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Mandatory Sentencing: What would the High Court Say?

By Katrina Ford - posted Wednesday, 19 April 2000

It is not my intention to question the effectiveness of mandatory sentencing in discouraging petty crime, in spite of the fact that evidence supporting this assumption has yet to be shown. Nor do I want to detail some of the bizarre circumstances surrounding the imprisonment of some citizens of the Northern Territory, which would only serve to accentuate the injustice of those laws. The question I pose is a more fundamental legal issue, the constitutional validity of mandatory sentencing laws.

If the High Court was faced with a case on mandatory sentencing laws, any legitimate challenge would be based on the integrity of the courts, and their independence from the legislature and executive government. This has become known as the Kable principles, following from the Kable case (Kable v DPP 1995), which held that Chapter III of The Constitution implies that the parliament of a State could not accord powers on the Supreme Court which are repugnant to the judicial power of the Commonwealth. The High Court reasserted the integrated character of the Australian judicial system and in doing so said "the States are not free to legislate as they please".

It also represents a severe criticism by the High Court of a State Act.


The spirit of the reasoning of the majority of the High Court, lies in the notion that State courts, when exercising Federal jurisdiction, are part of a single integrated judicial system, created by Chapter III of The Constitution (headed "The Judicature"). Chapter III requires that the parliaments of the States not legislate to confer powers on State courts, which are repugnant to or incompatible with the exercise of the judicial power of the Commonwealth. This conclusion derives from the whole of Chapter III, and in particular section 71, which declares:

"The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts it invests with federal jurisdiction …".

The Kable doctrine applies to the judicial forum, and basically maintains that State or Federal Parliament can not legislate in a way that might undermine the role of the courts as repositories of federal judicial power. The Kable case held that one of the basic principles underlying Chapter III, is that judges of federal courts must be and must be perceived to be, independent of the legislature and executive government. While a State may empower a State Court with non-judicial functions, the line of State legislative jurisdiction is crossed when the vesting of those functions or duties might lead ordinary reasonable members of the public, to presume that the State court was not free of government influence in managing the judicial functions authorized in that court. Any Act that made the Supreme Court the instrument of a legislative plan incompatible with the integrity, independence and impartiality required of the magisterial system when applying the judicial power of the Commonwealth, is seen to be inconsistent with the exercise of the judicial power of the Commonwealth. A test of such an unjust demand is whether the general public would lose confidence in the integrity, impartiality or independence of the courts.

The perception of the judicial branch being used to implement executive or legislative policy is significant for the present political and legislative trend of "getting tough on crime", and the resulting mandatory jail sentencing Acts in the Northern Territory and Western Australia.

Basically, under mandatory sentencing legislation, judges and magistrates have no discretion; they merely impose the legislature’s ready-made sentence. In reality, all they are doing is pronouncing the outcome, not doing the sentencing. The judiciary, it seems, is no longer trusted to use their discretion when dealing with the vast range of petty property offense cases brought before them. Now, what is expected of them, is to hand out unjust and oppressive penalties, and when sentencing juveniles, offend international conventions. As a consequence, courtrooms are increasingly seen as places of injustice, rather than places where justice is to be served.

Mandatory jail sentencing, in practice, transfers the real sentencing discretion to police and prosecution via plea-bargaining, so it could be argued that it unconstitutionally usurps an essential judicial function and threatens judicial equality. The practical outcome of such a system, favors the wealthier class, who have legal assistance in obtaining executive leniency in plea-bargaining, whilst denying equal justice to the underprivileged, especially the aborigines. That is not equality of justice, which every judge declares to uphold.


Hopefully the Kable decision may open the doors to challenge legislation, such as the mandatory sentencing laws of the Northern Territory and Western Australia, where it has gradually emerged that State lawmakers have paid little attention to the basic characteristics of an independent judicial branch of government.

Is this enough to bring the courts into disrepute, not just in their own communities and States, but across Australia? I for one hope it is, because until the present impasse between the Commonwealth, which contends it opposes mandatory sentencing, but does not want to interfere with the constitutional autonomy of the States and Northern Territory, is broken, the courts will be used as an instrument of oppressive punishment.

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About the Author

Katrina Ford is a contributing editor to On Line Opinion. She is completing a Law Degree.

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