Federal Crime and Sentencing Conference
11 and 12 February 2012
Canberra
Presented by
The National Judicial College of Australia and
The ANU College of Law
CONSTITUTIONAL PERSPECTIVES ON SENTENCING: SOME
CHALLENGING ISSUES
*
ARIE FREIBERG & SARAH MURRAY
+
INTRODUCTION
Sentencing in Australia has not usually been considered in constitutional terms.
Historically sentencing procedure has been a matter for the common law but,
1
increasingly over recent years, it has been the subject of statutory interventions.
Unlike the United States, where the federal constitution has played a significant role
2
in criminal law jurisprudence and, to a lesser extent, in sentencing practices,
Australian state and federal constitutions have not, until recently, featured
prominently in challenges to sentencing legislation and sentencing practice. These
constitutional documents generally have as their purpose the distribution of powers
between the various organs of government rather than being authoritative documents
that limit interference with individual liberties.
However, the increasing number of laws enacted in recent years that are regarded as
infringing individuals’ civil liberties and human rights, coupled with the increased
3
willingness of the of the High Court to entertain sentencing appeals, have generated a
4
number of challenges to such laws on constitutional grounds. Australian courts have
generally considered it undesirable to determine constitutional issues unless it is
*
+
1
2
3
4
Professor and Dean of Law Monash University, AM, FASSA LLB (Hons), Dip Crim (Melb),
LLM (Monash), LLD (Melb).
Assistant Professor University of Western Australia Law School, BA(Hons) LLB(Hons) UWA,
Grad Dip (Legal Practice) (NSW), PhD Monash. We thank Mark Weinberg, Richard Fox and Jeff
Goldsworthy for comments on earlier drafts of this paper.
Criminal Law (Sentencing) Act 1988 (SA); Sentencing Act 1991 (Vic), Penalties and Sentences
Act 1992 (Qld); Sentencing Act 1995 (NT); Sentencing Act 1995 (WA) and Sentence
Administration Act 1995 (WA); Sentencing Act 1997 (Tas); the Crimes (Sentencing Procedure)
Act 1999 (NSW) and Crimes (Administration of Sentences) Act 1999 (NSW).
C B Hessick and F A Hessick, ‘Recognizing Constitutional Rights at Sentencing’ (2011) 99
California Law Review 47. The authors argue that with few exceptions, the judiciary in the United
States has rejected constitutional challenges to non-capital sentencing factors (at 48). A
distinction is drawn between procedural rights at sentencing and the recognition of substantive
constitutional considerations of various factors (at 53). See also B Priester, ‘Apprendi Land
Becomes Bizarro World: “Policy Nullification” And Other Surreal Doctrines In The New
Constitutional Law Of Sentencing’ (2011) 51 Santa Clara Law Review 1.
See M D Kirby, ‘Why the High Court has Become More Involved in Criminal Appeals’ (2002)
23 Australian Bar Review 4; M D Kirby, ‘Ten Years in the High Court – Continuity and Change’
(2005) 27 Australian Bar Review 4.
On the growth of criminal law ‘constitutionalism’ see generally S McDonald, ‘Involuntary
Detention and the Separation of Judicial Power’ (2007) 35(1) Federal Law Review 25; F Wheeler,
‘Due Process, Judicial Power and Chapter III in the New High Court’ (2004) 32(2) Federal Law
Review 205; C Wheeler, ‘Shifting Sands: Implications and the Constitution’ (2007) 81(8)
Australian Law Journal 544.
2
5
necessary to do so and to date, most of the challenges have been unsuccessful.
Although the Commonwealth Constitution does not contain a Bill of Rights or similar
6
significant substantive protections of individual liberty it is regarded as:
a central provision of the law. Countless cases show how it colours the meaning of
other laws that the courts administer.
Analogies with other common law jurisdictions with written constitutions are limited,
for, as Gleeson CJ has noted, laws must be considered in the light of their own
7
constitutional context:
In the United States, the right to substantive due process is significant. In Canada, the
Charter of Rights and Freedoms must be considered. In Australia, the Constitution
does not contain any general statement of rights and freedoms. Subject to the
Constitution, as a general rule it is for the federal Parliament, and the legislatures of
the States and Territories, to consider the protection of the safety of citizens in the
light of the rights and freedoms accepted as fundamental in our society. Principles of
the common law, protective of such rights and freedoms, may come into play in the
application and interpretation of valid legislation.
8
This article examines the role of state and federal constitutions in sentencing. It
argues that state and federal constitutions provide few protections against unfair or
oppressive sentencing laws and that the common law will generally yield to the
legislative will. While there are some constitutional arguments that can be used to
challenge sentencing legislation they have historically been limited in scope and
success. Part A explains the broader sentencing and constitutional context in which
sentencing decisions are made. Part B examines some common sentencing-related
scenarios and the constitutional challenges which have been mounted based on
Chapter III of the Commonwealth Constitution. It suggests that the prime
constitutional grounds which may apply to sentencing relate to instances where the
essential nature or role of the court is compromised by a sentencing arrangement or
legislative provision. The article concludes that provided that sentencing legislation
does not unduly interfere with judicial discretion and leaves a judge free to undertake
the sentencing function fairly, independently and without legislative or executive
interference, governments are unlikely to be trammeled by constitutional inhibitions.
5
6
7
8
Deputy Federal Commissioner of Taxation (NSW) v WR Moran Pty Ltd (1939) 61 CLR 735, 7734 (Starke J); Multicon Engineering Pty Ltd v Federal Airports Corp (1997) 47 NSWLR 631, 642
(Mason P); Re Patterson (2001) 207 CLR 391, [250]-[251] (Gummow and Hayne JJ).
Weininger v R (2003) 212 CLR 629, [54] (Kirby J, in dissent). The Victorian Charter of Human
Rights and Responsibilities Act 2006 (Vic) and the Human Rights Act 2004 (ACT) both contain
such protections, but both are ordinary Acts of Parliament that have had little direct effect on
sentencing: F E Johns, ‘Human Rights in the High Court of Australia’ (2005) 33(2) Federal Law
Review 287. There are also provisions of the Bill of Rights 1688 that may apply that prohibit
excessive fines and cruel and unusual punishments but these also have been of little effect and are
not the subject of this discussion.
Fardon v Attorney-General for the State of Queensland (2004) 223 CLR 575, [14] (footnotes
omitted).
We will not be dealing any of the procedural provisions relating to sentencing that are contained
in the Commonwealth Constitution such as provisions for inter-jurisdictional enforcement, (s
51(24), responsibility for offenders and prisoners (s 120) and the like.
3
PART A
WHAT IS A SENTENCE?
There is no single, general and all inclusive definition of what constitutes a sentence.
9
10
Definitions will vary according to legislation, context, conferral of appeal rights,
11
provisions regarding correction of sentences and for the purpose of deciding when a
12
court is functus officio. The meaning of ‘sentence’, the nature of the sentencing
process and the judicial function in connection with sentencing are not immutable and
change in response to changing social circumstances, community attitudes and
13
values.
Though many of the major constitutional challenges to date have been made in
14
relation to provisions that appear to be analogous to sentences such as control and
15
confiscation orders, they are not, strictly speaking, sentencing orders. Nor are
16
17
disciplinary sanctions, or involuntary detention orders, or orders for the detention
18
of mentally ill persons.
For the purposes of this article a ‘sentence’ is defined to mean a dispositive order of a
criminal court consequent upon a finding of guilt, whether or not a formal conviction
19
is recorded. It also includes indefinite sentences of imprisonment imposed
9
10
11
12
13
14
15
16
17
18
19
See, eg, Penalties and Sentences Act 1992 (Qld) s 4; Criminal Law (Sentencing) Act 1988 (SA) s
3.
See, eg, Criminal Appeal Act 1912 (NSW) ss 2, 5, and 6; Criminal Procedure Act 2009 (Vic) Part
6.3; R v Elliott (2006) 68 NSWLR 1; Baker (2004) 223 CLR 513, [2] (Gleeson CJ).
Eg Sentencing Act 1991 (Vic) s 104A.
Ernst [1984] VR 593.
R v England (2004) 89 SASR 316, [43] (Doyle CJ).
See, eg, Criminal Code Act 1995 (Cth) Division 104.1; Thomas v Mowbray (2007) 233 CLR 307;
see also P Fairall and W Lacey, ‘Preventive Detention and Control Orders Under Federal Law:
the Case for a Bill of Rights’ (2007) 31(3) Melbourne University Law Review 1072; T Carmody,
‘Rethinking Federal Sentencing Aims and Options for Terrorists’ (2006) 80(12) Australian Law
Journal 839.
Eg Proceeds of Crime Act 1987 (Cth), Proceeds of Crime Act 2002 (Cth); see also in Re Criminal
Proceeds Confiscation Act 2002 [2004] 1 Qd R 40; Silbert v DPP (WA) (2004) 217 CLR 181.
Albarran v Members of the Companies Auditors and Liquidators Disciplinary Board (2007) 81
ALJR 1155; R v White; Ex parte Byrnes (1963) 109 CLR 665; Australian Broadcasting Tribunal
v Bond (1990) 170 CLR 321, 380-381. On the differences between ‘punitive’ and ‘protective’
orders see Rich v Australian Securities and Investments Commission (2004) 220 CLR 129.
See Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176
CLR 1, 28 (Brennan, Deane and Dawson JJ); Kruger v Commonwealth (1997) 190 CLR 1, 161162 (Gummow J).
See, eg, Mental Health Act 1993 (SA); Mental Health Act 1986 (Vic).
See R Fox and A Freiberg, Sentencing – State and Federal Law in Victoria (Oxford University
4
immediately following conviction as well as extended supervision and detention
orders which, although not imposed by a sentencing judge immediately following a
20
finding of guilt or conviction, are indirectly founded upon a conviction.
The definition of ‘sentence’, compared with other forms of sanctions and penalties, is
constitutionally critical, as sentencing is a judicial power that, in the federal context,
21
can only be constitutionally vested in a Chapter III court. In the state legislative
context, there are also increasing suggestions that ‘sentencing’ functions might be
22
reserved for state curial exercise.
STATE CONSTITUTIONS
Under Australian constitutional arrangements the administration of criminal justice is
substantially, but not exclusively, a matter for the states. State constitutions generally
grant authority to state parliaments to make laws for ‘the peace, welfare [or order] and
23
good government’ of their jurisdiction ‘in all cases whatsoever’. They provide few,
if any protections for offenders and the legislative requirement of ‘peace, welfare and
good government’ have not been found to be words imposing substantive (non24
territorial) restrictions on the making of state laws. While state constitutions do not
embody the same separation of powers doctrine associated with the Commonwealth
25
Constitution,
state legislation is subject to limitations imposed by the
26
Commonwealth Constitution. These limitations include the considerations discussed
below relating to the ability of state courts to remain capable of administering
Press, 2nd ed, 1999), [1.507].
20
21
22
23
24
25
26
Cf control orders that do not require a conviction at any stage of proceedings. In Fardon v
Attorney-General for the State of Queensland (2004) 223 CLR 575 it was noted that the
dangerous offender legislation was not ‘in truth part of the sentencing process, but was a sui
generis regime, the application being made in relation to a person who was already serving a term
of imprisonment. The fact that there was a connection between the operation of the Queensland
Act and anterior conviction by the usual judicial processes was a relevant matter for Gummow J
(see at [106] and Kirby J at [165])’;
Polyukhovich v The Commonwealth (1991) 172 CLR 501, 608-609 (Deane J); Chu Kheng Lim v
Minister for Immigration, Local Government & Ethnic Affairs (1992) 176 CLR 1, 27 (Brennan,
Deane and Dawson JJ); Leeth v The Commonwealth (1992) 174 CLR 455, 470 (Mason CJ,
Dawson and McHugh JJ); Albarran v Members of the Companies Auditors and Liquidators
Disciplinary Board (2007) 81 ALJR 1155, [82] (Kirby J).
South Australia v Totani (2010) 85 ALJR 19, [76], [82] (French CJ), [146]-[147] (Gummow J)..
