Magaming v The Queen

[2013] HCATrans 140

[2013] HCATrans 140

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S58 of 2013

B e t w e e n -

BONANG DARIUS MAGAMING

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

FRENCH CJ
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 7 JUNE 2013, AT 10.57 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, for the applicant.  (instructed by Legal Aid Commission of NSW)

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

FRENCH CJ:   Thank you.  Yes, Mr Williams.

MR WILLIAMS:   Thank you, your Honour.  The applicant was sentenced on 9 September 2011.  Had the sentencing hearing been held one year later with the same offence and the same legislative provisions, the direction given by the Attorney‑General to the Commonwealth Director of Public Prosecutions, which is the last document in the joint folders book behind tab 13, would have applied to the sentencing hearing.

Within the terms of that direction, within clause 1, the applicant was a crew member with no other role, his role rose as high as helping steer the boat and no higher, and by the combination of clauses 1 and 3 ‑ this is tab 13 of the bundle, the last document ‑ by clauses 1 and 3 the Director would have been obliged to withdraw the charge under section 233C and would no doubt have proceeded instead under section 233A.  The effect of the direction is to compel proceeding under the non‑mandatory provision in the case of a person who is no more than a crew member, as the applicant was.

FRENCH CJ:   Incidentally, before you go on, I think you need an extension of time.

MR WILLIAMS:   I am sorry, your Honour, yes, I do.

FRENCH CJ:   Is that agreed, Mr Neil?

MR NEIL:   There is no objection.

FRENCH CJ:   Yes.  All right, you have the extension.

MR WILLIAMS:   I am sorry, your Honour, I should have attended to that.  The sections have identical elements, save that 233A applies to any number of illegal entrants, and 233C applies to five or more.  Had the applicant been dealt with under 233A, it is certain that he would have received a lesser sentence.  We know that because of the remarks – and this is pages 4 and 5 of the application book – of the Chief Judge of the District Court, but perhaps I should mention a couple of typographical corrections.  At about line 38 there were in fact 52, not 116, illegal immigrants, which is the sum of those that follow and that is clear from the preceding pages as well, and the applicant was 20 rather than 26.

FRENCH CJ:   Mr Williams, can I just cut to the chase?  As I understand, there are two limbs to your argument.  One is the Executive direction limb.  The other is the more general question reflected in, I think, the first ground in your draft notice of appeal.  Now, that does not involve a proposition, does it, that mandatory minimum sentences, at least in the exercise of federal jurisdiction, are beyond the power of the Commonwealth Parliament?

MR WILLIAMS:   We do not go that far, we do not need to go that far.

FRENCH CJ:   ..... criterion, it seems to me, of some sort of judgment about arbitrariness and cruel and unusual punishment and so forth.  Can you try and formulate that principle a little more precisely, as you would seek to put it, if granted special leave.

MR WILLIAMS:   Yes.  We say that it is inconsistent with the judicial power for a court to be compelled to impose a minimum sentence that is grossly disproportionate to the objective and subjective elements of the offence.

FRENCH CJ:   Judged by whom?

MR WILLIAMS:   Judged by the sentencing court in light of the statutory maximum.  We can illustrate the point perhaps ‑ ‑ ‑

FRENCH CJ:   So the validity of the legislation would depend upon a judicial assessment of the particular case or ‑ ‑ ‑

MR WILLIAMS:   It would depend on the assessment by the court called upon to rule upon validity, normally this Court, of that.

FRENCH CJ:   There may be some cases in which the sentence would be quite appropriate.

MR WILLIAMS:   Yes, your Honour.

FRENCH CJ:   So what is the proposition you are putting, that it has the potential to be disproportionate to the seriousness of the offence?

MR WILLIAMS:   Can I focus support in this way?  Can I take your Honours to pages 18 and 19 of the book?  Page 19 of the book is the offence of – the aggravated offence, 233B.  It is, of course, not applicable in this case:

Aggravated offence of people smuggling (exploitation –

I think the first element of that, the (1)(a) limb, has been deleted earlier this year, but the balance of the offence remains, an aggravated offence of where in carrying out the offence:

the first person subjects the victim to cruel, inhuman or degrading treatment –

or in paragraph (1)(c):

the first person’s conduct gives rise to a danger of death or serious harm –

Now, we accept that a mandatory minimum term for an offence so formulated might be valid, and the reason for that is that the aggravating elements necessarily carry with them something that makes a minimum proportionate, or at least not grossly disproportionate.  Now, by contrast here, the offence is committed wherever there is more than five people by, in this case, an indigent 20‑year‑old fisherman, or, taking other facts, a humanitarian organisation bringing a boatload of refugees from, hypothesise, East Timor or Irian Jaya fleeing an ethnic massacre.

