For the Committee�s
Inquiry into the
Human
Rights (Mandatory Sentencing for Property Offences) Bill 2000
3 august 2001
Submission
Australian Lawyers for Human Rights
Contents
1. Australian lawyers for human
rights (alhr)
2.���� legal operation of
mandatory detention laws
3. International human rights
obligations
6.���� the kablE principle:
bringing the administration of justice into disrepute
Definition
of mandatory detention
This submission therefore refers to �mandatory detention� laws since this more clearly describes the issue under consideration. It is not �mandatory sentencing� laws which require a court to impose a sentence on an offender: courts are ordinarily required to impose a sentence when a defendant is convicted. Instead, �mandatory sentencing� laws require a court to impose a particular sentence: detention or imprisonment.
Legal operation of mandatory
detention laws: Part 2 below
The theory and practice that the effect of
mandatory detention legislation in the Northern Territory and Western Australia
is to completely remove sentencing
discretion from the courts.
Even tthe
amended mandatory detention legislation fails to meet fulfils Australia�s
international obligations.
The �exceptional
circumstances� provision in the Northern Territory legislation exception
is clearly so narrow as to not have a
seffectivelyignificant
alter the absence
of effect on the existence a sentencing
discretion, especially since it is not available for second
or third offences.
Pre-court diversionary schemes further the transfer of
discretion from the courts to police and prosecutors.� Awareness of the schemethe
schemes is not high, and there is a disproportionate focus on providing such the schemes
in urban centres.
It is important to note
that while Juveniles can be, and are, detained under the
mandatory detention laws, in breach of the Convention on the Rights of the
Child.
mandatory detention �
constitutional issues
Each of these claims is examined in detail below.
There are three
ways in which the issue of the constitutional validity
of mandatory detention legislation might be brought before the High Court.� The first is in proceedings for declaratory
relief within the original jurisdiction of the High Court under section 30 of
the Judiciary Act.� The second is by way of special leave to
appeal from a decision of the Full Court of the Supreme Court of the Northern
Territory or Western Australia.� The
third is by way of removal of a detention proceeding under section 40 of the Judiciary Act.
We stress that in advancing these constitutional
arguments we are not advancing State and Territory legislatures
have no power to prescribe penalties, and power to set
minimum or maximum sentences without usurping or infringing the judicial
power.� But aOur
argument is, however, that neither parliament cannot �completely eliminate
judicial discretion in relation
to sentencing, or limit it to such an extent that it effectively removes it,
since this.
To eliminate judicial discretion in relation to
sentencing �raises
substantial constitutional issues by way ofoffends the constitutional
principle �in Kable, arguably is alsois inconsistent
with the implied constitutional right to due process, and, and transgresses the separation
of powers applicable to in the the Northern
Territory.
TIt is clear that thehe Federal
Parliament has legislative power to pass the Bill before the Committee by
virtue of the
external affairs power in s51 (xxix) of the Constitution,
since Australia has voluntarily assumed a series of
obligations under international human rights conventions which are inconsistent
with mandatory detention laws (as detailed below).
Australia has voluntarily assumed a series of obligations under international human rights conventions, and those obligations are inconsistent with the Northern Territory and Western Australia mandatory detention laws.� The international human rights conventions impose positive obligations on the Federal Government to ensure that Federal, State and Territory laws conform to the obligations assumed under the conventions.
The Federal Government�s power to pass legislation inconsistent with state laws is clearly established by s109 of the Commonwealth Constitution.[1]
The Commonwealth�s powers extend further in relation to the Northern Territory, by virtue of s122 of the Constitution. The Federal Parliament has the power to override any law operating in a Territory.
1.
That the Committee consider the need for reliable public
informationquantitative data on the operation of
mandatory detention laws.
2. That the Committee recommend enactment of the Human Rights (Mandatory Sentencing for Property Offences) Bill 2000, or an amended Bill to similar affect, so as to
� give effect to Australia�s international treaty obligations
� give effect to a Constitutional guarantee of due process
� avoid the risk of the administration of justice in Australia falling into disrepute, within Australia and internationally.
3. That the Committee consider the inclusion of a provision to ensure that the Bill effectively extinguishes mandatory detention laws altogether, and not simply the laws in their current form.
Human rights issues on which ALHR has recently made submissions include Australian ratification of the International Criminal Court, a Bill of Rights of New South Wales
For further information, see www.alhr.asn.au .
The Committee of ALHR is comprisesd of:
Kate
EastmanSimon
Rice, President
Michelle Hannon, Secretary
Rachel FrancoisSimon
Rice, Treasurer
Committee members:
Robin Banks
Helen
Brady
Kate Eastman
Kate Fitzgerald
Ingrid Gubbay
David Kinley
Rachel
Francois
Anne
Horvath
Jane
Lye
Kerry Murphy
Naomi Sharpe
Phillip Tahmindjis
Sue Roberts
Kate Thompson
ALHR would be pleased to attend Senate Committee hearings to elaborate on the issues raised in this submission if this would be of assistance to the Committee�s Inquiry.
ALHR can be contacted viaat [].
PO Box A147
Sydney South
NSW����������� 1235
DX 585 Sydney
email [email protected]
web www.alhr.asn.au
fax c/o 02 9399 6154
In relation to
Western Australia�s legislation, the mandatory detention regime removes
judicial discretion as effectively, but in relation to a narrower range of
offences and only for �third strike� offenders. The judiciary in Western
Australia retains greater discretion than in the Northern Territory with
respect to juvenile offenders, since, as; as an
alternative to immediate detention, the
President does havecan,
where it is deemed appropriat a limited range of alternative optionse: in some circumstances[3]
�place a young person on
a Juvenile Conditional Release Order, which means that the offender is
supervised in the community - with
detention as a default option;
�give credit for time
spent on remand and backdating sentences;
�rule that previous
convictions more than two years old do not count as strikes; and �
rule that previous
convictions for home burglary where no penalty was given do not count as
strikes.[4]
There are only limited exceptions to mandatory detention in
the Northern Territory. Exceptional circumstance
and pre-court diversionary schemes
Certain aspects
of tThe
Northern Territory
Sentencing Act mandatory detention legislation were was amended in
1999 effect to some extent ffollowing adverse
comment from several international bodies, including the UN Human Rights
CommitteeFor this reason, ALHR does not consider that ,
but even tthe
amended legislation fails
to meet fulfils Australia�s international
obligations (see Part 3 below), as detailed below.
The operation of the �Exceptional circumstances�
exception.�
The Northern
Territory legislation amendments provided for a limited exception
to the mandatory imposition of imprisonment: s. Section
78A(6B) of the Northern Territory Sentencing Act allows
a court to refrain from making a mandatory detention an order under s78A(1) where
�exceptional circumstances� exist, and to impose another sentence orf
make any other authorised order.
This exception applies,
however, only to mandatory imprisonment for a first offence, not to the second or
third offences.
�Further, Ss 78A(6C) limits what
may be taken to be �exceptional circumstances� to the trivial
nature of offences, the mitigating circumstances, and
the circumstances of the offender. As such, t
�[the] NT Government introduced an exceptional circumstances discretion� in the event the very restrictive exception has proved to be cosmetic.�[5]
The Juvenile
Pre-Court Diversion Scheme commenced on 24 August 2000. It was a result of the
agreement between the Northern Territory and the Commonwealth which
came into effect on 1 September 2000. The scheme, and provides for
the diversion of juveniles from courts and the development and funding of
community-based programs.
Although the scheme
is intended to reduce the effect of the legislation, it in fact furthers the
transfer of discretion from the courts to police and prosecutors. To the extent that the scheme does mitigate the impact of mandatory
detention, it
it is not clear that awareness of the
schemeit
is high, or that the scheme has been effective. A. Anecdotal
evidence also calls into question the extent to
which lawyers, police, prosecutors and magistrates are aware of it as an
option.
Additionally,
tThere
is a disproportionate focus on providing such the schemes
in urban centres: �Since muchmost of the
Territory�s population affected by the legislation reside in rural
areas, these amendments cannot remedy the fundamental
problems created by mandatory detention.
The pSimilarly,
post-sentencing diversionary options, such as Victim-Offender Conferencing, are
only
available only in urban centres.
The scheme represents a
further substantial drain on public resources.�
The scheme would not be required, or at least not be required to the
same extent, absent the mandatory detention
laws. Even if the scheme was operating
effectively, it would simply ensure a more complete
transfer of crucial discretion from the courts to
police and prosecutors, which is not necessarily a desirable outcome.
It is important to note
that while Juveniles can be, and are, detained under the
mandatory detention regimes in the Northern Territory and Western Australia both
provide different options for juveniles and adults, juveniles
can be, and are, detained under both legislative regimes.
The
detention of juveniles is particularly concerning and The mandatory detention
of juveniles brings the administration of justice into disrepute (Part 6
below)contributes to the likelihood that mandatory
detention laws:
�
bring the administration
of justice into disrepute (which is relevant to the constitutional issues under
the principles in Kable), and
also
�
, and places Australia in breach of its obligation,s
under the Convention on the Rights of the Child (CROC), to ensure that
imprisonment of juveniles is only used as a last resort (Part 3 below).
The Federal Government has expressed its concerns regarding breaches of these conventions. Although some amendments to the mandatory detention laws were made in response to these concerns, the amended laws remain in breach of the treaty obligations. While mandatory detention laws continue in force, Australia continues to breach these international treaties. The Federal Government continues to have an obligation under international law to conform its national laws to the treaties, regardless of its federal system.
