Magaming v The Queen

[2013] HCATrans 200

[2013] HCATrans 200

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S114 of 2013

B e t w e e n -

BONANG DARIUS MAGAMING

Appellant

and

THE QUEEN

Respondent

FRENCH CJ
HAYNE J
CRENNAN J
KIEFEL J
BELL J
GAGELER J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON 3 SEPTEMBER 2013, AT 10.15 AM

Copyright in the High Court of Australia

MR N.J. WILLIAMS, SC:   May it please the Court, I appear with MR J.B. KING and MR D.W. ROBERTSON for the appellant.  (instructed by Legal Aid Commission of NSW)

MR P.W. NEIL, SC:   May it please the Court, I appear with my learned friend, MS P.M. McENIERY, for the respondent.  (instructed by Commonwealth Director of Public Prosecutions)

MR J.T. GLEESON, SC, Solicitor‑General of the Commonwealth:   May it please the Court, I appear with MR C.P. O’DONNELL and MR G.A. HILL for the Attorney‑General of the Commonwealth intervening.  (instructed by Australian Government Solicitor)

MR M.G. SEXTON, SC, Solicitor‑General for the State of New South Wales:   If the Court pleases, I appear with my learned friend, MS J.E. DAVIDSON, for the Attorney‑General for New South Wales, who intervenes in the proceedings.  (instructed by Crown Solicitor (NSW))

MR M.G. HINTON, QC, Solicitor‑General for the State of South Australia:   If the Court pleases, I appear with my learned friend, MR C. JACOBI, on the instructions of the Attorney‑General for South Australia, intervening in support of this matter.  (instructed by Crown Solicitor (SA))

MR G.R. DONALDSON, SC, Solicitor‑General for the State of Western Australia:   May it please the Court, I appear with my learned friend, MR T.C. RUSSELL for the Attorney‑General of Western Australia intervening.  (instructed by State Solicitor (WA))

MR G.J.D. DEL VILLAR:   May it please the Court, I appear for the Attorney‑General for Queensland intervening.  (instructed by Crown Law (Qld))

MS K.L. EASTMAN, SC:   May it please the Court, I appear for the Australian Human Rights Commission with my learned friend, MS H. YOUNAN, seeking leave to appear as amicus curiae.  (instructed by Australian Human Rights Commission)

FRENCH CJ:   Ms Eastman, you have leave to appear but on the basis that we will receive your written submissions only.

MS EASTMAN:   Thank you, your Honour.

FRENCH CJ:   Yes, Mr Williams.

MR WILLIAMS:   The appeal raises two questions.  The first is whether the scheme of offences created by sections 233A and 233C in the Migration Act in light of the penalty in section 236B offends the separation of powers by permitting a non‑judicial officer to require the imposition of a minimum term on selected offenders.  The second is whether the mandatory minimum prescribed by sections 233C and 236B is incompatible with the functions that can be conferred on a court exercising Chapter III jurisdiction in light of the exceptionally broad range of conduct encapsulated within the offence.

A question of construction has arisen which did not arise in the court below and it is appropriate that I deal with it first.  The critical part of the legislation can be found conveniently in the appeal book at pages 37 to 41.  At page 37 in the judgment of Justice Allsop from about line 40, perhaps line 30, his Honour sets out something of the legislative history.  The provisions that his Honour sets out came from the Anti‑People Smuggling and Other Measures Act 2010 which was enacted, as we will show, effectively consolidated, slightly differently formulated the offences that already existed and the mandatory minimum terms that existed since 2001. The previous and similar provisions which are summarised on pages 34 and 35 of the judgment were repealed and the provisions from 37 substituted. The base offence is at 37 of the appeal book, 233A. The fact that it is the base offence is apparent from subsection (3):

an offence against subsection (1) is to be known as the offence of people smuggling ‑

that offence is defined in subsection (1), a person who ‑

organises or facilities the bringing or coming to Australia, or the entry or proposed entry into Australia, of another person –

defined as the second person, that person being a non‑citizen and without a lawful right to come to Australia.

The Commonwealth stresses the reference in paragraph (1)(a) – another person and the second person as indicating a contrary intention to the Acts Interpretation Act rule but it is, in our submission, no more than a defining term, a drafting device, indicating the other - or we would say others - to whom the phrase is to apply.  To attempt to use the defined phrase “the second person” in construction of the provision is contrary to principle, contrary to Owners of “Shin Kobe Maru” 181 CLR 404 at 419 point 5. The passage is brief and built on a judgment of Justice Gibbs in an earlier case:

The Act’s description of a claim falling within s. 4(2) as a “proprietary maritime claim” is of no assistance in construing the expression “a claim . . . relating to . . . ownership”.  The use of the word “proprietary” in the term to be defined does not colour the meaning to be given to the definition which follows it.  It would be quite circular to construe the words of a definition by reference to the term defined.

On one level, in our submission, that is sufficient to dispose of the construction point but it is also ruled out, both by context and purpose.  Context here has two aspects.  First, this offence is basal in other offences, particularly, the critical provision, 233C.  Section 233C which is set out on appeal book 39 in subsection (3) provides an alternative verdict on account for the aggravated offence of people smuggling.  It is one of two forms of aggravated offence – the other being 233B which I will return to.

HAYNE J:   What is the point being made, Mr Williams?  Are you seeking to say that 233A and B overlap entirely?

MR WILLIAMS:   A and C overlap almost entirely and in respect of the common form of offence, in practice, overlap entirely; that is the point.

HAYNE J:   Well, the real sting in the proposition is “almost” and “in practice”.  The proposition you advance is they almost overlap entirely and in practice they have certain operation.  I just need to know exactly what the proposition is that you are advancing.

MR WILLIAMS:   First, but for one element, they are precisely coterminous.  Secondly, as to that element, in practice they overlap entirely.  The circumstances ‑ 233C, the alternative verdict, the circumstances in which a person might be acquitted of the aggravated offence, but convicted of the base offence of people smuggling in (3)(b), were referred to in the explanatory memorandum.  That is reproduced in a darker blue legislative history and extrinsic materials volume; it starts from page 111 of that volume.

Perhaps before turning directly to the point that I am going to, I could mention at the foot of 112 a description of the nature of the changes being affected by this, by this amendment, the second dot point establishing the aggravated offence that is created by 233B:

people smuggling involving exploitation or danger of death or serious harm –

then in the third dot point ‑

minor technical amendments to the Migration Act and Criminal Code to better structure and harmonise the provisions . . .

extend the mandatory minimum penalty provisions in the Migration Act to apply the higher minimum sentence and non‑parole period for the new aggravated offence –

that is created by 233B.  There is a description to similar effect on the foot of page 120 that makes it clear that the purpose is merely to restructure ‑ this is 120 about point 9 ‑

restructures the existing offences . . . to provide for greater clarity in the structure of the offences.  For example, the primary offence of people smuggling –

Then at 124, point 9, the circumstance to which 233C(3) refers is dealt with.  About point 8 or point 9 on the page –

Subsection 233C(3) has been replicated from . . . 73.3(3) in the Criminal Code.  If in a trial for this aggravated offence the trier of fact (the jury) is not satisfied that the person committed the aggravated offence but is satisfied that the person committed the people smuggling offence in section 233A, proposed subsection 233C(3) provides . . . an alternative verdict.  This is included because it is possible that although charged with smuggling five persons, the trier of fact may only be satisfied that the defendant intended to smuggle a lesser amount of people.

There is, in our submission, having regard to that purpose of inclusion of the alternative verdict, no basis for ascribing to the legislature and intention to create a hiatus whereby such persons can only be sentenced for the smuggling of one, if the evidence shows beyond reasonable doubt, guilt in respect of two, three or four.

The second reason of context is legislative history and extrinsic material.  I referred earlier to page 34 of the appeal book which set out the earlier provisions.  At the foot of page 34 the old 233 is set out:

A person shall not take any part in:

(a)      the bringing or coming to Australia of a non‑citizen –

expressed generally, and Justice Allsop observed at 35, at about line 23:

At this point it is worth nothing that:  s 232A(1) referred to a group of five or more persons, whereas s 233(1) referred to “a non‑citizen”, including, of course, more than one –

His Honour states no more than the axiomatic operation of the Acts Interpretation Act to a provision such as this.  That there was no intention to change that position emerges quite clearly, we say, from the references in the explanatory memorandum to which I have taken the Court, minor technical amendments referred to at 112 merely restructuring for clarity at 120.  But the cases that the Commonwealth relies on shows that the critical point, or the principal case shows that the critical point in construing an offence provision of this kind for duplicity purposes is not text, but context and purpose.  Walsh v Tattersall 188 CLR 77 at 91, cited by the Commonwealth, quotes from the Privy Council in Blue Metal Industries.  In the second half of the quote at about ‑ ‑ ‑

BELL J:   At what page?

MR WILLIAMS:   Page 91, your Honour.

BELL J:   Thank you.

MR WILLIAMS:   Page 91 at about point 2 on the page in the second half of the quote:

It follows that the mere fact that the reading of words in a section suggests an emphasis on singularity as opposed to plurality is not enough to exclude plurality.  Words in the singular will include the plural unless the contrary intention appears.  But in considering whether a contrary intention appears there be no confinement of attention to any one particular section of an Act.  It must be appropriate to consider the section in its setting in the legislation and furthermore to consider the substance and tenor of the legislation as a whole.”

If that course be followed with the Act, then the result is that the appellant was not charged with an offence created by the Act.  The Act taken as a whole, in the manner we have indicated, displays the intention to create an offence in the direct terms –

This reference is a reference back to the passages from about the foot of page 89 where there is a reference to 122(3a), which is the time limit for commencement of an offence, and then at the top of page 90, difficulties in construing that provision as permitting a “rolling up” of a number of acts of obtaining.  There would be a question whether it is clear:

whether the prosecution has been commenced within time.

. . . 

the giving to par (a) of the specificity which it bears on its face assists in the determination, upon conviction, of the sentence appropriate to the offence and in determining the . . . pleas of autrefois acquit and autrefois convict.

Section 120(3) is consistent with the construction considered above . . . in certain circumstances –

a reparation order may be made.  So those were the indications that led the court to the contrary view there – those are entirely absent from the present case.  So, in our submission, 233A and C do not constitute distinct and mutually exclusive offences – one of smuggling one person, or one to four people; the other of smuggling five or more.  The offences overlap.  The dominant form of offence as is reflected in reported cases is the smuggling of five or more.  That is a scene that is usually carried out, indeed, invariably in the cases, I think, by a single set of acts relating to a number of people.  The mandatory minimum term, of course, comes from 236B. 

Could I go back to the appeal book at page 39, just to note two matters about 233C.  The first is the extraordinary breadth of conduct caught within the phrase:

organises or facilitates the bringing or coming to Australia, or the entry or proposed entry into Australia, of a group of at least 5 persons –

I will say more about that in a moment, but the range of acts caught will be very large, including some that involve very limited criminality indeed.  Secondly, there is a disconnect between the heading of the offence “people smuggling” – indeed, that subdivision A as a whole - and the conduct to which it refers. “Smuggling” in ordinary parlance usually involves secret or surreptitious importation, but secrecy is no part of this offence. 

Both of those points are in a sense illustrated by the facts concerning a person who is - perhaps Australia’s best‑known example of conduct falling within this – Captain Rinnan of the MV Tampa – or his conduct, undoubtedly, falls within the scope of both 233A and 233C, or would do so if he were to repeat the conduct under the legislation in its current form – that he was acting pursuant to a duty under the international law of the sea and at the request of the government when he picked up the non‑citizens would not of itself provide an offence.  It is possible he may have a defence of sudden or extraordinary emergency, but the fact that he initially set course for Indonesia after picking them up may well take him outside the provision in 10.3 of the Criminal Code. 

It is not productive to debate the details of that particular case, but the example is sufficient to demonstrate the extraordinary range of circumstances in which a person might find themselves liable to conviction and the mandatory minimum terms that ensue.  We can equally postulate, as our written submissions do in paragraph 29, I think, volunteers from a humanitarian organisation rescuing survivors of say an ethnic massacre in a neighbouring country.

Perhaps the most objectionable feature of the organised people smuggling trade is the unconscionable risk to which it exposes participants in the boat voyages.  Of course, organisers – which is the group to which these offences were primarily directed – do not assume that risk because, as here, they leave the boat before it leaves Indonesian waters.  But crew – like the appellant – assume precisely the same risks as the clients and in our submission that is a matter that must be relevant to criminality. 

While still dealing with the legislative framework, can I take the Court briefly to the Attorney‑General’s direction which is set out at page 24 of the appeal book?  That is, of course, a binding direction.  Clause 1 is the principal operative clause.  It prevents the Director instituting, carrying on or continuing to carry on a prosecution against a member of a crew unless the Director is satisfied that:

(a)       the person has committed a repeat offence . . . 

(b)the person’s role in the people smuggling venture extended beyond that of a crew member; or

(c)       a death occurred in relation to the people smuggling venture ‑

It “does not apply” to persons already sentenced, in 2, but in 3 it –

applies to proceedings where a person has been convicted . . . but not sentenced –

If, for some reason, the sentence proceeding against the appellant had been delayed by 12 months, the appellant would have been subject to this direction and the DPP could not have proceeded under the mandatory minimum term provision.

FRENCH CJ:   Can you just remind me of how this engages with either the construction argument or the Chapter III argument?

MR WILLIAMS:   Well, both our points are Chapter III arguments.  It engages in this sense; it makes explicit that the critical decision about the minimum penalty is made by an executive official according to the criteria set out here.  Upon evidence available to that executive official, no doubt including such matters as proofs of evidence, perhaps criminal intelligence about the role of the particular participant ‑ ‑ ‑

FRENCH CJ:   Would the position be any different from the point of view of your argument that this direction had not been made?

MR WILLIAMS:   In a constitutional sense, no.  What the direction does is to make explicit what is, in a sense, always implicit in a prosecutorial decision.  That is, that there are decisions made on the evidence available to the DPP about what is the appropriate charge, what is the role of the offender in the criminal hierarchy and what is the severity of the offence that should be charged by reason of that.

HAYNE J:   That is so in respect of every kind of prosecution, is that right?

MR WILLIAMS:   It is not so in respect of every kind of prosecution.  It is so where there is a choice of offence provisions available to the prosecutor and a selection is to be made among those based on the assessment of the seriousness of the criminality disclosed on the material available.

HAYNE J:   Given the proliferation of the criminal calendar, it is rather difficult to think of a case in which a prosecuting authority does not have to choose between available charges.

MR WILLIAMS:   We would not go that far, your Honour.  We accept that it is not uncommon for prosecuting authorities to have a range of charges available, but commonly there is by reason of the definition of the elements only one applicable and, in a sense, our complaint about the provisions here and what is made manifest in this direction is that the elements that are aggravating elements are not elements found in the statute itself, unlike 233B where a jury has to be satisfied that there was an intention to exploit or an exposure to undue risk or matters of that kind.