They are equally subject to such provisions in circumstances where the range of criminality that might be comprehended could not possibly make a mandatory five year term with a three year non‑parole period appropriate.  That is the distinction that we draw.  We say that in the present case, the legislation contains no discrimin that makes it appropriate and, therefore, it gives rise to the possibility, indeed the frequent reality, that courts will be required to impose sentences that are grossly disproportionate to the underlying criminality of the offence.

So that is the way in which we put the first point.  We rely on that element also in respect of the second.  The court will be required to do so if the Executive so chooses.  If the Executive chooses according to the kinds of criteria that have been enumerated by the Attorney‑General, well then perhaps there may be no injustice.

KIEFEL J:   How is the Executive directing the courts on this argument?

MR WILLIAMS:   The Executive chooses the provision under which the person will be charged and the court then must impose the minimum term.  The Executive will choose, for example; the Director of Public Prosecutions will choose according to the proofs of evidence, using the Attorney‑General’s criteria whether the person is an organiser or not, whether the person has a greater role.

KIEFEL J:   But that is not to enlist the courts in the Executive decision, is it?

MR WILLIAMS:   Well, it enlists the court in this sense, that the Executive makes a choice for its own reasons which might include secret information which is entirely false as in the case of Ex parte Gerard, the first of the wartime cases, secret information that was not made good.  The Executive for its own purposes chooses one of the two provisions with a mandatory term and the judiciary then upon quite different evidence is compelled to impose a sentence in what we say is an essentially capricious or arbitrary manner.

FRENCH CJ:   There is always the possibility, is there not, of prosecutorial discretions being exercised to charge a person with one offence rather than another?  That is across a wide range of potential offences unrelated to this field and the court has made pretty clear that it does not, as it were, second‑guess prosecutorial discretion.  I am not sure that that gets us into the territory of the Executive directing the court in any sense.

MR WILLIAMS:   The difference is ‑ of course it is inherent in the fraud offences, for example, where there is specific social security offences, medium level fraud‑type offences and high level fraud‑type offences, any of which might be charged ‑ the difference is that a court in dealing with such provisions or dealing with a person charged under such provisions always has a discretion that permits it to do justice.  In the present case the court has none, as is made clear by the Chief Judge’s remarks on sentence.

KIEFEL J:   You earlier referred to, and I think in your written submissions refer to the arbitrary nature of the mandatory minimum.  Are you calling in aid in your Chapter III argument a rule of law concept as affecting the courts?

MR WILLIAMS:   Yes.  It is essentially arbitrary because in the choice between the two provisions, one of which – the elements are relevantly identical.  Your Honours will see 233A on page 18 organising or facilitating the bringing of a person, which of course includes any number of persons.  Then on page 20 of the book, 233C precisely the same elements except that in the second case there must be at least five, we say a discrimin that would not necessarily carry with it in any ordinary sense a necessary criminality requiring a term of this quite substantial duration, five years and three years.

KIEFEL J:   How do you formulate the submission which combines aspects of the rule of law with the effect on the institutional integrity of the courts?

MR WILLIAMS:   Well, the court is in this exercise compelled to impose a penalty.

KIEFEL J:   Is it some sort of inconsistency argument, the court acting inconsistently with the rule of law, is that the territory we are in?

MR WILLIAMS:   It is, and we call in aid the principles of equal justice coming from decisions like Wong.  Taking, for example, the case where the director charges two crew members from the one boat, one of them is an organiser because he has a proof of evidence, a witness statement saying that person was an organiser, and the other under the 233A offence, and the evidence at trial does not come up to proof as is common, or perhaps even goes the other way, it was a mistaken identity, it was in fact the other way around. 

Then in sentencing, the court will be compelled to impose five years with three years non‑parole in respect of a person who had no greater role than as a crew member and to deal with the other person without any such constraint.  We say that does offend principles of equal justice.  It raises large questions about parity and it raises large questions about the rule of law.

KIEFEL J:   Another submission of yours is, I think, that a mandatory minimum sentence denies a person the opportunity to be heard before sentence is passed, that is, nothing that they can say will alter at least the minimum.