Constitution Act 1975 (Vic) s 16. See also Constitution Act 1902 (NSW) s 5; Constitution Act
1867 (Qld) s 2; Constitution Act 1889 (WA) s 2.
Union Steamship v King (1988) 166 CLR 1, 9-10 (the Court). Though note that the High Court
left open the possibility of there being some ‘rights deeply rooted in our democratic system of
government and the common law’. See also Durham Holdings Pty Ltd v NSW (2001) 205
CLR 399, 409-410 (Gaudron, McHugh, Gummow and Hayne JJ); South Australia v Totani
(2010) 85 ALJR 19, [31] (French CJ).
Kable v Director of Public Prosecutions (1996) 189 CLR 51, 67 (Brennan CJ), 77-8 (Dawson J),
93 (Toohey J), 109, 118 (McHugh J), 132 (Gummow J); R S French, ‘Executive Toys – Judges
and Non-judicial Functions’ (2009) 19(1) Journal of Judicial Administration 5, 19. Note that
some state constitutions have entrenching procedures which protect the role of their Supreme
Courts to some extent (eg s 73(6) Constitution Act 1889 (WA)), see for example: Cheryl
Saunders, ‘The Separation of Powers’ in Brian Opeskin and Fiona Wheeler (eds), The Australian
Federal Judicial System (2000) 18.
For example, ss 92, 109 and 114 of the Commonwealth Constitution.
5
invested federal jurisdiction consistently with Chapter III of the Commonwealth
27
Constitution.
COMMONWEALTH CONSTITUTION
The Commonwealth Constitution gives the federal parliament power to enact criminal
laws relating to its enumerated powers and the Crimes Act 1914 (Cth) contains
28
provisions relating to the sentencing of Commonwealth offenders. State courts are
29
invested with federal jurisdiction to try most Commonwealth offences and the
30
various provisions of the Judiciary Act 1903 (Cth) direct the state courts to apply the
same state laws regarding criminal procedure, evidence and the like unless there is a
31
relevant Commonwealth law that expressly or impliedly covers the field.
Section 73 of the Commonwealth Constitution provides that: ‘The High Court shall
have jurisdiction, with such exceptions and subject to such regulations as the
Parliament prescribes, to hear and determine appeals from all judgments, decrees,
32
orders, and sentences’ [emphasis added]. Although criminal law and sentencing
33
appeals do not comprise a large proportion of the work of the court the Court’s
supervision of sentences may be regarded as making ‘a useful contribution to uniform
and principled treatment of the decisions of Australia’s courts affecting a most
precious commodity in our society – the liberty and reputation of the individual
34
punished and sentenced following a criminal conviction.’ The High Court regards its
role as the final appellate court in the Australian hierarchy as of profound
35
importance and is prepared to interpret its powers widely if it is necessary for it to
36
exercise them to ‘cure a substantial and grave injustice’.
27
28
29
30
31
32
33
34
35
Kable v Director of Public Prosecutions (1996) 189 CLR 51; Forge v Australian Securities
Investments Commission (2006) 228 CLR 45; Fardon v Attorney-General for the State of
Queensland (2004) 223 CLR 575; International Finance Trust Co Ltd v New South Wales Crime
Commission (2009) 240 CLR 319; South Australia v Totani (2010) 85 ALJR 19; Wainohu v New
South Wales (2011) 243 CLR 181.
Crimes Act 1914 (Cth) Part 1B; see generally Australian Law Reform Commission, Same Crime,
Same Time: Report Sentencing of Federal Offenders, Report No. 103 (2006).
Commonwealth Constitution s 77(iii); Judiciary Act 1903 (Cth) s 68.
Judiciary Act 1903 (Cth) ss 68(1), 79.
What is or is not a relevant federal law has been the subject of much litigation: Eg Wong (2001)
207 CLR 584 (compatibility of state sentencing guidelines with Part 1B of the Crimes Act 1916
(Cth); DPP (Cth) v Bui [2011] VSCA 61 (9 March 2011); R v Baldock (2010) 269 ALR 674;
DPP (Cth) v De La Rosa (2010) 205 A Crim R 1273 (applicability of state laws removing
sentencing double jeopardy to Commonwealth offences); Putland v The Queen (2004) 218 CLR
174 (aggregate sentences); R v ONA (2009) 24 VR 197 (sex offenders registration laws).
For a discussion of alternative interpretations of ‘sentences’ see: M D Kirby, ‘The Mysterious
Word “Sentences” in s 73 of the Constitution’ (2002) 76(2) Australian Law Journal 97.
Cf intermediate courts of appeal where criminal appeals amount to 60-80% of appeals.
M D Kirby, ‘The Mysterious Word “Sentences” in s 73 of the Constitution’ (2002) 76(2)
Australian Law Journal 97, 108.
Crampton v R (2000) 206 CLR 161, [47] (Gaudron, Gummow and Callinan JJ), [113]-[121]
(Kirby J) (at [117]: ‘the jurisdiction to prevent miscarriages of justice and fundamental errors of
law should remain untrammelled by unduly protective procedural conceptions’), [145]-[164]
(Hayne J) (at [205]: ‘the constitutional conferral of appellate jurisdiction on this Court is to be
construed amply and as “implying the fullest authority to ascertain whether the judgment below
6
SEPARATION OF POWERS
The doctrine of the separation of powers broadly requires that the power to legislate
be exercised by the legislature, that the administration of the law be undertaken by the
executive branch of government and that the function of interpreting the law and
applying in the authoritative resolution of accusations or disputes be allocated to an
37
independent judiciary. While state constitutions do not contemplate such a formal
38
separation of the judicial arm from the legislative and executive arms, the High
Court has found that Chapter III of the Commonwealth Constitution imposes a de
39
facto separation of powers on state courts. This arises by virtue of the integrated
structure of courts contemplated by Chapter III and s 77(iii)’s contemplation of
federal jurisdiction being invested in ‘any court of a State’. As a consequence of the
constitutional role contemplated for state courts, state parliaments cannot impinge on
the institutional integrity of such courts.
In Kable a majority of the High Court found New South Wales ad hominem
preventative detention legislation constitutionally invalid on the basis that it
compromised the independence of the New South Wales Supreme Court. Forming
40
part of the majority, McHugh J concluded that:
State courts have a status and a role that extends beyond their status and role as part
of the State judicial systems. They are part of an integrated system of State and
federal courts and organs for the exercise of federal judicial power as well as State
judicial power….It is axiomatic that neither the Commonwealth nor a State can
legislate in a way that might alter or undermine the constitutional scheme set up by
Ch III of the Constitution…Because the State courts are an integral and equal part of
the judicial system set up by Ch III, it also follows that no State or federal parliament
ought, or ought not, to have been given”).
36
37
38
39
40
Crampton v R (2000) 206 CLR 161, [57] citing Craig v The King (1933) 49 CLR 429, 442
(Starke J) (parties are usually bound by the grounds of appeal submitted to an appellate court, but
the Court may uphold an appeal on a ground for which leave had not been sought in the
intermediate court). The importance that the High Court attaches to the supervisory role of
Supreme Courts generally and the High Court is evidenced by its judgment in Kirk v Industrial
Court (NSW) (2010) 239 CLR 531 in which a majority of the Court concluded that state
parliaments could not remove the ability of state Supreme Courts to overturn decisions tainted by
jurisdictional error. This conclusion was justified on the basis of s 73 of the Commonwealth
Constitution (which provided a conduit for appeals to reach the High Court) as well as the
ineradicable constitutional character of a ‘Supreme Court of a State’. Ibid [98] (French CJ,
Gummow, Hayne, Crennan, Kiefel and Bell JJ). See also S Young and S Murray, ‘An Elegant
Convergence? The Constitutional Entrenchment of Jurisdictional Error Review in Australia’
(2011-2012) Winter Oxford University Commonwealth Law Journal [* ]. This article also
discusses in some detail the means by which the decision in Kirk can be traced to the High
Court’s decision in Kable.
From R G Fox and A Freiberg, Sentencing – State and Federal Law in Victoria (Oxford
University Press, 2nd ed, 1999), [1.226]; see also R Edney, ‘Hard Time, Less Time: Prison
Conditions and the Sentencing Process’ (2002) 26(3) Criminal Law Journal 139; R S French,
‘Executive Toys: Judges and Non-judicial Functions’ (2009) 19(1) Journal of Judicial
Administration 5.
See above n [26]; see also A Twomey, The Constitution of New South Wales (Federation Press,
2004), 747; G Taylor, The Constitution of Victoria, (Federation Press, 2006), 437ff.
Kable v Director of Public Prosecutions (1996) 189 CLR 51.
Ibid 114-6.
7
can legislate in a way that might undermine the role of those courts as repositories of
federal judicial power.
41
Kable has been considerably refined in a long line of cases, Following the decisions
in Fardon and Totani, the focus is now upon whether the impugned legislation
‘substantially impairs’ a state court’s ‘institutional integrity’ or ‘defining
characteristics as a court’ and is therefore ‘incompatible with its role as a repository
42
of federal jurisdiction’.
On the basis of the authorities, the following propositions appear to apply: state
legislation should not:
•
Confer on a state court a function which substantially impairs its institutional
43
integrity and its role as a repository of federal jurisdiction;
•
Impair the essential characteristics of a ‘court’ including the principle of open
justice and the reality and appearance of judicial independence and judicial
44
impartiality;
•
Undermine the provision of procedural fairness by a court so as to be
45
incompatible with the essential characteristics of a ‘court of a State’;
•
Abolish the role of state Supreme Courts or the ability of a state Supreme
46
Court to correct a decision tainted by jurisdictional error; and
•
Confer functions on a state judge persona designata which are incompatible
with the role of a ‘court of a State’ capable of exercising federal judicial
47
power.
Sovereignty of Parliament
The separation of powers principle is founded on the premise that there are proper and
identifiable spheres of power for each of the organs of government – parliament, the
48
49
courts and the executive. The concept of the sovereignty of parliament is key to
41
42
43
44
45
46
47
48
49
See South Australia v Totani (2010) 85 ALJR 19; K-Generation Pty Ltd v Liquor Licensing Court
(2009) 83 ALJR 327; Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234
CLR 532; Forge v Australian Securities and Investments Commission (2006) 228 CLR 45;
Fardon v Attorney-General for the State of Queensland (2004) 223 CLR 575; Baker v The Queen
(2004) 223 CLR 513, [82] (Kirby J); Silbert v Director of Public Prosecutions (WA) (2004) 217
CLR 181.
Fardon v Attorney-General for the State of Queensland (2004) 223 CLR 575, [15] (Gleeson CJ);
South Australia v Totani (2010) 85 ALJR 19, [69]-[70] (French CJ).
See, eg, International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240
CLR 319.
See, eg, South Australia v Totani (2010) 85 ALJR 19.
See, eg, International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240
CLR 319; Hogan v Hinch (2011) 85 ALJR 398, [46] (French CJ).
See, eg, Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531.
Wainohu v New South Wales (2011) 243 CLR 181.
See, eg, Hinds v The Queen [1977] AC 198, 225-226 (Lord Diplock).
See generally, J Goldsworthy, The Sovereignty of Parliament: History and Philosophy
(Clarendon Press, 1999); J Goldsworthy, Parliamentary Sovereignty: Contemporary Debates
(Cambridge University Press, 2010).
8
understanding the limits to challenges to sentencing laws. Though the sovereignty of
parliaments is defined or limited by their constitutions, in the absence of
constitutional restrictions parliaments may pass laws that limit the discretion of the
courts and that may in other ways appear to some as unduly restrictive, oppressive or
50
unfair. Hence, this may include parliaments passing such legislation on sentencing
matters as they wish, including laws to overturn a sentencing principle laid down by
51
the High Court. It is regarded as a serious step for a court to hold that legislation is
invalid, as Australia’s constitutional framework embodies the principle of
52
parliamentary democracy.