Here, these are matters by reason of the breadth and the almost complete overlap of the provisions.  These are matters that are decided by the Director according to the proofs; that is, of course, according to the proofs and perhaps criminal intelligence, which may well be a permissible matter for the Director to take into account.  It is notorious that where there are multiple offenders in a venture one may seek to minimise his or her own role by elevating the role of another and offering to provide evidence in respect of that, evidence which is often entirely invalidated by cross‑examination at trial.

In the present case, where that occurs by reason of a person having been identified in the proofs as a principal organiser, that person will nonetheless receive the statutory minimum term even where it becomes entirely clear that the person did not have any principal role and was no more than a crew member.

BELL J:   The argument depends on acceptance of the approach adopted in the Court of Appeal at paragraph 50 on appeal book 52 that the provisions of section 233A and 233C are relevantly identical in that:

Either provision could be used to found an indictment for the smuggling of five or more people.

One possible difficulty with that argument is this notion that the provisions are relevantly identical when the 233C offence requires that the person facilitated the bringing into Australia of a group of five or more.  Now, for my own part there is some difficulty in ignoring that as an element of the offence and moving the debate to an analysis about conduct that may frequently involve people in this trade bringing or endeavouring to bring into Australia five or more persons, it is a significant ingredient and it differs from the ingredient in the offence simpliciter.

MR WILLIAMS:   Well, in relation to the construction argument we say that it does not differ in that “another person” includes other persons and is wide enough to include five or more or 60 or more or 433.

BELL J:   I understand that aspect of your argument, Mr Williams, but I am not sure where it advances you.  From a practical point of view it is not incumbent on the prosecution at trial to prove the intention and fact to bring into Australia five or more persons in the case of the offence simpliciter.

MR WILLIAMS:   If the prosecution is seeking a penalty which reflects the importation, if you like, the bringing into Australia of a larger group of people, it must prove beyond reasonable doubt the intent to bring in that larger group, whether that be two, three or four or 400.

BELL J:   We are not speaking of the intention of the prosecution respecting a penalty, we are speaking of proof of the elements of the offence, and if the offence under 233C is charged the prosecution assumes the burden of proving the organisation or facilitation of the bringing into Australia of a group of at least five persons.  It does not assume that burden, regardless of the numbers of people who may be brought in, if it does not charge that offence.  There is a difference.

MR WILLIAMS:   We do accept that, but we do not accept that that difference has critical implications for constitutional reasons because simply where there is account here where there are 52 people involved, a single set of acts, steering the boat in the case of the appellant, involving all 52, for the prosecution to charge under 233A and to obtain a penalty reflecting the charge under 233A consistently with the Attorney‑General’s direction and to obtain a penalty that nonetheless reflects that there was a bringing into Australia of 52 rather than one, the prosecution has to prove the bringing into Australia of 52.  That is part of the penalty that has to be – that is part of the fact that has to be proved in order to make out the penalty in respect of the wider group of 52.

We accept that the person could be convicted of bringing in only one, notwithstanding an allegation of 52, although factually these circumstances may be a bit difficult to imagine.  One might imagine a case of five or four, where there is perhaps a person below deck that the smuggler is unaware of, but it does not in a practical sense in terms of pith and substance and operation of the law, it does not make a critical difference that there has to be a proof of the bringing in of five, in our submission.

We accept that that is an additional element.  It is in a different class to the elements though in 236B where there are clear elements of aggravation of a kind that show the basis upon which a decision to prosecute for that higher offence is to be made and those higher elements to be proved.  This element is a sense purely formal when one has regard to the operation of the provisions.

HAYNE J:   What elements are purely formal?

MR WILLIAMS:   Five or more.

GAGELER J:   Mr Williams, to what extent does your separation of powers argument turn on your construction argument if you were to hypothesise that the singular in 233A is to be read as singular.  What consequence does that have for your constitutional point?

MR WILLIAMS:   It is not fatal to either of our constitutional points in the sense that whether it be one charge in respect of 52 persons or 52 charges in respect one person each the same vice of overlap is apparent and so we say it is by no means fatal to either constitutional point.  The first point is, in our submission, perhaps easier to make out where one has precise overlap but for the number of five as we put it, but ultimately the point remains good whatever the construction argument.

FRENCH CJ:   What constitutionally significant distinction is there between a prosecutor exercising, in practical terms, an unexaminable discretion to decide whether or not to charge - the prosecutor deciding whether or not to lay a charge for one offence rather than another?

MR WILLIAMS:   Whether or not to charge as opposed to ‑ ‑ ‑

FRENCH CJ:   Just take the case of – you point to a vice in the exercise of the prosecutorial discretion and the choices that are made on your construction of offence to be charged.  I am just asking from a constitutional perspective, what is the difference between that kind of exercise of discretion and the exercise of discretion whether or not to charge at all in a particular case.

MR WILLIAMS:   One consequence that follows from the decision to charge under 233C is the mandatory consequence of deprivation of liberty upon conviction and that is, we say, a crucial defining feature.  Putting it by way of an example, I am not sure whether I am addressing your Honour the Chief Justice’s question in this, but if the Commonwealth’s submission is right the Parliament can define 10 identical offences of people smuggling with no difference in elements, according to Fraser Henleins, and can impose in respect of those 10 identical offences fixed mandatory terms or can prescribe fixed mandatory terms of two years, four years, six years, up to 20 years. 

The Commonwealth would say that is just the legislature creating an offence and prescribing the penalty.  A decision which offence to charge for is that of the Director of Public Prosecutions in accordance with ordinary principle.  We say that such an offence structure would clearly offend Chapter III because the decision as to penalty would, in substance, be in the hands of prosecution and not the court.

FRENCH CJ:   I suppose what I am looking to is the generality of the proposition of 2.3(b) of your oral outline:

The discretion to determine the severity of the punishment to be inflicted upon an individual member of a class of offenders cannot be transferred to the executive –

Now, there is a range of decisions that a prosecutor may make which will determine in a sense the severity of punishment inflicted on a person or whether a person is punished at all - the decision whether or not to lay a charge.  There may be, even though there is a prima facie case, a decision that is not in the public interest to prosecute, a decision to prosecute a more serious offence rather than a lesser offence which is covered by the same facts, a decision to proceed summarily rather than by way of indictment where there are different maxima applicable.  What I am asking is what attaches a constitutional vice to this particular class of prosecutorial decision having regard to the generality of your proposition 2.3(b)?

MR WILLIAMS:   The mandatory deprivation of liberty that follows upon conviction.  All of the examples that your Honour the Chief Justice gives are cases where a court exercising Chapter III jurisdiction will decide whether or not there is to be a deprivation of liberty, notwithstanding that a serious offence is charged and prosecuted on indictment at the prosecution’s election - taking it into familiar territory, charging under defrauding the Commonwealth under the old 29D of the Crimes Act as opposed to a Social Security Act offence. 

In all of those cases, notwithstanding the 10‑year penalty under the Crimes Act as opposed to, I think, six months under the Social Security Act, it remains entirely within the discretion of the court whether there is to be a deprivation of liberty and an argument by the prosecution that this is a serious offence indicated by its penalty will be met by a judicial response, “This is entirely at the bottom of the range”.

FRENCH CJ:   Does this apply to all offences where a mandatory minimum penalty is prescribed?

MR WILLIAMS:   The first argument applies to the statutory scheme here where there are ‑ ‑ ‑

FRENCH CJ:   I am looking for generality.  What is the underlying principle that you are advancing?

MR WILLIAMS:   The first argument proceeds from the scheme and the choice, the almost entirely coterminous elements defined in exactly the same way, one being basal in the other.  Our second argument proceeds from questions of proportionality where either a fixed deprivation of liberty is to be imposed or a mandatory minimum, within a range, is to be imposed.

BELL J:   For many years throughout the Australian jurisdictions, the mandatory penalty for murder was life imprisonment.  Before 1955, in some jurisdictions, it was death.  It was open to the prosecutor to accept a plea to manslaughter always.  That, in a sense, raises the same issue that you raise on your more general point here.

MR WILLIAMS:   Mandatory death is, in our submission, sui generis.  It is a relic of a dark past or, perhaps, of an even darker past.

BELL J:   And mandatory life when that became the norm in the jurisdictions, following the abolition of the death penalty?  The same issue arose – a mandatory imposition of a life sentence in the event of conviction for murder, the prosecutor always having the capacity to accept a plea and satisfaction of that indictment for manslaughter.

MR WILLIAMS: I am not sure whether there were examples. There may have been examples of mandatory life rather than mandatory death at the time of the enactment of the Constitution. In respect of a provision like mandatory life – first of all, those are, I think, exclusively in State provisions and so do not invoke the separation of powers questions ‑ ‑ ‑

BELL J:   Yes, yes.

MR WILLIAMS:   ‑ ‑ ‑upon which we place primary reliance.  In respect of murder, there can be – this, in a sense, is going on to the second argument and I will not go into it any more than is necessary and to give your Honour an answer.  In respect of murder, there is in particular examples of the kind that New South Wales now has – murder of a police officer ‑ there may well be justification to the proportionality for a mandatory offence of that kind.  We are not in that territory here, in our submission, and at Federation there were very few examples of mandatory minimum gaol terms because they had been – as we will show by reference to some historical material – they had been abolished, or largely abolished, in the 1880s or the second part of the 19th century – in part after public outcry about them.  In New South Wales there was a history which we will go to.

So, that was the history at the time of the enactment of the Constitution. First, we say, there is a limit to how much assistance the respondents can get from history, anyway, in respect to the criminal law because many of the assumed incidents of the criminal trial and criminal punishment are more recent and is assumed. Mandatory death was in its own class. If it were to be enacted now – if the Commonwealth were to pass a statute imposing mandatory death with the kind of decision or structure that pertained in respect of the death penalty, at least in its later years in Australia, there would be very large questions whether it would be valid. It was, in its pith and substance, a law that required the judge to impose the penalty and left to the discretion of the Executive based often on political considerations, and sometimes involving processes such as the invitation of the trial judge to opine to the Cabinet on the guilt of the offender, things of that kind. That kind of process is, in our submission, the antithesis of a Chapter III process.

BELL J:   That is moving to discussion of mandatory sentencing as opposed to the matter I was raising with you about the widespread acceptance of a prosecutorial function that meant in the acceptance of a plea for the lesser offence a degree of flexibility in sentencing that was not available if the prosecution determined to proceed for the more aggravated offence, and one can think of many illustrations of that.

MR WILLIAMS:   The prosecution certainly has those relieving discretions, as it were, including the discretion, as your Honour the Chief Justice raised with me, the discretion not to proceed at all on public interest factors, notwithstanding that the evidence makes out a case.  The critical difference is that here the discretion is exercised to select an offence which has upon conviction the mandatory consequence of deprivation of liberty.  That is the constitutional dimension for which we contend.  I am not sure if I have answered ‑ ‑ ‑

BELL J:   I am not sure that – that seems somewhat circular.  I am just raising with you that it is not uncommon for prosecutors to have a choice of offences available and necessarily differing potential consequences arising out of that choice, and the answer is, you say, when that prosecutorial choice leads to a decision to impose a mandatory penalty, it becomes infirm.

MR WILLIAMS:   ..... so.

BELL J:   Yes, all right.

GAGELER J:   Mr Williams, you seek leave to reopen Fraser Henleins, as I understand it.

MR WILLIAMS:   Yes.

GAGELER J:   One of the factors relevant to reopening is the extent to which there is or has been legislative reliance on a decision.  Have you made any analysis of the extent to which the sort of structure that one sees in Fraser Henleins and that one sees here has been adopted in other legislation?

MR WILLIAMS:   In specifically that task, I am not sure that we have undertaken.  We can say that mandatory minimum penalties in the Commonwealth sphere are very unusual.  I apprehend that this is the only one in the Commonwealth statute book at present, the only mandatory minimum gaol term in the Commonwealth statute book.  In the States’ view, of course, there definitely are different answers.  Whether they are answers in reliance on Fraser Henleins I cannot say, but this is Chapter III jurisdiction and it is a different point.  In the Commonwealth statute book there is none at present other than this provision as far as our researches have revealed.

GAGELER J:   Thank you.

HAYNE J:   But it is common form, is it not, both federally and at State level, to prescribe a series of offences in which there may be increasing degrees of aggravation?  Is that right?

MR WILLIAMS:   Yes, there are certainly numerous examples of ‑ ‑ ‑

HAYNE J:   Assault is the most obvious.

MR WILLIAMS:   Yes, that is certainly so and in the Commonwealth sphere there are a range of offences involving – I gave the example of social security.  There was 29B imposition on the Commonwealth, 29D defrauding.  That is an example but there are numerous others.

HAYNE J:   Thus the point you seek to make is one that depends upon the aggravated form of the offence having a mandatory minimum.  Is that right?

MR WILLIAMS:   Yes.

HAYNE J:   The principle you assert has to build that fact into the principle to obtain the result you urge?

MR WILLIAMS:   Yes.

HAYNE J:   Why does the mandating of a minimum as distinct from the prescribing of a different maximum for simple and aggravated forms of offence yield the principle for which you contend because the effect on the offender of being charged with the aggravated offence, with a harsher maximum, may be every bit as profound, may it not?

MR WILLIAMS:   It may be, we accept.  The critical difference is that the proof of the elements justifying a higher penalty in the case of aggravated offences is within the Court’s domain, within the exercise of Chapter III jurisdiction in the cases that your Honour hypothesises.  That may be so either in a formal sense where there are specific elements of aggravation of the kind identified here in 233B or in a more general sense, taking the social security example, if somebody were charged with defrauding because the prosecution’s belief based on its proof was that this person was a ringleader in some kind of wider offence ‑ ‑ ‑

HAYNE J:   But why is proof of aggravation in this offence not a matter for the jury?  It comes back to the point, I think, Justice Bell was exploring with you about the difference in elements.

MR WILLIAMS:   The only factor of aggravation here is the number of people.

HAYNE J:   Yes, it is and your complaint is, I fear, at its base, well, it does not look very aggravating to me.  Is the argument any firmer foundation than that?

MR WILLIAMS:   The argument on the second element we would put differently – sorry, on the second ground we would put differently.

HAYNE J:   I know you would put it differently, but what is the essence of the difference, Mr Williams?

MR WILLIAMS:   Well, on the second ground we are talking here about sentencing in the exercise of Chapter III jurisdiction.  That is an exclusively and intrinsically judicial function that normally involves a wide discretion to apply an instinctive synthesis to apply the norms of equal justice when considering and applying the statutory elements of the offence and the statutory elements of the sentencing process to reach a sentence that is just, a sentence where the punishment reflects the crime, to put it in the vernacular.  Every mandatory minimum gaol term, whether it be a specific gaol term or a statutory minimum with a range, to some degree invades the essentially judicial function of arriving at a just sentence.

Whether or not a particular provision can be justified involves a determination by the court, usually this Court, of the tension between the Chapter III considerations, the intrinsically exclusively judicial function of sentencing, and the underlying factors, a resolution that we say is best informed by constitutional proportionality analysis.  That is the way in which we put the second point essentially. 

