Have the Greens taken control of the NSW judicial watchdog? It sure looks that way. The latest amendments to sentencing guidelines in NSW set out in the Equality Before the Law bench book sound like a misguided political manifesto. Worse, these new guidelines introduce inequality before the law.
Without so much as a “by your leave”, the judicial branch of the legal profession is seeking to bypass parliaments and reshape our legal systems using politics as their guiding light.
No matter how sympathetic we are to Indigenous Australians or to any other group of vulnerable citizens, instructing judges to take colour, ethnic background, religion or any other collective characteristic into account when determining sentences is no way to fix disadvantage while maintaining social cohesion.
Just as the best way to get rid of discrimination is to stop discriminating against people, the only way to avoid entrenching division and inequality is by adhering to equality under the law for everyone.
Lady justice doesn’t wear a blindfold for nothing. These radical sentencing guidelines promulgated by the Bench Books, alas not just in NSW, create two-tier justice.
Our legislators need to step up and follow the lead set for them by Shabana Mahmood, the Justice Secretary in the British Labour Government. You could never accuse Mahmood, let alone the Starmer government, of being anti-woke or remotely Trumpian, but even they saw the need to avoid any hint of different standards of law for different categories of people.
Much like here, the UK Sentencing Council, a body dominated by judges and ex-judges, released guidelines advising courts to order pre-sentence reports for offenders from “an ethnic minority, cultural minority, and/or faith minority community” and for transgender, young or females.
Mahmood was rightly outraged, saying “these guidelines create a justice system where outcomes could be influenced by race, culture or religion. This differential treatment is unacceptable – equality before the law is the backbone of public confidence in our justice system.”
Not only did Mahmood institute a review into the remit of the Sentencing Council but she almost immediately introduced emergency legislation which said that sentencing guidelines “may not include provision framed by reference to different personal characteristics of an offender” and went on to give a list of “personal characteristics”, including race, religion or belief and cultural background, which had to be ignored.
Bravo, Mahmood.
Now it’s the turn of NSW Attorney-General Michael Daley to step up and do the right thing by the state’s legal system and the people, given that NSW judges can’t be trusted to do it.
Judges should remember that deference towards them is earned, not a given. Attempts to use sentencing to establish anything remotely approaching a two-tier justice to suit their personal politics would be a grave mistake.
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