OUR MANDATORY LAW SHAME

WITH the execution of young Australian citizen Nguyen Tuong Van now a
fait accompli, commentators have sought to draw lessons from the human
tragedy of a legally sanctioned death in another country.

Some see the episode as merely a timely reminder to Australians of the
dangers of trafficking in illicit drugs in countries ready and willing
to impose draconian penalties on offenders. Others see capital
punishment as barbaric. They point to the need for Australia to adopt
a more consistent approach in the international arena to the use of
capital punishment by so many of our neighbours, major trading
partners and political allies.

Yet others express surprise that, according to polls, almost half the
Australian community thinks that justice was done in Singapore.
Perhaps the commentators wonder whether all of those polled would
adhere to their opinion if the Australian citizen hanged happened to
be an attractive white female.

Very few commentators have regarded Nguyen's death as holding any
lessons for Australian domestic policy. After all, Australia finally
rejected capital punishment three decades ago. On this issue,
Australia seems to have been able to claim the high moral ground.

It is important to recognise, however, that the death sentence carried
out on Nguyen in Singapore presents two quite distinct policy issues.
The first is whether capital punishment, whatever the means of
execution, has any role in a civilised society.

The second issue is the sheer arbitrariness of mandatory penalties.
Under Singapore law, anyone caught trafficking in more than 15 grams
of heroin is subject to the mandatory death penalty. A court, once the
accused is found guilty, has no discretion. It does not matter
whether, as in Nguyen's case, the offender has no previous
convictions, can demonstrate mitigating circumstances, displays
remorse and is prepared to co-operate with the authorities. The
penalty must be death.

That is why in Singapore a first offender drug mule caught with 16
grams of heroin in his or her possession is sentenced to death by
hanging. A seasoned criminal caught with 14 grams escapes the death
penalty.

To most Australians such a law would seem to be singularly unjust. It
imposes the same drastic penalty on offenders whose culpability ranges
from the very great to the relatively modest. But why is this in any
way relevant to us?

While Australia does not now impose the death penalty, Australian law
retains mandatory minimum penalties for certain offences. As recently
as 2001, the Commonwealth Parliament enacted legislation providing for
mandatory minimum sentences for those convicted of so-called
people-smuggling offences.

The laws of some states and territories force courts to impose minimum
sentences for certain kinds of offences or offenders.

The effect of mandatory minimum sentencing laws is to deny judges or
magistrates any discretion to take account of the particular
circumstances of the offender, or the nature of the particular
offence, when determining the minimum sentence that should be imposed.
Such laws are instruments of injustice, just as the Singapore law
providing for mandatory capital punishment was an instrument of
injustice in Nguyen's case.

Nguyen's execution is an extreme example of the evils of mandatory minimum
penalties. But evils are not confined to the imposition of capital
punishment in foreign countries. They apply in our own country.
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Justice Ronald Sackville is the chairman of the Judicial Conference of
Australia.
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