So it is not that we say it does not seem very aggravating, it is that we say we will develop it when we come to the second ground, that this mandatory minimum, having regard to the extraordinary breadth of the conduct that I have referred to, including humanitarian rescuers, is disproportionate to the general deterrence objective sought to be furthered.  That is the second argument. 

Your Honours, if I can take the Court through - in our outline we have referred to Chu Kheng Lim and to Hinds v The Queen, the Fraser Henleins decision, this is 2.3(c) in our submission elevates form over substance and we have put the point that we make in (c), that if the Commonwealth is right that identical offences can be created with separate penalties, including separate minimum penalties, there is no answer to the proposition that the Parliament can create 10 offences with specific gaol terms of two, four, six through to 20 years, and leave the selection of the provision and the gaol term to be served in the hands of the prosecutor.

HAYNE J:   That might present a rather interesting question of construction I would have thought, Mr Williams.  I am not sure that the process of construction would yield the answer that you set up to knock down.

MR WILLIAMS:   Construction of the present provision?

HAYNE J:   No, construction of the hypothesised provision which section 1 offence, punishment two years; section 2 same offence, punishment four years; section 3 same offence, punishment six years.  It would be a nice question of construing that statute and I am not sure it would or should yield the outcome that all three provisions are to be given separate and literal operation.

MR WILLIAMS:   If the Parliament had used intractable language, as the Parliament can, then we ask rhetorically, by what device could the court read down those provisions and the answer we would say is, by reference to the kind of principle for which we now contend, that there is ultimately a limit on the power of the Parliament to create identical offences with different penalties and where that line is crossed depends on a consideration of the structure of the particular offences in question.  It did not in the Court’s analysis in FraserHenleins yield invalidity but we would say in the case of the 246 through to 20 provision it would and ‑ ‑ ‑

HAYNE J:   Or it might invite close attention to the nature of what is a law.  You might be down at that fundamental level.

MR WILLIAMS:   Well, if it is ‑ ‑ ‑

HAYNE J:   I suspect the answer that may likely be yielded is that the only law is one end or the other of the spectrum.  Let us not debate which end of the spectrum it would be.

MR WILLIAMS:   If it is a law squarely within the head of power ‑ ‑ ‑

HAYNE J:   You have assumed the answer to the question I am just presenting.  But we do not have to wrestle with that, Mr Williams, for which much thanks.

MR WILLIAMS:   Well, your Honour, in a sense I am endeavouring to compel your Honours to wrestle with it ‑ ‑ ‑

HAYNE J:   You are looking to tease us.

MR WILLIAMS:   ‑ ‑ ‑ for which you not doubtless thank me, but we say that there is ultimately a fundamental principle underlying this point and it is brought into sharp relief in the present case.  We are not talking here of a provision like that in FraserHenleins that had a one‑year gaol term.  This one carried a minimum of five years with a non‑parole period of three for an offence provision that could incorporate Captain Rinnan or a humanitarian rescuer of persons from a neighbouring country.  That is the difference, in our submission.

Your Honours, if I could then move to 2.4 of our outline, the point that we put is one of procedural fairness.  I need not take your Honours to the references in authority but, in our submission, it is axiomatic that the Parliament cannot require a procedure that is unfair and we refer to the authority in 2.4(a).  This procedure was unfair in the sense that the decision as to which offence provision the appellant was to be prosecuted under and whether or not he would serve a mandatory term of five years and three was taken without him being heard.  If it had been taken after the Attorney‑General’s direction, then he would not be entitled to be heard as to whether the Director was satisfied that he was a crew member or not.  That would be a decision entirely within the Director’s office on which ‑ ‑ ‑

FRENCH CJ:   The Director is not deciding he is going to serve five years.  The Director is deciding whether to charge him with this offence.  The court decides whether he is guilty of the offence and therefore whether the consequence follows.

MR WILLIAMS:   In terms of the pith and substance of this law, the Director decided that he was to serve at least five years upon conviction and decided that by the choice of offence provision.

CRENNAN J:   Is not the Director really deciding to charge on the basis of the proof in respect of the elements of the offence?

MR WILLIAMS:   The proofs of evidence that the Director has?

CRENNAN J:   Yes.

MR WILLIAMS:   Yes, we accept that, perhaps together with other material that might permissibly be taken into account.  There might be matters that are not admissible in court which the Director might nonetheless properly take into account.  There might be criminal intelligence identifying the person as an organiser, for example, that the Director might think relevant.  Even if one could prove that, it might be difficult to bring a judicial review proceeding saying that this was an entirely irrelevant matter for the Director to take into account, but whatever the Director takes into account is inscrutable to the appellant.  He has no idea what has led to this charge rather than another.

If it is under the application of the new direction, it is clear what the criteria will be, but it is by no means clear to a person in the appellant’s position why he has been singled out as having a role greater than that of a crew member and he has no entitlement to be heard.  That, we say, involves unfairness in the way in which the provisions operate and in the practical operation of the law upon the term that this appellant was to serve.

If he had been convicted and sentenced a year later, based on what we know of the Director’s proofs and what was conceded in the court below about his role, he would certainly have been charged by the binding operation of the Attorney‑General’s direction with a lesser offence.  That would have, we know again because Justice Blanch made it clear, resulted in him receiving a significantly lower sentence because the criminality was at the bottom of the range.  That is the unfairness that we identify.  It does involve having regard to the whole process.  He was certainly heard before Justice Blanch but the crucial decision had already been made.

There is, indeed, a good illustration of this in Ex parte Coorey which we refer to in 2.4(b).  Ex parte Coorey is reported in 45 SR (NSW) 287. The relevant passage is at 314. This is in the judgment of Justice Davidson who was in the majority and it is a reference back in the majority in upholding the constitutional validity of the provisions. It is a reference back to the earlier decision of Ex parte Gerard in which Chief Justice Jordan had expressed doubts about the constitutional validity but the point was not argued there.  At about point 2 on the page, in the line beginning “Court to be entirely unsuitable”:

The gross injustice of such a procedure has already been exemplified in another proceeding . . . There, possibly because other information was placed before the Committee and the Attorney‑General than that which was submitted as evidence before the Court and which was, therefore, presumably inaccurate, the punishment inflicted was outrageously disproportionate to the offence of which the accused was found guilty.  Fortunately the proceedings were so defective in other respects that the conviction was set aside.

We say that when one applies tests of gross injustice and outrageous disproportionality, gross injustice from the point we are here addressing, one is now outside Chapter III by reason of the development in the Court’s jurisprudence since Chu Kheng Lim.  Outrageous disproportionality might be more relevant to our second ground but, in any event, we say that this passage well illustrates the practical injustice to which provisions of this kind can give rise. 

GAGELER J:   The committee referred to that reported to the Attorney‑General and that had information before it was a national security committee, as I understand it?

MR WILLIAMS:   Yes, it was a committee of officials.  There may well be similar considerations here.  There may be intelligence which cannot be made available to a defendant, but whether or not there are those kinds of considerations of public interest immunity covering the source, there is no entitlement to be heard in this procedure and that is the vice of which we complain in the first ground.

Indeed, the decision which is made, even if there were a hearing, is one that would be binding, even if the assumption of a higher role in the criminal enterprise were entirely invalidated by the evidence at trial.  For example, the person identifying the more serious offender agreeing that the evidence was falsely given in order to obtain a more lenient sentence, which is by no means unusual in such matters of co‑offenders.

In 2.5 of our outline we put the submission that the sentences are arbitrary and non‑judicial.  There is no, in our submission, legislative conclusion as to the irreducible seriousness of an offence against the two provisions because of their overlap and there are insufficient statutory criteria to take the decision whether to invoke the minimum penalty outside the description of arbitrary or capricious.  If there were criteria of the broad kind reflected in the Attorney‑General’s direction incorporated within the statute then different questions may arise.  If it were an offence provision that was limited to a case where death was caused or a repeat offender, things of that kind, or where the evidence showed the person to be more than a mere crew member then, on this first ground, we would be in some difficulty.  But those criteria are not to be found in the statute.

We refer, in this respect, to some of the tax cases.  We have the reference to Roy Morgan Research v Federal Commissioner of Taxation 244 CLR 97. The passage in Roy Morgan to which we refer is set out at page 110. It is really a quote from MacCormick – paragraph 38 on page 110 referring back to the “recoupment tax” in MacCormick.  There are the references to “the usual description of a tax”.  Toward the end of the quote, after referring to Barger:

They are not arbitrary.  Liability is imposed by reference to criteria which are sufficiently general in their application and which mark out the objects and subject matter of the tax –

a reference to Hipsleys.  We say that those criteria about arbitrariness express a more fundamental constitutional norm than one merely relating to a tax and that the criteria of that kind are sufficiently general to mark out the objects and satisfaction, the criteria that are absent here.  So, for those reasons, we submit that this statutory scheme created by the provisions is invalid by reason of the overlap. 

The second of our grounds concerns the compatibility of this minimum sentence with accepted notions of judicial power. All mandatory minimum penalties which require deprivation of liberty in all circumstances, upon conviction, have important differences from maximum penalties from a constitutional viewpoint. The Constitution is framed on an assumption of liberty and it guarantees that through the independence of judges exercising Chapter III jurisdiction. We refer, in that respect, to Wilson v Minister 189 CLR 1. The relevant passage is at about 11 point 5:

The separation of the judicial function from the other functions of government advances two constitutional objectives:  the guarantee of liberty and, to that end, the independence of Ch III judges.

The authority continues on that point over the following two pages but that point is sufficient to encapsulate the point we seek to make.  It is also made in a passage in the judgment of your Honour Justice Hayne, together with Justice Gummow, in Abebe 197 CLR 510. We have made an extract of Abebe available separately. 

HAYNE J:   Yes, they were dissenting reasons, were they not?

MR WILLIAMS:   They were, your Honour, but we do not take this principle in light of Wilson to be one on which there is dissent.  They were dissenting in other respects and perhaps this – indeed this was part of the reasoning of the dissent, but nevertheless ‑ ‑ ‑

HAYNE J:   Well, you know what follows from that, Mr Williams.  They are conclusively presumed wrong I would have thought, but there we are.  Anyway, what is the passage you want to take us to?

MR WILLIAMS:   Paragraph 137, your Honour.  We say it is a statement of principle which, with respect, is correct, and particularly so in light of Wilson.  In particular, we emphasise ‑ ‑ ‑

FRENCH CJ:   It seemed pretty anodyne, with due respect to my colleague.

HAYNE J:   Yes.  There is a thing that is missing, Mr Williams, and that is that on the whole, motherhood is desirable.

MR WILLIAMS:   We can accept that general principle, your Honour.  We then turn to the proposition in 3.2 that sentencing entails minimum standards which are embodied in norms of equal justice and proportionality.  Those norms have dimensions involving comparison with those charged with the same offence, and those charged elsewhere in the criminal enterprise with different offences, but also with more general norms of parity with other offenders or comparability with other offenders in the same class of offences.

FRENCH CJ:   The minimum standards that you are referring to in 3.2 and the cases mentioned in 3.2 really go to principles informing the exercise of sentencing discretions.  Is that right?

MR WILLIAMS:   Yes.  They in a sense identify the essential nature of the sentencing process which is, as we put from Chu, we say that sentencing is exclusively judicial and intrinsically judicial.

FRENCH CJ:   But you are trying to constitutionalise these principles.

MR WILLIAMS:   Yes, your Honour, we are.  We are saying that the norm of equal justice ultimately has a constitutional dimension in Chapter III, that there is a certain point at which a sentencing process comes to lack such of the essential attributes of a sentencing process as to fall outside Chapter III.

HAYNE J:   I am not sure that that proposition would be consistent with what Justices Gaudron, Gummow and I said in Wong’s Case, Wong v The Queen 207 CLR 584, particularly from 599 onwards. Paragraph 36 of Wong referred to passing sentence once being a ritual in which the judge was neither required nor permitted to exercise any judgment, and then went on to discuss the way in which sentencing now must proceed in all except relatively few cases in which a minimum is prescribed.  The point is not whether what we said in Wong is determinative or whether the principles are completely identified there.  Does your proposition come to the point of saying there can be no minimum sentence prescribed by Parliament in relation to the exercise of Chapter IIII judicial power?

MR WILLIAMS:   No, your Honour, we do not say that, and we point to 233B as an example straddling the two provisions in question, of precisely the kind of minimum term that can validly be prescribed because ‑ ‑ ‑

HAYNE J:   What marks the two classes of those that can be validly prescribed and those that cannot apart?

MR WILLIAMS:   The criteria, the elements of which a jury must be satisfied in the 233B offence bring it into the class where there is an irreducible minimum seriousness in the offence such that it can be said that a minimum term of this kind is reasonably capable of being seen as proportionate.

FRENCH CJ:   Is that any more than a visceral response that says it is not too much for this class of conduct?

MR WILLIAMS:   It may ultimately come to a judgment by this Court which has an instinctive element of the kind your Honour the Chief Justice describes, but ultimately we say that there is a tension between a minimum term of any sort, either fixed or minimum within a range, and Chapter III, and that tension is to be resolved by proportionality, or is best resolved by proportionality principles. 

If one reached the view that – or if the Court reached the view that the sentence is outrageously disproportionate to the conduct within it, then that would have a certain consequence when the Court came to resolve that tension and we can, in the case of 233C, posit the example of the humanitarian rescuer.  Our client is in a different class but only slightly so because, as Justice Blanch said, he was at the bottom of the range of offending.  But in the case of a humanitarian rescuer, the notion that a minimum term of five years with a three year non‑parole period was required would be regarded, in our submission, by this Court as grossly disproportionate to the objectives of general deterrence sought to be furthered by the legislation.

KEANE J:   How do judges know that?  How do judges know what is necessarily for the general deterrence objective of the legislation?

MR WILLIAMS:   It is a proportionality analysis, we would submit.

KEANE J:   But where does the yardstick come from?  How do judges come to the yardstick by reference to which they gauge the seriousness of the offence if not by reference to the yardstick provided by the Parliament?

MR WILLIAMS:   The yardstick provided by the Parliament is the starting point and, indeed, what is being tested but one has regard to materials the Commonwealth has put forward, materials on this referred to in their footnote 73, the affidavit of Mr Buckland that the Commonwealth submits inform the process of determining whether or not it is proportional.  The fact that the Parliament has reached a judgment that provisions of this kind are necessary is obviously a matter that the court would give weight to. 

KEANE J:   But does your submission not depend upon the court being able to say that if the Parliament decides that deterrence is so important that the individual circumstances of the particular offender are irrelevant, so that what is produced is a harsh and to many, an unfair outcome, can the Parliament not decide that deterrence is so important that a harsh outcome is nevertheless lawful?

MR WILLIAMS:   If the court were to conclude that the undoubtedly important general deterrence objective here could be furthered without the adoption of a measure which caught within it people at the bottom of the range of the kind that I have described, then the court would conclude that the measure was disproportionate.

KEANE J:   What materials would the court rely upon and what standards would the court apply?  Would the court not be called upon to make political judgments in both cases as to the extent of the problem, the mode whereby it might be dealt with and the appropriateness or the expediency of the measure that is adopted?