As well, Australia faces the continuing supervision of the international committees overseeing compliance with the treaties, especially by way of an individual complaint (�communication�) under the First Optional Protocol of the ICCPR. One such complaint has already been made, and further complaints are likely as long as the mandatory detention regimes remain in force.
In 1994 the Federal Parliament passed legislation similar to the Bill before the Committee. The Human Rights (Sexual Conduct) Act 1994 (Cth) ensured that Australian States conform to certain international obligations assumed by the Federal Government. It was prompted by an adverse finding of the Human Rights Committee, and the need to ensure that Tasmania complied with Australia�s obligations under the ICCPR.[8]
The detention of juveniles under mandatory detention is particularly concerning. It places Australia in breach of its obligations under the Convention on the Rights of the Child (CROC) to ensure that imprisonment of juveniles is only used as a last resort.
The CROC was signed by Australia on 22 August 1990, ratified on 17 December 1990 and entered into force for Australia on 16 January 1991.�
Quite apart from CROC, the common law
provides special protections for children, as their vulnerable position gives
rise to the parens patriae jurisdiction of the court. Gaudron J noted in
Minister of Immigration and Ethnic
Affairs v Teoh:[9]
�Citizenship
involves more than obligations on the part of the individual to the community
constituting the body politic of which he or she is a member. It involves
obligations on the part of the body politic to the individual, especially if
the individual is in a position of vulnerability. And there are particular
obligations to the child citizen in need of protection. So much was recognized
as the duty of kings, which gave rise to the parens patriae jurisdiction of the
courts. No less is required of the government and the courts of a civilized
democratic society�. The significance of the Convention, in my view, is that it
gives expression to a fundamental human right which is taken for granted by
Australian society, in the sense that it is valued and respected here as in
other civilized countries. And if there were any doubt whether that were so, ratification
would tend to confirm the significance of the right within our society. Given
that the Convention gives expression to an important right valued by the
Australian community, it is reasonable to speak of an expectation that the
Convention would be given effect.�
Under CROC the Australian Federal Government assumed obligations in international law in relation to people under 18 years old.
Article 2 - 1. States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination . . .
Article 3 - 1. In all actions concerning
children, whether undertaken by public or private social welfare institutions,
courts of law, administrative authorities or legislative bodies, the best interests
of the child shall be a primary consideration.
Article 4 - States Parties shall undertake
all appropriate legislative, administrative and other measures for the
implementation of the rights recognized in the present Convention. With regard
to economic, social and cultural rights, States Parties shall undertake such
measures to the maximum extent of their available resources and, where needed,
within the framework of international co-operation.
Article 6 - 2. States Parties shall ensure
to the maximum extent possible the survival and development of the child.
Article 37 - States Parties shall ensure
that:� (b) No child shall be deprived of his or her liberty unlawfully or
arbitrarily. The arrest, detention or imprisonment of a child shall be in
conformity with the law and shall be used only as a measure of last resort and
for the shortest appropriate period of time
(d) Every child deprived of his or her
liberty shall have the right to prompt access to legal and other appropriate
assistance, as well as the right to challenge the legality of the deprivation
of his or her liberty before a court or other competent, independent and
impartial authority and to a prompt decision on any such action.
Article 40 � 4. A variety of dispositions,
such as care, guidance and supervision orders; counselling; probation; foster
care; education and vocational training programmes and other alternatives to
institutional care shall be available to ensure that children are dealt with in
a manner appropriate to their well-being and proportionate both to their
circumstances and the offence.
Among many potential breaches of the CROC, mandatory detention clearly breaches the Article 37 obligation to ensure imprisonment of a child is used only as a measure of last resort, and for the shortest appropriate period of time. Detention is clearly not a last resort under mandatory detention laws. As the term of imprisonment is legislatively determined, it is not possible it is not possible to ensure that the length of individual sentences are �appropriate� to the circumstances.
A further breach is that, in the Northern Territory, the legislation defines a juvenile as anyone aged 17 or over. This fails to provide the special protections required for all people under 18 years of age.
The Northern Territory�s �exceptional circumstances� amendments and pre-court diversionary programs, even if they were widely available � which they appear not to be � do not ensure that imprisonment is a last resort. A default, or usual, sentence of imprisonment cannot be characterised as last resort. The Australian delegation to the UN Human Rights Committee Review of Australia�s Report on the Implementation of the ICCPR agreed, after the �exceptional circumstance� amendments were passed, that mandatory detention was applied to children and adults alike:
�Some
Committee experts said that mandatory sentencing of minors for crimes was
discriminatory and disproportional to the offences committed. They expressed
the view that mandatory sentencing was directed against indigenous indigenous children. Several
experts also commented on the forceful removal of indigenous indigenous children from
their families and urged the Government to continue its efforts to heal the
wounds.
Responding to a number of questions raised by Committee experts, the Australian delegation said, among other things, that the mandatory sentencing was of a general nature and it was applicable to all without distinction.�[10]
The Western Australian legislation is also in breach of the CROC. Although courts may take special actions where juvenile offenders are concerned, this falls far short of the obligation imposed by the CROC. The maintenance of a discretion is a lower standard than the CROC requirement that imprisonment be the last resort.
The ICCPR was signed by Australia on 18 December 1972, ratified on 13 August 1980 and entered into force for Australia on 13 November 1980. Under the ICCPR, the Australian Federal Government assumed the following relevant obligations:
Article 2 (1). Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
Article 2 (2). Where not already provided
for by existing legislative or other measures, each State Party to the present
Covenant undertakes to take the necessary steps, in accordance with its
constitutional processes and with the provisions of the present Covenant, to
adopt such laws or other measures as may be necessary to give effect to the
rights recognized in the present Covenant.
Article 2 (3). Each State Party to the
present Covenant undertakes:
(a) To ensure that any person whose rights
or freedoms as herein recognized are violated shall have an effective remedy,
notwithstanding that the violation has been committed by persons acting in an
official capacity;
(b) To ensure that any person claiming such
a remedy shall have his right thereto determined by competent judicial,
administrative or legislative authorities, or by any other competent authority
provided for by the legal system of the State, and to develop the possibilities
of judicial remedy;
(c) To ensure that the competent authorities
shall enforce such remedies when granted.
Article 9 (1). Everyone has the right to
liberty and security of person. No one shall be subjected to arbitrary arrest
or detention. No one shall be deprived of his liberty�� except on such grounds and in accordance with such procedure as
are established by law.
Article 10. (3) The penitentiary system
shall comprise treatment of prisoners, the essential aim of which shall be
their reformation and social rehabilitation. Juvenile offenders shall be
segregated from adults and be accorded treatment appropriate to their age and
legal status.
Article 14(4). [All persons shall be equal
before the courts and tribunals]� In the case of juvenile persons, the
procedure shall be such as will take account of their age and the desirability
of promoting their rehabilitation.
Article 14 (5). Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.
Again, among many potential breaches, mandatory detention laws breach the Article 14 obligations that sentences must be reviewable. The decision of the full court of the Supreme Court of the Northern Territory in Trenerry v Bradley[11] makes it clear that mandatory detention laws in the Northern Territory prevent any such review.
First Optional Protocol of the ICCPR
The Australian government acceded to the ICCPR on 25 September 1991, and it entered into force for Australia on 25 December 1991. The protocol allows the UN Human Rights Committee to receive and consider complaints (�communications�) from Australia regarding an alleged violation of the rights protected by the ICCPR.[12] The Committee is not permitted to review the complaint, however, until the individual has exhausted all available domestic remedies.[13]
If a High Court challenge to mandatory detention under Australian law is not successful, the next step would be a communication to the UN Human Rights Committee under this Protocol, exposing Australia�s mandatory detention legislation to further international scrutiny.
The Human Rights (Sexual Conduct) Act 1994 (Cth) was enacted as a result of the communication process being used to seek redress for the Tasmanian Criminal Code�s violation of the right to privacy. When the HRC rendered its view that the Code violated the ICCPR, the Federal Government took action by overriding Tasmania�s legislation, but only after the Tasmanian government failed to respond to the HRC�s request to repeal the offending law.
Australia ratified CERD on 30 September 1975. Under the CERD, the Australian Federal Government assumed the following obligations:
�Article 1: In this Convention, the term
"racial discrimination" shall mean any distinction, exclusion,
restriction or preference based on race, colour, descent, or national or ethnic
origin which has the purpose or effect of nullifying or impairing the
recognition, enjoyment or exercise, on an equal footing, of human rights and
fundamental freedoms in the political, economic, social, cultural or any other
field of public life.
States
Parties condemn racial discrimination and undertake to pursue by all
appropriate means and without delay a policy of eliminating racial
discrimination in all its forms and promoting understanding among all races,
and, to this end�
(c) Each State Party shall take effective
measures to review governmental, national and local policies, and to amend,
rescind or nullify any laws and regulations which have the effect of creating
or perpetuating racial discrimination wherever it exists;
(d) Each State Party shall prohibit and bring to an end, by all appropriate means, including legislation as required by circumstances, racial discrimination by any persons, group or organization��
Senator Brown reports that Indigenous
Australiansindigenous Australians are six times as likely to be
caught by the mandatory detention provisions in the Northern Territory, and
even more likely to be sentenced under the Western Australia provisions.[14]
NAALAS reports that Indigenous Australiansindigenous Australians
comprise 73% of the Northern Territory�s prison population, that 75% of
juveniles detained in the Northern Territory are indigenousindigenous
Australians,
and that 68% of people caught by the Northern Territory legislation do not
speak English as their first language.
