Gerner & Anor v The State of Victoria

Bell J of the Supreme Court of Victoria considered a dispute between the applicants, Gerner and another, and the respondent, the State of Victoria. The applicants sought to challenge the validity of certain provisions of the *Corrections Act 1986* (Vic) and the *Sentencing Act 1991* (Vic), specifically those relating to the imposition of mandatory minimum sentences for certain offences. The core of the dispute concerned whether these legislative provisions impermissibly infringed upon the judicial power of the Commonwealth, as vested in the courts.

The central legal issue before the Court was whether the mandatory minimum sentencing provisions enacted by the Victorian Parliament constituted an unlawful delegation or fettering of the sentencing discretion that is an inherent part of the judicial function. Bell J was required to determine if the legislature had, by prescribing mandatory minimum terms, encroached upon the exclusive domain of the judiciary to determine appropriate sentences based on the specific facts and circumstances of each case, thereby contravening the separation of powers doctrine.

Bell J reasoned that the imposition of mandatory minimum sentences, while a legislative exercise of power, did not necessarily usurp the judicial function. The Court applied the principle that Parliament is sovereign and can legislate on matters within its constitutional purview, including the sentencing of offenders. However, the Court also affirmed that the judiciary retains the ultimate discretion to impose a sentence, even if that sentence must meet or exceed a statutory minimum. The Court found that the impugned provisions did not remove the judicial function of sentencing but rather set a floor below which sentences could not fall, thereby guiding but not dictating the ultimate sentence. The application was dismissed.