53
In Palling v Corfield Barwick CJ set this out clearly:
It is beyond question that the Parliament can prescribe such penalty as it thinks fit for
the offences which it creates. It may make the penalty absolute in the sense that there
is but one penalty which the court is empowered to impose and, in my opinion, it may
lay an unqualified duty on the court to impose that penalty. The exercise of the
judicial function is the act of imposing the penalty consequent upon conviction of the
offence which is essentially a judicial act. If the statute nominates the penalty and
imposes on the court a duty to impose it, no judicial power or function is invaded:
nor, in my opinion, is there any judicial power or discretion not to carry out the terms
of the statute.
Whether they like them or not, courts must apply the law as enacted by parliament.
One aspect of the confidence that the public may have in the integrity of the courts is
that they faithfully adhere to the laws enacted by parliament, whatever a judge’s
54
private views are. A pertinent example of this is mandatory sentencing legislation.
While such legislation might curtail judicial discretion in determining the sentencing
applicable to a particular crime, or impose a maximum or a minimum term, that loss
50
51
52
53
54
‘Unfairness’ is not a basis for a conclusion that legislation undermines the institutional integrity
of a court: Bakewell v The Queen (No 3) (2008) 22 NTLR 174; Nicholas v The Queen (1998) 193
CLR 173, [37] (Brennan CJ); Fardon v Attorney-General for the State of Queensland (2004) 223
CLR 575, [41] (McHugh J); Baker v The Queen (2004) 223 CLR 513, [87] (per Kirby J it is not
the province of the courts to invalidate laws simply because they are regarded ‘as bad, unjust, illadvised or offensive to notions of human rights’).
Tilley (1991) 53 A Crim R 180, 182 (King CJ).
Baker v The Queen (2004) 223 CLR 513, [87] (Kirby J).
(1970) 123 CLR 52, 58 (Barwick CJ); For a critique of Palling v Corfield see D Manderson and
N Sharp, ‘Mandatory Sentencing and the Constitution: Discretion, Responsibility and Judicial
Process’ (2000) 22(4) Sydney Law Review 585, 604 ff. See also R v Ironside (2009) 104 SASR
54, [71] (Doyle CJ).
Nicholas v The Queen (1998) 193 CLR 173, [37] (Brennan CJ); see also Fardon v AttorneyGeneral for the State of Queensland (2004) 223 CLR 575, [23] (Gleeson CJ) and Baker v The
Queen (2004) 223 CLR 513, [8] to the effect that the personal views of judges as to what was
appropriate were not relevant. On the relationship between courts and legislatures in respect of
‘unfair’ legislation, see A Freiberg, ‘Guerrillas in our Midst? - Judicial Responses to Governing
the Dangerous’ in M Brown and J Pratt (eds), Dangerous Offenders: Punishment and Social
Order (Routledge, 2000) 51; J Goldsworthy, Parliamentary Sovereignty – Contemporary Debates
(Cambridge University Press, 2010) 92; J Goldsworthy, J. ‘The Limits of Judicial Fidelity to
Law’ (2011) 24 Canadian Journal of Law and Jurisprudence 1.
9
55
of discretion alone is unlikely to make the legislation unconstitutional. Sir Anthony
56
Mason has explained that:
To deprive the courts of their entire sentencing discretion or part of it and compel
them to apply a fixed rule is not, according to the authorities discussed so far, a
departure from the general doctrine of the separation of powers. There are other
authorities which take a rather different approach. However, they deal with
constitutions which contain entrenched guarantees of fundamental rights. For that
reason they should be viewed with caution.
57
While Mason agrees that the retention of judicial sentencing discretion is desirable
he concludes that mandatory sentencing could only be unconstitutional if it was
possible to imply a constitutional judicial right to ‘conside[r] whether the sentence
58
mandated by the legislature should be imposed’. Consistently with this, in the cases
59
60
of Palling v Corfield and Wynbyne v Marshall constitutional challenges to federal
and territory mandatory sentencing legislation, respectively, have been rejected. In
Wynbyne, which concerned a defendant who was sentenced to 14 days mandatory
61
imprisonment for stealing a can of beer, Bailey J observed:
There is nothing…which suggests that merely because a court, having found the
appellant guilty of an offence, is mandated to record a conviction and impose a
minimum sentence of imprisonment, that [it] is an interference with the independence
of the judiciary. The amending Act is not ad hominem and applies equally to all
adults found guilty of certain defined property offences. Nor does the amending Act
direct the court to reach a finding of guilt. Guilt is proved in the usual way – by
admissible evidence led by the prosecution Only when guilt is thus established is a
62
court required to convict.
63
In some circumstances, there may be limits on the legislative triggers which an
enactment can impose as a precondition to sentencing. For example, in Palling,
64
Barwick CJ commented that:
55
56
57
58
59
60
61
62
63
A Mason, ‘Mandatory Sentencing: Implications for Judicial Independence’ (2001) 7(2)
Australian Journal of Human Rights 21; Cf G F K Santow, ‘Mandatory Sentencing: A Matter for
the High Court?’ (2000) 74 Australian Law Journal 298; D Manderson and N Sharp, ‘Mandatory
Sentencing and the Constitution: Discretion, Responsibility and Judicial Process’ (2000) 22(4)
Sydney Law Review 585; P Sallmann, ‘Mandatory Sentencing: A Bird’s-eye View’ (2005) 14
Journal of Judicial Administration 177, 183-184.
A Mason, ‘Mandatory Sentencing: Implications for Judicial Independence’ (2001) 7(2)
Australian Journal of Human Rights 21, 25-26.
citing Barwick CJ in Palling v Corfield (1970) 123 CLR 52, 58-59.
A Mason, ‘Mandatory Sentencing: Implications for Judicial Independence’ (2001) 7(2)
Australian Journal of Human Rights 21, 28.
(1970) 123 CLR 52.
(1997) 99 A Crim R 1.
Ibid 16.
A special leave application in Wynbyne to the High Court on the basis of Kable was subsequently
refused; transcript of Proceedings, Wynbyne v Marshall [1998] HCATrans 191 (21 May 1998).
Baker v The Queen (2004) 223 CLR 513, [43], [49] (McHugh, Gummow, Hayne and Heydon JJ)
where their honours said that ‘in general, the legislature can select whatever factum it wishes as
the “trigger” of a particular legislative consequence’; Fardon v Attorney-General for the State of
10
The fact that the happening of an event or the formation of the opinion is in reality
determinative of the penalty or imprisonment to be ordered does not make the
bringing about of the event or the formation or communication of the relevant
opinion by some persons or body other than a court an exercise of judicial power.
There may be limits to the choice of the Parliament in respect of such
contingencies…[emphasis added].
Arguably, such contingencies could not include a legislative assertion that a particular
aggravating or mitigating factor was satisfied when this would compromise the
judicial sentencing role. Kirby J, in dissent in Baker, referred to another example
where an earlier judicial determination [namely, the making of a “non-release
recommendation”] might later become a legislative trigger for quite a different
sentencing decision. His Honour’s concern was that the initial recommendation, when
made, ‘had no apparent legal effect when it was uttered’ but that parliament could
retrospectively alter its sentencing implications and by so doing ‘control the judicial
65
orders of contemporary judges’.
PART B
SENTENCING AND CHAPTER III
Section 71 of the Commonwealth Constitution vests ‘judicial power’ in the High
Court, federal courts as well as ‘in such courts as it invests with federal jurisdiction’,
namely state courts. Section 71 has been interpreted to mean that the Commonwealth
66
parliament cannot vest non-judicial functions in federal courts, unless those
functions are suitably incidental to the exercise of judicial power and that judicial
functions can only be exercised by such courts. This twin principle is typically
67
referred to as the rule in Boilermakers’. Further, Chapter III of the Commonwealth
Constitution contemplates federal judicial power being exercised only in relation to
68
‘matters’. This requires that there be a ‘justiciable controversy’ between the parties
69
and hence prevents the High Court from providing advisory opinions.
Queensland (2004) 223 CLR 575, [108] (Gummow J); South Australia v Totani (2010) 85 ALJR
19, [71] (French CJ), [137]-[138] (Gummow J).
64
65
66
67
68
69
Palling v Corfield (1970) 123 CLR 52, 59. See also International Finance Trust Co Ltd v New
South Wales Crime Commission (2009) 240 CLR 319, [49] (French CJ).
Baker v The Queen (2004) 223 CLR 513, [116].
R v Kirby: Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254, 278-279 (Dixon CJ,
McTiernan, Fullager and Kitto JJ).
R v Kirby: Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254; Attorney-General
(Cth) v R; Ex parte Australian Boilermakers’ Society (1957) 95 CLR 529.
Gould v Brown (1998) 193 CLR 346, [29] (Brennan CJ and Toohey J); Abebe v Commonwealth
(1999) 197 CLR 510, [140] (Gummow and Hayne JJ).
Re Judiciary and Navigation Acts (1921) 29 CLR 257. See also discussion below regarding
guideline judgments.
11
It has proven problematic to comprehensively define and delimit the scope of ‘judicial
70
power’. In Nicholas v The Queen Gaudron J stated:
The difficulties involved in defining “judicial power” are well known. In general
terms, however, it is that power which is brought to bear in making binding
determinations as to rights, liabilities, powers, duties or status put in issue in
justiciable controversies, and in making adjustment of rights and interests in
accordance with legal standards. It is a power which is exercised in accordance with
the judicial process and in that process, many specific and ancillary powers are also
exercised.
71
Sentencing under Commonwealth legislation is an essentially judicial function.
Further, the Boilermakers’ principle makes it clear that such functions can only be
conferred on a Chapter III court. As Brennan, Deane and Dawson JJ explained in Chu
72
Kheng Lim:
It would, for example, be beyond the legislative power of the Parliament to invest the
Executive with an arbitrary power to detain citizens in custody notwithstanding that
the power was conferred in terms which sought to divorce such detention in custody
from both punishment and criminal guilt. The reason why that is so is that, putting to
one side the exceptional cases to which reference is made below, the involuntary
detention of a citizen in custody by the State is penal or punitive in character and,
under our system of government, exists only as an incident of the exclusively judicial
function of adjudging and punishing criminal guilt.
Further in Re Tracey, Deane J made it clear that, subject to clear exceptions like
military tribunals or parliamentary punishment for contempt, the High Court would
‘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
73
punishment of a person charged with an offence’.
This means that any attempt to make sentencing under federal legislation anything
other than a curial function is likely to be readily impugned and would preclude a
74
punitive sentencing determination from being made by a vice-regal representative or
75
a Review Board, rather than the judiciary. Despite its severe restrictions, mandatory
sentencing remains a judicial function, for while legislation vests discretion in the
prosecutor as to whether to lay a charge or not, which then determines the punishment
70
71
72
73
74
75
Nicholas v The Queen (1998) 193 CLR 173, 207; see also Huddart Parker v Moorehead (1909) 8
CLR 330, 357 (Griffith CJ).
Waterside Workers’ Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434, 444
(Griffith CJ); Polyukhovich v The Commonwealth (1991) 172 CLR 501, 608-609 (Deane J); Chu
Kheng Lim v Minister for Immigration, Local Government & Ethnic Affairs (1992) 176 CLR 1,
27 (Brennan, Deane and Dawson JJ); Leeth v The Commonwealth 1992) 174 CLR 455, 470
(Mason CJ, Dawson and McHugh JJ).
Chu Kheng Lim v Minister for Immigration, Local Government & Ethnic Affairs (1992) 176 CLR
1, 27 (Brennan, Deane and Dawson JJ).
Re Tracey; Ex parte Ryan (1988) 166 CLR 518, 581. See also similar comments by the Privy
Council in Hinds v The Queen [1977] AC 198, 226 (Lord Diplock); Browne v The Queen [1999]
3 Weekly Law Reports 1158.
Browne v The Queen [1999] 3 Weekly Law Reports 1158.
Hinds v The Queen [1977] AC 198.
12
later to be applied by a court, it is the judiciary that still makes the final order, albeit
76
with little or no discretion.
Recent comments by the High Court suggest that state parliaments may be unable to
assign state sentencing decisions to the state executive arm. While McHugh J
indicated in obiter dicta in Fardon that state parliaments would not be constitutionally
thwarted from ‘empower[ing] non-judicial tribunals to determine issues of criminal
77
guilt or…sentence[ing] offenders for breaches of the law’, this statement is now
78
79
80
constitutionally questionable. In Totani French CJ and Gummow J disagreed with
Western Australia’s submissions that the state Attorney-General or executive would
be able to make a control order rather than a state court as it involved a special
81
function of a criminal nature.