MR WILLIAMS:   We submit that they are not political judgments.  The material that the court would act on is the material which it has in the Commonwealth’s footnote 73 illustrating and, we would submit, making good that there is a strong case for general deterrence.  The analysis that the court would be engaged in is whether that objective necessarily required a provision of the reach of this one and if the court concluded that the objective could be achieved without having to go that far, then that would be a conclusion that it is otherwise disproportionate. 

KEANE J:   That judgment is not a political judgment.

MR WILLIAMS:   It is ultimately a legal judgment, in our submission.  Undoubtedly proportionality analysis involves considerations that are capable of characterisation one way or the other, but that is not an objection to it, in our submission.  Constitutional validity is often viewed by those elsewhere in this town as involving matters exclusively for them, but that does not make it any the less a legal question for this Court, the fact that it can be characterised as political or legal or constitutional.

KEANE J:   Well, no, there is a difference.  I mean, legal judgments are usually made on the basis of evidence adduced to the court and criteria which are reasonably closely confined, reasonably closely textured.  This is a judgment made about measures that are appropriate to deal with a problem of a scope which is not the subject of evidence before the court and pursuant to judgments that are made at large and in relation to which those who make them are responsible to the people.

MR WILLIAMS:   The evidence, in our submission, is before the Court, as the Commonwealth puts it before the Court, so there is an evidentiary foundation, but the generality of the principles and the politically objectionable, if I can put it in that way, aspect that your Honour refers to could equally be said, not by a responsible advocate in this Court, but by others elsewhere, to be the case in respect of judgments about legislation controlling gangs, things of that kind that reflect sharply‑drawn political judgments made in controversial circumstances after due consideration by the Parliament.  Parliamentarians may well have a view about the role of the Court in such legislation, and we say that that is not different in kind to the exercise of making this kind of judgment.

KIEFEL J:   Mr Williams, in your submissions are you not rather blending notions of proportionality in sentencing, which has regard to the individual circumstances of the person being sentenced, and notions of proportionality applied in the context of implied freedoms or freedom under section 92, which are dealt with in Monis?  Now, in relation to proportionality as it is commonly understood in sentencing, I had thought I had understood your argument to be that this Act operates as an impermissible restriction upon a Chapter III judge’s ability to undertake the proportionality analysis in sentencing.  That is one thing.

What I do not really understand is, in your outline at 3.5, how this legislation could be said to be analogous with the legislative context dealt with in Monis which is to say where there is an implied or there is an express freedom guaranteed by the Constitution and the question is where the legislation itself operates upon that freedom to restrict it the question for the Court is how to determine the limits of legislative power to restrict that freedom. For myself I just cannot see the analogy here. You seem to be blurring the – that is why I am saying you seem to be combining two quite distinct notions of proportionality.

MR WILLIAMS:   Your Honour, we have done our best to avoid confusing those two notions.  We accept that the use of the same word in both contexts ‑ ‑ ‑

KIEFEL J:   Is quite different.

MR WILLIAMS:   ‑ ‑ ‑ has large potential for confusion.  The point that we make, because your Honour, with respect, correctly identifies back to me, we say there is ultimately a constitutional dimension to the norm of equal justice and a constitutional minimum content in the sentencing process and the word proportionality might be used in the sentencing sense there.  We try not to use that word because we do not wish to confuse it, but we say there is that minimum constitutional content there.  When we come to 3.5 we accept that 3.5 involves novelty.  We accept that Monis and Rowe and other cases applying proportionality analysis to implied freedoms are in kind different to what we are talking about here, but our argument proceeds in these steps.

First, there is a minimum requirement, a minimum content to sentencing coming from the exclusively and intrinsically judicial nature of the function.  Secondly, all minimum terms, either fixed or discretionary above a minimum, involve some invasion of the Chapter III function and, thirdly, in order to resolve the tension between Chapter III and the minimum content that we refer to and the particular law, some analytical device is required and we point to proportionality principles as the appropriate analytical framework for resolving that tension.  They are the steps in the argument.  We accept that 3.5 is different to Monis or Rowe.

KIEFEL J:   I did not think that the case law thus far in Australia accepted proportionality as a freestanding principle in constitutional law.

MR WILLIAMS:   I am not sure about freestanding, your Honour, but ‑ ‑ ‑

KIEFEL J:   Well, as a principle.

MR WILLIAMS:   Yes.  Well, we contend that it should ‑ ‑ ‑

FRENCH CJ:   Well, you say that the mandatory ‑ am I right ‑ that the mandatory minimum sentencing regime in this case precludes application of a proportional response of the kind that is well accepted in sentencing principles and that that preclusion, having regard to the range of conduct it covers, is a disproportionate interference with the judicial function under Chapter III and therefore not a permissible qualification or constraint upon the judicial function?

MR WILLIAMS:   That is so, with your Honour the Chief Justice using proportionate in different senses in the first ‑ ‑ ‑

FRENCH CJ:   Yes, that is right.

MR WILLIAMS:   Precisely.

FRENCH CJ:   I am trying to see how the two operate, although you are almost constitutionalising the first as a standard of sentencing.

MR WILLIAMS:   We do not seek to completely constitutionalise it.

FRENCH CJ:   Well, in the sense I have just put to you.

MR WILLIAMS:   We say that there is a minimum content and that might be used in – the term “sentencing proportionality” might be used as an apt descriptor for that.

HAYNE J:   You seem to be stretching the recognition that I think has to be made that judicial imposition of punishment upon conviction for crime has always been legislatively confined, has it not ‑ confined by the provision of maxima, confined historically by the provision in some cases of mandatory punishment, confined today by the legislative prescription of relevant criteria – see 16A of the Crimes Act.  What are we now shelling out and putting into judicial power?  It sounds like a freestanding capacity for the judicial branch to decide what is appropriate punishment for legislatively prescribed and proscribed offending.

MR WILLIAMS:   Well, there are several points in what your Honour raises.  I will go to history in just a moment, but we certainly do not submit that there is a discretion at large in judges to form their own view about the appropriateness of penalties prescribed.  We are talking here about minimum standards and, like all constitutional minimum standards, they necessarily involve judgments by judges that may be different judgments to those formed by legislators.  If I could go to history, we refer to history in 3.2.  We have distributed the material.  The first of the references there is to Stephen’s A History of the Criminal Law, volume I (1883), which was referred to in Western Australia’s submission.  It deals with the position in England prior to 1901.  At page 482 there is a reference to the 1846 Act involving a power to impose:

a sentence of more than seven years’ transportation . . . instead . . . transportation for any term not exceeding seven years . . . 

Far the greater part of the criminal law relating to felonies has been recast and re‑enacted since the reports to which I have been referring, and though the varieties in punishment are still considerable, and perhaps not always of obvious utility, they are greatly diminished.  There is only one common case in which a minimum punishment is still retained.

This was the position in England in the later part of the 19th century.  The position in Australia varied somewhat but in New South Wales it is dealt with in the following reference that we have in 3.3, Dr Woods’ book A History of the Criminal Law, which has been distributed separately, in chapter 24.  There was in 1883 a scheme of mandatory minimum sentencing imposed in New South Wales.  The first page, 357, refers to that in the opening paragraph, including to the failure of the central plank of mandatory minimum sentencing within about a year.  The sentencing structure is referred to.  It is really the right‑hand column that is operative or critical.  Where there was in the left‑hand column penal servitude for life, a minimum term of not less than seven years was prescribed, and so on down to a five year maximum yielding a one year minimum.

The fate of that is summarised from 359 at about point 8, these contributions to the leading Sydney newspaper referring back to correspondence about the application of these provisions reflected serious public concern about the new sentencing system.  The government moved to amend the law.  The Sentences Mitigation Bill 1884 is then referred to and over on 360 some of the debate is referred to at about point 2, Mr Dalley giving an example of the kind of case which justified the abandonment of mandatory minimum sentences, penalties:

grotesquely disproportionate to the offence.

Then at about point 4, Mr Dalley’s concern and the government’s concern was that the law should not be brought into contempt, the Bill simply intending to prevent public scandal from attaching to the administration of justice.  Page 361, the passage of the Bill - from about point 5 on page 361 in May 1884, section 1 of the amending Act made it lawful for, in the concluding words of the quote at about point 8:

lawful for such Judge to pass sentence for a less term.

Toward the foot of the page, although there was a requirement that the judge express the opinion justifying departure, there was no requirement of exceptional special circumstances and at the foot of the page:

in effect, a return to the situation that the judge might simply sentence according to his own discretion, provided that the sentence did not exceed the statutory maximum.

On the following page, the general discretionary power at the top of 362 was recognised and spelled out in the 1891 amendment.  Toward the foot of the quote:

no special statement has to be made by the judge as to the mitigating circumstances of the case.  The whole matter is left entirely in the hands of the judge.

FRENCH CJ:   This is all in support of the proposition at 3.3 that minimum standards change over time, that is, minimum standards provided by Chapter III change over time?

MR WILLIAMS:   It is in support of the proposition that even at 1901, mandatory minimum custodial terms were rare and exceptional.

FRENCH CJ:   Yes, but does one reason from that to an inference that Chapter III is somehow antithetical to minimum mandatory sentences?

MR WILLIAMS:   When one is construing the Constitution in light of the position as it applied when it was adopted and enacted, it is relevant to consider the position in the Australian States and, in our submission, contrary to that put by some of the interveners, mandatory minimum prison terms were rare and exceptional at that time.

BELL J:   What I think Dr Woods points out is that the scheme was introduced because of a perception fuelled by the major newspaper in New South Wales that judges were unduly lenient and within a relatively short period of time the political judgment was made, including by the editors of that paper, that the consequence of the minimum standards prescribed was harsh and unreasonable and one was better going back to judicial discretion.  But I am just not sure where that takes you.  A rather bold scheme of minimum sentences had been enacted without a great deal of success and rapidly, the political solution was to repeal the scheme.  But I am just not sure what it says about your argument.

MR WILLIAMS:   It answers in part the contention that is put against us, that mandatory minimum terms – and mandatory death is the one most commonly referred to – were, at Federation, and always have been, a large part of the Australian statute book and that informs or should inform the content of Chapter III.

KEANE J:   I think, probably, what is put against you rather is that, that having been the case, what is significant is the absence of any suggestion that judges might trump the political judgments of the legislature in relation to minimum sentences as a matter of the exercise of judicial power.

MR WILLIAMS:   In respect of that we would say that Chapter III is ‑ ‑ ‑

KEANE J:   Evolving.

MR WILLIAMS:   ‑ ‑ ‑ evolving.  It embodies minimum standards.  Those standards are informed to some degree by community standards such as the content of trial by jury, which in 1901 meant trial by propertied men.  We say, even at 1901, leaving aside mandatory death which we say was sui generis and should not provide any kind of foundation for an argument about mandatory minimum gaol terms, in 1901 mandatory minimum gaol terms were rare and exceptional and that is something that informs the construction of Chapter III as at that time. 

When one takes into account evolving community standards and, in a sense, evolution in Chapter III – starting in a sense from Chu – we say that those standards are now inconsistent with a requirement that judges exercising Chapter III jurisdiction impose sentences in circumstances where the range of conduct which the offence provision encapsulates is not one which can be related to the mandatory penalty imposed.

BELL J:   Does that mean if the provision made it an offence to facilitate the bringing into Australia of 200 people in a group that might pass muster on your analysis?

MR WILLIAMS:   Well, we would have a difficulty with that and we would refer to Captain Rinnan in that respect, who brought in 433.  We would say that the mere number is not a criterion which can validly be taken to establish an irreducible minimum content of criminality.

BELL J:   So number cannot, but you accept that various circumstances of legislatively prescribed aggravation, if you like, might support a mandatory minimum?

MR WILLIAMS:   Section 233B is an example that we point to that we accept is valid and the circumstances identified there do involve an irreducible minimum content of criminally which can be said to be proportionate ‑ ‑ ‑

KIEFEL J:   But quantity can convey something, a distinct element of the offence.  Five people may be taken by the legislature to be indicative of a commercial operation in the same way as having a large quantity of drugs in your possession is indicative that you are dealing in drugs, whereas a small amount is indicative of the more minor offence of possession.

MR WILLIAMS:   But, to take your Honour’s example of quantities of drugs, first I think that it is uncommon at the least and perhaps non‑existent for there to be a prescription of a minimum term for drugs.

KIEFEL J:   No, but I am not talking so much about the minimum here, but to differentiate offences - they are quite distinct offences.

MR WILLIAMS:   In the case of drugs there is, of course, a provision - there is an onus on a person seeking to contend that his or her possession of the prescribed quantity was not for a commercial purpose, but there is an ability to prove, notwithstanding the statutory presumption to disprove, the commercial purpose.  This is different.  We accept that quantity can be relevant but, again citing Captain Rinnan or humanitarian rescuers, we ‑ ‑ ‑

FRENCH CJ:   Well, that really comes down to 3.5, the constitutional proportionality argument, does it not?  I mean, you have accepted that, as you must, that the legislature can constrain and guide the judicial function, and on some of the examples Justice Hayne put to you, this is a bridge too far.

MR WILLIAMS:   That is so.

CRENNAN J:   You have identified, I think, in answer to Justice Hayne, a class where a mandatory minimum sentence is not constitutionally permitted, as it were, if I can speak in shorthand.  As I recollect it, you said that circumstance is where the mandatory minimum is harsh, given the breadth of conduct.  Now, are you inviting us to take more into consideration than the preclusion of the judicial discretion in relation to individual circumstances when you say the basket of offences, if you like, that are not – or the mandatory minimum sentences which are not permitted constitutionally on your distinctions are those that are harsh, given the breadth of conduct?

MR WILLIAMS:   “Harsh” was a shorthand.

CRENNAN J:   I am just trying to identify what it was shorthand for, how much is packed in to “harsh”?

MR WILLIAMS:   Disproportionate to the conduct encapsulated within the range of the offence provision having regard to the nature of the problem that the legislature was dealing with.

HAYNE J:   Thus, does it suffice for your purposes to identify a case, any case, in which you can apply the disapproving description “harsh” or whatever it is as encompassed by the minimum term provision?

MR WILLIAMS:   The answer to that must be yes.  If we are looking at the scope of the offence provision and saying that it does not, in contrast to 233B, contain any irreducible minimum of criminality that can be said to involve a proportionate sentence.

HAYNE J:   So the section fails for validity, that is the minimum sentence provision fails for validity upon demonstration that there may be a case caught by it where application of the minimum term would have, to use the shorthand, a harsh effect.

MR WILLIAMS:   Maybe a case might involve steps – might involve an element of speculation.

HAYNE J:   Well, that is the point I am trying to explore with you, Mr Williams.  Are you asking for a constitutional judgment to be made by a sentencing judge in respect of the facts before that judge or in respect of the facts that might be encompassed by the minimum term provision?  The latter?

MR WILLIAMS:   We are asking for a judgment by this Court in respect of the range of conduct manifestly encapsulated within the provision and a judgment of that range of conduct against the mandatory minimum and the circumstances that the Parliament was dealing with.