MR WILLIAMS:   Yes.  We do put it in that way and, again, that example might serve to illustrate it, as in Ex parte Gerard where there had been secret information before the committee which had authorised a prosecution under the Black Marketing Act, as opposed to the much less serious offence.  That secret information, of course, was not before the court.  There is no capacity for the person to be heard in respect of the minimum that they are now to suffer by reason of the choice made at an anterior point to prosecute under the minimum provision rather than the one that did not carry a minimum term.

FRENCH CJ:   Mandatory minimum sentences have been around for a long time and in a variety of jurisdictions in Australia reflecting a legislative judgment as to the level of seriousness, if you like, the irreducible level of seriousness of certain offences, no doubt for a variety of

reasons.  You seem to be submitting that the court can substitute its own judgment for that of the legislature.

MR WILLIAMS:   No, we do not put it in that way.  We accept that there may be circumstances and we give 233B as an example of a provision in which the conduct necessarily comprehended by the offence provision can justify a minimum term.

FRENCH CJ:   But you are saying, are you not, that a young crew member on one of these boats, or let us suppose it is a member of a ‑ a young recruit to an humanitarian organisation, that the imposition of the mandatory minimum sentence is somehow disproportionate to the seriousness of that kind of involvement.  What I am putting to you is, is there not a legislative judgment implicit in the fixing of a mandatory minimum sentence, that there is an irreducible level of seriousness whatever the circumstances?

MR WILLIAMS:   We accept that that may be seen as implicit, but our submission is that there are limits on the capacity of the legislature to compel the judiciary to act in a manner such as this, and there is, in our submission, an important difference between a provision in which the irreducible minimum of criminality such as in 233B makes it proportionate or at least not grossly disproportionate to require a minimum and a case such as this in which the very wide variety of circumstances and offenders to which it may apply – I have given a couple of examples, Justice Allsop made the point as well – the very wide range of circumstances to which it might apply will give rise to not merely the remote possibility but the inevitability of significant injustice such as occurred here.

FRENCH CJ:   We might hear from Mr Neil.

MR WILLIAMS:   May it please the Court.

MR NEIL:   May it please your Honours.  In our learned friend’s written submissions in‑chief in the application book at page 73, paragraph 13, our friends correctly say that ‑ his Honour there referring to President Allsop as his Honour then was – this is in the last sentence:

held that existing authority precludes every line of reasoning that might have otherwise led to a relevant legal consequence in respect of validity –

citing the passages from his Honour’s reasons.  Therefore, your Honours, the most fundamental issue, as it seems to the respondent, raised by this application is whether this Court should reconsider its decisions in Fraser Henleins Pty Ltd v Cody (1945) 70 CLR 100, and Palling v Corfield (1970) 123 CLR 52. The respondent submits that there is insufficient prospect of this Court overruling Fraser Henleins – that would have to be done, I think our friends concede that – and not following the very strong dicta in Palling v Corfield.

Now, your Honours, President Allsop identified three central submissions in the case of Mr Karim, that they were adopted by the present applicant, Mr Magaming, which his Honour referred to as elements of the argument.  The first element, which is addressed in the application book at page 33 around about line 30 in paragraph 50, and also his Honour comes back to it at page 45 around line 50 in paragraph 80, concerns “equal justice” and the asserted lack of conformity with the judicial process.

The second and third elements are dealt with together, commencing at application book, page 46 from about line 10 and going through to application book, page 53 around line 30, paragraphs 81 to 101, and they concern the asserted conferral of judicial power on the Executive and the empowerment of courts as indispensible and impartial tribunals.  Now, your Honours, as the learned President observed, and this is at application book 33, point 20 in paragraph 49:

the constituent ideas embodied in the three elements [of the argument] are closely related. 

His Honour then went on to deal, although it is not directly relevant here but I just advert to it in case your Honours find it interesting, the submissions of the Human Rights Commission which are dealt with at application book 53 from line 40 in paragraph 102 through to paragraph 124.

Now, the overlapping offence provisions was the central argument that our learned friends relied upon below.  As here, there is no attack upon the validity of mandatory minimum sentences per se, and we say that is fundamentally important because it is the case that with the sections that apply to Mr Magaming which are the new sections taking force on 1 June 2010, section 233C, the offence creating provision, and section 236B which provides for the mandatory minimum penalty in his case of a head sentence of five years and a non‑parole period of three years, what is said to be the crux of the injustice, however it may be put, is that there is an equivalent offence creating provision in 233A with, and we accept, relevantly identical elements which provides for a maximum penalty of 10 years’ imprisonment with no mandatory term, whereas under 236B it could be 20 years’ imprisonment with the mandatory head sentence and non‑parole period.