Constitutional difficulties will also arise with federal or state sentencing legislation
82
which usurps the judicial sentencing function. Although rare, the most obvious
example of this is a bill of attainder or a bill of pains and penalties which impose
varying punishment of varying severity ‘on a specified person or persons or a class of
83
persons without the safeguards of a judicial trial’. In Leeth v Commonwealth
84
Mason CJ and Dawson and McHugh JJ said:
…legislation may amount to a usurpation of judicial power, particularly in a criminal
case, if it pre-judges an issue with respect to a particular individual and requires a
court to exercise its function accordingly. It is upon this principle that bills of
attainder may offend against the separation of judicial power. 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.
85
Kable provides a usurpation example in the sentencing context because the
Community Protection Act 1994 (NSW), in applying exclusively to Gregory Wayne
76
77
78
79
80
81
82
83
84
85
Palling v Corfield (1970) 123 CLR 52, 56, 59 (Barwick CJ). For a discussion of this discretion
see: M Flynn, ‘Fixing a Sentence: Are There any Constitutional Limits?’ (1999) 22 University of
New South Wales Law Journal 280; K Knapp, ‘Discretion in Sentencing’ in I Potas (ed),
Sentencing in Australia – Issues, Policy and Reform, (Proceedings of a Seminar ‘Sentencing:
Problems and Prospects’, Australian Institute of Criminology, Canberra, 18-21 March 1986)
(1987) 89, 95; G F K Santow, ‘Mandatory Sentencing: A Matter for the High Court?’ (2000) 74
Australian Law Journal 298, 300.
Fardon v Attorney-General for the State of Queensland (2004) 223 CLR 575, [40].
South Australia v Totani (2010) 85 ALJR 19.
Ibid [76], [82].
Ibid [146]-[147].
See Leslie Zines, ‘Recent Developments in Chapter III: Kirk v Industrial Relations Commission
of New South Wales & South Australia v Totani’ (CCCS/AACL Seminar, Melbourne Law
School, Melbourne, 26 November 2010) (with commentary by Kristen Walker).
See, eg, Liyanage v The Queen [1967] 1 AC 259, 289-290 (Lord Pearce); Nicholas v The Queen
(1998) 193 CLR 173, [146] (Gummow J), [24] (Brennan CJ), [74] (Gaudron J).
Polyukhovich v The Commonwealth (1991) 172 CLR 501, 685 (Toohey J). See also International
Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319, [167]
(Heydon J).
Leeth v The Commonwealth 1992) 174 CLR 455, 469-470.
Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51.
13
86
Kable, was not a law of general application The majority held that the Act made a
87
‘mockery’ of the ‘judicial process’ in converting the Supreme Court of New South
88
Wales into an ‘instrument of a legislative plan’, thus impairing public confidence in
89
the impartial administration of judicial functions.
As state courts are typically called upon to exercise federal sentencing legislation as
well as state sentencing provisions there are two constitutional principles that are
relevant. Firstly, that Commonwealth sentencing legislation conferred on state courts
90
should be vested consistently with s 71 of the Commonwealth Constitution.
Secondly, that state legislation can be invalidated pursuant to the doctrine in Kable if
it vests functions in state courts that incompatible with the constitutional role
contemplated for them by Chapter III of the Commonwealth Constitution.
The nature and limits of Chapter III have been explored by the courts in relation to a
number of sentencing contexts.
Guideline judgments
The separation of powers principle requires that parliaments legislate and that the
courts exercise the judicial power. However, the line is not always clear. One of the
roles of appellate courts is to identify and formulate general principles that are
‘ancillary to the disposal of the particular case before the court’ and for this purpose
91
they may need to go beyond what is strictly required for determining that dispute.
Accordingly, in relation to sentencing, a number of jurisdictions have legislated to
empower the courts to develop guideline judgments which are judgments of a court of
appeal which go beyond the facts of the particular case before the court to deal with
92
variations of the offence and suggest types or levels of sentence appropriate to them.
86
87
88
89
90
91
92
It was modelled on the Community Protection Act 1990 (Vic), since repealed.
Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51, 108 (Gaudron J).
Ibid 122 (McHugh J).
Ibid 107 (Gaudron J), 124 (McHugh J), 133 (Gummow J). See also observations of Doyle CJ in R
v England (2004) 89 SASR 316, [48]ff; R Fox and A Freiberg, Sentencing – State and Federal
Law in Victoria (Oxford University Press, 2nd ed, 1999), [1.228].
Queen Victoria Memorial Hospital v Thornton (1953) 87 CLR 144, 151-152 (the Court);
Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51, 115 (McHugh J); Director of
Public Prosecutions v Kamal [2011] WASCA 55 (15 March 2011); See also J Stellios,
‘Reconceiving the Separation of Judicial Power’ (2011) 22 Public Law Review 113, 125-126.
See discussion of this issue in A Freiberg and P Sallmann, ‘Courts of Appeal and Sentencing:
Principles, Policy and Politics’ (2008) 26(1) Law in Context 43-74; Wong v The Queen (2001)
207 CLR 584, [146] (Kirby J).
Other kinds of guideline judgment can set out general sentencing levels for different classes and
types of offences; see eg Sentencing Act 1991 (Vic) s 6AA; Sentencing Act 1995 (WA) s 143;
Criminal Law (Sentencing Act) 1988 (SA) s 29A; Crimes (Sentencing Procedure) Act 1999,
(NSW) s 36-42A. Between 1998 and 2007 the New South Wales Court handed down seven
formal guideline judgments in relation to a range of offences. In Australia, sentencing guidelines
are promulgated by Courts of Appeal rather than by sentencing commissions or councils,
although Councils may assist the Courts in developing a guideline. In the United States it has
been held that giving a commission the power to make sentencing rules does not undermine the
judiciary’s independence and integrity, nor does it require judges to share their rule making
powers with non-judicial officers: United States v Addonizio 442 US 178 (1979); Mistretta v
United States 488 US 361 (1989).
14
The handing down of guideline judgments has been impugned on the ground, inter
alia, that the promulgation of such judgments is an act of a legislative character and
93
therefore inconsistent with the exercise of federal judicial power. In Wong, it was
94
argued that a guideline judgment is quasi-legislative because:
it amounted to the establishment of a new legal norm, having a legal effect wider than
was necessary to determine only the controversy before the court, expressed in
language which was prescriptive and prospective for all current and future cases and,
moreover, with an effect that would bind persons who had been afforded no
opportunity to make submissions relevant to the new norm.
Gaudron, Gummow and Hayne JJ considered that a guideline which identifies a range
of results rather than a process of reasoning, passes from being a decision settling a
matter before the court to a ‘decision creating a new charter by reference to which
further questions are to be decided’, and thus passes from the judicial to the
95
legislative. Further, their Honours noted that the distinction between the judicial and
96
legislative functions is that:
between a court articulating the principles which do, or should, underpin the
determination of a particular sentence and the publication of the expected or intended
results of future cases. Articulation of applicable principle is central to the reasoned
exercise of jurisdiction in the particular matters before the court. By contrast, the
publication of expected or intended results of future cases is not within the
jurisdiction or the powers of the court.
Because a guideline judgment, where it relates to tariffs or numerical guidelines, is
prospective and produces no order or declaration, it has been held as well that it is not
strictly a ‘matter’ which is subject to appellate review by the High Court and therefore
a state appellate court hearing a federal case has ‘neither jurisdiction or power to
97
prescribe what sentences should be passed in future matters’. Kirby J was more
cautious about denouncing guideline judgments but argued that their constitutional
acceptability would depend on their precise formulation and whether they were only
98
designed as a ‘sounding board’. He indicated that there is a risk that binding
guidelines might resolve ‘matters’ well in excess of those calling for resolution by the
99
court and hence be invalid. However, it remains open for determination whether
certain forms of guidelines could be valid, albeit outside the High Court’s appellate
100
jurisdiction in s 73, if they contained no federal element. In Whyte, Spigelman CJ
distinguished the types of guideline judgment delivered from those criticized in the
93
94
95
96
97
98
99
100
Whyte (2002) 134 A Crim R 53, [117] (Spigelman CJ).
Wong v The Queen (2001) 207 CLR 584, [142] (Kirby J).
Ibid [79].
Ibid [83] (Gaudron, Gummow and Hayne JJ).
Ibid [39] per Gaudron, Gummow and Hayne JJ. Kirby J (at [145]) did not consider it necessary to
determine what amounts to a ‘matter’ for the purposes of this case.
Ibid [144], [147]. See also R v Mas Rivadavia (2004) 149 A Crim R 1, [65]-[67] (Wood CJ,
Adams J and Smart JA agreeing).
Wong v The Queen (2001) 207 CLR 584, [147].
Mobil Oil Australia Pty Ltd v Victoria (2002) 211 CLR 1, [63] (Gaudron, Gummow and Hayne
JJ); Momcilovic v The Queen [2011] HCA 34 (8 September 2011), [101] (French CJ).
15
majority judgments in Wong and suggested that certain forms of guideline judgment
101
could be valid if they contained no federal dimension.
Sentence indication
Sentence indication is a mechanism by which a judicial officer can provide a
defendant with an indication of the likely sentence before they decide whether to
102
plead guilty or defend the charges. Though this procedure has been criticized on a
103
number of grounds relating to the undue pressure that it might place on defendants
it has not been directly challenged on constitutional grounds.
104
In its most recent report on sentencing, the Australian Law Reform Commission
queried whether the giving of a sentence indication involved the exercise of federal
judicial power. It argued that while the imposition of a sentence was clearly an
exercise of judicial power, a sentence indication, because it did not determine the
rights of parties, might not be judicial. However, it concluded that a Chapter III court
could, consistently with the Boilermakers’ principle, exercise a non-judicial power
105
where that power was incidental to the exercise of judicial power.
Judicial power and equality
While the High Court has not unanimously accepted a substantive constitutional right
to equality under legislation it has indicated that it is ‘desirable that, in the sentencing
of offenders, like offenders, should be treated in a like manner’ while acknowledging
106
that ‘such a principle cannot be expressed in absolute terms’. Consistency in
101
102
103
104
105
106
See Whyte (2002) 134 A Crim R 53, [125] (Spigelman CJ) referring to guideline judgments in R v
Jurisic (1998) 101 A Crim R 259 and R v Henry (1999) 106 A Crim R 149.; see also Re AttorneyGeneral's Application [No 1]: R v Ponfield (1999) 48 NSWLR 327. However, the combined
effect of the High Court’s decisions in Wong v The Queen (2001) 207 CLR 584, and Markarian v
The Queen (2005) 228 CLR 357 and Australian appellate courts’ general antipathy to guideline
judgments that involve some degree of numerical guidance, has meant that no more judgments
have been handed down in New South Wales or elsewhere. In the United States the Supreme
Court has held that delegating the power to promulgate sentencing guidelines, in effect, the
making of sentencing policy, to an independent agency within the judicial branch did not amount
to the exercise of legislative authority: Mistretta v United States 488 US 361 (1989). See also J
Stellios, ‘Reconceiving the Separation of Judicial Power’ (2011) 22 Public Law Review 113, 126.
Eg Criminal Procedure Act 2009 (Vic) s 60; Sentencing Advisory Council (Victoria), Sentence
Indication and Specified Sentence Discounts: Final Report (Sentencing Advisory Council, 2007)
73.
A Flynn, ‘Sentence Indications for Indictable Offences: Increasing Court Efficiency at the
Expense of Justice?: A Response to the Victorian Legislation’ (2009) 42(2) Australian and New
Zealand Journal of Criminology 244.
Australian Law Reform Commission, Same Crime, Same Time: Report Sentencing of Federal
Offenders, Report No. 103 (2006) [15.11].
Ibid [15.13]-[15.21].