HAYNE J:   The point if it is good is a point that was available at the sentencing hearing.  That is yes, you are here; we understand that you are here.  But the point is one which if it is good would, in the ordinary course of events, be first hammered out in the sentencing court, subject to section 40 removal.

MR WILLIAMS:   It was available in the sentencing court.  No point was taken below and we apprehend that no point is taken here.

HAYNE J:   No, I am not exploring that kind of procedural bar, but it is suggesting the application of a constitutional standard of some very considerable flexibility I think, because it is suggesting a standard that requires consideration of a kind of case – tendentiously, you might say, any kind of case that could fall within the ambit of the minimum term.

MR WILLIAMS:   Any kind of case that does fall within the ambit ‑ ‑ ‑

HAYNE J:   Yes.

MR WILLIAMS:    ‑ ‑ ‑ we accept the “could” goes too far.

HAYNE J:   Yes.

MR WILLIAMS:   Could I take the Court to the legislative history volume – to page 23?  There are two parts of the second reading speeches that show what the provisions were primarily aimed at.  Page 23 is the second reading speech from the introduction in 1999 of the higher maximum penalty, that preceded the minimum.  Top right‑hand side or perhaps starting bottom left‑hand side:

The bill brings the penalty for single instances of people trafficking into line with the criminal sanctions imposed for similar forms of migration fraud and introduce a more severe penalty of 20 years imprisonment or 2,000 penalty units, or both, for the trafficking of groups of five or more people.  This penalty recognises that organised crime groups are involved in people trafficking, and the penalty reflects the seriousness of the offence.

These new provisions are primarily aimed at those who profit from people trafficking – those who, for a fee, organise individuals or groups to enter Australia illegally.

Then, moving through to page 74 of the book, where there is the second reading speech for the bill that introduced mandatory minimum.  Toward the foot of page 74, there is a description of unauthorised boat arrivals in Australia’s modern history.  Then, at the foot of the page:

What has changed since then has been the growth of organised criminal gangs of people smugglers who are motivated not by any desire to help others, but by base motives of greed.

This form of organised crime is found throughout the world and preys on people who are unwilling, for whatever reason, to go through normal procedures for entry to the country of destination.

The point we make from that, simply, is that the group at which the penalties were targeted is not reflected in any limitation in the scope of the offence itself and by the exceptional breadth of the definition of the offence will necessarily catch a much wider range of offenders.

Could I then refer briefly to previous decisions?  Fraser Henleins I have referred to in passing already.  Fraser Henleins is in 70 CLR 100. The relevant passage in the judgment of Chief Justice Latham is at 119 and 120. Page 119 at about point 4:

I find it difficult to understand how it can be said that the requirement that the Attorney‑General, before instituting a prosecution, shall consult with a Minister and a committee involves any exercise of judicial power by the Attorney‑General, the Minister, or the committee.  In the first place, the committee only gives advice . . . In the next place, even if the committee advises prosecution and the advice is adopted and a prosecution is instituted in accordance with the advice, it is still the case that the action of the committee does not impose any liability . . . The whole matter of the guilt of the accused is determined by a court.  The nature and quality of the penalty which may be inflicted depends upon a statute.  It has never been suggested that the sphere of judicial power is invaded when Parliament provides for a maximum or minimum penalty for offences which are duly proved in courts of law.

The submission we put in respect of that is that it is a purely formal analysis of a kind that is inconsistent with the focus on substance required in Chapter III cases, at least since Chu Kheng Lim.  Justice Dixon essentially, at page 124, the foot of 124, did no more, I think it is fair to say, than to refer to the dissenting judgment of Chief Justice Jordan in Coorey, and to express at the top of 125 his Honour’s preference for the reasoning of Justices Davidson and Nicholas.  Justice McTiernan at 131 to 132, particularly at 132, thought the argument would have been untenable if it did not have the support of Chief Justice Jordan, but nevertheless did not accept it, and Justice Williams, at 139, at about point 8 on page 139, point 7 perhaps, the line beginning “person or body of persons”:

The whole prosecution, when it is launched, takes place in a court, the accused is found innocent or guilty by a court, and Parliament is entitled to make the punishment of an offence upon conviction what it likes, and to make it differ according to the alternative sections of an Act or Acts under which the charge is laid.

The submission that we put is one that is essentially repetitive of what I have said already, that is, that this is purely formal analysis.  If it is correct then there can be a structuring of offences with fixed penalties for an identical offence and that in substance that would involve removal of the discretion as to punishment from the judiciary and its placing in the hands of an executive official to be made upon the evidence available to that official rather than the facts as proved in court.

BELL J:   One comes back in that submission to the contention that the offence is identical, and that might on a view overlook that the Parliament has made a decision respecting those engaged in what might be described as the trade by defining an offence involving facilitating the bringing of a group of five or more persons and made the further judgement that such is the requirement for deterrence that any person who can be shown to have carried out that physical conduct with the appropriate fault element under the legislation should be made guilty of that offence for the reason that, as with the drug mule, it is necessary to capture people at the bottom of the chain in order to effectively deal with the problem.

MR WILLIAMS:   There are two or three points in what your Honour raises with me.  One is perhaps the basal point, is whether FraserHenleins is correct in its full amplitude.  FraserHenleins undoubtedly holds that it is possible to create differential penalties for precisely the same conduct.  We say as a matter of fundamental principle that must be wrong, so in a sense that is the starting point of our argument.  There is then the question of construction which I debated with your Honour earlier.

BELL J:   Yes.  It was just your reference to identical provisions.  I understand in the context of FraserHenleins, but it is the matter that – well, in any event, we have ‑ ‑ ‑

MR WILLIAMS:   It is the point we did explore earlier, but those are the two different levels, and your Honour’s example of the drug mule shows in a sense that it is not necessary to achieve general deterrence, that minimum penalties be imposed because minimum penalties at least in the Commonwealth sphere do not exist for drug mules for importation, and one example ‑ ‑ ‑

BELL J:   I do not know that anyone is suggesting that there should be mandatory minimums across the board, Mr Williams, but the matter I was raising with you comes back to this notion of judgments about the elements of an offence in terms of the irreducible minimum requirements on your argument for a level of culpability or something of that character and it is in that context that I am raising with you the other side of that argument is in order to bite it is necessary to create an offence that captures everyone in the trade.

MR WILLIAMS:   In respect of the second of our arguments, we say that involves a judgment as to whether it was necessary to create an offence with a bite this wide and deep to achieve the undoubtedly legitimate effect of general deterrence.  That is the way in which we put it.  Those are our submissions.

FRENCH CJ:   Thank you, Mr Williams.  Yes, Mr Neil.

MR NEIL:   Your Honours will know that the respondent’s submissions are necessarily limited and beyond the written submissions which are replicated in the outline of oral submissions provided this morning, there is very little we wish to say.  We did put on our amended list of authorities a reference to the case of PJ v The Queen.  We did that, your Honours, merely because there is some discussion there of the elements of the section 233C offence but, having heard our learned friend’s oral outline, there is nothing there that we wish to take your Honours to specifically.

The other matter that I might briefly advert to is that in the amended list of authorities of the Commonwealth Attorney‑General filed on 16 August, as was the case with the original list, the last document referred to there on page 3 under “Instruments” is the prosecution policy of the Commonwealth.  Now, I do not enter the debate about the Attorney‑General’s Direction to the Director of Public Prosecution a year or so after the events and I do not speculate about what may have happened had that direction been operative at the time of sentence because obviously it was not, but we merely put the submission that, as the Commonwealth

Attorney‑General has pointed out through the Solicitor‑General, clause 2.20 of the operative prosecution policy at the time of this offence made it undoubtedly appropriate for the section 233C offence to be charged. 

That is, it was the offence which best met the facts, which were uncontested and resulted on the part of the appellant who I may inform your Honours – and there is no issue about this – was legally represented at all stages through to the conclusion of the sentence hearing, pleading guilty to that offence at the first opportunity and adhering to his plea throughout.  Unless I can be of further assistance to the Court, they are the respondent’s submissions.

FRENCH CJ:   Thank you, Mr Neil.  Solicitor‑General for the Commonwealth?

MR GLEESON:   I might invite your Honours to take a moment and look at our outline if that is convenient.  Your Honours, it now seems clear that the appellant does not challenge the constitutionality of mandatory minimum sentences per se, it is a narrower challenge.  The elements of the narrower challenge involve first that it be a mandatory term of imprisonment as opposed to other mandatory terms and second, you would have one or other of two additional elements. 

The first seems to depend heavily on the construction argument that if Parliament criminalises the same conduct, it is said in two different ways and attaches the mandatory imprisonment term to one but not the other, that is bad constitutionally, either because it means the prosecutor has strayed into the criminal function, the judicial function of sentencing, or the Court in carrying out the parliamentary mandate has been conscripted to a process it should not have been conscripted to.  That is the first and perhaps the major element of the argument from this morning. 

The second element advanced towards the end is that the Court has a Chapter III mandate to look at any mandatory minimum term of imprisonment and ask whether there could be at least one case in which that term would in the Court’s eyes operate in a manner, it is said, “grossly disproportionate” to what the Court believes is the true seriousness of the offence.  They seem to be the two elements of the case.

Your Honours, could I go first to the construction point because it underpins, perhaps it is the entire underpinning of the first argument.  If your Honours could go please to the sections of the Migration Act, starting with section 233A.  Beyond doubt, the elements of that offence as defined are such that the offence is complete at the point of which the accused has organised or facilitated the bringing of one other person to Australia being a person who has the requisite characteristics assuming the fault element is proved.  Parliament has identified that the bringing of one other non‑citizen with no lawful right to come here, subject to the fault elements, is a separate crime. 

That is, of course, the first critical difference between 233A and the two offences that follow it.  Section 233B, Mr Williams accepts, is a different offence and he accepts it is constitutionally valid.  Under that offence, if I could dwell on it for one moment, you need all the elements of the base offence, physical elements and fault elements, and then you need one of three aggravating elements and your Honours will see that the aggravating elements are defined by reference to the person described as the victim who was the subject of the primary or base smuggling offence. 

Even stopping there, 233B tends to confirm that 233A operates in the singular as it reads and if you were to organise the bringing of two people here who had the requisite characteristics, you would have two base offences under 233A and you could have two aggravated offences, depending on whether, in respect to each of those persons, the extra elements were met. 

Section 233B, we would submit, is a classic example of one of the various ways in which Parliament can define “overlapping offences”.  There are at least three ways in which Parliament might seek to deal with overlap.  The first is to create strict legal alternatives such as murder and manslaughter and, in that area, prosecutorial discretion will lead to a choice which may bear upon the ultimate penalty faced if guilt is proved.  The second sort of overlap is the one that we see in 233B.

FRENCH CJ:   But that sort of overlap is one where there are some common elements.

MR GLEESON:   Factually?

FRENCH CJ:   Yes.

MR GLEESON:   But the law by its definition of the legal elements has drawn a strict alternative distinction.  If one is guilty of murder, one is not guilty of manslaughter and vice versa.  Of course, there will be overlapping factual elements and questions of prosecutorial discretion as to the strength of the case and the level to charge at and there has never been a suggestion that that fact causes any vice.  Section 233B is in what I would call the second category where the greater offence necessarily subsumes the lesser offence.  You cannot be guilty of 233B unless you have done something which Parliament in 233A defined to be of, itself, an offence.

Whenever one has that form of aggravated offence, prosecutorial choice will lead to decisions as to whether to charge under the lesser or the greater or, perhaps, in the alternative and it will be common that different penalties will be attached to each.  In that sense, as the Court in a related context in Elias said, the prosecutorial choice is capable of bearing upon the ultimate penalty which is imposed, but the separation of powers is not offended because Parliament has mandated the elements of the crime and the scale of punishment.

HAYNE J:   The double jeopardy cases concerning simple and aggravated offences might be thought to recognise the proper availability of such creation of crimes.  I have in mind Pearce and Island Maritime v Filipowski in this Court.

MR GLEESON:   Yes, your Honour.  It proceeds on that basis where that will be the position.  The third form of overlap I would offer – there may be more – but the third form of overlap is where, in terms of the elements, the crimes are separate but where, in terms of the conduct, one or both may be attracted and where one may or may not have a Pearce issue at the stage of sentencing. 

To give one example in that category from the New South Wales legislation, the offence of assaulting a police officer in the execution of duty – section 61 of the Crimes Act – is different to the offence of resisting arrest by a police officer.  Each has different periods of penalty – maximum penalty of five years in one case and one year in the other case.  It may be, depending upon the circumstances, one or both of those offences could be charged and it could be that each can proceed to a separate punishment, subject to totality and accumulation, without offending Pearce. 

So the point I seek to make is there are a variety of ways in which conduct might be criminalised by Parliament with varying degrees of overlap and the short point is whatever prosecutorial discretion follows, while capable of bearing on the ultimate penalty, it does not lead to the prosecutor exercising the judicial function or to the court being conscripted to an improper process.

If your Honours would then go to section 233C, we would submit it bears as a matter of construction the same relationship to 233A as does 233B.  The heading is not misleading in describing it as an aggravated offence.  If you commit 233C, you have necessarily committed a 233A offence.  What Parliament has done, as some of your Honours’ questions this morning have indicated, has identified an element of the crime that you facilitate a group of at least five where within that group they have the requisite elements where that is the marker of whether this has proceeded beyond individual facilitation to an element of trade. 

That is the separate legal element and the prosecutorial choice whether to charge under one or the other properly recognises the executive function.  It is capable of bearing upon the ultimate penalty but does not offend Chapter III in doing so.  It is enough for this part of the argument for us to identify that 233C has the different and separate elements of a group of at least five persons.  That is enough to indicate Mr Williams’ premise that this is just the same crime, rebadged; fails.

Your Honours, there is a separate construction argument between Mr Williams and all of the interveners and the DPP who has adopted our submissions, as to what is added by the concept of it being a group under 233C and, conversely, how one would charge under 233A if you had more than one person facilitated. 

It may not be necessary for your Honours to decide that question of construction because already one can see the different elements between the offences.  The position we have offered on that question of construction is that the 233A offence is separate and complete for each second person who has the requisite characteristics who is smuggled.  The result of that is that if one was alleged to have smuggled five or more persons, the choice is to charge a single count under 233C or one or more counts under 233A in respect to individual persons within the group.

Mr Williams took you to 233C(3) and sought to argue that that showed something about the relationship between the two provisions.  All it does is indicate there is an ability, subject to procedural fairness, if the case fails on the group basis to proceed to a finding on the offence of people smuggling, the 233A offence.  The way we submit that would occur is by the prosecution identifying, presumably at the outset of the trial, the one or more other persons who were to be the subject of the alternative 233A case, and the prosecution might do that for one person or it might do it for more than one persons.  On our view they would be separate 233A offences that would then be proven.  Mr Williams would say that would be ‑ ‑ ‑

HAYNE J:   Is that right?  You mean, assume you have 10 persons who are the subject of the alleged offending.  Assume further that the prosecution open their case and go to the jury on the footing that the jury should be persuaded that at least five of these formed a group who met the requisite characteristics, could not the prosecution also go to the jury and would not the judge be bound to instruct the jury, if you are not satisfied that there is a group of five having the requisite characteristics, but you are satisfied that any of them did, you would return one verdict of guilty of one offence of the simple form of people smuggling?

