The constitutionality of minimum mandatory sentencing regimes: a rejoinder

The constitutionality of minimum mandatory sentencing regimes: a rejoinder

This rejoinder is a reply to an article published in the JJA by Anthony Gray and Gerard Elmore, which argued that minimum mandatory sentencing provisions undermine judicial independence and breach the principle of separation of powers, resulting in a loss of public confidence in the independence of the judiciary. This rejoinder challenges such an argument on five grounds. First, historically, the Crown and later the Parliament decreed the sentence for a particular offence, such as death for murder, which judges were bound to enforce. Second, there is nothing in the Commonwealth of Australia Constitution Act, and Chapter III in particular, to indicate Parliamentary control of sentencing impacts in any way on the 'autochthonous expedient'. Third, s51 of the Australian Constitution, which lists the legislative powers of the Federal Parliament, does not include criminal laws which are the province of the States. Fourth, no support can be found in overseas jurisdictions such as the United States, the United Kingdom, and Canada. Fifth, public confidence in the judiciary has been undermined by inadequate and inconsistent sentencing by the judiciary, which has led some State Parliaments to introduce legislation setting down mandatory sentences and/or sentencing guidelines.

This article was first published by Thomson Reuters in Journal of Judicial Administration and should be cited as Andrew Hemming, The constitutionality of minimum mandatory sentencing regimes: a rejoinder, (2013) 22 JJA 224. 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.