Leeth v The Commonwealth (2002) 209 CLR 339, 470 (Mason CJ, Dawson, McHugh JJ). Cf
minority views at 486-487 (Deane and Toohey JJ), 499-502 (Gaudron J); See also Putland v The
Queen (2004) 218 CLR 174, [59] (Gummow and Heydon JJ); Kruger v The Commonwealth
(1997) 190 CLR 1; Cameron v The Queen (2002) 209 CLR 339, [44] (McHugh J, in dissent); R v
Ironside (2009) 104 SASR 54, [94] (Doyle CJ), [139]ff (Gray J). The requirement of equality
before the courts is provided for in the International Covenant on Civil and Political Rights
(ICCPR), art 14.1; see also Muir v R (2004) 78 ALJR 780 (Kirby J); see also Charter of Human
Rights and Responsibilities Act 2006 (Vic), s 8; Human Rights Act 2004 (ACT) s 8. In the United
16
punishment, which is regarded as a ‘reflection of the notion of equal justice’ is
regarded as a ‘fundamental element in any rational and fair system of criminal
107
justice’. The constitutional implications of equality in the sentencing context has
been explored in two contexts: disparity between individual offenders and disparity
between jurisdictions.
Disparity between offenders
108
Equality requires comparison between cases that are relevantly identical or similar.
Every day, submissions are made to the courts with regard to parity or disparity of
sentences, based on this principle. The courts have recognized that where there are
relevant differences between offenders, such as those based on age, prior convictions,
culpability, prospects of rehabilitation and the like, sentencing outcomes may
legitimately differ. Thus, different cases should be treated differently and equals
should not be treated unequally.
109
In Ironside, it was argued that the Criminal Law (Sentencing) Act 1988 (SA), in
providing a discount for a plea of guilty, was discriminatory and constitutionally
invalid because it unfairly punished a person who exercised their right to plead not
guilty and to be tried. It was argued that the court could not be the ‘vehicle by which
110
111
the person could’ be ‘treated unequally’. The argument was rejected by the Court
on the basis that there were valid and appropriate public policy grounds for
differentiating between offenders who pleaded guilty and those who did not, namely
112
the facilitation of the course of justice.
Disparity between jurisdictions
Since federation there has been a tension between two alternative methods of dealing
with federal offenders. One option is to treat all federal offenders equally throughout
the Commonwealth, relying on the state criminal justice systems to administer federal
laws under the autochthonous expedient of s 77(iii) of the Commonwealth
Constitution. The other is to allow state courts administering federal laws to apply the
laws of the state in which they are sitting unless a valid federal law authorizes a
113
relevant difference. In either case, a disparity will be created between state and
States it has been held that the Constitution prohibits courts from considering factors that could
lead to unwarranted discrimination, eg race, national origin or gender. These prohibitions are
based on the Due Process Clause or the Equal Protection Clause: see C B Hessick and F A
Hessick, ‘Recognizing Constitutional Rights at Sentencing’ (2011) 99 California Law Review 47,
55.
107
108
109
110
111
112
113
Lowe v The Queen (1984) 154 CLR 606, 610 (Mason J).
Wong v The Queen (2001) 207 CLR 584, [65] (Gaudron, Gummow and Hayne JJ).
(2009) 104 SASR 54.
Ibid [61] (Doyle CJ). Under the relevant South Australian legislation, a person who pleaded guilty
would not be the subject of the application of a mandatory non-parole period.
Ibid [85]-[86] (Doyle CJ), [155] (Gray J), [176]-[177] (Kourakis J).
Cameron v The Queen (2002) 209 CLR 339, [14]-[15].
Commonwealth Constitution, s 77(iii); Judiciary Act 1903 (Cth) ss 39(2) and ss 68(1), (2), 79, 80;
see Graeme Hill, ‘“Picking up” State and Territory Laws Under s 79 of the Judiciary Act – Three
Questions’ (2005) 27 Australian Bar Review 25. There are separate provisions relating to the
application of state law in Commonwealth places within a state: Commonwealth Places
(Application of Laws) Act 1970 (Cth).
17
federal offenders: in the first because state and federal laws will differ and in the
second because state laws differ between themselves.
114
In Leeth the High Court held that it was not discriminatory or unconstitutional to
treat federal offenders differently depending upon which jurisdiction they were tried,
115
even it if resulted in different outcomes.
The principle of equality has also been argued to apply in relation to the limitation of
the right of an applicant for leave to appeal to a court to appear before the court where
116
that limitation exists in one jurisdiction but not another. In Muir, this argument was
unsuccessful, but in dissent, Kirby J was of the view that the refusal of the New South
Wales correctional authorities to permit an applicant to appear by video link was
unequal and discriminatory and ‘contrary to Ch III of the Commonwealth Constitution
and also to the statutory implication of equal treatment of parties before this Court
117
contained in the Judiciary Act 1903 (Cth), ss 35(2) and 35AA(2)’.
The Kable Principle
118
119
Kable’s case has been much invoked, plentifully analysed but, until recently, little
applied. As discussed above, the principle derives from the Chapter III implication
that state courts’ institutional integrity must remain intact so that they can continue to
be vested with federal judicial power under s 77(iii) of the Commonwealth
Constitution. The Kable principle has been invoked in the following sentencing
contexts to challenge state legislation.
Indefinite sentences
An indefinite sentence is one imposed at the time of sentencing for an offence and is
120
part of that sentence, though there are distinctive criteria for its imposition. These
114
115
116
117
118
119
120
Leeth v The Commonwealth (1992) 174 CLR 455; see also R v Gee (2003) 77 ALJR 812; Putland
(2004) 218 CLR 174.
Cf with the views of the ALRC in its reports of 1988: Australian Law Reform Commission,
Sentencing, Report No. 44 (1988), [26], [32]-[34], [155], [156]-[157] and Australian Law Reform
Commission, Same Crime, Same Time: Report Sentencing of Federal Offenders, Report No. 103
(2006) [3.29] and observations of Basten JA in DPP (Cth) v De La Rosa (2010) 205 A Crim R 1,
[117]ff.
(2004) 78 ALJR 780.
Ibid [28].
See, eg, F Wheeler, ‘The Kable Doctrine and State Legislative Power Over State Courts’ (2005)
20(2) Australasian Parliamentary Review 15; D Meagher, ‘The Status of the Kable Principle in
Australian Constitutional Law’ (2005) 16 Public Law Review 173; HP Lee ‘The Kable Case: A
Guard-Dog that Barked But Once?’ in George Winterton (ed), State Constitutional Landmarks
(2006) 390-415; B Gogarty and B Bartl, ‘Tying Kable Down: The Uncertainty about the
Independence and Impartiality of State Courts following Kable v DPP (NSW) and Why it
Matters’ (2009) 32(1) University of New South Wales Law Journal 75.
See, eg, International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240
CLR 319; South Australia v Totani (2010) 85 ALJR 19; Wainohu v New South Wales (2011) 85
ALJR 746.
Eg Sentencing Act 1997 (Tas) s 19; Penalties and Sentences Act 1992 (Qld) s 163; Sentencing Act
1995 (WA) s 98; Criminal Law (Sentencing) Act 1988 (SA) s 23; Sentencing Act 1995 (NT) s 65;
McGarry v Western Australia (2005) 32 WAR 69, [21] (Wheeler JA).
18
121
sentences have come under repeated attack on Kable grounds. In Moffatt the
provisions were challenged on the grounds that parts of the legislation ‘were so alien
to the court’s traditional sentencing role that the exercise of the sentencing power
would bring the court into disrepute’, namely because (a) the form of punishment was
so extreme as to breach the fundamental sentencing principle of proportionality; (b) it
assigned to the courts a non-judicial function of administering the sentence through a
process of periodical review; and (c) the obscure wording of the legislation made it
capable of being applied to impose an indefinite sentence in too wide a range of
circumstances. All of these grounds have been rejected in this case and in others as
122
not breaching any constitutional provisions.
123
Another ground of attack against such sentences is that some of the criteria are
insufficiently precise and therefore not capable of application by a court. However, it
124
has been held that that these concepts are not so vague as to be non-justiciable.
In jurisdictions where the decision whether or not to release an offender lies with the
Executive, it has been held that this does not directly or indirectly impugn the
125
institutional integrity of the courts. It may, in fact, be considered to be congruent
with the Executive function to decide whether it is appropriate to release an offender
into the community and the fact that the Executive may make its decision on
126
‘political’ grounds does not render the law constitutionally invalid.
Dangerous offender laws
Laws that permit the supervision or detention of a person following the expiration of
their sentence on the basis that they present an unacceptable risk to the community are
127
now in operation in all Australian jurisdictions. The objects of such legislation are
128
said to be to protect the community not to punish the offender.
129
These provisions have been impugned on Kable grounds similar to those discussed
130
above but were upheld in Fardon by a majority of the High Court which
121
122
123
124
125
126
127
128
129
Moffatt (1997) 91 A Crim R 557.
R v England (2004) 89 SASR 316.
Eg ‘unacceptable risk’.
Fardon v Attorney-General for the State of Queensland (2004) 223 CLR 575; McGarry v The
Queen (2001) 207 CLR 121, [20] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).
McGarry v Western Australia (2005) 31 WAR 69, [31]-[40] (Wheeler JA); see also R Lindsay,
(2009) ‘Punishment Without Finality: One Year in the Life and Death of Alan Egan’ (2009) 33
Criminal Law Journal 45.
McGarry v Western Australia (2005) 31 WAR 69, [37] (Wheeler JA).
Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld); Serious Sex Offenders (Detention and
Supervision) Act 2009 (Vic), Dangerous Sexual Offenders Act 2006 (WA); and Crimes (Serious
Sex Offenders) Act 2006 (NSW); Criminal Law (Sentencing Act) 1988 (SA) s 23; R v England
(2004) 89 SASR 316; see also Veen v The Queen (No 2) (1988) 164 CLR 465, 495; Chester v The
Queen (1988) 165 CLR 611, 617-619.
Fardon v Attorney-General for the State of Queensland (2004) 223 CLR 575, [34] (McHugh J).
The grounds that were submitted and rejected in Fardon were that the provisions purported to
authorise the court to order the civil commitment of a person to prison; that to order the detention
of a person in prison on the basis that they are at risk of offending in the future in the absence of
conviction of a crime, and to order the imprisonment of a person in circumstances that did not
19
distinguished Kable on the basis that the latter legislation was ad hominem whereas
the Queensland legislation was directed at a class of offenders. It also ruled that the
imposition of non-punitive, involuntary detention for the protection of the community
was not incompatible with the exercise of judicial power. It mattered not that the
offender was not convicted of a further offence, nor that he was not mentally ill
(which may have justified a civil detention power), nor that the legislation operated
131
retrospectively.
Mandatory or presumptive sentencing
For many reasons, legislatures have introduced provisions that severely restrict or
132
remove completely the discretion of the courts in imposing sentence. Over recent
years, legislatures have also created an increasing number of provisions that create
presumptive minimum terms or mandate the relationship between head sentences and
non-parole periods in order to ensure that offenders serve a longer period of time in
133
custody than the courts might otherwise have required.
Mandatory and presumptive sentences have been impugned on numerous
134
135
constitutional grounds including that they may usurp an essential judicial function
require the application of established principles relating to civil commitment for mental illness
and to order the punishment of a class of persons selected by the legislature required a court to act
in a manner inconsistent with the essential character of a court and inconsistent with the nature of
judicial power. It was also argued that the legislation subjected the prisoner to double
punishment: see P Keyzer, C Pereira and S Southwood, ‘Pre-emptive Imprisonment for
Dangerousness in Queensland under the Dangerous Prisoners (Sexual Offenders) Act 2003: The
Constitutional Issues’ (2004) 11(2) Psychiatry, Psychology and Law 244, 246-7.