We merely say that that is what the Parliament intended.  It is an Act of the Parliament.  The choice of the charge is purely an Executive choice.  It does not touch the judicial sphere in any respect.  We submit, your Honours, that a fundamental premise of both Fraser Henleins and of Palling is one identified by President Allsop at application book 51 in paragraph 94, and that is that:

mandatory sentencing provisions are within the authority of Parliament –

His Honour correctly said, we submit, that:

Parliament can provide for the mandatory sentence upon a condition or request effected by a third party –

In this case, it was the Commonwealth Director of Public Prosecutions, subject to an appropriate direction it could be the Attorney‑General of the Commonwealth, but whoever may make the decision as to which charge is to be selected, such a legitimate condition or request includes the prosecutorial choice between two offences for the purposes of the argument relevantly for the same conduct, carrying differing sentencing regimes, one of which has a mandatory minimum penalty. 

The respondent’s submission is that the conferral of this choice on the Executive by the Parliament does not in any respect involve conferral of judicial power on the prosecution, nor does it amount to any direction of the court by the prosecution and such a law is valid, and we have cited the authority in our written outline, even in circumstances where it may be thought that the choice could operate with injustice.

The fundamental reason, your Honours, we submit, is that even where the Parliament has left it to the Executive to choose one of two alternative procedures for the prosecution of offence, with the penalty or punishment being determined either absolutely or within prescribed limits by the process of the prosecution, the Executive’s act of selecting a charge from overlapping offences with differing sentencing consequence does not involve a choice in the Executive of a judicial character, and we submit that is a fundamental matter.  The learned President in his reasons cited from Palling at page 64 of the report, and it is in the bundle of materials, a statement of Justice Menzies, where his Honour said that:

To initiate judicial action in such a way is not, however, to exercise judicial power . . . it would be exercising an administrative discretion upon non‑judicial grounds.

The learned President set out reference to that passage in the application book at page 49 at about line 50 in paragraph 89.  His Honour went on to point out that in Palling at page 68 of the report, Justice Walsh was also unequivocal in saying that:

When an Act requires a court, [importantly] upon an offence being proved, to pass –

or it may be proved or it may be a plea of guilty, it matters not –

a mandatory sentence this does not involve any unconstitutional intrusion by the legislature into the field of judicial power.  The relevant exercise of judicial power . . . consists of the application of the law by the court, according to the terms of the law.  If the Act provides for a mandatory sentence, the only power of sentencing which the court has ‑ ‑ ‑

FRENCH CJ:   Mr Neil, I do not think we need to hear you any further on the matter of the Executive discretion, but any further remarks you might have on the first ground on the notice of appeal relating to the constitutional validity of the provision?

MR NEIL:   Well, your Honour, our position is that the constitutional validity is fundamentally upheld by five justices in Fraser Henleins who were unanimous and by the very strong dicta in Palling, particularly of the Chief Justice Barwick, and in a sense one cannot really add to it.  The norms of international law that are said to have influence in this area, it was accepted by a learned Senior Counsel for the Human Rights Commission below and it was found by President Allsop with whom the other members of the court relevantly agreed, that it is not relevant other than in informing notions of common law.

It is not directly relevant on the meaning of Chapter III, and much of those areas are strongly influenced by international constitutions.  Our friend in his submissions in reply refers to Canadian authority which is founded upon the Canadian Charter of Rights.  Other parts where our friend talks about cruel and unusual punishment appear to have their origin in the Eighth Amendment of the United States Constitution which prohibits cruel and unusual punishments.

Now, there is a long line of authority of this Court that great care must be exercised when looking at those types of international jurisprudential expositions which ultimately are founded upon their own written constitutions.  Ours does not have such a basis and if I may then try and be a little ‑ ‑ ‑

FRENCH CJ:   It really seems to be an issue as advanced by Mr Williams that it is embedded in Chapter III.  Of course, there has been a lot of discussion of Chapter III since Fraser and so forth, has there not?

MR NEIL:   Unquestionably, which is why I said, your Honours, that in a sense this comes down to how your Honours view it and whether your Honours this that this is the appropriate time and an appropriate vehicle, irrespective of ultimately what your Honours, if it went on appeal, might decide.  Perhaps I cannot usefully enter that debate, I am not going to suggest that there are not some issues of significance potentially that arise.

