Executive Summary
- NSW is set to become the first Australian state to ban ‘good character’ references in all criminal sentencing hearings.
- The reform adopts recommendations from a review led by retired Supreme Court Judge Peter McClellan.
- Attorney General Michael Daley stated the change prevents offenders from using social standing to minimize culpability.
- Legal groups, including the Aboriginal Legal Service, have raised concerns regarding the impact on judicial discretion and disadvantaged defendants.
The government of New South Wales (NSW) has announced it will introduce legislation to prohibit the consideration of "good character" references during sentencing hearings for all criminal offenses, marking a first for the nation. The reform aims to prevent offenders from using their social reputation or community standing as a mitigating factor to reduce their sentences.
According to NSW Attorney General Michael Daley, the decision follows a comprehensive review by the NSW Sentencing Council, led by retired Supreme Court Judge Peter McClellan. The review concluded that the concept of good character is often vague, lacks evidentiary support regarding the risk of reoffending, and can constitute an unjustified form of "moral and social accounting." Daley stated that the changes ensure offenders cannot rely on their reputations to minimize culpability for serious crimes.
The legislative push was heavily influenced by the "Your Reference Ain’t Relevant" campaign, an advocacy group founded by survivors of child sexual abuse. Harrison James, a co-founder of the group, described the upcoming legislation as a monumental shift in judicial procedure, asserting that survivors’ lived trauma should outweigh an offender’s social reputation. Currently, NSW law applies a "special rule" limiting character references only for child sex offenders; the new bill will expand this exclusion to cover all crimes.
Despite strong support from victim advocacy groups, the proposal has generated dissent within the legal community. The Aboriginal Legal Service recommended against a blanket removal, suggesting instead that procedural changes could improve the experience for victim-survivors without infringing on defendants’ rights. Additionally, two members of the sentencing council issued dissenting opinions, arguing that removing the principle entirely could be reactive and might undermine judicial discretion in exceptional circumstances.
Legislative Ramifications
This reform represents a significant statutory intervention into the common law sentencing principles used in Australian courts. by eliminating "good character" as a mitigating factor, the legislation prioritizes a victim-centric approach over the traditional holistic assessment of an offender’s background. Legal observers note that while evidence regarding the prospect of rehabilitation and lack of previous convictions remains admissible, the specific exclusion of general character references fundamentally alters the balance of sentencing considerations in New South Wales.