Mandatory detention laws may breach Australia�s commitments under the CERD, although more detailed evidence would be required to demonstrate conclusively that such a breach has occurred.
The UN Human Rights Committee was concerned that mandatory detention laws are racially discriminatory, and that they breach Australia�s obligations under the CERD:
�The
Committee notes with grave concern that the rate of incarceration of indigenous indigenous people is
disproportionately high compared with the general population. Concern is also
expressed that the provision of appropriate interpretation services is not
always fully guaranteed to indigenous indigenous people in the
criminal process. The Committee recommends that the State party increase its
efforts to seek effective measures to address socio-economic marginalization,
the discriminatory approach to law enforcement and the lack of sufficient
diversionary programmes.
The
Committee expresses its concern about the minimum mandatory sentencing schemes
with regard to minor property offences enacted in Western Australia, and in
particular in the Northern Territory. The mandatory sentencing schemes appear
to target offences that are committed disproportionately by indigenous
Australiansindigenous Australians, especially juveniles, leading to
a racially discriminatory impact on their rate of incarceration. The Committee
seriously questions the compatibility of these laws with the State party's
obligations under the Convention and recommends to the State party to review
all laws and practices in this field.�[15]
Mandatory detention laws are inconsistent with established international standards endorsed by Australia, including the United Nations Standard Minimum Rules for Non-custodial Measures (The Tokyo Rules)[16], and the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules)[17].
The Tokyo Rules provide a basic obligation to pursue non-custodial measures where possible and that:
Clause 1.5: Member States shall develop
non-custodial measures within their legal systems to provide other options,
thus reducing the use of imprisonment, and to rationalize criminal justice
policies, taking into account the observance of human rights, the requirements
of social justice and the rehabilitation needs of the offender.
Clause 2.3: In order to provide greater flexibility consistent with the nature and gravity of the offence, with the personality and background of the offender and with the protection of society and to avoid unnecessary use of imprisonment, the criminal justice system should provide a wide range of non-custodial measures, from pre-trial to post-sentencing dispositions. The number and types of non-custodial measures available should be determined in such a way so that consistent sentencing remains possible.
Clause 2.5: Consideration shall be given to
dealing with offenders in the community avoiding as far as possible resort to
formal proceedings or trial by a court, in accordance with legal safeguards and
the rule of law.
Clause 2.6: Non-custodial measures should be
used in accordance with the principle of minimum intervention.
Clause 3.2 The selection of a non-custodial
measure shall be based on an assessment of established criteria in respect of
both the nature and gravity of the offence and the personality, background of
the offender, the purposes of sentencing and the rights of victims.
Clause 3.7 Appropriate machinery shall be
provided for the recourse and, if possible, redress of any grievance related to
non-compliance with internationally recognized human rights.
The Beijing Rules provide:
Clause 5. 1 The juvenile justice system shall emphasize the well-being of the juvenile and shall ensure that any reaction to juvenile offenders shall always be in proportion to the circumstances of both the offenders and the offence.
Clause 6.1 In view of the varying special
needs of juveniles as well as the variety of measures available, appropriate
scope for discretion shall be allowed at all stages of proceedings and at the
different levels of juvenile justice administration, including investigation,
prosecution, adjudication and the follow-up of dispositions.
Mandatory detention laws are clearly inconsistent with these international standards, which have been endorsed by Australian governments.
The issue of the constitutional validity of mandatory detention legislation can be brought before the High Court in three ways:
There are tThree basic principal constitutional
challengesissues that
may be broughtcan be anticipated, since mandatory
detention laws:
�
raise constitutional issues regarding the principle
in Kable bythe conferrringring �of functions, functions on
those courts
capable of exercising federal jurisdiction, �that are inconsistent with the exercise
of judicial power, since because the courts arey then are likely
to bring the administration of justice into disrepute: Kable v DPP (NSW).[18] ;
�
raise constitutional issues regarding the
implied right to due process under s71 of the Commonwealth Constitution; and
�
in relation to the Northern Territory laws, arguably
raise constitutional issues regarding the separation of powers (in
relation to the Northern Territory laws only).
Each of these claims is
examined in detail below.
There are three
ways in which the issue of the constitutional validity
of mandatory detention legislation might be brought before the High Court.� The first is in proceedings for declaratory
relief within the original jurisdiction of the High Court under section 30 of
the Judiciary Act.� The second is by way of special leave to
appeal from a decision of the Full Court of the Supreme Court of the Northern
Territory or Western Australia.� The
third is by way of removal of a detention proceeding under section 40 of the Judiciary Act.
We stress that in
advancing these constitutional arguments we are not advancing There is noan
argument that a State or Territory legislature has no power to
prescribe penalties, nor that they have the
power to set minimum or maximum sentences without usurping or infringing
the judicial power.[19] Our argument is, however, that neitherA parliament cannot, however, �completely
eliminate judicial discretion in relation to sentencing, or limit it to such an
extent that it effectively
removes it, since this.
To eliminate judicial discretion in relation to
sentencing �raises
substantial constitutional issues by way ofoffends the principle �in Kable, arguably is alsois inconsistent
with the implied constitutional right to due process, and, and transgresses the separation
of powers applicable to in the the Northern
Territory.
Central to the constitutional arguments
which follow is the concept of judicial power. Before considering the
constitutional issues raised by mandatory detention laws in detail, it is
important to understand the nature of judicial power.� The concept of judicial power is fundamental to the
separation of powers in the Commonwealth Constitution, as the High Court has
noted on several occasions:
�To study the provisions of Ch.III of the Constitution "is to see at once that it is an exhaustive statement of the manner in which the judicial power of the Commonwealth is or may be vested. ... No part of the judicial power can be conferred in virtue of any other authority or otherwise than in accordance with the provisions of Chap.III"[20]
The exercise of judicial power in relation
to criminal mattersSince , such as mandatory
detention laws, it is critical that must be examined
rigorously:
�The
guarantee involved in the vesting of judicial power exclusively in Ch.III
courts is at its most important in relation to criminal matters. It obviously
requires that this Court carefully scrutinize any claim by a Commonwealth
officer or instrumentality, other than a court designated by Ch.III, to
exercise the judicial power of trial and punishment of a person charged with an
offence.�[21]
�The case law indicates
that tA key characteristics indicative of judicial power is the imposition of punishment; [22] and
Although jjudicial
power cannot be precisely defined, it clearly extends
not only to the judgement of guilt or innocence, but also to the sentencing
process:
�The
sentencing of offenders, including in modern times the fixing of a minimum term
of imprisonment, is as clear an example of the exercise of judicial power as it
is possible to find.�[23]
The argument that
section mandatory detention impermissibly interferes with judicial power can
therefore be cast in one of two ways:
�First, it
can be argued that mandatory detention brings the administration of justice
into disrepute because it directs judges to impose sentences that are
inappropriate in the circumstances of the particular case; and
�Secondly, it
can be argued that mandatory detention prevents the courts from making an
independent determination as to sentence, thereby preventing judges from
independently exercising their judicial power.
The second argument
applies only in relation to territory courts since it depends on the federal
separation of powers.� The first is
applicable to both territory and state courts.
In Palling v
Corfield[24] Notwithstanding that Barwick
made it clear that he considered sentencing to be
a traditionallyis a judicial function:
�It is both unusual and in general, in my opinion, and undesirable that the court should not have a discretion in the imposition of penalties and sentences, for circumstances alter cases and it is a traditional function of a court of justice to endeavour to make the punishment appropriate to the circumstances as well as the nature of the crime.�[25]
The case of Palling v Corfield is entirely distinguishable from the mandatory detention
legislation currently under consideration as outlined below.
As such, the power to impose
an appropriate individual sentence is properly
identified as judicial power for the purposes of Chapter III of the
Constitution.
Kable considered the validity of the Community Protection Act 1994 (NSW) which purported to empower the Supreme Court of NSW to make an order for the detention of a specified person in prison for a specified period of time.
There is a substantial
prospect that mandatory detention laws in both Western Australia and the
Northern Territory would be held invalid on the grounds that they infringe the
principles in Kable
v DPP (NSW).[26]
Kable �established the principle that
although State courts are not bound by the doctrine of the separation of
powers, whenre
a State court is capable of exercising federal jurisdiction , it
is
requiredmust to
be capable of exercising that power in accordance with Chapter III of the
Commonwealth Constitution. �The
principle in Kable therefore applies independently
of whether or not there is a separation of powers also
applies:
�Although
New South Wales has no entrenched doctrine of the separation of powers and
although the Commonwealth doctrine of separation of powers cannot apply to the
State, in some situations the effect of Ch III of the Constitution may lead
to the same result as if the State had an enforceable doctrine of separation of
powers. This is because it is a necessary implication of the Constitution's
plan of an Australian judicial system with State courts invested with federal
jurisdiction that no government can act in a way that might undermine public
confidence in the impartial administration of the judicial functions of State
courts. If it could, it would inevitably result in a lack of public confidence
in the administration of invested federal jurisdiction in those courts. State
governments therefore do not have unrestricted power to legislate for State
courts or judges.�[27] (emphasis added)
The
Kable considered
the validity of the Community
Protection Act 1994 (NSW) which purported to
empower the Supreme Court of NSW to make an order for the detention of a specified
person in prison for a specified period of time.� The decision in Kable principle imposes
a constraint on the ability of a legislatureive Assembly
to impose on a court capable of exercising
federal jurisdiction a function that is inconsistent with the its exercise of the federal judicial
power of the Commonwealth.