I do submit that when one looks at it closely, the reality is that the prospect of Fraser Henleins being overruled and Palling not being followed is dim, for a whole lot of reasons which were ventilated very fully before the Court of Criminal Appeal.  Now, we are conscious of expressions of view of the learned President and the Chief Justice which seem to imply on one view that it might not be a bad idea if this were looked at.  We have put our submission.  It will not help your Honours for me to repeat it. 

We say that when you look at the Australian Constitution and the basis of it, we have cited a remark from Justice Kirby in Baker that even where some of these matters may be seen, and some of these questions about whether something is cruel and unusual are really very subjective, it is difficult to formulate clear principles that have any clear possibility of application.  Our friend talks about a human rights group who may be bringing a boat of people.  Well, I mean, the Parliament has made it perfectly plain that there is a bottom line to anybody doing that, and this is against a framework which may be only by way of general background where it seems the community considers that this country has a real problem and that is not, we submit, totally irrelevant.

FRENCH CJ:   I think what seems to be informing the proposition advanced by Mr Williams is that there is some class of mandatory minimum penalty where the range of behaviours to which it applies means that its application will be inescapably arbitrary or capricious in some way which is incompatible with the functions that can be conferred on a Chapter III court.

MR NEIL:   Yes, we so understand it, your Honour.

FRENCH CJ:   I think that is the sort of territory we are in, rather than cruel and unusual.  I think it is more a judicial function exercise, is it not?

MR NEIL:   Perhaps, a judicial philosophical function to some extent.

FRENCH CJ:   I am not suggesting that that would succeed at the end of the day, but I am just trying to identify the territory we are talking about.

MR NEIL:   Once it is conceded that mandatory minimum penalties per se are not unconstitutional, it is an extremely large step to say that because you have an overlapping provision because in some cases it may be thought by some to be ‑ ‑ ‑

FRENCH CJ:   I think this goes more fundamentally than the existence of the overlapping provision.  As I understand it, the attack is on independently of the existence of the overlapping provision, this kind of provision because of the range of behaviours that it covers.  Your answer to that is perhaps the proposition that I put to Mr Williams, that there is an irreducible minimum level of seriousness attributed to the conduct by the legislature and there is no way around that.

MR NEIL: Indeed, your Honour, and the true importance of the doctrine of separation of powers and the true demarcation of what is an Executive act not of a judicial character, it cannot be right. There is a line of authority going back since well before the Constitution.

FRENCH CJ:   We are not talking here either about prosecutorial discretion; just put that to one side.  It is really the question of whether there is a category of mandatory minimum punishment which somehow is capable of attracting a characterisation as arbitrary or capricious in its application in the way that is constitutionally impermissible.

MR NEIL:   Indeed.

FRENCH CJ:   In putting that to you I am doing no more than trying to characterise what I see as at the core of Mr Williams’ submissions.

MR NEIL:   Well, we may have misunderstood because we thought our friends ‑ and we can understand why ‑ were actually putting a strong argument against us that because of the prosecutorial discretion, this led to an interference with the judicial process.  Our argument, of course, is that cannot be so.  If it is not so, the question is what is left?  Now, it may be, as your Honour the Chief Justice has articulated, but our submission is that really that is so thin that does not warrant a grant of special leave.

If there were solid grounds, if there was a solid basis, if there were conflicting authorities which attacked mandatory minimum sentences per se, rather than merely odd cases of overlapping offences, which is the way the matter was argued below ‑ Justice Allsop is absolutely explicit about that ‑ I mean, the room to expand upon that in a full appeal before this Court is extremely limited, and we say it is not a suitable vehicle.

Now, our friends clearly would have pressed an attack on mandatory minimum sentences if they thought they had any hope of success.  Everything else is in it so that would have been in it.  The overlapping part is such a small part it really does not lend itself, in our respectful submission, to the full consideration of this Court.  If your Honours would excuse me a very brief moment?  There has been in a number of cases, the citation, indeed, by your Honour the Chief Justice with evident approval of Palling.

Could I deal briefly with our friends’ submissions commencing around application book – this is in the reasons of President Allsop at 51 – but our friends make the point your Honour the Chief Justice made, and it is fairly made, that Fraser and Palling are not new.  There has been a lot of judicial authority in various areas.  Our friends addressed the later cases in detail.  They placed particular emphasis on Chu Kheng Lim at pages 26 to 28 and 36 to 37, Gypsy Jokers Motorcycle Club at page 560 at paragraph [39], International Finance Trust Co Ltd v New South Wales Crimes Commission at page 360, paragraph [77], and South Australia v Totani ‑ they are just some of them ‑ at page 63, paragraphs [132], [133] and page 66, paragraphs [143], [144].

