Albanese overruled top minister in capitulation to Dutton

Prime Minister Anthony Albanese overruled his own attorney-general this week when he gave in to the opposition and legislated mandatory minimum prison sentences for antisemitic and terror offences.

The move represents the second occasion in as many sessions of parliament where the prime minister vetoed senior ministers’ wishes after he killed off Tanya Plibersek’s environmental protection laws in November under pressure from the pro-mining WA Labor government.

Prime Minister Anthony Albanese and Attorney-General Mark Dreyfus were at odds on sentencing for terror and hate symbols.Credit: Alex Ellinghausen

Labor caved to months of opposition calls to adopt the policy in a messy late-night sitting of parliament on Wednesday, agreeing to impose prison sentences of between one and six years on charges including terrorist acts and displays of symbols such as swastikas or terror group flags.

The changes pleased Jewish groups, which for months have called for a more muscular approach to deal with rising antisemitism, but dismayed lawyers and some in Labor who see them as prohibiting judges from tailoring punishments to the individual crime and offender.

Dreyfus, who was a senior barrister before entering politics, made clear to the government’s leadership this week that he did not support the change, according to two sources familiar with the talks.

It is not unusual for cabinet ministers to disagree, but Dreyfus’ stance reflects the depth of concern within Labor on mandatory sentencing, which Albanese labelled “counterproductive” as recently as January 20, and the force of pressure from the pro-Israel Coalition to act with strength on antisemitism.

Even though Dreyfus was the minister responsible for the amended legislation as attorney-general, it was Home Affairs Minister Tony Burke, who shepherded the bill through parliament.

That began on Wednesday night in a low-profile section of the parliament usually reserved for less important debates called the Federation Chamber.

Greens leader Adam Bandt rushed from his parliamentary office to the chamber around 7.30pm after his staff grew suspicious that the major parties were sneaking the sentencing laws through because their counterparts in the government weren’t answering their phones.

“It involves prison sentences and the chamber is given five minutes to consider it,” Bandt said as he used parliamentary rules to force the debate to spill over into the next morning in the House of Representatives.

“So five minutes of notice and the merest of speeches that don’t go beyond a couple of minutes to speak to amendments that people have not seen, is not the way this parliament should go about legislating such a serious matter.”

Burke acknowledged that night that he and many other Labor MPs had been opposed to minimum prison terms, which the party formally rejects in its policy platform.

But, Burke said on Wednesday after months of antisemitic vandalism, arson and the discovery of a caravan full of explosives with a synagogue’s address: “The government is determined to be able to see this legislation pass with the largest majority possible to be able to send the strongest message possible to the Australian people.”

“This does not change the fact that the government previously for a long time, myself included, has expressed concern about the efficacy of mandatory sentencing and the concern that it can in some situations potentially lead to people not being found guilty they should be, potentially taking away an incentive for people to cooperate by pleading guilty.”

Dreyfus’ office declined to comment but pointed to his previous remarks about the need for cross-party unity and the “grotesque” Coalition politics on antisemitism and the war in Gaza. Dreyfus, whose father fled Nazi Germany, was a prominent KC before entering politics.

Home Affairs Minister Tony Burke played a key role in pushing the sentencing laws through the parliament this week.Credit: Alex Ellinghausen

Four MPs contacted by this masthead said it made political sense to take up the opposition’s demand because it meant a broader bill cracking down on hate speech won bipartisan support.

Others were deeply frustrated, including one who called the policy, which did not go through a full caucus or formal cabinet meeting, a “brazen sop to Dutton on law and order”. They hope a review into the law’s effectiveness after two years of operation will lead to them being revoked.

At least two MPs expressed serious reservations about the policy when Dreyfus briefed backbenchers about the surprise reversal, which did go through a party committee meeting, on Wednesday.

Earlier that morning, the prime minister’s office told Dutton’s office Labor would backflip on mandatory jail terms to win Coalition support and ensure a minimum of bickering on the hate crimes legislation, hours before Albanese flew to Townsville to inspect the floods.

Former Labor minister Kim Carr said the change would not work. “This is a government that is making an error of judgment in responding to what are reactionary concerns of the Liberal Party in a desperate effort to get this off the agenda, which it will not achieve,” said Carr, a Labor left stalwart.

But a host of Jewish groups and top Jewish leader Peter Wertheim praised the bill, saying, “The bipartisanship on this important issue sends a powerful and much-needed message of zero tolerance to potential perpetrators of these offences.” LGBT groups welcomed the hate speech element of the bill.

One of Australia’s top silks, Bret Walker SC, condemned Labor, saying the laws “appear to be singling out particular aspects of social dysfunction” such as the display of hateful symbols when there were a host of other crimes such as murders inspired by misogyny that had not inspired such treatment.

“What laws can’t do is compel people to be pleasant or compel people to be civil… I don’t think we’d want mandatory minimums of one year for being rude to an elderly person, for example, however revolting that conduct might be,” he said on ABC Radio National. “It is the parliament telling the courts: even though everything else about the case would combine to deliver a particular result, I insist you must impose a sentence which is more harsh. That is obviously a complete reversal to the usual approach.”

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