MR GLEESON:   That, your Honour, is certainly the primary and perhaps the core and perhaps the most likely way and I am instructed in practice the way it does happen because the alternative is, in effect, one 233A finding but it must be in respect to one other person who has the characteristics.  The only matter I am leaving open is whether it would be open to the prosecution through 233C(3) or through alternative counts, per se, to say that my alternative to the case of a group charge is to seek a 233A finding in respect to more than one person. 

HAYNE J:   I think you would probably have to charge it.

MR GLEESON:   You may have to charge it.

HAYNE J:   You would have to charge it, surely, to put the accused on notice.

MR GLEESON:   So I will accept that.  The only difference then between us, one that does not resolve any issue in this case and is simply whether in that form of alternative charging, Mr Williams says no matter how many people you smuggle, 233A treats the criminality as singular - smuggling 52 people you have charged under 233A as a single crime.  Each of the second to the 52nd person are but particulars of a single charge.  The proposition that we have put as a matter of construction based on Walsh v Tattersall is that this legislation sufficiently evinces an intention that the character of your act of organisation or facilitation under 233A is truly separate and different for each extra person that you organise or facilitate to come here.

HAYNE J:   Well, that seems a rather large proposition, Mr Solicitor.  If you smuggle 10 people in a group you have committed one offence under C, have not you?

MR GLEESON:   Yes.

HAYNE J:   Yet you say that smuggle five people, what, that there are five separate offences?

MR GLEESON:   Smuggle five people under 233A, five separate offences.  It could happen in a different series of circumstances.  If one has different acts of organisation and facilitation for each that would be fairly obviously the outcome I would suggest.  If one has a single act of organisation and facilitation referable to, let us say, five people, the correct position is that they would be separate charges under 233A and at the stage of sentencing one would then bring to account considerations of accumulation. 

So in terms of what is critical between the parties today, that issue is not critical.  What is critical is to say that beyond doubt a separate element, namely a group of at least five people, is what has created the separate crime under 233C.  Parliament has treated that as the measure of a different crime of different seriousness and Parliament has then, in section 236B, indicated that if that crime is made out, just as if 233B is made out, the minimum is five years for a first offence, eight years for a repeat offence, and the maximum remains the 20 years that is not under challenge in these proceedings.

Your Honours, that is the second point on our outline.  The third point, which is the primary argument of principle, is that with the form of prosecutorial choice involved here, as in many cases, we simply have the situation of Parliament determining the scales of the penalties for the various offences that have been available – Chapter I exercise, the Executive under Chapter II exercising prosecutorial discretion to decide whether to charge at all and if so which charge and the court under Chapter III determining whether the accused is guilty of the offence or offences as charged and, if so, sentencing within the limits of the discretion mandated by Parliament and what is the ultimate point in the case, the character of those three exercises of power does not change by reference to what it is that Parliament has chosen to place in the scales of punishment.  Whether Parliament has placed different maxima, whether Parliament has placed minima, whether Parliament has a fixed penalty, whether Parliament has specified criteria for sentencing the character of the exercise of power does not change in those three cases.

Your Honours, in terms of authority, FraserHenleins and Palling are each directly against one or both of the limbs of the appellant’s argument.  In answer to your Honour Justice Gageler’s question to Mr Williams, it would seem that the only current mandatory minimum in Commonwealth statutory law is the one we are dealing with in this case.  There have been previous federal mandatory penalties which have existed or been brought into force, one or the other post FraserHenleins, including section 243 of the Customs Act 1901, section 132 of the Excise Act and the former section 24 of the Crimes Act with a mandatory death penalty for treason until 1973.

The position at State level and Territory level is that since Fraser Henleins there have either been introduced or continued not only mandatory minimum sentences, but overlapping sentence structures involving some element of a mandatory minimum.  If I can point your Honours to which they are, if your Honours would go our written submissions please, to page 15, footnote 93.  The relevant ones include:  under the Criminal Code (NT), sections 78D to DF; under the Criminal Code Act 1899 (Qld), sections 50B and section 65; and under the Criminal Code (WA), sections 267 and 318. That of its own indicates that one of the grounds for reopening Fraser Henleins is not made out. 

Moving beyond that, what is Mr Williams’ real challenge to that case?  He says that case is based on form over substance and that Chapter III has moved on and substance now trumps form.  Our submission would be that Fraser Henleins in fact indicated and revealed a sophisticated understanding of the separation of powers in the area of criminal prosecution, perfectly consistent with what this Court said recently in Elias, namely that for the Court to engage in the exercise Mr Williams invites – namely to in some way judicially review how or why the prosecutor chose one offence over another – would be to invade the executive function and compromise the Court’s own independence by reason of it reviewing a matter which was not committed to it under the Constitution.

GAGELER J:   If the legislative structure here made the prosecutorial choice to charge five counts of 233A, or one count of 233C, turn on the recommendation that was made to the prosecutor by a national security committee, your submission would be exactly the same, would it?

MR GLEESON:   I just want to be clear about the last element of your Honour’s question – if the legislation in terms made the choice by the prosecutor as to which to charge to depend upon some other executive action?

GAGELER J:   Yes.

MR GLEESON:   The answer would be the same.

GAGELER J:   Yes.

FRENCH CJ:   That may be a convenient moment, Mr Solicitor.  The Court will adjourn until 2.15.

AT 12.44 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.16 PM:

MR GLEESON:   Your Honours, could I complete the submissions on the prosecutorial discretion aspect of the appellant’s case and at point 4 I had submitted that High Court authority is squarely against the appellant?  Could I ask the Court to go please to Fraser Henleins v Cody 70 CLR 100? Mr Williams took you to the passage in Chief Justice Latham at 119 at about point 7 where his Honour drew the distinction that the matter of guilt was determined by the Court:

The nature and quality of the penalty which may be inflicted depends upon a statute.  It has never been suggested that the sphere of judicial power is invaded when Parliament provides for a maximum or minimum penalty for offences which are duly proved in courts of law.

Now, in that passage his Honour has dealt with and rejected each strand of Mr Williams’ argument from today.  Mr Williams says that is formalistic and should now be regarded as overtaken.  If I could invite your Honours to read on to the whole of the next passage which I will not read out?  His Honour there analogises prosecutorial discretion in a case such as Fraser Henleins with other aspects of the prosecutorial discretion, whether to prosecute at all, whether to prosecute summarily or upon indictment, and the concept he reaches at about 120, point 3 or 4 is that the Executive has not imposed any penalty.  The most that has occurred is that in the course of its discharge of its function it has exposed a person to the possibility of a particular penalty.

That distinction, we would submit, is consistent with what the Court has said recently in Elias in a related context, namely, that the prosecutor has not engaged in the exercise of the judicial function.  It is merely a consequential matter that its decision is capable, depending upon what then occurs in court, of activating Parliament’s judgment as to the range of penalties.

Your Honours, in the other judgments the matter is expressed in similar terms by Justice Starke at page 121.  Justice Dixon at page 124 analysed the two statutes and at about point 6 said this:

It will thus be seen that it rests with the responsible authorities, by choosing in what form an offender shall be prosecuted, to decide in respect of which of the four scales of punishment he shall be exposed to –

penalties, the four scales being two by reason of the summary or indictable choice, two by reason of the choice of offence and that, we would submit, consistent with Chief Justice Latham, has recognised the division between the exercise of the prosecutorial power and the judicial power.

Finally, I might just ask your Honours to look at what Justice Williams said on page 139 and invite your Honours to note that passage which, we would submit, has correctly recognised the difference between the executive function and the judicial function.  As Mr Williams noted, a number of the Justices in Fraser Henleins considered that the majority in Ex parte Coorey, were correct.  Could I go to that decision, which is in volume 45 of the State Reports (NSW) at page 287?

I will come back to Chief Justice Jordan in dissent in a moment.  In the judgment of Justice Davidson – page 312 over to page 313 – there is, we would submit, a useful and helpful and correct analysis which places the historical context of the types of choices that were given to the prosecution ‑ and your Honour Justice Bell asked about some of these matters this morning – places those historical matters in the constitutional context and references the examples by which minimum penalties have been accepted and have not been seen to involve the Executive intruding into the judicial power, even where there is prosecutorial choice available.

Coorey and Fraser Henleins were more extreme, if I can use that word, cases than the present because they were the very same offence which was rebadged as a second offence and then the different consequences followed.  Justice Davidson was alert to that argument at the foot of page 313.  He was alert to any argument that form should not triumph over substance, and it was in that context that he dealt with the matters on page 314 which were read to you this morning, but he has returned, correctly we submit, to the propositions on page 314 of each arm of government performing its own function and that, we would submit, is an analysis of substance and not of mere form.  To similar effect, Chief Justice Nicholas, Chief Justice in Equity.

Could I come then to the dissenting judgment which is commended by Mr Williams?  Your Honours might note, starting at the bottom of 298 over to 299, that Chief Justice Jordan commenced with certain propositions which were common ground with the majority in the case.  The first proposition dealt with at the bottom of 298 was that it was:

within the competence of the Commonwealth Parliament to create new offences, and to prescribe for them penalties which may be either fixed, or maxima or minima or both.

Down at about point 2 his Honour said he agreed with that proposition.  So here we have further support for Parliament having this power to fix offences.  Then he went on, at the top of 299, to the second uncontroversial proposition:

it is competent to Parliament to authorise the Attorney‑General to decide whether a person shall be prosecuted for any such offence –

That was also treated as common ground and correct.  Where his Honour differed is with the proposition commencing at about point 4 as to whether the Crown law officer in deciding whether a person would be prosecuted was performing only an administrative act, in particular in circumstances your Honour will see where this is said:

It has been submitted also that the Black Marketing Act, 1942, does no more than create new offences, prescribe minimum penalties for them, and provide that no prosecution shall be instituted for any of them unless authorised by the Attorney‑General after a departmental inquiry.

That is the point at which his Honour disagrees and the point of his disagreement is the Black Market Act, saving perhaps a few exceptional cases, does not create new offences.  So his Honour’s concern was with an Act which took an existing offence, rebadged it as a second offence and then attached a mandatory minimum to one but not the other.  Now, that is the exact situation of FraserHenleins.  It is not the situation on the present scheme as we have seen this morning. 

So for Mr Williams’ argument to succeed one must go beyond what Chief Justice Jordan was dealing with and that is clear from the following page where the Chief Justice, when he found there to be something contrary to the Constitution in the sort of case he was talking about, used language of dictation. One sees the word “dictate” used about three times on page 300 and if I could just pick it up right at about point 5, just after the reference to Waterside Workers’ Federation, his Honour said this:

In my opinion, as regards all acts which are offences independently of the Black Marketing Act, that Act purports to invest a person who is not a competent Court with part of the judicial power of the Commonwealth, in that it purports to enable him at his discretion to dictate the penalty –

So that is the vice which is not the issue in the present case and the Chief Justice makes that even clearer at about point 7 where he says:

It is necessary to add that there may be cases in which the Black Marketing Act does more than attach an epithet to an existing offence, and itself creates a new offence.

That is our case.  He gives an example that in a very limited area that is what the Black Marketing Act was doing, and at the foot of the page he said:

the Act here creates a new offence, and in relation to this offence the Attorney‑General . . . is not deciding whether he is to be subjected to penalty –

but is exercising, in effect, the prosecutorial power.  So I have gone to that detail only to show that Mr Williams’ argument is not to simply embrace Chief Justice Jordan, but to ask for a Chapter III implication beyond that which was there identified.

GAGELER J:   Can I take you back to two sentences you did not read?  There is a sentence which begins at 300 about point 7, “If a Commonwealth statute provided that”.

MR GLEESON:   Page three hundred and ‑ ‑ ‑

GAGELER J:   Page 300, point 7.

MR GLEESON:   Yes, your Honour.

GAGELER J:   I will not read it, it is a long sentence, but do you accept that proposition?

MR GLEESON:   Yes.

GAGELER J:   But you say the next sentence does not follow.

MR GLEESON:   Yes, I also say that, and the sentence that I have agreed with is in fact what is in the UK and Privy Council cases which Mr Williams has embraced.  The next part of my submission was just to indicate that a case, for instance, such as Hinds v The Queen, if I could invite the Court to go to that, which is [1977] AC 195, the vice in Hinds v The Queen is the vice that Chief Justice Jordan was referring to in that sentence.  At page 225 of Hinds v The Queen at letters B to C there was a:

mandatory sentence of detention “at hard labour during the Governor‑General’s pleasure” –

Then that was qualified by a provision that if you were in that unhappy state you could only be discharged “at the direction of the Governor‑General” who was to act “in accordance with the advice of the Review Board” and the Review Board was explained at about letter E as not involving judges or judicial power.  So in that case, in effect, the decision, the actual decision as to when your punishment would end, had been handed over to the executive arm, and that would be a vice.  That may also be seen over on page 226.

HAYNE J:   How does that system differ from a system that at least used to be the case with life sentence?  Mandatory life sentence for murder, time of release was wholly within the remit of the Executive, was it not?

FRENCH CJ:   And Governor’s pleasure.

MR GLEESON:   Yes.  The difference may be this.  In the case your Honour has contemplated – and perhaps there are two different cases that your Honours have just put to me ‑ in the first case, the Parliament has set the punishment and the punishment is a mandatory fixed punishment and that is what the court hands down in the exercise of judicial power when guilt has been found.  If one is then looking at a subsequent stage of the process which we would now analogise as parole, one is looking at the permissibility of the Executive exercising that subsequent role based upon the circumstances – including those post the sentence – as to whether the convicted person should be relieved from a part of the full sentence judicially imposed.  In that sort of system, we would submit, there is no difficulty with the court having played its role and the Executive playing what I have described as the post‑conviction role.

HAYNE J:   There is a deal of authority in England, I think – I do not know whether it is still current – about the role of the Home Secretary in fixing the standard tariff for life sentence prisoners.

MR GLEESON:   Yes.

HAYNE J:   I am not sure that analysis of that set of decisions is going to be likely to reveal any especially clear or useful principle relevant to Chapter III.  So what are we trying to get out of what is said in respect of the Jamaican Constitution with different statutes and the like?.  What is the proposition we are trying to grasp here, Mr Solicitor?

MR GLEESON:   For our part, a brief and negative proposition.  Mr Williams in his written submissions – he has not taken time on it today – has said the present case, that is, our scheme, can be directly analogised to – he mentions three or four cases – Deaton is the Irish case, Hinds is the Jamaican case, Ali is the Malaysian case. He says in each of those cases, you discern a principle about the separation of powers which is true across our Constitution and those constitutions. The principle he seeks to get is, if the Parliament has handed over, in substance to the Executive, the determination of your punishment for criminal guilt that will ordinarily be treated as an offence to any system of government based upon a separation of powers.