Now, when one looks at what President Allsop said in his reasons, his Honour rightly distinguished the later authorities from the reasoning in Fraser and Palling.  They do not apply to it.  The later authorities – the reasoning in Fraser and Palling is essentially to the effect that the Executive in judicial roles are separate and here in this matter there was no Executive act that interfered with the exercise of judicial power, and Parliament can prescribe penalties but only the courts can impose them in respect of charges chosen by the Executive within its legitimate sphere of activity and, therefore, there is and can be no direction of the courts by the Executive.

In Chu Kheng Lim, in particular, a principle enunciated, which may be a new term, is in terms of the impairment of the courts as independent and impartial tribunals.  We submit, your Honours, that mandatory minimum sentences, even in the case of overlapping offences, can result in no such impairment.  The only result is that by an Executive act within the proper sphere of the jurisdiction of the Executive, being conferred on a court sentencing an offender on proof or admission of guilt for an offence for which Parliament has imposed a minimum penalty, is limited by the imposition of that penalty.

So that all that has happened is that the judicial function of imposing penalties has been limited by the Parliament or by choice of the Executive and there is no impact whatsoever on the exercise of judicial power.  If that submission be sound, there can be no basis, in our respectful submission, for a grant of leave.  Can I very briefly, if I have a moment, deal with a couple of matters in our learned friends’ reply which is at application book 92 to 96, where the applicant submits that the process of sentencing

here was essentially arbitrary and that is evidenced by the sentencing judge’s remarks?

That argument, we submit, assumes the unconstitutionality of section 236B and in turn it assumes that the sentencing judge, in applying the section, engaged in the exercise of judicial power of the Commonwealth which resulted in the capricious or arbitrary deprivation of their applicant’s liberty.  In answer to that we say there was nothing judicially arbitrary or capricious about the course the sentencing judge took.  The courts merely took the course he was bound to take.

There was also nothing procedurally unfair about the sentencing process viewed as a whole.  That process did not result within its true meaning on the infliction of cruel, inhuman and degrading treatment or punishment ‑ I am using the meaning that international law ascribes to those expressions ‑ and there was no contravention of any corresponding norm of customary international law.  At page 94, the applicant in reply submitted that the applicant was deprived of an opportunity to be heard as to why he should be sentenced to less than five years.  Our answer is that issue did not fall within the judicial process, and section 236B cannot be unconstitutional just on that account.

FRENCH CJ:   I think you are well into the red now, Mr Neil.

MR NEIL:   I will stop, may it please your Honours.

FRENCH CJ:   Thank you.  Yes, Mr Williams.

MR WILLIAMS:   Could I take your Honours to page 54 of the application book?  Toward the foot of page 54 is a passage from Justice Windeyer in Cobiac v Liddy dealing with penalties and, admittedly, apparently a question of construction, but the bolded final sentence at about line 47 encapsulates the essence of our point concerning rigidity of penalties:

It is that a capacity in special circumstances to avoid the rigidity of inexorable law is of the very essence of justice.”

For “justice” we would substitute judicial power.  The point can be put in a slightly different way, or was put in a slightly more developed way by Justice Allsop at about line 25 on the page in the sentence that begins paragraph 105 in which his Honour expresses the court to be bound.  His Honour then formulates the principle, in the third line:

that the notion of judicial power has developed to a point whereby it can be said that the judicial function in sentencing necessarily entails

a sufficient element of evaluative discretion to enable the court to reach an appropriate and just sentence, or avoid an unjust, arbitrary or cruel sentence.

FRENCH CJ:   Mr Williams, just focusing for a moment on your draft notice of appeal, am I right in surmising that the only ground which raises the question of Executive direction to the court, as distinct from the ‑ otherwise the validity of 236B, is 2.2(a)?  It is at page 69.

MR WILLIAMS:   Yes.  Yes, your Honour, I believe that is so.

FRENCH CJ:   We will not need to hear from you further, Mr Williams.  There will be a grant of special leave on grounds 2.1, 2.2(b) and 2.3.  Subject to interventions, your time estimate?

MR WILLIAMS:   One day, your Honour.

MR NEIL:   The same, your Honour.

FRENCH CJ:   Yes, all right.  Thank you.  We will call the next matter please.

AT 11.39 AM THE MATTER WAS CONCLUDED