130
131
132
133
134
Fardon’s case was also the subject of a petition to the Human Rights Committee of the United
Nations pursuant to the First Optional Protocol to the International Convention on Civil and
Political Rights (‘the ICCPR’) on the ground that the Queensland legislation was in breach of
human rights. In March 2010, Human Rights Committee held that the power to detain offenders
in prison post-sentence circumstances breached Article 9 of the ICCPR which states that
‘everyone has the right to liberty and security of the person. No one shall be subjected to arbitrary
arrest or detention…’; see P Keyzer, ‘The “Preventive Detention” of Serious Sex Offenders:
Further Consideration of the International Human Rights Dimensions’ (2009) 16(1) Psychiatry,
Psychology and Law 1; I Freckelton and P Keyzer, ‘Indefinite Detention of Sex Offenders and
Human Rights: The Intervention of the Human Rights Committee of the United Nations’ (2010)
17(3) Psychiatry, Psychology and Law 345; P Keyzer, ‘The United Nations Human Rights
Committee’s Views About the Legitimate Parameters of the Preventive Detention of Serious Sex
Offenders’ (2010) 34(5) Criminal Law Journal 283.
In the United States, such laws have been challenged, infrequently and unsuccessfully, on due
process grounds: see C B Hessick and F A Hessick, ‘Recognizing Constitutional Rights at
Sentencing’ (2011) 99 California Law Review 47, 71-73.
See generally A Hoel and K Gelb, Mandatory Sentencing Information Paper (Sentencing
Advisory Council, 2008).
See eg Criminal Law (Sentencing) Act 1988 (SA) s 32(5)(ba) fixing a non-parole period in respect
of imprisonment for a serious offence against the person of fourth-fifths the length of the sentence
unless ‘special reasons’ exist (eg guilty plea); see also Sentencing (Crime of Murder) and Parole
Reform Act Amendment Act 2008 (NT) fixing a longer non-parole period for one offender
following a Court of Appeal decision: see Bakewell v The Queen (No 3) (2008) 22 NTLR 174;
Bakewell v The Queen [No 2] (2008) 22 NTLR 164. Mahmud v The Queen; Muldrock v The
Queen [2011] HCATrans 147 (8 June 2011) (Unsuccessful challenge to standard non-parole
periods in NSW on Kable grounds; but successful on other grounds: see Muldrock v The Queen
[2011] HCA 39).
See M Flynn, ‘Fixing a Sentence: Are There any Constitutional Limits?’ (1999) 22 UNSWLJ 280;
20
of sentencing and may impair public confidence in the courts’ integrity and
136
independence from the executive or deny offenders equal justice. No challenge to
137
138
these laws on these grounds has yet been successful. In R v Ironside the Court of
Criminal Appeal of South Australia rejected an argument that severely restricting a
court’s discretion by way of presumptive non-parole periods was ‘foreign or
inimicable to the exercise of judicial power’ or that the task of sentencing under such
139
circumstances was not appropriate for a court.
Parole
Parole is a form of conditional release of offenders who have been sentenced to
custodial terms. Though eligibility for release is usually determined by a court, or, in
some jurisdictions by legislation, in most jurisdictions release is not automatic but
decided by a Parole Board, which is not usually bound by the requirements of natural
justice.
For federal legislation, and potentially some state legislation, there could be a
constitutional obstacle if executive functions, such as the decision when to release an
140
offender, or the function of providing treatment under an order were conferred on a
court.
Pursuant to s 71 of the Commonwealth Constitution, it would be in breach of the
Boilermakers’ principle for a federal enactment to confer a non-judicial function on a
141
state court unless this was suitably incidental to the exercise of a judicial function.
This would mean that the conferral on a state judge of the power to determine when a
federal offender should be released on parole could be challenged as unconstitutional.
State legislation is likely to be more difficult to challenge under this ground. The High
Court has consistently indicated that the absence of a formal separation of powers at
142
the state level means that state judges are able to undertake non-judicial activities.
G F K Santow, ‘Mandatory Sentencing: A Matter for the High Court?’ (2000) 74(5) Australian
Law Journal 298; D Manderson and N Sharp, ‘Mandatory Sentencing and the Constitution:
Discretion, Responsibility and Judicial Process’ (2000) 22(4) Sydney Law Review 585.
135
136
137
138
139
140
141
142
On the distinction between ‘usurpation’ and ‘interference’ see D Manderson and N Sharp,
‘Mandatory Sentencing and the Constitution: Discretion, Responsibility and Judicial Process’
(2000) 22(4) Sydney Law Review 585, 596 and Nicholas v The Queen (1998) 193 CLR 173, 220
(McHugh J).
Eg where it can be demonstrated that such laws affect particular groups in the community
differently.
They have also been challenged on grounds that they breach international conventions such as the
Convention on the Rights of the Child.
(2009) 104 SASR 54..
Ibid [72].
McGarry v Western Australia (2005) 32 WAR 69, [34], [36] (Wheeler JA).
R v Kirby: Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254, 270 (Dixon CJ,
McTiernan, Fullager and Kitto JJ); Queen Victoria Memorial Hospital v Thornton (1953) 87 CLR
144, 151-152 (the Court); See also See N Morgan, ‘Mandatory Sentences in Australia: Where
Have We Been and Where are We Going?’ (2000) 24 Criminal Law Journal 164, 180.
See, eg, K-Generation Pty Limited v Liquor Licensing Court (2009) 237 CLR 501, [153]
(Gummow, Hayne, Heydon, Crennan and Kiefel JJ); Momcilovic v The Queen [2011] HCA 34 (8
September 2011) [92]-[93] (French CJ).
21
For instance, this means that the rehabilitative role conferred on state drug court
judges is unlikely to interfere with the institutional integrity of the ‘court of a State’
unless judicial independence, impartiality or other essential curial attributes are in
turn compromised.
Parole Boards are usually chaired by a serving judicial officer. In Kotzmann v Adult
143
Parole Board of Victoria the plaintiff unsuccessfully argued that the provisions of
the Corrections Act 1986 (Vic), which required the appointment of a judge of the
Supreme Court of Victoria to the role of Chairperson of the Parole Board, was an
impermissible attempt to confer administrative functions on a court which exercised
Commonwealth jurisdiction, so as to offend against Chapter III of the Commonwealth
Constitution. Justice Judd held that although the Supreme Court of Victoria was a
Chapter III court, the provisions of the Corrections Act 1986 (Vic) did not
impermissibly confer non-judicial powers on the Supreme Court because it did not
144
give the appearance that the court was not independent of executive government.
The appointment of a judge to the Parole Board was not incompatible with judicial
145
office.
It is well established in the federal sphere that executive functions conferred on a
judge persona designata can be challenged if they are incompatible with the judge’s
146
role as a member of a Chapter III court. In Wainohu a majority of the High Court
struck down provisions of the Crimes (Criminal Organisations Control) Act 2009
(NSW) for conferring incompatible functions on Supreme Court judges. This finding
was based on the fact that the Supreme Court judge, acting in a personal capacity, was
not required to give reasons for their non-judicial determinations about ‘declared
organisations’ and this determination was ‘closely connected’ with the Supreme
147
Court’s control order functions.
Wainohu has opened up the possibility that sentencing-related decisions made by state
judges acting in a personal capacity, such as on administrative bodies including parole
boards, might be more readily challenged. While such an attempt was unsuccessful in
148
Kotzmann v Adult Parole Board of Victoria, Wainohu demonstrated that the
administrative functions that were conferred were incompatible with the Supreme
143
144
145
146
147
148
[2008] 221 FLR 134.
See also Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1;
Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; Hussain v Minister for
Foreign Affairs (2008) 169 FCR 241.
Cf Grollo v Palmer (1995) 184 CLR 348; Wilson v Minister for Aboriginal and Torres Strait
Islander Affairs (1996) 189 CLR 1. ‘Incompatibility’ might exist where ‘the performance of nonjudicial functions of such a nature that public confidence in the integrity of the judiciary as an
institution or in the capacity of the individual judge to perform his or her judicial functions with
integrity is diminished’ or where ‘a discretion is to be exercised by a judge on political grounds,
that is, grounds that are not confined by factors expressly or impliedly prescribed by law’: see
Kotzmann [2008] 221 FLR 134, [43] citing Hussain v Minister for Foreign Affairs (2008) 169
FCR 241.
Grollo v Palmer (1995) 184 CLR 348; Wilson v Minister for Aboriginal and Torres Strait
Islander Affairs (1996) 189 CLR 1.
Wainohu v New South Wales (2011) 243 CLR 181, [47] (French CJ and Kiefel J), [105]
(Gummow, Hayne, Crennan and Bell JJ).
[2008] 221 FLR 134.
22
Court’s institutional integrity as they were connected with the Court’s judicial
149
functions and were made in an ‘inscrutable’ fashion without a requirement to give
150
reasons. The majority confirmed that the incompatibility principle applied in federal
151
152
persona designata settings like Grollo and Wilson were applicable in the Kable
context so as to make an Act ‘repugnan[t] to or incompatibl[e] with the institutional
153
integrity of the Supreme Court’.
In Kotzmann, the single judge, while ultimately rejecting the defendant’s submissions,
acknowledged that the parole board did not have to comply with procedural fairness
and that ‘the legislation ha[d] the potential to make the Board an instrument of the
154
executive’. Clearly, the particular legislative context will determine whether a judge
assigned to a parole board as an individual is undertaking an incompatible function.
However, the frequent absence of an obligation on such boards to comply with
155
156
procedural fairness is likely to be a starting point for such a challenge. Further,
157
following from Wainohu, the absence of reasons for a decision could taint the
board’s decision making processes, as well as render ‘inscrutable’ the final parole
158
determination.
Abolition of sentencing double jeopardy
In response to perceived public concern about apparently lenient sentences, many
jurisdictions have abolished what was colloquially known as the ‘double jeopardy’
159
rule, under which an appellate court could impose a lower sentence than would
have been appropriate at first instance following a successful Crown appeal.
149
150
151
152
153
154
155
156
157
158
159
Wainohu v New South Wales (2011) 243 CLR 181, [66] (French CJ and Kiefel J).
Ibid [109] (Gummow, Hayne, Crennan and Bell JJ).
Grollo v Palmer (1995) 184 CLR 348.
Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1.
Ibid [107].
[2008] 221 FLR 134, [46] (Judd J).
See, eg, Sentence Administration Act 2003 (WA) s 115(c). See generally, B Naylor and J
Schmidt, ‘Do Prisoners Have a Right to Fairness Before the Parole Board’ (2010) 32 Sydney Law
Review 437, 454. The authors point out that in Victoria formal rights of appeal are also excluded
(at 467-468) and that in some jurisdictions there is no obligation for a Board’s decision to be
given to the defendant or the kind of determination for which they are required to be given is
limited (at 466). An express exemption of the Victorian Parole Board from the scope of the
Charter of Human Rights and Responsibilities Act 2006 (Vic) explains how rights such as
procedural fairness have been excluded (at 457).
The comment by the Federal Court in Hussain v Minister for Foreign Affairs (2008) 169 FCR
241, [146] that the absence of procedural fairness is not itself sufficient needs to be read in light
of the national security context in which the case was decided.
Wainohu v New South Wales (2011) 243 CLR 181.
In Wainohu both the joint judgment of Gummow, Hayne, Crennan and Bell JJ and that of French
CJ and Kiefel J noted that the absence of reasons by the personae designatae ‘ma[de] more
difficult’ (at [109]) or ‘significantly narrowed’ (at [69]) the pathway to Supreme Court
prerogative relief because of the ‘opaque’ nature of the decision to be reviewed. While to some
extent these statements were incidental, they do highlight the potential for an absence of reasons
to compromise the constitutional guarantee of Supreme Court review for jurisdictional error.
Eg Criminal Procedure Act 2009 (Vic) ss 289(2) and 290(3).
23
160
In R v Carroll it was argued that these provisions amounted to an impermissible
interference with the judicial power because they directed the Court how to exercise
its judicial power and therefore deprived it of the necessary quality of impartiality.
These arguments were rejected on the basis that while the legislative direction
required courts to ignore the element of double jeopardy, it did not ‘require the Court
to proceed in a manner that compromises equality before the law, impartiality or
substantive fairness of process, they being essential attributes of judicial power, State
161
or federal.’
Judicial power and retrospectivity
The extent to which retrospective laws might infringe the doctrine in Kable are
unclear. Retrospective laws are generally considered to be contrary to human rights
and international law and some jurisdictions contain statutory provisions which
162
prohibit such laws. However, a distinction is drawn between increasing a maximum
penalty and making its operation retrospective and enacting a provision that makes a
past matter or transaction a legislative criterion for the operation of a subsequent
163
regime.