Our short response would be to agree with your Honour that if you delve into each of these you do not come up with any principle that illuminates or decides this case and none of them can be analogised to any of these cases he has relied upon.  So I had only been meaning to show your Honours that at the foot of the next page, 226, one of the other cases Mr Williams relied upon in writing was the Irish decision in Deaton where – and this would carry over to our Constitution we have accepted – if you had a provision which said when the person has been found guilty, the prosecutor selects one of two penalties and the court then imposes it, that is bad. So that is about as much as you can get from these authorities. We are not urging them on the Court. They are not in point. None of them make good his case.

HAYNE J:   I wonder whether different principles are engaged where the courts in the exercise of judicial power either do impose or are required to impose a sentence with no definite terminal date.  The role that the Executive plays in respect of sentences with no definite terminating date may perhaps be different from the role that can or should be played in respect of the imposition of sentences fixed by a court with a fixed terminating date.

MR GLEESON:   That is probably correct, your Honour.  Could I then go to the last of the cases on this point 4 ‑ ‑ ‑

FRENCH CJ:   We looked at one of those in a different context, I think, in a case called Yates a little while ago. 

MR GLEESON:   Your Honours, the last of the cases on prosecutorial discretion was Palling v Corfield (1970) 123 CLR 52. We submit that is also squarely against Mr Williams’ argument, that is the draft conscription case. The mandatory provisions are set out on page 55 and there were two mandatory provisions. The first was under section 49(2)(b) - if the person refused to enter the appropriate recognizance there was a mandatory sentence of imprisonment for a period of seven days and then under section 49(3) a person who failed to comply with a condition in the recognizance was subject to the same mandatory fixed sentence.

So this case is squarely on the second limb of Mr Williams’ argument.  Chief Justice Barwick commencing on page 56 at about point 3 was dealing with the Chapter III argument.  He analysed the effect of the statute and when he dealt with validity on page 58, he was quite clear, in the long paragraph, that it was open to Parliament to require either a minimum or a fixed term of imprisonment and there is just no scope for the proportionality argument that has been run today.

In continuing with his reasons, his Honour dealt with Fraser Henleins and on page 61 regarded that case as being in point in the sense that the prosecutor had a role in a causal sense in this ultimate process because the prosecutor under this scheme had to decide whether to request the entry of the recognizance.  His Honour found that exercise of prosecutorial discretion, whether to ask for the recognizance not to involve any Chapter III issue.  We would submit that in that judgment, which is squarely in point, we not only have Fraser Henleins reaffirmed by the Court but we have the mandatory minimum held to be about it.

I might just note finally in Justice Walsh’s judgment at page 69, when he dealt with Coorey and Fraser Henleins, he recognised at the foot of that page that those schemes were perhaps closer to the line than a scheme like ours in this case.  Again, for the point that if you were merely operating upon the existing offence, leaving the existing penalties operative and then purporting to authorise the Attorney‑General in particular cases to dictate a minimum penalty you might get closer to the line, but all that hinges upon ‑ ‑ ‑

GAGELER J:   Well, what is the line?

MR GLEESON:   The Chapter III line.

GAGELER J:   Will you define it for us?

MR GLEESON:   Justice Walsh was simply recognising that a scheme like Fraser Henleins or Coorey was more open to debate in terms of Chapter III in this sense, your Honour, more open to debate in this sense, that if what Parliament has done has said the general rule of the land is X, X shall not be done, and the penalty for X is so and so, if Parliament has then come along at the same time and said, speaking with a second voice, and said, if X is done, but the prosecutor chooses to charge X as Y then there will be a different and higher and a mandatory consequence, it is more open to argument that the nature of what the prosecutor has done has been to determine the penalty.

Now, we are not stepping back one bit from Fraser Henleins being correct.  I am simply pointing out that in our case where the scheme does not even have anything like that feature the availability of the Chapter III argument is much weaker than the present case.  Now, your Honours, that is enough on prosecutorial discretion, I hope. 

In point 5 we deal with three other aspects Mr Williams has mentioned.  The first is the significance of the Attorney‑General’s direction.  Our submission is it has no real significance to the resolution of the constitutional question before the Court.  What it illustrates is that at a different point in time a different view was taken within the Executive as to how the prosecutorial discretion might be exercised or should be exercised and that view was published which aids fairness and transparency at that point in time.  I did not propose to say more about the significance of that direction unless your Honours wished me to deal with it. 

The rule of law argument put by Mr Williams is this overlapping set of offences so badly offends the rule of law that the Constitution strikes it down, the reasoning being apparently a person contemplating committing crime cannot know in advance with certainty whether, if they facilitate five or more people as a group, they will face at least five years’ imprisonment or not. The short answer to that is they know they will be committing that crime, they know what the penalty for that crime will be. If charged with that crime, they know they will face that penalty. The cases on arbitrary taxes are from a different universe. I rely upon our written submissions.

Your Honours, at point 6 Mr Williams really is making the same point but through a different perspective.  He is now saying, it is not that the prosecutor is exercising judicial power, but that when the court inflicts the mandatory minimum, the court is being conscripted to do something which is contrary to a court and his submission seems to be – and I have quoted his words ‑ that the court is part of a single overall process which is unfair because the accused does not get a hearing on why the prosecutor chose the charge he or she did and does not get reasons on that topic.

All I need to say on that is, I would submit that what your Honour Justice Gageler said in Pompano 87 ALJR 458, at paragraph [192] – which is what Mr Williams has relied upon in writing ‑ provides no support for this proposition. Your Honour, in that paragraph, spoke about the court acting as part of:

an overall process that, viewed in its entirety, entails procedural fairness.

With respect, we would submit, your Honour was not, in that paragraph, saying that within a criminal trial one collapses the exercise of prosecutorial discretion into the exercise of judicial power as a single process that attracts what your Honour was speaking of in terms of procedural fairness.

Your Honours, could I just then jump to point 8 and deal with the second main limb of Mr Williams’ argument? It seems from this morning’s answers to questions that the role he says a court must have under the Constitution is a little like this. The court must be able to look at the law and its objectives and the court must ask itself whether the law has gone beyond what the court thinks was necessary to achieve the objective of the law. If it is the law, the court strikes down the mandatory minimum and sentences in its absence. He applies that in the present case by saying that there was a legitimate objective of deterring conduct which was regarded as very harmful to Australia, its citizens and to people travelling here, but the law did not need to solve the problem this way.

It did not need to treat everyone who was involved in facilitating five or more as a group as subject to a minimum or, perhaps, a five year minimum.  It could have dealt with the problem in another manner.  That seems to be the constitutional principle he says that Chapter III guarantees.  The answers we have sought to give to that are, firstly, in paragraph 9, for the court to have:

Such a power would be inconsistent with the long and continuing history of mandatory sentences –

At paragraph 10 there is ‑

Consistent authority is against the court having such a power ‑

Paragraph 11, as your Honour Justice Kiefel’s questions have pointed out, if Mr Williams is invoking ‑

Proportionality is a common law sentencing principle, but operates within the statutory context.  It does not supply the criteria for a Chapter III implication –

Paragraph 12, the next point ‑

no workable criteria –

have been offered ‑

by which a court would exercise such a power.

Mr Williams says, but proportionality is the field of discourse we are in. As your Honours’ questions have elucidated, in proportionality – in constitutional terms – we would ordinarily be dealing with a right or a freedom which has textural and structural roots in the Constitution and we would be asking whether the infringement, or the impairment, of that right was capable of being justified and within that field of discourse one would be looking at – depending how one framed the inquiry – the sort of matters discussed in Monis.

The problem at the starting point of this argument is Mr Williams has not identified the constitutional right or freedom which provides the basis for the proportionality inquiry and I would simply refer to your Honour’s discussion – that is Justice Kiefel in Rowe and Justice McHugh’s discussion in Woolley about the errors in importing proportionality analysis into the Constitution without the identification of a relevant right in which to commence the inquiry.

Your Honours, the only other thing I wanted to say about proportionality was this.  In terms of how it operates overseas, it cannot in any sense be readily transplanted here.  Two of the cases we provided your Honours just as an illustration of the difficulty of the transplant would be, from the Canadian context, Smith [1987] 1 SCR 1045. That case would show us from the Canadian context at page 1056 that under the Bill of Rights, section 2(a), there is an express protection against laws which authorise “cruel and unusual treatment or punishment”. That provides the right against which the proportionality exercise is conducted.

Your Honours might note on page 1068 – it is relevant to your Honour Justice Keane’s question this morning, how does one do this analysis, what sort of exercise is involved ‑ in Canada at least the view of Professor Tarnopolsky has been taken up as law, that one can apply up to nine different tests by which one looks at the punishment, some of which are as broad in character as to be: test (7), “Is it in accord with public standards of decency”; or test (8), is it “intolerable in fundamental fairness”. Now, that we would submit, absent at least an express right in the Constitution, just could never be transplanted to our jurisprudence.

Then one might next usefully look at page 1073. In the first paragraph one sees how within that Bill of Rights context one attempts to do the gross disproportionality exercise. One does not start, as Mr Williams does, by hypothesising someone who is not before the court, such as the captain of a humanitarian rescue ship. One looks at the particular offender and the court somehow determines what would be the appropriate range to protect the punishment from that offender. The court then allows other purposes to come into the inquiry and then reaches some ultimate conclusion on gross disproportionality. That, we submit, cannot be imported into our Constitution.

Of course, the final step in Canada is, even if that step produces an adverse result – page 1079 – one then asks the question under section 1 of the Charter whether the limit was nevertheless reasonable “in a free and democratic society”.  So short of a Bill of Rights, proportionality should not be transplanted to Chapter III.

The other example we provided, just to illustrate the difficulties of this transplantation, is from the United States context - Harmelin v Michigan 111 S Ct 956.  This, your Honours would see from the opening page, was a mandatory sentence of life imprisonment without parole for a particular drug crime which was in the territory of trafficking and that was held not to offend the Eighth Amendment prohibition against cruel and unusual punishment so again in a context of an express right the court analysed the sort of matters that might be involved. 

This case is of course significant in the US jurisprudence because it held - your Honours will see on page 2692 in the middle paragraph on the left column - that proportionality has not been imported into the Eighth Amendment and Justice Scalia gave a series of reasons for rejecting an importation of proportionality into a constitution guaranteeing protection against cruel and unusual punishments.  Your Honours might note on page 2696 in the section of the decision headed 2 some fairly powerful reasons were expressed for why proportionality was not appropriate.

Now, I need to withdraw one aspect of what I said.  Justice Scalia in dissent on proportionality, I beg your Honours’ forgiveness, what is said on page 2696 to 2697 about the problems of introducing proportionality into this field of discourse, including the top of 2697, we would submit is certainly correct within our field of discourse and it echoes your Honour Justice Keane’s question this morning of what sort of judgment is involved where the courts, through their perspective, are simply coming to a different view on proportionality to that which the elected representatives have reached. 

Your Honours, that leaves me with only two final matters.  One is Mr Williams has kindly referred a number of times to Mr Buckland’s affidavit as evidence of his case.  Could I just explain its status?           In a section 73 appeal we are not seeking to lead evidence in the High Court.  We were seeking to indicate that if the Court, against our strongest opposition, were minded to adopt some sort of proportionality analysis in Australian law, the sort of exercise that would be involved would start one down the path Mr Williams was attempting this morning, namely to get your Honours to find facts about how big was the mischief, how necessary was the legislative solution and were there indeed other alternatives. The entire course we say is not permissible. 

In this particular case it seems that the parties up to this Court had not sought to put before the Court as constitutional facts the sort of matters you would need if one was to do such an exercise.  If it were to be done, the Court could and would need to look at that material as constitutional fact but not as evidence.  We have collected it in an affidavit so it is in a place and so consistent with procedural fairness, Mr Williams has had an opportunity to respond to it as constitutional fact if he wishes to.  His response seems to be he embraces it, it is accurate and what it tells the Court is what the Court knows which is the mischief is regarded as significant.  A lot of people have died through this trade and a lot of people

have come to Australia contrary to our legal rules through this trade.  Against those facts, we would submit Mr Williams’ proportionality case does not get off the ground. 

Your Honours, in relation to the Australian Human Rights Commission, we have provided written submissions in response to their written submissions and it is appropriate if I simply rely upon the written response rather than develop that orally.  If it please the Court.

FRENCH CJ:   Thank you.  Solicitor‑General for New South Wales.

MR SEXTON:   If the Court pleases.  In the light of the submissions by the Commonwealth Solicitor‑General there are just a few comments that we would add, and those are on the issue of mandatory minimum sentences and that is the second strain in the sense of Mr Williams’ argument.  There is some difficulty, we would say, in identifying the precise basis on which the challenge is made to those provisions.  It does not seem to be made on the issue of separation of powers, but rather on a novel implication from Chapter III premised on a notion of proportionality, although far from absolute because Mr Williams does not say that all mandatory minimum sentences would be invalid and he accepts, for example, the one that is put under section 233B.

There is a separate argument, of course, based in relation to the prosecutorial discretion but that has already been addressed by the Commonwealth Solicitor‑General and I will not go to that now.  In the context of sentencing legislation, of course, a court’s discretion is limited by the fact that almost all offences are now statutory and so there is normally a prescribed minimum fine or a period of imprisonment and a range of prescribed factors that are to be taken into account in deciding what the sentence is to be. 

This discretion is available to the Court here except that it is to be exercised between the maximum penalties prescribed and the minimum penalties prescribed under the legislation, eight to 20 years in one case and five to 20 years in the other case.  As Justice Hayne noted, I think earlier today, this kind of limitation was recognised by Justices Gaudron, Gummow and Hayne in Wong v The Queen at paragraph 36 - I think Justice Hayne referred to that paragraph this morning. 

Like a statutory maximum penalty, a statutory minimum penalty is a legislative direction as to the seriousness of the offence although, as was noted in Wong, such a direction is relatively infrequent in this country at both the federal and State levels.  Within those two boundaries, however, a court is able to apply a principle of proportionality, but absolute proportionality is, in a sense, a common law concept and has always been

subject to the notion of a statutory maximum penalty and, we would say, it can be subject as well to a statutory minimum penalty. 

The measure of proportionality in this case, we would say, in any event, would be consistent with the principles adopted in Ewing v California 538 US 11 at 23 to 24 in relation to the rather narrow proportionality principle in relation to non‑capital cases under the Eighth Amendment in the United States Constitution.

It can be noted that in Elias v The Queen (2013) 87 ALJR 895 the Chief Justice, together with Justices Hayne, Kiefel, Bell and Keane said at paragraph [25]:

It may be accepted that, subject to any contrary statutory intention, common law principles such as proportionality, totality and parity apply ‑

to the sentencing of offenders under what was then, in that case, Victorian law.  It has already been noted in the course of argument, certainly by Justice Bell, that until relatively recently there was a single mandatory capital penalty for murder in most Australian jurisdictions.  It is true, of course, that most of those sentences were commuted to life imprisonment – most, not all, and that those sentences in turn were then often determined by release on licence but both those changes to the original sentence were affected by the Executive and imposing the original sentence a court had no discretion under the relevant statutes.  With the abolition of capital punishment, the penalty for murder then became, in most jurisdictions, a mandatory sentence of life imprisonment with, again, the Executive being able to determine this sentence by release on licence. 