Wynbyne v Marshall
TThe
prospects of a Kable-like
claim was were considered by the High Court shortly
after the enactment of the Northern Territory mandatory detention legislation, in an
application for special leave to appeal in Wynbyne
v Marshall[28]. We
note from the outset that s pecial leave decisions
such as Wynbyne v Marshall do
not operate to establish precedents, and this decision is therefore no bar to a
further application.� The judges
did not provide any reasons for their decision to dismiss the application,
apart from saying that the proposed appeal did not enjoy sufficient prospects
of success.[29],
but
Gaudron and Hayne JJ were clearly somewhat reluctant to hold that mandatory detention
legislation would bring the administration of justice into disrepute while the
legislation had only been in force for a short period of time.�
Unlike Kable, an earlier case of Palling v Corfield [30] appears
to provide authority which stands in the way of advancing the argument that
mandatory detention is a legislative usurpation of judicial power.� The case is, however, entirely
distinguishable since the case concerned a limitation on,
not the extinguishment
of, judicial
discretion, and. �In any case, Palling v Corfield considered
the situation where the executive, not the legislature, usurped the judicial
power, not the. Kable
was decided long after Palling v Corfield, so the nature of a Kable claim must
be considered anew.
At issue in Palling v Corfield was
the constitutional validity of the National
Service Act 1951 (Cth), which
provided that, in certain limited circumstances, a court would be required to
impose a term of imprisonment of 7 days upon the accused. The challenge to the
constitutional validity was on two grounds: that it amounted to legislative
interference with or judicial usurpation of the judicial power, and that it
conferred federal judicial power on the prosecution. In rejecting both of these
arguments, the High Court simply assumed that the Parliament had the power to
pass an mandatory sentence, and concentrated
more
attention on the issue of whether the prosecution was usurping
judicial power in directing the court to impose a seven day sentence.
�Third, tOnly
Barwick CJ cited any authority: the proposition quoted above by Latham
CJ in Fraser Highlands Pty Ltd. But
as Fraser Highlands was concerned
with maximum and minimum penalties, it is arguable that Barwick CJ was incorrect for in Barwick
CJ to saying that he could find �no difference in principal between statutory provisions (at issue in
Fraser Highlands Pty Ltd) and those in the present case�.[31]
The Kable
decision was in relation to state NSW legislation, and the principle in Kable clearly applies to State
legislation such as the Western Australian mandatory detention provisions.
�(but the question as to whether
it applies to the Northern Territory has not yet been tested.� It appears, however,
that a challenge to territory legislation has a high prospect of success under
the principle in KableIt is likely to apply as well to the Northern
Territory legislation given:
�, as the Northern Territory (Self-Government) Act 1978
(Cth) is an exercise by the Commonwealth Parliament of the power conferred by
s122 of the Constitution..[32]
AA Territory
court created under s122 is a court capable of being vested with federal
jurisdiction, and is thus capable of exercising the �judicial power of the
Commonwealth� within the meaning of s71 of the Constitution..[33]
�The High Court in Re the Governor, Goulbourn Correctional Centre; Ex Parte Eastman said:
��because
the grant of legislative power to the Territory Assembly is made under s 122 of
the Constitution, it cannot enlarge the power which it is within the province
of the Federal Parliament to grant. Thus it cannot override the requirements of
Ch III. These requirements continue to govern the courts of the Territory,
whichever legislature actually calls those courts into existence.�[34]
As the Northern Territory courts are courts capable of exercising federal jurisdiction pursuant to section 71 of the Constitution, no powers can be conferred on Chapter III judges that are inconsistent with the performance of their judicial functions or with the proper discharge by the judiciary of its responsibilities as an institution capable of exercising federal judicial power.[35]
The essence of the Kable principle is
that cs71 of the Commonwealth
Constitution provides for the judicial power of the
Commonwealth to be vested in such courts as the Commonwealth Parliament invests
with Federal jurisdiction.� This has
been interpreted to require that those courts invested with Federal
jurisdiction by s71 of the Constitution will must be capable of
accepting and exercising the judicial power of the Commonwealth thus
invested in them. This means that theyThey cannot at the
same time hold non-judicial powers incompatible with
the exercise of that judicial power. A function power would be
inconsistent with such an exercise of federal judicial power if
it is of such a nature thatcaused public
confidence in the integrity of the judiciary as an institution isto be diminished.[36]
Mandatory detention gives rise to a
significant risk of underminingof such a diminishing of
public confidence.
It in the
courts and brings the administration of justice into disrepute since as it removes
judicial discretion and gives rise to policy concerns outlined below in Part 6.
Mandatory
detentionIt impermissibly interferes with the judicial
power of courts exercising, or capable of exercising, federal judicial power.
Mandatory detention calls, requiring judges to act in a way which is
inconsistent with the integrity, independence, and impartiality of a court. Accordingly,
the High Court is likely to be concerned by the constitutionality of mandatory
detention laws.
In Re Nolan; Ex parte Young[37], Gaudron J said that the judicial process, which her Honour identified as an essential part of judicial power, included:
�open and public inquiry (subject to limited
exceptions), the application of rules of natural justice, the ascertainment of
the facts as they are and as they bear on the right or liability in issue and
the identification of the applicable law, followed by an application of that
law to those facts.�[38]
Such judicial pronouncements emphasise that public confidence in the courts depends on the perception that judges have conducted an independent assessment of the facts of the particular case before proceeding to make a binding determination. Mandatory detention legislation prevents judges from conducting an independent assessment of the facts. When an assessment of the facts is irrelevant to the binding determination made, public confidence in the courts will be undermined.
Mandatory sentences
imposed will be
perceived by the public as leading to unfair or unjust outcomes. For example, mandatory
detention directly offends the principle that imprisonment should be a
punishment of last resort. In some circumstances, mandatory detention laws will
require a judge to impose a sentence which is out of all proportion to the
gravity of the crime committed. Mandatory detention may mean that where more
than one offender is convicted in respect of the same crime, there may be no
parity between the sentences. Such circumstances, and others detailed in
Part 6 below, bring
the administration of justice into disrepute.
As the Northern
Territory courts are courts capable of exercising federal jurisdiction pursuant
to section 71 of the Constitution, no powers can be conferred on Chapter III
judges that are inconsistent with the performance of their judicial functions
or with the proper discharge by the judiciary of its responsibilities as an
institution capable of exercising federal judicial power.[39]
The Northern Territory
and Western Australian legislatures have also impermissibly interfered with the
exercise of judicial power.� By
conferring a power on Northern Territory judges by which they have no choice
but to apply a penalty which will often conflict with ordinary sentencing principles,
the legislature has called upon the judges to act in a way which is
inconsistent with the integrity, independence and impartiality of a court which
is capable of exercising the federal judicial power.� Consequently, these provisions of state and territory law are
invalid.
(ii)� In his judgment, Menzies
J conflated the power of the Parliament to guide the exercise of
judicial power with the power of parliament to entirely extinguish the
judicial power.� Thus, Menzies J�s
judgment can be criticised for failing to distinguish between two different
types of legislative acts.
Finally, Palling v Corfield is
inconsistent with more recent judicial elaboration on the nature and content of
the judicial power.
It is therefore clear
that mandatory detention laws raise substantial constitutional issues since he
principle in Kable
prevents a legislature from conferring functions on courts capable of
exercising federal jurisdiction that are inconsistent with the exercise of that
judicial power, since this is likely to bring the administration of justice into
disrepute.
The provisions of the Commonwealth
Constitution relating to judicial power have been interpreted not only as giving rise
to the issues canvassed above, but also increasingly as giving
rise to an implied right to due process in judicial proceedings.
While the Commonwealth Constitution only provides limited explicit guarantees of individual rights, the High Court has determined that many rights are implicit in the structure of the Constitution and the system of government it establishes.
A number of individual rights have been recognised as implicit in Chapter III of the Commonwealth Constitution. Hanks notes �These rights derive from the notion of judicial power and the separation of powers and their significance should not be underestimated�[40] Since these rights are implicit, their content is not yet settled, but the trend is clearly towards the recognition of further rights under s71. As Zines notes, �From this seemingly single provision [s71], an array of entrenched rights has emerged, and is emerging with no sign of abatement�.[41]
The right to judicial due process has been recognised by the High Court, but its full content has not been established. It is not clear that the individual right to due process would extend to affect mandatory detention laws, but there are strong indications that this would be so.
The due process right under s71 has been held to extend only to procedural due process: an obligation for courts exercising judicial power under Chapter III to act in a manner consistent with the essential attributes of judicial power. There are indications however that this right extends to substantive due process.[42] This arises by implication under s71 and from the common law doctrine of the separation of powers.
In Leeth v Commonwealth the High Court considered the question of due process in the context of laws which provided for different sentencing procedures between States, a situation closely analogous to mandatory detention provisions. Gaudron J extended the notion of due process to include a concept of equal justice which was �fundamental to the judicial process� and required that �like persons in like circumstances� were treated in the same way in judicial proceedings.[43] Similarly, Deane J referred to the right to have the federal judicial function performed only by courts established under Chapter III of the Constitution, and to have due process before those courts, as the most fundamental of these implicit rights:
�[Of these rights]� The most important of them is the guarantee that the citizen can be subjected to the exercise of Commonwealth judicial power only by the courts designated by Chapter III.�[44]
The likelihood that the
implied right to due process will be held inconsistent with mandatory detention
laws is increased by the fact that iInternational law is a further source of a
right to due process in the Constitution. In Mabo, the High Court noted that international human rights law is
an important influence on the development of common law rights:
��international
law is a legitimate and important influence on the development of the Common
Law, especially when international law declares the existence of universal
human rights...�[45]
In Dietrich v The Queen, the High Court invoked principles of international human rights law to identify a common law right to a fair trial.[46]
The Northern Territory�s
legislation may also raise constitutional concerns by way of the principle in Kable and
also because it infringes the separation of powers.