Thus it has been held that giving effect to a non-statutory judicial recommendation
that an offender never be released by a later legislative provision was not a
164
165
retrospective law, nor did it deny the person procedural fairness. In Elliott such a
provision was held to be a constitutionally valid exercise of legislative power.
Judicial power, procedural fairness and the essential character of a ‘court’
Although the Commonwealth Constitution does not contain an explicit right to due
process, there are a number of principles that are said to inhere in a federal court in
the exercise of ‘judicial power’. For instance, in Thomas v Mowbray, Gummow and
Crennan JJ asserted that ‘legislation which requires a court exercising federal
jurisdiction to depart to a significant degree from the methods and standards which
166
have characterised judicial activities in the past may be repugnant to Ch III’.
160
161
162
163
164
165
166
(2010) 239 FLR 11.
(2010) 239 FLR 11, [33].
See, eg, International Covenant on Civil and Political Rights Art 15.1; Charter of Human Rights
and Responsibilities Act 2006 (Vic) s 27; Human Rights Act 2004 (ACT) s 25.
Baker v The Queen (2004) 223 CLR 513; Bakewell v The Queen (No 3) 2008) 22 NTLR 174.
Baker v The Queen (2004) 223 CLR 513 (Gleeson CJ and joint judgment of McHugh, Gummow,
Hayne and Heydon JJ).
R v Elliott (2006) 68 NSWLR 1. See also R v Carroll (2010) 200 A Crim R 284, [37] (Allsop P
and Johnson J).
Thomas v Mowbray (2007) 233 CLR 307, 355. See also International Finance Trust Co Ltd v
New South Wales Crime Commission (2009) 240 CLR 319, [52] (French CJ), [96]-[97]
(Gummow and Bell J). See also Fiona Wheeler, ‘Due Process, Judicial Power and Chapter III in
the New High Court’ (2004) 32 Federal Law Review 205; Fiona Wheeler, ‘The Doctrine of
Separation of Powers and Constitutionally Entrenched Due Process in Australia’ (1997) 23
Monash University Law Review 248.
24
Any constitutional right to a fair trial is most strongly associated with the requirement
of natural justice or procedural fairness. As articulated by French CJ in International
167
Finance Trust:
Procedural fairness or natural justice lies at the heart of the judicial function. In the
federal constitutional context, it is an incident of the judicial power exercised
pursuant to Ch III of the Constitution. It requires that a court be and appear to be
impartial, and provide each party to proceedings with an opportunity to be heard, to
advance its own case and to answer, by evidence and argument, the case put against
it. According to the circumstances, the content of the requirements of procedural
fairness may vary.
While the principle is flexible and evolving, in constitutional terms it is argued that a
lack of procedural fairness would be incompatible with the exercise of judicial power
168
by a federal court.
What amounts to a lack of procedural fairness and is repugnant to Chapter III of the
Commonwealth Constitution in the federal setting will depend on the particular
169
statutory context and what is fair in all the circumstances. It is also inevitable that
there is likely to be some variation in the content of procedural fairness between
criminal and civil legislative contexts.
In the state context of Kable, state legislation compromising the ability of a ‘court of a
State’ to remain consistent with the defining characteristics and institutional integrity
170
of a court is also likely to be constitutionally problematic. French CJ has argued
that even if departures from fair processes are relatively narrow, these can combine to
171
result in the ‘death of the judicial function by a thousand cuts’.
In Totani, French
CJ explained that the place of state courts within the wider constitutional scheme
172
meant that:
… the courts of the States [must] continue to bear the defining characteristics of
courts and, in particular, the characteristics of independence, impartiality, fairness
167
168
169
170
171
172
International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319,
[54]. On the common law of procedural justice see Jago v District Court (N.S.W.) [1989] HCA
46; (1989) 168 CLR 2; Dietrich (1992) 177 CLR 292; see also Fox, R.G., Jago’s Case: Delay,
Unfairness and Abuse of Process in the High Court of Australia’, [1990] Criminal Law Review
552.
Chu Kheng Lim v Minister for Immigration, Local Government & Ethnic Affairs (1992) 176 CLR
1, 27 (Brennan, Deane and Dawson JJ); Nicholas v The Queen (1998) 193 CLR 173, [74]
(Gaudron J); International Finance Trust Co Ltd v New South Wales Crime Commission (2009)
240 CLR 319,[54] (French CJ); Hogan v Hinch (2011) 85 ALJR 398, [46] (French CJ); Leeth v
The Commonwealth (1992) 174 CLR 455, 470.
Kioa v West (1985) 159 CLR 550, 585 (Mason J), 612 (Brennan J); International Finance Trust
Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319, [54] (French CJ); Leslie
Zines, The High Court and the Constitution (5th ed, 2008) 276-277.
South Australia v Totani (2010) 85 ALJR 19, [82] (French CJ) and [149] (Gummow J), [236]
(Hayne J), [436] (Crennan and Bell JJ); Wainohu v New South Wales (2011) 243 CLR 181, [7],
[44] (French CJ and Kiefel J).
International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319,
[57].
South Australia v Totani (2010) 85 ALJR 19, [62], [69]. See also [427]-[428] (Crennan and Bell
JJ). Note also Hogan v Hinch (2011) 85 ALJR 398, [45] – [46] (French CJ).
25
and adherence to the open-court principle…For legislators this may require a
prudential approach to the enactment of laws directing courts on how judicial power
is to be exercised, particularly in areas central to the judicial function such as the
provision of procedural fairness and the conduct of proceedings in open court. It may
also require a prudential approach to the enactment of laws authorising the executive
government or its authorities effectively to dictate the process or outcome of judicial
proceedings.
Under Commonwealth or state law, the requirement of natural justice or procedural
fairness is reflected in a wide range of substantive and procedural rules and
173
174
practices and can be identified separately from the particular rules and principles.
In relation to sentencing, the principle has yet to be fully explored. However, in
McGarry, the High Court emphasized the importance of all the evidence supporting
an order for indefinite imprisonment being put before a judge and the offender being
175
given ‘a proper opportunity to meet the prosecution’s case’. The requirement of a
judge to give reasons for an ultimate sentencing decision is likely to be strengthened
176
following the recent comments by the High Court in Wainohu.
It would seem that legislation crafted to give the judiciary some discretion as to the
procedural entitlements to be granted during sentencing are more likely to be
constitutionally valid as opposed to legislation which imposes a ‘statutorily mandated
177
departure from procedural fairness’. Further, the validity of mechanisms such as ex
parte hearings will depend on whether the extreme statutory context, such as national
178
security or terrorism, justify the departure from more standard curial procedures.
179
180
Following state constitutional cases such as International Finance Trust, Totani
181
and Hogan
a denial of procedural fairness is entangled with the essential
characteristics or attributes of a ‘court of a State’. So much so, to the extent that the
independence, impartiality, open justice or fairness of a court is compromised by a
piece of sentencing legislation, a challenge is likely to be able to overcome the typical
constitutional obstacles encountered in sentencing cases.
173
174
175
176
177
178
179
180
181
See generally J J Spigelman, ‘The Truth Can Cost too Much: The Principle of a Fair Trial’ (2004)
78(1) Australian Law Journal 29; see also Charter of Human Rights and Responsibilities Act
2006 (Vic) s 24 (fair hearing).
Dietrich v The Queen (1992) 177 CLR 292, 326 (Deane J).
McGarry v The Queen (2001) 207 CLR 121, [30] (Gleeson CJ, Gaudron, McHugh, Gummow and
Hayne JJ), [65] (Kirby J). See also Thompson v R (1999) 73 ALJR 1319, [18] (Kirby J).
Wainohu v New South Wales (2011) 243 CLR 181, [57]-[59], [68] (French CJ and Kiefel J), [98][104] (Gummow, Hayne, Crennan and Bell JJ).
International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319,
[55] (French CJ).
International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319,
[54] (French CJ); Fiona Wheeler, ‘The Doctrine of Separation of Powers and Constitutionally
Entrenched Due Process in Australia’ (1997) 23 Monash University Law Review 248, 262; Leslie
Zines, The High Court and the Constitution (5th ed, 2008) 279. See also Gypsy Jokers Motorcycle
Club v Commissioner of Police (2007) 33 WAR 245, [9]-[55]; Gypsy Jokers Motorcycle Club
Incorporated v Commissioner of Police (2008) 234 CLR 532, [183].
International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319.
South Australia v Totani (2010) 85 ALJR 19.
Hogan v Hinch (2011) 85 ALJR 398.
26
Judicial power and public confidence
Public confidence in the administration of justice is said to be integral to the work of
the courts. In broad terms it has been said that under the constitutional arrangements
for the exercise of the judicial power of the Commonwealth, the conferral of powers
or functions upon courts which are ‘apt or likely … to undermine public confidence in
the courts exercising that power or function’ is likely to be held to be invalid as
contrary to Chapter III of the Constitution being incompatible with the institutional
182
integrity of courts which exercise the judicial power of the Commonwealth.
‘Public confidence’ generally ‘refers to the trust reposed constitutionally in the courts
183
to protect the integrity and fairness of their processes.’
Erosion of ‘public
confidence’ has been invoked in cases relating to conferment of non-judicial powers
184
185
on a judge as persona designata, to impugn laws relating to indefinite sentences
186
187
and preventive detention, in relation to abuse of process and others.
However, the concept of ‘public confidence’ is problematic, partly due to the
vagueness of the concept, partly to the difficulties of determining whether it exists or
not and more fundamentally to the question of whether it in fact has, or should have,
188
any relevance to the courts. Following its application in Kable, its acceptability as a
189
constitutional criterion has consistently been doubted, so much so that the High
Court, post-Kable, shifted towards the impact upon ‘institutional integrity’ as the
190
better ‘touchstone’. Most recently, Heydon J has been particularly critical of the
concept, explaining that a loss of public confidence is ‘merely an indication’ but not
191
192
‘a criterion of invalidity’. In Wainohu v New South Wales he commented that:
[174] The existence and meaning of tests turning on “public confidence” depend in
part on what the “public” is. … Are selected journalists the public? Those who speak
182
183
184
185
186
187
188
189
190
191
192
K-Generation Pty Ltd v Liquor Licensing Court (2009) 83 ALJR 327, [88] – [90] (French CJ).
Moti v The Queen [2011] HCA 50, [57] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel
and Bell JJ).
Kotzmann v Adult Parole Board of Victoria [2008] 221 FLR 134 (appointment of judicial officer
to a parole board).
Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 (references to public
confidence were made by Toohey J (at 98), per Gaudron J (at 107), per McHugh J (at 117, 118–
119, 121 and 124) and per Gummow J (at 133–134); McGarry v Western Australia (2005) 32
WAR 69.
Thomas v Mowbray (2007) 233 CLR 307, [357] (Kirby J), [512] (Hayne J) (both judges in
dissent).
Moti v The Queen [2011] HCA 50, [99] – [100] (French CJ, Gummow, Hayne, Crennan, Kiefel
and Bell JJ).
See, eg, Kirby J’s statement (in dissent) in Forge that the term is ‘conclusory, sometimes
inappropriate and usually unhelpful’: (2006) 228 CLR 45, [194].
See, eg, Baker v The Queen (2004) 223 CLR 513, [79] (Kirby J); Fardon v Attorney-General
(Qld) (2004) 223 CLR 575, [23] (Gleeson CJ), [102] (Gummow J), [144] (Kirby J); South
Australia v Totani (2010) 85 ALJR 19, [73] (French CJ).
Fardon v Attorney-General (Qld) (2004) 223 CLR 575, [102] (Gummow J).
South Australia v Totani (2010) 85 ALJR 19, [245].
Wainohu v New South Wales (2011) 243 CLR 181 (footnotes omitted].
27
for trade unions and trade associations? Politicians? Lord Denning MR’s “silent
majority of good people who say little but view a lot”. Or is it the case that to say of a
provision that “it will damage public confidence in the courts” is merely a veiled way
of saying “I dislike it”, and that it must therefore be constitutionally invalid? Does
“public confidence” have any more meaning than expressions like “social justice” or
“value to society”?
