firearms offences, such as trafficking weapons, explaining that it has a principled opposition to removing judges’ discretion.