The doctrine of separation of powers originates in concerns to prevent tyranny and arbitrariness in law:
"In this distinct and separate existence of the judicial power ... consists one main preservative of the public liberty; which cannot subsist long in any state, unless the administration of common justice be in some degree separated both from the legislative and also from the executive power. Were (judicial power) joined with the legislative, the life, liberty, and property of the subject would be in the hands of arbitrary judges, whose decisions would be then regulated only by their own opinions, and not by any fundamental principles of law; which, though legislators may depart from, yet judges are bound to observe�. Nothing therefore is more to be avoided, in a free constitution, than uniting the provinces of a judge and a minister of state". [47]
The strict separation of powers between the
judiciary on the one hand and the legislature and executive on the other is
fundamental to the Commonwealth Constitution. It is clear law that tChapters
I and II of the Constitution vest legislative and executive power in the
Parliament, while Chapter III vests judicial power in the judiciary. The High Court
�has strictly enforced the separation of
the judiciary from both the executive and the legislature�.[48] As
McHugh J noted in Nicholas v the Queen:
�[i]f the doctrine of separation of powers is to be effective, the exercise of judicial power needs to be more than separate from the exercise of legislative and executive power. To be fully effective, it must also be free of legislative or executive interference in its exercise. As a result, legislation that is properly characterised as an interference with or infringement of judicial power, as well as legislation that purports to usurp judicial power, contravenes the constitution�s mandate of a separation of judicial from legislative and executive power� [49]
The Northern Territory
(Self-Government) Act 1978 (Cth) is an
exercise by the Commonwealth Parliament of the power conferred by s122 of the
Constitution.[50]
In the case of Kruger in
which Toohey J concluded that the argument that Chapter III of the Commonwealth
Constitution applied to the territories is �persuasive�[51]� Gaudron J has also
noted that there is �no
convincing reason� for treating Chapter
III as not applying to the territories.[52]� The Court did not need to reach a conclusion
on this matter since a majority concluded that the power under consideration
was not, in any case, a judicial power.
In Nicholas v The Queen[53], McHugh J said:
�Where Parliament purports to direct the courts as to the manner and outcome of the exercise of the jurisdiction, this will constitute �an impermissible intrusion into the judicial power which Ch III vests exclusively in the courts which it designates�. [Citing Brennan Deane and Dawson JJ in Chu Kheng Lim at page 178].�
As the High Court made clear in Chu Kheng Lim v Minister for Immigration,
Local Government and Ethnic Affairs[54],
it is constitutionally impermissible for Parliament to direct the courts as to
the manner and outcome of the exercise of their jurisdiction. Moreover,
the assessment of an appropriate sentence can be characterised as the
adjustment of rights or interests in accordance with legal standards, those
legal standards being common law or legislative sentencing principles.� And in order to apply those legal standards,
the sentencing judge must making findings of fact.
It may be said that
section mandatory detention laws are simply legislative sentencing
principles.� However, because of their
mandatory nature, it is a principle which the judges have no choice but to
apply.� Mandatory detention laws direct
judges that they must apply a particular sentence if certain conditions are
met.� This mandatory direction entirely
removes judicial discretion in relation to sentencing, making it irrelevant for
judges to make any assessment or finding of facts, or consider various sentencing
principles, both of which would be the usual course when judges are determining
the appropriate sentence to apply.
In Leeth v The Commonwealth[55]. Mason CJ, Dawson and McHugh JJ said,
�legislation may amount to a usurpation of judicial power, particularly in a criminal case, if it prejudges an issue with respect to a particular individual and requires a court to exercise its function accordingly.[56] It is upon this basis that bills of attainder may offend against the separation of judicial power.[57] But a law of general application which seeks in some respect to govern the exercise of a jurisdiction which it confers does not trespass upon the judicial function.�[58]
It has also been
recognised that tThe separation of powers does not apply in
relation to State courts, but the question of whether it applies to Territory
courts is, however, �still open. If it does apply then
mandatory detention legislation in the Northern Territory clearly contravenes
this constitutional principle.
As established above in
relation to Kable:
Territory courts, Mandatory
detention would be an exercise of federal judicial power by the Northern Territory legislature
which prevents judges from
independently exercising judicial power. This is which an
impermissible usurpation of judicial power, since as the legislature
has not been constituted in accordance with the requirements of Chapter III of the Constitution.
�Under
s.71 of the Constitution the judicial power of the Commonwealth is vested in
the High Court, in such other federal courts as the Parliament creates and in
such other courts as it invests with federal jurisdiction. In Reg. v. Kirby; Ex
parte Boilermakers' Society of Australia (14) (1956) 94 CLR 254 it was held
that ChIII of the Constitution, of which s.71 is the first section, imposes a
separation of judicial power from the other powers of government. The judicial power of the Commonwealth is to be
exercised by courts constituted or invested with jurisdiction under Ch.III and
not otherwise. Nor is it possible to invest
a court under Ch.III with non-judicial powers
that are not ancillary, but are directed to some non-judicial purpose. But to
speak of judicial power in this context is to speak of the function of a court
rather than the law which a court is to apply in the exercise of its function.
Of course, legislation
may amount to a usurpation of judicial power, particularly in a criminal case,
if it prejudges an issue with respect to a particular individual and requires a
court to exercise its function accordingly (15) See Liyanage v. The Queen 1967
1 AC 259. It is upon this principle that bills of attainder may offend against
the separation of judicial power (16) See Polyukhovich v. The Commonwealth
(1991) 172 CLR 501.�[59] (emphasis added).
Section 78A would be unconstitutional because it prejudges the sentencing of people convicted of property crimes. By making it irrelevant for judges to make any findings of fact or exercise any discretion, s 78A of the Northern Territory Sentencing Act usurps judicial power, and orders the courts to reach a prescribed outcome.
TIt is clear that thehe Federal
Parliament has legislative power to pass the Bill before the Committee by
virtue of the
external affairs power in s51 (xxix) of the Constitution,
since Australia has voluntarily assumed a series of
obligations under international human rights conventions which are inconsistent
with mandatory detention laws (as detailed below).
The external affairs
power extends to matters on which the Federal Government has concluded
international treaties.[60]
Acting under that power Australia has voluntarily assumed a series of
obligations under international human rights conventions, and those obligations are inconsistent with the
Northern Territory and Western Australia mandatory detention laws.
The Federal Government�s power to pass legislation inconsistent with State laws is clearly established by s109 of the Commonwealth Constitution.[61]
The international human
rights conventions not only allow the Federal Parliament to pass laws
preventing mandatory detention: they impose positive obligations on the Federal
Government to ensure that Federal, State and Territory laws conform to the
obligations assumed under the conventions. There is also
an established precedent for the Federal Parliament passing such legislation
in order to ensure that the States conform to the international
obligations assumed by the Federal Government: t.� The Human Rights (Sexual Conduct) Act 1994 (Cth) was passed by the
Federal Parliament to ensure that Tasmania complied with Australia�s
obligations under the International Covenant on Civil and Political Rights
(ICCPR).[62]
Northern
Territory self-government
Although ss51(xxix) and 109 provide a
sufficient constitutional basis for the Federal Government to pass the Bill
before the Committee, it is also clear that the
Commonwealth�s powers extend further in relation to the Northern Territory, by
virtue of s122 of the Constitution.
The Northern
Territory is a territoryhas been �granted self-government under
the Northern Territory Self-Government
Act 1978 (Cth). The �the power of the
Federal Parliament (occasionally exercised) to override any law operating in a
Territory�[63] was tested and upheld in relation to the
euthanasia legislation passed by the Federal Parliament.[64]
The Bill before the Committee would therefore effectively
render any inconsistent State and Territory laws inoperative. It could
not ensure that Western Australia did not pass subsequent laws which
circumvented the federal legislation to some extent, but could do so in relation
to the Northern Territory.
A Bill containing provisions similar to s50A of the Euthanasia Laws Act (Cth) 1997 would effectively remove the Northern Territory�s power to legislate on the subject matter.[65] It may be appropriate to include a similar provision in the Bill before the Committee to ensure that the Bill effectively extinguishes mandatory detention laws altogether, and not simply the current form of mandatory detention laws.
ALHR notes that tThere is little
publicly available evidence of the practical operation of mandatory detention
laws, apart from the NAALAS Report, Dollars
Without Sense� (�the NAALAS Report�),
which was compiled some time ago). Theis �conclusions put forward in this submission
therefore
necessarily reliesy upon
this report, as well asand on evidence given before coronial
inquiries, and anecdotal evidence gathered from
legal and policy workers.
There
is clearly a substantial need for reliable public
informationquantitative data on the operation of
mandatory detention laws[66], but the available evidence available indicates
that there are strong real reasons for the urgent exercise of
federal legislative powers to effectively repeal mandatory detention laws.
Economically
extremely inefficient.