The complete elimination of judicial discretion in both instances indicates the scope of Parliament’s power to vary common law principles concerning proportionality and sentencing.  We would say there is no textual or structural basis in Chapter III for elevating the common law principle of proportionality in sentencing to an implied constitutional restriction.  In the absence of any constitutional prohibition in this country similar to that that is found in the Eighth Amendment to the United States Constitution.  Those are the only matters that we wanted to add, your Honours.

FRENCH CJ:   Thank you.  Solicitor‑General for South Australia.

MR HINTON:   If the Court pleases, we can be mercifully brief. 

FRENCH CJ:   Did you say mercilessly or ‑ ‑ ‑

MR HINTON:   We would not want to be cruel and unusual.  We confine our oral submissions to the second primary argument.  As the Court will see from our oral hand‑up, paragraphs 1 through to 4, we attempt to encapsulate therein precisely what the mandatory minimum in this case achieves and precisely what it stands for.  At paragraph 3 we conclude that it is a considered view of the Parliament that:

no circumstances in which the s233C offence may be committed, and no circumstances personal to a person committing such offence, can mitigate the seriousness of the offending to an extent that a sentence less than the minimum is appropriate.

That, in our submission, is what the mandatory minimum here stands for.  In paragraph 5 we attempt, in three steps, to articulate ‑ we hope we are correct ‑ my learned friend’s argument.  It is the second step that is the crucial one; in the second step my learned friend seeks to invoke federal judicial power and to derive from it an implication that permits the judiciary to, in effect, review that considered view taken by Parliament which we have set out at paragraph 3.  Our answer with respect to that second step in the argument is set out in paragraph 8.  We list seven reasons why what must be an implication is not an implication that is firmly based such that your Honours can draw it and then find in favour of the appellant.

May I explain two of the reasons?  The rest in one way or another have been raised by my learned friends, the Solicitors‑General for the Commonwealth and New South Wales.  As to 8c, if we are correct in our attempt to identify the implication then it is an implication drawn from the defining characteristics of judicial power that must travel well beyond just a power to review Parliament’s considered view as to a mandatory minimum.  By that I mean, it must be a power to review any consequence, any legislative consequence that the judicial power must impose upon a finding made in the exercise of such power.  So, for example, at its most base, the proposition would potentially allow the judicial power to review a cap on damages for being manifestly inadequate.

In our submission, stripped bare, if the implication is that broad and that far reaching, one that allows a judicial power to review the legislative power, you would expect it would have been express rather than left to what are the defining characteristics of the judicial power; that is what we mean in 8c.  As to 8d, that has been done to death and I will not go over it again, so has e, f ‑ f largely encapsulates the points that your Honour Justice Keane made.  Paragraph 9 is when we turn to the opposite and there we encapsulate the points that your Honour the Chief Justice made this morning.

If you accept my learned friend’s argument and confine it to purely a question of grossly disproportionate sentences then you are, in effect, constitutionalising a common law approach to determining the appropriate sentence in any given case, and you are constitutionalising not just what is grossly disproportionate but, on my learned friend’s argument, you are constitutionalising the four ordinary purposes of punishment and the judiciary’s power to determine in a given case which of those four purposes should be afforded paramountcy.  If the Court pleases.

FRENCH CJ:   Thank you, Mr Solicitor.  The Solicitor‑General for Western Australia.

MR DONALDSON:   Your Honours, we cannot usefully add anything to the oral submissions that have been made by the interveners supporting the respondent and your Honours have our written submissions.  Could I, however, your Honours, simply make one observation arising from my learned friend, Mr Gleeson’s, submissions?  He referred your Honours to the case of Harmelin v Michigan, a 1991 decision of the United States Supreme Court.  There is a more recent consideration of those issues, your Honour, in a case, Graham v Florida, which is referred to in paragraph 61 of our written submissions, to the extent your Honours consider the issue relevant, in any event.

FRENCH CJ:   Thank you, Mr Solicitor.  Mr del Villar.

MR DEL VILLAR:   Your Honours, do you have the oral outline?  The oral outline simply takes issue with one point that is raised in the oral argument of my learned friend, Mr Williams, and that is the claim that minimum mandatory custodial sentences were rare and exceptional.  In addition to the oral outline, we have provided extracts from the South Australian Criminal Law Consolidation Act 1876 as well as an Act which removed many of the minimum mandatory custodial sentences in that Act – the Criminal Law Consolidation Act 1925.  Your Honours, as paragraph 2 of the oral outline makes clear, there were a range of offences at Federation which were subject to mandatory custodial sentences, so it should not be thought that the situation was such that these mandatory custodial sentences were a rare thing that were somehow compatible with the existence of this implication.

Your Honours, I do not need to say anything more about that.  I have set it out in the oral outline.  Can I just add in relation to point 6 of the oral outline, paragraph 48 of the Commonwealth submissions and, particularly, footnote 93 lists a whole series of mandatory minimum requirements which are set out under State and Territory law.  The existence of those requirements since Federation and before Federation tells against the

existence of the implication that my learned friends seek to deride.  Unless your Honours wish any further assistance, those are my submissions.

FRENCH CJ:   Thank you, Mr del Villar.  Yes, Mr Williams.

MR WILLIAMS:   Thank you, your Honour.  In relation to construction, if the submission that we have put about the inclusion of the plural within the singular in 233A be correct, then that section in its plural operation – the two or more people referred to are necessarily a group, otherwise the charge would be bad for latent duplicity.  It could not be otherwise than a group.  The offence could not be committed otherwise than in respect of a group.  If it were several individual smugglings, then it is inherently a different offence on each occasion and a charge that related to two or more persons, otherwise than in a group, would be bad for latent duplicity.

Now, if that be so, once a group is within 233A there is an area of identical operation between 233A and C where the group is five or more, and that is enough to bring the provision within the area of overlapping offences within the principle in Coorey.  In relation to Fraser Henlein, the Commonwealth Solicitor went to page 120. If I could take the Court to 70 CLR at 120, at about point 3 on page 120, the line beginning with the word “indictment”:

a decision to present an indictment is not a judicial decision, although it exposes the accused to penalties greater than would be the case if it were determined not to prosecute upon indictment.  It is not a judicial decision because it makes no adjudication upon rights or duties or liabilities, or, indeed, on anything.  It imposes no penalties, though it does expose a person to the possibility of a particular penalty.

The difference here is that the choice of a 233C charge rather than 233A exposes the accused to the inevitability upon conviction of a harsh penalty, the inevitability without judicial discretion of a minimum of five years with a non‑parole period of three, and that is a difference in kind.

HAYNE J:   Do you accept that the argument being considered in Fraser Henleins was an argument founded wholly on the dissenting opinion of the Chief Justice in Coorey?

MR WILLIAMS:   I am not sure that I have sufficiently familiarised myself with the summary of the argument to be able ‑ ‑ ‑

HAYNE J:   I think you will likely find it at page 107.

MR WILLIAMS:   Yes, indeed it is just that brief passage at the top of 107.

HAYNE J:   The argument being advanced is Chief Justice Jordan was right in Coorey and that was the only argument at stake in Fraser Henleins, was it?

MR WILLIAMS:   That appears to be so from the summary of the argument.

HAYNE J:   We then go back Coorey and Chief Justice Jordan’s opinion stemmed, did it not, from the proposition that the Black Marketing Act, save in perhaps a few exceptional cases, did not create new offences?  I have in mind what his Honour said at 299 at about point 5, and that was important to the reasoning in Coorey because at 300, at point 5, after the citation of Kemp v Neville:

as regards all acts which are offences independently of the Black Marketing Act, that Act –

that is, the Black Marketing Act –

purports to invest a person who is not a competent Court with part of the judicial power of the Commonwealth, in that it purports to enable him at his discretion to dictate the penalty in particular cases.

Now, that is the argument that underpins the opinion of the Chief Justice in Coorey, I think.

MR WILLIAMS:   We rather take as a matter of substance the Chief Justice to be indicating that there is, in the class of cases that Coorey was directly concerned with, no distinct offence, that is, the elements were identical and the Black Marketing Act created in effect the identical offence with a higher penalty.

HAYNE J:   Exactly so, and the asserted infirmity found by Chief Justice Jordan was that in a circumstance where the same conduct constitutes two offences identically constituted save for penalty, the choice available to the prosecutor between offence 1 or offence 2 was to vest judicial power in the prosecutor.  That is as I understand his Honour’s argument, but what I am asking is, is that understanding one which you seek to challenge?

MR WILLIAMS:   The answer to your Honour’s question is that we do not seek to challenge that.  It was not, as we understand it, simply the creation of a different penalty for the same offence; it was the creation of an identical offence with a different penalty.  But we say that is precisely the territory that we are in here once we are dealing with five.

HAYNE J:   We come back to whether C is an aggravated form of A, do we not, that is, whether the elements of the offence under C are the same as the elements under A?

MR WILLIAMS:   Once we are in the plural operation of A and in respect of five or more persons, we are dealing with the same offence because we are dealing with a group.

HAYNE J:   Just as you would say, I assume, that an assault occasioning actual bodily harm is relevantly no different from an offence occasioning serious bodily harm if the harm suffered by the victim as a matter of fact could be classed as serious.

MR WILLIAMS:   No, we do not accept that at all.

HAYNE J:   Well, that is the point to which I think you have to get, Mr Williams, and unless you get to that point, you have lost.  I do not follow quite how the argument runs.

MR WILLIAMS:   Well, in the case - perhaps I did not sufficiently grasp the last factual step of your Honour’s proposition but the difference between – if one is charged with assault occasioning actual bodily harm and serious harm is proved, then De Simoni says that the serious harm is not an element of aggravation of the offence and cannot be taken into account because it has not been proved, has not been alleged to have been proved.

HAYNE J:   The law has a very elaborated apparatus for dealing with the results both as to double jeopardy, about as to the De Simoni principle but not the consequence I think of invalidity which is the consequence you would attach to it and, indeed, the point I am asking you to grapple with is that the very elaboration of principle that we find in double jeopardy about included offences, De Simoni and that principle, in effect goes in aid of demonstrating the infirmity of the argument of invalidity which you are advancing.  Now what is the proposition in answer to that?

MR WILLIAMS:   The proposition is – and, in essence, I am being repetitive – once we are dealing with ‑ ‑ ‑

HAYNE J:   Well, I am being slow, Mr Williams, so indulge me.

MR WILLIAMS:   No, no, I am sorry, your Honour, not at all.  I am not meaning to ‑ ‑ ‑

HAYNE J:   No, no.

MR WILLIAMS:   My answer is repetitive.  I am not implying that your Honour is behind my argument.  Once we are dealing with a group, the plural operation of 233A in respect of five or more, we are dealing with identical offences and proving the five proves the group.  It is not to be compared with a particular circumstance of aggravation such as serious bodily harm proved on a lesser offence.

BELL J:   We come back, Mr Williams, to the fact that it is not incumbent on the prosecution in a 233A prosecution to prove the fact of the intentional facilitation of the bringing in to Australia of a group of five persons.  I am not quite sure how you see the offence under 233A being prosecuted or the indictment particularised, but it may be that factually more than one person’s entry into Australia was facilitated and it may be that factually more than one of those persons was a non‑citizen with no lawful right to come into Australia, but proof of the offence does not require more than proof of the bringing into Australia of one person answering that description.  So the fact that evidence might disclose more than that number, it seems to me your argument confuses conduct with proof of an offence.  The 233A offence does not require proof of a number in excess of one person answering the characteristics set out in the provision.

MR WILLIAMS:   We accept that, but the 233A offence could be particularised in this way, to answer directly your Honour Justice Bell’s question.  Another person, namely, six named people, in 233A, that could be charged without duplicity, on our submission, as to the plural operation of 233A.

BELL J:   The prosecution would essay to prove that each was a non‑citizen and each had no lawful right, and in the event the prosecution proved that in respect of one person but not the five others, what would be the consequence?

MR WILLIAMS:   The consequence would be that the person would be convicted nonetheless of the offence under 233A.

BELL J:   Because all that is required is proof of that?

MR WILLIAMS:   That is so.  In the same way, if the charge were brought in respect of a group of six named persons under 233C and the prosecution failed in respect of five of them, there would be a conviction subject to procedural fairness because of 233C(3) of the offence under A.

BELL J:   It would be a conviction of the lesser offence.  We are going around in circles, I think.

MR WILLIAMS:   We are in a sense, your Honour, but in essence the answer that we give to your Honour is these are pure differences of form.

BELL J:   Difference of elements of an offence, Mr Williams, and that is significant in terms of what it is that the prosecution is bound to prove before it can succeed in its case.

MR WILLIAMS:   We accept that it could not succeed under a 233C case unless it proved the intention in respect of five or more, and that is not so under 233A.  But it will succeed if it alleges six under 233A and proves six; it will succeed if it alleges six under 233C and proves six.  In the former case there will be a discretion as to the penalty.  In the latter, that discretion starts at a minimum of five years with a three year non‑parole period.  We accept your Honour’s point that there is a formal difference.  Our point is it is only a formal difference, and that may be the circle that we are going around in.  I am not sure whether that assists your Honour or not, but that is our answer.

If I could then just say one thing about proportionality.  The essential point, in our submission, that invoked proportionality is the preservation of the judicial character of the sentencing process, an aspect of which is freedom from arbitrary detention.  We accept that there is some measure of additional step in this on top of the cases to which we have referred – Monis and Rowe, but nevertheless we say that there is no significant element of novelty in that.

KEANE J:   Mr Williams, if you were to succeed and the matter were to be sent back in accordance with the orders you seek, what would be the relevant yardstick in terms of sentence that the court would then apply?

MR WILLIAMS:   It would be the 20 year maximum penalty, without a minimum penalty and the inevitable result of that would be a sentence, and I think as a measure of common ground in this – I do not in reply wish to overstate this – but there was a measure of acceptance below that neither this penalty nor anything like it could be justified on the 20 year maximum alone without the minimum penalty.

KEANE J:   In relation to 233C, is your submission that it should be construed as if the words “of a group of” should be ignored?

MR WILLIAMS:   No, we do not say that, your Honour.  In order to invoke the higher penalty in 233C, 20 years, as opposed to the 10 years which 233A carries, it is necessary to allege and prove a group of five or more.  So the group of at least five remains in 233C as an essential element that must be pleaded and proved, but our objection is rather to 236B, which

is on page 40 of the appeal book.  Our objection is to 236B(3)(c).  The prescription – and again, this may be in partial answer to Justice Bell – of the conduct is the same, even if in a formal sense the elements are different.  Your Honours, those are our submissions.

FRENCH CJ:   Thank you, Mr Williams.  The Court will reserve its decision.  The Court adjourns until 10.15 tomorrow morning.

AT 3.30 PM THE MATTER WAS ADJOURNED