“Diversity, equity and inclusion is a simple idea: people are not born into equal opportunity, but we can go some way to putting that right by letting some disadvantaged have a chance.” Columnist HUGH SELBY says a prominent legal commentator is adrift in her criticism of how offenders are sentenced.

Note to self: “Do not take yourself seriously. No one else does” and “Yield not to temptation, doing so is a sin”.

Readers who can stomach the news churn from America will know that the Emperor Donnie and his entourage see “diversity, equity and inclusion” (DEI) as a blot on the Empire.

It’s a simple idea: people are not born into equal opportunity, but we can go some way to putting that right by letting some disadvantaged have a chance. Without those “positive discrimination” programs those people are going to stay at the bottom where it’s easy to trample them, even easier to forget that they breathe.

You may have read that it was all going swimmingly for the Donnie until Harvard declined to put up the white flag and blew him off. Naughty Harvard. How this will end – it’s now in the courts – is unknown. 

I’ve heard that DEI, and equivalent programs such as getting indigenous Australians through law school, is Socialism on the march. I’ve also heard that it’s very unfair because, “My teenager missed out on a place because it was given to somebody from the wrong ‘side of the tracks/gender/skin colour/ethnicity’, but I’m not a racist or a bigot”.

Yes, you are. Sad, but true, your offspring couldn’t compete against their compatriots who, like them, had all the advantages of a comfortable, first-world upbringing. And let’s not forget those admissions for the sons and daughters of the wealthy where hard coin has been a substitute for competitive talent.

The Australian newspaper’s latest assault on the courts, a la Trump, is to attack the NSW Equality before the Law Bench book for judges. The article’s here.  

The headline is “Equality under the law must be upheld”. Who can disagree with that sentiment? The problem is in the application, an instance being how to approach sentencing offenders. The author, journalist and columnist Janet Albrechtsen, writes: “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.”

I wondered at first about “instructing”. The cover page for the Bench Book says: “The purpose of the Bench Book is to provide guidance about how judicial officers may take account of this information in court – from the start to the conclusion of court proceedings. This guidance is not intended to be prescriptive for judicial officers”.

Ms Albrechtsen, there is no instructing.

The Bench Book has a practical focus. It recognises that any judicial officer must expect the unexpected and then needs reliable, succinct information straight away. 

It presents information to assist judicial officers as they deal with people drawn from: indigenous, culturally and linguistically diverse backgrounds, various religious affiliations, those with disabilities, children and youth, women, non-heterosexual, self-represented, the aged.

It has been around for nearly 20 years. It is now at update 26. Opening his foreword in 2006 Chief Justice James Spigelman wrote: “Anatole France once referred to the ‘majestic equality’ of the law which forbade the rich, as well as the poor, to sleep under bridges, to beg in the streets and to steal bread.”

Aah, take note.

Naturally, I wondered about how being better informed when sentencing would not contribute to “fixing disadvantage” and would interfere with “social cohesion”.

The starting point for you and me is the Sentencing Bench Book. Its foreword points out that the book assists judges on a day-to-day basis, is a resource for anyone who seeks a better understanding of the principles and practice of sentencing, and we live in a society that values both justice and mercy.

The introduction points out that the Bench Book will assist sentencers to take into account all relevant considerations. This includes the wide variation of circumstances of the offence and the offender. Sentences must be individualised.

It also points out that the High Court has emphasised the importance of following strictly the terms of exhaustive sentencing provisions laid out in legislation.

The most recent update, last month, includes a discussion of the link between parliament and judge made law when looking at the “objective and subjective factors” that relate to an offence and the offender. Thus, NSW legislation instructs the sentencer to take into account, “any other objective or subjective factor that affects the relative seriousness of the offence”.

So, Ms Albrechtsen, au contraire, no bypassing of parliaments.

As to equality under the law, the Bench Book quotes from the seminal High Court 2013 decision in Bugmy v The Queen. That decision referred to what Justice Brennan had said in Neal in 1982: “… in imposing sentences courts are bound to take into account… all material facts including those facts which exist only by reason of the offender’s membership of an ethnic or other group. So much is essential to the even administration of criminal justice”.

Janet, I do so want to take you seriously – you write so well – but you must resist temptation. It’s a sin.

Former barrister Hugh Selby is a CityNews columnist, principally focused on legal affairs. His free podcasts on “Witness Essentials” and “Advocacy in court: preparation and performance” can be heard on the best known podcast sites.