�In comparison to the value of
property involved in mandatory detention cases, the cost are outweighsed
by
theany
benefit (if any) of the laws.[69]
The NAALAS report has outlined the substantial costs of mandatory detention for
even minor offenders - $150 per adult per day and $330 per juvenile.[70]
The Northern Territory Department of Correctional Services Annual Report
reveals a similar figure - $56,669.90 per offender (approximately $155 per
day).[71]
ALHR
also considers that tThese figures are also likely tomay underestimate
the true economic costs of
mandatory detention for the following reasons, since:
� NAALAS reports that 76% of offenders convicted under mandatory detention laws are from remote communities. Defendants in remote areas are often flown to urban courtrooms for preliminary hearings, and in many cases returned for trial, which cost is also borne from public funds.
�
Even tDefendants who are dealt with at
a �local� court on circuit must are then be flown to
the nearest correctional facility, often thousands of kilometres from their
communities, and then returned to their communities at
the end of their sentence.
�
Many indigenous defendants
require interpreters, since mandatory detention laws are more likely to
catch Indigenous Australians, or other Australians of a non-English speaking
background; �(NAALAS reports that 68% of offenders
sentenced under mandatory detention laws do not speak English as a first
language).[72]
Although access to interpreter services has been improved following the April
2000 agreement between the Commonwealth and the Northern Territory, it is the
mandatory detention laws which have required this substantial cost,
which contributes to the economic inefficiency of the laws; and
� .
�
There are also substantial
flow- on
effects in other areas � for example, juvenile detention facilities in the
Northern Territory are considering a range of further measures to deal with the
growing number of older juveniles (16 and 17 year olds) in detention. This will require training
for correctional staff and additional resources.
BMandatory detention laws therefore appear to be a
substantial cost to the public purse.
ased on interviews with lawyers and magistrates in the
Northern Territory, one commentator provides further
evidence of the dynamics created by mandatory detention laws, which increase
the costs of criminal justicesays:
��we are satisfied from this anecdotal and other evidence� that there are significant cost increases associated with imprisonment of offenders following conviction for a designated offence. There are two reasons for this:
i) there is a steady stream of accounts from lawyers and sometimes
magistrates about the imprisonment of offenders who would previously have
received a non-custodial penalty; and
�ii) there appears to be developing a �culture of imprisonment� which may influence the imposition of longer prison terms, if mandatory minimum penalties� are consistently imposed for trivial property offences.�[73]
Mandatory detention has had flow on effects in a
number of other areasT � the
over-inclusive nature of the legislation has required a number of other
initiatives to attempt to reduce its negative effects, such as the introduction
of juvenile pre-court diversionary programs. The legislation has had a
�snowball� effect which has required, and will continue to require, substantial
amending legislation, criminal justice and community-based schemes, and substantial
increased
public funding to reduce its inevitable effects in specific areas.
The consequent costs are reflected in the fact that the Northern Territory Department of Correctional Services budget has been increased by 26% ($8.5 million) since 1996.[74] This cost is substantially disproportionate to the value of the property these laws are intended to protect.
A
discriminatory geographic
and racial impact � geographic and racial:
It also appears likely
that mandatory detention laws are having a discriminatory impact � in both
geographic and racial terms.� The
discriminatory geographic
effect arises from the operation of two factors.
Firstly, the main correctional facilities in Western Australia and the Northern Territory are located in urban centres, with little or no capacity to locate sentenced offenders in �out-station� custodial settings in or near their remote communities. This results in convicted offenders being removed from their families and communities to serve their sentences in the urban facilities. For many, this means they receive no visits during the period of their detention, and there is no capacity for correctional officers to work with the family and community on rehabilitation strategies during the period of imprisonment;
Secondly, there is a disproportionate focus on providing pre and post-sentencing diversionary options in urban centres. Those charged from remote communities have less access to these diversionary options and, as a result, are more likely to record �strikes� under the mandatory detention regimes. Imprisonment or detention is inevitable.
As the UN Human Rights Committee has noted, the racially
discriminatory effect arises since because the laws particularly apply
particularly to
the categories of crimes with which indigenous
Australiansindigenous Australians are more usually charged. P � for
example, property crimes, (regardless
of the value of property,) are
within the Northern Territory mandatory detention laws, but shoplifting and
credit card fraud are not, �(even though they often involve
much larger sums of money and are therefore traditionally considered more
serious crimes. The UN Human Rights Committee noted that:
�The mandatory sentencing schemes appear to target offences that are
committed disproportionately by indigenous Australiansindigenous Australians,
especially juveniles, leading to a racially discriminatory impact on their rate
of incarceration. The Committee seriously questions the compatibility of these
laws with the State party's obligations under the Convention and recommends to
the State party to review all laws and practices in this field.�[75]
The UN Human Rights Committee also considered that it is
highly likely police and prosecutorial discretion is being exercised to the
detriment of indigenous Australiansindigenous Australians:[76]
indigenous
Australiansindigenous Australians are six times as likely to be
caught by the mandatory detention provisions in the Northern Territory, and
even more likely to be sentenced under the Western Australian provisions.[77]
The fact that there is a high proportion of Indigenous
Australians in rural and remote areas compounds these two discriminatory
effects (geographic and racial) for those people.
Contrary to the recommendations of the Royal Commission
into Deaths in Custody, and the Social Justice Commissioner�s
Report on Indigenous Indigenous Deaths in Custody:
These landmark reports produced comprehensive
recommendations for the interaction of Indigenous
Australiansindigenous Australians and the criminal justice system,
to reduce the number of indigenous indigenous deaths in
custody. The core theme of the recommendations was that Indigenous
Australiansindigenous Australians should be kept out of custody as
far as possible. The detailed recommendations included:
�
the need for diversionary programs to ensure that
custody and imprisonment were used only as a last resort;
�
the urgent need for the development of substantial
alternatives to imprisonment, such as conferencing; and
�
the increased need for Indigenousindigenous �prisoners to maintain and
re-establish family and community links, which again required imprisonment to
be treated as a measure of last resort, especially if this required offenders
to travel a substantial distance from their communities.
Mandatory detention clearly runs
counter to these recommendations, while s.� Statistics show that these
recommendations are not being implemented, especially in the Northern Territory
and Western Australia. In the Northern Territory, 72.8 per cent of the prison
population is Indigenousindigenous, while in Western
Australia, 33.1% of the prison population is Indigenousindigenous.
There is an urgent
need for the Committee to examine in detail the precise effect that mandatory detention
laws are having on the rate of incarceration of Indigenousindigenous �people, since there. �are no comprehensive publicly available
figures, but the anecdotal evidence is that these mandatory detention laws are
having a substantial detrimental effect.
Transfer
of discretion to the police and prosecution:
Mandatory detention legislation
does not remove discretion from the criminal justice system altogether: .� Instead it transfers critical
discretionary powers from the courts to the police and prosecution. This
transfer is both overt, in the form of pre-court diversionary programs, and
covert, in
the form of the police
choosing whether or not to charge suspected offenders. The effect of this is
not to be understated:
�� It is important to recognise that these laws do not remove
discretion from the criminal process so much as they redistribute it from
judges to prosecutors. It is the latter who choose when to invoke such laws
against repeat offenders�. There is an abundance of evidence that is precisely
what has happened with mandatory sentencing laws in the past and that it is
already occurring under the new, more draconian laws in the US.
Other evidence also indicates
that awareness of the mandatory detention laws in rural and remote communities
is generally not high. Evidence before the continuing Coronial Inquest into
the death in detention of Johnno Jonathon Wurramarba, for example, points to
clear (and acknowledged)
misunderstandings of the legislative scheme on the part ofby police
prosecutors (on two occasions,)
and by a
legal aid defence lawyer (on one occasion). This led
to the imposition of a much longer sentence than appropriate. Wurramarba died
while in detention.
�In light of the
recommendations of the Royal Commission into Aboriginal Deaths in Custody, and the
obligations under the Convention on the Rights of the Child which require
imprisonment as a last resort for both Indigenous
Australians and personsall people under
18 years of age, the importance of such �misunderstandings� cannot be underestimatedis substantial.
Evidence has also emerged during the
inquest that the communities have not been provided with appropriate
information about the mandatory detention scheme to allow give it a deterrent effectthem
to use the scheme as a deterrent to offending.
�International evidencealso appears to
indicates in any
event that mandatory detention laws have little or no marginal deterrent
effect, and that any increased deterrent effect is likely to be short term.[81]
Although mandatory detention was expected to speed the
administration of justice, it appears that it hasto have had the
opposite effect. While It is common in the criminal justice system that offenders
are usually provided with an incentive to
plead guilty to
crimes they have committed to
crimes which they have committed, and thereby
reducinge
the amount of scarce police and court
resources devoted to their trials, m. Mandatory
detention provides the rperverse
incentive: to
argue innocence regardless of the circumstances of the crime or the offender.
This inevitably exacerbates court delays
and stretches already over-stretched legal aidpublic resources.
:� Mandatory detention is clearly
contrary to the common
law sentencing principles developed by English
and Australian courts over centuries. Although
legislatures may have the power to overturn common
law principles, with
subsequent inconsistent legislation (subject to
that legislation not being consistent with the Constitution
as
discussed below) such power should be exercised with discretioncaution and
only after careful consideration. Usually, in determining the
appropriate sentence to impose, judges consider the individual facts of the
case including previous conduct, acknowledgment of wrongdoing, degree of
remorse, forms of justification for the actions, mitigating circumstances, and state of mind.
