The constitutionality of minimum mandatory sentencing regimes

The constitutionality of minimum mandatory sentencing regimes

This paper considers the increasing use of minimum mandatory sentencing provisions in Australian law. A prime example is the provisions in the Migration Act 1958 (Cth) dealing with so-called people smugglers, imposing minimum penalties of up to eight years' imprisonment. The paper argues that by significantly limiting judicial discretion in such a way and by not allowing judges to take into account mitigating factors in a way they normally would, the provisions undermine the separation of powers for which the Constitution provides, raising Kable type arguments against the validity of such provisions, as well as rule of law concerns, in that minimum mandatory sentencing creates the possibility of arbitrary exercise of power against an individual.

This article was first published by Thomson Reuters in Journal of Judicial Administration and should be cited as Anthony Gray and Gerard Elmore, The constitutionality of minimum mandatory sentencing regimes, (2012) 22 JJA 37. For all subscription inquiries please phone, from Australia: 1300 304 195, from Overseas: +61 2 8587 7980 or online at https://www.thomsonreuters.com.au/en-au/contact.html. The official PDF version of this article can also be purchased separately from Thomson Reuters at http://sites.thomsonreuters.com.au/journals/subscribe-or-purchase.