[175] Another difficulty is that some are types of confidence which sections of the
public have in public institutions which reflect credit neither on the sections of the
public nor on the public institutions. And it is often the duty of courts to resist
conduct which would increase the confidence in them of some sections of the public.
That is true of the courts in both their non-constitutional roles and their roles in
administering constitutions. The function of the courts is often to protect individuals
and minorities against the larger public.
[176] Assuming these difficulties are put aside, what generates public confidence?
What is a risk to public confidence? What diminishes public confidence? Each of
these questions is an empirical question.
According to the High Court’s most recent pronouncement, ‘public confidence; as a
193
criterion of statutory invalidity under the Kable doctrine is ‘in retreat’. Their
194
Honours went on to note that:
The expression is tending to become an automatic reflex, to be used in almost any
context in which an attempt is made to stimulate a vague feeling of goodwill, just as
restaurant owners cannot answer any question about their restaurants without
referring to “fresh ingredients”. The expression is beginning to lack meaning. It
usually postpones or evades problems. It does not face them or solve them.
Accordingly, it is unlikely that this ground will be of any value in challenging
sentencing, or indeed any other, laws in the future.
SECTION 80 AND TRIAL BY JURY
195
Though a jury trial is now relatively rare, the right to trial by jury is seen as
fundamental to the democratic framework and an important bulwark against
196
legislative or executive interference with citizens’ liberties. It may also have
implications in the sentencing context.
Section 80 of the Commonwealth Constitution guarantees a trial by jury for indictable
offences under federal law but there is no requirement that proceedings be brought on
197
indictment. A defendant has no right to a trial on indictment. This interpretation of s
193
194
195
196
197
Moti v The Queen [2011] HCA 50, [101] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell
JJ).
Ibid.
Over 95% of all criminal cases are heard in courts of summary jurisdiction and of those that
proceed on indictment, over 60% are resolved by pleas of guilty. In some jurisdictions a
defendant can opt for trial by judge alone in relation to an indictable offence **.
Cheung v R (2001) 209 CLR 1, [116] (Kirby J). Note that juries may urge ‘for leniency or mercy’
but these have no legal force: Australian Law Reform Commission, Same Crime, Same Time:
Report Sentencing of Federal Offenders, Report No. 103 (2006) [13.109].
See generally A Simpson and M Wood, ‘“A Puny Thing Indeed” – Cheng v the Queen and the
Constitutional Right to Trial by Jury’ (2001) 29(1) Federal Law Review 95; Australian Law
Reform Commission, Same Crime, Same Time: Report Sentencing of Federal Offenders, Report
No. 103 (2006), [13.108] ff; Smith v Pearce (1971) 17 FLR 119.
28
80 has led some to describe it as a ‘piece of tautological insignificance’ and a
198
guarantee of no substantive use.
That aside, there may be some limited
constitutional arguments based around s 80 of relevance to sentencing decisions made
under federal legislation. Such arguments are not applicable in the state jurisdictional
context and, accordingly, in Ironside, the Supreme Court of South Australia held that
the right to trial by jury was not entrenched under state laws and that state laws should
199
not be read down by reference to s 80.
What is clear is that the verdict of a jury must be consistent with the sentence that is
ultimately applied by a judge, at least ‘where the facts implied in a verdict are
200
clear’ . Further, where an offence specifies a number of factors that are relevant to
the penalty that may be imposed in a case, but does not create separate maximum
penalties for each offence it is not necessary for those factors to be determined by
201
202
203
The leading cases of Kingswell
and De Simoni
hold that where
jury.
circumstances of aggravation do not alter the maximum penalty they are to be decided
by a judge who must be satisfied beyond reasonable doubt of their existence.
However, where an aggravating factor is expressly referred to within a provision
creating an offence, or an associated penalty clause for the purpose of increasing the
maximum penalty this will change the nature of the offence. In such cases the
aggravating circumstances must be specifically alleged in the presentment and proven
beyond reasonable doubt and it is for the jury, not the judge, to decide whether those
204
circumstances of aggravation have been established. .
198
199
200
201
202
203
204
See comments of Kirby J in Cheung v R (2001) 209 CLR 1, [113].
R v Ironside (2009) 104 SASR 54, [174] (Kourakis J). However, see Stellios for a discussion of
whether a Kable style argument might prevent state parliaments from doing away with jury trials
in relation to state courts exercising federal criminal jurisdiction: J Stellios, The Federal
Judicature – Chapter III of the Constitution – Commentary and Cases (LexisNexis, 2010) 559560.
Australian Law Reform Commission, Same Crime, Same Time: Report Sentencing of Federal
Offenders, Report No. 103 (2006), [13.109] citing R v Ford (1994) 75 A Crim R 398 and R v
Webb [1971] VR 147.
Kingswell (1985) 159 CLR 264; King [1979] VR 399; Gardiner (1979) 27 ALR 140; Kayal
[1979] 2 NSWLR 117; Cheng v R (2000) 203 CLR 248; see also J Stellios, ‘The High Court’s
Recent Encounters with section 80 Jury Trials’ (2005) 29(3) Criminal Law Journal 139; V
Thackeray, ‘Trial by Jury: A Political Analysis’ (2006) 30(5) Criminal Law Journal 275. For
similar arguments in the United States see C B Hessick and F A Hessick, ‘Recognizing
Constitutional Rights at Sentencing’ (2011) 99 California Law Review 47, 62-63. The Supreme
Court has held, similarly to the High Court, that this is not unconstitutional because a longer
sentence is not regarded as an additional punishment for those who exercise their right to plead
not guilty but rather an absence of leniency afforded to those who do. Both courts recognise the
difficulties in differentiating between denying a benefit and increasing a punishment: see
Cameron (2002) 209 CLR 339, [11]-[15] (Gaudron, Gummow and Callinan JJ).
(1985) 159 CLR 264.
(1981) 147 CLR 383.
Kingswell (1985) 159 CLR 264; Meaton (1986) 160 CLR 359; Bridges (1985) 20 A Crim R 271;
Wyllie [1989] VR 21. The focus for much of the controversies has been s 235 of the Customs Act
1901 (Cth) which creates one offence, but in relation to which maximum penalties may vary
according to the facts, for example, whether the offence was or was not committed for any
purposes related to the sale of, or other commercial dealing: see J Willis, ‘To What Extent is s.
235 of the Customs Act 1901–1975 (Cth) Invalid as Contravening s 80 of the Constitution?’
29
The question of whose responsibility it is to decide upon factors that might enhance a
205
sentence has been problematic and controversial. As has been observed, s 80 and
206
the role of the jury is one manifestation of the separation of powers.
207
The widely accepted view is that it is generally for the jury to decide questions of
208
guilt or innocence and for the judge to decide sentencing matters. It is also accepted
that just as there is nothing in the Commonwealth Constitution to require an offence to
be tried on indictment, there is nothing in s 80 that requires certain aggravating factors
209
to be included as elements of the offence. However, where aggravating factors do
form part of the offence, such factors must, by s 80, be reserved for the jury’s
determination.
CONCLUSION
Provided that sentencing legislation leaves the judge free to undertake the sentencing
function fairly, independently and without legislative or executive interference, it is
difficult to challenge the constitutional validity of a sentencing provision on the basis
of Chapter III of the Commonwealth Constitution. The unifying test in such cases is
whether the essential nature or role of the court and the functions it exercises is being
compromised by the penalty mechanism provided. Beyond this, in the limited
instances when it applies, s 80 of the Commonwealth Constitution may enable a
defendant to challenge a sentence as inconsistent with a jury’s verdict or force
aggravating factors to be put to the jury, at least when they are incorporated as
elements of the federal offence.
The limited range of these grounds highlights the difficulty of mounting constitutional
challenges in the sentencing context. Much of this difficulty can be attributed to the
separation of powers principle and the priority that it gives to the legislature to
formulate sentencing policy, policies which it is then for the judiciary to implement in
(1978) 52 ALJ 502.
205
206
207
208
209
In the United States it has been held, in relation to the operation of numerical sentencing
guidelines, that facts that increase the sentence of a defendant beyond the maximum penalty were
unconstitutional on sixth amendment grounds (right to trial by jury) United States v Booker 543
US 220 (2005); see also Apprendi v New Jersey 68 USLW 4576 (2000); discussed in Cheung v R
(2001) 209 CLR 1, [120] (Kirby J in dissent); see also Blakely v Washington 542 US 296 (2004).
The United States cases do not distinguish whether a fact that requires a higher sentence is an
element of the offence or a sentencing factor but whether it exposes the defendant to a great
punishment than that authorised by the jury’s verdict: C B Hessick and F A Hessick,
‘Recognizing Constitutional Rights at Sentencing’ (2011) 99 California Law Review 47, 54 fn 28.
Cheung v R (2001) 209 CLR 1, [129] (Kirby J in dissent).
In almost all of the leading cases the High Court was divided in its decisions: see J Stellios, ‘The
High Court’s Recent Encounters with section 80 Jury Trials’ (2005) 29(3) Criminal Law Journal
139.
The resolution of what are the appropriate respective roles of the judge and jury go beyond the
technical legal issues raised by s 80 to the broader issues of the role of the public in the criminal
justice system: See, eg, the discussion provoked by Chief Justice Gleeson’s suggestion that the
jury play a larger role in sentencing decisions and the response of the New South Wales Law
Reform Commission: Chief Justice Murray Gleeson, ‘Remarks at the Judicial Conference of
Australia – Colloquium: Out of Touch or Out of Reach?’, Adelaide, 2 October 2004:
http://www.hcourt.gov.au/assets/publications/speeches/formerjustices/gleesoncj/cj_02oct04.html.
Kingswell (1985) 159 CLR 264, 277 (Gibbs CJ, Wilson and Dawson JJ)
30
accordance with the judicial process. While, at least with respect to state sentencing
210
legislation,
charters of rights and similar instruments might provide further
protections for offenders being sentenced, without the constitutional entrenchment of
charters, the legislature is still able to override rights and protections. The judiciary in
such cases may have the power to make declarations of incompatibility, but recent
211
comments by the High Court indicate the considerable limitations that accompany
such courses of action.
If there are to be successful challenges to sentencing laws that may be regarded as
212
unfair, oppressive, ‘bad, unjust, ill-advised or offensive to notions of human rights’,
under the present constitutional arrangements, they are more likely to be mounted in
the political than the curial arenas. In the absence of substantive, effective and
entrenched human rights legislation, both the Commonwealth Constitution and the
common law are unlikely to provide the means whereby meaningful limits can be
placed on the state’s ability to interfere with individual liberties in the sentencing
context.
210
211
212
As to the constitutional obstacles associated with a declaration of incompatibility by the federal
judiciary see obiter dicta in Momcilovic v The Queen [2011] HCA 34 (8 September 2011), [92],
[101] (French CJ), [661] (Bell J) and in dissent: [146] (Gummow J, Hayne J agreeing at [280]),
[457] (Heydon J); H Irving, ‘The High Court of Australia Kills Dialogue Model of Human
Rights’, The Australian, 16 September 2011 < http://www.theaustralian.com.au/business/legalaffairs/high-court-kills-dialogue-model-of-human-rights/story-e6frg97x-1226138239435>.
In Momcilovic v The Queen [2011] HCA 34 (8 September 2011) a majority of the High Court
(French CJ, Bell, Crennan and Kiefel JJ) accepted that declarations of incompatibility within the
state charter context were constitutionally valid (cf the views of the minority at [146] (Gummow
J, Hayne J agreeing ), and [456] (Heydon J). However, even within the majority, French CJ (at
[101], with Bell J agreeing at [662]) found that a declaration could not be brought on appeal to the
High Court within s 73 of the Commonwealth Constitution and Crennan and Kiefel JJ indicated
that a declaration of incompatibility would ‘rarely be appropriate’ in criminal matters and that in
this arena ‘prudence dictates that a declaration be withheld’ (at [605]).
Baker v The Queen (2004) 223 CLR 513, [87] (per Kirby J)
31