Against this factual background, judges ordinarily apply a number of common law
sentencing principles, including the key principles of parsimony,
proportionality, parity, and totality:
� Parsimony forbids the imposition of punishment in excess of that required to achieve defined social purposes. In R v Moyse[82], Jacobs J said it is a �cardinal principle of sentencing, that the court, whenever it can properly do so, should temper justice with mercy by imposing the lowest, rather than the highest, sentence of imprisonment that can be justified.�[83] In R v Valentini[84], the Full Federal Court said, �[t]he judge must ensure that he imposes the minimum term consistent with the attainment of the relevant purposes of sentencing taking care that he punishes only for the crimes before him.�[85] The principle of parsimony includes the fundamental principle of sentencing that imprisonment is a punishment of last resort, to be imposed only where a non-custodial punishment is inappropriate.[86]
� Proportionality prohibits judges from imposing sentences which exceed that which is commensurate with the gravity of the offence for which an offender has been convicted.[87] The principle of proportionality operates to prevent offenders being punished more seriously than the current offence warrants because of their prior convictions.[88]
The judicial power to impose a punishment has traditionally been treated as an incident of the judicial power to adjudge criminal guilt and the principle of proportionality between the crime and the punishment has been repeatedly recognised as �fundamental� in sentencing law.[90]
� Parity requires that when more than one offender is sentenced in respect of the same offence, they should be sentenced in a similar manner. Mason CJ, Dawson and McHugh stated the essence of this principle in Leeth v The Commonwealth[91]: �[i]t is obviously desirable that, in the sentencing of offenders, like offenders should be treated in a like manner.�[92] More recently, in Postiglione v The Queen[93], Dawson and Gaudron JJ said, �[t]he parity principle is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them.�[94]
� Totality requires that an offender is not subjected to �a crushing sentence not in keeping with his record and prospects.�[95] D A Thomas has explained the total principle as requiring �a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate sentence is just and appropriate�.[96]
Mandatory detention clearly runs
counter to each of these fundamental sentencing principles.
Inconsistent
punishments
: Mandatory detention laws
allow for, indeed make inevitable,
inconsistent punishments. For example, two co-offenders charged with the same
crime must be given the same
sentences regardless of their relative culpability.� By way of further example, two
offenders charged with the same crime in the same
circumstances, even if co-offenders, could receive vastly
different sentences depending on their ages. It is
possible in the Northern Territory for an offender who is 18 years old to be
sentenced to 14 days imprisonment (even when he or she
has prior convictions as a juvenile), while their
co-offender is sentenced to 28 days detention as a third strike juvenile
offender.� Mandatory
detention laws also do not allow the nature of
prior convictions to be taken into account as they would ordinarily in judicial
proceedings.
Applying the various sentencing principles to the individual
circumstances of the particular case necessarily involves judicial discretion. Indeed,
iIn
Postiglione v The Queen[97],
Kirby J, while discussing sentencing principles, emphasised the �discretionary character of the sentencing
function.�[98]
By completely removing judicial
discretion in the determination of sentence, mandatory detention legislation
prevents judges from taking into account the circumstances and context of the
offence. Sentencing becomes an automatic exercise, emptied of much of its
moral force. Moreover, mandatory detention can work manifest injustices. For
example, by virtue of mandatory detention legislation, judges
may be forced to impose a much longer sentence than would otherwise beis proportionate
to the gravity of the crime. Indeed, mMandatory detention results in a direct
infringement of two key principles of sentencing in all cases: parsimony and
proportionality.
In contrast, legislative prescription of
maximum or minimum penalties (as considered in Palling) does not completely
eliminate judicial discretion. This simply sets upper or lower limits, but
leaves a framework in which judges can exercise their discretion by finding the
facts of the particular case and by applying the above-mentioned sentencing
principles to these facts.
Mandatory detention laws allow for, and make inevitable, inconsistent punishments. For example, two co-offenders charged with the same crime will be given the same sentences, regardless of their relative culpability. Alternatively, the two offenders could receive different sentences depending on their ages.
It is possible in the Northern Territory for an offender who is 18 years old to be sentenced to 14 days imprisonment, while a juvenile co-offender is sentenced to 28 days detention as a third strike offender. Nor do mandatory detention laws allow the nature of prior convictions to be taken into account as they would ordinarily in judicial proceedings.
These policy concerns all contribute to the
likelihood that mandatory detention laws bring the administration of justice in
the Northern Territory and Western Australia into disrepute,
which gives rise to the prospect of a constitutional
claim under the principle in Kable.
[1] ������������� �When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.� s109, federal Constitution.
[2] ������������� (1997) 115 NTR.
[4] ��������������� Legislative Council- Statement, Wednesday, 15 March 2000, Member: Foss, Mandatory Sentencing Legislation - Statement By Attorney General, Page: 4976 / 2.
[5] ������������� Johnson and Zdenkowski, Mandatory Injustice, 2000, page 11.
[6] ������������� Adopted by General Assembly resolution 45/110of 14 December 1990.
[7] ������������� Adopted by General Assembly resolution 40/33of 29 November 1985.
[8] ������������� The relevant provisions of the Act provided that: 4.(1) Sexual conduct involving only consenting adults acting in private is not to be subject, by or under any law of the Commonwealth, a State or a Territory, to any arbitrary interference with privacy within the meaning of Article 17 of the International Covenant on Civil and Political Rights.� Note: Article 17 of the International Covenant on Civil and Political Rights is set out in Schedule 2 to the Human Rights and Equal Opportunity Commission Act 1986.� (2) For the purposes of this section, an adult is a person who is 18 years old or more.
[9] ������������� No. 95/013 (1995) 128 ALR 353, (1995) 69 ALJR 423, (1995) EOC 92-696 (extract), (1995) 183
CLR 273 at para 3.
[10] ����������� UN Human Rights Committee Review of Australia�s Report on the Implementation of the ICCPR, 21 July 2000, http://www.unhchr.ch/huricane/huricane.nsf/view01/
3815C2AE5A1633B7C1256926004B5C98?opendocument
[11] ����������� (1997) 115 NTR.
[12] ����������� Article 1, First Optional Protocol to the ICCPR.
[13] ����������� Article 2, First Optional Protocol to the ICCPR.
[14] ����������� Sen Brown, Second Reading Speech, 25 June 2001.
[15] ��������������� Concluding Observations by the Committee on the Elimination of Racial Discrimination: Australia 19/04/2000. CERD/C/304/Add. 101 (Concluding Observations/Comments).
[16] ����������� Adopted by General Assembly resolution 45/110of 14 December 1990.
[17] ����������� Adopted by General Assembly resolution 40/33of 29 November 1985.
[18] ����������� (1996) 189 CLR 51.
[19] ����������� On this point, see for example, Fraser Henleins Pty Ltd v Cody (1945) 70 CLR 100 at 119-120 per Latham CJ; and Leeth v The Commonwealth (1992) 174 CLR 455 at 479 per Brennan J.
[20] ����������� Deane J, Re Tracey: Ex Parte Ryan (1989) 166 CLR 518 at 580. Citing with approval per Dixon C.J., McTiernan, Fullagar and Kitto JJ., Reg v. Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254, at p 270).
[21] ����������� Deane J, Re Tracey Ex Parte Ryan (1989) 166 CLR 518.
[22] ��������������� Although courts martial are one historical anomaly: R v Cox: Ex parte Smith (1945) 71 CLR 1 at 1; R v Bevan; Ex parte Elias and Gordon (1942) 66 CLR 452.
[23] ����������� Leeth v Commonwealth (1992) 174 CLR 455 FC 92/022, per Mason CJ, Dawson And McHugh JJ.
[24] ����������� (1970) 123 CLR 52.
[25] ����������� at 58.
[26] ����������� (1996) 189 CLR 51.
[27] ����������� Kable v DPP (NSW) (1996) 189 CLR 51, per McHugh J at 96.
[28] ����������� (21 May 1998, Gaudron and Hayne JJ)
[29] ����������� Gaudron J did note that the legislation did not prevent judges from making a determination as to guilt or innocence, a function which falls squarely within the scope of the judicial power.
[30] ����������� (1970) 123 CLR 52.
[31] ����������� at 61.
[32] ����������� s122 provides that: �The Parliament may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth, or of any territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth, and may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit.�
[33] ����������� s71 provides that: �The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction.� This interpretation is supported by three justices in Ex Parte Eastman (1999) 165 ALR 171; Gaudron J in Northern Territory v GPAO (1996) 196 CLR 553 at 578-579: �there is no reason to read �such other courts as it invests with federal jurisdiction� in s71 as if it read �such other State courts as it invests with federal jurisdiction�.�
[34] ����������� Re the Governor, Goulbourn
Correctional Centre; Ex Parte Eastman [1999] HCA 44 (2) September 1999. The
question was also considered in the case of Kruger
v the Commonwealth (1997) 190 CLR 1in which Toohey J at 84 concluded that
the argument that Chapter III of the Commonwealth Constitution applied to the
territories is �persuasive� In the same case, Gaudron Gaudron J noted that there is �no convincing reason� for treating
Chapter III as not applying to the territories.[34]
However, since the court held that the exercise of power in
question was not judicial in nature, tThere was no need at that stagein that matter to
reach a conclusion on the question of whether �Chapter III applies to
territories.
[35] ����������� Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1; Kable v Director of Public Prosecutions (1996) 189 CLR 51.
