The constitutionality of minimum mandatory sentencing regimes: a rejoinder
Article
Article Title | The constitutionality of minimum mandatory sentencing regimes: a rejoinder |
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ERA Journal ID | 35442 |
Article Category | Article |
Authors | |
Author | Hemming, Andrew |
Editors | Reinhardt, Greg |
Journal Title | Journal of Judicial Administration |
Journal Citation | 22 (4), pp. 224-234 |
Number of Pages | 11 |
Year | 2013 |
Place of Publication | Sydney, Australia |
ISSN | 1036-7918 |
Abstract | 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. |
Keywords | constitutionality; mandatory; minimum; sentencing regimes |
ANZSRC Field of Research 2020 | 489999. Other law and legal studies not elsewhere classified |
440203. Courts and sentencing | |
480410. Legal theory, jurisprudence and legal interpretation | |
Public Notes | Copyright © 2013 Thomson Reuters (Professional) Australia Limited. Permanent restricted access to published version due to publisher copyright policy. |
Byline Affiliations | School of Law |
Institution of Origin | University of Southern Queensland |
https://research.usq.edu.au/item/q1y76/the-constitutionality-of-minimum-mandatory-sentencing-regimes-a-rejoinder
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