[36] ����������� Grollo v Palmer (1995) 184 CLR 348 at 365
[37] ����������� (1990) 172 CLR 460
[38] ����������� at 496. See also Grollo v Commissioner of Australian Federal Police (1995) 131 ALR 225, where at 246, McHugh J said, �open justice is the hallmark of the common law system of justice and is an essential feature of the federal judicial power.�
[39] ����������� Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1; Kable v Director of Public Prosecutions (1996) 189 CLR 51.
[40] ����������� Hanks and Cass, Australian Constitutional Law: Materials and Commentary, 11.3.22.
[41] ����������� Lesley Zines, �Judicial Activism and the Rule of Law�, paper delivered at Judicial Activism and Judicial Review in Australian Democracy, conference, 1998, Australian National University.
[42] ����������� Deane and Toohey JJ, Leeth v Commonwealth (1992) 174 CLR 455 at 487.
[43] ����������� Gaudron J, Leeth v Commonwealth (1992) 174 CLR 455 at 502.
[44] ����������� Deane J in Street v Queensland Bar Association (1989) 168 CLR 461 at 521.
[45] ����������� Mabo & Others v Queensland (No. 2)
(1992) 175 CLR 1 per Brennan J at 42.
[46] ����������� Dietrich v The Queen (1992) 177 CLR 292.
[47] ��������������� Blackstone, Commentaries, (1830) vol.1, p 269).
[48] ����������� George Williams, Human Rights under the Australian Constitution, Oxford University Press, 1999, page 198.
[49] ����������� Nicholas v The Queen (1998) 193 CLR 173, per McHugh J at 220. See also Peter Hanks: �If the judiciary is to provide an effective protection for the individual against the power of the state, then some limited may need to be established on the power of the Parliament to interfere, through its legislation, with the judicial process.� P Hanks, Constitutional Law in Australia, 2nd ed (1996) at 468.
[50] ����������� s122 provides that: �The Parliament may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth, or of any territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth, and may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit.�
[51] ����������� Kruger v the Commonwealth (1997) 190 CLR 1, per Toohey J at 84.
[52] ����������� Kruger v the Commonwealth (1997) 190 CLR 1, per Gaudron J at 109.
[53] ����������� (1998) 193 CLR 173.
[54] ����������� (1992) 176 CLR 1.
[55] ����������� (1992) 174 CLR 455.
[56] ����������� See Liyanage v The Queen [1967] 1 AC 259.
[57] ����������� See Polyukhovich v The Commonwealth (1991) 172 CLR 501.
[58] ����������� at 470.
[59] ����������� Leeth v Commonwealth (1992) 174 CLR 455 FC 92/022, per Mason CJ, Dawson And McHugh JJ.
[60] ����������� See Commonwealth v Tasmania (the Tasmanian Dams Case) (1983) 158 CLR 1; Polyukhovic v Commonwealth (1991) 172 CLR 501.
[61] ����������� �When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.� s109, federal Constitution.
[62] ����������� The relevant provisions of the Act provided that: 4.(1) Sexual conduct involving only consenting adults acting in private is not to be subject, by or under any law of the Commonwealth, a State or a Territory, to any arbitrary interference with privacy within the meaning of Article 17 of the International Covenant on Civil and Political Rights.� Note: Article 17 of the International Covenant on Civil and Political Rights is set out in Schedule 2 to the Human Rights and Equal Opportunity Commission Act 1986.� (2) For the purposes of this section, an adult is a person who is 18 years old or more.
[63] ����������� Re the Governor, Goulbourn Correctional Centre; Ex Parte Eastman [1999] HCA 44 (2) September 1999.
[64]������������ �The Self-Government Act, which gives life to and sustains the Legislative Assembly and the laws made by it, is a law of the Commonwealth and, as such, itself is subject to express or implied repeal or amendment by subsequent Commonwealth laws. In addition, a later law of the Commonwealth may expressly override an existing law made by the Legislative Assembly of the Northern Territory. Such a later law of the Commonwealth is a law made for the government of this Territory within the meaning of s 122 of the Constitution. The Euthanasia Laws Act 1997 (Cth) took two steps. It both removed the power of the Legislative Assembly otherwise conferred by s 6 of the Self-Government Act to make laws permitting euthanasia and provided that the enactment of the Rights of the Terminally Ill Act 1988 (NT) had no force or effect as a law of the Territory, except as regards the lawfulness or validity of anything done in accordance with it prior to the commencement of the Commonwealth law.� Northern Territory of Australia v GPAO [1999] HCA 8 (11 March 1999)
[65] ����������� ��the power of the Legislative Assembly� in relation to the making of laws does not extend to the making of laws which permit or have the effect of permitting � the form of intentional killing of another called euthanasia��. Euthanasia Laws Act 1997 (Cth), Schedule 1.
[66] ����������� This has been noted before: �Originally it was proposed to review the laws in the hope that they could be assessed against several criteria: justice, efficacy and cost. In the event it has not been possible to obtain comprehensive data with respect to efficacy and cost. The lack of detailed crime statistics in the Norther Territory, the unavailability of satisfactory statistics specifically relating to mandatory sentencing as well as the lack of freedom of information legislation in the Northern Territory has hampered this process. Reliance has been placed on anecdotal material, partial data and overseas research experience. Accordingly, our conclusions must be qualified.� Johnson and Zdenkowski, Mandatory Injustice, 2000, page 10.
[67] ����������� See the NAALAS Report attached to the Bill for a comprehensive summary.
[68] ����������� There is little publicly available evidence of the practical operation of mandatory sentencing laws apart from the NAALAS Report, Dollars Without Sense. The conclusions put forward in this submission rely upon this report, as well as evidence given before coronial inquiries, and anecdotal evidence gathered from legal and policy workers. There is clearly a substantial need for reliable public information on the operation of mandatory sentencing laws. This submission is based on the best evidence available.
[69] ��������������� Although the scope of the laws is now somewhat wider than property offences and includes sexual and other forms of violent assault, the central concern of the laws is the protection of property.
[70] ��������������� NAALAS, Dollars Without Sense: A Review of the NT�s Mandatory Sentencing Laws,
5 November 1999, page 18.
[71] ����������� Johnson and Zdenkowski, Mandatory Injustice, 2000, page 10.
[72] ��������������� NAALAS, Dollars Without Sense: A Review of the NT�s Mandatory Sentencing Laws, page 5.
[73] ����������� Johnson and Zdenkowski, Mandatory Injustice, 2000, page 10.
[74] ����������� The NAALAS Report.
[75] ��������������� Concluding Observations by the Committee on the Elimination of Racial Discrimination: Australia 19/04/2000. CERD/C/304/Add. 101 (Concluding Observations/Comments).
[76] ����������� See, for example, the report of
Australia�s appearance before the 69th Session of the Committee
which notes that: �Some Committee experts
said that mandatory sentencing of minors for crimes was discriminatory and
disproportional to the offences committed. They expressed the view that
mandatory sentencing was directed against indigenousindigenous
children.� UNHRC Press Release, 21 July 2000.
[77] ����������� Sen Brown, Second Reading Speech, 25 June 2001.
[78] ����������� Russell Hogg, �Mandatory Sentencing Laws and the Symbolic Politics of Law and Order�, (1999) 22(1) University of New South Wales Law Journal 262 at 263-264,
[79] ����������� Dollars Without Sense, Report of the Northern Australian Aboriginal Legal Aid Service
[80] ����������� Johnson and Zdenkowski, Mandatory Injustice, 2000, page 10.
[81] ����������� Johnson and Zdenkowski, Mandatory Injustice, 2000, Chapter 9.
[82] ����������� (1988) 38 A Crim R 169
[83] ����������� at 172-173.
[84] ����������� (1980) 48 FLR 416
[85] ����������� at 420.
[86] ����������� See R v James (1985) 14 A Crim R 364 (FC WA) at 364 per Burt CJ; Weetra v Beshara (1987) 46 SASR 484 (FC) at 485 per Jacobs ACJ; at 493 per Prior J; Stewart v Collins (1992) 58 SASR 291 (NSW CCA) at 293 per Bollen J; Parker v DPP (NSW) (1992) 28 NSWLR 282 at 296 per Kirby P; English v The Queen (1995) 82 A Crim R 586 (CCA WA) at 596-598 per Walsh J.
[87] ����������� See also Veen v The Queen [No 1] (1979) 143 CLR 458 and Veen v The Queen [No 2] (1988) 164 CLR 465 where the Court held that a sentence cannot be imposed that exceeds the gravity of the current offence.
[88] ����������� See Baumer v The Queen (1988) 166 CLR 51
[89] ����������� Chester v. The Queen (1988) 165 CLR 611 F.C. 88/060, per Mason CJ, Brennan, Deane, Toohey and Gaudron JJ, at 618.
[90] ����������� eg. Chester v The Queen (1988) 165 CLR 611 at 618
[91] ����������� (1992) 174 CLR 455
[92] ����������� at 470.
[93] ����������� (1997) 189 CLR 295
[94] ����������� at 301. See also Lowe v The Queen (1984) 154 CLR 606.
[95] ����������� Dawson and Gaudron JJ in Postiglione v The Queen (1997) 189 CLR 295 at 304 citing from D A Thomas, Principles of Sentencing, 2nd ed (1979) at 57-58.
[96] ����������� D A Thomas, Principles of Sentencing, 2nd ed (1979) at 56 cited with approval in Mill v The Queen (1988) 166 CLR 59 at 63 and in Postiglione v The Queen (1997) 189 CLR 295 at 340 per Kirby J.
[97] ����������� (1997) 189 CLR 295
[98] ����������� at 336.